Dead or alive? Global constitutionalism and international law after the start of the war in Ukraine

Abstract

Russia’s continued aggression against Ukraine has sent shock waves around the world. Russia has violated the most fundamental rule of international law and most people intuitively feel that the war in Ukraine has changed the entire landscape of international society. Given what is clearly a turning point, it is difficult to assume that global constitutionalism founded on ‘human rights, the rule of law and democracy’, called ‘the constitutional trinity’, will not undergo any changes. Can global constitutionalism survive such a difficult moment? This is a fundamental question that global constitutionalists must address. This article answers this question in the affirmative. First, despite its gross violations of international law, Russia is not necessarily attempting to withdraw from the current framework of international law. The existing individual-centred elements in international law, which are the central pillar of global constitutionalism, will not be replaced by any alternatives. Second, even if the existing framework of international law remains viable, there is an undeniable risk that the polarization of international law accelerated by the ongoing war will negatively affect global constitutionalism. Such polarization may hollow out the constitutional trinity in international law. However, global constitutionalism will continue to function as the principal cognitive framework for international society because the exercise of individuals’ rights embedded in international law will incessantly provide energy for global constitutionalism. This article concludes that insofar as international law keeps its individual elements, global constitutionalism will be able to retain its normative power under the present predicament in the world.