Limitations of International Law in Confronting the Rise of Authoritarian Power and Protecting Human Rights: A Proposal for the Development of an International Constitutional Court

Abstract

The international community has never been more fragmented: authoritarianism and nationalism increasingly prevail despite a fully-fledged globalised world of interconnectivity and an abundance of power-sharing structures and institutions seeking to neutralise and balance such conflicting political affiliations and interests. This is exacerbated further by tensions between states which often render them on the cusp of full-scale military intervention and/or force, in clear contravention of international law. Thus, for many of us we live in a state of fear, wherein our political representatives instil in us a terror of the unknown, the other, and utilise this in order to implement politically-favourable policies and deviate from their constitutional and human rights obligations, often invoking the justification of a state of exception. Within this state of fear we are blinded by, and confined within, a perpetual state of exception. On the face of it, the victims are the citizens of the afflicted states, whose constitutional and human rights protections have been infringed- however, if we gauge victimhood from a long-term angle, we will perhaps discover that the greatest harm will be suffered by the international institutions and international law as a whole. The impact on the infrastructure will prove most deleterious. I assert that we must combat this unpredictability of the enforceability and clout of international law, especially with regard to human rights protections, through strengthening the constitution of international law and its mandate in order to prevent future deviation by authoritarian states.

In 1999 the government of Tunisia, spearheaded by former Tunisian President Mohamed Moncef Marzouki, recommended to the international community the establishment of an International Constitutional Court, akin to that of the International Criminal Court, in order to denounce constitutions, unconstitutional actions and elections. Although these efforts made headway in striving for the creation of an International Constitutional Court, in this paper I hope to seize the baton, so to speak, and further advance the necessity of such an institution on a theoretical plane.

As each day passes, the media and politicians construct and reveal new groups, individuals and states whom we should supposedly collectively fear- and yet fear and isolationism will prove more detrimental in the long-term to the status of human rights than any actions of those we are taught to fear. If we allow ourselves to respond to authoritarianism and the inherent fear which typifies it by compromising human rights and the structures of international law to a level of irreparability, then not only do we afford these self-appointed masters the satisfaction of doing so, but we also send a message to the world that exceptionalism warrants a breaking from human rights obligations. If we normalise this rule, the message becomes clear: during periods of exceptionalism, we all bear the risk of being reduced to the bare life of the Homo Sacer, and such a determination will not be our own to make. In the comfort of our 21st century, western capitalist lives, most of us have proven to be the deciders, or at least not the victims (Homo Sacer)- but as the tide of change sweeps over our globalised world, we increasingly see a protectionist and fearful world of increased authoritarianism within which the number of deciders has been reduced to a select few, and the number of Homo Sacer has proliferated. Post-09/11, we all must now bear the risk of being reduced to bare life: exceptionalism reigns supreme. In such a vitriolic context, where we are all capable of becoming victims of authoritarianism, we must fight for human rights protections with more zeal than ever. We must refrain from simply responding to a fearful-world with a corresponding fear and regression from our institutions and international norms- such a primitive instinct is impulsive and counterintuitive, tarnishing decades of progress by international institutions and international law, their mandate is to prevent such situations, we merely must empower them to do so.