Anne Peters is Professor of Public International Law at the University of Basel, a position she has held since 2001. In the academic year 2004/05 she was Dean of the Faculty of Law. She is a member of the Scientific Advisory Board of the European Journal of International Law. This post summarises the ideas in Chapter 5 of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law.
There is a global constitutional community which is made up by individuals, states, international organizations, NGOs, and business actors. From a constitutional perspective informed by normative individualism, individual human beings are the ultimate unit of that community. But because states are officially held to be the legal representatives of citizens on the international plane (however fictitious this might be for some states), are still – as a group – the most powerful global actors, and are (in most areas of the world) important repositories of political, social, and cultural identity, international law and global governance must remain, in order to preserve a sufficient level of legitimacy, linked to states. The ultimate responsibility for governance should not be transferred to non-state actors and certainly not on business actors. However, the involvement of non-state actors in law-making and -enforcement can be an important additional source for the legitimacy of global governance. It should consequently be broadened, structured, and formalized.
1. In a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community. Individuals are so far quite firmly entrenched as international bourgeois, i.e. as passive beneficiaries of largely unenforceable rights. They have been granted more and more international rights and obligations beyond human rights, such as the right to environmental information, procedural rights in various international forums, or secondary rights to reparation. Individuals may also incur criminal liability flowing directly from international law. This trend contributes to the creation of different layers of rights (those of constitutional significance and others), and thereby manifests constitutionalization in the sense of an emergence of a specific layer of constitutional law besides (possibly ‘above’) ordinary international law.
There is a very weak trend towards the inclusion of individuals in the international legal process through hearings, giving opportunities to comment, and other types of participation. Individuals are thereby in political terms empowered. The doctrinal consequence of the citizens’ right to political participation in global governance – which is in constitutional terms desirable – is that individuals are upgraded from mere passive international legal subjects (as holders of human rights and bearers of criminal responsibility) to active international legal subjects, to co-law makers. The legally relevant difference is that passive subjects are only capable of having rights, whereas active legal subjects are capable to create law. This empowerment could be described as a trend towards transnational citoyenneté.
2. States – as international legal subjects – are constituted by international law. As a prerequisite of statehood, the legal principle of effectiveness has in state practice been complemented by standards of legality properly speaking. A territorial entity established through unlawful use of force or in violation of the international principle of self-determination is not a state in the sense of international law (not an international legal person). Respect of basic human rights or of democracy is no precondition for valid statehood. But the abandonment of exclusive reliance on effectiveness has opened a window of opportunity for taking into account further standards of international legality for the assessment whether a political entity is a state or not.
In a constitutionalized world order, state equality is proportional equality. The concerns for peace, for human rights protection, for development or for other constitutional values may outweigh the interest in observing strict formal equality of states and may justify legal privileges such as more drawing rights, more votes within an international organization, or exemptions from contractual liberalization obligations. But state quality stands in a tension with individual equality which can ultimately not be resolved as long as there are states with vastly differing population sizes. The inhabitants of less populated states will always be overrepresented in decision-making setting where each state has one vote.
From a constitutionalist perspective, state sovereignty is a legal concept and as such embedded in international law. Constitutionalists welcome the re-characterization of sovereignty as implying states’ responsibility to protect their populations from international crimes.
Ultimately, the international constitutional status of states is to be instrumental for the rights and needs of individuals. This finalité makes that states remain indispensable in a global constitutionalized order, as crystallization points for (collective) identity, as primary law-makers and law-enforcers, and mediators between conflicting societal actors. But this finalité also calls for the constitutional containment of states.
3. A sectoral constitutionalization is taking place within international organizations. The constitutionalist approach moves beyond the description of the founding treaties of international organizations as constitutions in the sense of basic texts defining organs and their competences, but looks for and propagates constitutional values such as human rights and democracy, within international organizations. It also seeks to overcome the traditional focus on the autonomy of international organizations, where autonomy is usually implicitly taken as a proxy for sovereignty. The constitutionalist argument is that autonomy is not a pre-condition of constitutionalization but on the contrary should trigger the demand for constitutionalization. The more autonomous an international organization is in a sociological sense, the more it needs to be constitutionalized. Finally, it is worth highlighting that sectoral constitutionalization has so far been largely effected through international judges, and went hand in hand with judicial self-empowerment.
4. Further members of the constitutional community are NGOs. A principle of openness of global governance forums for NGOs is emerging as a constitutional principle. This means that standard setting conferences, meetings or conferences of treaty parties, and other international bodies must at least consider in good faith whether to grant NGOs access and must justify refusal. A constitutionally appropriate accreditation procedure for NGOs must be relatively distant from states, and it must observe due process guarantees and apply reasonable substantive criteria.
The proper constitutional modality of NGO participation in international law making is voice, not vote. Once accredited, NGOs enjoy a legitimate expectation that the participatory conditions will entail some core components – even if the written rules of procedure are silent on this. Among these components is the (clearly defined and limited) right to make written and (upon permission) oral statements in the forum, which must be duly taken into account.
The second formal constitutional function of NGOs is their participation in the enforcement of international law. The benefits of conditional and indirect NGO participation in international adjudication, notably through amicus curiae briefs, outweigh its risks. Therefore, a presumption of the admissibility of amicus curiae briefs should be acknowledged. In non-judicial compliance control, NGOs’ role needs clarification, to be laid down best in the rules of the committees themselves. De lege lata, qualified NGOs should be allowed to trigger certain non-compliance procedures themselves.
To conclude, NGO involvement can contribute to the legitimacy of global governance through inclusion and participation, but only if this participating is to some extent formalized and streamlined and if attention is paid to the skewed impact of NGOs from the north.
5. Finally, business actors are members of the international constitutional community. Constitutionalism might be a source of inspiration for resolving current issues such as the human rights responsibilities of business actors. For example, the acknowledgment of an indirect third party effect of Human Rights Covenants (as opposed to direct human rights obligations imposed on business) would strike a balance between respect of entrepreneurial freedom one the one hand and containment of powerful economic actors on the other, while ascribing the ultimate responsibility to states.
Although it is correct that the core objective of constitutionalism, the containment of power, is, especially in times of globalization, highly relevant with regard to economic power, a complete constitutionalization of the private sector in the sense that private actors would be subject to the full panoply of (international) constitutional standards, just like public actors, is not desirable. It might be useful to transfer some principles and instruments of constitutionalism to the economic sphere, but only while respecting the own logics of that sphere.
The important recent phenomenon of outsourcing public functions has no intrinsic or natural limits. Limits must be established normatively, and the value judgements should derive from constitutionalism. Consequently, the involvement of business in law-making should reflect the three sector model in which business participants are treated distinct from civil society actors. As regards law-enforcement through business actors, this is least advanced but also least recommended in constitutionalist terms, because a separation of functions between the objects, subjects, and enforcers of regulation should be maintained.
One way to compensate for legitimacy and accountability deficits engendered by the marketization and outsourcing of governance is to make sure that the process of developing and implementing international law is a shared endeavour among (inter-)governmental institutions, business, and NGOs. But legitimacy is gained through joint governance only when the parties remain independent from one another and sufficiently distant, because only then capture and collision is ruled out.
Overall, the legitimacy of governance by business actors might derive from delegation or from beneficial outputs. But all considered, there still is the real danger that global governance is unduly commercialized through business involvement. To become full members of the global constitutional community, transnationally active business actors should be held more accountable to stakeholders through international instruments, however difficult it is to define the relevant groups and the accountability mechanisms.