Hope and the Gradual Self-Constituting of Mankind

Philip Allott is a mind-altering substance. It is not possible to leave one of his lectures, or to read one of his books or articles, without undergoing a profound change in thought and attitude towards humanity and the role of law in its service.

The idea of international law as the law of all humanity and of all societies that Professor Allott has rediscovered and developed over the years is an appealing one. However, in his latest contribution to this blog, Professor Allott draws a rather dark consequence from this conception. As we have not been able to transform ourselves, and the law that governs us, from the neo-classical state system into a true Eunomia—a self-ordering system in which all individuals and groups come together to regulate themselves—we are left with nothing. It is a lawless world, and one which leaves us in:

a legal wasteland in which those involved in events and transactions can pick and choose among competing and conflicting legal systems to suit their purposes. And there are countless events and transactions that take place in a legal vacuum without any clear connection to any legal system. International law does not apply directly when a state is not directly involved in the given event or transaction.

This conclusion is based on two factors: First, states (or rather governments) have classically monopolized the realm of public decision-making. And they have made a mess of it, as we can judge by the litany of human-made disasters to which Professor Allott refers. And second, many transactions within and beyond state boundaries now escape from the claim of unchallengeable and supreme governance administered by states. However, we have been unable to conceive of, and construct, an effective, alternative legal system that captures them. Hence, Professor Allott can conclude, we are left with repression and war where governments are involved, and with nothing where they are not.

But perhaps there is some room for hope. Perhaps the Allottian revolution can take place even from the present, admittedly unpromising starting point.

Law arranges for the administration of public goods within a given society. These public goods include access to power, security of the person and property, enjoyment of rights and liberties, and the establishment of stable transactional frameworks for individuals and corporate bodies.

Law empowers public institutions to take and enforce authoritative decisions in relation to these matters. At the same time, law conditions the social outlook of the constituents of the legal system and channels their action into societally desired patterns of conduct in conformity with the dominant power relations and values.

The state has traditionally claimed a monopoly over these functions. It legitimizes this fact with reference to the social contract which we have notionally accepted when becoming its subjects. The state constitution is meant to encapsulate that social contract.

All states and governments, East and West and North and South, claim that their authority is based in the legitimacy granted to them by their constituents in the constitution. They can make this claim, as long as they exclusively control the process by which the will of the state population is (supposedly) transmitted through the institutions of the state.

The myth of self-determination asserts that each state population is entitled to determine its own economic, social and political system without external interference. But any constitutional structure that exists is simply taken to reflect the precept which holds that the authority to govern must be based on the will of the people. Why else would it exist if it did not, the rather cynical logic goes?

Classically the only exception are cases where it has been demonstrated that the constitutional structure of governance, or the government, has been forcibly imposed from outside (or exceptionally from the inside in case of ‘settler colonialism’/apartheid.) Hence, a one-party-state like North Korea or (in essence) Belarus, can claim to be an ideal machinery to transmit the will of its constituents through the three branches of government, legislation, adjudication and enforcement.

This system has served governments well. If the state represents the vehicle through which the people express their will, then the government is the agency that actualizes this will. In fact, the identity of the people, of the state and its government is contextually reduced to one. The government acts for the state which gives legal identity to its population, whether or not there actually exists a genuine link of representation between people, government and state. Accordingly, often government represents only itself when it claims to represent the state of its people.

On the other hand, since the 1970s, we have heard much about the withering away of the state. Does this mean that the state as the unique, unipolar source of sovereignty and all international rights and obligations, is on the way out and the door is opening for the Allottian revolution of government by humanity for humanity?

It is true, some ethnic populations and armed movements, transnational corporations, international non-governmental organizations, information providers and communications platforms, and other bodies have moved beyond the control over the system exercised by states. But this phenomenon is somewhat counter-balanced by the resurgence, rather than the disappearance, of the state.

Yes, ethnic insurgents fight to escape from their state which in their eyes denies them their own identity and represses them. But they do so with a view to establishing their own state, rather than seeking to abolish the notion of the state altogether.

International NGOs claim independence from the state, but in the end, they often exist in order to influence the public decisions taken by the state, nationally or internationally. In a sense, they are confirming the state monopoly of public decision-making which they appear to oppose by agreeing to legitimize the state-centred system through their inputs and participation.

Transnational corporations may indeed pick and choose low-tax locations. Yet, they too lobby governments, pressing them to establish a stable environment of international trade and transactions, along with the relevant intergovernmental institutions. They generally accept the need to operate in a state-based regulatory framework.

Providers of digital information and communication services too increasingly accept the imposition of public order rules by governments who invoke the need to defeat terrorism or protect the public from defamation and hate-speech. And governments themselves are increasingly intruding into the digital information sphere, as is evidenced in the controversy about Chinese involvement in Tick-Tock in the US under Trump.

The integrationalist view that governance is inevitably transferred upwards, beyond the state, has been somewhat dented by the spirit of BREXIT and the corresponding insistence on subsidiarity even within the EU. The scepticism of Trump and his associates about international structures of governance and international institutions has not disappeared with the recent US elections. Rather, during the global COVID emergency, there has been a retreat inwards, towards the protective power of the state, at least in the North. Global institutions looking after the rest of the world have been unmasked as relatively powerless in contrast.

Of course, there are some areas that elude capture by states or their intergovernmental institutions—but only for a while.  The state may be lagging behind, but it is catching up, seeking to close any legal vacuum that may emerge.

To do this, states use traditional, state-centred means. They apply their own territorial jurisdiction extraterritorially. They conclude agreements of potentially universal application amongst themselves, seeking to close the remaining gaps in their jurisdictional reach. Where necessary, states will utilize or develop further international institutions towards that end—but these are institutions they seek to control.

The theory of a vast legal vacuum is therefore not easy to sustain. Where such vacuums come into being, they appear to attract, rather than negate, state action over time. And where such state action is lacking, it will trigger ever louder calls for action from the public, demanding the assertion of authority by states.

Disappointingly, the alternative of a self-constituting of humankind outside of the state does not appear to happen. We do have islands of a cosmopolitan consciousness, mainly in the global North. But this consciousness is not yet sufficiently broadly based to support a re-conception of governance without the state. Indeed, even cosmopolitan, Western societies, say in Scandinavia, tend to see their state and government as the principal agency through which positive change can arise, instead of the structural enemy of progressive development of an international order.

But if the state retains its role, does this mean that we are forever trapped in the world of the 20^th century identified by Philip Allott, ruled by state repression, greed, intolerance and war? Well, first of all Stephen Pinker and others tell us that the 20^th century was not that bad after all (The better Angels of our Nature, 2012). Despite the past decades of violent confrontation between and within states, life overall has improved for the vast majority of people, with the average rate of violent deaths decreasing very significantly overall.

While this claim has raised the odd, incredulous eyebrow, for us as lawyers, it is clear that the picture is never entirely black or white. We are used to dealing in the 50 shades of grey that mark out social interaction, whether domestically or internationally. While still state-centered, there are signs of the emergence of multi-level governance, ranging from the local to the regional, the state, regional and sectoral institutions and the universal layer of authority.

Humanity may not have re-constituted itself outside of the state, but we have in fact progressed somewhat towards a more advanced system that exhibits some features of an international constitutional system. Of course, the claim that we already have an international constitution in the shape of the UN Charter made by some has been met with an element of derision. But this is not really the argument made by modest international constitutionalists.

Instead of a centralized, tangible constitutions that formally assigns powers to institutions and rights and obligations to constituents, we are witnessing the gradual emergence of a decentralized constitutional system. In fact, it may be too ambitious to talk of a ‘system,’ which may suggest too much of a centrally ordered institutional design. Rather, what has been emerging, silently and by stealth, is a decentralized collection of mechanisms that fulfil constitutional functions at the international level.

Let us start with the state itself. First, the state no longer occupies the Lotus position. It is no longer born free and unencumbered by legal obligations other than those it has specifically accepted according to the principle of auto-limitation. Instead, it is born into a legally defined world, complete with obligations that apply to it whether or not it has specifically consented to them.

The core values of the system are encapsulated by jus cogens, or peremptory norms of international law from whose application no state can ever remove itself by an act of its own will. Its freedom to contract into conflicting obligations has been removed. Moreover, in relation to serious violations of peremptory norms, a decentralized enforcement mechanism has been provided, through the obligations of non-recognition of the results of such a violation, of non-assistance for the transgressor, and of cooperation in seeking to overcome the consequences of the violation.

The relevant rules of ‘ordinary’ general international law are in fact also of a constitutional nature. True, when expressed through universalizing conventions, their application is limited to membership. Yet, many of the major law-making treaties of the past decades have in fact obtained virtually universal participation, and that at an impressive speed. Moreover, their core content will often apply to all states by way of general custom, whether or not we can demonstrate any specific consent on their part.

In formal terms, these general rules are telling states how the international constitutional system functions: who is a privileged participant in the system, how law is made, how treaties operate, how far state jurisdiction extends and how clashes of jurisdiction can be managed, how state responsibility is established and administered, how obligations can be enforced, etc.

We also have a kind of global compact, or bill of rights, on the treatment of human beings by the state and other authorities.  While the breadth of this corpus of human rights and humanitarian obligations is at times contested under the flag of legal pluralism, the essential depth and jus cogens character of the most fundamental human rights constraints is not challenged at the universal level.

Substantively, general international law also establishes an impressive range of public order regulation, for instance in relation to international spaces or global interests (sea, space, environment, etc). 

True, expanding this catalogue of universal regulation remains a struggle—the upcoming COP 26 meeting on climate change in Glasgow makes this evident. But it is a Kantian, progressive process, and one in which non-state actors have been gaining influence. The state is still there, but it is becoming more inclusive and permeable to external and internal influences.

Admittedly, this is not yet a Habermassian global dialogue. These new actors are only partially empowered and they do not represent humanity as a whole. Questions have been raised about their genuinely representative nature and accountability. Yet, they do represent those parts of humanity wishing to be heard and willing to make the effort to organize themselves. And while the formal process of sanctifying the outcome of dialogue as ‘law’ through the imprimatur of state consent remains, they have had some important successes, from international mine action to children’s rights and changing attitudes among governments about the global environment.

We hear, at times, about the need to address the democratic deficit in the international legal order. Sadly, this is often not a discussion about making the state more accountable to its constituents, or broadening participation in the legal order beyond the state. Instead, this argument supports a claim to greater influence and power of some states. The argument in favour of democratic international law tends to be that all states being equal, smaller states or less developed ones should gain in global influence and control, especially in relation to issues concerning the global economy and development and in the relevant international institutions.

Where the internal structure of states is concerned, there has been some, admittedly limited, progress. This includes the denial of representation to governments that were manifestly imposed on populations, be it through external force, through discriminatory practices (racist regimes and apartheid), through counter-constitutional coups, or through the failure to implement free election results where free elections were held and completed.

While this issue of a ‘right to democratic governance’ might be considered a ‘Western’ one, international action in virtually all such cases has in fact been most impressively carried forward by the states of the African Union. Asia has been more hesitant in this regard, although the UN General Assembly has upheld this doctrine recently in relation to Myanmar, applying a universal standard.

Of course, the emerging exercise of international constitutional functions still suffers from the second major structural deficiency in the state system: the absence of comprehensive, compulsory dispute settlement. In any advanced legal system, each and every constituent should have the right to have any dispute that arises decided on the basis of the relevant legal obligations, rather than on the basis of relative power and influence.

Classically, international law has failed to breach the concept of auto-determination—the state itself determines whether it is in compliance with its legal obligations, and no authoritiative third party may rule in the matter without its specific consent. Even the supposedly modern law of the UN Charter follows this classical precept. While confirming that all states must settle their disputes peacefully, they are not required, ultimately, to subject themselves to binding third party settlement.

Still, the number of acceptances of ICJ jurisdiction under the optional clause has increased significantly since the end of the Cold War. More and more treaties add jurisdictional clauses. Specialist courts and tribunals are proliferating and some of these (Law of the Sea) are experiencing significant case-loads. In addition, regional and functional legal regimes now come complete with their own, dedicated dispute settlement mechanisms, including courts, tribunals and dispute settlement panels with binding powers.

In short, the space for auto-determination has been shrinking quite dramatically over the past decade. The ‘legalization’ of international politics, even where important or vital interests of states are concerned, is marching ahead, despite the occasional reverse. In addition, access by non-state actors to international dispute settlement mechanisms has also been boosted over the years, at times reaching beyond the areas of human rights and relations between states and investors.

The leaves the third structural element (or failing) of the classical international legal order, that of auto-enforcement. The UN International Law Commission made a heroic attempt to constrain, and effectively abolish, the right to adopt unilateral counter-measures by states. It would have made the adoption of reprisals dependent on simultaneous acceptance of compulsory dispute settlement of the matter at issue. That proposal was defeated in the end. Nevertheless, while unilateral countermeasures were not fully tamed, the conditions for their adoption were clarified and made somewhat more involving.

Global enforcement of international peace and security has also seen some reverses over the past decade. After the euphoria over the New World Order to be brought about by the assumption of the UN Security Council of the functions intended by its founders (Kuwait), collective security waned and wavered when it came to adapting it to addressing the internal post-Cold War conflicts in the former Yugoslavia, Somalia, Rwanda, Myanmar, etc.

Where action was taken, it was controversial in the eyes of some (Kosovo, Libya) or downright illegal and abusive (Iraq 2003), undermining confidence in the functioning of collective security. Inaction due to a blocked Security Council in the face of open aggression (Crimea) or a massive onslaught of a government against its own people (Syria) has reinforced this impression.

This mixed picture somewhat reminds of the phenomenon identified by Cornelius von Vollenhoven is his splendid review of The Law of Peace (1936) throughout history. The pendulum of history, as he saw it, will tend to swing back and forth between advances and reverses in the development of an international legal order, and with it perhaps the admittedly somewhat cumbersome self-constituting of humankind in terms of a universal and peaceable legal order. But after each movement of the pendulum, its starting point will have moved a little bit further towards peace, humanity and the global rule of law.

To accelerate this process in the face of the persistence of the state, we need to continue to insist that the state must become an instrument to enfranchise, rather than to disenfranchise, its constituents. The state can then fulfil its function to aggregate the wills of its constituents and transform them into law in a more genuine way. It can do so in relation to its own particular (although shrinking) sphere of particular authority, and it can, over time and along with other actors, be one of the contributory layers of an emerging Eunomia, instead of posing as its deadly enemy.