A constitucionalização do direito internacional em face da Zeitenwende

Abstract

This thesis examines the impact of the ‘turning point’ (Zeitenwende) announced by German Chancellor Olaf Scholz — but here understood beyond the “Ukraine moment,” encompassing the pandemic, the war in the Gaza Strip, Donald Trump's aggressive and conservative foreign policy and his illiberal allies, the unbridled climate emergency, and other turbulent events of this decade — on international law and its constitutional components. It argues that the structure of international law shaped immediately after World War II remains resilient, although the Zeitenwende imposed a decisive brake on the process of constitutionalization that international law had been undergoing in recent decades. By critically engaging with the most influential approaches to global constitutionalism, drawing on renowned authors such as Anne Peters, Jan Klabbers, and Geir Ulfstein, the research contextualizes the emergence and evolution of various conceptions of the constitutionalization of international law, including the epistemological controversies surrounding its nature as “nontheory”, to highlight how it sought to establish itself as a descriptive and normative lens for the functioning of the international order. The thesis argues that the significant events on the global stage in the first half of the 2020s — wars, the pandemic, and populism, as well as their byproducts (political instability, trade protectionism, double standards, illiberalism, etc.) — represent concrete obstacles to global governance in accordance with constitutional values. In other words, the Zeitenwende, in its broadest sense, represents a brake on the approach to the constitutionalization of international law. To advance this argument, the thesis first provides a lengthy but necessary exposition of what it considers to be the main concepts of the constitutionalization of international law. It then describes the Zeitenwende announced by the German government, but then discusses how this term can (and should) be semantically expanded to account for the other disruptive transformations in global governance this decade. In its central section, the thesis argues why the international legal order, contrasted with the Zeitenwende, still resists, despite being stripped of the constitutional form it had been acquiring in recent decades. The deregulation of sanctions and the selective outcasting of sanctions against Russia expose a double standard in the international security regime implemented by the West, converting the rule of law into rule-by-law. The rise and transnationalization of illiberal democratic governments, averse to multilateral cooperation, in turn undermines governance in key areas such as international security, the free market, human rights, health, climate, etc. In this context, the conclusion is that, despite the subjectivity of the analyses of international facts that make up the Zeitenwende, it has decisively affected global constitutionalism. The foundations of the emerging post-constitutional international order remain dependent on the institutional inertia and strategic expediency of the main international actors.