EJIL: Talk!

 In Chapter 6 of The Constitutionalization of International Law which deals with ‘Dual Democracy’, Anne Peters engages (see post here) with the challenges presented by regulation by non-state actors and the reduction in the importance of sovereign consent in international law to the practice of domestic democracy. The two-track solution depends on the democratization of domestic political systems (democracy within the state) and the democratization of international organizations and other non-state actors, principally through the introduction of parliamentary assemblies and consultation mechanisms (democracy beyond the state).

 International parliamentary assemblies might provide a useful addition to the global institutional architecture, but they would not ensure the democratization of global governance. The establishment of a legislative assembly does not provide democratic legitimacy in the absence of a political community constructed by the exercise of political authority through law. The principal advantages of international assemblies lie in their ability to ensure the representation of the plurality of dominant political opinions within states and to compensate for the democratic deficit that results from the application of the principle of sovereign equality in international law-making (one-state; one vote, irrespective of population size). The most significant contribution would be in establishing an institutional mechanism to monitor the governance activities of global regulators and providing a locus for informed democratic debate on the appropriateness (or otherwise) of global law norms. Read the rest of this entry…

Steven Wheatley is Professor of International Law at the University of Leeds, and author of The Democratic Legitimacy of International Law (Oxford, Hart, 2010).

 It is a pleasure to comment on this publication and especially the arguments developed and summarized on EJIL Talk! by Professor Anne Peters (see here), whose writings are constantly illuminating and provocative in their analysis of the emergent patters of international law and concern for the establishment of political legitimacy for global regulation.

The focus of Chapter 5 – ‘Membership in the Global Constitutional Community’ – is the increasingly significant distinction in the theory and practice of international law between the concepts of an international community of states and international community of state and non-state actors. The analysis highlights the shift in international law from a system of inter-state contract to one of global governance in which regulatory norms are no longer exclusively established by an expression of sovereign will (the ‘Westphalian’ paradigm). States retain a pre-eminent role in the regulation of world society, which is justified by their roles as representatives of citizens and guarantors (through the coercive instruments of government power) of the rights of the individual. States are, though, not the only actors in global regulatory settings: individuals, international organizations, international non-governmental organizations and business organizations are increasingly recognized as possessing a legitimate ‘voice’ in the development of international law norms and in the design of regulatory mechanisms and measures.

The inclusion of non-state perspectives might not present a revolutionary or constitutional ‘moment’ in the regulation of world society; it is, after all, an example of the better, more inclusive, forms of law-making familiar to advanced democracies. The argument here, though, extends beyond conceptions of ‘best practice’. The Global Constitutional Community includes both ‘sovereign’ states and a plurality of non-state actors, all of which are instrumentally valuable to the extent that they represent the interests of individuals and allow for the avoidance of domination over and injustice against persons. The shift from an ‘international community of states’ to a Global Constitutional Community suggests that the legitimacy and validity of global law norms must depend (at least in part) on the establishment of law-making processes that allow for the representation of the plurality of interests and perspectives of individuals in global political debates and discourses – as global citizens; as citizens of democratic states; and as political actors with ‘self-interested’ and ‘other-regarding’ positions. Two questions arise: the extent to which it is meaningful (in theory or practice) to speak of a (global) political community defined by the concept of international law; and whether the constitutionalist concern to establish political legitimacy for global norms is undermined by an analysis that constructs the world of law in the image of hegemonic power. Read the rest of this entry…