Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. This post is adapted from “The International Legal System as a Constitution” in: J.L. Dunoff/J.P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge UP 2009), pp. 69-112

International lawyers have often construed international constitutionalism as an offspring of the institutionalization of international law. An international constitutionalism would be able to draw the conclusion from the increasing institutionalization of the international realm by applying principles known from domestic constitutional law to the international system, resulting in a universal Kantian “state of law,” away from the “state of nature” or anarchy of international relations. In the same vein in which a constitution unifies the domestic polity in one legal superstructure, a developed, institutional reading of international law would unify the international community in one coherent constitutional structure.

 Today, this institutionalist reading of international law has fallen prey, in a certain regard, to its own success. While an increasing institutionalization and organization of international organization can hardly be doubted, the general impression is one of fragmentation rather than constitutionalization of the international legal system. In other words, the diverse and divergent institutions fail to come under a single scheme; rather, the systemic character of international law seems threatened by a multiplicity of international régimes without obvious coherence. The constitutionalization of partial régimes appears as antidote rather than confirmation of the constitutionalization of the international legal system as a whole. Calls for a true constitutionalism that would put the different subsystem into order confirm this intuition.

The absence of a single world constitutional order, however, should not blind us to the ever-increasing relevance of international cooperation and concomitant legal regulation for individual human beings. International constitutionalism needs to be decoupled from the building of new international structures. Rather, what is called for is a constitutional mind-set (Martti Koskenniemi) or a constitutional reading of the international legal foundations on which today’s fragmentation of international legal rules rests. Rather than asking whether the constitutional structure of the Charter organs are sufficiently similar to those of the state, my piece reflects on whether and how the international legal order fulfils the background principles for a constitutional order in the constitutional tradition. If not, the resistance to international regulation will likely – and justifiably – grow, and the accommodation needed for international order will not be forthcoming.

The development of constitutional thought in twentieth-century international law moves from a formal concept of constitutionalism – such as the existence of a formal unity of international law derived from one single, hierarchically superior source – to a more substantive conception that deals with the emergence of hierarchies between different rules and principles of international law. In its first part, my contribution retraces this development of constitutional perspectives of international law, from the early system building of Kelsenian positivists to the recent challenges of fragmentation. In this part, the definition of constitutionalism largely follows a deductive methodology.

In the second part, the contribution proceeds to an analysis of the typical substantive elements of a constitution in the Western tradition. As yardsticks for a constitutional understanding of the international legal order, it refers to democracy, the rule of law or Rechtsstaat, the separation of powers, as well as the basic conditions of legal subjects, namely the basic rights of states, on the one hand, and human rights, on the other. Finally, the contribution looks at the question of whether contemporary international law embodies some level of solidarity between States and among human beings.

To identify the elements of a hard constitution, the contribution departs from the domestic ideal type of a constitution. In a functionalist vein, we ask whether or not domestic constitutionalism can fulfil similar functions at the international level. The transfer of domestic constitutional principles to international law is however fraught with difficulty, in particular because international law must always take into account at least two levels of analysis: the interstate level of classical international law and the inter-individual level of world citizens at large. In this substantive perspective, only an international order that reaches the level of individual human beings can be called “constitutional.”

International law is a system insofar as it is bound together by the application of a limited set of formal sources and of instruments to apply them, such as rules of interpretation, as well as a few basic principles such as pacta sunt servanda or responsibility for wrongdoing. In the formal sense, international law can be regarded as a system but hardly as a constitution, however: the constitutional characteristics of the UN Charter are incomplete, at best; and, as the fragmentation debate has shown, an overall international constitution that would balance the different subsystems toward a coherent whole is largely absent. There is little hope for an ultimate judicial decision of clashes among different values, principles, or subsystems once and for all. Balancing of rights and obligations under different subsystems substitutes for the lack of a comprehensive judicial structure or an unequivocal judicial hierarchy. Only the strict and formalist positivists of the early twenthieth century would regard such a system a constitution.

 Rather, a full constitutionalism demands the respect for substantive constitutional principles, in particular democracy and the rule of law, as well as a separation of powers, human rights, and the existence of a bond of solidarity among the members of the international community. In the multilevel system that an international constitutionalism would entail, these criteria need to be modified. Even then, however, the international legal system does not appear to follow them, in spite of recent advances in the law – from the partial constitutionalization of trade law and the emergence of international criminal law to the monopolization of the legitimation of interstate violence by the UN Charter.

As long as a strong constitution in this sense is lacking, two options stand out: One option would lead back to the domestic control of international organizations, either by regional or by domestic courts. However, this route implies a divergence of protection between different states or regions and thus contradicts the perceived need for global regulation from the financial markets to global warming. A second option appears to be more promising: namely, a constitutional reading of the constitutive instruments of international organizations. Such an understanding of international rule, both by political and judicial bodies, could lead the way toward the very checks and balances and respect for human rights and state freedoms that the Western constitutional tradition embodies. Finally, while an international “demoi-cracy” is yet to be established, the strengthening of deliberation and the inclusion of the individual stakeholders in international decision-making may lead to a better legitimacy and therefore an increased acceptance of international decisions at the domestic and individual levels.

In the age of globalization and functionalization, the very idea of a comprehensive ordering of any legal realm becomes ever-more illusory. One may well read the insistence of domestic courts on their constitutional prerogatives, in the strong version of the U.S. Supreme Court or the weaker one of the German Bundesverfassungsgericht, as the heroic but ultimately futile attempt to stop the clock, as an attempt to save what can be saved of democratic constitutionalism at a time when the ability of any government to regulate the world according to the wishes of their electorates appears to be waning.

A constitutional reading of international law should avoid the parochial view of domestic law, but also of the international legal subsystems; rather, it should strive for a more comprehensive balancing of rights and interests beyond the narrow confines of a specific subsystem. It should use the potential for checks and balances to hold all holders of public power accountable, whether state representatives or international civil servants. It should allow for the protection of human rights against both state and international holders of power. Finally, a constitutional understanding of the UN Charter would have us strive to improve the international system in a way that would lead it closer to our ideas of an ideal constitution, render it more democratic, more respective of individual rights, more consonant with the rule of law.

Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. He has served as counsel of the Federal Republic of Germany in the LaGrand case (Germany vs. United States) and as Adviser to the German team in the Certain Property (Liechtenstein v. Germany) cases before the International Court of Justice.

In his post on the Legal Position of ICC Parties and Non-Parties Regarding Aggression, Dapo Akande has shown that it is by no means assured that the Assembly of States Parties will be able to agree on a procedure for agreeing on a definition of the crime of aggression in the ICC Statute, let alone on the substance of a definition itself. The purpose of this post is different, however. Based on a discussion of the crime of aggression at this year’s ASIL Annual Meeting, I continue to have serious reservations as to the very goal of defining the crime of aggression at the present stage of development of the international law of the use of force [for a more extensive treatment, see my piece "Peace Through Justice?" in the Wayne Law Review 50 (2004) 1-35]. The inclusion of the crime in the jurisdiction of the Court at this particular moment may not only be ineffective, but has considerable potential to harm both the ICC and general international law. In my opinion, it is simply not good enough, as one panel participant at the ASIL meeting put it, that we do not know the effects of such a definition, but that a formulaic compromise could be found and the rest be left to the Court itself. Rather, dealing with one of the most serious issues of all times, the crime of aggression should only be included when it promises to have positive effect. Not to be misunderstood: I have been a supporter of the Court from the beginning. But that does not mean that the Court is a panacea that can only do good.

According to the agreed definition in Article 8 bis of the proposal of the Working Group, “‘crime of aggression’ means the planning, preparation, initiation or execution, [...] of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” In my view, there are at least four reasons why this definition of the crime of aggression would do more harm than good at the present time:

1) The meaning of a “manifest” violation remains unclear, in spite of the attempt by the Working Group to clarify it. According to at least one member of the ASIL panel, “manifest” relates to the evidence for a violation. But that would amount to a confusion between evidence and substance of a crime. The terms “character, gravity and scale” rather suggest that certain acts of aggression are larger than others and therefore subject to prosecution. The drafting history would point to the inclusion of a threshold for prosecution “to exclude some borderline cases.” (see the Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, Special Working Group on the Crime of Aggression, 5 Sept. 2006) At least one member of the Working Group, namely Claus Kress, is on record as suggesting that the coalition war against Saddam Hussein does not constitute a “manifest” violation [Claus Kress, Strafrecht und Angriffskrieg im Licht des "Falles Irak", 115 Zeitschrift für die gesamte Strafrechtswissenschaft (2003) 294, at 331 (in German) (since a respectable view exists that holds the war for legal, the Iraq war does not constitute a war of aggression).]. The same would apparently have been true for the Kosovo war [Id, at 302-303] as Kress argues that only a “war of conquest and a hegemonial war” constitute historical precedents for a war of aggression. The element of “scale” should in both cases be met. Evidence was no question at all. “Gravity” – not so sure. And “character” is indeterminacy by another name. Should motives count at all (in a case of a genocide certainly not – but in aggression?). Does Kosovo not qualify because it was a “humanitarian intervention”? Some would maintain Iraq is a manifest violation because humanitarian motives were induced after the fact and evidence “who did it” is obvious. Others would disagree. Is it relevant that at least one of the current judges of the ICJ, Christopher Greenwood, opined at the time that the war was legal due to SC resolution 678 and apparently continues to maintain this view? [See Greenwood, in: Dieter Fleck, 'The Handbook of International Humanitarian Law', in  (Oxford UP, 2008)., para. 101; and also here at 34-35.] But cannot any lawyer of some quality find reasons why almost anything is legal or illegal under prevailing circumstances? Think of Bush’s lawyers and torture. Or Serbia’s lawyers on genocide (Srebrenica was not genocide, but the NATO airfare was)? The draft solves precisely none of these problems; and the ASIL panel did not help by “arguments” such as “talk to your government”, “the members of the working groups did all agree”, or “trust the court”.

2) What happens to “ordinary” violations of the prohibition on the use of force? Are they less meaningful because they are not criminalized? Of course, I know that not all violations of international humanitarian law are crimes and IHL is nonetheless binding. But when one sees how some Western lawyers handled the Nuclear Weapons opinion by the ICJ [See, eg., Ronald Neubauer, Remarks, ASIL Proceedings (1997)11; Michael J. Matheson, id., at 14] or the ICTY Prosecutor report on the Serbia war, I am not very confident that non-criminal violations of the jus ad bellum would still maintain the opprobrium of illegality after they were sorted out from criminalization. Those who support the lawfulness of humanitarian intervention may approve that result. But they should beware that, in the absence of prosecution by the Court, the states will pretend that they have been given a bill of clean health.

3) Which leads me to the next point: the involvement of the Security Council. First, there is no agreement between the permanent members of the Council and other States on whether other organs than the Security Council could, under the Charter, substitute for a lack of SC determination of the existence of aggression. Consensus can thus only be reached by requiring a SC determination. The Working Group leaves the question open. But such a determination is unlikely to be forthcoming – the SC has hardly used its power under Chapter VII to do so yet, even without an explicit criminalization [the only cases in which the Security Council has condemned "acts of aggression" were not adopted under Chapter VII, see Res. 455 (1979) § 1, Res. 573 (1985) § 1, and 577 § 2 (1985]. Thus, the crime of aggression would more often than not remain dead letter – and only entail the consequence described above, namely a devaluation of the prohibition on the use of force.

But do we really want to make prosecution of one of the gravest crimes dependant on a political body, in which the great powers have veto power to shield themselves and their allies entirely from prosecution? Is this not a bit like requiring the consent of the government for a prosecution of murder? In case another organ could substitute a determination by the SC – would this not cost the support by the permanent members of the Council at a time when opinion in the US seems to be warming towards the Court [see the report of the ASIL Task Force available here]?

4) The next point is institutional, too, and goes against the apparent consensus in Rome to have one court for violations of jus ad bellum (aggression) and jus in bello (war crimes, but also crimes against humanity and genocide which apply regardless of the responsibility for the war). The very point of the separation of the two is that all fighting sides must under (almost, if you believe the ICJ analysis in Legality of the Threat or Use of Nuclear Weapons) any circumstance, independently of jus ad bellum, implement the jus in bello. In other words, all parties are equal before the jus in bello. Each violation will be prosecuted, if criminal. But if the leadership of one party has already been singled out by the Court as the culprit for an armed conflict, what incentive does it still have for upholding the jus in bello? It is difficult to imagine a “manifest” violation of the prohibition on the use of force not carrying life in prison. Thus, after the designation as aggressor, violations of jus in bello would be cost-free. Any deterrent effect through international criminal law, if any, will be lost. But the experience of the Nuremberg Trials was precisely that, while aggression is certainly a dangerous crime, violations of the jus in bello, and genocide, and crimes against humanity, may be even worse than aggression (for further references, see my contribution to the Wayne Law Review cited above). We should think twice before we reduce the pressure on all parties to the conflict to follow the jus in bello, and to make violations of the latter somewhat less punishable.

By way of conclusion, the inclusion of the crime of aggression into the jurisdiction of the Court costs too much, dividing the supporters of the Court, de-emphasizing the prohibitions of the current law, mingling jus ad bellum and jus in bello-issues, and gives too little, a merely theoretical possibility of an activist Security Council combined with a Court being able to act swiftly to deter acts of aggression. As long as the cost/benefit analysis remains as it is, and as long as the disagreement within the international community on jus ad bellum-issues persists, the time is not ripe for giving the International Criminal Court jurisdiction over the crime of aggression.