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Commanding the commons: Constitutional enforcement and the law of the sea

Published online by Cambridge University Press:  26 September 2012

ANDREW JILLIONS
ANDREW JILLIONS*
Affiliation:
London School of Economics, Houghton Street, London, WC2A 2AE
*
*Email: [email protected]
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Abstract

What role does enforcement play in protecting the constitutional authority of international law? Can enforcement be understood as a specifically constitutional practice? I argue here that international law has a greater capacity for constitutional enforcement than sceptical accounts have tended to acknowledge. This argument is anchored in the institutional account of the authority of law offered by Hart and developed by MacCormick. This focuses on the official or administrative perceptions as the determinant of constitutional legitimacy, which offers a way to offset the scepticisms caused by gaps in the constitutional order. This establishes constitutional enforcement as a practice centred on and legitimated by the attribution of role responsibilities, rather than on the direct application or policing of the rules. I illustrate these arguments using the law of the sea, a domain where the functional difficulties of enforcement have always presented a challenge to international law’s claim to authority.

Keywords

constitutional authorityenforcementinternational institutionslaw of the searesponsibility
Type
Articles
Information
Global Constitutionalism , Volume 1 , Issue 3 , November 2012 , pp. 429 - 454
Copyright
Copyright © Cambridge University Press 2012

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