I. Introduction
Russia’s aggression against Ukraine has violently pushed our world into a new phase.Footnote 1 Russia’s annexation of Crimea in 2014 posed similar problems for international law and aroused distrust of the existing international legal order. Since then, the transformation of international law has been an ongoing topic of discussion, engendering a host of different perspectives.Footnote 2 However, the scale and ferocity of the full-scale inter-state war in Ukraine are far greater than during the 2014 crisis. This bloody war is now shaking the international legal order and posing a serious threat to global constitutionalism on a scale previously unprecedented during this century.Footnote 3 Can international law and global constitutionalism survive this difficult period and remain a dominant cognitive and normative paradigm for discussing global governance? This is a fundamental question that global constitutionalists must address. This article answers this question in the affirmative.
In order to answer this main question, the author successively answers two sub-questions. The first concerns international law. Since global constitutionalism is based on and inseparable from the existing international law, the negative impact of Russia’s militant actions on the integrity of international law may well in turn affect the state of global constitutionalism. After summarizing the idea of global constitutionalism, the author argues that, despite its gross violations of international law, the framework of international law approaching individual centricity will be maintained. This is because Russia is neither attempting to withdraw from the current international legal order nor intending to replace it with an alternative framework. In order to prove this argument, this article examines whether Russia’s violations call into question the normativity of international law.
The second sub-question is devoted to global constitutionalism itself. It is sure that after the commencement of the Russo-Ukraine War, the world has become more multi-polarized than before, and international relations seem to be dominated by the idea of power politics or the balance of power. Even if the existing framework of international law remains viable, such polarization accelerated by the ongoing war will negatively affect the sharing of constitutional principles. This fear makes sense, but the author argues that despite an undeniable risk arising from the polarization, global constitutionalism will continue to function as the principal cognitive framework for international society including authoritarian states. This is because the exercise of individuals’ rights embedded in international law will incessantly provide energy for global constitutionalism.
This article clarifies how and why global constitutionalism, grounded by individual-centred elements in international law, is resilient and sustainable under changing conditions in the world, and assesses its prospective future.
II. Global Constitutionalism in a nutshell
In order to answer the fundamental question in this article, before every examination, the idea of global constitutionalism that forms the principal underpinning of this article must be clarified. The author presents a brief explanation of this idea insofar as it is related to the question.
First, global constitutionalism is a ‘descriptive/cognitive’ and ‘normative/prescriptive’ concept that has been developed against the backdrop of globalization after the end of the Cold War.Footnote 4 The former aspect is a positivist analysis of global legal phenomena. Global constitutionalism keeps in mind not only international law but also regional laws such as EU law, as well as national laws, and mainly addresses two types of legal phenomena: (1) the constitutionalization of international law; and (2) the internationalization of national constitutions.Footnote 5 These two phenomena reinforce and complement each other, and as a result the development of international law and organizations from the 1990s onwards can be seen as a process of constitutionalization. This acknowledgement has given an impetus to the development of the idea of constitutionalism beyond the state. Then global constitutionalism contends that global society is already governed by constitutional principles including human rights, the rule of law and democracy (the ‘constitutional trinity’).Footnote 6 Therefore, it seems that if these phenomena undergo changes, global constitutionalism will also be forced to undergo changes. However, the descriptive aspect is not exhaustive. Global constitutionalism has the latter aspect that is normative.Footnote 7 As this ‘-ism’ indicates, the normative aspect provides arguments suggesting a particular direction for developing international law and organizations. Namely, these principles should further guide what international and domestic laws ought to be. Since the former upholds the foundation for the latter and the latter promotes the former, these two aspects are intertwined and inseparable.
Second, global constitutionalism is an inherently individual-centred idea and is linked to and supported by similarly individual-centred elements in international law. The ultimate aim of national constitutionalism is to protect the rights of individuals, which cover both natural persons and legal persons. Since global constitutionalism is a type of constitutionalism that borrows the idea from national constitutionalism, both types of constitutionalism share the same aim. With this aim, global constitutionalism intends to guarantee the observance by public authorities – whether national, regional or international – of constitutional principles.Footnote 8 As its frequent references to the Kadi I judgment by the European Court of Justice (ECJ) indicate,Footnote 9 global constitutionalism addresses the protection of individuals on any scene. Especially over the last three decades, international law has been developed in the liberal direction of ‘humanization’ or ‘individualization,’Footnote 10 although the transformation from the state-centred system to the individual-centred system has not yet been completed.Footnote 11 This change makes sense because, insofar as a state consists of its people, regardless of its political system, the ultimate authority of international law must be grounded in that people.Footnote 12 This individual-centredness provides international law with legitimacy that is not based on state consent. For example, in the 2010s, new concepts such as ‘human security’ and ‘sustainable development goals’ emerged.Footnote 13 They pay direct attention to the situation of individuals, independently of states. The advent of these concepts proves that the process of humanization has been reinforced.Footnote 14 It is evident that such development of international law has made the advent of global constitutionalism possible.
Third, global constitutionalism is based on pluralism. While constitutional principles espoused by global constitutionalism play a leading role, there is no hierarchy among varied legal orders and any single document cannot be regarded as the world constitution.Footnote 15 Instead, the constitutional trinity fulfils typical constitutional functions and underlies the comprehensive framework covering all national, regional and international law.Footnote 16 The reliance on pluralism makes global constitutionalism more affordable for diversity in the world. The pluralistic claim of global constitutionalism is inspired by the legal experiences in the European Union. Unresolved constitutional tension between EU law and national constitutions of the EU member states has been explained and justified by the idea of constitutional pluralism.Footnote 17 This idea anticipates that constitutional principles underlying EU law as well as national laws will guide both the ECJ and national constitutional courts to find mutually acceptable solutions for constitutional conflicts without a higher authority to resolve such conflicts.Footnote 18 The well-known Kadi I judgment expressed a pluralistic and non-hierarchical view on the relationship between UN law and EU law, and in this judgment the ECJ accepted for itself the equivalent role in the European Union’s external relationships as that of national constitutional courts as being a guardian of human rights.Footnote 19 Taking this judgment as a turning point, several constitutional pluralists developed their idea into global constitutionalism. A non-pluralistic or hierarchical type of global constitutionalism tends to pose a risk of exacerbating conflicts that arise from incommensurable constitutional ideas by unilaterally imposing hegemonic ideas on the minority.Footnote 20 In order to avoid this risk, constitutionalism in the globe must be constitutional pluralism that is based upon mutual respect among various countries or regions. This is because even the European Union, which is much more centralized than the whole of international society, cannot but adopt pluralism as well.Footnote 21
Fourth, while being based on pluralism, global constitutionalism is intrinsically a value-oriented idea that is grounded upon sharing common constitutional principles in the world.Footnote 22 From the viewpoint of radical pluralism, Nico Krisch criticizes global constitutionalism, arguing that the normative elements of constitutionalism cannot be reconciled with the diverse reality of international society.Footnote 23 Diversity in the interpretation of constitutional principles is real. It is true that if there were no common values in the world, global constitutionalism would be untenable. However, his emphasis on diversity is too extreme. This is because most countries currently share certain commitments to constitutional principles. The conclusion of international instruments including human rights treaties and the adoption of UN Security Council resolutions for democratic state-building demonstrates the existence of these commitments.Footnote 24 Krisch under-estimates the reality that constitutional principles have already become international public assets constituting a foundation for the globalized world. In addition, he disregards three risks in radical pluralism. Radical pluralism could cause anarchy and disorder in international society. In the case of a society without common values, in fact, powerful states can have dominant effects on other states, and normative values of powerless minorities may be threatened by hegemonic values.Footnote 25 Moreover, as a consequence of there being tolerance for different opinions, radical pluralism cannot escape from the risk of unconditionally supporting oppressive governments. In order to escape from this risk, pluralism may need to be saved from sliding into mere relativism by receiving the assistance of constitutional principles.Footnote 26 Furthermore, ironically, one-sided stress on diversity may fall into the pitfall of Eurocentrism. As long as international actors assume that constitutional principles are shared, they are encouraged to take part in mutual dialogues to clarify what these principles exactly mean. This is because, with a view to solving global problems through international cooperation, all actors have an interest in building up the common understanding of these principles.Footnote 27 By contrast, actors under radical pluralism tend to be less motivated in entertaining dialogues with actors having different ideas because mutual respect between them may well mean that they do not need to reconsider their own understanding. In other words, Krisch’s idea cannot avoid justifying the status quo, regardless of its neutral appearance.Footnote 28 This is unfavourable for the development of international cooperation.
Fifth and finally, it remains a pressing issue what exactly these constitutional principles are or how they should be understood from a legal point of view. A part of them may constitute ‘general principles of international law’ deriving from national and international laws or ‘jus cogens’,Footnote 29 but all of them do not necessarily fall under either one of them. Most of the principles are still abstract, and thus cannot always produce a definite conclusion based on their application to contentious cases. Therefore, it seems that from the standpoint of legal positivism, they cannot be recognized as law. However, in order to better understand contemporary public law practice including the interplay between international and national law, the conception of law should be more broadly defined. In the context of claiming a cosmopolitan paradigm, Mattias Kumm presents three basic assumptions of law: (1) as a normative structure; (2) as a matter of conventions; and (3) as an engagement with moral arguments.Footnote 30 As he mentions, this broad conception of law is accepted by other legal philosophers.Footnote 31 Their ideas give us inspiration to recognize the legal significance of constitutional principles in a global context. Constitutional principles provide concrete legal rules with a solid foundation and play a role in identifying the confines of alternatives for legal rules. Thus, decisions based on constitutional principles can be distinguished from mere political or moral judgements. Although the issue of what exactly is included under law remains open, the constitutional trinity certainly falls under the object of legal analysis. The theme of this article is to clarify how this global constitutionalism is affected by the war in Ukraine.
III. The war in Ukraine and international law
Impact on international law by Russia’s violations of international law
The first question is how the war in Ukraine has affected, and will continue to affect the existing framework of international law. The author argues that, irrespective of Russia’s gross violations of international law, the current framework has not been fundamentally damaged and will continue to be maintained. This is because Russia still remains within the purview of the existing international law and is not necessarily attempting to withdraw from its current framework.
As indicated by the fact that the constitutionalization of international law remains one of its two pillars, the current international law is a fundamental element of global constitutionalism. Thus, global constitutionalism is bound to be undermined as well when the international legal order fades or falls apart. As already mentioned, international law has been marked by a shift in the direction of an individual-centred focus since the end of the Cold War.Footnote 32 The ongoing war in Ukraine is imperiling not only such a liberal aspect of international law, but also its fundamental structures. This is because Russia’s war against Ukraine has challenged an essential norm of international law – that is, the prohibition of the use of force against territorial integrity cited in Article 2(4) of the UN Charter and customary international law. As a result, many fear that Russia’s aggression will grow into a real threat to the persistence of the ‘rule-based international legal order’.Footnote 33 In November 1938, just after the Munich accords, Hersch Lauterpacht argued that the League of Nations had failed.Footnote 34 Along with Lauterpacht, the fear of many legal scholars and political observers is perfectly understandable. A legal order always accompanies minor violations; however, in order to be viable, any legal order has to have sufficient capacity to regulate the behaviour of those it addresses. This truism applies to international law as well. The accumulation of major violations of international law may ‘amount to a change in the law’.Footnote 35 This is the reason why, often citing the words of Louis Henkin, ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’,Footnote 36 most international lawyers underline that, notwithstanding the absence of central enforcement, international law is well observed through other incentives and enforcement mechanisms (e.g. reciprocity and peer pressure).Footnote 37 Compliance with the basic norms is important for the existence of international law, so will the existing international law be gravely damaged by the Russo-Ukraine war?
Despite counter-claims by Russia, it is indisputable that Russia’s aggression, referred to as a ‘special military operation’ by the Russian government, constitutes a gross violation of international law. To attempt to validate this violation, the Russian government has cited several justifications, namely individual and collective self-defence under the UN Charter and the prevention of genocide by Ukraine.Footnote 38 However, Russia’s emphasis on self-existence and self-defence notably resembles Japan’s justifications for starting a war against the United States and Britain in December 1941.Footnote 39 In reply to Russia’s claims, many international lawyers immediately publicized their views, rejecting the possibility of any justification.Footnote 40 According to the vast majority of them, as long as no Ukrainian military attack exists, Russia cannot invoke the rationale of self-defence against Ukraine, while no hard evidence has been presented to support the claims of genocide by Ukraine. Moreover, Russia’s military actions violate other principles of international law.Footnote 41 The UN General Assembly Resolution in March 2022, supported by the overwhelming majority of the UN member states, confirmed these views.Footnote 42 Although 35 states abstained from voting, this does not necessarily mean that they supported Russia’s position.Footnote 43 Last but not least, Russia’s military actions brutally violated international humanitarian law (the jus in bello). Its indiscriminate attacks on Ukrainian civilians and nuclear power plants were also quickly recognized as unlawful by the UN Resolutions.Footnote 44 On the ground of Russia’s aggression, therefore, the Russian membership of the Council of Europe was revoked by the Committee of Ministers in March 2022,Footnote 45 and its membership in the UN Human Rights Council was also suspended by more than a two-thirds majority of the UN General Assembly.Footnote 46
It follows from the above that international society has reached a firm consensus on the lack of plausible legal grounds for Russia’s military actions in Ukraine. Several scholars have expressed their concern about the application of double standards in international law by the Western states because the same condemnation was not forthcoming in relation to other notable wars in Afghanistan, Iraq, Syria and elsewhere.Footnote 47 Based on this critical view, they further argue that the undermined international order should not be restored in the form in which it existed before Russia’s aggression. They see this war as a valuable opportunity to remedy the deficiencies present in international law.Footnote 48 However, they also take for granted the illegality of Russia’s aggression.
Ian Hurd asserts from the perspective of the inseparability of law and politics that the interpretation of a treaty must change in favor of powerful actors following a significant change in circumstances,Footnote 49 but what has happened in the aftermath of Russia’s aggression demonstrates that a case exists in which law can work independently of politics.Footnote 50 In conclusion, Russia’s violations of international legal norms have been clearly established. Unfortunately, since the impact of Russia’s aggression upon international law is a distinct and separate issue from its obvious illegality, the conclusion drawn from the legal analysis does not mark the end of the story.
Several scholars assert that the war in Ukraine may prove positive for the development of international law.Footnote 51 They believe that, despite Russia’s gross violations, international law has not been weakened but rather strengthened. This is because the fact that more than two-thirds of the UN member states voted in favor of adopting the UN Resolutions testifies to the durability of international law.Footnote 52 If Russia is finally forced to bear and fulfil its legal responsibility arising from those violations, the effectiveness of the international legal order will be restored.Footnote 53 This rather optimistic view may ultimately become a reality, depending on the final result of this war. It is true that an illegal act does not necessarily damage a legal order. This is because, as Hans Kelsen explained, a violation of the law is not ‘a negation of the law’ but a condition of the law.Footnote 54 Hans Lindahl also recognizes illegal behavior as being positive for legal orders.Footnote 55 According to Lindahl, although the scope of the legal order is delimited by ‘boundaries’, illegality ‘not only makes a legal order and its boundaries visible’, but also affirms its binding character.Footnote 56 Illegality thus has the potential to strengthen a violated legal order. It follows from his view that many international law scholars are working to preserve international law by exposing the arguments of the Russian government as bogus. However, there remains one more question to be examined: whether or not Russia claims an alternative to the current international law by violating it. If this is the case, Russia’s violations may not be understood as simply illegal.
In order to find an answer to this question, Lindahl’s work is once again suggestive. He distinguishes three scenarios – ‘legality’, ‘illegality and ‘a-legality’ – to clarify the relationship between an existing legal order and a new legal order.Footnote 57 His notion of a-legality is unique. It focuses on certain behavior that ‘calls into question the distinction between legality and illegality as drawn by a legal order’.Footnote 58 In contrast to illegality, a-legality challenges the existence of a legal order itself while usually appearing as illegal behavior.Footnote 59 A-legal behaviour resists being assimilated under either legality or illegality, and instead ‘intimates another legal order’.Footnote 60 This means that a-legal behavior in fact aims to replace the existing order with a new order. Therefore, it must be examined whether Russia’s aggression falls under the category of illegality or a-legality. In other words, the issue is whether Russia and its supporting countries intend to create an alternative to the existing international law or to remain within that law. Therefore, Russia’s claims on international law have to be considered carefully.
Russian approaches to international law
At first, Russia’s assertions about its military operation in Ukraine did not seem to challenge the existent order of international law because they tried to justify their infringement of the prohibition on the use of force by invoking exceptions to this law (e.g. self-defence). As the Nicaragua judgment by the International Court of Justice (ICJ) reveals, reliance on exceptions has the effect of strengthening the rule.Footnote 61 If Russia did not recognize the prohibition as an observable rule, it would not need to justify its military actions. However, the invocation of exceptions does not seem to prove decisive in determining illegality or a-legality. Since it is obvious that Russia cannot invoke such exceptions, the Russian government may not believe in the validity of its justifications. If the Russian government truly believes in the legitimacy of its actions, regardless of the applicable law, this is where the potential for a-legality can be found.
International law is supposed to be universally applicable. On the other hand, each international lawyer makes up their own understanding of international law in a particular local context. The decentralized structure of international law, marked by the absence of a central judicial authority and a central enforcement authority, makes it possible for its interpretation and application to vary from country to country. Accordingly, it is inevitable that approaches to international law around the world are not identical.Footnote 62 The Russian approaches to international law involve two outstanding features that suggest a potential of a-legality, namely an alternative to the existing international law.
First, the Russian approaches are marked by an obvious pattern, which is the almost absolute priority given to Russia’s own state sovereignty. Since the EU law experiences have proven that the classical concept of sovereignty can be overcome,Footnote 63 the notion of sovereignty has largely been substituted with that of jurisdiction, and become less important in the literature on international law than in the past.Footnote 64 By contrast, Russia emphasizes sovereign equality, territorial integrity and non-interference in internal affairs on the basis of the Westphalian concept of absolute and indivisible sovereignty.Footnote 65 Russia’s adherence to sovereignty is a tradition that was inherited during the age of the Soviet Union. This is firmly anchored by the statism that prevails under the Putin government.Footnote 66 Thereby, Russia’s idea of sovereignty differs considerably from that of Western liberal states. As far as adherence to sovereignty is concerned, however, Russia’s statism is not so special or rather even usual in the world. Attaching great importance to sovereignty is a prevalent theme in developing countries.Footnote 67 Thus, the emphasis on sovereignty cannot be considered a-legal. However, it must be noted that Russia’s idea of sovereignty goes beyond the traditional view of sovereignty. If its idea remained within the confines of the classical concept, it would have to respect the sovereignty of Ukraine in reciprocity. As an extension of the state sovereignty it advocates, Russia is generally cautious about separatism based upon ‘claims to self-determination of peoples’.Footnote 68 This being so, it seems logically strange that the Russian government did not hesitate to recognize two small republics within the territory of Ukraine just prior to commencing its aggression.Footnote 69 Insofar as it suppresses separatism, Russia by right should have refused to recognize them. Russia’s immediate recognition can be explained by its distinction between the sovereignty of the former Soviet Union member states and that of other states.Footnote 70 This distinction results from the Russia’s imperialistic idea of a regional-historical ‘greater space’, which is the sphere of influence proposed by Putin’s address in February 2022.Footnote 71 The implications of such a regional space have to extend to the whole of international law because as long as relations between an area under the influence of Russia and the rest of the world are to be governed by international law, international law must be reshaped to make such a regional law possible. As a consequence, Russia’s sovereignty claim must include an element inclined towards a-legality.
Second, as the reverse of absolute sovereignty, the Russian approaches hardly consider individuals and are reluctant to admit them as subjects of international law.Footnote 72 Against the backdrop of the development of international human rights in the aftermath of World War II, the legal status of individuals has been recognized widely in international law, and the growth of international law targeting individual rights and obligations has led to the deep involvement of individuals in international law.Footnote 73 As mentioned, the transformation of international law into the individual-centred law is well underway. The protection of human rights is in the interest of the international community and cannot be left exclusively to states to guarantee.Footnote 74 As the condemnation of South Africa’s apartheid system indicates, international law no longer gives absolute priority to the principle of non-interference. Nevertheless, the Russian approaches do not attach importance to individuals. Russia’s emphasis on non-interference in domestic affairs is evident in the field of human rights and Russia normatively claims the absolute primacy of the state over individuals.Footnote 75 This state-centrism was well demonstrated by the tension between Russia and the European Court of Human Rights (ECtHR) in the past.Footnote 76 Other members of the European Convention on Human Rights (ECHR) initially expected that Russia would gradually catch up with European standards and would be socialized as a member of the ECHR system in due course.Footnote 77 As the result of a series of the ECtHR’s judgments concerning the post-Soviet territories, however, the relationship between Russia and the ECtHR continued to worsen in the 2000s and the early 2010s.Footnote 78 After all, the other members’ expectations were ended by the expulsion of Russia from the Council of Europe.Footnote 79 Thus, the Russian approaches to individuals also have the potential to necessitate a new legal order.
Russia is not the only country that resists the current structuring of international law. Its approaches share many features with other authoritarian states.Footnote 80 For example, in the particular respect of human rights, sovereign equality and non-intervention, the Chinese approaches share similar patterns with those of Russia.Footnote 81 This commonality has been demonstrated clearly by several joint statements issued by Russia and China.Footnote 82 These statements have all emphasized state sovereignty and non-interference, and disparaged the status of individuals and human rights under international law. An extreme example is their 2016 joint declaration, which made no mention of individuals or human rights.Footnote 83 The approaches of both states suggest that they are attempting to secure their own free spaces, and to render them immune from intervention on the grounds of human rights, although it is not clear whether the Chinese approaches are exactly the same as Russia’s.Footnote 84 However, both states share a common criticism that Western standards are automatically imposed on them, and both demand in common that they should have the freedom to interpret international human rights in their own local context.Footnote 85 This commonality can also be found in the declarations adopted by the Shanghai Cooperation Organization (SCO), of which both states are leading members.Footnote 86 In summary, the Russian approaches are not completely isolated, but have several allies, one of which is very powerful.
Russian approaches and an alternative legal order
It follows from the above that the Russian approaches contain a-legal elements in terms of both sovereignty and individuals. The protection of individuals is a normative claim that underpins current international law. In order to be consistent with this claim, international law has maintained a delicate and flexible balance between national sovereignty and the rights of individuals under the interplay of the individual-centred and the state-centred understanding of international law.Footnote 87 The achievement of this balance is always contentious, and inconsistent claims do not always indicate the need for a new legal order. It is true that the Russian approaches challenge the present balance that has taken due account of individuals. However, whether or not they are attempting to replace the current system of international law with a new system based on its state-centered understanding needs to be further examined. To begin from the conclusion, for the following reasons the Russian approaches still remain within the range of the current international law including individual-centred elements which constitute the central pillar of global constitutionalism.
First, unlike national laws, international law cannot be determined by one country or a small group of countries alone. Even if one country is a hegemon, it cannot unilaterally change international law. Even if Russia succeeds in creating, together with its allies, a regional system of international law that stands outside of the existing law, as proposed by the ‘Great East Asian International Law’ to be described later, such a regional system of law will not inherently govern relations between the Russian bloc and the rest of the world. This interstate or interregional space will have to become an area where different international laws compete with each other to occupy a dominant position in international relations. This is an issue of the extension of the coverage of a specific legal order. International law is constituted to be universally applied, but this universal application is not automatically acquired. According to Lindahl, a legal order is a form of joint action by ‘legal collectives’.Footnote 88 These collectives, with their own identity, do not necessarily precede the foundation of a legal order. Instead, they are formulated by establishing a legal order and then retrospectively taken up.Footnote 89 For the new Russian-style international law to become universally applicable, a majority of states must at least participate in this system. Which legal system will prevail is not a matter of logic, but of reality. As the adoption of the UN General Assembly Resolutions displays, not many states are likely to join the Russian system. Furthermore, it is unimaginable that Russia’s neighboring states will agree to the limitation of their own sovereignty. Lastly, there is no clear sign of scepticism of the existent international law among other states that abstained from voting in terms of the individual-centred elements.Footnote 90
Second, unlike national laws, international law has a decentralized nature characterized by the absence of central administrative and judicial enforcement authorities. As a result, international law can allow ‘some degree of divergence without descending into crisis’ and then the effectiveness of international law is considered to be lower than that of national laws.Footnote 91 Due to diversity in enforcement regimes or sanctions, every part of international law does not have the same level of effectiveness. After pointing out that each treaty is freely designed in terms of its type and level of protection, Joost Pauwelyn mentions the flexibility of international law, which grants variable protection for international law as the case may be.Footnote 92 In addition to the flexibility, international law has a complex nature. Richard Collins explains the paradox inherent in the rule of law in international law. According to him, the rule of law under international law includes two different and contradictory ‘idealizations’.Footnote 93 One is non-instrumental and premised on an autonomous system of common rules while the other is more instrumental and based on an unfulfilled promise of a future order to come. These two idealizations compete. This is because if the latter seeks to secure more effectiveness of international law, it will be resisted by the former with less effectiveness. Nevertheless, both are equally important for international law as a decentralized legal order, and the interplay between them is an inevitable element of international law.Footnote 94 This means that international law has to contain conflicting elements within itself. These malleable characteristics are not a fatal flaw for international law as a legal order, but rather its strong point. This is demonstrated by the evolution of international law until today. In fact, the decentralized and flexible structure of international law has contributed much to the robustness of this system in the following two respects. In the first place, because of the absence of a central judicial body with compulsory jurisdiction, international law has to be interpreted and applied largely by national courts. There is no guarantee that their interpretations will be identical. Even in the case of an international court with compulsory jurisdiction (e.g. the ECJ), due to the lack of compelling power, national courts maintain certain room to develop their own interpretation and international courts have to accept such flexibility.Footnote 95 Judicial dialogue among national and international courts is the only means available for coordinating different interpretations without institutional links between them (e.g. preliminary ruling procedures).Footnote 96 Thus, as stated before, not all violations impair the integrity and coherence of international lawFootnote 97 and only grave and continuous violations may call the legitimacy of international law into question. In the second place, international law has to be essentially inclusive so it can be applicable to as many actors as possible, many of whom have different ideas. In other words, the nature of inclusivity is inherent in the role of international law. To discipline interstate relationships, international law must apply to as many states as possible. For this purpose, many elements of international law are still defined in the abstract because this abstractness enables many states with cultural, historical, legal, and religious diversity to participate in the same system.Footnote 98 In addition, the flexibility of international law at the level of obligation and protection is important for the expansion of its coverage. Within each treaty, the level of obligation and protection is inversely proportional to the level of participation. Higher obligation and protection tend to ‘exacerbate the problem of attracting participation’ in a treaty or international organization.Footnote 99 Therefore, treaty negotiators have the task of striking an adequate balance between these two elements for each case. All in all, normative claims that may be incompatible with the existing international law can also be reconciled with the current framework of international law.Footnote 100
The third and most compelling reason is the lack of a new normative claim by Russia. Kelsen suggested that a logical contradiction exists not in the violation of the law but in normative differences between legal orders.Footnote 101 Since any legal order appears as a normative order,Footnote 102 a new legal order will have to present new normative claims that are different from those of the existing order. In other words, a country that seeks to overthrow the current law will have to find an alternative ‘word or thought’ that unhinges the current one, come up with reasonable arguments to justify it and display it as a substitute,Footnote 103 whereas Russia has not done this yet and cannot present such normative claims. In the first place, as regards sovereignty, the Russian idea resembles the Japanese idea of the ‘Great East Asian International Law’ formulated during World War II. In order to justify Japan’s military occupation, Japanese scholars developed a new type of international law that applied to other Asian states.Footnote 104 According to this idea, within the occupied territories (called the ‘Great East Asia Co-prosperity Area’), the sovereignty of Asian states other than Japan was limited by the leadership of Japan in the name of substantive equality. By claiming ‘Russian-style regional international law’ for its neighboring area, Russia essentially intends to establish a special regional law like that enacted by wartime Japan.Footnote 105 However, the collapse of the ‘Great East Asia Co-prosperity Area’ proves that the Russian idea cannot be seen as a feasible alternative claim.
In the second place, as regards individuals, while raising an objection to the individual-centred elements in international law, Russia has not presented its own normative claim that cannot coexist with the individual-centrality of international law without contradiction. By contrast, Russia has usually conducted itself within the framework of constitutional principles, as far as its official statements are concerned. In brief, it does not seem that Russia desires to replace the existing system of international law with another legal order. This conclusion is demonstrated by the Russian practice in the United Nations, particularly its human rights practices.
In many documents, Russia and those states friendly with it have expressed their full commitment to the UN Charter and referred to human rights as well.Footnote 106 Insofar as human rights constitute the foundation of the UN system, Russia cannot totally ignore them.Footnote 107 As far as traditional value agendas such as culture, religion and family are concerned, Russia aimed to establish its traditional understanding as universal and expanded an energetic campaign in the United Nations.Footnote 108 From the Russian attitude to traditional values, the author presumes that Russian collective views on human rights differ from Western individualistic views. Nevertheless, apart from traditional values, Russia’s commitment to international human rights law has become obvious in the recent Universal Periodic Review (UPR) in the Human Rights Council. Russia’s national report submitted in 2018 appears to be strongly affirmative of human rights including civil and political rights.Footnote 109 China’s national report presents an original Chinese interpretation of human rights.Footnote 110 In contrast with China, Russia’s report did not raise any objection to the established understanding of human rights at all. As far as the national report is concerned, it is difficult to find a difference between Russia and Western liberal states. In the process of the UPR, the conditions of human rights in Russia were criticized in many respects by the UN treaty bodies and various stakeholders including NGOs.Footnote 111 Since Russia did not contest human rights itself, its counter-arguments were limited to ‘no evidence’, ‘no incidents’, ‘groundless’, ‘implementation took time’, ‘not factually correct’ and so on.Footnote 112 Russia has never challenged human rights as a normative claim. Many serious violations of human rights actually exist in Russia and its commitment to human rights is doubtful.Footnote 113 However, the vital point regarding the aforesaid distinction between illegality and a-legality is not the discrepancy between the official statements and the actual situations, but the fact that all of Russia’s discourses remain within the framework of the existing human rights. Russia is fully involved in the discussion at the United Nations and asserts its claim in human rights language. China’s arguments are by and large similar to those of Russia.Footnote 114 What they accept is the protection of human rights according to local conditions,Footnote 115 and what they reject is the political instrumentalization of human rights, especially unilateral sanctions under the pretext of human rights.Footnote 116 In other words, their demands are twofold. The first is that universal standards of human rights largely reflecting Western standards should not be applied unconditionally to them.Footnote 117 The second is that human rights advocacy should not be used as a political instrument to justify intervention in domestic affairs.Footnote 118 These two claims are legitimate and also argued by many scholars.Footnote 119 In sum, Russia and China do not oppose the existent international human rights, but rather raise objections to their arbitrary application. The conflict between the protection of human rights and the principle of non-interference has existed since the early days of the United Nations. This is a natural consequence of the inclusion into the UN Charter of several provisions (Articles 1(3), 2(7), 55, 56) justifying both claims. The combination of these conflicting provisions has made the relationship between human rights and non-interference a perennial issue. Today’s confrontation between Russia and liberal states should be seen not as an issue between international law and anything other than that, but as an internal struggle within international law.
In conclusion, apart from Russia’s call for privilege regarding its neighbouring states, the Russian approaches stay within the current framework of international law that includes the individual-centred elements as its indispensable part. Unless Russia proposes an alternative to those individual-centred elements, Russia will have no option but to operate inside of the existing international law. In addition, if Russia intends to exclude those elements from its interpretation of international law, it will have to fall into a state of self-contradiction. This is why, even after the commencement of Russia’s aggression against Ukraine, Russia has to continuously discuss human rights in the same way as before. In 2001, Chinese professor Li Zhaojie declared that ‘there is no Chinese international law and that there can be only a Chinese theory and practice of international law’.Footnote 120 His statement also applies to the Russian approaches.Footnote 121
IV. The polarization of international law and global constitutionalism
Polarization of international law
However, the preservation of the existing framework of international law does not automatically mean that global constitutionalism has not been affected by Russia’s practice, particularly due to its aggression against Ukraine. This is because the polarization in international society caused by the Russo-Ukraine war will also promote the polarization of international law. Pluralism focuses on the relationship among legal orders, whereas the polarization of international law suggests that the world is becoming divided into a few or several groups of states with different understandings of international law. As a result, this polarization is liable to undermine the sharing of constitutional principles in international society, which is the foundation of global constitutionalism. Therefore, the second question is how the polarization of international law caused by this war will affect the global constitutionalism arguments. The author is aware of an undeniable risk deriving from the deepening of the polarization. Nevertheless, I finally argue that global constitutionalism will continue to work as a reference point for making or evaluating international law unless individuals continue to be international law subjects in many aspects.
In order to examine the impact of the polarization on global constitutionalism, first, the current polarization must be analyzed. The war in Ukraine has visualized a deep rupture on international law inside international society. Due to the absolute precedence of state sovereignty,Footnote 122 the Russian approaches contrast with the mainstream progression of international law that favours the legal subjectivity of individuals. The insistence of Russia and China on sovereignty had already become a significant point of contention in the early 2010s,Footnote 123 but this contrast has become vastly more significant in the aftermath of the ongoing war in Ukraine. The polarization is nothing new in international law. Apart from Russia, the differences in the understanding of international law between developed and developing countries have been obvious since the 1960s. These differences have led to the Third World approach to international law.Footnote 124 However, the ongoing polarization of international law can be distinguished from that which has taken place in the past and has its own original substance. In the first place, the intentions of Russia and China must be observed in order to understand this polarization. It is noteworthy that both states have formally expressed their intention to shape ‘a polycentric world order’ to ensure ‘multipolarity’.Footnote 125 Their insistence on multipolarity is aimed primarily at preserving space for their state-centred international law as an exception to the prevailing individual-centred tendency. Thus, the current polarization is a consequence not only of the decentralized structure of international law but also of the two countries’ combined policy objectives. In the second place, some argue that the ongoing war is the inception of a new Cold War,Footnote 126 but the cause of the ongoing polarization is different from that of the original Cold War. Under the bipolar world structure formed by the Cold War, approaches to international law were divided into the Soviet socialist approaches and the Western liberal-capitalist approaches.Footnote 127 There is an undeniable resemblance between the Cold War era and the present time, because the post-Soviet Russian approaches have taken over the legacy of the Soviet Russian approachesFootnote 128, and the emergence of an inter-bloc rivalry between Russian-friendly states and liberal states led by the G-7 bears similarities to the East–West confrontation that served as the hallmark of the original Cold War.Footnote 129 However, the Cold War was caused by a non-reconciliatory ideological struggle, whereas today’s conflict is no longer grounded in such an ideological struggle.Footnote 130 In addition, insofar as all states join the global market economy, the world economy cannot be divided as it was during the Cold War.Footnote 131 Rather than the decline of trade, the transnational trade and investment relationship will in principle be maintained in spite of the polarization. In the third place, there were lively debates in the early 2000s about the fragmentation of international law.Footnote 132 Both the fragmentation and the polarization share the same vector for international law regarding encroachment on their unity, but their focal points are not the same. Against the background of the proliferation of regional or sector-specific international organizations, the fragmentation focuses on the question of whether or not these organizations can be considered self-contained regimes.Footnote 133 Conversely, the current polarization focuses on the confrontation among different groups of states and creates geographical division in international society.
By and large, the polarization of international law is now proceeding in a more complex and fluid manner than before. Within the current polarization, both centrifugal and centripetal directions coexist and struggle with each other. It remains uncertain which direction will finally prevail. Even before the war in Ukraine, the world had entered a new era of integration with disintegration.Footnote 134 The ongoing war will add an additional element to the pre-existing path of disintegration and foster further polarization by increasing the separation in international law. A further advancement of this polarization may undermine elements of international law that support global constitutionalism. Accordingly, the next question must be how this polarization will affect them.
Impact of polarization on global constitutionalism
As the previous section concluded, insofar as Russia and other countries do not propose a normative alternative to constitutional principles, the framework of existing international law will be maintained, retaining its individual-centred elements, which are a necessary requirement (sine qua non) for global constitutionalism. However, the polarization of international law has the potential to produce a negative impact on global constitutionalism in the following respects.
First, the polarization will damage the global perspective itself, which is an indispensable presupposition of all global arguments including global constitutionalism. A global perspective represents a viewpoint critical of methodological nationalism and establishes a global approach to any issue. In other words, it is a perspective that requires scholars to recognize, understand and think about any phenomenon globally, rather than nationally and internationally. This perspective derives from the concept of a ‘global imaginary’, which is manifested through the process of globalization and based on people’s ‘consciousness of the world as a single whole’.Footnote 135 In accordance with the process of globalization, thinking globally has been taken for granted in the last three decades.Footnote 136 Thus, the global perspective has been widely shared by many scholars across different disciplines of social sciences such as law, politics, economics and international relations. In their research, they do not adhere to existing borders (1) among national, regional and international entities and (2) between public and private spheres.Footnote 137 Instead, they endeavour to overcome these divisions by thinking globally. Global constitutionalism is one such approach, and global constitutionalists always take a comprehensive approach when analysing certain legal phenomena, keeping in mind both international and national laws. Although the same interpretation of international law is not indispensable to global constitutionalism with a pluralistic idea, the worldwide harmonization of interpretation is favourable to a global way of thinking. By contrast, the polarization of international law is contradictory to such a global perspective because the polarization that allows a group of states to develop their own interpretation makes the preservation of the global perspective more difficult and undermines the goal of achieving that perspective. The war in Ukraine in particular connotes a contrary direction to that perspective. This is because, to the extent that a state fights militarily with an enemy state, every interstate war becomes an opportunity to foreground the existence of states and activate the nationalistic sentiments of the belligerents. Insofar as states are the main actors in the war, almost all issues are discussed in the name of states. Therefore, any interstate war necessarily has the effect of reinforcing the presence of states in global society and impeding any global perspective.
Second, the polarization may well negatively affect the balance between states and individuals inside international law. Global constitutionalism is an idea based on the recognition that the status of states is changing or diminishing as a result of the erosion of sovereignty.Footnote 138 However, the ongoing polarization has been initiated by the emphasis on sovereignty and goes hand in hand with the resurrection of nation-states.Footnote 139 The reappearance of the state became evident over the course of the COVID-19 pandemic. The pandemic made the role of states as protectors of people more important and visible than before, but it also made people aware of the necessity of international cooperation as well as the limitations of the state. By contrast, the presence of states has been overwhelmingly strengthened by the outbreak of the war in Ukraine. The conflicting elements in international law, namely the state-centred elements such as sovereignty and the individual-centred elements such as human rights, are always balanced at a certain point. The one-sided reinforcement of the state by the ongoing polarization may well upset the current equilibrium in international law, go against the transition towards the individual-centred international law and finally result in damage to the substance of constitutional principles.
Third, the polarization will also endanger the value-sharing inherent in global constitutionalism. Global constitutionalism assumes that constitutional principles are commonly shared by the whole of international society.Footnote 140 As already discussed, by its very nature the polarization implies the division of the world into several spaces with different acceptances of constitutional principles. Due to their abstractness or vagueness, constitutional principles give a certain amount of discretion to each state for the sake of forming their own interpretations. Accordingly, the problem exists mainly not at the level of constitutional principles, but in the more specific rules embodying them.Footnote 141 As their joint statement shows,Footnote 142 the inclusiveness of constitutional principles has enabled Russia and China to accept them. However, the polarization will exacerbate disparity among states and make consensus-building among them more difficult than before. Hidden disagreements in international society have already surfaced and will continue to gradually come to light under the polarization.
The above examination reveals that the polarization of international law is contradictory to the fundamental assumptions of global constitutionalism, rather than being overtly undesirable. The constitutional trinity is commonly shared, by and large, by Russia and China.Footnote 143 However, their domestic application is manifestly problematic. For example, as far as Russia and China are concerned, all the UN treaty bodies, the UN member states and many NGOs pointed out serious human rights violations in the two countries and announced deep concern over their human rights situations.Footnote 144 Many of their practices do not seem to meet the minimum standards of human rights protection in any sense. Although they try to justify their practices,Footnote 145 it is almost unthinkable that their explanations can be accepted by the UN treaty bodies and most other countries. In such a situation, the progression of polarization is favourable for Russia, China and other like-minded states to further develop their own problematic interpretations and practices while seemingly retaining their commitment to constitutional principles. If a part of the world moves forward in this direction, what will happen to constitutional principles that should be universal? Constitutional principles will not vanish as a global framework for discussion in international society. However, there is an undeniable risk that the liberal substance of these principles that underpin global constitutionalism will lose its meaning and may well finally become almost devoid of meaning. Even if these principles do not become entirely empty, they may be forced to transform into something else that is far from the original thoughts they represented, with only the names remaining intact.Footnote 146
In order to approach this problem, a distinction between the character of a one-time-only infringement of constitutional principles and a continuous infringement is crucial. As mentioned previously, violations of the law are inherent in any legal order and do not necessarily harm the integrity of the law. Thus, many argue that an isolated unlawful act does not necessarily influence the law.Footnote 147 However, a legal order cannot allow the accumulation of gross violations without a limit of patience. Each law has limits to ‘the bearability of structurally created, continuous disappointments’, although it is difficult to accurately identify such boundaries.Footnote 148 If a series of violations goes beyond this limit, the fundamentals of a particular law cannot avoid being undermined or lost because the repetition of such violations casts doubt upon the normative value of the disregarded law. That being so, if the serious violations of constitutional principles continue in international society, it will be difficult for the status quo that defines the substance of constitutional principles to be preserved. In other words, in the eventuality of such a case, even if liberal states continue to commit themselves to the current constitutional principles, these principles may lose their position as universal principles. This risk of modifications cannot be denied. How such infringement can be controlled within the permissible range amid the ongoing polarization of international law needs to be examined. It is difficult to find a definitive answer to this issue, but it is still possible to find some positive suggestions for global constitutionalism.
The resilience of global constitutionalism
First, as explained in Part II, global constitutionalism is composed of two aspects, a descriptive aspect and a normative aspect. A normative theory always accompanies a gap between the ideal and the real. Therefore, the undesirable changes taking place under the polarization do not necessarily have a direct impact on the normative aspect of global constitutionalism.Footnote 149 Because of this two-pillar structure, global constitutionalism is resilient to adverse changes in international law to some extent. This resilience and its limitations are indicated by the history of the Japanese Constitution. While constitutional principles are currently challenged under the polarization, the major normative claim in the Japanese Constitution has also been constantly challenged since its early years. Nevertheless, this Constitution has succeeded in preserving its normative value until now. Despite a contextual difference, Japanese constitutional experience offers global constitutionalism valuable suggestions about the erosion of normative rules. The current Constitution of Japan was adopted in 1946 and came into force in 1947 under the military occupation of the Allied powers after World War II. Its Article 9, which is a symbol of pacifism in the Constitution, not only solemnly renounces war but also prohibits the maintenance of military forces. Despite this prohibition, Japan rearmed itself in the early 1950s at the request of the United States, and the Japanese Self-Defence Forces (JSDF) was recently given a large military budget comparable to the German armed forces.Footnote 150 The outright contradiction between the constitutional text and the operation of the JSDF is obvious. Frequent changes in the government’s interpretation of Article 9 have contributed to the gradual erosion of Article 9 as a normative rule. Because of this erosion, the rule contained in Article 9 has been subject to constitutional mutation without the exercise of the official procedure required for constitutional amendment.Footnote 151 However, the pacifism declared by Article 9 had a concrete impact upon the formation of Japanese military and foreign policies, and Article 9 still retains its normative power within Japan.Footnote 152
Focusing on the function that Article 9 has fulfilled, Japanese scholars evaluate Article 9 as ‘law as principles’ rather than as ‘law as rules’.Footnote 153 As also explained in Part II, the constitutional trinity in global constitutionalism is considered ‘law as principles’. That being the case, it is easy to discover a precept for global constitutionalism in this Japanese experience. Enduring tension between the normative ideal and the concrete real provides legal arguments with complex dynamics on constitutional principles. Provided that the discrepancy between them remains within a permissible range, through the correlation between normativity and concreteness, constitutional principles can be refined, polished, and finally come close to being more universal. They will then have more persuasive power for the construction of the real.Footnote 154
Along with this argument, the abundant possibility of global constitutionalism is worth noting. Global constitutionalism is a paradigm that has the potential to be self-reflective and to evolve itself. In the mid-2010s, several crises emerged: (1) rising inequalities and poverty; (2) the expanding military-industrial-intelligence complexes; (3) deepening ecological crisis; and (4) expanding refugee and migrant crisis.Footnote 155 In order to respond to these sustainability problems, the idea of progressive development that lay behind the ‘constitutional trinity’ began to be questioned because the development paradigm had failed to adequately address them.Footnote 156 Since then, while retaining the constitutional trinity as its core principles, global constitutionalism has attempted to update its substance to better suit these changing environments.Footnote 157 This attempt shows that global constitutionalism is sensitive to changing circumstances.
Second, the individual-centred international law is more resilient than the state-centred international law in terms of preserving constitutional principles as they stand. This is because the individual-centered elements embedded in international law by the approval of individuals as international law subjects operate as a driving force that constantly pushes toward the constitutionalization of international law.Footnote 158 While any normative value needs its supporters for its preservation, besides liberal states, individuals can assume the role of protecting constitutional principles. The recurrence of anomalies proves that the progress of constitutionalization is not a linear process. As long as this driving force exists, however, a movement toward constitutionalization will unremittingly arise and start anew. As discussed, global constitutionalism originates in domestic constitutionalism, and is by its very nature a liberal legal concept that seeks to ensure individual liberty by limiting the exercise of any public powers – whether national, regional or international. If states were the only subjects of international law, and if international law were established only through states’ consent under the pacta sunt servanda, there would be little room for discussion regarding constitutionalism beyond the state, although that is not to say no room at all.Footnote 159 However, the position of individuals had already been firmly established into many fields of international law in the second half of the twentieth century. Since the Nuremberg and Tokyo Trials, which took place shortly after World War II, international law has continued to gradually recognize the partial subjectivity of individuals in many contexts, though states still remain the primary subjects.Footnote 160 This process of individualization has caused the dynamic of promoting constitutionalization to be incorporated into international law.Footnote 161
This dynamic operates under the circulatory interaction between international law and domestic laws, especially between international human rights law and domestic constitutions.Footnote 162 The typical consequence of the incorporation of individuals into international law is that the rights of individuals are simultaneously regulated by both international and domestic laws. Whenever there is a difference between these laws about the protection standards regarding individuals’ rights, the application of double standards cannot be accepted by the individuals concerned. These individuals start a mechanism for the promotion of global constitutionalism. This is because they invoke the law that is more favourable to them before all possible forums (e.g. national and regional courts, administrative bodies, political institutions, and international organizations). Namely, in the case where international law is more favourable than domestic law, individuals ought to assert their claims grounded in international law.Footnote 163 On the contrary, in the case where national law is more favourable than international law, they are bound to rely upon national law to exclude international law.Footnote 164 In this context, the institutional link between international and domestic human rights that is available to individuals (e.g. individual communications procedures by optional protocols) is useful but not decisive. Even if individuals cannot rely on such procedures, they will be able to present their claims before international society by other means.Footnote 165 This dynamic does not always improve the realities of human rights. On the other hand, the human rights issues submitted by individuals will continue to be nationally and internationally discussed by the time of their solutions. Thus, this dynamic shows how the subjectivity of individuals in international law has enabled the idea of constitutionalism to transcend the national sphere.
In theory, a state is not necessarily a normative starting point for the development of constitutional principles.Footnote 166 States alone are subjects with full legal personality in international law, but in today’s international society, the ultimate legitimacy of states must be found in their people, regardless of the political systems under which they operate. This is evinced by the UN operations for state-building. Most of the UN Security Council resolutions for state-building have clarified that the reconstruction of nation-states must be based upon the constitutional trinity.Footnote 167 Under the current international law, states and individuals are inextricably linked. Individuals play a role in not only bridging all national and international legal systems, but also putting pressure on both states and international organizations to adhere to higher standards of constitutional principles. In other words, the claims of individuals will continuously energize the constitutionalization of international law. The effectiveness of this dynamic is demonstrated by the history of EU law that directly grants individuals legal rights enforceable before domestic courts through the doctrine of direct effect.Footnote 168 To stop the operation of this dynamic, international law must be reformulated by excluding individuals from its realm. However, such reformulation does not seem feasible.Footnote 169 To conclude, the incorporation of individuals in international law as its subjects has to be understood as a turning point in international law. This change paved the way for international law to transform from the traditional state-centred law to the individual-centred law.
As a matter of course, the individual-based dynamic cannot be free from the negative impacts by the ongoing Russia-led polarization. This is because this polarization is promoted by states pushing forward the state-centred elements in international law. The first problem concerns their negative attitude towards individual subjectivity in international law. Russia and others are sceptical about the individualization of international law and are reluctant to accept individuals as international law subjects.Footnote 170 The second problem concerns the acceptance of international law by domestic legal orders. This is usually known as the opposition between ‘monism’ and ‘dualism’.Footnote 171 Since dualists do not expect international law to have a direct impact on rights and obligations of individuals at the national level, dualist countries are less desirable for individuals. Irrespective of the adoption of the monistic view in the Russian Constitution, for example, the dualistic view is deeply rooted in the perspective of Russian international lawyers.Footnote 172 The third problem concerns human rights situations in those states. The function of this dynamic depends on the protection level of human rights such as freedom of expression. If they are not guaranteed domestically, the dynamic will not sufficiently work there. This may well be the case in present-day RussiaFootnote 173
Global constitutionalism will not die as long as the driving force of constitutionalization, which arises from the individual-centred dynamic, continues to thrive. The polarization of international law is likely to intensify state-centric tendencies in international law among not a few states, which will make this overall dynamic of international law less effective. The damage done to this dynamic for constitutionalization by the war in Ukraine is undeniable, but nevertheless the competition between the two approaches to international law will continue in the foreseeable future.
V. Conclusions
The theme of this article has been the future of global constitutionalism in the aftermath of the commencement of the war in Ukraine. Constitutional principles – namely human rights, the rule of law and democracy – play a leading role in international law. Although the legal rules that embody these principles are often violated, a mere violation does not create law. Russia is critical of the individual-centredness of international law as well as the limitation on sovereignty. However, these individual-centred elements have already become an indispensable part of international law. Russia has also participated in this individualized system of international law and has behaved lawfully in most instances. Therefore, it is difficult for Russia to propose an alternative solution without falling into a state of self-contradiction. In other words, it is difficult for Russia to stand outside of the current international law.Footnote 174 What Russia can do in this situation is not present an alternative to constitutional principles, but rather present an opposition to the dominant interpretation of legal rules based on those principles. The genuine conflict concerns the structure of international law that has incorporated individuals into its core functions, but the actual conflict appears as a divergence in the interpretations of legal rules inside that structure. Thus, constitutional principles will continue to work as the cognitive framework for international society, including Russia and other authoritarian states.
These states may attempt to emasculate those principles by strengthening the state-centred elements of international law, but such an attempt must encounter the resistance of individuals as well as liberal states. If we wish to compete with the return to state-centred international law, we will have to strengthen the individual-centred elements within international law as much as possible. For example, the acceptance of individual complaint mechanisms should be accelerated further because, in the case of international human rights treaties, a number of member states have not accepted the optional protocols on individual communications procedures yet.Footnote 175 Their participation in such mechanisms would contribute to the promotion of the individual-centred international law as well as the improvement of their human rights situations.
Lastly, to effectively regulate the globalized world on the basis of constitutional principles, global constitutionalism must be further developed so it becomes truly inclusive. There are many points to be improved in global constitutionalism.Footnote 176 Due to space limitations, only a desirable direction for the development of global constitutionalism will be presented hereafter. Given the growing distance between constitutional principles and the real in the world, two different directions coexist. The first direction is characterized by a sincere self-reflection on the part of global constitutionalism by recognizing its inherent problems. The self-reflection leads global constitutionalists not only to question the progressive development that global constitutionalism implicitly presupposes, but also to recognize the constitutional trinity as dependent on certain social, economic, political and historical conditions in each state or region.Footnote 177 The second direction emphasizes no equivalent alternative to global constitutionalism. This direction is supported by the fact that ‘constitutionalist ideals have long taken hold outside of the West’.Footnote 178 Due to this belief in constitutionalism, scholars who support this direction proclaim that violations of the constitutional trinity do not undermine, but rather strengthen, constitutional commitment.Footnote 179 In the view of the author, these two directions – namely the continuous revision and the no other option – should be integrated into one formula in order to ensure the continued development of global constitutionalism. The reason is that global constitutionalism inherently needs both directions. On the one hand, as long as global constitutionalism presents itself as the most persuasive paradigm, its emphasis on no alternative makes sense. On the other hand, no alternative does not mean the perfection of the existing arguments for global constitutionalism. Just as any legal order necessarily involves the closure of space, global constitutionalism must involve the closure of ideas. Because of this closure, global constitutionalism tends to exclude ideas other than constitutional principles. The motivation for global constitutionalism has been justifiable,Footnote 180 but there is no guarantee that these excluded ideas will always be inferior to those offered by the constitutional trinity. Therefore, global constitutionalism must continue to pay attention to such excluded ideas. If these ideas deserve more attention, global constitutionalists will have to try to reconcile the idea of global constitutionalism with them. Therefore, what global constitutionalists must do in the face of the polarization of international law is to continue dialogues with other ideas. There is no doubt that such dialogues must be globally organized.
Postscript
This article is one of the achievements of a scientific research project funded by the Japan Society for the Promotion of Science (Grant No. H 18H03617 and No. 23H00037). On this occasion, the author expresses his sincere thanks to the JSPS.
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