The Russian invasion of Ukraine has widely been seen as a failure of the international legal order, which could neither stop Russia from launching a war of aggression, nor prevent the perpetration of international crimes. In such a reading, great power politics have (once again) trumped international law. We argue instead that international law plays a crucial part in the conflict by providing a semantic infrastructure, which the opposing parties use to justify their actions, try to re-draw limits of permissible action and negotiate changing ‘red lines’ with the enemy. Drawing on the notion of lawfare, we show how the pragmatic (mis-)use of international law flexibly delineates boundaries and stabilizes expectations between adversaries even as they are contested in the current war. We focus on claims about self-determination and self-defence to justify the use of force; categorizations of combatants; and weapons transfers and the status of third states. That international law can be violated or reinterpreted to breaking point does not make it irrelevant. To the contrary, it recalls its important role as a language of conflict and compromise, beyond strictly legalist as well as dismissive realist views.

There is increasing awareness that the ocean touches all aspects of our lives and that a healthy ocean is central to a healthy planet and sustainable future. The ocean is a highly connected system and ocean science is characterized by voluntary international collaboration supported by an enthusiastic and engaged community. Increasingly, it is being recognized that international structures and instruments need to be stronger and more holistic than the current arrangements. This article outlines some perspectives on this, drawing on experience in ocean science and scientists at national, international and intergovernmental levels.

As part of their continuous effort to enhance the effectiveness and democratic legitimacy of human rights treaties, human rights treaty organs have increasingly fostered a direct relationship with various state organs, thereby penetrating the ‘states’ that traditionally have been treated as monolithic legal entities. Treaty organs review the decision-making process of each type of state organ – courts, parliaments and administrative organs – and make remedial orders that are substantially addressed to specific state organs. Such phenomena go hand in hand with the relativization of the distinction between the legal spheres in which human rights treaty organs and state organs operate. This is the first study to address such phenomena as a totality. It constructs the ‘separation of powers in a globalized democratic society’ theory, thereby proposing how each type of state organ and the treaty organs should interact under human rights treaties. Its findings contribute, first, to the harmonious achievement of the effectiveness and democratic legitimacy of human rights treaties; second, to the reform of the classical paradigm of international law, in which monolithic states are the only relevant legal entities; and third, to the long-standing debates on the relationship between international and national laws from a new angle.

The recent fortieth anniversary of the United Nations Convention on the Law of the Sea (UNCLOS) has sparked a good deal of reflection and retrospection. Looking back, it is clear that the Convention’s architects carefully navigated, and selectively absorbed, a number of competing visions of oceanic governance, from freedom to enclosure to visions of Global North–South equality. This made the Convention’s construction period a very drawn-out and painful one – longer than for any other international treaty in history – and while some hopes were realized, others were dashed. Forty years on, it is important not to let its current canonical status blind us to the fact that the Convention came close to being a failure, and that things could have gone differently at a number of critical junctures. Nor should it stop us asking whether UNCLOS is really fit for purpose today. In this article, I situate the Convention within wider developments in the global economy and the global environment, and consider the role it has played in promoting goals of global justice and environmental protection.

Firmly cemented in history as a connector of people, a facilitator for trade and transport routes and a driver of culture and heritage, the ocean has directly influenced globalization, and humanity more generally, for generations. While the ocean was perhaps once viewed as infinite and insurmountable, globally our oceans, coasts and seas have experienced unprecedented change in recent decades with climate change, loss of biodiversity and overfishing among the challenges being addressed through contemporary ocean governance. Moreover, and crucially as we continue to strive for sustainable ocean futures, the global ocean is increasingly being recognized as a peopled space. This article explores the role of ocean literacy as we look towards achieving sustainable ocean futures.

The constitutional design of Bangladesh is characterized by an ambivalent choice: it aspires to establish a republican yet a Bengalee state by putting itself in the conflicting terrain within the demos–ethnos binary. This article aims to examine the implication of this problematic choice along all three axes of the constitution’s elemental parts: its identity, rights and structure. While the identity element of the Bangladesh Constitution embodies the ethno-nationalist vision of the Bengalee state that transforms demos into ethnos, its rights and structural aspects reflect its republican promise to transform ethnos into demos. Contemporary scholarship seeks to confront the exclusionary dimension of the ethno-nationalistic choice in Bangladesh but ends up accepting ethnos as a politically superior value. Such an approach brings us to the politics of difference and, with that, undermines the integrationist potential of the republican constitution. In response, this article defends the republican promise of the Bangladesh Constitution while arguing that what we need in Bangladesh is the ‘de-ethnicization’ of the republic, one that can be achieved by transforming ethnos into demos and not the other way around.

Constitutional reform in the European Union suffers from a post-functionalist dilemma: the options that are politically viable are not democratically legitimate and the options that are democratically legitimate are not politically viable. Against the background of the recent Conference on the Future of Europe and the involvement of transnational European Citizens’ Panels, this article asks whether there is any prospect of overcoming this dilemma and organizing fundamental reform of EU institutions that is both normatively legitimate and politically viable. For this, it examines four models of EU treaty reform and the way these have figured in actual EU reform processes: Intergovernmental Conference, European Convention, informal intergovernmentalism and a Citizens Convention. The article concludes that, as long as the European Union is best characterized as a ‘demoi-cracy’ in which political deliberation takes place primarily in national public spheres, the Intergovernmental Conference remains its main and inevitable forum for constitutional reform. Hence, alternative models of EU constitutional reform should be evaluated not so much on the basis of their potential to substitute the IGC but rather on their ability to catalyse the process and to pre-commit the member state governments.

The constituent power theory, which served critical functions for several years, has outlived its utility as the preeminent yardstick to measure the normative legitimacy of a constitution. As the theory stands, it cannot apply on its own terms to most instances of modern constitution-making. At the same time, it is highly susceptible to being used to legitimize authoritarian outcomes. The scholarly literature that attempts to reimagine or expand the theory is scant and unable to overcome its problems. In response, this article develops an alternative standard: the theory of equitable elite bargaining. This theory provides that a constitution is normatively legitimate if it is the product of an equitable bargain between elites from most major political groups in society at the moment of constitution-making. The theory of equitable elite bargaining is applicable to the realities of modern constitution-making and makes it more difficult to legitimize authoritarian constitutions. Further, both representation-based and consequentialist arguments can justify a constitution drafted in accordance with the theory as normatively legitimate. The theory imposes a standard that can result in arduous constitution-making processes and moderated constitutional content. Additionally, its focus on elites poses challenging questions. However, this article will argue that the net benefits of this theory warrant its consideration as a new standard to assess normative constitutional legitimacy.

There has been much recent debate over whether the European Union is or should be a ‘militant democratic’ actor in order to respond to democratic backsliding in EU member states. This article argues that the EU is a militant democracy in a specific and limited sense, but that this may be normatively undesirable from a democratic perspective. I first develop a definition of militant democracy that focuses on the militant democratic paradox. I argue that the strongest justifications for militant democracy require that two conditions are met: an ‘existential threat condition’ and a ‘necessity condition’. Next, I analyse four ways in which the European Union has been said to be empowered to act in a militant democratic fashion to combat democratic backsliding in EU member states. I show how some, though not all, of these warrant the label ‘militant democracy’. Moving from the descriptive to the normative analysis, I then consider whether the necessity condition can ever be met since there is always the possibility of non-militant responses through forms of EU disintegration. If we accept this argument, EU actors should prioritize robust non-militant measures where possible while pro-democratic member states should disassociate from frankly autocratic member states where non-militant measures fail.

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law.

This article provides a comparative analysis of how courts have performed judicial review on supermajority rules governing courts’ decision-making. Through an empirical approach, covering the cases of the United States, Peru and Poland, the article argues that the supermajority’s legal source and the chronology of its establishment may influence the court’s ability to review such rules and the case’s outcome. Finally, the article addresses the paradox of whether courts must apply the very provision they are tasked to review.

Hong Kong presents a test case of China’s willingness to adapt Western liberal values of individual freedom and the rule of law in a corner of China. The Western model of governance, along with its common law system and capitalist economic system, has been permitted to operate side by side with the Chinese socialist system within the framework of Chinese sovereignty and the People’s Republic of China’s (PRC) political and legal system. The formation and implementation of the policy of ‘one country, two systems’ (OCTS) entail Chinese law-makers’ selective integration of international and Western rules of governance into the Hong Kong and China context to serve the interests of the PRC party regime. This article explores the approaches taken by the PRC to the governance of Hong Kong in light of the regime’s political and economic goals and how the Western concept of rule of law and autonomy is perceived and substantiated in terms of the communist ideology. The author argues that the intrinsic value of OCTS lies in seeking complementarity and coexistence between the Western liberal norms of governance and Chinese communist ideology, and that this intrinsic value should be upheld and remain in full force to serve as a normative consensus between China and the West.

Through an account of white feminisms and white privilege, this article examines the tensions between local and international knowledge frames. The article considers the possibility of a feminist approach to global constitutionalism and argues for a twofold critique: first, a feminist interrogation of the dominance of a specifically male history of Western and Anglo-European knowledge frames; and second, a self-critique within feminist approaches to global legal regimes that acknowledges the complicity of mainstream feminist tools in the racist histories of knowledge production. To this end, the article examines the space of gender expertise to explore how this can be both an aperture for plural feminist encounters and a refinement of diverse feminist approaches into a form digestible by the contours of international institutions. To explore alternative, decolonized encounters, the article centres Lusophone African feminist silence and action in Luanda, the capital of Angola. The article explores how Angolan gender relations, informal labour and histories of protest unsettle the frame of a feminist manifesto, to argue for a place for active silence as a methodology for undoing the status quo of global constitutional expectations of how knowledge arrives at the global and transnational levels.

In this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of the neoliberal market economy makes clear and effective responses to climate change virtually impossible within liberal societies.

The United Nations treaty bodies were established to monitor the implementation of human rights by states parties. Through ‘General Comments’ – legally non-binding clarifications of treaty obligations – they have also influenced the development of international human rights law – for example, on the right to life and climate impacts. We address this phenomenon by establishing a twofold argument. First, we argue that General Comments are used by the committees to informally shape international law. They deliberately act as human rights law-makers, knowing that international institutions, organizations and professionals in their network will subsequently refer to such instruments. Second, we argue that treaty bodies not only rely on their network once they have adopted their outcome, but the experts’ personal networks also shape the drafting process of General Comments. We develop and illustrate an analytical framework with two case studies of General Comments on the human right to water and the torture prohibition. The analysis demonstrates the need for external knowledge of both technical and legal aspects of the norms being interpreted. By addressing pressing human rights challenges, expert committees can shape the law in times of stagnation and resist contestation even from powerful states.

A growing body of literature on the role of courts in democratic backsliding claims that court-packing weakens liberal democracy. However, this is not necessarily the case. The goals of the actors who produce court-packing help to explain why the co-optation of the judiciary can have a substantial negative effect on liberal democracy in some (although not all) cases. In this respect, we distinguish two types of court-packing. First, policy-driven court-packing occurs when politicians manipulate the composition of courts in order to assure a quick implementation of policies. Although this tends to negatively affect judicial independence, it is not per se a first step towards regime change. Second, regime-driven court-packing happens when politicians alter the composition of the courts with the goal of eroding democracy. In this case, court-packing’s negative effect on judicial independence has a systemic negative effect on different dimensions of liberal democracy. Relying on a wide range of primary and secondary sources, we conceptualize these two types of court-packing by comparing two cases: Carlos Menem (1989–99) in Argentina, seeking judicial support to carry out pro-market economic reforms, and Hugo Chávez (1999–2013) and Nicolás Maduro (2013–present) in Venezuela, seeking to control the judiciary in the context of democratic backsliding.

This article interrogates the normative coherence of the label of ‘digital constitutionalism’. In particular, I argue that the use of the label ‘constitutionalism’ in digital contexts often conflates the practical realities of existing contractual governance models with the superficial appeal of constitutional structures. As a result, the label is misleading in both normative and qualitative terms as it obscures the true nature of the governance architectures to which it is applied, which are more appropriately understood as implementing a distinct genre of ‘private policy’.

Criticizing the insurance theory, this article asserts that to measure post-constitutional political uncertainty, one should consider not only the power distribution among the ‘political’ actors but the power distribution among all actors involved in the constitution-making process, including the public and civil society. Comparing the constitution-making processes of the constitutions of Egypt (2012) and Tunisia (2014), this study presents the duration of the constitution-making process as an alternative measure of power distribution among all actors. The theoretical framework asserts that the long constitution-making process increases the possibility of deliberation at the public level. That will help to develop trust among polarized political actors and improve political actors’ perception of the public as a credible control and constraint mechanism. This will ensure that the incoming government will respect the newly established institutions and lead to the establishment of an independent and powerful judiciary. In the second part of the article, to test this argument, I use a large dataset that covers information on the content and design processes of 140 countries’ most recent constitutions adopted between 1945 and 2018. The empirical results indicate that as the duration of the constitution-making increases, the number of constitutional guarantees for judicial independence also increases.

This article examines the development of the doctrine of the ‘permanent constituent power’ in Mexico. This doctrine reflects a long tradition in constitutional theory according to which the exercise of constituent power is a one-time event: once a constitution is adopted, there will be no legal mechanism in place for the exercise of the people’s original constitution-making authority. This view is nonetheless in tension with a notion that has also been historically embraced by liberal constitutionalism: that the people has an inalienable right to alter the form of government. The constitutional provisions that reflect that idea, we will see, can have important implications in terms of the nature and scope of the amending authority and, at the same time, point toward alternative mechanisms for the exercise of constituent authority. By closely examining the operation of those kinds of provisions in the Mexican constitution, we seek to illustrate a tension central to the liberal constitutional tradition and to suggest a way out of it. In so doing, we aim to draw some lessons from the Mexican case that can contribute to current discussions about constituent power and fundamental constitutional change in liberal constitutional orders.

The question of whether global norms are experiencing a crisis allows for two concurrent answers. From a facticity perspective, certain global norms are in crisis, given their worldwide lack of implementation and effectiveness. From a validity perspective, however, a crisis is not obvious, as these norms are not openly contested discursively and institutionally. In order to explain the double diagnosis (crisis/no crisis), this article draws on international relations research on norm contestation and norm robustness. It proposes the concept of hidden discursive contestation and distinguishes it from three other key types of norm contestation: open discursive, open non-discursive and hidden non-discursive contestation. We identify four manifestations of hidden discursive contestation in: (1) the deflection of responsibility; (2) forestalling norm strengthening; (3) displaying norms as functional means to an end; and (4) downgrading or upgrading single norm elements. Our empirical focus is on the decent work norm, which demonstrates the double diagnosis. While it lacks facticity, it enjoys far-reaching verbal acceptance and high validity. Our qualitative analysis of discursive hidden contestation draws on two case studies: the International Labour Organization’s compliance procedures, which monitor international labour standards, and the United Nations Treaty Process on a binding instrument for business and human rights. Although both fora have different context and policy cycles, they exhibit similar strategies of hidden discursive contestation.