The Constitutionalization of International Law After Liberalism

Abstract

Many political changes that have taken place across the world in the last decade have been connected with the spill-over of a new narrative in the public dimension. Among other things, this narrative has emphasized returning control over the public space to the people once again, revitalization of the democratic community, restraint on an expansion of judicial power over representational politics, and in many instances, a specific national approach to the questions of governance. These trends have gained the name “illiberal democracy”, a description which Viktor Orban introduced into the language of political practice a few years later. Indeed, in many countries worldwide, from the United States of America (USA) during the presidency of Donald Trump, Central and Eastern Europe, to Turkey and Venezuela, it has been possible to observe changes which had the principal leitmotif to negate liberal democracy as the only possibility of organizing public space within the state. These trends are continuing, and there are no signs of them disappearing in the near future. The new dispensation in the USA under President Biden also does not guarantee an immediate return to the liberal internationalism of the 1990s. Political changes directed toward the constitutional space of the State have inspired researchers to consider the issues of new constitutionalism, new forms of democracy, and the rule of law beyond liberalism.
This article is an attempt to transfer these considerations to the international level. The text aims to consider whether withdrawal from the liberal doctrine could also be observed on an international level and what these facts could mean for the intellectual project of constitutionalization of international law. Building upon reflections on constitutionalism and constitutionalization of international law, this text presents what has up until now been the mainstream understanding of international law as a liberal construct. This showcases the illiberal turn observed among certain countries as exemplified by the anti-liberal and realist language of their constitutional representatives. In this respect, this analysis is a modest contribution to the so far nascent field of sociology of international law. However, the main endeavor of this article is to unchain the notions of international liberalism and constitutionalization of international law as being popularly understood as two sides of the same coin. Consequently, the idea of political constitutionalism of international law is introduced. Seeing things from this perspective, this text focuses on the material rather than formal aspects of international law's constitutionalization. Within the stream of so called thick constitutionalism, there are a few elements listed with which the discussion about international law may continue to engage, if this law is to be considered as legitimate not only formally, but also substantially.