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ABSTRACT
Global constitutionalism is an agenda that identifies and advocates for the application of constitutionalist principles in the international legal sphere. Global constitutionalization is the gradual emergence of constitutionalist features in international law. Critics of global constitutionalism doubt the empirical reality of constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is normatively dangerous because it is anti-pluralist, artificially creates a false legitimacy, and promises an unrealistic end of politics. This article addresses these objections. I argue that global constitutionalization is likely to compensate for globalization-induced constitutionalist deficits on the national level, that a constitutionalist reading of international law can serve as a hermeneutic device, and that the constitutionalist vocabulary uncovers legitimacy deficits of international law and suggests remedies. Global constitutionalism, therefore, has a responsibilizing and much-needed critical potential.
INTRODUCTION: THE MEANING OF GLOBAL CONSTITUTIONALISM
Global constitutionalism is an academic and political agenda that identifies and advocates for the application of constitutionalist principles in the international legal sphere in order to improve the effectiveness and the fairness of the international legal order.1 Global constitutionalization refers to the continuing, but not linear, process of the gradual emergence and deliberate creation of constitutionalist ele- ments in the international legal order by political and judicial actors, bolstered by an academic discourse in which these elements are identified and further developed.
The global constitutionalist discourse has challenged the traditional view that the international sphere is "a sort of constitutional wasteland or empty quarter."2 The articles in this issue deal with various aspects of global constitutionalism, such as constitutional procedures for resolving value conflicts, and balancing as a constitutional technique. They examine the constitutional functions of the law of international responsibility as well as sectoral constitutions in special fields of international law. They also discuss the chances for and exigencies of democratic global constitution; the way global constitutionalism impacts individuals nested in nation-states; and the empirical standards that may be used to gauge global constitutionalism.
There are four important elements of constitutionalization that are not analyzed in depth in the following articles and which I therefore wish to discuss here.3 First, the principle of sovereignty is being ousted from its position as a Letztbegründung (first principle) of international law. The...