Constitutionalization and International Law-making

Professor Jan Klabbers is Professor of International Organisations Law, Director of the Centre of Excellence in Global Governance Research and Deputy Director of the Erik Castren Institute of International Law and Human Rights at the the University of Helsinki.

The main question underlying the recent book byAnne Peters, Geir Ulfstein and I – The Constitutionalization of International Law  – is this: presuming that international law is indeed, as many contend, constitutionalizing, then what would international law come to look like? Given that there are a number of issues constitutional regimes usually address (political institutions of the community, membership, judicial organization, law-making, and procedures for the making of decisions), we wondered how these would, could or should be addressed in a constitutionalizing international legal order. Our aim was not to demonstrate that constitutionalization is actually going on – we simply presume it is, and leave the demonstration to others. Nor did we set out to sketch an ideal global constitutional order: this is a task perhaps best left to moral philosophers. Instead, we decided it might be interesting to take the claim of constitutionalization seriously and try to figure out what its consequences would be for international law.

The book’s first chapter is dedicated to ‘setting the scene’. It discusses globalization and a number of other current and related phenomena, such as the fragmentation of international law. One of the main points of the opening chapter is to establish that, in a world of well over six billion people, divided into 200 states and a handful of major religions, cultures, and ethical traditions (not to mention their widely divergent situations, giving rise to widely diverging interests), full agreement on all political topics is unlikely. In other words: the chapter recognizes that we live in a world of value pluralism, which entails that constitutionalism has to be pluralist as well: it has to respect and accommodate pluralism.

Second, a constitutional order needs to be a legitimate order. Now, legitimacy is a term which has been, and is, much abused, and while the chapter tracks the legitimacy debate to some extent, the main point for present purposes is simply this. Hypothetically, a constitutional order can be ran in many fashions – depending on one’s definition of constitutionalism, there may be no inherent contradiction between constitutionalism and enlightened dictatorship or rule by aristocracy, or even foreign rule or empire. Yet, these are not versions of constitutionalism we would subscribe to. Instead, the idea of a constitution carries overtones of political legitimacy: a constitutional order is a legitimate order, and a legitimate order is one where all relevant stakeholders are involved in governance, in one way or another.

The above has important implications when it comes to law-making. After all, if the starting point of value pluralism is correct, then it seems unlikely that international law can be made on the basis of the unanimous agreement of all states or, more problematic still, all the relevant stakeholders (including actors other than states). And if the notion that the constitutional global order be legitimate – however defined – is to be taken seriously, then it follows that no norms can just be imposed on actors (this is without prejudice to sanctions following wrongful conduct). Hence: consent remains a necessary element of law. This immediately suggests that earlier ideas about universal international law are less than plausible: e.g., Charney’s notion of law based on necessity was always vulnerable to the critique that not all actors share the same idea as to what exactly is necessary.[1] Yet, some room needs to be made for law-making by majority: the global constitutional order would need to be able to make law binding all, and not just make law only binding on those who consent. For if left at that, there is no reason to speak of constitutionalization; in such a case, the current vocabulary will serve well enough. In other word: a global constitutional order is one where universal law is at least a possibility, even though it leaves unaffected the possibility of recognizing more limited consent-based instruments as legally valid.

What adds to the complexity is that international law, these days, comes in an ‘infinite variety’, not always immediately recognizable as law: indeed, that is often the reason behind the conclusion of soft law instruments, non-legally binding agreements, or Memoranda of Understanding. These may look like law and are supposed to operate like law but, somehow, without actually being law. And to make matters more complicated still: there is a wide variety of other norms demanding attention and respect. States and others are not just supposed to follow the law. They are also supposed to adhere to moral injunctions (think of the responsibility to protect, which arguably has yet to become law). Soldiers on the battlefield need to respect humanitarian law, but also military practices and commands and perhaps even notions of chivalry. Traders need to follow international trade law, certainly, but also more spontaneous usages, assembled under the heading of lex mercatoria. WHO officials will be subject not just to legal demands, but sometimes also to professional medical standards. In short: individuals and other actors alike are confronted with a wide array of normative injunctions, some of them law, some of them non-law, and quite a few operating in a grey area in-between. In those cases, two questions present themselves. First, how is law to be recognized? Second, what to do in case a legal injunction is in conflict with a moral command, or a professional standard? Should law prevail? Or should preference be given to other normative orders?

Typically, in recent years the question of how to recognize valid law has been approached, under influence of the study of international relations, as a behavioral issue: If actors act in accordance with a norm, then the norm must be legal, for otherwise these actors would not have done so. This, however, misses the point, in two ways. It fails to recognize that actors may respect norms for a variety of reasons (including self-indulgence), and still does not help to separate legal from other injunctions. This approach, eventually, ignores what Hart has referred to as the internal perspective, inquiring not only into the behaviour of the subjects of law but also the beliefs of those who are supposed to apply it.[2]

The challenge, eventually, for a constitutionalized law-making regime is that it must bow to two masters: it needs to be based on consent (anything else would be dictatorial, and would thus be just as unacceptable as doing away with democracy in domestic settings), and yet it must be possible to make law binding for all. Moreover, ideally it would also allow not only for the consent of states (as agents for their citizens), but the consent of all those involved (the poor and disposed included), and consent would have to be real, not nominal: consent procured under threat of withholding development assistance is not consent, and only delegitimizes the outcome.

The one way of achieving this, chapter 3 of the book suggests, is to find inspiration in existing opting-out procedures (and jurisprudentially, to some extent, in Lon Fuller’s ideas about ‘procedural natural law’[3]) and to work on the basis of the presumption that normative utterances are legally valid and legally binding, unless and until it can be demonstrated that they are not. Factors that may help rebut the presumption reside, e.g., in the identity of the would-be law-makers, or whether law-making bodies exceed their competences, or whether putative law violates existing law.

All this may look more eccentric at first sight than it really is. In effect, it merely reverses the burden of proof that exists on paper but has already been reversed in much practice: the position outlined here codifies and makes explicit what is, in effect, already the dominant position. In today’s not-yet-constitutionalized international legal order the formal presumption is, in many cases, that normative utterances do not bind unless the opposite can be demonstrated. This presumption is historically understandable (it flows from strong concerns about state sovereignty), but conceptually a bit silly: a presumption that agreements are not binding will always and automatically be rebutted, because no legal system can operate on such a basis. Indeed, the capitalist economy cannot work on a presumption of non-bindingness of contracts until the opposite is proven; and the global capitalist economy cannot operate on the presumption that treaties are not law, and do not give rise to obligations, either. Thus, in practice the historical presumption is already reversed: it is just that the sovereignty cum non-law presumption is reverted to whenever it is deemed politically expedient.

These considerations are strengthened by the demands of constitutionalism. A presumption of non-bindingness is not just unworkable, it is also difficult to reconcile with constitutionalist staples such as transparency, legal certainty, predictability, and judicial protection. No practical legal order can accept that normative utterances are, presumptively, not law; if that legal order is to be considered as constitutional, a presumption of non-law becomes an exercise in bad faith.

Should law conflict with other normative utterances, then a decent case can be made to give law priority. Law generally, in constitutional orders, is created democratically, unlike religion or morality. Law is cognizable and transparent, unlike social usages, or notions such chivalry. And law is (ideally, at any rate) mindful of competing interests, unlike most professional standards, which are typically more single-minded. In such circumstances, one may perhaps resort to ‘presumptive positivism’: the law should be applied, unless there is a really, really good reason for not doing so. And that in itself captures the spirit of constitutionalism in a nutshell.

[1] See Jonathan I. Charney, ‘Universal International Law’, (1993) 87 American Journal of International Law 529-551.

[2] H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).

[3] Lon L. Fuller, The Morality of Law (New haven CT: Yale University Press, 1969, rev. ed.).