Editor’s Note: This post continues our discussion of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law. In this post Prof. Peters responds to earlier posts by Professors Dunoff and Trachtman , Steven Wheatley, Jean Cohen, and  Dan Bodansky.

It is an honour to receive comments by distinguished experts on constitutionalism and international law. And it is fun to engage in a substantial discussion on difficult issues.

1. Method: All commentators raised important methodological issues.

Description and (‘top down’) prescription

Dunoff and Trachtman reproach us of a ‘top down’ approach to constitutionalism. In the introductory chapter, it was made clear that the book is, as such, a normative exercise, on a middle level of abstractness, and hooking onto existing legal rules, principles, and institutions. To the extent that this meant to ‘extrapolate’ trends (of constitutionalization), the study included the claim that these trends actually exist (a claim which was openly formulated in the book).

Dunoff and Trachtman also reproach us of embracing an ‘overly heroic vision of the law’. This critique manifests a disciplinary rift in the approaches of the two books, ours and the one edited by our critics. (see here). Dunoff and Trachtman espouse a more empirical method, more informed by social science. In contrast, we as a trio have not attempted to apply sociological methods, neither in quantitative not in qualitative terms. Our arguments are, as declared in Chapter 1, normative ones.

International constitutional law and politics

Steven Wheatley points out that the ‘language and metaphors of constitutionalism suggests a realm of (“neutral” and “objective”) discourse that sits above … politics’, whereas in reality the ‘global constitutional settlement … is the product of political debate, discourse, and will’. Along that line, Dunoff and Trachtman suspect us of *’under-estimating the role of international politics’.

Dunoff and Trachtman are right in saying that the enactment of positive law is only a ‘starting point, rather than a culmination’. Nevertheless, any (political) action does need a starting point. Under the rule of law, positive law is indeed a conditio sine qua non of governmental action. I postulate that there is an international rule of law which requires international governance to be based on legal rules (i.e. on formal and general prescriptions) as opposed to governance by ad hoc decisions.

Moreover, law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product (and desired consequence) of political activity, and an organizer and limit of political action. In particular, constitutional law is a branch of law which is very close to politics. (more…)

Chapter 7  of The Constitutionalization of International Law discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous. The chapter counters these objections.

1. The term ‘constitution’ might be a misnomer when applied to the international sphere. Also, the danger of blowing up an academic paper tiger is very real. Global constitutionalism as an academic agenda should follow the middle path between merely self-dignifying the status quo on the one hand and hanging onto pipe dreams on the other. In order to gain acceptance in the political realm, global constitutionalists might highlight the current situation of global interdependence. With such a state of affairs, national and global public interests tend to converge more and more, national interests and universal idealism are not necessarily in opposition. Given this convergence of global and national, an ‘idealist’ global constitutionalism which promotes global interests, may even, at least in the long run, further national economic and political interests as well, although some states benefit more than others.

2. The constitutionalist reading of international law might raise dangerously seductive over-expectations. (more…)

This post summarises the ideas in Chapter 6of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law.

1. Overview of the Argument

Global governance is undemocratic even under a modest standard. The deficits lie in the institutional design of the international organizations and bodies themselves, they result from the way states are integrated into the system of global governance, and finally they concern the relationship between citizens and the international institutions.

On the premises that all rule over persons should be democratic, and that the globalization-induced hollowing out of domestic democracy should be compensated as far as possible, the democratization of global governance is inescapable. Because a stand-still or roll-back of global governance is unfeasible, and therefore no way to re-invigorate democracy, a new design to enhance global democracy is needed.

Global constitutionalism requires dual democratic mechanisms. These should relate both to government within nation states and to governance ‘above’ states, thus to multiple levels of governance. The result should be a multi-unit democracy, built with domestic and international building blocks.

A fully democratized world order first of all rests on democratic nation states, thus on democracy within states. The spread and support of national democracies constitutes a kind of indirect global democratization. It already is and should be further encouraged by international law. Because of its fundamental and systemic importance, the requirement of democracy within states should be acknowledged as a global constitutional principle.

 ‘Above’ states, both the production of primary international law and the international institutions and their secondary law-making can and should be democratized on two tracks. On the one hand, citizens should continue to be mediated by their states which act for them in the international relations (statist track). On the statist track, states as principals of international institutions should be reasserted and their influence improved. But because the ultimate reference point of democracy are natural persons, such a state-mediated democracy is present only to the extent that states really are the representatives of their citizens. It follows that we can meaningfully speak of an indirect democratization of the global order on the statist track only when all states have realized domestic democratic government. As long as not all states are democratic, a large number of people are not represented in a democratic sense by their states in the international institutions. (more…)

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. (more…)

 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. Prior to taking up the tenured post she was Assistant Professor at the Walther-Schücking-Institute of Public International Law at the Christian Albrechts University Kiel, where she obtained the Habilitation-qualification on the basis of her Habilitation-Thesis “Elemente einer Theorie der Verfassung Europas” (Elements of a Theory of the Constitution of Europe).

The constitutional context of the popular vote of November 29

On 29 November 2009, the Swiss people voted in a popular referendum in favour of an absolute prohibition of the construction of minarets on Swiss territory. The vote was 57.8 % in favour, and 23[1] of the 26 cantons were in favour of the prohibition. The turnout was 53.4 %, which is relatively high for Switzerland.

 Currently, four minarets exist in this country, and one application for a construction permit is pending. The legal consequences for this pending application are not entirely obvious, whereas the consequences for future buildings of minarets are clear: Due to the popular decision, a new provision will be inserted into the Swiss Federal Constitution (Bundesverfassung/Constitution Fédérale)[2] which will enter into force immediately. The new Article 72(3) will be: “The construction of minarets is prohibited.”[3]

 The federal referendum was triggered by a popular initiative launched in April 2007 by a group of 16 people, 14 of whom were members of the “Schweizerische Volkspartei” (Swiss Popular Party), whose political programme is partly directed against migrants.

 Under the Swiss Federal Constitution, a federation-wide popular initiative can be launched by gathering 100’000 signatures of Swiss citizens (a population of roughly 7 million) within 18 months (Art. 139). Reaching this threshold was no problem in the case of the anti-minaret- initiative. The sufficient number of signatures was collected in July 2008.

Once the threshold had been passed, and the formal correctness of the proceeding had been verified by a governmental office, the material validity of the initiative was scrutinized before the text of the initiative itself was put to vote. The Swiss Federal Constitution prohibits popular initiatives which “infringe preemptory norms of international law” (Article 139(2)). It is incumbent on the federal parliament to examine whether this is the case or not (Article 173 (1) lit f.)). The reason for vesting the power of scrutiny in parliament and not in the federal court is respect for popular sovereignty. According to the framers of the constitution, the verdict of inadmissibility of an initiative, a verdict which obviously curtails popular sovereignty, should only be pronounced by that federal body which enjoys the most direct democratic legitimacy. Parliament is composed of the directly elected representatives of the people, whereas the Swiss federal court has only an indirect democratic basis (the judges being elected by the parliament).

 In the case of the anti-minaret-initiative, the parliamentary decision was easy. The initiative affects the freedom of religion as guaranteed under the Swiss constitution and under Article 9 of the European Convention of Human rights (ECHR), Art. 18 of the Covenant on Civil and Political rights (CCPR), and the international legal prohibitions of discrimination (Art. 14 ECHR and 2(1) CCPR). However, it is quite obvious that these fundamental rights do not pertain to the body of ius cogens, as defined in international law, accepted by Swiss practice, because a large number of states do not accept religious freedom, and many have submitted reservations relative to religious freedom to the universal human rights instruments. In the Parliamentary Resolution on the admissibility of the popular initiative,[4] the Swiss Federal Parliament highlighted that the adoption of the initiative would entail a violation of international law. However, Parliament did not have the power to declare the initiative inadmissible and void, because the wording of the constitutional clause on the inadmissibility of initiatives is clearly limited to ius cogens.

 Therefore, the initiative had to be put to a popular vote, and the government fixed the date of 29 November 2009. During the campaign, almost all political parties and the government recommended the people to vote against this initiative. The clear supportive result of 29 November was a big political surprise, because previous opinion polls had predicted only between 30 and 40 percent of approval, which would have not sufficed for an endorsement of the proposal. The clear outcome manifests a widespread diffuse fear of islamisation. The “victorious” Swiss popular party immediately announced to launch a second initiative targeted at a prohibition of burcas in the public sphere.

Domestic remedies against the prohibition

It is foreseeable that individuals will seek to challenge the new constitutional prohibition before the domestic judiciary. Clearly those persons will have ius standi who apply for a construction permit for minarets. Such an application will – due to the novel constitutional prohibition – necessarily be denied by the competent local authorities.

After exhausting the domestic remedies, such an applicant will be entitled to raise a constitutional complaint before the federal court with the claim that his or her freedom of religion has been violated by the refusal. The federal court (Bundesgericht) will not have any margin of discretion in deciding such a complaint, because the new provision prohibiting the construction of minarets has constitutional status. It therefore constitutes a constitutionally entrenched restriction of the constitutional rights guaranteeing the free exercise of religion (Article 15 of the Swiss Federal Constitution) and of the constitutional prohibition of discrimination on the ground of religion (Art 8(2) Swiss Federal Constitution). So far, the notion of “unconstitutional constitutional law” has not been accepted in Swiss constitutional doctrine. The prohibition of minarets has been adopted by the sovereign with the clear intention and in full cognizance of the curtailment of fundamental freedoms going with it. Therefore there seems to be no room for balancing in order to solve the conflict between the two opposing constitutional precepts.

(more…)