This article gives an overview of two competing paradigms in the practice of judicial organs for the resolution of norm conflicts, namely the paradigm of a human rights based hierarchy versus the paradigm of systemic integration or conflict avoidance. Judicial practice indicates that norm conflicts typically manifest themselves between human rights obligations on the one hand and other categories of international obligations on the other. Do judicial organs resolve such norm conflicts in a manner that favours human rights obligations? If so, this would support the view in the literature that the international legal order is increasingly operating within a paradigm of hierarchy, with human rights at its apex. The article addresses this question based on the results of a study conducted by 10 authors who have analysed the practice of domestic, regional, supranational and international courts in dealing with norm conflicts between human rights, on the one hand and the other sub-regimes of public international law mentioned above, on the other (de Wet and Vidmar 2011). The article argues that judicial practice reveals no clear or consistent patterns of a human rights based hierarchy in international law can currently be induced from the manner in which courts resolve norm conflicts in international law. Instead, courts avoid resolving norm conflicts within a paradigm of hierarchy and instead remain within a paradigm of systemic integration that is aimed at maximizing the accommodation of competing sub-regimes of public international law.

International institutions underpinning the ‘liberal international order’ are increasingly contested by established Western powers. This article contributes to a better understanding of this novel challenge ‘from within’. We conceptualize four types of contestation frames according to (1) whether contesting states attribute the source of grievances to specific practices or the underlying principles of an international institution; and (2) whether they present their own nation or the international community as the subject of grievances. Combining these two dimensions, we distinguish between globalist-reformist, nationalist-reformist, globalist-revisionist and nationalist-revisionist contestation frames. These contestation frames are consequential as they open up or shrink the discursive space for contested institutions’ re-legitimation. Drawing on the Trump Administration’s contestation of the World Bank, NATO, the UNHRC, and the WTO, we demonstrate that contestation frames and defenders’ responses varied greatly across institutions, ranging from accommodative deliberations about institutional reforms to principled rejection and the justification of the status quo.

Fair value of equal political liberties is a key precondition for the legitimacy of a regime in liberal thought. This liberal guarantee is breached whenever a group is permanently or semi-permanently locked out of power. Given the convertibility, subtlety, and resilience of power, gross material inequality – produced by neoliberal economic policies – effectively locks the relative poor out of political power. Such lockout breaches the legitimacy constraint on a liberal constitutional democracy. Neoliberal democracies, sooner or later, become plutocracies. This possibility should concern not only liberal political theory but also liberal constitutionalism. The usual objections to a constitutional concern with gross inequality and plutocracy – based on concerns relating to transparency, counter-majoritarianism and flexibility – are useful design instructions, but do not rule out the constitutionalisation of egalitarian and anti-plutocratic norms. A whole panoply of legal and political constitutional measures – already familiar to or incrementally developed from liberal constitutional thought and practice worldwide – could be marshalled to effectively promote material equality and resist plutocracy. These measures – documented to map the possibilities rather than as a manifesto – seek either to prevent material inequality from becoming excessive or to prevent its conversion into political inequality. Good constitutional design, depending on the context, is likely to deploy several tools from both these toolboxes.

The United Nations treaty bodies were established to monitor the implementation of human rights by states parties. Through ‘General Comments’ – legally non-binding clarifications of treaty obligations – they have also influenced the development of international human rights law – for example, on the right to life and climate impacts. We address this phenomenon by establishing a twofold argument. First, we argue that General Comments are used by the committees to informally shape international law. They deliberately act as human rights law-makers, knowing that international institutions, organizations and professionals in their network will subsequently refer to such instruments. Second, we argue that treaty bodies not only rely on their network once they have adopted their outcome, but the experts’ personal networks also shape the drafting process of General Comments. We develop and illustrate an analytical framework with two case studies of General Comments on the human right to water and the torture prohibition. The analysis demonstrates the need for external knowledge of both technical and legal aspects of the norms being interpreted. By addressing pressing human rights challenges, expert committees can shape the law in times of stagnation and resist contestation even from powerful states.

This article analyses the rise of populism and its discursive challenge to global constitutionalism (GC). It shows that populist contestation is more ambivalent than often suggested: its challenge depends on the populist variety and can both undermine or support liberal principles of GC. Building on the ideational approach to populism and a framework of transnational politicisation, a proposed typology identifies both communitarian types of populism and cosmopolitan types of populism. Illustrative case studies of the Alternative for Germany, the Polish Law and Justice Party, the Democracy in Europe Movement and Peru’s Alberto Fujimori substantiate these empirically. While all cases contest a perceived lack of popular sovereignty in a largely non-majoritarian global constitutional order, varieties of populism present contrasting responses: communitarian types push for global de-constitutionalisation in line with illiberal nationalist majoritarianism, while cosmopolitan types support global constitutionalisation according to liberal and democratic principles. Further, neo-socialist populists campaign against neoliberal principles in GC, but remain divided about supporting political principles beyond the state. These findings suggest an emerging politicisation of the process of global constitutionalisation at the societal level according to principles of democratic legitimacy; and global constitutional differentiation depending on outcomes of these normatively ambivalent and empirically contingent political contests.

Scholars have proposed a number of different ways to improve global accountability, but none has adequately addressed how individuals who commit widespread or systematic nonviolent wrongs can be held to account. I argue that for moral reasons individuals should be held accountable for nonviolent crimes against humanity and that an existing legal institution, the International Criminal Court (ICC), has the authority to prosecute such crimes. The ICC’s prosecutor should start exercising this legal authority because widespread or systematic nonviolent harms can be just as morally wrong as violent ones. What matters on my account is the gravity of a wrong, not whether it was committed violently or nonviolently. I situate these arguments in contemporary discussions of accountability, and provide evidence that individuals can cause widespread or systematic nonviolent harms that meet the legal definition of a crime against humanity in the Rome Statute, the ICC’s foundational document.

Before neoliberalism became global, it was an intellectual project that had a particular view of the power of constitutions to limit sovereign states, anchor economic freedoms and protect markets from democratic pressures for greater equality. In Latin America and the developing world, neoliberalism has long been identified with the political economy of the Washington Consensus. However, the comprehensive study of its legal foundations and institutional arrangements is still an area of limited scholarly attention. This article attempts to advance in that direction. By examining the work of Friedrich A. Hayek, Milton Friedman and James M. Buchanan, it explores a theory of neoliberal constitutionalism within Chile, the so-called first neoliberal laboratory. These authors visited the country during the Pinochet dictatorship (1973–90), and were connected with top Chilean authorities as part of their global ambitions to implement their theoretical agendas in real-world scenarios. The article argues that Chile’s constitution-making process between 1973 and 1980 offered an on-site experiment in introducing neoliberal’s radical economic transformation. It addresses how the dictatorship’s natural law-based rule of law principles were compatible with the neoliberal constitutional ideology by supporting a distinctive view of the state’s role and designing the innovative institutional arrangements necessary to guarantee the market’s priority in the structural and rights dimension of the 1980 Constitution. In the wake of Chile’s recent constitutional change agenda, this article not only contributes to the existing debate by reflecting on the ideological origins of the still-persistent constitutional neoliberal features, but also works as a case study for evaluating new global turns towards authoritarian neoliberal politics.

The current debate measuring the trade-offs between democracy and judicial review is unable to analyse the influence of courts in post-conflict states. However, a court with authority over constitutional review is commonplace in new constitutions, including those that have been drafted (or revised) as part of a political settlement. This article suggests that judicial institutions are as important as political institutions in sustaining a political settlement. As this article sets out, the parties to a peace process are required to make numerous compromises to negotiate new (or revised) institutional arrangements. Several cases are considered which illustrate how domestic constitutional courts were asked to mediate between tensions inside the political settlement. In all of the examples, the courts interpreted peace to be the most important constitutional value, or the primary purpose of the constitution. The judiciary played a role in maintaining the constitutional link to the elite pacts of the peace agreement, while acknowledging that the link should not preserve elite pacts permanently or without limit. The article argues, first, that these cases constitute evidence of an emergent global ‘peace jurisprudence’ based on purposive interpretation and a principle of proportionality that protects the foundations of the political settlement, and, second, questions the extent to which international courts are willing or able to adopt this jurisprudence.

This introduction sets the stage for the special issue on the ‘ideologies of global constitutionalism’. It describes the competing approaches for conceptualising and analysing global constitutionalism. It then turns to highlight the overlooked ideologies underlying global constitutionalism through a thematic exposition of the articles in the special issue. In particular, the introduction questions the conventional link between global constitutionalism and neo-liberalism, explores a materialist analysis of global constitutionalism, analyses the validity of the liberal global constitutionalist paradigm for non-liberal regimes, and discusses the potential for the abuse of that liberal paradigm through the migration of constitutional doctrine.

Individual relationships between Mainland China and Tibet, Xinjiang, Hong Kong and Taiwan are considered confusing for some because China’s rising international power is not resulting in stronger calls for a shared identity based on ‘Chinese pride’ or historical links. Instead, China’s economic growth appears to be provoking increasingly stronger calls for autonomy or independence. In this article I discuss why Beijing’s self-described peace and development policy is failing to procure positive responses in those four regions, with a primary focus on the failed use of narrowly-defined Westphalian thinking to understand relevant issues. I argue that the reason for this failure is the tension between the individualist ontology underlying modern international politics (as expressed in terms of Westphalian sovereignty) and the relational ontology underpinning a traditional Chinese politics built upon a tianxia (‘all-under-heaven’) world view. This tension has become conspicuous in the context of China’s recent rise and Beijing’s growing confidence in contesting Western power. The Chinese leadership’s reliance on arguments involving historical connections with Tibet, Xinjiang, Hong Kong and Taiwan, and calls for autonomy or independence from citizens living in those four areas, are examples of this contestation.

The article develops a Kantian account of constitutional justice: the explication of those structural features of a legal system whose purpose is to optimise a polity’s capacity to achieve a Rightful condition. The People, in enacting a rights-based constitution, have placed their freedom in trust. Rights ground a system of reciprocal freedom among individuals, while conferring on officials the authority to make and enforce law, subject to constraints laid down by the Universal Principle of Right [UPR]. A constitutional court, the trustee of the regime, supervises the rights-regarding acts of all other officials, assesses the reasons officials give when they take decisions that burden rights, and invalidates those acts when reasons given to justify such burdens fail to meet the demands of the UPR. Although some rights will be expressed in absolute terms, most will be qualified by a limitation clause. In adjudicating qualified rights, the court can do no better than to adopt the proportionality principle. The UPR, operationalised through proportionality analysis, lays down a basic criterion for the legitimacy of all law. Because Public, International, and Cosmopolitan Right share certain micro-foundations in common, we can extend the analysis to transnational systems of rights protection.

This paper considers the introduction of a bill of rights to a territory’s constitution as an example of the transnational transfer of norms. Using the case of the Cayman Islands Constitution promulgated in 2009 this analysis looks specifically at the creation of its bill of rights in light of local debate following the legalisation of homosexuality forced by the United Kingdom in 2000. The unique constitutional structure framing the political relationship between the United Kingdom and its Overseas Territories is outlined as explanation for the nature of the Cayman constitution, as well as the historical trajectory leading to it. This trajectory informs the context for the local debate over homosexuality and substantial local resistance to the transfer of an emerging European norm recognizing same-sex marriage to a Caribbean island firm in its Christian heritage. This case interrogates the transference and reproduction of ‘global human rights norms’ in the construction of constitutions in postcolonial societies anticipated by proponents of ‘norm diffusion’ and highlights the contested acceptance offered exogenous norms by the postcolonial society.

The rise of patriarchal populist leaders over the past decade has fortified a long-standing campaign by conservative governments and advocacy groups to undermine women’s international human rights. Their efforts have increasingly focused on revising language as a means to challenge and weaken the international norms and organizations essential to women’s and girls’ equality and health. Through our textual analysis of UN records, governmental and nongovernmental publications, media coverage of disputes over language, and background interviews with activists, we identify and delineate the significance of this ‘norm spoiling’ strategy and trace its expansion during the Trump administration. We find that women’s rights challengers have pursued three distinct spoiling tactics based in language: controlling what women’s rights advocates can say through policies such as the United States’ ‘global gag rule’; altering the meaning of women’s rights by reframing them as an attack on other rights, such as religious freedom; and deleting foundational words, such as ‘gender’ and ‘sexual and reproductive health and rights’, from international agreements. The role of language in today’s patriarchal populism goes beyond populist leaders’ speeches, rallies and tweets. Their governments and allies systematically control, alter or delete words central to women’s rights.

The article discusses the concept of popular sovereignty over natural resources and its possible applicability to a broader account of natural resource justice based on a moral interpretation of international law. Leif Wenar’s recent proposal to entrench popular resource sovereignty as a counterclaim to illegitimate uses of natural resources by corrupt and authoritarian regimes serves as the starting point for the discussion of the possible meaning of popular resource sovereignty and its role in an account of natural resource justice. Three key aspects of Wenar’s conception are in focus: 1) the framing of popular resource sovereignty within the current system of sovereign territoriality, 2) the notion of collective ownership of natural resources as the content of popular resource sovereignty, and 3) civil and political rights as the key set of norms determining the conditions of legitimate exercise of resource sovereignty. The article argues that collective sovereignty claims over natural resources can neither be framed exclusively through boundaries of current sovereign states, nor understood in terms of full and unlimited property rights. Concerning civil and political rights, I argue we need to move past the liberal conception of legitimacy toward a more comprehensive human rights-based conception of justice serving as a standard for assessment of legitimacy of both sovereign and non-sovereign entities which have rights over natural resources.

With the progressive digitisation and use, in particular, of the internet of things and artificial intelligence by industries, commerce, financial services, science and education, the public administration, health services as well as individuals, our society and daily life gets more and more dependent on the security of the net: cybersecurity. The new risks are self-made, a threat to almost everybody and new in kind. And they have a global dimension. For the difficulty of attribution of cyber attacks traditional concepts of deterrence and defence are not a solution. Given the new conditions of the ‘digital constellation’ this article aims at exploring instruments and methods of cybersecurity governance in a broad sense, learning from internet governance and taking a constitutional perspective. It is based upon shared responsibility, resilience and citizens’ participation in the making and future application of an inclusive global rule-making system. Multi-stakeholder mechanisms are combined with deliberative processes, standardisation and legislative action. In accordance with the principles of global constitutionalism this new framework of global rule generation would emerge as a common democratic instrument of people to meet common challenges in addition and complementary to action for cybersecurity at the local, regional, national and supranational levels.

According to Carl Schmitt, constitutional law and international law are analogous in that they are both forms of political law. Schmitt concludes that neither is open to legitimate judicial enforcement. This paper critically explores Schmitt’s analogy between constitutional and international law. It argues that the analogy can be turned against Schmitt and contemporary sceptics about international law: Since we no longer have any reason to deny the judicial enforceability of domestic constitutional law, the analogy now suggests that there is no reason to think that legitimate judicial enforcement of international law is impossible.

The recent wave of popular uprisings in the Middle East and Northern Africa has sparked a renewed attention to democratization across the world. One of many intriguing questions in this context is whether this trend will be spread globally and will flash another wave of democratization among some regions and countries where democratic euphoria has faded away. Another intriguing question is whether this new wave, in the Middle East or elsewhere, will take a constitutional path or will evolve through undemocratic and unconstitutional channels. In this light, it looks perfectly timely to discuss the lessons from and the modern prospects of building constitutional democracies in post-Soviet countries.

This article offers perspectives on challenges facing post-Soviet higher courts in the effort to promote constitutional democracy in their countries. While it argues that there are many such challenges and that their roots are mostly deep in the political culture, selected and discussed are some specific instances which starkly expose the patterns of constitutional perversion and the most relevant limitations facing post-Soviet courts in our days. The solutions to these are seen in the incremental process of institutional learning hence the article suggests some designer strategies which may help moving along this process.

The first section outlines what appears to be a peculiar vision of constitutionalism as embedded in respective societies and assesses this entrenched concept against accepted accounts of Western constitutionalism. The second section discusses some specific challenges to development of constitutionalism in post-Soviet countries, concentrating on inherited mindset and legal culture, as well as corrupt political technologies and flaws in the design of constitutional courts. The third section discusses two illustrative cases before higher tribunals to demonstrate what courts face in the courtroom when confronting the described challenges.

Against recent contributions to the debate about the constituent power of the people, the article proposes to reorient the debate by analytically distinguishing three dominant arenas of political struggle – democratic, social and national – in which the vocabulary of ‘the people’ and its constituent power is invoked. The invocation of the ‘will of the people’ and its constituent power in these arenas is associated with different assumptions, risks and implicit ideational trade-offs that must be laid bare. A contextual approach to constituent power counsels caution in dignifying pro-democratic constitutional transformations with the name of ‘the people’. It invites those who theorize constituent power with social struggles in mind to rebalance their attention to constituent power – and devote more attention to imaginaries and strategies that minimize moral hazards implicit in the vocabulary of peoplehood and to maximize the likelihood of the new order’s survival. Finally, a contextual approach rejects the role for constituent power in national struggles, arguing that constitutional theory is incapable of arbitrating between competing assertions of popular sovereignty. In the final part of the paper, I defend the contextual approach against the theoretical interventions currently on offer, and gesture towards its potential in crafting a provincialized constitutional theory.