Editorial Proposal – “Sovereignty, International Law and Global Constitutionalism”

Within the framework of a controversial and reciprocal process of constitutionalization of international legal order and internationalization of constitutional law,¹ one can easily see that two opposed phenomena are in progress: the erosion of sovereignty and the rising of different forms of nationalism.

Since long time and namely with reference to the international field, sovereignty has irretrievably developed from an exclusive monopoly of the State to a broadly shared practice, exercised by a plurality of actors in different places, not only at national but also at sub-national and trans-national level. If State is now considered as a “Global State”,² it has even ceased to be conceptualized and represented as the entitled subject of the sovereignty (here referred as the power of the State to enact law and exercise security and protection on its own territory), but has been developed into a valuable and “measurable” entity in relation to its own capacity and resources (as for the case of the economic development) and also in relation to risks it can produce and for which an immunization must be done.³

Aside of the different attempts to give again to sovereignty a central role in International legal order (for example, the rising of different forms of nationalism), two particular aspects are highlighted in this reconceptualization of sovereignty: the humanitarian turn of the International Community and the rising and legitimacy of new actors in the International legal order.

As the result of a long, dramatic and discussed journey, international politics have now reached the humanitarian turn, which has reconceptualised sovereignty as a form of responsibility for the State, and has turned into the broadly accepted concept of “Responsibility to Protect”, posing also problems with the notion of “humanitarian intervention”. Indeed, this new concept allows to keep together the ambiguous dilemmas and effects stressing the exercise of the global governance; at the same time, a necessary containment of the sovereignty is derived and accepted.

The complexity and plenty of sources, by which the ideological, moral and doctrinal architecture is fed and which lays under the humanitarian declination of international politics, are enough for underlining the plurality of upcoming questions in the constant configuration of the ideal space, which is so far come up beside, confused and fronted by the realist space of international politics.

From the reflections on moral and legal fundaments of Spanish Conquista of the Americas at the beginning of XVI^th century, passing through the reasons of antislavery movement in XVII^th and XVIII^th century, the philanthropic colonial projects of XIX^th century and the dramatically known crisis of XX^th and XXI^st century having a humanitarian (as for the cases of Biafra, Pakistan, Cambodia, Ethiopia and Rwanda) and political character (as for the cases of Kuwait, Kosovo, the Arab Springs and Lybia), the new geometry of the relations among International law, sovereignty and human rights is qualifying the humanitarian space, even relying on the crucial and narrative contribution of a plurality of actors of global civil society.⁴

Indeed, in this context rules and language of human rights, although weakened by several failures and well-known shortcomings, find again a renovate moral and political worth for becoming the fundament of legitimacy on the basis of which traditional international principles on the use of force are dutifully reconceived, and on which the sovereignty of States is now measured again, controlled, “invaded” and contained.⁵

Aside of this form of erosion of sovereignty, International legal order is assisting to the advancement of other actors, namely non-state actors and indigenous people. As with respect of non-state actors, they are increasingly involved into international decision-making processes, since they are considered as bearers of different public interests to be taken into account and developed into rules by international institutions.⁶ Although this participation is highly considered at the international level as a new form of “supranational” or “shareholder democracy”,⁷ non-state actors are only formally accepted, but substantially are taken out of the deciding phase.

Together with non-state actors, indigenous people had been recently considered as new legitimate subjects and had been granted with legitimacy to participate in the discussing phase of international decision-making processes (see UNGA res. 71/231). The mere fact to be considered as a minority both at national and international level has step forward to consideration of legitimacy outside the principle of self-determination, which can be only granted to people subject to colonial, foreign or racial domination. As for non-state actors, this subject is still in search for a full legitimacy in international processes.

These new actors are putting the traditional decision-making processes into crisis, and new forms of institutional dialogue are on study. As an example, one can cite the legal and political process of creating a Global Parliament, as advanced by the European Union.

As a matter of discussion, the two sides of erosion of sovereignty (the humanitarian turn and the advancement of new actors) are putting the international legal order under new lights, i.e. those of the modern thought of Global Constitutionalism. On one side, the traditional pillar of sovereignty is facing a new conceptualization of its limits, both on legal and political sides, and is leaving room to the progressive construction of a Global Community supported by fundamental values, considered as the pillars of a new form of Rule of Law. On the other side, there is an increasing demand for a new conceptualization of international politics, involving both more consideration of the principle of human dignity⁸ and more participation in decision-making processes, for the purposes of commonly constitutionalize the International Community.

These points can be considered the starting ones for discussing on this process of constitutionalization of International law. Moreover, there are different questions to be solved (despite more others can be posed):

• Is the erosion of sovereignty still conceivable in times of incumbent nationalisms?

• What kind of global patterns are going in the direction of putting fundaments for a Global constitutionalism?

• What institutions must be involved in this process?

• What forms of legitimacy must be accorded to the different actors of Global constitutional order?

• What kind of rights and duties must be accorded?

1. Brun-Otto Bryde, Constitutional Law in “old” and “new” Law and Development, in Law and Politics in Africa, Asia and Latin America, Vol. 41, No. 1, 2008, pp. 10-15.↩

2. Ricciardi, From Modern to Global State. History and Transformation of a Concept, in Scienza & Politica, vol. XXV, no. 48, 2013, pp. 75-93.↩

3. Duffield, Social Reconstruction and the Radicalization of Development: Aid as a Relation of Global Liberal Governance, in Development and Change, Vol. 33, no. 5, 2002, pp. 1049-71; Simpson, ‘Doing development’: the gap year, volunteer‐tourists and a popular practice of development, in Journal of International Development, vol. 16, no. 5, 2004, pp. 681-92.↩

4. Gozzi, Umano, non umano. Intervento umanitario, colonialismo, «primavere arabe», Bologna, 2015; Salvatici, Nel nome degli altri. Storia dell’intervento umanitario, Bologna, 2015; Scuccimarra, Proteggere l’Umanità. Sovranità e diritti umani nell’epoca globale, Bologna, 2016↩

5. Gozzi, Umano, non umano cit.; Scuccimarra, Proteggere l’Umanità cit.↩

6. Higgins, Problems and Process. International law and How we Use it, Oxford, 1994.↩

7. Singer-Ron, Models of shareholder democracy: A transnational approach, in Global Constitutionalism, vol. 7, no. 3, 2018, pp. 422-446.↩

8. Cançado Trindade, International law for Humankind. Towards a new Jus Gentium, The Hague, 2013 (II).↩