Private actors and institutions, and by extension private law itself, are increasingly being forced to reckon with a multiplicity of challenges that extend beyond the domain of private law as it is traditionally conceived. They reflect threats to the global constitutional order and liberal constitutionalism, and threats to individual and collective fundamental rights and constitutional values. As a result, the role of private law in framing and facilitating the development of the global economy and globalization often does not fall within the direct purview of public international lawyers. This editorial aims to examine the role of private law in the litigation and enforcement of public interests against the background of the public/private divide. This is done in light of the increasing role adopted by private actors, including corporations, beyond the private realm.

This introduction briefly discusses the global constitutional issues raised by ocean governance and introduces the three pieces from our Agora contributors.

The recent fortieth anniversary of the United Nations Convention on the Law of the Sea (UNCLOS) has sparked a good deal of reflection and retrospection. Looking back, it is clear that the Convention’s architects carefully navigated, and selectively absorbed, a number of competing visions of oceanic governance, from freedom to enclosure to visions of Global North–South equality. This made the Convention’s construction period a very drawn-out and painful one – longer than for any other international treaty in history – and while some hopes were realized, others were dashed. Forty years on, it is important not to let its current canonical status blind us to the fact that the Convention came close to being a failure, and that things could have gone differently at a number of critical junctures. Nor should it stop us asking whether UNCLOS is really fit for purpose today. In this article, I situate the Convention within wider developments in the global economy and the global environment, and consider the role it has played in promoting goals of global justice and environmental protection.

There is increasing awareness that the ocean touches all aspects of our lives and that a healthy ocean is central to a healthy planet and sustainable future. The ocean is a highly connected system and ocean science is characterized by voluntary international collaboration supported by an enthusiastic and engaged community. Increasingly, it is being recognized that international structures and instruments need to be stronger and more holistic than the current arrangements. This article outlines some perspectives on this, drawing on experience in ocean science and scientists at national, international and intergovernmental levels.

Firmly cemented in history as a connector of people, a facilitator for trade and transport routes and a driver of culture and heritage, the ocean has directly influenced globalization, and humanity more generally, for generations. While the ocean was perhaps once viewed as infinite and insurmountable, globally our oceans, coasts and seas have experienced unprecedented change in recent decades with climate change, loss of biodiversity and overfishing among the challenges being addressed through contemporary ocean governance. Moreover, and crucially as we continue to strive for sustainable ocean futures, the global ocean is increasingly being recognized as a peopled space. This article explores the role of ocean literacy as we look towards achieving sustainable ocean futures.

The contemporary crisis in relation to constitutional literacy relates not to the lack of knowledge that citizens possess about fundamental constitutional texts, but to the considerable lack of development in relation to what constitutional literacy itself entails. This article accordingly unpacks the notion of constitutional literacy: its importance, its characteristics, and its variable nature. Using a comparative lens, the article invites reflection on the role we expect citizens to play in our democracies, and especially the associated knowledge and skills required for successful state performance. We suggest that constitutional literacy is exceptionally multifaceted and fluid in nature, which serves to make its conceptualization and measurement challenging endeavours, and certainly more so than the easy invocation of this notion may assume at first blush. In this regard, engaging with the constitutional text, while an integral component of constitutional literacy, is ultimately only one part of the puzzle.

Hong Kong presents a test case of China’s willingness to adapt Western liberal values of individual freedom and the rule of law in a corner of China. The Western model of governance, along with its common law system and capitalist economic system, has been permitted to operate side by side with the Chinese socialist system within the framework of Chinese sovereignty and the People’s Republic of China’s (PRC) political and legal system. The formation and implementation of the policy of ‘one country, two systems’ (OCTS) entail Chinese law-makers’ selective integration of international and Western rules of governance into the Hong Kong and China context to serve the interests of the PRC party regime. This article explores the approaches taken by the PRC to the governance of Hong Kong in light of the regime’s political and economic goals and how the Western concept of rule of law and autonomy is perceived and substantiated in terms of the communist ideology. The author argues that the intrinsic value of OCTS lies in seeking complementarity and coexistence between the Western liberal norms of governance and Chinese communist ideology, and that this intrinsic value should be upheld and remain in full force to serve as a normative consensus between China and the West.

This article provides a comparative analysis of how courts have performed judicial review on supermajority rules governing courts’ decision-making. Through an empirical approach, covering the cases of the United States, Peru and Poland, the article argues that the supermajority’s legal source and the chronology of its establishment may influence the court’s ability to review such rules and the case’s outcome. Finally, the article addresses the paradox of whether courts must apply the very provision they are tasked to review.

There has been much recent debate over whether the European Union is or should be a ‘militant democratic’ actor in order to respond to democratic backsliding in EU member states. This article argues that the EU is a militant democracy in a specific and limited sense, but that this may be normatively undesirable from a democratic perspective. I first develop a definition of militant democracy that focuses on the militant democratic paradox. I argue that the strongest justifications for militant democracy require that two conditions are met: an ‘existential threat condition’ and a ‘necessity condition’. Next, I analyse four ways in which the European Union has been said to be empowered to act in a militant democratic fashion to combat democratic backsliding in EU member states. I show how some, though not all, of these warrant the label ‘militant democracy’. Moving from the descriptive to the normative analysis, I then consider whether the necessity condition can ever be met since there is always the possibility of non-militant responses through forms of EU disintegration. If we accept this argument, EU actors should prioritize robust non-militant measures where possible while pro-democratic member states should disassociate from frankly autocratic member states where non-militant measures fail.

The constituent power theory, which served critical functions for several years, has outlived its utility as the preeminent yardstick to measure the normative legitimacy of a constitution. As the theory stands, it cannot apply on its own terms to most instances of modern constitution-making. At the same time, it is highly susceptible to being used to legitimize authoritarian outcomes. The scholarly literature that attempts to reimagine or expand the theory is scant and unable to overcome its problems. In response, this article develops an alternative standard: the theory of equitable elite bargaining. This theory provides that a constitution is normatively legitimate if it is the product of an equitable bargain between elites from most major political groups in society at the moment of constitution-making. The theory of equitable elite bargaining is applicable to the realities of modern constitution-making and makes it more difficult to legitimize authoritarian constitutions. Further, both representation-based and consequentialist arguments can justify a constitution drafted in accordance with the theory as normatively legitimate. The theory imposes a standard that can result in arduous constitution-making processes and moderated constitutional content. Additionally, its focus on elites poses challenging questions. However, this article will argue that the net benefits of this theory warrant its consideration as a new standard to assess normative constitutional legitimacy.

This introduction to the symposium ‘How do Constitution-Making Processes Fail? The Case of Chile’s Constitutional Convention (2021–22)’ situates the project in the field of constitution-making, provides context regarding the Chilean case, summarizes some possible explanations for the failure, and describes how each article contributes to the symposium as a whole.

This article extends the study of the shortcomings of the constitution-making design that contributed to the failure of the Chilean process by addressing a largely overlooked aspect: the 2020 entry referendum. By placing two competing constitution-making models on the ballot, the political elites delegated to the voters a highly conflictual aspect of the process design that prevented cooperation among them. While some political parties approached the disagreements placed on the ballot as an opportunity to reopen discussions already settled by the 2019 Agreement, others interpreted the move as a cancellation of the political insurance contained in the Agreement. This exacerbated the existing polarization among political elites and imperiled prospects for the success of the process.

Chile’s experience with its Constitutional Convention from 2021 to 2022 sheds light on an important issue for comparative reflection: the role of procedures in constitution-making processes. The Constitutional Convention was bound by procedures that were both externally imposed and internally created. Our assessment is that, while some procedures improved representation and deliberation, the most important decision-making procedures were pernicious to the process. We argue that looking at procedures is fundamental when analysing constitutional processes, as the rules that bind rule-making processes can significantly impact not only their functioning, but also their outcomes.

The Constitutional Convention in Chile, like other constitution-making mechanisms in democracies, carried out its work within the democratic institutional framework. In a democracy, the success of a constitution-making process depends not only on internal factors, such as its capacity for representation and the procedural rules by which it is governed, but also on external factors such as participation, the government’s role and other contingent factors. When the process – including both internal and external factors – fails to produce adherence to the new constitution, institutional resistance to changes is very likely to occur. This article argues that the manner in which the political and social spectrum was represented in the Chilean Convention, combined with the way participation was implemented and the rules governing the Convention, insulated it from society and the rest of the democratic institutions. As a result, party and public adherence to the proposal made by the Convention was low and its contents generated institutional resistance from outside.

This article suggests that the conditions under which the Chilean constitutional process of 2021–22 undertook its task held the seeds of its doom. Constitutional conventions are always tasked with reaching agreements on the controversial allocation of decision rights, and doing so is no simple feat. The Chilean process combined (1) very dispersed preferences regarding the problems the new constitution should solve and the institutions to best enable solutions, with (2) a brief timeframe to allow for agreements to emerge, aggravated by (3) a composition of the Convention that was dominated by independents lacking experience in legislative bargaining, and (4) a severe disenchantment of the population with parties and politics as the backdrop. Together, these hurdles proved impossible to overcome. Despite the notorious political achievements of the Committee we study here, the proposal that came out of Chile’s Constitutional Convention in 2021 was plagued by controversy and a negative perception of the Convention’s work, and was ultimately rejected by the people.

In 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.

In Chile, many commentators, academics and political leaders have spent years arguing that the limited nature of the social rights in the national constitution is partially responsible for the country’s economic and social inequality. It is thus unsurprising that changing the scope of the country’s social rights was a major focus of the recently failed constitutional reform effort. However, we argue that the long-running claim that Chile’s social problems were due to the limited nature of social rights can be thought of as social rights scapegoating, by which we mean that commentators blamed outcomes on constitutional rights, even though there is little evidence that countries’ socio-economic outcomes are a product of their social rights.

In this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text and the views and support of key groups. In Chile, both relationships were problematic. First, the Convention adopted a draft that was heavy on ambitious programmatic content but lacked a clear vision of how to implement it. Second, the Convention produced a draft that was supported by the ephemeral civil society groups galvanized by the 2019 protests but divorced from the vision of Chile’s parties and public opinion. Some of this was a product of the peculiar electoral context in which the Convention acted, which has already been corrected. But some of it reflects deeper tensions within transformative constitutionalism.

This article shows how failed constitutional proposals may contribute to future constitution-making processes by exploring the relationship between the recently failed Chilean constitution-making process (2019–22) and the previous unsuccessful one led by former President Michelle Bachelet (2015–17). Comparative constitutional scholars are yet to fully understand how constitutional failures of this kind can take place, and Bachelet’s process has not received the attention it should. This article fills that gap by showing how both processes were driven by shared principles initially set by Bachelet. It also shows how those principles may serve as a blueprint for future constitutional changes in Chile. Bachelet had campaigned on the basis that any constitutional replacement attempt should be participatory, institutional and democratic – all ideas that have remained popular in Chile’s political landscape. Those ideas have served the purpose of both reducing transaction costs among constitutional negotiators and securing large compromises in polarized political scenarios.

Constitutions change in different ways, and some constitutions – such as the Chilean Constitution – change often. The significant changes to the Chilean Constitution have been frequent and fast, and they have accompanied the failed constitution-making processes of the previous years. Examples include crucial sub-constitutional statutes such as the electoral system regulation and same-sex marriage, political practices challenging the power of the president in the law-making process, constitutional rules such as term limits for legislators, judicial practices such as the enforcement of social rights and the amendment procedures of the Constitution itself. Despite the successful attempts at reforming the Constitution and the failed attempts at replacing it, Chileans are still trying to replace the constitutional document. However, the constitutional framework has become unstable, making it harder to agree on what exactly is wrong with it. This article seeks to open a conversation in the constitutional literature. It argues that constitutions can become moving targets and uses the Chilean case to show the need to theorize more about the moving target problem.