Anne Peters is Professor of Public International Law at the University of Basel, a position she has held since 2001. In the academic year 2004/05 she was Dean of the Faculty of Law. She is a member of the Scientific Advisory Board of the European Journal of International Law. This post summarises the ideas in Chapter 5 of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law.
There is a global constitutional community which is made up by individuals, states, international organizations, NGOs, and business actors. From a constitutional perspective informed by normative individualism, individual human beings are the ultimate unit of that community. But because states are officially held to be the legal representatives of citizens on the international plane (however fictitious this might be for some states), are still – as a group – the most powerful global actors, and are (in most areas of the world) important repositories of political, social, and cultural identity, international law and global governance must remain, in order to preserve a sufficient level of legitimacy, linked to states. The ultimate responsibility for governance should not be transferred to non-state actors and certainly not on business actors. However, the involvement of non-state actors in law-making and -enforcement can be an important additional source for the legitimacy of global governance. It should consequently be broadened, structured, and formalized.
1. In a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community. Individuals are so far quite firmly entrenched as international bourgeois, i.e. as passive beneficiaries of largely unenforceable rights. They have been granted more and more international rights and obligations beyond human rights, such as the right to environmental information, procedural rights in various international forums, or secondary rights to reparation. Individuals may also incur criminal liability flowing directly from international law. This trend contributes to the creation of different layers of rights (those of constitutional significance and others), and thereby manifests constitutionalization in the sense of an emergence of a specific layer of constitutional law besides (possibly ‘above’) ordinary international law.
There is a very weak trend towards the inclusion of individuals in the international legal process through hearings, giving opportunities to comment, and other types of participation. Individuals are thereby in political terms empowered. The doctrinal consequence of the citizens’ right to political participation in global governance – which is in constitutional terms desirable – is that individuals are upgraded from mere passive international legal subjects (as holders of human rights and bearers of criminal responsibility) to active international legal subjects, to co-law makers. The legally relevant difference is that passive subjects are only capable of having rights, whereas active legal subjects are capable to create law. This empowerment could be described as a trend towards transnational citoyenneté.
2. States – as international legal subjects – are constituted by international law. As a prerequisite of statehood, the legal principle of effectiveness has in state practice been complemented by standards of legality properly speaking. Read the rest of this entry…