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
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.