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.

Still, the ‘legalization’ of political problems (regarding constitutionalization as a special type of legalization) modifies the debate surrounding those problems by introducing a different, juridical logic. Against Dunoff, Trachtman, and Wheatley, it might be argued that such a (relative) de-politization of international relations is not a disadvantage, but a plus, because international relations are as a general matter rather too politicized. The introduction of legal and even constitutional principles contributes to the stability of expectations, legal certainty and equal treatment of the relevant actors. This remains true although international legal rules, and especially those which might be called constitutional ones, are linguistically open, and allow room for value judgments. Powerful political players might deploy constitutionalism in order to realize individual interests under the cover of legal argument.

For this reason, there is dialectic at work. While the evolutionary dynamics of constitutionalism leads to a legalization of politics (as argued above), it also leads to a stronger politization of law. As pointed out in chapter 7, the call for constitutionalism precisely triggers political contestation, and does not deny or pre-empt it.

International constitutional scholarship and politics

Parallely, international constitutional scholarship does comprise a moral and political commitment, as critical legal scholars have unmasked it − but this is a not the death blow to scholarship as scholarship. The saturation of international constitutional scholarship with values is no methodological flaw per se. The 1920s’ debate on preconceptions (Vorverständnis) in sociology and the 1970s’ positivism debate have yielded the insight that international legal scholarship can (in a certain limited sense) be separated from political engagement. Historical experience shows, moreover, that scholarship and politics should be separated. This does not mean that political problems should be excluded from the academic discourse, but merely that value judgments should not be packaged as scholarly findings.

Hence, international constitutional scholarship may be called ‘value-neutral’ (only) to the extent that it does not generate norms, but only theories about norms. An international (constitutional) scholar can only argue ex suppositione in favor of norms: If norm A and B are valid, then norm C must also be valid. For example: If there is an international legal principle requiring new states and territories under international administration to be organized in a democratic fashion, and if a purely transitive justification of international institutions via democratic governments does not work, then international institutions themselves have to be democratized through mechanisms of participation of natural persons. In that way, international constitutionalist scholarship may offer suggestions which may be picked up by political actors vested with formal law-making power − or not. Further, it is not ‘unscholarly’ for scholars to formulate own political goals and suggest solutions, so long as one does not purport that these political objectives are scholarly founded. Seen in this way, there is nothing to prevent scholars from advising the law-making bodies, so long as the researcher make clear to ourselves and the reader, ‘exactly at which point the scientific investigator becomes silent and the evaluating and acting person begins to speak’, as Max Weber famously put it.[1]

But this ‘separation’ of international constitutional scholarship from international constitutional politics is far from watertight. By highlighting these trends of constitutionalisation, we – as legal scholars – in fact contribute to strengthening them. The reason is that description and creation of the law may in some instances intermingle. The object of both the legal process and of legal scholarship is the law, and the observer standpoint (‘scholarly’ description) and the participant standpoint (‘political’ creation) are easily confounded. The not uncommon changes of professional roles (from law professor to a judge, a diplomat, or a government official and vice versa) facilitate this. In international law, this confluence is acknowledged as legitimate by Article 38 (1) lit. d) ICJ-Statute which admits ‘the teachings of the most highly qualified publicists’ as a ‘subsidiary means for the determination of the rules of law.’

But despite the overlap and interaction of law creation (i.e. legal politics) and legal analysis, the main objective and potential of legal scholarship such as ours is not to shape the political landscape and to take decisions, but to generate knowledge and to contribute to a better understanding of the law, including a better understanding of the law’s (and a constitution’s) functions in politics. I personally aspired to do this, but there is probably always be room for improvement!

Non-ideal theorizing

Jean Cohen finds that no energy should be spent on ‘endless normative arguments and ideal theorizing’. I think that it is the legal scholar’s role to come forward with ideal and non-ideal theories. I conceive of theories as models or structures rather than as systems of statements. Theories should express the patterns or structures of data or of phenomena in the field under observation, as parsimoniously and concisely as possible. They should condense or compress the data and reduce complexity. Theories in that sense do not comprise the declaratory versus the constitutive ‘theory’ of recognition of statehood, nor the constitutional against the internationalist ‘theory’ with regard to Art. 46 Vienna Convention on the Law of Treaties, nor the absolute against the relative ‘theory’ of reservations to multilateral treaties. These are not theories, but merely singular recommendations for solutions to individual legal questions.

By contrast, there are theories in law that do reduce complexity, and in our book, we drew on the reservoir of constitutional theory. An example of such a ‘data-condensing’ theory is that of subsidiarity. The idea of subsidiarity forms the common basis of different rules (e.g. the local remedies rule, the priority of regional organizations over UN peacekeeping operations, and the complimentarity of the International Criminal Court to domestic courts in the prosecution of international crimes under Art. 17 ICC Statute). On the basis of this reduction of complexity, scholars can show that the subsidiary responsibility of the international community for guaranteeing human security when the territorial state fails in its duty to protect ‘fits’ into the international legal system. Demonstrating such a doctrinal, systemic, and ideational fit means to demonstrate constitutionalization.

Idealism and pragmatism

Constitutionalism ‘might produce a euphoria that distorts vision and obscures the need for the pragmatic, ongoing efforts’, write Dunoff and Trachtman. There is a danger in that sense, but the opposite danger of exaggerated pragmatism exists as well. Resorting to the vocabulary of constitutionalism might not only ‘narcotize’, but also sharpen consciousness and increase awareness for the difficulties in implementing constitutionalist ideas.

International legal scholars should and can steer a middle course between idealism and pragmatism or rather combine both attitudes. On the one hand, a scholar suggesting a particular legal institution de lege ferenda should reflect beforehand about the political chances of success. On the other hand, overly ‘pragmatic’ and ‘realist’ legal solutions which anticipate the expected political and practical difficulties of implementation would hardly be innovative. Any expert proposal will anyway be modified in the political debate leading to its adoption. The scholar should not practice anticipatory obedience to reality, because then she gives up a distinct quality of law, namely its counter-factualness. It is along this line that I suggested a constitutional role for business actors and NGOs in law-making and law-enforcement.

Holism and particularism

Daniel Bodansky points out that constitutionalism is a ‘too protean concept … that it does not provide clear answers to many questions’. Because the meaning of ‘constitutionalism’ is so unclear, it may not really be a helpful short-hand, but on the contrary confusing.

Indeed, as admitted in Chapter 7, there is the danger that reliance on constitutionalism is actually counterproductive because it may postpone rather than encourage concrete debates on concrete problems, such as decision-making in the WTO, the composition of the UN Security Council, or how to liaise national parliaments to the UN.

However, the added value of the constitutionalist paradigm might lie in its comprehensive nature. The normative claim is that the different features of constitutionalism are not merely additive, but that the whole is more than the sum of its parts. The various constitutionalist features, such as more inclusive and transparent decision making and judicial review, should go together, and that in combination they take on a special normative significance. If this is true, the constitutionalist reconstruction does possess an additional explicative and prescriptive value. It reminds us of the interlinkage of the various features of constitutionalism, and calls for complementing the existing constitutional features of international law (such as judicial review of governmental acts) with missing ones, such as democracy and judicial review of acts of international organizations. To some extent, as argued in Chapter 7, there is indeed constitutionalist bootstrapping.

2. The Global Constitutional Community

In his comment on chapter 5, Steven Wheatley asks two questions: First, is it analytically meaningful to speak of a global constitutional community? And, second, is the ‘constitutionalist concern to establish political legitimacy’ not normatively flawed?

Wheatley’s answer to the first question is that, with a view to the ‘fragmented systems, it is difficult to conclude that the plurality of regulatory regimes construct (even hypothetically) a Global Constitutional Community’.

My response to the first, analytical, question is that the idea of an international community is entrenched in positive law, and often referred to, e.g. in Security Council resolutions. It is mentioned in Art 53 VCLT and in Art 42 lit. b) and 48 sec. 1 lit. b) of the ILC-Articles on the Responsibility of States for International Wrongful Acts of 2001. As argued in chapter 1 and elsewhere in the book, constitutionalism indeed responds to the fragmentation of international law by offering some overarching (constitutional) principles.

Two aspects must be kept in mind in this context. First, fragmentation as such is not obnoxious for a legal order, but rather the possibly resulting legal inconsistencies, legal lacunae, conflicts of jurisdiction and so forth. Until today, such legal consequences have materialized to a lesser extent than predicted by pessimists. On the contrary, monitoring bodies and courts in different regimes have frequently relied on general principles or have transferred specific institutions from one field to the other. For example, the precautionary principle, as elaborated in environmental law has been applied in the law of humanitarian assistance. One possible explanation of such transfers is that the transferred principle is indeed a constitutional one.

The second aspect is that constitutionalisation might also be conceived as a sectoral phenomenon, with different regimes having their own constitution. Gunter Teubner’s constitutionalisation approach based on general systems offers a theoretical basis for this view. The result would indeed be not one constitutional community, but various ones.

Steven Wheatley does not clearly answer his second, normative, question but seems to tend to the view that the idea of a constitutional community is an ‘elite project imposing a liberal paradigm on all communities in world society’. This reminds me of Proper Weil’s famous critique that the concept of an international community conceals a de facto oligarchy. Weil pointed out that there ‘is a danger of the implantation in international society of a legislative power enabling certain states – the most powerful or numerous ones – to promulgate norms that will be imposed on the others’. Thus, concepts such as that of the ‘“international community” may become code words, lending themselves to all kinds of manipulation, under whose cloak certain states may strive to implant an ideological system of law’.

In response to Wheatley’s – and Weil’s – normative critique, I submit, as in chapter 5, that the constitutionalist paradigm is both a useful extension of the concept of the international community and apt to counter the critique of concealed oligarchy. Stating that the international community is a constitutional community evokes the constitutionalist principle of democracy and thus offers leverage for making visible and arguing against the privileges of some states, such as the permanent members of the Security Council. Moreover, constitutionalism provides both a parsimonious explanation for the existing community-like features of the international legal order, and allows extrapolating these features in an adequate way.

For example, the constitutionalist paradigm explains the existence of erga omnes norms. Why should certain obligations create rights or at least interests for non-affected actors, and possibly even allow those to apply countermeasures or to raise claims? One answer could be that those actors are members of the constitutional community. A body of (international) constitutional law, even if not codified in one single document, provides some glue to hold actors together, because it sets out common objectives or aspirations, and defines the rules of interaction. This type of integration makes the legal possibility of claims by not directly affected actors much more plausible. On the other hand, the establishment of hierarchical centralized enforcement mechanisms, which would be an important component of an international constitutional order, could also render the concept of erga omnes norms superfluous. Erga omnes norms seem to be a device to facilitate the protection of community interests in a ‘horizontal’ manner in the absence of hierarchical enforcement.

Moreover, a constitutionalist reading allows overcoming the dichotomy between original, full international legal subjects on the one hand and derivative and partial legal subjects on the other. This dichotomy was in reality only a re-ification of the distinction between states as the makers of international law and all other, newer, subjects, such as international organizations or individuals. In opposition to this view, the constitutionalist approach decentres the state. If the international system is conceived as possessing constitutional law, the following argument can be raised: Once a constitutional order has been set in place by the global multiple pouvoirs constituants, it does no longer make sense to speak of ‘original’ legal subjects, because all subjects have been transformed into pouvoirs constitués. Therefore, the distinction between ‘original’ and ‘derivative’ subjects breaks down. The various types of members of a constitutional community have different rights and obligations, as defined by constitutional law, but there is no categorical distinction between states and all others.

I do not deem it fair to qualify constitutionalism, or – more specifically – the idea of a constitutional community – as an ‘elite project’, apart from pointing to the obvious fact that scholarly writing is done only by a very small number of people. Constitutionalist thought has in historic terms been developed in Europe. But even in 18th- and 19th-century Europe, constitutionalism was asserted against the dominant culture and the establishment. Moreover, it is a reaction to the universal experience of domination by humans over other humans. In that sense, constitutionalism is universalisable.

3. Constitutionalism and democracy

Jean Cohen and Steven Wheatly have commented on chapter 6 ‘Dual Democracy’. Chapter 6 does not equate constitutionalism and democracy. Quite to the contrary, as a scholar raised in the German constitutional tradition, I am aware of the (somewhat simplified) distinction between two historical constitutionalisms: the German one which espoused constitutionalism (in form of a written constitutional document) without democracy (in the form of law-making by the people) as opposed to the Anglo-American tradition of viewing the rule of law and popular (or parliamentary) sovereignty as going hand in hand.

Our book devotes one chapter to the constitutional principle of democracy, not because it is more important than other constitutional principles but because democracy is more conspicuously absent in global governance, and because it seems particularly difficult to build in democratic elements in the design and operation of global governance.

Steven Wheatley asks why I posit that all rule over persons should be democratic. The answer is that I consider democracy to reconcile best individual freedom and equality with life in society. Moreover, democracy specifically accommodates the basic facts of diversity, disagreement, and cognitive bias, and is therefore particularly relevant for the global scale. Political institutions should be designed so as to equally advance the interests of persons who are substantially affected by (or as Steven Wheatley calls it ‘subjected’ to) those institutions. Because the diverse interests and backgrounds make people cognitively biased towards their own interests, the objective of equally advancing affected persons’ interests can only be realized through an equal say. This reasoning is especially pertinent for global decision-making, because on a global level there is particularly strong disagreement about how the world should be shaped. This calls for a global collective decision-making process which grants each human an equal say in decisions affecting him or her.

However, as Jean Cohen agrees, affectedness a such is no operational criterion for determining who has a relevant interest in a certain development policy measure. In times of globalization, almost everybody in the world is affected by some decisions taken at any other place on the globe, especially in the field of finance, economy, and environment. Not every remote affectedness should be allowed to trigger a person’s right to democratic participation in that decision. A threshold would have to be defined. This is difficult but unavoidable.

In chapter 6, it is argued that the promotion of democracy within nation states is a central principle of global constitutionalism because domestic democracy is the foundation of a transitive global democracy, and because domestic democracy promotes global goods such as peace.

But, as Jean Cohen rightly points out, it would neither be feasible nor desirable to exclude China, as an undemocratic state, from the UN. The international (constitutional) principle which requires states to strive towards democracy indeed operates differently on ‘old’ and ’new’ states. The successor states of the Soviet Union and Yugoslavia, East Timor and Eritrea, all of them created after 1989, were from the outset on established as democratic states. While this may have initially been done as a matter of political expediency, this practice gave rise to the international constitutional principle that new states must be democratic. It would have been inconceivable, for example, to create an undemocratic state of Kosovo. The international constitutional precept has not prevented some states from sliding into totalitarianism. International sanctions against those states, such as Belarus, have been weak, but still manifest a political, and I would argue, also a legal commitment (enshrined in numerous UN documents), to democracy. In contrast, ‘old’ states such as China are treated differently under international law. They are not divested of their legal status as a state because of their lacking democratic government. The difference in treatment is justified because it is in practical terms more difficult to reorganize a state than to create new democratic structures in a situation where there is anyway an institutional vacuum. The different evaluation of new and old states does not amount to double standards as long as the normative direction imposed on them, towards more democracy, is the same.

Another difficult question, asked by Steven Wheatley, is ‘how democratic systems of state law should react to the jurisdictional assertions of systems of global regulation’. In the absence of a normative hierarchy which ascribes priority to global rules, other techniques of coordination must be found. One technique might be a qualified rule of recognition as long as (‘solange’) minimum equivalent (but not necessarily identical) constitutional standards are respected by the conflicting or competing regime.

A final issue raised in the comment on chapter 6 is that of ‘political form’ (Jean Cohen). Also, Jean Cohen misses a more explicit discussion of the federal analogy of a political entity composed of individuals and states. To the extent that ‘political form’ is meant to pay more attention to political feasibility and political will, I have discussed this above. But the quest for giving a political form to the combined setting of global and national governance should not mean a debate on the ‘constitutional form’ in the style of the antique writers and their commentators. Samuel Pufendorf had called the German Empire ‘monstro simile’ because it did not correspond to one of the established forms: monarchy, oligarchy or democracy, and this has been recalled in many debates on the EU. Instead of giving labels, concrete institutions such as parliamentary assemblies or consultative referendums should be described. Surely, this can, in future work, be made more specific.

[1]           Max Weber, “Objectivity” in Social Sciences, in The Methodology of the Social Sciences 49-112 (Edward A. Shils & Henry A. Finch trans and eds., 1949, orig. 1904), at 60.

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. The vocabulary makes it virtually impossible to escape from the assumptions that go with it. Social legitimacy might be artificially constructed through the use of constitutional language. The response is that ‘constitutionalism’ is not a ready-made answer, but – on the contrary – a perspective which might help the right questions of fairness, justice, and effectiveness to be asked.

3. Another concern is that the concept of international constitutionalism suffers from oversell and vagueness. International law, politics, and economics are being mixed, if not confused. Indeed, there is the danger that reliance on constitutionalism is actually counterproductive because it may postpone rather than encourage concrete debates on concrete problems, such as decision-making in the WTO, the composition of the UN Security Council, or how to liaise national parliaments to the UN. However, the added value of the constitutionalist paradigm might lie in its comprehensive nature. The normative claim is that the different features of constitutionalism as a whole are more than the sum of its parts. More inclusive and transparent decision making and judicial review should go together, and in combination they take on a special normative significance. Therefore the constitutionalist reconstruction does possess an additional explicative and prescriptive value. It reminds us of the interlinkage of the various features of constitutionalism, and calls for complementing the existing constitutional features of international law (such as judicial review of governmental acts) with missing ones, such as democracy and judicial review of acts of international organizations. To some extent, there is indeed constitutionalist bootstrapping.

4. Another concern is culturalist. The constitutionalist reading of international law may be genuinely anti-pluralist. It may have a uni-civilizational, notably European, bias built into it. In response it might be pointed out that while constitutionalist thought has in historic terms been developed in Europe, it is a reaction to the universal experience of domination by humans over other humans. Even in 18th- and 19th-century Europe, constitutionalism was not a confirmation of European culture, but asserted against the dominant culture and the establishment.

A ‘moderate’ constitutionalist reading in no way implies a uniform, coherent world constitution, and certainly does not imply the quest for a world state. The idea is not to create a global, centralized government, but to constitutionalize global (polyarchic and multi-level) governance. This project must indeed take more fully into account the needs and interests of developing countries and their populations.

5. The constitutionalist reconstruction of international law might be a reasonable strategy to compensate the de-constitutionalization on the domestic level which is effected by globalization and global governance. Globalization puts the state and state constitutions under strain. Global problems compel states to co-operate within international organizations, and through bilateral and multilateral treaties. Previously typically governmental functions, such as guaranteeing human security, freedom and equality, are in part transferred to ‘higher’ levels. Moreover, non-state actors (acting within states or even in a transboundary fashion) are increasingly entrusted with the exercise of traditional state functions, even with core tasks such as military and police activity. All this has led to governance which is exercised beyond the states’ constitutional confines. This means that state constitutions can no longer regulate the totality of governance in a comprehensive way. Thereby, the original claim of state constitutions to form a complete basic order is defeated. National constitutions are, so to speak, hollowed out; traditional constitutional principles become dysfunctional or empty. This affects not only the constitutional principle of democracy, but also the rule of law, the principle of social security, and the organization of territory. In consequence, if the basic principles of constitutionalism are to be preserved, one must ask for compensatory constitutionalization on the international plane.

6. The constitutionalist reading of international law contributes fresh arguments to an old controversy which recently popped up again, namely the controversy whether international law is real ‘law’. The new deniers of international law (Völkerrechtsleugner) justify the ostensibly non-legal character of international law with the absence of hard enforcement mechanisms and with the democratic deficit of international law. The constitutionalist approach is useful here because it helps to overcome the narrow focus on sanctions and on top-down enforcement.

Also, the interpretation of particular norms and structures as ‘constitutional’ may provide an interpretative guideline. For instance, a constitutionalist approach to reservations to human rights treaties leads to admit them only restrictively by interpreting Article 19 lit. c) VCLT extensively: Reservations will presumably contravene the ‘object and purpose’ of such a treaty, whose purpose is to protect human rights effectively. They will therefore be presumptively inadmissible and also severable from the treaty, which should remain in force and fully bind the parties without that reservation. A constitutionalist-minded international lawyer will, to give another example, determine the supremacy of international law over domestic constitutional law in a non-formalist way. She will pay less attention to the formal sources of law, and more to the substance of the rules in question. In a constitutionalist perspective, the ranking of the norms at stake must be assessed in a more subtle manner, according to their substantial weight and significance.

7. Another objection is that global constitutionalism conveys a false necessity and false rigidity that it is too a-political or pretend to be above politics. My response is that law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product 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. In consequence, constitutionalism is also a political, not simply an apolitical, project (although it does suggest that there is a sphere ‘above’ everyday politics). So paradoxically, and in my mind laudably, the call for constitutionalism triggers precisely the contestation and politics it is said to pre-empt.

A related objection against the constitutionalist reconstruction of international law is that this reading condones an impoverished, legalist (judicially made), a-political conception of constitution. Admittedly, the constitutionalization of international law has been lopsided. The process has so far been adjudicative rather than deliberative.

However, this critique, although it may be formulated as a critique of global constitutionalism, is not in fact genuinely concerned with the constitutionalist reading of international law. The pertinent point is rather that global governance suffers from democratic deficits and – to some extent correspondingly – from too powerful courts. Global constitutionalism unveils precisely those deficits by introducing the constitutional vocabulary. The constitutional paradigm also inspires and eventually facilitates the search for remedies. In my view, the remedy against a too ‘legalist’ and too ‘judicial’ process of constitutionalization is not to stop that process, but to democratize it.

8. The core reproach of the new deniers of international law, the legitimacy and notably democratic deficit, must be taken seriously. But also in this regard, global constitutionalism is helpful, because it provokes the pressing question of the legitimacy of global governance.

Neither should global constitutionalism be used apologetically to bestow false legitimacy on international law. Nor should the complaint of the lack of legitimacy of international law undermine the authority of international law as such. Rather, the constitutionalist reading should clarify that the legitimacy of norms and of political rule does not depend on the structures of government or governance being exactly state-like. Global constitutionalism should and could help rather than hinder the revelation of existing legitimacy deficiencies in this body of law, without however throwing the baby out with the bathwater. Although constitutionalism may be invoked as a way of closing the debate, it in practice often has the opposite effect, namely that of opening up a richer and more productive normative debate. The reason is that the tradition of constitutionalism remains the best-stocked reservoir from which responsible politics may draw and the most persuasive medium in which it may be articulated. So global constitutionalism deploys, and this is crucial, a constructive, not obstructive, critical potential.

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.

On the other hand, even if all states of the world became democracies, this would not in itself suffice to attain a meaningful degree of global democratic legitimacy, because national democracy itself is undermined for various reasons. Therefore citizens, as the ultimate source of political authority, must be enabled to bypass their intermediaries, the states, and take direct democratic action on the supra-state level (individualist track). The individualist track can be realized through various institutional mechanisms, and could begin by introducing parliamentary assemblies in more international organizations, and by expanding their so-far merely consultative powers.

The two-track model does not imply a complete shift of the international institutions’ accountability to natural persons, but merely suggests bringing in the global citizens as principals besides states where appropriate. The accountability of the global governance institutions is extended and duplicated. The institutions will not be accountable only to states, but additionally (and sometimes competingly and conflictually) become accountable directly to citizens. The result is a dual accountability of international institutions to a dual constituency: states and citizens.

2. First Track: The Democratization of International Governance via Democratic Nation States

It is often claimed that the current international legal order can be understood as an ‘inter-state’ democracy, and should be developed further in the direction of an association of democratic states. The inter-state paradigm relies on transitive legitimacy. In that view, in the legitimacy of national regimes resides the legitimacy of the international regime. As long as the states, the main actors, the primary and original legal subjects, and the principal creators of international law, are in themselves legitimate, they indirectly legitimize international law and global governance, so the argument runs.

Indeed, the accountability of international organizations and regimes to democratic nation states are a conditio sine qua non for democratic global governance. States are indispensable as members of the global constitutional order. Doing away with states would imply a single global polity, which would be remote from the citizens, inevitably inflexible and complicated, and already for these reasons undemocratic.

All this means that the global constitutional order should not be a democracy without states, but must rely on states, and that these states should be democratized. Democratic states can contribute to global democracy on two levels: Within states, decisions must be taken democratically, and on the international level, the democratic states represent their citizens.

The promotion of democracy within nation states is a central principle of global constitutionalism not only because domestic democracy is the foundation of a transitive global democracy, but also because domestic democracy promotes global constitutional values, e.g. by reinforcing respect for human rights, fostering development, and finally by reducing the likelihood of war.

International law is evolving towards a requirement that states must be democratic, while strictly limiting the means to enforce the spread of domestic democracy. Although the application of the democratic prescription remains selective, the quest for domestic democracy in the international lex lata is an indicator of the constitutionalization of international law.

But while domestic democracy is indispensable for global democracy, it is not sufficient. An exclusively state-focused view of global democracy is flawed on various grounds which relate to the inter-state relations, to the states’ control of global governance institutions, and to the internal democratic structures in states.

Finally, even if all states of the world became perfect democracies, and even if the international institutions were perfectly responsive to the member states (which they are not), this would not lead to a satisfactory situation of global (multi-unit) democratic governance. The reason is that the democratic substance of states is being impaired through globalization and through the concomitant zoning-up of governance functions. The substance of politics has been migrating to the international level, mainly due to the globalization of problems that must be tackled and solved by politics, ranging from trade and finances over migration, climate and diseases to terrorism. The result is that while political decisions within national boundaries are still formally taken democratically, national entities undergo a process of de facto de-democratization and are less effective. This is the final fundamental reason why an association of democratic states, with states acting on the international plane as representatives of their nationals, is not enough to realize global multilevel democracy. This observation counsels against channelling legitimation exclusively through the nation states.

3. Second Track: Global Direct Democracy

Citizenship

On the second track of non-state democratization, democratic relationships should be established between global citizens and international institutions via schemes of participation and representation that cut across nation states. Global citizens’ should have an input into international law-making independent of their states.

Under conditions of global governance the right to democratic participation, as guaranteed in Article 25 CCPR, should not only be directed against states, but should be understood as exercisable across borders and also opposable to those international organizations which rule over persons’ lives and affect their interests. However, the establishment of direct democratic relations between individuals and international organizations is fraught with difficulties linked to the idea of a purely functional, not spatial representation on the basis of ‘affectedness’.

Many people doubt or vehemently negate that the personal (collective) basis for democratic mechanisms exists or can ever be emerge on a global scale. The arguments surrounding the global collectivity of humans ultimately boil down to the statement that democratic mechanisms independent of nation states cannot realize the equal liberty of persons, and will therefore be unfair and undeserving of the name democracy.

It is not possible, but not even necessary to begin a futile search for a global community of fate, a global demos. If one recognizes humanity as a novel political subject, it would not be a unitary one, but a plural one, consisting of multiple demoi. Transnational participatory structures are in that perspective a ‘demoi-cracy’ rather than a democracy.

Another objection is that a weak collective identity of humankind, the extreme diversity, and the thin global solidarity create the risk that rules issued by global governance institutions, awards rendered by international courts, and sanctions imposed by bodies such as the Security Council will be perceived by their addressees as illegitimate forms of ‘outside’ or ‘alien’ interference, and will thus not be loyally accepted.

My response to these concerns points to humankind as a socially relevant community, to diversity as a constitutive good of political association, to existing resources for globalized identities, and to solidarity flowing from reciprocal respect.

Ultimately, the question of the factual underpinnings of democracy (demos, homogeneity, collective identity, language, solidarity, and the like) is a chicken-egg-problem. Although the importance of cultural and social elements as enabling factors of democratic procedures should not be underestimated, these still interact with the legal (democratic) institutions. None of these factors is a natural, absolute, a priori of democratic governance which would have to be present in full before democratic processes could begin. One may reckon with their evolution within and through democracy. Bootstrapping is to some extent possible.

Civil Society Actors

Global civil society institutions constitute a kind of democratic infrastructure. However, it is not clear whether this global network is already dense enough to allow for a minimum global non-state democracy. As long as NGOs only have voice in decision making, but not a vote, the lack of formal democratic credentials of NGOs (and likewise of technical experts, professional associations, TNCs, and various public-private or private-private partnerships) does not de-legitimize their participation in global governance. The absence of internal democratic organization can be compensated by other forms of accountability. The legitimacy gains through NGO-involvement are apt to outweigh the legitimacy problems. Overall, a further democratization of the international legal order requires that the participation of NGOs in law-making and law-enforcement be strengthened. However, it should remain on the line ‘voice, but no vote’.

Institutional Design for a Non-state Democratization

Citizens could be directly engaged in global governance through referendums, consultations, and notice and comment procedures. Transnational consultative referendums could realize the participatory modus of voice, not vote.

Within international organizations, citizens would have to be represented by delegates. A World Parliament, the involvement of interest groups, notably professional associations along the lines of the ILO, or brining to bear citizens’ weight within the existing state assemblies, or engaging the UN with national parliaments have been suggested and could be tried out. The most powerful organizations, such as the UN, the Bretton Woods Institutions, and the WTO, where parliamentary assemblies are conspicuously absent, should be parliamentarized. Even merely consultative assemblies might perform the typical mediating function of parliaments, and they create transparency and organize interests.

4. Tensions between the Two Tracks

The two-track global democracy will remain in perpetual internal tension. The reason is that the ultimate reference point of democracy are natural persons, while in a multi-polity world, those natural persons remain partly mediated by their states. These tensions between the statist track and the individualist track pose problems for the rules for decision-making. There are two aspects to this: The incompatibility of state equality and citizens’ equality, and the shortcoming of both inter-state unanimity and majority voting.

The individuals of the world have, as political agents, multiple identities. In their political role as national citizens and as members of a national polity, they own democratic rights which are on the international level safeguarded by granting their home state one voice. But in their political role as global citizens, persons are not fairly represented by the scheme ‘one state − one vote’ in treaty making and for the production of secondary international law. Because states contain vastly different sizes of populations, there is no correlation between states’ votes and citizens’ votes. Equality of states results in the inequality of citizens (as global citizens), and the representation of the citizens is skewed.

The current trend to inter-state majoritarianism is from the individualist perspective problematic because it risks forestalling the democratic formation of collective preferences within the nation states. In the inter-state perspective, it seems illegitimate and undemocratic that in a consensus system a minority (one state) can block a treaty. But by curing this through the introduction of a system of inter-state majority voting, the defeated nation’s collective preferences (which have been ideally determined through a democratic procedure) would be completely ignored. The veto power seems necessary to preserve the democratic decision-making on the ‘lower’ level, within the smaller community. The persistence of this democratic conundrum is an additional policy argument in favour of pluralist, non-hierarchical, network-type reconceptualizations of the relationship between international and domestic law (and between international constitutional and domestic constitutional law), based on discourse and mutual adaptation.

Other mechanisms of legitimacy and accountability of global governance such as inclusion and participation, expert supervision, judicial review by international and domestic courts, are not really ‘democratic’. At best, a combined formula of the procedures and mechanisms which would be in themselves normatively deficient might create an overall accountability which is functionally equivalent to democratic deliberation, consultation, votes, and elections.

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. A territorial entity established through unlawful use of force or in violation of the international principle of self-determination is not a state in the sense of international law (not an international legal person). Respect of basic human rights or of democracy is no precondition for valid statehood. But the abandonment of exclusive reliance on effectiveness has opened a window of opportunity for taking into account further standards of international legality for the assessment whether a political entity is a state or not.

In a constitutionalized world order, state equality is proportional equality. The concerns for peace, for human rights protection, for development or for other constitutional values may outweigh the interest in observing strict formal equality of states and may justify legal privileges such as more drawing rights, more votes within an international organization, or exemptions from contractual liberalization obligations. But state quality stands in a tension with individual equality which can ultimately not be resolved as long as there are states with vastly differing population sizes. The inhabitants of less populated states will always be overrepresented in decision-making setting where each state has one vote.

From a constitutionalist perspective, state sovereignty is a legal concept and as such embedded in international law. Constitutionalists welcome the re-characterization of sovereignty as implying states’ responsibility to protect their populations from international crimes.

Ultimately, the international constitutional status of states is to be instrumental for the rights and needs of individuals. This finalité makes that states remain indispensable in a global constitutionalized order, as crystallization points for (collective) identity, as primary law-makers and law-enforcers, and mediators between conflicting societal actors. But this finalité also calls for the constitutional containment of states.

3. A sectoral constitutionalization is taking place within international organizations. The constitutionalist approach moves beyond the description of the founding treaties of international organizations as constitutions in the sense of basic texts defining organs and their competences, but looks for and propagates constitutional values such as human rights and democracy, within international organizations. It also seeks to overcome the traditional focus on the autonomy of international organizations, where autonomy is usually implicitly taken as a proxy for sovereignty. The constitutionalist argument is that autonomy is not a pre-condition of constitutionalization but on the contrary should trigger the demand for constitutionalization. The more autonomous an international organization is in a sociological sense, the more it needs to be constitutionalized. Finally, it is worth highlighting that sectoral constitutionalization has so far been largely effected through international judges, and went hand in hand with judicial self-empowerment.

4. Further members of the constitutional community are NGOs. A principle of openness of global governance forums for NGOs is emerging as a constitutional principle. This means that standard setting conferences, meetings or conferences of treaty parties, and other international bodies must at least consider in good faith whether to grant NGOs access and must justify refusal. A constitutionally appropriate accreditation procedure for NGOs must be relatively distant from states, and it must observe due process guarantees and apply reasonable substantive criteria.

The proper constitutional modality of NGO participation in international law making is voice, not vote. Once accredited, NGOs enjoy a legitimate expectation that the participatory conditions will entail some core components – even if the written rules of procedure are silent on this. Among these components is the (clearly defined and limited) right to make written and (upon permission) oral statements in the forum, which must be duly taken into account.

The second formal constitutional function of NGOs is their participation in the enforcement of international law. The benefits of conditional and indirect NGO participation in international adjudication, notably through amicus curiae briefs, outweigh its risks. Therefore, a presumption of the admissibility of amicus curiae briefs should be acknowledged. In non-judicial compliance control, NGOs’ role needs clarification, to be laid down best in the rules of the committees themselves. De lege lata, qualified NGOs should be allowed to trigger certain non-compliance procedures themselves.

To conclude, NGO involvement can contribute to the legitimacy of global governance through inclusion and participation, but only if this participating is to some extent formalized and streamlined and if attention is paid to the skewed impact of NGOs from the north.

5. Finally, business actors are members of the international constitutional community. Constitutionalism might be a source of inspiration for resolving current issues such as the human rights responsibilities of business actors. For example, the acknowledgment of an indirect third party effect of Human Rights Covenants (as opposed to direct human rights obligations imposed on business) would strike a balance between respect of entrepreneurial freedom one the one hand and containment of powerful economic actors on the other, while ascribing the ultimate responsibility to states.

Although it is correct that the core objective of constitutionalism, the containment of power, is, especially in times of globalization, highly relevant with regard to economic power, a complete constitutionalization of the private sector in the sense that private actors would be subject to the full panoply of (international) constitutional standards, just like public actors, is not desirable. It might be useful to transfer some principles and instruments of constitutionalism to the economic sphere, but only while respecting the own logics of that sphere.

The important recent phenomenon of outsourcing public functions has no intrinsic or natural limits. Limits must be established normatively, and the value judgements should derive from constitutionalism. Consequently, the involvement of business in law-making should reflect the three sector model in which business participants are treated distinct from civil society actors. As regards law-enforcement through business actors, this is least advanced but also least recommended in constitutionalist terms, because a separation of functions between the objects, subjects, and enforcers of regulation should be maintained.

One way to compensate for legitimacy and accountability deficits engendered by the marketization and outsourcing of governance is to make sure that the process of developing and implementing international law is a shared endeavour among (inter-)governmental institutions, business, and NGOs. But legitimacy is gained through joint governance only when the parties remain independent from one another and sufficiently distant, because only then capture and collision is ruled out.

Overall, the legitimacy of governance by business actors might derive from delegation or from beneficial outputs. But all considered, there still is the real danger that global governance is unduly commercialized through business involvement. To become full members of the global constitutional community, transnationally active business actors should be held more accountable to stakeholders through international instruments, however difficult it is to define the relevant groups and the accountability mechanisms.

 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.

A communication to the UN Human Rights Committee will not be possible, because Switzerland has not ratified the Optional Protocol No. 1 to the CCPR.

Individual application to the European Court of Human Rights

After a dismissal of the complaint by the Swiss Federal Court, the defeated party will be able to apply to the Strasbourg-based European Court of Human rights (ECHR) within the time-limit six months after the final domestic judgment (Articles 34-35 ECHR).

It is to be expected that the Strasbourg Court will declare the prohibition of minarets as a violation of Article 9 ECHR and/or as violative of Article 9 taken in conjunction with Article 14 ECHR. The scope of the right to exercise one’s religion has usually been construed broadly by the Strasbourg court. Although not every act motivated or inspired by a religion or belief is protected,[5] not only those activities or instruments that are strictly necessary for the exercise of belief enjoy protection. For instance, a state making it impossible for eating meat from animals slaughtered according to the religious prescriptions of Jewish orthodox communities interferes with the freedom of those communities to exercise their religion.[6] In various cases, governmental prohibitions to construct or to rent buildings for religious use, licensing schemes and the like have been qualified as an interference with the fundamental right to freedom of religion.[7] It is therefore immaterial whether a Muslim cult can also be practiced also without minarets, as long as Muslims themselves consider the minaret to form part of the expression of their religious beliefs.

The right to freedom of religion is of course not absolute. The interference lying in the prohibition of minarets could be justified if it pursued one of the legitimate aims mentioned in Article 9(2) ECHR and if it were proportional, i.e. “necessary in a democratic society”, as Article 9(2) puts it. The proponents of the popular initiative have argued that the prohibition of minarets serves the maintenance of public order. This objective, together with the public interest in planning and in managing territory, has frequently been accepted by the Strasbourg Court in cases concerning the restriction of religious activities.[8] But the strict prohibition of minarets, allowing for no exception, is not needed to manage territory and to protect the ordre public, because the existing Swiss laws rules on planning and construction contain fine-tailored instruments which allow the prohibition of minarets at places where they might disturb the neighbourhood. The already existing rules could also be applied in order to limit the height of minarets, or to prohibit the employment of a muecin. Because sufficient legal instruments are in place to protect the public order, the absolute prohibition in the constitution is overbroad and thus not “necessary” in terms of Article 9(2) ECHR.

Differently from Muslim headscarves worn by teachers and the installation of Christian crucifixes in public schools, the religious message embodied by a minaret is not sent out to (minor) students who are necessarily influenced by that message. Contrary to students who perceive the school teacher as an authority, and who are also necessarily confronted with symbols displayed class room, the general non-Muslim population does not have any right derived from their (“negative”) freedom of belief not to see minarets in town.

These crucial features (absence of an educational setting and targeting of a minority[9]) distinguish the Swiss case from previous ones. The European Convention does allow member states to prohibit headscarves in schools and universities[10] (and in Turkey even to prohibit headscarves worn by students[11]), and inversely does not allow Italy to display crucifixes (a symbol of the religious belief of the majority) in public schools.[12]

Moreover, the freedom of religion as guaranteed under the ECHR contains a strong component of religious neutrality, impartiality, and tolerance.[13] The Strasbourg Court has frequently emphasized the state’s role as the neutral and impartial organizer of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the state’s duty of neutrality and impartiality is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.[14] The prohibition of minarets is squarely directed only against the Islam. The fact that the Muslim religion is a “newcomer” in Swiss society does not allow the state to treat it differently from the more traditional religions.

Finally, Strasbourg has more and more insisted on “true religious pluralism, which is vital to the survival of a democratic society”, as a basic principle in disputes concerning the freedom of religion.[15] The state must, according to the Strasbourg case law, ensure mutual tolerance between opposing groups.[16] Accordingly, the role of the authorities in circumstances where various religious groups meet is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.[17] A balance must be achieved which ensures the fair and proper treatment of persons pertaining to religious minorities and avoids any abuse of a dominant position.[18]

The Strasbourg Court will also have to examine whether the prohibition of minarets, which singles out one particular religion, is a violation of Article 9 taken in conjunction with Art. 14 ECHR. Differential treatment on religions grounds is prohibited unless the state provides an objective and reasonable justification. The Court has applied strict scrutiny in these cases and asks for particularly weighty reasons to justify differential treatment of persons or groups based on their religious belief.[19] Such weighty reasons for an absolute prohibition of minarets in Switzerland seem to be lacking.

The ECHR has granted the member states a margin of appreciation in cases concerning religion,[20] and also in the field of planning and management of territory.[21] One might additionally ask whether the margin of appreciation should be especially broad because the prohibition is a clear and unequivocal expression of a people’s decision, taken in a popular referendum. But direct democracy is not stronger or more valuable than indirect democracy, and therefore a decision taken by a people directly should not be more readily allowed to violate fundamental rights than a rule adopted by parliament. To conclude, the Swiss margin of appreciation seems to be overstepped in the case of the strict prohibition of minarets.

In consequence of a Strasbourg judgment, Switzerland will have to bring its legal system in conformity with the Convention (Article 46 ECHR). The state will therefore have to re-revise its constitution in order to get rid or mitigate of the prohibition of minarets. The Committee of Ministers of the Council of Europe will supervise this process. 

The political option of denouncing the ECHR (which is possible under Art. 58 ECHR) seems illusionary. The alternative strategy just to refuse implementation of a Strasburg judgment and to resist the pressure excised by the European Organization and by a vigilant European public seems foreclosed. Switzerland holds just now the presidency of the Committee of Ministers in the Council of Europe and has always manifested strong support for the Council of Europe and its regime, notably because Switzerland is not a member of the European Union.

The constitutional debate on international law as a legal limit on popular initiatives

This popular vote will refuel the Swiss constitutional law debate on the admissibility of popular initiatives which entail the adoption of constitutional provisions violating international law. Scho ars and politicians have been debating the extension of the constitutional limitations on popular initiatives. It has for instance been suggested to qualify international human rights norms as “de facto peremptory norms”, because the implementation of  Swiss law violating international human rights guarantees would be de facto impossible. But proposals to read the constitutional limitation clause of Article 139(2) of the Swiss Federal Constitution in such an extensive fashion hurt themselves at the clear wording of that provision and also at the clear intent of the constitutional convention of 1999 to place only very lose limits on popular initiatives.

Therefore the doctrinally sounder suggestion seems to be to enshrine into the Swiss Federal Constitution a prohibition of initiatives which clearly violate human rights. However, such a prohibition would require amendment of the Swiss Constitution, and any such amendment is again subject to a compulsory popular referendum. Constitutional revision is therefore not easy to achieve. Another “construction problem” of federal popular initiatives is that the competence to decide on the admissibility of an initiative is vested in parliament. But such limits clearly pose rather legal, not mainly political questions. Parliamentarians are not fully equipped to decide such questions, and they have an inherent reluctance to pronounce themselves against the desire of at least 100’0000 voters. It is therefore submitted that parliament is not the appropriate body to fulfill the task of scrutinizing the admissibility of popular initiatives.

Finally, a systemic problem lies in the fact that a federal popular initiative must always be directed at the revision of the Swiss Constitution itself. It is not possible to launch an initiative for the adoption of an ordinary federal law. This leads to the enactment of constitutional provisions, such as the prohibition of minarets, which should not have a place in a constitutional document, because their substance is rather petty, or too technical.

Outlook

Searching remedies against (direct) democratic decisions which produce substantial collateral damage via international institutions is not risk-free. A Strasburg judgment against Switzerland is likely to fuel the suspicion by the Swiss population against a “government of foreign judges”. Ultimately, the tension between direct democracy and respect for internationally guaranteed human rights is at stake here. The task of trying to reconcile popular sovereignty and the rule of law is a never-ending one.

[2] The authentic German, French, and Italian texts of the Swiss Federal Constitution of 18 April 1999 are available at http://www.admin.ch/ch/d/sr/1/101.de.pdf (German version). An official English translation is available at http://www.admin.ch/ch/e/rs/c101.html.

[3] “Der Bau von Minaretten ist verboten.”; “La construction de minarets est interdite.”

[4] Federal Parliament, resolution on the admissibility of the initiative (Bundesversammlung, Bundesbeschluss/Assemblée Fédérale, arrêt federal) Bundesblatt 2009, p. 4381. See also the Message of the Government Federal Council (Bundesrat, Botschaft Bundesblatt 2008, p. 7603) of 27 August 2008.

[5] ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Great Chamber), Reports 2005-XI, para. 105.

[6] ECHR, Cha’re Shalom Ve Tsedek vs France (Great Chamber), appl. No. 27417/95, reports 2000-VII, para. 80.

[7] European Commission on Human Rights, Iskcon and 8 others v. the United Kingdom, appl. No. 20490/92, Decision of 8 March 1994; ECHR, Manoussakis and Others v. Greece, appl. No. 59/1995/565/651, judgment of 26 Sept. 1996, para. 36; ECHR, Vergos v. Grece, appl. No. 65501/01, judgment of 24 June 2004, para. 32.

[8] ECHR, Vergos v. Grece, appl. No. 65501/01, judgment of 24 June 2004, para. 40.

[9] The ECHR prohibition of discrimination is “symmetrical” and does not only protect minorities or members of oppressed groups, but also, e.g., men and people with white skin. However, the fact that a politically relatively powerless minority is disadvantaged by a special law should have an impact on the balancing decision.

[10] ECHR, Dahlab v. Suisse, inadmissibility decision No. 42393/98, Reports 2001-VI): The prohibition of headscarves worn by a teacher in a primary school by the Swiss canton of Geneva is in conformity with Article 9 ECHR.

[11] ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Great Chamber), Reports 2005-XI.

[12] ECHR, Lautsi v Italie, appl. No. 30814/06, judgment of 3 November 2009: display of crucifix violates Article 2 of Protocol 1 in conjunction with Article 9 of the Convention.

[13] See e.g., ECHR, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, para. 123.

[14] ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Grand Chamber), Reports 2005-XI, para. 107.

[15] Ibid., para. 110.

[16] Ibid., para. 107.

[17] Ibid., para. 107.

[18] Ibid., para. 108.

[19] ECHR, Hoffmann v. Austria, appl. No. 12875/87, Series A 255-C, para. 36.

[20] ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Grand Chamber), Reports 2005-XI, paras 109-110, concluding that the Turkish prohibition of headscarves in public buildings was within the sate’s margin of appreciation.

[21] ECHR, Vergos v. Grece, appl. no. 65501/01, judgment of 24 June 2004, para. 42.