Constitutionalizing the International Normative Environment: An Investigation of the Systemic Nature of International and Global Law

Abstract: In 2005 the United Nations International Law Commission released the report Fragmentation of International Law: Difficulties arising from the diversification and expansion of International Law. Although fragmentation of international law had been a topic of discussion long before 2005 the report really made the debate take off, becoming one of the most debated issues in recent years among international law scholars. Interestingly the discussion has largely neglected the fact that for something to be fragmenting, it has to at one point been a unified whole, and in the case of international law, a legal system. This thesis picks up the discussion at a stage where legal scholars are trying to find different approaches on how to systematize international law. Two of the most prominent approaches are institutional and normative constitutionalism, which both are aspiring to become the hegemonic explanatory theory under which international law, can be perceived as a quantifiable one legal system. The institutional constitutionalists are trying to identify single constitutional documents, which can act as a universal constitution of the world, while the normative constitutionalists are arguing that there exist objective superior norms from which all international law seeks its legitimacy. These two approaches however are in the thesis critically investigated and found not only to be internally challenged from within the very legal theory they are based in, but also by the external transformation of contemporary international law. International law has long been perceived as being merely a set of rules generally regarded and accepted as binding in relations between states. However, the thesis shows that the sovereignty of states in recent years has eroded and that the importance of international organizations and transnational actors for guiding the normative and cognitive expectations of actors within the international sphere has grown. In the thesis it is therefore argued that the concept of international law is not adequate to fully understand the contemporary international normative environment and that a shift to the wider concept of global law therefore is necessary. However, the shift of concepts does not provide any answer as to the systemic nature of the international normative environment. To understand how global law has systematized itself into self-referential internally differentiated systemic entities the theory of Societal Constitutionalism is introduced. With the help of this theory it is explained how global law encompasses a numerous of differentiated normative international legal spheres. These spheres are by self-reference producing and reproducing themselves in accordance with their own rationale, without being a part of a larger systemic entity. From this position fragmentation is not a phenomenon isolated to international law, but an effect of the changes to society in large.