The Dynamics of Constitutionalism in the Age of Globalisation

, by Edited by Morly Frishman , Sam Muller

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ISBN: 9789067043021 | 9067043028
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What does 'constitutionalism' mean in our age of globalisation? In which contexts does the discourse of constitutionalism occur? What factors contribute to the creation of a 'culture' of constitutionalism at the nation-state level? And can one talk about constitutionalism beyond the state, for example at the European and international levels? These are some of the questions that formed the basis for discussion at the Fifth 'From Peace to Justice' Conference of the Hague Academic Coalition in May 2008. With the concepts of power and governance becoming more diverse and multi-faceted, the conference considered constitutionalism at the national, European and international levels, exploring from a variety of viewpoints the changing meaning of constitutionalism in today's globalised world. A publication of T.M.C. Asser Press, exclusively distributed by Cambridge University Press.

Preface	p. V
The Hague Academic Coalition	p. IX
List of Abbreviations	p. XV
Introduction	p. 1
Constitutionalism in a Global Age	p. 1
Overview	p. 3
International Law, Development and Conflict: Comparative Perspectives on Cultures of Constitutionalism	p. 4
Constitutional Protection, the Internationalisation of Law and Transnational Constitutional Principles	p. 7
The Dynamics of Constitutionalism in the European Union (EU)	p. 9
Constitutionalism in Public International Law	p. 11
Concluding Remarks	p. 13
Constitutionalism in an Age of Globalisation and Global Threats	p. 15
Introduction	p. 15
Globalisation, Human Rights and Human Dignity	p. 16
The Concept of Constitutionalism	p. 18
The Principle of Democratic Legitimacy	p. 19
Constitutionalism in an Age of Globalisation	p. 24
National Constitutionalism	p. 25
Regional Constitutionalism	p. 25
International Constitutionalism	p. 25
The Relationship between International Legal Obligations and Domestic Law: From Dualism, Monism and Coordination to Responsibility	p. 26
The Basis of Obligation in International Law	p. 27
The Law of State Responsibility	p. 30
Obligations under the UN Charter	p. 30
International Norms of Jus Cogens	p. 32
Norms of International Customary Law	p. 34
Mandatory Decisions of the UN Security Council	p. 35
Obligations under International Human Rights Conventions	p. 40
The Doctrine of the Responsibility to Prevent and to Protect	p. 46
Conclusion	p. 46
Cultures of Constitutionalism: An Introduction	p. 49
Overview	p. 49
Significant Events of 1948	p. 51
Constitutionalism and Legal Pluralism	p. 54
Soul of a Nation? The Inception, Interpretation and Influence of South Africa's 1996 Constitution	p. 57
Introduction	p. 57
The Inception of South Africa's 1996 Constitution	p. 60
Interpretation: The Role of the Constitutional Court	p. 65
The Influence of South Africa's 1996 Constitution	p. 68
Conclusion	p. 70
Post-Conflict Constitutional Settlement in Nepal and the Role of the United Nations	p. 71
Introduction	p. 71
The Current Context: Historical Change	p. 72
Historical and Current Political Scenarios	p. 73
The Role of the Judiciary	p. 77
The Peace Agreement	p. 78
Drawbacks of the Interim Constitution	p. 79
The Election of an Inclusive Constituent Assembly	p. 80
The Role of the United Nations	p. 81
A Unique Peace Process	p. 82
The United Nations Could Have Been Bolder	p. 84
Conclusion	p. 86
Do Constitutions Make a Difference as regards the Protection of Fundamental Human Rights? Comparing the United States and Israel	p. 89
Introduction	p. 89
The Constitutional Framework of the US	p. 90
The Non-Constitutional Framework of Israel	p. 99
Conclusion	p. 108
The Impact of Internationalisation on Constitutional Law: Some Reflections	p. 111
Introduction	p. 111
Constitutional v. International Law	p. 112
Institutional and Competence Standards	p. 113
Democracy and Accountability Standards	p. 116
Individual Rights Protection	p. 117
Outlook	p. 120
Fit for All Practical Purposes? Constitutionalism as a Legitimising Strategy for the European Union	p. 125
Introduction	p. 125
Constitutionalism and Public Perceptions	p. 126
The EU Constitution as a Constitutional Moment in the History of the European Union	p. 127
Constitutionalism as a State-Centred Legitimising Strategy	p. 128
Academic Evolution in EU Constitutionalism	p. 131
New Challenges for EU Constitutionalism	p. 135
Interplay between National and EU Constitutionalism	p. 137
Conclusion	p. 142
Why Legal Scholarship Must Not Leave EU Constitutional Practice to the Social Sciences - Some Reflections	p. 145
Why Constitutional Practice is not of Secondary Importance	p. 145
Why Practice or Convention is Problematic yet Essential in the Case of an International Organisation	p. 148
Why Legal Scholarship is Wrong to Leave Practice to Others	p. 151
Peremptory Norms as an Aspect of Constitutionalisation in the International Legal System	p. 153
Introduction	p. 153
Theoretical Perspectives on Jus Cogens: Some Recent Views	p. 154
Non-derogability of Jus Cogens	p. 158
The Content of Jus Cogens	p. 160
Jus Cogens Before National Courts: Universal Jurisdiction and State Immunity	p. 165
The Proper Constitutional Significance of Jus Cogens: Primacy over UN Security Council Resolutions	p. 171
Conclusion	p. 179
Bibliography	p. 181
Table of Cases	p. 195
Table of Conventions	p. 199
Index	p. 201
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The Dynamics of Constitutionalism in the Age of Globalisation

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