Constructing the Global Constitutional Community – A Response to Anne Peters

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’.