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A Theory of Informal Constitutional Change in International Organizations

Julian Arato, J.D., LL.M., NYU School of Law

My thanks to Tom Ginsburg, Richard Albert, and David Landau for the opportunity to talk about my work on informal constitutional change in international organizations (IO’s) – a process sometimes called constitutional transformation, by contrast to formal constitutional amendment.  I’ll first describe my broader project, and then sketch a theoretical apparatus for appreciating the subtleties of informal change in IO’s.  Most generally, I hope to provide an argument for the value of constitutional theory beyond the state – for the understanding, assessment, and critique of our supranational institutions of government.

IO’sare supranational governance bodies, constituted by treaty among sovereign states.  They are functionally limitedentities, charged with the exercise of certain delegated powers over and above their constituent member states.  Over the last sixty years states have increasingly turned to IO’s to address global challenges – creating new bodies and bolstering more venerable organizations.  Today, many of these supranational bodies enjoy vast powers, reaching deep into the traditional domaine réservé of the national sovereign state.  Some adjudicate Human Rights disputes between states and their own citizens (e.g. the European Court of Human Rights (ECtHR), or the Inter-American Court of Human Rights (IACtHR)).  Others enjoy varying degrees of responsibility for the regulation of international trade (e.g. the WTO at the global level, or the EU and NAFTA at the regional levels).  Perhaps most dramatically, one organization enjoys primary authority over the maintenance of international peace and security (being of course the United Nations, acting through its organ the Security Council (UNSC)).

These IO’s and others like them are today more thickly institutionalized than ever before.  Like all constituted bodies of government they have changed over time, and not only through formal amendment.  Many have changed through more subtle, evolutionary processes – through the practice of their organs.  Some have thereby grown dramatically, enhancing their autonomy and their power vis-à-vis their constituent states parties.  The most obvious case is perhaps that of the United Nations, wherein the UNSC has come to assert the power to legislate for the world – at least in certain contexts (i.e. international war crimes, combating international terrorism, and preventing nuclear proliferation).  Somewhat more subtly, the ECtHR and IACtHR have come to assert various innovative powers to ignore standard attempts by member states to limit their jurisdiction: the former by ignoring a state’s (presumptively valid) a priori reservation to the scope of the Court’s jurisdiction in the case of Loizidou v. Turkey; and the latter by refusing to acknowledge a member’s formal withdrawal from the contentious jurisdiction of the Court in Ivcher Bronstein v. Peru.

I want to suggest that such developments can be fruitfully understood, and assessed, from the perspective of constitutional theory.  My project is thus an attempt to develop an analytical framework derived from modern constitutional thought, oriented toward both illuminating major changes in the structure of power within such organizations, and providing a useful basis for their assessment and critique.

To that end, the following sketches a set of analytical tools for exposing and evaluating the modalities of constitutional change in the context of supranational institutions.  I organize the framework around three distinctions: first, between formal and material conceptions of the constitution; second, between juridical and political dimensions of the constitution; and finally between formal constitutional change (amendment) and informal constitutional change (transformation).  The first two undergird a constitutional theory for the study of institutions of government at both the national and supranational levels.  The third pertains to how these constitutions change over time.

 

Formal vs. Material

The distinction between formal and material conceptions of a constitution is famous, but it bears reiterating.  When one studies the constitution of an organization of governance, the natural starting point is generally a constitutional text – and in the context of IO’s, this generally means the constituent treaty.  This formal document articulates, in the first cut, the functions and powers of the organization.  But the constituent treaty cannot be the whole story, any more than the paper constitution of the United States.  As important as it is, the solemn document should be understood as the constitution of an organization in a formal sense only.  As in any domestic context characterized by a written constitution, the text can only gesture at the actual structure of the organization it constitutes.  And of course a written text is not even a necessary element of a constitutional regime (as the British experience amply demonstrates).

To borrow an idea from Kelsen, the formal constitutional text should rather be understood as only forming a part of the full material constitution of an organization.  By contrast to the mere text, this more complete conception of the constitution refers to the normative architecture of a legal order, governing the transmission of validity throughout the entire system.  In other words, the material constitution connotes that set of norms that articulate, at the highest level, how further norms are promulgated, executed, interpreted, reviewed and/or invalidated within a legal order.

The formal constitution is of course important, analytically and normatively.  It can play an essential role in establishing and shaping the material architecture, as well as by entrenching parts of it and providing a locus of interpretation.  But it necessarily paints an incomplete picture of a constitutional order.

 

Juridical vs. Political

With this second distinction, I want to go further than Kelsen.  As I’ve argued in a recent article here at I•CON, it is important not to be overly legalistic; a constitution should be understood as having both juridical and political dimensions.  See Constitutionality and Constitutionalism Beyond the State: Two Perspectives on the Material Constitution of the United Nations, 10(3) Int’l J. Const. L. (I•CON) 627 (2012).  Kelsen’s portrait of the material constitution may be taken as an archetypical juridical perspective: relativistic and interested mainly in understanding a constitution in terms of a hierarchy of norms describing how validity is transmitted throughout a legal order.  As important as this point of view is for understanding how a constitution operates, it obscures much about the most important facets and effects of its operation.  Constitutions are not just about law, but also about power.  In establishing institutions, rights, and obligations, they create and regulate power.  Constitutional analysis should thus be as multifaceted as its object, relying on both the juridical perspective and the perspective of political theory.

From a political point of view, it is not enough to ask how validity is transmitted through a legal system.  It is just as important to ask how power is divided up within such a system.  Who gets to create, apply, and interpret norms within the system? Are these powers separated among different bodies? If so, are they checked? Balanced? How much discretion do these bodies enjoy? And how much power does the organization wield over the governed (usually meaning, in the case of IO’s, the member states, though in some cases meaning also human individuals under their purview).  It is this political dimension that is the central concern of the modern normative ethos of constitutionalism.  It provides the central basis for the comparison and critique of constitutional forms.

I should be clear here that I distinguish between juridical and political points of view as an analytical framework, so as to better understand the operation and evolution of institutions of government.  I don’t mean to suggest that anyone adopts either perspective crudely and exclusively.  My point in separating these perspectives on the constitution is rather to illuminate different, but intertwined and interdependent facets of governance institutions – domestic and supranational alike.

 

Amendment vs. Transformation

So far I’ve articulated two distinctions (formal/material and juridical/political).  Taken together, this set of analytical divisions facilitates coming to grips with processes of change in domestic and supranational institutions at the most fundamental levels.  In turning to the theory of constitutional change I want to draw a third distinction, between two broad types of processes: formal change (or amendment), and informal change (or transformation).

Formal amendment is a familiar concept.  It refers to the willful change of the formal constitution through formal procedures.  Formal amending procedures usually (though not always) demand heightened voting thresholds, relying on various super-majority schemes; in the context of IO’s they usually require unanimity.  Informal change occurs more subtly, through the practice of the organization.  By contrast to formal amendment, informal transformation involves constitutional change on the material level, while leaving the formal instrument completely intact.

Constitutional transformation can occur within an organization through its organs’ exercise of their delegated powers at all levels of the system (as opposed to only the constituent level of the amending power): through the enactment of important legislation, through the actions of the executive power, or through interpretation by the courts.  Moreover it may occur through a variety of more subtle means, including longstanding usages, customs, and conventions of the constitution.  What is important, here, is not the procedure but the effect of material change in the constitutional order.

Although transformation may attract less attention than a formal amendment, the degree of change involved can be just as profound.  There is no analytical reason to distinguish between formal and informal change in terms of the degree of change these processes can bring into effect (though there may be normative reasons to suggest that the informal should have a more limited scope).  To return to the example of the UNSC, the recent self-accrual of the power to promulgate global norms of general scope and duration under the rubric of its competence to “maintain international peace and security” amounts to an assertion of power to legislate for the world – in itself a dramatic expansion of the power of the organization vis-à-vis its constituent member states and their citizens, and as significant a change as anything achieved through the formal amendment of the UN Charter.

In my current work I examine the possibility of profound constitutional change through judicial interpretation – that is, the material transformation of an IO through the interpretation of its formal constituent instrument within its judicial organ.  See Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations, 38(2) Yale J. Int’l L. ___ (forthcoming 2013)As all scholars of constitutional law are aware, it can be particularly difficult to determine where interpretation shades into creation – and here the distinction between juridical and political perspectives is particularly useful.  The problem is that courts engaged in constitutional interpretation tend not to emphasize the creative aspect of their task.  Rather they generally portray their role as expounding what is already there.  And from a doctrinal perspective it is difficult to challenge their assessment.  Where a court has ultimate authority to say what its formal constitution means it is not easy to express how the Court is changing anything at all – no matter how radical its interpretation may appear.  But from a political perspective, it becomes easier to see how such “mere expounding” may entail the radical reordering of powers among the organs of an organization, and even the development of the power of the organization as a whole vis-à-vis the governed.  From this point of view, one need only look to the saga of the Commerce Clause in U.S. jurisprudence to see how judicial interpretation can dramatically transform (and expand) the structure and power of government over time.

In the YJIL article, I draw out the dynamics of transformation through interpretation in the context of IO’s, by examining the practices of three judicial bodies: the Appellate Body of the WTO, the International Court of Justice (as the principal judicial organ of the UN), and the ECtHR (nested within the broader Council of Europe). In at least the latter two cases, I argue that these courts have transformed their respective constitutions. Through interpretation, these judicial bodies have enhanced the power and autonomy of the supranational organizations to which they belong, over and above their constituent member states.

 

Conclusion

In this post I’ve only sketched a framework for the analysis of constitutions and constitutional change, turning on three divisions: formal / material; juridical / political; and amendment / transformation.  For now, the main point that I want to get across is a general insight central to each of these distinctions: in order to understand the dynamic complex of law and power within a public organization of government, it is critical to look beyond formal text and doctrine.  Formality, legality, and doctrine are crucial aspects of (almost) all constitutional orders; but they are not everything.  Important as these aspects are, an overly formalistic or legalistic sensibility may produce a misleadingly static image of the constitution – obscuring the dynamics of power within an organization of governance.  My hope is that taken together these three distinctions provide a way of grappling with such dynamism, and thereby clear out a more fertile ground for the assessment and critique of our institutions – both domestic and supranational.

 

Suggested Citation: Julian Arato, A Theory of Informal Constitutional Change in International Organizations, Int’l J. Const. L. Blog, Jan. 23, 2013, available at: http://www.iconnectblog.com/2013/01/a-theory-of-informal-constitutional-change-in-international-organizations.

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Published on January 23, 2013
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2 Responses

  1. Julian, thank you for your post. I read and enjoyed your earlier piece on Constitutionalism and Constitutionality Beyond the State, and learned a lot from it.

    You mention that formal amendment procedures in IOs usually require unanimity. Both the Polish Liberum Veto and the Articles of Confederation were cast aside largely because of the strictures of unanimity, and were replaced with more permissive amendment rules. Still, one might say that the U.S. Constitution’s formal amendment threshold in Article V is so unimaginably hard to reach that it might as well require unanimity!

    Has informal amendment, what you call transformation, developed in IOs in response to the rigidity of the rule of unanimity pursuant to which they operate?

  2. Thanks for the kind words, Richard. You raise a great point on rigidity, and as a matter of fact that very issue is central to my current work in progress. As Dicey noted long ago, a maximally rigid constitution may (counter-intuitively) encourage far-reaching modalities of informal change. Obviously he was talking about state constitutions (France in particular), but the point is just as applicable in the context of IO’s. These supranational constituted bodies are organizations of government, charged with the exercise of extensive public powers that they are expected to wield in the long term. It stands to reason that such organizations might chafe at the requirements of a rigid amendment rule in trying to fulfill their functions in the face of rapidly changing global conditions that don’t neatly fit their limited powers. And sure enough, like their domestic cousins these IO’s try to find alternative (informal) paths around such rigidity. So absolutely, rigidity can and does incentivize informal change (and not only maximal rigidity like unanimity rules, but also including amendment rules like the UN’s procedure requiring a 2/3 supermajority of votes and domestic ratifications, subject to a UNSC veto).

    But I want to go a step further. Rigidity in amending procedures doesn’t just incentivize informal change; perhaps counter-intuitively, it may also limit the states parties’ capacity to correct informal change effected by the organization (acting through its organs). After all, amendment rules are not only a mechanism for changing a constitution; they also provide a means for limiting constituted powers, and allowing them to be policed or kept within bounds (by courts, or even potentially by the constituent power – especially important in the context of IO’s where that power lies in the hands of the States Parties). So perhaps paradoxically, rigid amending procedures may wind up making certain IO’s more autonomous and more powerful vis-a-vis their constituent member states, and at the same time less accountable.

    Though not always with ill-results, this dynamic is in many ways reflected in the story of the EU, as famously illustrated by Joseph Weiler’s TRANSFORMATION OF EUROPE – I have in mind the changes effected by the ECJ despite perennial difficulties in pursuing formal amendment of the Treaties. And of course many would view the EU’s transformation as a positive; I don’t mean to convey an overly negative view of informal change. But I do think it is well worth the effort to explore its potential problems, in both the domestic and the international settings, and especially in the context of extremely rigid amending procedures.

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