Should we worry about global quasi-constitutionalization?

The Rule of Law may be being given away as Rule by Laws replaces a comprehensive system of democratically constituted judicial review.

Grahame Thompson
23 January 2013

Have we seen a potentially new form of global governance quietly emerging over the last decade or so, one that is establishing a surrogate and informal process of the constitutionalization of global economic and political relationships, something that is creeping up on us almost unnoticed? 

This issue of ‘global constitutionalization’ has become an important topic of analysis over recent years (Thornhill, Teubner). I term it the quasi-constitutionalization of the global sphere, and it is the subject of analysis in a new book (The Constitutionalization of the Global Corporate Sphere? OUP, October 2012). Its development is most obvious in the case of business and corporate activity but I suggest that it has a much wider provenance and is threatening to encompass many other aspects of global governance like human rights, security and warfare, environmental regulation, and more besides. One difficulty in analyzing this trend is to define its characteristics and parameters since it represents a rather loose configuration, one that is not easy to pin down. 

Quasi-constitutionalization is a surrogate process of constitutionalization, not a coherent programme with a rounded set of outcomes, but full of contradictory half-finished currents and projects: an ‘assemblage’ of many disparate advances and often directionless moves – almost an accidental coming together of elements. So it does not amount to a ‘system’ in any conventional sense.

This means it marshals together a complex bricolage of resources: material techniques and devices like models, documents, court decisions, legal statutes and treaties; institutional orders like legal apparatuses, bodies  and governance organizations; and discursive expertise, theoretical knowledges and instruments. But it is a process nonetheless: it is building norms of conduct, rule-making, and creating a new distribution of powers into a ‘global polity’.

Or so it might at first seem, because this assemblage is both what has to be investigated and critically unbundled by the analysis of the book. I call this a quasi-constitutional process because while it resembles a constitution in many respects, it is difficult to transpose constitutionality directly into an international environment where there is no single competent authority that might foster or enforce such a constitution.

In turn, this connects to various senses of the juridicalization of international corporate and other affairs, where new or revitalized types of law are increasingly being brought into play as the mechanisms for resolving disputes or organizing governance. This involves new forms of public law, private law, customary law, regulatory and administrative law, all of which are rapidly evolving in the international arena alongside traditional international law.

Institutions that embody such a process are the WTO, various agencies of the UN, the OECD, Bilateral Trade and Investment treaties, and a huge number of standard setting and benchmarking organizations many of which are private in character but which both claim and exercise a public power at the global level. This is the site of a reinvigorated private law and private authority operating in the international domain.

In the case of companies, they are increasingly adopting the language of global corporate citizenship to characterize their activity as civic actors in this evolving quasi-constitutional environment, and they are being addressed as such by bodies like the World Economic Forum and the UN’s Global Compact. Bilateral trade and investment treaties have mushroomed over recent years. Investment treaties are an example of global private administrative law in action. On the other hand we have the OECD in its capacity as sponsor of socially responsible conduct by multinational companies (Guidelines for Multinational Enterprises) which has become an instrument of global public administrative law. John Ruggie’s recent attempt to introduce a comprehensive regime of human rights into the business world (the UN’s Protect, Respect and Remedy Framework) is another case in point of the creeping quasi-constitutionalizing process.

But a major issue of concern is whether quasi-constitutionalization leads to Rule by Laws (RbLs) rather than the Rule of Law (RoL) in the international system? The RoL may be being given away as RbLs replace a comprehensive system of democratically constituted judicial review, which cannot happen in the case of global quasi-constitutionality.

Take the case of bilateral investment treaties. Disputes between contracting states and private investors involving these, of which there are many, are mainly handled by the International Centre for the Settlement of Investment Disputes.  This is a delegated body of the World Bank which maintains panels of private conciliators and arbitrators who adjudicate on disputes. The key aspect of this investment treaty arbitration regime is its hybrid form: it transplants a private adjudicative model derived from the commercial sphere into the public realm of government, thereby giving privately contracted arbitrators the authority to make what are essentially governmental decisions, but dressed up in a judicial form. In effect, this process gives private commercial lawyers – who are the arbitrators – authority over the establishment of substantive legal outcomes akin to the making of private law. And their judgments are mandatory and binding.

Thus in this evolving environment, instead of the rule by elected and accountable political officials, we are seeing the emergence of rule by lawyers and by aged judges and law professors in international commercial and other matters. These are the actors who are leading the process of institutional rule-making. Public and particularly private elites are making up the rules as they go along, arbitrarily and on an ad hoc basis. I call this a rule by a new self-appointed Guild of Lawyers on the one hand and a new Clerisy of the Law on the other. In effect, we are giving up any form of democratic legitimacy and accountability with this introduction of global quasi-constitutionalization.

Is there anything that can be done to redress the balance indicated by these developments? This is very difficult since the process is unstable, hidden and somewhat nebulous. It is not a comprehensive programme orchestrated from an identifiable single source. We are unlikely to see the initiation of a formal global governmental programme in the near future where some kind of legislative assembly makes laws and executes a rule on behalf of a global polity. And investing too much faith in the existing UN system would be a mistake. 

Thus the only feasible alternative is to strengthen multilateralism and inter-governmentalism. Whilst these are on the defensive as globalization is arguably sweeping away the possibilities of nationally-led and -based governance regimes – the forces of transnationalism are too strong and national boundaries are collapsing – this provides at least some semblance of democratic control as the organizations established by these mechanisms remain broadly representative and publically accountable.

Deepening and extended the range of multilateral intuitions of governance to more functional areas at the international level – and bringing in those who are escaping it with the advent of the kind of quasi-constitutionalization discussed above – would be a key task. But we should remain concerned about global quasi-constitutionalization. Continued disquiet and anxiety is warranted, as it is difficult to see how the RoL can be easily re-established in this context.

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