of international law is a very popular subject for scholarly research and
debate in public international law. International constitutionalism argues that
international law can be conceived as a system of protection against and limits
on the arbitrary exercise of power by subjects of international law: states or
international organisations. In addressing this issue international lawyers
mostly operate based on analogy to western national constitutional structures.
Within this analogical reasoning human rights are always conceived as
international constitutional rights able to operate as constraints and
guarantees at the international level similarly to national constitutional
rights. International lawyers writing on the topic most often just shortcut
their reasoning by assuming that this analogy is valid and then proceed to
their argument in favour of the existence of constitutional structures in
public international law based on this assumption. What remains uninterrogated,
is the validity of the presumption that human rights function at the
international level as national constitutional rights.
Since the structures and mechanisms of international law are quite different,
to what extent national constitutional developments and mechanisms can be used
as models for public international law? Aren’t international lawyers too hasty
in their assumption that human rights will necessarily produce results similar
to national constitutional rights and that western constitutional model is the
best-suited for international law?
address these questions using the functional and structural comparative
approaches, looking at both national constitutional rights protection and
international human rights protection as assemblages, machines and mechanisms.
This approach is inspired by literary analysis developed by Deleuze and
Guattari and more specifically as it is applied in their work Kafka: Towards the Minor Literature.
 The only partial exception remains Stephen Gardbaum who attempted
to define more precisely the relationship between human rights and
constitutional rights. Unfortunately, his analysis is still maintains a set of
assumptions about analogy between human rights and national constitutional
rights. See e.g. S Gardbaum, ‘Human Rights and International Constitutionalism’
in JL Dunoff & R Trachtman (eds.) Ruling
the World? Constitutionalism, International Law and Global Governance (CUP: