Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to.

What we engage in, instead, is a different genre, perhaps most closely related to conceptualism (without, it is hoped, lapsing into Begriffsjurisprudenz) but nonetheless distinct. As the book makes clear – or should have made clear – we ask ourselves what a constitutional world order could look like. This comes with at least two elements which may cause some confusion. First, in light of the circumstance that there are many versions of constitutionalism circulating, it meant that we had to adopt some form of constitutionalism as the one we were interested in exploring. We could have opted for a Stalinist version, but felt such would be silly, as few people would willingly adopt such a version and, more to the point, because it is not the sort of constitutionalism that international lawyers have come to talk about over the last decades.  By the same token, while the realist school of global politics may claim that a Westphalian order is a constitutional order (in that it can be said to constitute global order), we nonetheless did not see the need to explore this version, again largely because it is not what occupies the invisible college of international lawyers. Hence, we took as our starting point the sort of constitutionalism usually invoked by international lawyers, from Verdross to Tomuschat, and from Dupuy to De Wet. This is quite obviously a liberal, western, elitist version of constitutionalism, but for our purposes that is hardly relevant. Or rather, more accurately, it is relevant in the sense that this liberal version is what seems to dominate the debates; hence, there is merit in exploring the possible ramifications of precisely this version, in much the same way as people with an interest in space activities will focus on the US or Russia rather than, say, Austria or Tanzania.

Second, we needed to give some hands and feet to this version of constitutionalism which, in much of the literature, tends to remain remarkably abstract. A brief look at some western liberal constitutions persuaded us that such constitutions tend to come these days with provisions on the institutions of governance and their competences, on law-making, on the judiciary, on membership of the community, and on democracy: as a result, these issues were what we set out to explore, without however claiming that this would exhaust the matter. Moreover though, and relating to the earlier point as well, the very talk of constitutionalism comes with a certain baggage. Constitutionalism is, in one sense at least, a vocabulary with all sorts of connotations, and we felt we could ignore this only at our peril. It is for this reason that we connect constitutionalism to legitimacy: not so much because we feel that the two go hand in hand empirically, or should go hand in hand normatively, but because those who speak the language of constitutionalism tend to mention legitimacy in the same breath: those who invoke constitutionalism tend to suggest that constitutionalism is itself legitimate, and that it helps legitimate governance. It is on this ground that we claim that “a constitutional world order will have to be a legitimate order” (at 43). This does not so much express a normative preference (although we would hardly prefer an illegitimate order) but merely finishes the thought, so to speak – any other construction, however sensible in its own right it may be, would miss the very discussion we aim to contribute to.

That is not to say that there is not some overlap between our genre, such as it is, and other genres. Dan Bodansky is surely correct when claiming that we do not always keep ours neatly separate from others, and that sometimes empirical or normative statements creep in. Correct as this critique is, though, one may wonder whether there are any viable alternatives. What would be the point of studying something that exists only in the minds of international lawyers but with no basis in reality – any reality? In this sense, the conceptual, the normative and the empirical are notoriously difficult, perhaps impossible, to disentangle without lapsing into sterile discussions. Mathematics may work in such a manner, but in the social sciences and humanities this is not an option. John Searle perhaps put it best when denying the comprehensiveness of social constructions: “… there has to be something for the construction to be constructed out of.”[1] In our context, it would be surprising, and not a little arrogant, to claim that all the talk about constitutionalization has no basis in any reality, and is without normative merit.

While our commentators have focused on our discussions on democracy and the role of the judiciary in particular, they have paid remarkably little attention to the chapter on law-making, with the exception of Dunoff and Trachtman claiming that the ‘presumptive law’ endorsed in that chapter would ‘flip’ the classic Lotus position.  This, however, is not really the case: the pertinent chapter underlines that consent remains a serious requirement, and remains the basis of obligation. It is just that in a constitutional order, the expressions of consent can often be presumed, perhaps only to be rebutted. But the very possibility of rebuttal leaves the relevance of consent intact. Instead of turning Lotus on its head, the chapter aims to adapt it to constitutionalist thought, in full realization of the continued relevance of the Lotus doctrine.[2]

Some of the commentators suggest that ours is an uncritical embrace of liberal, top-down constitutionalism. This, however, is mistaken. As explained above, to some extent descriptive, normative and conceptual aspects cannot be kept neatly compartmentalized. More importantly though, there is no inherent tension in writing about constitutionalization, even sympathetically, while simultaneously being critical.[3] At the heart of our book is the idea of taking the ball and running with it: the ball is not of our making, and the trajectory of the run is more or less pre-determined: we set out to explore what constitutionalization could entail, and which direction it could go, if taken seriously. This does not imply a full embrace of constitutionalization; instead, it takes an ongoing discussion and explores its ramifications. We understand that in a scholarly community where human rights lawyers tend to be pro-human rights, and trade lawyers pro-trade, keeping a normative distance from the object of research is perhaps less common than it should be. However, the implicit suggestion that keeping some distance is so uncommon as to invite criticism is decidedly troubling.

[1] See John R. Searle, The Construction of Social Reality (London: Penguin, 1995), at 190.

[2] Ironically, as the author of the law-making chapter as well as quite a few works on the concept of treaty and soft law, I am often accused of being rather too faithful to the Lotus doctrine.

[3] And just for the record (and again not without irony), I am sometimes deemed overly critical of constitutionalization, as reflected in earlier writings. See, e.g., Jan Klabbers, ‘Constitutionalism Lite’, (2004) 1 International Organizations Law Review, 31-58.

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.

 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.

Professor Peters concludes that, in developing the idea of global democracy, it is not meaningful to refer to the idea of a global demos (although the conclusion sits uneasily with the idea of a Global Constitutional Community, in which the individual is the ultimate unit of concern). The relationship between international organizations and individuals is established by an application of the principle of ‘affectedness’ (‘those affected’ by global regulations have the right to participate in the formation and review of international law norms). There are, however, a number of problems in relying on the  ‘all affected’ principle to establish lines of accountability for the exercise of political authority ‘beyond the state’. First, the idea is invariable defined by reference to (international) human rights or material and financial considerations, reflecting particular ways of seeing the world (and particular value systems). Second, reliance on the ‘those affected’ principle leads to shifting boundaries of political constituency on policy issues, with non-state actors finding themselves accountable to different constituencies on different questions of policy (with different requirements for representation). Third, given that it is often possible for an individual to claim (and demonstrate) that they have in some way been affected by a global regulatory norm, the principle is invariably reformulated to include only those who are ‘significantly affected’ (etc.), with the test for inclusion (the claim to be ‘affected’) becoming both (more) indeterminate and subjective.

 The argument that the hypothetical political communities of global regulators are defined by the ‘those affected’ principle is common in the literature, drawing on arguments in domestic settings, where ‘those affected’ are a subset of ‘those subject’ to the law (all of whom, ceteris paribus, have the right to a vote and voice in deliberations about political law norms and the conditions of domestic justice). The establishment of political law norms is the right and responsibility of all members of the political community (‘citizens’ in the nomenclature of the state), with a particular concern for those subjects that will bear the burden of the regulatory measure (‘those affected’). The conclusion suggests that the political community of an international organizations should be defined by the principle of ‘subjectedness’: an autonomous international law order establishes its own jurisdictional boundaries and enters into an accountability relationship with those subject to the legal order. The exercise of political authority by international organizations and other non-state actors defines ‘those subjected’, who have the right to participate in decision-making processes, directly or through representatives.

 The Westphalian settlement, according to the positivist orthodoxy, constructed the modern political world, establishing the sovereign territorial state and dividing the idea of law along a strict binary line: (internal) state law in accordance with a self-given constitutional law order and (external) inter-Nation law that relied on sovereign consent for the establishment of international law norms. Within the state, it is now accepted that the legitimacy of law depends on the institutionalization of democratic procedures. The legitimacy of (positive) international law is provided by the requirement of sovereign consent, constructing an ideal in which political legitimacy rests on an expression of sovereign will and the consent of all subjected states. The two-track model of democratic legitimacy (democratic within the state and sovereign will for the establishment of international law norms) establishes a counterfactual ideal in which the democratic legitimacy of ‘Westphalian’ (domestic and international) law rests on an expression of sovereign will (in accordance with the will of the people).

 The globalization and fragmentation of regulatory functions and reduction in the centrality of sovereign consent for the establishment of law norms means that it is no longer possible for the concerned citizen to seek to influence ‘the law’ that regulates the conditions of social, economic and political life through state governments. The analysis developed by Anne Peters concludes with the requirement for a ‘multi-unit democracy, built with domestic and international building blocks’. It raises two important (and related) questions: why is it that ‘all rule [through law] over persons should be democratic’; and, how to we make sense of the counterfactual ideal in which the democratic norms of global governance systems conflict with the democratic law norms of the state – the problem of too much democracy. The solution to the ‘democratic conundrum’, following the telos of the constitutionalist argument (‘the core objective of constitutionalism [is] the containment of power’), suggests ‘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.’ Systems of law must recognize and accommodate the realities of global legal pluralism, in which overlapping and conflicting legal orders (defined by reference to a basic norm or rule of recognition), not organized in accordance with a global constitutional settlement, norm or principle, recognize their own autonomy and possibility of a legitimate claim to authority by other systems of law.

 The meta-analysis of the unstructured form of the global constitutional order is compelling, but leaves open the question as to how democratic systems of state law should react to the jurisdictional assertions of systems of global regulation (see, for an example, judgment of the German Federal Constitutional Court on the Acts approving the Treaty of Lisbon: Bundesverfassungsgericht (Treaty of Lisbon), BVerfG, 2 BvE 2/08 of 30 June 2009). The argument can be reformulated in terms of (legitimate) authority: law must have authority. For a global regulator to determine the normative situation of others, it must be a legitimate authority; that is, following Joseph Raz (The Morality of Freedom (Oxford: Oxford University Press, 1986), p. 53) it must regulate in accordance with the interests that the subjects of the legal regime already possess. In relation to the citizens of democratic states, it seems reasonable to conclude that individuals will only accept that those reasons can be determined through engagement with citizens through democratic procedures.

 The following conclusions suggest themselves in relation to international organizations and other non-state (‘non-sovereign’) actors: (1) the exercise of authority by global regulators cannot be justified by reference to global public goods (the interests of international peace and security, a globalized economy, etc.), it must be justified by reference to the interests of the subjects of the regulatory regime; (2) those interests cannot be asserted by experts, or any other institution or persons, they must be established through democratic procedures – a global regulator must engage in democratic procedures to ensure the inclusion of the interests and perspectives of those subject to the regime in any law-making processes; (3) regulatory norms must be established through a process of public reasoning that determines the content of authority directives in accordance with the interests and perspectives of those subject to the governance regime, requiring the establishment of representative, deliberative bodies and formal consultation mechanisms to engage with subjects; (4) in the absence of democratic procedures, a global regulatory body does not enjoy legitimate authority: it cannot legislate international law norms.

 The conclusion provides the basis for beginning to think about the structuring of the legal orders that together constitute the modern world of law (including state law orders and the legal orders of global governance): each (autonomous) legal system should structure its relationships with other legal systems in accordance with the idea of democratic authority. On this understanding, three issues will influence the attitude of the democratic state to conflicting assertions of jurisdiction by global governance regimes: its constructed identity as a sovereign state (it will understand itself as being bound to comply with international law norms established through an exercise of sovereign will); its rational self-interest in complying with global regulatory norms; and a revised understanding of the idea of democratic authority in conditions of global legal pluralism. The rule of international law creates a presumption for the authority of international law norms (properly so-called) that can be refuted (1) where a global regulator does not enjoy legitimate authority (where a non-state actor is not accepted as an authority, it cannot legislate valid international law norms); and (2) where the political legitimacy of state law, established through democratic procedures, ‘trumps’ that of the international law norm. Where the claim to democratic legitimacy of the international law is stronger, the international norm is to be preferred.

 The analysis suggests a multi-track approach to democratic legitimacy for ‘law’ in the modern age, following the globalization and fragmentation of regulatory functions: an international community of democratic states; deliberative forms of diplomacy in the practice of international law, with a particular focus on international law-making through international conferences that allow for the participation of state and non-state actors (‘those subjected’) and the development of the modern form of customary international law; democratic legitimacy for the global regulatory activities of non-state actors; and a conflicts of law regime that focuses on the question of democratic authority.

Jean L. Cohen is Nell and Herbert Singer Professor of Political Theory and Contemporary Civilization at Columbia University.

I was asked to respond to the chapters of Anne Peters in the new volume, The Constitutionalisation of International Law. Peters’ work is comprehensive, diligent and impressive in its erudition and scope.  It gives a good overview of the arguments on all sides yet does not convince me.  I’ll summarize the general thesis and make some remarks along the way and in conclusion. 

Peters’ chapter on Dual Democracy must be situated in the cosmopolitan camp.  Her thesis is that global constitutionalism requires democracy and that democracy must be dual: i.e. it must operate on two tracks: one statist, the other individualist, the former relating to governance within states, the latter to governance ‘above’ states. While it is not clear to me why global constitutionalism requires democracy (Much could depend on the concepts of constitution and constitutionalism which are not examined in these chapters. But whatever conception one works with, surely it is not convincing to equate constitutionalism and democracy: rather their interrelation requires serious theoretical and perhaps historical reflection).  Obviously the real thrust of the chapter is about imagining a feasible utopia of democratic global governance.  There’s no need to repeat the arguments as to the non-democratic character of international law-making or of global governance institutions.  Clearly the issue of legitimacy arises due to the expanded scope and reach of international/global law and governance.  For Peters, legitimacy means democratic legitimacy.  She usefully canvasses all the usual suspects in the democratic camp and comes up with her own distinctive position.  The strength of her position is that it avoids the substitution-alism of many models – cosmopolitan democracy does not replace democracy within states, global civil society does not replace domestic or global government, mechanisms of direct democracy do not replace mechanisms of representation or accountability.  Nor does her approach simply rest on the domestic analogy: she trys not to simply ratchet up democratic arrangements and mechanisms developed in democratic states to the globe or to international organizations (IOs) or in today’s parlance, global governance institutions (GGIs).  To be sure, she works with a strong conception of democratic principles—political equality, participation, inclusion of all governed, responsiveness and accountability of the governing actors and the sanction power of citizens to throw out politicians normally through elections.  But the dualistic conception is contrived to mesh with the dualism of the world order—i.e. as one that is and will remain composed of both states and individuals.  Thus against substitutes like theories of deliberation, participatory democracy or competitive democracy (ascribed to Dryzek, Pateman, and Pettit respectively) that allegedly should replace formal electoral democracy, she rightly argues that these do not on their own merit the label, democratic unless they hook up with formal i.e. electoral democratic mechanisms.

 How then to resolve the democratic deficit of international law?  So what is dual democracy?  Again, the constitutionalisation of international law in this chapter entails democratization which must occur on two distinct tracks. 

1. First the constitutionalisation of international law (or global democracy) requires that all states be democratic. It seems obvious that if the democratic deficit of international/global law making is to be rectified and if states continue to be internal law makers (treaties, custom) and the key actors making global law (in IOs or GGI’s) then their own internal systems would have to be democratic for the claim of delegated democratic representation to get off the ground.  In a somewhat confusing blur of the empirical, analytical and the normative levels of analysis, Peters argues that there already is an international legal democratic entitlement and that this is a key feature now, of the constitutionalisation of international law.  It is unclear just what this may mean since there are many non democratic states belonging to GGIs/IOs and making international law and I don’t know if she thinks they should be excluded from the former or barred from the latter: not a very attractive or feasible idea in my view.  I am not convinced about an international legal requirement of domestic democracy apart from requirements for joining very specific types of polities like the EU, or apart from the possibility of expulsion in case of an anti-democratic military coup as in the OAS.  Sure we all want all states to be democratic but no one can seriously contemplate excluding China from the U.N. or stripping it of its sovereign equality as a subject of international law.  If we are speaking of ideal theory, then it would certainly be preferable logically and normatively that in democratic global governance – in which states as states have a key role, indeed in which as members of IOs or GGIs there is voting by majority (instead of unanimity) -ideally the states themselves should be internally democratic and enjoy democratic legitimacy.

 2. However, even if every state was democratic and the world order was really based on sovereign equality of states this would be insufficient.  In a constitutionalized world order (again constitutionalised=democratized in her view), as all cosmopolitan theorists unfailingly remind us, natural persons, not states are the ultimate unit of moral concern and this to Peters means the ultimate unit of democratic procedures.  So voting by state or law making even by democratic states violates the allegedly core principle of democracy: simple majority rule. Even majority voting by states instead of unanimity violates the principle of one person one vote.  Apparently simple majority voting rules rather than compound majority rules are the only real democratic formula.  (I am far from convinced by this argument even as it pertains internally within states since one would maintain that all majorities are compound and thus in some important areas voting by supermajority ensures a broader consensus as in constitutional amendment rules or in federal states or federal polities).   However Peters’ point that unless GGIs or IOs are also democratized, given their role and scope in the 21^st century, then democracy on the level of states will be insufficient to counter oligarchy, power on the global level and will itself be at risk the more the global institutions decide and the more they penetrate the black box of the state and constrain state organs and individuals is compelling.  The transitive model of democratic legitimacy that relies on delegation from citizens to their states political organs to IOs is certainly no longer convincing in many contexts.  In other words the old principal/agent model for GGI’s and IOs won’t do in today’s world of complex, pervasive global governance and law making.  The lack of accountability and responsibility in many IOs and GGIs to any democratic instance or to any citizenry is certainly a serious issue today.

For Peters this means that the second track of dual global democracy has to be based on the equal consideration of natural persons and she insists on active legal personality for natural persons such that ideally they become active individual law maker’s not just rights bearers or law takers.  Democratization means that the second track of dual democracy would have individuals as co-subjects of international law making.  Transnational citizenship has to complement domestic citizenship. Why? Because in a constitutionalised (i.e. democratic) world order, citizenship would have to be globalized such that the two relevant communities are taken into account: the local community of our birth (I assume by this she means the state) and the “community of human argument and aspiration”. I am not convinced that the latter is more than a moral or symbolic community, surely it is not homologous to the demos or political community of a state so the question is what this means institutionally.

Peters proposes a range of institutions to concretize this community of humanity on the second track: including peoples’ parliaments within the WTO, the UN and the Breton Woods organizations; mechanisms for the voice and presence of civil society organizations and for their full access to information for all citizens; publicity of decisions and decision-making; referenda regarding important global issues held nationally or globally, and so on.  Happily she does not propose the principle of one person one vote for the second track since she knows this is infeasible (although her normative conception seems to require it).  Nor does she propose to replace existing institutions such as the General Assembly by a global parliament but to supplement as already indicated.  Moreover she sees that the “all affected principle” allegedly the core democratic principle is not translatable in functional organizations due to problems of delimitation: everyone is affected by everything, of course.  But GGIs or global functional organizations like the WTO or the UN are not federal states: she states that it does not make sense to consider inhabitants of member states as indirect citizens of IOs via the member states.  The “flawed compromise” she proposes is one in which membership in parliamentary assemblies tracks states’ membership meaning that voting by individuals for representatives to GGI’s (who would have initially consultative roles) be determined by state membership.   Ultimately the argument for why global parliaments even if they are only (at first) consultative are not only needed to supplement eg. The General Assembly in the UN but also more democratic turns on the claims (326) that (elected) parliamentarians are closer to citizens then members of executive and diplomats who represent member states since population size would be taken into account, individual equality would be respected, the core democratic principle, and finally if delegates are elected from domestic parliaments they would include members of the opposition.  The consultative role of such bodies internal to GGIs, if complemented by a similar rule for civil society organizations would be a major step toward their democratization.

 To be sure.  But for me the problems start here where the analysis ends.  For what is lacking is any reflection on political form, any differentiation among the types of non-state political formations to which the discourse of democratic constitutionalisation is applied, not to mention the problem of how to get there, who would have the incentive and will to push in this direction and so on. 

In short, it is utterly unclear what political form “human community” could or should or does consist of and what makes it a legal or political community comparable to the legal and political communities into which “individuals are born”, namely, states.  We are told that the political community would be organized into multiple demoi.  But in a chapter of nearly 80 pages the most obvious analogy, namely federalism is referred to in one short footnote (fn 252) to a passage in which she states that her middle strategy which still relies on inter-state structures yet translates the dual basis of international law into a visible institutional structure such as the model of two assemblies in the UN (representation of states, representation of individuals) has a federalist ring.(325)  In the footnote Peters says as an afterthought: “Actually, the whole idea of a two-track democracy implies a transnational federal polity which is not, however, and should never become a federal state.”

Indeed. And there in lies the problem. But this is where the crucial critical and reflective inquiry should begin, not where it should end.  What is a federation of states and peoples that is not itself a state? Are there different versions or such beasts and could/is the EU, a non-state polity a federation, should it become one, and could a (reformed) UN or WTO be one as well?  If a federal polity is not a state then what are its core features?  Does the constitutionalisation of international law mean rendering the external internal?  In what way?  The transnational citizenship of the EU clearly involves federal principles but must a federal polity (a constitutionalized transnational legal and political order) involve direct representation of individuals in its internal organs in order to be constitutional?  Surely not.  What about direct effect?  I argue that that the discourse of the constitutionalisation of international law cannot avoid the issue of political form and after all the endless normative arguments and ideal theorizing about design feasible or infeasible utopias, this is where we should not spend our energies.

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.

In relation to the first point, there are any number of ways in which a group of individuals can constitute a community (or think of themselves as a community). What then is the ‘Global Constitutional Community’? The Global Constitutional Community, as a legal community, is constituted by a system of global (constitutional) law which might be defined in terms of the foundational norms of (general) ‘international law’ (created by states, for states – with limited exceptions in relation to humanitarian law and human rights); the laws of the United Nations (which remains an international organization of States, although permitting different levels of engagement by non-state actors on different issues); or the various, fragmented, regimes of global governance – together understood as ‘international law’. In relation to general international law and United Nations law, it is not clear that individuals conceive of themselves (or are conceived by regulators) as co-members of a global community of fate defined by reference to public international law. In relation to the fragmented systems, it is difficult to conclude that the plurality of regulatory regimes construct (even hypothetically) a Global Constitutional Community. The question then arises as to the ways in which the re-description of the complexities of the extant conditions of global regulation as a Global Constitutional Community are helpful in making sense of the analytical concept or practical application of ‘international law’ in the modern age?

 The exception to the (designated and self-) concept of world society as a community emerges in relation to the idea of ‘international human rights law’ (and other ‘humanitarian’ law regimes) and norms of political legitimacy and accountability (the democracy ‘norm’ in international law). Human rights and democracy are amongst the basic constitutional values recognized within the discipline of international law, reflecting the ideological imprint of the hegemonic liberal democratic discourse – arguments for the constitutionalization of international law are, if you like, arguments for the application of values first codified in the American Constitution at the global level: rule of law, human rights and democracy. These are then imposed on state societies.

 The language and metaphors of ‘constitutionalism’ suggest a realm of (‘neutral’ and ‘objective’) discourse that sits above (and constrains) domestic and international politics. The global constitutional settlement is not, though, neutral and objective: it is the product of political debate, discourse and will. If we accept that the supreme democratic right is the right to establish and restructure the constitutional order (which cannot be imposed by others), then we must accept that the Global Constitutional Community has the right to restructure the global constitutional settlement; if this is not the case, one of two conclusions follow: either the fundamental norms identified by the constitutionalist analysis are inherent in the exercise of legitimate political authority through law; or this is an elite project imposing a liberal paradigm on all communities in world society. The later conclusion would seem to be both problematic and paradoxical given that the liberal project is concerned with the avoidance of domination by elites and the subjection of political authority to the ‘will of the people’.

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.

I have emphasized the public law character of international constitutionalization, i.e. that empowered international institutions should be under constitutional control, in the form of democratic guarantees, rule of law, and protection of human rights. Our book is a thought experiment in asking how a constitutionalized world could look like. There is an underlying assumption that the world is becoming more constitutionalized. But the book does not represent an empirical study of this process and its causes. It is more concerned with the normative issues: what kind of constitutional guarantees should balance the increasing empowerment of international institutions?

This does not mean that we are fully occupied with enjoying the Lotus garden at the expense of hard work, as Dunoff and Trachtman suggest. First, the development of a constitutional perspective and its possible consequences represent in itself hard work. This is what we have tried to do in the book. But, second, although we have not undertaken an empirical study in this book, this does not mean that we dismiss the value of such studies. On the contrary, empirical studies are welcome and necessary. It is important to examine how different institutions, including international courts, are organized and function from a constitutional perspective. Such studies should form the basis for any concrete normative proposals.

Dunoff and Trachman would also prefer a bottom-up rather than the top-down approach, which the book is claimed to apply. The intention of the book is certainly not to impose specific constitutional solutions. I agree that such choices should be up to policy-makers. But it is the role of academics to develop the choices available if certain constitutional values are to be respected. This may actually empower the policy-makers in choosing the option that best responds to their objectives.

Finally, a constitutional approach does not mean a farewell to positive law. But it means to accept that international law is not limited to treaties and customary international law. International decisions (binding and non-binding) and judgments are of increasing importance. This growing public character of international law raises not only normative issues, but also questions of the legal significance of such decisions and judgments in positive law.

Daniel Bodansky is right in asking about the added value of a constitutional perspective, especially in relation to global administrative law. I would say that the two approaches have much in common. Global administrative law has set out accountability standards, such as transparency, participation and reasoned decisions. But international constitutional law asks specifically how international institutions could learn from national constitutional law, and how they should inter-act with national constitutional organs. It should also ask how national constitutional organs should respond to the new international setting, as has been argued by Mattias Kumm.

Bodansky also asks whether it might be better to study the different elements of constitutionalism, such as judicial review and democracy, rather than constitutionalism as such. But only a constitutional approach studies the inter-relationship between such elements, for example how to balance legal control represented by judicial review while ensuring ultimate political accountability.

So, a constitutional approach to international law brings a useful perspective. Traditional sources of international law in the form of treaties and customary international law continues to play important roles. But the constitutional approach is of increasing importance as the public character of international law is growing.

Professor Jeffrey Dunoff is Charles Klein Professor of Law & Government at the Beasley School of Law, Temple University. Professor Joel Trachtman is Professor of International Law at the Fletcher School, Tufts University.

In The Constitutionalization of International Law (“CIL”), Jan Klabbers, Anne Peters and Geir Ulfstein have produced a valuable addition to the burgeoning literature on international constitutionalization.  Their important volume presents an admirable overview of many of the major debates in this area as well as a distinctive vision of constitutionalization’s features and virtues.  In this short post we wish to highlight an important dimension of their argument; raise some questions about their analysis; and briefly outline an alternative approach to understanding international constitutionalization.

CIL’s account of constitutionalization is notable for the way that it subverts many standard international law dichotomies.  While it is difficult to summarize their subtle arguments in a brief post, we might capture CIL’s constitutionalist approach by contrasting it with the vision of international law encapsulated in the PCIJ’s landmark Lotus decision. 

The Steamship Lotus, before its collision with the Boz-Kourt

Lotus famously held that “[i]nternational law governs relations between independent States.  The rules of law binding upon states therefore emanate from their own free will . . . .  Restrictions upon the independence of States cannot therefore be presumed.”  CIL’s version of constitutionalization turns virtually every element of these claims inside out.

In CIL’s vision of a constitutionalized international order, the state is no longer the primary actor on the international legal plane.  Rather, as Anne Peters emphasizes, “[i]n a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community.”   As a result, constitutionalization transforms individuals from mere recipients or consumers of international legal rules into active agents empowered to participate in international law-making activities and to initiate judicial or arbitral proceedings to vindicate their rights (p. 161).  Hence, one way that CIL’s constitutional vision flips the Lotus worldview is that the state is decentered, and individuals are the hub around which international law revolves.  Notably, CIL’s focus on the individual is not the normative and methodological individualism that forms the basis for conventional economic thought, but a juridical claim regarding the relevant actors in international law. 

Second, Lotus presupposes a certain understanding of the sources of international law.  International legal norms “emanate” from the “free will” of states.  The Lotus world, in short, is a highly positivist world, where law is rooted in state consent.  Hence, international law can be ascertained and identified by examining the actual methods that States use to give effect to their wills, primarily through treaty and custom. 

In contrast, CIL’s constitutionalized world order includes many types of processes and forms of normative pronouncements that do not fit easily into the traditional categories of international law.  Behavior ranging from the informal efforts of international networks of civil servants to industry codes of conduct and private merchants’ lex mercatoria can be considered legislative, and the category “law” should be expanded to include “soft law instruments, non-legally binding agreements, or Memoranda of Understanding.”  In addition, CIL’s constitutionalized world flips Lotus’s positivist world based on state consent.  Although CIL recognizes the continuing relevance of consent, it also, as Jan Klabbers’ post emphasizes, opens the door to “law making by majority” and other forms of non-consensual law.   Jurisprudentially, then, CIL’s constitutionalized legal order is a decidedly “non-positivist” legal order (p. 191).

The Other Type of Lotus

Finally, the Lotus presumption that states retain freedom of action unless there is a positive law restriction (what CIL calls the “presumption of non-law” (p. 116)) is flipped on its head.  As Klabbers notes, under a constitutionalized international order, the operative “presumption [is] that normative utterances are legally valid and legally binding, unless and until it can be demonstrated that they are not.”

Thus, CIL sets out a distinctive vision of international constitutionalization, one that in many ways is premised upon inverting the conceptual apparatus that supported Lotus. 

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For international lawyers, then, Lotus stands for a series of propositions about the nature of the international legal order.  For those with a more literary bent, the lotus will have different associations. 

17th century etching by Theodore van Thulden of Odysseus dragging crewmembers, against their will, away from the Island of the Lotus Eaters.

 In Book IX of The Odyssey, strong winds blow Odysseus’s vessel off course, toward the “land of the Lotus Eaters.”  Unsure of the reception his crew might find, Odysseus sends three crewmembers to explore the island.  The men are well received; the natives “did them no hurt, but gave them to eat of the lotus, which was so delicious that those who ate of it left off caring about home, and . . . were for staying and munching lotus with the Lotus-eaters . . .; nevertheless, though they wept bitterly I forced them back to the ships and made them fast under the benches. 

Then I told the rest [of the crew] to go onboard at once, lest any of them should taste of the lotus and leave off wanting to go home, so they took their places and smote the grey sea with their oars.” (Homer, The Odyssey, Book IX, lines 82-104 (Butler Translation)).

Juxtaposing the associations of these two understandings of Lotus raises a series of provocative questions: Might CIL’s inversion of the Lotus principles in the service of international constitutionalization tend to promote a form of idleness and lethargy in its readers?  Is it possible that the invocation of international constitutionalism acts as a narcotic in the sense of diverting relevant actors from the hard work necessary to advance the values that CIL associates with constitutionalization?  More specifically, might constitutionalization’s narcotic effects deprive those who consume it of constructive energy and free will? 

CIL employs a heroic conception of the power of law; indeed at one point CIL claims that “to the extent the future can be steered at all, it can be done only by means of the law” (p. 104).  And CIL’s constitutionalized international legal order is even more heroic; constitutionalization is associated with a variety of desired outcomes, including peace, legitimacy, rule of law, respect for human rights, accountability, and transparency. 

Notably, however, CIL fails to establish two critical causal links.  First, what will cause constitutionalization?  Second, and even more important, CIL does not explain how constitutionalization will cause these desired outcomes.   Constitutionalization is for CIL indeed a deus ex machina that can come from above and solve all problems.   In this sense, the authors seem to pre-empt a set of discussions and decisions that should be the result of global political processes. 

Presenting constitutionalization in this way significantly downplays the critical role of political action in achieving and sustaining the outcomes CIL associates with constitutionalization.  Specifically, this vision of constitutionalization misleads by eliding the hard work and political engagement necessary to generate outcomes like the rule of law and respect for human rights.  It is a mistake to think that the enactment of positive law, even constitutionalized law, automatically leads to these results.  Instead, as Jutta Brunnee and Stephen Toope emphasize in Legitimacy and Legality in International Law, the enactment of positive law can usefully be considered a starting point, rather than a culmination.  Alternatively, the enactment of positive law may punctuate social developments.  A participatory process for production of positive law allows participants, including states and other persons, to evaluate for themselves each step.  A scholar’s insistence on a particular step is undemocratic in the most fundamental sense; indeed it evidences the soft paternalism exercised by Odysseus when he decides, on behalf of his crew and against their wishes, to pull his men away from the Island of the Lotus Eaters.    Only the social roots that are built through participatory processes enable law to exist and to endure.  Thus, we wonder whether CIL’s treatment of the Lotus, and its understanding of constitutionalization, might produce a euphoria that distorts vision and obscures the need for the pragmatic, ongoing efforts required to make outcomes like rule of law and respect for human rights concrete achievements.   

The arguments presented in CIL downplay the role of politics in another way as well.  The volume places individuals at the center of the constitutionalized global community.  Since individuals are rights-holders, CIL naturally devotes substantial attention to individuals’ ability to enforce those rights judicially and, more broadly, to the role of international courts.  However, for a book that celebrates global democracy, the emphasis on global courts is paradoxical.  CIL  recognizes that “international adjudicators are even less democratically legitimate than the international regulators” (p. 292) and that the “accountability created by courts and tribunals” cannot compensate for a lack of democratic accountability (p. 340).  CIL’s reliance on courts to produce and enforce normatively desirable constitutional outcomes underemphasizes the ways in which those outcomes can only be sustainably produced by ongoing political activity.

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CIL is just one of various recent efforts to describe international constitutionalization.  Elsewhere, we’ve presented an alternative account that can be usefully contrasted with CIL’s.  Our account does not presuppose a normatively desirable set of outcomes.  Instead, it provides states and other relevant legal actors with a roadmap for how to achieve outcomes that they choose to pursue.   Perhaps for this reason, we focus much less on judicial processes than CIL does, and much more on international legislative processes.  Finally, we highlight the role of international politics in achieving anything close to a constitutionalized international legal order.

We do so by detailing a “functionalist” account of international constitutional norms.  Notably, our “functionalism” is not the functionalism that CIL criticizes for obscuring the distinction between legal and non-legal norms (pp. 99-106).  Rather, our functionalism focuses on what constitutional norms do, the roles they play, in response to the actually expressed needs of states and other international legal actors.  Our functionalism, then, is very much of the “bottom up” variety, and is usefully contrasted with the “top down” identification of constitutional desiderata found in CIL.  CIL asserts that the constitutionalization it envisages is “bottom up” by virtue of its reliance on individuals as the central actors.  However, the best evidence of individuals’ actual wishes today is still derived inductively from state action, not deductively by scholars.  Because the principles inherent in the Lotus worldview are rooted in and rely upon actual practice, they have a greater foundation in normative methodological individualism than those proposed by CIL.   

Our purpose in highlighting these differences is less to argue that one approach is better than another than it is to underscore some of the ways that CIL helps to clarify and advance debates over international constitutionalization.  CIL presents a challenging vision of constitutionalization that can be understood as reversing the vision of international law associated with Lotus.  The question is whether, by eliding the sustained political efforts needed to produce outcomes such as rule of law and respect for human rights, CIL embraces an overly heroic vision of law and correspondingly downplays the hard work of making these aspirations a concrete reality.

From August 2010, Professor Daniel Bodansky will be Lincoln Professor of Law, Ethics and Sustainability at Arizona State University’s Sandra Day O’Connor College of Law. Previously, he was Emily and Ernest Woodruff Chair in International Law and Associate Dean for Faculty Development at the University of Georgia. In 2009 and 2010 he has been a Visiting Fellow at the Smith School of Enterprise and the Environment at the University of Oxford.

The recent appearance of two new books on international constitutionalism – Jeff Dunoff and Joel Trachtman’s Ruling the World (the subject of an earlier EJILTalk symposium) and the volume by Jan Klabbers, Anne Peters and Geir Ulfstein that is the subject of this symposium – suggests that constitutionalism is becoming the latest concept du jour in international law, following on the heels of legitimacy, legalization, and fragmentation.   Both books are the fruits of multi-disciplinary, international collaborations:  Ruling the World includes contributions from more than a dozen scholars from the US and Europe; likewise, The Constitutionalization of International Law grew out of an international conference in Kandersteg, Switzerland, organized by Anne Peters, involving lawyers, political scientists and economists, which was the subject of a special issue of the Indiana Journal of Global Legal Studies.  Both books involve top international law academics and are enormously valuable contributions to the field.

The newfound interest in international constitutionalism raises many questions:

• First, there are conceptual questions about the meaning of constitutionalism generally and international constitutionalism more specifically.  What is a “constitution,” what is “constitutionalism,” and what is the relation between the two?  How might constitutionalism translate to the international sphere?  What would an international constitution look like? Here it is useful to distinguish a thinner and thicker sense of a “constitution”?  On the thinner view, a constitution is simply the body of law that sets forth the fundamental (that is, superior and more difficult to change) rules of a political community.  A constitution both constitutes and constrains political power, by creating and setting limits on the basic institutions and decision-making processes of a regime.  The thicker view – embraced by Klabbers, Peters and Ulfstein – associates constitutionalism with a number of more specific procedural and substantive limits that reflect liberal political values, including democracy, separation of powers, fundamental human rights, and judicial review.
• Second, there are explanatory questions about the causes and effects of constitutionalism?  For example, what are the social preconditions of constitutionalism and are they present internationally?  Is constitutionalism possible only when there is a political community with a common history, language, and “public space”?  What explains the sudden upsurge of interest in constitutionalism among international lawyers?  Does this reflect actual changes in international relations, for example, – an actual growth in constitutionalism as a mode of governance?  Is it a reaction to increased concerns about fragmentation and illegitimacy in international law – an attempt to put international law on a stronger normative footing?  Can it be explained as an effort by European lawyers to extrapolate or generalize from the EU experience to global politics more generally?  Or does it have some other explanation?
• Third, there is the descriptive question: Is there, in fact, an international constitution?  Or, at least, is international law becoming more constitutional?  Is it developing constitutional aspects or dimensions?
• Finally, there are normative question about the proper role of constitutionalism in international law.  Should there be an international constitution?  If so, what should an international constitution look like?  How well does existing international law measure up when evaluated against the standards of constitutionalism?  And what changes are needed?

Of these various questions about constitutionalism – conceptual, explanatory, descriptive, normative, and meta — which do Klabbers, Peters and Ulfstein address?  In his introductory chapter, Jan Klabbers says that The Constitutionalization of International Law doesn’t aim “to demonstrate that a process of constitutionalization is actually taking place” (page 4), nor is it a book about international ethics.  Instead, he suggests that the aim is largely conceptual, namely, to examine what a constitutional international order would like – or, as he puts, it, to “provide the idea of constitutionalization with some hands and feet” (page 4).

But this modest self-description notwithstanding, the book in fact has many things to say about the full range of issues concerning constitutionalism, even if not always explicitly.  For example:

• Klabbers states that all of the talk about constitutionalization doesn’t exist only in the minds of lawyers (page 5), that “the international society would seem to be undergoing a process of constitutionalization” (page 7) and that the book aims to “make visible what might be called the invisible constitution of the international community” (page 4).   In a more limited fashion, Peters argues that “a sectoral constitutionalization” is taking place within international organizations” and that “a principle of openness of global governance forums for NGOs is emerging as a constitutional principle.”  These are descriptive claims about what is actually taking place in the world.
• Peters takes a largely normative approach, arguing (among other things) for proportional rather than equal voting by states in international organizations and giving NGOs greater voice (but not votes), including through the presumptive right to make written statements, file amicus curiae briefs, and trigger certain non-compliance procedures.  Similarly, Ulfstein makes a variety of normative claims, including that:
  • “decisions of legislative character by the UN … should be adopted by the General Assembly rather than the Security Council” (symposium introduction)
  • “decisions in individual cases should be based on law rather than on political considerations” (ibid)
  • international tribunals should play a bigger role in developing international law, but need better election procedures and due process guarantees (ibid).
• Klabbers partially explains the interest in constitutionalism as a response to concerns about fragmentation and legitimacy (chapter 1, section 3), which I think is no doubt true.  As international institutions exercise more and more power, there is a greater need for checks and balances.  As Ulfstein notes, because a constitutional approach emphasizes the relationship between empowerment and control, it is attractive as a potential means of legitimizing the growing authority of international institutions.

The authors’ views on the full range of issues raised by constitutionalism are very welcome.  My only concern here is that, because the authors don’t always keep the different types of issues distinct, it is not always clear what kind of argument they are making.  For example, in her chapter on “Membership in the International Community,” Anne Peter states: “In a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community.”  Is this intended as a descriptive statement and, if so, what empirical evidence would count in favour or against it?  Is it a normative statement about how international relations should be ordered?  Or is it a conceptual statement about what international constitutionalism would entail?  I think Peters is intending to make a conceptual claim, combined with a normative assessment that such a constitutional order would be a good thing.  But, if so, it would be useful to make the conceptual and normative arguments more explicit.

Similarly, Klabbers identifies the requirements of a constitutional world order.  It “must respect pluralism in its different guises, it must be legitimate too,” and it will “have to come to terms with its own heterarchy” (page 44).  But what is the nature of these requirements?  Are they required as a normative matter, a conceptual matter, an empirical matter (given the existing nature of the international community), or some combination of the three?

The growing interest in constitutionalism reflected by the publication of The Constitutionalization of International Law raises the “meta” question:  What is the value-added of analyzing international law from the perspective of constitutionalism?  Is “constitutionalism” a helpful category in studying international law?  How does it compare with global administrative law (and to a lesser degree legalization) as a perspective for assessing and legitimating international governance?  In what ways do these perspectives differ and which is most relevant for international lawyers?

Peters argues for the value of a constitutionalist perspective, suggesting that it allows us to ask “the right questions of fairness, justice and effectiveness” (page 344), and provides “the best stocked reservoir from which responsible policies may draw and the most persuasive medium in which it may be articulated” (page 352).

The problem, however, is that constitutionalism is such a protean concept, with so many different interpretations, that it does not provide clear answers to many questions. Consider, for example, judicial review of Security Council actions.  In the United States, which is usually considered to have a strong constitutionalist tradition, courts have refused to review many types of decisions, including those relating to the use of force, on the ground that they are “political questions.” So constitutionalism, in itself, doesn’t necessarily dictate judicial review of all important issues.  Rather than argue whether judicial review of Security Council actions is a necessary feature of “constitutionalism,” we might do better to argue the pros and cons of judicial review directly.  Similarly, in considering the role of democracy in international governance, it might be preferable to argue the normative issues directly, rather than answering the question through the association of democracy with constitutionalism. 

These concerns notwithstanding, The Constitutionalization of International Law represents a very thoughtful and valuable contribution to an important topic.   We need to understand better what constitutionalization could and should mean internationally, the degree to which it is taking place, the obstacles to its achievement, and the most promising ways forward.   The Constitutionalization of International Law advances our understanding of all of these issues.