The Constitutionalization of International Law: A rejoinder

Editor’s Note: This post continues our discussion of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law. In this post Prof. Peters responds to earlier posts by Professors Dunoff and Trachtman , Steven Wheatley, Jean Cohen, and  Dan Bodansky.

It is an honour to receive comments by distinguished experts on constitutionalism and international law. And it is fun to engage in a substantial discussion on difficult issues.

1. Method: All commentators raised important methodological issues.

Description and (‘top down’) prescription

Dunoff and Trachtman reproach us of a ‘top down’ approach to constitutionalism. In the introductory chapter, it was made clear that the book is, as such, a normative exercise, on a middle level of abstractness, and hooking onto existing legal rules, principles, and institutions. To the extent that this meant to ‘extrapolate’ trends (of constitutionalization), the study included the claim that these trends actually exist (a claim which was openly formulated in the book).

Dunoff and Trachtman also reproach us of embracing an ‘overly heroic vision of the law’. This critique manifests a disciplinary rift in the approaches of the two books, ours and the one edited by our critics. (see here). Dunoff and Trachtman espouse a more empirical method, more informed by social science. In contrast, we as a trio have not attempted to apply sociological methods, neither in quantitative not in qualitative terms. Our arguments are, as declared in Chapter 1, normative ones.

International constitutional law and politics

Steven Wheatley points out that the ‘language and metaphors of constitutionalism suggests a realm of (“neutral” and “objective”) discourse that sits above … politics’, whereas in reality the ‘global constitutional settlement … is the product of political debate, discourse, and will’. Along that line, Dunoff and Trachtman suspect us of *’under-estimating the role of international politics’.

Dunoff and Trachtman are right in saying that the enactment of positive law is only a ‘starting point, rather than a culmination’. Nevertheless, any (political) action does need a starting point. Under the rule of law, positive law is indeed a conditio sine qua non of governmental action. I postulate that there is an international rule of law which requires international governance to be based on legal rules (i.e. on formal and general prescriptions) as opposed to governance by ad hoc decisions.

Moreover, law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product (and desired consequence) of political activity, and an organizer and limit of political action. In particular, constitutional law is a branch of law which is very close to politics.

Still, the ‘legalization’ of political problems (regarding constitutionalization as a special type of legalization) modifies the debate surrounding those problems by introducing a different, juridical logic. Against Dunoff, Trachtman, and Wheatley, it might be argued that such a (relative) de-politization of international relations is not a disadvantage, but a plus, because international relations are as a general matter rather too politicized. The introduction of legal and even constitutional principles contributes to the stability of expectations, legal certainty and equal treatment of the relevant actors. This remains true although international legal rules, and especially those which might be called constitutional ones, are linguistically open, and allow room for value judgments. Powerful political players might deploy constitutionalism in order to realize individual interests under the cover of legal argument.

For this reason, there is dialectic at work. While the evolutionary dynamics of constitutionalism leads to a legalization of politics (as argued above), it also leads to a stronger politization of law. As pointed out in chapter 7, the call for constitutionalism precisely triggers political contestation, and does not deny or pre-empt it.

International constitutional scholarship and politics

Parallely, international constitutional scholarship does comprise a moral and political commitment, as critical legal scholars have unmasked it − but this is a not the death blow to scholarship as scholarship. The saturation of international constitutional scholarship with values is no methodological flaw per se. The 1920s’ debate on preconceptions (Vorverständnis) in sociology and the 1970s’ positivism debate have yielded the insight that international legal scholarship can (in a certain limited sense) be separated from political engagement. Historical experience shows, moreover, that scholarship and politics should be separated. This does not mean that political problems should be excluded from the academic discourse, but merely that value judgments should not be packaged as scholarly findings.

Hence, international constitutional scholarship may be called ‘value-neutral’ (only) to the extent that it does not generate norms, but only theories about norms. An international (constitutional) scholar can only argue ex suppositione in favor of norms: If norm A and B are valid, then norm C must also be valid. For example: If there is an international legal principle requiring new states and territories under international administration to be organized in a democratic fashion, and if a purely transitive justification of international institutions via democratic governments does not work, then international institutions themselves have to be democratized through mechanisms of participation of natural persons. In that way, international constitutionalist scholarship may offer suggestions which may be picked up by political actors vested with formal law-making power − or not. Further, it is not ‘unscholarly’ for scholars to formulate own political goals and suggest solutions, so long as one does not purport that these political objectives are scholarly founded. Seen in this way, there is nothing to prevent scholars from advising the law-making bodies, so long as the researcher make clear to ourselves and the reader, ‘exactly at which point the scientific investigator becomes silent and the evaluating and acting person begins to speak’, as Max Weber famously put it.[1]

But this ‘separation’ of international constitutional scholarship from international constitutional politics is far from watertight. By highlighting these trends of constitutionalisation, we – as legal scholars – in fact contribute to strengthening them. The reason is that description and creation of the law may in some instances intermingle. The object of both the legal process and of legal scholarship is the law, and the observer standpoint (‘scholarly’ description) and the participant standpoint (‘political’ creation) are easily confounded. The not uncommon changes of professional roles (from law professor to a judge, a diplomat, or a government official and vice versa) facilitate this. In international law, this confluence is acknowledged as legitimate by Article 38 (1) lit. d) ICJ-Statute which admits ‘the teachings of the most highly qualified publicists’ as a ‘subsidiary means for the determination of the rules of law.’

But despite the overlap and interaction of law creation (i.e. legal politics) and legal analysis, the main objective and potential of legal scholarship such as ours is not to shape the political landscape and to take decisions, but to generate knowledge and to contribute to a better understanding of the law, including a better understanding of the law’s (and a constitution’s) functions in politics. I personally aspired to do this, but there is probably always be room for improvement!

Non-ideal theorizing

Jean Cohen finds that no energy should be spent on ‘endless normative arguments and ideal theorizing’. I think that it is the legal scholar’s role to come forward with ideal and non-ideal theories. I conceive of theories as models or structures rather than as systems of statements. Theories should express the patterns or structures of data or of phenomena in the field under observation, as parsimoniously and concisely as possible. They should condense or compress the data and reduce complexity. Theories in that sense do not comprise the declaratory versus the constitutive ‘theory’ of recognition of statehood, nor the constitutional against the internationalist ‘theory’ with regard to Art. 46 Vienna Convention on the Law of Treaties, nor the absolute against the relative ‘theory’ of reservations to multilateral treaties. These are not theories, but merely singular recommendations for solutions to individual legal questions.

By contrast, there are theories in law that do reduce complexity, and in our book, we drew on the reservoir of constitutional theory. An example of such a ‘data-condensing’ theory is that of subsidiarity. The idea of subsidiarity forms the common basis of different rules (e.g. the local remedies rule, the priority of regional organizations over UN peacekeeping operations, and the complimentarity of the International Criminal Court to domestic courts in the prosecution of international crimes under Art. 17 ICC Statute). On the basis of this reduction of complexity, scholars can show that the subsidiary responsibility of the international community for guaranteeing human security when the territorial state fails in its duty to protect ‘fits’ into the international legal system. Demonstrating such a doctrinal, systemic, and ideational fit means to demonstrate constitutionalization.

Idealism and pragmatism

Constitutionalism ‘might produce a euphoria that distorts vision and obscures the need for the pragmatic, ongoing efforts’, write Dunoff and Trachtman. There is a danger in that sense, but the opposite danger of exaggerated pragmatism exists as well. Resorting to the vocabulary of constitutionalism might not only ‘narcotize’, but also sharpen consciousness and increase awareness for the difficulties in implementing constitutionalist ideas.

International legal scholars should and can steer a middle course between idealism and pragmatism or rather combine both attitudes. On the one hand, a scholar suggesting a particular legal institution de lege ferenda should reflect beforehand about the political chances of success. On the other hand, overly ‘pragmatic’ and ‘realist’ legal solutions which anticipate the expected political and practical difficulties of implementation would hardly be innovative. Any expert proposal will anyway be modified in the political debate leading to its adoption. The scholar should not practice anticipatory obedience to reality, because then she gives up a distinct quality of law, namely its counter-factualness. It is along this line that I suggested a constitutional role for business actors and NGOs in law-making and law-enforcement.

Holism and particularism

Daniel Bodansky points out that constitutionalism is a ‘too protean concept … that it does not provide clear answers to many questions’. Because the meaning of ‘constitutionalism’ is so unclear, it may not really be a helpful short-hand, but on the contrary confusing.

Indeed, as admitted in Chapter 7, there is the danger that reliance on constitutionalism is actually counterproductive because it may postpone rather than encourage concrete debates on concrete problems, such as decision-making in the WTO, the composition of the UN Security Council, or how to liaise national parliaments to the UN.

However, the added value of the constitutionalist paradigm might lie in its comprehensive nature. The normative claim is that the different features of constitutionalism are not merely additive, but that the whole is more than the sum of its parts. The various constitutionalist features, such as more inclusive and transparent decision making and judicial review, should go together, and that in combination they take on a special normative significance. If this is true, the constitutionalist reconstruction does possess an additional explicative and prescriptive value. It reminds us of the interlinkage of the various features of constitutionalism, and calls for complementing the existing constitutional features of international law (such as judicial review of governmental acts) with missing ones, such as democracy and judicial review of acts of international organizations. To some extent, as argued in Chapter 7, there is indeed constitutionalist bootstrapping.

2. The Global Constitutional Community

In his comment on chapter 5, Steven Wheatley asks two questions: First, is it analytically meaningful to speak of a global constitutional community? And, second, is the ‘constitutionalist concern to establish political legitimacy’ not normatively flawed?

Wheatley’s answer to the first question is that, with a view to the ‘fragmented systems, it is difficult to conclude that the plurality of regulatory regimes construct (even hypothetically) a Global Constitutional Community’.

My response to the first, analytical, question is that the idea of an international community is entrenched in positive law, and often referred to, e.g. in Security Council resolutions. It is mentioned in Art 53 VCLT and in Art 42 lit. b) and 48 sec. 1 lit. b) of the ILC-Articles on the Responsibility of States for International Wrongful Acts of 2001. As argued in chapter 1 and elsewhere in the book, constitutionalism indeed responds to the fragmentation of international law by offering some overarching (constitutional) principles.

Two aspects must be kept in mind in this context. First, fragmentation as such is not obnoxious for a legal order, but rather the possibly resulting legal inconsistencies, legal lacunae, conflicts of jurisdiction and so forth. Until today, such legal consequences have materialized to a lesser extent than predicted by pessimists. On the contrary, monitoring bodies and courts in different regimes have frequently relied on general principles or have transferred specific institutions from one field to the other. For example, the precautionary principle, as elaborated in environmental law has been applied in the law of humanitarian assistance. One possible explanation of such transfers is that the transferred principle is indeed a constitutional one.

The second aspect is that constitutionalisation might also be conceived as a sectoral phenomenon, with different regimes having their own constitution. Gunter Teubner’s constitutionalisation approach based on general systems offers a theoretical basis for this view. The result would indeed be not one constitutional community, but various ones.

Steven Wheatley does not clearly answer his second, normative, question but seems to tend to the view that the idea of a constitutional community is an ‘elite project imposing a liberal paradigm on all communities in world society’. This reminds me of Proper Weil’s famous critique that the concept of an international community conceals a de facto oligarchy. Weil pointed out that there ‘is a danger of the implantation in international society of a legislative power enabling certain states – the most powerful or numerous ones – to promulgate norms that will be imposed on the others’. Thus, concepts such as that of the ‘“international community” may become code words, lending themselves to all kinds of manipulation, under whose cloak certain states may strive to implant an ideological system of law’.

In response to Wheatley’s – and Weil’s – normative critique, I submit, as in chapter 5, that the constitutionalist paradigm is both a useful extension of the concept of the international community and apt to counter the critique of concealed oligarchy. Stating that the international community is a constitutional community evokes the constitutionalist principle of democracy and thus offers leverage for making visible and arguing against the privileges of some states, such as the permanent members of the Security Council. Moreover, constitutionalism provides both a parsimonious explanation for the existing community-like features of the international legal order, and allows extrapolating these features in an adequate way.

For example, the constitutionalist paradigm explains the existence of erga omnes norms. Why should certain obligations create rights or at least interests for non-affected actors, and possibly even allow those to apply countermeasures or to raise claims? One answer could be that those actors are members of the constitutional community. A body of (international) constitutional law, even if not codified in one single document, provides some glue to hold actors together, because it sets out common objectives or aspirations, and defines the rules of interaction. This type of integration makes the legal possibility of claims by not directly affected actors much more plausible. On the other hand, the establishment of hierarchical centralized enforcement mechanisms, which would be an important component of an international constitutional order, could also render the concept of erga omnes norms superfluous. Erga omnes norms seem to be a device to facilitate the protection of community interests in a ‘horizontal’ manner in the absence of hierarchical enforcement.

Moreover, a constitutionalist reading allows overcoming the dichotomy between original, full international legal subjects on the one hand and derivative and partial legal subjects on the other. This dichotomy was in reality only a re-ification of the distinction between states as the makers of international law and all other, newer, subjects, such as international organizations or individuals. In opposition to this view, the constitutionalist approach decentres the state. If the international system is conceived as possessing constitutional law, the following argument can be raised: Once a constitutional order has been set in place by the global multiple pouvoirs constituants, it does no longer make sense to speak of ‘original’ legal subjects, because all subjects have been transformed into pouvoirs constitués. Therefore, the distinction between ‘original’ and ‘derivative’ subjects breaks down. The various types of members of a constitutional community have different rights and obligations, as defined by constitutional law, but there is no categorical distinction between states and all others.

I do not deem it fair to qualify constitutionalism, or – more specifically – the idea of a constitutional community – as an ‘elite project’, apart from pointing to the obvious fact that scholarly writing is done only by a very small number of people. Constitutionalist thought has in historic terms been developed in Europe. But even in 18th- and 19th-century Europe, constitutionalism was asserted against the dominant culture and the establishment. Moreover, it is a reaction to the universal experience of domination by humans over other humans. In that sense, constitutionalism is universalisable.

3. Constitutionalism and democracy

Jean Cohen and Steven Wheatly have commented on chapter 6 ‘Dual Democracy’. Chapter 6 does not equate constitutionalism and democracy. Quite to the contrary, as a scholar raised in the German constitutional tradition, I am aware of the (somewhat simplified) distinction between two historical constitutionalisms: the German one which espoused constitutionalism (in form of a written constitutional document) without democracy (in the form of law-making by the people) as opposed to the Anglo-American tradition of viewing the rule of law and popular (or parliamentary) sovereignty as going hand in hand.

Our book devotes one chapter to the constitutional principle of democracy, not because it is more important than other constitutional principles but because democracy is more conspicuously absent in global governance, and because it seems particularly difficult to build in democratic elements in the design and operation of global governance.

Steven Wheatley asks why I posit that all rule over persons should be democratic. The answer is that I consider democracy to reconcile best individual freedom and equality with life in society. Moreover, democracy specifically accommodates the basic facts of diversity, disagreement, and cognitive bias, and is therefore particularly relevant for the global scale. Political institutions should be designed so as to equally advance the interests of persons who are substantially affected by (or as Steven Wheatley calls it ‘subjected’ to) those institutions. Because the diverse interests and backgrounds make people cognitively biased towards their own interests, the objective of equally advancing affected persons’ interests can only be realized through an equal say. This reasoning is especially pertinent for global decision-making, because on a global level there is particularly strong disagreement about how the world should be shaped. This calls for a global collective decision-making process which grants each human an equal say in decisions affecting him or her.

However, as Jean Cohen agrees, affectedness a such is no operational criterion for determining who has a relevant interest in a certain development policy measure. In times of globalization, almost everybody in the world is affected by some decisions taken at any other place on the globe, especially in the field of finance, economy, and environment. Not every remote affectedness should be allowed to trigger a person’s right to democratic participation in that decision. A threshold would have to be defined. This is difficult but unavoidable.

In chapter 6, it is argued that the promotion of democracy within nation states is a central principle of global constitutionalism because domestic democracy is the foundation of a transitive global democracy, and because domestic democracy promotes global goods such as peace.

But, as Jean Cohen rightly points out, it would neither be feasible nor desirable to exclude China, as an undemocratic state, from the UN. The international (constitutional) principle which requires states to strive towards democracy indeed operates differently on ‘old’ and ’new’ states. The successor states of the Soviet Union and Yugoslavia, East Timor and Eritrea, all of them created after 1989, were from the outset on established as democratic states. While this may have initially been done as a matter of political expediency, this practice gave rise to the international constitutional principle that new states must be democratic. It would have been inconceivable, for example, to create an undemocratic state of Kosovo. The international constitutional precept has not prevented some states from sliding into totalitarianism. International sanctions against those states, such as Belarus, have been weak, but still manifest a political, and I would argue, also a legal commitment (enshrined in numerous UN documents), to democracy. In contrast, ‘old’ states such as China are treated differently under international law. They are not divested of their legal status as a state because of their lacking democratic government. The difference in treatment is justified because it is in practical terms more difficult to reorganize a state than to create new democratic structures in a situation where there is anyway an institutional vacuum. The different evaluation of new and old states does not amount to double standards as long as the normative direction imposed on them, towards more democracy, is the same.

Another difficult question, asked by Steven Wheatley, is ‘how democratic systems of state law should react to the jurisdictional assertions of systems of global regulation’. In the absence of a normative hierarchy which ascribes priority to global rules, other techniques of coordination must be found. One technique might be a qualified rule of recognition as long as (‘solange’) minimum equivalent (but not necessarily identical) constitutional standards are respected by the conflicting or competing regime.

A final issue raised in the comment on chapter 6 is that of ‘political form’ (Jean Cohen). Also, Jean Cohen misses a more explicit discussion of the federal analogy of a political entity composed of individuals and states. To the extent that ‘political form’ is meant to pay more attention to political feasibility and political will, I have discussed this above. But the quest for giving a political form to the combined setting of global and national governance should not mean a debate on the ‘constitutional form’ in the style of the antique writers and their commentators. Samuel Pufendorf had called the German Empire ‘monstro simile’ because it did not correspond to one of the established forms: monarchy, oligarchy or democracy, and this has been recalled in many debates on the EU. Instead of giving labels, concrete institutions such as parliamentary assemblies or consultative referendums should be described. Surely, this can, in future work, be made more specific.

[1]           Max Weber, “Objectivity” in Social Sciences, in The Methodology of the Social Sciences 49-112 (Edward A. Shils & Henry A. Finch trans and eds., 1949, orig. 1904), at 60.