I. Introduction
Courts are bellwethers of their legal orders. Their very establishment is indicative of legalisation, while their proliferation suggests that constituent and constituted power holders within a system accept adjudication as ‘as a viable and effective option for the resolution of disputes between them’ (Buergenthal, Reference Buergenthal2001, p. 272). One of the most striking features of the ‘new world order’ of the 1990s was the creation of new international and regional tribunals in response to dissatisfaction with an international system hitherto largely structured around the interests of the sovereign state (Alter, Reference Alter2014). Courts with mandatory jurisdictions increasingly displaced ad hoc consensual forms of dispute settlement. Within constitutionalised governance orders, new courts would ordinarily be woven into a hierarchical structure. In new states, constitutional drafters can draw upon multiple comparators in structuring such a hierarchy of courts. The latest generation of international and regional courts, however, have been created to address the immediate needs of particular policy areas or at the behest of particular actors, and not under the aegis of a coherent overarching model of global governance.
Other actors have largely left international tribunals to develop their relationships with each other, leading to competing accounts that attempt to place such interactions within the context of broader changes to the global legal order. In this paper, we focus upon the rival visions of constitutionalisation, which contends that the global legal order is deepening under the influence of nascent constitutional principles, and fragmentation, by which the global legal order's increasing complexity is identified as a potential threat to its coherence. We challenge this dichotomy, reconceptualising fragmentation and constitutionalisation as processes that are intertwined within ongoing developments in global governance. Our analysis rests upon two propositions. First, the proliferation of international tribunals is currently one of the most important phenomena within the global legal order (Benvenisti and Downs, Reference Benvenisti and Downs2007–2008, p. 596). In the last fifty years, the ranks of international tribunals have swelled from a handful to over 100 active bodies (Burke-White, Reference Burke-White2004).Footnote 1 Second, although this multiplication of tribunals is often treated as having as deleterious impact upon the global legal order, the reality is that fragmentation is a common and formative experience within developing governance orders. We draw upon the Marxist-Hegelian concept of ‘conflicting forces leading to transformation rather than impasse’ (Sowell, Reference Sowell1963, p. 308) to argue that messy exchanges between tribunals can contribute to the development of constitutional attributes within a fragmented legal order. Initial interactions between international tribunals with overlapping jurisdictions will almost inevitably be fractious, but what Hegel characterised as a process of recognition can curtail these conflicts and enrich the global legal order (Hegel, Reference Hegel1807/1977, p. 112). This paper examines the extent to which such a process of recognition is underway between international tribunals and whether this process contributes not simply to a thicker body of global law, but to the constitutionalisation of the global legal order.
To shed new light on the expanding role of courts within the global legal order, we draw comparisons with the development of courts within a constitutionalising domestic order. For this purpose, the constitutional history, from the Middle Ages to the nineteenth century, of the polity which in 1707 became the UK provides a suitable frame of reference, being marked by ‘multiple … courts with overlapping jurisdictions compet[ing]over many of the issues that now comprise the common law’ (Stringham and Zywicki, Reference Stringham and Zywicki2011, p. 498). This history showcases courts' efforts within a fragmented legal order to preserve their jurisdictions against encroachments by rival tribunals. In the absence of any formal programme of constitutionalisation, these clashes demarked jurisdictions, developed working relationships between courts and even elucidated constitutional principles that would become fundamental to the UK's governance order. In short, the activity of these competing courts had a constitutionalising effect. Today, a similar process of unstructured constitutionalisation is arguably being sustained through the interactions of international tribunals. Although the UK's experience of gradual domestic constitutionalisation is not unique, its uncodified constitution has kept on display some of the markers of the historic constitutionalisation process, which are concealed in other domestic orders. The very fact that the UK's Constitution and the burgeoning global constitutional order are both uncodified facilitates comparison between the historic process within the UK and current global developments.
We are not, in this paper, advocating the transposition of any substantive UK governance arrangements to the global legal order. UK constitutional history instead provides us with an example of the operation over centuries of both fragmentation and constitutionalisation within a domestic legal order. This history acts as a proxy by which we can explain important features of judicial interaction within the fragmented and still early-stage process of global constitutionalisation. The gradual integration of the UK's court structures did not take place in a vacuum, with political, cultural and economic factors all contributing to a process which cannot be simplified as a linear movement from arbitrary justice administered by a ramshackle collection of tribunals to a cohesive system of courts imbued with the principle of the rule of law. But, as events like Brexit attest, the path of global constitutionalisation is neither direct nor certain to achieve a constitutionalised end. The backlash against the International Criminal Court (ICC) in Africa, moreover, demonstrates that the proliferation of such courts does not necessarily and of itself enhance justice or fairness within the global order. In this paper's final section, we apply the insights we have drawn from UK constitutional history in reflecting upon prominent clashes between international tribunals, including the disputed nature of the control test for state responsibility, the forum shopping within international environmental law and the opposition of the European Court of Justice (CJEU) to EU accession to the European Convention on Human Rights (ECHR).
II. Theoretical and methodological considerations
Before we proceed to our substantive account of the interaction between fragmentation and constitutionalisation, we must explain its theoretical and methodological foundations. In this section, we first outline the relevant elements of global constitutionalisation and fragmentation theories and develop our understanding of their interrelationship before moving to the historical account of courts in the UK. Thereafter, we explain how we can draw defensible conclusions from an analysis that spans the international, regional and domestic levels of governance given the distinct nature of these levels of governance.
2.1 Constitutionalisation and fragmentation
No single conceptual framework captures the complexity of contemporary global governance (Kennedy, Reference Kennedy2008).Footnote 2 Constitutionalisation and fragmentation theories, however, are often presented as conflicting accounts of the global legal order's development. Constitutionalisation theorists argue that the global legal order is undergoing a shift from a horizontal and consent-based system to a structured order embodying core constitutional norms (Fassbender, Reference Fassbender1998; Klabbers et al., Reference Klabbers, Peters and Ulfstein2009). Whilst Neil Walker maintains that the term constitutional usually connotes ‘a mature rule-based or legal order’ (Walker, Reference Walker2008, p. 526), this school of thought fractures when it comes to enunciating the features of constitutionalised global governance. There are as many different visions of a global constitution, and the explanations of the current degree of progress towards its achievement, as there are global constitutionalisation theorists. Constitutionalisation's adherents differ in their accounts of a ‘post-Westphalia world’ (Walker, Reference Walker, Weiler and Wind2003, p. 53) precisely because the global legal order's structure and its underlying principles are still ‘emerging’ (de Wet, Reference de Wet2006, p. 51). Fragmentation theory, by contrast, focuses upon the relationships between general international law and the ever expanding number of specialised areas under its superstructure. Whereas some areas, including international humanitarian law, are the product of long history, others, including environmental law, are developing rapidly from more recent beginnings. Each new area of governance brings with it the potential for overlap and conflict with general international law and better established sectoral jurisdictions. As a result, the global order sags under the weight of ‘conflicting and multiplying jurisdictions, asserting the validity or persuasiveness of their rules, with no decider of last resort’ (Kennedy, Reference Kennedy2008, p. 848). The increasing number of international regimes and growing complexity of their interrelationships are considered antagonistic to the development of overarching constitutional principles.
We contend that the factionalism inspired by these accounts of global governance obscures the possibility of combining them into an overarching narrative that potentially directly contributes to substantive constitutionalism beyond the state. Even modest accounts of constitutionalisation have been criticised for attempting to wish a constitutional order into existence in the absence of ‘a definitive framework of implementation’ (Mani, Reference Mani, MacDonald and Johnston2005, p. 254).Footnote 3 Such critiques, derived from fragmentation-based accounts, identify a constitutionalised global legal order as unrealised and misdiagnose it as being unrealisable without a codified instrument. We offer no such model for constitutionalisation. Instead, we demonstrate how the proliferation of international courts and the competition between them, even if varying in intensity within the global legal order, is contributing to a shift away from a legal order characterised by governmental consent. Our approach presupposes no features of the constitutionalisation process beyond courts acting in an ‘autonomous’ manner, meaning that their adjudication cannot be explained purely as the product of narrow agency granted by state actors.Footnote 4 Judicial constitutionalisation involves both the construction of rules for managing conflict between competing tribunals and the incremental development of principles including legal certainty, the rule of law and the global separation of powers. Such interactions between tribunals contribute to the emergence of constitutional principles within the global legal order even in the absence of a formal effort to create a ‘global constitution’.Footnote 5
2.2 The global and the domestic
As for the divide between international and domestic governance orders, international law has been slow to impinge upon domestic constitutional thinking, especially in dualist countries. A.V. Dicey's influential writings hitched the study of the UK Constitution (‘all rules which … affect the distribution or the exercise of the sovereign power in the state’ (Dicey, Reference Dicey1915/1982, p. 22)) to the domestic realm (Simpson, Reference Simpson2001). He insisted that the UK Parliament's legislative capacity could not be restricted by international law. Long into the twentieth century, UK-based international lawyers were forced into anxious efforts to establish ‘that international law really was a positive system of law’ (Johnson, Reference Johnson1962, p. 432).Footnote 6 The first efforts towards a constitutional dialogue between the domestic and international levels did not emerge within UK scholarship until after the World War I, when Frederick Pollock claimed that the League of Nations Covenant confounded ‘the insular doctrine lately rather prevalent’ by demonstrating that there ‘really is such a thing as international law’ (Pollock, Reference Pollock1920, p. 90).Footnote 7 H.L.A. Hart's influential rejection of international law as a legal system further undermined these efforts (Hart, Reference Hart1961).Footnote 8 Only with the creation of international bodies, such as the EU, with powers to compel action by ‘sovereign’ states, would Diceyan orthodoxy begin to erode.Footnote 9 Requirements that rules be stable and certain likewise provide for much less of a distinction between domestic and international legal orders than was the case a century ago.Footnote 10 Even then, Pollock appreciated that ‘[t]here is no system of law, codified or uncodified, in which one may not find many unsettled questions' (Pollock, Reference Pollock1920, p. 29). When few contemporary constitutional theorists seek a single sovereign source of authority within governance orders,Footnote 11 instead evaluating whether the ‘organs participating in constitutional politics are brought under legal rules' (Arato, Reference Arato2009, p. 428), international and domestic governance orders are increasingly susceptible to comparative analysis.
As the global legal order became increasingly juridified and interconnected, its complexity threatened the coherence attained by nineteenth-century international law, when fewer than 100 states dealt directly with each other in an imperialist setting. In other words, the global legal order's superstructure has expanded beyond the capacity of consent-based accounts of its foundations. Even so, many states tenaciously cling to external aspects of their sovereignty, generating an obstinacy towards global governance structures that becomes problematic as ever more powers are vested in a range of non-state actors, including courts and tribunals (O'Donoghue, Reference O'Donoghue2013). If this upheaval has in some ways challenged ‘the constitutional coherence of national law’, as the International Law Commission (ILC) Report on Fragmentation asserts, this effect ‘has been counterbalanced by the contextual responsiveness and functionality of the emerging (moderate) pluralism’.Footnote 12 Notwithstanding efforts at mitigation, this friction fuels the global constitutionalisation and fragmentation debates.
In the next sections, we examine the UK's constitutional history and employ it to generate lessons for fragmented global constitutionalisation. Although direct comparisons across different levels of governance have intermittently excited academic debate, they are often fraught with difficulty.Footnote 13 Today's attempts to up-scale or transplant EU arrangements to global and other regional orders (Kennedy, Reference Kennedy2008) draw scorn similar to that heaped on efforts after Versailles to compare the creation of the League of Nations to the founding of the US (Butler, Reference Butler1920). As Andreas Paulus explains, global and domestic governance orders remain distinct because international law has to take into account a range of influences alien to domestic orders, including ‘the interstate level of classical international law and the individual level of world citizens’ (Paulus, Reference Paulus, Dunoff and Trachtman2009, p. 72). UK–global comparisons remain fruitful, however, as both orders arguably seek to realise constitutional governance within partially codified structures. The UK's ‘constantly changing’ (Griffith, Reference Griffith2000, p. 165) constitutional order is therefore distinct from domestic constitutions that involve ‘a selection of legal rules, usually embodied in a single document’ (Ridley, Reference Ridley1966, p. 317). Whilst the ‘murkiness’ inherent in the UK's arrangements has provoked claims that the UK is not a ‘true’ constitutionalised order (Grimm, Reference Grimm, Dobner and Loughlin2010, p. 11), such approaches risk prioritising form over substance. Christian Tomuschat supplies a necessary countervailing impulse to Paulus when he warns that attaching the epithet ‘constitution’ only to a fully codified body of higher-order law risks neglecting alternative models of constitutionalised order (Tomuschat, Reference Tomuschat1993, p. 217).
David Kennedy identifies a further risk in domestic–global constitutional comparisons; people already ‘come to these debates carrying baggage from their national constitutional traditions’ (Kennedy, Reference Kennedy2008, p. 854).Footnote 14 This observation may seem particularly apposite when many commentators characterise the UK Constitution's uncodified arrangements as uniquely ‘preservative’ in nature (Sunstein, Reference Sunstein2002, p. 67).Footnote 15 And yet, even in the context of a departure as radical as South Africa's post-apartheid Constitution, its Constitutional Court acknowledged that the new order ‘retains from the past’ some ‘acceptable’ elements of the antecedent apartheid order.Footnote 16 No uncodified system of governance, being the culmination of multiple constitutionally significant events, with others still to come, can be crudely categorised as forward or backward looking (Loughlin, Reference Loughlin2003). Our analysis nonetheless takes the precaution of eschewing direct comparisons between substantive constitutional arrangements, instead comparing the processes of constitutionalisation.Footnote 17 Fragmentation is situated as an experience common to the development of both orders, with the different stages of their development enhancing the potential rewards for comparative analysis.
The domestic and international spheres are not sealed from each other's influence, much as individual domestic jurisdictions can experience transnational pulls.Footnote 18 B.S. Chimni has gone so far as to suggest that the UN implicitly encourages ‘formal compliance with the norms of liberal democracy’, thereby maintaining and fostering the spread of the ‘neo-liberal state’ (Chimni, Reference Chimni2004, p. 15). Whilst this remains something of an overstatement when formal requirements for UN membership have long given way to efforts to secure the Charter's universal reach, from their inception, new states experience compliance pull; they ‘must satisfy certain expectations to secure the recognition and acceptance of the international community, and these expectations are increasingly constitutional in nature’ (Law amd Versteeg, Reference Law and Versteeg2011, p. 1179).Footnote 19 The emergence of non-state actors within international law, the development of informal and formal points of governance beyond interstate arrangements, and the proliferation of law and courts at the global and regional levels have therefore combined to leave the sovereign state in flux. When the global and domestic orders are so intertwined, a working account of global constitutionalisation must attempt to reach across these levels of governance. In the following section, we therefore take stock of the role played by fragmentation in the UK's long constitutionalisation process.
III. Fragmented courts within the UK's constitutionalisation process
The constitutional history, from the mediaeval period onwards, of the UK and its forerunners illustrates how the remit of courts functions as a barometer of a governance order's legalisation and even constitutionalisation. Though few contemporary theorists draw upon the UK constitutional order's fragmented past,Footnote 20 in 1918, it provided a parallel for the historian Albert Pollard in his advocacy of a League of Nations.Footnote 21 He considered how the twelfth-century monarch Henry II, attempting to restore order to his kingdom after protracted turmoil, was hampered by the absence of institutions capable of addressing disputes that had hitherto been settled by violence. Undaunted, Henry ‘did not attempt to create a new constitution’, but rather introduced legal writs that prevented seizures of land by force and permitted claimants to argue their case before a new royal court (Pollard, Reference Pollard1918, p. 53).Footnote 22 Pollard argued that, with the success of these instruments of ‘royal justice’, ‘the habit of argument slowly superseded the custom of fighting’ (Pollard, Reference Pollard1918, p. 54). Although the English legal system did not begin in an ordered form, based upon ‘definite courts with reams of rules and regulations’ (Pollard, Reference Pollard1918, p. 56), Pollard insisted that legalisation gradually took hold. From these beginnings, Pollard portrayed England as rapidly progressing towards a fully constitutionalised order (Pollard, Reference Pollard1918, p. 56).
Contemporary international lawyers believed that Pollard's ‘parallel with the League of Nations … is extremely close’ (Butler, Reference Butler1920, p. 41), for, whilst the League was far from a global constitutional order, it nonetheless featured ground-breaking mechanisms for securing the adjudicated settlement of international disputes. Pollard's Whiggish prolepsis, however, hurries over the intense power struggles between actors and institutions that followed, obscuring the significance of fragmentation within the history of the English legal system.Footnote 23 Royal tribunals jostled for authority with feudal, manorial, urban and ecclesiastical courts, usurping these rival jurisdictions ‘gradually but relentlessly’ (Flahiff, Reference Flahiff1944, p. 261) over the following centuries (Hogue, Reference Hogue1966). Clashes between the secular and ecclesiastical courts (Maitland, Reference Maitland1919) descended into particularly protracted struggles for supremacy: ‘The secular courts would protect their jurisdiction by writs of prohibition, which, however, were difficult to apply and even more difficult to enforce. The ecclesiastical courts, if sufficiently provoked, could excommunicate royal judges’ (Berman, Reference Berman1983, p. 531). Whilst the Royal Courts would ultimately gain ‘superintendency’ (Adolphus, Reference Adolphus1818, p. 427) over their rivals, this fragmented epoch was vital to the governance order's development – a realisation easily missed if we skip to the current arrangements and neglect ‘the legal institutions which didn't make the grade into today's structure’ (Barnes, Reference Barnes1961, p. 1). Modern conceptions of ‘sovereignty’ cannot be grafted onto this extended fragmented era to exclude comparison to the global legal order.Footnote 24
Soon after the creation of Henry II's writs, even the Royal Courts fragmented into specialised jurisdictions.Footnote 25 The King's Bench ‘had a general superintendence over criminal justice’, could exercise oversight of the actions of Crown officeholders and ‘could entertain any civil action in which the defendant was charged with a breach of the king's peace’ (Maitland, Reference Maitland1919, p. 134). The Court of Common Pleas dealt with ‘all cases between subject and subject’ (Maitland, Reference Maitland1919, p. 135). The Court of Exchequer, from ‘ambiguous’ beginnings relating to royal revenue, came to administer cases relating to debt (Maitland, Reference Maitland1919, p. 135). The relationship between these courts was not static, with Frederic Maitland explaining how professional interests drove a centuries-long struggle for predominance: ‘[Much] of our legal history is to be explained by the fact that for centuries the judges were paid by fees; more business therefore meant more money, and they had a keen interest in attracting cases to their courts’ (Maitland, Reference Maitland1919, p. 135). These courts vied amongst themselves and with later tribunals including the Court of Chancery (administering equity as opposed to common law) and, more infamously, the Star Chamber. Whilst the Court of Common Pleas saw its jurisdiction undercut by its rivals (Brougham, Reference Brougham1838), Chancery would prove much more adept at resisting attempts by the King's Bench to establish its dominance (Adams, Reference Adams1921). Equity's ‘procedural advantages’ were such that common-law judges came to fear that Chancery would usurp their institutions (Stringham and Zywicki, Reference Stringham and Zywicki2011, p. 512). In 1616, James I had to personally intervene in this power struggle, maintaining the Chancery's ability to prevent the enforcement of a King's Bench judgment obtained by inequitable means.Footnote 26 This intervention prevented equity from being subsumed into the remit of the King's Bench, maintaining divisions between the common law and equity that would persist until the 1870s. Long after the UK governance order's constitutionalisation, the legal system of England and Wales remained a tapestry of overlapping and fragmented jurisdictions.
Although infighting amongst courts would appear to be endemic as a hierarchical order emerges, these centuries of fragmentation would subsequently be all but forgotten. Modern judges ordinarily dress up the historic infighting as evidence that ‘[t]he common law courts have always been vigilant and jealous of any attempt to usurp or encroach on their jurisdiction’.Footnote 27 But fragmentation had real benefits for the maturing constitutional order. At times of major upheaval, the existence of rival tribunals as some of the order's most prominent ‘constituted bodies’ (Arato, Reference Arato2000, p. 39) helped to maintain a degree of constitutional continuity. For example, the Crown's use of the Star Chamber to expedite its legal business became a source of controversy in the early seventeenth century. Discontent with this tribunal hardened opposition to Charles I in the prelude to the Civil Wars of the 1640s (Allison, Reference Allison2007). So intense was this opprobrium that, to this day, commentators ‘never tire of affixing the appellation “Star Chamber” to any procedure or institution which rightly or wrongly appears to deny justice or to vitiate due process’ (Barnes, Reference Barnes1961, p. 2). Within a still fragmented system, however, it could be abolished without unbalancing the constitutional order.Footnote 28 Existing tribunals developed their jurisdictions to compensate for its demise and, despite pressure for radical reform of the judiciary, ‘the Westminster courts were in general little disrupted’ by the fighting (Cockburn, Reference Cockburn1972, p. 241). For the English legal system, the Civil Wars did not, therefore, amount to a ‘hurricane … [sweeping] away all institutions of the ancien régime’ (Arendt, Reference Arendt1965/1990, p. 181).
The fragmented era also contributed to constitutional principles. Perhaps the most famous example of fragmentation giving rise to fundamental principle is found in the royal avowal in Magna Carta's Clause 40 that ‘[t]o no one will we sell, to no one will we refuse or delay, right or justice’.Footnote 29 This provision is often regarded as the root of today's right to a fair hearing, with popular accounts explaining the development of the UK's constitutional order as a process by which ‘[l]aws which had been made to defend barons … [were] extended as like rights to everyone else’ (Wilson, Reference Wilson2010, p. 90). The barons’ immediate concern, however, had not been to precipitate a ‘constitutional moment’, but to protect their own interests in a fragmented legal order that had seen royal writs ‘freely sold to litigants’ (Maitland, Reference Maitland1919, p. 113) and, more specifically, to parties who had been unsuccessful in actions before the barons’ manorial courts. Clause 40's immediate purpose is better understood if read alongside Clause 34: ‘The writ called praecipe shall not be issued for the future, so as to deprive a free man of his court.’ In these provisions, the barons were attempting to protect the operation of their manorial courts and the revenues thereby gained. Maitland notes that this goal was in part achieved, for ‘in cases of land’ this development ‘puts a check on the acquisitiveness of the royal court’ (Maitland, Reference Maitland1919, p. 113). But, in the longer run, displacing this writ did not prevent the royal tribunals from gaining the upper hand over manorial courts (Maitland, Reference Maitland1919).Footnote 30 Later constitutionally significant decisions often involved clashes over the preliminary issue of which royal court had jurisdiction to hear the claim. In Bushel's Case,Footnote 31 a landmark decision on the role of juries, Vaughan C.J. complained that ‘this Court is for Common Pleas, between subject and subject, but in a criminal case the plea is between the King and his prisoner’.Footnote 32 His fellow judges were less concerned with the jurisdictional issue than with the substance of the claim and ultimately established ‘that no judge can fine or imprison a jury for any verdict they may give, no matter how wrong the judge may think it to be’ (Denning, Reference Denning1984, p. 150). Adam Smith recognised the importance of these institutional rivalries for the development of due process: ‘… each court endeavoured, by superior dispatch and impartiality, to draw to itself as many causes as it could’ (Smith, Reference Smith1776/1976, p. 720).
One potential side effect of a fragmented order is that some important issues can be left unsettled, stuck in a constitutional ‘no man's land’ between competing jurisdictions. As early as the reign of Richard II, efforts were made to separate military law, administered by the Court of the Constable and the Marshal, from the jurisdictions of the existing Royal Courts.Footnote 33 Once a separate system for maintaining military discipline developed, considerable doubt surrounded whether the power persisted to subject civilians to military jurisdiction even in time of revolt or invasion. This uncertainty resulted from both long periods in which martial law was not required and the development on a case-by-case basis of the rule of law as a constitutional principle. The Wolfe Tone caseFootnote 34 arose following the capture of a leader of the failed United Irishmen rebellion in 1798. When Tone was sentenced to death by court-martial, his father sought a writ of habeas corpus for his release before the Irish King's Bench. To enable it to consider the power of a military court to try a civilian whilst the ordinary courts remained open, the King's Bench ordered the military authorities to stay Tone's execution. Although Tone died of self-inflicted wounds before the military could deal with this intervention, a century later, the episode led Maitland to conclude that, if, during a rebellion, ‘one of the rebels captured, there is no court that can try him save the ordinary criminal courts of the country’ (Maitland, Reference Maitland1919, p. 492). Only parliament could ‘override’ this constitutional principle (Jowell, Reference Jowell1999, pp. 458–459), as it would come to do in response to twentieth-century crises. Parliament's mandate of alternative legal arrangements in emergency situations, however, did not always settle these jurisdictional disputes. The struggle between military and civilian courts was reignited when, in Egan v. Macready,Footnote 35 a military tribunal sentenced a civilian to death during the Irish War of Independence. When O'Connor M.R., a civilian judge, accepted a challenge against this ruling on the basis that the military authorities could not ‘sweep away the limitations as to punishment’,Footnote 36 the military commander threatened to imprison anyone, including the judge, who interfered with his activities (Macready, Reference Macready1925).Footnote 37 The development of legal constraints upon the executive within the UK's constitutional order, and the degree to which the rule of law remains a contested concept, can therefore be traced in part to historic fragmentation.
Tying together the legal order's fragmented offshoots took hundreds of years. Whereas a multiplicity of tribunals had once advanced constitutionalisation, by the nineteenth century, Lord Brougham considered that these competing jurisdictions no longer served a useful purpose:
‘The first state of the Courts being that of distinct jurisdiction, then of course this separation of provinces was praised; afterwards, all distinction became obsolete, and then the conflict and competition were as much commended: and with far greater reason, if the competition were real; but it is almost purely speculative.’ (Brougham, Reference Brougham1838, p. 327)
For Brougham, ‘real’ competition on issues of legal principle had given way to petty squabbles over jurisdiction. The disadvantages of fragmentation within the legal system had come to outweigh its benefits. Nonetheless, a further half-century would elapse before the Judicature Acts integrated the fragmented court structures into a unified structure. These reforms exemplify the difficulties associated with merger processes. They were the result not of one paradigm-altering reform moment, but of the gradual appreciation of the problems resultant from fragmentation. As such, they encountered considerable resistance from legal professionals with vested interests in the existing system (Lobban, Reference Lobban2004). One risk for such structural reforms within a legal order is the possibility of loose ends. Even after the Judicature Acts, practical distinctions remained between equity and the common law (Polden, Reference Polden2002). Some near-moribund courts were left out of the merger settlement altogether. After over a century of disuse, the High Court of Chivalry (once tasked with dealing with martial law's application amongst myriad other causes of action) had to determine whether its jurisdiction still existed when its services were unexpectedly called upon.Footnote 38 Lord Goddard, noting that the Court ‘fell into disuse was because how its decisions are to be enforced is a matter of great doubt and obscurity’, nonetheless accepted that ‘whatever interval may have elapsed since its last sitting, there is no way so far as I know of putting an end to it save by an Act of Parliament’.Footnote 39 Extended processes of juridification do not, therefore, exhibit linear progression towards an inevitable conclusion. In the absence of an overarching constitutionalisation programme, vested interests and the need to accommodate both prominent and neglected institutions pose unique challenges. And, although these issues might be particularly acute in a centuries-old order, a global constitutionalisation process will ultimately have to address them and, in the next section, we turn to the debate on the fragmentation of the global legal order to consider whether echoes of UK constitutional history may be found.
IV. The fragmented global legal order
Fragmentation indicates that a legal order has matured beyond the point at which it is defined by consent-based obligations. If the UK's constitutional order is the product of a gradual and fragmented constitutionalisation process, during which multiple courts superintended overlapping areas of the law without a clear hierarchy or fixed jurisdictional boundaries, within modern domestic orders, fragmentation has largely been relegated to constitutional history. Fragmentation is nonetheless inevitable when a legal system develops in a non-ordered fashion and can generate a trajectory towards normative constitutionalisation. It remains a live issue within the emerging differentiated global legal order.Footnote 40
In the constitutional ferment of 1918, influential figures campaigned for a League of Nations that would, with one stroke, constitute an international constitutional order. The pamphlets of Frederick Pollock stand out for their combination of idealism and pragmatism. Pollock prized the impetus a unified and mandatory court system would bring to a nascent global legal order, arguing for a League Covenant ‘whose binding force must depend on the renouncement by every party to it, in some measure, of independent sovereign power, and in particular of the right to be judge in one's own cause’ (Pollock, Reference Pollock1920, p. 5). Pollock's grand vision for the rule of law underpinning global governance came unstuck when many statesFootnote 41 refused to grant the Permanent Court of International Justice (PCIJ) compulsory jurisdiction.Footnote 42 Undeterred, he had staked out a fall-back narrative that, whilst the global governance order would not imminently be able ‘to issue direct executive commands … such power will come later if it is not granted at first’ (Pollock, Reference Pollock1920, p. 7). Although the League did not provide a substantively constitutionalised order, these beginnings did, as Albert Pollard predicted, ‘foster international politics’, by which he meant encouraging further constitutionalisation (Pollard, Reference Pollard1918, p. 56).
Giving the example of the Postal UnionFootnote 43 and its imposition of particular rates for foreign post, Pollock noted that authority over aspects of governance had already shifted, notwithstanding the absence of any overarching global constitutional order (Pollock, Reference Pollock1921). The possibility of incremental international constitutionalisation might have been instinctively appealing to both Pollock and Pollard as scholars of UK constitutional history, but others began to identify the operation of tandem fragmenting and constitutionalising pressures. Even as World War II raged, Manley Hudson, a PCIJ judge, noted a groundswell of opinion that a ‘general international tribunal may not be adequate for local needs’ (Hudson, Reference Hudson1944, p. 171).Footnote 44 Soon after the war ended, efforts began to augment the UN framework with treaties covering, inter alia, human rights (European/American Convention on Human Rights/African Charter on Human and Peoples’ Rights), trade (WTO/NAFTA/ASEAN), the sea (UNCLOS) and foreign investment. In parts of the world, deeper regional governance orders were instituted (EU/AU/Eurasian Economic Union). Many of these orders feature judicalised dispute-settlement and interpretation mechanisms. Even in the context of bilateral investment treaties, where no overarching ‘order’ is immediately evident, the jurisdiction of the World Bank's International Centre for Settlement of Investment Disputes (ICSID) is regularly stipulated (Buergenthal, Reference Buergenthal2001). Thus, global legalisation serviced by a range of institutions, and with it the beginnings of constitutionalisation, came to cover interactions in numerous substantive policy areas. Pollock's ‘coming rule of law’ (Pollock, Reference Pollock1921, p. 3) may have been delayed, but this does not necessarily mean it has been averted.
Rather than awaiting some ‘constitutional moment’, we must evaluate what this fragmentation tells us about the state of constitutionalisation within a global governance order and whether constitutional concepts can survive and take root without a global constitutional culture capable of perpetuating its foundation story to the point at which it gains widespread acceptance. As is evident from the UK's history, claims of horizontal equality amongst multifarious courts may in the short term have a deleterious effect on the rule of law and impose significant transaction costs. The disadvantages of such unsystematic developments for the global order, however, should not be overplayed: ‘The benefits of the alternative, multiple forums, are worth the possible adverse consequences that may contribute to less coherence’ (Charney, Reference Charney1996, p. 74). The UK's history also illustrates how tribunals enliven a still maturing order, giving substance to core principles like the rule of law in particular fields even when, in others, they are in danger of being honoured in the breach. Much like the High Court of Chivalry, the International Criminal Tribunal for the former Yugoslavia (ICTY) had to assess the legality of its jurisdiction in the Tadić case.Footnote 45 In determining that the UN Security Council had acted in accordance with the UN Charter, the ICTY was really asserting that its creation complied with a global rule of law, highlighting the contribution which specialist tribunals can make to the global order. In recent years, many specialised tribunals, including the World Trade Organisation's Dispute Settlement Body (WTODSB), the International Tribunal for the Law of the Sea (ITLOS) and the CJEU, have all developed the operation of general international environmental law despite their decisions being primarily intended to address the priorities of their own legal orders.Footnote 46 The absence of a hierarchal court structure generates space for experimentation by tribunals, even if the consequent legal developments are not always neat.
If some ‘freewheeling’ jurisprudence enhanced the prominence of courts within the UK's constitutionalisation process, judicial caution has lessened the influence of judicial decisions in what Ronald Dworkin described as a ‘comparable formative period’ for international law (Reference Dworkin2013, pp. 29–30). The International Court of Justice (ICJ) has not always undertaken the responsibilities that adhere to its billing as the World Court. In particular, no court that flaunts its position as ‘the only judicial body vested with universal and general jurisdiction’Footnote 47 should abjure, as the ICJ long did, from citing the judgments of other tribunals.Footnote 48 Bruno Simma, whilst an ICJ judge, suggested that his fellow judges would avoid the risk of clashes with other tribunals even to the detriment of their reasoning:
‘[I]f there are international institutions that are constantly and painstakingly aware of the necessity to preserve the coherence of international law, it is the international courts and tribunals. Such caution might sometimes come at the price of dodging issues that would very much have deserved to be tackled.’ (Simma, Reference Simma2003–2004, p. 846)Footnote 49
Whilst this practice was not distinct from that of many other international tribunals (Buergenthal, Reference Buergenthal2001), and is in decline,Footnote 50 such an important court holding itself aloof for so long dampened fragmentation's potential to foster fundamental principles.
The ICJ's volte face over citing other tribunals can be linked to its concerns over the impact of the lex specialis doctrine, which has long operated to maintain doctrinal coherence in international law when multiple horizontal areas of law apply to the same dispute (Simma and Pulkowski, Reference Simma and Pulkowski2006). Employed both as an interpretative tool and a substantive rule, lex specialis enables a more specific legal framework to trump its more general counterpart,Footnote 51 thereby permitting specialist tribunals to remodel general rules within their remit (Charney, Reference Charney1998). When a small number of specialist tribunals existed and direct state consent was necessary for them to exercise jurisdiction, lex specialis smoothed over potential conflicts between specialist and general courts. The doctrine did not, however, mitigate conflicts that arose between tribunals that both claimed specialist authorityFootnote 52 and, as the range of international tribunals expanded, so too did the risk that ‘the same rule of law might be given different interpretations in different cases’.Footnote 53 ICJ President Gilbert Guillaume concluded that reliance upon the doctrine might accelerate fragmentation and that ‘[f]or the purpose of maintaining the unity of the law, the various existing courts … could … be empowered in certain cases … to request advisory opinions from the International Court of Justice’.Footnote 54 In other words, he was advocating an enhanced role for the ICJ as an apex court to respond to the needs of a no longer horizontal system in which inter-tribunal relations were becoming increasingly important (Guillaume, Reference Guillaume1995).Footnote 55
Eyal Benvenisti and George Downs suggest three difficulties with the multiplicity of courts at the global level beyond doctrinal incoherence: first, weaker states are less able to engage in the resultant procedural cross-fighting; second, such circumstances enable stronger states to dictate their venue of choice while circumscribing the forum's authority; and, third, a fragmentation obscures intentionality, thereby enabling more powerful states to evade responsibility for the deficiencies in the global legal order that they played a prominent role in establishing (Benvenisti and Downs, Reference Benvenisti and Downs2007–2008). Their critique suggests that the current proliferation of tribunals and the attendant fragmentation could be but a fleeting moment of false grandeur within a global governance order that remains dominated by a few powerful state actors. We do not dispute that the short-term impact of fragmentation often appears capricious and that the adverse impacts have often been disproportionately experienced by the Global South (Chimni, Reference Chimni2007). Judicial institutions can rise or fall into virtual desuetude for seemingly trivial reasons, such as institutional novelty. The waning importance and use of the Permanent Court of Arbitration (PCA) following the PCIJ's creation demonstrated a temporary preference for judicial over arbitrarial decision-making (Reinalda, Reference Reinalda2009). Perceptions over performance also matter (Benvenisti and Downs, Reference Benvenisti and Downs2007–2008).Footnote 56 Disillusionment with the ICJ amongst post-colonial states followed the South West Africa case,Footnote 57 which pitted self-determination arguments against the remnants of colonialism and the mandate-territory system. The Court's rejection of Ethiopia and Liberia's challenge to South Africa's colonisation of its neighbour on an issue of standing was perceived to favour colonial powers, thereby illustrating the impact of intentionality upon a tribunal's operation. This inherent instability in the disorganised global system, however, gives rise to multiple decision points at which ruptures in the European origins of international law could occur. The key factor at such junctures is whether the international tribunal is sufficiently secure to resist any subsequent backlash by developed countries. The WTO's dispute-settlement mechanisms, for example, have recently seen a decline in the number of disputes raised before them.Footnote 58 Whilst this drop may in part be a by-product of the difficulties that have plagued WTO negotiations, it could also be mark a reaction by developed countries against WTO jurisprudence that they perceive as unfavourable. Disputes such as EC–Bananas III, for example, saw the WTO Appellate Body accept that Member States can issue a claim in relation to either the direct or indirect economic effects of a policy,Footnote 59 substantially broadening the scope for developing countries to mount challenges. The ongoing negotiations over the Transatlantic Trade and Investment Partnership, with its facility for distinct adjudication panels, could therefore amount to efforts to sideline the WTO and its institutions by regionalising the multilateral trade system (Messenger, Reference Messenger2015). Even if ruptures like this are ultimately sealed, they indicate that fragmentation cannot be simplistically characterised as a reactionary force within international law.
V. The path of fragmented global constitutionalisation perceived
5.1 Four facets of fragmented constitutionalisation
The fragmented historical relationships between judicial institutions within the UK’s legal systems allow us to perceive, as if through a mirror, and darkly, some of the likely features of fragmented global constitutionalisation. First, international courts, within and sometimes beyond the limitations of their formal jurisdiction, will strive to preserve their competences. This does not necessarily mean tribunals will be locked in a perpetual state of struggle. A tribunal's awareness of the complexity of the global order can also mitigate tensions with other institutions and contribute to a constitutionalisation process. In Hassan,Footnote 60 the European Court of Human Rights (ECtHR) was obliged to consider the interaction between its own human rights jurisdiction and rules of international humanitarian law developed by the ICJ. Following a careful review of relevant ICJ decisions,Footnote 61 the ECtHR drew upon the ICJ's acknowledgement that international human rights law and international humanitarian law may apply concurrentlyFootnote 62 to develop its jurisprudence on the geographical reach of the ECHR regime: ‘… the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part.’Footnote 63 Many other international tribunals, including the WTODSB,Footnote 64 explicitly subject their specialised jurisdictions to the broader framework of international law as a means of bolstering their legitimacy.
In other circumstances, such as the ICTY's departure from ICJ jurisprudenceFootnote 65 on the control test for state responsibility in Tadić,Footnote 66 a clash with the ICJ enabled the specialist tribunal to assert its independent capacity to develop concepts within international law of particular relevance to its remit. The premium that the ICJ has historically placed upon inter-institutional comity did not prevent it from subsequently reasserting its original test.Footnote 67 Seen through the prism of the institutional rivalries prevalent during the UK's constitutional development, such struggles and accommodations are inevitable occurrences as the unstructured global legal order matures. The variety of actors (states, individuals, corporations, non-governmental organisations (NGOs) and diasporas) claiming different sets of rights and obligations within this fragmented order contributes to the need for international tribunals to rely on claims deriving from either hierarchy or specialisation to support their interpretations of international law. The ultimate success of one competing test over the other, however, is unlikely to be immediately apparent. The rival effective and overall control tests for state responsibility both stand until one of the protagonist tribunals backs down or until other tribunals lend decisive support to one test over the other. One of the tests will likely gain acceptance,Footnote 68 with this outcome determining not only when a state may be held responsible for the actions of non-state actor,Footnote 69 but also when a non-state actor can be held liable under international criminal law.Footnote 70
Such disputes are not mere theatre; in this instance, the distinction determines the direction of international criminal law and has provoked considerable critical evaluation of the rival tests (Olásolo, Reference Olásolo2009).Footnote 71 UK constitutional history's second lesson for the global order is therefore that jurisdictional struggles between institutions have the potential to elucidate fundamental constitutional principles underpinning the order. In the era before intense fragmentation, the ICJ's eagerness to recognise erga omnes norms, and its reticence towards jus cogens norms,Footnote 72 generated considerable debate over the substantive content of these respective norms, which have both been characterised as central to the global constitutionalisation process (Simma, Reference Simma, Tams and Sloan2013). Jus cogens norms have been characterised as ‘the first stepping-stones towards an eventual build-up of international constitutionalism’ (Mani, Reference Mani, MacDonald and Johnston2005, p. 253), meaning that their prolonged marginalisation in ICJ jurisprudence risks undermining constitutionalisation (de Wet and Vidmar, Reference de Wet and Vidmar2013). Fragmentation, however, is challenging the hitherto horizontal nature of international law. The success of specialist human rights tribunals, and their jurisprudence touching upon ‘the overriding importance’ of jus cogens,Footnote 73 has contributed to pushing the ICJ towards referencing, if not yet relying upon, these norms.Footnote 74 Multi-forum litigation, which might appear particularly threatening to international law's coherence, can accelerate this development of fundamental principles. The engagement of multiple tribunals in the MOX Plant case,Footnote 75 for example, increased concerns that jurisdictional uncertainty in environmental law was becoming pervasive, but the institutions involved were ultimately able to resolve the jurisdictional dilemmas facing them (Sands and Peel, Reference Sands and Peel2012). The litigation not only clarified the relationship between the tribunals involved, but saw the tentative development of the precautionary principle as a key feature of international environmental law. Even when multiple decisions produce outcomes that seem difficult to reconcile, in the short run potentially affecting stakeholder confidence in tribunals and certainty of jurisdiction, such diverging jurisprudence might ultimately enhance understanding of the substantive legal issues in question. Of course, the benefits of multiple actions in terms of substantive developments in international tribunals’ jurisprudence will not always outweigh the costs.
The third illustrative lesson the UK provides for global fragmentation is that, within fragmented orders, levels of use are critical to a jurisdiction's development. Swathes of public international law have not been subject to a specialist jurisdiction and are therefore rarely litigated. These fallow areas can in part be attributed to the global legal order's historical simplicity; until the PCA's creation in 1899, interstate negotiation and good offices held sway (but they also demonstrate, to paraphrase Louis Henkin, that the majority of international law functions most of the time) (Henkin, Reference Henkin1979). Novel litigation can lead to the development of previously dormant aspects of a tribunal's jurisdiction and may require the tribunal to realign itself and its jurisprudence. The wrangling between Libya and the ICC over the trial of Saif Gaddafi indicates how jurisdictional claims can be resolved by the courts themselves, in this instance by developing the doctrine of complementarily in international criminal law.Footnote 76 Courts are always rising and falling within fragmented legal orders, as litigants test the range of available fora in their search for a desired outcome. Disputes often assume a multi-institutional character when a legal issue is novel and the positions of international tribunals are consequently fluid.Footnote 77 The Australian Tobacco Plain Packaging dispute spilled from the Australian High Court into the WTODSB and ICSID.Footnote 78 Mikhail Khodorkovsky's arrest and criminal trial in Russia have resulted in cases before the ECtHR, the PCA and the Arbitration Institute of the Stockholm Chamber of Commerce.Footnote 79 The Chevron and Ecuador dispute regarding responsibility for environmental pollution has now been heard before domestic courts in the US and Ecuador, the PCA and the Inter-American Commission on Human Rights.Footnote 80
In many instances of multi-forum litigation, each claim forms part of an overall dispute, but different international tribunals might well be dealing with different aspects of that dispute, dependent on their remit and standing arrangements. The Chagos islands litigation, for example, concerns the UK's administration of the British Indian Ocean Territory for defence purposes. One case reached the ECtHR based upon the expulsion and continued exclusion of the islands inhabitants,Footnote 81 while another reached the PCA as a result of Mauritius’ opposition to the UK's declaration of a Marine Protected Area.Footnote 82 Although the UK won the former case and lost the latter, the subject matter of the claims was sufficiently distinct to allow the two tribunals sufficient freedom of action to reach their own decisions without conflict. The lack of scope for international tribunals to alter their remit, procedure or standing requirements to make themselves more attractive to claimants helps to prevent aggressive efforts by particular tribunals to attract litigation.Footnote 83 Powerful institutions can, however, take steps to secure their position against rivals. In Commission v. Ireland, part of the MOX Plant litigation, the CJEU attempted to prevent EU Member States from using alternative international tribunals when a dispute touched upon EU law by emphasising that the states owed a ‘duty of loyalty to the judicial system created by the Community Treaties’.Footnote 84 For now, the CJEU maintains this position through the unique depth of the EU's legal order. It remains to be seen whether such claims can be sustained in the aftermath of Brexit, an event that could encourage some of the remaining EU Member States to become more assertive of their ability to choose alternate fora for disputes and that could also embolden rival tribunals to make rulings at variance with the CJEU if they hear such cases.Footnote 85 The possible scope for renewed conflict between tribunals after Brexit once again illustrates that the development of a global legal order does not involve a linear progression from fragmentation to constitutionalisation, but the intertwining of these concepts. If multi-forum litigation becomes ubiquitous, positive steps may ultimately be required to structure tribunal relationships in place of the current ad hoc judicial adjustments, but any such agreements will be more likely to be effective if they reflect the understandings that courts have already developed regarding their respective purviews.
Fourth, in the absence of a centralised political process, the relationships between courts will develop over time and on a case-by-case basis. Whilst specialised tribunals do not in theory constrain the remit of general institutions, ‘interjudicial dialogue’ (Burke-White, Reference Burke-White2004, p. 973) has in practice produced more nuanced outcomes. In Belilos,Footnote 86 the ECtHR actively sought to distinguish ICJ jurisprudence on the opposability of reservations to human rights treaties. The same issue was at stake in Loizidou Footnote 87 where Strasbourg, having considered the ICJ's interstate remit,Footnote 88 built on Belilos by asserting that ‘a fundamental difference in the role and purpose of the respective tribunals … provides a compelling basis for distinguishing Convention practice from that of the International Court’.Footnote 89 Strasbourg thereby asserted that its own jurisdiction countered possible ICJ censure. The ILC would ultimately accept that this strand of ECtHR jurisprudence constituted a manifestation of the lex specialis principle.Footnote 90 The need for specialist tribunals to justify such divergent practice indicates the degree to which this principle is warping under the increasing intensity of fragmentation. Not all Strasbourg interactions with ICJ case-law, however, attempt to finesse the latter court's jurisprudence; the subject matter at issue can pull the relationship between tribunals in different directions. In Behrami,Footnote 91 Strasbourg refused to accept human rights challenges where the impugned action, by international forces maintaining order in Kosovo, was based upon the UN's mission ‘to secure international peace and security’.Footnote 92 This approach prevented a conflict between the ECtHR and the ICJ regarding the oversight of UN operations.Footnote 93
The CJEU's Kadi Footnote 94 jurisprudence on the necessity of due process in the context of the EU's application of the UN's counter-terrorism asset-freezing regime provides the most prominent example of the adaptation of lex specialis, with the position taken by a specialist regional tribunal feeding back into the development of the general part of international law:
‘[T]he Courts of the European Union must … ensure the review … of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order, including review of such measures as are designed to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.’Footnote 95
This approach does not ‘claim complete autarky’ from general international law for EU law (Walker, Reference Walker2015), but rather foregrounds the exceptionally important concerns that have necessitated the CJEU's distinct approach for the attention of other judicial institutions. The Kadi decisions not only alter the relationship between EU law and wider international law; the divide they exposed between these legal orders deepened autochthonous principles within EU law (de Búrca, Reference de Búrca2010). The CJEU's stand on due process rights provoked wider reform within UN-mandated asset-freezing, including the introduction of independent oversight.Footnote 96 A broader debate on whether the ongoing court-centred constitutionalisation process can continue without a political process that enhances democratic legitimacy within global governance may be increasingly desirable, but such jurisprudence is capable of incrementally restructuring the global legal order into a constitutionalised system.
5.2 The four facets in practice: Opinion 2/13
A case that showcases these four facets of fragmented constitutionalisation is the CJEU's refusal, in Opinion 2/13,Footnote 97 to accept that the EU can accede to the ECHR on the terms of the Draft Agreement on Accession.Footnote 98 This refusal does not sit easily with Court's participation in the Agreement's drafting,Footnote 99 or with the fact that its refusal to countenance accession two decades earlier in Opinion 2/94 Footnote 100 was based upon a lack of EU competence to do so. Although it might be suggested that Opinion 2/13 is of regional significance but little wider importance for the global legal order, the CJEU and the ECtHR have been standard-bearers for judicial constitutionalisation. Of the examples already discussed, Kadi, Belilos and the MOX Plant cases demonstrate not only the importance of these courts, but also their propensity to be drawn into conflict with each other and other tribunals. Although the Lisbon Treaty sought to address this issue by requiring the EU to accede to the ECHR,Footnote 101 opponents of international constitutionalisation have delighted at the CJEU's efforts to stymie the integration of these two legal orders. In the wake of Opinion 2/13, the UK's then Lord Chancellor (and subsequently leading Brexit campaigner) Chris Grayling crowed that the CJEU was right to be concerned that the ECtHR has ‘a legal blank cheque to decide different things in different areas in the way that it chooses’.Footnote 102 Opinion 2/13, however, is far from the end of this story of integration and, as we shall demonstrate, the CJEU and ECtHR are continuing to forge their relationship through case-law. As such, this particular clash between regional courts provides a concentrated version of the conflicts emergent within the global order and evidence of the transformational potential of such conflicts.
The CJEU's decision is unsurprising in light of fragmented constitutionalisation; in both Opinion 2/94 and Opinion 2/13, the CJEU was defending its own competences against the possibility of having to submit to the ECtHR's jurisdiction. In fragmented and constitutionalising orders, many judges will instinctively seek to preserve the jurisdiction of their own tribunal against perceived threats. This motivation is all the more powerful when a rival tribunal is regarded as successful. Both the ECHR and the EU have been, in terms of regional tribunals, ‘exceptionally active’ (Alter, Reference Alter2014, p. 103). In little over fifty years of jurisprudence, they have played a vital role in deepening the legal orders they superintend (Madsen, Reference Madsen2007). Both institutions have had to develop and manage their relationships with the domestic courts of their respective Member States. In recent decades, both have faced challenges, as their success threatened to swamp their mechanisms and have undergone restructuring to enable them to address these challenges (Caflisch, Reference Caflisch2006; Turner and Muñoz, Reference Turner and Muñoz1999).Footnote 103 Opinion 2/13 is therefore driven by the express concern that the ECtHR is a tribunal that could conceivably establish itself as superior to the CJEU within aspects of its area of competenceFootnote 104 and that might in some instances be able ‘to take the place of the Court of Justice’.Footnote 105
This position, at first sight, seems to overstate the threat posed by the ECtHR, which is ordinarily considered to have the remit of providing an authoritative interpretation of ECHR rights.Footnote 106 But Strasbourg has also been prepared to clothe its function in constitutional garb in certain decisions, going so far as to proclaim the ECHR to be ‘a constitutional instrument of European public order’.Footnote 107 The ECtHR has also extended its remit over explicitly EU measures in recent decades, in Matthews Footnote 108 holding the UK responsible for breaches of voting rights of residents of Gibraltar denied the vote in the European Parliament elections, even though the UK was bound to take this course of action through the application of European Community law.Footnote 109 Such rulings risked raising hackles, for the provisions in question were not amenable to CJEU review (Costello, Reference Costello2006). The ECtHR did attempt to restrict the potential for conflict in Bosphorus Airways,Footnote 110 noting that ‘the [EU's] judicial organs are better placed to interpret and apply [EU] law’.Footnote 111 In what Tomuschat describes as a ‘grown-up’ decision, Strasbourg recognised that, as the EU organs had ‘handled human rights issues responsibly, there was no need for an additional stage of international review’ (Reference Tomuschat, Føllesdal, Peters and Ulfstein2013, p. 381). It has since maintained that ‘it is primarily for the national authorities … to interpret and apply domestic law, if necessary in conformity with [EU] law, the Court's role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention’.Footnote 112 Nonetheless, the ECtHR's capacity to review the application of measures, even when they lie outside the CJEU's competence, remained a concern in Opinion 2/13. The Luxembourg Court noted the limits to its jurisdiction to review activity pursuant to EU Common Foreign and Security Policy,Footnote 113 and complained that the same strictures would not apply to the ECtHR.Footnote 114
In fragmented orders, flashpoint cases shape the relationships between courts. The Accession Agreement, however, marked an effort to impose a relationship, as opposed to codifying a dynamic established by existing jurisprudence. As such, it was always likely to provoke a backlash in trying to yoke together two legal orders in advance of their respective flagship tribunals building a relationship on their own terms. The most pressing problem with the CJEU's ruling is not its all-too-predictable defensiveness, but the lengths to which this runs. Backed into a corner, the CJEU risks sealing off interaction with other regional and international systems out of concern for the ‘uniqueness’ of the EU legal orderFootnote 115 :
‘The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU.’Footnote 116
The irony in this approach is that the CJEU is in many ways behaving just as EU Member State apex courts have long done in attempting to secure their position in the face of its claims of primacy.Footnote 117 To this day, the CJEU's relationship with national courts remains uneasy, with Lords Neuberger and Mance asserting in the UK Supreme Court, with a certain prescience given the outcome of the UK's Brexit referendum, that it is ‘certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles … of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation’.Footnote 118 Speculative fears that the national courts might exploit the post-accession relationship between the CJEU and ECtHR pervade Opinion 2/13. The CJEU's concerns that Protocol 16 ECHR, by which apex courts in ECHR states can refer questions to Strasbourg for advisory rulings, might be used to usurp EU law's preliminary reference procedureFootnote 119 are explained at length, even though Protocol 16 is yet to enter into force, had not at the time been ratified by a single EU Member StateFootnote 120 and was a process not covered by the Accession Agreement.Footnote 121
Former ECtHR judge David Thór Björgvinsson has described Opinion 2/13 as ‘a political decision disguised in legal arguments’ (Butler, Reference Butler2015). ECtHR President Spielmann was also quick to convey Strasbourg's ‘disappointment’, questioning Opinion 2/13’s rationale in light of the European project's telos and its neglect for the intent of the state parties to the Lisbon Treaty:
‘In deciding that the Union would accede to the European Convention on Human Rights, the drafters of the Lisbon Treaty clearly sought to complete the European legal area of human rights … The opinion of the Court of Justice does not render that plan obsolete; it does not deprive it of its pertinence.’ (Spielmann, Reference Spielmann2015)
In a fragmented order, however, the pertinence of a rationalisation scheme is not necessarily sufficient to secure its adoption, because constitutional objectives such as a homogenous interpretation of human rights can be achieved in large part without such interventions. To date, ‘the story of human rights in the EU is largely the story of interaction between the Luxembourg and Strasbourg courts’ (Douglas-Scott, Reference Douglas-Scott2006, p. 630). Forcing accession upon a reluctant CJEU would hardly have settled the issue; Luxembourg would continue to resist subordination to Strasbourg.
Opinion 2/13 is not the final word on the EU/ECHR relationship, but a milestone in competition between two courts. The ECtHR retains the ability to put indirect pressure on the CJEU, perhaps by restricting the Bosphorus doctrine (Besselink, Reference Besselink, Føllesdal, Peters and Ulfstein2013). Far from insulating the EU legal order from the reach of the ECtHR, Opinion 2/13 merely moves the focus of a challenge from the EU measure itself to implementation activity undertaken by the 28 EU Member States, all parties to the ECHR. Potential flashpoints include EU Member State implementation of the European Arrest Warrant or EU immigration rules – areas in which the CJEU has to date placed a premium upon ‘mutual trust’Footnote 122 between states to avoid being drawn into assessing varying standards of rights protection.Footnote 123 By entertaining challenges in these areas, and likely drawing upon the Treaty on European Union (TEU)’s statement of the symbiotic relationship between the two orders, the ECtHR could bring the struggle to a crisis point, potentially obliging Member States to intervene and impose a settlement. Such a standoff is, however, far from inevitable. The CJEU has in many cases been careful to respect the ECtHR's purview, asserting that EU law ‘does not govern the relations between the ECHR and the legal systems of the Member States’.Footnote 124 In a manner that is more low-key than the aggrandising sentiments of Opinion 2/13, efforts are under way to map the CJEU's approach to ECtHR jurisprudence (Lock, Reference Lock2015). In Bero,Footnote 125 Advocate General Bot recognised that EU law, on the expulsion of third-country nationals, had been adopted to align with ECHR requirementsFootnote 126 and took account of the relevant ECtHR jurisprudence in his opinion.Footnote 127 If Advocate Generals’ opinions have become an outlet for explaining the links between EU law and the ECHR, this avenue for rapprochement has been restricted by the CJEU's refusal to engage with ECtHR decisions in its subsequent decisions.Footnote 128 Nonetheless, the scope for ‘spontaneous, mutual accommodation’ clearly exists (Halberstam, Reference Halberstam, Dunoff and Trachtman2009).
The Opinion 2/13 conflict might well be localised to two well-developed regional systems, but it could be the harbinger of increasingly intense skirmishes across the global legal order if parts of the order continue to deepen and constitutionalise. Domestic, regional, global and specialised bodies with distinct but often overlapping jurisdictions and stakeholders cannot indefinitely continue to function on the basis of fuzzy notions of comity. Fragmentation duplicates arrangements and can incidentally promote the mystification of processes and institutions, but it also generates the tensions necessary to overcome these problems. Intense institutional rivalries, comparable to those presently gripping the European legal orders, were eventually played out during the UK Constitution's development. Judge-driven constitutional activity, including the CJEU's role in developing EU law (Sweet, Reference Sweet2004), the Dispute Settlement Body (DSB)'s impact upon WTO processes (Cass, Reference Cass2005) and the ICJ's posturing as an apex court (Ulfstein, Reference Ulfstein, Klabbers, Peters and Ulfstein2009), locates courts as vital nodes within global constitutionalisation with the capacity to address gaps left by political processes. Such action often occurs in a fragmented manner and does not need to be initiated by a particular constitutional settlement. Courts fighting to maintain their jurisdictions can, if supplied with sufficient litigation, elucidate constitutional principles and even systematise inter-tribunal relations. Opinion 2/13 will not be the last setback in this process, but the burden of advancing constitutionalisation does not fall solely upon international courts. President Spielmann identified the role of other institutions in helping Europe's courts beyond their present impasse: ‘The Union's accession to the Convention is above all a political project and it will be for the European Union and its member States … to provide the response that is called for by the Court of Justice's opinion’ (Spielmann, Reference Spielmann2015). Whilst a trajectory towards a hierarchical global legal order is by no means inevitable, the UK's constitutional history demonstrates the potential for fragmentation within international law to be turned into constitutional outcomes within a maturing governance order.
VI. Constitutional alchemy
Since the nineteenth century, international law's time has always seemed tantalisingly close: ‘The increasingly popular mantra of evolution was invoked, often in a mixture of social and legal evolutionary ideas, to explain not merely the relative powerlessness of international law but also its forthcoming deliverance’ (Sylvest, Reference Sylvest2008, p. 423). With the debate as to whether international relations can be subject to law largely settled by the fact of increased legalisation, does it move the goalposts to switch from asking whether global governance can be legalised to whether it can be constitutionalised? It does not, if fragmented legalisation is bound up in a constitutionalisation process and ‘the increasing density of international law is … indicative of the growing importance of international legal regimes’ (Burke-White, Reference Burke-White2004, p. 968). The global legal order's current, fragmented state evidences a legalised and differentiated governance order primed for constitutionalisation.
From a state of fragmentation and the beginnings of legalisation, the UK's governance order gradually constitutionalised. Fragmentation remains at work in the UK's legal systems; in England and Wales, activity as common as anti-social behaviour can potentially be addressed through criminal-law responses, under quasi-criminal anti-social behaviour mechanisms or via a tort action in nuisance. The interaction between the courts administering such cases may have become systematised and hierarchical but, in the sweep of constitutional history, these are relatively recent developments. Harold Berman once asserted that, in all legal systems, ‘great events themselves have exerted pressures for change in certain directions over a long period’ (Berman, Reference Berman1983, p. 527). In the UK's uncodified order, not only great events, but even relatively unimportant ones are often invested with constitutional significance: ‘Everything that happens is constitutional’ (Griffith, Reference Griffith1979, p. 19). We enjoy sufficient historical perspective to chart how pressures for change within the UK's governance order gradually advanced constitutionalisation even though the legal order remained ‘both polycentric and stable for centuries’ (Stringham and Zywicki, Reference Stringham and Zywicki2011, p. 516). In the absence of such perspective regarding the global order, attempts to assess its supposed ‘constitutional moments’Footnote 129 are, of necessity, contingent. Nonetheless, we maintain that the global legal order could also constitutionalise without a codified global constitution. Small and seemingly insignificant moments can ultimately forge a constitutional structure.
If the global legal order is to fully constitutionalise, fragmentation must ultimately be either addressed or accommodated. Doing so will likely generate problems of a similar nature (but on an increased scale) to those experienced during the UK's constitutionalisation process. The UK's nineteenth-century Judicature Acts were necessary because its judicial architecture by that point lagged behind its other constitutional arrangements. The inertia that had slowed these reforms was generated by vested interests’ concerns over who would be the winners and losers. That the UK's fragmented judicial institutions could ultimately be reorganised to better serve the needs of a capitalist and proto-liberal-democratic society indicates that fragmentation is not an insurmountable obstacle to constitutionalisation. Comparable inertia currently hampers the integration of distinct legal orders at the global and regional levels, as exemplified in Opinion 2/13. The Draft Agreement on Accession in some respects mirrors the Judicature Acts, with the aim behind both measures being to restructure the relationship between courts to counter fragmentation. But such planned restructuring of the relationship between regional legal orders is not the only means of mitigating fragmentation when it becomes burdensome. In an uncodified global legal order, inter-institutional accommodations might well have the same effect as formal reorganisations. Such accommodations, moreover, might have to become embedded before any codification of the relationship between courts is accepted.
We leave for another occasion the second-order question of whether, assuming that further constitutionalisation of the current system of global governance is possible, it is ultimately desirable. Kennedy remains concerned by such developments: ‘What if the distances are so great, the forces so chaotic, the differences in situation so profound that the constitution ratifies what ought rather to be transformed?’ (Kennedy, Reference Kennedy2008, p. 848). Talk of ratification betrays a conception of ‘constitutionalisation’ that we do not share. A constitutional order founded on the interrelationship between fundamental principles and interaction between institutions, and not reliant upon a codified instrument, may well embody the responsiveness necessary to meet changing global circumstances. For now, it suffices to note that any uncodified constitutionalised global order would not replace domestic governance structures, but augment their role so as to better secure the idealised goals of peace and human rights. No constitutional order is static or immutable, but uncodified arrangements can moderate some of the biases against reform experienced by codified systems. UK constitutional history offers an instructive prism through which to examine fragmentation's contributions to constitutionalisation.
