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A new virus, SARS-CoV-2, emerged in the Chinese city of Wuhan at the end of 2019. Infected persons developed an atypical form of pneumonia, later known as COVID-19. The pathogen created a pandemic, with fatalities throughout the world, and also led to the adoption of restrictive measures which were, until recently, unthinkable, as well as fostering new political conflicts. Even the path of the multilateral order in its current form is at stake. For a take on these issues under international law, the legal regime of the World Health Organization (WHO) and its response to the pandemic provides an insightful access. ...
Questo saggio descrive il progetto ambizioso del costituzionalismo moderno e lo distingue dalla mera giuridicizzazione del potere pubblico. Esso mostra le sfide del costituzionalismo derivanti dalla perdita di identità del potere statale e del potere pubblico. Il saggio afferma la persistenza della necessità di regolare il potere pubblico, indipendentemente dal fatto che sia esercitato dalle autorità statali o da organizzazioni internazionali. Tuttavia, esso solleva dubbi sul fatto che il potere pubblico frammentato a livello internazionale possa essere regolato in modo tale da soddisfare le richieste del costituzionalismo. È in corso una giuridicizzazione che manca delle caratteristiche fondamentali del costituzionalismo. Come realizzare una compensazione in questo senso resta una domanda aperta.
International society consists of states and the rules and institutions they share. Although international society has become a mundane feature of the world and the principal research focus of International Relations, it has become meaningless. More specifically, the technical rules that determine what states are and how they relate to other features of the world are units of semantic meaning, but their rampant, unprincipled proliferation has corroded their capacity to contain existential meaning. This deterioration is to be deplored because it alienates subjects from each other, it is totalising and excludes alternatives, and it is theoretically irreversible. To connect the two kinds of meaning, the first step is to reconceptualise international society as consisting strictly of constitutive rules whose meaning depends on the context they jointly compose, which implies that these rules can in turn be represented as signs in a semiotic structure. In order to evaluate the capacity of the signs to contain existential meaning, the next step is to adapt Baudrillard’s hierarchical typology of semiotic systems, ranging from the most meaningful systems based on symbolic exchange value to the vapid terminus of hyperreality based on sign value, in which semantic meaning is without value and existential meaning is impossible. The narrative traces the history of the signs of international law from the premodern period, when Christendom was understood as an approximation of the divine kingdom and a vehicle for salvation, to the present postmodern period, in which hundreds of articles of international maritime law make the decision to go to war over isolated rocks intelligible – even rational – and international trade law catalogues potato products to six digits. Three cases in particular exemplify this devolution in international law: the laws determining the territorial sea, the most-favoured national principle of international trade law, and nationality as a normative basis for statehood.
One of the current trends in international law scholarship is the question of which influences specific legal cultures have on the understanding of international law. This contribution will trace the conditions of a German perspective and analyse the debate against the background of positive law. We will try to assess what the debate adds to the general theory of international law, how it fits into demands of legitimacy of international governance, and whether it contributes to a sensible reconstruction of current law. Furthermore, we try to develop our own perspective that matches the system of international law and is plausible in terms of international legal theory. For that purpose, we will first take It is probably in this context that the contention has to be understood that the ongoing debate on the constitutionalisation of public international law is particularly European, if not German. Whether or not this is the case is difficult to investigate with a lawyer’s tools. However, the idea that international law is the constitution of mankind has found many adherents in German legal writings. This contribution will trace the conditions of a German perspective and analyse the debate against the background of positive law. We will try to assess what the debate adds to the general theory of international law, how it fits into demands of legitimacy of international governance, and whether it contributes to a sensible reconstruction of current law. Furthermore, we try to develop our own perspective that matches the system of international law and is plausible in terms of international legal theory. For that purpose, we will first take up the debate and find its place in the landscape of international legal theory. In this context, we try to shed light on the central concepts used or presupposed when constitutionalisation is discussed by German-speaking scholars (see below, section B). Furthermore, we will discuss structures in positive law which are used as arguments in the debate (section C). Finally, we will try to give an account of constitutionalisation in terms of both sources doctrine and legal theory (section D), before drawing conclusions from the discussion (section E).