The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the ‘basis of association’ in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of ‘global governance’.

In A Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention on Human Rights, Alec Stone Sweet and Clare Ryan argue that there has been the emergence of, and increasing prospects for, a cosmopolitan legal order based on the Convention. This symposium aims to engage with, and to better explore, the theoretical implications and practical legal ramifications of their argument. In doing so, this first article acts as a general introduction to the symposium, laying out the major arguments of the book as well as arguments presented by the symposium contributors. Moving beyond the summative, this introduction also situates A Cosmopolitan Legal Oder within broader debates in global constitutionalism, while defending its use of Kant’s cosmopolitan theory. Lastly, it explores some of the key implications and challenges that arise from the symposium itself, rooting these insights within the current context of anti-globalism, nationalism, populism and neo-sovereigntism, and the corresponding necessity for a more transitional and pluralistic response as offered in A Cosmopolitan Legal Order.

Whether we look at constitutions of states or founding treaties of International Organisations (IO), it is striking that many rules on interaction between delegates create room for deliberation, whilst simultaneously limiting the time for discussion. While the latter speeds up decision making, it risks reducing its quality and legitimacy by hampering the exchange and contestation of information and ideas. How are these competing elements balanced in IOs? Do IOs differ in this respect, and if so, how and why? The article draws on a unique and novel dataset and assesses variation in the extent to which institutional design fosters or inhibits diplomatic deliberation in more than 110 diverse IOs. To this end, the article uses a combination of theories of functionalism, rational choice institutionalism and liberal approaches on variation, fit, and mismatch of deliberative institutional design within and across IOs. The hypotheses are analysed with quantitative methods. The article shows that diplomatic deliberative institutional design elements are the most pronounced when IOs are small in size, deal in high politics, and are regional in character.

Women use a multiplicity of forms and methods to articulate harms and claim political spaces. Among these are manifestos.1 Women’s manifestos are concomitant with both political convulsion and the enduring, mundane inequalities faced by women; they play a key role in feminist attempts to achieve political and legal ends.2 Manifestos are overtly political acts of legal/political performance; they are in dialogue with each other, with counter and anti-manifestos, and with the legal-political infrastructures they inhabit.3 Manifestos seek to fracture traditional understanding and practices of law, often in the guise of claiming constituent power and political space.

A growing literature explores how global governance mechanisms can be made more effective and democratic to tackle trans-boundary development challenges like global epidemics, global poverty or climate change. The international system today is characterized by an increasing influence of non-state actors gradually undermining the prominent role of the state. Considering this new reality, the focus of analysis has increasingly shifted towards examining the fundamental role of non-state actors, in particular from civil society, in building democratic global governance mechanisms. The literature still says little about joint governance efforts of both state and non-state actors to promote democracy on the global level. This article examines two global governance mechanisms, UNITAID and the FAO Committee on World Food Security, which were created by the joint action of state and non-state actors to tackle trans-boundary development challenges. Departing from the ideal type of democratic polycentrism this article argues that both mechanisms can be seen as encouraging experiments in global democracy. This analysis attempts to show that democratic polycentrism may prove to be a useful theoretical blueprint for pursuing more democratic global governance mechanisms and that more democracy on the global level depends on the joint activities of democratic states and civil society actors.

This article analyses how, and under what conditions, a systemically-pluralist structure of international law provides a springboard for global democratization. I argue that contestation and deliberation – core values of democracy – can and do arise within systemic pluralism. Specifically, I contend that institutional heterarchy between legal orders and forum shopping by different actors provide a means to engender these democratic values. I maintain that democratization can be sought on both horizontal and vertical planes: the former being the sphere of multilateral negotiations; the latter being governance which links individuals directly to sites of public power. In making this argument, I analyse recent developments within global intellectual property law, establishing and treating the multiple jurisdictions in this issue-space as an instantiation of systemic pluralism. This article thus provides a normative strategy for ongoing democratization of international law. Systemic pluralism must still prove its merits in terms of stability, the rule of law, and other values. However, I provide a method to advance transnational democracy that takes seriously empirical realities and competing normative visions.

International courts regularly cite each other, partly as a means of building legitimacy. This study aims to show that judicial dialogue among the regional human rights courts and the Human Rights Committee has an additional effect: it contributes to the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful because the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the United Nations Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. Using original data, this study demonstrates the extent of citations among the regional human rights courts and from them to the HRC. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism.

There has been much recent debate over whether the European Union is or should be a ‘militant democratic’ actor in order to respond to democratic backsliding in EU member states. This article argues that the EU is a militant democracy in a specific and limited sense, but that this may be normatively undesirable from a democratic perspective. I first develop a definition of militant democracy that focuses on the militant democratic paradox. I argue that the strongest justifications for militant democracy require that two conditions are met: an ‘existential threat condition’ and a ‘necessity condition’. Next, I analyse four ways in which the European Union has been said to be empowered to act in a militant democratic fashion to combat democratic backsliding in EU member states. I show how some, though not all, of these warrant the label ‘militant democracy’. Moving from the descriptive to the normative analysis, I then consider whether the necessity condition can ever be met since there is always the possibility of non-militant responses through forms of EU disintegration. If we accept this argument, EU actors should prioritize robust non-militant measures where possible while pro-democratic member states should disassociate from frankly autocratic member states where non-militant measures fail.

In 2019, Thailand ratified the International Labour Organization Work in Fishing Convention to protect migrant fishers. The Thai government vigorously promoted the Convention among its constituents. Yet, despite the government’s proactivity, such norms have been weakened upon local translation. This phenomenon is not readily explained by existing norms research that pays scant attention to norms in the domestic space. To address this oversight, this article unpacks domestic processes of norm validation and makes a two-step argument. First, it argues that norm validation is crucial for instigating domestic implementation by allowing stakeholders to deliberate and contest the ‘appropriate’ application of norms. Second, it argues that the locally acquired normative understanding, as influenced by norm antipreneurs, or actors who defend the status quo, weakens norm implementation while the norms’ discursive strength is retained. In presenting the findings, this article contributes to the norms literature by illuminating a new life given to validated norms. The contribution also interrogates norms’ global–local dynamics by scrutinizing norm contestation and the extent to which it generates an internalized sense of legal obligation to implement international norms.

What role does enforcement play in protecting the constitutional authority of international law? Can enforcement be understood as a specifically constitutional practice? I argue here that international law has a greater capacity for constitutional enforcement than sceptical accounts have tended to acknowledge. This argument is anchored in the institutional account of the authority of law offered by Hart and developed by MacCormick. This focuses on the official or administrative perceptions as the determinant of constitutional legitimacy, which offers a way to offset the scepticisms caused by gaps in the constitutional order. This establishes constitutional enforcement as a practice centred on and legitimated by the attribution of role responsibilities, rather than on the direct application or policing of the rules. I illustrate these arguments using the law of the sea, a domain where the functional difficulties of enforcement have always presented a challenge to international law’s claim to authority.

Should state borders matter for claims of distributive justice? The article explores, only to reject, the best reasons for an ‘Anti-Cosmopolitan’ position which grants some minimum international obligations, including social and economic human rights. At the same time this Anti-Cosmopolitanism rejects distinctly distributive principles of justice, familiar from discussions of justice among compatriots: There are no further limits on permissible global inequalities. ‘Anti-Cosmopolitans’ do not deny that the tangled web of domestic and international institutions has a massive impact on individuals, their life plans and opportunities, albeit often indirectly and surreptitiously. What they deny is that claims to equality or limits to inequality should apply across state borders. The article explores what it is about states that can justify such a disjunct in the normative claims individuals have against each other. Several arguments about such alleged salient aspects of states and their constitutions are considered, but are found lacking. The main conclusion is to challenge the reasons Anti-Cosmopolitans offer against bringing distributive principles to the ‘Global Basic Structure’.

The contestation of global governance institutions can strengthen or weaken, as well as transform, them. This article analyses the productive potential of contestation and justification of global governance institutions by examining the multiple authorities that are invoked as auxiliaries in the process. It studies the (re-)construction of these authorities by dissecting authority into three components: power, legitimacy and connection to public interests. Empirically, the article focuses on the issue area of business and human rights, examining the highly contested process of drafting a binding instrument in the United Nations Treaty Process. The analysis shows that the success of the Treaty Process not only hinges on its direct reaction to contestation, but also on its ability to (re-)construct the multiple related authorities. Ultimately, the article argues that the contestation of global governance institutions involves (re-)constructing multiple authorities. This demonstrates how contestation can also affect global governance institutions, actors and norms beyond the specific field of deliberation.

The European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

The intense reception of Carl Schmitt’s writings among Chinese constitutional theorists is one of the more striking phenomena within the globalisation of constitutional thought in recent decades. This article approaches it from two angles. First, the reception of Schmitt and the subsequent debates about his oeuvre and persona are interpreted as performative practices in which Schmitt soon emerged as both the bête noire of a liberal-leaning constitutional scholarship and an object of romantic projection for avant-garde theoretical endeavours. Engagement with Schmitt thus crucially contributed to the emergence of both a neo-conservative and a critical-liberal sensibility among Chinese legal scholars. Second, with the rise of what is known in China as Political Constitutionalism in the mid-2000s, Schmitt also began to exert a more substantive terminological and conceptual influence on Chinese constitutional theory more generally, leaving his imprint on some of its fundamental theoretical binaries. Looking at the Chinese debate on Schmitt, therefore, not only grants us a unique glimpse into how constitutional debates are structured and evolving in contemporary China, it also demonstrates the often-unexpected trajectories of conceptual migration in the global age.

Why has interstate war declined and why do states refrain from territorial conquests in the post-Second World War order? The 1928 Peace Pact cannot account for these remarkable developments. This article argues that outlawing war is not enough to promote international peace. International Relations debates on the influence of weapons of mass destruction, democratic regime types and political cultures on interstate behaviour provide further important insights into the delegitimation of certain types of war. Since the 1990s, a changing character of war and warfare has emerged that is especially promoted by democratic states. How democratic states have justified their military use of force and how they have conducted their military interventions has a strong and ambivalent impact on the liberal world order.

This study is an analytical account of the phenomenon of conflicts of rights, tailored to the context of international human rights law. It addresses the nature of conflicts of rights, the relationship between conflicts of rights and the extent and scope of the rights catalogue and the methods used to resolve conflicts. It is structured around the notion of a meta-rule. It argues that a conflict of rights can only be resolved ‘legally’ through the application of a rule that guides the decision maker to a solution. The study addresses the suitability and justification of such rules.

Many critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.

Since the early 2000s, regimes and institutions of global governance have undergone a paradigmatic shift in their relations with multinational corporations. The United Nations, in particular, has increasingly embraced big business as ‘partner’ in humanitarian response and development with the establishment of ‘global public–private partnerships’ (GP3s). This article situates this emerging mode of global governance within the recent academic discussions on Global Constitutionalism from a critical political economy perspective, focusing on the case of the UN Refugee Agency’s GP3s in refugee protection and assistance. Critically inquiring into GP3s not only as informal global constitutional arrangements but also as a set of political relations, this article asks: what is the constitutional and political nature of UNHCR–business partnerships? What impacts, if any, do they have on the agency? And, what does this mean for understanding global constitutionalism? The article argues that UNHCR partnerships are constituted as asymmetrical political relations in terms of their distributions of power, benefits, risks and commitments, that they are having neoliberal-oriented constitutive effects on the agency and that these constitutional dynamics challenge the more mainstream and liberal-based conceptualisations, analyses and promotion of current global constitutionalism processes.

When a constitutional court faces opposition from other branches of government or significant segments of the public, should it always hold fast to what it considers constitutionally right, even where this would potentially harm its status and perceived legitimacy? Or are constitutional compromises sometimes justified? Such ‘institutionally hard’ cases – those characterised by a sharp tension between constitutional principle and institutional prudence – pose a true dilemma for constitutionalism. This article advances a realistic, yet principled, liberal-constitutional approach to this dilemma, put forth in the vein of Rawlsian non-ideal theory. It addresses a troubling gap between, on the one hand, the idealising discourse of constitutional theory – which overlooks or downplays the actual social and political pressures that courts must confront – and, on the other, a growing political science literature which, in the name of ‘realism’, views judges solely as strategic actors, leaving no role for principled reasoning. What has stepped into the gap in normative theory is a vague notion of ‘judicial statesmanship’, which praises or criticises judges post hoc, on an intuitive basis, without any tangible prescriptive bite. Developing evaluative and prescriptive guidelines for institutionally-hard cases, a non-ideal theory of constitutional adjudication should construct principles that both reinforce the commitment to ideal constitutional principle, and properly situate constitutional courts within the real – contingent and often very non-ideal – social and political contexts in which they operate.