Constitutionalism beyond the state? On state sovereignty and new developments in international law

Thesis

This thesis examines a series of transformations in public international law that began to unfold in the second half of the twentieth century and analyses how they should be understood from the perspective of constitutional theory. These developments include the expansion of international law into the regulation of how states should behave domestically in certain areas (in their own territories and in relation to their own population), the granting of procedural rights to individuals before some international tribunals, the rise of international regimes that include law-applying organs, and the growing influence of transnational governance networks. By way of contrast, the thesis also analyses the case of the European Union, stressing that it should be understood as a distinct phenomenon whose significance is obscured when treated as part of a broader trend in public international law. 

The study addresses some of the theoretical claims advanced in legal scholarship in response to these changes, particularly those concerning state sovereignty and the possible constitutionalisation of international law. The thesis questions whether these phenomena amount to a weakening of state sovereignty, a shift to a post-sovereign era, or signal a new constitutional order at the international level—as some contemporary writers have maintained. To this end, the thesis provides an account of the relevant transformations, analyses their implications for state sovereignty, and critically examines claims of constitutionalisation in international law, international organisations, and the EU—which reflects a pattern not currently replicated in any other region of the world. In doing so, the thesis establishes that sovereign states remain fundamental to the very functioning of international law and its institutions. The overall conclusion is that the concept of state sovereignty remains crucial for understanding the contemporary world, and that constitutionalism has frequently been invoked in international law at the cost of severe distortion.

Authors: Garetto Boeri, MA

• Alternative title: Constitutionalism beyond the state?
• DOI: 10.5287/ora-j5g5g7op5
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: constitutionalism; constitutionalism beyond the state; sovereignty; international law; jurisprudence
• Subjects: Constitutional Theory; Law; Constitutionalism; International law; Jurisprudence