국제법의 헌법화 논의에 대한 일고찰

The rise of international community in world politics creates conditions for the possible emergence of the global constitutional law. Global constitutionalism or the constitutionalization of international law, an idea neither necessarily rooted in nor emerging specifically from international law, has captures the imagination of public international law scholars. Heated debates on the constitutionalization of international law or global constitutionalism could not be proceeded properly without understanding of the rise of international community. Based on the state-centric perspective on international relations, which is also defined as ‘Westphalian system’, the concept of ‘international society’ mainly focuses on interests of individual States. Because the supremacy of States’ interests over anything is understood as the backbone of international society, interests of weaker States and non-state actors like individuals and NGOs are not fully secured and even sacrificed. However, this familiar portrait of international relations rapidly loses its character by the advent of international community. The concept of ‘international community’ with special emphasis on democratic governance, rule of law, protection of human right seems to be more relevant at the age of globalization. The impact of globalization on international law and global governance provides food for the thought for changing nature of international law. For the purpose of reflecting collective interests of international community as a whole, there is a growing need for more robust roles of international law as the Grundnorm of the newly emerging international community. In this context, a bold attempt to incorporate core principles of constitutional law, such as democracy, rule of law, separation of powers and protection of human rights into the realm of international law is under construction. The project of the constitutionalization of international law or global constitutionalism does not seem to be necessary because this project is undoubtedly ideal for international community. However, if one looks into this project thoroughly, it is easy to detect there are lots of difficulties for crystallizing the idea of global constitutionalism or the constitutionalization of international law at the international community level. Difficult questions are as follows: The shift from international society to international community is really completed? Do we need really a brand new version of international law having core principles of constitutional law? Does global constitutionalism or the constitutionalization of international law inevitably envisage the federal government of international community? Could the UN Charter play a role as the constitution for international community substantially? What is needed for activating the UN Charter as the constitution for international community? If the UN Charter could not be used as the constitution for international community, which existing rules and principles of international law could be nominated as core constituents of the constitution for international community? Does the constitution for international community automatically prevail over international law or domestic laws of States? Could the constitution for international community be supported by every State? Is there any possibility that the constitution for international community would be blamed for its core principles rooted in western-centric values? To what extent the constitution for international community could embrace flexibility and pluralism?To wrestle with above-mentioned questions, this article explores the relevance of existing debates on the constitutionalization of international law or global constitutionalism. Special attention should be paid to the suggestion that attempts to use the UN Charter as the global constitution. Also, for the purpose of testing whether the UN Charter could play as the constitution for international community, relationship among principal organs of the UN, such as UNSC, UNGA and ICJ would be examined in terms of core principles of constitutional law, such as rule of law and separation of powers. This article also explores significant constituents like pluralism, solidarity and openness which are definitely included in the process of making the constitution for international community. The project of the constitutionalization of international law should go hand in hand with the direction which maximizes benefits of international community. Put it differently, impetus for making the constitution for international community should be parallel with an everlasting attempt to enhance level of human rights protection. Some argues the idea of the constitution for international community could not be materialized and could not go anywhere under complex conditions of international law and international community. Yes, this argument might be true only if the project of the constitution for international community is explored in terms of lex lata. However, the attempt to realize the idea of the constitution for international community should be made in terms of lex ferenda because we have the solemn duty to make a better place for entire human race. This duty could not be performed properly without bringing fresh air to debates on the nature of international law for international community. It is high time that international law scholars should pay more attention to the project of the constitutionalization of international law.