[Steven Wheatley] the Democratic Legitimacy of Int(BookFi.org)

JOBNAME: Wheatley PAGE: 1 SESS: 8 OUTPUT: Thu May 13 10:07:10 2010

THE DEMOCRATIC LEGITIMACY OF INTERNATIONALLAW

The objective of this work is to restate the requirements of democraticlegitimacy in terms of the deliberative ideal developed by Jürgen Haber-mas, and apply the understanding to the systems of global governance.The idea of democracy requires that the people decide, through demo-cratic procedures, all policy issues that are politically decidable. But thestate is not a voluntary association of free and equal citizens; it is aconstruct of international law, and subject to international law norms.Political self-determination takes places within a framework establishedby domestic and international public law. A compensatory form ofdemocratic legitimacy for inter-state norms can be established throughdeliberative forms of diplomacy and a requirement of consent to interna-tional law norms, but the decline of the Westphalian political settlementmeans that the two-track model of democratic self-determination is nolonger sufficient to explain the legitimacy and authority of law. Theemergence of non-state sites for the production of global norms thatregulate social, economic and political life within the state requires anevaluation of the concept of (international) law and the (legitimate)authority of non-state actors. Given that states retain a monopoly on thecoercive enforcement of law and the primary responsibility for theguarantee of the public and private autonomy of citizens, the legitimacyand authority of the laws that regulate the conditions of social life shouldbe evaluated by each democratic state. The construction of a multiverseof democratic visions of global governance by democratic states will havethe practical consequence of democratising the international law order,providing democratic legitimacy for international law.

Volume 29 in the series Studies in International Law

Columns Design Ltd / Job: Wheatley / Division: Prelims /Pg. Position: 1 / Date: 13/5


Studies in International Law

Volume 1: Between Light and Shadow: The World Bank, the International Monetary Fundand International Human Rights Law

Mac Darrow

Volume 2: Toxics and Transnational Law: International and European Regulation of ToxicSubstances as Legal Symbolism

Marc Pallemaerts

Volume 3: The Chapter VII Powers of the United Nations Security CouncilErika de Wet

Volume 4: Enforcing International Law Norms Against TerrorismEdited by Andrea Bianchi

Volume 5: The Permanent International Criminal CourtEdited by Dominic McGoldrick, Peter Rowe and Eric Donnelly

Volume 6: Regional Organisations and the Development of Collective SecurityAdemola Abass

Volume 7: Islamic State Practices, International Law and the Threat from Terrorism: ACritique of the ‘Clash of Civilizations’ in the New World Order

Javaid Rehman

Volume 8: Predictablity and Flexibility in the Law of Maritime DelimitationYoshifumi Tanaka

Volume 9: Biotechnology and International LawEdited by Francesco Francioni and Tullio Scovazzi

Volume 10: The Development of Human Rights Law by the Judges of the InternationalCourt of Justice

Shiv Bedi

Volume 11: The Environmental Accountability of the World Bank to Third PartyNon-State Actors

Alix Gowlland-Gualtieri

Volume 12: Transnational Corporations and Human RightsEdited by Olivier De Schutter

Volume 13: Biotechnologies and International Human RightsEdited by Francesco Francioni

Volume 14: Human Security and International Law: Prospects and ProblemsBarbara Von Tigerstrom

Volume 15: The Arms Trade and International LawZeray Yihdego

Volume 16: Africa: Mapping New Boundaries in International LawEdited by Jeremy Levitt

Volume 17: Forced Migration, Human Rights and SecurityEdited by Jane McAdam

Volume 18: The Use of Nuclear Weapons and the Protection of the Environment duringInternational Armed Conflict

Erik Koppe


JOBNAME: Wheatley PAGE: 3 SESS: 3 OUTPUT: Tue May 11 14:32:06 2010

Volume 19: The Shifting Allocation of Authority in International Law: ConsideringSovereignty, Supremacy and Subsidiarity

Edited by Tomer Broude and Yuval Shany

Volume 20: Counterterrorism: Democracy’s ChallengeEdited by Andrea Bianchi and Alexis Keller

Volume 21: Amnesty, Human Rights and Political TransitionsLouise Mallinder

Volume 22: Property Rights and Natural ResourcesRichard Barnes

Volume 23: Human Dignity and the Foundations of International LawPatrick Capps

Volume 24: Sovereignty and the Stateless Nation: Gibraltar in the Modern Legal ContextKeith Azopardi

Volume 25: The International Court of Justice and Self-Defence in International LawJames A Green

Volume 26: State Liability in Investment Treaty Arbitration: Global Constitutional andAdministrative Law in the BIT Generation

Santiago Montt

Volume 27: Reappraising the Resort to Force: International Law, Jus ad Bellum and theWar on TerrorLindsay Moir

Volume 28: International Law and Dispute Settlement: New Problems and TechniquesEdited by Duncan French, Matthew Saul and Nigel White

Volume 29: The Democratic Legitimacy of International LawSteven Wheatley



The DemocraticLegitimacy of

International Law

Steven Wheatley



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For Mum



Acknowledgements

Some of the arguments developed here have been presented at seminarsat the universities of Edinburgh, Lancaster, University College London,Liverpool, Newcastle, Nottingham, Sydney and Basel Institute on Gov-ernance. Many thanks to the participants for the very helpful comments.Thanks also to Sarah Blandy and Anne Peters for comments on parts ofthe work (the usual caveat applies).

I would wish to express gratitude to my parents Michael and Rosaleenfor their support over many years, to my wife Katherine for her encour-agement and affection, to Francesca for the daily chats, and to Misty fordragging me out for a walk every day.

Whalley (Lancashire), August 2009.



Contents

Acknowledgements ixTable of Cases xvTable of International Treaties, Conventions and other Legal Instruments xviiiTable of General Assembly Resolutions xxiii

Introduction 1Globalisation and the Democratic Deficit 2The Democratic Legitimacy of International Law 11The Structure of the Book 15

1 The Democratic Deficit in Global Governance 22The ‘Vertical’ Complaint 23The ‘Horizontal’ Complaint 28The ‘Ideological’ Complaint 31The Democratisation of Global Governance 33

Reaffirming Sovereignty 34A Global Democratic State 43A Global Democratic Federation 47

A Democratic Peace 50Perpetual Peace 51A Law of Peoples 54

Cosmopolitan Democratic Law 60Democratising International Institutions 64

International Parliamentary Assemblies 65A UN Parliamentary Assembly 67

The Accountability Deficit 71The Role of Experts 72The Accountability of International Organisations 79

Global Discourses: the Role of International Civil Society 83Conclusion 89

2 Democracy Within and Beyond the State 92International Law and the Democratic Deficit 94Politically Decidable Issues 98Deliberative Democracy 102Deliberative Majorities 106Deliberative Politics 108Human Rights in a Democracy 109The Parliamentary Principle of Democracy 112



Challenging Democratic Truths: the Role of Judicial Review 113Deliberative Democracy Beyond the State 115Conclusion 121

3 The State as (Democratic) Self-Legislator 123The Sovereign State 124The State as Self-Legislator 128Contractual Autonomy 133Law-Making Treaties 135Deliberative Diplomacy 138The Indeterminacy of International Law Obligations 145The Problem of Customary International Law 150

The Role of the International Law Profession 152A Modern Form of Customary International Law 154

General Principles of Law 155The Writings of Publicists and Judgments of Courts 157

The Writings of Publicists 157The Judgments of Courts 158

Conclusion 161

4 The Constitutionalisation of International Law 163From Contract to Governance 164Community Interests and Constitutionalisation 171The Constitutionalisation of International Law 175

The Normative Hierarchy of International Law 176Article 103, Charter of the United Nations 179

The International Constitution 182The International Constitutional Order 187Liberal Democratic Values in International Law 193Rule of Law 194International Human Rights Law 198Human Rights in the United Nations System 202The Construction of the Liberal State 207Conclusion 210

5 Democracy in International Law 211Democracy in International Law 212

Democratic Self-Determination 213A (Human) Right to Democracy 219Democracy in the Practice of States 222Membership of International Organisations 223

Democracy in the International Law Order 228

xii Contents



Democratic Regime Change in International Law 231Operation Enduring Freedom (Afghanistan) 235Operation Iraqi Freedom 237

Conclusion 245

6 International Governance by Non-State Actors 247Global Governance 249International ‘Soft’ Law 253Non-State Actors as Law-Makers 256

The UN Security Council 257‘Networks’ of Officials: Basel Committee on BankingStandards 264Public-Private Partnerships: World Commission on Dams 267Private International Governance Schemes 269

Governance by Non-State Actors 271

7 A Concept of (International) Law 277The Concept of (State) Law 277Autopoiesis: Law as a Closed System of Communication 280Global Bukowina 286The Fragmentation of International Law 289Constitutionalisation Beyond the State 292The Idea of Law 296The Idea of Authority 300Democracy and the Concept of Authority 303A Revised Concept of Law 309

8 Deliberative Democracy Beyond the State 311The Idea of Constituent Power 312Democracy and the Exercise of Political Authority 315Those ‘Affected’/‘Subjected’ 322The Political Concept of Global Justice 327Conclusion 331

9 Democracy in Conditions of Global Legal Pluralism 334Pluralism in Global Governance 335Normative Pluralism 338What is Legal Pluralism? 341Global Legal Pluralism 343Rethinking Global Legal Pluralism 345State Law and International Law 350Relationship Between Democracy and International Law 360

The Limits of International Law 361Democracy-Enhancing International Law 363

Contents xiii



Constitutional Self-Limitation 365International Law as a Pre-Commitment Device 368A Contestable International Rule of Law 369

Conclusion 371

Conclusion: Democracy and the Public International Lawyer 377

Selected Bibliography 383Index 395

xiv Contents



Table of Cases

African Commission on Human and Peoples’ Rights

Constitutional Rights Project and Civil Liberties Organisation v Nigeria(31 October 2008) ................................................................................................ 225

European Court of Human Rights

Hirst v United Kingdom (No 2) Reports of Judgments and Decisions2005-IX .................................................................................................................. 221

Ždanoka v Latvia, App No 58278/00, judgment 16 march 2006 ....................... 221

European Court of Justice/Court of First Instance

Kadi v Council of the European Union (Case C-402/05 P) [2008]ECR I-6351 ........................................................................................................... 262

Kadi v Council of the European Union (Case T-315/01) [2005] ECR II-3649 .. 262

NV Algemene Transporten Expeditie Onderneming van Gend en Loos vNetherlands Inland Revenue Administration (Case 26/62) [1963]ECR 1 .................................................................................................................... 275

Roquettes Frères v Council (Case 138/79) [1980] ECR 3333 ................................. 66

International Court of Justice

Application of the Convention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v Serbia and Montenegro)(Preliminary Objections) [1996] ICJ Rep 595 ......................................... 198, 262

Armed Activities on the Territory of the Congo (Democratic Republic of theCongo v Rwanda), judgment 3 February 2006 ..................................... 177, 213

Avena and other Mexican Nationals (Mexico v United States) [2004] ICJRep 12 ................................................................................................................... 356

Barcelona Traction, Light and Power Company Limited [1970] ICJ Rep 3 ..... 176,178, 179

Certain expenses of the United Nations (Advisory Opinion) [1962] ICJRep 151 ................................................................................................................... 11

Continental Shelf (Libyan Arab Jarnahiriya/Malta) [1985] ICJ Rep 13 ............ 130Corfu Channel Case [1949] ICJ Rep 4 ............................................................. 172, 176

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Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJRep 246 ......................................................................................................... 150, 354

East Timor (Portugal v Australia) [1995] ICJ Rep 90 ............................................ 213

Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 ...... 11, 133,154, 254

Interpretation of the Agreement of 25 March 1951 between the WHO andEgypt (Advisory Opinion) [1980] ICJ Rep 73 ................................................ 273

Legal Consequences of the Construction of a Wall in the Occupied PalestinianTerritory (Advisory Opinion) [2004] ICJ Rep 136 ................ 179, 213, 240, 244

Legal Consequences for States of the Continued Presence of South Africain Namibia (South-West Africa) notwithstanding Security CouncilResolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 ... 133, 242, 256,

258Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)

[1996] ICJ Rep 226 .............................................................................. 172, 176, 272Legality of the Use by a State of Nuclear Weapons in Armed Conflict

(Advisory Opinion) [1996] ICJ Rep 66 .................................................. 273—274

Military and paramilitary activities in and against Nicaragua (Nicaragua vUnited States) Merits [1986] ICJ Rep 14 ............................ 34, 35, 128, 151, 154,

180, 212, 222, 336

North Sea Continental Shelf [1969] ICJ Rep 3 ............................................... 151, 291

Questions of interpretation and application of the 1971 Montreal Conventionarising from the aerial incident at Lockerbie (Libya v United States)[1992] ICJ Rep 114 ...................................................................................... 181, 261

Reparation for injuries suffered in the service of the United Nations(Advisory Opinion) [1949] ICJ Rep 174 .......................................................... 166

Reservations to the Convention on the Prevention and Punishment ofthe Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15 .................. 202

South West Africa (Ethiopia v South Africa; Liberia v South Africa)(Second Phase) [1966] ICJ Rep 6 ...................................................................... 181

Territorial Dispute (Libyan Arab Jamahiriya/Chad) [1994] ICJ Rep 6 ............. 145

United States Diplomatic and Consular Staff in Tehran (United Statesof America v Iran) [1980] ICJ Rep 3 .......................................... 47, 128, 138, 203

Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 ....................................... 214

xvi Table of Cases



International Criminal Tribunal for Yugoslavia

Prosecutor v Dusko Tadic, Case No IT-94–1-AR72 (1996) 35 ILM 32 ......... 48, 262

Permanent Court of International Justice

Certain German Interests in Polish Upper Silesia (1926) PCIJ Series ANo 7 ........................................................................................................ 25, 158, 159

Jurisdiction of the Courts of Danzig, PCIJ Series B No 15 .......................... 204, 356

‘Lotus’ (1927) PCIJ Series A No 10 .................................................................. 128, 134

Mavrommatis Palestine Concessions (1924) PCIJ Series A No 2 ........................ 130

Treatment of Polish Nationals and Other Persons of Polish Origin orSpeech in the Danzig Territory (1931) PCIJ Series A/B No 44 ............. 25, 356

‘Wimbledon’ (1923) PCIJ Series A No 1 .................................................................. 129

UN Human Rights Committee

Chief Bernard Ominayak and the Lubicon Lake Band v Canada (10 May 1990)Communication No 167/1984 .......................................................................... 344

Gillot v France (26 July 2002) Communication No 932/2000 ............................. 215

National Cases

Canada

Reference re Secession of Quebec (1998) 2 SCR 217 ............................................. 229

Germany

Judgment on the Acts approving the Treaty of Lisbon, BVerfG, 2 BvE 2/08of 30 June 2009 .................................................................................................... 366

United States

Medellin v Texas 128 S Ct 1346 (2008) .................................................................... 356

Table of Cases xvii



Table of International Treaties,Conventions and other Legal

Instruments

African Charter on Democracy, Elections and Governance ................................ 225art 4(2) ...................................................................................................................... 225art 17 ......................................................................................................................... 225art 19 ......................................................................................................................... 225art 48 ......................................................................................................................... 225

African Charter on Human and Peoples’ Rights .................................................. 221art 9 ........................................................................................................................... 221art 10 ......................................................................................................................... 221art 11 ......................................................................................................................... 221art 13(1) .................................................................................................................... 221art 20(1) .................................................................................................................... 221

American Convention on Human Rightsart 13 ......................................................................................................................... 221art 15 ......................................................................................................................... 221art 16 ......................................................................................................................... 221art 23(1) .................................................................................................................... 221

Charter of the Association of Southeast Asian Nations (ASEAN) 228Charter of the Organization of American States ........................................... 225–226Charter of Paris for a New Europe (CSCE) ........................................................... 227Charter of the United Nations ......... 95, 130, 171, 175, 179, 183, 184, 185, 186, 187,

188, 195, 200, 203, 213, 216, 224, 231, 233, 239, 264Preamble .................................................................................................................. 216Chap V ..................................................................................................................... 183Chap VII .......................................................................... 183, 232, 240, 258, 259, 355art 1 ........................................................................................................................... 213art 1(1) ...................................................................................................................... 231art 1(3) .............................................................................................................. 203, 216art 2(1) ........................................................................................................................ 29art 2(4) ...................................................................................................... 231, 232, 233art 2(6) .............................................................................................................. 181, 258art 2(7) ...................................................................................................... 167, 203, 355art 4 ........................................................................................................................... 186art 4(1) ...................................................................................................................... 224art 10 ......................................................................................................................... 255art 17 ........................................................................................................................... 69art 17(2) ....................................................................................................................... 11art 22 ........................................................................................................................... 68



art 23(1) .................................................................................................................... 258art 24 ......................................................................................................................... 263art 24(1) ............................................................................................................ 181, 258art 25 ................................................................................................................. 181, 258art 27(2) .................................................................................................................... 258art 27(3) .............................................................................................................. 29, 183art 31 ......................................................................................................................... 260art 33(1) .................................................................................................................... 145art 39 ......................................................................................................................... 262art 42 ......................................................................................................................... 233art 48(1) .......................................................................................................... 181, 2558art 51 ................................................................................................................. 232, 233art 53(1) .................................................................................................................... 233art 55 ......................................................................................................................... 203art 55(c) ..................................................................................................................... 203art 73 ......................................................................................................................... 216art 76(b) .................................................................................................................... 216art 103 ................................... 167, 172, 179—182, 240, 258, 260, 261, 262, 273, 274art 108 ............................................................................................................... 186, 271art 109 ............................................................................................................... 186, 271

Constitutive Act of the African Unionart 3(g) ...................................................................................................................... 225art 17(1) ...................................................................................................................... 66art 30 ......................................................................................................................... 225

(Aarhus) Convention on Access to Information, Public Participation inDecision-Making and Access to Justice in Environmental Matters ........... 324

Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment .................................................................................. 206

Convention on Biological Diversityart 22(1) .................................................................................................................... 275

Convention on the Participation of Foreigners in Public Life at LocalLevel ..................................................................................................................... 220

Convention on the Prevention and Punishment of the Crime of Genocide ..... 201Convention on the Prohibition of the Use, Stockpiling, Production and

Transfer of Anti-Personnel Mines and on their Destruction ......................... 84Convention on the Rights of the Child ................................................................... 206Convention on the Rights of Persons with Disabilities and its Optional

Protocol ................................................................................................................ 206Covenant of the League of Nations

art ......................................................................................................................... 15 355art 20 ................................................................................................................. 179, 180

Declaration on the Slave Trade (1815) .................................................................... 199

European Convention for the Protection of Human Rights and FundamentalFreedoms .............................................................................................................. 221

Protocol to the ECHR, art 3 .......................................................................... 221, 222

Table of International Treaties, Conventions and other Legal Instruments xix



Framework Treaty on Democratic Security in Central Americaart 1 ........................................................................................................................... 224

General Act for the Repression of African Slave Trade (1890) ........................... 199General Framework Agreement for Peace in Bosnia-Herzegovina

art 1(2) ...................................................................................................................... 233Annex 4 .................................................................................................................... 233

Geneva Convention (Fourth) on the Protection of Civilian Persons in Timeof War

art 64 ................................................................................................................. 240, 244

Hague Convention (IV) with respect to Laws and Customs of War onLand .............................................................................................................. 240, 244

art 42 ......................................................................................................................... 240art 43 ......................................................................................................................... 240

Harare Declaration (Commonwealth) ..................................................................... 224

ILC Articles on State Responsibilityart 2 ........................................................................................................................... 172art 22 ......................................................................................................................... 173art 26 ......................................................................................................................... 173art 26(5) .................................................................................................................... 213art 32 ......................................................................................................................... 356art 33 ......................................................................................................................... 173art 33(1) .................................................................................................................... 172art 33(2) .................................................................................................................... 172art 40 ......................................................................................................................... 173art 40(1) .................................................................................................................... 173art 41(1) .................................................................................................................... 173art 41(2) ............................................................................................................ 173, 244art 48 ......................................................................................................................... 173art 48(1)(b) ............................................................................................................... 173art 49 ......................................................................................................................... 174art 50 ......................................................................................................................... 174art 50(1) .................................................................................................................... 174

Inter-American Democratic Charterart 1 ........................................................................................................................... 226

International Convention on the Elimination of All Forms of Discriminationagainst Women .................................................................................................... 206

International Convention on the Elimination of All Forms of RacialDiscrimination ..................................................................................................... 206

International Convention on the Protection of the Rights of All MigrantWorkers and Members of their Families ........................................................ 206

International Convention for the Regulation of Whaling ..................................... 91art V .......................................................................................................................... 273

International Convention to Suppress the Slave Trade and Slaveryart 2(a) ...................................................................................................................... 200

xx Table of International Treaties, Conventions and other Legal Instruments



art 2(b) ...................................................................................................................... 200International Covenant on Civil and Political Rights ......... 185, 198, 206, 207, 220

art 1 ........................................................................................................................... 216art 1(1) ...................................................................................................... 213, 220, 221art 1(3) ...................................................................................................................... 216art 14(1) .................................................................................................................... 220art 19 ......................................................................................................................... 220art 21 ......................................................................................................................... 220art 22(2) .................................................................................................................... 220art 25 ................................................................................................................. 220, 221art 27 ......................................................................................................................... 344

International Covenant on Economic, Social and CulturalRights ........................................................................................... 185, 198, 206, 207

art 1(1) ...................................................................................................................... 213art 1(3) ...................................................................................................................... 216

Montreal Protocol on Substances that Deplete the Ozone Layer ....................... 137

Protocol of Tegucigalpa (Protocolo de Tegucigalpa a la Carta de laOrganización de Estados Centroamericanos (ODECA))

art 3 ........................................................................................................................... 224

Statute of the International Court of Justiceart 38 ......................................................................................................................... 158art 38(1) .................................................................................................... 157, 254, 255art 38(1)(b) ....................................................................................................... 150, 222art 38(1)(c) ................................................................................................................ 155art 38(1)(d) ....................................................................................................... 157, 158art 59 157

Stockholm Declaration of the United Nations Conference on the HumanEnvironment

Principle 21 .............................................................................................................. 354Supplementary Convention on the Abolition of Slavery, the Slave Trade and

Institutions and Practices Similar to Slavery (1956) ..................................... 200

Treaty of Peace between the United States of America, the British Empire,France, Italy, and Japan and Poland ............................................................... 200

Treaty on European Unionart 6(1) ...................................................................................................................... 227art 7 ........................................................................................................................... 227

Treaty of Lisbon .................................................................................................. 226, 227

United Nations Convention on the Law of the Sea ............................................. 185art 161(8)(e) .............................................................................................................. 136

UN Framework Convention on Climate Change ................................................. 137Kyoto Protocol ........................................................................................................ 137

UNESCO Constitution ............................................................................................... 200

Table of International Treaties, Conventions and other Legal Instruments xxi



Universal Declaration on Democracy (Inter-Parliamentary Union) .................. 219Ushuaia Declaration (MERCOSUR) ........................................................................ 224

Vienna Convention on the Law of Treaties ............................................. 38, 292, 356art 7(2)(a) .................................................................................................................... 25art 26 ........................................................................................................................... 25art 27 ................................................................................................................... 25, 356art 30(1) .................................................................................................................... 180art 31 ................................................................................................................. 145, 146art 31(1) .................................................................................................................... 145art 31(2) .................................................................................................................... 146art 31(2)(a) ................................................................................................................ 146art 31(2)(b) ............................................................................................................... 146art 31(2)(c) ................................................................................................................ 146art 31(3)(c) ................................................................................................................ 132art 31(4) .................................................................................................................... 145art 32 ......................................................................................................................... 146art 46(1) .............................................................................................................. 25, 356art 53 ................................................................................................................. 176, 177art 61 .......................................................................................................................... 134art 62 .......................................................................................................................... 134art 63 .......................................................................................................................... 134art 64 ................................................................................................................. 176, 177

Vienna Convention on the Law of Treaties between States and InternationalOrganisations or between International Organisations

art 26 .......................................................................................................................... 274art 27 .......................................................................................................................... 274art 30(6) ..................................................................................................................... 180art 46 .......................................................................................................................... 274art 53 .......................................................................................................................... 274art 64 .......................................................................................................................... 274

xxii Table of International Treaties, Conventions and other Legal Instruments



Table Of General AssemblyResolutions

2005 World Summit Outcome, GA Res. 60/1 ....................................... 136, 195, 223

Affirmation of the principles of international law recognized by theCharter of the Nuremberg Tribunal, GA Res. 95(I) ...................................... 201

Crime of Genocide, GA Res. 96(I)............................................................................. 201

Declaration on the Elimination of All Forms of Intolerance and ofDiscrimination based on Religion or Belief, GA Res. 36/55 ....................... 206

Declaration on Friendly Relations, GA Res. 2625 (XXV) ... 34–5, 56, 154, 213, 214,215, 217, 229, 230, 241

Declaration on the Granting of Independence to Colonial Countries andPeoples, GA Res. 1514 (XV) ...................................................... 178, 213, 214, 215

Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 ........... 24, 207,256, 344

Declaration on the Rights of Persons belonging to National or Ethnic, Religiousand Linguistic Minorities, GA Res. 47/135 .................................................... 207

Observance in Bulgaria and Hungary of Human Rights and FundamentalFreedoms, GA Res. 272(III) ............................................................................... 204

Political Rights of Women, GA Res. 56(I) ............................................................... 204Promotion of a democratic and equitable international order, GA

Res. 61/160 ............................................................................................................ 13

Question of Southern Rhodesia, GA Res. 1747 (XVI) ........................................... 215

Relations of Members of the United Nations with Spain, GA Res. 39(I) .......... 204Request for an advisory opinion of the International Court of Justice on

whether the unilateral declaration of independence of Kosovo is inaccordance with international law, GA Res. 63/3 ........................................ 230

Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 .... 172Rule of Law at the National and International levels, GA Res. 63/128 ... 195, 256

Situation in Afghanistan and its Implications for International Peace andSecurity, GA Res. 35/37 ..................................................................................... 217

Situation in Kampuchea, GA Res. 34/22 ................................................................ 217



Strengthening the Role of the United Nations in Enhancing the Effectiveness ofthe Principle of Periodic and Genuine Elections and the Promotion ofDemocratization, GA Res. 62/150 ................................................................... 223

Treatment of Indians in the Union of South Africa, GA Res. 44(I) .................... 204

Universal Declaration of Human Rights, GA Res. 217(III)A ..... 111, 198, 205, 206,207, 220, 255

art 1 ........................................................................................................................... 205art 2 ........................................................................................................................... 205art 4 ................................................................................................................... 111, 205art 5 ................................................................................................................... 111, 205art 7 ................................................................................................................... 111, 205art 20 ......................................................................................................................... 220art 21 ................................................................................................................. 205, 220art 21(1) .............................................................................................................. 20, 220art 21(3) .................................................................................................... 205, 218, 220art 28 ........................................................................................................................... 58art 29(2) .................................................................................................................... 205

Universal Realization of the Right of Peoples to Self-Determination,GA Res. 63/163 ................................................................................................... 217

Violation by the USSR of Fundamental Rights, Traditional DiplomaticPractices and other Principles of the Charter, GA Res. 285(III) .................. 204

xxiv Table Of General Assembly Resolutions



Introduction

THE CONSOLIDATION OF democracy at the level of the statehas coincided with a proliferation of sites for the production ofsocial, economic and political norms in global governance without

any attempts, outside of the European Union, to replicate the institutionsof democracy that legitimate authority at the domestic level. The globali-sation and fragmentation of governance results in a loss for democracy asthe people no longer decide all of those aspects of social, economic andpolitical that may meaningfully be subject to political contestation, withno clear justifications emerging for usurping domestic political self-determination. The ambition of this work is to restate the requirements ofdemocratic legitimacy in terms of the deliberative ideal developed byJürgen Habermas, and apply the understanding to the systems of globalgovernance. The principle of equality between human persons and needfor justification for the exercise of political authority leads to a recogni-tion that democratic laws can only be legitimated through discursiveprocedures of opinion- and will-formation that result in a consensusamongst participants: ‘Just those action norms are valid to which allpossible affected persons could agree as participants in rational dis-courses.’1 The argument here demonstrates that the analysis developed atthe level of the state can be applied to international law, broadly definedto include the inter-state system of public international law and newforms of international governance by international organisations andother non-state actors.

The focus is the systems of law in global governance, and not allnormative orders. Reference to ideas of global or international ‘govern-ance’ is intended to distinguish international law (governance) fromdomestic law (government). It should not suggest any diminution of therole of law or politics in global governance (in fact, the contrary).2 Law isconcerned with regulation by an authority, ie with determining thenormative situation of others. Where global regulations are framed interms of law, the scope, content and consequences of the exercise of

1 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Lawand Democracy, trans by William Rehg (Oxford, Polity, 1996) at 107. See also JürgenHabermas, James Bohman and William Rehg (eds), Deliberative Democracy: Essays on Reasonand Politics (Cambridge, Mass, MIT Press, 1997); and Jon Elster (ed), Deliberative Democracy(Cambridge, Cambridge University Press, 1998).

2 cf Martti Koskenniemi, ‘The politics of international law – 20 years later’ (2009) 14European Journal of International Law 7, 15.

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political authority can only be understood by reference to an analyticalenquiry into the meanings of law and authority. The work concludes thatthe legitimate exercise of political authority through law is conditionedby respect for the cardinal principles of deliberative democracy: equalityand public reason. International law norms are valid only where a globalregulator can demonstrate that it enjoys legitimate authority, ie that itregulates in accordance with the right reasons that apply to subjects, andright reasons can only be discerned through democratic procedures.Legitimate authority depends on the existence of (deliberative) demo-cratic forms of decision-making that take into account the interests andperspectives of those subject to the law: a (democratic) rule of (interna-tional) law.

GLOBALISATION AND THE DEMOCRATIC DEFICIT

Democratic self-determination requires that citizens decide all issues thatare politically decidable. The fact of globalisation has removed manyissues from domestic political control, with states finding it increasinglydifficult to exercise jurisdiction over international financial capital andtransnational corporations, for example, and the demands of globalmarkets and economic non-state actors inhibiting the ability of govern-ments to introduce welfare-enhancing measures to ameliorate the delete-rious impacts of liberal policies of free-trade and a free-market.Globalisation has also seen increased social interactions between geo-graphically diverse persons, following developments in transport andinformation technology, and an increase in the borrowing of social,economic and political ‘norms’ from other cultures, including the globalcultural of human rights. The movement of persons and infectiousdiseases, such as swine influenza A(H1N1), and ideas such as the radicalIslamic ideology of Al-Qaeda and associate organisations, and impacts ofindustrialisation on the global environment (global warming, etc) arepolicy issues that individual governments acting alone are unable toeffectively regulate or control. States have responded to globalisationthrough the globalisation of governance functions, including inter-statecooperation measures and establishment of regional and global regula-tory institutions. Whilst the development can be seen as a practicalresponse, it creates problems for the practice of democracy — once anissue is regulated at the level of international law, the people do notdecide for themselves all of the conditions of social, economic andpolitical life that are political decidable. Eric Stein concludes that the

2 Introduction



globalisation of governance almost invariably means a ‘loss of democ-racy’, as citizen participation in the exercise of political authoritybecomes even more remote.3

The contrast between domestic democracy and global regulatory insti-tutions is striking: there are no direct elections for the selection of globalpolitical leaders or members of a global parliamentary assembly, and fewmechanisms for holding power-wielders in global governance toaccount.4 International organisations and institutions have emerged asstandard setters without, in any formal sense, being representative of, ordirectly accountable to, those they seek to regulate. Where democraticself-determination is defined in terms of the ability of a people to decidepolitically decidable issues, globalisation and the globalisation of govern-ance presents significant challenges to the theory and practice of democ-racy, and the ‘move to institutions’ in international law5 and ‘transfer ofpolicy-making prerogatives’ away from states,6 presents a radically dif-ferent context for the practice of, and theorising about, democracy than inthe past, when waves of democratisation washed over the territorialstates of first Europe and North America, and subsequently the wholeworld.7 The modern world of democratic law must accommodate itself tothe proliferation of sites for law-making, including the emergence ofsome 250 international organisations and institutions, and fragmentationof governance functions on sectoral grounds, such as human rights, theenvironment, trade and development.

Ideas around democratic legitimacy have not been central to thejustification for the globalisation of governance functions. The standard,instrumental, justification is that global regulation is an effective mecha-nism for responding to collective action and co-ordination problems, andfor promoting certain global justice ends (the protection of human rights,the environment and a globalised economy, etc). Critics complain thatinternational organisations and institutions have been implementing aneo-liberal ideology, the so-called ‘Washington consensus’ (the positionof the United States, World Bank and International Monetary Fund),

3 Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95American Journal of International Law 489, 490.

4 José Alvarez cautions that in an age where ‘the number of “genuinely democratic,domestic societies” is still not vast’, we should not make the mistake of ‘mythologizingdomestic democratic governance’: José Alvarez, ‘Multiculturalism and its Discontents’(2000) 11 European Journal of International Law 393, 410.

5 cf David Kennedy, ‘The Move to Institutions’ (1986–87) 8 Cardozo Law Review 841. Seealso José E Alvarez, ‘International Organizations: Then and Now’ (2006) 100 AmericanJournal of International Law 324, 325.

6 Lloyd Gruber, Ruling the World: Power Politics and the Rise of Supranational Institutions(Princeton, NJ, Princeton University Press, 2000) xi.

7 cf Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century(London, University of Oklahoma Press, 1991).

Globalisation and the Democratic Deficit 3



which argues for free trade between states and a deregulated free-marketwithin the state, often at the expense of social and economic rights andmeasures aimed at poverty alleviation.8 Richard Falk identifies a ‘market-orientated constitutionalism’ that emerged following the end of the ColdWar: ‘[the] preferred shape of world order [was] built on the self-organizing propensity of the market, legitimated and stabilized byrespect for constitutional principles, especially the rule of law’.9 There is asense that global law norms are imposed on people who have little inputinto their design and formulation, and no opportunities for argument orprotest. BS Chimni makes the point that the World Trade Organizationhas no address in India and it is simply not possible for Indian farmers toprotest before its offices in Geneva. New technologies, notably theinternet, may increase the possibilities of citizen participation, but he issceptical about the possibilities of new forms of ‘electronic resistance’,particularly given that many people in the developing world do not haveaccess to the necessary technology.10

Chimni writes about the ‘imperial character’ of international institu-tions,11 and the ‘emerging consensus among third world peoples’ thatthey suffer from a ‘democracy deficit’.12 From the 1999 MinisterialConference of the World Trade Organization, the so-called ‘Battle atSeattle’, and subsequently at Prague (2000), Quebec City and Genoa(both 2001), Johannesburg (2002), and Cancun (2002),13 the lack of trans-parency, accountability, and citizen participation in relation to interna-tional organisations (the putative ‘democratic deficit’) has become asignificant political issue, a major theme in writings on world politics14

8 A distinctive criticism of the left contends that the focus should not be on thedemocratisation of global governance, which represents a form of Western hegemony, buton the development of powerful international institutions to promote social welfare goals inthe face of economic globalisation. See Anthony McGrew, ‘Models of Transnational Democ-racy’ in David Held and Anthony McGrew (eds), The Global Transformations Reader, 2nd edn(Cambridge: Polity, 2003) 500, 508.

9 Richard Falk, ‘A Decade of Lost Opportunities’, one part of ‘Citizens in the Interna-tional Realm: the New Participatory Demands’ (2001) American Society of InternationalLaw, Proceedings of the Annual Meeting 162, 165.

10 BS Chimni, ‘International Institutions Today: an Imperial Global State in the Making’(2004) 15 European Journal of International Law 1, 23. cf Michael Froomkin,‘[email protected]: Toward a Critical Theory of Cyberspace’ (2003) 116 Harvard LawReview 749, 753.

11 ibid at 2.12 ibid at 6.13 cf John Dryzek, ‘Transnational Democracy in an Insecure World’ (2006) 27 International

Political Science Review 101, 106: the protestors form one part of a larger transnational publicsphere questioning economic globalisation, which has been successful in influencing statesand international organisations and in the governance of global issues.

14 Andrew Moravcsik describes the question as to whether international institutions canmake a claim to democratic legitimacy as ‘perhaps the central question in contemporaryworld politics’: Andrew Moravcsik, ‘Is there a ‘Democratic Deficit’ in World Politics?’ (2004)39 Government and Opposition 336, 336 (emphasis in original).

4 Introduction



and international relations, and more recently in international law, as thegains for democracy at the level of the state appear to be undermined bya move to global regulation. The apparent benefits of globalised govern-ance have not abated the legitimacy critique, and the experience of theEuropean Union (EU) demonstrates that formal legitimacy (establishedby an international law framework) and output legitimacy (good govern-ance for the people) provide a necessary but not a sufficient justificationfor the exercise of political authority in the eyes of many citizens. Theabsence of direct citizen control over law-making within the EuropeanUnion presents significant difficulties for establishing the sociologicaland normative legitimacy of governance by EU institutions, and theauthority of EU laws.

Arguments around the democratic deficit of EU governance are wellrehearsed: European integration has increased executive power at theexpense of parliamentary control; the European Parliament is too weak;there are no truly ‘European’ elections; the European Union is ‘toodistant’ from voters; governance by European institutions results in a‘policy drift’ away from voters’ ideal preferences. In short, governance bythe European Union results in policies that are not supported by amajority of citizens in many or even most Member States;15 note themajoritarian critique. Debates around the European Union inform but donot exhaust consideration of the problem of democracy beyond the state.The European Union is sui generis; it is a more effective internationalorganisation than any other, with developed structures for governanceand law-making; the same cannot be said about the system of inter-nation law that operates principally between states and forms of interna-tional governance by international organisations and other non-stateactors. The European Union has responded to complaints that there is ademocratic deficit in EU governance by replicating, in many respects, theinstitutions of government found in domestic systems. One part of thesolution to the problem of democracy beyond the state may lie inestablishing democratic institutions, principally representative assem-blies (directly elected or otherwise). In the absence of a global demos, orglobal pouvoir constituant (constituent power), however, internationalparliamentary assemblies cannot be legitimate in the same ways thatdomestic parliaments are legitimate. Further, whilst we might concludeon the necessity for some form of direct representation in relation to theUnited Nations (UN), for example, a process of ‘parliamentarization’cannot be applied to the 250 plus international institutions that play somerole in global regulation. It is simply inconceivable that citizens could

15 Andreas Follesdal and Simon Hix, ‘Why There is a Democratic Deficit in the EU: aResponse to Majone and Moravcsik’ (2006) 44 Journal of Common Market Studies 533, 534–37.See also Giandomenico Majone, Regulating Europe (London, Routledge, 1996) 284.




remain sufficiently knowledgeable about their respective activities toparticipate effectively in political deliberations or direct elections. Thesolution to the problem of democracy beyond the state does not lie in themultiple replications of domestic democratic institutions at the level ofglobal governance. The democratisation of the international system, asJoseph Weiler observes, cannot be achieved by the

simplistic application of the majoritarian principle in world arenas[,] [or in]adapting national institutions and processes to international contexts. Thatcould work in only limited circumstances. What is required is both a rethink-ing of the very building blocks of democracy to see how these may or may notbe employed in an international system.16

The title of this work – The Democratic Legitimacy of International Law –links to a number of contested and contestable concepts: what, forexample, do we mean by ‘international law’ following the globalisationand fragmentation of governance; what is the relevance of democracybeyond the state, and what demos is implied; and crucially what do wemean by the idea of ‘democracy’? To analyse and evaluate the democraticlegitimacy of international law it is essential to develop a concept ofdemocracy that can be applied to state and international law, and newforms of international governance that have emerged to regulate domes-tic societies (or parts thereof). Daniel Esty identifies six types of legiti-macy that might justify the exercise of political authority by internationalorganisations and institutions, four of which relate to ideas arounddemocratic legitimacy.17 Esty refers directly to an idea of democraticlegitimacy, defined in terms of electoral legitimacy.18 In the modern age,the legitimacy of law is dependent on establishing democratic institu-tions as the ultimate source of the law and the existence of democraticlaw-making procedures. Since Jean-Jacques Rousseau (The Social Contract(1762)), the legitimate exercise of political power has been associatedwith elections that provide a mechanism for determining the will of thepeople.

Secondly, Esty refers to systemic or Madisonian legitimacy, followingthe design of the US constitutional model. The fragmentation of regula-tory functions on sectoral grounds ensures that political authority is

16 JHH Weiler, ‘The Geology of International Law-governance, Democracy and Legiti-macy’ (2004) 64 ZaöRV (Heidelberg Journal of International Law) 547, 561.

17 Daniel Esty, ‘Good Governance at the Supranational Scale: Globalizing AdministrativeLaw’ (2006) 115 Yale Law Journal 1490. The other two concern the legitimacy provided by theexpertise of the policymaker and ability of the regulator to achieve good outcomes (ibid at1517), and the idea of order-based legitimacy, in that order and predictability are requiredfor stable social relations and ‘the legitimacy of a governance system derives, at least inpart, from its capacity to clarify the rules of the game and thus provide order’ (ibid at 1518).

18 ibid at 1515.

6 Introduction



dispersed among competing institutions, ensuring ‘triangulation on dif-ficult policy choices’, leading to better policy making;19 more impor-tantly, the lack of a concentration of authority protects individual liberties(freedom from regulatory interference). The values of the AmericanConstitution, of the rule of law, separation of powers, democratic legiti-macy, legal hierarchies and judicial review, can be applied to globalgovernance to establish ‘a system of shared and separated powersdesigned more for liberty than efficiency’.20 Anne-Marie Slaughterobserves that a system of checks and balances, of competition andco-ordination, ‘creates sufficient friction to curb the abuse of power’.21 Inthe context of the European Union, Giandomenico Majone argues thatthe democratic deficit ‘becomes understandable in light of the model ofmixed government’,22 ie a pluralist or Madisonian model, ‘which aims toshare, disperse, limit and delegate power’.23 James Rosenau concludesthat the extensive disaggregation of authority in global governance,which allows for much greater flexibility, innovation and experimenta-tion in global regulation,24 has embedded within the system one of thefunctions of Madisonian government, that of inhibiting ‘the coalescenceof hierarchical and autocratic centres of [unrestrained exercises of]power.’25 The test for whether democracy is evolving in the ‘GlobalizedSpace’ is not whether representative institutions and accountabilitymechanisms conform to those in the domestic settings,

rather, the test lies in the degree to which the ad hoc control mechanismsevolve to steer the politics of this emergent domain in the direction of morechecks on the excesses of power, more opportunities for interests to be heardand heeded, and more balanced constraints among the multiplicity of actorsthat seek to extend their command of issue areas.26

19 ibid at 1519.20 Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountabil-

ity of Global Government Networks’ (2004) 39 Government and Opposition 159, 184.21 Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6

European Journal of International Law 503, 535.22 Giandomenico Majone, ‘Delegation of Regulatory Powers in a Mixed Polity’ (2002) 8

European Law Journal 319, 327.23 Giandomenico Majone, ‘Europe’s “democratic deficit”: the Question of Standards’

(1998) 4 European Law Journal 5, 18. Majone is also influenced by Arend Lijphart’s model ofconsociational democracy, which he argues is applicable in the context of the EuropeanUnion – a polity ‘split by a number of deep cleavages, the most obvious being thedistinction between large and small member states[.] Indeed, many non-majoritarianfeatures of the community system are best explained as strategies of cleavage management’:Giandomenico Majone, Regulating Europe (London, Routledge, 1996) 287.

24 James Rosenau, ‘Governance and Democracy in a Globalizing World’ in DanieleArchibugi et al, Re-imagining Political Community: Studies in Cosmopolitan Democracy (Stan-ford, Calif, Stanford University Press, 1998) 28, 32.

25 ibid at 40.26 ibid at 49.




Thirdly, democratic legitimacy may be understood in terms of legitimatepolicy-making, or ‘right process’: a ‘thoughtfully structured rulemakingprocess will clarify underlying issues, bring facts to bear, promote carefulanalysis of policy options, and engage interested parties in a politicaldialogue.’27 Esty refers to a global administrative law ‘toolbox’ thatincludes controls on corruption and special interest influence; a require-ment for draft policies and regulations to be made public, with opportu-nities for comment; the need for documented decision-making, and fortransparency and public participation, including access to information.28

Finally, Esty observes that, following Jürgen Habermas, legitimacy canbe understood in terms of the dialogue that accompanies rule-making,and which substitutes ‘for the missing democratic legitimacy andaccountability that elections provide.’ The concern is to establish trans-parent decision-making processes in international organisations andother non-state regulatory actors that provide opportunities for debateand political dialogue with participation by representatives of a broadrange of views.29 The analysis proceeds from the model developed byHabermas and other influential writers, rejecting any argument thatopinion- and will-formation is only possible in already existing politicalcommunities (‘states’), or that coercive institutions of government (toimplement agreed policies) are a necessary condition for the existence of‘democratic’ governance. The focus of the writings is on one element ofthe deliberative model: deliberation in accordance with public reason.Joshua Cohen argues that the idea of deliberation may be applied to anyassociation of (political) equals whose affairs can be governed by publicdeliberation and reasoned argument between members as to whatshould be done.30 The idea of deliberative democracy changes the waythat regulators (and other participants) understand the regulatory func-tion. In conditions of uncertainty and reasonable disagreement, it estab-lishes that legitimate policy and valid laws emerge through inclusiveprocesses of discussion that aim to reach a consensus amongst allparticipants, with deliberations conducted in accordance with the princi-ple of public reason. All participants must be free to state their prefer-ences and be willing to listen to others in the expectation that statedpreferences may be subject to challenge and possible change though openand reasonable discussions. To persuade others, participants will need torelinquish self-interested reasoning and look for arguments that others

27 Esty (n 17) at 1521.28 ibid at 1524ff.29 ibid at 1520.30 Joshua Cohen, ‘Deliberation and Democratic Legitimacy’ in James Bohman and

William Rehg (eds) Deliberative Democracy: Essays on Reason and Politics (Cambridge,Massachusetts, MIT Press, 1997) 67, 72.

8 Introduction



can find compelling. They must articulate reasons that others might findacceptable, eventually leading to a consensus as to which alternative is tobe preferred for the benefit of all.31 In conditions of uncertainty anddisagreement, democratic politics must be based on an understandingthat (political) ‘truths’ emerge from democratic politics that focus on theinterests and perspectives of those subject to the legal order.

Increasingly it is accepted that democracy should be understood interms of deliberative democracy, which provides the basis for beginningto think about the problem of democracy beyond the state. The argumentfor deliberative democracy follows from the recognition that the exerciseof political authority requires reasoned justification, and, in the modernage, a claim to authority cannot be justified by reference to a singleperspective, objective sense of morality, or philosophical argument; itmust be justified in terms that those subject to the regime can accept.Martti Koskenniemi points out that the idea that a political order shouldbe based

on the subjective consent of individuals is the most fundamental claim of theliberal tradition. Behind it stands the great epistemic break[.] The ensuinguncertainty could only be disposed of by establishing a knowledge-producingprocess in a meaning-generative (name-giving) consensus in the State.32

Political authority must be justified through democratic procedures inwhich law plays a crucial role. In ideal conditions, as Iris Marion Youngobserves, citizens arrive at decisions, ‘not by determining which prefer-ences have greatest numerical support, but by determining which pro-posals the collective agrees are supported by the best reasons.’33

Democracy is concerned with the establishment of political ‘truths’(defined in terms of right regulation), not political majorities. All poten-tially affected persons have the right to be included in deliberations andall have the right to speak freely in circumstances in which no one actor isin a position to threaten or coerce others.34 Legitimate authority rests oninstitutionalized procedures for deliberation and decision-making – theideal is rational persuasion. The consensus that results from free andopen deliberative processes should be regarded as ‘just’, and respectedby all participants.35

The practice of deliberative democracy requires that laws result from aprocess of reasoned deliberation amongst equal participants that reach a

31 ibid at 74–75.32 Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argu-

ment (Cambridge, Cambridge University Press, 2005) 74.33 Iris Marion Young, Inclusion and Democracy (Oxford, Oxford University Press, 2000)

22–23.34 ibid at 34.35 ibid at 31.




consensus. According to Seyla Benhabib, it is not simply another modelabout how democracy should work, but one that elucidates some aspectsof the logic of democratic practices better than others, albeit in imperfectform.36 Open and inclusive public debate leading to agreed-upon policiesis a common feature of advanced democracies. The assumptions are thatdeliberative mechanisms result in better law-making, as decision-makingprocedures are more informed and free from factual errors, and partici-pants and decision-making made aware of the interests and preferencesof all participants. Deliberation precludes recourse to self-interestedarguments as disagreements are settled ‘through the exchange of reasonsthat are shared or can be shared by all who are bound by the decisionstaken.’37 This in turn structures the form of democratic deliberations asparticipants must have recourse to reasons and reasoned arguments thatothers might accept. Where deliberation does not result in a consensus,the outcomes will nonetheless be ‘shaped by engagement in publicdebate, argument, and reason giving.’38

The deliberative model is a counterfactual ideal;39 Dyzenhaus refers tothe ‘abstract and complex’ nature of the argument for deliberativedemocracy, which defies ‘easy comprehension, let alone obvious contactwith reality’.40 Margaret Moore notes that the most decisive criticism ofdeliberative democracy is that it is ‘so difficult to institutionalize that it isunfeasible’.41 The ideal provides, however, a ‘useful theoretical tool’42

that can be used to analyse and evaluate the real world practice ofdemocracy. The model acknowledges the inter-relationship between pub-lic and private autonomy (political participation and human rights),without giving either one priority; refuses to designate an idea of the‘good life’ beyond the fact of deliberation, it is the right of citizens todeliberate on the terms of political justice for their association; and, giventhe centrality of consent, admits the possibility of reconciling the rights of(denocratic) minorities with the principle of self-determination. Perhapsmost importantly, Habermas provides a test for democratic legitimacy

36 Seyla Benhabib, ‘Toward a Deliberative Model of Democratic Legitimacy’ in SeylaBenhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political (Princeton,NJ, Princeton University Press, 1996) 67, 84.

37 Ian Johnstone, ‘Legislation and Adjudication in the UN Security Council: BringingDown the Deliberative Deficit’ (2008) 102 American Journal of International Law 275, 278.

38 ibid at 279.39 cf Michael Froomkin, ‘[email protected]: Toward a Critical Theory of Cyber-

space’ (2003) 116 Harvard Law Review 749, 755.40 David Dyzenhaus, ‘The Legitimacy of Legality’ (1996) 46 University of Toronto Law

Journal 129, 134.41 Margaret Moore, ‘Globalization and Democratization: Institutional Design for Global

Institutions’ (2006) 37 Journal of Social Philosophy 21, 31.42 Michel Rosenfeld, ‘Law as Discourse: Bridging the Gap between Democracy and

Rights’ (1995) 108 Harvard Law Review 1163, 1179.

10 Introduction



that is non-political to the extent that we accept the equality of humanpersons and the requirement for justification for the exercise of politicalauthority through law. The deliberative model allows us to evaluate thelegitimacy of laws without recourse to (contested) subjective values,which themselves would need to be justified in terms that reasonablepersons might accept to avoid claims of elitism, imperialism or that onlycertain arguments were valid.

THE DEMOCRATIC LEGITIMACY OF INTERNATIONAL LAW

The aim of this work is to give an account of the modern system ofinternational law that operates in world society. The argument is for adifferent reading of the system, not its reconstruction. It does not, forexample, propose an end to sovereignty, or the establishment of newglobal institutions, or the radical transformation of existing institutions.Writings on international law (from within the discipline) are constrainedby the discipline of international law. The job-function of the interna-tional lawyer is to construct competent arguments that ‘emerge from theway international society is, and not from some wishful construction ofit.’43 The defining features of international law are that it is international,not domestic, and law, not politics. The identity of the discipline isprovided by its normative character (‘it tells people what to do’), and theassumption that international law can be separated from internationalpolitics;44 it is not, as Koskenniemi explains, concerned with ‘subjectivebeliefs about what the order among States should be life’.45 It is not thejob-function of the international lawyer, qua international lawyer, toarticulate the principles of justice that should govern international rela-tions, and the disciplinary training of the international lawyer does notextend to studies of international ethics or global justice. Whilst interna-tional law cannot remain immune to discoveries in scientific disciplines46

43 Koskenniemi (n 32) at 573.44 See, for example, Certain expenses of the United Nations (art 17, para 2 of the Charter),

Advisory Opinion of 20 July 1962 [1962] ICJ Rep 151, 155: ‘It has been argued that thequestion put to the Court is intertwined with political questions, and that for this reason theCourt should refuse to give an opinion. It is true that most interpretations of the Charter ofthe United Nations will have political significance, great or small. In the nature of things itcould not be otherwise. The Court, however, cannot attribute a political character to arequest which invites it to undertake an essentially judicial task, namely, the interpretationof a treaty provision.’

45 Koskenniemi (n 32) at 16.46 Consider for example the judgment of the International Court of Justice in Gabcikovo-

Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 at para 140: ‘Owing to newscientific insights and to a growing awareness of the risks for mankind – for present andfuture generations – of pursuit of such interventions at an unconsidered and unabated pace,new norms and standards have been developed, set forth in a great number of instruments

The Democratic Legitimacy of International Law 11



and developments in the ways that cognate disciplines think about theworld society (hence the reliance here on work in disciplines such aspolitical theory and international relations), international law remains aclosed system that defines its own senses of reality and creates its ownnormative expectations.47 The reliance on work in cognate disciplines isintended to illuminate the understanding of international law and impor-tance of democracy when evaluating the legitimate exercise of politicalauthority through international law.

A former UN Secretary-General, Boutros Boutros-Ghali, accepts thatsovereignty, not democracy, has been the guiding principle of the inter-national law system, but concludes that a ‘fundamental conceptualtransformation may be under way: the democratization of the interna-tional system’. The practice of democracy in the international communityrequires that all states should be able to make their views heard andparticipate in decision-making processes. Democracy is based on ‘a spiritof dialogue’, a ‘readiness to discuss’, and a recognition that ‘decisionsarrived at democratically’ should be accepted.48 Dialogue, debate, andagreement are the principal means through which ‘the society of statesand the world community of peoples can express common will andachieve common progress.’49 In ‘We the peoples’, another formerSecretary-General, Kofi Anan, observes that ‘[b]etter governance meansgreater participation, coupled with accountability’, concluding that ‘theinternational public domain – including the United Nations – must be

during the last two decades. Such new norms have to be taken into consideration, and suchnew standards given proper weight, not only when States contemplate new activities butalso when continuing with activities begun in the past. This need to reconcile economicdevelopment with protection of the environment is aptly expressed in the concept ofsustainable development’.

47 Jürgen Habermas observes that ‘the role of political science is to describe the state ofinternational relations and that of jurisprudence is to give an account of the concept,validity, and content of international law, philosophy can try to clarify certain basicconceptual features of the development of law’: Jürgen Habermas, ‘Does the Constitution-alization of International Law still have a Chance?’, in The Divided West, edited andtranslated by Ciaran Cronin (Cambridge, Polity, 2006) 115, 117.

48 Boutros Boutros-Ghali, ‘Democracy: a Newly Recognized Imperative’ (1995) 1 GlobalGovernance 3, 9.

49 ibid at 11. In An Agenda for Peace, Boutros-Ghali concluded that democracy ‘within thefamily of nations means the application of its principles within the world Organizationitself. This requires the fullest consultation, participation and engagement of all States, largeand small, in the work of the Organization… Democracy at all levels is essential to attainpeace for a new era of prosperity and justice’: An Agenda for Peace, Report of theSecretary-General (17 June 1992) UN Doc A/47/277 at para 82. See also, ibid para 19:‘Respect for democratic principles at all levels of social existence is crucial: in communities,within States and within the community of States. Our constant duty should be to maintainthe integrity of each while finding a balanced design for all.’

12 Introduction



opened up further to the participation of the many actors whose contri-butions are essential to managing the path of globalization’.50

On 19 December 2006, the General Assembly adopted by 124 votes to56, with four abstentions, Resolution 61/160, ‘Promotion of a democraticand equitable international order’. The votes against included Australia,Canada, Japan, New Zealand, the United States of America, and Euro-pean Union states (including the United Kingdom). The reason was thedetermination that democracy ‘is not only a political concept but that italso has economic and social dimensions’, and that it is imperative for theinternational community ‘to ensure that globalization becomes a positiveforce for all the world’s people’, in particular those in developing statesand those with economies in transition.51 The resolution is intriguing inoutlining a vision of a democratic and equitable international order, towhich everyone is entitled.52 First, a democratic and equitable interna-tional order fosters the full realisation of human rights for all.53 Secondly,a democratic and equitable international order requires the realisation,inter alia, of the right of all peoples to self-determination; the right ofpeoples and nations to permanent sovereignty over their natural wealthand resources; the right of all persons and peoples to development; theright to an international economic order based on equal participation indecision-making processes; the promotion of transparent, democratic,just and accountable international institutions in all areas of cooperation,in particular through the implementation of the principles of full andequal participation in their respective decision-making mechanisms; andthe right to equitable participation of all, without any discrimination, indomestic and global decision-making.54 Needless to say, the resolution isnot binding in terms of (positive) international law.

Democracy becomes important as the international law order movesfrom an inter-state contractual paradigm to one of public (international)law governance, where the exercise of political authority is evaluatedagainst (international) public law concepts such as legality (expressed interms of intra and ultra vires) and reasonableness (ideas of proportional-ity, etc). In the modern age of uncertainty and disagreement, the exerciseof (legitimate) authority depends in large part on the recognition ofepistemic authority. At the level of domestic government, epistemicauthority is provided by democratic law-making procedures, with the

50 Kofi Anan, We the Peoples: the Role of the United Nations in the 21st Century (New York,United Nations, 2000) at 13.

51 Preamble, General Assembly Resolution 61/160, ‘Promotion of a democratic andequitable international order’ (adopted 19 December 2006).

52 ibid para 1.53 ibid para 2.54 ibid para 4.

The Democratic Legitimacy of International Law 13



review of government acts conditioned by ideas of democratic legiti-macy: legislative acts of national parliaments demand greater deferencethan executive orders, and courts are reluctant to review measures thathave been subject to extensive forms of democratic deliberation. Follow-ing the globalisation of regulatory functions, international organisationsand institutions must also make a claim to epistemic authority, ie to knowbetter, and it is not sufficient to simply assert a privileged position ofknowledge or authority. The argument developed here is that epistemicauthority is provided by deliberative procedures: inclusive, consensus-seeking processes of reasoned deliberation. Robert Keohane concludesthat seeking to move toward this ideal is crucial for establishing accept-able forms of global governance: ‘If all voices are heard, more objectionswill be expressed, deliberation may be enhanced and decisions morewidely accepted.’55 An international organisation is epistemically legiti-mate to the extent that it ‘has the capacity to generate and properly usenew information that can generate new policy responses, reduce bias instandards and implementation, and reduce the risk of opportunisticinterventions.’ To ensure that this is the case, the organisation must‘promote discussions in which all valid interests are represented, and it isequally important that there be provisions for critical re-evaluation,promoted by diversity.’56

There is an emerging recognition of the importance of deliberation tolegitimate forms of global governance. Anne-Marie Slaughter argues thatthe foundational norm of global governance should be ‘global delibera-tive equality’57: all persons ‘belong at the table’ in collective deliberationsabout common problems, and those affected, or their representatives, areentitled to participate in deliberations on the formation of global govern-ance norms.58 In this, she follows Michael Ignatieff, who concludes thatthe idea of global deliberative equality derives from the basic moralprecept that ‘our species is one, and each of the individuals who composeit is entitled to equal moral consideration.’59 It assumes progress towards‘a world of genuine moral equality among human beings[;] a world ofconflict, deliberation, argument, and contention.’60 Steven Bernstein con-tends that the democratic legitimacy of global governance could be

55 Robert Keohane, ‘The Contingent Legitimacy of Multilateralism’ (2006) GARNETWorking Paper No 09/06 at 5. See also Robert Keohane, ‘Governance in a PartiallyGlobalized World’ (2001) 95 American Political Science Review 1, 2.

56 ibid at 15.57 Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountabil-

ity of Global Government Networks’ (2004) 39 Government and Opposition 159, 175.58 ibid at 176.59 Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, New Jersey, Prince-

ton University Press, 2001) at 3–4.60 ibid at 95.

14 Introduction



improved by an emphasis on the deliberative aspects of democracy:‘accountability, transparency, access to participation, deliberation and,sometimes, fairness.’ As with domestic law systems, the legitimacy ofglobal norms rests on good arguments ‘made under conditions in whichfree and equal autonomous actors can challenge validity claims, seek areasoned communicative consensus about their understandings of thesituation and justifications for norms guiding their action, and are opento being persuaded.’61 The deliberative account is, as Karin Bäckstrandexplains, grounded in an idea that democracy is ‘more about delibera-tion, reasoned argument and public reflection than voting and aggrega-tion.’ Democratic legitimacy is provided by deliberation, rather thancompetitive elections to parliamentary bodies, although the possibilityfor this is not excluded.62 As Margaret Moore observes: all affectedshould be able to participate in democratic deliberations and decision-making should operate in accordance with the aims of deliberativedemocracy: ‘inclusion, political equality, and public reasoning.’63

THE STRUCTURE OF THE BOOK

Following this introduction, chapter one reviews the arguments that haveemerged in the literature around the putative democratic deficit thatresults from the exercise of political authority through (international) law.Globalisation and the globalisation of regulatory functions have led to awidespread perception that global law-making poses an ‘imminent andserious threat to democracy’,64 even if it is difficult to establish the natureand extent of that threat.65 José Alvarez makes the point that ‘[the] very

61 Steven Bernstein, ‘Legitimacy in Global Environmental Governance’ (2005) 1 Journal ofInternational Law and International Relations 139, 147.

62 Karin Bäckstrand, ‘Democratizing Global Environmental Governance? StakeholderDemocracy after the World Summit on Sustainable Development’ (2006) 12 European Journalof International Relations 467, 475. See also Anthony McGrew, ‘Models of TransnationalDemocracy’ in David Held and Anthony McGrew (eds), The Global Transformations reader,2nd edn (Cambridge, Polity, 2003) 500, 504.

63 Margaret Moore, ‘Globalization and Democratization: Institutional Design for GlobalInstitutions’ (2006) 37 Journal of Social Philosophy 21, 31.

64 Michael Goodhart, ‘Democracy, Globalization, and the Problem of the State’ (2001) 33Polity 527, 527. Peter Muchlinski observes that, outside of law, at least five approaches toglobalisation can be identified, including a political science approach that emphasises ‘anincreasingly supranational structure of governance both at the regional and multilaterallevels’: Peter Muchlinski, ‘Globalisation and Legal Research’ (2003) 37 International Lawyer221, 222–23. The other four are the geographical approach, examining the phenomenon interms of space and time; the economic approach, looking at cross-border economic activity;the business management approach, looking at the development of global production anddistribution chains by multi-national corporations; and the sociological approach, whichlooks at the ways that individuals and groups respond to the fact of globalisation.

65 ibid at 528.

The Structure of the Book 15



nature of international law makes it susceptible to “democratic” com-plaints.’66 The complaints fall into one of three types: a vertical complaintthat there is a democratic deficit where social, economic and politicalnorms are determined by international law (broadly defined); a horizon-tal complaint that results following any move away from the interna-tional law principle of the political equality of states (the position of thefive permanent members on the UN Security Council is the locus classi-cus); and an ideological complaint which argues that global governancenorms reflect a particular (Western) (liberal) discourse, functioning toembed the (contested) values of the free market and free trade and civiland political rights in the international law order. The deficit results froman absence of debate about and contestation of these policy preferences.

The world of positive law that emerged following the Westphaliansettlement provided a clear demarcation of regulatory tasks between thestate law system (the regulation of social, economic and political lifewithin the state) and international law (relationships between sover-eigns). Both forms relied on an expression of sovereign will for theadoption of ‘law’ norms, with ‘democratic legitimacy’ provided by theexistence of domestic democratic institutions (notably national parlia-ments) and the principle of sovereign equality and requirement ofconsent (representing the will of the people) for the adoption of interna-tional law norms. This two-track model of democratic self-determinationis no longer sufficient to explain the legitimacy and authority of lawnorms, which are now greatly intrusive in the regulation of matterspreviously within the domaine réservé of states and consent is no longerrequired for the establishment of international obligations opposable tothe state.

There is a recognition that the Westphalian political settlement thatdefined political authority in terms of state and international law hasbroken down, but no consensus on any meta-principle to replace sover-eignty as the organising principle for the allocation and exercise of(legitimate) authority. Chapter one evaluates the competing arguments.First, to the extent that international law is a threat to democracy, theprinciple of sovereignty should be strengthened to protect domesticdemocracies from the ‘authority’ of international law norms (the argu-ment of New Sovereigntists in the United States). Secondly, given thatdemocracy has only ever been imperfectly applied in the context of thestate, and given the need for global governance following the recognitionof collective action and coordination problems, the legitimate exercise of

66 José Alvarez, ‘Introducing the Themes [International law and democratic theory]’(2007) 38 Victoria University of Wellington Law Review 159, 160.

16 Introduction



(global) political authority requires the establishment of a global demo-cratic state. Thirdly, accepting the impossibility of establishing a globalstate, existing structures (the UN, the state, etc) should be conceptualisedin the form of a global federation, with the principle of democracy beingapplied to each political unit. Fourthly, there is a long tradition in liberalthought that argues for the need to establish a global confederation ofdemocratic states. The writings of Immanuel Kant (Perpetual peace) andJohn Rawls (Law of peoples) are examined here. Fifthly, to the extent thatglobalisation has produced (political) communities of fate not defined byreference to state boundaries, the model of cosmopolitan democratic lawdeveloped by David Held argues that effective citizen control overdecision-making processes requires the reconfiguration of politicalauthority to ensure that political communities, however organised, exer-cise democratic control over the global regulatory regimes that emerge inresponse to the processes of globalisation. Sixthly, moving from ideal-type theories to concrete proposals for the democratisation of extantinstitutions, arguments for the application of the principles of democracyto international institutions are examined. The parliamentary principleleads to proposals for the establishment of international assemblies,notably in relation to the UN; there is also a requirement to ensure thedevelopment of more accountability in global regulation, relying on thedemocratic principles of transparency, debate and public reason (includ-ing the requirement of public justification for the exercise of politicalauthority). A particular focus is the role of experts in global governance(governance by technocracies, as opposed to governance by the people).Finally, the chapter reviews the ways in which international civil societyis able to use communicative power (the power of words and arguments)to influence discourses and pressurise international institutions.

Having established the lack of consensus on arguments around thedemocratic legitimacy of international law, chapter two seeks to bringsome clarity to the debate by defining the idea of a deficit in the practiceof democracy and evaluating the problem from the perspective of theconstitutional democratic state. There is a deficit in the practice ofdemocracy where the people do not decide for themselves, by democraticpolitical procedures, those conditions of their lives that are politicallydecidable. The authority and autonomy of international law appearsproblematic for the practice of domestic democracy, but it is not clearwhat is lost in the absence of agreement on the meaning of democracy.The solution to any democratic deficit looks very different if we apply anelectoral or representative conception of democracy, rather than one thatrelies on a deliberative understanding, and as John Dryzek observes,thinking about democracy beyond the state becomes easier where




democracy is defined by reference to deliberation, rather than competi-tive elections.67 The work adopts the concept of deliberative democracydeveloped by Jürgen Habermas, who provides the most intellectuallyrigorous defence of the idea. The principle and practice of democracydepends on an implementation of the principle of discourse: ‘D: Justthose action norms are valid to which all possible affected persons couldagree as participants in rational discourses.’ The democratic state imagi-nes itself to be an association of free and equal persons, with the exerciseof legitimate political authority depending on the establishment of demo-cratic institutions and practices, and a public sphere that allows thepublic (those affected) to regard themselves as both subjects and authorsof law norms. The model outlined by Habermas becomes incoherent atthe level of global governance as there is no global public that defines itselfby reference to the exercise of global regulatory functions or that possessesthe capacity of (global) opinion- and will-formation (no demos, no democ-racy). There is a role for a reformed UN, but this is limited to upholdinginternational peace and security and the protection of human rights,although it is not clear what the justification is for exempting these globalgovernance functions from the requirement of democratic legitimacy.

The arguments developed in this book apply the insights provided bythe model of deliberative democracy to global regulatory norms (includ-ing public international law norms and forms of international govern-ance by non-state actors). The constitutional democracy might imagineitself to be an association of free and equal persons, but it does not defineits own boundaries (or demos) or the conditions for the exercise oflegitimate political authority (which are often defined by global lawnorms). The ideal of democratic self-determination must be reconciledwith the authority of international law, which constructs the politicalentity entitled to self-determination (the state) and limits the right byreference to global justice norms. Three possibilities present themselves:to abandon the idea of democracy beyond the state and look to otherbases of political legitimacy for global regulation; to ‘democratise’ globalgovernance; or evaluate the attitude that the democratic state shouldadopt to global regulatory norms.

The problem for democracy (and democratic self-determination) thatresults from the authority of international law is not a consequence of thecollapse of the Westphalian settlement, although it has been exacerbatedby recent developments in the reallocation of political authority to newsites. Chapter three examines the problem for democracy that resultsfrom the allocation of authority under the Westphalian settlement accord-ing to the principle of (internal and external) sovereignty: state and

67 John Dryzek, ‘Transnational Democracy’ (1999) 7 Journal of Political Philosophy 30, 44.

18 Introduction



international law. Democratic legitimacy (according to the standardargument) rests on the expression of sovereign consent to laws (bothinternally and externally): the state as (democratic) self-legislator. Theproblems for the argument are that the authority and content of interna-tional law norms does not depend on the will of the people, but theinterpretation provided by the discipline of international law (the rule ofinternational law). International law norms bind democratic states and,in contrast to constitutional and political law norms, they are not subjectto repeal or revision by the people (alone). The democratic legitimacy ofpublic international law rests on the (legitimate) authority of the interna-tional law order and the (democratic) idea of deliberative diplomacy, inwhich international law norms are agreed through processes of reasoneddeliberation in the international community.

The (sovereign) state and the international law order are social con-structs. Chapter four examines evidence that international law is under-going a process of reconstruction (or ‘constitutionalisation’), movingbeyond the proceduralist paradigm, based on sovereign consent, to apublic (international) law governance model that embraces substantivevalues. This is reflected in the normative hierarchy of international law(norms of jus cogens standing and obligations erga omnes) and acceptanceof the UN as an autonomous international organisation that operateswithout any requirement of consent by states subject to its authority. Thework consequently examines the emergence of the international constitu-tional order that reflects liberal democratic values of separation ofpowers (fragmentation), rule of law, and protection of human rights.

Chapter five evaluates the implications that arise from the emergenceof democracy as a principle of international law, reflected in normsconcerning rights of (political) self-determination, democracy and politi-cal participation; in the practice of states; and in the commitment todemocracy found in a number of international law instruments. Thediscipline of international law (reflected in the understandings of theinvisible college) has yet to conclude that there is a right to democracy orbreach of an international law obligation for states that are not demo-cratic. Democratic governments do, though, have the right to (legitimate)authority, reflected in the right of peoples to (political) self-determination, and the principle of democracy influences the interpreta-tion and application of international law norms, concerning, for example,the right of peoples to self-determination/secession. The clearest exam-ple relates to the practice of forced democratic regime change (notably inthe cases of Afghanistan and Iraq), providing further evidence thatinternational law functions to construct democratic states.

The focus of the book then turns from the inter-state system to thecomplexities and problems for democracy that arise from the globalisa-tion and fragmentation of governance functions, and the emergence of




non-state actors as important producers of global norms framed in termsof law. Chapter six demonstrates the divergent nature of internationalgovernance by non-state actors, with a particular focus on the activities ofthe UN Security Council, Basel Committee on Banking Supervision,World Commission on Dams, and private international governancemechanisms such as the Forest Stewardship Council and Fairtrade Label-ling Organisation. These non-state actors have emerged as global regula-tors without the clear jurisdictional boundaries or institutions ofgovernment (legislatures and courts) associated with the traditionalsource of regulatory authority, the territorial state. Regulatory norms areestablished by non-state actors without the link to validity provided byan expression of sovereign (and democratic) will.

Not all forms of global governance are framed in terms of law. The(political) decision to frame global norms in terms of law provides a rolefor (public international) lawyers and for the application of the distinc-tive methods for the interpretation of (international) law norms. In casesof conflict between autonomous systems of law (including state lawsystems), complex questions of jurisprudence emerge; in cases of conflictbetween legal orders and other normative orders, law (always) prevails.The first requirement is to develop an analytical concept of (interna-tional) law in order to determine which conflicts are problematic from theperspective of the exercise of authority through ‘law’. Drawing on theworks of Niklas Luhmann and Gunther Teubner, Brian Tamanaha, andJoseph Raz, chapter seven concludes that law is a system of communica-tions framed in terms of law, ie coded legal/illegal, and issued by anauthority to subjects. The (legitimate) exercise of authority is conditionedby respect for the cardinal principles of deliberative democracy: equalityand public reason. Legitimate authority (and there is no such thing asillegitimate authority) depends on the exercise of authority in accordancewith the right reasons that apply to the subjects of the authority regime:the legitimate exercise of authority depends on an institutionalisation ofthe (deliberative) principles of equality and public reason. The exercise of(legitimate) political authority by non-state actors requires democraticforms of decision-making that take into account the interests and per-spectives of those subject to the international governance regime. (Theargument should not be understood as a requirement for the introductionof competitive elections to a representative assembly in relation to globalregulators.)

Traditional forms of state and international law enjoy presumptivepolitical authority, the doctrine of the rule of law. In the modern age, statelaw relies on forms of democratic legitimacy for its authority, inter-statelaw on a combination of contractual and democratic legitimacy, pacta suntservanda and the process of rational deliberation that precedes the reach-ing of agreement. The revised concept of law developed here allows for

20 Introduction



the application of the principle of (deliberative) democracy to non-statesystems of law. Chapter eight outlines the requirements and addressesHabermas’ objections to the application of deliberative democracybeyond the state, concluding that a political community is constitutedand defined by the exercise of political authority. The exercise of politicalauthority constitutes the demos; democratic practices legitimise the exer-cise of political authority. Those subjected to the law provide the ‘who’ ofglobal political justice (within each autonomous law order), allowing thedevelopment of a discourse of global deliberative politics and argumentsaround the ‘what’ of (political) justice.

In evaluating the democratic legitimacy of global governance, the workargues that the concept of deliberative democracy can be applied to thestate system, the systems of public international law, and new forms ofinternational governance by non-state actors. The problem of democracyfollowing the globalisation and fragmentation of governance functionsmight not be a deficit of democracy, but a surfeit of competing andconflicting visions of (democratic) political truth, defined in terms ofright policy, or (political) justice. Chapter nine draws on the literature onlegal pluralism to conclude that there is no meta-perspective for evaluat-ing the democratic legitimacy of international law (broadly defined toinclude all forms of global governance). In conditions of global legalpluralism, there may be multiple versions of (democratic) political truth.Returning to the perspective of the constitutional democracy, the legiti-macy of global governance must be constructed from the perspective ofthe state law system in accordance with the values of deliberativedemocracy. The work recognises that state law systems will make strate-gic decisions to comply with international law norms and the continuingrelevance of pacta sunt servanda (promises must be kept), but concludesthat a democratic state should evaluate global law norms by reference tothe deliberative ideal: legal norms are valid where all subject to themcould agree to the norms through discourses. The (legitimate) authorityof law depends on the establishment of norms that promote the rightreasons that apply to the subjects of law norms, and in conditions ofcomplexity, uncertainty and disagreement, right reasons can only beestablished through democratic procedures. The construction of a multi-verse of democratic visions of global governance orders by democraticstates will have the practical consequence of democratising the interna-tional law order, providing democratic legitimacy for international law.The book concludes with some reflections on the implications of theanalysis for international law as a professional discipline.




1

The Democratic Deficit in GlobalGovernance

THIS CHAPTER EXPLORES the arguments around the putativedemocratic deficit in global governance in order to clarify theissues and evaluate the dominant modes of thinking about

democracy beyond the state. Complaints that there is a democratic deficitin international law fall into one of a number of categories: that in theabsence of a global state it makes no sense to talk about global democ-racy; to the extent that international law operates in a way that does notrespect the principle of sovereign equality there is a democratic deficit;that international organisations ‘legislate’ in a way that is not democratic;and that the participation of non-democracies in the international lawsystem undermines the democratic legitimacy of international lawnorms. Why, for example, should citizens in democratic states accept the‘soft’ resolutions adopted by the United Nations (UN) General Assemblywith the support of authoritarian regimes, or international treaties thatallow for the participation of non-democracies?1

The work follows José Alvarez in dividing the complaints into threetypes: vertical, horizontal and ideological.2 The vertical complaint con-cerns the relationship between global governance institutions and indi-vidual citizens; the horizontal complaint applies to relations between

1 See John McGinnis and Ilya Somin, ‘Should International Law be Part of our Law?’(2007) 59 Stanford Law Review 1175, 1204–05. Elsewhere, McGinnis observes in relation to thedevelopment of international human rights norms that, given the participation of totalitarianstates such as the Soviet Union and People’s Republic of China, ‘[o]ne can hardly be confidentthat the same provisions would have emerged absent the influence of those “evil empire[s].”’John McGinnis, ‘The Comparative Disadvantage of Customary International Law’ (2006) 30Harvard Journal of Law and Public Policy 7, 10. See also John McGinnis and Ilya Somin,‘Democracy and International Human Rights Law’ (2009) 84 Notre Dame Law Review 1739.

2 José Alvarez, ‘Introducing the Themes [International law and democratic theory]’(2007) 38 Victoria University of Wellington Law Review 159, 159. A different typology isprovided by Charnovitz: international organisations are not run in a democratic mannervis-à-vis participating states, for example in relation to the United Nations Security Council;international laws and treaties do not sufficiently mandate democracy within each state;and international organisations are not run in a democratic manner vis-à-vis the public:Steve Charnovitz, ‘The Emergence of Democratic Participation in Global Governance (Paris,1919)’ (2003) 10 Indiana Journal of Global Legal Studies 45, 48.

Columns Design Ltd / Job: Wheatley / Division: 01_Thearguments /Pg. Position: 1 / Date: 26/3


states (and between states and international organisations); whilst theideological complaint concerns the fact that global governance functionsto promote certain (liberal) values. Following an analysis of the formsthat the democratic deficit critique has taken in the literature, the workthen examines the responses that have emerged: that domestic democ-racy is protected by an affirmation of the principle of state sovereignty;that global democracy requires a global democratic state; that we shouldimagine the international community as a global democratic federation,with the principle of democracy applied at each level; that (followingImmanuel Kant and John Rawls) global democratic law can only beachieved through the establishment of a democratic peace; that theglobalisation and fragmentation of global regulatory functions must bereconfigured in accordance with the idea of cosmopolitan democraticlaw; that there is a need to democratise international institutions, notablythrough the greater use of international parliamentary bodies andaccountability mechanisms; and finally, the need to challenge the com-municative power of dominant global discourses by allowing the effec-tive participation of international non-governmental organisations andother civil society actors in the practice of global governance.

THE ‘VERTICAL’ COMPLAINT

The first complaint concerns the relationship between international insti-tutions and citizens. The ‘vertical’ complaint can be further divided: first,that the exercise of governance functions by non-democratic institutionsconstitutes a loss for democracy; second, that the globalisation andfragmentation of law-making prerogatives provides opportunities forpolitical actors to promote the adoption of law norms that do not enjoydomestic support; and finally, that all liberal democracies share, at somelevel, a commitment to human rights. The introduction of measures byinternational organisations that do not respect minimum human rightsstandards is a loss for the idea of democratic legitimacy.

In relation to the first point, it is evident that international law does notreplicate in any meaningful way domestic democratic systems of govern-ment. Most significantly, there is no international parliament, with theconsequence, as Alvarez observes, that international law ‘lack the ties todemocratically elected polities that legitimise law within democracies’.Nor do international law-making processes appear to possess othercomponents associated with constitutional democracies, such as the

The ‘Vertical’ Complaint 23



separation of powers.3 The individual citizen is largely absent from theinternational law system, which is characterised (or caricatured) by theidea of an equal voice and vote for sovereign states (only), a position thatis inconsistent with liberal political theory, which regards the individualas the ‘primary normative unit’.4 John McGinnis observes that interna-tional law represents agreement between states, not peoples, ‘and thusthere is much less reason to think it should trump or even cast doubt onthe judgments reached by democratic deliberations in particularnations’.5 On this understanding, the solution to the problem for democ-racy is provided by a re-affirmation of the principle of sovereignty, whichrequires the consent of states to any emergent (international law) norm.The alternative, consistent with liberal theory, would be to ‘inject thevoice of individual citizens into the exclusively state-based structures’ ofinternational law.6 The argument follows social contract theory, whichdemands evidence of real or hypothetical consent by those subject to thelaw to establish legitimate political authority. The process of decolonisa-tion, ie the dismantling of non-contiguous empires, gave voice and voteto a greater number of individuals through the creation of new states(from around 60 to almost 200 in the period of the UN), but significantgroups remain (formally) excluded from the processes of internationallaw-making.7 Individuals are represented through state governmentsand the position of the government will not always correspond with thatof the citizen. Moreover, an individual that seeks to influence the devel-opment of international law norms must influence not only her owngovernment, but also other governments (without any right of access toor influence on domestic political debates in other states as rights ofpolitical participation are limited to citizens).8

3 ibid at 160. For ‘classical liberals, a separation of powers was the centrepiece ofmodern constitutionalism, a necessary condition of liberty’: Giandomenico Majone, ‘Del-egation of Regulatory Powers in a Mixed Polity’ (2002) 8 European Law Journal 319, 323.

4 Fernando Téson, ‘The Kantian Theory of International Law’ (1992) 92 Columbia LawReview 53, 54.

5 John McGinnis, ‘Foreign to our Constitution’ (2006) 100 Northwestern University LawReview 303, 313.

6 Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95American Journal of International Law 489, 533.

7 The recognition of the rights of national minorities, minorities, and indigenouspeoples, and introduction of human rights mechanisms has given a voice to some in theinternational law system. A notable development was the adoption of the UN Declarationon the Rights of Indigenous Peoples. After more than a decade of dialogue involvingrepresentatives of indigenous peoples, the UN General Assembly adopted Resolution61/295, ‘The United Nations Declaration on the Rights of Indigenous Peoples’ (13 Septem-ber 2007). The participation of indigenous peoples was regarded as significant, with therepresentative of Peru observing in the General Assembly that it lent ‘unquestionablelegitimacy to the document’: UN Doc A/61/PV.107 (13 September 2007) 10.

8 The role of international non-governmental organisations can be seen to amplify thevoice of the individual in global politics, and influence government officials of other states

24 The Democratic Deficit in Global Governance



Secondly, in relation to the vertical complaint, the fact that interna-tional law is made by the executive branch of government and therequirement that states comply with international law obligationsempowers the executive at the expense of the legislative and judicialbranches of domestic government, reducing the effectiveness of anychecks and balances on power.9 During the Westphalian epoch of inter-national law,10 global governance was the domain of states, which spokewith a single voice, that of the executive.11 The position is articulatedclearly in the Vienna Convention on the Law of Treaties: heads of stateand government, and ministers for foreign affairs have, by virtue of theirfunction, full powers to bind the state at the level of international law.12

Any international text agreed by senior members of the executive islegally binding and must be performed in good faith.13 The state may notinvoke domestic law to justify a failure to perform a treaty obligation,14

unless consent was expressed in manifest violation of a provision ofdomestic law regarding competence to conclude treaties and concerned arule of internal law of fundamental importance.15 The subsequent objec-tion of a national parliament, popular opposition or change of govern-ment, or the fact that an international agreement conflicts with aprovision of the national constitution, are irrelevant from the perspectiveof international law.16 In Case of Certain German Interests in Polish UpperSilesia, the Permanent Court of International Justice observed: ‘From thestandpoint of International Law and of the Court which is its organ,municipal laws are merely facts which express the will and constitute theactivities of States.’17

Domestic executives may welcome the (domestic) democratic deficitthat results from the globalisation of regulatory functions and may preferthe seemingly more straightforward processes of international law-making to those of domestic law, which often requires extensive pro-cesses of consultation and justification, and in many cases positive

and international bureaucrats that she had no opportunity to vote for or exercise (direct)influence over: Steve Charnovitz, ‘Nongovernmental Organizations and International Law’(2006) 100 American Journal of International Law 348, fn 134.

9 Alvarez (n 2) at 160.10 cf Wilhelm Grewe, The Epochs of International Law, trans by Michael Byers (Berlin,

Walter de Gruyter, 2000).11 Thomas M. Franck, Fairness in International Law and Institutions (Oxford, Clarendon

Press, 1995) 479–80.12 Vienna Convention on the Law of Treaties 1155 UNTS 331 art 7(2)(a).13 ibid art 26.14 ibid art 27.15 ibid art 46(1).16 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig

Territory (1931) PCIJ Series A/B No 44, 24.17 Case of Certain German Interests in Polish Upper Silesia (1926) PCIJ, Series A No 7, 19.




parliamentary support.18 As Keohane, Macedo and Moravcsik observe,globalised governance allows domestic and international elites ‘to bypassthe onerous processes of persuasion and consensus-seeking that democ-racy requires’.19 One example is Security Council (SC) Resolution 1624(2005), which calls on all states to prohibit by law incitement to committerrorist acts.20 The resolution was passed at a summit meeting attendedby British Prime Minister Tony Blair, who was a key actor in its adoption.Before arriving in New York for the Security Council meeting, he hadsignalled the British Government’s desire to criminalise the glorificationof terrorism as one part of the response to the bombings in London on 7July 2005. Once SC Resolution 1624 was adopted, the British Governmentrelied on the resolution to justify the tightening of domestic laws onincitement through the adoption of s 1 of the Terrorism Act 2006.21 It isnot clear that the measure would have enjoyed sufficient domesticpolitical and popular support absent the (apparent) requirement ininternational law to introduce the legislation.

The globalisation of governance functions does not only enhance theexecutive. Where international law norms (broadly defined) are ‘domes-ticated’ by national courts without the positive support of the people, ortheir representatives, there is a loss for democracy. In addition to citingthe jurisprudence of other constitutional courts on questions of social andpolitical controversy,22 constitutional courts are increasingly willing torely on international law norms and the judgments and opinions ofinternational law courts and tribunals that do not formally bind at thelevel of domestic law (until adopted by the court). Mark Tushnet makesthe point that where judges on domestic courts have the authority tomake and re-make constitutional law, the ‘separation-of-powers con-cerns’ about them inappropriately domesticating international law

18 Aida Torres Pérez, ‘The Internationalization of Lawmaking Processes: Constrainingor Empowering the Executive?’ (2006) 14 Tulsa Journal of Comparative and International Law 1,1–2. See also David Zaring, ‘International Law by Other Means: the Twilight Existence ofInternational Financial Regulatory Organizations’ (1998) 33 Texas International Law Journal281, 323.

19 Robert Keohane, Stephen Macedo and Andrew Moravcsik, ‘Democracy EnhancingMultilateralism’ (2009) 63 International Organization 1, 3.

20 Security Council (SC) Res 1624 (2005) para 1.21 Ian Cram, Terror and the War on Dissent (Berlin, Springer,, 2009) 39 – 40. See also Clive

Walker, ‘The Legal Definition of “Terrorism” in United Kingdom Law and Beyond’ (2007)Public Law 331, 333.

22 Anne-Marie Slaughter argues that national constitutional courts are involved in aform of collective deliberation through mutual citation and direct communications, leadingto a ‘nascent global jurisprudence’ on certain issues: Anne-Marie Slaughter, ‘A Brave NewJudicial World’ in Michael Ignatieff (ed), American Exceptionalism and Human Rights (Prince-ton, New Jersey, Princeton University Press, 2005) 277, 278.




norms ‘are no different from the separation-of-powers concerns associ-ated with their power to make law generally’.23 The focus for concernsaround the (domestic) counter-majoritarian difficulty does not lie at thelevel of international law.

Civil society actors have also sought to take advantage of the shift inpolicy-making to global institutions. Finnemore and Sikkink identify aphenomenon whereby ‘norm entrepreneurs’ who have failed to havetheir position accepted in domestic politics seek to internationalise apolicy issue, with the objective of subsequently using internationalnorms to strengthen their position in domestic policy debates.24 Civilsociety actors who have been unsuccessful at the domestic level areprovided, in John Bolton’s phraseology, with a ‘second bite at theapple’.25 A ‘boomerang’ effect is observed, whereby domestic actorsby-pass national debates to appeal to actors in the international commu-nity to bring pressure on the government.26 Simultaneously principledand strategic actors, norm entrepreneurs seek to bring new ideas, norms,and discourses into policy debates at the global level.27 The first step is toattempt to convince a critical mass of states to embrace new norms. Thesestates are the norm leaders. The second stage is characterised by adynamic of imitation, as the norm leaders attempt to socialise other statesto become norm followers. The norm ‘cascades’ through the ‘populationof states’, the result of a pressure for conformity and a desire to enhanceinternational legitimation. Following this, ‘norm internalization occurs;norms acquire a taken-for-granted quality and are no longer a matter ofbroad public debate’. The first two stages are divided by a ‘tipping point’,at which ‘a critical mass of relevant state actors adopt the norm’.28 Priorto that point, little normative change occurs without significant domesticmovements supporting such change. After the tipping point, more coun-tries begin to adopt new norms more rapidly even without domestic

23 Mark Tushnet, ‘The Inevitable Globalization of Constitutional Law’ Harvard PublicLaw Working Paper No 09–06 (SSRN) (Hague Institute for the Internationalization of Law,December 18, 2008) fn 56.

24 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and PoliticalChange’ (1998) 52 International Organization 887, 893.

25 John Bolton, ‘Should we take Global Governance Seriously?’ (2000) 1 Chicago Journalof International Law 205, 217. On the effectiveness of international non-governmentalorganisations, see Alan Boyle and Christine Chinkin, The Making of International Law(Oxford, Oxford University Press, 2007) 93; also Eric Posner, ‘International Law and theDisaggregated State’ (2005) 32 Florida State University Law Review 797, 816.

26 Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human RightsNorms into Domestic Practices: Introduction’ in Thomas Risse et al (eds), The Power ofHuman Rights: International Norms and Domestic Change (Cambridge, Cambridge UniversityPress, 1999) 1, 18.

27 Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks inInternational Politics (Ithaca, New York; London, Cornell University Press, 1998) 3.

28 Finnemore and Sikkink (n 24) at 895.




pressure for change: the new norm is accepted as (re-)defining ‘appropri-ate behavior for the identity called “state” or some relevant subset ofstates (such as a “liberal” state or a European state)’.29 In relation toapartheid South Africa, Audie Klotz argues that the international lawnorm concerning racial discrimination played a crucial role in definingthe identity and interests of states and international organisations, andshared understandings regarding illegitimate behaviour and policies.30

Judith Kelly argues that the global norm that elections should be free andfair and subject to external monitoring emerged as the result of anevolving set of norms related to democracy, elections and human rights,with the ‘tipping point’ occurring at the end of the Cold War. As moreand more transitioning countries sought legitimacy through monitoring,the cost of refusing monitors increased, leading to the rapid spread, orcascade, of the norm of election monitoring.31

Thirdly, in relation to the vertical complaint, which concerns relationsbetween international law and citizens, there may be a ‘substantive’democratic deficit where international organisations fail to recognise andprotect certain (human) rights that are assumed to be inherent in thepractice of democracy. The sanctions regime of the UN Security Councilis a particular source of concern here,32 with Bogdandy et al making thepoint that the listing of terrorist suspects by the Security Council ‘pro-vides the most dramatic example of governance that would be hardlypermissible at the domestic level’.33 The conclusion depends on theconception of democracy applied by the critical observer, and the properbalance between security and liberty that all democratic societies arerequired to achieve when faced with a determined terrorist organisation.It is not necessarily a conclusion that all good faith persons committed todemocracy would share, ie it is not necessarily inherent in the idea ofdemocracy.

THE ‘HORIZONTAL’ COMPLAINT

The horizontal complaint identified by Alvarez concerns relationsbetween states. Former UN Secretary-General Kofi Anan writes thatdemocracy at the global level is important ‘because it affects relations

29 ibid at 902.30 Audie Klotz, Norms in International Relations: the Struggle against Apartheid (Ithaca, NY;

London: Cornell University Press, 1995) 9.31 Judith Kelly, ‘Assessing the Complex Evolution of Norms: the Rise of International

Election Monitoring’ (2008) 62 International Organization 221.32 Alvarez (n 2) at 160–61.33 Armin von Bogdandy et al, ‘Developing the Publicness of Public International Law:

Towards a Legal Framework for Global Governance Activities’ (2008) 9(11) German LawJournal 1375, 1379–80.




among states’.34 Referring to the idea of sovereign equality, reflected inart 2(1) of the UN Charter, Anan argues that small and powerless statesfeel ‘less unequal’ at the UN than at other international organisations,such as the World Bank, International Monetary Fund (IMF), etc,although he concedes that the Security Council would be more ‘demo-cratic’ if it were ‘more representative of the membership as a whole’.35

The argument is that international law is democratically illegitimate ‘tothe extent it fails to treat sovereigns as horizontal equals’.36 Alvarezhimself has argued that a democratic deficit exists wherever internationalorganisations use weighted forms of voting that elevate the rights ofcertain states over others.37 The locus classicus is the UN Security Council,which provides a right of veto for the five permanent members (P-5), butnot others, with membership limited to the P-5 and 10 elected UNMember States.38 As constituted on 3 April 2009, the members of the UNSecurity Council represented (directly) some 2.3 billion persons, or 35 percent of the world’s population. Other examples include the IMF, wherevoting is determined by an assigned quota, and World Bank, where it isdetermined by the number of shares to which the state has subscribed,giving the United States and its Western Allies ‘a clear preponderance inthe two institutions’.39

The argument equates the sovereignty and equality of states with thepolitical equality of citizens: one person, one vote, one state, one vote, etc.Democracy is understood as a system of collective decision-making inwhich any move away from the principle of political equality results in adeficit in the practice of democracy. Tony Carty, for example, argues thatinstitutions such as the IMF should be ‘democratically governed’,40 andthat ‘a regime of voting which approached “one state, one vote” wouldmore closely correspond to the wishes of the majority of mankind[,] and,hence, be more consistent with the notions of political democracy preva-lent in the West.’41 Carty confuses and conflates two arguments: that theagreement of a majority of states would accord democratic legitimacy

34 Kofi Anan, ‘Democracy as a Universal Issue’ (2002) 8 Global Governance 135, 139.35 ibid at 140 (emphasis in original).36 Alvarez (n 2) at 162.37 José E Alvarez, ‘International Organizations: Then and Now’ (2006) 100 American

Journal of International Law 324, 341.38 UN Charter art 27(3).39 Christian Tomuschat, ‘Multilateralism in an Age of US Hegemony’ in Ronald St John

Macdonald and Douglas Johnston (eds), Towards World Constitutionalism: Issues in the LegalOrdering of the World Community (Leiden, Martinus Nijhoff Publishers, 2005) 31, 47. Inrelation to the reform agenda of the IMF, see ‘International Monetary Fund, Reform of IMFQuotas and Voice: Responding to Changes in the Global Economy’ (2008). Available:www.imf.org/external/np/exr/ib/2007/041307.htm (last visited 15 January 2010).

40 Anthony Carty, ‘Liberal Economic Rhetoric as an Obstacle to the Democratization ofthe World Economy’ (1998) 98 Ethics 742, 748.

41 ibid at 756 (emphasis added).

The ‘Horizontal’ Complaint 29



and that a principle of aggregative legitimacy can be applied to relationsbetween states. In relation to the first, the UN General Assembly is themost representative international institution (in terms of the representa-tion of states), yet a simple majority of Member States, comprising thesmallest in terms of population, represents less than five per cent of theworld’s population.42 By contrast, a ‘majority of mankind’ can beachieved by aggregating the populations of just six states, around threeper cent of the total number: the People’s Republic of China, India, theUnited States of America, Indonesia, Brazil, and Pakistan.

The principle of sovereign equality, as Steve Charnovitz observes, is atodds with that of political equality. Democracy is concerned with popu-lar rule by the people based on equal rights; what is true for a communityof persons is not necessarily true for the international community ofstates: ‘giving China and San Tome and Principe an equal say wouldseem to contradict the principle of “one man one vote,” in view of thehuge population disparity between the two countries’. The politicalequality of citizens is not analogous to sovereign equality: ‘one state, onevote’ does not follow logically from ‘one person, one vote’.43 Sovereignequality is essentially a contractual principle, precluding the impositionof international law obligations in the absence of state consent; theprinciple of political equality of citizens provides one part of the justifi-cation for the exercise of coercive political authority, even in the absenceof consent. As Joseph Weiler observes, the idea that an international lawnorm cannot emerge without the consent of all states bound by it ‘soundsvery much like democracy at the international level. But, in fact and inlaw, in theory and in practice, this is part of a very different vocabulary,namely that of sovereignty and sovereign equality.’ In fact it is ‘theopposite of any functioning notion of democracy which is based on theopposite premise[:] that a majority within a collectivity, a demos, has theauthority to bind its individual members, even against their will’.44 (Ofcourse this is only one understanding of democracy.) The requirement ofconsent to international law norms (at least in terms of treaty norms andthe persistent objector rule in relation to customary international law)provides one part of the answer to the problem of democracy beyond thestate, but a complete solution must recognise the existence of autono-mous law orders in global governance; the importance of reasoneddeliberation in inter-state communications; and fact that states are not

42 John Jackson, ‘Sovereignty-modern: a New Approach to an Outdated Concept’ (2003)97 American Journal of International Law 782, fn 60.

43 Steve Charnovitz, ‘The Emergence of Democratic Participation in Global Governance(Paris, 1919)’ (2003) 10 Indiana Journal of Global Legal Studies 45, 49.

44 JHH Weiler, ‘The Geology of International Law-governance, Democracy and Legiti-macy’ (2004) 64 ZaöRV (Heidleberg Journal of International Law) 547, 548.




moral or rational beings with homogenous identities (indeed democraticminorities within the state may prefer the international law norm to theposition of ‘their’ government).

THE ‘IDEOLOGICAL’ COMPLAINT

The ideological complaint contends that a democratic deficit resultswhere global institutions pursue certain ‘ideological preferences’ at theexpense of others.45 Barnett and Finnemore conclude that internationalorganisations promote a particular, ‘mostly liberal, moral vision in worldpolitics’,46 referring to the ‘substantively liberal character’ of interna-tional organisations, which have in the main been established by Westernliberal states ‘and are designed to promote liberal values’, although theyare themselves ‘emphatically not democratic’.47 Barnett and Finnemorerefer to an idea of ‘undemocratic liberalism’, whereby internationalorganisations use undemocratic procedures in the promotion of humanrights and economic development through a free market and free trade.48

The imposition of global norms is justified on the basis that it preventscitizens from making wrong choices, substituting choices that the peoplewould have made if they were sufficiently informed and rational, orimposing policies that domestic governments would have adopted werethey not beholden to special interest groups. Kal Raustiala argues that byremoving decisions from the realm of domestic politics, internationaleconomic institutions can become ‘saviors of sovereignty because theyunshackle policymaking from the illegitimate power of concentratedspecial interest groups’. International economic institutions promote theestablishment of policies that the people would choose if they were not‘organizationally unprivileged and rationally ignorant’.49

The claims of global technocrats to ‘know better’ would be acceptableonly if the policy issues under consideration were not political, ie if theywere not subject to disagreement by reasonable persons. Political debatesare concerned with arguments around conflicting visions for organisingsociety, and according to the democratic model of political legitimacy, thepolitical constitution and conceptions of justice must be agreed by, or(ultimately) subject to, democratic procedures. Jürgen Habermas writes

45 Alvarez, (n 2) at 163.46 Michael Barnett and Martha Finnemore, Rules for the World: International Organizations

in Global Politics (Ithaca, Cornell University Press, 2004) 165.47 ibid at 15.48 ibid at 172.49 Kal Raustiala, ‘Rethinking the Sovereignty Debate in International Economic Law’

(2003) 6 Journal of International Economic Law 841, 865. See also Anne-Marie Slaughter andWilliam Burke-White, ‘The Future of International Law is Domestic (or, the European Wayof Law)’ (2006) 47 Harvard International Law Journal 327.

The ‘Ideological’ Complaint 31



that a shift from domestic democratic government to global regulatoryexpertise would be acceptable if we were able to conclude that the liberaleconomic world order was the only appropriate model for organisingsociety (and even then we would have to agree on the particular model ofliberal economic order); then there would there be ‘no further need in theprocess itself to justify the promotion of a worldwide deregulation ofmarkets against government intervention’.50 This is manifestly not thecase in the politics of world society.

There is little doubt that international organisations pursue theirrespective policy objectives on the (self-)understanding that they areengaged in welfare-enhancing activities. The website of the World Bank,under the heading, ‘Your concerns are the World Bank’s priorities’,proclaims that ‘our mission is simple: to help reduce poverty’. It thenmakes a number of claims about the ways in which the Bank is helpingthe poorest countries and peoples.51 Any deficit in the practice of democ-racy beyond the state may claim to be compensated for by the pursuit ofglobal justice ends (a globalised economy, development of good govern-ance practices, protection of human rights, eradication of hunger, povertyand preventable disease, protection of the environment, etc), but these donot reflect agreed principles of global justice, and it is difficult to acceptthat these subjective and contestable values should override claims of(domestic) democratic self-determination, justifying the imposition ofglobal law norms.

For a number of writers, the idea of justice is only possible where thereare coercive institutions of government (cf the idea of global governance).Thomas Christiano argues that the state is a necessary instrument forestablishing justice. The state adjudicates disagreements about justice bydefining rights and responsibilities, and establishes the framework ofgovernment that allows for the coercive enforcement of agreed (justice)norms and a system of taxation that allows for the possibility of distribu-tive justice. The idea of justice is established in law through democraticprocedures by members of the political community, and protectedthrough the adjudication of disagreements about justice norms in animpartial manner. The state is the only institution that has the capacity toachieve political justice (understood in this way): it is the only institutionthat can reliably and impartially enforce legal rights and evaluate claimsof injustice through the establishment of formal judicial bodies. The stateprovides the context in which individuals can make ‘authoritative collec-tive decisions’ about the nature and requirements of justice through liberal

50 Jürgen Habermas, ‘A Political Constitution for the Pluralist World Society?’ (2007) 34Journal of Chinese Philosophy 331, 341.

51 http://digitalmedia.worldbank.org/tenthings/en/4.php (last visited 29 June 2009).




democratic procedures (required by democratic theory).52 In the absenceof universal conceptions of justice acceptable to all persons (a conditionof reasonable pluralism), the content of justice must be worked outthrough liberal democratic procedures. No global institutions enjoy thelegislative legitimacy of the liberal democratic state. The most powerfulof these, the Security Council, World Trade Organization, IMF and WorldBank are ‘deeply inegalitarian’.53 They do not legislate in ways that areresponsive to the interests of those affected by their governance activitiesand do not apply international law norms in an impartial and even-handed manner, because they are dominated by a small number ofpowerful states. For these reasons international institutions cannot per-form the function of ‘carefully and impartially rendering [political]justice’.54

Christiano argues that it makes no sense to talk about justice absentcoercive (governmental) structures capable of rendering justice and fol-lows John Rawls in rejecting the traditional arguments of (moral) phi-losophy that there is a single reasonable and rational position on justicethat has been or (ideally) can be articulated, and which holds that‘institutions are justifiable to the extent that they effectively promote thatgood’.55 Concepts of (political) justice must be worked through demo-cratic procedures in accordance with the principle of public reason. In theabsence of democracy at the global level, it makes no sense to refer tosubstantive concepts of global (political) justice, which must instead belimited to justice issues immanent in the concept of law and the exerciseof (global) regulatory authority though law.

THE DEMOCRATISATION OF GLOBAL GOVERNANCE

The complaints against international law result from the following, aloneor in combination: that the shift in the locus of law-making to global sitesinhibits the ability of citizens to exercise meaningful control over thedevelopment of international law norms; the protection that sovereigntyaffords the right of the people to democratic self-determination is under-mined to the extent that the international system moves away from theprinciple of sovereign equality; and dominant global discourses inhibitthe possibilities of citizens articulating and establishing other visions ofsocial existence. The concern for the practice of democracy is complicated

52 Thomas Christiano, ‘A Democratic Theory of Territory and Some Puzzles aboutGlobal Democracy’ (2006) 37 Journal of Social Philosophy 81, 92 (emphasis in original).

53 ibid at 94.54 ibid at 96.55 John Rawls, Political Liberalism (New York; Chichester, Columbia University Press,

2005) 134.

The Democratisation of Global Governance 33



by the exercise of regulatory functions at different levels (state, regionaland global), and the absence of an overarching constitutional settlementthat frames the exercise of political authority. In order to make sense ofthe democratic deficit and requirements for the democratisation of globalgovernance, there is a need to evaluate the contending meta-principlesfor the allocation and exercise of political authority following the declineof the Westphalian settlement. The dominant arguments are examined inturn: the need to ensure the protection of democracy through the affirma-tion of sovereignty; the establishment of a global democratic state; theimagining of the extant system as a global democratic federation; theestablishment of a covenant of peace between democratic nations; theapplication of the principle of cosmopolitan democratic law to thesystems of fragmented authority; the democratisation of internationalorganisations, principally through the application of the parliamentaryprinciple of democracy; the enhancement of accountability in relation tothe exercise of political authority by international organisations; and theenhancing of the role of international non-governmental organisations(NGOs) and other civil society actors in challenging dominant globaldiscourses.

Reaffirming Sovereignty

Previously, the exercise of political authority was organised in terms of(vertical) state and (horizontal) public international law. The exercise ofpolitical authority was justified by reference to the idea of (‘Westphalian’)sovereignty, which explained both the validity of state and internationallaw norms, and the idea of political legitimacy, justified in terms of theexercise of sovereign authority by a democratic Rechtsstaat (state bound bythe rule of law). The exercise of legitimate political authority was condi-tioned by an expression of sovereign consent (in accordance with the will ofthe people) at both the domestic and international level.56 The people of ademocratic state were only subject to those internal (state) and external(international) laws ‘willed’ by the state (the state as ‘self-legislator’). Theposition was affirmed by the principle of sovereignty and the corollaryright of non-intervention in domestic affairs.57 The UN Declaration on

56 Nathan Diament observes that democratic self-government requires not only that thepeople create the laws that they live under domestically, but also that they determine ‘howthey protect their interests and project their power abroad’: Nathan Diament, ‘ForeignRelations and Our Domestic Constitution: Broadening the Discourse’ (1998) 30 ConnecticutLaw Review 911, 931–32.

57 In the Nicaragua case (Merits), the International Court of Justice made the followingpoint: ‘A prohibited intervention must accordingly be one bearing on matters in which eachState is permitted, by the principle of State sovereignty, to decide freely. One of these is the




Principles of International Law Concerning Friendly Relations confirmsthat every state has the ‘inaniable right to choose its political, economic,social and cultural systems, without interference in any form by anotherState.’58 Martti Koskenniemi describes the Declaration as

a declaration of liberalism writ large: It constructs international order from(private) State ends; it guarantees each State the right to choose its value-system and to pursue its own ideas of the good to the extent that no harm iscaused to other States.59

Where democracy is understood in terms of a sovereign political commu-nity ‘legislating’ for itself, the solution to the problem for democracycreated by international law is provided by a rejection of the authority ofinternational law norms that have not received the consent of the people(directly, or through their representatives). The argument is made by con-servative nationalists in the United States, largely writing from the perspec-tive of American constitutional law. The principal issue is the extent towhich US law should recognise the authority of international law norms.Consider for example the arguments of Ernest Young, that law in the UnitedStates is made through ‘an intricate, carefully balanced process that isdeliberately designed to be difficult to navigate’; actors are accountable ‘toeach other and to the American people’.60 In contrast, law-making in theinternational community lies outside of any system of checks and balancesand accountability, and ‘it risks undermining [the] Constitution’s institu-tional strategy’.61 Any recognition of international law norms by domesticinstitutions (in the absence of adoption or affirmation by domestic legisla-tures) undermines both democracy and the idea of sovereignty, which inthe United States is ‘intimately bound up with the basically proceduralnature of our constitutional commitments. The American people expectthat certain decisions affecting them will be made through specified consti-tutional processes by people who are accountable to them.’62

choice of a political, economic, social and cultural system, and the formulation of foreignpolicy. Intervention is wrongful when it uses methods of coercion in regard to such choices,which must remain free ones’: Military and paramilitary activities in and against Nicaragua(Nicaragua v United States) Merits [1986] ICJ Rep 14 at [205].

58 General Assembly (GA) Res 2625 (XXV), ‘Declaration on Principles of InternationalLaw Concerning Friendly Relations (adopted 24 October 1970). See also Principle VI,Helsinki Final Accord, Conference on Security and Co-Operation in Europe: Final Act [1August 1975]: ‘The participating States will refrain from any intervention, direct or indirect,individual or collective, in the internal or external affairs falling within the domesticjurisdiction of another participating State, regardless of their mutual relations.’

59 Martti Koskenniemi, From Apology to Utopia: the Structure of International LegalArgument (Cambridge, Cambridge University Press, 2005) 93.

60 Ernest Young, ‘The Trouble with Global Constitutionalism’ (2003) 38 Texas Interna-tional Law Journal 527, 528.





Reflecting arguments articulated by HLA Hart,63 Jeremy Rabkin com-plains that there is ‘no international legislature to declare or elaborateinternational legal standards[,] [and] no reliable means of interpreting orenforcing most standards that do exist’.64 In addition to the problems ofindeterminacy and bindingess, Rabkin criticises assertions that domesticlaw and international law have equal authority and importance. If thatwere the case, ‘it would be impossible to know what law to apply in theevent of a conflict between U.S. law and international law’; it is not, andthe US Supreme Court ‘has repeatedly insisted that American law takespriority’.65 Prominent ‘New Sovereigntists’ include Rabkin,66 John Bol-ton,67 John Yoo,68 Curtis Bradley,69 and Jack Goldsmith.70 Peter Spiro,who coined the expression, observes that the focus of the writings is the‘edifice of sovereignty’, which demands that America resists the incorpo-ration of international norms ‘and drapes the power to do so in themantle of constitutional legitimacy’.71 New Sovereigntists, he argues,deliver three ‘flawed lines of attack’: emerging international law normsare vague and ‘illegitimately intrusive’ in domestic affairs; internationallaw-making processes are unaccountable, and international law normsare (ultimately) unenforceable; and the United States has the right to ‘optout of international regimes as a matter of power, legal right, andconstitutional duty’.72

The consequences of the application of New Sovereigntist thinking tointernational law can be seen in the rational choice analysis developed byGoldsmith and Posner, which seeks to explain international law in termsof ‘states acting rationally to maximise their interests, given their percep-tions of the interests of others states and the distribution of state

63 Hart’s concept of law is expressly statist: the distinctive nature of law entailsinstitutionalised norm enforcement. Doubts about the status of international law (as ‘law’)‘arise from an adverse comparison of international law and municipal law’. See HLA Hart,The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) 216.

64 Jeremy Rabkin, ‘American Self-defense Shouldn’t be too Distracted by InternationalLaw’ (2006) 30 Harvard Journal of Law and Public Policy 31, 34.

65 ibid at 57.66 Jeremy Rabkin, Law Without Nations? Why Constitutional Government Requires Sover-

eign States (Princeton, New Jersey, Princeton University Press, 2005).67 John Bolton, ‘Should We Take Global Governance Seriously?’ (2000) 1 Chicago Journal

of International Law 205.68 John Yoo, ‘UN Wars, US War Powers’ (2000) 1 Chicago Journal of International Law 355.69 Curtis Bradley, ‘International Delegations, the Structural Constitution, and Non-self-

execution’ (2003) 55 Stanford Law Review 1557.70 Curtis Bradley and Jack Goldsmith, ‘Federal Courts and the Incorporation of Interna-

tional Law’ (1998) 111 Harvard Law Review 2260.71 Peter Spiro, ‘The New Sovereigntists: American Exceptionalism and Its False Proph-

ets’ (2000) 79 Foreign Affairs 9, 9.72 ibid at 10.




power’.73 Inter-state activity is explained in terms of four possible pat-terns of behaviour: coincidence of interest, whereby each state acts in itsown best interests without regard to the interests of the other state (theargument is framed in terms of bilateral inter-state relations); coordina-tion, whereby states receive higher payoffs if they engage in identical orsymmetrical actions than if they do not; cooperation, whereby statesmutually refrain from activities that would otherwise be in their self-interests in order to obtain greater medium- to longer-term advantage;and coercion, which results when a powerful state forces a weaker stateto engage in acts contrary to its own interests.74

The usual argument, that international law constrains the self-interested behaviour of states, is mistaken: ‘It is not a check on stateself-interest; it is a product of state self-interest.’75 Customary interna-tional law emerges as a result of states seeking to maximise their intereststhrough coincidence of interest, coercion, bilateral repeated prisoner’sdilemma, and bilateral coordination.76 The basic logic of internationalagreements (ie treaties) ‘follows directly from the models of cooperationand coordination’.77 In cases of coincidence of interest there is no require-ment for an international agreement, and in cases of coercion states areunlikely to formalise a subservient relationship. The logic of bilateralcooperation can be extended to any number of agents, but relationshipsin the international community of states remain essentially bilateral innature. The establishment of an international organisation by multilateraltreaty can clarify the terms of cooperation and enhance monitoring, but‘punishment still depends on state action and is subject to free-riding andrelated collective action difficulties’.78 The argument applies equally inthe case of the international human rights system

which consists of powerful states enforcing interests, including altruisticinterests to be sure, and weak states yielding when sufficient pressure isbrought to bear against them. The relationships are bilateral, and the degree ofenforcement depends on the bargaining positions of the two states in eachrelationship.

Most human rights practices can be explained by coercion or coincidenceof interest, for example, in not engaging in acts of genocide.79

73 Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford, OxfordUniversity Press, 2005) 3.

74 ibid at 12.75 ibid at 13.76 ibid at 42.77 ibid at 84.78 ibid at 87.79 ibid at 134.




Goldsmith and Posner provide three reasons why states might (ration-ally) choose to incur international law obligations. First, the use of thetreaty mechanism imports accepted international norms and principlesfor the interpretation of inter-state agreements, reflected in the ViennaConvention on the Law of Treaties. Second, in most states, the constitu-tion requires that treaties are approved by domestic legislatures. Where atreaty is affirmed by the legislature, it transforms an agreement betweengovernments into one accepted by the representatives of the people. Theinvolvement of the legislative body makes public the commitment of thedemocratic state to the treaty regime.80 Legislative adoption also commitsthe state to the international law position to a much greater extent thanmere executive agreement, requiring a change of domestic laws for anysubsequent change of policy. Legislative approval sends a clear signal ofthe commitment of the executive branch to the policy, making clear thatthe state is a serious international partner on the issue.81 Third, the use oftreaties implies a deeper commitment than non-binding and non-legalinstruments; it is the same distinction that can be made in domestic lawbetween a contract and a non-binding agreement.82

The analysis explains international law in terms of the rational inter-ests of states and concludes that states have no moral obligation tocomply with international law norms.83 Any preference for compliancemust be weighed alongside other preferences; it will depend on whatcosts leaders and citizens are willing to incur and what they are willing toforgo. The determination as to whether a state will comply with aninternational law norm must be made on a case-by-case basis, dependingon how political leaders judge the balance of interests for the state incomplying on the one hand and other benefits that might accrue fromnorm-violating behaviour on the other. One of the factors to be weighedis the popular will of the people, who in a democracy ultimatelydetermine policy. The analysis suggests that international law normsshould be subject to the democratic will of the people (at least the peopleof the United States). It is an American perspective on the problems thatarise from the globalisation of governance functions, reflecting the differ-ent ways in which Americans (and many American academics) viewinternational law. Jed Rubenfeld explains that the modern system ofinternational law, developed in the wake of World War II to be made andinterpreted by international actors operating above popular democratic

80 ibid at 92.81 ibid at 93.82 ibid at 98.83 ibid at 185.




politics, was designed to be ‘antidemocratic’.84 It was a response to the‘European’ problems of military conflict and political extremism thatdemocratic politics had unleashed. Given that America (so it told itself)had not suffered such problems, the resulting international law systemdid not apply to the United States. The position regards international lawas a mechanism for promoting universal values and constraining demo-cratic self-government elsewhere.85

New Sovereigntists accept limitations on the democratic will of thehere-and-now people of the United States only to the extent that thelimitation is provided for in the US Constitution: political self-determination in the context of constitutional democracy. The positioncan be contrasted with that in Europe, where both academics and citizensappear more willing to accept supra-national limits on the possibilities ofdemocratic self-determination. The difference is explored by Rubenfeld,who identifies two forms of constitutionalism. The first, ‘Europeanconstitutionalism’, regards constitutional rights as universal rights thatindividuals possess by virtue of their co-membership of the humanspecies. These universal constitutional rights reside in a higher normativedomain than politics and displace any conflicting outcomes of politicaldecision-making. It makes no difference whether constitutional rights arerecognised and enforced at the domestic, regional or international level,and there is no reason to conclude that international courts and tribunalsare not competent to determine the content and application of universalnorms.86 International law norms bind future majorities in the same wayas constitutional law norms, displacing conflicting outcomes of demo-cratic procedures. Any argument that there is a democratic deficit ininternational (human rights) law is ‘misguided or simply obtuse’, as ‘thevery point of constitutional law is to enforce counter-majoritarian rightsand thus to check democracy’.87

The second form of constitutionalism is a form of democratic constitu-tionalism. The argument here is that the Constitution does not lie outsideof democratic politics, it is the product of democratic politics. It is for thepeople to decide for themselves ‘on the enduring legal and political

84 Jed Rubenfeld, ‘Unilateralism and Constitutionalism’ 2004) 79 New York UniversityLaw Review 1971, 2017.

85 ibid at 1989. See also Michael Ignatieff, ‘Introduction’ in Michael Ignatieff (ed),American Exceptionalism and Human Rights (Princeton, New Jersey, Princeton UniversityPress, 2005). Ignatieff distinguishes a number of ways in which American exceptionalismmanifests itself in relation to human rights: the United States signs international humanrights and humanitarian treaties, but then exempts itself through reservation, non-ratification, or non-compliance; the United States maintains a double-standard, judgingitself (and its allies) by more permissive standards than others; the United States rejects theapplication of international human rights within its own domestic laws (at 3).

86 ibid at 1992.87 ibid at 2003 (references omitted).




commitments that will govern the polity in the future’.88 These includethe nature and content of those fundamental rights that will displacemajority decisions. On this understanding, counter-majoritarian rightsare not counter-democratic because they represent ‘the nation’s self-given law, enacted through a special, democratic, constitutional politics,subject to democratic amendment processes in the future’. The Americanconception of the Constitution is strongly of the democratic constitution-alism model;89 the opposite is the case in Europe, where the ‘newEuropean constitutionalism’ is grounded in the ideology of universal (orinternational) human rights norms, which possess ‘a supranational andalmost supraconstitutional character, making them close to unamendableand rendering them peculiarly fit for interpretation by internationaljuridical experts’.90

In some ways the position of the New Sovereigntists can be dismissedas a realist and nationalistic argument that seeks to have the evidentmilitary and economic power of the United States reflected in the systemof global governance,91 at least as interpreted by domestic courts in theUnited States.92 There is though some veracity in the critique: from theperspective of a functioning democratic system, international law normsappear to be a poor substitute for domestic laws agreed through complexprocedures of democratic will-formation. Prima facie, the good democratshould prefer domestic democratic laws to (undemocratic) internationallaw norms produced by unelected and largely unaccountable interna-tional institutions. McGinnis and Somin refer to the ‘low quality’ of thepolitical processes that generate international law norms, which providesa strong argument against the recognition of international law as part ofdomestic law, unless expressly incorporated by a democratic institu-tion.93 The argument is comparative: international laws are less likely to

88 ibid at 1993.89 ibid at 1994.90 ibid at 1997.91 Sabrina Safrin argues that exceptionalism should be understood as the ability to

attain a special or different legal norm: ‘U.S. exceptionalism often flows from its perceivedmilitary needs and unique global security responsibilities[;] European exceptionalismgrows out of Europe’s unique status as a quasi-state or quasi-multi-state negotiating bloc[;][whilst] [d]eveloping country exceptionalism flows from developing countries’ specialeconomic needs’: Sabrina Safrin, ‘The Un-exceptionalism of U.S. Exceptionalism’ (2008) 41Vanderbilt Journal of Transnational Law 1307, 1314.

92 cf Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the Interna-tional Legal Order (Cambridge, Cambridge University Press, 2003).

93 John McGinnis and Ilya Somin, ‘Should International Law be Part of our Law?’ (2007)59 Stanford Law Review 1175, 1178.




be of ‘sound quality’ than those created by advanced democracies, suchas the United States;94 it does not apply in relation to authoritarian statesand transitional democracies.95

To the extent that that it can be generalised,96 the New Sovereigntistargument suggests that, in the absence of a clear expression of (sover-eign) consent, international law obligations should not be imposed ondemocratic states, although of course there remains the possibility thatglobal law norms might be more democratic than domestic law norms.97

The difficulty with the analysis is the failure to recognise the existence ofcollective action and coordination problems, such as threats to the globalenvironment and from international terrorism, and problems created bythe workings of the international financial system that cannot be resolvedby states acting alone. Globalisation has resulted in a loss for democracy,as citizens find that decisions and actions taken outside of the boundariesof the state impact on them.98 The argument applies equally to the UnitedStates.99 Keohane, Macedo and Moravcsik observe that the ‘pooling ofsovereignty’ allows democratic states to achieve policy goals togetherthat none could realise by acting alone, in areas such as global warming,liberalising the international economy, combating terrorism and regulat-ing multi-national corporations. The development of global governancemechanisms and consequential reduction in the freedom of action ofindividual states is a practical response to the problems associated withglobalisation, affording citizens an opportunity to exercise some author-ity or control over actors outside of the territorial jurisdiction. The choiceis not between global governance and domestic government, butbetween ‘the complementary activities of international and domesticinstitutions, on the one hand, and uncoordinated state action, on theother’.100 The refusal of states to delegate some authority to multilateralinstitutions represents ‘a self-defeating and arbitrary restriction onnational democratic deliberation’.101 The rejectionist position implies that

94 ibid at 1198.95 ibid at 1199.96 The fact that the argument is ‘exceptionalist’ would suggest that it cannot be

generalised, but see Michael Kirby, ‘Transnational Judicial Dialogue, Internationalisation ofLaw and Australian Judges’ (2008) 9 Melbourne Journal of International Law 171 (on Austral-ian exceptionalism).

97 Michael Barr and Geoffrey Miller, ‘Global Administrative Law: the View from Basel’(2006) 17 European Journal of International Law 15, 43.

98 Further, in a globalised economy, there are good arguments for the standardisation oftechnical specifications, and there remains a (cosmopolitan) sense that the most seriousforms of human rights abuse should be the concern of the international community.

99 Anne-Marie Slaughter, ‘Leading Through Law’ (2003) 27 The Wilson Quarterly 37, 37.100 Robert Keohane, Stephen Macedo and Andrew Moravcsik, ‘Democracy Enhancing

Multilateralism’ (2009) 63 International Organization 1, 23.101 ibid at 4. See also Robert Howse, ‘The End of the Globalization Debate: a Review

Essay’ (2008) 121 Harvard Law Review 1528, 1533.




societies have nothing to learn from each other (a conclusion at variancewith the experiences of human history), and that there is nothing that canbe done about trans-border and global problems and nothing to begained from some pooling of sovereignty and (partial) loss of democraticcontrol. This is evidently not the case.

The recognition of collective action and coordination problems pro-vides the context and justification for globalised governance, but doesnot tell us which issues should be dealt with at the global level and whichat the domestic level. Robert Jackson observes that contemporary debatesaround sovereignty concern this allocation of ‘government decision-making power’,102 with complaints around restrictions on sovereigntyreflecting disagreements as to the appropriate level for the allocation ofdecision-making authority.103 Most solutions rely directly or in modifiedform on the principle of subsidiarity, developed in the context of theEuropean Union.104 Subsidiarity requires that the exercise of politicalauthority be undertaken as close to the people as possible, consistentwith the principle of achieving effective outcomes. The introduction ofinternational law norms is justified following the recognition of a collec-tive action or coordination problem, and where the advantages of relyingon international law ‘override any disadvantages connected to the pre-emption of more decentralized rule-making’. The exception, according toMattias Kumm, is the protection of minimum human rights standards,although, along with other writers, he fails to explain the rationale for theexception.105 Whilst it is common in the literature to include the protec-tion of human rights as a necessary concern of the international commu-nity, the reason for this is not satisfactorily explained, given that, in mostcases, human rights abuses in one state do not impact on the citizens ofother states, ie human rights abuses do not require a practical (asopposed to a moral) collective action response.

102 John Jackson, ‘Sovereignty-modern: a New Approach to an Outdated Concept’ (2003)97 American Journal of International Law 782, 790. See also Dan Sarooshi, InternationalOrganizations and their Exercise of Sovereign Powers (Oxford, Oxford University Press, 2005)29.

103 Robert Jackson, ‘Quasi-States, Dual Regimes, and Neoclassical Theory: InternationalJurisprudence and the Third World’ (1987) 41 International Organization 519, 519.

104 See Consolidated versions of the Treaty on European Union and the Treaty on theFunctioning of the European Union [2008] OJ C115/01: art 5 (1) The use of Unioncompetences is governed by the principles of subsidiarity and proportionality… (3) Underthe principle of subsidiarity, in areas which do not fall within its exclusive competence, theUnion shall act only if and in so far as the objectives of the proposed action cannot besufficiently achieved by the Member States, either at central level or at regional and locallevel, but can rather, by reason of the scale or effects of the proposed action, be betterachieved at Union level.

105 Mattias Kumm, ‘The Legitimacy of International Law: a Constitutionalist Frameworkof Analysis’ (2004) 15 European Journal of International Law 907, 921.




Subsidiary is a ‘power allocation principle’, requiring that ‘the entitythat can best achieve a task be in charge of it’. It does not, as SamanthaBesson observes, necessarily require that the institution is democratic.106

Subsidiary is a practical tool, framing debates about the allocation ofdecision-making authority, and a philosophical position.107 There-allocation of political authority from the state to international institu-tions without sufficient justification constitutes a loss of sovereignty, andin democratic states, a loss for democracy: the idea of subsidiarityreinforces the principle that ‘the vast majority of governance tasks shouldstill be taken by national government officials’.108

A Global Democratic State

Thomas Zweifel argues that in order to apply the idea of democracy atthe global level ‘we need to think – in theory at least – of a global polityand a global population. An international state allows us to make thatleap.’109 According to Campbell Craig, the idea of world government ‘isreturning to the mainstream of scholarly thinking about internationalrelations’, although reference is made only to an article by AlexanderWendt and a book by Daniel Deudney.110 Wendt’s argument is that aworld state is inevitable in the next 100–200 years: with the transfer ofstate sovereignty to the global level, ‘individual recognition will nolonger be mediated by state boundaries, even though as recognizedsubjects themselves states would retain some individuality’.111 Deud-ney’s conclusion is that a hierarchical world government is unlikely, asstates will not surrender possession of nuclear weapons to a worldauthority. (He also notes the difficulty of conquering and controlling

106 Samantha Besson, ‘Sovereignty in Conflict’ (2004) 8 European integration onlinePapers (EIoP) 3.2.2.1.

107 Anne-Marie Slaughter refers to a foundational principle of legitimate difference intrans-governmental cooperation, reflecting a view that ‘a desirable diversity of ideas abouthow to order an economy or society’ is both good and appropriate in informing the natureof global governance: Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards thePublic Accountability of Global Government Networks’ (2004) 39 Government and Opposition159, 178.

108 ibid at 185.109 Thomas Zweifel, International Organizations and Democracy: Accountability, Politics and

Power (Boulder, Colorado, Lynne Boulder, 2006) 13.110 Campbell Craig, ‘The Resurgent Idea of World Government’ (2008) Ethics and

International Affairs. Available at www.cceia.org/resources/journal/22_2/essay/001.html(last visited 27 July 2009).

111 Alexander Wendt, ‘Why a World State is Inevitable’ (2003) 9 European Journal ofInternational Relations 491, 525.




occupied territories.) Instead, a ‘federal-republican image of world gov-ernment’ looks more likely to emerge,112 building on the existing struc-tures of the UN,113 but requiring also a ‘global constitutional conversationabout first principles’. The result would be a ‘world Constitution basedon purely negarchical principles’, with the primary purpose to avoid‘world hierarchy as well as world anarchy’.114

Catherine Lu provides a more extensive review in the entry on worldgovernment in the Stanford Encyclopedia of Philosophy.115 World govern-ment is defined as ‘the idea of all humankind united under one commonpolitical authority’. It can be traced back to ancient Chinese, Indian,Greek and Roman thought. In Medieval times, Dante articulated theChristian ideal of human unity and its expression through a worldgoverned by a universal monarch (Convivio (The Banquet) (c1304) andMonarchia (1309–13)). The idea lost its appeal with the development ofthe idea of the sovereign state following the Peace of Westphalia (1648).In the eighteenth century, the dominant political thinkers, ImmanuelKant (Perpetual Peace (1795)) and Jean-Jacques Rousseau (The Social Con-tract (1762)), rejected the need for, or possibility of, world government,and the idea does not re-emerge until after World War II and the use ofatomic weapons on Hiroshima and Nagasaki, which led Albert Einsteinto argue that peace required a world government ‘able to solve conflictsbetween nations by judicial decision. This government must be based ona clear-cut constitution which is approved by the governments andnations and which gives it the sole disposition of offensive weapons’. TheCold War prevented any serious debate on the issue. Lu’s review makesclear that no serious or systematic attempt has been made in contempo-rary political thought, at least in the English language, to articulate avision of world government (the only references are again to Wendt andDeudney).

William Scheuerman concludes that ‘no serious thinker today is advo-cating a single global Leviathan’.116 The literature is dominated by criticsof the idea, who point to the facts that world government is notachievable (the argument is an exercise in ‘utopian thinking’); that it

112 Daniel Deudney, Bounding Power: Republican Security Theory from the Polis to the GlobalVillage (Princeton, New Jersey, Princeton University Press, 2007) 262.

113 ibid at 263.114 ibid at 264.115 Catherine Lu, ‘World Government’ in Edward Zalta (ed), The Stanford Encyclopedia of

Philosophy (Winter 2006 edn), available at plato.stanford.edu/entries/world-government/(last visited 16 June 2009).

116 William Scheuerman, ‘Global Governance without Global Government? Habermason Postnational Democracy Political Theory’ (2008) 36 Political Theory 133, 148.




would be undesirable, as it would ‘descend into a global tyranny’;117 andit is neither necessary nor sufficient to achieve the aims of the promotionof human rights and establishment of democratic government. Even ifthe need for world government were accepted and concerns that theconcentration of power would lead to a global tyranny overcome,118 it isdifficult to envisage a mechanism by which an effective world govern-ment could come into existence, particularly given the opposition ofpowerful democracies. There are also the practical objections as to how aglobal democracy of some six billion persons would operate, given thesignificant economic and cultural differences in world society that wouldmake it difficult to reach a common position on many issues of policy.119

There would be significant questions of legitimacy and stability if thepractice of global democracy were to result in large numbers of unsatis-fied preferences and creation of persistent minorities, groups whosepreferences can never be realised through democratic politics – ThomasChristiano observes that ‘[t]he larger the constituency, the larger thechances are that particular minorities would simply get lost in thedemocratic decision making’.120 That is not to conclude that the practiceof democracy on a global scale could not be effective, only that the theoryand practice of democracy suggests that the unit of political self-determination should be as small as possible, consistent with the require-ment of including all those affected in political debates. Kal Raustialamakes the opposite point, observing that up until the eighteenth centurythe dominant view in Western political theory was that ‘small wasbeautiful’, but that in the Federalist Papers, James Madison reasoned thatlarge size was in fact a saving grace: ‘Madison saw the primary threat todemocracy in faction, or the power of special interests’. In the case of alarge-scale republic, there would necessarily be a greater variety of

117 See, for example, Kofi Anan, We the Peoples: the Role of the United Nations in the 21stCentury (New York, United Nations, 2000) 7: Nothing would be less desirable than the ideaof ‘world government, of centralized bureaucratic behemoths trampling on the rights ofpeople and states.’

118 See, for example, Daniel Weinstock, ‘The Real World of (Global) Democracy’ (2006) 37Journal of Social Philosophy 6, 16; see also Thomas Christiano, ‘A Democratic Theory ofTerritory and Some Puzzles about Global Democracy’ (2006) 37 Journal of Social Philosophy81, 102. John Rawls concludes that a world government would be undesirable as it wouldinvolve either ‘a global despotism or else would rule over a fragile empire torn by frequentcivil strife as various regions and peoples tried to gain their political freedom andautonomy’: John Rawls, The Law of Peoples (Cambridge, Massachusetts, Harvard UniversityPress, 1999) 36.

119 There is general agreement that social, economic and ethno-cultural differences makethe practice of democracy more difficult, given the problem in identifying commoninterests: Robert Dahl, ‘Can International Organizations be Democratic? A Skeptic’s View’in Ian Shapiro and Casiano Hacker-Cordon (eds), Democracy’s Edges (Cambridge, Cam-bridge University Press, 1999) 19, 26.

120 Thomas Christiano, ‘A Democratic Theory of Territory and Some Puzzles aboutGlobal Democracy’ (2006) 37 Journal of Social Philosophy 81, 103.




interests and parties: ‘Greater diversity made domination by faction lesslikely’.121 Mutatis mutandis, the development of a global democracywould avoid the possibility of the capture of global regulation by anysingle faction or special interest in world politics.

The establishment of a global democratic state would inhibit theeffectiveness of political participation by individual citizens as an indi-vidual voice or vote would have limited impact and it is not clear howthe citizen could be meaningfully represented in a global parliament. Thelargest democratic states are India, with a population of 1.1 billion,represented by 552 members of the Lok Sadha (House of the People), andthe United States, population 300 million, with 435 members of theHouse of Representatives. The Parliament of the European Union has 785members, representing 492 million people. An assembly comprising 500representatives in a global parliament would require that each memberrepresent some 13 million individuals — the population of Malawi.Two-thirds of states have populations of fewer than 13 million, leading toquestions as to how to draw constituency boundaries, assuming the useof constituencies in the global electoral system, and whether suchboundaries would reflect the populations of states (and then for whatgain). Daniel Weinstock argues that there is no reason to conclude thatalready represented territorially based units, including, but not restrictedto states, would automatically be represented. The practice of globaldemocracy might be ‘deterritorialised’, with constituencies emerging thatcross existing state boundaries (giving the example of the Kurds) or thathave no territorial connection – ‘communities of [shared] concern’.122

It is inconceivable that a domestic society might undergo a process of‘democratisation’ without the establishment of a directly elected legisla-tive assembly. Yet no serious writer argues for the introduction of adirectly elected world parliament as a necessary component in thedemocratisation of world society. The focus of the literature is on thelikely difficulties in the practice of democracy at the global level and thedangers for individual freedom in the establishment of a global Levia-than from which there could be no escape. Perhaps the reason for this isthat the idea of a directly elected global parliament makes no sense interms of the existing practices of global governance in which regulatoryauthority is exercised at different levels (global, regional and state) and inrelation to different sectors. International law consists of a system ofgeneral and customary international law, and fragmented regimes con-cerning, for example, world trade, the environment, human rights, the

121 Kal Raustiala, ‘Rethinking the Sovereignty Debate in International Economic Law’(2003) 6 Journal of International Economic Law 841, 854.

122 Weinstock (n 118) at 16.




law of the sea, diplomacy, etc.123 In the absence of agreement on a newinternational constitution, the democratisation of international law can-not proceed through the establishment of a world legislative assembly:there is no coherent system of world law to which the parliamentaryprinciple of democracy can be applied. (This is in contrast to the statewhere the introduction of a parliamentary assembly legitimates theexercise of power in a taken-for-granted political community defined bythe exercise political authority.) Any analysis of the global democraticdeficit must reflect and accommodate the realities of the fragmentednature of global regulation and global politics. Whilst some refer to theemergence of a nascent ‘global polity’,124 world society is fragmentedinto multiple sites for global law production and the conduct of globalpolitics, each with its own focus and concern. In the absence of a unifiedinternational law order, with associated institutions of governance andpolitics, it makes no sense to focus on the state model in argumentsaround democracy beyond the state.

A Global Democratic Federation

The principal objection to the idea of a global state is the continuingrelevance of the territorial state in the theory and practice of democracy.One possibility is to imagine a global law order above the existingsystems of sovereign states, focused on the UN, and re-conceive thestructure as a global federation. The principle of democracy would applyat each level, with an international community of democratic statessupplemented by a higher level of global governance whose powers andauthority would be clearly demarked in the constitutive instrument ofthe global federation.125 This would be a ‘thin’ form of global federation,

123 cf United States Diplomatic and Consular Staff in Tehran (United States of America v Iran)[1980] ICJ Rep 3 [86]: ‘The rules of diplomatic law, in short, constitute a self-containedrégime.’

124 Brassett and Higgot argue that three elements underwrite the claim for recognisingthe emergence of a nascent global polity: political interconnectedness in the internationalsystem; the vast and interlocking network of global regulation by both internationalorganisations and non-state actors; and the growing sense of ‘community’ that appears tobe developing beyond the confines of the state, which importantly includes politicalcontestation about the nature of globalisation: James Brassett and Richard Higgot, ‘Buildingthe Normative Dimension(s) of a Global Polity (2003) 29 Supplement 1, Review of Interna-tional Studies 29, 34.

125 cf Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have aChance?’ in The Divided West, edited and translated by Ciaran Cronin (Cambridge, Polity,2006) 115, 128: ‘in a federal multilevel system nothing prevents the fictive unity of thepresumptive popular sovereignty from being conceived as compatible with the correspond-ing chains of legitimacy that unfold in parallel with each of the various member states’.




with no requirement that citizens legitimate the global federationthrough an expression of consent for its exercise of political authority, orregard themselves as co-members of a global political community. Theposition is distinguished from that of a ‘thick’ federal system, whichrequires both an overarching structure of government and a ‘genuine“social substratum,” that is, a citizenry that provides that organizationwith original (as opposed to derived) legitimacy’.126

In a federal system (according to political theory), both the federal andstate governments ‘exercise original, not derivative, public authority, andthey are sovereign within their own sphere, i.e. the sphere in which eachof them is competent to exercise public authority pursuant to the rules ofthe federal constitution (dual sovereignty)’.127 An initial difficulty is(again) the nature of the existing global system of law, which is notstructured like some world federation. There are no existing globalgovernment structures to which the principle of democracy can beapplied. Notwithstanding references to the contrary, the General Assem-bly is not a global legislature or ‘world parliament’;128 the SecurityCouncil is not a ‘world Government’,129 or ‘World Executive’;130 and theUN is not a world government.131 The federal model suggests a neat,organised system of governance institutions proceeding from the local tothe global.132 However, the international system is not constructed likesome matryoshka doll, progressing from national, to regional, to global

126 Armin von Bogdandy, ‘Constitutionalism in International Law: Comment on aProposal from Germany’ (2006) 47 Harvard International Law Journal 223, 233. von Bogdandyconcludes that most recent publications on international law that envisage a worldfederation ‘devote little space to the democratic principle’: Armin von Bogdandy, ‘Globali-zation and Europe: How to Square Democracy, Globalization, and International Law’ (2004)15 European Journal of International Law 885, 900.

127 Thomas Giegerich, ‘The Is and the Ought of International Constitutionalism: HowFar Have We Come on Habermas’s Road to a “Well-Considered Constitutionalization ofInternational Law′?’(2009) 10(1) German Law Journal 31, 46.

128 cf Bruno Simma, ‘From Bilateralism to Community Interest in International Law’(1994) 250 Recueil de cours 217, 262.

129 ibid at 264.130 cf Pierre-Marie Dupuy, ‘The Constitutional Dimension of the Charter of the United

Nations Revisited’ (1997) 1 Max Plank Yearbook of United Nations Law 1, 32.131 The International Criminal Tribunal for the former Yugoslavia noted that it is ‘clearly

impossible’ to classify the organs of the UN in relation to the institutions of domesticgovernment. There is ‘no legislature, in the technical sense of the term, in the UnitedNations system and, more generally, no Parliament in the world community. That is to say,there exists no corporate organ formally empowered to enact laws directly binding oninternational legal subjects’: Prosecutor v Dusko Tadic Case No IT-94–1-AR72 (1996) 35 ILM32 [43].

132 Georges Scelle refers to the ‘federal phenomenon’ in international law, a processleading from the individual state to larger normative units gradually and in successivestages as a result of expanding circles of ‘solidarity’: Georges Scelle, Cours de DroitInternational Public (Paris, Domat-Montchrestien, 1948) 253, referred to in Martti Kosken-niemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification




government. The real world of global regulation is messy and frag-mented, without clearly defined jurisdictional boundaries. There is nooverarching constitutional framework or organising meta-principle (fol-lowing the decline of the idea of ‘sovereignty’). It is not possible toimagine a global democratic federation by democratising the UnitedNations and requiring that all states are democratic.

Jürgen Habermas highlights a more philosophical problem in readingthe global system as a democratic federation in that it is difficult to acceptany analogy that associates the process of global state-formation with the(mythologised) process of state formation at the domestic level. Havingpreviously written about a shift from international law, where the statepreserves its supreme constitutional authority, to cosmopolitan law,which must be binding on state governments in accordance with somelegal code or ‘constitution’,133 Habermas returns to the issue in his 2006essay, ‘Does the Constitutionalization of International Law Still Have aChance?’ Observing the emergence of global regulatory networks andthe loss of political autonomy for states, he concludes that the federalanalogy is not appropriate to describe the systems of global governance.At the domestic level, the atom of (popular) sovereignty may split, with afederal constitution establishing ‘corresponding chains of legitimationthat unfold in parallel with each of the various member states’.134 Theanalogy does not apply at the global level. In contrast to constitution-making within states, individuals already enjoy a status as citizen thatguarantees certain rights and freedoms — they have ‘already undergonea long political process of political formation and socialization’.135 Thetransformation from an international law of states to a cosmopolitan lawof individuals cannot be seen simply as the logical evolution of theconstitutional state from the national to the global level, given theabsence of a supranational power with the capacity to coercively enforceinternational law norms.136 The constitutionalisation analogy in interna-tional law points to ‘an opposite evolutionary direction to that of the

and Expansion of International Law, Report of the Study Group of the International LawCommission’, finalised by Martti Koskenniemi, (13 April 2006) UN Doc A/CN.4/L.682 para207.

133 Jürgen Habermas, The Inclusion of the Other: Studies in Political theory (Cambridge,Massachusetts, MIT Press, 1998) 179.

134 Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have aChance?’ in The Divided West (Cambridge: Polity, 2006) 115, 128.

135 ibid at 129.136 ibid at 132. Elsewhere, Habermas observes that the ‘political empowerment of a

pre-political global civil society composed of citizens from different nations is a differentmatter from imposing a constitution on an existing state power’. He further concludes that itis not appropriate to ignore the legitimacy of the nation-state ‘and to return to an originalcondition prior to the state’: Jürgen Habermas, ‘The Constitutionalization of InternationalLaw and the Legitimation Problems of a Constitution for World Society’ (2008) 15 Constel-lations 444, 448 (emphasis in original).




genealogy of the constitutional state. It proceeds from the non-hierarchical association of collective actors to the supra- and transna-tional organizations of the cosmopolitan order.’137 The ‘democraticfederal state writ large’, the global state of nations or federal worldrepublic, ‘is the wrong model’. There is no structural analogy betweenthe constitution of a sovereign state, which comes to possess ‘supremeconstitutional authority’, and the constitution of a world organisationthat would have limited and carefully circumscribed functions: securinginternational peace and security, and promoting international humanrights norms.138

A DEMOCRATIC PEACE

There is a long tradition in political theory, dating back to ImmanuelKant (Perpetual Peace (1795)), which argues that peaceful inter-staterelations can only be guaranteed in an international community ofdemocratic states. Writing in 1990, UN Secretary-General Kofi Ananobserved that the significant increase in the number of democratic statesfollowing the ending of the Cold War had been important for a numberof reasons, not least because established democracies, for a variety ofreasons, rarely fight each other militarily.139 The ‘democratic peace’ thesisholds that major armed conflicts are unlikely between well-establisheddemocratic states.140 Where the decision to engage in military conflict isdependent on the will of the people, ‘war’ will be less likely. Explana-tions include the fact that when those who decide will bear the costs (interms of their own lives) the risk of conflict is reduced, and the ability ofdemocratic debate to exposes positions to critical scrutiny, making itmore difficult to adopt unsound policies.141 The idea of the democraticpeace as the organising principle of world society proceeds from theassumptions that democracy is an international public good, that states

137 ibid at 133.138 ibid at 134.139 Kofi Anan, We the Peoples: the Role of the United Nations in the 21st Century (New York,

United Nations, 2000) 43.140 John Norton Moore, ‘Beyond the Democratic Peace: Solving the War Puzzle’ (2004) 44

Virginia Journal of International Law 341, 343. See also Joanne Gowa, Ballots and Bullets: theElusive Democratic Peace (Princeton New Jersey, Princeton University Press, 1999); Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal ofInternational Law 503; José E Alvarez, ‘Do Liberal States Behave Better: a Critique ofSlaughter’s Liberal Theory’ (2001) 12 European Journal of International Law 183; and MichaelBrown et al (eds), Debating the Democratic Peace (Cambridge, Massachusetts, MIT Press,1996).

141 Slaughter, ibid at fn 13, relying on Charles Kupchan and Clifford Kupchan, ‘Concerts,Collective Security, and the Future of Europe’ (1991) 16 International Security 114.




are essential for the effective exercise of any right to democratic self-determination and that the (democratic) values of tolerance and reason-able pluralism preclude the possibility of governing others, even in theirown ‘best interests’. The most significant arguments for a world orderbased on this model are provided in Kant’s Perpetual Peace, the locusclassicus, and John Rawls’ The Law of Peoples. The works support aproposition that the democratisation of world society can be achievedthrough a commitment to domestic democracy and a global covenant ona (liberal) democratic peace.

Perpetual Peace

In his essay Perpetual Peace, Immanuel Kant outlines a draft treatycontaining three definitive articles and six preliminary articles. Thepreliminary articles concern prohibitions on treaties that implicitly allowfor future wars; independent states coming under the domination ofother states; standing armies; national debt to fund external activities;forcible intervention in the constitution or administration of anotherstate; and ‘dishonourable’ modes of hostility during warfare that wouldmake mutual confidence impossible in any subsequent state of peace.142

The first definitive article provides that the constitution of each stateshall be republican.143 A republican constitution is founded in accordancewith the principles of the freedom of the members of the society ashuman beings, the dependence of all subjects on a common legislation,and the equality of all citizens.144 Given that the republican constitutionrequires the consent of subjects in deciding ‘whether there should be waror not, nothing is more natural than that they should weigh the matterwell’.145 The likelihood of war is reduced where those who pay theultimate cost are involved in the decision-making process.

Kant distinguishes a republican constitution from a democratic consti-tution, in which sovereignty lies with the people.146 Democracy ‘is ofnecessity despotism’, because the will of the people is, in reality, the willof the majority, allowing for the imposition of majority rule againstdissenting individuals. The idea of a ‘universal will’ of the people ‘is incontradiction with itself and with the universal principle of freedom’.147

142 Immanuel Kant, Perpetual Peace: a Philosophical Essay, 1795, trans M Campbell Smith(London, Allen & Unwin, 1903) 107–116.

143 ibid at 120.144 ibid at 121.145 ibid at 122.146 ibid at 124–25.147 ibid at 125.

A Democratic Peace 51



Kant is influenced, Mortimer Sellers argues, by a traditional of republi-canism that associates legitimacy for the exercise of political authoritywith service to the ‘common good of the people’, and ‘the best test of thecommon good of the people is the public deliberation of elected repre-sentatives through institutions’.148 Kant himself observes that republican-ism ‘is the political principle of severing the executive power of thegovernment from the legislature’.149 Fernando Téson concludes that therepublican constitution is what we would call today a liberal democracy,‘a constitutional democracy, conceived as a participatory political processconstrained by respect for rights’.150

The second definitive article provides that the law of nations ‘shall befounded on a federation of free states’.151 The argument is that warresults from the fact that inter-state disputes cannot be resolved by courtswith compulsory jurisdiction.152 In order for there to be peace, there mustbe some form of compact or agreement between states, ‘an alliance of aparticular kind which we may call a covenant of peace (foedus pacificum)[that] would seek to put an end to war forever’. The alliance would notaim to ‘gain of any power whatsoever of the state, but merely at thepreservation and security of the freedom of the state for itself and ofother allied states’.153 The analysis proceeds from a recognition of themoral value of the state, which is regarded as a society of human beings‘whom no one but itself has the right to rule and to dispose’.154 In order

148 Mortimer Sellers, ‘Republican Principles in International Law’ (1996) 11 ConnecticutJournal of International Law 403, 405.

149 Kant (n 142) at 125.150 Fernando Téson, ‘The Kantian Theory of International Law’ (1992) 92 Columbia Law

Review 53, 61. Téson draws on Perpetual Peace to call for a more interventionist model ofinternational relations, arguing that international law should be based on a union of liberaldemocracies. The principle of non-intervention applies only as between liberal democra-cies. Recourse to the use of force may be justified in order to defend the liberal allianceagainst outlaw dictators, and against tyrants, as the principle of non-intervention, reflectedin the fifth preliminary article, is dependent on compliance with the first definitive article:‘state sovereignty reacquires its shielding power only in states that have adopted andimplemented [a republican constitution]’: ibid at 92. cf David Kennedy, ‘My Talk at theASIL: What is New Thinking in International Law?’ (2000) 94 American Society of Interna-tional Law Proceedings 104, 119; also Martti Koskenniemi, ‘Constitutionalism as Mindset:Reflections on Kantian Themes about International Law and Globalization’ (2007) 8Theoretical Inquiries in Law 9, 28.

151 Kant (n 142) at 128.152 ibid at 114. On the importance of compulsory adjudication, see Ernst-Ulrich Peters-

mann, ‘Constitutionalism and International Adjudication: How to Constitutionalize theU.N. Dispute Settlement System?’ (1999) 31 New York University Journal of International Lawand Politics 753, 790. In 1944, Hans Kelsen argued that the only way to protect the principleof sovereign equality was ‘the establishment of an international community whose mainorgan is an international court endowed with compulsory jurisdiction’: Hans Kelsen, ‘ThePrinciple of Sovereign Equality of States as a Basis for International Organization’ (1944) 53Yale Law Journal 207, 214.

153 Kant (n 142) at 134.154 ibid at 109.




to promote their own security, states should demand the introduction ofa federation of nations.155 This would not be a ‘State of nations’, as thiswould involve a contradiction, given that the idea of the state ‘impliesthe relationship of one who rules to those who obey’: lawgiver andsubject. Further, a state of nations would not be consistent with theunderstanding that states have of themselves, as being free from externallegal authority.156 Whilst referring to the idea that a state of nations withcoercive public laws might ‘finally embrace all the peoples of theearth’,157 Kant accepts that this is not possible as long as states hold firmto their conception of the ‘law of nations’, as opposed to the ‘positive ideaof a world-republic’. If the tendency of states to engage in warfare is to bebrought to an end, what is required is a ‘negative substitute’ for aworld-republic – ‘a federation averting war, maintaining its ground andever expanding over the world’.158

The third definitive article provides that the rights of human persons,‘as citizens of the world, shall be limited to the conditions of universalhospitality’.159 This is the right not to be treated as a enemy; it belongs toall human persons by virtue

of our common right of possession on the surface of the earth on which… wecannot be infinitely scattered, and must in the end reconcile ourselves toexistence side by side: at the same time, originally no one individual had moreright than another to live in any one particular spot.160

The right is that which ‘is implied in a permission to make an attempt atintercourse with the original inhabitants’. Individuals from ‘far distantterritories’ may consequently ‘enter into peaceful relations with oneanother. These relations may at last come under the public control of law,and thus the human race may be brought nearer the realisation of acosmopolitan constitution.’161 The intercourse between the different peo-ples of the world, Kant argues, ‘has now extended so enormously that aviolation of right in one part of the world is felt all over it’. The idea of acosmopolitan right is a necessary complement to international andconstitutional laws, ‘for the public rights of mankind in general and thusfor the realisation of perpetual peace’.162

155 ibid at 129.156 ibid at 130.157 ibid at 136.158 ibid at 136. Thomas Giegerich concludes that Kant argues for a ‘League of Nations’

rather than a world state, because the American federal system of divided sovereignty(United States Constitution 1787) ‘had not yet stood the test of time’ when Kant publishedPerpetual Peace: Giegerich (n 127) at 34.

159 Kant (n 142) at 137.160 ibid at 138.161 ibid at 139.162 ibid at 142.




A Law of Peoples

The argument in Perpetual Peace is that the avoidance of war can only beachieved through the establishment of a global federation of republicanstates. Each state is free to develop its own conception of political justice,whilst recognising the cosmopolitan reality that all human persons areco-members of world society. An important and influential variant on thedemocratic peace thesis that both draws on and resonates with theexisting international law order is developed by John Rawls in The Law ofPeoples. The aim is to outline a foreign policy for a reasonably just liberalpeople,163 acceptable within a reasonable Law of Peoples,164 ie to developa political conception of rights and justice that would apply to interna-tional relations, framed in terms of international law.165 The liberalinternational law order is agreed in a second (international) originalposition, following A Theory of Justice, which is concerned with domesticprinciples of justice.166 One criticism of A Theory of Justice was that it wasbased on an atomised individual, abstracted from her social context.167

The Law of Peoples adds a second original position, in which participantsare not individuals, but the rational representatives of liberal peoples,168

who must agree a conception of international law acceptable to non-liberal but decent peoples. Consistent with the liberal principle of plural-ism within and between societies, the law of peoples requires that liberalpeoples tolerate other decent peoples as ‘equal participating members ingood standing of the Society of Peoples’.169

The focus on ‘peoples’ has been subject to criticism, not least becauseRawls fails to define the term with any clarity,170 although, as CharlesBeitz observes, ‘for most purposes it can be interpreted as referring to asociety with a common political culture organized as a state’.171 Rawlsargues that peoples strive to protect their hard won political independ-ence and free culture, and ‘to guarantee their security, territory, and the

163 John Rawls, The Law of Peoples (Cambridge, Massachusetts, Harvard University Press,1999) 10 (emphasis in original). Rawls distinguishes five different kinds of societies:reasonably liberal peoples; decent peoples; outlaw states; societies burdened by unfavour-able conditions; and benevolent absolutisms, which honour human rights, without permit-ting members a role in making political decisions: ibid at 4.

164 ibid at 26.165 ibid at 3.166 John Rawls, A Theory of Justice (Oxford, Clarendon Press, 1972).167 Anupam Chander, ‘Diaspora Bonds’ (2001) 76 New York University Law Review 1005,

1047.168 Rawls (n 163) at 32.169 ibid at 59.170 Thomas Pogge, ‘The Incoherence between Rawls’s Theories of Justice’ (2004) 72

Fordham Law Review 1739, 1743.171 Charles Beitz, ‘Rawls’s Law of Peoples’ (2000) 110 Ethics, 669, fn 7.




well-being of their citizens’.172 Nowhere does Rawls suggest that peoplesnot organised as states are equal participants in the society of peoples.173

In another context, Philip Allott observes the obsession in internationallaw writings (and writings about international law) to develop categories‘designed to normalize the isolating of human societies (sovereignty,sovereign equality, domestic jurisdiction, territorial integrity, political independ-ence), as if it feared the impulsive power of human solidarity’.174 Interna-tional law ‘begins to speak of democracy as an international legal concept,but seeks to incorporate it in an international system whose structureassumes that there are no societies other than state-systems, state-systems in a systematic relationship of pre-democracy and pre-sociality’.175

In contrast to states, which are rational self-interested actors, Rawlsargues that we can attribute ‘moral motives’ to peoples:176 what distin-guishes peoples from states is that ‘just peoples are fully prepared togrant the very same proper respect and recognition to other peoples asequals’.177 The principle of discourse is applied to the representatives ofliberal peoples in the second original position. Liberal peoples have threebasic features: a reasonably just constitutional democratic governmentthat serves the fundamental interests of citizens; citizens united bycommon sympathies; and a moral nature, ie a political conception ofright and justice.178 In the first original position, the rational actors areindividuals who agree principles of domestic justice. The second (inter-national) original position does not allow for the participation of indi-viduals, although Rawls concludes that one of the principles ofinternational justice will be that peoples honour human rights.179 Theobjective of discussions is agreement, through reasoned deliberation, on

172 Rawls (n 163) at 34.173 Allen Buchanan, ‘Rawls’s Law of Peoples: Rules for a Vanished Westphalian World’

(2000) 110 Ethics 697, 699.174 Philip Allott, ‘Reconstituting Humanity – New International Law’ (1992) 3 European

Journal of International Law 219, 247 (emphasis in original).175 ibid at 248 (emphasis in original).176 Rawls (n 163) at 17. Seyla Benhabib notes that, for Rawls, peoples are viewed ‘as

carriers of a coherent moral world-view’, ignoring the fact of significant divisions insocieties, including liberal democracies: Seyla Benhabib, ‘The Law of Peoples, DistributiveJustice, and Migrations’ (2004) 72 Fordham Law Review 1761, 1766. Benhabib notes thatnational forms of collective (self-)identity are formed through ‘competing and contentiousnarratives, through which universalizing aspirations and particular memories competewith one another to create temporary narrative syntheses’: ibid at 1768.

177 Rawls (n 163) at 35.178 ibid at 23–24.179 ibid at 37. Rational individuals in the second ‘original position’ might well have

agreed that global justice requires the effective protection of human rights in all states,allowing a right of humanitarian intervention, because ‘they might end up as citizens oftyrannical states’: Fernando Téson, ‘The Kantian Theory of International law’ (1992) 92Columbia Law Review 53, 84. See also Pogge (n 170) at 1745




the principles that can be shared by different peoples.180 The representa-tives of liberal peoples will agree a Law of Peoples that reflects the liberalconception of justice agreed in the first original position, including theidea of reasonable pluralism.181 Given that the Society of Peoples willhave many more different cultures and traditions than domestic societies,Rawls concludes that respect for pluralism and tolerance of differencerequires the recognition of the principle of the equality of peoples,182 andthe right, within certain limits, of peoples to follow their own ways oflife.

The Law of Peoples does not require that (non-liberal) decent societies‘abandon or modify their religious institutions and adopt liberal ones’.183

The principle of equality applies both between liberal peoples, andbetween liberal peoples and decent hierarchical peoples, whose societieshave a pre-ordained conception of the good, pursued by the peoplethrough government institutions. Rawls gives the example of the fic-tional state of Kazanistan, where Islam is the favoured religion and onlyMuslims can hold the upper positions of political authority and exert adecisive influence on fundamental policy issues, but in which minoritiesare tolerated and enjoy the rights to a distinctive culture.184 Decenthierarchical peoples are distinguished by the fact that whilst they are notliberal (ie, they do not possess a political concept of justice and the goodlife developed through democratic deliberations), they do not haveaggressive aims and do respect the human rights of all members andprovide mechanisms to give members a role in political decision-making.185 The principle of equality does not apply between liberalpeoples and ‘outlaw states’, ‘burdened societies’, or ‘benevolent absolut-isms’, which are not well ordered because they do not permit effectiveparticipation by all members of the society.186

The Law of Peoples outlines ‘familiar and traditional principles of justiceamong free and democratic peoples’, following JL Brierly’s The Law ofNations:187 peoples are free and independent; peoples are to honour

180 ibid at 55.181 ibid at 33.182 ibid at 40.183 ibid at 121.184 ibid at 75–76.185 ibid at 71.186 Pogge (n 170) at 1740.187 JL Brierly, The Law of Nations: an Introduction to the International Law of Peace, 6th edn

by Sir Humphrey Waldock (Oxford, Clarendon Press, 1963). Vaughan Lowe has updatedThe Law of Nations, and articulated the following ‘principles of the international legalsystem’, drawn from GA Res 2625 (XXV), ‘Declaration on Friendly Relations’, which ‘looksalmost like a statement of basic constitutional rules and principles’: a prohibition on the useof force; the settlement of international disputes by peaceful means; non-intervention indomestic affairs; a duty of co-operation; the principle of equal rights and self-determination; the principle of sovereign equality of states; and that states shall fulfil




treaties; peoples are equal; peoples are to observe the duty of non-intervention; peoples have the right to self-defence, but not to wage warfor reasons other than self-defence; peoples are to honour human rights;peoples are to recognise certain restrictions in the conduct of warfare;and peoples have the duty to assist other peoples living under unfavour-able conditions that prevent their having a ‘just or decent political andsocial regime’.188 Whilst The Law of Peoples outlines an ideal theory ofpeaceful relations between peoples, it also recognises the possibility ofconflict between liberal peoples and ‘non-well-ordered peoples’.189 Lib-eral peoples will go to war ‘with unsatisfied societies, or outlaw states[,]when such a state’s policies threaten their security and safety, since theymust defend the freedom and independence of their liberal culture’.190

Well-ordered liberal and decent peoples will not engage in war with eachother and they will only engage in conflict with non-well-ordered socie-ties in response to the expansionist policies of the other.191 A war ofself-defence is legitimated for liberal societies in defence of the basicfreedoms of their citizens, their constitutionally democratic politicalinstitutions, and the many religious and non-religious traditions andforms of life.192 Decent peoples also have the right to defend their(monolithic) way of life, as do benevolent absolutisms: ‘any society that isnonaggressive and that honors human rights has the right of self-defence’.193

In addition to the use of force in self-defence, The Law of Peoples permitsmilitary intervention in cases of severe human rights abuses.194 Therelevant ‘minimalist’ human rights standards concern the rights to life,liberty, property and formal equality,195 and the ‘security of ethnic groupsfrom mass murder and genocide’.196 Charles Beitz explains that ‘humani-tarian’ intervention is justified by considerations of international stability,given that states that violate human rights (‘outlaw states’) are aggressive

international law obligations in good faith: Vaughan Lowe, International Law (Oxford,Oxford University Press, 2007) 90–100. No mention is made of the protection of humanrights.

188 Rawls (n 163) at 37. Steven Ratner argues that Rawls makes ‘two critical errors: (1) heuses international law norms applying to states to advance a moral theory regarding awholly different entity, namely peoples; and (2) by focusing on peoples alone (or byequating them with states), Rawls ignores the multiple entities – most important, states andindividuals – that can and do have rights and duties’: Steven Ratner, ‘Is International LawImpartial?’ (2005) 11 Legal Theory 39, 67 (references omitted).

189 ibid at 89.190 ibid at 48.191 ibid at 94.192 ibid at 91.193 ibid at 92.194 ibid at 49.195 ibid at 65.196 ibid at 79.




and dangerous, and that all peoples are more secure if ‘outlaw states’change, or are forced to change, their ways.197 The aim of any militaryintervention is to ensure that the target society becomes a full member ofthe society of well-ordered peoples.198 The aim of a ‘just war’ is a just andlasting peace among peoples; this does not necessarily require the impo-sition of a liberal and democratic government on the target society.199

The Law of Peoples does not include any principle of distributive justiceamong peoples analogous to the ‘difference principle’ agreed in the firstoriginal position which provides that all social primary goods (libertyand opportunity, wealth, etc), should be distributed equally, unless anunequal distribution is to the advantage of the least favoured.200 The Lawof Peoples proceeds as if societies ‘are economically self-sufficient anddistributionally autonomous (so long as they are well governed)’.201

States are responsible for the welfare of their citizens; ‘the internationalcommunity is responsible for maintaining background conditions inwhich decent domestic societies can flourish’.202 Poverty is a domestic,not an international, concern:203 inequalities between peoples result fromthe good or bad choices that they make for themselves;204 burdenedsocieties are burdened as a result of their own domestic policy failures.205

Liberal peoples have a duty of assistance, to help burdened societiesmanage their own affairs and eventually to become members of thesociety of well-ordered peoples, but that assistance must not be paternal-istic, it must aim for the ‘freedom and equality of the formally burdenedsocieties’.206 Once a burdened society is capable of effective self-government, the duty of humanitarian assistance is fulfilled; no furthertransfers of aid are required.

197 Beitz (n 171) at 685.198 Rawls (n 163) at 93.199 ibid at 94.200 John Rawls, A Theory of Justice (Oxford, Clarendon Press, 1972) 303.201 Buchanan (n 173) at 706.202 Beitz (n 171) at 677.203 In this context, see art 28, Universal Declaration of Human Rights: ‘Everyone is

entitled to a social and international order in which the rights and freedoms set forth in thisDeclaration can be fully realized.’ See, further, Thomas Pogge, ‘Recognized and Violated byInternational Law: the Human Rights of the Global Poor’ (2005) 18 Leiden Journal ofInternational Law 717, 721: ‘Article 28 should be read as holding that the moral quality, orjustice, of any institutional order depends primarily on the extent to which it affords all itsparticipants secure access to the objects of their human rights; any institutional order is tobe assessed and reformed principally by reference to its relative impact on the realization ofthe human rights of those on whom it is imposed.’

204 Rawls (n 163) at 117.205 ibid at 108. The idea that citizens should bear the consequences of the ‘bad choices’ of

governments is suspect in the absence of evidence that the government is in some wayaccountable to its citizens: Joel Trachtman, ‘Welcome to Cosmopolis, World of BoundlessOpportunity’ (2006) 39 Cornell International Law Journal 477, 494.

206 ibid at 111.




The Law of Peoples is an ideal theory. It does not address obligations thatmight arise from past relations of colonial exploitation or external inter-ventions, the advantages that the international system provides forcertain states,207 or the fact that different peoples enjoy greater or pooreropportunities as the result of factors outside of their control.208 Thetheory fails to acknowledge the structural advantages enjoyed by devel-oped nations in dealings with developing states as the organisation ofworld society reflects the preferences of wealthy and powerful states whoare able to ‘use their greater bargaining power to shape and reshape thisorder in their own favor’.209 International law agreements concerningtrade, investments, intellectual property, and the use of commonresources ‘can be shaped to be more or less favorable to various affectedparties and, in particular, shaped to be more favorable to affluentsocieties (and their citizens and corporations)’.210 The possibilities ofinter-state cooperation are conditioned by this ‘global basic structure’,and, as Allen Buchanan notes, it is ‘unjustifiable to ignore [this] in amoral theory of international law’.211

The Law of Peoples provides a significant contribution to debates aroundthe democratisation of world society. It concludes that the principles ofliberal democracy and social solidarity that legitimate the exercise ofcoercive political authority in the state should not be imposed on otherstates, and need not be applied to the global law order. Joseph Razobserves that, for Rawls, the principles of justice that should be applied

207 See Pogge (n 170) at 1749; Frank Garcia, ‘The Law of Peoples’ (2001) 23 HoustonJournal of International Law 659, 670; Buchanan (n 173) at 706; also Stephen Macedo, ‘WhatSelf-Governing Peoples Owe to One Another: Universalism, Diversity, and The Law ofPeoples’ (2004) 72 Fordham Law Review 1721, 1727.

208 A World Bank report on Equity and Development notes that the most significantdeterminant in an individual’s life chances ‘is his or her country of birth’. It also notes that‘global markets are far from equitable, and the rules governing their functioning have adisproportionately negative effect on developing countries. The rules ‘are the outcome ofcomplex negotiating processes in which developing countries have less voice’. The reportconcludes that a more equitable system would require ‘more equitable rules for thefunctioning of global markets, more effective participation of poor countries in globalrule-setting processes, and more actions to help build and maintain the endowments ofpoor countries and poor people’. World Bank, World Development Report: Equity andDevelopment (Washington, DC, World Bank, 2006) 16.

209 Pogge (n 170) at 1749.210 ibid at 1750.211 Buchanan (n 173) at 706. The representatives of liberal peoples in the second original

position would choose principles of justice for the global basic structure to ensure that theglobal basic structure’s distributional effects did not impede that society’s capacity toachieve its own conception of justice, and avoid principles that might turn out to assignthem an inferior status in the Society of Peoples: ibid at 708. Concerned to protect theirinterests, they would also choose a principle of ‘democratic participation in the mostimportant global governance institutions’: ibid at 711.




at the domestic level cannot simply be extended to the internationalarena: ‘much of the content of the moral principles which govern socialrelations and the structure of social organisation is determined by thecontingent practices of different societies’. Two conclusions follow: theprinciples of justice that apply to global governance and internationalrelations cannot simply replicate those of a particular society, or type ofsociety, and ‘respect for the independence and autonomy of the state is ofgreat moral significance’.212 These conclusions are important in anydebate around the democratisation of world society.

COSMOPOLITAN DEMOCRATIC LAW

The implicit assumption of the democratic peace thesis is that if all stateswere democratic, the problem of democracy in world society would beresolved. The analysis follows the meta-principle of (Westphalian) sover-eignty in focusing on democratic representation through domestic insti-tutions (internally) and the inter-state system (externally). The argumentcould be sustained on two conditions: that the authority of internationallaw is subject to the democratic will of all states (see chapter three for thedifficulties with this argument), and that (sovereign) states enjoy amonopoly on the production of law norms. This is clearly not the case.The globalisation and fragmentation of governance subjects states tointernational law norms to which they have not given their consent.Daniele Archibugi makes the point that the ‘democratization of worldaffairs [cannot] be achieved solely by proxy, through single state govern-ments, however democratic they may be. A set of democratic states doesnot generate a democratic globe.’213 A global democratic order cannot befounded on democracy within states. Arguments for the strengthening ofsovereignty, or replication of state-like institutions at the global level, orfor a confederation of democratic states fail to recognise and accommo-date the extant nature of global governance. It is perhaps for this reasonthat those arguments, previously examined, have not resonated in policydiscussions or the academic literature.

Debates around the globalisation of the principle of democracy remaindominated by the model of ‘cosmopolitan democracy’, associated mostclosely with the work of David Held. The model does not aim to developa model of global democratic governance from first principles, but toconsider the implications of applying cosmopolitan and democraticprinciples to the existing system. In terms of etymology, the words

212 Joseph Raz, ‘Human Rights Without Foundations’ Working Paper No 14/2007(SSRN)(University of Oxford, Faculty of Law Legal Studies Research Paper Series, 2007) 12.

213 Daniele Archibugi, ‘Demos and Cosmopolis’ (2002) 13 New Left Review 24, 31.




‘cosmopolitan’ and ‘democracy’ are not easily conjoined. Democracy is asystem of government in which ‘the sovereign power resides in thepeople as a whole, and is exercised either directly by them … or byofficers elected by them.’214 It is literally, ‘rule by the people’, a termderived from the Greek demokratia, from demos (‘people’) and kratos(‘rule’), and coined to describe the political systems in some Greekcity-states, notably Athens.215 The idea of democratic ‘self’-governmentrequires a bounded demos, with rights and obligations following from thefact of membership. Cosmopolitans do not accept that the limits ofpolitical justice are defined and delimited by the contingent boundariesof the sovereign state.216 The individual is the ultimate unit of concernand all human persons are of equal concern for everyone, not just thoselinked by bonds of citizenship, or other contingent relations of national-ity, culture, etc.217 The Oxford English Dictionary defines a cosmopolitan asa person ‘belonging to all parts of the world; not restricted to any onecountry or its inhabitants’. According to Noah Feldman, the origin of theterm is credited to Diogenes the Cynic, a stranger in Athens (ie not acitizen), and thus excluded from the Greek ideals of the virtue ofparticipatory citizenship. When asked where he came from, Diogenesreplied: ‘I am a citizen of the world [kosmopolites].’218

For the cosmopolitan, co-membership is defined by reference to com-mon belonging in the human species. The argument may be understoodboth as a personal ethic,219 and as a meta-principle for the organisationand allocation of political authority in world society. There are sevenparamount cosmopolitan principles: equal worth and dignity; activeagency; personal responsibility and accountability; consent; reflexivedeliberation and collective decision-making through voting procedures;inclusiveness and subsidiarity; and avoidance of serious harm and the

214 The Oxford English Dictionary. 2nd edn 1989. OED Online (Oxford, Oxford UniversityPress, 2000).

215 Encyclopædia Britannica. Encyclopædia Britannica Online (2010).216 The idea of the human race forming a single society in international law may be

traced to Victoria (Relectio of the Reverend Father, Brother Franciscus de Victoria Concerning CivilPower) and Gentili (Suarez, De Legibus). See Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal of International Law 20, 32–33.

217 Thomas Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48, 48–49.218 Quoted, Noah Feldman, ‘Cosmopolitan Law?’ (2007) 116 Yale Law Journal 1022, 1027.219 Seyla Benhabib refers to the idea that every person that has interests, and whom my

actions, and the consequences of my actions affects, ‘is potentially a moral conversationpartner with me: I have a moral obligation to justify my actions with reasons to thisindividual or to the representatives of this being. I respect the moral worth of the other byrecognizing that I must provide him or her with a justification for my actions’: SeylaBenhabib, Another Cosmopolitanism (Oxford, Oxford University Press, 2006) 18. These ideasmay provide the basis for ethical reflection and consumer choice, but not the legitimateexercise of political authority by global governance actors (or the conditions for the exerciseof that authority).

Cosmopolitan Democratic Law 61



amelioration of urgent need.220 Archibugi writes that the political projectof cosmopolitan democracy is an attempt to reconcile globalisation withdemocracy, and recognise and respond to the threats to democracy posedby the processes of globalisation, whilst at the same time accepting that itis not possible for individual states to regulate the dynamics of globalisa-tion in an effective manner.221 Social, economic and political problemsand regulatory solutions are no longer defined exclusively by referenceto the bounded territory of the state. The effects of global warming arethe concern of all human persons, whilst inequalities in trade relationsare the concern of consumers in the developed parts of the world andother places, and producers in less developed parts. Globalisation hasproduced communities of fate defined by a common problem requiring a(global) regulatory solution.222

Cosmopolitan democracy proceeds from an understanding that demo-cratic theory can no longer be elaborated exclusively in terms of a theoryof government for a territorially delimited polity; nor can the state bedisplaced as a central point of reference. The argument for cosmopolitandemocratic law is outlined by David Held: the idea of sovereignty shouldbe disentangled from notions of fixed borders and territories to becomean attribute of the basic democratic law, which would operate at differentlevels, from the global to the regional to the state to lower levels (citiesand more local associations). The aim would be to establish a moreparticipatory form of democracy and create a ‘political order of demo-cratic associations, cities and nations as well as of regions and globalnetworks’.223 The application of cosmopolitan and democratic principleswould result in overlapping systems of governance organised in accord-ance with democratic law. Individuals would enjoy multiple citizenshipsand associated rights of political membership in the ‘diverse politicalcommunities that significantly affect them’.224 Those affected (in a ‘non-trivial’ way) by public decisions would have ‘an equal opportunity,directly or indirectly through elected representatives, to influence andshape them’.225 Political authority would be exercised in a political unit

220 David Held, ‘Law of States, Law of Peoples: Three Models of Sovereignty’ (2002) 8Legal Theory 1, 24.

221 Archibugi (n 213) at 28.222 Richard Bellamy and Dario Castiglione, ‘Democracy, Sovereignty and the Constitu-

tion of the European Union: Republican Alternative to Liberalism’ in Zenon Bankowski andAndrew Scott (eds), The European Union and its Order: the Legal Theory of European Integration(Oxford, Blackwell, 2000) 169, 173.

223 David Held, ‘The Transformation of Political Community: Rethinking Democracy inthe Context of Globalization’ in Ian Shapiro and Casiano Hacker-Cordón (eds), Democracy’sEdges (Cambridge, Cambridge University Press, 1999) 84, 107.

224 Held (n 220) at 33.225 David Held, ‘Cosmopolitanism: Globalisation Tamed?’ (2003) 29 Review of Interna-

tional Studies 465, 471.




that would be as small as possible, but still include all those significantlyaffected. Issues that can be dealt with at the local level, should be dealtwith at the local level, but it may be appropriate to move the locus fordemocratic decision-making away from the state when cosmopolitanprinciples can be upheld only in a transnational context, and when ‘thosesignificantly affected by a public matter constitute a transnational group-ing’.226

Cosmopolitan democratic theory is both cosmopolitan and democratic.The twin foci concern effective citizen control over decision-makingprocesses and recognition that political communities of fate are notdefined exclusively by reference to the boundaries of the sovereign state.Cosmopolitan public law is distinct from state law and international lawin that it operates both ‘within and across borders’,227 reflecting a globalsystem of fragmented authority. The concern is to ensure that the variouscommunities of fate exercise democratic control over the global regula-tory regimes that emerge in response to the processes of globalisation.There is no necessary connection between the boundaries of politicaldecision-making and the modern state, and no requirement that there is asingle locus of political authority: issues may be dealt with at the local(city/town), regional, or global level as appropriate. The implementationof cosmopolitan democratic law and establishment of a ‘cosmopolitancommunity – a community of all democratic communities’ requires a‘transnational, common structure of political action which alone, ulti-mately, can support the politics of self-determination’.228 Political institu-tions must be designed to ensure that all significantly affectedindividuals can participate effectively in decision-making processes thatmaximise the potential influence of the individual voice and vote. Thisdemands novel and imaginative responses to the problem of democraticcapture, and it is not sufficient simply to argue for a replication of stateinstitutions in a legal world in which ‘those affected’ are not (only)defined by the boundaries of the territorial state. Whilst a number ofregional and global regulatory regimes may seek to establish state-likedemocratic structures, including legislative and executive bodies,229 othersystems may rely on different mechanisms for determining the will oftransnational communities, such as elected supervisory bodies, or the useof referenda, that would cut across nations and nation-states at regionalor global levels.230 A particular concern is the protection of international

226 ibid at 475.227 David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan

Governance (Cambridge, Polity Press, 1996) 227.228 ibid at 232.229 ibid at 279.230 ibid at 272–73; also, Held (n 225) at 476–78.

Cosmopolitan Democratic Law 63



human rights norms, with the need for the establishment of a ‘thick’charter of human rights, including economic, social and cultural rights,and the creation of an international human rights court.231 Individualswould be able to appeal to international human rights bodies and havejudgments enforced against domestic governments.

The idea of cosmopolitan democracy provides important insights forthe democratisation of world society, and for beginning to think aboutthe democratisation of global law. What Held fails to explain withsufficient clarity is how political discourses can occur within global,transnational, or even sectoral communities of fate. In the absence ofgenuine processes of democratic will-formation, the exercise of politicalauthority in the name of some or other putative community of fate willremain, in the words of Jürgen Habermas, ‘a hegemonic legal façade’.There might be cosmopolitan law, but it would not be democratic law.232

Moreover, as Dennis Thompson observes, the proliferation of decision-making authorities under the cosmopolitan model would result in adecline of accountability, certainly in contrast to the state law system. Thedevelopment of a complex network of sites of authority will not providenon-members with opportunities for control or influence, or assist mem-bers to deal with the effects of the uncoordinated decisions of otheragencies and assemblies: ‘The dispersal of authority may generate morepoints of influence and more opportunities for participation, but it is alsolikely to offer less effective control and coordination.’233

DEMOCRATISING INTERNATIONAL INSTITUTIONS

Cosmopolitan democracy is an argument for the reallocation of politicalauthority to ensure the participation of all those affected in processes ofdemocratic will formation. It demands the recognition of new communi-ties of fate and establishment of democratic institutions to ensure thelegitimacy of global governance. A less radical approach is to applydemocratic principles of representation and accountability to existingstructures. The following sections examine arguments for applying theparliamentary principle of democracy to international organisations,specifically in relation to the UN, and for developing the idea of account-ability of international organisations.

231 Held (n 220) at 34.232 Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have a

Chance?’ in The Divided West (Cambridge, Polity, 2006) 115, 140.233 Dennis Thompson, ‘Democratic Theory and Global Society’ (1999) 7 Journal of Political

Philosophy 111, 115–16.




International Parliamentary Assemblies

One mechanism for the democratisation of global politics would be theestablishment of parliamentary-type institutions. At the domestic level,national parliaments legislature within a constitutional framework; holdthe executive to account; provide a forum for democratic debate; and, inparliamentary democracies, provide an expression of the ‘will of thepeople’ leading to the establishment of an executive government. Whereinternational organisations (and other non-state actors) exercise a regula-tory function, the parliamentary principle associated with the practice ofdemocracy suggests a requirement to establish a directly elected assem-bly that would both adopt international law norms and hold the regula-tory power-wielders to account. Robert Dahl is the best knownproponent of the view that democratic legitimacy for internationalorganisations requires the establishment of political bodies to provideindividuals with opportunities for political participation and mecha-nisms for accountability similar to those that exist in democratic states,concluding that elected representatives, or their functional equivalents,should exercise control over the more important international bureaucra-cies.234

In the fragmented world of law, the responsibility for global regulationis divided between some 250 international organisations and institutionsthat differ in the scale and importance of their responsibilities. Forty fivehave parliamentary assemblies, with representation often reflecting thesize of population of the relevant Member State. Anne Peters argues thatthe most powerful international organisations and institutions should be‘parliamentarised’, although she counsels against any view that globalparliamentary assemblies can provide effective political oversight: theirimportance lies in opening up international organisations to greatertransparency and public scrutiny, contestation and debate, and in pro-moting ‘political dialogue at the level of [domestic] parliaments, politicalparties, and civil society’.235 Examples of international parliamentaryassemblies include236 the Organization for Security and Co-operation inEurope, the Council of Europe, and North Atlantic Treaty Organization.

234 Robert Dahl, ‘Can International Organizations be Democratic? A Skeptic’s View’ inIan Shapiro and Casiano Hacker-Cordón (eds), Democracy’s Edges (Cambridge, CambridgeUniversity Press, 1999) 19, 31.

235 Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of InternationalLaw (Oxford, Oxford University Press, 2009) 324. See also Stefan Marschall, TransnationaleRepräsentation in Parlamentarischen Versammlungen: Demokratie und Parlamentarismus Jenseitsdes Nationalstaates (Baden-Baden, Nomos, 2005).

236 There have also been proposals to ‘democratise’ the World Trade Organizationthrough the introduction of a standing Parliamentary Assembly: Gregory Shaffer, ‘Parlia-mentary Oversight of WTO Rule-Making: the Political, Normative, and Practical Contexts’(2004) 7 Journal of International Economic Law 629, 639.

Democratising International Institutions 65



A notable development is the Pan-African Parliament, established underthe Constitutive Act of the African Union ‘to ensure the full participationof African peoples in the development and economic integration of thecontinent’.237 The Pan-African Parliament, which held its inaugural ses-sion in March 2004, is described as the ‘legislative body of the AfricanUnion’. At present it exercises an oversight function, and has advisoryand consultative powers, although the ultimate aim is to establish thePan-African Parliament as an institution with full legislative powers,whose members are elected by universal adult suffrage. Presently, the 265representatives are elected by the legislatures of the 53 African Unionstates and do not enjoy a direct electoral mandate.

With the exception of the Parliament of the European Union, nointernational parliamentary assembly permits direct elections. This maybe significant, as the European Court of Justice has stated that theexistence of the European Parliament reflects ‘the fundamental demo-cratic principle that the peoples should take part in the exercise of powerthrough the intermediary of a representative assembly’.238 The ideal ofparliamentary democracy provides the dominant paradigm in debates onthe European Union’s putative democratic deficit,239 with complaintsfocusing on the unwieldy size of the European Parliament, the dispropor-tionate representation of smaller Member States, internal language barri-ers, popular and media disinterest, and the central role of the EuropeanCouncil and Commission in decision-making and law-making.240 Thereis also the problem of a lack of a clear ‘European’ identity amongst thecitizens of the European Union, with political debates (and democraticwill-formation) remaining resolutely focused on domestic politics (evenin relation to issues within the competence of the European Union).

A comparative analysis of the roles and responsibilities of the variousparliamentary assemblies in the system of global governance is beyondthe scope of this work. It is, though, evident that none of the existing

237 Constitutive Act of the African Union 2158 UNTS 3 art 17(1).238 Case 138/79 SA Roquette Frères v Council [1980] ECR 3333 [33].239 Francesca Bignami, ‘The Democratic Deficit in European Community Rulemaking: a

Call for Notice and Comment in Comitology’ (1999) 40 Harvard International Law Journal 451,451.

240 Peter Lindseth, ‘Democratic Legitimacy and the Administrative Character of Supra-nationalism: the Example of the European Community’ (1999) 99 Columbia Law Review 628,674. Lindseth concludes that the Parliament of the European Union lacks democraticlegitimacy for the very reason that it is not exercising powers delegated to it by a sovereignpeople: ‘In the absence of a European demos, the Community legislative process might stillbe legitimate, but only in an administrative sense, in that it is exercising authority within itssphere of competence lawfully delegated by the Member States’: ibid at 675. Mattias Kummargues that without meaningful electoral politics, the attitude of citizens toward Europeaninstitutions will continue to oscillate between disinterest, fickle support, and resentment:Mattias Kumm, ‘Why Europeans Will Not Embrace Constitutional Patriotism’ (2008) 6International Journal of Constitutional Law 117.




international parliamentary assemblies functions in a way that is analo-gous to domestic legislatures in constitutional democracies, and there isno direct (electoral) relationship between any international organisationand those (formally) subject to its authority. Nanz and Steffek concludethat a democratic deficit exists in global governance ‘because interna-tional policy elites are not (elected) representatives of the people’.241

Citizens do not select international policy elites, and they cannot sanctionthem for poor or deficient performance, or remove them from officethrough electoral defeat. Daniel Weinstock argues that elections anddemocratic representation ‘are contingently, rather than conceptually,related to the foundational normative commitments of democracy’. Indi-viduals have an interest in avoiding domination, ie situations in which‘others have arbitrary power over them’. Elections ensure that citizenshave control over power-wielders, as they require that political elites are‘in some degree responsive to the interests of those for whom theylegislate’.242 There is also an instrumental value in electoral politics, asdirect participation provides an incentive for citizens to maintain aninterest in global politics,243 and the debate that precedes the act of votingis often an essential element in the process of democratic will-formation,as preferences are often shaped during an electoral campaign.244 Theabsence of competitive elections to international assemblies impugns thepolitical legitimacy of global regulatory norms – no elections, no democ-racy.

A UN Parliamentary Assembly

The previous section examined arguments seeking to establish a generalprinciple that (at least the most important) international organisationsshould possess a directly elected representative assembly to legitimateregulatory authority. A particular focus in the literature is the ways inwhich the parliamentary principle might be applied to the UN. Concreteproposals include Thomas Franck’s second chamber at the level of theUN General Assembly to represent individuals elected on the basis onuniversal suffrage, and Richard Falk’s Global Peoples Assembly, whichwould emerge as a de facto legislature in the global system.245 In Fairness

241 Patrizia Nanz and Jens Steffek, ‘Global Governance, Participation and the PublicSphere’ (2004) 39 Government and Opposition 314, 317.

242 Weinstock (n 118) at 12.243 ibid at 13.244 Andreas Follesdal and Simon Hix, ‘Why there is a Democratic Deficit in the EU: a

Response to Majone and Moravcsik’ (2006) 44 Journal of Common Market Studies 533, 549.245 See also the proposals of the Inter-Parliamentary Union (IPU), an international

organisation of parliaments of sovereign states, to work with the UN in order to makeinternational relations and decision-making more transparent. The idea is to create a




in International Law and Institutions, Franck introduces the idea of asecond chamber, but does not provide any detail.246 Elsewhere, heobserves that a forum that represented persons rather than governmentswould establish ‘some correlation between population and representa-tion’. With implicit reference to the largely unremarked ‘China problem’(a requirement of strict proportionality in representation would requirethat almost one in five seats in any global parliament be allocated tocitizens of the People’s Republic of China), Franck concludes that itmight be necessary to prescribe a maximum (and minimum) number ofrepresentatives per state.247 The proposal is for a more accurate reflectionof the plurality of opinions within states, and not the plurality ofopinions in world society. Following the US federal system, whichprovides for equal representation to each of the 50 states in the Senate(with two members for each state) and proportionate representation inthe House of Representatives (giving, for example, California 53 mem-bers and Alaska one), Franck proposes a bicameral General Assembly:one chamber organised along the Westphalian model of one state, onevote, the other directly elected according to the principle of universalsuffrage, with the number of seats allocated to each state correspondinggenerally to population. General Assembly resolutions might then beadopted on the basis of a simple majority in both chambers.248 Theinitiative would have the effect of energising world public opinion andcreating possibilities for direct participation in global politics, with corre-sponding positive effects on domestic democratic politics. In the longerterm, the directly elected chamber might assume the powers of the‘traditional state-sponsored “upper house”.’249 Franck does not specifywhat these powers might be, although in most cases the legislativeauthority of the upper house is subservient to that of the lower, often onthe basis that the lower house represents a clearer and more directexpression of the popular will.

Anne Peters argues that a UN Parliamentary Assembly could beestablished as a subsidiary organ to the General Assembly under art 22 ofthe UN Charter.250 Deputies could be appointed from the membership of

two-way direct line of communication between the UN and the national parliaments thatare members of the IPU: www.ipu.org/un-e/un-overview.htm (last visited 20 March 2009).See also the ‘e-Parliament’: www.e-parl.net (last visited 20 March 2009).

246 Thomas M Franck, Fairness in International Law and Institutions (Oxford, ClarendonPress, 1995) 483.

247 Thomas M Franck, ‘Fairness in Fairness Discourse’ in ‘Citizens in the InternationalRealm: the New Participatory Demands’ (2001) American Society of International Law,Proceedings of the Annual Meeting 162, 170.

248 ibid at 171.249 ibid at 172.250 UN Charter art 22: ‘The General Assembly may establish such subsidiary organs as it

deems necessary for the performance of its functions.’




national parliaments and hold a dual mandate.251 Delegates would reflectthe political composition of national parliaments, including members ofthe opposition, and thus reflect more accurately the plurality of thedominant political perspectives within the state. Significant groupswould continue to be unrepresented, notably the 370 million indigenouspeoples of the world, who are not generally represented in nationalparliaments. Representation in the UN Parliamentary Assembly wouldbe ‘roughly proportionate to the population of the UN member states,with minority protection for small states’. In an assembly of 560 mem-bers, the People’s Republic of China would have 31 seats, with stateswith populations of under one million being guaranteed one seat,although it is not clear what influence they might have on that basis, orhow the diminution of voice and vote in comparison with the UNGeneral Assembly might provide for a more ‘democratic’ UN. The UNParliamentary Assembly would exist alongside the UN General Assem-bly, and might subsequently allow for direct elections. In this ‘globalfederalist scheme, the General Assembly as the member states’ chamberwould become a “second” chamber’. The Parliamentary Assemblywould not initially enjoy law-making powers or ability to control thegovernment (whatever that might mean in the context of the UN),although it might share the budgetary power with the General Assemblyunder art 17 of the Charter. The Assembly would ensure that citizens hada voice, if not a vote, at a global level. The functions of the ParliamentaryAssembly might include a right of notice and comment on importantGeneral Assembly resolutions prior to a vote, and a right to proposemeasures that might be adopted by other UN bodies, including theGeneral Assembly. Its most important function would lie ‘in the parlia-mentary function of socialization and mediation and in the strengtheningof national parliaments[,] [as it] would inform national parliaments aboutUN and world policies and vice versa’.252

Richard Falk observes that democracy is now generally accepted as theonly legitimate form of domestic government, ‘leaving the conspicuouslack of global democratic institutions as the world’s greatest political

251 The use of the term ‘deputy’ as opposed to ‘representative’ is noteworthy. The OEDdefines a deputy as a person ‘appointed or nominated to act for another or others’: TheOxford English Dictionary. 2nd edn 1989. OED Online (Oxford, Oxford University Press,2000).

252 Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of InternationalLaw (Oxford, Oxford University Press, 2009) 326. A more modest proposal is made by PaulKennedy, who argues that the UN General Assembly should become a more effectivedeliberative body and thus increase its influence over other UN organs: Paul Kennedy, TheParliament of Man: the United Nations and the Quest for World Government (London, AllenLane, 2006) 275.




anomaly’.253 The solution is an ‘internationally elected global assembly’,a Global Peoples Assembly (GPA), which would challenge the existingorder and ‘undermine the claim that states are bound only by state-created international law, and then only when they give their consent’.254

While the consent of states confers a degree of legitimacy on internationalinstitutions, the idea that is ‘the exclusive means of legitimizing transna-tional institutions is anachronistic’. The idea of sovereignty must recon-cile itself with the modern commitment to democracy and humanrights.255 States derive their sovereign authority from the people, and,because citizens are the ultimate source of political authority, they canbypass their ‘sovereign intermediaries’ to create an international organi-sation with law-making powers. Citizens have the right ‘and perhapsresponsibility to found their own [Global Peoples Assembly]’.256 Onceestablished, the GPA would increasingly act as a ‘de facto legislature’(whatever that might mean).257 Representatives to the GPA would bedemocratically elected, assuming the possibilities of democratic politicsand rights of political participation in the electoral process. On this basis,the citizens of non-democracies ‘would have to go unrepresented, orpossibly be represented by delegates selected in some other way’.258

Daniel Weinstock explains (rather patronisingly): ‘[j]ust as children andvarious categories of incompetent persons are represented within maturedemocracies by proxies, we can imagine a similar arrangement obtainingfor the peoples of the world currently being governed undemocrati-cally.’259

International parliamentary assemblies might provide a useful addi-tion to the global institutional architecture where membership in theorganisation is limited to states and ‘global’ citizenship defined in aderivative manner by reference to citizenship of a state. The establish-ment of a global Parliament or introduction of a range of parliamentaryassemblies in relation to the most significant international organisationsand institutions would not, however, ensure the democratisation ofglobal governance through law. The establishment of a legislative assem-bly does not provide democratic legitimacy in the absence of a politicalcommunity defined by the exercise of political authority through law.The principal advantages of international assemblies lie in their ability toensure a representation of the plurality of dominant political opinions

253 Richard Falk, ‘On the Creation of a Global Peoples Assembly: Legitimacy and thePower of Popular Sovereignty’ (2000) 36 Stanford Journal of International Law 191, 192.

254 ibid at 193.255 ibid at 208.256 ibid at 209.257 ibid at 218.258 ibid at 219.259 Weinstock (n 118) at 17.




within states, and to compensate to some extent for the democratic deficitcreated by any application of the principle of sovereign equality to thelawmaking processes of international organisations (allowing for therepresentative of a greater diversity of interests and perspectives). Lackof citizen engagement with global politics suggests that members ofinternational assemblies should be (indirectly) elected by national parlia-ments, although engagement with an international electoral campaignmight generate a degree of awareness and ownership by citizens overglobal policy-making in relation to a limited number of internationalorganisations. The need to ensure that citizens are able to engage indemocratic debates around global politics suggests that the application ofthe parliamentary principle must remain limited to international organi-sations that restrict membership to democratic states (to allow for citizenengagement with global politics at the domestic level, and free and fair(direct or indirect) elections to the international assembly). The mostsignificant contribution of international assemblies to the democratisa-tion of global society lies, though, in the potential to develop an institu-tional mechanism to monitor the governance activities of globalregulators and provide a locus for informed democratic debate on theappropriateness (or otherwise) of global law norms, taking into accountthe interests of those represented in the deliberative body. The laws andpolicies adopted by such a body would not enjoy the same democraticlegitimacy of a national Parliament, but the legislative acts of interna-tional assemblies would have a claim to epistemic authority, in terms ofstating a democratic ‘truth’ developed within an international law order.

THE ACCOUNTABILITY DEFICIT

The practice of democracy at the level of the state is not only concernedwith the holding of free and fair elections to a representative assembly.Other aspects include open public debate, transparency, and the account-ability of power-wielders to those affected by their actions. The idea oftransparency also assumes a relationship of accountability: the transpar-ency of actor A to actor B is the ability of B to receive information from A.It reflects the ability of B to access information, rather than A offeringinformation, and makes clear the relational character of transparency.260

A number of writers contend that the emphasis of reform should be onthe accountability deficit in global governance. Gregory Schaffer arguesthat the normative legitimacy of a decision does not only depend on

260 Alexandru Grigorescu, ‘Transparency of Intergovernmental Organizations: the Rolesof Member States, International Bureaucracies and Nongovernmental Organizations’ (2007)51 International Studies Quarterly 625, 626–27.

The Accountability Deficit 71



whether it has been made by an elected official or assembly. If that werethe case, decision-making in a democracy could not be delegated tobureaucracies, courts, or any other body. The legitimacy of a politicalinstitution should be evaluated in a broader sense, as concerning therelative accountability of decision-making processes to those affected bythem:

International institutions should not be judged against some ideal type ofnational democracy, but in terms as to whether they allocate decision-makingauthority in a manner that permits for a relatively less-biased representation ofaffected parties compared to other institutional alternatives.261

A particular concern is the exercise of regulatory authority by groups ofexperts (technocracy), without the recognition of the need to introducedemocratic procedures for the exercise of (legitimate) political authority.

The Role of Experts

The phenomenon known as globalisation has created a number ofdifficulties for the organisation of social, economic and political life thatcan (seemingly) only be dealt with through global regulation by interna-tional organisations and other non-state actors. The relocation of regula-tory authority is seen to provide benefits that could not otherwise beachieved. Proponents of global regulatory responses argue that demo-cratic legitimacy should not depend on competitive elections to selectpower-wielders, but on the establishment of accountable institutions thatengage in problem-solving activities in accordance with the public inter-est. Kal Raustiala observes that international economic institutions maybe legitimate, because they are instrumentally useful: ‘if state legitimacyis partly grounded in effectiveness, effective international economicinstitutions may be legitimate – because they are instrumentally useful –even though they lack accountability in the usual sense’.262 Internationalorganisations may make a claim to output-legitimacy, through the posi-tive effects they have for the peoples of the world, even though they lackinput-legitimacy, given the absence of citizen participation and control.263

The distinction between ‘output-’ and ‘input-legitimacy’ is made byFritz Scharpf, who observes that, in a democracy, the exercise of coercive

261 Gregory Shaffer, ‘Parliamentary Oversight of WTO Rule-Making: the Political, Nor-mative, and Practical Contexts’ (2004) 7 Journal of International Economic Law 629, 633–34.

262 Kal Raustiala, ‘Rethinking the Sovereignty Debate in International Economic Law’(2003) 6 Journal of International Economic Law 841, 862.

263 Hauke Brunkhorst, ‘Globalising Democracy without a State: Weak Public, StrongPublic, Global Constitutionalism’ (2002) 31 Millennium: Journal of International Studies 675,688.




political authority is legitimised as a manifestation of collective self-determination: government by the people (input-orientated legitimisation,often defined in terms of participation and/or consensus) and govern-ment for the people (output-orientated legitimisation). Legitimacy cannotbe based on input-orientated, ie participatory, notions of democracyalone, given the problem of self-interested majority-rule. Political choicesare legitimate only to the extent that they ‘promote the common welfareof the constituency in question’.264 The ‘welfare of all’ must be anargument in the preference function of each citizen. Members of apolitical community must recognise that they are part of the samecommunity of fate, and have regard to the interests and perspectives ofco-members, who must in turn have regard to their interests and perspec-tives. This requires a degree of trust and solidarity, which, Scharpfargues, is most likely to be present in existing communities of fate,defined by a common sense of history, language, culture and identity. It is(implicitly) an argument that democracy is only possible in the modern‘Nation’ state.265 The sense of trust and solidarity that endures in themajority of states (excepting those with significant intra-state conflict)does not exist in the case of supranational organisations.266 In relation tothe European Union, the lack of a pre-existing sense of collective identity,of Europe-wide policy discourses, and absence of Europe-wide institu-tional infrastructure to ensure the accountability of power-wielders to aEuropean constituency means that there is no reason to assume solidar-ity, and no reason to favour direct over representative forms of democ-racy: citizens may legitimately be represented by states in law-makingfora.267

264 Fritz Scharpf, Governing in Europe: Effective and Democratic? (Oxford, Oxford Univer-sity Press, 1999) 6.

265 ibid at 8. A critique of the veracity of the claim is beyond the scope of this work,although political maps drawn up in 1989, 1939, 1914 or 1871 demonstrate how few‘Nation’ states have proved enduring. The argument that democratic politics and politicalself-determination is only possible in the context of the (largely) homogenous nation-state isfamiliar to persons belonging to minorities and indigenous peoples, as dominant or titularmajorities often claim special privileges in the name of national self-determination. Thereality (as opposed to the national myth) is that the nation is a political and social construct,the result of the imposition of a homogenised identity through coercion and assimilation.The state is a construct of the modern political world (this is particularly the case outside ofWestern Europe where political borders largely resulted from the processes of decolonisa-tion, not assertions of national self-determination). It is certainly the case that citizens feeland exhibit strong bonds of trust and solidarity with co-members (ie with other citizens),and that those bonds are (in many cases) stronger in relation to co-members than otherrelationships in world society. The mistake is to assume that the sense of trust and solidarityflows from the fact that co-members are not ‘others’, ie that they are like us, and not from acommitment to the constitutional order.





Democratic self-determination requires a commitment to democraticlaw-making and democratic politics focused on the welfare of all. Gov-ernment for the people (‘output-legitimacy’) derives its legitimacy from acapacity to solve problems requiring collective solutions that could notbe solved through individual action, market exchange or voluntarycooperation in civil society. It pre-supposes the existence of a constitu-ency connected by the perception of a range of common interests thatjustifies the institutional arrangements for collective action. There may be‘multiple, nested or overlapping, collective identities defined by specificclasses of problem-solving concerns’. Constituencies need not claim theexclusive, or even primary, loyalty of their members; they may be bothterritorial and sectoral.268 Government for the people is interest basedrather than identity based.269 Legitimacy is provided by legal norms andinstitutional arrangements that hinder the abuse of public power, andfacilitate effective problem solving. This does not imply some form ofbenevolent global governance, only that ‘all interests should be consid-ered in the definition of the public interests, and that the costs andbenefits of measures serving the public interest should be allocatedaccording to plausible norms of distributive justice’.270 Scharpf concludesthat government for the people ‘will favour policy choices that can bejustified in terms of consensual notions of the public interest’.271

Globalisation has resulted in social, economic and political life becom-ing both more complex and more uncertain. In conditions of scientificand social complexity, the idea of good governance might suggest thatthe force of better expert argument (government for the people) devel-oped in terms of consensual notions of the public interest might bepreferred to (ill-informed) government by the people. The complexproblems of globalisation require technical solutions that only expertdeliberations and decision-making can provide. Informed, consensus-seeking deliberations in expert committees can be seen as an essentiallegitimating device for the exercise of political authority by non-stateactors. Peter Haas has developed the idea of governance by ‘epistemiccommunities’. Technological uncertainties and the complexities of globalgovernance have made international policy coordination ‘not onlyincreasingly necessary but also increasingly difficult’.272 This leads to anincreasing reliance on networks of policy based experts, or epistemic

268 ibid at 11.269 ibid at 12.270 ibid at 13.271 ibid at 188.272 Peter Haas, ‘Introduction: Epistemic Communities and International Policy

Co-ordination’ (1992) 46 International Organization 1, 1.




communities, that both frame problems of global governance and articu-late solutions, and play an important role in constructing knowledge andidentities in the international system.273 An epistemic community is anetwork of professionals with recognised expertise in a particulardomain, ‘and an authoritative claim to policy relevant knowledge withinthat domain or issue area’. The professional standing of members of theepistemic community and their reputation for expertise is highly valuedby society and political elites, enabling them to influence social andpolitical discourses and policy outcomes. The community will possess acommon set of normative principles that provide the rationale for thesocial action of community members; shared causal beliefs derived froman analysis of the problem; shared notions of validity, ie for validatingknowledge in their domain of expertise; and a common policy enterpriseto which professional competence is directed, ‘presumable out of theconviction that human welfare will be enhanced as a consequences’.274

One example would be a sub-set of economists with a particular ideo-logical perspective (economists as a whole constitute a ‘profession’).275

The paradigm case in global governance would be those Chicago free-market economists influenced by Milton Friedman.

The move from inter-state politics to a reliance on expert knowledge inglobal governance, and on knowledge and ‘truths’ constructed byexperts, replicates the shift at the domestic level from the democraticstate to the so-called administrative state, in which significant aspects ofregulatory authority are delegated by representative bodies to adminis-trative agencies. Many policy decisions in a constitutional democracy aremade by non-representative institutions, such as bureaucracies, courtsand quasi-public bodies that are neither elected by, not directly account-able to, the people. Giandomenico Majone argues that the delegation ofpolicy-making results in better, ‘less political’, policy-making, given thatelected governments, with one eye on forthcoming elections, are unlikelyto adopt and maintain policies in the face of (short-term) antagonisticpublic opinion.276 As the government/legislature cannot bind its succes-sors, public policy is always vulnerable to reform, and therefore ‘lack[s]credibility’.277 The relatively short period between elections militatesagainst the government adopting the right policy-position on issuesrequiring long-term solutions. Delegation to independent institutionsallows for credible policy positions to be established that are likely to be

273 ibid at 2.274 ibid at 3.275 ibid at 19.276 Giandomenico Majone, Regulating Europe (London, Routledge, 1996) 41.277 ibid at 42. See also, Giandomenico Majone, ‘Europe’s “Democratic Deficit”: the

Question of Standards’ (1998) 4 European Law Journal 5.




sustained in the face of hostile public opinion, and may consequently berelied on by (economic) actors. The substantive legitimacy of administra-tive bodies depends on the ability to deliver ‘good outcomes’ in accord-ance with relatively precise objectives established by institutionsaccountable to the people.278 Procedural legitimacy is provided by ‘pro-fessional discretion, policy consistency, fairness [and] independence ofjudgement’.279 The argument suggests that it is possible to make adistinction between ‘political’ issues, which should be decided by thepeople or their representatives, and ‘administrative’ or ‘non-political’problems, which should rely on the ability of non-majoritarian institu-tions to identify the correct policy position by reference to agreedknowledge. (The delegation of interest rate policy to the central bank isthe paradigm example.) Politicians decide on political issues, whilstbureaucrats administer technocratic problems.

Barnett and Finnemore argue that we should regard internationalorganisations as a form of bureaucracy, an institution that enjoys adistinctive social form of authority based on the ability to make imper-sonal rules.280 Modern bureaucracies share four central features: a hierar-chy of officials within the bureaucracy; continuity of staff and full-timesalary structures; impersonality, ie the work is undertaken in accordancewith prescribed rules and operating procedures that eliminate arbitraryand political influences; and expertise, in that bureaucrats are selectedaccording to merit and trained for their function.281 Bureaucracies are‘producers of rules’ that both regulate and constitute the world.282

Authority is the ability to induce deference from others; it is a socialconstruction: ‘It cannot be understood and, indeed, does not exist apartfrom the social relations that constitute and legitimate it.’283 Whilstauthority often concerns the issuing of instructions or commands, inter-national organisations cannot simply assert: ‘Do what we say’. To beeffective, they must demonstrate that they ‘serve some valued andlegitimate social purpose, and, further, they must be seen to serve thatpurpose in an impartial and technocratic way using their impersonalrules’. The authority of international organisations lies in their ability topresent themselves as ‘not exercising power but instead serving oth-ers’.284 The instrumental character of a bureaucracy is ‘its need to serveothers’. Rational-legal authority is not sufficient by itself to provide

278 ibid at 294.279 ibid at 286.280 Michael Barnett and Martha Finnemore, Rules for the World: International Organizations

in Global Politics (Ithaca, Cornell University Press, 2004) at 3.281 ibid at 17–18.282 ibid at 18.283 ibid at 20.284 ibid at 21.




authority for international organisations (as bureaucracies), they mustdemonstrate that they ‘serve some social purpose’.285 The authority ofinternational organisations is constituted by the delegation of authorityfrom states; the moral authority of international organisations, ie theirclaim to represent the values of the international community against‘self-seeking’ states; and their expert authority.286 The idea of expertise iscentral to the ability of international organisations to ‘dominate andcontrol’. The argument, in the words of Zygmunt Bauman, is that ‘thosewho possess [expertise] ought to be in charge of doing things’.287

In conditions of complexity and uncertainty, a ‘community’ of expertscan, through rational and reasoned deliberation, establish a particularversion of the truth about world society, but that conception of truthcannot claim a universal (or even global) validity (or more accurately,cannot demonstrate such a claim). Epistemology in science (the ‘hardest’of knowledge disciplines after mathematics) informs us that knowledgeis only true for this point in time, until shown to be untrue, or subject tosome necessary re-interpretation (consider the ways in which the ‘truths’of the Newtonian world have adapted to those of Einstein and quantumphysicists). In the social world, ‘truths’ are only true to the extent thatthey are accepted as being true. Truth is always contingent and contest-able. In democratic societies, claims to epistemic authority (to be demon-strating a ‘truth’) are subject to the political will of the people andregulation by democratic laws (in accordance with the principles ofrationality and public reason). Technocrats can only inform politicaldeliberations; they cannot determine (political) outcomes.288 In condi-tions of reasonable disagreement and imperfect knowledge there are no‘non-political’ issues. Regulatory norms must always remain ultimately aquestion of democratic deliberation (at least in the context of democracy).It is not possible to allocate ultimate responsibility for ‘democratic’law-making to bodies or communities of experts. Technocracy (govern-ment by experts) in global governance is logically incompatible withdemocracy (government by the people).

In domestic settings, public pressure can be brought to bear onnon-representative (ie administrative) bodies to ensure that they remain

285 ibid at 22.286 ibid at 22–25.287 Zygmunt Bauman, Modernity and the Holocaust (Ithaca, Cornell University Press,

2000) 196, quoted ibid at 165.288 Where an epistemic community of scientific experts demonstrate a (scientific) ‘truth’

(consider the example of global warming), the failure of global and domestic regulators torecognise and respond to that ‘truth’ (in the absence of other compelling truth-claims)amounts to a failure of public reason.




broadly responsible and responsive to the people.289 Regulatory normsthat are not accepted by a majority are unlikely to be maintained in theface of antagonistic public opinion. Administrative policies are legiti-mate, not because they are the ‘right’ polities, but because they are theright policies for the particular community. The question as to whetherpolicy positions are ‘right’, ‘just’, or ‘correct’ is ultimately determined bythe members of the political community. Democratic laws and regula-tions reflect (in ideal circumstances) an expression of will-formation bythe people. Jürgen Habermas observes the tendency to bureaucratisationin the administration of the state and increased role for highly specialisedexperts removed from the supervision of ‘rationally debating bodies’.290

Administrative law is, however, a lesser, less legitimate, form of law thatis subject to democratically enacted law and the priority of laws legiti-mated in democratic procedures: ‘administrative power may not be usedto intervene in, or substitute for, processes of legislation’.291 All laws andregulations in the (democratic) state remain subject to the will of thepeople, expressed in the constitutional settlement and political laws.

Experience in domestic settings suggests that technocratic expertiseand compliance with constitutional and political law norms are insuffi-cient in themselves in terms of providing democratic legitimacy foradministrative agencies. Increased political legitimacy is achievedthrough enhanced accountability mechanisms such as judicial review,transparency, and participation rights.292 Further, traditional forms ofhierarchical supervision by elected representatives remain of paramountimportance in legitimating the exercise of political authority by adminis-trative bodies. Most importantly, domestic administrators are seen to beembedded within a shared legal and political tradition, with the admin-istrative agency exercising government functions for the people, aimed atthe welfare of all, ‘and, presumably, a shared commitment to the ultimatenational well-being’.293 In the case of supra-national organisations, there

289 Majone argues that procedural legitimacy for domestic regulatory bodies requiresthat they are created by democratic laws that define the authority and objectives of theagency; that regulators are appointed by, and responsible to, elected officials; that agenciesfollow clearly defined decision-making procedures, with rights of participation for affectedpersons; and that decisions are justified, ‘and especially that they are open to judicialreview, and are adequately monitored by the political principles’: Giandomenico Majone,‘Europe’s “Democratic Deficit”: the Question of Standards’ (1998) 4 European Law Journal 5,20.

290 Jürgen Habermas, The Structural Transformation of the Public Sphere: an Inquiry into aCategory of Bourgeois Society, trans by Thomas Burger (Cambridge, Polity Press, 1989) 233.

291 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Lawand Democracy, trans by William Rehg (Oxford, Polity, 1996) 173.

292 Peter Lindseth, ‘Democratic Legitimacy and the Administrative Character of Supra-nationalism: the Example of the European Community’ (1999) 99 Columbia Law Review 628,646.

293 ibid at 648.




is no ‘democratically-legitimate hierarchical superior’,294 and no sensethat the regulatory activities of the organisation are directed to thewell-being of the people of any particular state (in fact the opposite).Peter Lindseth makes the point that all international organisations sharea similar telos: to overcome a coordination or collective action problem.295

A supranational administration must balance the sovereign interests ofmember states against the broader interest of the membership as a whole:‘In the constitutionalist logic of supranational delegation, the abstract“membership at large” takes on the role of the legitimate politicalprincipal in the system, and it is to this abstraction that supranationalagents are supposed to owe their loyalty.’ It follows that any presump-tion in favour of a particular member (or members), ‘even if justified ondemocratic legitimacy grounds, is “constitutionally” inappropriate’.296

Administrators in international organisations owe their loyalty to theinternational regime, which seeks to overcome a coordination or collec-tive action problem. By regarding the collective membership as a wholeas the political principal, the logic of supranational delegation ignores theabsence of a ‘democratically-legitimate political principal capable ofexpressing or symbolizing the sovereignty of a self-governing people’.What remains is a ‘technocratic body… with an attenuated relationshipto the perceived ultimate source of the agency’s normative powers: theparticipating states severally as representatives of their “sovereign”peoples.’297

The Accountability of International Organisations

Accountability is an important aspect of democracy: ‘in a well-functioning democracy those who are ultimately responsible for policyshould be directly accountable to those who are affected by it’.298

Accountability may be both retrospective and prospective: retrospectiveelements include reporting requirements and complaints procedures;prospective elements include participation in, and transparency of,decision-making processes that take into account the interests of thevarious stakeholders.299 The idea of accountability applies both to theunlawful (ultra vires) and illegitimate exercise of political authority

294 ibid at 634–35.295 ibid at 734.296 ibid at 735.297 ibid at 736.298 Eric Posner and Adrian Vermeule, ‘Interring the Nondelegation Doctrine’ (2002) 69

University of Chicago Law Review 1721, 1748.299 Erika de Wet, ‘Holding International Institutions Accountable: the Complementary

Role of Non-Judicial Oversight Mechanisms and Judicial Review’ (2008) 9(11) German LawJournal 1987, 1991.




(often expressed in public law terms), and the exercise of authority that isdeemed to be (politically) unwise or unjust (with the possibility ofpolitical sanctions such as enforced resignations).

Grant and Keohane observe that the idea of accountability implies thatone or more actors have the right to hold other actors to a set ofstandards; to judge whether they have fulfilled their responsibilities inlight of those standards; and impose sanctions if they determine thatthese responsibilities have not been met. The idea presupposes theacceptance of roles and a relationship between those who exercise powerand those who hold them to account, and of the legitimacy of theoperative standards for accountability.300 An accountability relationshipis one in which an individual, group or other entity makes demands onan agent to report on their activities, and has the ability to impose costson the agent.301 Barnett and Finnemore observe that accountability mat-ters because the absence of accountability implies that those with power‘have the capacity to act without regard for those who authorize theiractions and for those whose lives are affected’.302 It is the idea ofaccountability that separates the exercise of power from domination.303 Areport by the International Law Association on Accountability of Interna-tional Organizations concludes that accountability is linked to theauthority and power of an international organisation: ‘Power entailsaccountability, that is the duty to account for its exercise.’304 The reportargues that international organisations should follow the principle ofstating reasons for decisions or a particular course of action.305

In terms of standards of accountability, Michael Bothe makes the pointthat under public international law ‘international organizations are

300 Ruth Grant and Robert Keohane, ‘Accountability and Abuses of Power in WorldPolitics’ (2005) 99 American Political Science Review 29, 29.

301 Robert Keohane, ‘Global Governance and Democratic Accountability’ in David Heldand Mathias Koenig-Archibugi (eds), Taming Globalization: Frontiers of Governance (Cam-bridge, Polity, 2003) 130, 139.

302 Michael Barnett and Martha Finnemore, Rules for the World: International Organizationsin Global Politics (Ithaca, Cornell University Press, 2004) 171.

303 ibid at 172.304 International Law Association, ‘Final Conference Report Berlin: Accountability of

International Organizations’ (2004) 5. Available at www.ila-hq.org/en/committees/index.cfm/cid/9. The Committee distinguished three forms of accountability: accountabil-ity for the fulfilment of functions established in constituent instruments; tortious liabilityfor injurious consequences arising out of acts or omissions not involving a breach of anyrule of international and/or institutional law; and responsibility arising out of acts oromissions which do constitute a breach of a rule of international and/or institutional law.

305 ibid at 13. In terms of procedural legitimacy, Majone observes that the ‘simplest andmost effective way of improving transparency and accountability is to require regulators togive reasons for their decisions. This would in turn activate a number of other mechanismsfor controlling regulatory discretion such as judicial review, public participation anddebate, peer review, policy analysis to justify regulatory policies and so on’: GiandomenicoMajone, Regulating Europe (London, Routledge, 1996) 292.




sealed off from legal challenges put forward by individuals: no remedy isprovided by the organizations, and they are immune from legal processin the courts of states’. To the extent that this is not deemed acceptable,three possibilities emerge: some form of waiver of immunity by theinternational organisation; arbitration; or some judicial or equivalentinstitution within the international organisation.306 In addition to thepossibility of public remedies, a number of international organisationshave established bodies to hold the organisation accountable for thedesign and implementation of policy. The World Bank Inspection Panelprovides a useful model in this respect.307 In the absence of formalmechanisms, most international organisations have introduced informalmechanisms to engage with external actors, including international civilsociety organisations and those potentially affected by policy decisions.The website of the IMF claims that the organisation ‘is held accountableby multiple stakeholders, including by its own internal watchdog, mem-ber governments, the media, civil society, and academia’. The internalwatchdog is the Independent Evaluation Office, established in 2001,whose mission ‘is to enhance the learning culture within the IMF,strengthen its external credibility, promote greater understanding of thework of the Fund, and support institutional governance and oversight’.The IMF has also enhanced transparency through engagement with themedia, and established an ‘IMF and Civil Society’ webpage.308

An important contribution in the literature has focused on the applica-tion of domestic administrative law principles to global governanceinstitutions, developed under the auspices of the Global AdministrativeLaw Project based in the Institute for International Law and Justice, NewYork University School of Law. Proponents include Nico Krisch andBenedict Kingsbury, who argue for the recognition of a ‘global adminis-trative space’ in which administrative functions are performed ‘in oftencomplex interplays between officials and institutions on different lev-els’.309 The common administrative nature of the function suggests the

306 Michael Bothe, ‘Security Council’s Targeted Sanctions against Presumed Terrorists:the Need to Comply with Human Rights Standards’ (2008) 6 Journal of International CriminalJustice 541, 542.

307 Daniel Bradlow and Claudio Grossman, ‘Limited Mandates and Intertwined Prob-lems: a New Challenge for the World Bank and the IMF’ (1995) 17 Human Rights Quarterly411, 431–32. See also Daniel Bradlow and Sabine Schlemer-Schulte, ‘The World Bank’sInspection Panel: a Constructive Step in the Transformation of the International LegalOrder’ (1994) 54 ZaöRV (Heidelberg Journal of International Law) 392; also Daniel Bradlow,‘Private Complainants and International Organizations: a Comparative Study of the Inde-pendent Inspection Mechanisms in International Financial Institutions’ (2005) 36 GeorgetownJournal of International Law 403.

308 www.imf.org/external/about/govaccount.htm (last visited 12 March 2009).309 Nico Krisch and Benedict Kingsbury, ‘Introduction: Global Governance and Global

Administrative Law in the International Legal Order’ (2006) 17 European Journal of Interna-tional Law 1, 1.




possibility of recognising and applying certain common (‘global admin-istrative law’) principles: transparency; opportunities for participation indecision-making processes; access to information; reasoned decision-making, including principles of non-discrimination and non-arbitrariness; and mechanisms of accountability, and effective remedies,including the possibility of informal and formal (judicial) review ofadopted policies and regulations.310 The idea of global administrativelaw is concerned with the mechanisms, principles and practices thatpromote the accountability of global administrative bodies, and theextent to which a global governance actor is required to account to othersfor the exercise of authority. The idea of accountability includes bothformal and informal mechanisms.311 Krisch accepts that the GlobalAdministrative Law ‘project’ emphasises a liberal (or even libertarian)idea of the rule of law:

Focusing on the accountability (and thus largely on constraints) of existinginstitutions may overemphasise the threat these institutions pose at theexpense of more positive, liberal or republican visions that see them as formsand fora for realizing self-government or non-domination.312

In a democracy, the key accountability relationships are between citizensand the holders of public office, both elected and appointed. Citizens areentitled to hold those in power to account, ‘either as the source of thatpower (the delegation model), or as the body of persons affected by it(the participation model), or both’. Deficits in performance may lead toapologies, resignations, the payment of compensation, or the closure ofthe institution.313 The ability to sanction those in power for poor perfor-mance provides ‘a powerful incentive for responsible and, more impor-tantly, responsive decision-making’. Decision-makers ‘have an incentiveto respond effectively to the needs of the populace if they know they canbe criticized and sanctioned by citizens’.314 The concept of accountabilityhas expanded in recent times to include a sense of individual responsibil-ity and concern for the public interest expected from public services; theinstitutional checks and balances by which democratic states seek tocontrol the actions of the government, including both formal institutionalmechanisms and informal ones; the linking of accountability with the

310 ibid at 2. See, also, Doreen Lustig and Benedict Kingsbury, ‘Displacement andRelocation from Protected Areas: International Law Perspectives on Rights, Risks andResistance’ (2006) 4 Conservation and Society 404, 413.

311 Nico Krisch, ‘Global Administrative Law and the Constitutional Ambition’ LSE LegalStudies Working Paper No. 10/2009 (SSRN) (2009) 12.

312 ibid at 16.313 Jan Aart Scholte, ‘Civil Society and Democratically Accountable Global Governance’

(2004) 39 Government and Opposition 211, 211.314 Molly Beutz, ‘Functional Democracy: Responding to the Failures of Accountability’

(2003) 44 Harvard International Law Journal 387, 402.




extent to which governments pursue the wishes or needs of their citizens(accountability as ‘responsiveness’); and the idea of accountability aspublic discussions between citizens.315 Increasingly, accountability is seenas a dialogical activity, requiring officials to ‘answer, explain and justify,while those holding them to account engage in questioning, assessingand criticising’.316 The simplest method of improving accountability is torequire an institution to demonstrate that it has taken into account theimpact of decisions on those affected by them, and to provide publicjustification for all policy positions.

The distinction between government for the people and government bythe people is important in highlighting the need for democratic politics totake into account the welfare of all those subject to the law. Where it isnot meaningful to speak about input-legitimacy (participatory notions ofgovernment by the people), the requirement remains for regulators todemonstrate that the welfare of all is the principal focus in the formationof policy. The contributions of expert opinion (validated within therelevant profession) is essential in developing effective policy, but inconditions of complexity, uncertainty and disagreement amongst reason-able persons, ‘right’ policy must be determined through democraticpractices. Democratic laws and the idea of political justice remained tiedto some concept of ‘community’ (or ‘demos’). Whilst we might accepttheir instrumental value in resolving problems of coordination andcollective action problems, it is not meaningful to refer to the democraticlegitimacy of global regulation by technocracies exercising governancefunctions for the people. The instrumental value of accountability lies inits ability to promote the development of better policy outcomes. Thedevelopment of a global politics of the welfare of ‘all subjected’, transpar-ent and participatory methods of policy-making, and mechanisms for thesanctioning of poor performance by global regulators do not providedemocratic legitimacy for the exercise of political authority through(international) law, but they should provide for better policy outcomes.

GLOBAL DISCOURSES: THE ROLE OF INTERNATIONAL CIVILSOCIETY

One of the central criticisms of globalisation and global governance isthat it operates in the shadow of a hegemonic discourse, a liberal

315 Richard Mulgan, ‘“Accountability”: an Ever-Expanding Concept’ (2000) 78 PublicAdministration 555, 556.

316 ibid at 569.

Global Discourses: the Role of International Civil Society 83



ideology of free trade and free markets (‘globalism’),317 and (less criti-cally) respect for liberal human rights norms. Opposing voices areregarded as being somehow backward, deviant, or unenlightened. Thedemocratic deficit is not the result of an absence of elections, but a lack ofcontestation around and about the dominant discourse, and its implica-tions for policy-making by international organisations. Michael Goodhartobserves, for example, that one of the greatest failures of Westerndemocratic thinking about globalisation ‘has been its inability (or unwill-ingness) to address the rather awkward problem of inequalities in theglobal distribution of and entitlement to wealth and social justice’.318 Thepoint is clear when one contrasts the ‘difference principle’ in Rawls’original position (that all social primary goods, liberty and opportunity,wealth, etc, should be distributed equally, unless an unequal distributionis to the advantage of the least favoured), with the absence of anyprinciple of distributive justice in the second original position imaginedin The Law of Peoples. Institutional reform of the UN (the introduction of aWorld Parliament, for example) would not change the way that globalelites think about the issue of global poverty.

Margaret Moore argues that the democratisation of global governancerequires the opening of spaces for political contestation in which interna-tional non-governmental organisations and other voices can provide acounterweight to the position of international institutions.319 Accordingto John Dryzek, the ‘real power of transnational civil society… is commu-nicative power’, ie the ability to ‘change the terms of discourse’.320 To theextent that global law norms reflect dominant discourses, the possibilityarises for international NGOs and other civil society actors to influenceinternational law by influencing the terms of the discourse.321 A notablecontribution was the campaign for the introduction of the Convention onthe Prohibition of the Use, Stockpiling, Production and Transfer ofAnti-Personnel Mines and on their Destruction.322 The World Bank has

317 Ulrich Beck, What is Globalization? (Cambridge, Cambridge University Press, 2000).See also Michael Haardt and Antonio Negri, Empire (Cambridge, Massachusetts, HarvardUniversity Press, 2000).

318 Michael Goodhart, ‘Democracy, Globalization, and the Problem of the State’ (2001) 33Polity 527, 541.


320 John Dryzek, ‘Transnational Democracy’ (1999) 7 Journal of Political Philosophy 30, 45.321 Whilst the formal sources of international law do not provide any role for civil

society actors operating in the global public sphere, Judge van den Wyngaert has concludedthat ‘the opinion of civil society… cannot be completely discounted in the formation ofcustomary international law today’: Dissenting Opinion of Judge Van Den Wyngaert, ArrestWarrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 137 155(emphasis in original).

322 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer ofAnti-Personnel Mines and on their Destruction 2056 UNTS 211.




acknowledged the increasing influence of civil society actors in shapingglobal policy in areas such as land mines, debt cancellation and environ-mental protection. The Bank uses the term civil society to refer to ‘thewide array of non-governmental and not-for-profit organizations thathave a presence in public life, expressing the interests and values of theirmembers or others, based on ethical, cultural, political, scientific, reli-gious or philanthropic considerations’. These include internationalNGOs, trades unions, indigenous groups, charitable organisations, faith-based organisations, professional associations, and others.323 Jan AartScholte observes that civil society engagement of ‘is now part of the dailyfare of [global] politics.’324 Each UN global summit, at Beijing, Cairo,Johannesburg, etc, has included a parallel civil society forum,325 and mostinternational organisations have devised mechanisms to engage withcivil society actors, often through elaborate websites.

International NGOs and other civil society actors may contribute toaccountable global governance in a number of ways: they can encourageand enable transparency, in particular effective transparency, makingsure that information is understood by those affected by global govern-ance activities; they can participate in policy monitoring and review,undertaking ‘watchdog and evaluation activities’ to ensure that interna-tional institutions are complying with their constitutive instruments andstated policy positions; and can assist those who suffer the deleteriousconsequences of global governance activities in seeking redress, andconsequently in establishing formal accountability mechanisms for moni-toring and control.326 The participation of international non-governmental organisations and other civil society actors is also animportant element in any attempt to ‘democratise’ global governance, asthey can both inform democratic debates, and link international institu-tions to public deliberation, in particular with affected and marginalisedindividuals and communities.

Increasingly it is argued that the focus for the democratisation of globalgovernance should be on the role of non-state actors, and that interna-tional NGOs should have a greater say in international law-making inorder to make ‘transnational governance more legitimate’.327 The argu-ment does not hold: the participation of international NGOs does not

323 www.worldbank.org/324 Jan Aart Scholte, ‘Civil Society and Democratically Accountable Global Governance’

(2004) 39 Government and Opposition 211, 214.325 ibid at 215. Richard Falk describes these as ‘experiments in global democracy and as

the birthing of global civil society’: Richard Falk, ‘What Comes after Westphalia: theDemocratic Challenge’ (2007) 13 Widener Law Review 243, 250.

326 ibid at 218–21.327 Oren Perez, ‘Normative Creativity and Global Legal Pluralism: Reflections on the

Democratic Critique of Transnational Law’ (2003) 10 Indiana Journal of Global Legal Studies




legitimate the exercise of global regulatory functions. First, it is notnecessarily the case that international NGOs are legitimate actors.328

Secondly, international NGOs are required to undertake a function (inlegitimating the exercise of political authority) for which they were notconstituted. The aim of civil society actors is to influence debate. They areoften ‘single-issue political agents’, not required to ‘see how the issuesthat they militate for fit into a broader policy agenda.’329 Thirdly, interna-tional NGOs must demonstrate a moral claim of a right to participate inglobal democratic politics. In domestic contexts, citizens have inherentrights of political participation, with NGOs representing the views andinterests of citizens. It is not clear whom international NGOs and civilsociety actors ‘represent’, as opposed to claim to represent, as they areoften not connected in any meaningful way to those persons whoseinterests they seek to advance. In many cases, international NGOsrepresent the perspectives, if not necessarily the interests, of one part ofthe global population: the middle classes of democratic states in Europeand North America.330 The inclusion of other voices in global governancediscourses is an important element in better, more inclusive decision-making processes, but it cannot be taken as authorising, or legitimating,the exercise of political authority by international organisations, orregarded as an expression of the will of the people(s) of the world, giventhe structural inequalities of power and influence.331

John Dryzek argues that global governance can be subject to demo-cratic control where global publics are able to engage with, and exercise aform of control over, the dominant discourses in world society: ‘Demo-cratic action in the international system is rooted in reflexive control ofthe prevailing balance of discourses.’332 A discourse involves a set ofbasic understandings, it is a ‘shared set of assumptions and capabilitiesembedded in language that enables its adherents to assemble bits of

25, 43. See also Paul Kennedy, The Parliament of Man: the United Nations and the Quest forWorld Government (London, Allen Lane, 2006) ch 7.

328 The legitimacy of international NGOs is dependent on a number of factors: compli-ance with legal norms; compliance with an internal constitution and consistency betweenprofessed mission (values) and actual behaviour; representativeness, ie the claim to repre-sent (and the consent of the represented); accountability, including appropriate governancestructures and ‘downward’ accountability; and performance. The three key aspects empha-sised in the literature are accountability, representativeness, and performance: Sarah Lister,‘NGO Legitimacy: Technical Issue or Social Construct’ (2003) 23 Critique of Anthropology 175,176–77.

329 Weinstock (n 118) at 17.330 Kenneth Anderson, ‘The Ottawa Convention Banning Landmines, the Role of Inter-

national Non-Governmental Organizations and the Idea of International Civil Society’(2000) 11 European Journal of International Law 91, 117.

331 Anthony McGrew, ‘Models of Transnational Democracy’ in David Held and AnthonyMcGrew (eds), The Global Transformations Reader, 2nd edn (Cambridge, Polity, 2003) 500, 501.

332 John Dryzek, ‘Transnational Democracy’ (1999) 7 Journal of Political Philosophy 30, 43.




sensory information that come their way into coherent wholes’.333 Theexercise of governance functions requires both institutions and rules, andan understanding of the purpose of governance: ‘if formal rules consti-tute institutional hardware, then discourses constitute institutional soft-ware. In the international system, the hardware is not well developed,which means that the software becomes more important still.’334 Extantdiscourses include market liberalism and human rights. Dryzek refers tothe idea of ‘transnational discursive democracy’, one that rests on theidea that ‘discourses and their interactions are consequential in produc-ing international outcomes through their influence upon and constitutionof actors. The democratic question then becomes how dispersed, critical,and competent influence can be established’. The idea of transnationaldemocracy is not institutionalised in formal organisations and does notrely on electoral processes: ‘it is to be found in communicatively compe-tent, decentralized control over the content and relative weight of glob-ally consequential discourses, which in turn resonates with theories ofdeliberative democracy stressing communicative action in the publicsphere’.335 The idea of a discourse provides a way of thinking about theworld and making sense of different situations, providing the basic termsfor ‘analysis, debate, agreement, and disagreement’. Discourses constructmeaning and delimit what counts as legitimate knowledge.336 The idea ofdiscursive democracy at the transnational level allows discourses to beinfluenced by the ‘reflective choices of human agents’.337 The democrati-sation of global governance does not depend on the existence of demo-cratic institutions, but the ability of critical citizens to engage in reasoneddeliberations in an attempt to persuade others.

For many, Dryzek’s argument may appear too amorphous to satisfythe need for dominant and powerful international organisations to bebrought under some form of accountability and democratic control.Arguments around the power of communicative action are perhaps moreeffectively addressed in the context of a specific organisation. Oren Perezmakes this argument, drawing on the concept of ‘creativity’, which isdistinguished from ‘dullness (or uniformity)’.338 There are two aspects ofcreativity: the possession of a flexible representational framework, ie theability to perceive an issue through several different perspectives, and

333 ibid at 34.334 ibid at 35.335 John Dryzek, ‘Transnational Democracy in an Insecure World’ (2006) 27 International

Political Science Review 101, 102.336 ibid at 104.337 ibid at 105.338 Oren Perez, ‘Normative Creativity and Global Legal Pluralism: Reflections on the

Democratic Critique of Transnational Law’ (2003) 10 Indiana Journal of Global Legal Studies25, 55.




the ability of a meaning system to break out of loops of all sorts. That is, thecapacity of a “thinking system” to observe itself, to identify different patternsin its activities, and to be able to cut short those patterns which becomerepetitive, obsolete, or just uninteresting.339

In relation to a legal institution, the idea of creativity refers to thecapacity to produce varied images of the same issue and possibility forthe institution ‘to reinvent itself in a non-repetitive way’. One of thevirtues of a creative transformation ‘is that it defies domination andexclusion. While it cannot guarantee that one’s voice will be heard, muchless accepted, it can ensure that the law is not dominated by a singlevoice.’340 Reference to the idea of creativity may be used as a measure forevaluating the legitimacy of legal structures, with attempts to democra-tise international law ‘reinterpreted as an effort to ensure the creativity oftransnational law’.341 In the context of the World Trade Organization, forexample, the role of international NGOs is not to ‘augment the WTOdemocratic profile, but, rather, to build up its creativity by exposing it toa variety of cognitive and normative standpoints.’ NGOs with differentpolitical or philosophical agendas must be allowed to participate, andtheir arguments must receive a fair hearing.342 The legitimising power ofthe procedural mechanisms of inclusion ‘depends, ultimately, on theircapacity to challenge the habitual patterns of the domains in which theyoperate’.343

Political legitimacy for the exercise of global regulatory functions canbe seen in terms of an international organisation adopting the rightpolicy in conditions in which it can be challenged (and challenges itself)to justify and reflect upon policy choices. Buchanan and Keohane arguethat legitimate global governance institutions should possess three epis-temic virtues: the ability to generate reliable information about coordina-tion points; transparency in the narrow sense, because accountability isrequired to determine whether they are performing current functionsefficiently and effectively; and transparency in the broad sense, under-stood in terms of providing sufficient information to permit inclusive,informed contestation of their current terms of accountability, and conse-quently accepting the possibility of revising the terms of accountabil-ity.344 The focus should be on the ‘epistemic-deliberative quality of theinstitution’, the extent to which it is able to provide the ‘informationneeded for grappling with normative disagreement and uncertainty

339 ibid at 56.340 ibid at 57.341 ibid at 60.342 ibid at 61.343 ibid at 64.344 Allen Buchanan and Robert Keohane, ‘The Legitimacy of Global Governance Institu-

tions’ (2006) 20 Ethics and International Affairs 405, 429.




concerning its proper functions’.345 There is a need for internationalgovernance actors to ‘offer public justifications of at least the morecontroversial and consequential institutional policies and . . . facilitatetimely critical responses to them’.346 Public justification allows globalpublics to engage with decision-making processes, make a judgement asto whether the decision-maker has sought to act in the global publicinterest, and engage critically with the substantive rationale for decisions.Buchanan and Keohane identify a ‘complex standard of legitimacy’:international organisations should enjoy the ongoing consent of demo-cratic states; should satisfy the substantive criteria of minimum moralacceptability, comparative benefit and institutional integrity; and shouldpossess the epistemic virtues needed to make credible judgements aboutwhether the three substantive criteria (minimal moral acceptability, com-parative benefit, and institutional integrity) are satisfied, and ensureongoing contestation about and critical revision of the goals of theinstitution, the terms of accountability, ‘and ultimately their role in adivision of labor for the pursuit of global justice, through their interactionwith effective external epistemic agents’.347

CONCLUSION

This chapter began by highlighting the different ways in which the ideaof a democratic deficit has been expressed in the literature: the deficit thatcitizens experience through the activities of global regulators; the deficitthat results in any move away from the principle of sovereign equality;and deficit that results from the exercise of global governance functionsin accordance with a dominant (liberal) ideology. The complaints sharean acceptance that (state) sovereignty is no longer the exclusive basis forthe allocation of political authority, although there is no agreement on asingle meta-principle of authority to replace the Westphalian settlement.There are, as Neil Walker observes, ‘various contending global metaprin-ciples of legal authority’.348 Each has both a ‘strong and exclusiveapplication’ and a ‘moderate and contributory application’. There is theabsolutist model that calls for the reaffirmation of state sovereignty and areturn to anarchy in international relations, and a version of liberalinternationalism, reflected in The Law of Peoples; there are arguments forrecognising vertical frameworks of authority, the establishment of aworld government in the strong version, and, in the moderate version,

345 ibid at 425–26 (emphasis in original).346 ibid at 428.347 ibid at 431–32.348 Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global

Disorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373, 386.

Conclusion 89



structures with some cosmopolitan norms and institutions; argumentsfor accepting the establishment of regional government and a dividedworld order, or some balance between regional conceptions of theinternational order; for recognising horizontal frameworks of authority,seeking to achieve integrity and the universalisability of norms acrosslegal orders, or, in the moderate version, some coherence in conflictnorms or ‘legal-field discursive’ ideas around international constitutionallaw or global administrative law, which in the strong version wouldrecognise a particular legal field as providing the ‘master discourse oflaw’. Finally, there is the pluralist meta-principle, which recognises a‘new anarchy of legal forms and relations’, or a ‘bottom up’ countervail-ing power model. Whilst the strong versions of each of the meta-principles of authority are mutually incompatible, the moderate versionsare not: what we see in their development is ‘either a degree of modestyof ambition and an awareness that they cannot provide a comprehensivemetaprinciple or a degree of developmental openness to the othermetaprinciples’.349

Arguments for the democratisation of world society demonstrate anacceptance that globalisation (including the globalisation of governance)has resulted in a loss for democracy, but no consensus on the nature ofthe loss, or necessary solution to the problématique of democracy follow-ing the globalisation and fragmentation of governance functions. Theproject of popular self-government appears more complex, with nopossibility of returning to the Westphalian status quo ante, but noagreement on whether popular self-government is possible following thecollapse of the Westphalian settlement, or what it might look like. Thereis no prospect of a global state, democratic or otherwise, and little to begained in imagining the present system as a global federation. Nor canlaw be seen in terms of a binary divide between state and inter-state(public international) law; the democratisation of global governancecannot be achieved through the establishment of a peaceful confedera-tion of democratic states. The globalisation and fragmentation of regula-tory functions has resulted in a condition in which states, internationalorganisations and other non-state actors assert political authority withoutany organising constitutional framework or organising principles.350 Theanarchic system of inter-state relations has been replaced by a system of(international) public law, in which international organisations claim to

349 ibid at 391–92.350 Phillip Cerny refers to the ‘neo-medieval’, ie pre-Westphalian, nature of the modern

global governance, with its competing institutions with overlapping jurisdictions, contestedlegal boundaries, and multiple and fragmented loyalties: Phillip Cerny, ‘Globalization andthe Erosion of Democracy’ (1999) 36 European Journal of Political Research 1, 21.




stand in hierarchical relationship with the ‘sovereign’ state. The develop-ment has occurred at both the global level, with the exercise of regulatoryauthority by the UN, the World Trade Organization, IMF/World Bank,etc, and at the regional level (North American Free Trade Agreement,European Union, African Union, Association of Southeast Asian Nations,etc).

Governance has globalised and fragmented, with states accepting theneed for highly focused cooperation and coordination efforts in varioussectors of global society. Some of this sectoral regulation is undertaken byformally constituted international organisations, such as the Interna-tional Whaling Commission, established by the International Conventionfor the Regulation of Whaling 1946,351 but there is also a role for non-stateactors such as the Internet Corporation for Assigned Names and Num-bers (ICANN), a not-for-profit private California company formed at thebehest of the Government of the United States to control internet domainname policy. The validity of international law is no longer a question ofsovereign will and we cannot be certain that all forms of global law willbe under the democratic control of citizens, or that power-wielders willbe accountable to citizens, either indirectly through the participation ofstates in international organisations, or through direct lines of account-ability between non-state actors and those affected by their regulatoryactivities. Any account of the democratisation of global governance mustaccount for both the democratic legitimacy of traditional forms of stateand international law, and new forms of global governance by non-stateactors — and for the ways in which these legal systems interact with eachother. In circumstances in which the idea of politically decidable issues issignificantly affected by the processes of globalisation and the globalisa-tion of governance, we need to radically rethink the understanding ofdemocracy and democratic politics, and the authority of internationallaw.

351 International Convention for the Regulation of Whaling 1946 161 UNTS 72.

Conclusion 91



2

Democracy Within and Beyond theState

COMPLAINTS THAT THERE is a democratic deficit in interna-tional law follow the globalisation of governance, and exercise ofadministrative and legislative functions beyond the state. When,

as in the past, the international law system was concerned principallywith relations between sovereigns, it made little sense to talk or worryabout a democratic deficit; increasingly, however, international lawnorms regulate aspects of social, economic and political life that werepreviously within the domaine réservé of states, with little, if any, inputfrom those subject to the norms. The loss of political control at thedomestic level, where democratic institutions and practices legitimise theexercise of government power, has not been accompanied by any com-pensatory moves to democratise international organisations and institu-tions. From the perspective of domestic societies, the removal of policyissues from the domain of democratic politics creates a deficit in thepractice of democracy that is difficult to ignore. International law limitsthe possibilities of political self-determination with no coherent justifica-tion emerging for the relocation of policy-making prerogatives to globalinstitutions.

To understand what is lost by any shift in the locus of lawmaking, it isessential to understand what is meant by democracy. A number ofmodels of democracy have been developed in the literature,1 and avariety of possible structures, institutions and processes employed (orproposed) in the practice of democracy. This work adopts the model ofdeliberative democracy developed by Jürgen Habermas in Between Factsand Norms,2 concluding that, in conditions of uncertainty and disagree-ment, the democratic legitimacy of laws depends on recognising thosesubject to the authority of the state law regime (the people) as being(albeit indirectly) the authors of law norms. Whilst noting the importanceof competitive elections, the focus of concern is discourse and debate:

1 See David Held, Models of Democracy, 3rd edn (Cambridge, Polity, 2006).2 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law

and Democracy, trans by William Rehg (Oxford, Polity, 1996).

Columns Design Ltd / Job: Wheatley / Division: 02_Democracy /Pg. Position: 1 / Date: 26/3


political truths emerge through processes of deliberation and bargaining(in accordance with the principle of public reason) that lead to a consen-sus on public policy. Deficiencies in the practice of democracy areevidenced by an absence of participation or lack of public reason.

Gunther Teubner explains that Habermas follows a ‘consensus theoryof truth, which declares as the criterion of truth the “potential” consensusof all discourse participants’. Epistemic authority is attributed to the‘communicative community’.3 Each communicative community mustwork out its own version of political truth. Political truth equates to theconsensus that would be arrived at through dialogue in an ideal speechsituation, in which positions are accepted as legitimate only whereagreed through uncoerced discussions by those affected by the outcomesof the process:4 ‘morality consists of the values by which we legitimatelydecide to govern our common lives’.5 The aim of deliberations in theideal speech situation is to arrive at a reasoned consensus that resultsfrom the force of the better argument. All those affected (or theirrepresentatives) have a right to participate, and each participant has theright to bring issues to the deliberations, and all arguments must begiven equal consideration (and subject to the same test of public reason).Under the theory of communicative reason, norms and principles are‘true’ if they can find recognition in an unconstrained discourse of allthose affected by them. Democratic laws result from the legal institution-alisation of discursive procedures of opinion- and will-formation ‘inwhich the sovereignty of the people assumes a binding character’.6 Thisleads Habermas to the principle of discourse: ‘D: Just those action normsare valid to which all possible affected persons could agree as partici-pants in rational discourses.’7 Democracy depends on the recognitionand application of the principles of discourse, democracy, and (parlia-mentary) representation: ‘democratic’ laws should have the agreement of

3 Gunther Teubner, ‘How the Law Thinks: Toward a Constructivist Epistemology ofLaw’ (1989) 23 Law and Society Review 727, 733.

4 Thomas Risse recalls Michel Foucault’s objection to the possibility of an ideal speechsituation, ie that ‘power as a social structure resides in the discourse itself. The rules of thediscourse prescribe which arguments can be legitimately used by the participants’: ThomasRisse, ‘“Let’s argue!”: Communicative Action in World Politics’ (2000) 54 InternationalOrganization 1, 17, relying on Michel Foucault, ‘Politics and the Study of Discourse’ inGraham Burchell, et al (eds), The Foucault Effect: Studies in Governmentality (London,Harvester Wheatsheaf, 1991) 53. Foucault regards discourse as an anonymous, impersonal,intention-free chain of linguistic events. It is social practice, not social structure. ‘The humansubject is no longer the author of the discourse. Just the opposite: the discourse producesthe human subject as a semantic artifact’: Teubner, ibid at 735.

5 David Dyzenhaus, ‘The Legitimacy of Legality’ (1996) 46 University of Toronto LawJournal 129, 150. See also Edward Rubin, ‘Rethinking Human Rights’ (2003) 9 InternationalLegal Theory 5, 58–59.

6 Habermas (n 2) 104.7 ibid at 107.

Democracy Within and Beyond the State 93



all citizens, and should be adopted by citizens, or their representatives, inan institutionalised process of law-making, which should be discursive incharacter. In the practice of democracy, the absence of an ideal speechsituation and reliance on majority rule explains the basis for (judicial)review, and possibility of challenge to democratic laws consistent withthe principle of democracy: laws adopted by majority rule have acontestable quality that precludes any argument that they represent anyabsolute form of political truth.

The proliferation of sites for the making of law norms following theglobalisation of governance makes the practice of (deliberative) democ-racy more complex as the locus for law-making is not only the sovereignstate. The democratisation of global law orders (even if possible ordesirable) would result in competing versions of democratic truth (con-sistent with the requirements of deliberative democracy): the democraticstate no longer decides all issues that are politically decidable, and thereis no one place that we can have reference to in order to establish ‘right’or ‘just’ norms for domestic societies (or parts thereof). This chapterproceeds as follows: it first establishes the nature of the problem fordemocracy created by the existence of international law, defining demo-cratic self-determination in terms of the ability of citizens to decidepolitically decidable issues. The work then defends the deliberativemodel developed by Jürgen Habermas and elaborates the central require-ments for the practice of (deliberative) democracy, emphasising theprinciple of discourse, distinctive nature of deliberative politics, andrequirement for law-making within formal deliberative institutions of arepresentative character (ie parliaments). A particular focus is the natureof human rights in a democracy, and the recognition that the scope andcontent of human rights norms is established through domestic demo-cratic processes, leading to a revised understanding of the nature ofconstitutional review (in terms of democracy promotion). The idea ofdemocratic self-determination is made both more complex and problem-atic by the emergence of systems of global governance in the absence of aglobal political community capable of democratic opinion- and will-formation. The chapter reviews the more recent attempts by Habermas tomake sense of the deliberative ideal given the (partial) globalisation ofgovernance functions.

INTERNATIONAL LAW AND THE DEMOCRATIC DEFICIT

The removal of policy issues from the political control of citizens is aproblem for domestic state law systems, but the relevance of democracyto international law is less clear: international law is not legislated by aglobal state; it does not claim to be an expression of the will of the people

94 Democracy Within and Beyond the State



of the world;8 and no international organisation enjoys a monopoly on thelegitimate use of force or ability to coercively enforce international lawnorms, the traditional claims, following Max Weber, of the modern state.The theory and practice of democracy appears premised on the existence ofa bounded political community with defined membership, capacity fordemocratic self-determination, and ability to coercively enforce agreed lawnorms. There seems little reason to apply the test of democratic legitimacythat has since the nineteenth century been applied to the state to (public)international law. Democracy, Joseph Weiler writes, ‘does not exist in avacuum. It is premised on the existence of a polity with members – the demos– by whom and for whom the democratic discourse with its many variantstakes place.’9 The ‘no demos, no democracy’ point is well known, but it is notthe totality of the argument. Weiler observes that the traditional under-standing is that states are in the business of government, whilst interna-tional law is concerned with the establishment of ‘a legal matrix forcoexistence and community among and of States ensuring order and jus-tice’.10 Different bases for legitimation have been applied to the two sys-tems: at the domestic level, the modern idea of the rule of law required thatlegal norms result from democratic processes; legitimacy in the interna-tional law system rested on the idea of sovereign equality. The binary modelwas appropriate provided a clear division of responsibilities existed, withdomestic law operating within the state and international law applyingbetween states. This is no longer the case. The laws that apply to domesticsocieties also result from international law-making processes, includingthose that result in the adoption of international instruments (treaties) and(global) law norms established by international organisations and othernon-state actors.

8 One former Secretary-General argues that the opening words of the United Nations(UN) Charter — ‘We the peoples of the United Nations’ — invoke the most fundamentalprinciple of democracy, that of popular sovereignty, rooting the sovereign authority ofMember States, and, consequently, the legitimacy of the UN itself, in the will of theirpeoples. The Charter thus ‘offers a vision of democratic states and democracy among them’:UN Secretary-General, Boutros Boutros-Ghali, ‘Supplement to Reports on Democratization:Agenda for Democratization’ (20 December 1996) UN Doc A/51/761r 1996 para 28.Another UN Secretary-General argues that, as the Charter is written in the name of ‘We thepeoples’, it ‘reaffirms the dignity and worth of the human person, respect for human rightsand the equal rights of men and women, and a commitment to social progress as measuredby better standards of life, in freedom from want and fear alike. Ultimately, then, the UNexists for, and must serve, the needs and hopes of people everywhere’: Kofi Anan, We thePeoples: the Role of the United Nations in the 21st Century (New York, United Nations, 2000) 6.

9 JHH Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the GermanMaastricht Decision’ (1995) 3 European Law Review 219, 222.

10 JHH Weiler, ‘The Geology of International Law-Governance, Democracy and Legiti-macy’ (2004) 64 ZaöRV (Heidelberg Journal of International Law) 547, 547. Weiler observes(ibid) that a dictatorship ‘that followed strictly its internal legal system, would be just that:A dictatorship following legal rules. It would not qualify as a system upholding the Rule ofLaw.’

International Law and the Democratic Deficit 95



Weiler distinguishes three forms of international law or modes of govern-ance: international law as transaction, international law as community, andinternational law as regulation. The idea of transactional international lawhas been the predominant form in the past; the paradigm example is thebilateral treaty, although multilateral treaties may equally be seen asexpressions of sovereign consent and interest.11 Where international lawagreements move beyond executory type contracts, terminated upon com-pletion, to establish ongoing relationships, they also exercise an independ-ent governance function, creating a regime of management.12 Secondly, theidea of international law as community follows from the emergence ofinternational organisations, such as the United Nations (UN) and EuropeanUnion, which regulate certain ‘common assets’ that may be both spatial andfunctional (international peace and security, the protection of human rights,etc). These regimes cannot be explained exclusively in terms of expressionsof sovereign consent; their defining feature is the existence of a legalcommunity whose objectives and values may be distinct from the objec-tives of one or more of the members (separately).13 Thirdly, the idea ofinternational law as governance, or ‘[World] Governance without Govern-ment’, is reflected in the activities of international organisations and inter-national law instruments (often treaties) that increasingly seek to regulateactivities that were hitherto ‘not only within the domain of States but withinthe domain of the administration within the State’. International law normsmay directly replace domestic norms, may inhibit domestic regulatoryregimes, or place de facto limits on political self-determination through theadoption of non-binding instruments.14 There is ‘governance, but criticallythere is no government and no governed’. Where there is governance,Weiler argues, it should be legitimated democratically. The idea of democ-racy presumes, however, the existence of both demos and institutionalisedgovernment: ‘We may define demos and demoi in different ways. But there isno convincing account of democracy without demos. Demos is an ontologi-cal requirement of democracy.’15 There is, according to this argument, nopossibility of applying the idea (and practice) of democracy in the absenceof already existing demos, defined by reference to the sovereign state (orequivalent political unit). There might be other bases of political legitimacyfor international law norms (broadly defined), but democracy is not arelevant criterion for evaluating the legitimacy of the regulatory practicesand structures of global governance.

11 ibid at 553.12 ibid at 554.13 ibid at 557.14 ibid at 559.15 ibid at 560.




Michael Goodhart observes that whilst there is no necessary relation-ship between democracy and the state, many, if not most, writers ondemocratic theory hold that democracy is probably impossible withoutthe state, and this dependency ‘appears to have firm empirical confirma-tion: democratic accountability isn’t guaranteed by state sovereignty, butit has only been achieved within the framework of sovereignty’.16 Thetheory and practice of democracy emerged in the context of the territorialstate, which defined and delimited the people: modern democracy is‘sovereign democracy; it presupposes and builds upon the normative andempirical framework of the Westphalian state’.17 Democratic theory relieson the taken-for-granted relationship between those making the law, the‘people’ or their representatives, and those subject to the law. Therequirement for democratic legitimation for the exercise of politicalauthority followed the emergence of sovereignty as the organising prin-ciple of government in the modern world (following the Peace ofWestphalia 1648), and the shift from a non-territorial to a territorial basisfor the exercise of authority and from a functional differentiation to theconsolidation of authority within the state.18 The (‘Westphalian’) sover-eign state defined ‘those affected’ as ‘the citizens of an already-constituted political community of fate’. Political institutions within thestate are democratically legitimate ‘not because they are representativeand give citizens equal influence but because they represent and giveequal influence to the right people’. At the level of global governance, themodel becomes incoherent, as it is not possible to determine who the‘right people’ are — there is no ‘taken-for-granted’ connection betweenthose establishing law norms and those affected by them.19

There may, then, outside of the context of the state, and (arguably)highly integrated international regimes such as the European Union, belittle to be gained by attempting to develop arguments around thedemocratic legitimacy (deficit) of international law. Democratic self-determination requires a clearly defined ‘self’, a citizenry with thecapacity for opinion- and will-formation, and effective (governmental)institutions for the execution of collectively binding decisions. It might beneither possible, nor sensible, to talk about democracy beyond theterritorial state, organised in accordance with a political constitution and

16 Michael Goodhart, ‘Democracy, Globalization, and the Problem of the State’ (2001) 33Polity 527, 542.

17 Michael Goodhart, ‘Europe’s Democratic Deficits through the Looking Glass: theEuropean Union as a Challenge for Democracy’ (2007) 5 Perspectives on Politics 567, 574(emphasis in original). See also Michael Goodhart, Democracy as Human Rights: Freedom andEquality in the Age of Globalization (New York, Routledge, 2005); and Michael Goodhart,‘Human Rights and Global Democracy’ (2008) 22(4) Ethics and International Affairs 395.

18 ibid at 572.19 ibid at 575 (emphasis in original).

International Law and the Democratic Deficit 97



taken-for-granted membership. The argument has not prevented com-plaints that international law and global governance suffers from ademocratic deficit, with the move to global law-making having a delete-rious impact on the practice of democracy at the level of the state. Theexistence of autonomous legal orders, not under the political control ofstates, creates — from the perspective of democratic societies — aproblem for the practice of democracy. This is the starting point for anyenquiry into the democratic legitimacy of international law.

POLITICALLY DECIDABLE ISSUES

This work follows Frank Michelman in regarding democracy as a systemof ‘popular political self-government’. Democracy requires that citizens‘ought to decide for themselves all the politically decidable matters aboutwhich they have a good moral and material reason to care’.20 Theimportance of democracy lies in the ability of people to govern them-selves politically as ‘[one] aspect of human dignity and freedom that issometimes called positive liberty’.21 Democracy serves self-governmentby providing each person ‘with reason to identify his or her politicalagency with the lawmaking and other acts of political institutions, or toclaim such acts as his or her own’. The democratic ideal applies to acollection of autonomous human persons taken severally, and not thepolitical community as a whole, and there is no reason to conclude ‘that anation, a people, or a political community [has] a capacity for consciouslyself-directive agency for which we have any final, moral reason to care’.22

A self-government conception must rely on a procedural understandingof democracy and democratic legitimacy (it is not concerned with sub-stantive outcomes): ‘democracy is at its fullest when a country’s people decidefor themselves, by democratic political procedures, all of those conditions of theirlives that are politically decidable’.23 The idea applies equally to the (consti-tutional) laws of law-making that frame the exercise of democraticpolitics.24 There is a deficit in the practice of the democracy where the

20 Frank Michelman, ‘The 1996–97 Brennan Center Symposium Lecture’ (1998) Califor-nian Law Review 399, 400.

21 ibid at 402.22 ibid at 403.23 ibid at 412 (emphasis added).24 ibid at 413. Martin Loughlin observes that modern constitutions are not simply

devices that impose restraints on the exercise of authority; they are ways of organising andgenerating power and thereby conferring authority. The idea of constitutive power alsoenables us to acknowledge the fact that the institutional framework of authority isconditional – ‘Constituted power always remains subject to political pressures for change’:Martin Loughlin, The Idea of Public Law (Oxford, Oxford University Press, 2003) 162.




people do not decide, by democratic political procedures, all of thoseconditions of their lives that are politically decidable.

The commitment to democracy follows the liberal concern around theproblem of coercive enforcement of political authority against free andequal persons. The coercive enforcement of law norms is acceptable ‘onlyinsofar as everyone subject to it has his own reasons for agreeing to its basicterms, including its laws of lawmaking’. In order for laws to be legitimate,they must respond to reasons that are ‘objectively consonant with every-one’s interests or that are in accord with what everyone, being reasonable,would agree to in a proper normative discourse’.25 The solution to theproblem of political legitimacy is provided by democratic procedures inwhich reasonable citizens can collectively pursue a political project ofself-government ‘for which there can be no final end, but for which there isnevertheless a foundational standard. The democratic pursuit of demo-cratic justice would be that project’. The pursuit of democratic justicerequires that decisions that cannot be reached by consensus ‘are neverthe-less reached by institutions that are always effectively subjected to thepressures of a public-opinion-in-formation that is bent on democratizingitself and the legal and social conditions of its production’.26

In a democratic system of government, all constitutional and politicallaw norms are subject to contestation and challenge by reasonable citizens(those who accept that law norms should apply generally, and that thewelfare of all should be the basis of political discourses). In a democraticstate, the constitution (written or unwritten) establishes political proce-dures through which citizens exercise the right to democratic self-determination. Law results from a process of collective decision-making inaccordance with the principle of political equality of citizens. The exerciseof coercive political authority is legitimated by an act of collective will-formation by citizens (but not others). Policies are ‘just’, ‘correct’, or ‘right’ tothe extent that they are consistent with the requirements of right processand substantive democratic principles, concerning, for example, politicalequality and public reason. The importance of procedure is confirmed bythe facts of reasonable disagreement and imperfect knowledge in politicaldiscussions (there are no ‘right’ answers in a modern/post-modern con-text); the importance of private autonomy and public participation for theindividual citizen; the liberal principle of legitimacy, which demands atleast hypothetical consent for the exercise of political authority; and theneed for members of a political community to commit themselves to aprocess of collective decision-making that takes into account the interests ofothers within the community.

25 ibid at 420–21.26 ibid at 424.

Politically Decidable Issues 99



A state is democratic to the extent that laws are enacted with theexpress or implied consent of the people (or their representatives). Theidea of democracy rests on the twin principles of political equality andpopular sovereignty: citizens participate on the basis of equality in aprocess of collective will-formation. There are a number of institutionalarrangements that can give effect to these principles, although at the levelof the state all will rely on free and fair elections to a representativeassembly or parliament. Too often, the requirement to hold elections andrespect the outcome becomes the sole test of democratic legitimacy, anapproach that accords with theories of limited, or thin, democracy.Joseph Schumpeter, for example, concludes that the role of the citizen in ademocracy is simply to determine who will hold power: democracy is therule of the elected politician, with elections regarded as a competitiveprocess in which political parties offer their platforms and attempt tosatisfy the largest number of preferences.27 Elections provide one mecha-nism through which citizens participate in democratic politics, enablingthem to express policy preferences and sanction office holders for poorperformance by removing them from office. Elections provide the clear-est, if not necessarily the most accurate, expression of the popular will,which is also expressed through other forms of political participation,including protest, demonstration, and argumentation in political will-formation. The centrality of elections to democratic systems results fromtheir ability to provide a (relatively) clear expression of the will of thepeople, reflected directly in a majority of votes cast or indirectly throughthe allocation of a majority of seats in a representative assembly. Electionsare central to majoritarian conceptions of democracy, in which legitimacyis provided by free and fair elections, and application of agreed rules fordetermining the identity of the candidates deemed to have ‘won’ (whichis taken as a surrogate for winning the argument).

The majoritarian understanding of (domestic) democracy greatly influ-ences debates around the democratic legitimacy of international law.Notwithstanding Robert Dahl’s claim that ‘no one has ever advocated,and no one except its enemies has ever defined democracy to mean, thata majority would or should do anything it felt an impulse to do’,28

complaints of a democratic deficit invariably reflect a majoritarian con-cept of democracy, mirroring the ‘counter-majoritarian difficulty’ identi-fied by Alexander Bickel in relation to judicial review by domestic courts.In constitutional democracies, a counter-majoritarian difficulty existswhere the position of a majority of the ‘here and now’ people is rejected

27 Joseph Schumpeter, Capitalism, Socialism and Democracy, 5th edn (London, Allen andUnwin, 1976) at 284–85.

28 Robert Dahl, A Preface to Democratic Theory (Chicago, University of Chicago Press,1956) 36.




by reference to ‘higher’ constitutional law principles, as interpreted by aconstitutional court, including constitutional provisions for the protec-tion of human rights.29 In relation to international law, Roger Alfordrefers directly to an ‘international countermajoritarian difficulty’, whichreflects concerns that law-making outside of the state ‘thwarts the will ofthe people and undermines the values of the prevailing majority’. Moreo-ver, whilst constitutional law norms remain responsive to popular will,the same cannot be said about international law norms, which may notreflect the will of the people of a particular state at a particular time.30

The counter-majoritarian argument relies on an understanding ofdemocratic will-formation that functions by aggregating the votes ofcitizens (or, in more sophisticated models, preferences, which can also bemeasured, reflecting the different strengths of individual preferences) toidentify where the majority lies on a particular issue, and consequently todetermine the policy position that is acceptable to most citizens. Whenthe people decide, they often, but not always, rely on the principle ofmajority rule.31 The justification for majority rule is that each citizen is thebest judge of her own interests (without the need for interactions withothers) and that a decision with majority support will realise the interestsof the maximum number of citizens.32 Politics is no different from anyother market activity, the dominant assumption being one of competi-tion, as political parties advertise their policies and seek as much supportas possible from amongst the electorate.33 Majoritarianism is important inthe practice of democracy, as there must come a point where the people,or their representatives, will need to make policy choices, and there isonly a certain amount of time that can be devoted to discussion of aparticular issue. The possibility of not deciding is not available, as thiswould involve an implicit decision in favour of the status quo. If,following reasoned public debate, a majority determine that A is the rightthing to do, the majority principle provides that the conclusion is themost rational and legitimate outcome, although it is not infallible, andthe minority will feel that they have the right to return to the issue in thefuture with the hope of revising the decision.

29 Alexander Bickel, The Least Dangerous Branch: the Supreme Court at the Bar of Politics(Indianapolis, Bobbs-Merrill, 1962) 17.

30 Roger P Alford, ‘Misusing International Sources to Interpret the Constitution’ (2004)98 American Journal of International Law 57, 59.

31 First-past-the-post (or winner-take-all) parliamentary systems, such as that in theUnited Kingdom, are designed to ensure minority rule, in that the political party with thegreatest support (but not necessarily, and historically rarely, a majority) is entitled to formthe government.

32 Julia Black, ‘Procuralizing Regulation: Part I’ (2000) 20 Oxford Journal of Legal Studies597, 607.

33 Tom Campbell, ‘Legal Positivism and Deliberative Democracy’ in Michael Freeman(ed), 51 Current Legal Problems (1998) 65, 73–76.

Politically Decidable Issues 101



Majoritarianism does not, however, define democracy. The etymologyof democracy lies in the idea of popular government, or rule by thepeople, not by a majority at a particular point in time.34 Bellamy andCastiglione describe the idea that majoritarianism is central to democratictheory as ‘both trivial and unfounded’, arising from confusion between‘people’ and ‘majority’.35 The value of democracy lies in its problem-solving capacities, and the possibility of promoting ‘value pluralism, atleast in ideal conditions’. This requires the accommodation of diversevalues through consensus-seeking decision-making, and the settlementof disputes in ways that are recognised as fair and legitimate by all thoseinvolved.36 Amartya Sen is equally clear: ‘We must not identify democ-racy with majority rule.’37 Democracy has an intrinsic value, in thatpolitical freedom is a part of human freedom, and an instrumental value,in allowing citizens the ability to express their interests and perspectivesin decision-making processes, and providing opportunities for citizens tolearn from each another, thus allowing the society to formulate its valuesand priorities.38 Democracy is a system of collective decision-making thatprovides for popular and institutional deliberation to determine the willof the people. It is an ongoing process of debate, deliberation and choice.Democratic legitimacy for the exercise of political authority through lawis not guaranteed by the holding of free and fair elections or seeking toaggregate the votes and/or preferences of citizens, but by a politico-legalsystem that ensures that laws result from acts of opinion- and will-formation by the people in accordance with the principle of publicreason.

DELIBERATIVE DEMOCRACY

The central question in democratic politics is ‘What is it that we shoulddo?’ In conditions of uncertainty and disagreement, how do we knowwhat to do, and who should we rely on to determine the (legal) normsthat structure social, economic and political life, and by reference to whatcriteria, and what processes? Epistemology is the theory or science of themethod or grounds of knowledge. Epistemic authority concerns therecognition that an actor is in possession of the knowledge of the ‘right’


35 Richard Bellamy and Dario Castiglione, ‘The Uses of Democracy: Reflections on theEuropean Democratic Deficit’ in Erik Eriksen and John Fossum (eds), Democracy in theEuropean Union: Integration through Deliberation? (London, Routledge, 2000) 65, 75–76.

36 ibid at 71.37 Amartya Sen, ‘Democracy as a Universal Value’ (1999) 10 Journal of Democracy 3, 8.38 ibid at 9.




or (in politico-legal terms) ‘just’ course of action. X has epistemic author-ity over Y, if (and only if) it is accepted that X is in a privileged positionconcerning knowledge of the ‘right’ or ‘just’ course of action. In themodern era, the epistemic authority of law, following Jürgen Habermas,is provided by the consensus of a communicative community thatdetermines political truths on questions of public policy. The legitimacyof law depends on a communicative action: ‘as participants in rationaldiscourses, consociates under law must be able to examine whether acontested norm meets with, or could meet with, the agreement of allthose possible affected’.39

The deliberative model of democracy proceeds from a view that no oneactor can claim a privileged position in political debates and that legiti-mate laws result from a process of reasoned communications, the aim ofwhich is to achieve a consensus amongst all participants. Consensus iseasier to achieve where the participants share a set of common under-standings, or ‘shared, unproblematic beliefs’, a common ‘lifeworld’ thatprovides shared meanings and identities, and ‘forms both the horizon forspeech situations and the source of interpretations’.40 Political argumentsabout legal norms must be justified in terms that others might accept.Democratic politics is concerned with questions about what is equallygood for all. Those seeking to demonstrate the (political) ‘truth’ ofpositions must rely on reasoned arguments if they are to convince others(the idea of public reason).41 The requirement for reasoned argumenta-tion follows the need to orientate language towards mutual understand-ing: participants must communicate and attempt to vindicate claims byreference to reasons that others might accept if they are to reach anagreement.

When an argument is not accepted by other participants, there is a shiftfrom justification to discourse in search of agreement, with claims andarguments tested through reasoned deliberations. Individuals must relyon arguments supported by reasons in an attempt to convince others, andall participants must accept that their positions may be subject to reviewand revision. Where consensus is not possible, the relationship shiftsagain from discourse to bargaining, in which each participant engages instrategic argumentation. Bargaining is permissible to the extent that theprocess is deliberative (ie rational) and the compromises acceptable inprinciple to all participants, who may agree for different reasons (incontrast to a discursive consensus).42 Bargaining results in a negotiated

39 Habermas (n 2) at 104.40 ibid at 22 (emphasis in original).41 In excluding the perspectives of (apparently) non-reflexive ‘unreasonable’ persons,

Habermas limits the perspectives that count.42 Habermas (n 2) at 108.

Deliberative Democracy 103



agreement that balances conflicting interests; whereas a rationally moti-vated consensus rests on reasons that can convince all the parties in thesame way, compromises can be accepted by different parties for differentreasons.43 The process of bargaining depends on the willingness ofparticipants to cooperate. A compromise agreement must be more benefi-cial than no agreement and exclude free-riders and exploited parties(those who contribute more than they gain). All interested parties shouldhave an equal opportunity to exercise influence in the process of bargain-ing, ‘so that all the affected interests can come into play and have equalchances of prevailing. To the extent that these conditions are met, thereare grounds for presuming that negotiated agreements are fair.’44

In the conditions of pluralism that define modern societies, it is neitherpossible nor acceptable for a legal order to impose any single perspectiveon all actors. The legitimacy of law rests on the ‘concurring and unitedwill of all’ free and equal citizens.45 The democratic state imagines itselfto be an association of free and equal persons; membership depends onthe principle of voluntariness.46 The normative basis of a legitimateconstitution is provided by a ‘deliberative decision-making process thatthe founders [established] with the intention of creating a voluntaryself-determination association of free and equal citizens.’47 The demo-cratic constitution that frames political life is not fixed. It may be subjectto challenge and contestation by citizens; the constitution is a ‘tradition-building project with a clearly marked beginning in time’.48 The demo-cratic legitimacy of laws depends on an institutionalisation of theprinciple of discourse in a constitutional order that recognises the equal-ity of citizens and the voluntariness of the legal order. The law mustgrant equal liberties to all: the freedom of each citizen must ‘coexist withthe freedom of all’.49 For this to be the case, the addressees (‘subjects’) oflaw norms must at the same time ‘understand themselves, taken as awhole, as the rational authors of those norms’.50 The legal order draws itslegitimacy from the idea of collective self-determination: citizens mustthink of themselves as authors of the law to which they are subject asaddressees, ‘and it is only participation in the practice of politically

43 ibid at 166.44 ibid at 167.45 ibid at 32.46 ibid at 497.47 Jürgen Habermas, ‘Constitutional Democracy: a Paradoxical Union of Contradictory

Principles?’ (2001) 29 Political Theory 766, 772.48 ibid at 775.49 Habermas (n 2) at 32.50 ibid at 33 (emphasis in original).




autonomous lawmaking that makes it possible for the addressees to have acorrect understanding of the legal order as created by themselves’.51

Habermas provides a test of democratic legitimacy that does not relyon substantive values against which to evaluate the acceptability orotherwise of law norms. It follows from the recognition of the equality ofcitizens and need for justification for the exercise of political authority.The twin ideas of human rights and popular sovereignty that havedetermined the normative self-understanding of constitutional democra-cies provide the basis by which to justify modern (state) law.52 Demo-cratic laws result from the legal institutionalisation of discursiveprocedures of opinion- and will-formation ‘in which the sovereignty ofthe people assumes a binding character’.53 This leads Habermas to hisprinciple of discourse: ‘D: Just those action norms are valid to which allpossibly affected persons could agree as participants in rational dis-courses.’ The idea of action norms refers to ‘temporally, socially, andsubstantively generalized behavioural expectations’; the idea of ‘thoseaffected’ includes ‘anyone whose interests are touched by the foreseeableconsequences of a general practice regulated by the norms at issue’.54 Ifall possibly affected persons have participated in deliberations, with anequal opportunity to influence others, any consensus position may beregarded as ‘right’ or ‘just’ for that political community. A distinctprinciple of democracy follows from an application of the principle ofdiscourse, providing that the validity of statutory law norms relies on theadoption of laws that can meet with the assent of all citizens in adiscursive process of legislation that has been legally constituted.55

Brian Tamanaha criticises the reliance on the counterfactual ideal of theagreement of all possibly affected persons, concluding that Habermas‘does not really mean unanimous consent, or even actual consent’.56 Incommon with all social contract theories, the aim is to ‘legitimate thestatus quo of law in liberal democracies under the banner of consent,cleansed of any odour of coercion’.57 In the practice of democracy,consensus will rarely be possible. Carlos Santiago Nino describes delib-erative democracy as ‘a process of moral discussion with a time limit’.58

51 ibid at 121 (emphasis in original).52 ibid at 99.53 ibid at 104.54 ibid at 107.55 ibid at 110.56 Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford, Oxford Univer-

sity Press, 2001) 64 (emphasis in original).57 ibid at 65.58 Carlos Santiago Nino, The Constitution of Deliberative Democracy (New Haven, Con-

necticut, Yale University Press, 1996) 118.

Deliberative Democracy 105



Reliance on a counterfactual ideal to evaluate the democratic legitimacyof law raises the possibility that the analysis simply provides intellectualjustification for the otherwise problematic exercise of coercive politicalauthority. The value of the deliberative model is that it does not rely onthe acceptance of any contested political or moral values, beyond thoseinherent in the practice of deliberative democracy, providing an ‘objec-tive’ basis for critiquing the exercise of political authority withoutrequirement to demonstrate the ‘wrongness’ or ‘injustice’ of policy posi-tions. The deliberative model allows the development of a (democratic)critique within the discipline of law that evaluates the exercise ofregulatory authority through law, without the need to read progressive(natural law-type) values into the concept of law. It also affirms thatacademic commentators (and other elites) have no privileged position indebates about the practice of democracy, and substantive questions ofpublic policy. The principle of discourse requires that we treat all citizensas equals and that political discussions are conducted in accordance withthe principle of public reason, with a view to establishing what is equallygood for all.

DELIBERATIVE MAJORITIES

In contrast to majoritarian understandings of democracy, the deliberativemodel regards the existence of any objecting minority (the absence ofconsensus) as problematic for those seeking to exercise authority. This isparticularly the case in relation to permanent minorities defined byreference to ethno-cultural identity on ‘questions of culture’.59 JamesBohman argues for a reformulation of the discourse principle and itsinsistence on unanimity: ‘it is deliberative majorities who should rule’.60

All citizens should have the opportunity to participate in decision-making processes in such a way that they have a reasonable expectationthat they might affect its outcome.61 Where, following reasoned delibera-tions, a majority agree that policy proposal A should be adopted there is

59 In cases of conflict between national authorities and minority groups on ‘questions ofculture’, the absence of consensus does not result from a lack of time or insufficientlycompelling arguments. Indigenous peoples will not, for example, recognise the economicvalue of mineral deposits on land they consider to be of spiritual or religious significance.Likewise, minority groups will not freely consent to laws imposed by the ‘democratic’majority that seek to regulate their religious and cultural practices. See Steven Wheatley,Democracy, Minorities and International Law (Cambridge, Cambridge University Press, 2005);also Steven Wheatley, ‘Minorities under the ECHR and the Construction of a “DemocraticSociety”’ (2007) Public Law 770.

60 James Bohman, ‘Complexity, Pluralism, and the Constitutional State: on Habermas’sFaktizität und Geltung’ (1994) 28 Law and Society Review 897, 919.

61 ibid at 921.




a presumption that the position is democratically legitimate. It is, how-ever, as Wojciech Sadurski observes, contrary to our intuitions to suggestthat any outcome of a democratic system will, by definition, be demo-cratic ‘because we do not have an independent outcome-based notion ofdemocratic legitimacy’.62 Sadurski refers to the impossibility of ‘perfectprocedural justice’, concluding that, in the real world, all we can hope foris a system of ‘imperfect procedural justice’.63 An alternative, ‘weak butplausible’, version of the liberal principle of legitimacy, which requireshypothetical consent to confer some degree of legitimacy upon laws,would provide that ‘only those laws that are based upon arguments towhich no members of the society have a rational reason to object canboast political legitimacy, and as such be applied coercively’.64 If a law isbased on an argument ‘that casts me out from the political community(for example, an argument that considers my racial group as inherentlyinferior to other groups), then there is no moral reason why I shouldrecognize this law as legitimate’.65 There is no rational argument thatcould lead an individual to accept such a measure. The fact of disagree-ment is not in itself sufficient to deny democratic legitimacy:

[if] I disagree with the wisdom of a given law, but would agree if I examined itrationally that it is based upon arguments that I can recognize as valid, then anecessary condition for its legitimacy has been met.66

The democratic legitimacy of laws is provided by law norms that arational person could accept, even if they do not in fact accept the laws inquestion.

For Sadurski, as for Habermas,67 unreasonable objections do not count.But, as Joseph Raz points out, ‘why should the agreement only of thosewith reasonable views be required?’68 The interests of persons with‘unreasonable views’, those who ‘stubbornly fail to see what the reason-able see’,69 are just as likely to be affected by the exercise of politicalauthority as those of ‘reasonable’ persons, ‘and if the other people’sagreement is required, so should theirs be’.70 Disagreement is evidencethat at least one of the parties is wrong, and the authorities are obliged to

62 Wojciech Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’ (2006) 26 OxfordJournal of Legal Studies 377, 397.

63 ibid at 396.64 ibid at 401.65 ibid at 402.66 ibid at 402.67 Habermas (n 2) at 312. See also Jürgen Habermas, ‘Intolerance and Discrimination’

(2003) 1 International Journal of Constitutional Law 2.68 Joseph Raz, ‘Disagreement in Politics’ (1998) 43 American Journal of Jurisprudence 25,

33.69 ibid at 34.70 ibid at 33.

Deliberative Majorities 107



consider whether it is their position. Much will depend on whetherdisagreement can be assigned to bias or ignorance, or the authoritiesacting against expert advice, or in circumstances where the life experi-ences of the minority group ‘are foreign to those in power’.71 Theparticipation and consent of all those who might reasonably be affected isrequired to establish legitimacy for the exercise of political authoritythrough law, a point Habermas concedes when he writes: ‘deficits [indemocratic legitimacy] will always result when the circle of all thoseinvolved in democratic decision making does not extend to cover thecircle of all those affected by those decisions’.72

DELIBERATIVE POLITICS

The deliberative model is an attempt to construct a politico-legal systemfrom the first principles of autonomy and equality: law is legitimate onlyif all who are possibly affected could assent as participants in rationaldiscourses. From this, Habermas derives a system of rights and thediscursive character of lawmaking, providing (democratic) criteriaagainst which to evaluate the legitimacy of law. The principle of democ-racy results from an application of the principle of discourse to thoseaction norms that appear in legal form.73 It provides that the validity ofstatutory norms depends on the adoption of laws that can meet with theassent of all citizens in a discursive process of legislation that has beenlegally constituted.74 The principle both establishes the requirements forlegitimate lawmaking and frames the nature of political debate aboutlegitimate policy it creates the language in which a community canunderstand itself as a voluntary association of free and equal consociatesunder law.75 A genuinely proceduralist understanding of democracy isnot simply concerned with democratic institutions and rights of politicalparticipation: democratic procedures must be ‘institutionalized in dis-courses and bargaining processes by employing forms of communicationthat promise that all outcomes reached in conformity with the procedureare reasonable’.76 Democratic politics must be conducted in accordancewith the requirements of deliberative democracy: the language of politicsmust recognise the principle of political equality and importance ofprivate autonomy; the welfare of all must be the central focus in political

71 ibid at 51.72 Jürgen Habermas, ‘Toward a Cosmopolitan Europe’ (2003) 14 Journal of Democracy 86,

90.73 Habermas (n 2) at 108.74 ibid at 110.75 ibid at 111.76 ibid at 304.




discourses; political argument should be conducted in a way thatattempts to persuade others by the force of better argument; and all laws,including justice norms (framed in terms of constitutional law norms andhuman rights) must be determined through democratic politics.

HUMAN RIGHTS IN A DEMOCRACY

One of the major contributions of the theory of deliberative democracy isthat it moves us away from the sterile debates that position democracyand (human) rights in an antagonistic relationship (the allegedly unre-solved tension of ‘liberal’ ‘democracy’). For Habermas, there can be nodemocracy without rights and no rights without democracy. Those rightsrequired in a democratic system include the general right to equalliberties, along with the correlative membership rights, and guaranteedlegal remedies. Democracy requires the recognition of rights that gener-ate the legal code by defining the status of legal persons, ie rights thatresult from the politically autonomous elaboration of the right to thegreatest possible measure of equal individual liberties. These legal rightsrequire, as necessarily corollaries, the basic rights that result from thepolitically autonomous elaboration of the status of a member of avoluntary association of consociates under law; in addition to the basicrights that result from the actionability of rights and from the politicallyautonomous elaboration of individual legal protection. These result froman application of the discourse principle to the medium of law.77 In orderfor a citizen to be transformed from ‘addressee’ to one of the authors ofthe legal order, they must also enjoy basic rights to equal opportunities toparticipate in processes of opinion- and will-formation in which citizensgenerate legitimate law. Finally, all citizens must have the right to theprovision of basic living conditions, insofar as they are necessary forcitizens to have equal opportunities to exercise the other legal anddemocratic rights.78 The (unelaborated) category of ‘social welfare’ rightsincludes those rights that are necessary insofar as the exercise of civil andpolitical rights depends on certain social and material conditions.79

In contrast to liberal theories that hold rights to be both prior andsuperior to democratic laws, typically ‘rights as trumps’ over collectivepositions,80 Habermas regards private and public autonomy as both

77 ibid at 122.78 ibid at 123.79 William Rehg, ‘Translator’s Introduction’ in Habermas (n 2) at xxvii.80 See Ronald Dworkin, Taking Rights Seriously (London, Duckworths, 1977).

Human Rights in a Democracy 109



‘co-original’ and ‘internally related’.81 The framework of rights andliberties that structures the social context of human existence is estab-lished through a process of political dialogue in accordance with theprinciple of public reason, with valid laws receiving the assent of allaffected citizens. Non-discrimination norms are central to argumentsaround public reason: any difference of treatment must be capable ofrational justification, and if a difference in treatment cannot be rationallyjustified the measure must be withdrawn, or applied generally, leading topublic discussion and democratic debate, and requiring the consent of allin democratic theory (and consent of the majority in the practice ofdemocracy). The rationality of laws is proven, in part, by the ‘equaltreatment of legal persons who at the same time are protected in theirintegrity’. The norms passed by the legislature and applied by the courts‘prove their “rationality” by the fact that addresses are treated as free andequal members of an association of legal subjects’ (the principle of equaltreatment). This includes both the idea of equality before the law, and thebroader principle of substantive legal equality, ‘which holds that what isequal in all relevant respects should be treated equally, and what isunequal should be treated unequally. But what counts in each case as the“relevant respect” requires justification.’82 In pluralistic democracies (ie alldemocracies), the scope and content of human rights norms must beworked out on a case-by-case basis in a collective act of democraticself-determination, the aim of which is to promote the public and privateautonomy of equal citizens. Injustices are evidenced in discriminatorylaws that prevent persons from vulnerable and marginalised groups fromexercising their private and public autonomy.83

Private autonomy is the right to be left alone, to pursue an ‘existentiallife project’;84 public autonomy concerns the rights of political participa-tion, including the right to decide whether a law is in fact adopted.85

Public and private autonomy are, Dyzenhaus observes,

co-original aspects of our basic commitment to each other as free and equalparticipants in a common life, a commitment which is presupposed by andmade possible by the legal order of the democratic Rechtsstaat (the state boundby the rule of law).86

81 Habermas (n 2) at 275.82 ibid at 414 (emphasis in original).83 ibid at 419.84 ibid at 451.85 ibid at 458.86 David Dyzenhaus, ‘The Legitimacy of Legality’ (1996) 46 University of Toronto Law

Journal 129, 135.




Human rights have a ‘contestable content in the “unfinished project”which any constitution is’.87 They do not reflect some higher moral value,but the result of political deliberations within a political community.Seyla Benhabib refers to the idea of jurisgenerative politics, involvingpolitical and legal contestation in which the meanings of rights are‘reposited, resignified, and reappropriated by new and excluded groups,or by the citizenry in the face of new challenges’.88 Habermas argues that

[h]uman rights are juridical by their very nature. What lends them theappearance of moral rights is not their content, and most especially not theirstructure, but rather their mode of validity, which points beyond the legalorders of nation-states.

With the exception of the basic rights (outlined above), human rightsemerge from processes of democratic will-formation, although all (delib-erative) democracies will share similar visions of the ‘just’ society,reflected in the standards recognised in universal human rights instru-ments, which give expression to the collective experiences of democraticpeoples.89

The argument is consistent with the body of international humanrights norms that has emerged in the global system. The UniversalDeclaration of Human Rights, for example, contains a limited number ofabsolute provisions (prohibitions on slavery (article 4) and torture (article5), and equal protection under the law (article 7)), and ‘rights’ that maybe subject to such limitations as are necessary for protecting the rightsand freedoms of others, and ‘meeting the just requirements of morality,public order and the general welfare in a democratic society’.90 Interna-tional human rights law provides the language with which domesticsocieties deliberate about the nature and content of (domestic) humanrights norms, but international human rights laws are only universal inthe sense of framing the social, economic and political questions that all(democratic) societies must address, ie the relationship between privateautonomy (individual self-determination) and the rights and interests ofothers, including the interests of society more generally.

87 ibid at 164.88 Seyla Benhabib, Another Cosmopolitanism (Oxford, Oxford University Press, 2006) 70.89 Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge,

Massachusetts, MIT Press, 1998) 190.90 General Assembly (GA) Res 217(III)A ‘Universal Declaration of Human Rights’

(adopted 10 December 1948) art 29(2).

Human Rights in a Democracy 111



THE PARLIAMENTARY PRINCIPLE OF DEMOCRACY

The exercise of coercive political authority in a constitutional democracyowes its legitimacy to a democratic process that guarantees the rationaltreatment of political questions, and (ideally) allows all relevant issues,interest and perspectives to be brought into the processes of democraticdiscourse and negotiation. Given that it is not possible for all persons toengage in deliberations on all issues, citizens must be represented byothers in formal institutions. This leads Habermas to the parliamentaryprinciple, which provides for the establishment of representative bodiesfor deliberation and decision-making.91 A person is ‘represented’ wherethe representatives ensure that decision-makers take into account theopinions, interests and perspectives of those affected by lawmaking acts.Representative institutions are a necessary compromise in the practice ofdemocracy, as citizens do not have the time or capacity to acquire theknowledge to participate effectively in all decision-making proceduresthat affect them. The ideal of representation requires that the selection ofmembers of Parliament should provide for the ‘broadest possible spec-trum of interpretive perspectives, including the views and interests ofmarginal groups’.92 In terms of voting within representative bodies, andother institutions in a constitutional democracy such as courts, majorityrule is acceptable in that it ‘retains an internal relation to the search fortruth inasmuch as the decision reached by the majority only represents acaesura in an ongoing discussion; the decision records, so to speak, theinterim result of a discursive opinion-forming process’.93 Majority deci-sions do not, though, enjoy the same claim to truth as consensusdecisions, and in the practice of democracy, majority decisions areconstrained by the basic rights that protect individuals and minorities: ‘inexercising their political autonomy citizens must not violate the system ofrights that first constitutes this autonomy’.94

Parliamentary bodies do not provide the sole locus for democraticdeliberations in the modern state. The principle of discourse provides aprinciple of political pluralism both inside and outside of representativebodies; it requires that legislative bodies remain open to interests andperspectives emerging from the public sphere: parliamentary opinion-and will-formation ‘must remain anchored in the informal streams ofcommunication emerging from public spheres that are open to all politi-cal parties, associations, and citizens’.95 Citizens must enjoy extensive

91 Habermas (n 2) at 170.92 ibid at 183.93 ibid at 179.94 ibid at 180.95 ibid at 171.




constitutional rights concerning freedom of political expression andassociation, rights that are universally guaranteed by the requirements ofdemocratic politics. Discourse conducted by representatives can meet thecondition of equal participation ‘only if they remain porous, sensitive,and receptive to the suggestions, issues and contributions, informationand arguments that flow in from a discursively structured publicsphere’.96 It is not majority rule that legitimates democratic forms ofdecision-making but the processes that precede the decision, both formal,parliamentary-style, processes, and the informal discourses and delibera-tions in the political public sphere. A robust civil society can only developin the context of a liberal society, which accepts the possibilities ofalternative viewpoints. Civil society actors in the public sphere canacquire influence, but not power. The degree of influence will depend onthe extent to which arguments resonate with the public of citizens, whichpossesses the final authority in a democracy: ‘there can be no publicsphere without a public’.97 In order to exercise power, civil society actorsmust directly influence democratically regulated deliberations in legisla-tive assemblies:98 communications in the public sphere ‘can be convertedinto political power only if it passes through the sluices of democraticprocedures and penetrates the constitutionally organized politics systemin general’.99 Whilst the political public sphere provides an arena inwhich social, economic and political problems can be identified andsolutions proposed, effective discourses and bargaining occur only informal institutions for opinion- and will-formation. The practice ofdemocracy and formal processes of democratic will-formation require theexistence of lawmaking institutions (operating in accordance with theprinciple of public reason) in which those affected can be said to berepresented, with deliberative institutions remaining open to the ‘betterarguments’ that might emerge in the public sphere.

CHALLENGING DEMOCRATIC TRUTHS: THE ROLE OF JUDICIALREVIEW

Legitimacy, in the procedural sense, focuses on the deliberative processeswithin and between institutions, the latter of which provides the ration-ale for the doctrine of the separation of powers and judicial review bycourts. Disagreement between the institutions of government, betweenthe parliament and the constitutional court, or more accurately between


Challenging Democratic Truths: the Role of Judicial Review 113



the majorities of the members of the respective institutions, will, asSadurski observes, reflect disagreements in the wider society as to theright answer to a complex political or constitutional question. The fact ofjudicial review does not usurp democracy, it is simply ‘one step to theconstitutionally prescribed procedure that has to be followed in order forthe decision to be final and legitimate… The decisions that emerge fromsuch a procedure acquire democratic legitimacy’.100 It is always open tothe public or the legislature to re-open a political question, and to(re-)legislate accordingly. Courts do not have the final and constitution-ally decisive say. The counterfactual ideal of deliberative democracysuggests the possibility of an objective model of judicial review thatevaluates the legitimacy of democratic laws, and that judicial review ofconstitutional norms should reinforce rather than contravene the pro-cesses of democratic will-formation. Habermas follows John Hart Ely inarguing for a ‘participation-orientated, representation-reinforcingapproach to judicial review’,101 one that is consistent with the values ofrepresentative democracy and involving a task that the courts are quali-fied to perform. Courts should not intervene where decision-makingprocedures result in subjectively wrong answers to political questions,but where the political process is ‘systematically malfunctioning’ and‘undeserving of trust’, where individuals are systematically excluded, orwhere they are formally included but the representatives of the majoritydo not take their interests and preferences seriously.102

For Habermas, there is no role for the courts in the process oflawmaking in a (deliberative) democracy,103 an argument that ignores theimplicit authority of courts to develop the common law (at least incommon law jurisdictions) and augment legislation through (non-political) ‘interpretive’ judgments. The argument might be betterexpressed in the sense that the legislative process ‘domesticates’ compet-ing policy goals and conflicting values, and courts are not free to re-workthis domestication process afresh, ‘as if they were legislators’.104 Popularsovereignty lies with the people and is expressed through the adoption ofdemocratic laws in accordance with the constitution. Where the constitu-tion is regarded as a system of rights in which private and publicautonomy are seen as being internally related, the function of theconstitutional court (a court concerned with constitutional questions) is

100 Wojciech Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’ (2006) 26 OxfordJournal of Legal Studies 377, 408.

101 JH Ely, Democracy and Distrust: a Theory of Judicial Review (Cambridge; London,Harvard University Press, 1980) 87.

102 ibid at 103.103 Habermas (n 2) at 172.104 Hugh Baxter, ‘Habermas Discourse Theory of Law and Democracy’ (2002) 50 Buffalo

Law Review 205, 318.




to be the ‘custodian of deliberative democracy’.105 The judicial role is toensure that representatives have acted deliberatively and that legislationresults from ‘reasons that can be publicly advocated’, and not ‘privateinterests’.106 Legal adjudication ‘unwraps… the variegated argumentsthat have already been entered into the lawmaking process and provideda rational basis for the legitimacy claims of established law’.107 The function ofjudicial review is to ensure the development of effective processes forestablishing political truths in a political community within a system ofdemocratic law. To be effective, legal judgments must be acceptable to theinterpretive community of judges, lawyers, academics and the widerpublic. Constitutional review must secure both private and publicautonomy, and ‘establish a coherent set of constitutional rights adaptedto the particular historical legacy of the polity’.108 The practice of demo-cratic lawmaking and elaboration of constitutional rights through judicialreview occurs within the framework of an autonomous system of law.

DELIBERATIVE DEMOCRACY BEYOND THE STATE

For Habermas, legitimate (democratic) lawmaking is only possible in thecontext of the state. The voluntary association of citizens requires acentral (governmental) authority to protect the collectivity from externalthreats and internal disorder, and to carry out collective action decisions.The state is a necessary mechanism for the coercive exercise of politicalauthority, ‘because rights must be enforced, because the legal communityhas need of both a collective self-maintenance and an organized judiciary,and because political will-formation issues in programs that must beimplemented’.109 The context for democratic will-formation is providedby the nation state, which manufactures ‘an abstract form of solidarityamong strangers from a combination of the cultural symbolism of “thepeople” and the republican status of citizens’.110

105 Habermas (n 2) at 275.106 ibid at 276.107 ibid at 283 (emphasis added).108 Michel Rosenfeld, ‘Law as Discourse: Bridging the Gap between Democracy and

Rights’ (1995) 108 Harvard Law Review 1163, 1187.109 Habermas (n 2) at 134.110 Jürgen Habermas, ‘Toward a Cosmopolitan Europe’ (2003) 14 Journal of Democracy 86,

89. Lars-Erik Cederman concludes that the idea of the nation state implies ‘a communica-tive capacity that enables deliberation and generates a sufficiently strong we-feeling thancan carry the weight of effective and democratic government’: Lars-Erik Cederman,‘Nationalism and Bounded Integration: what it would take to Construct a EuropeanDemos’ (2001) 7 European Journal of International Relations 139, 157.

Deliberative Democracy Beyond the State 115



In Between Facts and Norms, Habermas makes only a few brief com-ments about the emergent governance regimes beyond the state, refer-ring to the progressive denationalisation of international law, the trendtowards the dissolution of the sovereignty of the nation-state, and theemerging global public sphere.111 He observes that the (imperfect) prac-tice of democracy has only been achieved inside the boundaries of thesovereign state, a fact that creates significant problems for accepting thepossibility of opinion- and will-formation in a supranational organisationsuch as the European Union, given that citizens of the European Uniondo not orientate themselves to the common good and their democraticloyalties remain ‘fragmented’. What emerges is a functional elite, nomi-nally responsible to states and their publics, but in reality operatingautonomously. Policy measures are adopted, but without the possibilityfor those affected influencing the legislative process.112 Only where rightsof political participation are recognised can a system be regarded asdemocratic, as negative liberties and social welfare rights can equally beconferred by some ‘paternalistic authority’.113 A democratic polityrequires a connection between deliberations in the political public sphereand deliberations in formal institutions. In the context of the EuropeanUnion, this would require Europe-wide public policy deliberations (dis-tinct from the various national deliberations) and a European Parliamentwith increased authority.114 In relation to the possibilities of globalwill-formation and exercise of communicative power by a global demo-cratic public, Habermas argues that global superpowers cannot ignoreworldwide public protests, over, for example, US military interventionsin Iraq (referring to the idea of a ‘world citizenship, which is already takingshape today in worldwide political communications’).115 The ‘cosmopoli-tan condition is no longer merely a mirage. State citizenship and worldcitizenship form a continuum whose contours, at least, are alreadybecoming visible.’116

In subsequent writings, Habermas expresses scepticism over the possi-bility of applying democratic principles beyond the state. It is notpossible to regard international law as another layer of government to bedemocratised. The emergent global regulatory networks cannot be

111 Habermas (n 2) at 444.112 ibid at 503.113 ibid at 504. Rights in domestic settings have often emerged in three phases: liberal

negative rights that protect the subject against illegal government infringements of rights;rights of political participation that enable citizens to take part in democratic processes ofopinion- and will-formation; and, finally, social rights that guarantee minimum income andsocial security: ibid at 503.

114 ibid at 507.115 ibid at 514.116 ibid at 515.




understood in the same way as state governments, and it is not possibleto accept any analogy that associates the process of global state formationwith the (mythologised) process of state formation. The federal analogyis not appropriate to describe the emergent global system. At the domes-tic level, the atom of (popular) sovereignty may split, with a federalconstitution establishing chains of legitimation that unfold in parallel.117

The analogy cannot be applied to the global level. In contrast toconstitution-making within states, persons already enjoy a status ascitizen that guarantees certain rights and freedoms.118 The transformationfrom an international law of states to a cosmopolitan law of individualscannot be achieved because there is no supranational power with thecapacity to coercively enforce international law norms.119 There may beglobal governance, but not global government. The constitutionalisationanalogy in international law ‘proceeds from the non-hierarchical associa-tion of collective actors to the supra- and transnational organizations ofthe cosmopolitan order.’120 The global state of nations or federal worldrepublic ‘is the wrong model’. Habermas accepts the requirement forinternational cooperation and a world organisation, although this wouldhave limited and carefully circumscribed functions, relating to securinginternational peace and security, and promoting international humanrights norms.121

The argument follows from an analysis of the perceived success of theEuropean nation state model, where legitimacy is provided by a combi-nation of three factors: the existence of effective government institutions;civil solidarity; and a political constitution.122 The absence of any sense ofcivil solidarity beyond the state limits the possibilities of supranationalconstitutions to those ‘of the liberal type’ that aim to regulate theinteractions between collective actors ‘with the goal of setting mutualrestrictions on their power’. Supranational constitutions limit the exerciseof political authority in accordance with relevant international treaties,and in conformity with international human rights norms, and ‘leave thetask of applying and developing law to courts, though without being

117 Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have aChance?’ in The Divided West (edited and translated by Ciaran Cronin) (Cambridge, Polity,2006) 115, 128.

118 ibid at 129.119 ibid at 132. Elsewhere, Habermas writes about a shift from international law, where

the state preserves its constitutional authority, to a cosmopolitan law binding on stategovernments in accordance with some legal code or ‘constitution’: Jürgen Habermas, TheInclusion of the Other: Studies in Political Theory (Cambridge, Massachusetts, MIT Press, 1998)179.





exposed directly to democratic inputs and controls’.123 Liberal constitu-tions may be contrasted with the republican conception of a constitution,where the legitimacy of laws depends on acts of opinion- and will-formation. Habermas concludes that the relationship between the rule oflaw and democracy would be dissolved ‘if supranational constitutionswere completely severed from the channels of democratic legitimationwhich are institutionalized within the constitutional state’. Liberal consti-tutions beyond the state, ‘if they are to be anything more than ahegemonic legal façade, must remain tied at least indirectly to processesof legitimation within constitutional states’.124 The constitutionalisationof international law, if it is not to involve the establishment of a globaldemocratic state, must receive ‘indirect “backing” from the kinds ofdemocratic processes of opinion- and will-formation than can only befully institutionalized within constitutional states… This weak form ofconstitutionalization beyond the nation-state remains reliant on contin-ued provisions of legitimacy within state-centred systems.’125

Governance functions, according to Habermas, can be allocated to oneof three levels: the supranational level of international law, properlylimited to human rights, international peace and security, and ‘technical’questions of cooperation; the regional level; and the nation state. There isno possibility of a legislative framework emerging outside of the regionalcontext, where there is an increased tendency to cooperation throughorganisations such as Asia-Pacific Economic Cooperation (APEC), Asso-ciation of Southeast Asian Nations (ASEAN), North American Free TradeAgreement (NAFTA), African Union (AU), and Economic Community OfWest African States (ECOWAS). The exemplar is the European Union,although

European unification will only be able to stand as a model for the constructionof higher-order capacities for political action if it attains a degree of politicalintegration that enables the EU to pursue democratically legitimated policiesboth toward the outside world and within its own borders.126

William Scheuerman suggests that the logic of Habermas’ argument(reflected in unpublished writings) is that, in order to navigate the ‘harsh

123 ibid at 139. In relation to the importance of judicial bodies (specifically the role of theAppellate Body of the World Trade Organization), Deborah Cass concludes that the ‘judicialnorm-generation argument claims too much in respect of constitutionalisation; pays insuf-ficient attention to the equation between legitimacy and constitutionalisation; and underes-timates the role of politics in the constitutional process’: Deborah Cass, TheConstitutionalization of the World Trade Organization: Legitimacy, Democracy and Community inthe International Trading System (Oxford, Oxford University Press, 2005) 178.

124 ibid at 140.125 ibid at 141.126 Jürgen Habermas, ‘A Political Constitution for the Pluralist World Society?’ (2007) 34

Journal of Chinese Philosophy 331, 337.




waters of the global political economy’, most states, with the exception ofa small number of great powers, will be required to ‘merge into novelforms of highly integrated regionally based political blocs, along the linesof a democratized EU’. In doing so, they lose their distinctive identity asstates.127

Beyond questions of human rights and international peace and secu-rity, Habermas regards coordination problems in the international laworder as essentially ‘technical’ in nature, not ‘political’, and ‘technical’problems do not require a framework of international legislation, orcollective will-formation. Neil Walker argues that the ‘modesty’ of therole for the world organisation reflects a conviction ‘that justly vestedand effective political capacity depends upon conscious and reflexivechoice by particular political associations or communities of attach-ment’;128 it reflects Habermas’ continuing commitment to the democraticRechtsstaat. At the global level there would be a ‘global domestic politics’,but without a world government, with consensus emerging on thelimited functions of securing international peace and security and protec-tion of international human rights norms (although Habermas fails toacknowledge the need for state-like institutions for securing humanrights and international peace and security). The difficulty with theanalysis is that whilst it might be possible to agree that the role of a worldorganisation should be limited to securing peace and security and humanrights (and that must be subject to reasonable disagreement), there is noconsensus on what measures would be required in practice. Disputesaround the necessity (or otherwise) of military interventions are a signifi-cant aspect of politics in world society (consider, for example, argumentsaround military interventions in Kosovo and Iraq), and internationalhuman rights norms exhibit an indeterminate and contestable quality. Instate law systems, decisions on peace and security are taken by govern-ment bodies that are ultimately accountable to the people, and the scopeand content of human rights determined through constitutional pro-cesses (both legislative and judicial). It is not clear how a (non-democratic) world government could be accountable for decisions oninternational peace and security or legislate legitimate human rightsnorms, as Habermas abandons his co-originality thesis at the global level,removing the necessary link between democracy and rights, betweenpublic and private autonomy: international human rights are entrenchedand protected by international institutions, but are not in any meaningful

127 William Scheuerman, ‘Global Governance without Global Government? Habermason Postnational Democracy Political Theory’ (2008) 36 Political Theory 133, 149.

128 Neil Walker, ‘Making a World of Difference? Habermas, Cosmopolitanism and theConstitutionalization of International Law’ EUI Working Papers Law No 2005/17 (2005) 7.




way subject to democratic opinion- and will-formation.129 Martti Kosken-niemi makes the point that the universal and factoid nature of interna-tional human rights sits uneasily with the idea of democracy: ‘the morewe insist on the ability of rights to impose an external standard for thecommunity, the more it starts to resemble theology, and the more difficultwe have in aligning it with the ideal of popular sovereignty’.130

In a subsequent article, Habermas reaffirms his position that a politicalworld constitution does not require the establishment of a global state,concluding that ‘a politically constituted world society would be com-posed of citizens and states’.131 Both individuals and states are the‘founding subjects of a world constitution’, and both paths of legitimisationflow from the citizen, as cosmopolitan citizen, and national citizen.132

There would be two paths of legitimation for a politically constitutedworld society: the first would lead from cosmopolitan citizens, via aninternational community of states, to the peace and human rights policyof the world organisation; the second from national citizens, via the state,and any regional regime, ‘to the transnational negotiation system thatwould be responsible, within the framework of the international commu-nity, for issues of global domestic politics’. Both paths would meet in theGeneral Assembly of the world organisation,133 which would be com-posed of representatives of cosmopolitan citizens and delegates from thedemocratically elected parliaments of member states (or alternatively onechamber for the representatives of the cosmopolitan citizens, and one forthe representatives of the states). Delegates would combine the task ofrepresenting the citizens of (their) states, and represent the same citizensin their capacity as cosmopolitan citizens. The function of the GeneralAssembly would be that of a ‘World Parliament, although its legislativefunction would be confined to the interpretation and elaboration of theCharter.’ Supranational politics would be more judicial than political.The reformed General Assembly would provide the institutional locus

129 Tinnevelt and Mertens conclude that the co-originality thesis can only be upheld bycreating a more centralised democratic world organisation, a ‘minimal world state’ thatcomplements the existing system of national self-determination, and is capable of securinghuman rights: Ronald Tinnevelt and Thomas Mertens, ‘The World State: a ForbiddingNightmare of Tyranny? Habermas on the Institutional Implications of Moral Cosmopolitan-ism’ (2009) 10(1) German Law Journal 63, 65.

130 Martti Koskenniemi, ‘The Effect of Rights on Political Culture’ in Philip Alston (ed),The EU and Human Rights (Oxford, Oxford University Press, 1999) 99, 102.

131 Jürgen Habermas, ‘The Constitutionalization of International Law and the Legitima-tion Problems of a Constitution for World Society’ (2008) 15 Constellations 444, 448 (empha-sis in original). The constitutional state qualifies by virtue of its role in guaranteeing thepolitical self-determination of citizens and in making state government institutions avail-able for the coercive enforcement of international law norms (through legitimate violence).

132 ibid at 449 (emphasis in original).133 ibid at 448.




for processes of opinion- and will-formation concerning the ‘principles oftransnational justice from which global domestic politics should take itsorientation’.134

According to the revised model of global governance, the practices ofthe world organisation, including the reformed General Assembly andSecurity Council, would be legitimised by a ‘functional global publicsphere’, which has not yet emerged. It would require that ‘[v]igilant civilsociety actors’ generate worldwide transparency on global politicalissues, allowing cosmopolitan citizens to develop informed opinions andpositions on relevant issues that could produce effects through electionsto the General Assembly. Habermas admits that ‘a diffuse world publicopinion armed solely with the weak sanctioning power of “naming andshaming” could at best exert a weak form of control over the interpretive,executive, and judicial decisions of the world organization’. The deficitmight though ‘be made good’ through enhanced internal controls,including a right of veto for the General Assembly in relation to theresolutions of a reformed Security Council and rights of appeal to aninternational court for parties subject to Security Council sanctions.Provided that the world organisation operated in accordance with consti-tutional principles that reflect existing democratic processes at the levelof the state, ‘it might be acceptable that the remaining need for legitima-tion would be met by an informal global opinion’.135 Elsewhere, Haber-mas concludes that opinion- and will-formation ‘within the worldorganization could be more closely connected back to the communica-tions flows of national parliaments and more effectively exposed to themonitoring of nongovernmental organizations (NGOs) and other repre-sentatives of a mobilized world public’.136

CONCLUSION

The deliberative model developed by Jürgen Habermas presents themost rigorous and sophisticated justification of liberal democracy

134 ibid at 449 (emphasis in original). Heikki Patomaki calls for the establishment of aworld parliament of two chambers that would express a democratic and legitimate publicopinion (or opinio juris) of the world community, replacing the current idea of ‘internationalcommunity’. The first chamber would be a directly elected body of citizens’ representatives,the second chamber would consist of legal experts, who would determine whether thedecisions of the first chamber are reasonably based on the existing body of law, with thesecond chamber given limited veto powers. The members of the second chamber would benominated by states, international courts and law schools of various universities represent-ing different parts of the world: Heikki Patomaki, ‘Rethinking Global Parliament: Beyondthe Indeterminacy of International law’ (2007) 13 Widener Law Review 375, 388–89.

135 ibid at 451.136 Jürgen Habermas, ‘A Political Constitution for the Pluralist World Society?’ (2007) 34

Journal of Chinese Philosophy 331, 335.

Conclusion 121



grounded in social contract theory and the liberal principle of legitimacy.In conditions of complexity, uncertainty and reasonable disagreement,laws are valid only where all possible affected persons could agree asparticipants in rational discourses (the principle of discourse). Applied tothe practice of democracy, the deliberative model makes clear thatpolitics must be grounded in arguments around what is equally good forall (it is not sufficient simply to aggregate a majority of self-interestedpositions), and conducted in accordance with the principles of rationalityand public reason. The parliamentary principle establishes the impor-tance of representative assemblies, and the need to ensure that repre-sentatives remain tied to the flows of opinion- and will-formation thatemerge in the public sphere. The democratic model of judicial reviewaffirms the position that all constitutional (as well as political) law normsare ultimately subject to the democratic will of the people.

The difficulty with the analysis is twofold. First, it fails to locate theconstitutional democratic state in world society and the regulatoryframework of international law. The deliberative model is applicable incounterfactual conditions in which a legal order constitutes itself as avoluntary association that is not subject to legal or political pressuresfrom other law orders. Deliberative democracy requires that the peopledecide all politically decidable issues in accordance with the principle ofpublic reason. Secondly, the attempt to reconcile the authority of the UNin relation to peace and security and human rights with the idea ofdomestic democracy does not work. Even if we accept, for example, thatinternational human rights norms represent the experiences of liberaldemocratic peoples (which seems reasonable), there remains the require-ment to determine the scope and content of specific human rights normswhen applied in domestic societies already subject to democratic lawnorms and constitutional provisions. There is a need to accommodate thetheory and practice of deliberative democracy with the authority ofinternational law, and evaluate the authority of international law in termsof democratic legitimacy.




3

The State as (Democratic)Self-Legislator

THERE IS A sense in the literature that the globalisation andfragmentation of governance functions represents both a collapseof the Westphalian political settlement and a new problem for

democracy. The positivist orthodoxy provided that the validity of lawrested on an expression of sovereign will, in terms of (internal) state lawand (external) international law. Democracy was protected by the limitedrelevance of international law norms for domestic societies, the sovereignright of non-intervention in domestic affairs, and requirement for consentto international law norms. Democracy legitimacy was provided by therequirement for internal and external law norms to reflect the will of thepeople, agreed through democratic procedures. On this understanding, itwas possible (at least hypothetically) to suggest that all (‘Westphalian’)forms of law could be regarded as democratic, with democratic represen-tation occurring through a ‘two-link chain’, internally through domesticdemocratic institutions and externally through the inter-state system.1The objectives of this chapter are to examine this argument and outlinethe problem for democracy that results from the existence and authorityof a system of international law. The chapter first examines the emer-gence of the sovereign state and idea of sovereignty before outlining theWestphalian ideal of state as (sovereign) self-legislator. In terms ofdemocratic legitimacy, the work rejects the argument grounded in themetaphor of contract in international relations, and locates politicallegitimacy for international law norms in the authority of the system ofinternational law and in the processes of (deliberative) diplomacy thatconclude in agreement. The autonomous international law order is notsubject to the (democratic) will of the state, a point emphasised throughan evaluation of the sources of international law. It is not possible to referto an idea of absolute self-determination following recognition of theexistence of a system of international law.

1 Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the GlobalDisorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373, 393.

Columns Design Ltd / Job: Wheatley / Division: 03_TheWestphalianparadigm /Pg. Position: 1 / Date: 26/3


THE SOVEREIGN STATE

The transition from the medieval to the modern world had at its core theinstitution of the sovereign state, and corresponding international com-munity of states. Social and political upheavals, including plagueinduced demographic changes, a commercial revolution, and the Refor-mation, produced a political vacuum from which emerged territorialunits under the political authority of regional monarchies.2 The develop-ment was particularly noteworthy in Italy, with the rise of independentcommunities, and in the emergence of the ‘nation’ states of England,Spain and France. The theory of sovereignty developed by Jean Bodin,Les six livres de la Republique (1576),3 provided the intellectual justificationfor recognising the political independence of the ‘sovereign’ state. Theinternational law orthodoxy is that the Treaty of Westphalia 1648 markedthe end of one epoch and the opening of another, replacing the Christiancommonwealth under the authority of the Pope and Holy RomanEmperor.4 This idea of Westphalian sovereignty was said to provide a‘bundle of attributes [,] [including] territory, recognition, autonomy, andcontrol’.5 The new system rested on ‘international law and the balance ofpower, a law operating between rather than above states’.6 From the timeof the publication of Emer de Vattel’s Le droit des gens (1758),7 interna-tional law was positivist and consensual, with the will of states explain-ing the content and the binding force of the system.

2 Christian Reus-Smit, ‘Politics and International Legal Obligation’ (2003) EuropeanJournal of International Relations 591, 617. cf Charles Tilly, Coercion, Capital, and EuropeanStates, AD 990–1990 (Cambridge, Massachusetts, Blackwell, 1990) 183.

3 Jean Bodin, Les six livres de la Republique (Paris, Chez Iacques du Puys, 1576).4 The accepted account has been subject to recent scrutiny. According to Stéphane

Beaulac, the main object of the Peace of Westphalia was to establish a regime on the practiceof religion. ‘Article 5, paragraph 11, established that a ruler who chose to change its religioncould not compel its subjects to do the same. The Treaties formally recognised freedom ofconscience for Catholics living in Protestant areas and vice versa’: Stéphane Beaulac, ‘TheWestphalian Legal Orthodoxy – Myth or Reality?’ (2000) 2 Journal of the History ofInternational Law 148, 164 (references omitted).

5 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton, Princeton UniversityPress, 1999) 220. Krasner identifies three aspects of sovereignty: international legal sover-eignty, ie, the right of recognised sovereign territories to enter into international agree-ments; Westphalian (or ‘Vattelian’) sovereignty, the principle of non-intervention in theinternal affairs of states; and domestic sovereignty, which concerns the institutions underwhich a particular state is governed and their effectiveness: Stephen Krasner, ‘The Hole inthe Whole: Sovereignty, Shared Sovereignty, and International Law’ (2004) 25 MichiganJournal of International Law 1075, 1077.

6 Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal ofInternational Law 20, 29.

7 Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature: Applied to theConduct and Affairs of Nations and Sovereigns (Dublin, Luke White, 1787).

124 The State as (Democratic) Self-Legislator



Whilst it is difficult to read any general principle of sovereignty in thePeace Treaty between the Holy Roman Emperor and the King of Franceand their Respective Allies, international lawyers have, over time, cometo refer to the idea of state sovereignty in terms of Westphalian sover-eignty.8 After ‘Westphalia’, the language of international justificationshifted, albeit gradually, away from an idea and image of Christian unity,to one of diversity, based on a secular society of self-determining sover-eign states.9 A system of public international law emerged, and by theeighteenth century Europe had become a society of sovereign statesgoverned by legal rules that were determined exclusively by the mem-bers of that society.10 International law was the result of consent betweensovereigns and not some ‘pre-existing [Christian] morality.’11 MarttiKoskenniemi explains the emergence of the modern legal world in termsof a ‘social contract’, with the international law system emerging fromthe sovereign-will of states. Their right to make such a system was‘assumed to be “inherent”.’12

According to the positivist orthodoxy, international law is the result ofindividual expressions of sovereign consent, with the system of generalinternational law limited to (secondary) rules about rules, principallypacta sunt servanda (agreements or promises must be kept). The era ofinternational legal positivism resulted, as Leo Gross observes, in

absolutist states, jealous of their territorial sovereignty to the point where theidea of an international community became an almost empty phrase andwhere international law came to depend on the will of states more concernedwith the preservation and expansion of their power than with the establish-ment of a rule of law.13

Following Westphalia, global governance actors constituted a politicalsystem that divided first Europe and later the entire world into clearlydemarked territorial units with clear hierarchical structures of govern-ment.14 Sovereign will defined the content and binding nature of interna-tional law, which in turn defined the sovereign state and recognised its

8 John Jackson, ‘Sovereignty-Modern: a New Approach to an Outdated Concept’ (2003)97 American Journal of International Law 782, 786.

9 Robert Jackson, ‘Sovereignty in World Politics: a Glance at the Conceptual andHistorical Landscape’ (1999) XLVII Political Studies 431, 439.

10 Adam Watson, The Evolution of International Society: a Comparative Historical Analysis(London, Routledge, 1992) 203.

11 Martti Koskenniemi, From Apology to Utopia: the Structure of International LegalArgument (Cambridge, Cambridge University Press, 2005) 167.

12 ibid at 94.13 Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal of

International Law 20, 38.14 The 1713 Peace of Utrecht, which concluded the Wars of Spanish Succession, forced

the Bourbon monarchs of France and Spain to issue a series of dynastic renunciations thatpermanently separated the two crowns, enshrining a new principle that sovereign rights

The Sovereign State 125



authority ‘to determine further its own constitutional authority’.15 Thedevelopment of the state and international law were ‘mutually reinforc-ing processes’,16 with states constituting the international law system,which in turn constituted the sovereign state as the principle actor in theinternational law order.17 Sovereignty was, and remains, a question ofstatus:18 the right to be recognised as an independent political unit,enjoying the rights and privileges that follow recognition, including theright to contract in international law and freedom of internal politicalself-determination. Sovereignty provided those societies organised (andrecognised) as states with a right of political self-determination. Statesco-existed on the basis of (sovereign) equality, with each state societyprotected from interferences by other state societies. Writing in the firstedition of the American Journal of International Law, Robert Lansingobserved that it was an accepted principle of international law

that every state, whatever may be its population, power and resources, is thepolitical equal of every other state, and that its sovereign is independent andsupreme within the state. There is no such thing as degrees of sovereigntyamong states; the nature of real sovereignty precludes such a thought.19

International law allowed states to exercise both internal and externalpolitical self-determination in a legal system designed to support theirautonomous political development. Gregory Fox observes that the emer-gence of the state as a separate legal entity provided an incentive todevelop an international law system that protected the central attributeof the juridical personality of the state: the exercise of exclusive politicalauthority in respect of a defined territory. With the development of theidea of popular sovereignty (the ‘will of the people’), and the embodi-ment of nationalist myths within each ‘Nation’, the social, economic,

were to be territorially bounded: Christian Reus-Smit, ‘Politics and International LegalObligation’ (2003) 9 European Journal of International Relations 591, 619.

15 Daniel Philpott, ‘Westphalia, Authority, and International Society’ (1999) XLVIIPolitical Studies 566, 567. The Westphalian law of nations, in contrast to the previous epoch,was seen as a purely human creation crafted by states through custom and the adoption oftreaties: Stephen Neff, War and the Law of Nations: a General History (Cambridge, CambridgeUniversity Press, 2005) 86.

16 Hendrik Spruyt, The Sovereign State and its Competitors (Princeton, New Jersey,Princeton University Press, 1994) 179.

17 Andreas Fischer-Lescano and Gunther Teubner, ‘Regime Collisions: the Vain Searchfor Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of Interna-tional Law 999, 1067–68.

18 Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with Interna-tional Regulatory Agreements (Cambridge, Massachusetts, Harvard University Press, 1998)27. cf Anne-Marie Slaughter, ‘Sovereignty and Power in a Networked World Order’ (2004)40 Stanford Journal of International Law 283, 284: ‘Westphalian sovereignty is the right to beleft alone, to exclude, to be free from any external meddling or interference’.

19 Robert Lansing, ‘Notes on Sovereignty in a State’ (1907) 1 American Journal ofInternational Law 105, 124.




political and cultural distinctiveness of the sovereign state become evenmore deserving of protection and the international law system wasplaced at the disposal of the state-building project, ‘allowing the indi-vidual identities of European States to unfold at a pace dictated bydomestic politics’.20 Within the state, clear hierarchical structures ofgovernment developed that claimed a monopoly on the legitimate use offorce, and (often) a monopoly on the prerogative of law-making.21

Internal sovereignty did not imply absolutism, however: the idea, if notthe practice, of human rights also emerges in political thought in theseventeenth century, reflecting a belief that there are inherent limits onthe exercise of sovereign political authority.22

The term ‘constitution’ also emerges in the early seventeenth century,although it is not until the eighteenth century, after the American War ofIndependence and French Revolution, that it comes to be understood asthe ‘foundational law which first purports to set out the objectives of apolitical community in terms that correspond to the interests of thatpolitical community and, secondly, distributes and constrains adminis-trative power’.23 Modern political constitutions are ways of organisingand constituting power, and thereby conferring authority.24 The idea hascome to be understood as a foundational agreement, framed in terms oflaw, that both constructs and constraint political power, ie the constitu-tion identifies the institutions entitled to exercise political authority, theconditions under which it may be exercised (and any limits), and thepolitical objectives and values of the political community, framed interms of (political) justice. In the constitutional state, political authority isexercised within an agreed constitutional framework, and, according tothe fiction of the social contract, in accordance with the will of the people,expressed in the idea of popular sovereignty. The people provide theultimate source of all legal and political authority. Law is an expression ofthe general will, and as the Declaration of the Rights of Man (1789) makesclear: ‘Every citizen has a right to participate personally, or through hisrepresentative, in its foundation.’25

20 Gregory Fox, ‘Strengthening the State’ (1999) 7 Indian Journal of Global Legal Studies 35,44–45.

21 Note, however, the possibility of legal pluralism within the state.22 See FH Hinsley, Sovereignty, 2nd edn (Cambridge, Cambridge University Press, 1986)

143–49. See, generally, Kenneth Minogue, ‘The History of the Idea of Human Rights’ inWalter Lacquer and Barry Rubin (eds), The Human Rights Reader (Philadelphia, TempleUniversity Press, 1979) 3.

23 Damian Chalmers, ‘Post-Nationalism and the Quest for Constitutional Substitutes’(2000) 27 Journal of Law and Society 178, 182.

24 Martin Loughlin, The Idea of Public Law (Oxford, Oxford University Press, 2003) 162.25 Declaration of the Rights of Man, Approved by the National Assembly of France,

August 26, 1789, art 6.

The Sovereign State 127



THE STATE AS SELF-LEGISLATOR

The Westphalian settlement (according to the international law narrative)constructed the modern political world, establishing the sovereign terri-torial state, and dividing the idea of law along a strict binary line:(internal) state law in accordance with a (self-given) constitutional laworder, and (external) inter-Nation (international) law that relied on theprinciple of (sovereign) consent. The international order was organised inaccordance with the principle of sovereignty and requirement of consentfor the introduction of international law norms. Ian Brownlie observesthat the sovereignty and equality of states is ‘the basic constitutionaldoctrine of the law of nations’. One corollary is the ‘dependence ofobligations arising under customary law and treaties on the consent ofthe obligor’.26 The International Court of Justice has referred to ‘thefundamental principle of State sovereignty, on which the whole ofinternational law rests’.27 In Case of the S.S. ‘Lotus’, when internationallaw ‘first asked itself whether the international legal order was funda-mentally one of sovereign freedom or constraint’,28 the Permanent Courtof International Justice affirmed that international law ‘governs rulesbetween independent States. The rules of law binding upon Statestherefore emanate from their own free will’.29 States enjoy both a right ofinternal self-determination, and the right to accept or reject emerginginternational law norms. Koskenniemi explains: ‘One aspect of sover-eignty is the liberty to “legislate” international norms which bind one-self.’ In the absence of consent, ‘the metaprinciple of sovereign liberty –the “Lotus principle” – remains valid.’30

The system of public international law, according to the positivistorthodoxy,31 is the result of a complex web of voluntary legal relation-ships between sovereign and independent states.32 Yet the fact that

26 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford UniversityPress, 2008) 289.

27 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States ofAmerica) (Merits) [1986] ICJ Rep 14 [263].

28 David Kennedy, ‘International Law and the Nineteenth Century: History of anIllusion’ (1997) 17 Quinnipiac Law Review 99, 118.

29 Case of the S.S. ‘Lotus’ PCIJ Rep Series A No 10, 18.30 Martti Koskenniemi, ‘The Politics of International Law’ (1990) European Journal of

International Law 1, 13.31 For the positivist, international law ‘is no more or less than the rules to which states

have agreed through treaties, custom, and perhaps other forms of consent’: Steven Ratnerand Anne-Marie Slaughter, ‘Appraising the Methods of International Law: a Prospectus forReaders’ (1999) 93 American Journal of International Law 291, 293.

32 The International Court of Justice has referred to the ‘edifice of [international] lawcarefully constructed by mankind over a period of centuries, the maintenance of which isvital for the security and well-being of the complex international community’: United StatesDiplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [92].




international law norms, once agreed, are binding undermines the claimof the state to be ‘sovereign’.33 But if states were free to reject existinginternational law commitments, it would be meaningless to refer to theidea of a system of international law. States cannot, at one and the sametime, be ‘absolute’ sovereigns and subject to international law norms. Thebinding force of international law cannot logically be found in positivelaw itself.34 The position in international law was expressed by thePermanent Court of International Justice in Case of SS ‘Wimbledon’: ‘TheCourt declines to see in the conclusion of any Treaty… an abandonmentof [State] sovereignty… [T]he right of entering into international agree-ment is an attribute of State sovereignty.’35 The sovereignty of states, asHans Kelsen explains, ‘is the legal authority of the States under theauthority of international law’.36 The state is sovereign ‘when it issubjected only to international law, not to the national law of any otherState. Consequently, the State’s sovereignty under international law is itslegal independence from other States.’37 Sovereignty provides the right tobe subject only to international law, and not (other) state law systems,and to determine which international laws will apply to the state. It is nota right of absolute political self-determination (ie a right to reject existinginternational law norms):

The fact that a State has, by concluding the treaty, given its consent to thecompetence of the agency established by the treaty is quite compatible with thefact that the State can change its will, expressed at the conclusion of the treaty.This change of will is legally irrelevant, however, since the contracting Stateremains legally bound by the treaty, even if it ceases to will what it declared towill at the moment it concluded the treaty. Only at that moment is concordanceof the wills of the contracting States necessary in order to create the duties andrights established by the treaty. The fact that the contracting State remainslegally bound by the treaty without regard to a unilateral change of will clearlyproves that a State can be bound even against its will and that the autonomy ofthe State under international law is not, and cannot be, unlimited.38

Absolute self-determination is not possible for the sovereign state in theinternational law system. Once international relations are defined interms of law, legal norms structure inter-state relations, providing a

See also, Separate Opinion of Judge Lachs (ibid, 47, at 48): ‘The laws in question are thecommon property of the international community and were confirmed in the interest of all.’

33 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton, Princeton UniversityPress, 1999) 224.

34 Hans Morgenthau, ‘Positivism, Functionalism, and International Law’ (1940) 34American Journal of International Law 260, 269.

35 Case of SS ‘Wimbledon’ [1923] PCIJ Series A No 1, 25.36 Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for Interna-

tional Organization’ (1944) 53 Yale Law Journal 207, 208.37 ibid at 210.38 ibid at 210–11.

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guide for future actions.39 Recourse to international law ensures thatfuture relations will be conducted in accordance with agreed rules, evenagainst short-term interests. The voluntary act of contracting subjects thestate to international law, constraining the scope of (democratic) self-determination.

Disputes in international law emerge in relation to disagreements on ‘apoint of law or fact, a conflict of legal views or of interests between twopersons’.40 The presumption is that that a dispute is capable (in principle)of being resolved in accordance with international law, and not thesovereign (or democratic) will of one or more of the parties. The domi-nant mindset of the international lawyers is one of adjudication, not thearbitration of competing moral and political claims.41 The presumptionthat a dispute can be resolved in accordance with international lawapplies equally in bilateral settings, where only the states parties to adispute are involved. In cases of disagreement over the interpretation ofthe meaning, scope and content of an international law norm a ‘dynamicof justification’ emerges, as each party will justify its position to the otherdisputant in the hope of establishing a common understanding. Differ-ences in interpretation can be reconciled, provided that the will exists,with an authoritative interpretation of the legal text resulting from aprocess of inter-subjective argumentation which results in agreement.42

Disputes in international relations on points of international law areresolved by reference to the techniques of public international law for theinterpretation and application of international law norms. Ian Johnstonemakes the point that processes of dispute resolution are constrained bythe existence of law norms that provide both evidence of a commitmentto comply with the substantive obligations, and to engage in a process ofconstructing the meaning of the relationship together. The argumentapplies to all international law agreements, including constitutionalinstruments such as the Charter of the United Nations (UN), the latter of

39 In Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judge Valticos observed that thefunction of the International Court of Justice was to ‘resolve disputes by means of legalsolutions and, in so doing, to elicit, state and exemplify the relevant rule of internationallaw… In so doing, it will also be able to contribute to that clarity, certainty, predictabilityand stability which are so essential in international law’: Continental Shelf (Libyan ArabJarnahiriya/Malta) [1985] ICJ Rep 13, Separate Opinion of Judge Valticos at 108.

40 Mavrommatis Palestine Concessions [1924] PCIJ Series A No 2, 11.41 The position may be contrasted with Ancient Greece, where arbitrators determined

the outcomes of disputes between Greek city-states without reference to a body of codifiedlaw. The aim of the process was to arrive at a fair and equitable decision through anassessment of competing moral claims: Christian Reus-Smit, ‘The Constitutional Structureof International Society and the Nature of Fundamental Institutions’ (1997) 51 InternationalOrganization 555, 574–75.

42 Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with Interna-tional Regulatory Agreements (Cambridge, Massachusetts, Harvard University Press, 1998)123.




which are more open-textured. Drawing on Owen Fiss’ theory of‘bounded objectivity’, in which interpretation is constrained by a set ofdisciplining rules recognised as authoritative by an interpretive commu-nity,43 Johnstone argues that the meaning of any word, or set or words, iseither clear or capable of clarification,

because communication occurs within situations and ‘to be in a situation isalready to be in possession of (or to be possessed by) a structure of assump-tions, of practices understood to be relevant in relation to purposes and goalsthat are already in place’.

Disputes over the interpretation of law norms are resolved by theconventions of description, argument, judgement and persuasion as theyoperate within a given ‘interpretive community’.44 Where another ispersuaded, it is not because the truth of the interpretation has beendemonstrated, ‘but because the listener and speaker have settled oncertain common beliefs and categories of understanding’.45 By entering atreaty regime, state parties not only agree to be bound by the terms of theagreement, ‘but also to a process of interpretation whose goal is anintersubjective understanding of the treaty terms’. In this way they createand constitute an interpretive community, whose function is ‘to “uncovertogether” the meaning of the treaty’.46

The idea of an interpretive community, taken from Stanley Fish,follows from a rejection of arguments that the source of interpretiveauthority can be found either in the text or with the reader, and from anobservation of both agreement and disagreement in the interpretation oftexts. Meaning is not produced by the text or the reader, but by theinterpretive community in which both are situated. In this sense, inter-preters are no longer individuals, but together form a community ofinterpreters with a shared understanding as to the task of interpreta-tion.47 The act of interpretation is not constrained by the language of thetext, or its context, but by the ‘cultural assumptions within which bothtexts and contexts take shape for situated agents’.48 In relation to interna-tional law, Johnstone identifies an interpretive community with twoconcentric circles: an inner circle, consisting of those individuals respon-sible for the formulation, negotiation, conclusion, implementation andapplication of international law norms; and an outer circle of lawyers and

43 Ian Johnstone, ‘Treaty Interpretation: the Authority of Interpretive Communities’(1991) 12 Michigan Journal of International Law 371, 374.

44 ibid at 378.45 ibid at 379.46 ibid at 381.47 Stanley Fish, Doing What Comes Naturally (Oxford, Clarendon, 1989) 141–42, quoted

Ian Johnstone, ‘Security Council Deliberations: the Power of the Better Argument’ (2003) 14European Journal of International Law 437, 444.

48 Fish, Doing What Comes Naturally (1989) at 300.

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other experts engaged in professional activities associated with the arearegulated by the law norm. Members of the inner circle are responsiblefor the processes that bring international law norms into existence, andfor their implementation and application. The outer circle is composed of‘an amorphous group of all those regarded as possessing expertise ininternational law and/or special knowledge in the relevant field[,] [and]who are dedicated to a common intellectual enterprise and engage in acontinuous process of communication and collaboration’.49 The outercircle includes all those individuals (judges, national government offi-cials, international bureaucrats, lawyers, academics, and individualsworking for international non-governmental organisations, etc) whoparticipate in some way in the practice of international law, or in theinterpretation or application of international law norms. What unitesthem is that they regard themselves as being engaged in a commonactivity requiring ‘a mastering of discipline or technique’.50

The interpretation and application of (agreed) international law normsis undertaken in accordance with the disciplinary techniques and under-standings of international law. Whilst the establishment of internationallaw obligations depends (formally) on an expression of political will, theinterpretation of international law norms is not exclusively the responsi-bility of the states parties to the international agreement.51 John Griffithsobserves that the first consequence of embodying a political decision inlegal form ‘is that lawyers become involved in all aspects of the executionof the decision – its formulation, its interpretation, and its application’.The importance of law resides, in part, ‘in the effects of those specialcharacteristics of lawyers’.52 A second consequence ‘is that the resultinglegal rule takes its place in an existing body of legal propositions andaccepted criteria of legal reasoning’.53 The fact that a political decision isframed in terms of law might be important because of the importance oflawyers, or because of the partial autonomy of law.54 Koskenniemiobserves that legal words ‘cannot be separated from the language in

49 Johnstone (n 47) at 450.50 ibid at 450–51.51 In relation to the requirement for ‘systemic integration’ (art 31(3)(c) of the Vienna

Convention on the Law of Treaties), Martti Koskenniemi observes that success or failure ‘ismeasured by how the legal world will view the outcome’: Martti Koskenniemi, ‘Fragmen-tation of International Law: Difficulties Arising from the Diversification and Expansion ofInternational Law, Report of the Study Group of the International Law Commission’,finalized by Martti Koskenniemi (13 April 2006) UN Doc A/CN.4/L.682 para 419.

52 John Griffiths, ‘Is Law Important?’ (1979) 54 New York University Law Review 339, 358(emphasis in original).





which they lead their life. They operate only in the context of other legalwords and of a professional grammar about how they are used in relationto each other’.55

The meaning of words and phrases (and consequently of internationallaw norms) is provided by the discipline of international law. As theInternational Court of Justice observed in the South-West Africa case, themeaning of legal terms must be understood in light of the ‘framework ofthe entire legal system prevailing at the time of interpretation’.56 The ideaof international law as a legal system requires that participants argue anddebate with the lawyers’ tools of interpretation, deduction and inference.The ‘vision’ of international law as a legal system, as opposed to a merecollection of discrete treaties, allows participants ‘to interpret, deduct,draw inferences and resolve conflicts not only by resorting to the specifictreaties at hand but also by relying on the basic principles of the systemand its underlying norms’.57 The (voluntary) acceptance of the authorityof international law norms subjects the (sovereign) state to the disciplineof international law.58 From the perspective of domestic democracy, theexistence of a binding system of international law is inherently problem-atic.

CONTRACTUAL AUTONOMY

The subjection of the state to the authority of international law isproblematic from both the perspective of (‘unlimited and illimitable’)sovereignty and (absolute) democratic self-determination in relation to aterritory. International law scholars have never satisfactorily explainedhow it was possible that a sovereign could limit its freedom of actionthrough entering into international law agreements. David Kennedyobserves that the candidates for the international meta-principle ‘are

55 Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themesabout International Law and Globalization’ (2007) 8 Theoretical Inquiries in Law 9, 20–21.

56 Legal Consequences for States of the Continued Presence of South Africa in Namibia(South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)[1971] ICJ Rep 16 [53]. An alternative explanation is that the meaning of international lawnorms only changes where the parties intended the meaning to alter in light of changingcircumstances. See Duncan French, ‘Treaty Interpretation and the Incorporation of Extrane-ous Legal Rules’ (2006) 55 International and Comparative Law Quarterly 281, 296.

57 Eyal Benvenisti, ‘The Conception of International Law as a Legal System’ (2008) 50German Yearbook of International Law 393 (SSRN) 4.

58 See, for example, Gabcíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7[114]: ‘The Court would set a precedent with disturbing implications for treaty relations andthe integrity of the rule pacta sunt servanda if it were to conclude that a treaty in forcebetween States, which the parties have implemented in considerable measure and at greatcost over a period of years, might be unilaterally set aside on grounds of reciprocalnoncompliance.’

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legion, and quite familiar’: the ‘nature’ or ‘requirements’ of an interna-tional system (of states); the ‘status’ of statehood, and ‘nature’ of sover-eignty; and/or utility, legitimate expectations, and reciprocity.59 Thedifficulty created by the requirement to subject sovereign will to theauthority of international law led positivist scholars to develop ‘a seriesof even more elaborate “theories” of law which could retain law’s rootsin consent and still explain its force against the dissenter’.60 It was not,however, possible for international law theories to satisfactorily explainhow international law obligations could be imposed on a sovereign statewith its consent.61

The Westphalian paradigm is one of a global state of nature, in whichactors remain free until they consent to limitations on their freedom ofaction (the ‘Lotus’ principle). Rights and obligations are essentially abilateral matter, with treaties (including multilateral treaties) analogousto private law contracts. The model proceeds from the assumptions thatstates are sovereign, and that expressions of sovereign consent createinternational law norms that bind the state, but it is not clear why thisshould be the case. From the end of the nineteenth century, the privatelaw metaphor came to dominate, and international treaties are oftenwritten about as if they were private law contracts,62 binding actors in alegal relationship that can only be avoided in case of superveningimpossibility of performance,63 fundamental change of circumstances,64

or emergence of a new peremptory norm.65 States were unified sover-eigns, analogous in competence to the individual.66 An act of contractualautonomy generated an expectation that agreed law norms would befollowed (the ‘jus-natural maxim’ pacta sunt servanda), ‘not because of anysovereign command but because [the state] consented to them’.67

59 David Kennedy, ‘Theses about International Law Discourse’ (1980) 23 German Year-book of International Law 353, 373.

60 ibid at 379.61 ibid at 380.62 JL Brierly, The Law of Nations: an Introduction to the International Law of Peace, 6th edn,

revised by Sir Humphrey Waldock (Oxford, Clarendon Press, 1963) 317.63 Vienna Convention on the Law of Treaties 1155 UNTS 331 art 61.64 Ibid art 62.65 Ibid art 63.66 David Kennedy, ‘International Law and the Nineteenth Century: History of an

Illusion’ (1997) 17 Quinnipiac Law Review 99, 126.67 Daniela Caruso, ‘Private Law and State-Making in the Age of Globalization’ (2006) 39

New York University Journal of International Law and Politics 1, 63. On the various justificationsadduced for the binding nature of pacta sunt servanda, see Koskenniemi (n 11) at 311–12.Richard Hyland traces the origin of the idea of pacta sunt servanda, the idea that promises(sovereign will) or agreements (contract) must be kept (ie, that the law should followmorality), to Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (1688), concluding thattwo ideas underpinned its conception: that the relationship between the sovereign andsubject (within the state) and between sovereigns was governed by a moral framework, andthat (in contrast to Hobbes) the state of nature was a state of peace




Friedrich Kratochwil argues that the contractual analogy ‘“solved” theproblem of how “persons of sovereign authority” were to relate to eachother in international politics’, allowing the voluntary creation of interna-tional law rights and obligations, ‘while at the same time preserving thesovereigns’ independence and authority’.68 The right to contract is anaspect of private law. It subjects the (economic) relations of autonomousactors to agreed law norms defined at a particular moment in time.Democracy is an ongoing process of debate, deliberation and choice; it isnot logically possible to ground the democratic legitimacy of interna-tional law in the consent of states. Analogous to constitutional lawnorms, an international norm commits the people to a standard ofbehaviour that is not subject to review or repeal through ‘normal’(domestic) politics and democratic will-formation. Whilst constitutionallaw norms remain ultimately subject to the will of the people, throughreform or (legal) revolution, international law norms are only subject toreform, modification or repeal with the consent of other states parties toan agreement. Even if a treaty were ratified only by democratic states,following extensive forms of democratic deliberation and review at thedomestic level, it would not enjoy democratic legitimacy on an ongoingbasis: ‘consent lies properly within the domain of contracts, not demo-cratic politics[,] [which must take into account] the present-day wishes ofpresent-day citizens’.69

LAW-MAKING TREATIES

The establishment of an inter-state bilateral (contract-like) instrument is(according to the standard argument) undertaken through self-interestedbargaining that results in a mutually beneficial agreement. Sovereigntyand democratic self-determination are protected to the extent that theagreement is concluded in the absence of coercion or manipulation (andin accordance with the will of the people). The difficulties inherent in thecontractual analogy becomes apparent with the change in the nature ofinternational law from a bilateral model of inter-state bargaining to agovernance system of international public law regulation, much of which

and gaps in the law of nature could be filled by agreement: Richard Hyland, ‘Pacta SuntServanda: A Meditation’ (1993/4) 34 Virginia Journal of International Law 405, 423. See alsoHans Wehberg, ‘Pacta Sunt Servanda’ (1959) 53 American Journal of International Law 775.

68 Friedrich Kratochwil, ‘The Limits of Contract’ (1994) European Journal of InternationalLaw 465, 465 (references omitted).

69 Owen Fiss, ‘The Autonomy of Law’ (2001) 26 Yale Journal of International Law 517, 525.Fiss concludes that international human rights tribunals should be regarded ‘as a loss fordemocracy even though these tribunals further justice’: ibid at 526.

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is greatly intrusive in domestic social, economic and political life. Brown-lie points to a general distinction in the literature between treaties‘involving bargains between states’, which are ‘like contracts’, and mul-tilateral treaties creating either a set of rules, or an institution, which maybe referred to as ‘law-making’.70 Law-making treaties are often theproduct of conferences of the negotiating parties (or series of confer-ences) within formal diplomatic settings. The development can be seen asa more ‘democratic’ method than bilateral treaty negotiations, facilitatingvalues of ‘discussion, negotiation, compromise, persuasion, influenceand participation’.71 Boyle and Chinkin accept that ‘leading states’remain highly influential,72 but conclude that broad participation inmultilateral law-making fora ‘enhances the democratic nature of theprocess’.73 This is particularly the case ‘when the negotiating power ofindividual states, however small, is strengthened by consensus negotiat-ing procedures’.74 Consensus is defined as ‘the absence of any formalobjection’.75 Where consensus is required, democratic states cannot besubject to obligations that do not enjoy the support of the people,provided that domestic institutions function effectively.76

A particular focus for the negotiation of ‘hard’ and ‘soft’ internationallaw instruments has been the UN General Assembly. International law-making through such institutions creates a number of problems forregarding the state as a ‘self-legislator’ as the influence of any one state is


71 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford, OxfordUniversity Press, 2007) 100.

72 ibid at 30.73 ibid at 21.74 ibid at 102. Others take a different view. BS Chimni concludes that multilateral

law-making fails to ensure the ‘meaningful participation of third world states’: BS Chimni,‘International Institutions Today: an Imperial Global State in the Making’ (2004) 15 EuropeanJournal of International Law 1, 33; Gregory Shaffer criticises the ‘green room’ practices in theWorld Trade Organization (WTO), whereby the officials leading a negotiation will inviteselected governments into a room to hammer out a deal that is later presented to the entiremembership: Gregory Shaffer, ‘Parliamentary Oversight of WTO Rule-Making: the Political,Normative, and Practical Contexts’ (2004) 7 Journal of International Economic Law 629, 631.See also Steve Charnovitz, ‘The Emergence of Democratic Participation in Global Govern-ance (Paris, 1919)’ (2003) 10 Indiana Journal of Global Legal Studies 45, 49.

75 United Nations Convention on the Law of the Sea 1833 UNTS 3 art 161(8)(e).76 Deficits in the practice of democracy at the domestic level are not the focus of this

work, although it is evident that one part of the solution lies in the greater involvement ofnational parliaments in the scrutiny of foreign policy and activities of internationalinstitutions. This is a role that national parliaments, with the exception of the US Congress,have failed to perform. See Anne-Marie Slaughter, ‘Building Global Democracy’ (2000) 1Chicago Journal of International Law 223, 228; also, ‘Cardoso’ Report of the Panel of EminentPersons on United Nations–Civil Society Relations, ‘We the peoples: civil society, the UnitedNations and global governance’ UN Doc A/58/817, 11 June 2004, para 187; and GeneralAssembly (GA) Res 60/1, ‘2005 World Summit Outcome’ (adopted without a vote on 16September 2005) paras 171–72.




reduced in multilateral negotiations, with the consequence that theoutcome of treaty negotiations is less likely to reflect initial preferences;further, most treaty negotiations are undertaken in public, allowingarguments to be subject to scrutiny, and pressure brought to bear onnegotiations by domestic and international non-governmental organisa-tions. The complex nature of diplomatic negotiations and need to accom-modate divergent (and possibly conflicting) perspectives in a consensusagreement often leads to the adoption of open-textured instruments thatcontain little in the way of specific detail. In contrast to contractualdocuments, the agreement subjects the states parties to a particular (ifindeterminate) modus vivendi. The approach might promote inter-statecooperation, but it limits the influence of domestic publics on thedevelopment of international law norms, and empowers internationallawyers, who interpret the scope and content of (indeterminate) norms.

The development is particularly significant in relation to frameworkconventions, the notable feature of which is the deliberate indeterminacy,at least initially, of the obligations of states parties. The principal obliga-tion is to participate in the collective development of international lawnorms at quasi-institutionalised conferences or meetings of the parties.77

The approach has been noteworthy in relation to environmental agree-ments. Examples include the Vienna Convention for the Protection of theOzone Layer,78 and Montreal Protocol;79 and the UN Framework Con-vention on Climate Change,80 and Kyoto Protocol.81 Laurence Helferoutlines the distinctive nature of the ‘framework-protocol’ approach.First, states convene a diplomatic conference to discuss a problem relat-ing to the global environment and possible responses. The conferenceconcludes with the adoption of a ‘“shallow” treaty that contains rela-tively modest commitments’. The treaty expresses the shared concern ofstates parties and their commitment to find a solution; creates mecha-nisms for the gathering and sharing of information; and adopts astructure for future negotiations. The next stage involves the ‘expansion,tightening, speeding-up or other adjustment of the parties’ commit-ments’. Here, the ‘framework-protocol’ approach deviates from aconsent-based approach to international law-making, through the use ofmajority or qualified majority voting systems, and the entry into force of

77 José E. Alvarez, ‘International Organizations: Then and Now’ (2006) 100 AmericanJournal of International Law 324, 330.

78 Vienna Convention for the Protection of the Ozone Layer 1513 UNTS 293.79 Montreal Protocol on Substances that Deplete the Ozone Layer 1522 UNTS 3.80 UN Framework Convention on Climate Change 1771 UNTS 107.81 Kyoto Protocol to the United Nations Framework Convention on Climate Change

2303 UNTS 148.

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instruments without the need for state-by-state ratification.82 Whilst theinstrument may permit a state to object (preventing its entry into force inrelation to the dissenting state), the ‘majority-adoption rules and tacit-acceptance procedures [grant] de facto lawmaking powers to the “confer-ence of the parties” for each agreement, transforming those treaty-basedcollective bodies “into issue-specific equivalents of global legislatures”.’83

DELIBERATIVE DIPLOMACY

Diplomacy is an essential mechanism for the development of interna-tional law norms, which reflect the political will of states.84 The idea ofcontract can explain the establishment of inter-state agreements, but notthe authority, or (democratic) legitimacy, of international law norms (orinternational law).85 In terms of democratic legitimacy, a significant bodyof political thought argues that where a political community exhibitssignificant and persistent disagreements between different groups,defined by reference to ethno-cultural identity and the absence of acommon sense of political identity, it is better to give precedence tobargaining or ‘consociational’ procedures. Consociational democracyprovides for the introduction of a power-sharing scheme that requirespolitical elites to bargain in the interests of their respective group. Thesystem should allow for political self-determination within each group(often defined by reference to territory), and provide mechanisms forgroup cooperation and bargaining over public goods. It should alsoprotect minority communities against any tyranny of majority rule. Thereare four central features in the consociational model, which is associated

82 Laurence R. Helfer, ‘Nonconsensual International Lawmaking’ (2008) University ofIllinois Law Review 71, 84.

83 ibid at 85 (references omitted).84 In United States Diplomatic and Consular Staff in Tehran, the International Court of

Justice observed that the institution of diplomacy has proved to be ‘an instrument essentialfor effective co-operation in the international community, and for enabling States, irrespec-tive of their differing constitutional and social systems, to achieve mutual understandingand to resolve their differences by peaceful means’: United States Diplomatic and ConsularStaff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [91].

85 The idea that contractual autonomy might provide democratic legitimacy for interna-tional law norms creates a number of difficulties, not least that it might hold democracies tohigher standards of compliance with international law norms than non-democracies.Consider, for example, a bilateral treaty between a democratic state and authoritarian statefor the processing of dangerous waste in the latter. Given that the people of the authoritar-ian state cannot be said to have meaningfully ‘consented’ to the arrangement, a change ofgovernment might provide a democratic right to repudiate the treaty.




most closely with the work of Arend Lijphart:86 a grand coalition, orpower sharing executive; proportionate allocation of public goods, suchas resources and opportunities; minority veto; and segmental autonomy,often defined in terms of territorial autonomy.87 A number of writershave sought to read the international system in light of the model, withstates replacing ethno-cultural groups as the sub-entities with competingand conflicting interests. Margaret Moore, for example, argues that theconsociational model can explain the democratic legitimacy of interna-tional organisations in that the participation of governments ensures that‘each political community has a “voice” and some influence over policiesin the international organizations’.88 The function of national politicalleaders is to bargain hard on behalf of citizens over the distribution ofinternational public goods, not to promote the general interest. Otherconsociational features may be read into the inter-state system, includingthe principle of consent (minority veto), and sovereignty and non-intervention (territorial autonomy). To the extent that the consociationalmodel is consistent with the principles of democracy (and I have arguedelsewhere that it is not),89 global governance is democratically legitimateto the extent that it develops and sustains consociational institutions andstructures.90

Though superficially attractive, the argument for reading the demo-cratic legitimacy of international law in terms of consociational practicesis ultimately unconvincing. In the practice of consociational politics,there is a logic of political extremism, as representatives bargain hardover political goods in a zero-sum game. Bargaining is characterised byactors seeking to achieve pre-determined objectives ‘by exchangingdemands backed by credible promises, threats, or exit opportunities’. The

86 See, for example, Arend Lijphart, ‘Consociational Democracy’ (1969) 21 World Politics207; and Arend Lijphart, ‘The Wave of Power-Sharing Democracy’ in Andrew Reynolds(ed), The Architecture of Democracy: Constitutional Design, Conflict Management and Democracy(Oxford, Oxford University Press, 2002) 37.

87 Arend Lijphart, ‘Self-Determination Versus Pre-Determination of Ethnic Minorities inPower-Sharing Systems’ in Will Kymlicka (ed), The Rights of Minority Cultures (Oxford,Oxford University Press, 1995) 275, 278.


89 Steven Wheatley, Democracy, Minorities and International Law (Cambridge, CambridgeUniversity Press, 2005) 166–67. In a democratic society, governments emerge from anelectoral process that constitutes an expression of the ‘will of the people’. The state mayfacilitate a more representative executive through its choice of electoral system, or constitu-tional rules on the allocation of cabinet seats, etc. The idea of democracy does not, however,allow for political leaders to decide in advance who will share power. Consociationaldemocracy is not compatible with the right to democracy recognised in international law.Elite power sharing can only be justified in the initial transition from conflict to democracyby reference to ideas of transitional justice

90 See Anne Peters, ‘European Democracy after the 2003 Convention’ (2003) 41 CommonMarket Law Review 37, 84.

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goal is to maximise given preferences. In the absence of significantdisparities in power, which make threats credible, bargaining is unlikelyto be effective. Thomas Risse observes that bargaining is only one of threepossible ways in which states may communicate with each other, and it isthe least likely to be successful in terms of allowing for inter-statecooperation. The second concerns the use of rhetoric, whereby statesattempt to persuade others ‘that they should change their views of theworld, their normative beliefs, their preferences, and even their identi-ties’, but do not accept that they may be persuaded by the arguments ofothers.91 The use of rhetoric is not discursive, although it implies certaindiscursive practices, as participants cannot simply repeat their positionsin the expectations that others will eventually be persuaded. The thirdpossibility, drawing on Jürgen Habermas’ theory of communicativeaction, is to understand diplomatic conversations as a process of ‘argu-ing’, understood in terms of giving reasons (not heated discussions).Arguing occurs where the focus of diplomacy is on achieving a reasonedconsensus, and not the realisation of some pre-determined objectives:‘Successful arguing means that the ‘‘better argument’’ carries the day.’92

In the process of ‘arguing’, states must be prepared to change theirpositions when faced with a ‘better argument’. It is an application ofHabermas’ principle of discourse: ‘D: Just those action norms are valid towhich all possible affected persons could agree as participants in rationaldiscourses.’ Where actors deliberate about the truth, or ‘argue’, they areengaged in a form of collective communication that aims to establishwhether their assumptions about the world are correct (theoretical dis-courses), and which norms should apply under given circumstances(practical discourses). Actors will challenge the claims of others, andmust accept that their claims will be subject to challenge. The aim is toestablish a ‘communicative consensus about their understanding of asituation as well as justifications for the principles and norms guidingtheir action’. All participants must accept that their position will bechanged when faced with the force of the better argument, with relation-ships of power and social hierarchies receding in the background.93 In atruth-seeking or argumentative process, interests and identities are notfixed, ‘but subject to interrogation and challenges and, thus, to change’.

91 Thomas Risse, ‘“Let’s argue!”: Communicative Action in World Politics’ (2000) 54International Organization 1, 8 (references omitted). Goldsmith and Posner observe thatstates provide legal justifications for their actions, no matter how transparently self-interested those actions may be: Jack Goldsmith and Eric Posner, The Limits of InternationalLaw (Oxford, Oxford University Press, 2005) 169. Whilst ‘talk is cheap’, the failure of a stateto send such a signal would reveal that it belongs to the ‘bad type’, and would not be agood cooperative partner: ibid at 174.





The objective is an argumentative consensus, not the imposition of aparticular world vision.94 Elsewhere, Risse observes that interests, prefer-ences and perceptions in a process of deliberative diplomacy are subjectto discursive challenges:

Where argumentative rationality prevails, actors do not seek to maximize or tosatisfy their given interests and preferences, but to challenge and to justify thevalidity claims inherent in them – and are prepared to change their views of theworld or even their interests in light of the better argument.95

Communicative processes oriented toward achieving mutual under-standing presuppose a counterfactual ideal speech situation, in whichactors try to persuade each other, and are themselves open to beingconvinced: ‘The goal of the discursive interaction is to achieve argumen-tative consensus with the other, not to push through one’s own view ofthe world or moral values.’ Argumentative rationality requires the exist-ence of a number of preconditions: the ability to empathise, to see theworld through the eyes of others; participants must share a ‘commonlifeworld’, a common understanding of the world, and their role and thatof other participants in the world, and a common system of norms andrules perceived as legitimate to which actors refer in the process ofargumentation.96 Further, actors must recognise each other as equals, andhave equal access to the discourse, which must also be open to otherparticipants and be public in nature. The pre-conditions for argumenta-tive rationality in the international community are provided by themutual recognition of sovereign states as equals, and by the commonlifeworld reflected in the rules of the international law game.97 Habermasobserves that international law ‘lays down the rules of the game’, thequalifications that potential participants must satisfy (effective control ofthe population of a territory), the admission requirement (recognition),and the idea of status, or sovereignty, including rights of non-intervention, and the right to participate as a full member of the interna-tional law system.98

94 ibid at 10. Habermas observes that there is no alternative to ‘multilateral will-formation in interstate relations’ because no state, ‘even the good hegemon’, can knowbetter what is good for others, or ‘equally good for all. There is no sensible alternative to theongoing development of international law into a cosmopolitan order that offers an equaland reciprocal hearing for the voices of all those affected’: Jürgen Habermas, ‘Interpretingthe Fall of a Monument’ (2003) 4 German Law Journal 701, 708.

95 Thomas Risse, ‘Global Governance and Communicative Action’ (2004) 39 Governmentand Opposition 288, 294 (emphasis in original).

96 Risse (n 91) at 10.97 Ibid at 11.98 Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have a

Chance?’ in The Divided West (ed and trans Ciaran Cronin) (Cambridge, Polity, 2006) 115,119.




One of the difficulties in applying any concept of democratic legiti-macy to the international law order is the differences in power betweenthe various actors. Relations of power impact on the possibility oftruth-seeking (ie the formation of international laws in accordance withthe requirements of communicative reason) in one of two ways: byrestricting access to the deliberations (consider, for example, the limitedmembership of the UN Security Council), and by limiting what counts asa good argument.99 The issue is not whether power relations are presentin international relations (they are), but the extent to which they explainthe ‘argumentative outcome’. The following are examples of inappropri-ate recourse to bargaining or rhetoric, rather than discourse: where actorsrefer to their status as being relevant in determining outcome (consider,for example, the idea that there are civilised and non-civilised states);where actors change their position simply to win the argument (actorsmust display ‘argumentative consistency’); and any assumption that ‘thematerially more powerful actors’ have the better arguments.100 Risseconcludes that processes of arguing are more likely to occur

the more actors are uncertain about their interests and even identities; the lessactors know about the situation in which they find themselves and about theunderlying ‘rules of the game’ (‘common knowledge’); and the more appar-ently irreconcilable differences prevent them from reaching an optimal ratherthan a merely satisfactory solution for a widely perceived problem (‘problemsolving’).101

In the (hypothetical) ideal speech situation, (democratic) norms emergethrough inter-state discussions though an application of the principle ofcommunicative reason applied to the international law of states. Validinternational law norms must enjoy the consent of all possible affectedstates in rational discourses. This does not presuppose that all possibleoutcomes are equally legitimate or equally possible. A state would not,for example, accept a proposal that excluded it from future deliberations,regarded its arguments as inferior, or removed its status as a member ofthe international community. The requirement of rational deliberationsand application of the consensus principle prescribes a mechanism forthe conduct of diplomatic conversations and discovery of political truthsin the international law order, and (logically) proscribes certain (demo-cratic) ‘truths’ from being revealed. Consider, for example, the argumentthat small states should be regarded as being in an inferior relationship toother states, as was proposed in relation to (very) small states in the

99 Risse (n 91) at 16.100 ibid at 18.101 ibid at 33.




UN.102 The argument undermines the idea of sovereignty, and would notbe accepted by those affected (ie very small states).

The requirements for democratic legitimacy in the international lawsystem are a justificatory legal discourse that leads to a negotiatedconsensus. Ian Johnstone explains: ‘It is a distinctive form of deliberation,or style of argument, that requires a decision to be justified in terms thatthose who are subject to it can accept, even if they disagree with thedecision itself.’103 Self-interested arguments will not persuade others.Participants in consensus-seeking deliberations must rely on ‘generaliz-able principles, impartial reasons, and arguments that reach beyondnarrow self-interest’ to convince others to change their position, and theymust be prepared to listen and reflect on the arguments of others. Whilstit is ‘an open question’ as to whether the ideal of deliberative democracyis possible in international relations, there is evidence of legal discourseand argumentation within the international community. States justifytheir actions largely in terms of international law, and challenge otherstates to justify their actions in the same terms. The requirement toengage in ‘meaningful legal discourse [and give reasons] generates anexpectation that claims will be based on conventions of argument anddiscourse that operate in the discipline of international law’. Onceinternational relations are framed in terms of law, they operate within thedisciplinary constraints of an interpretive community, given that legaldiscourse, ‘by extension, entails appeals to legal norms as they areunderstood not by each actor individually (subjectively) or in someabstract sense (objectively), but together as a collective law-interpretingbody (inter-subjectively)’.104

States must offer reasonable arguments in diplomatic conversationswithin a shared understanding about the rules that structure inter-staterelations. International law defines and delimits the possibilities ofargumentation and justification, ie what counts as a good argument.There are two objections to developing a concept of democratic legiti-macy on this basis: first, that governments ‘merely pay lip service to thelaw and, because international law is so malleable, a legal justificationcan be found for any action’; and, secondly, that powerful actors ‘sodominate the interpretive community that they are able to control theterms of discourse, resulting in legal judgments that invariably suit their

102 Michael Gunter, ‘What Happened to the United Nations Ministate Problem?’ (1977)71 American Journal of International Law 110.

103 Ian Johnstone, ‘The Plea of “Necessity” in International Legal Discourse: Humanitar-ian Intervention and Counter-Terrorism’ (2005) 43 Columbia Journal of Transnational Law(2005) 337, 380.

104 ibid at 381.




interests and wishes’.105 There is, though, a limit to which any legitimat-ing language, including the language of law, can plausibly be stretched.Rich and powerful states may be better able to shape global discourses,and ‘dominant actors are better able to write and amend the rules of thegame’. They cannot, however,

change those rules (and shift the terms of debate) instantaneously and at will.To the extent that they engage in deliberations at all, they are obliged to respectthe conventions of argument, persuasion, and justification associated with theparticular enterprise in which the deliberations occur.106

The analysis developed by Risse and Johnstone presents important insightsfor accepting the democratic legitimacy of international law, one thatdepends on the ability of states to develop democratic ‘truths’ through aprocess of communicative reason that approximates to the deliberativeideal. In the (hypothetical) ideal speech situation, international law normsshould enjoy the consent of all possible affected states in rational dis-courses. The requirement of rational deliberations and application of theconsensus principle prescribes a mechanism for the conduct of diplomaticconversations and discovery of political truths in the international laworder, a form of deliberatively diplomacy. The analysis is limited in that notall international law norms can be regarded as an expression of sovereignwill, consider for example the development of customary international law(below) and increased reliance on treaties, UN resolutions and othersources for the identification of state practice and customary norms. It isthough important in emphasising the requirement of reason and reasoneddeliberation. Jens Steffek argues that legitimacy in the modern age ‘isderived from the authority of reason. “Reasoning” or “giving reasons” isthe communicative process that legitimates governance.’ The characteristicfeature of legitimate global governance is evidence of reasoned argumenta-tion that results in a consensus amongst participants, and it is noteworthythat many forms of inter-state relations ‘are guided by a unanimity rule’, inwhich ‘all contracting parties need to agree explicitly to the values, goalsand procedures of the future regime’.107 Reasoned deliberations leading toconsensus is not, however, sufficient to legitimate global governance in thelong term. The existence of an international law agreement reflects the factthat states have decided ‘that a certain political goal shall be pursued by theinternational community for a particular reason’. The agreement will onlyremain legitimate ‘as long as there is agreement on the values to be realized,the means to be employed and the procedures to be followed’.108 Steffek’s

105 ibid at 382–83.106 ibid at 383.107 Jens Steffek, ‘The Legitimation of International Governance: a Discourse Approach’

(2003) 9 European Journal of International Relations 249, 263.108 ibid at 264.




argument restates the problem of accepting the (ongoing) democratic legiti-macy of an inter-state agreement following consensus (deliberative orotherwise) at a particular point in time. International law norms agreedthrough deliberative processes of diplomacy are more democratic thanthose that result from other processes (indeed, we might accept them as thedemocratic laws of the international system), but the problem for democ-racy remains at the domestic level, as the people can no longer decide allthose issues that are politically decidable.

THE INDETERMINACY OF INTERNATIONAL LAW OBLIGATIONS

The function of international lawyers is to judge the conduct of theparties to an international law dispute in accordance with existing law, ieto apply relevant laws to established facts. In many cases the content ofinternational law norms will be the subject of (reasonable) disagreement(the existence of a dispute involves recognition that there are at least twopossible interpretations of the scope and content of a law norm). Inbilateral relations, where only the states parties are involved, a disputecan only be resolved (within the framework of international law) inaccordance with the will of both parties.109 The submission of a dispute toan international court or tribunal involves a rejection of the (sovereign)right of a state to define its obligations under international law (‘state asself-legislator’). The issue becomes one of interpretation of the rights andobligations contained in international law rules and instruments.

In Territorial Dispute (Libyan Arab Jamahiriya/Chad), the InternationalCourt of Justice affirmed that the rules for the interpretation of treaties inthe Vienna Convention on the Law of Treaties reflect a customaryinternational law norm, and that interpretation must be based above allupon the text of the treaty.110 Article 31, the general rule of interpretation,provides that a treaty ‘shall be interpreted in good faith in accordancewith the ordinary meaning to be given to the terms of the treaty in theircontext and in the light of its object and purpose’.111 The consent of theparties is more important than the ordinary usages of language: ‘[a]special meaning shall be given to a term if it is established that the partiesso intended’.112 In addition to the context,113 interpretation shall take into

109 cf Charter of the United Nations art 33(1): ‘The parties to any dispute, the continuanceof which is likely to endanger the maintenance of international peace and security, shall,first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration,judicial settlement, resort to regional agencies or arrangements, or other peaceful means oftheir own choice.’

110 Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judgment [1994] ICJ Rep 6 [41].111 Vienna Convention on the Law of Treaties 1155 UNTS 331 art 31(1).112 ibid art 31(4).

The Indeterminacy of International Law Obligations 145



account any subsequent agreement between the parties regarding theinterpretation of the treaty,114 or practice in its application, which estab-lishes the agreement of the parties regarding its interpretation.115 Refer-ence may also be had to relevant rules of international law applicable inthe relations between the parties.116 Article 32 refers to ‘supplementarymeans of interpretation’, including the preparatory work (travaux pré-paratoires) leading to the agreement on the text of the treaty, and thecircumstances of its conclusion, which may be relied upon to confirm themeaning resulting from application of the general rule of interpretation,or determine the meaning when the application of the rules of interpre-tation in article 31 leaves the meaning ambiguous or obscure, or leads toa result which is manifestly absurd or unreasonable.117

Alexander Orakhelashvili concludes that in selecting the methods ofinterpretation of international law norms, the focus is ‘not what academ-ics [and others] want or perceive them to be, or what could under certaincircumstances be sensible, sound, reasonable or agreeable, but what isagreed by and as between States in one way or another’.118 The methodsof interpretation reflected in articles 31 and 32 ‘serve the inherentrationale of interpretation – to clarify the meaning of legal norms andinstruments on the basis of their rationale’. In determining the appropri-ate method, what matters are the ‘exigencies [that] follow from theinherent consensual and contractual character of the relevant rules andinstruments’. International law instruments do not ‘just embody theintention of the entity that adopts them, but also they are understood interms of their face value and plain meaning’. The intention of the partiesis constrained by the language used to express that intention: ‘Themethods of interpretation are aimed at preserving the original consent,will and intention behind the relevant legal instrument and thus atensuring the determinacy of the relevant provision by enabling itsapplication to facts.’119

Herein lies the difficulty: international law disputes reflect conflictingviews as to the law (or less problematically for these purposes the

113 See ibid art 31(2): ‘The context for the purpose of the interpretation of a treaty shallcomprise, in addition to the text, including its preamble and annexes: (a) Any agreementrelating to the treaty which was made between all the parties in connection with theconclusion of the treaty; (b) Any instrument which was made by one or more parties inconnection with the conclusion of the treaty and accepted by the other parties as aninstrument related to the treaty.’

114 ibid art 31(2)(a).115 ibid art 31(2)(b).116 ibid art 31(2)(c).117 ibid art 32.118 Alexander Orakhelashvili, The Interpretation of Acts and Rules of Public International

Law (Oxford, Oxford University Press, 2008) 288 (emphasis in original).119 ibid at 584.




relevant facts). In Orakhelashvili’s terms, disputes reflect conflictingviews as to the original consent, will and intention behind the relevantinternational instrument. Both parties cannot be right: there must besome objective understanding of the original consent, will and intentionof at least one of the parties that is at variance with its understanding ofthe law. Martti Koskenniemi argues that international law disputes arealways hard cases, requiring an exercise of (judicial) discretion,120

because each disputing state will be able to ‘make a prima facie justifica-tion of their action by referring to their sovereign liberty’. In order toresolve the dispute, the judge/law-applier must reach a conclusion that‘privilege[s] one sovereign over another in a manner that necessitates theconstruction of a hierarchy of values for evaluating sovereign action’.121

The possibility of not deciding is not present; the dispute must beresolved by objective reference to international law.122 The only alterna-tive would be to accept the subjective position of each state as to what itregards as binding law at a particular moment in time. Where the statedenies that it has consented to an international law norm, or a particularinterpretation, the standard response is to rely on tacit consent. But thisassumes either that the law-applier ‘can know-better’ what the state hasconsented to, or that there is ‘some non-acceptance-related criterionwhereby we can judge whether acceptance is present or not’.123 Wherethe position of the state is not accepted, the imposition of internationallaw obligations no longer relies on the ‘expressed will of the legalsubject’.124 What law means will depend on the judgment of the law-applier.125 In cases of conflict between the sovereign rights of states(where the Lotus principle is not helpful), balancing seems necessary inorder to reach a decision,126 with judicial practice supporting the conclu-sion.127 Balancing involves ‘making political compromises’.128 It is,though, problematic from the perspective of sovereignty:

What basis is there to impose a balance… on a State which has not accepted it?To argue that it is binding because other States have accepted it fails to explainwhy a State should be bound by other States’ subjective values. This ismanifestly contrary to its sovereign equality.129

120 cf Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977) ch 4.121 Koskenniemi (n 11) at 43.122 ibid at 63.123 ibid ay 64.124 Martti Koskenniemi, ‘The Politics of International Law’ (1990) 1 European Journal of

International Law 4, 22.125 Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes

about International Law and Globalization’ (2007) 8 Theoretical Inquiries in Law 9, 11.126 Koskenniemi (n 11) at 264.127 ibid at 267.128 ibid at 268.129 ibid at 269 (emphasis in original).




Koskenniemi concludes that the success of modern international lawdepends on its ‘refusal to set down determining rules or ready-maderesolutions to future conflict’. International law appears to be ‘an elabo-rate framework for deferring substantive resolution elsewhere: into fur-ther procedure, interpretation, equity, context, and so on’.130 Hisindeterminacy thesis builds on the work of critical legal studies schol-ars,131 who argue that indeterminacy is inherent in all normative systems.In the case of systems of law norms, there is indeterminacy in themeaning of language, deliberative indeterminate in certain legal expres-sions (the idea of ‘reasonableness’, for example), and indeterminacy inthe application of law norms, and in cases of conflict between law norms.The indeterminacy thesis concludes that law norms are too vague to bedeterminate of outcomes.132 It is not, David Kennedy argues, ‘meaningfulto speak of a particular solution to a legal problem as having beingcompelled by a line of reasoning’.133 The ‘unstructured indeterminacy’ ofinternational law ‘results from the manipulability of the basic norms outof which international legal discourse is constructed’.134 There is nointernational law doctrine that does not involve a conflict ‘betweenautonomy and cooperation of states, because by definition no interna-tional legal issue is raised until the interests of states collide’.135 Indeter-minacy results from conflicting ideas about sovereignty, betweensovereignty understood as authority (‘an internationalist vision of shar-ing’) and sovereignty as equality (a ‘nationalist vision of exclusivedomestic power’). International law disputes can be articulated and/orresolved by reference to the objective standard of sovereign consent, orby reference to some ‘subjective solution [that] would bring valuesbeyond consent into the process’.136 International law discourse, Ken-nedy argues, is ‘conversation without content – a ritualized exchangewhich avoids confronting the very question it purports to address’. Legaldisputes may be resolved at a point in time, but this does not reflect thepower of legal argument, but the imposition of an ‘underlying valuechoice’, or exercise of coercion.137

130 Koskenniemi (n 124) at 28.131 See, especially, Duncan Kennedy, ‘The Structure of Blackstone’s Commentaries’

(1979) 28 Buffalo Law Review 205.132 Lawrence Solum, ‘On the Indeterminacy Crisis: Critiquing Critical Dogma’ (1987) 54

University of Chicago Law Review 462, 462. The focus is the judicial process; the indetermi-nacy thesis does not expressly take into account the fact that most legal norms are acceptedand applied by actors without recourse to formal legal procedures: ibid at 496–97.

133 David Kennedy, ‘Theses about International Law Discourse’ (1980) 23 German Year-book of International Law 353, 357.





The indeterminacy argument present a significant problem for regardingthe international law system as democratically legitimate, in that it seeks todemonstrate that legal argument and judgment is nothing more than theconcealed expressions of arbitrary opinion, personal preferences or politi-cal convictions of the law-interpreter/law-applier. International law obli-gations are not the result of sovereign (and democratic) will, but thelegislative acts of ‘others’, notably judges on international courts andtribunals. The indeterminacy thesis should caution us against any argu-ments that international lawyers are simply articulating some objectivetruth inherent in the logic of international law norms, and to examine thetexts produced by international lawyers (including those sitting in a judi-cial capacity) for concealed political preferences (including cosmopolitanand humanitarian preferences). It should not though require that we giveup on the possibilities of public international law determining the ‘legal’position of states and other non-state actors. Stephen Toope makes the pointthat indeterminacy provides scope for divergent legal arguments in cases ofconflicting interpretations, it does not ‘render discourse meaningless’.138

Moreover, as Isaiah Berlin observes, the ‘right answer’ thesis, which theindeterminacy thesis critiques, depends on a utopian claim concerning themetaphysics of values and of normative justification. It assumes that ‘allquestions in the domain have one answer, that is knowable, and that all theanswers in the realm are mutually compatible’. Such assumptions are‘inconsistent with our experiences’ and ‘misdiagnose the nature of practicalarguments’.139 Friedrich Kratochwil concludes that the recognition of ‘plu-ral possibilities’ does not imply ‘the nihilist or existential conclusion thatanything goes and/or that because there is no single right answer, anyanswer is as good as another’.140 What it demands is an investigation ofindeterminacy as it arises in legal reasoning and consideration as to ‘howparticular choices (out of several “possible” ones) can be justified on non-idiosyncratic grounds’.141 Legal interpretation takes place in the context ofan interpretive community, and whilst there may be disagreements aboutthe proper use of a term, or the interpretation of a legal rule, ‘purelyidiosyncratic uses are excluded even if the use of the concepts remainscontestable and contested’.142

138 Stephen Toope, ‘Emerging Patterns of Governance and International Law’ in MichaelByers (ed), The Role of Law in International Politics (Oxford, Oxford University Press, 2000) 91,102.

139 Sir Isaiah Berlin, ‘The Pursuit of the Ideal’ in Berlin, The Crooked Timber of Humanity(New York, Vintage, 1991), referred to in Friedrich Kratochwil, ‘How do Norms Matter?’ inMichael Byers (ed), The Role of Law in International Politics (Oxford, Oxford University Press,2000) 35, 46.

140 Kratochwil, ibid. at 46.141 ibid at 46–47.142 ibid at 52.




THE PROBLEM OF CUSTOMARY INTERNATIONAL LAW

The previous sections focused on the problems for democracy that resultfrom the existence of the international law order. A constitutional democ-racy might express its consent to be bound by an international law normfollowing domestic debate, deliberation and decision (ie through demo-cratic procedures), but limitations on the possibilities of (future) politicalself-determination are problematic from the perspective of democratictheory: how is it possible that the ‘here and now’ people can limit thechoices available to future generations? Treaty is one of two principalmechanisms through which international law norms become opposableto the state. The other is customary international law. Custom createsparticular problems in terms of democratic legitimacy, as there is norequirement that a particular state consents to the emergence of a newcustomary norm, or that a majority of states participate in its formation,or that only democratic states participate, or that the practices of statesaccord with the wills of their respective peoples. It may create particularproblems for states, often those with common law systems, whichrecognise customary international law as part of domestic law, withoutthe requirement for positive legislative approval. Moreover, as customarynorms are, by definition, not authoritatively written down, the task ofidentifying and interpreting, and by implication ‘applying’, customaryobligations often falls to non-state actors, judges, academics, etc, with norequirement to take into account the attitude of the state against whomthe norms are opposed.

The requirements for the recognition of customary international laware provided by article 38(1)(b) of the Statute of the International Court ofJustice, which refers to ‘international custom, as evidence of a generalpractice accepted as law’. Both elements must be present: there must beevidence that ‘the existence of the rule in the opinio juris of States isconfirmed by practice’.143 In contrast to treaties, the subjective opinion ofstates is not sufficient by itself to develop customary international lawobligations;144 nor is custom the mere ‘repetition, or imitation, of similaracts’.145 The settled practice of states is not sufficient to generate interna-tional law rights and obligations. There must be ‘evidence of a belief that

143 Nicaragua v United States (Merits) [1986] ICJ Rep 14 [184].144 The International Court of Justice has concluded that customary international law

comprises ‘a limited set of norms for ensuring the co-existence and vital co-operation of themembers of the international community, together with a set of customary rules whosepresence in the opinio juris of States can be tested by induction based on the analysis of asufficiently extensive and convincing practice, and not by deduction from preconceivedideas’: Delimitation of the Maritime Boundary in the Gulf of Maine Area (Judgment) [1984] ICJRep 246 [111].

145 Koskenniemi (n 11) at 415.




this practice is rendered obligatory by the existence of a rule of lawrequiring it’.146 Community acceptance does not require the consent of allstates: the general acceptance by a significant majority is sufficient for therecognition of a new customary international law norm, taking intoaccount any opposition from those specially affected.147 Custom is distin-guished from international treaties as a source of international lawobligation ‘by its less consensual character’.148 There is no requirementthat all states participate in the relevant practice, or that the practice ofstates is in ‘absolutely rigorous conformity with the rule’. As the Interna-tional Court of Justice observed in Nicaragua v United States (Merits), it issufficient that ‘the conduct of States should, in general, be consistent withsuch rules’.149 The international law system accepts that customarynorms will emerge without the consent of all states, but insists that anorm will have general application. The sovereign consent of all states isnot required for the development of customary international law. As theCourt observed in North Sea Continental Shelf, customary norms, ‘by theirvery nature, must have equal force for all members of the internationalcommunity, and cannot therefore be the subject of any right of unilateralexclusion exercisable at will by any one of them in its own favour’.150

Sovereignty (and the principle of consent to international law norms) isprotected (in a negative manner) through the persistent objector rule. Therule, which is required to ‘safeguard non-consenting States’ sovereignequality’,151 permits, in the words of Ian Brownlie, a state to ‘contract outof a custom in the process of formation’ (note the contractual analogy):‘Given the majoritarian tendencies of international relations the principleis likely to have increased prominence’.152 The requirement that a stateobject from the inception of the rule provides a significant limit onpolitical self-determination. The only subsequent possibility is for a stateis to seek the acquiesce of all other states in contracting out of the rule ofcustomary international law.153 The people are unable to exempt them-selves from the application of a customary norm that they do not accept,or that they come to realise has serious deleterious consequences for thewelfare of the society, even if the rule was established prior to theestablishment of the state itself, and it was not therefore possible for thestate to have objected to the emergent norm. The application of the rule is

146 North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 [77].147 ibid at [74].148 Koskenniemi (n 11) at 398.149 Nicaragua v United States (Merits) [1986] ICJ Rep 14 [186].150 North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 [63].151 Koskenniemi (n 11) at 443.152 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University

Press, 2008) 11.153 ibid at 12.

The Problem of Customary International Law 151



particularly noteworthy in relation to states emerging from domination,including former colonies. Further, many states with limited financial,diplomatic and other resources lack the capacity to participate effectivelyin the formation of customary international law, or indeed object topractices that are in the process of crystallisation.154

The Role of the International Law Profession

It is difficult to reconcile customary international law with the Westphal-ian conception of the state as self-legislator. The recognition of customrequires an acceptance that the international community of states (collec-tively) constitutes an authority with legislative powers. The source ofauthority is a social practice recognised as legally binding by the interna-tional community. In the case of customary (international) law norms, theassertion of political authority is made by a secondary or interpretive‘observer’ (who may also be a member of the community) who claimsthat a ‘customary’ practice is binding as a matter of law. Authority andlegitimacy are joined. The international community is the authoritativesource of customary international law norms: ‘It is a community’sacceptance of norms that confers legitimacy on them.’155 Whilst theidentification of the subjective element (opinio juris) will always besubject to speculation, it should be possible to identify the settled practiceof states that contributes to the development of a customary internationallaw norm. In practice, however, international courts and tribunals rarelyengage in any systematic enquiry into the practices of the majority ofstates.156 The identification of state practice by international law profes-sionals is essentially a subjective matter. McGinnis and Somin complainthat custom suffers a ‘double democracy deficit’: the materials on whichit is based ‘lack serious democratic bona fides’, and the authority todetermine the status and meaning of those instruments is allocated to ‘anundemocratic and unrepresentative elite’.157 They make the following(rather illuminating) observation: ‘Elite international law professors inthe United States are very unrepresentative of popular opinion, leaningDemocratic rather than Republican by a ratio of over five to one… Agroup with such unrepresentative values is unlikely to generate repre-sentative norms.’158

154 Steven Ratner, ‘Is International Law Impartial?’ (2005) 11 Legal Theory 39, 57.155 J Patrick Kelly, ‘The Twilight of Customary International Law’ (2000) 40 Virginia

Journal of International Law 449, 456.156 ibid at 469.157 John McGinnis and Ilya Somin, ‘Should International Law be Part of our Law?’ (2007)

59 Stanford Law Review 1175, 1207.158 ibid at 1202.




Given that customary laws are not authoritatively written down, theirexistence must be recognised according to conditions established bymembers of the international law profession, who determine when asettled practice has hardened into a rule of customary international law,and the scope and content of that rule. The responsibility falls principallyto justices on international courts and tribunals,159 and international lawprofessors, who often act in multiple roles in the international law system— as ‘publicists’ of international law writings, the authors of influentialinternational ‘soft’ law instruments, and judges on international courtsand tribunals (cf article 38(1) of the Statute of the International Court ofJustice).160 There is no requirement that international law professorsrepresent the interests and perspectives of the people of ‘their’ state. Theprincipal loyalty of members of the profession (in their professionalcapacity) is to the discipline of international law. Shirley Scott observesthat one of the self-give functions of international lawyers is to ‘serve asguardians of the relative autonomy, cohesion and consistency of interna-tional law’.161 Both international law judges and professors may, how-ever, be likely, as McGinnis argues, to be ‘biased toward discoveringconsensus among states even when it does not exist to create moreinternational law and thus more power for themselves’.162 Elsewhere, heaccuses this ‘ideologically skewed group’ of being more likely to choose‘ideologically skewed norms’.163 More sympathetically, Mattias Kummrefers to the ‘cosmopolitan enthusiasm for international law that isperhaps the déformation professionelle of the international lawyer’.164

Given that the existence and content of customary international law

159 Eyal Benvenisti observes that international tribunals ‘exercise considerable discretionin both “identifying” state practice and in determining whether following that practicereveals a state’s acknowledgment of its binding quality’: Eyal Benvenisti, ‘The Conceptionof International Law as a Legal System’ (2008) 50 German Yearbook of International Law 393(SSRN) 5.

160 In determining whether a rule has become a rule of international law, the Restate-ment of Foreign Relations Law concludes that ‘substantial weight’ is accorded to thejudgments of international and national courts and tribunals; judicial and arbitral tribunals;the writings of scholars; and pronouncements by states, when such pronouncements are notseriously challenged by other states: Restatement (Third) of Foreign Relations Law § 103(2)(1987).

161 Shirley Scott, ‘The Political Life of Public International Lawyers: Granting theImprimatur’ (2007) 21 International Relations 411, 420.

162 John McGinnis, ‘Foreign to our Constitution’ (2006) 100 Northwestern University LawReview 303, 314.

163 John McGinnis, ‘The Comparative Disadvantage of Customary International Law’(2006) 30 Harvard Journal of Law and Public Policy 7, 11.

164 Mattias Kumm, ‘Democratic Constitutionalism Encounters International Law: Termsof Engagement’ in Sujit Choudhry, The Migration of Constitutional Ideas (Cambridge, Cam-bridge University Press, 2006) 256, 260.

The Problem of Customary International Law 153



norms cannot be objectively determined, what is involved, as Kosken-niemi points out, ‘is legislative construction by the judge’,165 or otherinternational law actor. Patrick Kelly concludes that customary norms arein many cases determined by ‘academic and judicial elites… without theparticipation or direct assent of the majority of states’.166

A Modern Form of Customary International Law

In the identification of customary international law norms, the job-function of the international law professional (according to the rule ofrecognition in public international law) is to identify a relevant practiceof states and evidence of opinio juris, reflected in normative statementsframed in terms of law. In practice this rarely occurs.167 Internationallawyers rarely attempt any systematic enquiry into state practice or theattitude of states to a customary practice. The criticism applies equally tothe International Court of Justice,168 which ‘in most cases, declares rulesof law without investigating the attitude of states on the legal characterof a customary norm or undertaking an investigation of the actualpractice of the majority of states’.169 The Court ‘deduces norms that itterms customary’ from treaties, UN resolutions, and other sources,170 andin doing so elevates those norms from ‘soft’ to ‘hard’ status in interna-tional law. Consider, for example, the judgment in Nicaragua v UnitedStates (Merits), where the Court relied on General Assembly Resolution2625 (XXV), ‘Declaration on Friendly Relations’, as an expression of ‘thevalidity of the rule or set of rules declared by the resolution by them-selves’.171 José E Alvarez concludes that customary international law, inthe age of international organisations, is no longer observed by ‘histori-ans consumed with surveying extensive state practice over decades or

165 Koskenniemi (n 11) at 470 (emphasis in original).166 Kelly (n 155) at 519–20.167 A notable exception is the International Committee of the Red Cross project to

identify state practice in international humanitarian law. See Jean-Marie Henckaerts andLouise Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge, Cam-bridge University Press, 2005).

168 Mark Movsesian concludes that the International Court of Justice ‘suffers from aserious democratic deficit’. The selection of judges occurs through a process ‘far removedfrom popular oversight’, or the control of domestic governments or democratic states: MarkMovsesian, ‘Judging International Judgments’ (2007) 48 Virginia Journal of International Law65, 97.

169 Kelly (n 155) at 469.170 ibid at 476.171 Nicaragua v United States (Merits)[1986] ICJ Rep 14 [188]. For an example of the

International Court of Justice relying on an international agreement (Convention on theLaw of the Non-Navigational Uses of International Watercourses, adopted by the UNGeneral Assembly A/RES/51/229, 21 May 1997) as evidence of customary internationallaw, see Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 [85].




even centuries’. Instead, international lawyers rely on ‘institutionalizedshortcuts’ to identify customary international law, including resolutionsadopted by the General Assembly and the provisions of widely ratifiedmultilateral treaties, which are taken as ‘expressions of “community”interests’.172 The premise of the new methodology is that the unanimousor near-unanimous adoption of international instruments provides evi-dence of the opinio juris of states in the international community.173

According to Anthea Roberts, the emergence of this modern form ofcustom reflects ‘a desire to create general international laws that can bindall states on important moral issues’. The objections of dissenting statesand instances of contrary state practice are ignored because the interna-tional community ‘is not prepared to recognize exceptions to the mainte-nance of certain fundamental values’.174 The process is ‘potentially moredemocratic because it involves practically all states [who] participate inthe negotiation and ratification of treaties and declarations of interna-tional fora’. The principle of sovereign equality, one state, one vote, also‘helps to level the playing field’, providing less powerful states with acost-efficient means of expressing their views, although ‘allowing amajority of states to bind a minority does not sit well with the notion ofstate sovereignty’.175

GENERAL PRINCIPLES OF LAW

The existence of customary international law (and corresponding obliga-tions of states) cannot be understood by reference to the contract meta-phor developed to explain how a sovereign could limit its freedom ofpolitical action. The sovereignty of states and possibilities of politicalself-determination are exercised ‘under the authority of internationallaw’.176 The position is affirmed by the inclusion of ‘general principles oflaw’ in article 38(1)(c) of the Statute of the International Court of Justice,which challenges the exclusive right of states to make international law.The introduction of its predecessor represented a compromise betweenproponents of expanding the scope of international law-making andadherents to a strict positive doctrine that limited participation to

172 José E Alvarez, ‘International Organizations: Then and Now’ (2006) 100 AmericanJournal of International Law 324, 332.

173 Kelly (n 155) at 484.174 Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary Inter-

national Law: a Reconciliation’ (2001) 95 American Journal of International Law 757, 766.175 ibid at 768.176 Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for Interna-

tional Organization’ (1944) 53 Yale Law Journal 207, 208.

General Principles of Law 155



states.177 The provision permits the International Court of Justice, and byextension all other interpreters of international law obligations, to haverecourse to principles common to systems of (national) law, without, inthe words of Christine Chinkin, ‘authorizing unfettered recourse tonotions of objective justice’.178 Examples of general principles include theobligation to make reparation, good faith, estoppel, and ex injuria non jusoritur. Koskenniemi makes the point that these general principles werenot ‘“enacted” by positive acts of States’, but form ‘parts of the generalframe of international law’.179

The inclusion of general principles as a source of obligations affirmsboth that international law is a system of law, and that it is a system oflaw of the same order as domestic law systems; it is not a category errorto refer to the idea of international ‘law’. GG Fitzmaurice argues that

law is revealed as something that has no meaning unless it is external to thewill of the members of the society in which it functions, as something to whichthose members are subject, and which derives its obligatory character fromsources that do not rest on consent, but rather themselves confer on consent itslaw-making capacities. And the ultimate source of the validity of this law isand must be extra-legal.180

Relying on McIver’s The Modern State, Fitzmaurice concludes:

‘We obey the law not because we necessarily think that the law is just, butbecause we believe it to be just to obey the law.’ It is this precept that seems toprovide the firmest ground for the affirmation that the law, national orinternational, is binding; and the most fundamental, and therefore ultimatelythe most compelling, reason for its authority.181

The recognition that international law is more than a collection ofpositive expressions of sovereign consent confirms the existence of asystem of law that (from the perspective of international law) binds the‘sovereign’ members of the international community to a set of primaryrules that regulate the behaviour of members, and secondary rules ofchange, adjudication and recognition.182 Sovereignty (and democraticself-determination) is exercised within an international law system that is

177 Bruno Simma, ‘The Contribution of Alfred Verdross to the Theory of InternationalLaw’ (1995) 6 European Journal of International Law 1, 16.

178 Christine Chinkin, ‘Normative Development in the International Legal System’ inDinah Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in theInternational Legal System (Oxford, Oxford University Press, 2000) 21.

179 Koskenniemi (n 51) at para 469.180 GG Fitzmaurice, ‘The Foundations of the Authority of International Law and the

Problem of Enforcement’ (1956) 19 Modern Law Review 1, 12.181 ibid at 13.182 cf HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) 94.




not subject to the will of the people: the idea and authority of interna-tional law does not accept the possibility that the people of a constitu-tional democracy can always ‘democratically decide’.

THE WRITINGS OF PUBLICISTS AND JUDGMENTS OF COURTS

Article 38(1)(d) of the Statute of the International Court of Justicerecognises judicial decisions and the teachings of the most highly quali-fied publicists of the various nations ‘as subsidiary means for thedetermination of rules of law’. Article 59 reads as follows: ‘The decisionof the Court has no binding force except between the parties and inrespect of that particular case.’ The following sections examine the role ofpublicists and courts in developing international law.

The Writings of Publicists

Article 38(1) of the Statute of the International Court of Justice establishesthe sources of international law obligations as treaties, customary inter-national law, general principles, and, ‘as a subsidiary means’, judicial andacademic opinion (article 38(1)(d)). Academic opinion includes the worksof ‘authors of standing’, and the reports, resolutions and other texts ofinternational law bodies, such as the Institute of International Law,International Law Association, and, perhaps most significantly, the Inter-national Law Commission.183 In the absence of formal law-making struc-tures, international law professionals have played a significant role in thedevelopment of international law, which proceeds by argumentation,repetition, and acceptance. Koskenniemi concludes in the epilogue toFrom Apology to Utopia: ‘International law is what international lawyersmake of it’.184 By the use of analogy and abstraction of general principlesfrom individual rules, the international lawyer attempts to develop anunderstanding of the discipline as a coherent whole, allowing for theapplication of international law norms to new factual circumstances. Theidentification and interpretation of international law is the job-function ofthe international lawyer, defined to include the members of internationaland domestic judicial and arbitral tribunals, international law practition-ers, and academics, all of whom claim to possess specialist knowledgeand skills that others do not possess. This chapter has already high-lighted the difficulty in regarding the contribution of international law

183 Restatement (Third) of Foreign Relations Law § 103 (1987), reporter’s note 1.184 Koskenniemi (n 11) at 615.

The Writings of Publicists and Judgments of Courts 157



publicists as democratically legitimate. Whilst international law writingsmust fall within the disciplinary understandings of the profession (thevalidity of claims about international law are determined by the profes-sion), the authority of international law texts does not depend on theiracceptance by states, and, as Brownlie observes, when internationallawyers interpret the nature, scope and content of international lawnorms, it is ‘obvious that subjective factors enter into any assessment ofjuristic opinion’.185

The Judgments of Courts

Article 38(1)(d) of the Statute of the International Court of Justicepermits, again as a subsidiary means, recourse to the judgments ofdomestic and international courts to determine generally applicable rulesof international law. The judgments (and reasoning) of courts and tribu-nals may be taken as authoritative statements of international law, even ifthe judicial body in question has no standing to decide on the law, and byimplication to limit the freedom of action of states subject to the interna-tional law norm in question. It is important to recognise the central roleof the International Court of Justice (and before that the Permanent Courtof International Justice) in developing the fundamental principles ofinternational law, and many standard references in international lawtexts are to judgments of the Court. Article 38 is a direction to theInternational Court of Justice as to the sources of international law that itcan examine in resolving disputes submitted to it. The function of theCourt is that of adjudication: to sit in judgment on the parties, and tojudge in accordance with existing law. It is not the function of the Courtto make the law. In South West Africa, Second Phase, the Court affirmedthat it ‘is not a legislative body. Its duty is to apply the law as it finds it,not to make it.’186 There is no international common law and (formally)no international equivalent to the common law principle of stare decisis.The idea of sovereignty limits the role of the Court to determining thelegal position of the parties in the case before it. Article 59 of the Statuteof the International Court of Justice confirms that a judgment has nobinding force except as between the parties and in respect of thatparticular case. In Certain German Interests in Polish Upper Silesia, the

185 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford UniversityPress, 2008) 24. The international lawyer is not precluded from making proposals forreform, both technical and policy-orientated, but she must always make clear the distinc-tion between the de lege ferenda (what the law ought to be), and the lex lata (what the lawactually is). The privileged position of international lawyers in political debates is providedby the status accorded to members of the profession, and their professional expertise.

186 South West Africa, Second Phase [1966] ICJ Rep 6 [89].




Permanent Court observed that the object of the (equivalent) article ‘issimply to prevent legal principles accepted by the Court in a particularcase from being binding upon other States or in other disputes’.187

The requirement for states to consent to international law suggests alimited role for courts and tribunals in its development. Koskenniemiargues that international courts take a more restrictive approach to theissue of judicial discretion than municipal courts, emphasising the impor-tance of consent as the basis of international law obligations, ‘with whicha wide discretionary power would conflict’.188 Some judicial discretion isinevitable, but it should take place ‘within “the existing law”’.189 Thefunction of an international court is to determine what a particular statehas willed and not to determine the scope and content of a body of(public international) law than can be applied to the particular facts. Thisis the fundamental difference in the ways in which international anddomestic lawyers view the (legal) world: for the international lawyer, theobject of enquiry is evidence of sovereign consent; for the domesticlawyer, the object is the content of authoritative law norms issued by acompetent institution. The shift in the nature of international law from aconsensual model to a (international) public law governance modelconsequently requires a re-evaluation of the authority of internationallaw and role of judicial bodies.

The establishment of international courts and tribunals both enhancescompliance by increasing the probability that sanctions and reputationalcosts will be imposed on defaulting states,190 and allows for the develop-ment of a more detailed body of law through ‘judgments’ in contentiouscases, particularly where non-state actors have the right to bring com-plaints. There are at least 40 ‘institutionalized international disputesettlers’, reflecting the faith of international lawyers in legal elites, neutralforms of adjudication, and an independent judiciary.191 There is also anincreasing tendency of international courts and tribunals to refer to thejurisprudence of other courts and tribunals, in what Helfer and Slaughterrefer to as ‘a form of collective deliberation about common legal ques-tions’.192 Jenny Martinez notes that international (and domestic) courts

187 Certain German Interests in Polish Upper Silesia (Merits) [1926] PCIJ Series A No 7, 19.188 Koskenniemi (n 11) at 30.189 ibid 34.190 Laurence Helfer and Anne-Marie Slaughter, ‘Why States Create International Tribu-

nals: a Response to Professors Posner and Yoo’ (2005) 93 California Law Review 899, 935.191 José E Alvarez, ‘International Organizations: Then and Now’ (2006) 100 American

Journal of International Law 324, 325.192 Laurence Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Suprana-

tional Adjudication’ (1997) Yale Law Journal 273, 282. See also Eyal Benvenisti, ‘ReclaimingDemocracy: the Strategic Uses of Foreign and International Law by National Courts’ (2008)102 American Journal of International Law 241; and William Burke-White, ‘International LegalPluralism’ (2004) 25 Michigan Journal of International Law 963, 977–78.

The Writings of Publicists and Judgments of Courts 159



can be seen to be involved in a form of ‘jurisgenerative dialogue’,observing that dialogue is a tool uniquely suited to courts, given that‘persuasion, rather than coercion, is the judiciary’s stock in trade’.193 Inthe absence of a ‘supreme court’ capable of resolving conflicting interpre-tations of law and jurisdiction, and no ‘unifying [“constitutional”] docu-ment’,194 the system of international courts will be ‘self-organising’,although two significant trends can be identified: international courts arebeginning to recognise that they are engaged in a common endeavourand they will not lightly disregard the judgments of other internationalcourts; and certain courts and tribunals are recognised by other courts ashaving special expertise.195

We have seen a shift from an essentially contractual model of interna-tional law, to a public law, or ‘governance’, model. The validity ofinternational law is no longer a question of sovereign will. The develop-ment is reflected, inter alia, in the decline of the importance of consent ininternational law and emergence of ‘lawmaking’ treaties, majoritariantendencies in the development of customary international law and emer-gence of modern forms of custom that rely on widely accepted interna-tional treaties and the resolutions of international organisations. A public(international) law governance paradigm suggests the need for an inter-national court to locate any decision in the ‘seamless web’ of interna-tional law: an argument for integrity and coherence, and requirement totreat like cases alike. In practice, international courts, including theInternational Court of Justice, invariably refer to their previous decisions,refusing to depart from them without a good reason, an internationalvariant of stare decisis, the legal principle of determining cases inaccordance with precedent, ie in accordance with the body of law andreasoning of previous judgments, and not the sovereign will of the statesparties to the dispute. Where states are subject to the authority ofinternational law, the interpretation of generally applicable norms incases to which a state is not a party is not problematic: it is an applicationof the rule of law principle that like cases be treated alike, and recogni-tion that international law is a system, by which is simply meant ‘that the

193 Jenny Martinez, ‘Towards an International Judicial System’ (2003) 56 Stanford LawReview 429, 466–67.

194 ibid at 431.195 ibid at 490. Martinez considers how international courts and tribunals should relate

to each other. A number of possibilities emerge: to fulfil in a contract-like way the intentionsof nation-state sponsors; to serve the rational interests of powerful states; to act as acounterweight to the interests of powerful states; to protect international peace andsecurity; to promote economic efficiency; and/or to advance human rights. Martinez offersa further possibility: to establish a federalism of democratic states that respects individualhuman rights: ibid at 461.




various decisions, rules and principles of which the law consists do notappear not randomly related to each other’.196

The role of international (and arguably domestic) courts and tribunalsbecomes problematic where the ‘interpretation’ of international lawnorms augments the obligations of states beyond the literal meaning ofcontracted norms, creating difficulties both in terms of sovereignty anddemocratic self-determination: according to democratic theory, it is forthe people or their representatives to ‘legislate’ law norms, with thefunction of the unelected and largely unaccountable judiciary to applythose norms.197 At the domestic level, the function of courts is to interpretstatutes adopted by the national parliament (and, in common law sys-tems, to develop the common law). Where the courts interpret or developthe law in a way that is not consistent with the will of the here-and-nowpeople, a national parliament is at liberty to (re-)legislate on the sameissue. This is not the case in relation to international courts, which claimthe final, and thus constitutionally decisive, word in relation to thecontent of international law norms. The exercise of legislative authorityby international courts reflects the separation of powers concern andcounter-majoritarian difficulty identified at the domestic level: in a legalsystem, the role of judicial law-making should be limited to the applica-tion and logical development of democratically legislated political lawnorms. Consequently, the lawmaking activities of international courtsand tribunals are a particular source of concern in relation to the‘democratic deficit’ in international law.

CONCLUSION

Much of the literature on the problem for democracy following theglobalisation and fragmentation of governance regards the decline of theWestphalian settlement as the principle cause for concern. Where theexistence of binding law norms (internal state law and external interna-tional law) depended on a positive expression of sovereign will, democ-racy was protected to the extent that sovereign will was determined bythe people. This chapter demonstrates the incoherence of the argumentonce the existence of the authority of international law is recognised; noris it possible to provide democratic legitimacy for international lawnorms by reference to the idea of sovereign consent. In the case ofinternational treaties, democratic legitimacy rests on the ability of diplo-matic conversations to produce reasoned outcomes in conditions in

196 Koskenniemi (n 51) at para 33.197 cf John Rawls, Political Liberalism (New York, Columbia University Press, 1993) 231.

Rawls regards courts as the paradigm of rational deliberative decision-making.

Conclusion 161



which only the force of better argument is able to prevail. The authorityof customary international law is provided by a recognition by theinternational community that a practice is binding as a matter of law, andin making that determination regard may be had to whether the rule willcontribute to international order.198 International law serves the socialpurpose of ensuring peaceful inter-state relations.

From the perspective of domestic societies, the existence of a system ofpublic international law not under the control of the state law systemcreates a deficit in the practice of democracy (the people do not decide all‘politically decidable issues’). But, following Hans Kelsen, it makes littlesense to refer to restrictions on sovereignty by international law. Theright of democratic self-determination is exercised within the frameworkprovided by the international law order. The following chapters demon-strate the ways in which international law is constructing a singlelegitimate form of political community for domestic societies: the liberaldemocratic state. The practice of (domestic) democracy must be under-stood in the context of a framework of international law norms thatprovide for the protection of individual human rights and (increasingly)a requirement for democratic forms of government. The function of ademocratically legitimate international law order is (in part) to constructlegitimate domestic polities, ie the ‘liberal democratic’ state.

198 Restatement (Third) of Foreign Relations Law § 103 (1987) comment.




4

The Constitutionalisation ofInternational Law

THE PREVIOUS CHAPTER demonstrated the difficulty in recon-ciling democratic self-determination with the authority of interna-tional law. The objective of this chapter is to examine the ways in

which international law undermines the claims of ‘sovereignty’ by pro-moting liberal democratic values in world society. According to thepositivist orthodoxy, international law is an expression of sovereign will,excluding from its domain ‘all matters of an a priori, metaphysicalnature’.1 The system of international law is the result of a complex web ofbilateral inter-state relationships framed in terms of law. The attitude ofthe people of a state to an emergent or established international lawnorm is irrelevant. The state is sovereign, not the people. It enjoys theright to contract in international law, and to demand that other statesrespect the principle of non-intervention in domestic affairs: social,economic and political conditions are not the concern of other states,unless the state has limited its freedom of action by agreeing to aninternational law norm. The positivist analysis is increasingly regardedas anachronistic, with a recognition in cognate disciplines, such aspolitical theory, that sovereign rights are not absolute, but contingent onthe legitimate exercise of government authority.2 This chapter observesthe shift in the nature of international law from a bilateral model ofinter-state contract to a public law governance model in which aninternational constitutional order frames and delimits the exercise ofpolitical power at the domestic level. The work develops a constructivistanalysis, arguing that the international law system has undergone aprocess of reconstruction in the period following the establishment of the

1 Hans Morgenthau, ‘Positivism, Functionalism, and International law’ (1940) 34American Journal of International Law 260, 261.

2 David Held, for example, argues that sovereignty can no longer be understood interms of ‘untrammeled effective power’, and that the legitimate exercise of politicalauthority within the state depends on the government upholding certain human rightsstandards and establishing a legal order that reflects an expression of the democratic will ofthe people: David Held, ‘Law of States, Law of Peoples: Three Models of Sovereignty’(2002) 8 Legal Theory 1, 17.

Columns Design Ltd / Job: Wheatley / Division: 04_Theliberaldemocraticstate /Pg. Position: 1 / Date: 26/3


United Nations (UN). This has included both the recognition of (legiti-mate) political authority for the world organisation (UN), and the devel-opment of a normative hierarchy, reflecting global justice norms, adevelopment referred to as the constitutionalisation of international law.International law subjects sovereign will and domestic political determi-nation to a set of global law norms that constructs the state as anautonomous political unit and legitimates the exercise of domestic gov-ernment in accordance with certain global justice norms, reflected, forexample, in international human rights law.

FROM CONTRACT TO GOVERNANCE

The positivist model that emerged in the nineteenth century paid littleattention to conditions within states, or the interests and values of theinternational community as a whole: ‘each state was embarked upon itsown adventure [in its own] national interests, as determined exclusivelyby itself’.3 The approach resulted in an era of ‘absolutist states’,4 unfet-tered by legal obligations they had not themselves accepted. Notoriously,Herman Goering felt able to proclaim on the subject of the Holocaust:‘But that was our right! We were a sovereign State and that was strictlyour business.’5 The positivist (or Westphalian) epoch ended following thedevastating consequences of the two world wars (1914–18, 1939–45), anddiscoveries, inter alia, at Auschwitz and Buchenwald. Today, as DavidKennedy observes:

[w]hen we public international lawyers look out the window, we see a worldof nation-states and worry about war. We remember the great wars of thetwentieth century. We were traumatized by the Holocaust, fear totalitarianism,and are averse to ideology. Our common project is governance: how cansovereign states be governed so that war may be avoided?6

Harold Hongju Koh notes that the disastrous consequences of World WarII led the international community to replace a ‘loose customary web ofstate-centric rules with an ambitious positivistic order, built on institu-tions and constitutions’.7 Whilst the intense bipolarity of the Cold War

3 Stephen Neff, War and the Law of Nations: a General History (Cambridge, CambridgeUniversity Press, 2005) 171 (emphasis in original).

4 Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal ofInternational Law 20, 38.

5 Quoted in Paul Lauren, The Evolution of International Human Rights, 2nd edn (Phila-delphia, University of Pennsylvania Press, 2003) 204.

6 David Kennedy, ‘One, Two, Three, Many Legal Orders: Legal Pluralism and theCosmopolitan Dream’ (2007) New York University Review of Law and Social Change 641, 650.

7 Harold Hongju Koh, ‘Why do Nations Obey International Law?’ (1997) 106 Yale LawJournal 2599, 2614.

164 The Constitutionalisation of IL



era rendered the vision a ‘Potemkin Village’,8 the institutional architec-ture of global governance put in place in the immediate aftermath ofWorld War II has become increasingly important, with the emergence ofthe UN Security Council as a powerful actor on the international stagebeing the clearest example.

The modern world of international law accords more with an interna-tional public law governance model than a private law model of contract.The establishment of international institutions, such as the UN, allowsfor the exercise of global regulatory functions and the emergence of rulesand principles that reflect the interests and values of the internationalcommunity as a whole. In the period since 1945, states have beensocialised to accept global law norms concerning respect for humanrights and the necessary conditions for the (democratic) exercise ofpolitical authority. In We the Peoples, UN Secretary-General Kofi Ananobserves that ‘the spreading acceptance of new norms has profoundlyaffected the lives of many millions of people’. These include normsproviding for universal human rights and the practice of democracy,which is ‘now generally seen as the most legitimate and desirable form ofgovernment’.9 The Report of the International Commission on Interven-tion and State Sovereignty, ‘The Responsibility to Protect’, concludes that,today, sovereignty is more than just a functional principle of internationalrelations: it is the recognition of the equal worth and dignity of states andpeoples, and an affirmation of the right of all peoples ‘to shape anddetermine their own destiny’.10 Sovereignty is not understood as the‘unlimited power of a state to do what it wants to its own people’; itimplies a dual responsibility, externally, to respect the sovereignty ofother states, and internally, ‘to respect the dignity and basic rights of allthe people within the state’. The idea of sovereignty as responsibility,including the responsibility to protect, ‘has become the minimum contentof good international citizenship’.11

The ideas advanced in ‘The Responsibility to Protect’ (and elsewhere)suggest the need for a radical reformulation of the ways in whichinternational lawyers understand the discipline. There has been a declinein the Westphalian political settlement, yet sovereignty remains one ofthe competing meta-principles for organising world society. According tothe positivist analysis, arguments that we are in a post- or late-Westphalian era present a misreading of the world of law and the

8 ibid at 2615.9 Kofi Anan, We the Peoples: the Role of the United Nations in the 21st Century (New York,

United Nations, 2000) 68.10 ‘The Responsibility to Protect: Report of the International Commission on Interven-

tion and State Sovereignty’ (Ottawa, International Development Research Centre, 2001)para 1.32.

11 ibid at para 1.35.

From Contract to Governance 165



allocation of political authority in world society.12 Sovereignty remainsthe organising principle of international relations, and law is understoodexclusively in terms of expressions of sovereign will: internal state lawand external international law. Sovereignty and the sovereign state arefacts of the world that we must recognise and accommodate. But sover-eignty is not a fact in the same way that mountains and oceans are ‘facts’.There is a fundamental distinction between the natural and social world,where ‘facts are only facts by human agreement’.13 Concepts such as‘sovereignty’, the ‘state’, and ‘international law’ are social facts. ChristianTomuschat makes the evident, but oft forgotten, point that the system ofinternational law, like any legal order, ‘is a man-made product andshould be understood as such’.14

The argument developed here regards states and the international lawsystem as social constructs. Constructivist insights are important inexplaining the emergence of international public law norms that (fromthe perspective of international law) constrain the freedom of action ofsovereign and independent states. No new meta-theory of (international)law is required to replace the idea of Westphalian sovereignty. Thesystem of global governance works in a particular way because it isunderstood to work in that way. If the international law order is a socialconstruct, it can be re-imagined by the international law profession indifferent ways. Consider, for example, the dictum of the InternationalCourt of Justice on the legal personality of the UN organisation inReparations suffered for injuries suffered in the service of the United Nations.The Court concluded that the UN was not a state, still less ‘“a super-State” whatever that might mean’. It is a subject of international law,capable of possessing international rights and duties.15 In establishing theUN, 50 states, ‘representing the vast majority of the members of theinternational community, had the power, in conformity with interna-tional law, to bring into being an entity possessing objective internationalpersonality, and not merely personality recognized by them alone’.16 The

12 Neil Walker refers to the idea of late-sovereignty, rather than post-sovereignty. In theemerging post-Westphalian order, it becomes possible to conceive of ‘autonomy withoutexclusivity – to imagine ultimate authority, or sovereignty, in non-exclusive terms. This isbecause of the emergence of polities whose posited boundaries are not (or not merely)territorial, but also sectoral or functional’: Neil Walker, ‘The Idea of Constitutional Plural-ism’ (2002) 65 Modern Law Review 317, 346.

13 Tanja Aalberts, ‘The Future of Sovereignty in Multilevel Governance Europe – aConstructivist Reading’ (2004) 42 Journal of Common Market Studies 23, 35. See also ThomasBiersteker and Cynthia Weber, State Sovereignty as Social Construct (Cambridge, CambridgeUniversity Press, 1996).

14 Christian Tomuschat, ‘Obligations Arising for States Without or Against their Will’(1993) 241 Recueil de cours 195, 235.

15 Reparations suffered for injuries suffered in the service of the United Nations (AdvisoryOpinion) [1949] ICJ Rep 174, 179.

16 ibid at 185 (emphasis added).




international law order was re-constructed with the establishment of theUN, which proclaimed that its laws were a higher form of law in theinternational system,17 and (ultimately) superior to the domestic laws ofstates.18 It has been further re-constructed with the emergence of substan-tive constitutional values, reflected, for example, in the emergence ofinternational norms of jus cogens standing, which cannot be explained byreference to the positive orthodoxy. Consider also the question of mem-bership in the international community of states. Political entities become‘sovereign’ when recognised as such within the international law order.The sovereign state that was first constituted by an assertion of politicalauthority by regional monarchs in Europe is now constructed by thesystem of international law. This can be seen in the growth of the numberof states since 1945, which has resulted from an application of interna-tional law norms concerning the right of peoples to self-determination.Serge Sur observes that during the period of decolonisation, ‘the interna-tional society became a machine for the manufacture of states’.19 Theinternational law on the right of peoples to self-determination createdlarge numbers of political units that were recognised as ‘sovereign’. Theindependence of those societies and autonomy of their state legal orderswas guaranteed by the application of the principle of sovereignty and itscorollary of non-intervention.

Phillip Karber observes that reference to constructivism in the interna-tional law literature reflects ‘a growing interest in the role of “ideas,” theinfluence of “culture,” and the importance of “rules” in understandingglobal interaction’. The concern is to understand the ‘constitutive andregulatory “rules of the road”’ that apply to the complex ‘social system’of international relations.20 Constructivists advance three main argu-ments: that inter-subjective beliefs shape the identities and interests of

17 Charter of the United Nations art 103: ‘In the event of a conflict between theobligations of the Members of the United Nations under the present Charter and theirobligations under any other international agreement, their obligations under the presentCharter shall prevail.’

18 ibid art 2(7): ‘Nothing contained in the present Charter shall authorize the UnitedNations to intervene in matters which are essentially within the domestic jurisdiction of anystate or shall require the Members to submit such matters to settlement under the presentCharter; but this principle shall not prejudice the application of enforcement measuresunder Chapter Vll.’

19 Serge Sur, ‘The State between Fragmentation and Globalization’ (1997) 8 EuropeanJournal of International Law 421, 424.

20 Phillip Karber, ‘“Constructivism” as a Method in International Law’ (2000) 94American Society of International Law Proceedings 189, 189. Anne-Marie Slaughter notes thatinternational lawyers are often drawn to constructivist theory, inhabiting as they do ‘aworld of discourse’, constructivism ‘provides a deeply satisfying account of how and whywhat they do matters’: Anne-Marie Slaughter, ‘International Law and International Rela-tions Theory: a Prospectus’ in Eyal Benvenisti and Moshe Hirsch (eds), The Impact ofInternational Law on International Cooperation: Theoretical Perspectives (Cambridge, CambridgeUniversity Press, 2004) 16, 37.




actors; that actors within the system of global governance are in a‘dialogue with the prevailing norms of legitimate agency that constituterole identities to define their [own] senses of self’; and that normativeand ideational structures exist as a result of the routine practices of socialagents, and as ‘human artefacts’, they are, consequently, ‘amenable totransformation’.21

Alexander Wendt explains that the fundamental principle of construc-tivist social theory is that people act towards objects, including otheractors, on the basis of the meaning that the objects have for them. It iscollective understandings that constitute the structures that organise ouractions. Actors acquire identities through participation in collective pro-cesses: identities are ‘inherently relational’.22 Through reciprocal interac-tion, actors create and instantiate enduring social structures that definetheir identities and interests.23 Wendt refers to the idea of an ‘institution’:a relatively stable set of identities and interests that is often codified informal rules and norms. The process of creating an institution ‘is one ofinternalizing new understandings of self and other, or acquiring new roleidentities’.24 Sovereignty is an institution. The idea of sovereignty ininternational relations exists only by virtue of inter-subjective under-standings that not only constitute a particular kind of state, the ‘sover-eign’ state, but also a particular form of international community.25

International law norms, as expressions of sovereignty, ‘are now so takenfor granted, so natural, that it is easy to overlook the extent to which theyare both presupposed by and an ongoing artifact of practice’. If statesceased to act in accordance with those norms, ‘their identity as “sover-eigns” (if not necessarily as “states”) would disappear.’26

The constructivist argument is that actors acquire identities throughparticipation in collective processes. The identity of the sovereign state asan actor in international relations is created through interactions withother actors in both informal and formal contexts (international organisa-tions). States understand the concept of sovereignty through interactionswith other actors. The idea of sovereignty only exists by virtue of inter-subjective understandings; it can, consequently, be re-conceptualisedthrough the revised inter-subjective understandings that emerge throughparticipation in international organisations. Brunnée and Toope observethat in Jürgen Habermas ‘some constructivists have found support for the

21 Christian Reus-Smit, ‘The Politics of International Law’ in Christian Reus-Smit (ed),The Politics of International Law (Cambridge, Cambridge University Press, 2004) 14, 21–22.

22 Alexander Wendt, ‘Anarchy is what States make of it: the Social Construction ofPower Politics’ (1992) 46 International Organization 391, 397.





proposition that the identities of international actors are constructed inlarge part through “communicative action”.’27 Processes of deliberationrequire that states ‘learn to be “discursively competent,” that is, capable ofpersuading’.28 Through interactions between states (as actors in interna-tional relations) and between states and non-state actors (and, indeed,between non-state actors), inter-subjective structures emerge that ‘give theworld meaning’.29 Inter-subjective understandings and institutions maypersist for long periods, but they can be ‘reshaped through changes in theconstructed identities of the actors, identities that are in turn shaped andreshaped by action within the structures’.30 The argument is not that ideas,knowledge and norms ‘operate as direct causes of action, rather that socialstructures constrain and enable actors in their choices, and thus help toshape world politics’.31 Global actors have constructed a system of govern-ance that provides the context for interactions, and which shapes identities.International law norms and institutions ‘furnish the context within whichinteraction takes place and shape the identities of the actors themselves’.Actors in the international system ‘come to understand themselves andtheir interests in light of their interaction with others and in light of thenorms that frame the interaction’.32

Christian Reus-Smit argues that constructivists attach too muchexplanatory weight to sovereignty, and in doing so fail to recognise thatsovereignty is embedded in a larger complex of constitutive meta-valuesthat structure the global system. The idea that sovereignty defines thesocial identity of the state ‘is both logically and historically problematic.Unless embedded within a larger complex of values, the principle ofsovereignty cannot alone provide the state with a coherent social iden-tity.’ It cannot, for example, explain why a sovereign entity is entitled topolitical self-determination in both the internal and external senses.Constructivists must identify the more primary and substantive valuesthat provide for their status in world society as ‘centralized, autonomouspolitical organizations’.33 Three such values emerge: a shared belief aboutthe moral purpose of a centralised political unit; the organising principle

27 Jutta Brunnée and Stephen Toope, ‘International Law and Constructivism: Elementsof an Interactional Theory of International Law’ (2000) 39 Columbia Journal of TransnationalLaw 19, 26.

28 ibid at 27.29 ibid at 28.30 ibid at 30.31 ibid at 31.32 ibid at 34 (references omitted).33 Christian Reus-Smit, ‘The Constitutional Structure of International Society and the

Nature of Fundamental Institutions’ (1997) 51 International Organization 555, 565.




of sovereignty; and a norm of pure procedural justice.34 These constitu-tive meta-values define the sovereign state and the rights and privilegesof sovereignty. Whatever past justifications there might have been forrecognising the sovereignty of the state (monarchy or other raison d’état),the function of sovereignty today is to protect the right of politicalself-determination for taken-for-granted political communities. This isthe ‘moral purpose of the state’, justifying the foundational principle ofsovereignty ‘and the prevailing norm of pure procedural justice’.35 Theidea of procedural justice provides that law is legitimate where authoredby those subject to it, or their representatives, and equally binding onall.36 The ideal of legitimate statehood, a ‘democratic, rule of law polity’,which emerged following the revolutions in America and France, alsocame to be applied at the international level in the nineteenth century,with the emergence of multilateral forms of law-making. The institutionof universal conferences of states reflected a determination to apply theprinciple of pure procedural justice to the international level, and conse-quently to ensure the collective legislation of international law norms,which would be authored by those subject to them and equally bindingon all.37 Examples include the Congress of Vienna, the Hague PeaceConferences, and the creation of the League of Nations and UN, all ofwhich, Leo Gross argues, represented a ‘conscious effort to establish acommunity of states based on the will of all states or at least on the will ofthe Great Powers’.38

Constructivist insights are important to understanding internationallaw. The idea of sovereignty is not fixed, it is a social fact understood byactors within the international law order (and observed by internationallawyers). The importance of resolutions adopted by international organi-sations such as the UN, the emergence of norms of jus cogens, andprinciples of global justice such as human rights and self-determinationcannot be understood by reference to the positivist orthodoxy, and weneed not contort our understandings of the international system todemonstrate sovereign will for all law norms. The international lawsystem has undergone a process of ‘constitutionalisation’ during theperiod of the UN, establishing formal institutions for global regulationand allowing for the emergence of community values. The anarchicpositive system that operated in accordance with the principle of sover-eignty has been replaced by an international constitutional order that

34 ibid at 556.35 ibid at 566.36 ibid at 571.37 ibid at 578.38 Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal of

International Law 20, 39.




frames the basic rights and obligations of states in the internationalcommunity: ‘community being a term suitable to indicate a closer unionthat between members of a society’.39 The approach is constitutionalistbecause it exhibits a view that actors in the system of global governanceform an international community governed by law, which reflects, inimportant respects, community interests.

COMMUNITY INTERESTS AND CONSTITUTIONALISATION

Constitutional lawyers, following Bruce Ackerman, speak of ‘constitu-tional moments’, points in time when a political movement succeeds inplacing a new problematic at the centre of political life:

Although constitutional politics is the highest kind of politics, it should bepermitted to dominate the nation’s life only during rare periods of heightenedpolitical consciousness. During the long periods between these constitutionalmoments… normal politics… prevails[;] it is, however, democratically inferiorto the intermittent and irregular politics of public virtue associated withmoments of constitutional creation.40

The adoption of the Charter of the UN is one such constitutional momentfor the international order. Others suggested moments include the Con-gress of Vienna 1815,41 the Paris Peace conference of 191942 and the UNdecolonisation resolutions of the 1960s.43 Writing in 1950, George Jaffinargued that in universalising human rights and the adoption of the UNCharter ‘constitutional experience has been invaluable. This enrichmentof the classic law may be viewed as the constitutionalization of interna-tional law or the internationalization of constitutional law.’44 The Charterproclaimed that the rules of the organisation were a ‘higher’ form of law

39 Tomuschat (n 14) at 211. Simma argues that the idea of an international legalcommunity ‘proceeds from the assumption that it is international law which binds the partstogether, affirming the existence of a “community of States” on the one hand and lendingthe necessary normative structure to this community on the other’: Bruno Simma, ‘FromBilateralism to Community Interest in International Law’ (1994) 250 Recueil de cours 217, 245.

40 Bruce Ackerman, ‘Discovering the Constitution’ (1984) 93 Yale Law Journal 1013,1022–23.

41 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the InternationalLegal Order (Cambridge, Cambridge University Press, 2003).

42 Steve Charnovitz, ‘The Emergence of Democratic Participation in Global Governance(Paris, 1919)’ (2003) 10 Indiana Journal of Global Legal Studies 45, 74.

43 Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern InternationalRelations (Princeton, Princeton University Press, 2001) 153.

44 George Jaffin, ‘Le Droit International Nouveau’ (1950) 50 Columbia Law Review 122,124 (references omitted). Laurence Helfer identifies five key structural and systemicchallenges that the international legal system now faces: decentralisation and disaggrega-tion; normative and institutional hierarchies; compliance and enforcement; exit and escape;and democracy and legitimacy. ‘Each of these five issues raises questions of governance,institutional design, and allocation of authority, many of which are comparable to questions

Community Interests and Constitutionalisation 171



(article 103), and recognised the authority of the Security Council to takeenforcement measures on vague and indeterminate grounds, irrespectiveof the view of the Member States against which the measures wereapplied.45 In Corfu Channel Case, the first judgment of the InternationalCourt of Justice, decided 9 April 1947, Judge Alvarez concluded that

we can no longer regard sovereignty as an absolute and individual right ofevery State[,] according to which States were only bound by the rules whichthey had accepted. Today, owing to social interdependence and to the pre-dominance of the general interest, the States are bound by many rules whichhave not been ordered by their will.46

At the end of the century, in Legality of the Threat or Use of NuclearWeapons, President Bedjaoui declared that the

resolutely positivist, voluntarist approach of international law still current atthe beginning of the [twentieth] century [had] been replaced by an objectiveconception of international law, a law more readily seeking to reflect acollective conscience and respond to the social necessities of states organizedas a community.47

The model of atomised and autonomous sovereigns interacting to con-struct a web of international law rights and obligations is no longer anaccurate description of the international law system. The point becomesclear in the International Law Commission’s Articles on State Responsi-bility. The Articles provide that there is an internationally wrongful actwhen conduct consisting of an action or omission ‘of a State’ is attribut-able to the state and constitutes a breach of an international obligation ofthe state.48 Whilst responsibility may accrue only to a state, it may beowed to another state, to several states, or the international communityas a whole, depending on the character and content of the obligation.49

This is ‘without prejudice to any right, arising from the internationalresponsibility of a State, which may accrue directly to any person orentity other than a State’.50 In relation to international human rights

that domestic legal systems have answered through constitutions’: Laurence Helfer, ‘Con-stitutional Analogies in the International Legal System’ (2003) Loyola of Los Angeles LawReview 193, 198.

45 UN Charter c VII.46 Corfu Channel Case [1949] ICJ Rep 4, 39, Individual Opinion by Judge Alvarez.47 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226,

268, Declaration of President Bedjaoui [13].48 International Law Commission (ILC), ‘Articles on Responsibility of States for Inter-

nationally Wrongful Acts’ art 2, General Assembly Resolution 56/83, ‘Responsibility ofStates for Internationally Wrongful Acts’ (adopted 12 December 2001).

49 ibid art 33(1).50 ibid art 33(2).




treaties, for example, ‘the individuals concerned should be regarded asthe ultimate beneficiaries and in that sense as the holders of the relevantrights’.51 In addition to recognising that international obligations may beowed to individuals, the Articles accept that international law obligationsmay be owed to states (individually or collectively, where the arrange-ment transcends the scope of bilateral relations to establish a commoninterest, over and above the interests of the states individually), and to‘the international community as a whole’.52 The commentary to theArticles makes the following point: ‘All States are by definition membersof the international community as a whole, and the obligations inquestion are by definition collective obligations protecting interests of theinternational community as such.’53

Two issues confirm the shift from a bilateral system to an internationalconstitutional order. First, the Articles accept the existence of peremptorynorms of general international law. Article 40 provides that in cases of aserious breach (one that ‘involves a gross or systematic failure’) of anobligation arising under a peremptory norm of general internationallaw,54 states shall cooperate to bring any serious breach to an end,55 andno state shall recognise as lawful a situation created by a serious breachof a jus cogens norm, nor render aid or assistance in maintaining thatsituation.56 Those peremptory norms that are clearly accepted and recog-nised include the prohibitions of aggression, genocide, slavery, racialdiscrimination, crimes against humanity and torture, and the right toself-determination.57 Secondly, the provisions on countermeasures bothaffirm the bilateral nature of much of the inter-state system, and confirmthat state relations are conducted within a constitutional framework. Thewrongfulness of an act not in conformity with an international obligationis precluded if, and to the extent that, the act constitutes a lawfulcountermeasure.58 Countermeasures are otherwise unlawful acts that arejustified by the failure of the other state to comply with its internationalobligations. An injured state may only take countermeasures in order to

51 Commentary on art 33, Articles on Responsibility of States for InternationallyWrongful Acts (with commentaries), in Report of the International Law Commission on theWork of Its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, 43, UN Doc. A/56/10(2001), reprinted in James Crawford, The International Law Commission’s Articles on StateResponsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press,2002).

52 ILC, ‘Articles on State Responsibility’ art 48(1)(b).53 Commentary on art 48.54 ILC, ‘Articles on State Responsibility’ art 40(1).55 ibid art 41(1).56 ibid art 41(2).57 Commentary on art 26.58 ILC, ‘Articles on State Responsibility’ art 22.

Community Interests and Constitutionalisation 173



induce the other state to comply with its international law obligations.59

The important point for these purposes is contained in article 50 (1):otherwise lawful countermeasures shall not affect

(a) The obligation to refrain from the threat or use of force as embodied in theCharter of the United Nations; (b) Obligations for the protection of fundamen-tal [i.e. non-derogable] human rights; (c) Obligations of a humanitarian charac-ter prohibiting reprisals; (d) Other obligations under peremptory norms ofgeneral international law.

These issues are ‘sacrosanct’,60 ie ‘inviolable, sacred’.61

The idea of an international community and development of globallaw norms that are not simply an aggregation of the ‘sovereign’ interestsof individual states is reflected, inter alia, in the adoption of ‘constitu-tional’ resolutions by the UN General Assembly and other internationalorganisations in areas such as international peace and security, theprotection of the environment, human rights, and the alleviation ofextreme poverty.62 Further, Antonio Cassese observes that whilst therelationship between states remains ‘largely horizontal’,63 involving essen-tially bilateral legal relationships, a number of international agreementsestablish obligations for states that are not reciprocal, but which reflectthe emergence of values that the international community ‘regard[s] asbeing worthy of special protection’.64 These community obligations havethe following ‘unique’ features: they are obligations protecting funda-mental values, including peace, human rights and self-determination;they are obligations erga omnes; they are attended by a correlative rightthat belongs to all states or, in the case of multilateral treaty regimes, toall contracting states parties, and this right may be exercised ‘on behalf ofthe whole international community (or the community of the contractingStates) to safeguard fundamental values of this community’.65 Together,community obligations constitute a body of values shared by ‘the wholeof mankind and to which the particular interests and demands ofindividual States should yield’.66

59 ibid art 49(1).60 Commentary on art 50.61 The Oxford English Dictionary. 2nd edn 1989. OED Online (Oxford, Oxford University

Press, 2000).62 See Simma (n 39) at 236–243.63 Antonio Cassese, International Law (Oxford, Oxford University Press, 2001) 5 (empha-

sis in original).64 ibid at 15.65 ibid at 16 (emphasis in original).66 ibid at 16.




THE CONSTITUTIONALISATION OF INTERNATIONAL LAW

Increasingly, it is accepted that it is appropriate to use the term ‘constitu-tion’ in relation to international law, with related discourses as to themeaning(s) of ‘constitutional’ and ‘constitutionalisation’.67 The develop-ment is observed by European public international lawyers, notablyGerman and Dutch public international lawyers, who draw on theconstitutional experiences of domestic societies. Michael Wood summa-rises the arguments as follows:

The Germans think of international law as a set of value norms, with theUnited Nations at its centre… And a constitutionalist Germany (followed byAustria, Sweden, Finland, together with The Netherlands) strives for a globallegal community that frames and directs the power of all international actorsalike.

This is contrasted with the British concept, which ‘is shaped more by thecommon law approach that international law norms are developing, butdo not necessarily constitute a complete system of law’. In this way theUnited Kingdom follows the United States.68 Martti Koskenniemiobserves that Europeans ‘read international law in the image of ourdomestic legalism: multilateral treaties as legislation, international courtsas an independent judiciary, the Security Council as the police’. It is thisintuition that has led to debates about ‘the constitutionalization ofinternational law under the UN Charter’.69

The constitutionalist approach reflects an emphasis in world society oncollective goals and a belief in community rather than the state-focusedparadigm of the positivist conception of international law.70 Theapproach is constitutionalist because it regards the international commu-nity as a world society governed by an international legal order, orconstitution. The international constitution is not codified in a singledocument, but found in a number of diverse sources, written and

67 See Jost Delbrück, ‘Transnational Federalism: Problems and Prospects of AllocatingPublic Authority Beyond the State’ (2004) 11 Indiana Journal of Global Legal Studies 31, 55.

68 Michael Wood, ‘The Security Council and the “Constitutionalization” of InternationalLaw’ (, 14 March 2007). Available at www.law.leeds.ac.uk/assets/files/research/cfig/cfig_report_07.pdf (last visited 24 July 2009).

69 Martti Koskenniemi, ‘International Law in Europe: Between Tradition and Renewal’(2005) 16 European Journal of International Law 113, 117.

70 Bruno Simma argues that the idea of an international legal community ‘proceedsfrom the assumption that it is international law which binds the parts together, affirmingthe existence of a “community of States” on the one hand and lending the necessarynormative structure to this community on the other… [B]ut the assumption that a society/community could be held together by means of legal norms alone overestimates thecapacity of law and, conversely, underestimates the necessity of a society consensus as aprecondition for the formation of, and in particular the respect for, legal rules’: Simma (n 39)at 245 (emphasis in original).

The Constitutionalisation of International Law 175



unwritten. It is not the form of the instrument that makes it constitu-tional, ‘but a specific quality of some of the most important and basicinternational norms’.71 The usual topics for enquiry are the hierarchy oflegal norms in international law, including jus cogens and erga omnes, thediminishing relevance of consent, the effects of international law onprivate actors, and the third party effects of treaties. Additionally, refer-ence may be made to international treaties on territories that createobjective regimes, the Antarctic Treaty regime, for example, and world-order treaties in areas such as international human rights law that createinternational public law. These elements support the basic assumption‘that substantive, universal, community values exist, implementation ofwhich must be guaranteed by international mechanisms’.72

The constitutionalist argument is that the international communityrecognises a number of international law norms that cannot be under-stood in terms of sovereign will. The subjection of sovereign will to‘higher’ international law norms suggests the existence of an interna-tional law order with its own procedural norms and norms of substantivejustice. A particular focus is the emergence of a normative hierarchy ininternational law, and the global regulatory activities of the UN, notablythe UN Security Council. The issues are examined in turn.

The Normative Hierarchy of International Law

The normative hierarchy in international law is evidenced in the recogni-tion of norms of jus cogens,73 the identification of obligations erga omnes,74

and in the idea of ‘intransgressible principles of international customarylaw’.75 The Report of the Study Group of the International Law Commis-sion, finalised by Martti Koskenniemi, on Fragmentation of InternationalLaw observes that the idea that ‘some norms are of a higher legal rankthan others has found its expression in one way or another in all legalsystems’.76 The relevant provisions of the Vienna Convention on the Lawof Treaties provide that a treaty is void ‘if, at the time of its conclusion, it

71 Anne Peters, ‘“There is Nothing More Practical than a Good Theory”: an Overview ofContemporary Approaches to International Law’ (2001) 44 German Yearbook of InternationalLaw 25, 35.

72 ibid at 36.73 Vienna Convention on the Law of Treaties 1155 UNTS 331, arts 53 and 64.74 Barcelona Traction, Light and Power Company, Limited [1970] ICJ Rep 3 [33].75 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226

[79]. In Corfu Channel Case (Merits) [1949] ICJ Rep 4, 22, the International Court of Justicerefers to ‘elementary considerations of humanity, even more exacting in peace than in war’.

76 Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising fromthe Diversification and Expansion of International Law, Report of the Study Group of theInternational Law Commission’, Finalised by Martti Koskenniemi (13 April 2006) UN DocA/CN.4/L.682 para 361.




conflicts with a peremptory norm of general international law’,77 and thatwhere a new peremptory norm of general international law emerges,‘any existing treaty which is in conflict with that norm becomes void andterminates’.78 The Convention defines a norm of jus cogens in the follow-ing way:

a peremptory norm of general international law is a norm accepted andrecognized by the international community of States as a whole as a norm fromwhich no derogation is permitted and which can be modified only by asubsequent norm of general international law having the same character.79

In Armed activities on the territory of the Congo, the International Courtconfirmed the existence of norms of jus cogens.80 In his separate opinion,Judge ad hoc Dugard observed that the recognition by the Court of juscogens, along with the notion of obligations erga omnes, ‘affirms thenormative hierarchy of international law’.81 According to Judge ad hocDugard, the right of peoples to self-determination is a norm of jus cogensstanding. The judgment of the Court refers only to the prohibition ongenocide as having jus cogens character. Judge ad hoc Dugard observedthat norms of jus cogens ‘give legal form to the most fundamental policiesor goals of the international community’.82 Norms of jus cogens representthe established interests of the international legal community, distinctfrom those of the sovereign collective interests of the members of thatcommunity.83

In cases of conflict between treaties and norms of jus cogens, the treatybecomes void: ‘Conflict of a treaty with jus cogens renders the treaty – or aseparable provision thereof – invalid. It makes no difference whether thetreaty is bilateral or multilateral.’ The same logic applies to a conflictbetween jus cogens and general or customary law.84 The most frequentlycited candidates for jus cogens norms include the prohibition on the aggres-sive use of force, the right to self-defence, the prohibition of genocide, theprohibition of torture, crimes against humanity, the prohibition of slaveryand the slave trade, the prohibition of piracy, the prohibition of racialdiscrimination and apartheid, and the prohibition of hostilities directed atcivilian population, ie the ‘basic rules of international humanitarian law’.85

77 Vienna Convention on the Law of Treaties art 53.78 ibid art 64.79 ibid art 53.80 Armed activities on the territory of the Congo (Democratic Republic of the Congo v Rwanda),

judgment 3 February 2006 [64]. Available http://www.icj-cij.org/docket/files/126/10435.pdf.

81 ibid, Separate Opinion of Judge ad hoc Dugard at [4].82 ibid at [10].83 Above n 51 commentary on art 48(7).84 Koskenniemi (n 76) at para 367.85 ibid at para 374.




These peremptory norms, recognised by the international community ofstates as a whole, reflect both the fundamental value to the system ofinternational law of international peace and security,86 and a political ideaof international justice, reflected, for example, in the adoption of the resolu-tions of the General Assembly that first de-legitimised and then declaredunlawful the practice of colonialism as a violation of the right of peoples toself-determination.87

The concept of obligations erga omnes is not formally concerned withthe normative hierarchy in international law; the idea designates thescope of application of the relevant law, and the consequences that followany breach.88 Obligations erga omnes are owed to the international com-munity as a whole, with all states entitled to invoke the responsibility ofthe state. The erga omnes nature of the obligation does not formallyindicate any superiority over other obligations.89 The existence of obliga-tions erga omnes was confirmed by the International Court of Justice inBarcelona Traction, Light and Power Company, Limited:

[A]n essential distinction should be drawn between the obligations of a Statetowards the international community as a whole, and those arising vis-à-visanother State in the field of diplomatic protection. By their very nature, theformer are the concern of all States. In view of the importance of the rightsinvolved, all States can be held to have a legal interest in their protection; theyare obligations erga omnes.90

The judgment affirmed the existence of obligations erga omnes, which

were not necessarily distinguished by the importance of their substance. Theywere norms with certain procedural features – namely the feature that a breachof them can be invoked by any State and not just by individual beneficiaries.These were obligations that were about secondary, not primary rules.91

The idea of obligations erga omnes reflects a move from an essentiallybilateral understanding of the international law order to one involvingelements of public law governance: ‘The distinction between “bilateral”and erga omnes obligations seems analogous to the domestic distinction

86 See International Military Tribunal (Nuremberg), judgment and sentences, 1 October1946, reprinted (1947) 41 American Journal of International Law 172, 216–20.

87 See, in particular, General Assembly (GA) Res 1514 (XV) ‘Declaration on the Grantingof Independence to Colonial Countries and Peoples’ (adopted 14 December 1960).

88 The idea of obligations erga omnes can be seen in Covenant of the League of Nationsart 11: ‘Any war or threat of war, whether immediately affecting any of the Members of theLeague or not, is hereby declared a matter of concern to the whole League, and the Leagueshall take any action that may be deemed wise and effectual to safeguard the peace ofnations.’

89 Koskenniemi (n 76) at para 380.90 Barcelona Traction, Light and Power Company, Limited [1970] ICJ Rep 3 [33].91 Koskenniemi (n 76) at para 389.




between contracts and public law obligations. In the latter, the relation-ship is between the legal subject and then public power.’92 In BarcelonaTraction, Light and Power Company, Limited, the International Court ofJustice concluded that obligations erga omnes derive ‘from the outlawingof acts of aggression, and of genocide, as also from the principles andrules concerning the basic rights of the human person, including protec-tion from slavery and racial discrimination’.93 In its Advisory Opinion inLegal Consequences of the Construction of a Wall in the Occupied PalestinianTerritory, the International Court of Justice concluded that a number ofthe international law obligations violated by Israel included certainobligations erga omnes. These included the obligation to respect the rightof the Palestinian people to self-determination, and certain of its obliga-tions under international humanitarian law.94

Article 103, Charter of the United Nations

The second principal focus for constitutionalists is the UN system, andemergence of the UN as a global regulator with the authority to bindstates to international law norms. Whilst it is not possible to refer to theUN as a World Government, the organisation asserts the primacy of itslaws over all other forms of international law (with the possible excep-tion of peremptory norms of jus cogens) and state laws. In the language of‘Westphalia’, the UN asserts its sovereignty in the global law order, andthere are no serious voices that reject the claim of the organisation to beboth autonomous and capable of binding Member States (and non-members) to a set of normative standards framed in terms of (interna-tional) law. The focus for the argument is the supremacy clause containedin article 103 of the Charter of the United Nations (‘the UN Charter’): ‘Inthe event of a conflict between the obligations of the Members of theUnited Nations under the present Charter and their obligations underany other international agreement, their obligations under the presentCharter shall prevail.’ The idea that the laws of the world organisationshould prevail over other international law norms was not itself anovelty in 1945. Article 20 of the Covenant of the League of Nationsprovides:

The Members of the League severally agree that this Covenant is accepted asabrogating all obligations or understandings inter se which are inconsistent

92 ibid at para 395.93 Above n 90 at [34].94 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

(Advisory Opinion) [2004] ICJ Rep 136 [155].




with the terms thereof, and solemnly undertake that they will not hereafterenter into any engagements inconsistent with the terms thereof.

The provision applies the principle of lex posterior: extant inconsistentobligations are abrogated (ie annulled or cancelled), although article 20provides that where a Member of the League, before becoming a mem-ber, had undertaken obligations inconsistent with the Covenant, ‘it shallbe the duty of such Member to take immediate steps to procure its releasefrom such obligations’. The consequences of the normative hierarchywere not clearly established in terms of international law. In relation tofuture obligations, the Covenant does not hold itself out to be a ‘higher’(constitution-like) instrument: it provides a legal obligation on statesparties not to enter into conflicting international law obligations (incontrast to art 103 of the UN Charter). Whatever the literal provisions ofarticle 20 of the Covenant, the International Law Commission Report onFragmentation concludes that the provision ‘suggested that the Covenantitself was “higher law” in respect to other international obligations’.95

Article 20 provided the starting point for drafting article 103 of the UNCharter, with the participants at the San Francisco Conference sharing ageneral understanding that obligations under the Charter should prevailover other treaty commitments.96 Article 103 applies the priority of UNlaw to existing commitments of Members States (lex posterior), and to anynew commitments that might arise in legal relations between members,and between members and non-members.97 The provision is clear in itsscope and effect: ‘In the event of a conflict between the obligations of theMembers of the United Nations under the present Charter and theirobligations under any other international agreement, their obligationsunder the present Charter shall prevail.’ The primacy of article 103 of theUN Charter has been affirmed by the International Court of Justice,98 andby the international law regime concerning treaty obligations containedin the Vienna Convention on the Law of Treaties,99 and Vienna Conven-tion on the Law of Treaties between States and International Organiza-tions or Between International Organizations.100 In cases of conflict, the‘lower-ranking rule’ is set aside to the extent that it conflicts with the

95 Koskenniemi (n 76) at para 328.96 ibid at para 329.97 ibid at para 330.98 Military and paramilitary activities in and against Nicaragua (Nicaragua v United States),

(Jurisdiction and admissibility) [1984] ICJ Rep 392 [107].99 Vienna Convention on the Law of Treaties art 30(1).

100 Vienna Convention on the Law of Treaties between States and International Organi-zations or Between International Organizations (1986) 25 ILM 543, art 30(6): ‘The precedingparagraphs are without prejudice to the fact that, in the event of a conflict betweenobligations under the Charter of the United Nations and obligations under a treaty, theobligations under the Charter shall prevail.’




obligation under article 103.101 This does not require that the conflictingobligation or instrument is rendered ‘null and void’, ie having no legalstatus and creating no international law rights and obligations. Article103 ‘says literally that in case of a conflict, the State in question shouldfulfil its obligation under the Charter and perform its duties under otheragreements’.102 States are under an obligation to comply with all of theirobligations under international law.

Article 103 refers to conflict between obligations under the Charter and‘obligations under any other international agreement’. Two issuesemerge: does the normative hierarchy asserted in article 103 apply torules of customary and general international law, and what is therelationship between international law introduced by bodies establishedunder the Charter (resolutions adopted by the UN Security Council, forexample) and other international law norms? In relation to customaryinternational law, the International Law Commission Report on Frag-mentation concludes that ‘it seems sound to join the prevailing opinionthat Article 103 should be read extensively – so as to affirm that charterobligations prevail also over United Nations Member States’ customarylaw obligations’.103 The basis for the conclusion lies in the character ofcertain of the provisions of the Charter, the constitutional character of theCharter, and the established practice of states and UN organs.

On the relationship between article 103 and political organs establishedunder the Charter, the focus of concern has been the authority ofresolutions adopted by the Security Council. Under the Charter, themembers of the UN ‘confer on the Security Council primary responsibil-ity for the maintenance of international peace and security, and agree thatin carrying out its duties under this responsibility the Security Councilacts on their behalf’.104 In cases of conflict between resolutions of theSecurity Council adopted under chapter VII and rights and obligationsunder other sources of international law, it is the position of the SecurityCouncil that its resolutions should prevail.105 Security Council resolu-tions are binding in respect of UN Member States by virtue of arts 25 and48(1),106 and by article 2(6) in relation to ‘all States’.107 Resolutionsadopted under chapter VII constitute, by virtue of article 103,108 a

101 Koskenniemi (n 76) at para 333.102 ibid at para 334.103 ibid at para 345.104 Charter of the UN art 24(1).105 See, for example, Security Council (SC) Res 864 (1993) para 20.106 Legal consequences for States of the continued presence of South Africa in Namibia (South

West Africa) notwithstanding Security Council resolution 276 (1970) [1971] ICJ Rep 16 [116].107 See SC Res 917 (1994), 918 (1994) and 1054 (1996). At the time of the adoption of SC

Res 1244 (1999), the Federal Republic of Yugoslavia was not a member of the UN.108 See Questions of interpretation and application of the 1971 Montreal Convention arising

from the aerial incident at Lockerbie (Libya v United States) [1992] ICJ Rep 114 [42].




‘higher’ form of legal obligation within the international system of law.Article 103 and the practice of states and the UN support the interpreta-tion that as a binding form of UN law, the resolutions of the SecurityCouncil prevail over other forms of international law (and in practicedomestic law norms). Koskenniemi observes, however, that the idea ofjus cogens, ‘suggests that even United Nations politics may meet with a“constitutional” limit’.109 The normative hierarchy of international lawand regulatory authority of the UN cannot be understood withoutreference to constitutionalist discourses and concepts.

THE INTERNATIONAL CONSTITUTION

In domestic societies, social, economic, political and legal life is organ-ised, in part, in accordance with a ‘constitution’. Mattias Kumm identifiesthree meanings that have been applied to the term in relation to politicalcommunities: a formal written document, with entrenched norms and‘higher’ status in the legal order; a set of norms whose ‘content orfunction’ may be referred to as constitutional; and the establishment oflegitimate constitutional authority, whereby the constitution claims toestablish ‘a legally independent authority, an independent legal systemthat structures and legitimates a political process. Its independence lies inthe fact that it does not derive its authority from any other legalauthority’.110 Increasingly, it is accepted that constitutionalist discoursecan be applied to international law, although there is no agreement on itsimplications for the allocation and exercise of political authority in worldsociety, given the absence of a constitutional document, global pouvoirconstituant (constituent power), global society, or coherent global laworder.

First, the idea of a constitution is applied to those international lawtreaties that establish international organisations and institutions. Ernst-Ulrich Petersmann argues that the term may be applied to the constitu-tive instruments of international organisations where they constitute anew legal order and assert legal primacy over state parties; create newlegal subjects and hierarchically structured institutions with limitedgovernance powers; provide for institutional checks and balances; limitthe legal rights of state parties; and provide for the collective supply ofinternational public goods, defined at least in part in terms of humanrights, including both civil and political rights, and economic, social andcultural rights. Once established these constitutive instruments operate

109 Koskenniemi (n 76) at para 409.110 Mattias Kumm, ‘Beyond Golf Clubs and the Judicialization of Politics: why Europe

has a Constitution Properly So Called’ (2006) American Journal of Comparative Law 505, 508–9.




as ‘living constitutions’, whose functions ‘increasingly evolve in responseto changing needs for international co-operation’.111 The paradigm exam-ple is the Charter of the UN, and the development of an autonomousbody of ‘UN law’ by the General Assembly and Security Council. Theapplication of constitutional discourses can explain the divergence of thepractice of political organs from the literal text, agreed, or ‘contracted’, bystates parties. Consider, for example, the failure of the Security Council tooperate in accordance with the requirements established under chaptersV and VII of the Charter. Whilst the practice under chapter VII ofauthorising Member States to ‘use all necessary means’ to achieve statedobjectives may have been a practical necessity, given the absence of directcontrol over armed forces, the (de facto/de jure) change in votingprocedures in chapter V cannot be explained on the same basis. Article27(3) refers to the need for decisions to be made with the ‘concurringvotes of the permanent members’. The practice of the Security Council isto require a permanent member to positively exercise its veto power. Therevised scheme cannot be easily understood by reference to a contractualmodel of textual interpretation. By contrast, constitutional law relies to amuch greater extent on the practices of political actors in understandingthe exercise of (public law) powers. As JL Brierly observes, constitutions‘are overlaid with precedents and conventions which change them after atime into something very different from what anyone, with only theoriginal text before him, could possibly have foreseen’.112

Secondly, there is the work of Alfred Verdross. The possibility ofapplying the term ‘constitution’ to international law is credited to Ver-dross,113 who regarded all human persons as members of the samecommunity, and argued that the binding force of international law wasgrounded in a fundamental norm based in the law of nature.114 Accord-ing to Bruno Simma, Verdross did not seek to argue that humankindconstituted a ‘universal inter-human legal community’, but that the

111 Ernst-Ulrich Petersmann, ‘Human Rights, Constitutionalism and the World TradeOrganization: Challenges for World Trade Organization Jurisprudence and Civil Society’(2006) 19 Leiden Journal of International Law 633, 640–41.

112 JL Brierly, ‘The Covenant and the Charter’ (1946) 23 British Yearbook of InternationalLaw 83, quoted Bardo Fassbender, ‘The UN Charter as Constitution of the InternationalCommunity’ (1998) 36 Columbia Journal of Transnational Law 529, 594.

113 In 1920, Charlemagne Tower used the term ‘international constitution’ when discuss-ing the fundamental law of international government: Charlemagne Tower, Book Review(1920) 14 American Journal of International Law 464, 466. In 1961, Torkel Opsahl observed that‘[e]ven among lawyers, it has become a habit to speak of the Charter as a worldconstitution’: Torkel Opsahl, ‘An “international constitutional law”?’ (1961) 10 Internationaland Comparative Law Quarterly 760, 777.

114 Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft (The Constitution of theInternational Legal Community) (1926). See Simma (n 39) at 259.

The International Constitution 183



international community of states and international organisations consti-tuted ‘parts of the community bound together by universal internationallaw, a community comprising the whole of mankind’.115 The basic normof the international order would provide that the subjects of internationallaw ‘ought to behave as prescribed by the fundamental legal principlesderiving from the social nature of human communities as well as by therules of international treaty and customary law created on the basis ofsuch principles’.116 The approach led Verdross to argue for the recogni-tion of norms of jus cogens, a ‘general principle prohibiting states fromconcluding treaties contra bonos mores’, on the basis that no juridical ordercan ‘admit treaties between juridical subjects, which are obviously incontradiction to the ethics of a certain community’.117 Verdross subse-quently argued that the UN Charter had assumed the ‘character of basiclaw for the whole international community’.118 The paramountcy of theCharter did not depend on legal rules,

but on moral force, especially on the good faith of the all Great Powers [the fivepermanent members of the UN Security Council], which, by ratifying theCharter[,] [had] assumed the high and responsible role of trustees and guard-ians of the peace.119

Bardo Fassbender notes that Verdross was not consistent in his writings, atone point concluding that those norms that constitute the community ofinternational law ‘can be called a constitution of the community of states ina substantive sense’,120 but later, in an edition co-authored with Simma,contending that ‘the U.N. Charter has gained the rank of the constitution ofthe universal community of states’.121 Verdross and Simma

use the term ‘constitution’ in a normative sense. It is a set of rules ofinternational law which take precedence over other norms in so far as theirexistence is a precondition for the validity of the latter from a logical and alegal point of view.122

Thirdly, the idea of a constitution can be applied to the idea of the interna-tional community as a legal community of states (and international organi-sations) under (international) law. Fassbender argues that this idea of a

115 Bruno Simma, ‘The Contribution of Alfred Verdross to the Theory of InternationalLaw’ (1995) 6 European Journal of International Law 1, 15.

116 ibid at 17.117 Alfred Verdross, ‘Forbidden Treaties in International Law’ (1937) 31 American Journal

of International Law 571, 572.118 Alfred Verdross, ‘General International Law and the UN Charter’ (1954) 30 Interna-

tional Affairs 342, 347.119 ibid at 348.120 Alfred Verdross, Völkerrecht, 2nd edn (1950) at 74.121 Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edn

(1984) at vii–viii.122 Fassbender (n 112) at 542.




constitution refers to ‘the basic norm of a system of positive law upon whichthe validity of all other norms depends. It provides the ultimate basis ofobligation in a legal system’. Substantive principles are not part of theconstitution, but part of the ‘common public order (ordre public interna-tional)’. Substantive principles are expressed in the recognition of norms ofjus cogens standing, and existence of obligations erga omnes.123 Constitu-tional rules are rules about rules, and rules about law-making. ChristianTomuschat argues that secondary rules on law-making and the exercise ofexecutive and judicial functions form the constitution of any system ofgovernance: ‘Every modern system of governance is operated throughlaw-making, administration and adjudication’,124 and the internationalcommunity ‘can indeed be conceived of as a legal entity, governed by aconstitution’.125 International law provides the framework within whichstates exercise rights of political self-determination. The Charter of the UN,along with other world order treaties, such as the International Covenanton Civil and Political Rights and International Covenant on Economic,Social and Cultural Rights, Vienna Convention on Diplomatic Relations,and Law of the Sea Convention concretise ‘the constitutional premises ofthe existing international legal order’.126

Following an analysis of the possible meanings when applied to thestate, Fassbender concludes that the idea of a ‘constitution’ is concernedwith a complex of fundamental norms that both govern the organisationand performance of government functions, and define the relationshipbetween state authorities and the citizen. Constitutions may also pre-scribe the fundamental policy goals of the state, establishing the ‘guidingprinciples for the political life of a community for an indefinite time’.Established as a form of positive law, the constitution binds all actorswithin the political community, including the government. It is oftencodified in a single document. Constitutional law norms are often diffi-cult to amend (ie ‘entrenched’), and regarded as a ‘higher’ form of law, iein cases of conflict with a statute or common law, the constitutional normwill prevail.127 On this understanding, Fassbender identifies a number of‘constitutional characteristics’ of the Charter of the UN.128 First, theCharter was introduced at a ‘constitutional moment’ on 26 June 1945 atSan Francisco. Secondly, it provides for a system of international govern-ance, including legislative, executive and judicial provisions. Thirdly, in

123 ibid at 547.124 Tomuschat (n 14) at 216.125 ibid at 236.126 ibid at 309.127 Fassbender (n 112) at 536–37.128 ibid at 573ff.

The International Constitution 185



article 4, the Charter defines the membership of the Organisation, estab-lishing a political community (of states). Fourthly, the Charter affirms thehierarchy of its norms (article 103). Fifthly, the language in the Charterassumes an eternity of existence, proving only for amendment, nottermination; moreover, the amendment procedures are difficult andcomplex.129 Sixthly, the treaty establishing the UN is a ‘Charter’, a termthat denotes ‘an especially elevated class of legal instruments’.130 Fass-benber argues that ‘there is no doubt that in 1945 the term “charter” wasunderstood to be equivalent to “written constitution”.’ The interpretationis confirmed by the opening words: ‘We the peoples of the UnitedNations.’ These words are modelled on the US Constitution.131 Seventhly,the Charter has a constitutional history, with UN organs and the UNsystem being responsible for a number of ‘constitutional’ developmentsin the international law system, such as the emergence of norms onself-determination and decolonisation, human rights, the common herit-age of mankind, and environmental protection. Finally, the Charterapplies a principle of universality or inclusiveness, applying equally toall members of the international legal community.132

Fassbender concludes that the UN Charter, ‘as constitution of the interna-tional legal community, embraces all international law’. There is no suchthing as general international law existing independently of the Charter.The Charter is the ‘supporting frame of all international law and, at thesame time, the highest layer in a hierarchy of norms of international law’.133

The UN is in a superior position to all states and all international organisa-tions. The idea of international constitutional law ‘is the body of rules andprinciples defining, in form and in substance, the basis of the internationalcommunity, and indicating the general course the community has decidedto steer’. It is embodied in the Charter of the UN, which sets out commonvalues, goals and principles, and establishes the institutional machinery‘necessary for carrying out the substantive norms’.134 Other writers refer tothe Charter as the ‘constitutional document of the international communityof states’,135 or the ‘constitution of mankind’.136

129 Charter of the UN arts 108 and 109.130 Fassbender (n 112) at 579.131 ibid at 580.132 ibid at 581.133 ibid at 585. See also Rudolf Bernhardt, ‘Article 103’ in Bruno Simma et al (eds), The

Charter of the United Nations: a Commentary, 2nd edn (Oxford, Oxford University Press, 2002)1292, 1298.

134 Fassbender (n 112) at 589.135 Bruno Simma and Andreas Paulus, ‘The “international community”: Facing the

Challenges of Globalization’ (1998) 9 European Journal of International Law 266, 274.136 Ernst-Ulrich Petersmann, ‘Constitutionalism and International Adjudication: How to

Constitutionalize the U.N. Dispute Settlement System?’ (1999) 31 New York UniversityJournal of International Law and Politics 753, 766–67.




The constitutionalist analysis makes a number of important contribu-tions to understanding international law. Whilst the UN Charter forms anintegral part of the international constitutional order, it cannot beregarded as the Constitution of the international law system. The inter-national community does not possess a constitution in the sense of aformal written document that allocates law-making powers, providingentrenched constitutional rights, including fundamental human rights.As Tomuschat observes, if the constitution of the international commu-nity were to exist, it is ‘obvious’ that it would ‘display features which arelargely similar to that of the British system of government’, which lacks asingle constitutional document.137 The focus of the constitutionalistenquiry is not a particular instrument (ie the UN Charter), but thoseinternational constitutional norms and principles that together frame andconstrain the exercise of political authority by state and non-state actors.

THE INTERNATIONAL CONSTITUTIONAL ORDER

The constitutionalist argument represents a significant move away froma contractual order, based on sovereign consent, to a public (interna-tional) law system of global governance, but it is important not tooverstate the divergence of the constitutionalist understanding from thatwhich existed previously. In one sense, the constitutionalist argumentrecognises that, in its post-ontological era,138 international law is (in fact)a system of law, and that all legal systems require ‘rules about rules’. Inaddition to primary rules of obligation, a legal system must possess (inHLA Hart’s terms) secondary rules of change, adjudication, and recogni-tion, ‘which specify the ways in which the primary rules may beconclusively ascertained, introduced, eliminated, varied, and the fact oftheir violation conclusively determined’.139 Philip Allott, for example,distinguishes between international constitutional law, international pub-lic law, and the law of nations. International constitutional law ‘is whatsome older writers called the “necessary” law of nations’, those rules thatdetermine the capacity of actors to enter into international law relations,and the scope and possibilities of their relations vis-à-vis each other’. Italso determines the relations between international public law, and thelaw of nations, and the relationship between the laws of nations.140

Daniel Philpott concludes that international constitutional law norms

137 Tomuschat (n 14) at 218.138 Thomas Franck, Fairness in International Law and Institutions (Oxford, Oxford Univer-

sity Press, 1995) 6.139 HLA Hart, The Concept of Law, 2nd edn (Oxford, Oxford University Press, 1994) 94.140 Philip Allott, ‘The Concept of International Law’ in Michael Byers (ed), The Role of

Law in International Politics (Oxford, Oxford University Press, 2000) 69, 75.

The International Constitutional Order 187



provide answers to three fundamental questions: who are the legitimatepolities; what are the rules for becoming one of these polities; and whatare the basic prerogatives of these polities?141

According to the procedural understanding, international constitu-tional norms define the ‘constitutive rules of the sovereignty game’,142

including rights of membership, the inherent rights of political units, andthe rules for the establishment of legal relationships, notably pacta suntservanda. Others argue for a more expansive understanding of interna-tional constitutional law to include substantive values.143 According toErika de Wet, the term ‘constitution’ in global governance refers to an‘embryonic constitutional order’, in which a plurality of domestic,regional and international regimes form the building blocks of an inter-national community that is ‘underpinned by a core value system com-mon to all communities’.144 The term constitution in global governancecan be extended to include the fragmented multilevel system thatembodies core values and provides a variety of legal structures for theirenforcement.145 The international law system would then be regarded asa supra-national global (federal) constitutional order, with the differentsectoral regimes functioning as ‘complementary elements of a largerwhole. This would be the embryonic international constitutional orderwith the UN Charter system as the main connecting factor.’146

The literature on constitutionalism in world society emerged as oneresponse to globalisation and recognition that governance functions wereincreasingly being undertaken outside of the constitutional frame for(democratic) law-making provided by the sovereign state. Consider, forexample, the argument of Anne Peters that a ‘compensatory constitution-alization on the international plane’ is required, given that only thevarious levels of governance, taken together, ‘can provide full constitu-tional protection’.147 The analysis suggests new forms of legitimacy for

141 Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern InternationalRelations (Princeton, Princeton University Press, 2001) 12.

142 Robert Jackson, ‘Quasi-States, Dual Regimes, and Neoclassical Theory: InternationalJurisprudence and the Third World’ (1987) 41 International Organization 519, 522.

143 See, generally, Bardo Fassbender, ‘The Meaning of International Constitutional Law’in Ronald St John Macdonald and Douglas Johnston (eds), Towards World Constitutionalism:Issues in the Legal Ordering of the World Community (Leiden, Martinus Nijhoff Publishers,2005) 837.

144 Erika de Wet, ‘The Emergence of International and Regional Value Systems as aManifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal ofInternational Law 611, 612.

145 Erika de Wet, ‘The International Constitutional Order’ (2006) 55 International andComparative Law Quarterly 51, 53.

146 ibid at 56.147 Anne Peters, ‘Global Constitutionalism Revisited’ (2005) 11 International Legal Theory

39, 41–42.




the international system, with state sovereignty gradually ‘comple-mented (if not substituted) by other guiding principles, notably the“global common interest” and/or “rule of law” and/or “human secu-rity”.’148 Both domestic and international constitutional law must com-plement each other; they should not be understood as being in ahierarchical arrangement, but in the form of a network, and the ‘consti-tutional elements on the various levels and in the various sectors maycomplement and support each other’.149

A notable contribution is that of Ernst-Ulrich Petersmann, who arguesthat the constitutionalisation of international law requires the integrationof international human rights law in general international law, specifi-cally in relation to the UN and World Trade Organization. The aim is toentrench liberal human rights norms, including rights to property andtrade, in national constitutions and before international courts and tribu-nals. The argument is controversial because of the focus on economicprivate law rights. Petersmann contends that markets are indispensablein promoting individual autonomy and that economic law ‘is a necessaryprecondition for the proper functioning of markets and for avoiding bothmarket failures as well as government failures’.150 The analysis proceedsfrom an understanding of international law as a mechanism for ensuringthe legitimate exercise of coercive political authority at the domesticlevel, which depends on three factors: the protection of the equal rights ofcitizens; the (democratic) requirement that decisions are taken by thepeople or their representatives; and the ‘welfare-increasing results ofdemocratic policy-making’.151 International institutions should be under-stood as part of a ‘fourth branch of government’ (alongside the legisla-tive, executive and judicial branches of domestic government) and, likedomestic institutions, they derive their legitimacy from promoting theequal liberties and public interest of (domestic) citizens.152 The legitimateexercise of coercive government powers depends on the existence ofliberal democratic institutions organised in accordance with a constitu-tion, and there are certain ideas that are common to all (liberal demo-cratic) constitutions: democracy, separation of powers, rule of law andthe protection of human rights.153 Arguments around the democraticdeficit in global governance should be understood in terms of the

148 ibid at 49.149 ibid at 64.150 Ernst-Ulrich Petersmann, ‘Constitutionalism and International Organizations’

(1996/7) 17 Northwestern Journal of International Law and Business 398, 400.151 ibid at 406.152 ibid at 440.153 Ernst-Ulrich Petersmann, ‘Human Rights, Constitutionalism and the World Trade

Organization: Challenges for World Trade Organization Jurisprudence and Civil Society’(2006) 19 Leiden Journal of International Law 633, 641.




teleology of all liberal democratic political associations: ensuring thedemocratic rights and welfare of individual citizens. The democraticlegitimacy of international institutions depends on the transformation ofthe ‘society of states paradigm’ into a more ‘citizen-oriented paradigm’.Given that globalisation has reduced the capacity of states to secure thewell-being of their citizens, there is a need for ‘new forms of democraticself-government, “transnational justice” and international rule-makingfor the collective supply of international public goods’.154 To the extentthat the protection of rights, popular control over policy-making, andwelfare enhancement cannot be achieved at the domestic level, it shouldbe guaranteed at the international level by a ‘new U.N. Constitution’,155

based on international human rights, an agreed democratic peace, andcompulsory jurisdiction for the International Court of Justice. Stateswould have to commit themselves to the necessary democratic and legalreforms, or face exclusion from the ‘new United Nations’.156

Petersmann’s analysis demonstrates the essentially political nature ofconstitutional discourses. The constitutionalist analysis (as it appears inthe literature) is an argument for the entrenchment of (contested) liberaldemocratic values of rule of law, democracy, and the protection ofindividual human rights in international law, and the subjection of states(who remain the principle subjects of international law) to the require-ments of liberal democracy. Armin von Bogdandy refers to a ‘vision’ of aglobal legal community that ‘frames and directs political power in lightof common values and a common good’. This is what is meant by‘constitutionalism’ in international law.157

There is a tension between constitutional discourses and democracy.The metaphors that describe the impact of constitutional norms ondemocratic politics are instructive: there is a ‘door closing’ function toconstitutional discourse;158 the use of constitutional norms can be used to‘shut down’ political debate;159 constitutional norms ‘lock in’ contested

154 Ernst-Ulrich Petersmann, ‘Multilevel Judicial Governance of International TradeRequires a Common Conception of Rule of Law and Justice’ (2007) 10 Journal of InternationalEconomic Law 529, 532.

155 Ernst-Ulrich Petersmann, ‘Constitutionalism and International Adjudication: How toConstitutionalize the U.N. Dispute Settlement System?’ (1999) 31 New York UniversityJournal of International Law and Politics 753, 781.

156 ibid at 782.157 Armin von Bogdandy, ‘Constitutionalism in International Law: Comment on a

Proposal from Germany’ (2006) 47 Harvard International Law Journal 223, 223.158 Robert Howse and Kalypso Nicolaidis, ‘Enhancing WTO legitimacy: Constitutionali-

zation or Global Subsidiarity?’ (2003) 16 Governance 73, 74.159 Jeffrey Dunoff, ‘Constitutional Conceits: the WTO’s ‘Constitution’ and the Discipline

of International Law’ (2006) 17 European Journal of International Law 647, 662.




and contestable policies.160 Constitutions are not only mechanism forallocating power and prescribing rules about rule-making, they areinstruments that give expression to the fundamental political values andgoals of a political society. There is a general acceptance in constitutionaldiscourses that constitutional norms should not be subject to amendmentwithout some special procedure, or sense that the political settlement hasbeen repudiated and a new settlement put in its place. Constitutionalnorms sit outside of the domain of ‘normal’ politics: the idea of constitu-tionalism refers to the ‘containment of politics by a supervening law thatstands beyond the reach of the politics it is meant to contain’.161 Agreedconstitutional norms place certain choices beyond the reach of demo-cratic politics.162 The people may replace or amend the constitution, butwhilst it remains in place, it limits the political choices of the ‘here-and-now’ citizens. Mutatis mutandis, the application of constitutional dis-course to international law requires that certain international norms areinsulated from political contestation. Consider, for example, the responseof (most) public international lawyers to any claim that torture may bejustified in the global war on terror. The prohibition on torture is aninternational norm of jus cogens standing (and obligation erga omnes). It isa fundamental global justice norm of the international constitutionalorder. No political argument can succeed in displacing the prohibitionfrom its exalted status in the global world of law.

The increased recourse to law in international relations, referred to as‘legalisation’,163 and the resolution of inter-state disputes by reference tolegal texts, does not ‘translate automatically into a substantive constitu-tion in the absence of that sense of shared “project” or objective’.164

Stephen Gill refers to the ‘new constitutionalism’ as a ‘project of attempt-ing to make transnational liberalism, and if possible liberal democraticcapitalism, the sole model for future development’.165 Constitutionalismis a political project that argues for the recognition of liberal democraticprinciples concerning the rule of law, human rights and democracy in the

160 Robert Howse and Kalypso Nicolaïdis, ‘Legitimacy and Global Governance: WhyConstitutionalizing the WTO is a Step too Far’ in Roger Porter, et al (eds), Efficiency, Equity,and Legitimacy: the Multilateral Trading System at the Millennium (Washington DC, BrookingsInstitution Press, 2001) 227, 229.

161 Frank Michelman, ‘The 1996–97 Brennan Center Symposium Lecture’ (1998) Califor-nian Law Review 399, 400.

162 ibid at 401.163 Kenneth Abbott et al, ‘The Concept of Legalization’ (2000) 54 International Organiza-

tion 401, 419.164 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and

Politics’ (2007) Modern Law Review 1, 16.165 Stephen Gill, Power and Resistance in the New World Order (Basingstoke, Palgrave

Macmillan, 2003) 132, quoted in Sol Picciotto, ‘Constitutionalizing Multilevel Governance?’(2008) 6 International Journal of Constitutional Law 457, 471.




international law order. Those principles are then imposed on statesocieties.166 Arguments for the constitutionalisation of international laware, simply put, arguments for the application of values first codified inthe American Constitution at the global level: separation of powers(fragmentation of governance functions), rule of law, human rights, anddemocratic legitimacy. The fact that constitutional discourses in interna-tional law mirror the constitutional settlement in the United States is nocoincidence. The evidence is that all international societies with sharedvalues and assumptions have evolved within a matrix of a dominantculture.167 In the words of John Ruggie, it was ‘American hegemony thatwas decisive after World War II, not merely American hegemony.’168 Thesystem of global governance, David Slater writes, reflects the contradic-tory identity of the United States as a ‘post-colonial imperial power’.169

The United States both affirms a right of all peoples to self-determination(a lesson learnt in the American Revolution) and a belief ‘in the geopoliti-cal destiny of the USA’. This has necessitated the development of a‘discursive “bridge”’, able to ‘transcend the contradiction between anidentity based on the self-determination of peoples and another rooted inEmpire’. This discursive bridge has been formed through the invocationof a democratic mission that combines both the national and interna-tional spheres: ‘[A] horizon is created for other peoples who are encour-aged to choose freedom and democracy, thereby embedding their ownstruggles within an Americanising vision and practice.’170 The result is animperial project that seeks to develop, modernise and democratisedomestic societies. The vision is that of liberal democracy, or moreaccurately market-led democracy, which has become hegemonic in an era

166 See, generally, Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalizationof International Law (Oxford, Oxford University Press, 2009) 348–51; also Anne Peters andKlaus Armingeon, ‘Global Constitutionalism from an Interdisciplinary Perspective’ (2009)16 Indiana Journal of Global Legal Studies 385, 389: ‘We employ the term “global constitution-alism” in order to characterize an academic and political agenda which identifies andadvocates the application of constitutionalist principles, such as the rule of law, checks andbalances, human rights protection, and possibly democracy, in the international legalsphere in order to improve the effectiveness and the fairness of the international legalorder.’

167 Adam Watson, The Evolution of International Society: a Comparative Historical Analysis(London, Routledge, 1992) 307.

168 John Ruggie, ‘Multilateralism: The Anatomy of an Institution’ in John Ruggie (ed),Multilateralism Matters: the Theory and Praxis of an Institutional Form (New York, Chichester,Columbia University Press, 1993) 3, 31 (emphasis in original), quoted Christian Reus-Smit,‘The Constitutional Structure of International Society and the Nature of FundamentalInstitutions’ (1997) 51 International Organization 555, 563.

169 David Slater, ‘Imperial Powers and Democratic Imaginations’ (2006) Third WorldQuarterly 1369, 1376.

170 ibid at 1377.




of neo-liberal globalisation.171 The assumption is that the Western liberalmodel of democratic governance should be applied to all (state) societies(including non-Western societies).172 The imposition of good governancenorms concerning rule of law, human rights, and (liberal) democraticgovernment form one part of an ‘imperial project’ that demonstrates a‘lack of respect and recognition for the colonised or, expressed morebroadly, imperialised society’.173

LIBERAL DEMOCRATIC VALUES IN INTERNATIONAL LAW

The two-track model of democratic self-determination that developedfollowing the Westphalian settlement is no longer sufficient to makesense of the democratic legitimacy of law. The development of a norma-tive hierarchy in international law, emergence of a global authority (inthe form of the UN), and (implicitly) a global constitutional orderprovides a new context for (domestic) democratic self-determination.Political self-determination is exercised within a global constitutionalframework that promotes the liberal democratic values of rule of law,protection of human rights, and democratic mechanisms for the estab-lishment of valid laws. The international community of state and non-state actors has developed an (admittedly amorphous) internationalconstitutional order within which state exercise rights of political self-determination. The constitutionalisation of international law is a politicalproject in the image of hegemonic power, suggesting the gradual emer-gence of a world community of liberal (democratic) states in which theindividual is the primary unit of concern in the international order. Twodevelopments support the analysis, the emergence of an internationalrule of law and body of international human rights law.

171 ibid at 1380. Ran Hirschl argues that all processes of constitutionalisation should beseen in terms of ‘hegemony preservation’ – unless proven otherwise, the most plausibleexplanation for constitutionalisation is that those political power holders, who eitherinitiate or refrain from blocking reforms, assume that any limits on their own scope forpolitical action will be compensated for by ‘the limits it might impose on rival politicalelements, their alternative worldviews, and policy preferences’: Ran Hirschl, ‘PreservingHegemony? Assessing the Political Origins of the EU Constitution’ (2005) 3 InternationalJournal of Constitutional Law 269, 278.

172 ibid at 1380.173 ibid at 1372 (emphasis in original).

Liberal Democratic Values in International Law 193



RULE OF LAW

Increasingly, it is recognised that it is appropriate to speak about aninternational rule of law, or rule of international law.174 Following ananalysis of the concept applied in domestic societies, Stephane Beaulacconcludes that the rule of law requires certainty, predictability andstability.175 The idea involves the avoidance of the exercise of arbitrarypower, and the constraint of discretionary power.176 There is no reason toconclude that the concept cannot be applied to international law. AndréNollkaemper observes that at the domestic level the idea of the rule oflaw ‘primarily (though not exclusively) involves protection against thepublic power of the state’. The argument has not traditionally beenapplied at the international level, as there is ‘no equivalent to suchcentralized public power’.177 The idea of the international rule of law hasbeen concerned with the horizontal relations between states, reflected, forexample, in the non-intervention doctrine. The understanding is nolonger sufficient, as international law is ‘increasingly of a regulatorynature, governing directly the legal rights and obligations of privatepersons who are located in domestic legal orders’. This is particularly thecase in relation to international human rights law, which ‘strengthensand supports the domestic rule of law, for instance in protecting theautonomy of domestic courts vis-à-vis the political branches, and inprotecting citizens against retrospective laws’.178 To the extent that inter-national law ‘pervades the domestic legal order more deeply, it seems asound premise that international law should conform to rule of lawrequirements that we tend to pose for domestic law’. The rule of law isassociated with the protection of fundamental rights, and the need fordomestic institutions, notably courts, to scrutinise ‘whether internationalacts (in particular acts of international organizations) are compatible withfundamental rights’.179

Nollkaemper articulates a substantive concept of the rule of law: it isnot simply concerned with the existence or not of law norms, but with

174 On the domestic idea of the rule of law, see AV Dicey, Introduction to the Study of theLaw of the Constitution (London, Macmillan, 1939); Joseph Raz, ‘The Rule of Law and itsVirtue’ in The Authority of Law (Oxford, Clarendon Press, 1979) 224; Jeremy Waldron, ‘Is theRule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy137; also Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge, Cam-bridge University Press, 2004).

175 Stephane Beaulac, ‘An Inquiry into the International Rule of Law’ (2007) EUI MaxWeber Programme Series Working Paper No 2007/14 (SSRN) 10.

176 ibid at 12.177 André Nollkaemper, ‘The Internationalized Rule of Law’ (2009) 1 Hague Journal on the

Rule of Law 74, 74.178 ibid at 75.179 ibid at 76.




substantive values that must be present for the legitimate exercise ofpolitical authority through law. A number of international instrumentsrefer expressly to the idea of an international rule of law. The Declarationon Friendly Relations refers to the ‘promotion of the rule of law amongnations’. The 2005 World Summit Declaration affirms the need foruniversal adherence to the rule of law ‘at both the national and interna-tional levels’, and the commitment of Member States of the UnitedNations to an international order ‘based on the rule of law and interna-tional law’. In paragraph 134, Member States reaffirmed their commit-ment to the purposes and principles of the Charter and international law,‘and to an international order based on the rule of law and internationallaw, which is essential for peaceful coexistence and cooperation amongStates’.180 The provision also encourages states that have not done so ‘toconsider becoming parties to all treaties that relate to the protection ofcivilians’,181 and calls on states ‘to continue their efforts to eradicatepolicies and practices that discriminate against women and to adopt lawsand promote practices that protect the rights of women and promotegender equality’.182 It suggests a connection between the rule of law andthe protection of the human person.183

On 11 December 2008, the UN General Assembly adopted, without avote, Resolution 63/128: ‘The rule of law at the national and internationallevels.’ The resolution reaffirms the requirement for ‘universal adherence toand implementation of the rule of law at both the national and internationallevels’, and the ‘solemn commitment’ of the General Assembly ‘to aninternational order based on the rule of law and international law, which,together with the principles of justice, is essential for peaceful coexistenceand cooperation among States’. The resolution concludes that ‘the promo-tion of and respect for the rule of law at the national and international levels,as well as justice and good governance, should guide the activities of theUnited Nations and of its Member States’. It reaffirms the link betweenhuman rights, the rule of law and democracy, describing them ‘mutuallyreinforcing and [belonging] to the universal and indivisible core values andprinciples of the United Nations’. The resolution further argues that respectfor the rule of law at the state and international level ‘is essential for therealization of sustained economic growth, sustainable development, theeradication of poverty and hunger and the protection of all human rightsand fundamental freedoms’.184

180 GA Res 60/1, ‘2005 World Summit Outcome’ (adopted 16 September 2005) at para134(a).

181 ibid at para 134(c).182 ibid at para 134(d).183 ibid at para 134(e).184 GA Res 63/128, ‘The Rule of Law at the National and International Levels’ (adopted

11 December 2008) preamble.

Rule of Law 195



Whilst the existence of a rule of international law is no longer contro-versial, agreement on the content of the principle remains elusive. Theindeterminacy is reflected in the very idea of the rule of law, which, asSimon Chesterman observes, ‘remains contested across both time andgeography’.185 There is, however, a core meaning: the power of the stateshould not be exercised in an arbitrary manner, and it should be prospec-tive, accessible, and clear; the law should apply equally to the sovereignand the institutions of the state, with some independent institution(‘court’) to apply the law in specific cases; and should apply equally to allpersons.186 In relation to the international rule of law, Chestermanidentifies three possible meanings: first, the application of rule of lawprinciples to relations between states and other subjects of internationallaw; secondly, an affirmation of the international law principle of ahierarchy that privileges international law over state law, for example inrelation to international human rights norms; and thirdly, a ‘global rule oflaw’, reflecting the ‘emergence of a normative regime that touchesindividuals directly without formal mediation through existing nationalinstitutions’.187 Chesterman concludes that in international law, the ruleof law is promoted ‘as a tool with which to protect human rights,promote development, and sustain peace’.188

In 2004, UN Secretary-General Kofi Annan provided an expansivedefinition of the rule of law as a situation in which all actors ‘areaccountable to laws that are publicly promulgated, equally enforced andindependently adjudicated, and which are consistent with internationalhuman rights norms and standards’. It further requires ‘adherence to theprinciples of supremacy of law, equality before the law, accountability tothe law, fairness in the application of the law, separation of powers,participation in decision-making, legal certainty, avoidance of arbitrari-ness and procedural and legal transparency’.189 The understanding relieson an idea of the rule of law that promotes substantive values of justice,and not one that simply demands the exercise of power in accordancewith posited law norms.

185 Simon Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal ofComparative Law 331, 340.

186 ibid at 342.187 ibid at 355–56. Sir Arthur Watts refers to the ‘rule of law in international affairs’,

which involves the existence of ‘a comprehensive system of law, certainty as to what therules are, predictability as to the legal consequences of conduct, equality before the law, theabsence of arbitrary power, and effective and impartial application of the law’: Sir ArthurWatts, ‘The Importance of International Law’ in Michael Byers (ed), The Role of Law inInternational Politics (Oxford, Oxford University Press, 2000) 5, 7.

188 ibid at 359.189 Report of the Secretary-General on the rule of law and transitional justice in conflict

and post-conflict societies, 3 August 2004, UN Doc S/2004/616 para 6.




Lon Fuller has written on the ‘internal’ and ‘external’ morality of law.The internal morality is concerned with the way in which the law iscreated, interpreted and administered: law must exist; be obeyed by all;be published; be prospective; be written with reasonable clarity; avoidcontradictions; not command the impossible; stay reasonably constant;and official action should be consistent with the declared rule.190 Law isdistinguished from other normative systems ‘by the specific type ofrationality apparent in the internal processes that make law possible’.Rationality depends on reasoned argument, precedent, and the use ofanalogy. The internal morality of the law ensure that rules are compatiblewith one with another, that they ask reasonable things of the people towhom they are directed, that they are transparent and relatively predict-able, and that officials treat known rules as shaping their exercise ofdiscretion.191 The external morality of the law is related to ‘the assess-ment of fairness, equality and justice produced by legal rules and a legalsystem’. Fuller does not specify any particular ‘external morality’: it isleft to ‘high and debatable principle’, once the legal system is ‘largelyconstructed’, ie the internal morality ‘pre-dates the pursuit of substantiveoutcomes’.192

These ideas are reflected in Thomas Franck’s discussion of legitimacyand fairness in relation to international law. There are four variablesaffecting legitimacy: determinacy, symbolic validation, coherence andadherence. Legitimacy (‘procedural fairness’) is concerned with the prop-erties of the rule, the process by which the rule was adopted and theprocess of interpretation.193 Distributive fairness (‘justice’) is concernedwith the allocation of public goods in the international community,including their allocation to persons and peoples. There are no objectivestandards of fairness, which is ‘a human, subjective, contingent qualitywhich merely captures in one word a process of discourse, reasoning, andnegotiation leading if successful, to an agreed formula located at aconceptual intersection between various plausible formulas for alloca-tion’.194 The position of the international community, a social system ofcontinuing interaction and transaction, on the questions of distributivejustice results from a ‘discursive enterprise’ in which participants

190 Lon Fuller, The Morality of Law, revised edn (New Haven, Yale University Press, 1969)ch 2.

191 Jutta Brunnée and Stephen Toope, ‘International Law and Constructivism: Elementsof an Interactional Theory of International Law’ (2000) 39 Columbia Journal of TransnationalLaw 19, 56.

192 ibid at 57.193 Thomas M Franck, Fairness in International Law and Institutions (Oxford, Clarendon

Press, 1995) 26.194 ibid at 14 (emphasis in original).

Rule of Law 197



‘advance claims and [test] them against rival claims’. Deliberations aboutfairness exclude claims ‘which proceed not from reason but by automatictrumping’.195

INTERNATIONAL HUMAN RIGHTS LAW

Central to arguments around constitutionalism and international law hasbeen the development of a body of international human rights law,196

notably the adoption of the ‘International Bill of Rights’: the UniversalDeclaration on Human Rights,197 and International Covenant on Eco-nomic, Social and Cultural Rights,198 and International Covenant on Civiland Political Rights.199 The idea of a Bill of Rights is taken from the firstamendment to the US Constitution, which provides limits on the exerciseof government authority, ensuring that majority will is subject to certainprocedural requirements and minimum respect for human rights. Muta-tis mutandis, the emergence of a body of international human rights lawestablishes the liberal nature of the international constitutional order andrequires that all states respect minimum standards concerning the treat-ment of the human person. In Application of the Convention on the Preven-tion and Punishment of the Crime of Genocide, Judge Weeramantry notedthat a state’s human rights obligations were not matters that ‘concernthat State alone, but represent a contribution to human dignity andglobal stability’.200

The political idea of human rights has its origins in the seventeenthcentury. Important early writings include Thomas Hobbes, Leviathan

195 ibid at 478 (emphasis added). According to Chayes and Chayes, legitimacy in theinternational system is established where decisions emanate from fair and acceptedprocedures; they are applied equally and without invidious discrimination; and do notoffend minimum substantive standards of fairness: Abram Chayes and Antonia Chayes, TheNew Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Massachu-setts, Harvard University Press, 1998) 127.

196 Annika Tahvanainen argues that human rights ‘contribute to the constitutionaliza-tion of international law, reflecting a nucleus of norms essential for assuring co-existence ofand co-operation among different international actors, as well as the protection of thefundamental values and interests which are common to the international community as awhole’: Annika Tahvanainen, ‘Commentary to Professor Hafner’ (2004) 25 Michigan Journalof International Law 865, 866.

197 GA Res 217(III)A ‘Universal Declaration of Human Rights’ (adopted 10 December1948).

198 International Covenant on Economic, Social and Cultural Rights, adopted by GA Res2200A (XXI) (16 December 1966).

199 International Covenant on Civil and Political Rights, adopted by GA Res 2200A (XXI)(16 December 1966).

200 Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v Serbia and Montenegro) (Preliminary objections) [1996] ICJ Rep 595,Judgment 11 July 1996, Separate opinion of Judge Weeramantry, 640, 649.




(1651),201 which located the source of political authority in the people,and made consent the basis of sovereign authority, precluding anysubsequent appeal to any ‘higher’ authority, and John Locke, SecondTreatise of Government (1690),202 which built on the principle of consent toargue that a social contract provided limits on the exercise of coercivepolitical authority. These ideas are reflected in the Virginia Bill ofRights,203 and American Declaration of Independence, both 1776, thelatter of which recognised not only the problems created by the existenceof a supreme ruler, but also those of majority rule and the need toprovide for ‘checks and balances’ in the exercise of coercive state powerin the interests of individual freedom.

Prior to the twentieth century, the idea of human rights was theconcern of domestic law systems. With the exception of ad hoc instancesof humanitarian intervention,204 and the imposition of obligations, prin-cipally concerning minorities, on states by the Great Powers,205 interna-tional law was not concerned with the protection of human persons. Thenotable exception was slavery, specifically the slave trade,206 although itwas not until the 1926 Slavery Convention that states parties committed

201 Thomas Hobbes, Leviathan, intro. KR Minogue (London, Dent, 1973).202 John Locke, ‘Second Treatise of Government’ (An Essay concerning the True Origin,

Extent, and End of Civil Government) in Peter Laslett, Two Treatises of Government, criticaledn, 2nd edn (Cambridge, Cambridge University Press, 1967).

203 The Virginia Bill of Rights 1776 provided that ‘all men are by nature equally free andindependent, and have certain inherent rights’ regarding the enjoyment of life and liberty,with the means of acquiring and possessing property (Virginia Bill of Rights 1776 s 1). Italso proclaimed that ‘all power is vested in, and consequently derived from, the people’(s 2), and that government ought to be instituted for the common benefit. Where agovernment shall be found ‘inadequate or contrary to these purposes, a majority of thecommunity hath [the] right to reform, alter, or abolish it’ (s 3).

204 See Ellery Stowel, Intervention in International Law (Washington, DC, J Bryne, 1921);Jean-Pierre Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Inter-vention: Its Current Validity Under the U.N. Charter’ (1974) 4 California Western Interna-tional Law Journal (1974) 203.

205 Every major peace treaty from Westphalia onwards included provisions that contra-dict the ‘Westphalian model’, including provisions concerning the protection of minoritiesand respect for human rights: Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton,Princeton University Press, 1999) 68–69. In relation to the Treaty of Peace with Poland(‘Polish Minorities Treaty’), adopted Versailles on 28 June 1919, M Paderewski, PrimeMinister of the Polish Republic, stated: ‘It has long been the established procedure of thepublic law of Europe that when a state is created… the joint and formal recognition by theGreat Powers should be accompanied by the requirement that such State should, in theform of a binding international covenant, undertake to comply with certain principles ofgovernment’: quoted in Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 AmericanJournal of International Law 20, 23.

206 See 1815 Congress Vienna (Declaration on the Slave Trade), Declaration of EightCourts relative to the Universal Abolition of the Slave Trade (8 February 1815) 63 Consol TS473; and 1890 Treaty Slave Trade, General Act for the Repression of African Slave Trade (2July 1890) 27 Stat 886. See generally Steve Charnovotz, ‘Two Centuries of Participation:NGOs and International Governance’ (1997) 18 Michigan Journal of International Law 183.

International Human Rights Law 199



themselves to prevent and suppress the slave trade,207 and to ‘bringabout, progressively and as soon as possible, the complete abolition ofslavery in all its forms’.208 The prohibition on slavery is now recognisedas an international norm of jus cogens standing; the preamble of the 1956Supplementary Convention on the Abolition of Slavery refers to ‘freedom[as] the birthright of every human being’.209

In the period before the establishment of the League of Nations, therewas a decline in the power of the idea of human rights, with neither theGerman Empire under the Constitution of 1871, nor the French ThirdRepublic Constitution of 1871 containing clauses on the fundamentalrights of the citizen.210 International human rights emerged in the periodfollowing what the United Nations Educational, Scientific and CulturalOrganisation (UNESCO) Constitution describes as the ‘great and terriblewar’ of 1939–45, made possible ‘by the denial of the democratic princi-ples of the dignity, equality and mutual respect of men’.211 Internationalhuman rights formed one part of the constitutional settlement reflectedin the adoption of the Charter of the UN, although elements of the rightof peoples to self-determination212 and the protection of minorities hadbeen present in the settlement that followed World War I.213 The recogni-tion of universal (at least globalised) human rights norms represents animportant shift in the nature of international law that accords recognitionand rights to human persons. State law systems are subject to theinternational law order (at least in relation to fundamental rights). Thechange is reflected most dramatically in the Nuremberg Charter anddecision of the International Military Tribunal (Nuremberg) (IMT), which

207 Article 2(a) of the Slavery Convention, International Convention to Suppress theSlave Trade and Slavery (25 September 1926), 46 Stat 2183.

208 Article 2(b) ibid.209 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institu-

tions and practices Similar to Slavery (1956) 226 UNTS 3 preamble.210 Christian Tomuschat, Human Rights: Between Idealism and Realism (Oxford, Oxford

University Press, 2003) 9.211 Constitution of the United Nations Educational, Scientific and Cultural Organization

(UNESCO) (adopted London, 16 November 1945) 4 UNTS 275 preamble.212 In the aftermath of World War I, the political map of Europe was reconfigured in

accordance with the principle of national self-determination of peoples. Ethnically homog-enous ‘Nation’ states were created, following the collapse of the multi-national Hapsburg,Ottoman, Russian, and German Empires. The application of the national self-determinationprinciple sought, on objective criteria, to identify ‘Nations’ and to recognise their sovereignand independent existence.

213 The Polish Minorities Treaty, the first adopted under the League of Nations’ scheme,served as a model for the other treaties. See Treaty of Peace with Poland (‘Polish MinoritiesTreaty’) (adopted Versailles, 28 June 1919). Treaty of Peace Between the United States ofAmerica, the British Empire, France, Italy, and Japan and Poland, reprinted (1919) 13 (4)Supplement, American Journal of International Law 423. See generally, Theodore S Woolsey,‘Editorial Comment: the Rights of Minorities under the Treaty with Poland’ (1920) 14American Journal of International Law 392.




affirmed a principle of individual criminal responsible for the commis-sion of ‘crimes against humanity[,] whether or not in violation of thedomestic law of the country where perpetrated’.214 In its judgment, theTribunal determined that prisoners were treated ‘not only in defiance ofthe well-established rules of international law, but in complete disregardof the elementary dictates of humanity’.215 In relation to the persecution,repression, and murder of civilians in Germany before the war, notablythe Jewish population, the IMT concluded that ‘revolting and horrible asmany of these crimes were, it has not been satisfactorily proved that theywere done in execution of, or in connection with, [a crime under thejurisdiction of the tribunal]’. The IMT felt precluded from making adeclaration that acts committed prior to 1939 ‘were Crimes againstHumanity within the meaning of the [Nuremburg] Charter’.216

The principles of international law recognised in the Charter of theNuremberg Tribunal and judgment of the IMT were affirmed by the UNGeneral Assembly in Resolution 95(I), adopted 11 December 1946,217

which described genocide as ‘contrary to moral law and to the spirit andaims of the United Nations’, as well as a crime under international law.218

The language is that of natural law: the system of positive internationallaw that existed prior to 1945 was (de jure) subject to overarching moralprinciples. In 1948, the General Assembly adopted the Convention on thePrevention and Punishment of the Crime of Genocide. The preambleaffirms that genocide is a crime under international law and ‘contrary tothe spirit and aims of the United Nations and condemned by the civilizedworld’. The Genocide Convention declares that ‘in order to liberatemankind from such an odious scourge, international co-operation isrequired’. Genocide is recognised as a crime under international law,whether committed in time of peace or in time of war.219 In Reservations tothe Convention on the Prevention and Punishment of the Crime of Genocide, theInternational Court of Justice concluded that the principles underlying

214 Agreement for the prosecution and punishment of the major war criminals of theEuropean Axis, 8 August 1945, 82 UNTS 279, art 6(c).

215 International Military Tribunal (IMT) (Nuremberg), judgment and sentences (1October 1946), reprinted (1947) 41 American Journal of International Law 172, 225.

216 ibid at 249.217 GA Res 95(I) ‘Affirmation of the principles of international law recognized by the

Charter of the Nuremberg Tribunal’ (adopted 11 December 1946) preamble.218 GA Res 96(I) ‘The Crime of Genocide’ (adopted 11 December 1946) preamble.219 Convention on the Prevention and Punishment of the Crime of Genocide, adopted

GA Res 260 A (III) (9 December 1948) art I. The language of international morality is alsopresent in the preamble to the Rome Statute of the International Criminal Court, whichobserves that, in the twentieth century, ‘millions of children, women and men have beenvictims of unimaginable atrocities that deeply shock the conscience of humanity’: RomeStatute of the International Criminal Court (adopted 17 July 1998) 37 ILM 999 preamble.

International Human Rights Law 201



the Convention were binding ‘even without any conventional obliga-tion’, noting its ‘special characteristics’. The Convention was ‘manifestlyadopted for a purely humanitarian and civilizing purpose’. States partiesdid not have interests of their own: ‘they merely have, one and all, acommon interest, namely, the accomplishment of those high purposeswhich are the raison d’etre of the convention’.220

HUMAN RIGHTS IN THE UNITED NATIONS SYSTEM

Writing in the American Journal of International Law in 1924, PhillipMarshall Brown observed that ‘Men everywhere are beginning to realizethe truth that the state exists, not as an end in itself, but as the means totheir own individual welfare and happiness.’ He refers to a ‘democraticprinciple’ that must be ‘logically applied to international affairs as well asdomestic’. The idea of the ‘sovereign state from which all rights flowmust give way to the conception that international law itself derives itsultimate sanction and respect from the sovereign people’.221 The argu-ments are echoed in the writings of Hersh Lauterpacht following WorldWar II, in which he sought to repudiate the strict positivism that haddominated international law prior to the establishment of the UN.222

Renée Jeffery concludes that the aim of Lauterpacht’s writings was arevival of natural law as an independent source of international law inthe face of the calamities of World War I.223 The project required therefutation of legal positivism, and the application of liberal ideals,derived from the law of nature, to international law.224

Liberal ideas are reflected in the body of international human rightslaw developed by the UN and other international organisations. Theestablishment of an international system for the protection of humanrights had been one of the war aims identified by US President FranklinD Roosevelt and British Prime Minister Winston Churchill in the AtlanticCharter of 14 August 1941, and in the joint declaration of 1 January 1942by the 26 ‘United Nations’. Promotion of the rights of the individual

220 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide[1951] ICJ Rep 15, 23.

221 Phillip Marshall Brown, ‘The Individual and International Law’ (1924) 18 AmericanJournal of International Law 532, 534.

222 Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 BritishYearbook of International Law 1.

223 Renée Jeffery, ‘Hersch Lauterpacht, the Realist Challenge and the “Grotian tradition”in 20th-century international relations’ (2006) 12 European Journal of International Relations223, 228.

224 ibid at 231.




helped define the allied cause against Fascism.225 Elizabeth Borgwardtargues that whilst the Atlantic Charter implied that the individual was alegitimate object of international concern, it was with the Declaration ofthe United Nations that the term ‘human rights’ acquired its modernmeaning.226 Discussions at Dumbarton Oaks in 1944 reflected divergentopinions between those states that wanted human rights to be central tothe UN system, and others reluctant to admit any form of internationalinvolvement in domestic affairs.227 The different approaches are reflectedin the structure of the Charter, which both recognises the importance ofrespect for human rights,228 and the continuing relevance of the idea ofdomestic jurisdiction (and principle of non-intervention).229 The pur-poses of the organisation include promoting and encouraging respect forhuman rights and fundamental freedoms, without distinction as to race,sex, language, or religion.230 Writing in 1950, Lauterpacht concluded thatthe provisions created a legal obligation to respect and observe funda-mental human rights and freedoms;231 whilst it might not be possible toidentify the necessary positive steps required of Member States, theCharter precluded the introduction of laws curtailing the rights ofwomen, or imposing additional measures discriminating against personsbelonging to religious, ethnical or racial groups, or the ‘active persecutionof persons… on account of their race, language or religion’.232

The UN Charter established the principle that individuals have rightsunder international law. This was confirmed in United States Diplomaticand Consular Staff in Tehran, where the International Court of Justiceconcluded that wrongfully to deprive individuals of their liberty and tosubject them to constraint in conditions of hardship ‘is in itself manifestlyincompatible with the principles of the Charter of the United Nations’.233

225 Mohandas Gandhi wrote to President Roosevelt in July 1942: ‘I venture to think thatthe Allied Declaration that the Allies are fighting to make the world safe for freedom of theindividual and for democracy sounds hollow, so long as India, and for that matter, Africaare exploited by Great Britain, and America has the Negro problem in her own home’,quoted in Elizabeth Borgwardt, ‘“When you State a Moral Principle, You Are Stuck With It”:the 1941 Atlantic Charter as a Human Rights Instrument’ (2006) 46 Virginia Journal ofInternational Law 501, 545.

226 ibid at 544.227 Paul Lauren, The Evolution of International Human Rights, 2nd edn (Philadelphia,

University of Pennsylvania Press, 2003) 163.228 Charter of the UN arts 1(3) and 55.229 ibid art 2(7).230 ibid art 1(3). The Charter further obliges the organisation to promote ‘universal

respect for, and observance of, human rights and fundamental freedoms for all withoutdistinction as to race, sex, language, or religion’: ibid art 55(c).

231 H Lauterpacht, International Law and Human Rights (London, Stevens and Sons, 1950)147.

232 ibid at 153.233 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran)

[1980] ICJ Rep3 [91].

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Lauterpacht observes that the human rights provisions in the Charterwere adopted after prolonged discussion ‘as part of the philosophy of thenew international system and as a most compelling lesson of the experi-ence of the inadequacies and dangers of the old’.234 Their introductionreflected a change in the character and function of international law,235

transforming the individual from ‘an object of international compassioninto a subject of international right’, and to that extent it ‘constitute[d] theindividual [as] a subject of the law of nations’.236

The importance of the protection of human rights was confirmed inearly UN General Assembly resolutions.237 These included Resolution39(I), adopted on 12 December 1946, which declared that the FrancoFascist Government did not represent the Spanish people, and demandedthe establishment of a government ‘which derives its authority from theconsent of the governed, committed to respect freedom of speech, reli-gion and assembly and to the prompt holding of an election in which theSpanish people… may express their will’.238 In Resolution 272(III),adopted on 30 April 1949, the General Assembly noted that Bulgaria andHungary had been accused of acts ‘contrary to the purposes of theUnited Nations and to their obligations under the Peace Treaties’.239 TheAssembly expressed its ‘deep concern at the grave accusations’ regardingthe suppression of human rights and fundamental freedoms,240 and thehope that measures would be introduced to ensure their respect.241

Bulgaria and Hungary were not members of the UN at the time of theadoption of the resolution.

Hauke Brunkhorst argues that, after 1945, there was ‘nothing left fromthe Westphalian (or better the Vienna Congress) Order of InternationalLaw’. The new global order embraced both international and nationallaw. It universalised the lessons of the democratic nation state: ‘theexclusion of inequality with respect to individual rights, political participation

234 Lauterpacht (n 231) at 147.235 ibid at 62–63.236 ibid at 4. On the construction of the individual as a subject of international law, see

Jurisdiction of the Courts of Danzig PCIJ Series B No 15, 17–18.237 See for example GA Res 44(I) ‘Treatment of Indians in the Union of South Africa’

(adopted 8 December 1946) para 2; GA Res 56(I) ‘Political Rights of Women’ (adopted 11December 1956); also GA Res 285 (III) ‘Violation by the [USSR] of Fundamental HumanRights, Traditional Diplomatic Practices and other Principles of the Charter’ (adopted 25April 1949).

238 GA Res 39(I) ‘Relations of Members of the United Nations with Spain’ (adopted 12December 1946).

239 GA Res 272(III) ‘Observance in Bulgaria and Hungary of Human Rights andFundamental Freedoms’ (adopted 30 April 1949) preamble.

240 ibid at para 1.241 ibid at para 2.




and equal access to social welfare and opportunities’.242 The position isexpressed in the 1948 Universal Declaration of Human Rights adopted bythe UN General Assembly. Article 1 provides: ‘All human beings are bornfree and equal in dignity and rights.’243 Equality and non-discriminationare key provisions in the Declaration.244 Following the adoption of theUniversal Declaration, it could no longer be argued that human rightsdepend for their validity on recognition by state law systems (althoughthe Declaration fails to explain why this is the case).245 The Declarationdevelops a political concept of justice and rights: it provides a limitednumber of absolute provisions concerning slavery (article 4), torture andcruel, inhuman or degrading treatment or punishment (article 5), andequal protection under the law (article 7); other ‘rights’ may be subject tosuch limitations as required for ‘securing due recognition and respect forthe rights and freedoms of others and of meeting the just requirements ofmorality, public order and the general welfare in a democratic society’(article 29(2)). The content of international human rights norms must beworked out through democratic procedures in each domestic society, apoint emphasised in article 21, which provides that the ‘will of the peopleshall be the basis of the authority of government’. This shall be expressedin periodic and genuine elections (article 21 (3)). Allan Rosas refers toarticle 21 as a ‘revolution within a revolution’, with the internationalcommunity not only declaring the idea of the equal and inalienable rightsof the individual, but also setting down

minimum requirements for the structure and functioning of the State: theauthority of its government must be based on ‘the will of the people’, and theremust be a system of democratic participation with equal political rights forevery citizen.246

The Universal Declaration on Human Rights provides for the protectionof rights in the context of democracy. It was not at the time of its adoptionintended to be legally binding, or regarded as an authoritative interpre-tation of the human rights obligations in the Charter.247 The absence ofbinding obligations reflected an absence of the necessary ‘community ofoutlook and of basic political ideas in the matter of relation between man

242 Hauke Brukhorst, ‘State and Constitution – a Reply to Scheuerman’ (2008) 15(4)Constellations, 493, 496 (emphasis in original).

243 GA Res 217(III)A ‘Universal Declaration of Human Rights’ (adopted 10 December1948) art 1.

244 ibid arts 1, 2 and 7.245 Tore Lindholm, ‘Article 1’ in Asbjørn Eide et al (eds), The Universal Declaration of

Human Rights: a Commentary (Oslo, Scandinavian University Press, 1992) 31, 50.246 Allan Rosas, ‘Article 21’ in Eide et al (eds) ibid at 299.247 Lauterpacht (n 231) at 408–09.

Human Rights in the United Nations System 205



and State’.248 Nor was the Declaration regarded, in toto, as an expressionof customary international law,249 although a number of the provisionshave entered into the corpus of customary international law. Whilst itwas adopted at a time when liberal democracies predominated in theUN, the Universal Declaration of Human Rights was, and remains,significant in defining legitimate standards of behaviour in the interna-tional community. In its own words, the Declaration establishes a ‘com-mon standard of achievement for all peoples and all nations’.250

Following the adoption of the Universal Declaration, the UN GeneralAssembly moved to delegitimise certain policies, notable discriminationagainst women, and groups identified on the basis of race251 and reli-gion.252 In 1966, the Assembly adopted its ‘International Bill of Rights’,the International Covenant on Economic, Social and Cultural Rights, andInternational Covenant on Civil and Political Rights. A body of UNhuman rights law has emerged, reflected in the core human rightsinstruments: the International Convention on the Elimination of AllForms of Racial Discrimination;253 International Covenant on Economic,Social and Cultural Rights; International Covenant on Civil and PoliticalRights; Convention on the Elimination of Discrimination againstWomen;254 Convention against Torture;255 International Convention onthe rights of Migrant Workers;256 the Convention on the rights of theChild;257 International Convention against forced Disappearances; andConvention on the rights of persons with Disabilities.258 Reference may

248 ibid at 296–97.249 Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in

National and International Law’ (1995/6) 25 Georgia Journal of International and ComparativeLaw 287, 289.

250 Universal Declaration of Human Rights preamble.251 GA Res 1904 (XVIII) ‘United Nations Declaration on the Elimination of all Forms of

Racial Discrimination’ (adopted 20 November 1963); and International Convention on theElimination of All Forms of Racial Discrimination adopted by GA Res 2106 (XX) (21December 1965).

252 Declaration on the Elimination of All Forms of Intolerance and of DiscriminationBased on Religion or Belief, adopted by GA Res 36/55 (25 November 1981).

253 International Convention on the Elimination of All Forms of Racial Discrimination,adopted by GA Res 2106 (XX) (21 December 1965).

254 Convention on the Elimination of all Forms of Discrimination against Women,adopted by GA Res 34/180 (18 December 1979).

255 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment (1984) 1465 UNTS 85.

256 International Convention on the Protection of the Rights of All Migrant Workers andMembers of their Families, adopted by GA Res 45/158 (18 December 1990).

257 Convention on the Rights of the Child, adopted by GA Res 44/25 (20 November1989).

258 Convention on the Rights of Persons with Disabilities and its Optional Protocol,adopted by GA Res 62/170 (18 December 2007).




also be made to the Declaration on the Rights of Minorities;259 andDeclaration on the Rights of Indigenous Peoples.260

A number of observations may be made in respect of the body ofinternational human rights law that has emerged at the level of theUnited Nations. First, it represents a relatively coherent attempt toconstruct the human person in the context of domestic societies. Theindividual is regarded as autonomous, albeit existing within a socialcontext, enjoying rights and freedoms to the extent that they are consist-ent with the rights and freedoms and others, and interests of the widersociety. Secondly, the monitoring mechanisms established by humanrights instruments have allowed for the development of a relativelysophisticated (and reasonably coherent) ‘jurisprudence’, both in relationto General Comments and Opinions on individual complaints. Thirdly,the literature and practice of international human rights is not generallyconcerned with the pedigree of international human rights norms, rely-ing on a bricolage of hard and (formally) soft instruments rather thanexpressions of sovereign consent. The international law order has,through its constitutional practices, developed an international Bill ofRights that subjects the state to ‘higher’ global justice norms (irrespectiveof the attitude of the people of the state).

THE CONSTRUCTION OF THE LIBERAL STATE

Hans Kelsen contends that the validity of the state law system dependson the principle of effectiveness: ‘A coercive order of human behaviour isvalid law, and the community constituted by it, a State in the sense ofinternational law, for that territory and population with regard to whichthe coercive order is permanently efficacious.’261 Effectiveness is nolonger accepted as the sole legitimating factor for sovereignty. Interna-tional human rights law establishes legitimate standards of domesticgovernment in both ‘hard’ international treaties (International Covenanton Economic, Social and Cultural Rights, International Covenant on Civiland Political Rights, etc) and ‘soft’ instruments that include the UniversalDeclaration of Human Rights and judicial-like Opinions of human rightsbodies (in addition to explanatory memorandums such as General Com-ments). Whilst the effectiveness of human rights instruments, in terms ofdirect impact on the life experiences of human persons, has been the

259 GA Res 47/135, ‘Declaration on the Rights of Persons belonging to National orEthnic, Religious and Linguistic Minorities’ (adopted 18 December 1992).

260 GA Res 61/295, ‘The United Nations Declaration on the Rights of IndigenousPeoples’ (adopted 13 September 2007).

261 Hans Kelsen, General Theory of Law and State, trans by Anders Wedberg (New York,Russell & Russell, 1961) 350.

The Construction of the Liberal State 207



subject of recent (sceptical) analysis,262 international human rights normsremain important in constructing legitimate statehood. The constructivistargument is that states and other actors define their identities andinterests through inter-subjective communications with prevailing normsof legitimacy, including international human rights norms, which serveboth a global expressive function and a domestic constitutive function:263

they both express legitimate standards of behaviour in the internationalcommunity, and constitute domestic constitutional systems. Whateverthe strategic, ideational or other motives of states in accepting humanrights obligations, their adoption will (almost) inevitably lead to consti-tutional and/or political reform at the domestic level, creating newopportunities for contest and claim by domestic political actors. Minori-ties and other excluded groups orientate their identities and (political)claims in terms of recognised human rights norms, and rely on thosenorms in domestic political disputes.264 For a period, domestic debateswill be around the nature, meaning and implications of internationalhuman rights norms for the domestic society, but over time the norm willbecome ‘institutionalization’ and ‘habitualized’, ie an accepted part ofdomestic policy discourses, without reference to its international pedi-gree.265 States are socialised to accept norms concerning the protection ofhuman rights, which in turn helps to construct the identities of states.Compliance with an international treaty creates a presumption thatbehaviour is legitimate; non-compliance a presumption of illegitimacy.The argument applies at both the international and domestic level: agovernment acting in compliance with its international law obligations ismore likely to be regarded as legitimate by its own citizens.266

In determining whether or not to accept emergent international lawnorms, states may be influenced by one of three factors, alone or in

262 Oona A Hathaway, ‘Do Human Rights Treaties make a Difference?’ (2002) 111 YaleLaw Journal, 1935; also Eric Neumayer, ‘Do International Human Rights Treaties ImproveRespect for Human Rights?’ (2005) 49 Journal of Conflict Resolution 925.

263 ibid at 2021.264 Human rights discourse ‘assists different struggles for basic rights because it helps to

codify the aspirations of subjugated peoples’, and constitutes ‘social events by interpretingthe grievances and interests of actors who have some bearing on these events and to definethem as violations that should not and need not be tolerated’: Neve Gordon and NitzaBerkovitch, ‘Human Rights Discourse in Domestic Settings: How Does it Emerge?’ (2007) 55Political Studies 243, 243.

265 Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human RightsNorms into Domestic Practices: Introduction’ in Thomas Risse et al (eds), The Power ofHuman Rights: International Norms and Domestic Change (Cambridge, Cambridge UniversityPress, 1999) 1, 5.





combination: coercion;267 persuasion, whereby an issue is framed interms that resonate with already accepted norms;268 and acculturation,which depends ‘less on the properties of the rule than on the propertiesof the relationship of the actor to the community’.269 Coercion concernsthe introduction of rewards and punishments; persuasion works byframing an issue to resonate with already accepted norms. The campaignto ban anti-personnel landmines, for example, framed the issue in termsof the ‘indiscriminate nature and effects’ of landmines, linking the issuewith a universally accepted principle of humanitarian law.270 Persuadedactors ‘internalize’ new norms and rules of appropriate behaviour, andredefine their interests and identities accordingly.271 Acculturation is aprocess by which states ‘adopt the beliefs and behavioral patterns of thesurrounding culture’. It operates through pressures to assimilate, ‘someimposed by other actors and some imposed by the self’.272 Goodman andJinks point to substantial evidence of the influence of acculturation onstates in areas such as environmental policy, the laws of war, and humanrights, concluding that ‘the extent of isomorphism across states isremarkable, and it is seemingly inexplicable without reference to accul-turation processes’.273 In a subsequent article, they argue that all ‘socially-legitimated actors routinely internalize, via acculturative processes, thecognitive frames and behavioural expectations of socially relevant oth-ers’. They conclude that states adopt ‘common beliefs and practicesbecause they reflect taken-for-granted scripts of how “liberal” or “mod-ern” states behave’.274 International human rights norms construct thelegitimate state and meaning of sovereignty, with sovereign states social-ised through the domestication of international human rights norms toaccept a single legitimate form of (liberal) government.

267 Ryan Goodman and Derek Jinks, ‘How to Influence States: Socialization and Interna-tional Human Rights Law’ (2004) 54 Duke Law Journal 621, 633. See also John Ikenberry andCharles Kupchan, ‘Socialization and Hegemonic Power’ (1990) 44 International Organization3.

268 ibid at 636.269 ibid at 643.270 ibid at 636.271 ibid at 635.272 ibid at 626.273 ibid at 648–49. ‘[C]ounterhegemonic norms’, including the international law norm

concerning the right of peoples to self-determination, exhibit the same pattern of diffusionas ‘prohegemonic norms’: ibid at 653.

274 Ryan Goodman and Derek Jinks, ‘Incomplete Internalization and Compliance withHuman Rights Law’ (2008) 19 European Journal of International Law 725, 728.

The Construction of the Liberal State 209



CONCLUSION

Democracy for the constitutional state takes place within an internationallaw order that protects the exercise of political self-determination consist-ent with liberal (democratic) norms for the protection of human rights.International law is intrusive in the (Westphalian) idea of sovereignty, but(in principle) supportive of the practice of (liberal) democracy. Theinternational law order has shifted from its contractual model to aninternational constitutional order that commits states to maintainingminimum standards of human rights; the positive orthodoxy has beenreplaced by institutions and community values that subject the state to asystem of global governance under international (‘constitutional’) law.The constructivist analysis explains the importance of dominant norms inconstructing identities in world society and the emergence of a commit-ment to respecting the rights of citizens as a legitimating factor for theexercise of coercive political authority. The analysis now turns (directly)to the role of democracy in international law in the construction oflegitimate political authority.




5

Democracy in International Law

THE PREVIOUS CHAPTER demonstrated that legitimate state-hood in the international community is seen in terms of ensuringthe protection of human rights. The responsibility to protect the

human rights of those subject to the jurisdiction of the state is wellestablished: the decision to protect human rights does not lie within the‘sovereign’ discretion of governments. This chapter considers the argu-ment that legitimate statehood should also be understood in terms of acommitment to democratic government. With notable exceptions, thecommunity of states is becoming a community of democratic states. Nocoherent ideological alternatives present themselves in global discourses.Current alternatives include the theocratic republic in Iran, authoritariancapitalism under the authority of the Communist Party in the People’sRepublic of China, and one-man dictatorship in the Democratic People’sRepublic of Korea. Authoritarian regimes that exclude the populationfrom any effective role in government, maintaining control only throughcoercive measures, are, like the coelacanth, remnants of a bygone era.

There is not a uniform practice of democracy (which is not defined byreference to market-led democracy),1 but the international communitydemonstrates a strong normative commitment to democratic governmentfor domestic societies. There is a general acceptance that democracy hasconsiderable instrumental benefits in terms of economic growth, povertyalleviation and the avoidance of famine, and in the promotion of internalstability as political disagreements can be resolved without recourse toviolence. Democratic states are also said to be more likely to honour theirinternational obligations. The issue is not whether democracy is aninternational public good, but the existence (or otherwise) of an interna-tional law norm requiring the introduction or maintenance of democraticforms of government. A number of developments suggests that this is the

1 A liberal democratic state is one committed to democratic government and respectfor international human rights norms. See ‘An Agenda for Peace’, Report of the Secretary-General (17 June 1992) UN Doc A/47/277 para 81. It does not necessarily require a marketeconomy based on private property rights. cf Anne-Marie Slaughter, ‘International Law in aWorld of Liberal States’ (1995) 6 European Journal of International Law 503, 509.

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case: the emergence of the right of all peoples to (democratic) self-determination; the fact that two-thirds of states are functioning democra-cies; the democratisation of territories under the administration orsupervision of the United Nations (UN) (Kosovo, East Timor, and EasternSlavonia); and the affirmation of the ‘norm’ of democracy in a number of(‘soft’) international law instruments. According to the constructivistargument, a commitment to a norm of democracy at the global level willhave significant effects on domestic politics and domestic political sys-tems, at least in the medium to long term. States will be socialised toaccept the need to ensure that domestic laws reflect the will of the people(consistent with human rights norms), leading to the establishment of asingle, legitimate form of domestic political community: the liberaldemocratic state. The following sections outline the arguments for recog-nising the commitment to democracy in international law, before exam-ining the ways in which democracy, as a principle, influences theinterpretation and application of international law norms, most notablyin relation to military intervention and democratic regime change.

DEMOCRACY IN INTERNATIONAL LAW

International law has not traditionally been concerned with domesticgovernment arrangements: each state has the right to choose its ownform of government, free from external interferences by other states andinternational organisations. The position is expressed in Military andparamilitary activities in and against Nicaragua (Merits): ‘[E]ach State ispermitted, by the principle of State sovereignty, to decide freely [thenature of its] political, economic, social and cultural system.’2 Argumentsthat citizens have a right to democracy, or that states have an obligationto introduce or maintain democratic forms of government, rely on thefollowing (alone or in combination): that the right of peoples to self-determination should be understood as a right of democratic self-determination; that the corpus of international human rights law requiresthe introduction of democracy; that the practice of states (with therequisite opinio juris) suggests the emergence of a customary normrequiring democratic forms of domestic government; and that a require-ment of democratic government for membership of key internationalorganisations creates a de facto commitment to democracy in worldsociety. The arguments are considered in turn.

2 Military and paramilitary activities in and against Nicaragua (Nicaragua v United States),(Merits) [1986] ICJ Rep 14 [205].

212 Democracy in International Law



Democratic Self-Determination

There is general agreement that the right of peoples to self-determinationis a significant ‘constitutional’ norm in the international law order, anorm of jus cogens standing,3 and an obligation erga omnes.4 The right ofpeoples to self-determination has gone through four distinct phases:5 therecognition of a political right of national self-determination for certainpopulations in Europe following World War I; a legal right to independ-ence and the establishment of a sovereign state for the populations ofcolonised territories;6 a remedial right to secession where a territoriallyconcentrated group is systematically excluded from public life andsubject to serious human rights abuses;7 and, finally, a right of ‘[a]llpeoples’ to self-determination (reflected in ‘common Article 1’)’By virtueof that right they freely determine their political status and freely pursuetheir economic, social and cultural development.’8 The formulationreflects the position under general international law. In Legal Consequencesof the Construction of a Wall in the Occupied Palestinian Territory, theInternational Court of Justice recognised that the principle of self-determination of peoples, enshrined in the UN Charter, and reaffirmedby in General Assembly Resolution 2625 (XXV) and common Article 1,‘was recognised in international law as a “right” of peoples to self-determination: a right erga omnes’.9

3 Commentary on art 26(5), Articles on Responsibility of States for InternationallyWrongful Acts (with commentaries), in Report of the International Law Commission on theWork of Its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, 43, UN Doc. A/56/10(2001), reprinted in James Crawford, The International Law Commission’s Articles on StateResponsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press,2002). See also UN Commission on Human Rights, Resolution E/CN.4/RES/2000/4 (7April 2000) preamble; Armed activities on the territory of the Congo (Democratic Republic of theCongo v Rwanda), judgment 3 February 2006, Separate Opinion of Judge ad hoc Dugard; EastTimor (Portugal v Australia) [1995] ICJ Rep 90, Dissenting Opinion of Judge ad hocSkubiszewski [135]; and Conference on Yugoslavia Arbitration Commission: Opinions onQuestions Arising from the Dissolution of Yugoslavia (1992) 31 ILM 1488, Opinion No 1[1(e)].

4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory(Advisory Opinion) [2004] ICJ Rep 136 [88].

5 See Steven Wheatley, Democracy, Minorities and International Law (Cambridge, Cam-bridge University Press, 2005), ch 2.

6 General Assembly (GA) Resolution (Res) 1514 (XV), ‘Declaration on the granting ofindependence to colonial countries and peoples’ (adopted 14 December 1960).

7 GA Res 2625 (XXV), ‘Declaration on Principles of International Law ConcerningFriendly Relations (adopted 24 October 1970) (hereafter, GA Res 2625 (XXV), ‘Declarationon Friendly Relations’).

8 Article 1(1), common to the International Covenant on Economic, Social and CulturalRights and International Covenant on Civil and Political Rights, adopted by GA Res 2200A(XXI) on 16 December 1966.


Democracy in International Law 213



Democratic principles were central to the concept of self-determinationin the decolonisation era of the UN.10 The right of peoples to self-determination was not applied to putative or historic ‘Nations’, but thepopulation of a colonised territory. The peoples of non-self-governingterritories were defined by their relationship to a political unit, and notany racial, ethnic, cultural, religious or linguistic characteristics. Thelimited exceptions concerned the reunification of pre-colonial entities,such as Morocco and Somalia; the voluntary union of two separatecolonies; and circumstances where the inhabitants were opposed tomaintaining a unitary political entity, for example in India and Ruanda-Urundi.11 On 14 December 1960, the UN General Assembly adoptedGeneral Assembly Resolution 1514 (XV), which proclaimed the necessityof ‘bringing to a speedy and unconditional end colonialism in all itsforms and manifestations’.12 The resolution recognised that colonisedpeoples had the right to self-determination, and to ‘freely determine theirpolitical status’.13 Paragraph 5 provides that immediate steps should tobe taken in Trust and Non-Self-Governing Territories ‘to transfer allpowers to the peoples of those territories… in accordance with theirfreely expressed will and desire, without any distinction as to race, creedor colour, in order to enable them to enjoy complete independence andfreedom’.14 The objective was a determination of the international statusof the territory in accordance with the freely expressed will of the peoples

10 Following World War I, a principle of national self-determination was applied tothose parts of Europe that had seen the collapse of Empire. Wherever possible theboundaries of the new ‘Nation’ states would reflect the ethno-cultural identity of those whobecame citizens. An idea of national self-determination sought, on objective criteria, toidentify Nations and to grant them sovereign and independent status. The Treaty ofVersailles provided for the holding of a number of plebiscites, ‘but these were limited to thedetermination of the future of certain hotly disputed border regions’: Nathaniel Berman,‘‘But the Alternative is Despair’: European Nationalism and the Modernist Renewal ofInternational Law’ (1993) 106 Harvard Law Review 1792, 1859–60. The Versailles Treaty (1919)225 CTS 188, 203, provided for plebiscites in Schleswig (art 109), several border districtsbetween East Prussia and Poland (arts 94 and 96), the Saar (art 49), and Upper Silesia (art88), and a ‘public expression of opinion’ in Eupen and Malmedy (art 34).

11 Helen Quane, ‘The United Nations and the Evolving Right to Self-Determination’(1998) 47 International and Comparative Law Quarterly 537, 552.

12 GA Res 1514 (XV), ‘Declaration on the granting of independence to colonial countriesand peoples’ (adopted 14 December 1960) preamble.

13 ibid para 2. See Western Sahara, Advisory Opinion [1975] ICJ Rep 12 [57].14 Ibid para 5. GA Res 2625 (XXV), ‘Declaration on Friendly Relations’ confirms that by

virtue of the principle of equal rights and self-determination of peoples enshrined in theCharter, ‘all peoples have the right freely to determine, without external interference, theirpolitical status’. The principle requires the bringing about of ‘a speedy end of colonialism,having due regard to the freely expressed will of the peoples concerned’. GA Res 2625(XXV) further provides that the ‘subjection of peoples to alien subjugation, domination andexploitation constitutes a violation of the principle [of equal rights and self-determinationof peoples], as well as a denial of fundamental human rights, and is contrary to theCharter’.




concerned. Three possibilities were recognised: the emergence of theterritory as a sovereign and independent state; free association with anindependent state; or integration with an independent state.15 Free asso-ciation was to be the result of a free and voluntary choice ‘expressedthrough informed and democratic processes’;16 the integration of a non-self-governing territory with an independent state the result of ‘the freelyexpressed wishes of the territory’s peoples[,] their wishes having beenexpressed through informed and democratic processes’.17 In relation toindependence, whilst there was no requirement for the holding ofplebiscites, the principle of equal rights and self-determination recog-nises the right of the majority to determine the international status of theterritory through democratic processes.

The territorial approach was confirmed by the application of theprinciple of uti possidetis: the right to self-determination would be exer-cised within existing administrative borders, unless the relevant parties,or another decision-maker, such as the UN, determined otherwise.18 Thepeople were identified on objective grounds, and then accorded a ‘demo-cratic’ right of choice.19 In Fiji, Britain proposed the use of communalrolls for the Indian and Fijian populations. This was rejected by theGeneral Assembly, which insisted that independence should be attainedonly on the basis of the ‘one man, one vote’ principle.20 In 1962, theGeneral Assembly confirmed that Southern Rhodesia was a non-self-governing territory,21 and called on the United Kingdom, the colonialpower, to put in place a constitution which would ensure the ‘rights ofthe majority of the people on the basis of “one man, one vote”, inconformity with the principles of the Charter of the United Nations and… resolution 1514 (XV)’.22 In 1978, Security Council Resolution 423referred to the urgent need to terminate the illegal (minority rule) regime,and establish a government based on majority rule. The termination of

15 Above n 12 principle VI. cf GA Res 2625 (XXV): ‘The establishment of a sovereign andindependent State, the free association or integration with an independent State or theemergence into any other political status freely determined by a people constitute modes ofimplementing the right of self-determination by that people’ (emphasis added).

16 ibid principle VII.17 ibid principle IX(b).18 Steven Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’

(1996) 90 American Journal of International Law 590, 598.19 The territorial interpretation of ‘peoples’ was confirmed in the Human Rights

Committee Opinion in Gillot et al v France (26 July 2002) Communication No 932/2000, UNDoc CCPR/C/75/D/932/2000.

20 Michla Pomerance, Self-Determination in Law and Practice (The Hague, MartinusNijhoff, 1982) 21.

21 GA Res 1747 (XVI) ‘The Question of Southern Rhodesia’ (adopted 27 June 1962) para1.

22 ibid para 2(a). See also, GA Res 1760 (XVII) ‘Question of Southern Rhodesia’ (adopted31 October 1962).




the ‘illegal regime’ and ‘peaceful and democratic transition to genuinemajority rule and independence’ were a priority.23 Democratic transitionrequired the holding of free and fair elections on the basis of universaladult suffrage.24

The term ‘peoples’ is applied in the Charter of the UN to the popula-tions of non-self-governing territories,25 and the populations of trustterritories.26 Additionally, the preamble begins with the words, ‘We thepeoples of the United Nations’, and concludes ‘our respective Govern-ments…do hereby establish an international organization to be known asthe United Nations’.27 The term peoples in the Charter must also be readas applying to ‘peoples organised as States’.28 The term is not defined inthe International Covenants, although article 1(3) confirms that the term‘peoples’ includes the peoples of trust and non-self-governing territo-ries.29 According to the Human Rights Committee, the scope of theapplication of article 1, International Covenant on Civil and PoliticalRights, is not restricted to ‘colonized peoples’;30 nor is the term restrictedto peoples under alien subjugation, domination and exploitation. Theterm also includes the populations of sovereign and independent states.

The right of peoples to self-determination is not only concerned withprocesses of decolonisation. All peoples have a right to self-determination, and the term ‘peoples’ includes ‘peoples organised asstates’. The right can be interpreted as a reformulation of the sovereignright to non-intervention, opposable against external actors, but is moreproperly understood (also) as providing a right of the people of the stateto political self-determination. A major innovation of the UN era has been

23 Security Council (SC) Res 423 (1978) para 3.24 ibid para 4.25 Charter of the UN art 73.26 ibid art 76(b).27 ibid preamble.28 Quan (n 11) at 540. GA Res 1541 (XV) principle VIII provides that the integration of a

colonial territory into the Metropolitan State ‘should be on the basis of complete equalitybetween the peoples of the erstwhile Non-Self-Governing Territory and those of the inde-pendent country with which it is integrated’ (emphasis added). The clause subsequentlyrefers to the ‘peoples of both territories’.

29 article 1(3), common to the International Covenant on Economic, Social and CulturalRights, and International Covenant on Civil and Political Rights: ‘The States Parties to thepresent Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charterof the United Nations’ (emphasis added).

30 Human Rights Committee, ‘Concluding Observations on Azerbaijan’ (3 August 1994)UN Doc A/49/40 para 296. See also, Patrick Thornberry, ‘Self-Determination, Minorities,Human Rights: a Review of International Instruments’ (1989) 38 International and Compara-tive Law Quarterly 867, 878. cf Fourth Periodic Report (Sweden) (10 November 1994) UN DocCCPR/C/95/Add.4 para 1; also, Second Periodic Report (Algeria) (18 May 1998) UN DocCCPR/C/101/Add.1 para 79.




the recognition that the de facto ability to exercise power does not afforda de jure right to political authority.31 A violation of the right to self-determination occurs when the state is subject to alien domination orforeign occupation.32 The UN General Assembly has declared its firmopposition to acts of foreign military intervention, aggression and occu-pation, ‘since these have resulted in the suppression of the right ofpeoples to self-determination’.33 The international community does notaccept the legitimacy of the exercise of coercive political authority byexternal ‘colonial’ forces, or where the territory is subject to militaryoccupation and attempted annexation, or where a minority colonialsettler elite seizes power (Rhodesia and South Africa), when thoseexercising illegitimate power came from within the political unit.

Increasingly, it is accepted that the right of peoples to self-determination should be understood in terms of democratic governmentin accordance with the will of the people. With regard to article 1(1), theHuman Rights Committee has requested that states parties detail theconstitutional and political processes that allow the exercise of the rightof peoples to self-determination,34 and include reference to the law onelections.35 The right of peoples to self-determination is understood as aright of (‘democratic’) self-government for the people of the state as awhole.36 Once democracy has been introduced, any seizure of power bynon-democratic forces constitutes a violation of the right of the people toself-determination.37 There is a process of ‘locking-in’ democracy in theinternational community of states: once states have become democratic,the right of peoples to self-determination precludes the possibility ofintroducing other forms of government (or, at least, forms of governmentnot consistent with the right of peoples to self-determination, accordingto which the people freely determine their political status and freelypursue their economic, social and cultural development).

31 cf Islands of Palmas Arbitration RIAA II, 838.32 See GA Res 2625 (XXV) ‘Declaration on Friendly Relations’ and Vienna Declaration

and Programme of Action (1993) ILM 32 1661 para I (2).33 GA Res 63/163 ‘Universal Realization of the Right of Peoples to Self-Determination’

(adopted 18 December 2008) para 2. See also GA Res 34/22 ‘The Situation in Kampuchea’(adopted 14 November 1979) and GA Res 35/37‘The Situation in Afghanistan and itsImplications for International Peace and Security’ (adopted 20 November 1980).

34 Human Rights Committee, General Comment No 12, ‘Article 1 (Right to Self-Determination)’ (adopted 13 March 1984), reprinted ‘Compilation of General Commentsand General Recommendations adopted by Human Rights Treaty Bodies’, UN Doc.HRI/GEN/1/Rev 7, 12 May 2004, at 134 para 4.

35 ibid para 3.36 cf Principle VIII, Final Act of the Conference on Security and Co-operation in Europe

(1975) 14 ILM 1293.37 Steven Wheatley, Democracy, Minorities and International Law (Cambridge, Cambridge

University Press, 2005) 127–36.




The reading in of a commitment to maintain democratic government isnot the same as concluding that the right of peoples to self-determinationrequires the introduction of democracy (however defined) in states thatare not democratic, or that states and international organisations have aright to intervene in the domestic affairs to promote democratisation. It isnot possible to conclude from the law and practice of states, andjudgments and opinions of international bodies, that the failure of a stateto ‘democratise’ constitutes a violation of the jus cogens norm concerningthe right of peoples to self-determination, an obligation erga omnes.38 BradRoth explains that the idea of popular sovereignty, expressed in article21(3) of the Universal Declaration of Human Rights,39 establishes that thewill of the people shall be the basis of the authority of the government. Ininternational relations, the idea of popular sovereignty equates with thedoctrine of sovereign equality and the principle of non-intervention ininternal affairs, ‘and a rejection of any imposition of foreign views as towhat constitutes the “legitimate” government of the state’.40 The interna-tional community affirms a principle of ideological pluralism: domesticsocieties have the right to organise in accordance with their own social,economic and political values, and it is not for the governments of otherstates, or international organisations, to determine the legitimacy orotherwise of domestic arrangements. In seeking to identify whether aregime is established in accordance with the will of the people, referenceshould be had to the ‘effective control doctrine’.41 In order for externalactors to establish the will of the people, it is important to examine towhom the people give their obedience: deference should be given ‘to theapparatus to which the populace has, for whatever reason, evidentlydecided to render obedience’. It is ‘far from ridiculous’, Roth concludes,that the right of self-determination, ‘may amount, as a matter of practicalapplication, to the right to be ruled by domestic thugs rather than byforeigners announcing benevolent intentions’.42 The effective controlinterpretation does not hold where there are ‘unambiguous manifesta-tions of popular repudiation of the ruling apparatus’, when it is evidentthat those in de facto authority do not enjoy the popular support of the

38 According to the UN Secretary-General, it is for individual societies to decide ‘if andwhen’ to begin democratisation: UN Secretary-General, ‘Supplement to Reports on Democ-ratization: Agenda for Democratization’ (20 December 1996) UN Doc A/51/761 para 4.

39 Article 21(3) of GA Res 217(III)A ‘Universal Declaration of Human Rights’ (adopted10 December 1948): ‘The will of the people shall be the basis of the authority of government;this will shall be expressed in periodic and genuine elections which shall be by universaland equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’

40 Brad Roth, Governmental Illegitimacy in International Law (Oxford, Oxford UniversityPress, 2000) 413.





people. Examples include the military regime in Haiti (1991–94) and theracist minority regimes in Southern Rhodesia and South Africa.43

The right of peoples to self-determination functions in a complexmanner, providing the people of the state with a right to politicalself-determination, but not a right to democracy. The absence of agree-ment on the meaning of democracy has prevented consensus on theemergence of a right to democracy, grounded in the right of peoples toself-determination, with different views as to whether democracy isdefined by reference to electoral competition or requires the establish-ment of a liberal democratic society.44 Self-determination functions as acritical norm for evaluating the legitimacy of domestic government in allsocieties, reflecting an abstract commitment to greater citizen involve-ment in political decision-making and control over processes of law-making, and providing a stimulus for cognitive learning about therequirements of (democratic) law-making and conditions for (political)justice. The right of peoples to self-determination does not (generally)function to provide either/or judgments in terms of the legality ofdomestic arrangements. Only where a violation of the right is manifest,where external or internal forces seize power against the terms of the(democratic) constitution, will the international community pass adversejudgment. The right confirms the illegality and illegitimacy of the forciblerepudiation of the (democratic) will of the people and (given the juscogens and erga omnes nature of the norm) a commitment not to recognisethe exercise of illegitimate power, and to cooperate to bring its exercise toan end.

A (Human) Right to Democracy

In an article published in 1992, Thomas Franck famously concluded thatthe international system was moving toward a clearly designated demo-cratic entitlement. Domestic governments would be validated by interna-tional standards, and subject to systematic monitoring of compliance.45 Infact, no right to democracy has emerged in international law, andinternational instruments do not generally identify any such right.46 The

43 ibid at 416.44 See Gregory Fox, ‘Democracy, Right to, International Protection’ (Wayne State Uni-

versity Law School Research Paper No 07–22, 2007) (entry for the Max Planck Encyclopediaof Public International Law) (SSRN) paras 7–9.

45 Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AmericanJournal of International Law 46, 91.

46 cf Inter-Parliamentary Union’s (IPU) Universal Declaration on Democracy at para 11.The Universal Declaration on Democracy was adopted without a vote by the Inter-Parliamentary Council at its 161st session (Cairo, 16 September 1997), reprinted (2000) 1




substantive elements of the right, political self-determination and free-doms of political participation, are though firmly established in the bodyof international human rights law. The Universal Declaration of HumanRights (1948) recognises rights to freedom of political opinion andexpression,47 and peaceful assembly and association.48 Article 21(1) pro-vides that everyone has the right to take part in the government of his orher country, directly or through freely chosen representatives.49 Accord-ing to article 21(3), the

will of the people shall be the basis of the authority of government; this willshall be expressed in periodic and genuine elections which shall be byuniversal and equal suffrage and shall be held by secret vote or by equivalentfree voting procedures.50

The democratic principles are given legal effect in the InternationalCovenant on Civil and Political Rights (ICCPR),51 which provides for theestablishment of a ‘democratic society’ in states parties.52 In addition torights to freedom of expression,53 peaceful assembly,54 and association,55

the ICCPR recognises a right of peoples to political self-determination.56

Rights of political participation are recognised in article 25: citizens57

have the right to (a) ‘take part in the conduct of public affairs, directly orthrough freely chosen representatives’, and (b) ‘vote and to be elected atgenuine periodic elections which shall be by universal and equal suffrageand shall be held by secret ballot, guaranteeing the free expression of thewill of the electors’.58 In its General Comment on article 25, the HumanRights Committee explained the relationship between the right of peo-ples to self-determination and the rights of citizens to political participa-tion:

Netherlands Quarterly of Human Rights 127. The IPU, established in 1889, is the worldorganisation of parliaments of sovereign states. Over 100 national parliaments are currentlymembers; also, art 1 of the OAS Inter-American Democratic Charter, adopted Lima, 11September 2001 (2001) 40 ILM 1289: ‘The peoples of the Americas have a right to democracyand their governments have an obligation to promote and defend it’.

47 GA Res 217(III)A ‘Universal Declaration of Human Rights’ (adopted 10 December1948) art 19.

48 ibid art 20.49 ibid art 21(1).50 ibid art 21(3). Article 21 represents an accurate statement of general international law:

see SC Res 556 (1984) preamble.51 International Covenant on Civil and Political Rights, adopted by GA Res 2200A (XXI)

on 16 December 1966.52 See ibid arts 14(1), 21 and 22(2).53 ibid art 19.54 ibid art 21.55 ibid art 22.56 ibid art 1(1). (‘All peoples have the right of self-determination.’)57 cf Council of Europe’s Convention on the Participation of Foreigners in Public Life at

Local Level (adopted Strasbourg, 5 February 1992) CETS No 144.58 International Covenant on Civil and Political Rights art 25.




By virtue of the rights covered by article 1 (1), peoples have the right to freelydetermine their political status and to enjoy the right to choose the form oftheir constitution or government. Article 25 deals with the right of individualsto participate in those processes which constitute the conduct of publicaffairs.59

Article 25 ‘lies at the core of democratic government based on the consentof the people and in conformity with the principles of the Covenant’.60

Democracy is also a feature of the regional human rights instruments.The African Charter on Human and Peoples Rights recognises demo-cratic rights to freedom of expression,61 association62 and assembly,63 andthe (limited) right to ‘participate freely in the government of his country,either directly or through freely chosen representatives in accordancewith the provisions of the law’.64 The Charter also recognises a right ofpeoples to self-determination.65 The American Convention on HumanRights contains more explicit democratic rights to freedom of expres-sion,66 assembly,67 association68 and the right of every citizen (a) to takepart in the conduct of public affairs, directly or through freely chosenrepresentatives; (b) to vote and to be elected in genuine periodic elec-tions, which shall be by universal and equal suffrage and by secret ballotthat guarantees the free expression of the will of the voters.69 Democracyis also central to the regime established by the European Convention onHuman Rights (ECHR).70 Democracy is the only political model compat-ible with the ECHR,71 although it is, in the words of the Court of HumanRights, ‘for each Contracting State to mould into their own democraticvision’.72 The relevant provision is article 3, Protocol to the Conventionfor the Protection of Human Rights and Fundamental Freedoms (1952)(hereafter ‘P1–3’): ‘The High Contracting Parties undertake to hold free

59 Human Rights Committee, General Comment 25, ‘Article 25 (Participation in PublicAffairs and the Right to Vote)’ (adopted 12 July 1996), reprinted ‘Compilation of GeneralComments and General Recommendations’ 167 para 2.

60 ibid at para 1.61 African Charter on Human and Peoples’ Rights (adopted Nairobi, June 27 1981)

(1982) 21 ILM 58 art 9.62 ibid art 10.63 ibid art 11.64 ibid art 13(1).65 ibid art 20(1).66 American Convention on Human Rights (adopted 22 November 1969) 1114 UNTS

123 art 13.67 ibid art 15.68 ibid art 16.69 ibid art 23(1).70 Convention for the Protection of Human Rights and Fundamental Freedoms CETS

005 (as amended).71 Ždanoka v Latvia App No 58278/00, judgment 16 March 2006 [GC] [98].72 Hirst v United Kingdom (No 2) Reports of Judgments and Decisions 2005-IX [GC] [61].




elections at reasonable intervals by secret ballot, under conditions whichwill ensure the free expression of the opinion of the people in the choiceof the legislature.’73

Democracy in the Practice of States

The majority of states in the international community are committed tomaintaining democratic forms of government, and establishing effectivemonitoring mechanisms to ensure compliance with democracy normsconcerning the holding of free and fair elections and democratic rights ofpolitical participation. The question arises therefore as to whether thevarious international law commitments and state practice can be under-stood in terms of a customary international law norm requiring thatstates introduce and maintain democratic forms of government (notingthe persistent objector rule). The test for the emergence of a customarynorm is contained in article 38(1)(b) of the Statute of the InternationalCourt of Justice, which refers to ‘international custom, as evidence of ageneral practice accepted as law’. Both state practice and opinio juris mustbe present.74 The existence of a customary norm requiring democraticgovernment may be addressed from two perspectives. The traditionalapproach is to examine the practice of states and use of normativelanguage. The holding of elections is widespread in the internationalcommunity, with Freedom House reporting that 121 states can bedescribed as electoral democracies. The settled practice of states is notsufficient to generate a customary international law norm, there mustalso be evidence of a belief that the practice is rendered obligatory by theexistence of an international law rule. There is no requirement that allstates participate in the relevant practice, or that the practice of all statesis in absolutely rigorous conformity with the rule. It is sufficient thatconduct should, in general, be consistent with such rules.75 In the practiceof states, a clear distinction is drawn between ruptures of establisheddemocratic practice through, for example, a military coup d’état, and therefusal of authoritarian states to adopt reform measures to provide forgreater democratic participation for citizens. There is no evidence in thepractice of states (or reactions to domestic conditions in other states) of acustomary norm requiring the introduction of democracy.

The alternative to the traditional approach is provided by a form ofmodern custom, deduced from international law instruments rather than

73 Protocol to the Convention for the Protection of Human Rights and FundamentalFreedoms (1952) CETS No 9 art 3.

74 Nicaragua v United States (Merits) [1986] ICJ Rep 14 [184].75 ibid at [186].




the actual practices of states.76 Customary norms are identified byreference to resolutions of international organisations such as the UNGeneral Assembly and provisions of widely ratified multilateral treatiesthat provide evidence of the content of the norm, and evidence of therequisite opinio juris. A number of international public law resolutionsadopted by the UN General Assembly confirm that democracy is auniversal value within the international law order. These include Resolu-tion 62/150, which notes ‘with satisfaction that increasing numbers ofMember States are using elections as a peaceful means of discerning thewill of the people, which builds confidence in representational govern-ance and contributes to greater national peace and stability’;77 also,Resolution 60/1, the 2005 World Summit Outcome, which proclaims thathuman rights, the rule of law, and democracy belong to the ‘universaland indivisible core values and principles of the United Nations’.78

Democracy is a system of government ‘based on the freely expressed willof people to determine their own political, economic, social and culturalsystems and their full participation in all aspects of their lives’.79

The General Assembly is not alone in affirming the importance ofdemocratic self-determination at the domestic level. Greg Fox observesthat in ‘more or less explicit terms’, the UN Secretary-General, SecurityCouncil, and Human Rights Commission ‘have all identified democraticinstitutions as the vehicle by which governance can become coherent,peaceful, and legitimate. Whilst actors do not define the idea of democ-racy, they frequently speak of the familiar pairing of majoritarian elec-tions with the protection of counter-majoritarian rights.’80

Membership of International Organisations

The preceding section evaluated the emergence of de jure requirementsfor states to introduce and maintain democracy contained in customaryinternational law and international human rights treaties. The majority ofinter-sate cooperation occurs through international organisations. Anyrestriction on the rights of membership in key organisations to demo-cratic states would de facto require a commitment to democracy in order

76 Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary Inter-national Law: a Reconciliation’ (2001) 95 American Journal of International Law 757, 758.

77 GA Res 62/150 ‘Strengthening the Role of the United Nations in Enhancing theEffectiveness of the Principle of Periodic and Genuine Elections and the Promotion ofDemocratization’ (4 March 2008) preamble.

78 GA Res 60/1 ‘2005 World Summit Outcome’ (adopted without a vote on 16 Septem-ber 2005) para 119.

79 ibid at para 135.80 Gregory Fox, ‘Strengthening the State’ (1999) 7 Indiana Journal of Global Legal Studies

35, 58–59.




that states could access and retain the benefits of membership. The mostsignificant international organisation is the UN. There is no reference todemocracy in the UN Charter and democratic government is not acondition of membership of the organisation.81 There is no breach of theobligations of membership by those states that are not democratic. This isnot the case in relation to a number of regional organisations, with thefollowing (formally) committing Member States to the principle ofdemocracy: the African Union (AU), Organization of American States(OAS), European Union (EU), North Atlantic Treaty Organization(NATO), Council of Europe, the Organization for Security andCo-operation in Europe (OSCE), the Commonwealth, MERCOSUR(Common Market of the South),82 and System of Central AmericanIntegration.83

The Commonwealth has, in many ways, taken the lead. In 1971, theSingapore Declaration expressed a belief in the inalienable right of citizens‘to participate by means of free and democratic political processes inframing the society in which they live’. The Declaration committed mem-bers to promote representative institutions and guarantees for personalfreedom under the law as part of their ‘common heritage’. The 1991 HarareCommonwealth Declaration, issued by Heads of Government, expandedon the principles to focus on the necessity of governments obtaining demo-cratic mandates.84 The 1995 Millbrook Commonwealth Action Program onthe Harare Declaration created mechanisms to support and enforce demo-cratic principles in case of ‘an unconstitutional overthrow of a democrati-cally elected government’. A number of states have been suspended forundemocratic acts, including Nigeria (1995–99), Fiji (2000–01), Pakistan(1994–2000), and Zimbabwe (2002–03).85

81 Charter of the UN art 4(1): ‘Membership in the United Nations is open to all otherpeace-loving states which accept the obligations contained in the present Charter.’

82 In 1996, MERCOSUR adopted the Ushuaia Declaration, which commits its members(Argentina, Brazil, Paraguay and Uruguay) to apply sanctions against any ‘rupture of thedemocratic order’. This may include suspension from participation in the organisation. TheDeclaration also provides that democracy is a condition for membership of the organisa-tion. The Ushuaia Declaration was invoked following a military coup d’état in Paraguay in1996: Fox (n 44) at para 24.

83 Article 3 of the Protocol of Tegucigalpa, the founding statute of the System of CentralAmerican Integration, identifies the promotion and strengthening of democracy as one ofthe organisation’s principal objectives. Protocolo de Tegucigalpa a la Carta de la Organi-zación de Estados Centroamericanos (ODECA) art 3 1695 UNTS 382. In 1995, this objectivewas reaffirmed in the Framework Treaty on Democratic Security in Central America (SICA).Tratado Marco de Seguridad Democrática in Centroamérica 2007 UNTS 191. In addition tonoting that the SICA is based on the principles of democracy and the rule of law, art 1 of theTreaty obligates states to elect governments through universal and free elections. See NielsPetersen, ‘The Principle of Democratic Teleology in International Law’ (2008) 34 BrooklynJournal of International Law 33, 64–65.

84 Fox (n 44) at para 22.85 ibid at para 23.




Article 3(g) of the Constitutive Act of the African Union provides thatone of the objectives of the Union is to promote ‘democratic principlesand institutions, popular participation and good governance’.86 Article 30provides that governments that come to power through ‘unconstitutionalmeans shall not be allowed to participate in the activities of the Union’.The provision does not refer to the idea of democracy, and it is possible toread it as applying in cases where a repressive government is overthrownby pro-democratic forces in a manner not provided for in the constitu-tion. (According to the African Commission on Human Rights, participa-tion involves legitimating a sovereign power through elections.87) Thelimited practice of the AU suggests that article 30 was intended to targetinterruptions of democratic governance, and a number of regimes thathave come to power through military coups d’états have not been recog-nised by the organisation.88 Mauritania and Guinea were, for example,suspended following military coups in 2008. In 2007, the AU adopted theAfrican Charter on Democracy, Elections and Governance, according towhich state parties committed themselves to promote democracy, therule of law and human rights,89 and recognise popular participationthrough universal suffrage as the inalienable right of the people.90 Theyre-affirmed their commitment to hold regular ‘transparent, free and fairelections’,91 and to invite the Commission of the AU to send an electoralobserver mission.92 The Charter is not yet in force, having failed toreceive the necessary 15 instruments of ratification.93

The promotion of democracy has been a feature of other regionalgroupings. In Resolution 1080, adopted in 1991, the OAS observed thatone of the purposes of the Organization was to promote and consolidaterepresentative democracy. The General Assembly of the OAS agreed totake (unspecified) action in the case of the ‘sudden or irregular interrup-tion of the democratic political institutional process or of the legitimateexercise of power by the democratically elected government in any of theOrganization’s member states’.94 In 1992, the OAS Charter was amended

86 Constitutive Act of the African Union 2158 UNTS 3.87 Constitutional Rights Project and Civil Liberties Organisation v Nigeria (31 October

2008) Doc ACHPR/102/93 paras 49–50, reprinted in African Commission on Human Rightsand Peoples’ Rights, Twelfth Annual Activity Report of the African Commission on Humanand Peoples’ Rights (1998–1999) 45 Doc AHG/215 (XXV), referred to in Petersen (n 83) at67.

88 Fox (n 44) at para 21.89 African Charter on Democracy, Elections and Governance art 4(1). Available at

www.ipu.org/idd-E/afr_charter.pdf (last visited 29 July 2009).90 ibid art 4(2).91 ibid art 17.92 ibid art 19.93 ibid art 48.94 OAS Charter AG/Res 1080 (XXI-O/91) Resolution on ‘Representative Democracy’

(adopted at the fifth plenary session on 5 June 1991).




by the Washington Protocol to provide for the suspension of any MemberState ‘whose democratically constituted government has been over-thrown by force’. The revised Charter asserts that one of the purposes ofthe Organization is to ‘promote and consolidate representative democ-racy, with due respect for the principle of nonintervention’.95 Article 9provides that any ‘Member of the Organization whose democraticallyconstituted government has been overthrown by force may be suspendedfrom the exercise of the right to participate in the [work of the Organiza-tion]’. The decision is taken by an affirmative vote of two-thirds ofMember States at a meeting of the General Assembly, with the decision toremove the suspension likewise made by a two-third affirmative vote.96

In 2001, the OAS adopted the Inter-American Democratic Charter, whichprovides: ‘The peoples of the Americas have a right to democracy andtheir governments have an obligation to promote and defend it.’97 Article19 provides that

an unconstitutional interruption of the democratic order or an unconstitutionalalteration of the constitutional regime that seriously impairs the democraticorder in a member state, constitutes, while it persists, an insurmountableobstacle to its government’s participation in [the work of the OAS].98

The relevant Member State may be suspended from the Organization byan affirmative two-thirds vote. The Organization will maintain diplo-matic initiatives to restore democracy in that state.99 Resolution 1080 hasbeen used on four occasions: Haiti (1991), Peru (1992), Guatemala (1993),and Paraguay (1996). The Inter-American Democratic Charter has beeninvoked in response to a coup d’état in Venezuela (2002).100 Following theexpulsion of President José Manuel Zelaya Rosales, the OAS GeneralAssembly adopted a resolution suspending Honduras in accordancewith the Inter-American Democratic Charter (2009).101

In Europe, there is a strong commitment to democracy in regionalorganisations. Articles 6 and 7 of the Treaty on European Union providefor the imposition of sanctions in cases of serious and persistent breachesof democratic principles by a Member State.102 (The commitment isreaffirmed in the Lisbon Treaty, with a new article 1(a) providing: ‘TheUnion is founded on the values of respect for human dignity, freedom,

95 Charter of the OAS (as amended) 119 UNTS 3 art 2.96 ibid art 9.97 OAS Inter-American Democratic Charter (adopted Lima, 11 September 2001) (2001)

40 ILM 1289 art 1.98 ibid art 19.99 ibid art 21.

100 Fox (n 44) at para 20.101 See Doug Cassel, ‘Honduras: Coup d’état in Constitutional Clothing?’ (2009) 13(9)

ASIL Insights.102 Treaty on European Union (1998) 37 ILM 56.




democracy, equality, the rule of law and respect for human rights’.103

Democracy is a condition for accession to the EU, and a principle of theEU’s foreign policy; democratic rights are also recognised in the Charterof Fundamental Rights of the EU.104) Article 6(1) provides that the EU isfounded on the principles of liberty, democracy, respect for human rightsand fundamental freedoms, and the rule of law. Article 7 details thecircumstances in which sanctions may be imposed for a serious andpersistent breach by a Member State of one of the principles of democ-racy, which is not defined. The procedure has not been invoked. EUstates have, though, imposed sanctions on a member in the past for analleged violation of the principles of democracy. The 1999 parliamentaryelections in Austria became controversial in the EU, when a free and fairelection produced a result in which the far-right Freedom Party ofAustria (FDÖ), led by Joerg Haider, achieved second place, and formed acoalition government with the centre-right People’s Party. The resultcaused political leaders across the EU to voice their concerns aboutAustria’s future. Individual members of the EU joined together to intro-duce diplomatic sanctions against Austria. The sanctions were lifted inSeptember 2000.105

Democracy is also a condition of membership of NATO: applicantstates must demonstrate that they ‘represent a functioning democratic,political system based on a market economy’.106 It is also central to theregime of the OSCE, where participating states have agreed to consoli-date and strengthen democracy as the ‘only system of government of ournations’.107 In 1990, participating states adopted the Document of theCopenhagen Meeting of the Conference on the Human Dimension,108

in part to provide a common understanding of the requirements of

103 Treaty of Lisbon (Treaty Amending the Treaty on European Union and the TreatyEstablishing the European Community of 3 December 2007) 2007 OJ (C 306) 1. See also(revised) arts 6 and 7, ibid.

104 Charter of Fundamental Rights of the European Union (2000) 40 ILM 266 arts 11(1)and 12(1). See also art 39.

105 See ‘Wise men report [on the situation in Austria]’ (2001) 40 ILM 101. See NanetteNeuwahl and Steven Wheatley, ‘The EU and Democracy – Lawful and Legitimate Interven-tion in Domestic Affairs of States?’ in Anthony Arnull and Daniel Wincott (eds), Legitimacyand Accountability in the European Union after Nice (Oxford, Oxford University Press, 2002)223.

106 www.nato.int/issues/enlargement/practice.html (last visited 25 July 2009).107 Charter of Paris for a New Europe (1990) 30 ILM 190 (1991). See also, Document of

the Moscow Meeting of the Conference on the Human Dimension (1991) 30 ILM 1670 para17.

108 Document of the Copenhagen Meeting of the Conference on the Human Dimension-(‘Copenhagen Document’) (1990) 29 ILM 1318 paras 32 and 6. See also, OSCE/Office forDemocratic Institutions and Human Rights (ODIHR), ‘Existing Commitments for Demo-cratic Elections in OSCE Participating States: A Progress Report’ (30 June 2003) OSCE DocODIHR.GAL/39/03.




democratic government. According to the Copenhagen Document, ‘thewill of the people, freely and fairly expressed through periodic andgenuine elections, is the basis of the authority and legitimacy of allgovernment’.109 To ensure that the will of the people serves as the basis ofgovernment authority, OSCE participating states are required to hold freeelections at reasonable intervals,110 by secret ballot,111 and by universaland equal suffrage to adult citizens.112 Candidates who obtain the neces-sary number of votes are to be duly installed in office, and permitted toremain in office until their term expires, or is otherwise brought to an endin a manner that is regulated by law in conformity with democratic,parliamentary and constitutional procedures.113 All seats in at least onechamber of the national legislature are to be freely contested in a popularvote.114 Democratic government is representative in character, with theexecutive accountable to the elected legislature or the electorate.115

In relation to Asia, the Charter of the Association of South-East AsianNations (ASEAN) provides that the purposes of the Association includethe following: ‘to strengthen democracy, enhance good governance andthe rule of law, and to protect and promote human rights[,] with dueregard to the rights and responsibilities of the Member States ofASEAN’.116

DEMOCRACY IN THE INTERNATIONAL LAW ORDER

The preceding sections demonstrate the commitment of the internationalcommunity to democracy as the only legitimate form of domestic gov-ernment, and an increased willingness (particularly at the regional level)to allow for collective action to ensure that democracy is not interruptedby non-democratic forces. There is, however, no ‘hard’ international lawnorm requiring that all governments should be democratic. It is, though,evident that democracy as a principle does have a significant influence onthe interpretation and application of international law norms. A principleis defined by Ronald Dworkin as a standard to be observed, ‘because it is

109 ibid at para 6.110 ibid at para 7(1).111 ibid at paras 5(1) and 7(4).112 ibid at para 7(3).113 ibid at para 7(9).114 ibid at para 7(2).115 ibid at para 5(2).116 Charter of the Association of Southeast Asian Nations (ASEAN) art 1(7). Available at

www.aseansec.org/ASEAN-Charter.pdf (last visited 25 July 2009).




a requirement of justice or fairness or some other dimension of moral-ity’.117 Legal principles are distinguished from legal rules. Rules areapplicable ‘in an all-or-nothing fashion’, providing an answer to a legalquestion.118 Impugned conduct is either lawful or unlawful, followingthe application of a legal rule to the factual situation. Principles ‘do notset out legal consequences that follow automatically when the conditionsprovided are met’.119 A principle establishes a reason ‘that argues in onedirection, but it does not necessitate a particular decision’. The fact that aprinciple does not prevail does not mean that it is not a principle;principles have a dimension that rules do not, ‘the dimension of weightor importance’.120 The principle may not be weighty enough to override arule (or other principle). Principles operate in one of two ways: tooverride a legal rule or to suggest a solution where legal rules conflict.Whilst it is not possible to conclude that there is a violation of aninternational law rule where a state refuses to introduce democracy, it isevident that democracy as a principle of the international law orderinforms the interpretation and application of international norms.

In relation to secession, the principle of democracy (and democraticself-determination) has weakened the normative claim of the state toterritorial integrity and non-intervention in conflicts involving self-determination claims. With the limited application of the ‘savingclause’,121 international law has not traditionally recognised any right ofsecession, the separation of one part of the territory without the consentof the central authorities.122 There is no general right of secession ininternational law.123 According to General Assembly Resolution 2625(XXV) (‘Friendly Relations’), the territorial integrity of the state is ‘invio-lable’, and any measure aimed at the disruption of the territorial ‘is

117 Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977) 22.118 ibid at 24.119 ibid at 25.120 ibid at 26.121 A reverse reading of the relevant clause in GA Res 2625 (XXV) ‘Declaration on

Friendly Relations’ limits the right to territorial integrity to those states ‘conductingthemselves in compliance with the principle of equal rights and self-determination ofpeoples’, and ‘thus possessed of a government representing the whole people belonging tothe territory without distinction as to race, creed or colour’. See Steven Wheatley, Democ-racy, Minorities and International Law (Cambridge, Cambridge University Press, 2005) 93–99.

122 James Crawford, ‘The Right of Self-Determination in International Law: the Develop-ment and Future’ in Philip Alston (ed), Peoples’ Rights (Oxford, Oxford University Press,2001) 7, 55.

123 In Reference re Secession of Quebec (1998) 2 SCR 217 [112], the Canadian Supreme Courtdetermined that international law ‘contains neither a right of unilateral secession nor theexplicit denial of such a right, although such a denial is, to some extent, implicit in theexceptional circumstances required for secession to be permitted under the right of a peopleto self-determination, eg, the right of secession that arises in the exceptional situation of anoppressed or colonial people’.

Democracy in the International Law Order 229



incompatible with the purposes and principles of the Charter’. Therecognition of a right of peoples to self-determination did not change thegeneral rule:

Nothing in the [section concerning the principle of equal rights and self-determination of peoples] shall be construed as authorizing or encouragingany action which would dismember or impair, totally or in part, the territorialintegrity or political unity of sovereign and independent States conductingthemselves in compliance with the principle of equal rights and self-determination of peoples.124

The constitutionalisation of international law requires a re-evaluation ofthis position, with Anne Peters observing that there are changes in theconcept of statehood and a legal evolution regarding the recognition ofstates and governments: the principle of effectiveness is marginalised,and standards of legitimacy (concerning human rights and democracy)become more important.125 Following a review of settlements of self-determination conflicts, Marc Weller concludes that we are witnessing a‘move away from unipolar sovereignty concentrated exclusively in thecentral state’. The effectiveness of control is no longer the ‘principalcriterion for the authority to govern’. Developments concerning demo-cratic governance and the practice of the international community inrelation to self-determination conflicts demonstrate

an increasing recognition that, ultimately, the authority to govern is based onthe will of the people. In this respect, we are witnessing a gradual recognitionof self-determination as a genuine, generalized principle for the construction ofstates and governance, with a number of layers of meaning attaching.126

The relationship between territorial integrity and the right of peoples toself-determination can only be understood by reference to the principleof democracy – the right of a political community to be self-governing inaccordance with its own institutions and constitutional structures. Theposition becomes clear in any analysis of the unilateral declaration ofindependence by Kosovo. In debates in the General Assembly followingthe adoption of General Assembly Resolution 63/3, requesting an advi-sory opinion of the International Court of Justice on whether the unilat-eral declaration was in accordance with international law,127 the UnitedStates representative referred to the democratically elected, multi-ethnic

124 GA Res 2625 (XXV) ‘Declaration on Friendly Relations’.125 Anne Peters, ‘Global Constitutionalism Revisited’ (2005) 11 International Legal Theory

39, 53.126 Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20

European Journal of International Law 111, 164 (reference omitted).127 GA Res 63/3 ‘Request for an advisory opinion of the International Court of Justice on

whether the unilateral declaration of independence of Kosovo is in accordance withinternational law’ (adopted 8 October 2008).




Government’ in the Republic of Kosovo.128 The validity of the declarationof independence rests in large part on the right of the people of Kosovo todemocratic self-determination.

DEMOCRATIC REGIME CHANGE IN INTERNATIONAL LAW

The clearest example of the principle of democracy influencing theinterpretation and application of international law norms is provided bythe law and practice on regime change under the Charter of the UN.129

Article 2(4) provides that ‘All Members shall refrain in their internationalrelations from the threat or use of force against the territorial integrity orpolitical independence of any state.’ Yet, the recent practice of theinternational community has permitted democratic ‘coalitions of thewilling’ to intervene militarily in ‘rogue’ and ‘failed’ states, which arethen subject to a process of forced democratisation in order to ensure thatthey become and remain members in good standing in the internationalcommunity. The process is endorsed by the UN Security Council, whichgives legal effect to an otherwise unlawful act of (democratic) regimechange. The development can be explained by reference to the impor-tance of democracy as a principle in the international law order.

In the Atlantic Charter, adopted on 14 August 1941, the US Presidentand British Prime Minister agreed a number of common principles onwhich they based their hopes for a ‘better future for the world’. TheCharter expressed the desire that, ‘after the final destruction of the Nazityranny’, they would ‘see established a peace which will afford to allnations the means of dwelling in safety within their own boundaries’.Peace and security are central to the regime established under the UN.The first stated purpose of the organisation is the maintenance ofinternational peace and security, and, to that end, the UN is empoweredto take effective collective measures to remove threats to the peace.130 Thedemocratic peace thesis argues that universal peace is only possibleunder a covenant of peace, a foedus pacificum. Thomas Franck concludesthat ‘[i]f the “end” of global peace needs the “means” of global democ-racy’, the Charter-based system ‘must also be presumed to have theauthority to take measures necessary to promote universal adherence to

128 General Assembly, Official Record, 8 October 2008, UN Doc A/63/PV.22 at 5.129 John Owen identifies 198 instances of forcible domestic institutional promotion

between 1555 and 2000. The most intensive periods of promotion coincide with hightransnational ideological tension and high international insecurity. Forcible promotion ismost likely when great powers need to expand their power, and find that, by imposing onsmaller states those institutions most likely to keep their ideological confreres in power,they can bring those states under their influence: John Owen, ‘The Foreign Imposition ofDomestic Institutions’ (2002) 56 International Organization 375, 375.

130 Charter of the UN art 1(1).

Democratic Regime Change in International Law 231



democratic political rights’.131 The law and practice of the UN does nothowever support any right of democracy promotion through the use offorce: there is no right of pro-democracy military intervention in interna-tional law,132 and states have not sought to articulate one. The politicalobjectives underlying the use of force may include the re-establishment(or even establishment) of democracy, ‘but this has not led states toespouse a legal doctrine of “pro-democratic” invasion without UNauthority’.133 The point applies equally to regional organisations,134 suchas the Economic Community of West African States (ECOWAS).135 Theemergence of a right of peoples to political self-determination did notchange the position.136 In the absence of the agreement of the govern-ment of the state, a lawful exercise of the right of self-defence (UNCharter article 51), or authorisation by the Security Council (UN Charterchapter VII), the use of military force against the territorial integrity orpolitical independence of another state is a violation of internationallaw.137 The putative Johnson138 and Reagan139 doctrines were no morethan political rhetoric at a time when American military power was used‘to overthrow unfriendly regimes and reinstall friendly ones, rather thanbring about fundamental societal transformations’.140

131 Thomas Franck, Fairness in International Law and Institutions (Oxford, Oxford Univer-sity Press, 1995) 1.

132 Above n 2 at [263]. On democratic regime change, see W Michael Reisman, ‘TheManley O. Hudson Lecture: Why Regime Change is (Almost Always) a Bad Idea’ (2004) 98American Journal of International Law 516, 516. In the contemporary age, regime change is notconcerned with imposing friendly regimes on unwilling populations: cf the BrezhnevDoctrine (1968) 7 ILM 1323.

133 Christine Gray, International Law and the Use of Force, 3rd edn (Oxford, OxfordUniversity Press, 2008) 56.

134 ibid at 421.135 cf, the pro-democracy intervention pact agreed by ECOWAS States: ECOWAS, ‘Protocol

Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keepingand Security’ (adopted Lomé, 10 December 1999) ECOWAS Doc A/P10/12/99, available atwww.iss.co.za/AF/RegOrg/unity_to_union/pdfs/ecowas/ConflictMecha.pdf (last visited25 July 2009).

136 cf W Michael Reisman, ‘Coercion and Self-Determination: Construing Charter Article2(4)’ (1984) 78 American Journal of International Law 642, 645.

137 UN Charter art 2(4). See n 2 at [246].138 US President Johnston justified the 1965 intervention in the Dominican Republic on

the ground that ‘American nations cannot, must not, and will not permit the establishmentof another Communist government in the Western Hemisphere’: Brad Roth, GovernmentalIllegitimacy in International Law (Oxford, Oxford University Press, 2000) 147.

139 According to the Reagan Doctrine, ‘legitimate government depends on the consent ofthe governed and on its respect for the rights of citizens’: Jeane Kirkpatrick and AllanGerson, ‘The Reagan Doctrine, Human Rights and International law’ in Louise Henkin (ed),Right v. Might: International Law and the Use of Force, 2nd edn (New York, Council on ForeignRelations, 1991) 19, 23, quoted in Roth, id.

140 James Dobbins, ‘America’s Role in Nation-Building: from Germany to Iraq’, (2003/04) 45 Survival 87, 88.




The Charter of the UN prohibits all uses of military force,141 except inself-defence,142 or where force is authorised by the UN Security Coun-cil.143 It has been the practice of the Council, since the end of the ColdWar, to support democratically elected governments against insurgentforces.144 Further, the Council has been willing to both authorise, in the‘unique’ and ‘exceptional’ case of Haiti,145 and accept, in the case ofSierra Leone,146 military intervention to reinstall democratic govern-ments.147 Security Council resolutions concerning the ‘failed’ states ofSomalia,148 Liberia,149 Bosnia-Herzegovina,150 Kosovo151 and East

141 UN Charter art 2(4).142 ibid art 51. See also, the right to use counter-measures: above n 2 at [211] and [249].143 ibid c VII and VIII (specifically, arts 42 and 53(1)). cf GA Res 377 (V) ‘Uniting for

Peace’ (adopted 3 November 1950).144 When Jonas Savimbi, leader of the Angolan opposition movement UNITA (União

Nacional para a Independência Total de Angola), rejected the results of democraticelections, the Security Council expressed its support for the elected government (SC Res 864(1993) para 5), and demanded that UNITA accept unreservedly the results of the elections(para 6). See also, SC Res 804 (1993), SC Res 811 (1993), SC Res 834 (1993), SC Res 851 (1993),and SC Res 890 (1993). Following free and fair elections in Cambodia, the Security Councilwelcomed the formation of the new Government (SC Res 880 (1993) para 2), and demandedthe cessation of all illegal acts of violence and military activities ‘directed against thedemocratically elected Government of Cambodia’ (para 5). See also, SC Res 1216 (1998), andSC Res 1580 (2004), concerning Guinea-Bissau.

145 SC Res 940 (1994) para 4. See also, Statement by the President on Côte d’Ivoire,S/PRST/2002/42, also SC Res 1572 (2004).

146 In 1998, the Monitoring Group of the Economic Community of West African States(ECOMOG) reinstated the deposed elected President, Ahmad Tejan Kabbah. The use offorce was not authorised by the Security Council. The Council welcomed the return of thedemocratic government (SC Res 1156 (1998) para 1), and subsequently condemned the‘continued resistance … to the authority of the legitimate government’ (SC Res 1181 (1998)para 1).

147 Christine Gray points out that the overthrow of democratic rule or the annulment ofdemocratic elections in Burma (1990), Algeria (1991), Nigeria (1993), Niger (1996), Pakistan(1999), Côte D’Ivoire (1999), Fiji (2000 and 2006), Central African Republic (2003) andThailand (2006) did not produce any UN authorisation for the use of force or othersanctions: Gray (n 133) at 59.

148 In Resolution 814 (1993), the Council identified the need to establish ‘representativedemocratic institutions’ in Somalia: SC Res 814 (1993) preamble.

149 The Council has referred to the objectives of its resolutions concerning Liberia asbeing ‘the creation of peace, stability and democracy in Liberia and lasting peace in thesubregion’: SC Res 1521 (2003) para 4(c). See, SC Res 1116 (1997) preamble; SC Res 1497(2003) paras 12 and 13; and SC Res 1509 (2003).

150 SC Res 1031 (1995) endorsed the General Framework Agreement for Peace inBosnia-Herzegovina, which provided that Bosnia shall be a ‘democratic state …with freeand democratic elections’ (Art. I(2), The General Framework Agreement for Peace inBosnia-Herzegovina, Annex 4, ‘Constitution’ (1996) 35 ILM 89 art I(2)). See also SC Res 1031(1995) paras 1 and 30; and SC Res 1088 (1996) para 1.

151 In this case the ‘failed’ state was the Federal Republic of Yugoslavia. SC Res 1244(1999) authorised the Secretary-General to establish an interim administration for Kosovo‘under which the people of Kosovo can enjoy substantial autonomy’, while overseeing thedevelopment of ‘provisional democratic self-governing institutions’: SC Res 1244 (1999)para 10.




Timor152 all expressed the determination of the Council to see democraticforms of government introduced.153 A review of the practice of the workof the Security Council between 1 August 2007 and 31 July 2008 demon-strates the central role that democracy and elections play in the resolu-tion of internal conflicts, and the importance that the Council places ondemocratisation in the avoidance of internal instability that may lead to athreat to international peace and security.154 In a Presidential Statementon the subject of children and armed conflict, the Security Councilstressed the need to adopt a

broad strategy of conflict prevention which addresses the root causes of armedconflict in a comprehensive manner in order to enhance the protection ofchildren on a long-term basis, including by promoting sustainable develop-ment, poverty eradication, national reconciliation, good governance, democ-racy, the rule of law and respect for and protection of human rights’155

Democracy and the importance of free and fair elections are central toresolutions on Timor-Leste,156 Haiti,157 Afghanistan,158 DemocraticRepublic of the Congo,159 Iraq,160 Nepal,161 Somalia,162 Sierra Leone,163

Côte d’Ivoire164 and Sudan.165 In relation to Myanmar (Burma), theSecurity Council underlined the need for the Government of Myanmar toensure the full participation of all political actors and respect for funda-mental political freedoms in any referendums and elections.166 The UNSecurity Council demonstrates a commitment to democracy as one partof the resolution of internal conflicts threatening international peace andsecurity.

152 Technically not a ‘failed’ state, but a nascent state with a difficult beginning. Themandate of the United Nations Transitional Administration in East Timor (UNTAET)included support for ‘capacity-building for self-government’, with the Security Councilstressing ‘the need for UNTAET to consult and cooperate closely with the East Timoresepeople in order to carry out its mandate effectively with a view to the development of localdemocratic institutions’: SC Res 1272 (1999) para 2(e).

153 See also, Rwanda (SC Res 929 (1994)), and Albania (SC Res 1101 (1997) and SC Res1114 (1997)). See also resolutions on the democratic processes in Democratic Republic of theCongo, for example, SC Res 1671 (2006).

154 Resolutions and decisions of the Security Council, 1 August 2007 and 31 July 2008,UN Doc S/INF/63 (New York, United Nations, 2008).

155 S/PRST/2008/6.156 SC Res 1802 (2008).157 SC Res 1780 (2007).158 SC Res 1806 (2008) and SC Res 1817 (2008).159 SC Res 1794 (2007).160 SC Res 1790 (2007).161 SC Res 1796 (2008) and SC Res 1825 (2008).162 SC Res 1772 (2007) and SC Res 1814 (2008).163 SC Res 1793 (2007).164 SC Res 1782 (2007), SC Res 1795 (2008) and SC Res 1826 (2008),165 SC Res 1784 (2007) and SC Res 1812 (2008).166 S/PRST/2008/13.




Whilst there is no right of democratic regime change in internationallaw, the practice of military interventions in what we might refer to as‘failed’167 and ‘rogue’ states,168 what John Rawls might have called‘burdened’ and ‘outlaw’ societies, suggests the transition to democracy isa legitimate objective of military occupation. Clear examples are pro-vided by the US military interventions ‘Operation Enduring Freedom’(Afghanistan) and ‘Operation Iraqi Freedom’. The interventions areexamined in turn.

Operation Enduring Freedom (Afghanistan)

On 11 September 2001, terrorists attacked the twin towers of the WorldTrade Centre in New York and the Pentagon in Washington DC. Responsi-bility was attributed to the Al-Qaeda terrorist network, led by Osama BinLaden, which had based itself in Afghanistan under the protection of theTaliban de facto Government.169 According to Francis Fukuyama, the failedstate problem ‘suddenly took on a major security dimension’. Afghanistanwas so weak that it could in effect be hijacked by Al-Qaeda, and serve as abase of global terrorist operations.170 With the cooperation of Afghan oppo-sition forces, the United States and United Kingdom forced the Taliban toevacuate Kabul in November 2001, and drove them from power. On 14November 2001, the Security Council expressed its ‘strong support’ for theefforts of the Afghan people to establish a new and transitional administra-tion, which ‘should be broad-based, multi-ethnic and fully representativeof all the Afghan people’.171 In debates in the Council, a number of statesmade reference for the need to establish a democratic government in

167 The concept of the ‘failed state’ includes situations in which the basic functions ofgovernment are no longer performed; the government does not maintain a monopoly onthe use of violence; and enduring civil conflict. The fact that a state has ‘failed’ is manifestedin the suffering of the local population. See Sebastian von Einsiedel, ‘Policy responses tostate failure’, in Simon Chesterman et al (eds), Making States Work: State Failure and the Crisisof Governance (Tokyo, United Nations University Press, 2005) 13, 15. See also, Daniel Thürer,‘The Failed State and International Law’ (1999) 836 International Review of the Red Cross 731.

168 The idea of the ‘rogue’ state follows The National Security Strategy of the UnitedStates of America (September 2002): states that ‘brutalize their own people, display noregard for international law, threaten their neighbors, are determined to acquire weapons ofmass destruction, sponsor terrorism, and reject basic human values’. See Sean D Murphy,‘U.S. adoption of new doctrine on use of force’ (2003) 97 American Journal of International Law203.

169 Gray (n 133) at 193–94.170 Francis Fukuyama, State Building: Governance and World Order in the 21st Century

(Ithaca, New York, Cornell University Press, 2004) 93. See also, Michael Ignatieff, ‘Interven-tion and State failure’ (2002) 49(1) Dissent 114; also, Sebastian Mallaby, ‘The ReluctantImperialist’ (March/April 2002) 81(2) Foreign Affairs 2.

171 SC Res 1378 (2001) para 1.




Afghanistan.172 The United Nations determined that the process of politicaltransformation should be a largely Afghan affair,173 with the internationalcommunity leaving ‘a light expatriate “footprint”’.174 On 5 December 2001,Afghan factions, in the presence of the UN Special Representative of theSecretary-General for Afghanistan, adopted the (‘Bonn’) Agreement onProvisional Arrangements in Afghanistan Pending the Re-establishment ofPermanent Government Institutions. The Agreement established a broadbased representative interim authority, and provided for an EmergencyLoya Jirga to meet and decide on a Transitional Authority, until free and fairelections and the establishment of a fully representative government. Secu-rity Council Resolution 1383 (2001) ‘endorse[d]’ the Agreement,175 andcalled upon all Afghan groups to implement it in full.176 A TransitionalAdministration, led by President Hamid Karzai, was established at theclosing of an Emergency Loya Jirga in June 2002.177 The Security Councilwelcomed the development,178 and subsequently recognised the Transi-tional Administration as the sole legitimate Government of Afghanistan,pending democratic elections.179 On 3 January 2004, a new Constitution forAfghanistan was adopted, providing for an elected executive President andNational Assembly.180 The Security Council again welcomed the develop-ment, which reflected ‘the determination of theAfghan people to ensure thetransition of their country towards a stable and democratic State’.181

172 Mr Védrine (France) S/PV.4414 at 19; Mr Knight (Jamaica) S/PV.4414 at 25; MrMichel (Belgium), on behalf of the European Union, S/PV.4414 (Resumption 1) at 3; MrRuggiero (Italy) S/PV.4414 (Resumption 1) at 8; Mr Kharrazi (Islamic Republic of Iran)S/PV.4414 (Resumption 1) at 9; Mr Hasmy (Malaysia) S/PV.4414 (Resumption 1) at 25; MrSun Joun-yung (Republic of Korea) S/PV.4414 (Resumption 1) at 25; and Ms AlvearValenzuela (Chile) S/PV.4414 (Resumption 1) at 28. See also, Mr Farhâdi (Afghanistan)S/PV.4414 (Resumption 1) at 29, who stated (ibid.): ‘No ethnic group…has an absolutemajority in Afghanistan, and we therefore need a multi-ethnic and broad-based govern-ment in the country’.

173 See Lakhdar Brahimi, Special Representative of the Secretary-General for Afghani-stan, ‘Report to the Security Council’ (13 November 2001) S/PV.4414. cf SC Res 1378 (2001)para 3.

174 Report of the Secretary-General, ‘The Situation in Afghanistan and its Implicationsfor International Peace and Security’ (18 March 2002) UN Doc A/56/875 – S/2002/278,para 98 (d).

175 SC Res 1383 (2001), para 1. See also, SC Res 1386 (2001) and SC Res 1401 (2002).176 ibid at para 2.177 Report of the Secretary-General, ‘The Situation in Afghanistan and its Implications

for International Peace and Security’ (21 October 2002) UN Doc A/57/487 – S/2002/1173,para 2.

178 SC Res 1419 (2002).179 See SC Res 1536 (2004) preamble.180 See, Report of the Secretary-General, ‘The Situation in Afghanistan and its Implica-

tions for International Peace and Security’ (26 November 2004) UN Doc A/59/581 –S/2004/925, para 3.

181 SC Res 1536 (2004) preamble.




Operation Iraqi Freedom

Following the perceived success of ‘Operation Enduring Freedom’ andthe democratic transformation of Afghanistan, the attention of theadministration of President George W Bush turned to the problem of‘rogue’ states in general, and Iraq in particular. US foreign policy wasgreatly influenced by a neo-conservative analysis, notably the work ofthe Project for the New American Century, supported by Vice-PresidentDick Cheney, Secretary of Defense Donald Rumsfeld, and Deputy Secre-tary of Defense Paul Wolfowitz.182 Following the collapse of the SovietUnion,183 the United States identified a new ideological enemy, opposedto its values and interests: international (Islamist) terrorism and ‘rogue’states possessing or seeking to acquire weapons of mass destruction. Therhetoric of the Bush administration in the period leading to the militaryintervention in Iraq is clear on the need for regime change. In January2002, President Bush branded Iran, Iraq and North Korea an ‘axis of evil’.By seeking weapons of mass destruction, which they might provide tointernational terrorists, ‘these regimes pose[d] a grave and growingdanger’.184 The American position was supported by UK PrimeMinister Blair, who stated on 7 April 2002 that ‘leaving Iraq to developWMD, in flagrant breach of [relevant SC resolutions] is not an option’.Any military intervention would involve ‘regime change’ and the promo-tion of values of freedom, democracy and justice.185 On 12 September2002, President Bush, addressing the UN General Assembly, referred to‘outlaw’ regimes, including Iraq, which ‘accept no law of morality andhave no limit to their violent ambitions’. The President went on to assertthat ‘[l]iberty for the Iraqi people is a great moral cause, and a greatstrategic goal’, and looked forward to the people of Iraq joining ademocratic Afghanistan and a democratic Palestine, ‘inspiring reformsthroughout the Muslim world’.186 A few days later, the administrationpublished its National Security Strategy (2002), which identified a num-ber of ‘rogue States’, including Iraq, that ‘brutalize their own people,

182 Project for the New American Century, Statement of Principles, 3 June 1997:www.newamericancentury.org/statementofprinciples.htm (last visited 25 July 2009).

183 The foreign policy position of the Bush administration has its origins in the ‘DefensePlanning Guidelines’ drawn up in 1992 under the supervision of Paul Wolfowitz, whichargues for the creation of a democratic ‘zone of peace’ and the importance of spreading‘democratic forms of government and open economic systems’: ‘Excerpts From Pentagon’sPlan: ‘Prevent the Re-Emergence of a New Rival’, The New York Times (8 March 1992).

184 The President’s State of the Union Address (29 January 2002).185 Tony Blair, ‘Prime Minister’s Speech at the George Bush Senior Presidential Library’

(7 April 2002), available at www.number-10.gov.uk/output/Page1712.asp (last visited 25July 2009).

186 US President Bush address to the United Nations General Assembly (12 September2002).




display no regard for international law, threaten their neighbors, aredetermined to acquire weapons of mass destruction, sponsor terrorism,and reject basic human values and hate the United States’.187 The Strat-egy determined that the United States would continue to assert its rightto act pre-emptively if necessary, ‘in order to forestall or prevent hostileacts by the adversaries of the United States’.188 The National SecurityStrategy does not refer to the need for rogue states to democratise,although, in the foreword, President Bush asserts that there exists a‘single sustainable model for national success: freedom, democracy, andfree enterprise’.189 On 16 October 2002, the US Congress gave the Presi-dent the authorisation to use military force against Iraq. The resolution‘expressed the sense of Congress that it should be the policy of theUnited States to support efforts to remove from power the current Iraqiregime and promote the emergence of a democratic government toreplace that regime’.190

Harold Hongju Koh observes that from Ronald Reagan’s speech atWestminster in 1982, until 11 September 2001, ‘successive administrationshad supported the promotion of democracy as a fundamental goal ofU.S. foreign policy’.191 In his inauguration address of 20 January 2005,President Bush stated that it was the policy of the United States ‘to seekand support the growth of democratic movements and institutions inevery nation and culture, with the ultimate goal of ending tyranny in ourworld’.192 A few days later, in the State of the Union address, thePresident asserted that the purpose of the military intervention in Iraqwas to establish a ‘country that is democratic, representative of all itspeople, [and] at peace with its neighbors’. He further expressed Ameri-can support for democratic movements in the Middle East and beyond,making a direct connection between the advance of democracy andinternational peace and security: ‘[B]ecause democracies respect theirown people and their neighbors, the advance of freedom will lead topeace.’193 Key foreign policy goals of the Bush administration were to

187 The National Security Strategy of the United States of America (September 2002)13–14.

188 ibid at 15.189 ibid forward. See John Gaddis, ‘A Grand Strategy’ (Nov-Dec 2002) Foreign Policy 50,

53.190 United States Congress: Public Law 107–243 (Joint Resolution to Authorize the use of

United States Armed Forces against Iraq) (2002) 116 Stat 1498 (2002), reprinted (2002) 41ILM 1440.

191 Harold Hongju Koh, ‘On American Exceptionalism’ (2003) 55 Stanford Law Review1479, 1498.

192 Inauguration Address (20 January 2005).193 US President George W Bush, State of the Union Address (2 February 2005).




target ‘rogue’ states and spread democracy, thus enlarging the zone ofdemocratic peace, with a particular focus on the Middle East and thewider Muslim world.194

Regime change did not, however, provide the legal basis for themilitary intervention in Iraq.195 The justification for the use of militaryforce against Iraq was grounded in a contested interpretation of a right touse armed force provided in the Charter of the UN. The casus belli of‘Operation Iraqi Freedom’ was the refusal of Iraq to cooperate fully withthe UN, and comply with its disarmament obligations established byrelevant Security Council resolutions. The legal basis of the militaryintervention depended on a particular reading of Security Council Reso-lutions 678 (1991), 687 (1991) and 1441 (2002):196 the ‘material breach’ ofthe disarmament obligations in Resolution 687 revived the right to usemilitary force provided in Resolution 678. Democratic regime changewas, however, a key political objective of ‘Operation Iraqi Freedom’. Atthe Azores summit, which immediately preceded the military action, theleaders of the United States, United Kingdom, Spain and Portugal issueda Declaration on ‘A vision for Iraq and the Iraqi people’: in the event ofmilitary action, the Iraqi people would be ‘lifted from insecurity andtyranny, and freed to determine for themselves the future of theircountry’. The Declaration expressed support for the ‘Iraqi people’s aspi-rations for a representative government that upholds human rights andthe rule of law as cornerstones of democracy’.197

‘Operation Iraqi Freedom’ commenced on 20 March 2003. On 9 April,US forces entered Baghdad, and, on 1 May 2003, President Bush pro-claimed victory in Iraq as ‘one victory in a war on terror that began onSeptember 11th, 2001’.198 Between April 2003 and 28 June 2004, Iraq was

194 Since the end of the Cold War, the United States has intervened militarily and soughtto impose democracy in Somalia, Haiti, Bosnia-Herzegovina, Kosovo, Afghanistan and Iraq.Only Haiti does not have a majority Muslim population. See James Dobbins, ‘America’sRole in Nation-Building: from Germany to Iraq’ (2003/04) 45 Survival 87, 108.

195 See Attorney-General’s Advice on the Iraq War (7 March 2003): ‘regime changecannot be the objective of military action’, reprinted 54 International and Comparative LawQuarterly (2005) 767, 778.

196 See William Taft IV and Todd Buchwald, ‘Preemption, Iraq, and International Law’(2003) 97 American Journal of International Law 557. See Butler Report, ‘Review of Intelligenceon Weapons of Mass Destruction’ (14 July 2004) HC 898 paras 374–87.

197 See Agence France Presse, ‘The Four Leaders’ Declarations on Iraq’ The New YorkTimes (17 March 2003). For the reaction of the international community, see the debates inthe UN Security Council on 26 and 27 March 2003: S/PV.4726, and S/ PV.4726 (Resumption1).

198 ‘Security Council Recognition of U.S. Postwar Role in Iraq’ (2003) 97 American Journalof International Law 681, 681.




subject to a foreign military occupation.199 The legal basis for the inter-vention is unrelated to the position concerning regime change. Article 43of the regulations annexed to the 1907 Hague Convention (IV) withrespect to the Laws and Customs of War on Land obliges an occupyingpower to respect ‘unless absolutely prevented, the laws in force in thecountry’.200 The regulation represents the position under customaryinternational law.201 Article 43 cannot be regarded as a norm of jus cogens,given that exceptions to the proscription are recognised in the secondparagraph of article 64 of the 1949 Fourth Geneva Convention relative tothe Protection of Civilian Persons in Time of War.202 The exceptionsconcern threats to the security of the occupying power, obstacles to theapplication of the Fourth Geneva Convention, including the protection ofthe civilian population, and/or the need to maintain the orderly govern-ment of the territory. The introduction of democracy in a state subject tomilitary occupation cannot be reconciled with the language of article 43,or justified by the exceptions recognised in the Fourth Geneva Conven-tion: international law does not accept the legality of the forced democ-ratisation of occupied territories.

The legal basis for the military occupation and political transition inIraq was provided by the rules of international humanitarian law, asamended by Security Council Resolutions 1483 (2003), 1511 (2003) and1546 (2004).203 The power of the Security Council to amend internationallaw is implicit in the principle of the supremacy of UN law, reflected inarticle 103 of the UN Charter. Security Council Resolution 1483 (2003),adopted under chapter VII on 22 May 2003 by 14 votes to nil, with Syrianot participating,204 established the legal basis for the occupation.205 Theresolution is clear on the need for regime change, calling on UN MemberStates to deny safe haven to members of the Baathist regime, thus

199 Adam Roberts, ‘The End of Occupation: Iraq 2004’ (2005) 54 International andComparative Law Quarterly 27, 30. See SC Res 1472 (2003) para 1 and SC Res 1483 (2003) para5.

200 The laws of military occupation apply where a territory is ‘placed under theauthority of the hostile army’: art 42, regulations annexed to the Hague Convention (IV)with respect to the Laws and Customs of War on Land 1907. Reprinted (April 1907) 1(2)American Journal of International Law, Supplement: Official Documents 129.


202 75 UNTS 973.203 See Coalition Provisional Authority Order 100, ‘Transition of Laws, Regulations,

Orders, and Directives issued by the Coalition Provisional Authority’ CPA/ORD/28 JUNE2004/100 preamble.

204 Syria subsequently stated that it would have voted in favour of the Resolution had itbeen granted more time for deliberation before voting: Mr Mekdad (Syrian Arab Republic)S/PV.4762 (Resumption 1), 22 May 2003, 20.

205 See David Scheffer, ‘Beyond Occupation Law’ (2003) 97 American Journal of Interna-tional Law 842, 844.




preventing the formation of a ‘government-in-exile’,206 and appealing tostates and international organisations ‘to assist the people of Iraq in theirefforts to reform their institutions’.207 The resolution both insisted on theapplication of occupation law and ‘proclaimed certain transformativeobjectives for the occupation’.208 Resolution 1483 (2003) affirmed the rightof the Iraqi people to political self-determination,209 and referred to theneed to establish a ‘representative government’ that affords equal rightsto all Iraqi citizens ‘without regard to ethnicity, religion, or gender’.210

The establishment of a representative government requires the recogni-tion of equal rights of political participation for all citizens,211 it does notrequire the introduction of democratic institutions, and Resolution 1483(2003) makes no reference to the need to introduce democracy.212 TheSecurity Council did express its support for the formation of an Iraqiinterim administration,213 and on 13 July 2003 the occupying powersconstituted a Governing Council of Iraq, which was given an advisoryrole to the Coalition Provisional Authority (CPA).214

Security Council Resolution 1511 (2003), adopted unanimously underchapter VII on 16 October 2003, invited the Governing Council to provide‘a timetable and a programme for the drafting of a new constitution forIraq and for the holding of democratic elections under that constitu-tion’.215 A common objective had been agreed within the UN for theestablishment of a sovereign, democratic and independent Iraq asquickly as possible.216 Under a process announced on 15 November 2003,indirect elections would be held to a transitional national assembly,which would elect a government and act as a legislative body. The 15November proposals did not survive the opposition of the majority Shiapopulation, which demanded early direct elections.217 A compromiseemerged in the form of a new interim and transitional constitutional

206 Thomas Grant, ‘The Security Council and Iraq: an Incremental Approach’ (2003) 97American Journal of International Law 823, 828.

207 SC Res 1483 (2003) para 1 (emphasis added).208 Adam Roberts, ‘The End of Occupation: Iraq 2004’ (2005) 54 International and

Comparative Law Quarterly 27, 36.209 SC Res 1483 (2003) para 4. See also para 8 (c).210 ibid preamble. The Resolution refers to SC Res 1325 (2000), which concerns the

political participation of women.211 See GA Res 2625 (XXV) ‘Declaration on Friendly Relations’; also Vienna Declaration

and Programme of Action (1993) 32 ILM 1661 para I(2).212 The preamble to SC Res 1483 (2003) refers to the ‘Nasiriyah statement’ (US Central

Command (CENCOM) Press Release No 03–04–133 (15 April 2003)), which concluded thatIraq must become a democratic state.

213 SC Res 1483 (2003) para 9.214 Coalition Provisional Authority Regulation Number 6, ‘Governing Council of Iraq’,

CPA/REG/13 July 2003/06 s 2(1).215 SC Res 1511 (2003) para 7.216 UN Secretary-General (16 October 2003) S/PV.4844 at 2.217 Toby Dodge ‘A Sovereign Iraq?’ (2004) 46 Survival 39, 43.




order, the Transitional Administrative Law (TAL),218 which was draftedby the Governing Council of Iraq, under the authority of the CoalitionProvisional Authority, with CPA Administrator Paul Bremer playing akey role in the process.219

The TAL provided for the establishment of an Iraqi Interim Govern-ment from the end of the occupation until the establishment of an IraqiTransitional Government, following elections in January 2005.220 It put inplace a system of government that provided for the sharing of powerbetween the representatives of the majority Shia population and minoritySunni and Kurdish groups,221 and recognised a right of self-governmentfor the Kurdish population in northern Iraq.222 The TAL also introduced apolitical process, involving elections to a Transitional National Assembly,which had responsibility for drafting the permanent constitution. Thepermanent constitution would be approved in a general referendum,with elections for a permanent government held no later than 15 Decem-ber 2005.223 In Resolution 1546 (2004), adopted unanimously underchapter VII on 8 June 2004, the Security Council ‘endorsed’ the interimand transitional constitutional arrangements introduced in the TAL,224

and called on ‘all Iraqis to implement these arrangements peaceably’.225

Notwithstanding the use of the term ‘endorse’, ie to ‘confirm’, ‘sanction’,or ‘declare one’s approval of’,226 the Resolution and discussions leadingto its adoption make clear the determination of the Security Council togive legal effect to the fact of democratic regime change in Iraq.227 TheSecurity Council further welcomed the commitment of the Interim Gov-ernment of Iraq to work towards a ‘federal, democratic, pluralist, and

218 Law of Administration for the State of Iraq for the Transitional Period (‘TransitionalAdministrative Law’) (adopted 8 March 2004) art 3(a). Available at www.iraqcoalition.org/government/TAL.html (last visited 25 July 2009).

219 Rajiv Chandrasekaran, ‘Iraqi Council Agrees on Terms of Interim Constitution’Washington Post (1 March 2004).

220 Transitional Administrative Law art 2(b)(1) and (2).221 See, for example, the establishment of a three-member ‘joint Presidency’ (Transitional

Administrative Law art 36).222 ibid art 53(a); also art 54. This represented a continuation of the self-government

regime enjoyed by the Kurds since 1991 under the protection of US and UK forces.223 ibid arts 60 and 61.224 SC Res 1546 (2004) paras 1 and 4; also, SC Res 1637 (2005).225 ibid at para 6. In a letter to the Security Council, Dr Ayad Allawi, Prime Minister of

the Interim Government of Iraq, expressed ‘the commitment of the people of Iraq tocomplete the political transition process to establish a free, and democratic Iraq’: SC Res1546 (2004) Annex.

226 The Oxford English Dictionary. 2nd edn 1989 OED Online (Oxford, Oxford UniversityPress, 2000).

227 See, on this point, Legal Consequences for States of the Continued Presence of South Africain Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Advi-sory Opinion) (1971) ICJ Rep 16 [114].




unified Iraq’.228 In debates in the Council, all participants, includingstates that are not democratic,229 expressed support for the establishmentof democracy in Iraq.230 On 28 June 2004, the occupying powers formallytransferred power to the Iraqi interim administration. Elections to theTransitional National Assembly were held on 30 January 2005. On 15October 2005, the people of Iraq voted by a significant majority toapprove a new constitution, which describes Iraq as a ‘democratic,federal, representative (parliamentary) republic’.231 It recognises a contin-ued right of self-government for the Kurdish population in northernIraq,232 and also introduces the possibility of other self-governing regionsemerging.233 Central government enjoys exclusive powers in defined andlimited areas, in relation, for example, to foreign affairs, defence, finance,and customs policy.234 Elections under the new Constitution were heldon 15 December 2005, bringing to an end the political transition processoutlined in Resolution 1546 (2004).235

In Resolution 1546 (2004), the Security Council endorsed the establish-ment of a system of government involving the sharing of power betweenthe three main ethno-cultural groups in Iraq, and expressed its supportfor the establishment of a ‘federal, democratic, pluralist, and unifiedIraq’. None of the terms are defined, or the subject of elaboration in thedebates in the Council. Reference to ‘federalism’, for example, is madeonly by the United States236 and the United Kingdom,237 and only in thecontext of a ‘federal, democratic, pluralist, and unified Iraq’. Nor do anyof the terms enjoy a fixed and uncontested meaning in international law;nor were the resolutions irrelevant to the process of political transition,with the Iraqi representative to the Security Council referring to themandate provided by Resolution 1546 (2004) to draft a new permanentconstitution which would ‘enshrine the ideas of… pluralism, democraticrights, [and] federalism’.238 There was no articulation in the relevantresolutions or the debates in the Security Council of the rationale forintroducing democracy in Iraq, for the process of democratisation, or the

228 SC Res 1546 (2004) preamble.229 See, eg Mr Baali (Algeria) S/PV.4987, 8 June 2004, at 4; and Mr Wang Guangya

(China) S/PV.4987, 8 June 2004, at 6.230 S/PV.4987, 8 June 2004.231 Draft Iraqi Constitution art 1 (translated from the Arabic by the Associated Press).

Available at news.bbc.co.uk/1/shared/bsp/hi/pdfs/24_08_05_constit.pdf (last visited 25July 2009).

232 ibid arts 150 and 152.233 ibid arts 114.234 ibid art 108.235 Mr Gambari (Under-Secretary-General for Political Affairs) S/PV.5325, 14 December

2005, at 2.236 S/PV.4987, 8 June 2004, at 2.237 ibid at 3.238 Mr Zebari (Iraq) S/PV. 5189, 31 May 2005, at 5.




system of government ‘endorsed’, reflecting differences between theoccupying powers and other states on the process of political transforma-tion.239 Security Council Resolution 1546 (2004) endorsed a system ofethnic power-sharing and highly devolved federal system with limitedevidence of support from the Iraqi people, in contravention of their rightto (political) self-determination: a norm of jus cogens standing, and anobligation erga omnes.

In Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territory, the International Court of Justice concluded thatstates were under an obligation not to recognise an illegal situationresulting from the violation of the right of peoples to self-determination.240 Article 41(2) of the International Law Commission’sArticles on State Responsibility provides that no state ‘shall recognize aslawful a situation created by a serious breach’ of an obligation arisingunder a peremptory norm of general international law, including theright of peoples to self-determination.241 In evaluating the authority ofSecurity Council resolutions endorsing regime in Iraq, it is difficult toconclude that the resolutions were capable of removing the right of theIraqi people to political self-determination. In terms of the relevantposition in international law, the conclusion must be that the interna-tional law norms on the prohibition on forced regime change of occupiedterritories (regulations annexed to the 1907 Hague Convention (IV) withrespect to the Laws and Customs of War on Land) must be read both inthe light of the 1949 Fourth Geneva Convention, and the right of peoplesto self-determination: the test for the legality of a regime establishedfollowing military intervention is evidence of the support of the peoplein free and fair elections (or equivalent procedure, such as a referen-dums).242 The endorsement by the Iraqi people of the new constitution,drafted by elected representatives in the Transitional National Assembly,in the referendum of 15 October 2005, and participation in elections on 15December 2005 can be understood as an expression of democratic self-determination, giving legal effect to the regime change. This is the case

239 See Mr Akram (Pakistan) S/PV.4844, 16 October 2003, at 7; Mr Negroponte (USA)S/PV.4761, 22 May 2003, at 2–3; and Mr Lavrov (Russian Federation) S/PV.4761, 22 May2003, at 7.

240 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory(Advisory Opinion) [2004] ICJ Rep 136 [156] and [159].

241 Commentary on art 41, Articles on Responsibility of States for InternationallyWrongful Acts (with commentaries), in Report of the International Law Commission on theWork of Its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, 43, UN Doc A/56/10(2001), reprinted in James Crawford, The International Law Commission’s Articles on StateResponsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press,2002).

242 cf Eyal Benvenisti, The International Law of Occupation (Princeton, New Jersey, Prince-ton University Press, 1993) 173.




notwithstanding the fact that they were not provided with a free choicein determining the form and functioning of democracy in Iraq, given theexistence of a political system imposed by the occupying powers, andendorsed by the Security Council, in the form of the TAL.

CONCLUSION

The practice of democracy at the level of the state is (from the perspectiveof international law) subject to the authority of international law, whichboth constructs the state as a legitimate political community and framesthe legitimate exercise of coercive authority (consistent with internationalhuman rights norms). The international community has not yet adopteda position of intolerance to non-democracies, but increasingly worldsociety is comprised of, and committed to, an international community ofdemocratic states. The evidence of this is seen most clearly in the role ofthe UN Security Council in endorsing the (otherwise) unlawful democra-tisation of Iraq. The development also raises a number of problems fordemocratic theory, according to which the democratic state is understoodas a voluntary association that constitutes itself by virtue of a pouvoirconstituant (constituent power). Dann and Al-Ali observe thatconstitution-making, traditionally an expression of national self-determination, is increasingly becoming an object of international law.243

The UN Security Council plays an important role in the framing thepossibilities for constitution-making, ie the democratic right of the peopleto create a new legal order. The development conflicts with the concept ofthe pouvoir constituant, which is

an inherently democratic concept. It encapsulates the most fundamental act ofself-determination of a people… The political elite of the constitution-makingsociety typically plays a vital role in each of these scenarios, but always as anagent and representative of the entire nation. Its powers are ultimately rootedin the people and hence in the individual.244

The very idea of the pouvoir constituant (constituent power) ‘is thustantamount to a national endeavor and a nation taking its political fateinto its own hands and exercising its most fundamental and sovereignright.’245 The role of the UN Security Council in endorsing democraticregime change presents a radical move away from the democratic ideal(whilst imposing democracy). The development affirms that democracydoes not define its own boundaries; the boundaries of democracy are

243 Philipp Dann and Zaid Al-Ali, ‘The Internationalized Pouvoir Constituant:Constitution-Making under External Influence in Iraq, Sudan and East Timor’ (2006) MaxPlanck Yearbook of United Nations Law 423, 424.

244 ibid at 426.245 ibid at 427.

Conclusion 245



established by international law in the construction of the state, withpolitical self-determination subject to global (political) justice norms,concerning, for example, international human rights. The practice ofdemocracy occurs in a taken-for-granted context established by interna-tional law, and subject to global justice norms.




6

International Governance by Non-StateActors

THE PREVIOUS CHAPTERS examined the complexities createdfor democracy by the existence of a binding system of interna-tional law (even one committed to the protection of human rights

and promotion of democracy). The democratic legitimacy of internationallaw is provided by the engagement of states in forms of deliberativediplomacy and the agreement of international law norms that represent aform of political truth in world society. The norms that structure demo-cratic law-making are established both at the domestic level (constitu-tional law norms) and by law norms that are external to the legal order(undermining the claim of the people to decide all politically decidableissues). We cannot understand democracy as a voluntary association ofcitizens that organises social, economic and political life in accordancewith norms agreed through (deliberative) democratic procedures, ie inaccordance with a democratic constitution subject only to the will of thepeople. The analysis now shifts to the problems for (domestic) democ-racy that result from the exercise of governance functions by non-stateactors. Former United Nations (UN) Secretary-General Kofi Annan refersto the many diverse and increasingly influential non-state actors thathave joined with national authorities ‘to improvise new forms of globalgovernance’,1 whilst Barnett and Finnemore observe that non-state actorsare often the political institution to which actors defer when it comes todefining ‘norms of good behaviour’, and in doing so non-state actorsplay a significant role in helping to ‘determine the kind of world that is tobe governed and set the agenda for global governance’.2 ‘Norms’ expressand establish a ‘shared expectation about appropriate behaviour held bya community of actors’.3 They ‘embody a quality of “oughtness” and

1 Kofi Anan, We the Peoples: the Role of the United Nations in the 21st Century (New York,United Nations, 2000) 67.

2 Michael Barnett and Martha Finnemore, Rules for the World: International Organizationsin Global Politics (Ithaca, New York, Cornell University Press, 2004) 7.

3 Martha Finnemore, National Interests in International Society (Ithaca, New York,Cornell University Press, 1996) 22.

Columns Design Ltd / Job: Wheatley / Division: 06_Internationalgovernancy /Pg. Position: 1 / Date: 26/3


shared moral assessment, [and] prompt justifications for action’. Actionswhich are ‘norm-breaking’ generate ‘disapproval or stigma’; those inconformity with the norm receive praise, ‘or, in the case of a highlyinternalized norm, because it is so taken for granted[,] provoke noreaction whatsoever’.4

The exercise of global regulation cannot simply be explained in termsof a more complex world of Westphalian law, in which all laws dependfor their validity on an expression of sovereign will. In addition to stateand international law, the globalisation of governance functions has seenthe emergence of autonomous law orders not defined by reference tosovereign authority, notably the legal orders of the UN and EuropeanUnion. The development raises questions around the democratic legiti-macy of global law norms themselves, and the consequences for thepractice of democracy that results from competing claims to regulateaspects of social, economic and political life. The practice of (deliberative)democracy must accommodate the emergence of non-sovereign (non-state) actors as regulators, and the fact that global law norms can (itseems) be adopted without any requirement for consent by the demo-cratic people. The literature on (global) legal pluralism highlights theneed for new ways of thinking about the fragmentation of internationallaw, making clear the importance of distinguishing between legal plural-ism and normative pluralism, and allowing for the possibility of devel-oping concepts of regime collision based on the (democratic) nature of‘law’.

This chapter proceeds as follows. First, it examines the idea of globalgovernance and attempts to link the idea to an exercise of publicauthority which can be subject to the requirements of the (democratic)rule of law. A number of case studies are examined to highlight thedivergent ways in which non-state actors have emerged as law-makers,demonstrating a reliance on law-type norms by global regulators andconcern for the practice of democracy following the proliferation oflegislative bodies in global governance. There is a recognition that newforms of international governance framed in terms of law create systemsof ‘law’ (properly so-called), and that they can be subject to the require-ments for the exercise of public authority previously applied within(democratic) state law systems.


248 International Governance by Non-State Actors



GLOBAL GOVERNANCE

Hans Kelsen describes international law norms as ‘incomplete norms’. Anorm is complete when it defines what ought to be done (or not done),and by whom. International law defines the first element (what ought tobe done by states), but leaves the second element to the discretion of thestate in determining the identity of the juristic person that will carry outthe international law obligation.5 Westphalian law norms are enforcedthrough coercive (domestic) governmental institutions in accordancewith domestic law. International law norms are domesticated, ie broughtinto the state-law system, through executive action, judicial interpreta-tion, or legislative action, all of which imply, directly or indirectly, a linkto democratic publics, and democratic debate. States are no longer theonly actors that generate law norms through an expression of (sovereign)political will (expressed in terms of state law and international law). Theproliferation of sites for the production of law norms and emergence ofnon-state actors has broken the Westphalian frame for law-making, andformally de-coupled the concept of law from the coercive (state) institu-tions for the enforcement of law norms: ‘[W]e inhabit a world of multiplenormative communities, some of which impose their norms throughofficially sanctioned coercive force and formal legal processes, but manyof which do not.’6 In addition to (‘Westphalian’) state and internationallaw, global governance now includes forms of ‘international governance’by non-state actors that cannot, in contradistinction to state and interna-tional law, be linked to an exercise of sovereign authority.7 New forms ofinternational governance, even when framed in terms of law, must relyon ‘non-hierarchical forms of steering,’ in order to ensure compliancewith governance norms.8

Reference to ‘global governance’ and ‘international governance’emphasises the difference between the way in which law functions at the


6 Paul Schiff Berman, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journalof International Law 301, 302.

7 cf Anne-Marie Slaughter, Andrew Tulumello and Stepan Wood, ‘International Lawand International Relations Theory: a New Generation of Interdisciplinary Scholarship’(1998) 92 American Journal of International Law 367, 371: ‘International governance isunderstood as the formal and informal bundles of rules, roles and relationships that defineand regulate the social practices of state and nonstate actors in international affairs.’

8 Philipp Pattberg, ‘Global Governance: Reconstructing a Contested Social ScienceConcept’, (GARNET Working Paper, No 04/06) 11. The idea of ‘global governance’ emergedin the context of debates around reform of the United Nations (UN) system in the early1990s following the collapse of the Soviet Empire and hopes for the emergence of a ‘newworld order’. Debates were focused on the role of governments as the principal actors inthe system of global governance, mainly in the context of international cooperation throughinternational organisations: ibid at 8.

Global Governance 249



global level and way in which domestic state law functions.9 Governanceis contrasted with government, the latter being associated with formalinstitutions and the capacity to legislate and coercively enforce lawnorms. James Rosenau argues that the idea of global governance shouldbe taken to refer to ‘activities that may or may not derive from legal andformally prescribed responsibilities and that do not necessarily rely onpolice powers to overcome defiance and attain compliance’.10 The ideaincludes both formal systems of law and more informal normative ordersfor the regulation of global problems. Global politics is no longer con-strained by the state law system: ‘two worlds of world politics’ may beidentified, the inter-state system and ‘a multicentric system of diversetypes of other collectivities that has lately emerged as a rival source ofauthority’. The second world operates without clear boundaries and withcompeting and proliferating centres of authority in a ‘highly complexsystem of global governance’.11 It includes all attempts at global regula-tion not captured by the first world of inter-state law, whether organisedin bilateral or multilateral contexts (international organisations and insti-tutions, etc) and it does not require that regulatory standards are framedin terms of law, as opposed, for example, to good practice or industrystandards.

Armin von Bogdandy and his colleagues conclude that the concept of‘global governance’ employed by Rosenau and others provides impor-tant insights into the nature of global regulation, highlighting the multi-level character of governance activities, the role of non-state actors, andthe informal nature of many regulatory regimes and attempts by anumber of regulators ‘to escape the grasp of established legal concepts’.12

The concept is insufficient, however, as it fails to capture the distinctivecontribution of those ‘acts which are critical because they constitute aunilateral exercise of authority’.13 The distinction is important to the(international) lawyer, as only authority directives require justification in

9 The Report of the Commission on Global Governance refers to the many ways inwhich individuals and institutions, both public and private, organise their common affairs,including both ‘formal institutions and regimes empowered to enforce compliance, as wellas informal arrangements’: Report of the Commission on Global Governance, Our GlobalNeighbourhood (Oxford, Oxford University Press, 1995) 2.

10 James Rosenau, ‘Governance, Order, and Change in World Politics’ in James Rosenauand Ernst-Otto Czempiel (eds), Governance without Government: Order and Change in WorldPolitics (Cambridge, Cambridge University Press, 1992) 1, 4. See also Thomas Weiss,‘Governance, Good Governance and Global Governance: Conceptual and Actual Chal-lenges’ (2000) 21 Third World Quarterly 795.

11 James Rosenau, ‘Governance in a New Global Order’ in David Held and AnthonyMcGrew (eds), The Global Transformations Reader, 2nd edn (Cambridge, Polity, 2003) 223, 225.

12 Armin von Bogdandy, et al, ‘Developing the Publicness of Public International Law:Towards a Legal Framework for Global Governance Activities’ (2008) 9(11) German LawJournal 1375, 1378.

13 ibid at 1381.




terms of public (international) law: ‘Only authoritative acts need to beconstituted and limited by public law, and the limiting function of publiclaw depends on identifiable actors on whom to impose limitations.’14

Authority is the ‘legal capacity to determine others and to reduce theirfreedom, i.e. to unilaterally shape their legal or factual situation’.15 Theexercise of authority is the realisation of that capacity through the issuingof directives that may or may not take the form of law (cf the dissemina-tion of ranking information, for example). Authority concerns the factualability to ‘determine others’, ie to limit their freedom of action or politicalself-determination, and this may equally be undertaken through non-binding acts.16 The idea of an international public authority includes anyauthority whose competence is ‘instituted by a common international actof public authorities, mostly states, to further a goal which they define,and are authorized to define, as a public interest’.17 The concept includesinternational organizstions, public-private partnerships, and institutionsand regimes based on private law (the new lex mercatoria, for example). Atypical example would involve a global governance activity that directlyaffects public goods, such as the regulation of internet domain names bythe Internet Corporation for Assigned Names and Numbers (ICANN).18

The exercise of authority by an international public authority requiresjustification: where a non-state actor limits the freedom of action or scopefor political self-determination of another actor (including but notrestricted to states), it must provide justification for the exercise ofauthority within a public law framework,19 based on a combination ofthree existing responses to the globalisation of governance: constitution-alisation, global administrative law, and international institutional law.20

The arguments of Bogdandy et al provide useful insights into therelevance of (international) public law concepts to global governanceactivities.21 The analysis fails, however, to provide a sufficiently cleardistinction between the exercise of international governance through lawand other forms of normative ordering. Can it be the case, for example,that the actions of international non-governmental organisations in put-ting pressure on states and multi-national corporations, often through

14 ibid at 1380–81.15 ibid at 1381–82 (emphasis in original).16 ibid at 1382.17 ibid at 1383.18 ibid at 1384.19 ibid at 1386.20 ibid at 1390.21 Dan Sarooshi concludes that it is ‘the inextricable link between domestic public law

and the activity of governing that mandates in general terms the application of domesticpublic law principles to those international organizations that exercise conferred powers ofgovernment’: Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers(Oxford, Oxford University Press, 2005) 14 (references omitted).

Global Governance 251



processes of ‘naming and shaming’ and consumer boycotts, requirejustification in terms of public (international) law? The Brent Spar case isinstructive. In 1995, Shell Oil announced plans to decommission theBrent Spar by dumping the oil storage rig in the North Atlantic. Green-peace and other environmental pressure groups staged a campaign tostop its dumping, given the possible risk of pollution. Whilst Greenpeacelater apologised to Shell for its errors and inaccurate claims, a consumerboycott in Germany, Holland and other states forced Shell to change itsplans.22 In the language of von Bogdandy et al, Greenpeace ‘determined’the freedom of action of Shell (and other companies in the industry, as nomajor oil company will now propose to dump a structure),23 notwith-standing that Brent Spar was to be dumped in accordance with the lawsof the United Kingdom and, in the view of the UK Government,international law.24 The actions of Greenpeace do not, however, amountto international governance, ie the exercise of international public author-ity that requires justification in terms of (public) international law. Theaction was directed at a single actor and single set of facts, and notframed in terms of ‘law’; the argument was moral, not legal, withGreenpeace claiming that Shell was engaged ‘in an act of environmentvandalism which future generations would find hard to forgive’.25 Whilstvon Bogdandy et al are correct in recognising the need to apply publiclaw concepts to the exercise of international public authority by non-stateactors, they are over inclusive as to the forms of global governance thatcan be captured and constrained by the idea of international public ‘law’.Law establishes a framework for inter-state relations, relations betweengovernments and citizens, and between citizens themselves, but it is notthe only normative order that structures social life (consider, for example,the various religious, cultural and economic norms that also structuresocial existence). There is a need to distinguish international ‘law’ gov-ernance from other forms of normative ordering. The analysis is impor-tant for linking any discussion about the necessary requirements for theexercise of political authority beyond the state to an analytical concept oflaw, and emphasising the importance of legitimate regulation throughlaw.

22 Samir Mankabad, ‘Decommissioning of Offshore Installations’, (1997) 28 Journal ofMaritime Law and Commerce 603, 613.

23 Geoff Hewitt, ‘Offshore Decommissioning: Where Now’ (2004) 8 International EnergyLaw and Taxation Review 173, 174.

24 Elizabeth Kirk, ‘The 1996 Protocol to the London Dumping Convention and the BrentSpar’ (1997) 46 International and Comparative Law Quarterly 957, 962.

25 Quoted in Samir Mankabad (n 22) at 613.




INTERNATIONAL ‘SOFT’ LAW

International law texts deal with the ‘legislative’ activities of non-stateactors under the rubric of ‘soft law’, defined as the ‘variety of non-legallybinding instruments used in contemporary international relations’.26

Anna di Robilant observes that describing an international instrument as‘soft law’ suggests some ‘normative commitment’, but without bindinglegal rules or a formal regime for enforcement.27 Non-binding norms arecommon to all social systems and all legal systems.28 Norms, both ‘hard’and ‘soft’ (or however else described), establish shared expectationsabout appropriate behaviour in a community. Hard law norms will berecognised by law officials and (normally) enforced by law institutions(courts, etc). Soft law norms may create internal and external (moral)pressure for compliance, but the existence of soft law norms is irrelevantfrom the perspective of institutionalised normative systems of law. Thedistinction between hard and soft norms is significant in domestic law,with its coercive mechanisms for enforcement of law norms, but less so inthe international law system, which relies to a minimal extent on formalmechanisms for the resolution of legal disputes. Vaughan Lowe notesthat whilst international soft law norms may not be legally binding, theyform part of a ‘broader normative context within which expectations ofwhat is reasonable or proper State behaviour are formed’.29 Widespreadacceptance of soft law norms, as Boyle and Chinkin note, will ‘tend tolegitimise conduct and make it harder [for states] to sustain the legality ofopposing positions’.30

The idea of ‘soft’ (international) ‘law’ appears oxymoronic. ‘Hard’ inter-national law norms bind where there is an expression of sovereign consent(according to the positive orthodoxy). Whilst, there may be an apparent‘blurring’ of the line between hard and soft law, with ‘hard’ instrumentscontaining ‘soft’ obligations (‘endeavour to strive to cooperate’, etc),31 all‘hard’ international law commitments engage the responsibility of states

26 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford, OxfordUniversity Press, 2007) 212.

27 Anna di Robilant, ‘Genealogies of Soft Law’ (2006) 54 American Journal of ComparativeLaw 499, 499.

28 Christine Chinkin, ‘Normative Development in the International Legal System’ inDinah Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in theInternational Legal System (Oxford, Oxford University Press, 2000) 21, 24.

29 Vaughan Lowe, International Law (Oxford, Oxford University Press, 2007) 95–96.30 Boyle and Chinkin (n 26) at 212 (emphasis added). They cite the example of the

termination of driftnet fishing on the High Seas, following the adoption of a number ofGeneral Assembly resolutions on the issue. The resolutions had no legal force, but they didprescribe legitimate behaviour, and compliance followed.

31 Dinah Shelton, ‘Introduction’ in Dinah Shelton (ed), Commitment and Compliance: theRole of Non-Binding Norms in the International Legal System (Oxford, Oxford University Press,2000) 1, 10.

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(although where international law obligations are not capable of beingmade determinate through the methods and principles of international lawinterpretation, the international rule of law might argue against theirenforcement). Soft law norms fall outside of the pedigree of internationalnorms recognised in article 38(1) of the Statute of the International Court ofJustice:32 ‘contract-like’ agreements between states (treaties), customaryinternational law, general principles common to legal systems, and thewritings of publicists and decisions of courts on points of international law.Soft law norms may create moral and political pressure for compliance, butthey are not relevant when ‘judging’ the actions of states against positedinternational norms – the standard mindset of the public internationallawyer.33 Soft law norms may point to the future direction of internationallaw (lex ferenda), or be evidence of customary international law, but are not(international) ‘law’. They only become part of (‘hard’) international lawwhen adopted in a treaty or emerge as part of customary international law,‘thus “soft law” is not legally binding per se’.34

The positive orthodoxy has not prevented soft instruments, such asresolutions adopted by the UN General Assembly, being highly influen-tial in the development of international law, and international anddomestic courts and tribunals often rely on a bricolage of hard and softinstruments to reach a judgment (in part to avoid the impression that thecourt is engaged in an act of ‘legislation’).35 The fact that a court ortribunal, or other law-official, treats a non-law source as authoritativedoes not make it a source of law.

International organisations may exercise a legislative function wherethe states parties to a constituent treaty recognise such a power. The ideaof sovereignty is not inconsistent with the transfer of law-making powersto an international organisation, the application of majority rule inlegislative processes in international organisations, or for binding deci-sions to be taken by an international organisation without the participa-tion of all states parties. Writing about the proposed establishment of theUN, Kelsen observed that the allocation of ‘true legislative power[s]’ toan international organisation was a ‘relative not an absolute difference’from what had gone before:

[N]either the fact that a treaty establishing a legislative agency does very muchrestrict the freedom of action of the contracting States, nor the fact that the

32 From the positivist perspective, all systems of law ‘share a commitment to a pedigreecriterion of legality’: Jules Coleman, ‘Authority and Reason’ in Robert George (ed), TheAutonomy of Law: Essays on Legal Positivism (Oxford, Clarendon Press, 1996) 287, 289–90.

33 See David Kennedy, ‘Tom Franck and the Manhattan School’ (2003) 35 New YorkUniversity of International Law and Politics 397, 411.

34 Shelton (n 31) at 6.35 For a particularly noteworthy example, see Separate Opinion of Vice-President

Weeramantry, Gabcíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7, 88.




community constituted by such a treaty is more centralized than other interna-tional communities usually are, justifies the argument that the establishment ofa legislative agency is incompatible with the nature of international law or,what amounts to the same, with [state] sovereignty.36

The positivist analysis can be applied where there is an unambiguousdelegation of legislative authority. But what of the ‘legislative’ authorityof the UN General Assembly, which has the power only to ‘makerecommendations to the Members of the United Nations’ (article 10 ofthe UN Charter)? The limited mandate has not prevented the GeneralAssembly from adopting resolutions that interpret the obligations ofstates under the Charter, or provide the basis for the progressive devel-opment of international law and the speedy consolidation of customarynorms.37 The legislative authority of a General Assembly resolution canbe understood in one of three ways. First, as the resolution does not fitwithin the pedigree of legal sources recognised in article 38(1), it is of nodirect interest to the international lawyer; the resolution may reflectemerging normative standards (lex ferenda), but it does not represent anaccurate statement of international law as it now stands (lex lata).Secondly, a General Assembly resolution might contribute to the devel-opment of a modern form of customary international law, deduced frominternational instruments rather than the identification of state practice.Customary international human rights law has often emerged throughthe adoption of ‘legislative’ instruments by the UN General Assembly,not least the Universal Declaration of Human Rights. The final possibilityis that a resolution constitutes a form of ‘soft’ international law, and it isnoteworthy that ‘non-binding’ resolutions of the General Assembly areinvariably framed in terms of international law.

The Restatement of Foreign Relations Law notes that whilst GeneralAssembly resolutions and those of other international organisations arenot included in article 38(1) of the Statute of the International Court ofJustice (ICJ), the provision was drafted prior to the proliferation ofinternational organisations since 1945,38 and it is not possible to concludethat resolutions of international organisations are insignificant in thedevelopment of general and customary international law. The Restate-ment observes that resolutions of universal international organisations,‘if not controversial and if adopted by consensus or virtual unanimity, aregiven substantial weight’ in the identification of international law.39 In

36 Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for Interna-tional Organization’ (1944) 53 Yale Law Journal 207, 211.


38 Restatement (Third) of Foreign Relations Law § 103 (1987), reporter’s note 2.39 Restatement (Third) of Foreign Relations Law § 103 (1987), comment.

International ‘Soft’ Law 255



Legal Consequences for States of the Continued Presence of South Africa inNamibia (South West Africa), the ICJ concluded that

it would not be correct to assume that, because the General Assembly is inprinciple vested with recommendatory powers, it is debarred from adopting,in specific cases within the framework of its competence, resolutions whichmake determinations or have operative design.40

General Assembly Resolution 63/128 reaffirms the role of the GeneralAssembly ‘in encouraging the progressive development of internationallaw and its codification, and reaffirms further that States shall abide byall their obligations under international law’.41 It is not possible to regardthe UN General Assembly as a legislative institution analogous tonational parliaments; nor would it be correct to conclude that theAssembly does not possess the capacity to ‘legislate’ international lawnorms, and reference to resolutions of the General Assembly as anexpression of the position in international law are invariably madewithout exposition as to the basis for relying on the resolution as anauthoritative statement of the law. The point is emphasised by theimportance accorded to ‘Declarations’ (as opposed to ‘Resolutions’).

In contrast with the amorphous development of international law inthe past, lawmaking in the UN General Assembly allows the possibilityfor the participation of ‘all affected’ states on the basis of the one-state-one-vote principle, an application of the Athenian model of democracy inwhich full members a political community, but not others,42 meet anddecide on the political issues of the day. Christine Chinkin makes thepoint that, since the 1960s, developing states have sought to enhance thelaw making authority of the General Assembly, where they enjoy anumerical majority, in order to ‘legislate’ international law norms, ‘and indoing so to revolutionize the basis of international norm-creation’.43

NON-STATE ACTORS AS LAW-MAKERS

The UN General Assembly provides just one example of the enhancedrole of autonomous non-state actors in the production of international

40 Legal Consequences for States of the Continued Presence of South Africa in Namibia (SouthWest Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971]ICJ Rep 16 [105].

41 General Assembly (GA) Res 63/128 ‘The Rule of Law at the National and Interna-tional levels’ (adopted 11 December 2008) para 2.

42 The participation of all states does not end complaints of a democratic deficit in theabsence of the participation and inclusion of all affected persons. See, for example, theparticipation of indigenous peoples in the process leading to the adoption of GA Res.61/295, adopted 13 September 2007, ‘The United Nations Declaration on the Rights ofIndigenous Peoples’.

43 Chinkin (n 28) at 22.




law norms. Reference to the idea of an autonomous actor concerns acondition in which a global regulator is not under the political control ofstates (understood in terms of decisive influence over the ‘constitutional’regime governing the exercise of authority by the non-state actor, butaccepting that non-state actors may be influenced by the political will ofstates). Where non-state actors such as the United Nations ‘legislate’(international) law norms and compliance follows, they exercise a formof ‘regulatory’ authority traditionally associated with the state. The ideaof the non-state ‘legislative’ actor includes international organisationsconstituted by treaty but operating outside the effective control of statesparties (the European Union and United Nations being the paradigmexamples); informal ‘networks’ of national officials seeking to coordinatepolicy in a particular area (Basel Committee on Banking Standards);public-private partnerships (World Commission on Dams; The GlobalFund to fight AIDS, Tuberculosis and Malaria, etc); informal groupings(Commission on Food Safety Standards); self-regulatory regimes (Inter-national Court of Arbitration for Sport); purely private institutions(ICANN); and informal ‘communities’ of non-state actors, the new lexmercatoria, for example, developed by lawyers and arbitrators, and codi-fied in the International Institute for the Unification of Private Law(UNIDROIT) Principles of International Commercial Contracts 1994.44 Itis beyond the scope of this work to evaluate the exercise of politicalauthority by all non-state actors or the extent to which ‘law-making’ byglobal regulators occurs in a way that is democratically legitimate. Thefollowing sections evaluate the activities of the UN Security Council,Basel Committee on Banking Supervision, World Commission on Dams,and private international governance mechanisms such as the ForestStewardship Council and Fairtrade Labelling Organisation. The aim is toestablish that non-state actors might exercise a legislative function, andthat the democratic legitimacy, or otherwise, of this role is a subject ofcontroversy.

The UN Security Council

The UN Security Council is perhaps the clearest example of a non-stateactor asserting a right to legislate in the international law system — aright that is nowhere provided for in the UN Charter, although it is notexpressly excluded. Under the Charter, UN members confer primaryresponsibility for the maintenance of international peace and security onthe Security Council, ‘and agree that in carrying out its duties under this

44 Alec Stone Sweet, ‘The New Lex Mercatoria and Transnational Governance’ (2006) 13Journal of European Public Policy 627.

Non-State Actors as Law-Makers 257



responsibility the Security Council acts on their behalf’.45 Decisions of theCouncil adopted under chapter VII of the UN Charter are binding inrespect of Member States by virtue of articles 25 and 48(1),46 andarguably in relation to ‘all States’ by article 2(6).47 To adopt a bindingresolution, the Security Council must overcome a double veto:48 theformal veto accorded to each of its five permanent members (the ‘P-5’,the People’s Republic of China, France, Russia, the United Kingdom andthe United States of America),49 and the ‘functional veto’ accorded to thenon-permanent members, as a proposed resolution will fail without therequisite nine positive votes.50 The practice of the Security Council is toact where possible by consensus. To the extent that resolutions adoptedunder chapter VII conflict with other international law obligations, it isthe position of the Security Council that its resolutions prevail.51 SecurityCouncil resolutions constitute, by virtue of article 103 of the UN Charter,a ‘higher’ form of legal obligation within the international system of law.

Where a Security Council resolution is directed to one or more indi-vidual states involved in an international dispute that threatens interna-tional peace and security, the resolution conforms to an executive typeaction envisaged by the framers of the Charter. The Security Council has,though, begun to adopt resolutions directed to all states in respect ofgeneral and continuous obligations. The legislative phase of the SecurityCouncil began on 28 September 2001, with the adoption of SecurityCouncil (SC) Resolution 1373 (2001), which implemented a number ofprovisions similar to those in the International Convention for theSuppression of the Financing of Terrorism, which was not in force.52 Theresolution reaffirms the unequivocal condemnation of the terroristattacks that occurred on 11 September 2001 and expressed determination

45 UN Charter art 24(1).46 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South

West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16 [116].47 See Security Council (SC) Res 917 (1994), 918 (1994) and 1054 (1996). At the time of

the adoption of SC Res 1244 (1999), the Federal Republic of Yugoslavia was not a member ofthe UN.

48 UN Charter art 27(2).49 UN Charter art 23(1).50 Michael Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87 Ameri-

can Journal of International Law 83, 98.51 See, for example, SC Res 864 (1993) para 20.52 Stefan Talmon, ‘The Security Council as World Legislature’ (2005) 99 American Journal

of International Law 175, 175. See also Paul Szasz, ‘The Security Council Starts Legislating’(2002) 96 American Journal of International Law 901; Craig Forcese, ‘Hegemonic Federalism:the Democratic Implications of the UN Security Council’s “Legislative” Phase’ (2007) 38Victoria University of Wellington Law Review 175.




to prevent all such acts, which ‘like any act of international terrorism,constitute a threat to international peace and security’.53 Acting underchapter VII, the resolution

Decides that all States shall: (a) Prevent and suppress the financing of terroristacts; (b) Criminalize the wilful provision or collection, by any means, directlyor indirectly, of funds by their nationals or in their territories with the intentionthat the funds should be used, or in the knowledge that they are to be used, inorder to carry out terrorist acts; (c) Freeze without delay funds and otherfinancial assets or economic resources of persons [and entities] who commit, orattempt to commit, terrorist acts or participate in or facilitate the commissionof terrorist acts.54

The resolution further decides that states shall refrain from providingsupport for entities or persons involved in terrorist activities, andactively seek to disrupt and bring to justice all those engaged in terroristactivities, where necessary through international cooperation.55

Other examples of legislative resolutions include SC Resolution 1422(2002),56 and SC Resolution 1487 (2003), on the International CriminalCourt,57 and SC Resolution 1540 (2004), which imposes a number ofgeneral obligations concerning weapons of mass destruction and non-state actors. Acting under chapter VII, the Security Council decided that‘all States shall refrain from providing any form of support to non-Stateactors that attempt to develop, acquire, manufacture, possess, transport,transfer or use nuclear, chemical or biological weapons and their meansof delivery’.58 Resolution 1540 required states to adopt and enforceeffective laws to prohibit any non-state actor from manufacturing orotherwise developing the use of nuclear, chemical or biological weap-ons,59 and further required states to introduce a number of measures toensure that non-state actors could not access weapons of mass destruc-tion.60 In order to ensure its effective implementation, the resolution

53 SC Res 1373 (2001), preamble.54 ibid at para 1.55 ibid at para 2.56 SC Res 1422 (2002) para 1: The Security Council, acting under c VII, ‘Requests,

consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arisesinvolving current or former officials or personnel from a contributing State not a Party tothe Rome Statute over acts or omissions relating to a United Nations established orauthorized operation, shall for a twelve-month period starting 1 July 2002 not commence orproceed with investigation or prosecution of any such case, unless the Security Councildecides otherwise.’

57 SC Res 1487 (2003) para 1 extends the period for a further year, until 1 July 2003.58 SC Res 1540 (2004) para. 1.59 ibid at para 2.60 ibid at para 3.




established a committee to report on the implementation of the resolu-tion, ‘and to this end call[ed] upon States to present a first report no laterthan six months from the adoption of this resolution to the Committee onsteps they have taken or intend to take to implement this resolution’.61 Incontrast to earlier resolutions, the adoption of Resolution 1540 wasaccompanied by expressions of concern by Member States about theincreasing tendency of the Security Council to ‘assume new and widerpowers of legislation on behalf of the international community’.62 Paki-stan argued that the resolution ‘exceeded the competence of the SecurityCouncil’. It appeared to be ‘“abstract legislation,” disconnected from theCouncil’s crisis management role’.63

Stefan Talmon defines the idea of international legislation by theSecurity Council in terms of the general and abstract character of theobligations imposed, which are ‘phrased in neutral language, apply to anindefinite number of cases, and are not usually limited in time’.64

Accepting the authority of the Security Council to impose obligations ofan ‘abstract and general character’ (ie to legislate),65 he examines issuesof legitimacy and participation in their adoption. A particular concern isthe limited membership of the Council, in contrast, for example, to theUN General Assembly. Whilst all states may contribute to debates on aproposed resolution, only members of the Security Council can vote onlegislative resolutions, undermining the principle of sovereign equality,unless ‘consent’ to the resolution may be located in membership of theorganisation and the hierarchy implied, but not stated, in article 103 ofthe UN Charter. (The position is further complicated by the negative vetopowers of the P-5.) In terms of participation, the general nature oflegislative resolutions suggests that all states are potentially affected bythe development of international law norms, and that all states shouldhave the right to participate in the relevant debates. The Philippinesrepresentative to the UN observed: ‘Those who are bound should beheard.’66 Article 31 of the UN Charter provides that

[a]ny Member of the United Nations which is not a member of the SecurityCouncil may participate, without vote, in the discussion of any questionbrought before the Security Council whenever the latter considers that theinterests of that Member are specially affected.

61 ibid at para 4.62 Security Council Meeting Record, 22 April 2004, ‘Non-proliferation of weapons of

mass destruction’, UN Doc S/PV.4950 (2004) 23 (India).63 Ian Johnstone, ‘Legislation and Adjudication in the UN Security Council: Bringing

Down the Deliberative Deficit’ (2008) 102 American Journal of International Law 275, 291.64 Talmon (n 52) at 176.65 ibid at 182.66 UN Doc S/PV.4950 (2004) 2, quoted ibid at 186.




In terms of the possibilities for concerned states to participate in relation tolegislative resolutions, the practice of the Council is to be as open as possibleto non-members, with Talmon concluding that the participation of non-members is not a matter of discretion for the Security Council,67 although itis not clear whether this is a question of law (and with what consequences),or a (‘mere’) ‘constitutional’ convention.

The process in relation to the adoption of Resolution 1540 (2004) isinstructive. The concerns of Pakistan and others, and awareness of theSecurity Council’s legislative functions, led to a recognition amongst mem-bers of the need for ‘a more inclusive and drawn-out process’. Whilst thenegotiations began amongst the P-5, Ian Johnstone reports that ‘the processwas “intentionally porous,” allowing other members of the Council, non-members, the press, and nongovernmental organizations the opportunityto follow the deliberations and provide input’.68 SC Res 1540 (2004) wasdrafted by the P-5 over a period of six months, before the text was sharedwith the 10 elected members, with other states being briefed on its content.The sponsoring states ‘went to great lengths to explain the text and listenedclosely to member states within and outside the Council’. A process ofinformal consultations was undertaken, and on 22 April 2004, the Councilheld an open debate with the active participation of 51 UN Member States.The text was subsequently revised before its adoption. During the debate,Spain asserted that ‘since the Council is legislating for the entire interna-tional community’, the draft resolution should be adopted ‘after consulta-tion with non-members of the Council’.69

By virtue of article 103 of the UN Charter, resolutions adopted by theSecurity Council under chapter VII displace other forms of internationallaw and state law. The lack of legitimacy (including democratic legiti-macy) and accountability of the Council presents a number of problemsin accepting the absolute authority of this global Leviathan. One way ofreading the idea of democracy at the domestic level is as a rejection ofabsolute deference to monarchy and all other forms of political authority.The exercise of political authority requires justification to avoid the abuseor arbitrary exercise of power: the doctrine of the rule of law. Yet (certain)international lawyers demand absolute deference to the authority ofresolutions adopted by the UN Security Council on matters concerninginternational peace and security.70 The consent of UN Member States tosubmit themselves to the authority of the Security Council through

67 ibid at 187.68 Johnstone (n 63) at 292.69 UN Doc S/PV.4950 (2004) 7, quoted in Talmon (n 52) at 188.70 See Questions of Interpretation and Application of the 1971 Montreal Convention Arising

from the Aerial Incident at Lockerbie [1998] ICJ Rep 115, 155, Dissenting Opinion of PresidentSchwebel.




membership of the organisation cannot, however, absolve the Councilfrom an obligation to provide sufficient justification for the exercise ofpolitical authority in a particular case.71 The fact that an issue falls withinits scope of authority does not always entitle the Security Council to act,or to act in a particular way. This is a particular concern given that theSecurity Council ‘has consistently taken a wide view of the phrase“threat to international peace and security” under Article 39’.72 Theadoption of a resolution by the Security Council in accordance withproper procedure provides presumptive evidence that sufficient justifica-tion exists for the introduction of the relevant measures, but it cannot beconclusive: it does not, ipso jure, shield the resolution from legal chal-lenge. (Questions concerning the legal status of Security Council resolu-tions will also impact on their effectiveness, pulling against voluntarycompliance.) Whilst there is no formal process for the direct review ofSecurity Council resolutions, by, for example, the ICJ,73 a right of indirectjudicial review, in which the position of one or more parties to a disputeis dependent on the legal status of a Security Council resolution, has beenrecognised by international courts74 and tribunals.75 The democraticlegitimacy of the relevant resolutions has not been the focus of thejudgments. According to a deliberative understanding, the (democratic)legitimacy of Security Council resolutions would depend on conformitywith the following: the constitutional framework provided by the UNCharter and general international law, concerning for example norms ofjus cogens;76 the requirements of procedural legitimacy; and the require-ments of substantive legitimacy, which require that measures can bejustified in accordance with the principles of public reason and equaltreatment, and in accordance with UN human rights standards and otheragreed norms of (political) justice in relation to the UN.

71 See Daniel Bodansky, ‘The Legitimacy of International Governance: a ComingChallenge for International Environmental Law’ (1999) 93 American Journal of InternationalLaw 596, 601.

72 Christine Gray, International Law and the Use of Force, 3rd edn (Oxford, OxfordUniversity Press, 2008) 257.

73 Geoffrey Watson, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34Harvard International Law Journal 1.

74 cf Case T-315/01 Kadi v Council of the European Union [2005] ECR II-3649 (CFI); CaseC-402/05 P Kadi v Council of the European Union [2008] 3 CMLR 41 (ECJ (Grand Chamber)).

75 ICTY, Prosecutor v Dusko Tadic, Case No IT-94–1-AR72, 35 ILM (1996) 32 [22].76 ‘[The] relief which Article 103 of the Charter may give the Security Council . . . cannot

– as a matter of simply hierarchy of norms – extend to a conflict between a Security Councilresolution and jus cogens’: Separate Opinion of Judge Lauterpacht, Application of theConvention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina vYugoslavia (Serbia And Montenegro)), further Requests for the Indication of Provisional Measures[1993] ICJ Rep 407 [100]. Either the relevant paragraphs of the offending resolution shouldcease to be valid (ibid at [103]), or the Security Council should revisit the issue and revisethe impugned measure accordingly (ibid at [104]).




The UN Secretary-General has referred to a ‘democracy deficit in theUN governance’, and the need for the Security Council to be ‘moredemocratic and more representative’.77 Debates around reform of the UNSecurity Council have been framed in terms of democratic legitimacy.The focus is on the membership of the Council (‘vote’), and the positionand powers, in terms of the veto, of the P-5. Michael Reisman observesthat important political powers are reserved to five of the strongest statesby giving them a dominant role in the Security Council, and through theallocation of veto powers.78 The position is exacerbated by the way inwhich the Council functions, notably the role of private discussion, withthe Security Council becoming more secretive, and meetings taking placeoutside of the public meetings where records are taken.79 Meetingsbetween the P-5 and also between the so-called P-3 (United States,United Kingdom and France) have become important in setting theagenda for debates in the Council.80

David Caron refers to the ‘disabling effect of the veto on the sense ofparticipatory governance’,81 suggesting that the structure for SecurityCouncil decision-making reflects entrenched structures of power andinfluence as opposed to democratic ideals of deliberation and persuasion,although ‘other values such as representation and cohesion of the inter-national community informed the design of the institution’.82 In terms ofdeliberative legitimacy, Ian Johnson concludes that whilst relationshipsof power and coercion are present in the Security Council, there are otherfeatures ‘that suggest raw material power is not the only thing thatmatters’: formal equality in terms of voting; the requirement for justifica-tion implicit in the public record of debates; the rotating Presidency, andarticle 24 of the UN Charter, which provides that the Council acts onbehalf of all members of the organisation, all of who are entitled to speak,but not vote, in meetings of special concern to them.83 Elsewhere, heargues that an examination of the negotiation of legislative resolutionsthat create treaty-like obligations ‘suggests that deliberative [democratic]principles have been at play, both in how the Security Council has been

77 See ‘A More Secure world: Our Shared Responsibility: Report of the High-level Panelon Threats, Challenges and Change’ (2 December 2004) UN Doc A/59/565 para 249.

78 W Michael Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87American Journal of International Law 83, 83.

79 ibid at 85.80 ibid at 86.81 David Caron, ‘The Legitimacy of the Collective Authority of the Security Council’

(1993) 87 American Journal of International Law 552, 556.82 ibid at 561.83 Ian Johnstone, ‘Security Council Deliberations: the Power of the Better Argument’

(2003) 14 European Journal of International Law 437, 461. Johnson notes that the SecurityCouncil remains open to perspectives of certain non-state actors: ibid at 462.




operating and in the criticisms of its manner of operating’.84 Members ofthe Council, in particular the P-5, ‘are in an enduring relationship andshare certain understandings and expectations about the enterprise inwhich they are engaged’.85 They have created, in Habermasian terms, ‘an“institutional lifeworld” that makes minimally rational discourse possi-ble’. Debates are structured by a normative framework that is providedby the UN Charter, the previous practice of the Council, and other ‘hard’and ‘soft’ international law norms. Nor is the Security Council entirelydominated by the five permanent members. Non-permanent members,whilst not equal participants, ‘do wield some “discursive” powerbecause the P-5 must compete for their support[,] [helping to] set theparameters of the more equal deliberations among the P-5’. States thatare not members are able to speak at Council meetings, and the SecurityCouncil ‘is also influenced by organs of international public opinion,engaged representatives of NGOs, and other citizens who keep a closewatch on what is going on in the Security Council’.86 There is also anincreasing sense that the Security Council should articulate more clearly ajustification for any exercise of international public authority, and justify itsactions ‘in terms affected constituencies can accept in principle’.87

‘Networks’ of Officials: Basel Committee on Banking Standards

The Basel Committee on Banking Supervision is, in the words of PhilipAlston, the ‘poster-child’88 for Anne-Marie Slaughter’s New WorldOrder, in which networks of national officials cooperate to agree commonstandards, often framed in terms of codes of best practices, model

84 Ian Johnstone, ‘Legislation and Adjudication in the UN Security Council: BringingDown the Deliberative Deficit’ (2008) 102 American Journal of International Law 275, 283. Inrelation to SC Res 1373, for example, Security Council members ‘sought to legitimate theiractions through public justification, consultative opportunities, and accountable workingmethods’. Since the introduction of the regime, ‘the CTC has gathered a wealth ofinformation through state reporting and site visits; and the channels for meaningful,interactive dialogue with states and other international organizations continue to grow’:ibid at 289.

85 ibid at 300–01.86 ibid at 301.87 ibid at 305. Reform of the Security Council on this (‘deliberative’) understanding

should focus on questions of transparency and public reason, that is ‘evidence to supportdecisions, and reasoning to back up the decisions’: ibid.

88 Philip Alston, ‘Remarks on Professor B.S. Chimni’s a Just World under Law: a Viewfrom the South’ (2007) 22 American University International Law Review 221, 233. Alstondescribes the Basel Committee as ‘so fundamentally elitist in its composition and in theways in which it works that it is puzzling how anyone concerned with a just world ordercould consider it to be a model of anything other than a small group of rich countriesdetermining universal standards which suit their own needs and interests’: ibid at 233.




legislation, or governing principles to be implemented by national mem-bers. Slaughter argues that networks of government officials can be moreeffective governance institutions than more traditional, and ‘harder’,institutional forms, such as the multilateral treaty.89 Whilst each networkwill have its own aims and objectives, the establishment of transnationalnetworks allows national government officials to keep pace with devel-opments in globalisation, and establish relationships among the partici-pants ‘that then create incentives to establish a good reputation andavoid a bad one’. Networks of government officials are able to respondeffectively to the deleterious consequences of globalisation, in large partbecause of the personalised contacts between officials.90 In terms ofdemocratic legitimacy, government networks can encourage discussionand deliberation in decision-making processes, creating favourable con-ditions for the emergence of a reasoned consensus. The outcome will bebetter quality decisions than those produced through interest-basedbargaining, adherence to prevailing political, economic, or social norms,or simply acquiescence to the will of powerful or hegemonic states.91

Where networks of officials engage in multilateral discussions indecision-making processes, they ‘are likely to produce more creative,more reasoned, and more legitimate solutions’.92

The Basel Committee on Banking Supervision meets under the aus-pices of the Bank for International Settlements to provide a forum forregular cooperation on banking supervisory matters. Its members comefrom Belgium, Canada, France, Germany, Italy, Japan, Luxembourg, theNetherlands, Spain, Sweden, Switzerland, the United Kingdom and theUnited States. They are senior officials responsible for banking supervi-sion in central banks. The objective of the Committee is to improve thequality of banking supervision by exchanging information on nationalsupervisory issues, approaches and techniques, with a view to promotingcommon understandings and developing ‘guidelines and supervisorystandards’.93 The Committee monitors and reviews compliance withstandards, but relies on central bank members to implement agreements.The process enhances the power of domestic regulators who can agree

89 Anne-Marie Slaughter, ‘Sovereignty and Power in a Networked World Order’ (2004)40 Stanford Journal of International Law 283, 300. Slaughter argues that the function of thestate is no longer focused on the regulation of the activities of private actors, but onempowering individuals to solve their own problems within their own structures, and tofacilitate and enrich direct deliberative dialogue. She refers to ‘a new conception ofdemocracy, or self-government. It is a horizontal conception of government, resting on theempirical fact of mushrooming private governance regimes’: ibid at 310.

90 Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountabil-ity of Global Government Networks’ (2004) 39 Government and Opposition 159, 162.

91 Slaughter (n 89) at 318.92 ibid at 321.93 www.bis.org/bcbs/




measures at meetings with other regulators and then rely on that agree-ment in domestic and other international contexts.94 The Committee hasdeveloped ‘sophisticated guidelines’ for capital adequacy in depositoryinstitutions, notably its 1988 Accord on International Convergence ofCapital Measurement and Capital Standards (‘Basel I’),95 which wasadopted by the members of the Basel Committee and applied to theirbanks, ‘and then promulgated by over 100 countries around the world’.Both states and commercial banks found themselves subject to the‘burdensome rules’ adopted by the Committee,96 without any possibilityof participation in the process of its adoption.

The legitimacy of the exercise of political authority by the BaselCommittee must be addressed from two perspectives: that of the statesparticipating in the governance network and other states subject to theregime. Slaughter argues that networks of government officials must beaccountable to both ‘their domestic constituents [and] the publics in thestates that they co-operate with’. Internally, regulators are accountable fortheir transnational activities in the same way they are accountable fortheir activities on the domestic level, but as participants in a globalregulatory network, ‘they must have a basic operating code that takesaccount of the rights and interests of all peoples’.97 Political legitimacy forany global regulatory regime is enhanced by the participation of all statesaffected by the regulatory issue. Regulatory networks of officials areneither effective nor legitimate if they operate ‘as members of an exclu-sive club’.98 Developing states in particular have faced pressures from themarket, the International Monetary Fund and World Bank to adopt thestandards, converting the Basel I Accord ‘from a voluntary standard-setting body to an entity with real power to impose policy on coun-tries’.99

In response to criticisms, the Basel Committee on Banking Supervisionhas begun to consult more widely in developing international capitalstandards, engaging in what Barr and Miller refer to as a relatively openprocess, akin to notice and comment rule-making. The process has beenreplicated at the domestic level, with central banks and national bankregulators opening up domestic processes of notice and comment on

94 David Zaring, ‘International Law by Other Means: the Twilight Existence of Interna-tional Financial Regulatory Organizations’ (1998) 33 Texas International Law Journal 281, 323.

95 Michael Barr and Geoffrey Miller, ‘Global Administrative Law: the View from Basel’(2006) 17 European Journal of International Law 15, 16.

96 ibid at 17.97 Slaughter (n 90) at 163.98 ibid at 170.99 Barr and Miller (n 95) at 44.




Basel standards.100 Whilst the processes leading to the adoption of Basel Iwere characterised by closed meetings with little or no transparency, theprocess in relation to ‘Basel II’,101 was more open, ‘in part as a response tofinancial institution pressure for greater transparency and in part becausesubstantive concerns with the first accord had helped to galvanize adebate over new global rules’.102 Procedural developments included theissuing of a consultative paper and an accessible public website toencourage public debate, although most contributors were large financialinstitutions, with the role of the wider public being ‘relatively muted’.103

The Basel Committee also made efforts to engage with non-participatingstates, instituting a process of national and regional central bankerconsultations among non-members.104

Public-Private Partnerships: World Commission on Dams

The World Commission on Dams (WCD), a group of independentexperts, was established in 1997 following a meeting of participants fromgovernments, the private sector, international financial institutions, civilsociety organisations and affected people concerned with the issue oflarge dams, and supported by the World Bank and the World Conserva-tion Union. Its mandate was to review the development effectiveness oflarge dams, and develop internationally acceptable criteria, guidelinesand standards for the planning, design, construction and operation ofdams. The final report, ‘Dams and Development: A New Framework forDecision-Making’, was published in November 2000. It establishes aframework for decision-making based on five core values: equity, sus-tainability, efficiency, participatory decision-making and accountability.The Report also establishes seven strategic priorities and correspondingpolicy principles, including the need to gain public acceptance for thebuilding of large dams.105

Erik Bluemel describes the Report of the WCD as a powerful source of‘soft law’.106 The aim of the Report is to structure decision-making inrelation to large dams. A number of provisions are framed in terms of

100 ibid at 17.101 For details, see Basel Committee on Banking Supervision, ‘Basel II: Revised interna-

tional capital framework’: http://www.bis.org/publ/bcbsca.htm (last visited 15 January2010).

102 Barr and Miller (n 95) at 24.103 ibid at 26.104 ibid at 27.105 World Commission on Dams, Dams and Development: A New Framework for Decision-

Making (London, Earthscan, 2000).106 Erik Bluemel, ‘Overcoming NGO Accountability Concerns in International Govern-

ance’ (2005) 31 Brooklyn Journal of International Law 139, 163–64.




(international) law. Consider, for example, Strategic Priority 1.4 (GainingPublic Acceptance): ‘Decisions on projects affecting indigenous and tribalpeoples are guided by their free, prior and informed consent achievedthrough formal and informal representative bodies.’107 The provisiondoes not reflect a generally accepted international law norm,108 certainlynot at the times of its adoption.109 To the extent that the Report framesdomestic political debate, imposes procedural requirements for develop-ing large dams, and recognises new rights for indigenous peoples andother communities, it ‘determines’ the relevant actors, and forms onepart of the complex web of global governance norms on large dams, theenvironment and human rights.

Klaus Dingwerth reports that ‘Dams and Development’ received amixed reception, with civil society groups approving the emphasis on theimpact of large dams and lack of consultation in the past, whilst industrycomplained that the Report downplayed the benefits of large dams.Governments from industrialised states welcomed the guidelines, butsome in the South felt that they were too strict. The Report has beeninfluential in framing the discourse on large dams: it is

widely considered as a new global reference point for thinking and talkingabout large dams. Even though individual policy recommendations remaincontested, the descriptive and analytical part is commonly accepted as themost solid and comprehensive assessment of the social, economic and environ-mental effects of large dams.

The focus of the debate ‘is no longer about whether or not dams are(un)desirable as such, but rather under which social, economic, ecological,and political conditions a large dam may be constructed’.110 At the domesticlevel, civil society actors articulate arguments against individual dams interms of ‘alleged non-compliance with WCD recommendations’. Thestandards are also relied upon by international organisations in theformation of policy, and a number of export credit agencies haveincluded parts of the recommendations of the Report of The WorldCommission on Dams, at least in spirit, in their policies for large dam

107 See World Commission on Dams, Dams and Development (2000) at ch 8 (emphasisadded).

108 cf Committee on the Elimination of Racial Discrimination (CERD), ‘General Recom-mendation XXIII on the Rights of Indigenous Peoples’, (adopted 18 August 1997), reprinted‘Compilation of General Comments and General Recommendations adopted by HumanRights Treaty Bodies’ (12 May 2004) UN Doc HRI/GEN/1/Rev.7, 215 para 4 (d); and theWorld Bank Operational Manual, Bank Procedures BP 4.10, ‘Indigenous Peoples’ (January2005) para 2.

109 See on this point GA Res 61/295 ‘The United Nations Declaration on the Rights ofIndigenous Peoples’ (adopted 13 September 2007) art 19.

110 Klaus Dingwerth, ‘Private Transnational Governance and the Developing World: aComparative Perspective’ (2008) International Studies Quarterly 607, 613 (emphasis in origi-nal).




projects, making it more difficult to obtain credit guarantees for politi-cally contested projects.111 The global normative political and legal frame-work for the building of large dams was (in part) established by a groupof experts chosen after consultations with interested groups, on the basisof expertise and experience, independence, and being representative ofthe diversity of stakeholders of perspectives including affected regions,communities and private and public sectors.

Private International Governance Schemes

In addition to regulatory activities by public and hybrid public-privateregimes, global governance activities are increasingly undertaken byprivate international governance regimes, such as the InternationalAccounting Standards Board (IASB), whose ‘mission is to develop, in thepublic interest, a single set of high quality, understandable and interna-tional financial reporting standards’;112 private credit rating agencies,who provide standards for establishing the creditworthiness of corpora-tions and states; the transnational commercial arbitration regime main-tained by the International Chamber of Commerce (ICC), which ‘aims tocreate a forum for experts to pool ideas and impact new policy onpractical issues relating to international arbitration, the settlement ofinternational business disputes and the legal and procedural aspects ofarbitration’;113 the International Organization for Standardization, a net-work of the national standards institutes of 157 countries, which ‘enablesa consensus to be reached on solutions that meet both the requirementsof business and the broader needs of society’;114 and ICANN, formed in1998 as a not-for-profit public-benefit corporation to promote competi-tion and develop policy on the internet’s unique identifiers.115 Theseprivate international governance regimes have been established by com-mercial actors pursuing the objectives of economic globalisation.

The role of (global) publics and international non-governmentalorganisations and other civil society actors has traditionally been one ofcampaigning and complaint, although increasingly it is shifting from thelobbying of national governments and international organisations for law

111 ibid at 614.112 www.iasb.org/Home.htm (last visited 9 January 2009).113 www.iccwbo.org/policy/arbitration/id2882/index.html (last visited 9 January 2009).114 www.iso.org/iso/about.htm (last visited 9 January 2009).115 www.icann.org/en/about/ (last visited 9 January 2009). Whilst ICANN is invariably

described as a global governance institution (given that it regulates a global public good, ieinternet domain names), it is worth observing that it has been subject to US congressionalhearings and influence, and is subject to the jurisdiction of the Californian legal code, andcourts: Michael Froomkin, ‘[email protected]: Toward a Critical Theory of Cyber-space’ (2003) 116 Harvard Law Review 749 at 846–48.




reform to the framing of global regulatory standards and attempts toembed those standards in global supply chains. Examples include theMarine Stewardship Council, which seeks to ‘transform the world’sseafood markets to a sustainable basis’;116 the Fair Labor Association, anot-for-profit organisation dedicated to ending sweatshop conditionsin factories worldwide;117 the Forest Stewardship Council, which seeksto promote the responsible management of the world’s forests;118 andthe Fair Trade Labelling Organization,119 which attempts to improvethe position of farmers and workers in the developing world throughencouraging consumers and suppliers to make informed moraldecisions.

Bernstein and Cashore refer to these as ‘non-state market driven’(NSMD) governance systems. They are ‘deliberative and adaptive govern-ance institutions designed to embed social and environmental norms in theglobal marketplace that derive authority directly from interested audi-ences, including those they seek to regulate’. Non-state market drivensystems use global supply chains to recognise, track and label products andservices from environmentally and socially responsible businesses;120 theobjective is to reconfigure the market in these goods, and so consequently tochange the attitude and activities of economic actors.121 Given that NSMDsystems both promulgate standards of legitimate behaviour and seek tomonitor compliance, it is important that they seek political legitimacy.122

Bernstein and Cashore point to a developing consensus on the need to‘democratize’ global governance, concluding that the inclusive decision-making processes of many NSMD systems may indicate the possibilities ofa democratic form of international governance by non-state actors. Thefocus would be on ‘norm generation and community building’, and theinclusion of expert and interested voices in the processes of deliberationleading to the introduction of agreed norms. A key mechanism would be aforum where expert knowledge could be presented, criticised, and justi-fied.123 Decision-making processes would provide forums for exchanges ofexpert information and the development of best practices. A ‘learningenvironment’ would be developed in which ‘stakeholders can “build com-munity” that taps into shared understandings of legitimacy among partici-pants’. Understandings of legitimacy would also depend on broader

116 www.msc.org/about-us (last visited 9 January 2009).117 www.fairlabor.org/ (last visited 9 January 2009).118 www.fsc.org/ (last visited 3 September 2008).119 www.fairtrade.net/ (last visited 3 September 2008).120 Steven Bernstein and Benjamin Cashore, ‘Can Non-State Global Governance be

Legitimate? An Analytical Framework’ (2007) 1 Regulation and Governance 347, 348.121 ibid at 350.122 ibid at 351.123 ibid at 362.




understandings of legitimacy in global governance, including fairness: ‘asense that weaker actors [should] have a reasonable ability to influenceoutcomes and that mechanisms are in place to ensure, for all actors, a senseof ownership of decisions that affect them’.124

GOVERNANCE BY NON-STATE ACTORS

The case studies illustrate the diverse nature of global regulation. TheSecurity Council is a formally constituted institution whose membershipdoes not extend to all states subject to its political authority; the BaselCommittee provides an example of executive coordination by advanceddemocracies that has developed a global regulatory role; the influence ofthe Report of the World Commission on Dams suggests that a single adhoc instance of ‘regulation’ can be effective in establishing global ‘norms’,and that participation may be open to both public and private actors;whilst the literature on non-state market-driven mechanism highlightsthe possibilities of private (non-governmental) actors bypassing politicalprocesses and exercising regulatory functions through global supplychains. The studies highlight the facts that attempts by non-state actors toregulate are often (although not always) framed in terms of law; thatnon-state actors do not operate with the (sovereign) consent of all statessubject to their global law norms; and a concern in relation to the lack ofdemocratic legitimacy for the exercise of international governance func-tions.

Following the Westphalian settlement, the idea of law was dividedbetween state law, which operated in domestic societies, and interna-tional law, which operated between states. Both forms of law dependedfor their validity on an expression of sovereign will. According to thepositivist analysis, it is meaningless to refer to an idea of law notvalidated by an expression of sovereignty. The exercise of sovereignauthority may have become more complex, but law ultimately owes itsvalidity to sovereign will. The authority of the ‘laws’ of the UN andEuropean Union is provided by the relevant constitutive treaty. Theanalysis is problematic, not least because, in many cases, amendments tothe powers of international organisations do not require the consent of allstates parties,125 and few international organisations rely on the principle

124 ibid at 363.125 See, for example, art 108 of the UN Charter: ‘Amendments to the present Charter

shall come into force for all Members of the United Nations when they have been adoptedby a vote of two thirds of the members of the General Assembly and ratified in accordancewith their respective constitutional processes by two thirds of the Members of the UnitedNations, including all the permanent members of the Security Council.’ Article 109 outlinesthe procedure.




of consensus in the process of international law-making law. Accordingto Hans Kelsen, the application of majority rule or the exercise oflegislative authority without the participation of all states is not incom-patible with the sovereignty of the state: ‘Only at [the moment ofagreement] is concordance of the wills of the contracting States necessaryin order to create the duties and rights established by the treaty.’126 Fromthe traditional perspective of sovereignty, the exercise of political author-ity by a non-state actor is legitimate to the extent it is provided by itsexpress or implied powers,127 following a contractual model of politicallegitimacy. It is the principle argument for accepting the legislativeauthority of the UN Security Council by reference to article 103 of the UNCharter.

Any analysis of the (democratic) legitimacy for the exercise of politicalauthority by non-state actors by reference to a constitutive agreement isultimately unconvincing. First, not all non-state actors are formallyconstituted by states parties in a formal treaty. Some are informalgroupings (the Basel Committee on Banking Standards), whilst others‘self-constitute’ (private governance regimes). Secondly, few internationalorganisations restrict participation to functioning democracies. The mostsignificant global regulators, the UN, World Bank and InternationalMonetary Fund do not restrict membership to democratic states. Thirdly,it cannot plausibly be argued that a sovereign and democratic state‘consents’ ipso jure to all of the global regulatory activities of the manyinternational organisations and institutions of which it is a member.

Increasingly it is accepted that mere membership of an internationalorganisation cannot provide the basis for subjecting the state to all of theregulatory law norms adopted by an organisation. Christian Tomuschatrefers to the ‘fictitious’ character of legitimisation by consent by member-ship of the organisation128 and calls for ‘compensation by a right ofparticipation’: the loss of absolute sovereign rights through membershipof a treaty regime requires that the state is party to any negotiations anddeliberations on emerging normative commitments.129 Phillip Trimbleargues that the accountability of international organisations ‘requires

126 Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for Interna-tional Organization’ (1944) 53 Yale Law Journal 207, 211.

127 See Legality of the Use by a State of Nuclear Weapons in Armed Conflict (AdvisoryOpinion) [1996] ICJ Rep 66 [25]: ‘The powers conferred on international organizations arenormally the subject of an express statement in their constituent instruments. Nevertheless,the necessities of international life may point to the need for organizations, in order toachieve their objectives, to possess subsidiary powers which are not expressly provided forin the basic instruments which govern their activities. It is generally accepted thatinternational organizations can exercise such powers, known as “implied” powers.’

128 Christian Tomuschat, ‘Obligations Arising for States without or against their Will’(1993) 241 Recueil de cours 195, 326.

129 ibid at 328.




popular review of decisions that are reached’, and that this means that‘the people affected by an international decision, or their democraticallyelected governments, must be able to reject the decision, and they mustbe able to do so without being punished for their decision.’ What he hasin mind is the ‘opt-out’ provisions of international law-making mecha-nism, such as article V of the International Convention for the Regulationof Whaling130 which

is a significant element of democracy and a significant protection of nationalsovereignty. A cost-free ‘opt-out’ feature of an international regulatory regimecould end up destroying that regime, but that result would be better than onedestroying democracy.131

Even where formally constituted by international agreement, interna-tional organisations and institutions do not remain ‘creatures’ of themultilateral treaty regime.132 Over time, they develop and pursue theirown agendas. International organisations are not ‘simply passive serv-ants of states. They are political actors in their own right.’133 On aday-to-day basis, international organisations and institutions operate in away that is largely removed from the original source of political legiti-macy (the consent of states parties) and in accordance with their ownpriorities and constitutional norms, principles and procedures. CatherineBrölmann refers to the idea of ‘institutional autonomy, or “independentwill”’.134 In its 1980 Advisory Opinion on Interpretation of the Agreement of25 March 1951 Between the WHO and Egypt, the ICJ concluded thatinternational organisations ‘are subjects of international law and, as such,are bound by any obligations incumbent upon them under general rulesof international law, under their constitutions or under international agree-ments to which they are a party’.135 The judgment affirms that certaininternational organisations can be regarded as autonomous actors thatoperate in accordance with their own constitutional norms. The positionis confirmed in the Court’s judgment in Legality of the Use by a State ofNuclear Weapons in Armed Conflict:

But the constituent instruments of international organizations are also treatiesof a particular type; their object is to create new subjects of law endowed with

130 (1946) 161 UNTS 72.131 Phillip Trimble, ‘Globalization, International Institutions, and the Erosion of National

Sovereignty and Democracy’ (1997) 95 Michigan Law Review 1944, 1968.132 Jonathan Charney, ‘Universal International Law’ (1993) 87 American Journal of Interna-

tional Law 529, 529.133 Michael Barnett and Martha Finnemore, Rules for the World: International Organizations

in Global Politics (Ithaca New York, Cornell University Press, 2004) 12.134 Catherine Brölmann, The Institutional Veil in Public International Law (Oxford, Hart

Publishing, 2007) 21.135 Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt (Advisory

Opinion) [1980) ICJ Rep 73 [37] (emphasis added).




a certain autonomy, to which the parties entrust the task of realizing commongoals. Such treaties can raise specific problems of interpretation owing, interalia, to their character which is conventional and at the same time institutional;the very nature of the organization created, the objectives which have beenassigned to it by its founders, the imperatives associated with the effectiveperformance of its functions, as well as its own practice, are all elements whichmay deserve special attention when the time comes to interpret these constitu-ent treaties.136

The Vienna Convention on the Law of Treaties between States andInternational Organizations or between International Organizations con-firms the view that a number of international organisations may beautonomous actors within the international community.137 The preamblerecognises that international organisations have the capacity to concludetreaties in accordance with their constitutive instruments, and the possi-bility and existence of international law agreements between (largely)autonomous non-state actors on the basis of equality.138 In many respectsthe Convention regards international organisations as political entitiesanalogous to states. Consider, for example, article 27, which provides thata state may not invoke the provisions of its internal law as justificationfor its failure to perform a treaty obligation, and, likewise, that aninternational organisation may not invoke the rules of the organisation asjustification.139 Article 46 re-enforces the point: internal ‘laws’ (states) and‘rules’ (international organisations) vitiate consent only in circumstancesin which consent is expressed in violation of an internal regulatory norm(‘law’ or ‘rule’, as appropriate), and where that violation was manifest,and concerned an internal rule of fundamental importance.140

The political will of an autonomous international organisation emergesfrom its own internal ‘constitutional’ structures. Where the constitutiveinstrument is framed in terms of law, the superiority of international lawover domestic law (from the perspective of international law) constitutesthe order as an autonomous legal regime within the international lawsystem, and, unless provided to the contrary, constitutes the regime as‘self-contained’. The clearest expression of this can be found in article 103of the UN Charter: ‘In the event of a conflict between the obligations ofthe Members of the United Nations under the present Charter and theirobligations under any other international agreement, their obligations

136 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion,ICJ Rep 1996, 66 [19].

137 See Vienna Convention on the Law of Treaties between States and InternationalOrganizations or between International Organizations (1986) UN Doc A/CONF.129/15preamble and arts 53 and 64.

138 ibid art 26 (pacta sunt servanda).139 ibid art 27.140 ibid art 46.




under the present Charter shall prevail.’ This is a supremacy clause: theCharter asserts the supremacy of the law of the UN over other interna-tional law orders. Similar clauses can also be found in other internationallaw instruments.141 The supremacy of an international law order can alsobe asserted in the judgments of courts established as part of the interna-tional governance system; consider for example the European Court ofJustice in NV Algemene Transporten Expeditie Onderneming van Gend enLoos v Netherlands Inland Revenue Administration:

The community constitutes a new legal order of international law for thebenefit of which the states have limited their sovereign rights, albeit withinlimited fields, and the subjects of which comprise not only member states butalso their nationals.142

Once it is accepted that international organisations cannot be regarded asagents of a collective authorising principle (the states parties to theconstitutive agreement), the establishment (or emergence) of an autono-mous global regulatory actor cannot be justified by reference to theoriginal delegation of authority (with arguments focused the scope ofagency) and the accountability of international organisations ‘cannot beunderstood as a matter of strengthening the incentives of rulemakingagents to implement the plans of an authorizing principal’.143 It is notsimply a matter of the citizens of democratic states engaging in a processof opinion-formation at the domestic level with the expectation that thesettled opinion will be accurately reflected and acted upon in globalsettings. There is a need to make sense of the normative regimesemerging in global governance and the relevance of international lawand (international) public law concepts for the exercise of (legitimate)authority.

The (‘Westphalian’) world of state and international law is supple-mented by a plurality of normative assertions by international publicauthorities, including international organisations and institutions,public-private partnerships and purely private organisation, all of whichassert a right to regulate, and in doing so to limit the right of the peopleof a democratic state to decide politically decidable issues. Whilst refer-ence is made to ideas of global ‘governance’ and ‘regulation’ by non-stateactors, there is an absence in much of the literature of an analytical

141 See, for example, art 22(1) of the Convention on Biological Diversity 1760 UNTS 79:‘The provisions of this Convention shall not affect the rights and obligations of anyContracting Party deriving from any existing international agreement, except where theexercise of those rights and obligations would cause a serious damage or threat to biologicaldiversity.’

142 Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos vNetherlands Inland Revenue Administration [1963] ECR 1 (Judgment 5 February 1963).

143 Joshua Cohen and Charles Sabel, ‘Global Democracy?’ (2006) 37 New York UniversityJournal of International Law and Policy 763, 765.




distinction between global governance through law and other forms ofnormative regulation. The importance of the distinction between law andnon-law norms lies in the authority of ‘law’, what HLA Hart refers to asthe ‘internal aspect’ of (legal) norms, which requires a ‘critical reflectiveattitude to certain patterns of behaviour as a common standard’, leadingto ‘criticism (including self-criticism), demands for conformity, and inacknowledgements that such criticisms and demands are justified, all ofwhich find their characteristic expression in the normative terminologyof “ought”, “must”, and “should”, “right” and “wrong”’.144 ChristianReus-Smit questions why states would choose to incur legal obligationsin some contexts and not in others, concluding that the answer must lie,in part, in the legitimacy that states attach to international law;145

international law agreements create both legal and moral obligations forcompliance.146 Not all attempts at social control in global governance areframed in terms of law, but it is clear is that ‘legalized regimes … operatedifferently from non-legalized regimes’.147 There are distinctive methodsfor the interpretation of law norms, which emphasise the importance of aliteral understanding of words and phrases, the importance of prec-edents, and the application of reason and rhetoric in argumentation, thedesire for coherence between legal rules (ie for understanding law in thecontext of a system of law), etc. Absent from much of the analysis in theliterature on the legitimate (or otherwise) exercise of political authority inglobal governance is a concept of (international) law.

144 HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) 57.145 Christian Reus-Smit, ‘Politics and International Legal Obligation’ (2003) European

Journal of International Relations 591, 605.146 Martti Koskenniemi refers to international law ‘as a kind of secular faith’. Injustices,

whether military interventions or human rights abuses, are often followed by an appeal tointernational law, which appears ‘less as this rule or that institution than as a placeholderfor the vocabularies of justice and goodness, solidarity, responsibility and – faith’: MarttiKoskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007)70 Modern Law Review 1, 30.

147 Anne-Marie Slaughter, ‘International Law and International Relations Theory: aProspectus’ in Eyal Benvenisti and Moshe Hirsch (eds), The Impact of International Law onInternational Cooperation: Theoretical Perspectives (Cambridge, Cambridge University Press,2004) 16, 41–43. ‘What distinguishes legalized regimes is their potential for setting inmotion a distinctive dynamic built on precedent, in which decisions on a small number ofspecific disputes create law that may govern by analogy a vast array of future practices[;]transnational dispute resolution increases the potential for such dynamics of precedent. Thegreater independence of judges, wider access of litigants, and greater potential for legalcompliance insulates judges, thereby allowing them to develop legal precedent over time’:Robert Keohane, Andrew Moravcsik and Anne-Marie Slaughter, ‘Legalized Dispute Reso-lution: Interstate and Transnational’ (2000) 54 International Organization 457, 479.




7

A Concept of (International) Law

THE PREVIOUS CHAPTER demonstrated the different ways inwhich global regulatory norms may be established. An increase inglobal regulation does not necessarily mean an increase in interna-

tional law or increased role for (public international) lawyers, who fulfil adistinctive role in world society. The function of lawyers is defined byreference to the idea of law, and not all regulatory practices that limit thechoices available to actors, or determine the scope of self-determination,are framed in terms of law. The objective of this chapter is to develop aconcept of law that does not rely on the idea of law as institutionalisednorm enforcement (by the institutions of ‘government’), but which canexplain the authority of law, including state law, international law, andnew forms of global regulatory governance framed in terms of law. Thefollowing sections evaluate the important contributions of Niklas Luh-mann and Gunther Teubner, before examining Brian Tamanaha’s thesisthat law is whatever people identify and treat through their socialpractices as law. Finding the absence of any idea of authority in theconcept of law problematic, the work follows Joseph Raz in outlining anidea of authority as the ability of one actor to change the normativesituation of other actors to develop an understanding of law as a systemof communications framed in terms of law, ie coded legal/illegal, issuedby an authority to subjects.

THE CONCEPT OF (STATE) LAW

The concept of law developed by HLA Hart, which has proved highlyinfluential in the identification of systems of law (and concerns aroundthe ontological status of international law as ‘law’), may provide the basisfor evaluating the claims of global regulatory orders to the descriptiveterminology of law (leading to new ways of evaluating the exercise ofregulatory authority in terms of public law). Law officials act in accord-ance with a rule of recognition, or basic norm, which provides validityfor all norms in the legal order and constitutes the legal order as a single

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system of law.1 The application of the analysis and concept of lawdeveloped in relation to state law systems leads to doubts about thestatus of international law as law (properly so-called). Notwithstandingefforts to suggest that there is a single rule of recognition in internationallaw (pacta sunt servanda or other expression of sovereign will, or thatstates ought to behave as they have customarily behaved), Hart con-cludes that the rules of international law do not share a single rule ofrecognition. In all societies, members may view rules as binding (rules ofetiquette, for example) without the need to identify a basic norm fromwhich all other norms owe their validity: ‘Such rules do not form asystem but a mere set [of rules].’2 In relation to international law, it is notpossible to identify a basic norm or secondary rule of recognition fromwhich all other international law norms derive their validity. That is notto suggest that the rules are not binding, only that it is not meaningful torefer to the idea of international law as a legal system. The norms ofinternational law are similar to those in a ‘simpler form of society’:

In the simpler form of society, we must wait and see whether a rule getsaccepted as a rule or not; in a system with a basic rule of recognition we cansay before a rule is actually made, that it will be valid if it conforms to therequirements of a rule of recognition.3

In relation to the rules that operate between states

there is no basic rule providing general criteria of validity for the rules ofinternational law, and the rules which are in fact operative constitute not asystem but a set of rules, among which are the rules providing for the bindingforce of treaties.4

Observing the increased use of multilateral treaties, Hart comments thata general recognition that a multilateral treaty can bind third partieswould involve the acceptance that

such treaties would in fact be legislative enactments and international lawwould have distinct criteria of validity for its rules. A basic rule of recognitioncould then be formulated … Perhaps international law is at present in a stageof transition towards acceptance of this and other forms which would bring itnearer the structure to a municipal system.5

1 HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) 233.2 ibid at 234.3 ibid at 235 (emphasis in original).4 ibid at 236.5 id.

278 A Concept of (International) Law



It is in this context that debates around the constitutionalisation ofinternational law become important, in that they emphasise the develop-ment of international law norms that subject the sovereign will of statesto ‘higher’ forms of international law.

The existence of primary norms of obligation is not sufficient todemonstrate the existence of a system of law. In addition to primary rulesof obligation, there must be secondary rules of recognition, change andadjudication ‘that specify the ways in which the primary rules may beconclusively ascertained, introduced, eliminated, varied, and the fact oftheir violation conclusively determined’.6 The existence of secondaryrules distinguishes legal systems from other systems of control. Thesecondary rules must be acknowledged by the officials of the legalsystem: legislators when they introduce laws in accordance with the rulesthat empower them to do so; courts when they identify and apply legalnorms; law experts when they provide advice in accordance with recog-nised legal norms. The citizen ‘manifests his acceptance largely byacquiescence in the results of these official operations’.7 To make explicitwhat Hart left implicit: ‘the key to the existence of a legal system is thatprivate citizens and legal officials conventionally act as if the products ofcertain persons – whom they treat as “legal officials” – are “law”’. Thosesystems of primary and secondary rules administered by legal officialsare ‘legal’ systems. Systems of primary and secondary rules not adminis-tered by legal officials ‘may be institutionalized normative systems, butthey are not “legal”’.8

Benedict Kingsbury draws on and develops Hart’s analytical conceptin relation to the global administrative ‘law’ principles of review, reason-giving and publicity/transparency, with a particular focus on the ideasrelating to law as a social practice, the importance of sources of law andthe rule of recognition. In relation to the ‘social fact’ conception, onecondition for the existence of law is the ‘internal attitudes actually heldby leading participants and by those dealing with and critically evaluat-ing them and their practices’. Law further requires agreement on thevalid sources of law norms, which in the case of global administrativelaw are provided by recognised sources of (international and state) law,including treaties, custom, general principles of law and domestic lawnorms (note the link to ‘Westphalian’ expressions of sovereignty).9Finally, whilst it is not possible to identify a single rule of recognition

6 ibid at 94.7 ibid at 61.8 Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford, Oxford Univer-

sity Press, 2001) 142.9 Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20

European Journal of International Law 23, 29.

The Concept of (State) Law 279



within global administrative law, it might be possible to identify ‘differ-ent rules of recognition within different social-institutional-sectoralgroupings in specific practice areas of global administrative law’.10

Kingsbury seeks to extend the analytical concept of law to identifyqualities immanent in public law, ie law that frames and regulates publicauthority (including national, transnational, and international law).Those qualities are the principle of legality, that is the channelling andorganising of power to constrain powerful actors;11 the principle ofrationality, which requires that decision-makers give reasons for theirdecisions; the requirement of a relationship of proportionality betweenmeans and ends; the rule of law (however defined); and the protection ofbasic human rights, which is ‘almost intrinsic (or natural) to a modernpublic legal system’.12 Kingsbury concludes that global administrativelaw is made by public entities that operate ‘under their own constitu-tions, adhering to their own public law, and oriented toward publicnessas a requirement of law’.13 The idea of a public entity includes, but is notrestricted to states; it also includes ‘global public entities’, defined byreference to the relevant entity’s legal and political arrangements, ‘whichmay derive from national law, inter-state agreement, self-constitution, ordelegation by other entities’.14 Both state and non-state actors can beregarded as public law entities, with global administrative law principlesapplying to all exercises of public authority. There is no requirement thatthe exercise of public law be linked to an expression of sovereign will.

Kingsbury is correct in emphasising the importance of applying ananalytical concept of law to global governance. The difficulty is thereliance on a concept developed in the context of the state law system,based (ultimately) on coercive, institutionalised norm enforcement. Therelevance of the concept and ideal of state law to international law is notevident, and attempts to apply concepts developed at the level of thestate have generally proved unsatisfactory.

AUTOPOIESIS: LAW AS A CLOSED SYSTEM OF COMMUNICATION

In A Sociological Theory of Law, Niklas Luhmann defines norms as ‘coun-terfactually stabilised behavioural expectations’.15 Social behaviour in ahighly complex and contingent world requires reciprocal behavioural

10 ibid at 30.11 ibid at 32.12 ibid at 33.13 ibid at 55.14 ibid at 56.15 Niklas Luhmann, A Sociological Theory of Law, trans by Elizabeth King and Martin

Albrow (London, Routledge & Kegan Paul, 1985) 33 (emphasis in original).




expectations structured in terms of the avoidance of disappointments.Increased social complexity ‘presumes a differentiation between cogni-tive (prepared to learn) and normative expectations, as well as theavailability of successful mechanisms for the relief of disappointment’.16

The idea of ‘law’ in social systems is concerned with ‘congruently general-ised normative behavioural expectations’.17 Law is not primarily a coerciveorder, ‘but rather a facilitation of expectation’. In developed societies, thelegitimacy of a norm is demonstrated ‘by the supplementary normationof disappointment relief by sanctions or by the successful realisation ofexpectation’.18 The functional analysis leads to the conclusion that ‘thereis law in every society’. As the complexity of society increases there is agreater need for ‘congruently generalised normative behavioural expec-tations’. The function of law is to facilitate complicated, highly precondi-tioned action, and it can only achieve this ‘by congruent generalisation ofcontingent premises of action.’ The idea of law relates to ‘behaviouralexpectations… It relates to the expectation of other people’s behaviour.’19

Law is defined as the ‘structure of a social system which depends upon thecongruent generalisation of normative behavioural expectations’.20 Law isconcerned with establishing norms that stabilise behaviour expectations.Its function is to facilitate the complex interactions of actors in societythrough the establishment of the congruent generalisation of contingentpremises of action. Given that law fulfils a necessary function in society itfollows that ‘in every meaningfully constituted society[,] [it] must there-fore always exist’.21

In complex societies, law is the product of institutionalised processesfor the production of normative expectations, but law is not legitimatedthrough the adoption of democratic procedures or reliant on ‘[d]emo-cratically learning politics’. The ‘learning situation’ of those engaged inpolitical law-making is different from those affected by politics, ‘whohave to adapt themselves to a given decision, whether they be happy ordisappointed’. It is necessary to introduce arrangements that ‘facilitatethe assumption that those who are affected by decisions have learned;that is, that they have taken over the decision as premises of their futureexpectation and behaviour’. The institutional aspect of legitimacy isprovided by ‘the assumption of acceptance[:] those decisions are legitimatewhere one can assume that any third parties expect normatively that thedirectly affected persons cognitively prepare themselves for what the

16 ibid at 73.17 ibid at 77 (emphasis in original).18 ibid at 78 (emphasis in original).19 ibid at 81 (emphasis in original).20 ibid at 82 (emphasis in original).21 ibid at 83.

Autopoiesis: Law as a Closed System of Communication 281



decision-makers communicate as normative expectations’.22 The legiti-macy of law norms is provided by the acceptance of those subject to thelaw that they will organise future behaviour in accordance with legalnorms in the expectation that other actors will do the same.

Law serves a necessary function in complex societies, enabling subjectsto organise their behaviour in accordance with normative expectations inthe (reasonable) assumption that others will do the same. Law is createdin ‘local political systems and directed by their decision-making proce-dures’. Law serves to facilitate complicated, highly preconditioned actionin domestic societies. The analysis cannot however be applied to theprocesses of global governance, with Luhmann concluding that ‘a situa-tion is developing in which those problems which can only be solved atthe level of global society… can therefore no longer be resolved in the form oflaw’.23 The increasing specialisation and functional differentiation of theworld social system results in a situation in which politics is incapable of‘thematising the worldwide consequential problems of functional differ-entiation, since it is itself differentiated and functionally specialised’. Inthe absence of a global state, it is not possible for the global society todevelop the characteristics of a social body, or ‘collectivity’, capable ofaction at the international level.24 The ‘stabilising [of] highly contingentexpectations’ occurs in ‘consolidated political systems’. The absence ofthe possibility of a global state precludes the possibility of ‘legal-politicalnorming’.25 The ‘political incapacity’ of international law-making inglobal society is the problem, not the absence of politics or democracy.26

Luhmann questions whether the idea of law requires some form ofre-evaluation as ‘global society consolidates itself and gives primacy tothe cognitive style of human contact’. Law might be understood as alearning process: global ‘law’ regulations would not operate as a form ofa ‘supra-positive law’, but would establish ‘stimuli for learning, perhapsexercising pressures toward learning and drawing up a certain non-arbitrariness of problem solutions’.27 The meaning of law would need tochange ‘toward in-built learning’. The previous understanding that oper-ated on the basis of an either/or validity would not be appropriate ‘fordetecting the sublime shifts in the way in which law fulfils its functionand is experienced as meaningful’.28 The new concept of law would takethe form of

22 ibid at 201 (emphasis in original).23 ibid at 256 (emphasis added).24 ibid at 259.25 ibid at 260.26 ibid at 261.27 ibid at 262.28 ibid at 263.




normed models of behaviour which have been drafted as solutions to recog-nised problems, are legislated upon, tried and changed according to the rulesof experience. Normativity would then only have the function of securing theconstancy of expectation as long and is as far as it appears meaningful.

Luhmann concludes that ‘whether law can therefore be adapted to theconstitution and dynamics of a unified societal system which encom-passes the globe is an open question’.29

Following Humberto Matuana, Luhmann refers to the idea of autopoi-etic systems: ‘[S]elf-referential systems which themselves produce every typeof unity that they require and employ[;] they themselves produce anddelimit the operative unity of their elements.’30 The legal system is a‘normatively closed system’; it produces its own elements ‘as legally rel-evant units by the fact that it lends normative quality precisely with theaid of such elements’. Elements within the legal system are given a‘special status that is solely relevant for the legal system on the basis ofthe normative context in which they function as elements upon whichothers depend’.31 The validity of a legal order is ‘nothing other than theself-reference of law, the continuity of reproduction from case to casewith a view to the continuity of reproduction from case to case’.32 In Lawas a Social System, Luhmann develops an argument that law is a system ofcommunications identified through its use of the binary coding legal/illegal. From the perspective of law, impugned conduct is either ‘legal’ orillegal’ or some equivalent (judgmental) terminology, as opposed, forexample, to ‘unwise’ or ‘not in accordance with best practice’. The centralinsight of autopoiesis is that law, politics, and other disciplines, such asscience, economics, etc, are closed systems of communications thatconstruct their own boundaries, in the case of law, through the operationof the binary distinctions between norms and facts and legal/illegal.33

Whilst law is a sub-system of the social system (society is the environ-ment that makes the ‘self-production of law possible and, moreover,

29 ibid at 264.30 ibid at 281 (emphasis in original).31 ibid at 283.32 ibid at 284.33 Niklas Luhmann, Law as a Social System (trans Klaus Ziegert) (Oxford, Oxford

University Press, 2004) 58. Gunther Teubner observes the problem of self-reference in thetheory developed by Habermas in Between Facts and Norms, in that ‘the procedures ofdiscourse can be justified only by discourse whose procedures in turn have to be justifiedby discourse. And in order to avoid infinite regression or circularity, Habermas resorts tocommunicative transcendentalism’: Gunther Teubner, ‘How the Law Thinks: Toward aConstructivist Epistemology of Law’ (1989) 23 Law and Society Review 727, 734 (referencesomitted). By contrast, Luhmann’s theory of autopoiesis makes productive use of the‘paradoxes of self-reference’, which ‘is not a flaw in our intellectual reconstruction ofdiscourse that we have to avoid at all costs, but is its very reality that we cannot avoid atall’: ibid at 736.




tolerates it’), law is properly regarded as an ‘autopoietic, self-distinguishing system… [that] produces by itself all the distinctions andconcepts which it uses’.34 This is not to suggest that law is immune fromdevelopments and insights in science and political thought and action.Law remains open to, and influenced by, other forms of social communi-cations, with legal constructs exposed to a test of ‘social coherence’ withthe constructs of other discourses in society, particularly those of sci-ence.35

The positivist analysis of the validity of law norms focuses on thesources of law, but fails to explain why certain sources should beregarded as authoritative. Luhmann observes that once a systembecomes self-referentially closed, ‘[o]ne no longer asks: what is valid lawbased on the corresponding sources of law? Instead the question is now:how does the system do what it does?’36 The focus of analytical enquiryis not the sources of law, but the identification of systems of law. Once a‘legal’ system is established, its ‘norms’ can be regarded as valid ‘law’norms. The requirements for the identification of a legal system are‘functional specification of law’ (ie a focus on a specific problem ofsociety) and a binary coding of the system through application of apositive value (‘legal’) and negative value (‘illegal’). If law officials wantto know whether a communication belongs to the legal system, theymust consider ‘whether or not there is an attribution to law, that is,whether or not the domain of legal coding is concerned’.37 Law is asystem of communications framed in terms of law; the autonomy of alegal system is a consequence of its operative closure.38 A legal system isidentified from ‘second-order observations’ of the application of thebinary distinction in repeat performances of communication that refer-ence the communicative operations of law, ie second-order observationsattest to the operations of the binary distinction framed in terms of law.Ad hoc invocations of legal terminology are insufficient to demonstratethe existence of a system of law, only if the second-order observations‘refer recursively to each other (and can pretend that this has always beenthe case) can the legal system tighten and become operatively closed’.39

The function of law in society is the stabilising of normative expecta-tions in the face of an unorganised growth of normative expectations(conventions, customs, morals, etc), and the selection of those normativeexpectations that are worth protecting. The existence of a legal order

34 ibid at 70.35 ibid at 93.36 ibid at 451.37 ibid.38 ibid at 95.39 ibid at 102.




allows actors to rely on an expectation that certain causes of action willbe followed (or not followed) and organise their affairs accordingly. Thefunction of sanctions is to reinforce these expectations.40 Law must be‘sufficiently specific, so that it is possible to return to it and repeat,condense, or expand on it[,] [and] law must have a sufficient chance ofimplementation because otherwise one would resign oneself to acceptingthe facts and learn from them.’41 Formal dispute resolution bodies areparticularly important in allowing for the operative closure of the legalsystem, which must provide ‘sufficiently reliable consistency’ in itsdecision-making in order to function as ‘unity’.42 Gunther Teubnerobserves that the existence of norms marked by the binary code legal/illegal is not sufficient to demonstrate the existence of a legal system:

what is decisive is the institutionalisation of processes of secondary rule-making. Autonomous law (with or without a state) only exists when institu-tions have been established which systematically assess all first orderobservations that use the code legal/illegal by means of second order observa-tions on the basis of the code of law.43

The possibility of formal dispute resolution allows for the developmentof legal arguments and determination of the content of law norms thatother actors can rely on to structure their affairs. On this understanding, aglobal governance regime would be regarded as a system of law onlywhere a form of dispute resolution existed, and ‘judgments’ published inan accessible public space (ie the internet), to be referred to in otherdisputes.44 This would guarantee legal certainty, by treating like casesalike, and enable the development of a ‘seamless web’ of law, wherebyeach decision ‘has to expressly integrate itself into the continuum of otherdecisions’.45 In the context of the new lex mercatoria, Calliess and Rennerobserve that instances of adjudication can be regarded ‘as performativespeech acts, that literally “talk into existence” lex mercatoria’. They gaintheir ‘performative quality only by the “linkage of episodes” that espe-cially the doctrine of precedent provides for’. Given the inchoate practiceof precedent and stare decisis in commercial arbitration and absence of

40 ibid at 152.41 ibid at 137.42 ibid at 107.43 Gunther Teubner and Peter Korth, ‘Two Kinds of Legal Pluralism: Collision of Laws

in the Double Fragmentation of World Society’ (8 June 2009) in Margaret Young (ed), RegimeInteraction in International Law: Theoretical and Practical Challenges (SSRN) 10.

44 Gralf-Peter Calliess and Moritz Renner, ‘From Soft Law to Hard Code: the Juridifica-tion of Global Governance’ (SSRN) 13. See also Gralf-Peter Calliess and Moritz Renne,‘Between Law and Social Norms: The Evolution Of Global Governance’ (2009) 22 Ratio Juris260.

45 ibid at 23.




institutionalised court hierarchy, however, it is difficult to conclude thatan autonomous legal system of lex mercatoria has emerged.46

In Law as a Social System, Luhmann is more open to the possibility ofthe ‘legal-political norming’ of global society, concluding that a recursivenetwork of communications does exist.47 There is a ‘worldwide func-tional system, in which one can distinguish legal issues from all otherissues’. There is no doubt that the global society has a legal order, even inthe absence of centralised legislation and decision-making.48 A notabledevelopment is the attention paid to violations of human rights, withglobal public debate around human suffering framed in terms of interna-tional human rights norms with concern focused on ‘particularly severe’violations of human rights (defined by reference to the idea of humandignity), involving officially sanctioned disappearances, deportations,expulsions, killings, arrests and torture.49

GLOBAL BUKOWINA

Teubner follows Luhmann in regarding law as an autonomous epistemicsubject that constructs a social reality of its own.50 All social discoursesare ‘autopoietic systems [that] recursively produce their own elementsfrom the network of their elements’. They are founded on ‘self-referentiality’, finding justification in their own circularity.51 This is aradicalised version of the social construction of reality, given that ‘[s]ocialautopoiesis is exclusively based on communication’.52 Law ‘createsworlds of meaning’, constructs its own sense of reality, and definesnormative expectations: it is ‘communication and nothing but communi-cation’.53 The world of law is not populated by actual persons, but bycharacters — plaintiffs, defendants, judges, legislators, parties to a con-tract, corporations, the state, etc — that are ‘an internal invention of thelegal process’. ‘[T]he “persons” the law as a social process deals with arenot real flesh-and-blood people[.] They are mere constructs, semanticartifacts produced by the legal discourse itself.’54 The autonomy of lawresults from its separateness from other social discourses, its ability toconstruct legal structures and norms, and construct realities of its own

46 ibid, at 24.47 ibid at 480.48 ibid at 481.49 ibid at 485–86.50 Teubner (n 33) at 730.51 ibid at 736.52 ibid at 737.53 ibid at 739.54 ibid at 741.




distinct from other social disciplines, such as science and politics;55

although law remains open to and influenced by these other socialdiscourses, notably those of science.56

In a subsequent article, Teubner and Fischer-Lescano develop the ideaof law as an autonomous epistemic subject in the context of polycentricglobalisation, which has resulted from a shift in the locus of law-makingaway from the territorial state and fact that global regulation has frag-mented on sectoral grounds. Legal regimes have emerged in particularsectors, or ‘social spheres’, such as markets, science, culture, technology,health, the military, transport, tourism, and sport, as professional com-munities juridify their specialised and technical norms in legal regimes,‘each of whose current developmental logic has today carved out anautonomous global system’. Through their own operative closure, thesefunctional systems create a space within which they can operate autono-mously, as long as they are tolerated by the wider social sphere, inaccordance with ‘their own rationality without regard to other socialsystems or, indeed, regard for their natural or human environment’.57 Asituation of global legal pluralism is identified, in which the ‘nationaldifferentiation’ of the state law system is ‘overlain by sectoral fragmenta-tion’.58 The systems of state and international law are complemented byautonomous law orders that emerge from the sectoral interests in worldsociety: lex mercatoria, lex digitalis, lex sportiva, lex constructionis, etc.International organisations and other regulatory regimes establish them-selves as autonomous legal orders through the generation of highlyspecialised primary norms and (secondary) norms on law-making, law-recognition and application of legal sanctions.59 Law is no longer definedexclusively by reference to expressions of (‘Westphalian’) sovereign will,ie in terms of state and international law, and the focus is no longer‘political law-making’ by states and international organisations. In theidentification of global law norms, the centre shifts from legislatures tocourts, with political legislation, the structural coupling of law withpolitics, ‘[losing] its centrality as the top of the hierarchy, it becomesperipheral, but [retaining] the status of norm production internal to thelegal system’.60

55 ibid at 742.56 ibid at 745.57 Andreas Fischer-Lescano and Gunther Teubner, ‘Regime Collisions: the Vain Search

for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of Interna-tional Law 999, 1006.

58 ibid at 1008.59 ibid at 1015.60 Gunther Teubner, ‘Breaking Frames: the Global Interplay of Legal and Social Sys-

tems’ (1997) 45 American Journal of Constitutional Law 149, 158.

Global Bukowina 287



Teubner’s argument is that ‘global law’ develops outside of the politi-cal structures provided by states and international organisations: ‘Thebasic device is contract, and the paradigm is lex mercatoria.’61 Boundariesare no longer territorial, but consist of invisible markets and professionalcommunities that transcend territorial borders; the sources of global laware self-organising processes of structural coupling of law with ongoingglobalised processes of a highly specialised and technical nature. FrancisSnyder acknowledges that the analysis makes a number of significantcontributions to understanding the idea of global law and legal plural-ism: there are sources of norms other than states and internationalorganisations; norms may be aggregated in the form of a system, andthere is a plurality of such systems; and these soft law norms may havepractical effects. The problem, however, is the focus on contract, and thenew lex mercatoria. Contract is only one source of law, and an exclusivefocus on non-state actors reveals only part of the picture.62 There is aninsufficient focus on political institutions. The idea of global legal plural-ism should be taken to refer to a variety of ‘institutions, norms, anddispute resolution processes located and produced at different structuredsites around the world’. States and international organisations, theUnited Nations, European Union, World Trade Organization, etc, con-tinue to play an important role in the development of global law, which isoften expressed in terms of ‘hard’ international law, and not ‘soft law’norms.63 The sites for the production of global law include both market-based sites, generated by economic actors as part of economic processes,and polity-based sites, those which ‘form a part of established politicalstructures’, including international organisations constituted by agree-ments between governments. The various sites differ in their institutionalstructures, in their reliance on case law, in the binding force of norms anddecisions, ‘in other words, in respect of those characteristics which areoften associated with law’.64 The system of global law is comprised ofmultiple sites for the production, implementation and sanctioning ofglobal law norms, and ‘even when viewed very broadly, they do notmake up a legal system’.65

61 Francis Snyder, ‘Governing Economic Globalisation: Global Legal Pluralism andEuropean Law’ (1999) 5 European Law Journal 334, 340 (references omitted).





THE FRAGMENTATION OF INTERNATIONAL LAW

The functional differentiation produced by globalisation results in theregulatory activities of the state being supplemented by the normsadopted by various international governance regimes, each of whichoperates in accordance with its own internal logic. It is for this reasonthat international lawyers have been unable to reconcile conflictsbetween the international law norms of the various sectoral regimes,between, for example, trade and human rights, or trade and the environ-ment. Each of the sectoral regimes asserts a claim to hegemony in theregulation of one aspect of global society, legislating in accordance withits own value systems: the function of the international trade system is topromote trade, the function of the international human rights system topromote human rights, etc. International lawyers deal with the prolifera-tion of specialist functional regimes under the heading ‘fragmentation’,although the metaphor is problematic, as it assumes a prior unity of theinternational system. International law is said to have fragmented onsectoral grounds, with specialist regimes emerging. The issue has beenthe subject of a major study by the International Law Commission, underthe chairmanship of Martti Koskenniemi, which concluded that thefragmentation of the ‘international social world’ obtains legal signifi-cance when ‘accompanied by the emergence of specialized and (rela-tively) autonomous rules or rule-complexes, legal institutions andspheres of legal practice’.66 Global regulation is the result of ‘technicallyspecialized cooperation networks with a global scope’, in areas such astrade, the environment, human rights, diplomacy, crime prevention andsecurity, and the rights of indigenous peoples,67 with each of thesecooperation networks developing their own rules and rule-systems.68

The developments should not been be regarded as ‘legal-technical “mis-takes”’. The introduction of functional specialised regimes reflects the‘differing pursuits and preferences that actors in a pluralistic (global)society have’.69 International law actors have developed specialistregimes to deal with the legal regulation of a particular subject matter,with each regime reflecting the differing interests of the relevant actorsand introducing global law norms in light of the object and purpose ofthe particular regime. Each regime will have its own ‘experts and ethos,

66 Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising fromthe Diversification and Expansion of International Law, Report of the Study Group of theInternational Law Commission’, finalised by Martti Koskenniemi (13 April 2006) UN DocA/CN.4/L.682 para 8

67 ibid at para 481.68 ibid at para 482.69 ibid at para 16.

The Fragmentation of International Law 289



priorities and preferences’, and its own structural bias, as each regime is‘institutionally “programmed” to prioritize particular concerns over oth-ers’.70

Fragmentation is not itself a problem. Difficulties arise where the(international law) norms of the fragmented regimes conflict, given theabsence of a global constitutional structure. Fischer-Lescano and Teubnerconclude that conflicts between autonomous legal systems cannot (bydefinition) be resolved by reference to legal norms: ‘law can only, at thevery best, offer a kind of damage limitation. Legal instruments cannotovercome contradictions between different social rationalities.’71 Theonly possibility for resolving political conflicts is the explicit politicisa-tion of legal norm collisions through power mechanisms, negotiationsbetween relevant collective actors, public debate and collective decisions.It may be the case that there are legal principles that are common to allsystems of (international) law, but this cannot be assumed. Norms of juscogens may not necessarily form part of autonomous private governanceregimes, such as the new lex mercatoria.72 We are left with a network logic,the idea, or ‘operative fiction’, that ‘networks linkages exist betweenthese decentralized reflections in the sense that nodes observe each otherclosely’. Each autonomous legal order can ‘build on the assumption ofcommon reference points [around which they can] orient their ownrule-making’,73 and in doing so ‘establish their own grammars for theirversion of a global ius non dispositivum’.74 Autonomous legal systems aredefined by reference to a rule of recognition, or basic norm, that definesthe scope and validity of law norms, but no system of law can operate inpractice without reference to the existence of other systems of law.

Fragmentation is problematic in terms of the coherence and practice ofinternational law. The Report of the International Law Commission onFragmentation does not outline any relationships of priority between thedifferent rule-systems that have emerged in the global law order, con-cluding that relationships of priority cannot be achieved by any processof legal reasoning: the relationships ‘should reflect the (political) prefer-ences of international actors, above all States’. New international lawregimes ‘emerge as responses to new preferences, and sometimes out ofconscious effort to deviate from preferences as they existed under oldregimes. They require a legislative, not a legal-technical response.’75 The

70 ibid at para 488.71 Fischer-Lescano and Teubner (n 57) at 1045.72 ibid at 1032.73 ibid at 1033.74 ibid at 1034.75 Koskenniemi (n 66) at para 484.




shift from a world fragmented into sovereign states to a world frag-mented into sectoral regimes may not, however, require a fundamentaltransformation of public international law. In both instances, the concernis to ensure coordination and cooperation between the ‘(autonomous)rule-complexes and institutions’ of the respective legal orders.76 Thereport concludes that self-contained (autonomous) regimes are in factpart of the international law order: there are no legal regimes outsidegeneral international law. Whilst regimes on trade, the environment andhuman rights ‘have special rules for rule-creation, rule-application andchange[,] when the rules run out, or regimes fail, then the institutionsalways refer back to the general law that appears to constitute the framewithin which they exist’.77 The function of international law is to struc-ture the relations of autonomous political entries (states), in accordancewith sovereign will. General and customary international law providesthe basic framework for inter-state cooperation, but this does not pre-clude the development of specialist norms (lex specialis), or the settingaside of generally applicable norms. Most international law is disposi-tive: ‘rules of international law can, by agreement, be derogated from inparticular cases or as between particular parties’.78 Non-dispositivenorms, for example, norms of jus cogens, cannot be set aside. The reportconcludes that the basic professional tool-box of the international lawyer,the techniques of lex specialis and lex posterior, the superior position givento peremptory norms and recognition that there are obligations owed tothe international community as a whole (obligations erga omnes), providethe mechanisms by which problems of conflict and fragmentation can beaddressed.79 A self-contained regime may not deviate from a law benefit-ing third parties, including individuals and non-state entities, fromobligations having erga omnes character, or treaties that have a public lawnature or which are constituent instruments of international organisa-tions.80 There is a system of international law and the resolution ofconflicting legal rights and obligations that result from the normativeassertions of different rule-systems is one that the professional lawyer isable to undertake. The world of public international law may have

76 ibid at para 487.77 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and

Politics’ (2007) Modern Law Review 1, 17. Simma and Pulkowski conclude that internationallaw, whilst not constituting a comprehensive and organised legal order, can be regarded asa system of law that recognises certain informal hierarchies, of which the most important ‘isthe concept of general international law, in which all “special” law is embedded’: BrunoSimma and Dirk Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes inInternational Law’ (2006) 17 European Journal of International Law 483, 500.

78 North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 [72].79 Koskenniemi (n 66) at para 492.80 ibid at para 154.

The Fragmentation of International Law 291



become more complex and less coherent, but the professional require-ment remains the same: to identify what states have willed.

The focus of the Report of the International Law Commission onFragmentation is on the fragmentation of public international law andemergence of conflicting regimes in areas such as trade and environment,trade and human rights, etc. The report does not address private govern-ance regimes such as the new lex mercatoria, which is the focus ofTeubner’s analysis. It observes, however, that ‘new types of “global law”might be emerging outside the scope of traditional, State-centric internationallaw’.81 That being said, the Vienna Convention on the Law of Treaties andinternational law generally might be used ‘so as to channel and controlthese patterns of informal, often private interest-drawn types of regula-tion as well’.82 As with the specialist regimes of international law,techniques of lex specialis, lex posterior, superior norms (jus cogens) andobligations erga omnes might be applied, and could ‘be used so as to giveexpression to concerns (e.g. economic development, human rights, envi-ronmental protection, security) that are legitimate and strongly felt’.83

Private transnational governance regimes framed in terms of law can(ultimately) be regarded as international law orders and draw theirlegitimacy (if not their validity) from the system of public internationallaw, and remain (as a matter of practice, if not jurisprudential validity)subject to international law.

CONSTITUTIONALISATION BEYOND THE STATE

The Report of the International Law Commission on Fragmentationconcludes that sectoral regimes form one part of the international laworder, and are subject to the principles that structure and regulateinternational law norms. Teubner disagrees: autonomous ‘self-contained’regimes cannot, by definition, be subject to another law order (or theywould not be autonomous). There is no reason to conclude that the testsof political legitimacy that applied to state and international law wouldapply to new forms of international governance by ‘self-contained’regimes. An autonomous legal system is self-regulating, developing itsown idea of political legitimacy from the internal logic of the regime.84

81 ibid at para 490 (emphasis added).82 ibid.83 ibid at para 492.84 Andreas Paulus argues that in a globalised world, ‘everything is somehow connected

to everything else… Thus, the separate character of each legal subsystem appears limited’:Andreas Paulus, Commentary to Andreas Fischer-Lescano and Gunther Teubner, ‘Thelegitimacy of International Law and the Role of the State’ (2004) 25 Michigan Journal ofInternational Law 1047, 1054.




Teubner recognises certain problematic consequences with the analysiswhen he asks whether the shift away from political law-making amountsto ‘a grandiose de-legitimation of law?’85 We are, he concludes, ‘pro-voked to look for new forms of democratic legitimation of privategovernment that would bring economic, technical and professionalaction under public scrutiny and control.’ The development of global lawwithout the state requires ‘an expansion of constitutionalism into privatelaw production which would take into account that “private” govern-ments are “public” governments.’86

Autonomous legal orders are constitutional regimes, organized inaccordance with their own (secondary) ‘constitutional’ rules for theproduction and sanctioning of law norms (laws about law-making).Fischer-Lescano and Teubner conclude that ‘regime collisions’, i.e. con-flicts between regimes, ‘are lent a final increased intensity by virtue oftheir constitutional anchoring.’87 Conflicts of law norms represent con-flicts between legal regimes, as expressions of the ‘fundamental conflictsbetween organizational principles of social systems.’88 The self-containedregimes of global governance are not simply legal regimes, but also‘auto-constitutional regimes.’ The idea of a constitution outside of thestate is applied where there is an explicit constitutional discourse andconstitutional self-consciousness; a claim to foundational legal authority;the delineation of a sphere of competences; the existence of an organinternal to the polity with interpretative autonomy as regards the mean-ing and the scope of the competences; the existence of an institutionalstructure to govern the polity; rights and obligations of citizenship,understood in a broad sense; and some mechanism to ensure the repre-sentation of the interests and perspectives of citizens in the polity.89 Theidea of a polity is not restricted to the idea of institutionalised politics, itcan also be applied to other areas of social life, and it is possible to refer,for example, to the constitutionalisation of economic regimes, the aca-demic system, and the digital regimes of the internet. Norm-generatingregimes become constitutional regimes when they emerge as politicalconstitutions, ‘understood as structural coupling of the reflexive mecha-nisms of law with those of politics’. The characteristics of an auto-constitutional regime is the linkage between the reflexive processes oflaw with the reflexive processes of politics; they are defined ‘by theirduplication of reflexivity’.90

85 Teubner (n 60) at 158.86 ibid at 159 (emphasis added).87 Fischer-Lescano and Teubner (n 57) at 1014.88 ibid at 1024.89 ibid at 1015.90 ibid at 1016.

Constitutionalisation Beyond the State 293



The analysis draws on the influential account provided by Neil Walker,who identifies a ‘revised concept of constitutionalism’ that depends onthe recognition of six factors:

1. The need to accept the continued relevance of the state.2. The possibility of constitutional discourses in non-state sites.3. The requirement of historical continuity: constitutional discourses

must remain tied to the original ideas of a constitution.4. The requirement of discursive continuity: constitutional debates

reflect a particular discourse with its own history.91

5. The requirement of inclusive normative coherence: discoursesaround constitutionalism should be as inclusive as possible, consist-ent with the minimal standards of legitimate constitutional dis-course.92

6. The requirement of ‘external coherence’: if constitutionalism is a formof practical reasoning, it must have something relevant to say tothose who are sceptical about its claims to be relevant in understand-ing the allocation and exercise of political authority in the post-Westphalian order.93

The context for the emergence of the idea of the modern constitution wasprovided by the mutual articulation of law and politics in the sovereignstate. Politics could not be conceived without a ‘constitutive legal settingand framework. Yet on the other hand, constitutional law always presup-posed some prior political setting.’94 Constitutional law developed withinthe Westphalian system of state law, with the idea of a polity or politicalcommunity ‘simply that of a site that has the twin attributes of aplausible claim to authority (the political dimension) and a sense ofidentity with that site on the part of a particular population (the commu-nity dimension)’. The idea ‘is not bound to or exhausted by the idea ofthe modern nation state’. It is possible to apply discourses of constitu-tionalism to sites which are not ‘polity bound’.95 In order for this to occur,the following are required. First, the emergence of ‘constitutional self-consciousness’ on the part of those associated with the polity, and claimto foundational legal authority, ie to be recognised as an autonomouslaw-making authority. Secondly, the delimitation of a sphere of compe-tence or jurisdiction, a claim to interpretive autonomy, and the establish-ment of an institutional structure to govern the polity.96 Thirdly, the

91 Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317,334.

92 ibid at 335.93 ibid at 336.94 ibid at 340 (emphasis in original).95 ibid at 341 (emphasis in original).96 ibid at 342.




societal criteria, an idea of association with the polity (‘citizenship’, in thenomenclature of the state) and the introduction of procedures for giving‘voice’ to members, ‘democratic or otherwise’.97 The idea of constitution-alism remains linked to the ‘core governance values’ of democracy,accountability, equality, separation of powers, rule of law and fundamen-tal rights that (de-)limit the scope for legitimate constitutional dis-courses.98

Autonomous systems of law are established in accordance with a ruleof recognition, or basic norm, that constitutes and provides validity forthe legal order (according to law officials within the legal order), inaccordance with a constitution (the rules about rule-making). JürgenHabermas agrees that the state in its modern form is not a necessaryprecondition for a constitutional order: supranational communities suchas the United Nations or European Union do not have a monopoly on thelegitimate use of force and lack the modern administrative features ofgovernment that provide the necessary backing for the rule of law, ‘[y]etthey affirm the primacy of supranational law over national legalorders’.99 The application of constitutional terminology to internationalorganisations is increasingly common in the literature, particularly inrelation to the World Trade Organization.100 Deborah Cass argues that theconstitutionalisation of the World Trade Organization describes a processof change by which the formal arrangements are constituted and thevalue of liberal constitutionalism embedded. A constitution is the formalarrangement of government; constitutionalism, the values associatedwith liberal constitutions, rule of law, protection of rights, etc.101 Theprocess of constitutionalisation depends on six core elements. First,constraints on social, economic and political behaviour in accordancewith the values of the political community; the legal order must dealwith the problem of social order by ‘pressuring, guiding, controlling orchanging behaviour of agents with decision-making capacities’. Sec-ondly, a change in the recognised Grundnorm, ie the emergence of a newrule of recognition, or basic norm, that provides unity and coherence tothe rules of the new legal order, and establishes the criteria by which to

97 ibid at 343.98 ibid at 344.99 Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have a

Chance?’ in The Divided West, edited and translated by Ciaran Cronin (Cambridge, Polity,2006) 115, 137.

100 See, for example, Ernst-Ulrich Petersmann, ‘Multilevel Judicial Governance of Inter-national Trade Requires a Common Conception of Rule of Law and Justice’ (2007) 10 Journalof International Economic Law 529, 541.

101 Deborah Cass, The Constitutionalization of the World Trade Organization: Legitimacy,Democracy and Community in the International Trading System (Oxford, Oxford UniversityPress, 2005) 28.

Constitutionalisation Beyond the State 295



establish the validity of norms within the legal system.102 Thirdly, theexistence of a community that can authorise the constitutional order; it isthe demos, the public subject to the law norms, that provides for thepossibility of establishing democratic legitimacy for the law order.103 Thefourth element is the practice of deliberation: in order to be constitution-alised, the legal order must include processes of deliberation to facilitatedialogue about the values, practices and procedures of the legal order.104

Fifthly, there must be a realignment of relations between states and theconstitutional entity.105 The sixth element is substantive legitimacy, whichis required for the legal order to be accepted as authoritative by acommunity:106 legitimacy, ‘however defined, measured, or justified, is acritical element in the constitutionalization process’.107

THE IDEA OF LAW

Brian Tamanaha observes that the idea of law as a system of communica-tions marked by the binary code legal/illegal (Luhmann/Teubner), pro-vides ‘a relatively clear criterion for separating the legal from non-legal’.The definition includes, however, many issues that most people wouldnot consider to be ‘law’, because it delimits law in terms of how socialactors identify law: law is ‘whatever social actors themselves discuss inlegal terms’. Further, in characterising law in terms of communication,the concept ‘loses touch with the material power and effects of law… Onemay agree that sanction need not be the touchstone of law without goingto the opposite extreme of banishing it from law.’108 The functionalistapproach of Luhmann and Teubner is one of two dominant approachesto developing an analytical concept of law. The other characterises law interms of institutionalised norm enforcement. In the identification of asystem of law, HLA Hart argues that in addition to primary rules ofobligation, there must be secondary rules of recognition, change andadjudication ‘that specify the ways in which the primary rules may beconclusively ascertained, introduced, eliminated, varied, and the fact oftheir violation conclusively determined’.109 Secondary rules must beacknowledged by the officials of the legal system. Tamanaha accepts that

102 ibid at 32.103 ibid at 39.104 ibid at 43.105 ibid at 44.106 ibid at 45.107 ibid at 47.108 Tamanaha (n 8) at 191.109 Hart (n 1) at 94.




the idea of law as an institutionalised system involving a union ofprimary and secondary rules is illuminating, but confines it to state law.

Both the functionalist approach (Luhmann/Teubner) and concept oflaw as institutionalised norm enforcement (Hart) ‘were derived from byabstracting the core features of state law’.110 Both assume that there is asingle set of criteria that can be used to define law (‘generate socialorder’, ‘institutionalized norm enforcement’).111 The problem that faceslegal pluralists when attempting to rely on the concepts is that thefunctional criterion cannot distinguish law norms from other norms thatfunction to generate social order (language, customs, morals, etc), whilstthe second criterion cannot distinguish other forms of institutionalisednorm enforcement (such as companies and sports leagues).112 The prob-lem originates in the conceiving of law in terms of some function-basedabstraction: ‘Law is institutionalized norm enforcement’; ‘Law is amechanism for maintaining social order’; etc. It assumes some essential-ist definition of law that can be captured in a formulaic description; eachincludes state law within the definition, because state law ‘served as themodel for most theories when formulating their abstract concept oflaw’.113 The resulting definition proves problematic, however, whenapplied to other systems of law and normative orders, proving to beeither too broad or too narrow, including orders that few would regard aslaw, and/or excluding orders generally accepted as ‘law’ (cf argumentsaround the status of international law as ‘law’).

Tamanaha concludes that ‘[w]hat law is and what law does cannot becaptured in any single concept, or by a single definition’. Law is what-ever we attach the label law to, and we have attached it, inter alia, to statelaw, international law, transnational law, international human rights law,customary law, natural law and religious law. Despite the shared label,these are diverse phenomena and not manifestations of single phenom-enon. Law has no essence.114 ‘Law is whatever people identify and treatthrough their social practices as “law” (or recht, or droit, etc.).’ The distinctivecontent of the manifestations of law are determined by the social actorswho give rise to them, and ‘not by theorists legislating for others basedupon an abstract conception of the essential requirements of a singularphenomenon they designate as law’.115 Law is a social practice, anactivity that contains aspects of meaning and behaviour: ‘[t]o enter apractice is to accept the authority of those standards and the inadequacy

110 Tamanaha (n 8) at 177.111 ibid at 178.112 ibid at 180.113 ibid at 192.114 ibid at 193.115 ibid at 194 (emphasis in original).

The Idea of Law 297



of my own performance as judged by them’.116 Reference to the idea of asocial practice ensures that there is ‘some minimal degree of continuoussocial presence’. Transient or idiosyncratic identifications of law do notamount to a social practice. There must be ‘sufficient people withsufficient conviction [to] consider something to be “law”, and act pursu-ant to this belief, in ways that have an influence in the social arena’.117

Law is a social practice, but it does not depend on the existence ofinstitutions, ie ‘[c]o-ordinated complexes of human interaction’, oftensupported by a material base such as office buildings.118 Law existswhenever there are social practices giving rise to ‘law’.119 It is whateverpeople identify and treat through their social practices as ‘law’. Theexistence of a system of law does not depend on the existence andparticipation of legal officials: ‘any members of a given group can identifywhat law is, as long as it constitutes a conventional practice.’120 If no groupwithin a social arena refers to ‘law’, then there is no law in that society;121

where there is a system of rules referred to as law, it is a legal system,even if, as William Twinning points out, ‘it has no functions, is ineffec-tive, has no institutions or enforcement, involves no union of primaryand secondary rules, and even if there is no normative element’.122

Tamanaha’s understanding of law excludes any requirement of norma-tivity: ‘a wicked or repressive or rapacious legal regime’, obeyed solelyout of fear, ‘counts as a legal system if people subject to it identify andtreat it as law in their social practices’.123 In the absence of an analyticalconcept of law, it becomes difficult, however, as Martti Koskenniemiobserves, ‘to distinguish between the gunman and the policeman, theregime of corruption from the regime of contract’.124 What, for example,do we make of evidence that Al Qaeda and other terrorist organisationsoperate in accordance with their own system of ‘law’?125 It seems

116 Brian Tamanaha, ‘A Non-Essentialist Version of Legal Pluralism’ (2000) 27 Journal ofLaw and Society 296, 314, quoting Alasdair MacIntyre, After Virtue: a Study in Moral Theory(Notre Dame, Ind, 1984) 190.

117 ibid at 319.118 Tamanaha (n 8) at 164.119 ibid at 165.120 ibid at 166 (emphasis in original).121 ibid at 201.122 William Twining, ‘A Post-Westphalian Conception of Law’ (2003) 37 Law and Society

Review 199, 221.123 ibid at 233.124 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and

Politics’ (2007) 70 Modern Law Review 1, 23.125 Mariano-Florentino Cuéllar, ‘The Untold Story of Al Qaeda’s Administrative Law

Dilemmas’ (2007) 91 Minnesota Law Review 1302; also Ralf Michaels, ‘The Re-State-Ment ofNon-State Law: the State, Choice of Law, and the Challenge from Global Legal Pluralism’(2005) 51 Wayne Law Review 1209, 1253.




contrary to our intuitions to conclude that the ability to ‘command’ interms of framing goals, directives and policies, accords the right tocommand.126

Tamanaha concludes that international law ‘is clearly a kind of law’.127

By contrast, the emergent body of international human rights and role ofnon-state actors in putting pressure on governments and corporations toeliminate human rights abuses are not presently aspects of internationallaw, ‘though they may later be incorporated as such, and thereby acquirethe status of law’.128 (The reason for this conclusion and distinctionbetween ‘international law’ and ‘international human rights law’ is notclear.) The analysis is important in removing the concept of law from itsassociation with state law, and allowing us to recognise, and treat as‘law’, aspects of global regulation framed in terms of law: state law,traditional forms of international law (treaties and custom), international‘soft’ law and (potentially) the legal regimes emerging from transnationalcommunities of bankers and lawyers, etc. Law is whatever we attach thelabel ‘law’ to, and we have attached the label to a variety of multifaceted,multifunction phenomena, including aspects of global governance.

Law, according to Tamanaha, is whatever people identify and treatthrough their social practices as ‘law’. The over inclusive nature of thedefinition results in a failure to exclude normative systems that weshould not regard as law and include normative orders where there islittle value in describing them as ‘law’, simply because the participantsregard their social practices as law. There is little to be gained, ‘eitheranalytically or instrumentally, by appending the label “law” to theinformal, unwritten normative relations within the family’.129 YetTamanaha accepts that, according to his definition, the normative rela-tions within the family can be regarded as law, ‘if the people within thatsocial arena conventionally characterize then in terms of “law”’.130 Butsurely we are missing the point about analogy: the use of the term ‘law’implies the exercise and legitimation of authority. Individuals who makereference to ‘law’ in their social relations are often aware of the authorityof state law, where justification is required for a refusal to comply withposited law norms. Reference to ‘law’ implies a claim to authority. Whilsta large number of phenomena are conventionally described as ‘law’,including state law, international law, the customary law of indigenous

126 cf James Rosenau, ‘Governance and Democracy in a Globalizing World’ in DanieleArchibugi et al, Re-Imagining Political Community: Studies in Cosmopolitan Democracy (Stan-ford, Calif, Stanford University Press, 1998) 28, 29.

127 Tamanaha (n 8) at 193.128 ibid., 228.129 Brian Tamanaha, ‘A Non-Essentialist Version of Legal Pluralism’ (2000) 27 Journal of

Law and Society 296, 304.130 ibid at 315.

The Idea of Law 299



peoples, etc, Tamanaha accepts that the only elements common to all ofthese versions ‘are that they in some sense involve rules or principles andall make a claim to authority’.131 Law is a social practice that involves theexercise of authority. It is not sufficient that individuals refer to the ideaof law in their social practices to accept the existence of a system of law.In order for the concept of law to be meaningful, the idea of law (and alegal system) must involve the exercise (and acceptance) of authority.Law is a social practice concerned with the assertion of authority, wherecompliance is expected or assumed.

THE IDEA OF AUTHORITY

The idea and exercise of authority can be understood in a number ofways. The most influential account of the justification for the exercise ofauthority is provided by Joseph Raz, who makes a useful distinctionbetween ‘orders’ and ‘advice’. The primary intention of advice is toinfluence; advice is ‘merely another reason to be added to the balance bywhich the addressee will determine what to do’.132 In contrast, a personwho gives an order ‘intends the addressee to take his order as a reason onwhich to act regardless of whatever other conflicting reasons exist’.133 Aperson or other actor with a problem, ie in a position of uncertainty, mayturn to an expert or expert body (an ‘authority’) for advice, and maydecide to follow the advice where the reasons adduced ‘tip the balance’of reasons in favour of the outcome suggested. A command, on the otherhand, ‘is not merely trying to change the balance by adding a reason forthe action’. It is expected that ‘one is to follow the authority regardless ofone’s view of the merits of the case’,134 and ‘without even attempting toform a judgment on the merits’. The commands of legitimate authority‘are facts of the world that are reasons for action’.135 What distinguishes‘authority directives is their special peremptory status’.136 A peremptoryreason is a reason ‘not to deliberate on the underlying merits of complyingwith a directive’.137

131 Brian Tamanaha, ‘Law’ (2008) Oxford International Encyclopedia of Legal History (SSRN)14 (emphasis added); also Tamanaha (n 8) at 168–69.

132 Joseph Raz, The Authority of Law (Oxford, Clarendon Press, 1979) 14.133 ibid at 14–15.134 ibid at 24.135 ibid at 25.136 Joseph Raz, ‘Authority, Law, and Morality’ in Ethics in the Public Domain: Essays in the

Morality of Law and Politics (Oxford, Clarendon, 1994) 210, 212.137 Jules Coleman, The Practice of Principle: in Defence of a Pragmatist Approach to Legal

Theory (Oxford, Oxford University Press, 2001) 122 (emphasis in original).




Joseph Raz notes that RP Wolff’s oft quoted definition that ‘authority isthe right to command and correlatively the right to be obeyed’,138

although ‘essentially sound’, is both ‘inaccurate and not perspicacious’.Authority includes things other than the right to command, to legislate,for example, and to adjudicate, and ‘the notion of a right is even morecomplex and problematic than that of authority’.139 Instead, Raz followsJohn Lucas: ‘A man, or body of men, has authority it if follows from hissaying “Let X happen, that X ought to happen”.’140 Authority is theability to change the normative situation of others.141 Authority is rela-tional and dyadic. The idea of authority involves the issuing of directives,framed in terms of norms, standards, principles, doctrines, etc to asubject.142 A directive can be authoritatively binding only if it is a viewabout how its subjects ought to behave. It must be possible to identify thecontent of the directive without relying on reasons or considerations onwhich the directive purports to adjudicate.143 The directive must ‘repre-sent the judgment of the alleged authority on the reasons which apply toits subjects, or at least it must be presented as the authority’s judg-ment’.144

Raz argues that the normal way to establish that a person has authorityover another (the ‘normal justification thesis’ (NJT))

involves showing that the alleged subject is likely better to comply withreasons which apply to him (other than the alleged authoritative directives) ifhe accepts the directives of the alleged authority as authoritatively binding andtries to follow them, rather than by trying to follow the reasons which apply tohim directly.145

The thesis is concerned with establishing that a person has authority, notthat they are entitled to authority. On this understanding, legitimateauthority is only likely to be established where the presumed authorityalready enjoys some measure of recognition and exercises power over its

138 Robert Paul Wolff, In Defense of Anarchism (New York; London, Harper & Row,1970) 4.

139 Joseph Raz, The Authority of Law (Oxford, Clarendon Press, 1979) 11.140 John Lucas, The Principles of Politics (Oxford, Clarendon Press, 1966) 16, quoted in

Raz, id.141 Raz, ibid, 12.142 Raz accepts that authorities do more than impose duties, although ‘arguably what-

ever they do – confer powers or rights, grant permissions or immunities, change status,create and terminate legal persons (corporations and their like), regulate the relationsbetween organs of legal persons, and much else – they do by imposing duties, actual orconditional’: Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’(2006) 90 Minnesota Law Review 1003 fn 12.

143 Raz (n 136) at 218.144 ibid at 219.145 Joseph Raz, The Morality of Freedom (Oxford, Oxford University Press, 1986) 53.

The Idea of Authority 301



subjects: ‘There is a strong case for holding that no political authority canbe legitimate unless it is also a de facto authority.’146 The exercise of defacto authority is not, however, sufficient to demonstrate that an actorenjoys legitimate authority. The exercise of authority is legitimate whereit is based on reasons that already apply to the subjects of authoritydirectives. These reasons are dependent reasons. The dependence thesisdoes not claim that authorities always act for dependent reasons. It is anideal-type theory that tells us how authorities are supposed to function,informing the public justification for the exercise of authority; howauthorities should understand their function; and ways in which weshould evaluate the performance of authorities (in comparison with theideal).147

The exercise of authority is justified, according to the normal justifica-tion thesis, ‘if it is more likely than its subjects to act correctly for theright reasons’.148 It is not sufficient to assert that authority is justifiedbecause it serves the public interest: ‘If it is binding on individuals it hasto be justified by considerations which bind them.’149 The requirement tocoordinate the actions of the members of a society ‘may be a necessarycondition of political legitimacy[,][but] it is not a sufficient condition. It isnot in itself sufficient for legitimacy.’ The (‘normal’) justification for theexercise of government power is that individuals are more likely tosucceed in realising that which reason requires of them ‘if subjected tothe government concerned than if left to themselves’.150 Authority isjustified where the subject of the normative regime

is likely better to comply with reasons that apply to him[,] if he accepts thedirectives of the alleged authority as authoritatively binding, and tries tofollow them, than if he tries to follow the reasons which apply to himdirectly.151

The ‘surrender of judgment’ does not imply ‘immense power’ for theauthority, but reflects a more limited role: authorities cannot introducenew and independent considerations, they must reflect on ‘dependentreasons in situations where they are better placed to do’.152

146 ibid at 56.147 ibid at 47 (emphasis in original).148 ibid at 61.149 ibid at 72.150 ibid at 76.151 Raz (n 136) at 214.152 ibid at 215.




DEMOCRACY AND THE CONCEPT OF AUTHORITY

Raz outlines a service conception of authority: authority is justified whenthe subject would better conform to reasons that apply to him anyway ifhe intends to be guided by the authority’s directives than if he does not(the normal justification thesis); and the matters regarding which the firstcondition is met are such that it is better to conform to reason than todecide for oneself, unaided by authority (the independence condition).153

On this understanding, the idea of authority does not conflict with that ofindividual autonomy: ‘authority helps our rational capacity whose func-tion is to secure conformity with reason. It allows our rational capacity toachieve its purpose more successfully.’154 In accepting the authority ofanother, the subject must accept what the authority directs withoutrecourse to the reasons underlying the judgment of the authority:

The preemptive force of authority is part and parcel of its nature. It cannotsucceed as an authority (i.e., succeed in improving our conformity with reason)if it does not preempt the background reasons. The function of authorities is toimprove our conformity with those background reasons by making us try tofollow their instructions rather than the background reasons.155

No particular form of government (certainly not a democratic form)appears to be required, and the idea of legitimate authority can beapplied to diverse forms of (political) community. Raz observes that agroup of people might believe that they have a duty, ‘perhaps a religiousduty or a duty of loyalty arising from some historical circumstances, toobey some person or institution. In that case the normal justificationthesis is easily satisfied. By obeying that person or institution one isdischarging that duty.’156 The same argument can be made in respect ofthose people who believe that one has a duty to obey anyone elected bythe majority: ‘Again, that is no problem for the service conception. If thatis so it simply shows that the conditions of the service conception are metregarding anyone who is so elected.’157 There is nothing particularlysignificant about the exercise of authority in a democracy; Raz is expliciton this point:

I do not believe that democracy is the only regime that can be legitimate, northat all democratic governments are legitimate. That is not to say that demo-cratic governments do not have, in many countries, unique claims to enjoysome qualified or limited authority, either through their ability to produce

153 Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90Minnesota Law Review 1003, 1014.


Democracy and the Concept of Authority 303



beneficial results or because of their ability to give expression to people’sstanding as free, autonomous agents, or whatever other values they serve.158

The conception of authority developed by Raz concludes that (legitimate)authority depends on subjects accepting that they are more likely to actfor the right reasons that apply to them by subjecting themselves to theauthority than by acting autonomously. No particular form of authorityis prescribed: authority is justified where the subjects accept that theauthority regulates in accordance with the reasons that apply to them.The acceptance of authority requires that individuals should subjectthemselves to authority, and not reflect upon, or seek to make independ-ent judgements about, the relevant issues. Authority directives must beexpressed in terms that an individual can rely on without the need forany further evaluation of the balance of reasons that the directive issupposed to replace: the normal justification thesis ‘implies that anauthoritative directive must express a view about what ought to bedone’.159 It must be possible to identify the directive as being issued bythe alleged authority without relying on reasons or considerations onwhich the directive purports to adjudicate.160

Ronald Dworkin observes that this requirement is central to Raz’conception of exclusive positivism: prior to the exercise of authority,individuals may engage with a

variety of moral and other reasons for and against actions they might consider.Authority interposes itself between people and their reasons by weighing andbalancing those reasons itself and then issuing a new, consolidating directivethat replaces those multitudinous moral and other reasons with a single,exclusionary instruction.161

It is, according to Dworkin, a ‘coherent account of the point of authority’,but it presupposes ‘a degree of deference toward legal authority thatalmost no one shows in modern democracies’. Citizens do not regardlaws ‘as excluding and replacing the background reasons the framers ofthat law rightly considered in adopting it. We rather regard those laws ascreating rights and duties that normally [but not always] trump thoseother reasons.’162

158 ibid at footnote 20.159 Kenneth Einar Himma, ‘Substance and Method in Conceptual Jurisprudence and

Legal Theory’ (2002) 88 Virginia Law Review 1119, 1180.160 Raz (n 136) at 218. Cf Wojciech Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’

(2006) 26 Oxford Journal of Legal Studies 377, 383.161 Ronald Dworkin, ‘Thirty Years On (Book Review: The Practice of Principle, by Jules

Coleman)’ (2002) 115 Harvard Law Review 1655, 1671.162 ibid at 1672.




A number of critics complain that the normal justification thesisneglects the importance of the procedural mechanisms of democracy.Scott Hershovitz, for example, argues that the idea is at odds with ouridea of democracy: in a democracy ‘we are binding ourselves throughacts of legislation’, a position that he contrasts with Raz’ argument that‘[g]overnments decide what is best for their subjects and present themwith the results as binding conclusions that they are bound to follow’.163

The idea of democracy suggests a political system ‘where each citizen hasthe ability to participate (preferably, at some foundational stage, equally)in the creation of government and policy. All democracies embody insome sense the ideal [of] “rule by the people”.’164 The fact of engagementand participation is more important that getting the ‘right’ answer (aposition Hershovitz contrasts with Raz’ normal justification thesis for theexercise of authority).165

Wojciech Sadurski accepts that the normal justification thesis is ‘vul-nerable to the objection that it cannot be squared with the idea thatcitizens should have a critical, reflective attitude towards the authoritiesthat govern them; a critical attitude characteristic of a democratic soci-ety’. The criticism is, however, misguided. Raz does not suggest ‘thatcitizens are advised to follow the authority’s directives instead of follow-ing their own reasons for action; rather, he is saying that if they do so,then the authority is, for them, legitimate’.166 Where an individual is nolonger guided by the actions of an authority, ‘then the law, at this point, isno longer a legitimate authority for them because it does not fulfil therole of mediating between people and the practical reasons upon whichthey act’. Legal norms ‘normally “trump” our various extra-legal consid-erations (e.g. of utility), but extra-legal considerations may “trump” thelaw’s authority when compliance with law’s directives is morally orpolitically indefensible’.167

Sadurski observes that the problem may lie in Raz’ focus on authority:‘Raz is apparently less interested in the problem of legitimacy than inthat of authority: his avowed aim is to tell us what it means for oneperson or entity to have authority over another.’ In developing the ideaof authority, Raz proceeds from a conception of legitimate authority (lawmust have or claim ‘legitimate authority’):168 the idea of authority ‘is not

163 Scott Hershovitz, ‘Legitimacy, Democracy, and Razian Authority’ (2003) 9 LegalTheory 201, 210 (references omitted).

164 ibid at 213.165 ibid at 218.166 Sadurski (n 160) at 380.167 ibid at 381.168 See Joseph Raz, ‘Government by Consent’, in Ethics in the Public Domain: Essays in the

Morality of Law and Politics (Oxford, Clarendon Press, 1994) 339, 342.




intelligible without a prior notion of legitimate authority’.169 The conceptof authority ‘derives conceptually from the property of legitimacy’. Anauthority which does not claim to be legitimate, or which is not recog-nised as being legitimate, is not an authority — a point emphasised in thevocabulary employed for the exercise of political power that does notmake any claim to legitimacy: ‘tyranny, occupation force, etc’. The idea ofauthority implies some connection between the exercise of authority andcertain facts about the subjects of the authority, ie reasons that apply tothe subjects of directives. An authority that did not even pretend torespect such a connection, even if successful in exercising control, wouldnot even be an illegitimate authority, it would not be an authority. Itwould represent nothing more than the exercise of ‘naked power’.170 Thenotable feature of institutions that claim ‘authority’ is that they invariablymake a claim to legitimacy: authority is inherently related to legitimacy.

The focus of the normal justification thesis is the establishment of therequirements for the exercise of legitimate authority, and not the devel-opment of a normative political theory about the necessary and sufficientconditions of legitimacy. Raz’ concept of authority is not incompatiblewith democratic procedures; as Sadurski observes, ‘it is only a matter ofinterpreting the meaning of “the reasons which apply to the subjects” ofauthoritative directives’.171 Legitimate authorities must mediate betweensubjects and the right reasons that apply to them, but ‘what reasons can“apply to the subjects” other than those that they actually have?’ It maybe possible to contend that ‘paternalistic non-democratic authorities’ arebetter at indentifying the reasons than the subjects themselves, but theargument is ‘deeply implausible’. The only way in which an authoritycan ascertain the reasons that apply to the subjects of authority directivesis by asking the subjects themselves, ‘through democratic elections,representative bodies, referenda, etc’. The only plausible authority thatcan be legitimate ‘is one that is procedurally democratic.’172

A similar argument is made by Kenneth Einar Himma. According tothe normal justification thesis, authority ‘is justified only insofar as itdoes a better job than its subjects of deciding what right reasonrequires’.173 But an individual would only be certain that this were thecase if, in all circumstances, the authority was perfectly infallible inrespect of what is in the individual’s best interests, or the individual were

169 Sadurski (n 160) at 385.170 ibid at 386.171 ibid.172 ibid at 387.173 Kenneth Einar Himma, ‘Just ‘Cause You’re Smarter Than Me Doesn’t Give You a

Right to Tell Me What To Do: Legitimate Authority and the Normal Justification Thesis’(2007) 27 Oxford Journal of Legal Studies 121, 122.




perfectly incompetent in evaluating their own self-interest.174 In the vastmajority of cases, the individual will be better placed and more likely tobe aware of the right reasons that apply to them than another actor, evenin the conditions of complexity that characterise substantial societies. Butthe normal justification thesis does not simply require that the individualtake into account authority directives; it requires that the individualcomply with the directives of the authority, irrespective of the content ofthe directive — authority is legitimate if, and only if, the subject is morelikely to comply with the demands of right reason (ie the reasons thatapply to them) by following the directive than by relying on their ownjudgment about what right reason requires.175 In other words, the reasonfor following the directive of the authority follows from what theauthority says, but not for the reason that the authority says it.176 Thenormal justification thesis depends on the adoption of directives thataccord with the right reasons that apply to subjects, and it is notconceivable that those right reasons could be established in the absenceof the participation of the individual: ‘respect for subject autonomyrequires that subjects be allowed to participate in a meaningful way inmaking decisions that vitally impact their well-being and hence requiresdecision-making procedures that are at least minimally responsive tocitizen input’.177

Jules Coleman observes that the acceptance of authority follows fromconditions of uncertainty, in which each individual will ask themselves:‘What ought I do?’ The answer will depend on the reasons that willapply to the individual, ‘[reasons] that would ground or justify one oranother course of conduct’.178 An individual would only subject them-selves to the judgment of others, according to the normal justificationthesis, where acting on the directives of an authority, they are more likelyto

fully comply with the reasons they already have for acting than they would byacting directly on the basis of those reasons[:] one would more fully orsatisfactorily comply with the demands of right reason that apply to one byacting on the basis of reason law supplies than one would do otherwise.179

In conditions of complexity and uncertainty, and where there is a need tocoordinate actions with others, it is often impossible for the individual todetermine what right reason requires. The individual would be better

174 ibid at 126.175 ibid at 139–40.176 ibid at 140.177 ibid at 142.178 Jules Coleman, ‘Authority and Reason’ in Robert George (ed), The Autonomy of Law:

Essays on Legal Positivism (Oxford, Clarendon Press, 1996) 287, 303.179 ibid at 304.




subjecting himself or herself to the authority of another. The idea ofauthority proposed by Raz, as Coleman observes, ‘does not [appear to]presuppose a particular conception of the class of reasons’.180 The prac-tice of giving reasons is though ‘public and itself presupposes the moralvalues of autonomy and equality’. The commitment to equality followsfrom the fact that the offering of reasons and giving of criticism can onlyarise amongst persons ‘who believe that they owe it to others to justifytheir actions to others’. The commitment to autonomy follows from the‘very idea that individuals can respond to reasons and arguments, thatothers’ judgments are formed as a result of reflecting on the reasonsoffered’.181 The reasons that apply to us are partially determined by asocial or public practice of giving reasons, of offering justifications thatcan withstand public scrutiny, and such a practice presupposes the moralideas of autonomy and equality:

The reasons that apply to agents … themselves derive from our normativepractices, an essential part of which is offering justifications for what we do,inviting criticisms, reflecting on our own reasoning, and the like. But thesepractices presuppose commitment to ideals of autonomy and equality. Thereasons that apply to us, therefore, derive from practices that reflect ideals ofautonomy and equality.

Where the practice of public justification is framed in terms of law,

the reasons that individuals come to accept as applying to them do so only tothe extent that the law implements the ideals of autonomy and equality thatthe practices presuppose[;] law’s authority comes down in part of its imple-menting certain substantive political or moral ideals of autonomy and equal-ity.182

The exercise of political authority requires justification in terms that theindividual can accept as applying to them: individuals will accept the‘directives’ of an authority only to the extent that the law implements theideals of autonomy and equality. The legitimate exercise of authorityrequires the application of the (deliberative) (democratic) ideas ofautonomy and equality; but they are part of the law ‘only if we take lawto be a framework within which individuals can discuss what is to countas good or right reason for them’.183

Legitimate authority depends on the exercise of authority in accord-ance with the right reasons that apply to the subjects of an authorityregime. In the case of democratic societies, there is no reason to concludethat the subjects of authority directives would accept the normative





legitimacy of regulations adopted in the absence of direct engagementwith those subject to ‘law’ norms. Following Coleman, the legitimateexercise of authority requires the adoption of regulatory norms in accord-ance with the (deliberative) principles of equality and public reason: lawnorms are valid only where all subjected persons could agree as partici-pants in rational discourses.

A REVISED CONCEPT OF LAW

The works of Niklas Luhmann, Gunther Teubner, Brian Tamanaha andJoseph Raz provide important insights into the concept of ‘law’ followingthe globalisation and fragmentation of governance functions and emer-gence of non-Westphalian sites for the production of law norms. First, inorder for law to exist, actors must organise their social, economic andpolitical relations in terms of law, ie directives framed in terms of norms,rules, standards, or principles. Law is a system of communicationexpressed in terms of law, and it makes no sense to talk about a legalsystem where none of the relevant actors refers to the idea of law orcodes norms in terms that a lawyer would recognise. Secondly, asLuhmann observes, law is a system of communication that constructs itsown boundaries through the operation of the binary distinctions betweennorms/facts and legal/illegal: the application of law norms to facts mustbe capable of resulting in a determination that impugned conduct iseither ‘lawful’ or ‘unlawful’, as opposed, for example, to ‘undesirable’.Thirdly, there is no reason to consider that only ‘Westphalian’ forms ofstate and international law are ‘law’. Fourthly, Tamanaha’s conclusionthat law is whatever people identify and treat through their socialpractices as ‘law’ fails to recognise the need for an assertion of authorityframed in terms of law before an actor can regard him or herself as beingsubject to the law. In relation to customary law, including customaryinternational law, authority is provided by the authority of law.184 Fifthly,law norms cannot exist outside of a system of law: transient or idiosyn-cratic identifications of law do not constitute a legal order, or createbinding (legal) obligations. Sixthly, politics involves the exercise of choiceat moments of uncertainty and disagreement. Political decisions must be

184 Joseph Raz, The Authority of Law (Oxford, Oxford University Press, 1979) 29. Inrelation to customary norms, including customary international law norms, the source ofauthority is a social practice recognised as legally binding by a particular community. Theassertion of political authority is undertaken by a ‘secondary’, or ‘interpretive’, actor (whomay also be a member of the community), who asserts that a social practice in a definedcommunity of actors is binding in terms of law. cf Lon Fuller, ‘Law as an Instrument ofSocial Control and Law as a Facilitator of Human Interaction’ (1975) Brigham YoungUniversity Law Review 89.

A Revised Concept of Law 309



framed in terms of law to be given effect in the legal order following theidentification of a conflict or coordination problem. Finally, given theindeterminacy of law norms and disputes over meaning and application,the assertion of authority must be accompanied by an interpretivecommunity of law-actors capable of determining whether impugnedconduct is norm-violating (or not), ie to give concrete meaning tonormative obligations, and in doing so to interpret and develop the law.The interpretive community may include both Hart’s institutionalisedlaw officials, and also law-actors that are not part of the formal, judicial-type, institutions of the authority. In the context of global governance,law-declaring fora may include institutions established under an interna-tional governance regime; domestic and international courts, as well asad hoc tribunals; domestic and regional legislatures; executive bodies;(formal) commissions of international publicists; the invisible college ofpublic international lawyers; and international non-governmentalorganisations. There is no requirement that all law declaring fora reachthe same conclusion: in a legal system, interpretive actors, includingformally established courts and tribunals, often reach different conclu-sions on the application of law norms to facts.




8

Deliberative Democracy Beyond theState

THE PRECEDING ANALYSIS leads to a reformulation of theproblem of (deliberative) democracy beyond the state. Law con-cerns the exercise of authority. It is a system of communications

(‘directives’) framed in terms of law, ie coded legal/illegal, or otherbinary equivalent, issued by an authority to subjects of the legal regime,with law-actors capable of interpreting the content and application of lawnorms, and consequently of developing the law in a way that is consist-ent with ‘legislated’ norms. The (legitimate) exercise of authority isconditioned by respect for the cardinal principles of deliberative democ-racy: equality and public reason. Legitimate authority (and there is nosuch thing as illegitimate authority) depends on the exercise of authorityin accordance with the right reasons that apply to the subjects of theauthority regime, and the right reasons that apply to subjects can only bedetermined by the authority engaging with subjects through ‘democratic’mechanisms: the legitimate exercise of authority by non-state actorsdepends on an institutionalisation of the (deliberative) principles ofequality and public reason.

There remains, however, the difficulty of applying the deliberativemodel of democracy beyond the state. The objection is that democraticlaw-making is only possible within the state, which provides the contextfor collective opinion- and will-formation and the institutions of govern-ment to ensure that collective action decisions are carried out. Theproblem of democracy beyond the state leads Habermas to conclude thatgovernance functions should be allocated to one of three levels: thesupranational level of international law, limited to human rights, interna-tional peace and security, and ‘technical’ questions of cooperation; theregional level, where greater legislative activity would be permitted oncoordination and collective action problems (drawing on the experiencesof the European Union); and the democratic Rechtsstaat, which remainsthe locus for democratic self-determination. The division of regulatorylabour is normative (although it is descriptive of the emerging systems ofglobal governance). The desirability (or otherwise) of supranational andregional forms of global regulation is determined by the implications for

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democratic self-government within the state: certain (limited) forms ofglobal regulation may be good for (domestic) democracy and the welfarestate, which are under threat from the forces of (economic) globalisation,but global governance presents a threat to (domestic) democracy for thevery reason that it cannot be democratic (no demos, no democracy).Democracy beyond the state is not possible because the global publicdoes not have the capacity to imagine itself as a voluntary association offree and equal citizens with the capacity for collective will-formation.

The deliberative model is a counterfactual ideal in which a legal orderis understood to constitute itself as a voluntary association. The legalorder draws its legitimacy from the idea of collective self-determination:citizens must think of themselves as authors of the law to which they aresubject as addressees. If all possibly affected persons have participated indeliberations, with an equal opportunity to influence others, any consen-sus position may be regarded as ‘right’ or ‘just’ for that political commu-nity. A distinct principle of democracy follows, providing validity for lawnorms that can meet with the assent of all citizens in a discursive processof legislation that has been legally constituted. This chapter modifies thedeliberative model in one important respect: it does not regard a politicalcommunity as a voluntary association of free individuals, but a commu-nity constituted by the exercise of ‘authority’. The exercise of authoritydefines the demos (in the language of democratic theory and practice).The function of democracy is to legitimate the exercise of regulatorypower, and legitimise the exercise of authority. There is, on this under-standing, no reason to conclude that the deliberative model could not beapplied to the regimes of governance established by global regulators.The work first outlines the ways in which an autonomous law order canbe brought into existence by an exercise of constituent power, andrequirement of deliberative legitimacy for the assertion of authority. Itthen affirms the requirement for democratic legitimacy for the exercise of(legitimate) authority, before evaluating the possibilities of applying thedeliberative model of systems of international governance. The idea that‘those affected’ must consent to law norms is reformulated in terms of‘those subjected’, with competing concepts of (global) political justiceemerging within the fragmented regimes of global governance.

THE IDEA OF CONSTITUENT POWER

The concept of voluntariness in democratic theory legitimates the exer-cise of coercive (political) authority through the device of (original)contract. Consent is important for the establishment of voluntary associa-tions, but it does not explain and cannot justify the establishment of a

312 Deliberative Democracy Beyond the State



system of law, which is defined by the assertion of authority. Theemergence of autonomous normative orders in global governance, withprimary rules framed in terms of law and secondary (‘constitutional’)rules about rule-making, suggests that the idea of a legal system (prop-erly understood) does not depend on an expression of ‘sovereign’ will. Atthe level of the state, law-making concerns the exercise of sovereignauthority in relation to a particular territory (the idea of legal jurisdictionrelates primarily to territory); it is the exercise of regulatory authority bya government established by a constitution in relation to a politicalcommunity defined by territorial boundaries. The first question, then, ishow can ‘sovereignty’ be established in relation to a territory or politicalcommunity?

Andreas Kalyvas describes the idea of sovereignty in terms of the‘constituent subject’. The sovereign is the one who ‘determines theconstitutional form, the juridical and political identity, and the govern-mental structure of a community in its entirety’. Sovereignty is the‘supra-legislative power’ to enact the fundamental laws of law-making.The sovereign is the ‘original author of a new constitutional order’.1 Thesovereign act does not depend for its validity on any prior act ordelegation of authority: ‘It signifies a new legal beginning.’ The constitu-ent act redefines ‘[the constitutional] horizon.’ The exercise of constituentpower is truly autonomous; if the new legal order were determined bysome previous or prior (or ‘other’) legal order, ‘it would not be aconstituent power but rather a constituted power.’2 The delegation ofsovereign power from one authority to another sovereign is a revision ofthe existing legal order, not the establishment of a new legal order.

Drawing on the arguments in Habermas’ Between Facts and Norms, Kaly-vas concludes that the exercise of constituent power must be consistentwith the requirements of democratic constitution: ‘the legitimacy of thefundamental norms and institutions depends on how inclusive the partici-pation of the citizens is during the extraordinary and exceptional momentof constitution making’. The association of constituent power with demo-cratic legitimacy is unavoidable, ‘[p]recisely because the concept of theconstituent sovereign resituates the normative ideals of political freedomand collective autonomy at the center of democratic theory, it points at adistinctive theory of democratic legitimacy’. Constituent politics occurswhere citizens are ‘jointly called to be the authors of their constitutionalidentity and to decide the central rules and higher procedures that willregulate their political and social life’.3 The constituent power of a political

1 Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’(2005) 12 Constellations 223, 226.


The Idea of Constituent Power 313



community is a re-statement of the fundamental democratic principle ofself-government and self-determination, ‘according to which the peopleare the authors of the laws that govern them’. Those who will be subject tothe constitutional order must ‘co-institute it’. Validity is granted to a consti-tutional document through the ‘full participation of its prospectiveaddressees’.4 The mere fact that an actor ‘has prevailed in establishing a textclaiming it to be the higher positive law is no reason to regard it as validdemocratic law, [or] as a law binding the individuals at whom it is directed’.In the absence of inclusive procedures for the collective establishment of theoriginal constitutional structures (ie the laws and law-making reflected inthe Constitution), ‘valid legal norms do not come into existence, and thelaws created in this way are void. They are simply an expression of mightdisguised as right.’5

The focus of the analysis is the idea of (exclusive) sovereignty inrelation to territory. It provides, however, a number of important insightsfor evaluating the possibility of autonomous legal orders emergingbeyond the state. Most significantly, the recognition that a ‘Constitution’is a human creation and political invention, ‘the result of an actual deed,which brought it into being’. It is the constituent power that brings theconstitution into being:

whenever a person, a special assembly, a roundtable, a committee of lawyers,or an existing legislature drafts a new constitution, it inevitably engages in aparticular kind of activity, exercising a very special, real, and visible form ofpower – the supreme, sovereign power to write and determine the higher lawsand regulative principles of a political association.6

The establishment of an autonomous system of law does not depend forits validity on any prior act or delegation of authority. The constitution ofan international governance regimes does not occur through the delega-tion of authority by the (‘sovereign’) states parties to the constituentinstrument, but the assertion of autonomy by the legal system estab-lished through the exercise of regulatory authority by the organisation.The assertion of regulatory authority is not limited to states and interna-tional organisations established by states through an international agree-ment (ie, it does not depend on a ‘delegation’ of sovereign authority).

The assertion of jurisdiction in accordance with the basic norm or ruleof recognition of the legal system defines the boundaries of a politicalcommunity. One of the functions of law is to allow a distinction to bemade between the legitimate exercise of authority by the policeman, andillegitimate assertion of power by the gunman. Legitimate authority is





provided by the democratic rule of law. The establishment of a system oflaw involves the joining of an assertion of jurisdiction (the issuing ofregulatory directives) with the establishment of legitimate authority; atthis point, the regulatory directives of a legitimate authority are able todetermine the normative situation of others. The assertion of jurisdictionis reflected in the adoption of regulatory norms framed in terms of law(ie. coded legal/illegal, or other binary equivalent). Ad hoc invocationsof the language of (international) law (cf the Report of the WorldCommission on Dams) do not constitute a legal system with ‘law’ normscapable of determining the normative situation of others. The exercise of(legitimate) authority depends on the adoption of regulations in accord-ance with the right reasons that already apply to subjects, and these mustbe determined through democratic procedures. Consequently, whilst anynumber of non-state actors may claim to establish global regulatorystandards (framed in terms of law), the exercise of (legitimate) authority(and there is no such thing as illegitimate authority) requires the adop-tion of global regulatory norms in accordance with the principles estab-lished by the deliberative model of democracy. Where this does notoccur, the regulator is not a (legitimate) authority; ipso jure it cannot‘legislate’ global law norms. That is not to suggest that a ‘regulator’cannot enjoy de facto authority. Samantha Besson observes that manyaspects of regulation framed in terms of international law enjoy de factoauthority, with international law norms generally obeyed in practice: ‘Asa matter of fact, international law claims much more legitimate authoritythan it can ever have in practice.’7 The distinction between de facto andde jure legitimacy becomes important, however, in terms of compliancewith international law, and in cases of conflict between legal systems,notably conflict between international law orders and the state lawsystems of constitutional democracies. It is, then, essential to identify therequirements for the exercise of (legitimate) authority by global regula-tors, defined by reference to the idea of deliberative democracy.

DEMOCRACY AND THE EXERCISE OF POLITICAL AUTHORITY

Democracy does not define its own boundaries. A political community isdefined by the assertion of authority; the function of democracy is tolegitimate the exercise of regulatory authority. In the demos/democracydebate, it is important to recognise the possibility of establishing a

7 Samantha Besson, ‘The authority of international law – lifting the state veil’ (2009) 31Sydney Law Review 343, 379.

Democracy and the Exercise of Political Authority 315



functioning democratic polity whose members (citizens) will subse-quently recognise themselves as members of the same political commu-nity, providing democratic legitimacy for the exercise of politicalauthority. The avoidance of injustice requires that those subject to thelaws should regard themselves as the authors of those laws: politicaltruths emerge through a process of communicative reason that structurespolitical debate. At the level of the state, legitimate laws must enjoy theconsent of all ‘those affected’. In conditions of complexity and uncer-tainty, initial disagreement over policy is inevitable and, given that theonly force is the ‘force of better argument’, participants must rely onreasons that others might accept in order to reach a consensus. Demo-cratic politics must be conducted in accordance with the requirements ofpublic reason, and with the objective of establishing the support of ‘thoseaffected’ (‘D: Just those action norms are valid to which all possibleaffected persons could agree as participants in rational discourses.’) Therequirement of (hypothetical) consent transforms citizens from subjectsof the legal regime into the role of authors. Bargaining and compromisesare acceptable to the extent that they are agreed in accordance with theprinciple of public reason and acceptable to rational participants. Theoutcome should reflect a fair compromise between the interests of allparticipants and be potentially acceptable to all those affected, withfairness defined by reference to the external (international human rights)norms that reflect the experiences of all democratic societies and internal(constitutional) norms agreed through democratic deliberations – estab-lished both in a formal instrument (the ‘Constitution’), and the formaland informal norms and practices that construct and constrain theexercise of political authority.

The focus for the practice of democracy at the level of the state is thenational parliament, or legislature: ‘the power that makes laws’.8 Legiti-mate law-making requires that all relevant interests and perspectives arerepresented, with democratic debates in legislative bodies remaining tiedto the ‘will of the people’. Those affected must be able to participate andinfluence debates, and the process of democratic politics must place theinterests and preferences of ‘those affected’ to the forefront of delibera-tions. Enacted laws must represent a good faith attempt to legislate in theinterests of all, and in accordance with the principle of public reason. Thefact of impugned (democratic) legitimacy, evidenced by a reliance onmajority-rule, requires that the minority is afforded opportunities tochallenge the decision-making process and any inconsistency with ‘con-stitutional’ norms through some form of (judicial) review in order to





ensure the inclusion of all relevant interests and perspectives and thatdecisions can be justified in accordance with the principle of publicreason. There is no reason to conclude that the requirements of (delibera-tive) democracy could not be applied to the exercise of regulatoryauthority beyond the state.

An autonomous law order establishes its own jurisdictional bounda-ries and enters into an accountability relationship with those subject tothe legal order; it constitutes a political community and defines itsmembership. The democratic conception of authority (the ‘normal’ justi-fication for the exercise of authority) provides that the justification for(legitimate) authority is that subjects are more likely to act in accordancewith the right reasons that apply to them by subjecting themselves to theauthority than if they were to attempt to form an independent judge-ment. In order to ascertain the right reasons that apply to subjects, theauthority must engage with subjects through democratic procedures, toensure the inclusion of the interests and perspectives of those subject tothe regime in any law norms. In this way, those subject to the law cancome to regard themselves as the authors of the normative order (as wellas its subjects). There is no requirement that all subjected actors do in factparticipate, although there may be a requirement for those speciallyaffected to be consulted and to participate directly.

The establishment of valid (ie ‘democratic’) laws by internationalorganisations and other non-state actors depends on the establishment ofdiscursive and deliberative procedures within formal institutions and inthe public sphere constituted by the exercise of public authority. Non-state actors that claim (legitimate) authority are required to make publicthe reason for any decision; recognise and give effect to universal rightsto political participation, including rights to freedom of political expres-sion (the right to receive and impart information) and association; andestablish mechanisms to allow for the participation of those affected byproposed regulations. Law-making must operate in accordance with theprinciples of representation and discourse: legitimate laws require theassent of the representatives of those affected, with consensus achievedthrough rational discourses and fair bargaining. Those affected have theconstitutional right to have their interests and perspectives representedin the institutions responsible for making the laws. The democraticprinciple of representation requires that the interests and perspectives ofall those subject to the regime are included in deliberations on theadoption of global regulatory norms. The more important global lawnorms (the identification of which may be subject to reasonable disagree-ment) should be adopted by representative institutions, and not commit-tees of experts, in order that as many diverse perspectives and ways ofunderstanding the social, economic and political world as possible can be




brought into discussions. This may include the establishment of repre-sentative assemblies along the lines of the European Parliament orPan-African Parliament, and the possibility of direct or indirect elections.There is, though, no single template that can be applied to all interna-tional organisations, and whilst there may be a need to ensure some formof direct representation in relation to the United Nations, for example, aprocess of ‘parliamentarisation’ cannot be applied to the 250 plus inter-national institutions that play some role in global regulation. The solu-tion to the problem of democracy beyond the state does not lie in themultiple replications of domestic democratic institutions within theinstitutions of global governance.

There is no single model of ‘representative’ law-making that can beapplied to all international organisations. The idea of (legitimate) author-ity establishes that a regulatory body (ie, an institution that claims theright to determine the normative situation of others) unable to demon-strate that it is undertaking its regulatory function in accordance with theright reasons that apply to the subjects of its directives is not a (legiti-mate) authority – it cannot legislate international law norms. In theabsence of the (legitimate) authority provided by (deliberative) mecha-nisms to determine the right reasons that apply to the subjects of theinternational governance regime, global regulators cannot claim the rightto determine the normative position of legal persons. That is not tosuggest that all procedural deficiencies in the process of law-making willhave the effect of denying the ‘authority’ of a global regulator (systems ofpublic law often invalidate law norms without calling into question theauthority of the source of the law); only where there are systemic failingsin the procedures for the adoption of law norms, and where ‘subjects’reject the authority of norms, does the issue of the ‘authority’ of theglobal regulator become relevant.

In order to be effective regulators, non-state actors must demonstrateto sceptical domestic publics (in democratic societies) that they takeseriously the requirements of democratic law-making: the inclusion ofthe interests and perspectives of those subject to the regime with theconclusion of political deliberations representing a fair bargain betweenall interests and perspectives of the subjects of the regime; institutional-ised mechanisms to ensure the inclusion of a diversity of representation;decision-making following reasoned debate; the adoption of regulationsconsistent with (minimum) international human rights norms (as anexpression of the minimum requirements for the exercise of politicalauthority); and a sense of epistemic humility, in that any absence ofconsensus within formal decision-making bodies and the wider publicsphere should lead to a recognition of the importance of formal mecha-nisms of review and challenge and the need to allow issues to be broughtback on the agenda where new evidence or arguments are adduced. The




‘democratic’ legitimacy of an international governance regime requiresthat a non-state actor operates within a constitutional framework thatrecognises those subject to the normative regime as its authors, albeitindirectly. The (hypothetical) communicative community of an interna-tional governance regime – ‘those subjected’ – has the right to participatein decision-making processes, directly or through representatives. Inorder to be recognised as a legitimate authority, international organisa-tions and other non-state actors are required to legislate in accordancewith the right reasons that apply to those subject to the regime, and it isnot possible to do this in the absence of the representation of the interestsand perspective of subjects through formal processes for the adoption oflaw norms. No one template can be applied to all non-state actors, butthe failure to ensure the effective representation of the right reasons thatapply to subjects in decision-making processes will preclude the recogni-tion of the global actor as a (legitimate) authority. The exercise of publicpower in the absence of (legitimate) authority (even if perceived to be inthe interests of those subject to the regime) is nothing more than (benevo-lent) autocracy. A non-state actor must demonstrate to the subjects of theinternational governance regime that it has (legitimate) authority, ie theright to determine the normative situation of subjects in accordance withthe reasons that already apply to those subject to global regulatorynorms. In the absence of (legitimate) authority, the norms adopted bynon-state actors cannot be regarded as ‘law’ norms, and they do notenjoy the authority implied by the idea of the international rule of law.

In addition to the establishment of formal mechanisms to ensure theinclusion of the interests and perspectives of those subject to the govern-ance regime in relevant decision-making processes, global regulatorsmust be sensitive to the possibilities of a ‘public opinion’ emerging in theinformal (global) public spheres which are constituted by the exercise ofpolitical authority, ie within the hypothetical communicative communityconstituted by the exercise of public authority. Global regulatory authori-ties are required to develop mechanisms to allow the expressions ofopinion- and will-formation in the global public sphere to influencedebates within law-making bodies. This will, in many cases, requireproactive engagement with those subject to the regulatory regime, andintroduction of mechanisms to allow their voices to be heard and toinfluence relevant deliberations. The involvement of international civilsociety actors, ‘we the peoples’ representatives’, may link regulators withthe global public in the process of collective will-formation and ensurethat relevant interests and perspectives are included in decision-makingprocesses, in particular those of hitherto marginalised or excludedgroups. Again, no single template will apply. James Bohman, relying onNeil MacCormick, concludes that the issue is not whether some publicsphere ‘is totally or completely democratic, but whether it is adequately




democratic given the kind of entity we take it to be’.9 For a state to bedemocratic, ‘it requires a certain sort of public sphere sufficient to create astrong public via its connections to parliamentary debate’. Internationalorganisations and institutions require a ‘different sort of public sphere inorder to promote sufficient democratic deliberation’. The minimumrequirement is that participants in the public sphere must be ‘sufficientlyempowered to create opportunities and access to influence over transna-tional decision-making’. The presently ‘weak’ public spheres, which areonly able to influence public opinion, may become ‘strong publics’ whenthey are able to exercise influence through ‘institutionalized decisionprocedures with regularized opportunities for ex ante inputs’. At thedomestic level, strong publics are

assumed to be connected to a particular sort of legislatively empoweredcollective will. In the transnational case, strong publics may be required to seekmore direct forms of deliberative influence given the dispersal of authority andthe variety of its institutional locations.10

In modern societies, the legitimacy of an institution depends on thenormative validity of the political order.11 Jens Steffek defines legitimacyas the voluntarily acceptance of domination ‘on the grounds [of a belief] inits normative rightfulness’.12 The definition combines both the idea oflegitimacy as an empirical or social fact, reflected in the attitude of actorsto the exercise of authority, and the idea of normative legitimacy, whichrequires that law norms are established in accordance with certain(democratic) rules and procedures. Steffek observes that the ‘obvious lackof coercive capacities makes international domination much moredependent on voluntary compliance than governance taking place insidethe state’.13 In the absence of coercive institutions for the enforcement ofglobal regulatory norms, international organisations and other non-stateactors must rely on the acceptance of their authority by those subject tothe international governance regime. In order to be effective regulators,non-state actors must be regarded as legitimate regulators. Ian Hurdexplains that legitimacy contributes to compliance by providing an

9 James Bohman, ‘Expanding Dialogue: the Internet, the Public Sphere and Prospectsfor Transnational Democracy’ in Nick Crossley and John Michael Roberts (eds), AfterHabermas: New Perspectives on the Public Sphere, (Oxford, Blackwell/Sociological Review,2004) 131 and 148, relying on Neil MacCormack, ‘Democracy, Subsidiary and Citizenship’(1997) 16 Law and Philosophy 331, 345.

10 ibid. Bohman argues that ‘persons become citizens when they participate in aninstitutionalized public sphere backed by institutions that make it possible for them makeclaims upon each other only if they stand as equals to those who make the same claimsupon them’: ibid at 152–53.

11 SM Lipset, Political Man. The Social Bases of Politics (London, Heinemann, 1960) 77.12 Jens Steffek, ‘The Power of Rational Discourse and the Legitimacy of International

Governance’ (EUI Working Papers, RSC No 2000/46 (2000)) 5.13 ibid at 9.




internal reason for an actor to follow a rule. When an actor believes a ruleto be legitimate, compliance is no longer motivated by the simple fear ofretribution, or by a calculation of self-interest, but instead by an internalsense of moral obligation. Belief in the legitimacy of a norm may resulteither from a belief in the normative legitimacy of the rule, or thelegitimacy of the actor that generated the rule.14 The internalisation of anorm occurs when an actor defines its own interests by reference toexternal standards, laws, rules or norms. A rule becomes legitimate‘when the individual internalizes its content and reconceives his or herinterests according to the rule. Compliance then becomes habitual.’15

Once an actor internalises a rule because it perceives it as legitimate, therule

takes on the quality of being authoritative over the actor. The rule is then insome sense hierarchically superior to the actor, and partly determinate of theactor’s behavior, by virtue of contributing to the constitution of the actor’sdefinition of its own interests.

An organisation perceived by an actor as a legitimate rule-maker is in aposition of authority over the actor, where authority is defined as ‘thecondition in which power is married to legitimacy, where most compli-ance is unproblematic and only occasional deviance needs to bepoliced’.16 An external source that defines legitimate actions must beregarded as a source of ‘authoritative control, and is, for all intents andpurposes, governmental’.17

In order to be effective regulators, ie to overcome the legitimacyproblem of compliance, non-state actors must be guided in their regula-tory functions by the ‘democratic’ (ideal-type) conditions for the estab-lishment of international laws by global authorities: the inclusion of theinterests and perspectives of those subject to the regime concluding witha ‘fair bargain’; institutionalised mechanism to ensure the inclusion of adiversity of representation; decision-making following reasoned debate;the adoption of regulations consistent with (minimum) internationalhuman rights norms (a shared understanding of the requirements for theexercise of political/public authority); and a sense of epistemic humility,in that any absence of consensus demonstrates the requirement forformal mechanisms for review. The question remains, however, as to theidentity of those actors whose interests and perspectives must beincluded (and whose hypothetical consent is required). At the level of thestate, there is a taken-for-granted relationship between the (state) law

14 Ian Hurd, ‘Legitimacy and Authority in International Politics’ (1999) 53 InternationalOrganization 379, 387.





order and those subject to the law (‘those affected’). This is not the case inrelation to governance by non-state actors.

THOSE ‘AFFECTED’/‘SUBJECTED’

The practice of (deliberative) democracy is concerned with the imple-mentation of the principle of discourse: ‘D: Just those action norms arevalid to which all possible affected persons could agree as participants inrational discourses.’ The idea of ‘those affected’ is defined as ‘anyonewhose interests are touched by the foreseeable consequences of a generalpractice regulated by the norms at issue’.18 At the domestic level, the ideaof ‘all affected’ is a sub-set of the taken-for-granted class of those subjectto the jurisdiction of state law. Once the locus for law-making shifts fromthe (relatively) settled jurisdictional boundaries of the state to the moreamorphous arenas of global regulation, there is no taken-for-grantedrelationship between those asserting political authority (ie claiming theright to regulate) and those subject to global law norms.

The principle of democracy provides that valid laws should have theagreement of all citizens, and the process of law-making should be isdiscursive. Citizenship is the designation accorded to members of thepolitical community, who enjoy the the right to have a voice and a vote inpolitical processes that lead to the adoption of law norms (althoughenacted laws must be applied without arbitrary discrimination to allpersons within the jurisdiction). Whilst citizenship may be legally con-ferred, and legally defined, ‘its resonance is political’.19 Citizenship is arecognition of membership in a political community that operates underthe rule of law. The exercise of political authority by non-state actorscreates new sites for law-making and new challenges for democraticrepresentation. Once governance functions are exercised by non-stateactors, it becomes difficult to make sense of the idea of citizenship.Having established the ‘how’ of political justice (deliberative proceduresin accordance with public reason and including all those affected), it

18 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Lawand Democracy, trans by William Rehg (Oxford, Polity, 1996) 107.

19 Michael Newman, Democracy, Sovereignty and the European Union (London, Hurst,1996) 141. Carole Lyons refers to the idea of ‘functional citizenship’, which is instrumentallyrelated to material benefits and rights, as opposed to non-functional or affective citizenship,rooted in nationality centred emotions and conditions: Carole Lyons, ‘The Limits ofEuropean Union Citizenship’ in Zenon Bankowski and Andrew Scott (eds), The EuropeanUnion and its Order: the Legal Theory of European Integration (Oxford, Blackwell, 2000) 149. Onthe idea of European Union citizenship, Joseph Weiler argues that the substance ofmembership is in a commitment to the shared values of the Union, expressed in itsconstitutive documents: JHH Weiler, ‘Does Europe Need a Constitution? Demos, Telos andthe German Maastricht Decision’ (1995) 3 European Law Review 219, 252.




becomes necessary to establish the ‘who’ of political justice (the class ofactors that determines the ‘what’ of political justice).

Once the boundaries of political community can no longer be taken forgranted, the first ‘democratic’ problem is the identification of thosepersons whose interests and perspectives are entitled to representation.Nancy Fraser refers to an idea of ‘misframing’, which occurs where theboundaries of a political community are drawn in such as way ‘as towrongly exclude some people from the chance to participate at all in itsauthorized contests over justice’.20 The idea of (political) justice is definedin ‘radical-democratic’ terms of parity of participation in collectivedecision-making procedures.21 In its political conception, the idea ofjustice provides the context for debates about the distribution of publicgoods and the politics of recognition. The political dimension of justicedefines those included (and by implication those excluded from theentitlement to a just distribution and reciprocal recognition). The politicalconception of justice establishes the rules of the (political) game forresolving disagreements over the norms that regulate social, economicand political life: ‘it tells us not only who can make claims for redistribu-tion and recognition, but also how such claims are to be mooted andadjudicated’. In the application of a political conception of justice, whichrequires that each political community work out, through democraticprocedures, its own conception of justice, the ‘who’ of justice becomesmore important that the ‘what’ of justice. The principal questions, asFraser observes, are:

[D]o the boundaries of the political community wrongly exclude some who areactually entitled to representation? Do the community’s decision rules accordequal voice in public deliberations and fair representation in public decision-making to all members?22

Representation is the defining issue in political justice. Political injusticeis defined by misrepresentation. This may be understood in one of twoways: decision-making rules may wrongly deny some members of thepolitical community the right to participate on a basis of full equality(‘ordinary-political misrepresentation’); more fundamentally, the bounda-ries of the community (the boundaries of justice) may be drawn towrongly exclude certain people from the chance to participate at all indebates over the meaning of (political) justice. In the second case,‘misrepresentation takes a deeper form of “misframing”.’23 Where ques-tions of political justice are wrongly framed to exclude individuals from

20 Nancy Fraser, ‘Reframing Justice in a Globalizing World’ (2005) 36 New Left Review 69,76 (emphasis in original).

21 ibid at 73.22 ibid at 75.23 ibid at 76 (emphasis in original).

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consideration, ‘the consequence is a special kind of meta-injustice, inwhich one is denied the chance to press first-order justice claims in agiven political community’.24

An autonomous legal order manifests its own sense and vision of(political) justice in the framework of its constitutional settlement and inthe adoption of political laws. The globalisation and fragmentation ofgovernance has resulted in a proliferation of (global) law orders. Oncethe frame for political justice can no longer be taken for granted as thesovereign territorial state, it becomes important to ascertain the ‘who’ ofpolitical justice: who is entitled to participate in discussions aroundpolitical justice in the systems of global governance. Fraser concludesthat the most promising candidate for defining the ‘who’ of politicaljustice is the all-affected principle: ‘all those affected by a given socialstructure or institution have moral standing as subjects of justice inrelation to it’. The ‘fellow subjects of justice’ are defined by reference totheir ‘co-imbrication in a common structural or institutional framework,which sets the ground rules that govern their social interaction, therebyshaping their respective life possibilities in patterns of advantage anddisadvantage’.25

In defining political justice by reference to the ‘all affected’ principle,Fraser follows Habermas: deficits in democratic legitimacy result whenthe circle of all those involved in democratic decision-making does notextend to cover all those affected by those decisions. The idea thatinternational organisations are accountable to ‘those affected’ by theirglobal law regulations is increasingly common in the literature,26 andreflected in a number of international instruments,27 and the practices of

24 ibid at 77.25 ibid at 82. See further Robert Goodin, ‘Enfranchising All Affected Interests, And Its

Alternatives’ (2007) 35 Philosophy and Public Affairs 40.26 De Wet argues that the constituency entitled to claim accountability from an interna-

tional institution can consist of a variety of international actors, ‘provided their interests orrights are affected by the conduct of the international institution in question’: Erika de Wet,‘Holding International Institutions Accountable: the Complementary Role of Non-JudicialOversight Mechanisms and Judicial Review’ (2008) 9(11) German Law Journal 1987, 1990.

27 The Cardoso Report on United Nations–Civil Society Relations argues that theorganisation should be guided inter alia by the principle of participation, ie ‘involvingpeople in decisions that affect them’: ‘Cardoso’ Report of the Panel of Eminent Persons onUnited Nations–Civil Society Relations, ‘We the Peoples: Civil Society, the United Nationsand Global Governance’ UN Doc A/58/817 para 186. See also (Aarhus) Convention onAccess to Information, Public Participation in Decision-making, which defines ‘The publicconcerned’ as the ‘public affected or likely to be affected by, or having an interest in, theenvironmental decision-making’: (Aarhus) Convention on Access to Information, PublicParticipation in Decision-making and Access to Justice in Environmental Matters (1999) 38ILM 517 art 2(5).




international organisations and institutions.28 Asserting a principle that‘those affected’ (or their representatives) have a right to participate in thedecision-making process of international organisations is easier thanidentifying the relevant constituency. Grant and Keohane observe that ifbeing affected was a sufficient criterion for inclusion, then ‘anyone whobuys gasoline would be entitled to participate in OPEC’s deliberations’.29

On closer examination, the ‘all affected’ principle proves unsuitable fordeveloping a concept of deliberative legitimacy for the exercise of politi-cal authority by non-state actors. First, the idea is invariable defined byreference to (international) human rights,30 or material and financialconsiderations, reflecting particular ways of seeing the world (and par-ticular value systems). Secondly, reliance on the ‘those affected’ principleleads to shifting boundaries of political constituency on policy issues,with international organisations finding themselves accountable to differ-ent constituencies on different questions of policy (with different require-ments for representation). Thirdly, given that it is often possible for anindividual to claim (and demonstrate) that they have in some way beenaffected by a global regulatory norm, the principle is invariably reformu-lated to include only those who are ‘significantly affected’ (etc), with thetest for inclusion (ie, the claim to be affected) becoming both (more)indeterminate and subjective.

In subsequent writings, Fraser repudiates the ‘all affected’ principle,substituting an ‘all-subjected principle’. The problem with the ‘allaffected’ principle is the ‘butterfly effect’ (following chaos theory), whichconcludes that all actors are potentially affected by all global and localevents – mutatis mutandis all persons are potentially affected by theactivities of all international organisations and institutions. The ‘all-subjected principle’ limits the rights of political participation to ‘all thosewho are subject to a given governance structure’.31 It is their ‘jointsubjection to a structure of governance, which sets the ground rules that

28 See, for example, the acceptance by the Security Council of a requirement to providereasoned justification for the listing of persons under the ‘1267 sanctions regime’. Resolu-tion 1735 (2006) requires ‘a statement of case’ for the listing of an individual, to include‘specific information supporting a determination that the individual or entity’, and support-ing documentation, for the listing of a person as being associated with the Taliban, AlQaeda, or Osama bin Laden: SC Res 1735 (2006) para 5. See also Ved Nanda, ‘Accountabilityof International Organizations: Some Observations’ (2005) 33 Denver Journal of InternationalLaw and Policy 379, 383.

29 Ruth Grant and Robert Keohane, ‘Accountability and Abuses of Power in WorldPolitics’ (2005) 99 American Political Science Review 29, 33.

30 Carol Gould argues that ‘people are to be regarded as importantly affected when theyare affected in their possibilities of realizing their basic human rights’: Carol Gould,‘Self-Determination Beyond Sovereignty: Relating Transnational Democracy to LocalAuthority’ (2006) 37 Journal Of Social Philosophy 44, 54.

31 Nancy Fraser, ‘Abnormal Justice’ (2008) 22. Available at www.law.yale.edu/documents/pdf/Intellectual_Life/ltw_fraser.pdf (last visited 24 July 2009).

Those ‘Affected’/‘Subjected’ 325



govern their interaction’.32 The idea of governance includes non-stateactors, such as the World Trade Organization and International MonetaryFund, that generate enforceable rules that structure social interaction. Inthe establishment of a political conception of justice, the ‘who’ of politicaljustice, those entitled to representation in public deliberations about the‘what’ of political justice, are defined by their subjection to the regulatorydirectives of the international organisation or other non-state actor: anissue is justly framed ‘if and only if everyone subjected to the governancestructure(s) that regulate the relevant swath(s) of social interaction isaccorded equal consideration’.33 What is required is the invention of ‘newglobal democratic institutions where disputes about framing can be airedand resolved[,] [in addition to] new institutions for staging and provi-sionally resolving such disputes democratically, in permanent dialoguewith transnational civil society’.34 The argument is for agreement on firstprinciples of political justice in conditions of regulatory complexity and arecognition of the dangers for political injustice that result from theglobalisation and fragmentation of regulatory functions in the modernworld of law and politics.

An autonomous law order establishes its own jurisdictional bounda-ries and enters into an accountability relationship with those subject tothe legal order. The democratic conception of authority (the ‘normal’justification for the exercise of authority) establishes that the justificationfor (legitimate) authority is that those subject to authority are more likelyto act in accordance with the right reasons that apply to them bysubjecting themselves to the authority than if they were to attempt toform an independent judgment. In order to ascertain the right reasonsthat apply to subjects, the authority must engage in democratic proce-dures to ensure the inclusion of the interests and perspectives of thosesubject to the regime in any law norms. In this way, those subject to thelaw can regard themselves as the authors of the normative order (as wellas its subjects). The exercise of political authority defines ‘those sub-jected’. In relation to global governance regimes, the idea of ‘thosesubjected’ includes states and international organisations, corporationsand other non-state actors, and individuals – any legal actor may besubject to the authority directives of an autonomous system of law.‘Those subjected’ include both actors de jure subject to authority direc-tives and those de facto subject to regulatory norms, ie those actorsobliged to comply with the directives of the authority. Those de juresubject are those referred to directly in normative provisions; those defacto subject include all those legal actors in fact subject to regulation.

32 ibid at 23 (emphasis added).33 ibid at 23–24.34 ibid at 28.




One example would be the directives of the Basel Committee on BankingStandards, which apply to those states that are members of the Commit-tee (‘de jure’), and de facto to many other states who find themselvessubject to pressures from the financial markers and international finan-cial institutions to comply with the Basel I Accord. The recognition thatthose de jure and de facto subject are included in the idea of ‘thosesubjected’ is central to the democratisation of global regulatory regimes.

THE POLITICAL CONCEPT OF GLOBAL JUSTICE

The idea that those subject to the law have the democratic right to anequal say in the questions of justice that frame the exercise of publicauthority is developed by John Rawls. According to the liberal concept of(political) justice, power can only be legitimately exercised in accordancewith a constitution, the essentials of which all citizens as free and equalpersons ‘may reasonably be expected to endorse in the light of principlesand ideals acceptable to their common human reason’.35 All constitu-tional questions and questions about justice should be settled in accord-ance with principles and ideals acceptable to the common reason of thesubjects of the political order. A constitutional settlement, includingquestions of justice, must be both rational and reasonable: persons arereasonable when they are ready to propose ‘fair terms of cooperation andabide by them willingly, given the assurance that others will likewise doso’.36 The political conception of justice for a liberal society must beworked out in accordance with the principle of public reason. The subjectof public reason is the good of the public, the public conception ofjustice.37 The idea of public reason legitimises the exercise of coercivepolitical authority in the name of the people. Rawls differs from Haber-mas in restricting the application of public reason to constitutional lawson law-making and the limits of majority rule, and not the laws of thedemocratic Rechtsstaat more generally.38 The content of public reasonspecifies certain basic rights, liberties and opportunities familiar to liberaldemocracies, and accords a certain priority to these rights. It also guaran-tees citizens adequate opportunities to make effective use of their rightsand opportunities.39 The concept of public reason applies in publicpolitical fora: the discourse of judges in their decisions (especially thosein a Supreme Court); the discourse of government officials exercising

35 John Rawls, Political Liberalism (New York; Chichester, Columbia University Press,2005) 137.


The Political Concept of Global Justice 327



governmental authority; and the discourse of candidates for publicoffice.40 Democratic politics and law must be conducted in accordancewith the principle of public reason. Ideally, citizens should think ofthemselves ‘as if they were legislators’, and ask what laws it would be mostreasonable to enact, ‘supported by what reasons satisfying the criterionof reciprocity’.41 Rawls refers to the idea of a ‘well-ordered constitutionaldemocracy… understood also as a deliberative democracy’. The defini-tive idea of deliberative democracy is deliberation: the exchange of viewsand perspectives on political questions, with arguments supported byreasons. The essential elements of deliberative democracy are the idea ofpublic reason, a framework of constitutional laws, democratic institu-tions, and the commitment of democratic citizens to the public reason.42

Rawls’ concept of political justice was developed in the context of thedemocratic state: a self-contained unit whose members ‘enter it only bybirth and leave it only by death’.43 The liberal political communityimagines itself to be both autonomous and enduring, with the commu-nity and its membership defined by the exercise of authority. Theinvoluntary subjugation of individuals (‘citizens’) to a (coercive) politicalorder raises the very questions of justice.44 Following Rawls, ThomasNagel argues that (political) justice can only be achieved in the context ofthe state, as it requires ‘the coordinated conduct of large numbers ofpeople, which cannot be achieved without law backed up by a monopolyof force’.45 The political conception regards justice as a political value – itis an ‘associative obligation’, something that we owe to others throughco-membership in political institutions.46 At the level of global govern-ance there may be standards or norms framed in terms of law, but these‘do not merit the full name of justice’.47 The right to justice follows frommembership in a political society, and the ‘dual role each member playsboth as one of the society’s subjects and as one of those in whose name itsauthority is exercised’.48 The role of author and subject are not chosen,but assigned by the fact of political association: ‘society makes usresponsible for its acts, which are taken in our name and on which, in ademocracy, we may even have some influence’.49 The ‘unique demands’

40 ibid at 443.41 ibid at 445.42 ibid at 448.43 ibid at 12.44 ibid at 216.45 Thomas Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs

113, 115.46 ibid at 121 (emphasis in original).47 ibid at 122.48 ibid at 128. See also, Saladin Meckled-Garcia, ‘On the Very Idea of Cosmopolitan

Justice: Constructivism and International Agency (2008) 16 Journal of Political Philosophy 245.49 ibid at 129.




that the state makes on its members ‘bring with them exceptionalobligations, the positive obligations of justice’.50

Nagel’s argument is that political institutions create ‘contingent, selec-tive moral relations’. There may be other, non-contingent, universalrelations to other human persons (a ‘minimal humanitarian morality’),but that does not demand that ‘we make their ends our own’.51 Theobjection to arbitrary inequalities resonates only in a societal context. Thepolitical conception of justice requires that we accord equal status to allpersons that we are joined with in a ‘strong and coercively imposedpolitical community’.52 The argument only applies at the level of thestate. It does not apply to international organisations, which are not

collectively enacted and coercively imposed in the name of all the individualswhose lives they affect; and they do not ask for the kind of authorization byindividuals that carries with it a responsibility to treat all those individuals insome sense equally.53

Nagel concludes that arguments around the political legitimacy of inter-national organisations are reminiscent of those around the legitimacy ofstate government, where ‘sovereignty usually precedes legitimacy…[T]he path from anarchy to justice must go through injustice’, which, inthe context of global governance, requires the development of ‘effectivebut illegitimate institutions’.54

The argument is rejected by Cohen and Sabel, who conclude that equalconcern for co-members follows the fact of the exercise of politicalauthority by an institution with responsibilities for distributing a publicgood and rules for mutually beneficial cooperation. The allocation ofpublic goods is no longer the exclusive responsibility of states; interna-tional organisations such as the United Nations, World Trade Organiza-tion and International Monetary Fund are important global actors, and itis often not possible for states to avoid their regulatory reach. It makes nosense to limit rights of political participation and the idea of democraticopinion- and will-formation to the domestic level.55 There is

a direct rule-making relationship between the global bodies and the citizens ofdifferent states. In an attenuated but significant way, our wills – the wills of all

50 ibid at 130.51 ibid at 131.52 ibid at 133.53 ibid at 138.54 ibid at 147.55 Joshua Cohen and Charles Sabel, ‘Extra Rempublicam Nulla Justitia?’ (2006) 34

Philosophy and Public Affairs 147, 153. According to Bhikhu Parekh, international organisa-tions ‘embody and nurture the spirit of global solidarity’: Bhikhu Parekh, ‘Cosmopolitan-ism and Global Citizenship’ (2003) 29 Review of International Studies 3, 14.

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subject to the rule-making authority – have been implicated, sufficiently muchthat rules of this type can only be imposed with a special justification.56

The exercise of effective political authority through law requires justifica-tion to those subject to the (global) regulatory regime. Elsewhere, Cohenand Sabel observe that the ‘emergence of global politics is marked by aproliferation of political settings beyond domestic boundaries’. The glo-balisation of governance has resulted in new political actors, ‘shifting ourunderstanding of political units and of relations among them’.57 Dismiss-ing the possibility of a global democratic state, defined by reference tocompetitive elections, they conclude that the fragmented systems ofglobal governance must be subject to the disciplining power of publicreason.58 There is a need to apply the cardinal principle of deliberativedemocracy (‘the force of better argument’) to global regulators. The aimof a deliberative process is to find solutions that others can accept. Anynumber of processes might be both possible and acceptable within themany global public spheres, ‘loosely linked by elements of global publicreason and global politics more generally’.59 The practice of globalpolitics would allow for the emergence of a common global identity: ‘wewould have a global demos[,] [with] sufficiently many of the indicia of apeople … to make sense of talk of a global democracy without a globalstate’.60

Gráinne de Búrca builds on the argument to call for an approach to thedemocratisation of global governance that emphasises the fullest possibleparticipation and representation of those affected.61 The argument is for a‘democratic-striving or democracy-developing approach’ that is both‘dynamic and inchoate’.62 The democratic principle of the fullest possibleparticipation and representation of those affected would be central to thedesign of global governance structures, rather than issues such as policyeffectiveness or efficiency.63 The focus would be on ‘functional participa-tion’, the involvement of interest groups, but without defining inadvance those groups that would enjoy a ‘privileged stake in decision-making’. Central to the argument is the democratic principle of politicalequality, which concerns the idea of equal opportunity to participate inthe process of governing, and equal consideration for the interests of all

56 ibid at 168.57 Joshua Cohen and Charles Sabel, ‘Global Democracy?’ (2006) 37 New York University

Journal of International Law and Policy 763, 763.58 ibid at 779.59 ibid at 796.60 ibid at 797.61 Gráinne De Búrca, ‘Developing Democracy Beyond the State’ (2008) 46 Columbia

Journal of Transnational Law 221, 222.62 ibid at 249.63 ibid at 250.




members of the community.64 Rights to equal opportunities for participa-tion and equal consideration would be accorded to ‘those concerned andaffected by the policies being made’, but the class of individuals wouldnot be determined in advance and would not be defined at any once andfor all point in time. The first step would be to identify those groups,interests and individuals most likely to be concerned by the policies inquestion, but it must always be possible for other groups, interests andindividuals to be recognised as having a potential claim to be included.65

The idea of political justice establishes the ‘constitutional’ limits on‘pure’ political will, including the idea of human rights and values thatframe the exercise of public authority. Norms and principles of politicaljustice must be agreed by those subject to the legal order throughdemocratic debate (both within and outside of formal institutions). Thelocus for ‘constitutional’ debates about the nature of justice is no longer(if it ever was) constrained by the boundaries of the sovereign state. Anautonomous legal order is established where law officials act in accord-ance with a rule of recognition, or basic norm, that provides validity forall norms in the legal order and constitutes the legal order as a singlesystem of law. All legal systems have primary rules that determine thenormative situation of subjects, and secondary (or ‘constitutional’) rulesthat frame and delimit the exercise of regulatory authority in accordancewith democratically agreed justice norms (the exercise of (legitimate)authority is determined by the requirements of deliberative democracy).The absence of coercive (governmental) institutions for the enforcementof law norms is irrelevant in establishing the existence (or otherwise) ofan autonomous system of law, and once established, an autonomoussystem of law – by definition – exercises its global regularly functions inaccordance with its own conception of political justice, worked outthrough democratic procedures.

CONCLUSION

In the practice of democracy at the level of the state, ‘those affected’ are asubset of ‘those subject’ to law norms. Democratic laws represent anexpression of the will of the people as a whole, but the liberal principle ofconsent (and concern for injustice) provides that laws are legitimate(according to the deliberative model) only where those who will beaffected by the law consent to its introduction. Following the globalisa-tion and fragmentation of regulatory functions, the ‘law’ norms thatframe social, economic and political life are not only the product of state


Conclusion 331



law procedures. Non-state actors have emerged as significant actors inglobal regulation, often with few opportunities for those subject to, oraffected by, global norms to participate in the processes that lead to theiradoption. At the level of the state, democratic procedures and institutionslegitimate the exercise of coercive political authority in a taken-for-granted political community. Historically, the development of liberaldemocracy has been inseparable from the building and consolidating ofthe sovereign nation-state, with a ‘symmetrical or congruent relation-ship… presumed to exist between those experiencing outcomes andthose taking decisions’.66 The modern idea of democracy developed inthe context of the (sovereign) state, and has, thus far, only been (albeitimperfectly) successfully practiced at the level of the state, although, asLars-Erik Cederman observes, the fact that democracy and the state‘“grew up together” does not mean that the two are indissolublylinked’.67 Hitherto, demos has been defined by reference to membership ina taken-for-granted political community — the state. The mythologyaround the idea of a social contract between government and governed(the ideal of a voluntary association) has, though, underplayed the role ofdemocracy in legitimating the exercise of coercive authority. Demos didnot define its own boundaries, it was defined by the exercise of politicalauthority.

The requirements for valid global regulation (in terms of internationallaw) are, first, the issuing of regulatory directives framed in terms ofinternational law, and, secondly, a recognition that the global ‘regulatory’actor enjoys legitimate authority. The exercise of legitimate authoritydepends on the adoption of regulations in accordance with the rightreasons that apply to subjects, determined through (deliberative) demo-cratic procedures. It depends on deliberative forms of decision-makingthat take into account the interests and perspectives of those subject tothe directives of the law order. The ‘democratic’ legitimacy of theinternational law norms of an international governance regime requiresthat a non-state actor operates within a constitutional framework thatrecognises those subject to the normative regime as its authors, albeitindirectly. Members of the communicative community of the interna-tional governance regime — ‘those subjected’ — have the right toparticipate in decision-making processes, directly or through representa-tives. In order to be recognised as a legitimate authority, a non-state actormust legislate in accordance with the right reasons that apply to those

66 Susan Marks, ‘Democracy and International Governance’ in Jean-Marc Coicaud andVeijo Heiskanen (eds), The Legitimacy of International Organizations (Tokyo, United NationsUniversity Press, 2001) 47, 50.

67 Lars-Erik Cederman, ‘Nationalism and Bounded Integration: What It Would Take toConstruct a European Demos’ (2001) 7 European Journal of International Relations 139, 157.




subject to the regime, and it is not possible to do this in the absence of therepresentation of the interests and perspective of ‘those subject’ in formalprocesses. No one template will apply to all international organisationsand other non-state actors, but the failure to ensure the effective repre-sentation of the right reasons that apply to subjects will preclude therecognition of the global regulator as a (legitimate) authority; the direc-tives issued by a global regulator that does not enjoy (legitimate) author-ity cannot be regarded as international law norms (properly so-called).

Conclusion 333



9

Democracy in Conditions of GlobalLegal Pluralism

THERE IS A developing recognition of the need for the disciplineof international law to engage with the insights of legal pluralismin order to evaluate and make sense of the idea, authority and

application of law following the globalisation and fragmentation of gov-ernance. The dominant positivist (or ‘Westphalian’) analysis provided thatthe sovereign will of a taken-for-granted political community providedvalidity for both (internal) state law, and (external) international law. Theliterature on legal pluralism demonstrates a need to be more open mindedin defining and understanding the concept of law, highlighting the possibil-ity of individuals being subject to the legal systems of non-state (non-sovereign) actors.1 The traditional focus of legal pluralism has been oncommunities within the state: religious communities, indigenous peoples,etc. Gunther Teubner argues that the globalisation of law requires thattheories of legal pluralism shift their focus ‘from groups and communitiesto discourses and communicative networks’.2 In conditions in which thestate does not possess a monopoly on norm-creation, as opposed to thelegitimate use of coercive force, the definitive issue to consider is ‘where areconcrete norms actually produced?’3 The following sections examine theconcept of normative pluralism, and the need for an analytical concept of(global) legal pluralism. The work then applies the deliberative model ofdemocratic legitimacy to the idea of global legal pluralism, concluding thatthe democratic legitimacy of law requires (ultimately) that constitutionaldemocracies evaluate the democratic legitimacy of the authority of publicinternational law and the regulatory norms of international organisationsand other non-state actors, and reflect on their own laws and practices inlight of the political truths (defined in terms of right policy or politicaljustice) established in other systems of law.

1 See Paul Schiff Berman, ‘Global Legal Pluralism’ (2007) 80 Southern California LawReview 1155, 1193.

2 Gunther Teubner, ‘Global Bukowina’: Legal Pluralism in the World Society’ inGunther Teubner (ed), Global Law Without a State (Aldershot, Dartmouth, 1997) 3, 7.

3 ibid at 11.

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PLURALISM IN GLOBAL GOVERNANCE

The globalisation and fragmentation of governance has created a numberof problems for the practice of democracy: the norms that regulate social,economic and political life are legislated by democratic institutionsestablished in accordance with the domestic constitutional settlement,but subject to international law norms; public international law normsare increasingly intrusive in the regulation of matters previously withinthe domaine réservé of states; the consent of the state is not alwaysrequired for international law norms to be opposable to the state; andinternational organisations and other non-state actors are increasinglyimportant producers of ‘law’. There is a loss for democracy, given that thepeople do not decide for themselves, by democratic political procedures,all those conditions of their lives that are politically decidable. Theargument here is that international law norms (the argument appliesequally to state law norms) enjoy (legitimate) authority only whereadopted in accordance with the right reasons that apply to subjects, withright reasons identified through democratic procedures. The focus is thedyadic relationship between authority and subject. In the real world ofglobal governance, however, a legal actor may be subject to the regula-tory directives of a number of legal systems, which are not organised inaccordance with any constitutional settlement. The complexities areevidenced by the facts that more than one state law may apply in anygiven circumstances, reflected in jurisprudence on the conflict of lawsand non-territorial bases of jurisdiction; international law norms mayconflict, in relation, for example, to treaty and customary internationallaw, and in the application of different international law norms (non-intervention, protection of human rights, etc); and the disorganised formsof international governance established by the various sectoral regimesmay assert jurisdiction in relation to the same act or actor. Pluralitywithin system type is complicated by a plurality of system type, as statelaw, international law and international governance regimes may assertjurisdiction in a given social arena, leading to overlapping and poten-tially conflicting law norms, with no a priori reason to privilege orprioritise one legal norm over another. Following the globalisation andfragmentation of governance, in the counterfactual ‘democratic’ ideal, asDennis Thompson observes, the problem of democracy might be ‘theproblem of many majorities’, which results from the fact that ‘decision-making authority is dispersed, and that no majority has an exclusive andoverriding claim to democratic legitimacy’.4

4 Dennis Thompson, ‘Democratic Theory and Global Society’ (1999) 7 Journal of PoliticalPhilosophy 111, 112.

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The complexities reflected in an acceptance of a condition of legalpluralism in global governance are not the result of the collapse of theWestphalian settlement which allocated political authority to (relatively)clearly delimited political communities. Legal pluralism was (andremains) a feature of the Westphalian system: more than one state lawmay apply in any given circumstance, international law norms mayconflict, and the application of different international law norms mayprovide for different outcomes. Article 38(1) of the Statute of the Interna-tional Court of Justice does not, for example, with the limited exceptionof judicial decisions and the writings of publicists (which are regarded asa ‘subsidiary means for the determination of rules of law’), recognise anyhierarchy of international law norms, certainly not as between customand treaty: the adoption of a treaty does not subsume and supervene aconflicting norm of customary international law, ‘customary interna-tional law continues to exist alongside treaty law’.5 There is an informalhierarchy, in that ‘treaties generally enjoy priority over custom andparticular treaties over general treaties’, but this is merely incidental tothe fact that most general international law is jus dispositivum, permittingstates to derogate from it by establishing specific rights or obligations togovern their relations.6

A condition of legal pluralism exists where more than one legal systemasserts (seemingly valid) jurisdictional authority over a particular act oractor at a particular moment. The dominant assumption in the literatureon legal pluralism is that the sovereign state does not have a monopolyon the establishment and enforcement of law norms (as opposed to socialnorms), or application of the word ‘law’ to its normative provisions.7Whilst official forms of state law are clearly ‘law’, the pluralist approach‘acknowledges that such official assertions of jurisdiction are only one ofthe many ways in which normative commitments arise’. Non-statenorm-generating communities can also ‘seize the language of law and

5 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States)(Merits) [1986] ICJ Rep 14 [176].

6 Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising fromthe Diversification and Expansion of International Law, Report of the Study Group of theInternational Law Commission’, finalised by Martti Koskenniemi (13 April 2006) UN DocA/CN.4/L.682 para 95..

7 Roger Cotterrell identifies four approaches to legal pluralism: an ‘orthodox juristicapproach’, which, following Hans Kelsen, asserts that there must be a single criterion of lawthat can be applied to the diversity of legal regimes, with the criterion determining therelationship between the regimes (and structure of legal authority within and betweenregimes); an agnostic approach, adopted by William Twining, which avoids any finaldetermination of the criterion of law; a statist approach that identifies ‘legal’ regimes byreference to criteria modelled on state law systems; and the approach adopted by BrianTamanaha, which seeks to release the concept of law from its association with state law:Roger Cotterrell, ‘Transnational Communities and the Concept of Law’ (2008) 21 Ratio Juris1, 8.

336 Democracy and Legal Pluralism



articulate visions of future worlds’.8 The standard example concerns thecustomary laws of indigenous communities. The experience of colonial-ism resulted directly in a situation of legal pluralism, which oftenremained following sovereign independence for colonised territories, asEuropean legal systems were superimposed on other parts of the world,with the aim of ‘civilizing’ the people, ie reshaping their social, economic,legal and political conditions. The result ‘was a legal pluralism in whichculturally very different legal systems coexisted that were vastly unequalin power’.9 Sally Engle Merry refers to this intersection of indigenous lawand (European) ‘state’ law (often applied in non-European states) as‘classic legal pluralism’, in distinction to ‘new legal pluralism’, whichconcerns the application of the concept of legal pluralism to ‘noncolo-nized societies, particularly to the advanced industrial countries ofEurope and the United States’.10

The idea of legal pluralism can be applied both within and betweenlegal systems. Within a legal system, the rule of law suggests thatprinciples of legal hierarchy and rules of interpretation will resolveconflicts between apparently equally applicable law norms: it should bepossible to determine the position of parties to a legal dispute inaccordance with the (constitutional) rules about rules. Where legal normsconflict, the rule of law operates in a ‘jurispathic’ manner, killing off oneof the legal norms, or refusing to apply it in the particular case.11 Thepossibility of inconsistent rules is recognised, but regarded as problem-atic from the perspective of the rule of law, as it will place an individualin a position where to act in a particular way results in law-breakingbehaviour; equally not to act results in a violation of a law norm.

A more radical version of legal pluralism accepts the possibility thatmore than one form of law can apply in a particular social arena withoutany ‘constitutional’ rules able to reconcile conflicting law norms. Law isonly capable of resolving conflicts of law norms in accordance with thescience of law. If a conflict between law norms can be resolved inaccordance with legal rules or principles then we must accept one of twopossibilities: either the law norm that prevails is a ‘higher’ norm (or theproduct of a ‘higher’ system of law), or the conflict between equal norms(or systems of law) can be resolved by a third ‘higher’ norm (or system oflaw). Both conclusions are inconsistent with the central lesson of legalpluralism, ie that legal systems are autonomous, and by definition cannot

8 Paul Schiff Berman, ‘The Globalization of Jurisdiction’ (2002) 151 University ofPennsylvania Law Review 311, 493.

9 Sally Engle Merry, ‘Anthropology, Law, and Transnational processes’ (1992) 21Annual Reviews in Anthropology 357, 363.

10 Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869, 872.11 cf Robert Cover, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 40.

Pluralism in Global Governance 337



be subject, as a matter of law, to the authority of another legal system (ifthat were the case, the system would not be an autonomous system oflaw, but would form part of the other legal order).

The radical version of legal pluralism has traditionally been associatedwith a rejection of any claim by the state to enjoy a monopoly on thecreation of law norms. The argument for state-centralism is summarisedby Robert Cover:

the state and its designated hierarchy are entitled to the exclusive or supremejurisgenerative capacity. Everyone else offers suggestions or opinions about whatthe single normative world should look like, but only the state creates it.12

Cover rejects the statist paradigm, arguing that the creation of ‘legal mean-ing – “jurisgenesis” – takes place always through an essentially culturalmedium’. The state is ‘not necessarily the creator of legal meaning, thecreative process is collective or social’.13 Commonality of interests andobjectives may result in patterns of social behaviour, in which groups ofindividuals ‘generate their own articulate normative orders[:] a newnomos, with its attendant claims to autonomy and respect’.14 The jurisgen-erative process is one in which autonomous communities create law andgive meaning to law through their own narratives and understandings. Thefocus is small, face-to-face communities, usually defined by reference toreligious belief, with the analysis demonstrating that members of a groupare often willing to comply with the laws of the group at a significant cost tothemselves; that state law orders are rarely experienced as richly or pain-fully as those of smaller groups; that there is no reason to conclude that thelaw of the groups is necessarily liberal, or ‘good’; and, as Judith Resnikobserves, ‘the thinner version of law associated with nation-states mayhave less durability over time, even as it can be more powerful (“juris-pathic”) in a particular instance’.15

NORMATIVE PLURALISM

Brian Tamanaha identifies the following forms of normative ordering inthe literature on legal pluralism:16 official legal systems; customary

12 ibid at 43.13 ibid at 11.14 ibid at 34.15 Judith Resnik, ‘Law as Affiliation: “Foreign” Law, Democratic Federalism, and the

Sovereigntism of the Nation-State’ (2008) 6 International Journal of Constitutional Law 33, 64.16 Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’

(2008) 30 Sydney Law Review 375, 397 – 399.




(‘cultural’)17 normative systems;18 religious (‘cultural’) normative sys-tems;19 economic or capitalist normative systems;20 functional normativesystems;21 and community (again, ‘cultural’) normative systems.22 Thefinal five are defined in relation to their distinction to the first. The idea,problems and possibilities of legal pluralism occur because, as Tamanahapoints out, each of the six sources of normative ordering ‘typically makeone or more of the following claims: they possess binding authority, theyare legitimate, they have normative supremacy, and they have (or shouldhave) control over matters within their scope’.23

Official legal systems are characteristically linked to ‘an institutional-ized legal apparatus of some kind’, legislatures and courts, with formalrules concerning rights and responsibilities. There may be more than oneofficial source of law in a ‘social arena’, with, for example, individuals inthe European Union (EU) subject to laws of the state, the laws of the EU,and international law norms.24 Laws of the EU and international laws(not defined by Tamanaha) constitute ‘official legal systems’. The place ofinternational law is not clear. Simon Roberts observes that, traditionally,the term ‘law’ has been associated with power, with reference to a‘normative repertoire’ or ‘juridico-discursive’ representation of power(Michel Foucault) and ‘legalism’ (Judith Shklar).25 It is, he argues, verydifficult to think about law without government, and the imposition oflaw by government.26 Law is the ‘essential framework of government’.27

17 The distinction between customary laws and cultural norms lies in the inter-actorrelationships, ie laws can only apply to ‘real’, as opposed to ‘imagined’ communities ofactors. Social and moral communities define themselves by (imagined) reference toco-membership. Political communities are defined by the authority of law.

18 Customary normative systems consist of shared social rules and customs, as well associal institutions and mechanisms: Tamanaha (n 16) at 397.

19 Religious normative systems are ‘an aspect of and inseparable from customarynormative systems’: ibid at 398. They may be legal systems in one of two senses: throughrecognition of their norms by the official legal system, and in that they embody whatmembers consider to be customary law: ibid.

20 Economic/capitalist normative systems consist of those norms and institutions thatconstitute and relate to capitalist production and market transactions within social arenas,including the new lex mercatoria: ibid.

21 Functional normative systems are concerned with the pursuit of a particular functionthat is not purely commercial, examples include universities and sports leagues: ibid at 399.

22 Community or cultural normative systems involve ‘an imagined identification by agroup of a common way of life’. This will normally be tied to a common language andhistory, with some territorial connection (reflected in the idea of an ‘ethno-cultural’ group),although the definition can be expanded to include a thin sense of ‘community’: ibid.Tamanaha does not use the example, but we might think of an individual who considersthemselves to be a member of an indigenous people (ie a specific group), and also one of theworld’s indigenous peoples (linked principally through identity and the internet).

23 ibid at 400.24 ibid at 397.25 Simon Roberts, ‘After Government? On Representing Law without the State’ (2005)

68 Modern Law Review 1, 14 (references omitted).26 ibid at 17.

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This is the dominant understanding of official forms of law in theliterature on legal pluralism; yet international law is regarded as anofficial form of law, notwithstanding the fact that the internationalsystem lacks the institutions of government, notably a central legislature,and courts and executive to ensure the coercive enforcement of interna-tional law norms.

Since the seventeenth century, however, following Grotius, De jure belliac pacis,28 and Emer de Vattel, Le droit des gens,29 writers have referred tothe ‘law’ of nations and/or ‘international law’, a term coined in 1789 byJeremy Bentham to apply to ‘mutual transactions between sovereigns’.30

Roberts argues that the idea of law and ideology of ‘legalism’ is associ-ated with the processes of centralisation ‘that led ultimately to theformation and proliferation of the nation state’. The linkage between theexercise of (coercive) political authority and ‘law’ has proved extremelydurable, with the term ‘law’ applied to all instances of governance at alllevels, including the international level. Where the processes of ‘stateformation’ are replicated at the regional and global level, the applicationof the term law is ‘entirely unproblematic’: ‘The whole thing is justmoved up to another site.’ Given the dominance of law in providingmeaning at the level of the state

and the wide extent to which the discourse of law has now for a long timeprovided the idiom in which aspects of relations between states are character-ised, it is not surprising that a natural, instinctive response of the actorsinvolved should be to extend the use of that idiom to characterise understand-ings and practices at regional and global level.31

That being said, Roberts urges caution in ‘representing what are essen-tially negotiated orders at regional and global level as legal orders’, givenin part that the regional and global governance norms are reachedthrough agreement, and are not ‘the imposed order of a third party’.32

Rather than ‘official’ forms of law, it is perhaps better to refer to‘Westphalian’ law, which includes both state law and (positive) interna-tional law. Following the Peace of Westphalia 1648, sovereign authority

27 ibid at 24.28 Hugo Grotius, The Rights of War and Peace, Including the Law of Nature and the Law of

Nations (1625), trans by AC Campbell, with an introduction by David J Hill (Washingtonand London, M Walter Dunn, Publishers, 1901).

29 Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature: Applied to theConduct and Affairs of Nations and Sovereigns (Dublin, Luke White, 1787).

30 Jeremy Bentham, A Fragment on Government and an Introduction to the Principles ofMorals and Legislation (Oxford, B Blackwell, 1948) 426, quoted in Jeremy Rabkin, ‘AmericanSelf-Defense Shouldn’t be too Distracted by International Law’ (2006) 30 Harvard Journal ofLaw and Public Policy 31, 34

31 Roberts (n 25) at 18.32 ibid at 23.




was divided into its internal and external components: state law andinter-nation law. The idea of Westphalian law implies a direct link to anexercise of sovereign authority by states, both at the domestic level and inrelation to the development of a system of public international law: ‘Therules of law binding upon States … emanate from their own free will.’33

The idea of Westphalian law links the validity of the law norm to anexpression of sovereign will.

WHAT IS LEGAL PLURALISM?

Tamanaha refers to ‘forms of normative ordering’. In an influentialarticle, John Griffiths argues that legal pluralism involves a rejection of‘legal centralism’, the ‘myth’ that ‘law is and should be the law of thestate, uniform for all persons, exclusive of all other law, and administeredby a single set of state institutions’, and that other ‘lesser’ normativeorderings, such as those of the church, family, etc, ‘ought to be and in factare hierarchically subordinate to the law and institutions of the state’.34

Griffiths identifies two versions of legal pluralism. According to the weakversion, a legal system may be said to be pluralistic ‘when the sovereign(implicitly) commands … different bodies of law for different groups inthe population’. The paradigm example is the recognition of the laws ofindigenous peoples by the colonial power or state, a situation thatconstitutes a move away from the idea of a uniform state legal system.35

The basic ideology remains, however, centralist. The fact of recognitionreflects an idea ‘that “law” must ultimately depend from a singlevalidating source’.36

Griffiths goes on to develop a model of legal pluralism in the strongsense. In doing so he relies on Sally Falk Moore’s idea of a ‘semi-autonomous social field’, which has ‘rule-making capacities, and themeans to induce or coerce compliance’, but which is ‘simultaneously setin a larger social matrix which can, and does, affect and invade it’, withand without the ‘invitation of persons inside it’, and sometimes at theinsistence of outsiders (although a self-regulating social field is likely tofight any encroachment on its autonomy).37 The semi-autonomous socialfield is ‘defined and its boundaries identified not by its organization[,]but by a processual characteristic, the fact that it can generate rules and

33 Case of the S.S. ‘Lotus’ PCIJ Rep Series A No 10 at 18.34 John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and

Unofficial Law 1, 3.35 ibid at 5.36 ibid at 8.37 Sally Falk Moore, ‘Law and Social Change: the Semi-Autonomous Social Field as an

Appropriate Subject of Study’ (1973) 7 Law and Society Review 719, 720.

What is Legal Pluralism? 341



coerce or induce compliance to them’.38 According to Griffiths, Mooredefines a semi-autonomous social field as ‘an identifiable social groupwhich engages in reglementary activities.’ This provides her criterion ofthe ‘legal’: ‘reglementation’ (ie regulation) by a semi-autonomous socialfield is ‘law’.39 The norms established by a semi-autonomous social fieldmay be regarded as ‘more or less “legal” according to the degree towhich it is differentiated from the rest of the activities in the field anddelegated to specialized functionaries’. Given that ‘law’ is present inevery semi-autonomous social field and every society contains manysuch fields, ‘legal pluralism is a universal feature of social organizations’.Social action takes place ‘in a context of multiple overlapping “semi-autonomous social fields”’,40 ie in conditions of legal pluralism. Lawcannot be subsumed with a single system, given that laws have theirsources in the self-regulatory activities of the various semi-autonomoussocial fields in a given social arena. The law that is ‘actually effective onthe “ground floor” of society is the result of enormously complex andusually in practice unpredictable patterns of competition, interaction,negotiation, isolationism, and the like’.41 Legal pluralism is the presencein a social field of more than one legal order.

Griffiths’ analysis has been subject to criticism by Tamanaha, whoargues that Moore repudiates his use of the semi-autonomous social fieldto identify ‘law’. Moore writes that ‘non-governmental, semi-autonomous social fields [can] generate their own (non-legal) obligatorynorms to which they can induce or coerce compliance’.42 Tamanahareminds us that, according to Griffiths, the norms of the semi-autonomous social field are ‘law’; by ‘pointedly injecting the qualifier“non-legal” in this passage, Moore firmly demurs’.43 Tamanaha high-lights the habit in the literature on legal pluralism of conflating the ideaof normative pluralism with that of legal pluralism. Griffiths himself hasargued that the word ‘law’ could be abandoned altogether, with legalpluralism ‘reconceptualized as “normative pluralism”’.44 The distinctionbetween normative pluralism and legal pluralism collapses if all forms ofsocial control are regarded as law, with little to be gained; a conclusionthat ‘all forms of social control are law’ raises the suspicion legal

38 ibid at 722.39 Griffiths (n 34) at 36.40 ibid at 38.41 ibid at 39.42 Reference to Sally Falk Moore, ‘Certainties Undone: Fifty Turbulent Years of Legal

Anthropology, 1949–1999’ in Sally Falk Moore (ed), Law and Anthropology: a Reader (Oxford,Blackwell 2005) 357, 358 (emphasis added).

43 Tamanaha (n 16) at 33–34 (emphasis in original).44 John Griffiths, ‘The Idea of Sociology of Law and its Relation to Law and to

Sociology’ (2005) 8 Current Legal Issues 49, 63–4, quoted ibid at 34.




pluralism is simply concerned with a ‘an exercise in theoreticalre-labelling, transforming the commonplace sociological observation thatsocial life is filled with a pluralism of normative orders into the suppos-edly novel observation that it is filled with a pluralism of legal orders’.45

Where Griffiths was wrong, Tamanaha argues, ‘was in thinking that lawcould be formulated as a scientific category’. At different times and indifferent places, ‘people have seen law in different terms’. State law is thecurrent paradigm, but it does not define ‘law’ for all time and all places,and all peoples; ‘people have considered as law: international law,customary law, versions of religious law, the lex mercatoria, the iuscommune, natural law, and more’.46 Tamanaha concludes that the term‘law’ should be applied to ‘whatever people identify and treat through theirsocial practices as “law” (or recht, or droit, etc.).’ A situation of legalpluralism exists whenever more than one kind of ‘law’ is recognisedthrough the social practices of a group in a given social arena. Legalpluralism refers to different phenomena that are labelled ‘law’.47

GLOBAL LEGAL PLURALISM

Paul Schiff Berman applies the insights of the literature on legal plural-ism to global governance, identifying a situation in which (international)laws are made by states and international organisations, in addition to avariety of transnational, sub-national, and epistemic ‘communities’.48

What we observe is an ‘interlocking web of jurisdictional assertions’ bystates and non-state actors, which include formally constituted interna-tional organisations and ‘non-state normative communities’, such asethno-cultural minorities and ‘communities of transnational bankersdeveloping their own law governing trade finance’.49 The existence ofoverlapping jurisdictional assertions creates a ‘potentially hybrid legalspace that is not easily eliminated’;50 nor is it necessarily to be avoided, asmultiple overlapping jurisdictional assertions allow for a greater possibil-ity for error correction, a more robust field for norm articulation and a

45 Brian Tamanaha, ‘A Non-Essentialist Version of Legal Pluralism’ (2000) 27 Journal ofLaw and Society 296, 298.

46 Tamanaha (n 16) at 35.47 Brian Tamanaha, A general Jurisprudence of Law and Society (Oxford, Oxford University

Press, 2001) 194 (emphasis in original).48 Paul Schiff Berman, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journal

of International Law 301, 322. See also, William Burke-White, ‘International Legal Pluralism’(2004) 25 Michigan Journal of International Law 963, 978: ‘In a more modern form, interna-tional legal pluralism recognizes the value of diversity in the choices, traditions, andapproaches of international actors when those actors create rules, procedures, and evencourts.’

49 Berman (n 1) at 1161–62.50 ibid at 1159 (references omitted).

Global Legal Pluralism 343



larger space for creative innovation.51 Global legal pluralism allows forexperimentation in social, economic and political policy, and avoidanceof the possibility of domination by a global Leviathan. It also allows(democratic) minorities within legal systems to appeal to other legalorders for vindication of their (international human) ‘rights’ and, as‘norm entrepreneurs’,52 to participate in the development of global laws,with those (international) norms subsequently being relied on in domes-tic politics.53 A notable example is the participation of indigenous peoplesin drafting the United Nations (UN) Declaration on the Rights of Indig-enous Peoples, and in developing the scope and content of the systems ofinternational human rights law.54

We might, then, seek to create or maintain hybrid legal space forconflict between multiple overlapping jurisdictional assertions, ratherthan develop strategies for removing hybridity, and develop mecha-nisms, both doctrinal and procedural, that seek to manage hybridity(consider, for example, the margin of appreciation doctrine developed bythe European Court of Human Rights). Berman concludes that a toler-ance of pluralism in global governance would involve a recognition that‘multiple communities may legitimately wish to assert their norms over agiven act or actor’. Even where deference to the position of anotherlegal regime is not possible, because there are limits on tolerance,‘procedures for managing hybridity can at least require an explanation ofwhy a decision maker refuses to defer’.55 The approach is sociological:individuals ‘belong to (or feel affiliated with) multiple groups and

51 ibid at 1210, relying on Robert Cover, ‘The Uses of Jurisdictional Redundancy:Interest, Ideology, and Innovation’ (1981) 22 William and Mary Law Review 639, 682.


53 See Thomas Risse and Kathryn Sikkink, ‘The Socialization of International HumanRights Norms into Domestic Practices’ in Thomas Risse et al (eds), The Power of HumanRights: International Norms and Domestic Change (Cambridge, Cambridge University Press,1999) 1, 18.

54 In domestic politics, indigenous peoples are able to frame their (political) demands interms of the conflict of state law with international law norms that they helped to develop(with little distinction made between ‘soft’ law norms and ‘hard’ treaty and customaryinternational law norms in domestic debates). The dispute between the (domestic) ‘demo-cratic’ majority and (indigenous) minority is translated into a ‘collision’ between the statelaw and international law. In addition to the participation in ‘legislating’ the norms in GARes. 61/295, 13 September 2007, ‘The United Nations Declaration on the Rights ofIndigenous Peoples’, applications from indigenous groups have been important in develop-ing the human rights ‘case-law’ in relation to art 27 of the International Covenant on Civiland Political Rights (the minority right to a distinctive ‘way of life’). See for example ChiefBernard Ominayak and the Lubicon Lake Band v Canada, Communication No 167/1984 (10 May1990) UN Doc CCPR/C/38/D/167/1984 and numerous other Opinions.

55 Berman (n 1) at 1164. The view that legal pluralism does not accord equal recognitionand respect to all communities is widely accepted in the literature. Brian Tamanaha refers toa distinction between liberal (individualistic) and non-liberal (non-individualistic) culturalnorms, noting the common examples concerning ‘the position and treatment of women,




understand themselves to be bound by the norms of these multiplegroups’.56 The aim should be to ‘study empirically which statements ofauthority tend to be treated as binding in actual practice and by whom’.57

Relying on Moore’s idea of the semi-autonomous social field, Bermanargues that we should accept that a legal system may be ‘both autono-mous and permeable’, with outside norms (and legal orders) affecting,but not dominating, the (legal) system. Arguments that have beenapplied to the relationship between state law and ‘internal non-state law’can also be applied to the ‘external dialectical interactions both with otherstates, and with various international or transnational legal communi-ties’.58

The reliance on Moore in a work on global legal pluralism is problem-atic, given her repudiation of the idea of the semi-autonomous socialfield as a source of ‘law’. Berman appears to recognise this when heargues that ‘pluralism frees scholars from needing an essentialist defini-tion of “law”’.59 There is no need to engage in ‘long and ultimatelyfruitless debates’ about what constitutes law. We can instead ‘take anon-essentialist position: treating as law that which people view aslaw’.60 Berman makes express reference to Tamanaha’s understanding of‘law’, which moves the focus away from state law, and allows us to avoidthe ‘endless debates both about whether international law is law at all’.61

The analysis provides important insights into the nature of global gov-ernance; it is, however, difficult to accept the argument that there is norequirement for, and little to be gained from, any analytical enquiry intothe idea of ‘law’ (and the ‘legal’ in global legal pluralism), with theattention shifting to normative pluralism in globalised governance —with (presumably) no substantive role for the (international) lawyer(assuming the relevance of ‘law’ to the international law order).

RETHINKING GLOBAL LEGAL PLURALISM

The previous chapter developed a concept of law as a system of commu-nications (‘directives’) framed in terms of law, ie coded legal/illegal, orother binary equivalent, issued by an authority to subjects of the legal

family related issues, and caste related issues—including child marriages, arranged mar-riages, divorce rights, inheritance rights, property rights, treatment of low caste, andreligious imposed punishments’: Tamanaha (n 16) at 56.

56 ibid at 1169.57 ibid at 1178 (emphasis in original).58 ibid at 1176 (emphasis in original).59 ibid at 1177.60 ibid at 1178.61 ibid at 1177.

Rethinking Global Legal Pluralism 345



order, with law-actors capable of interpreting the content and applicationof law norms, and consequently of developing the law. The idea includes,inter alia, Westphalian forms of state and international law, and theexercise of global regulatory authority framed in terms of law, in additionto the laws of indigenous peoples, the complexities of which I have dealtwith elsewhere.62 A situation of legal pluralism exists where more thanone (legitimate) authority determines the normative situation of an actorat a point in time.

In the absence of a global constitution (or global constitutional settle-ment), it makes no sense to refer to an idea of ‘global law’. The globallegal order (‘global governance’) is characterised by a plurality of(largely) autonomous systems of (international) law. The only commonfeature is that they are systems of ‘law’. Conflicts of legal orders raisedifferent questions from conflicts between normative regimes, and incontrast to conflicts between legal orders and other forms of normativeordering (customs, morals, etc), conflicts between (autonomous) systemsof law cannot be resolved by reference to any a priori hierarchy. The basicnorm or rule of recognition establishes a normative order as an autono-mous system of law, and defines its relationship with other systems oflaw, whilst maintaining its autonomy. An autonomous legal order cannotsubject itself to the authority of another and remain autonomous: itcannot subject itself to the basic norm or rule of recognition of anotherlegal order. In conditions of global legal pluralism, it is necessary todevelop an analytical framework to make sense of the relationshipsbetween legal orders. The fact that systems of law are (according to theirown rule of recognition, or basic norm) autonomous requires that anyanalysis of the problems and possibilities of (global) legal pluralism beundertaken from the internal perspective of each system – there are nometa-perspectives from which we can structure the legal orders thattogether make up the modern world of law.

Neil Walker observes that there are a number of ways in which legalsystems can arrange themselves. First, the idea of institutional incorpora-tion, in which the ‘host’ normative order introduces a general provisionproviding for the norms of the other order to be incorporated, ‘and, tothat extent, to be treated as authoritative within the host normativeorder’. The only example is the relationship between the EU and MemberStates.63 Secondly, system recognition – the fact of recognition by the hostlegal order is formalised on a systemic level, ‘and, as such, is understood

62 Steven Wheatley, ‘Indigenous Peoples and the Right of Political Autonomy in an Ageof Global Legal Pluralism’ in Michael Freeman and David Napier (eds), Law and Anthropol-ogy: Current Legal Issues Volume 12 (Oxford, Oxford University Press, 2009) 351.

63 Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the GlobalDisorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373, 379.




as in some way intrinsic to the self-definition of the host system’.Examples include the recognition by domestic law systems of interna-tional (human rights) law norms.64 Thirdly, normative coordination,which concerns all other cases of coordination between normativelyempowered actors that goes beyond the ‘thin’ bilateral or multilateralrelations of state law systems to allow for a degree of autonomousinstitutionalisation beyond the legislated will of states (the examplegiven is the Basel Committee on Banking Standards).65 Fourthly, environ-mental overlap, which recognises that a plurality of normative assertions‘can have an actual or potential bearing on the same practical context andon the same actors implicated in the same practical context’. The ideafollows from the specialised and fragmented nature of global govern-ance, with each regime having its own stakeholders and protectedinterests.66 Finally, sympathetic consideration, which is concerned withthe migration of constitutional and other legal ideas between legalorders, in circumstances in which the legal orders ‘are neither in aninternal normative relation . . . or in a relation of practical interlocking’.Examples include domestic constitutional courts relying on the jurispru-dence of other constitutional courts, or the opinions of internationalhuman rights bodies that they are not formally bound to follow.67 Theidea of sympathetic consideration is premised on the understanding thatthere is some ground of common understanding between the legal orderson the need to deal with common problems, or recognition of valuescommon to legal orders, in relation, for example, to constitutional andhuman rights norms.68

It is for each autonomous legal order to determine its own relationshipwith each of the other legal orders in global governance (a traditionalconflict of laws perspective). There is no meta-perspective from which tojudge the various assertions of authority and conclude which shouldapply. Nor is it possible for an autonomous legal order to adopt aposition of general deference to the authority of another legal order andto remain autonomous.69 The recognition of the authority of the laws ofanother legal order constitutes an act of self-limitation that is always

64 ibid at 380.65 ibid at 381.66 ibid at 382.67 ibid at 383.68 ibid at 384.69 Autonomous state law systems sometimes defer to each other as a matter of ‘comity’.

The Oxford English Dictionary defines the comity of nations as the ‘courteous and friendlyunderstanding, by which each nation respects the laws and usages of every other, so far asmay be without prejudice to its own rights and interests’. Ian Brownlie identifies as onemeaning of comity in international law the idea of ‘[n]eighbourliness, mutual respect, thefriendly waiver of technicalities’: Ian Brownlie, Principles of Public International Law, 7th edn(Oxford, Oxford University Press, 2008) 28–29.




subject to revision or reversal. Legal systems may sometimes make astrategic decision to defer:70 beyond strategic interactions, why would alegal order accept that the legal norms of another order should berecognised and given effect within the system? The issue is different fromthat of ‘borrowing’, when a legal institution (court, legislature, or execu-tive body) looks to the experiences of other legal orders when faced witha similar problem, and adopts laws when persuaded by the conclusionsof the other legal order and its legislative approach. The idea of legalpluralism involves a recognition of the (legitimate) authority of otherlegal orders, and possibility of giving effect to its laws in the particularcase (sometimes at the expense of the host’s law norms).

Legal norms represent an expression of political will that constitutesitself in the form of law. (The point applies equally to ‘non-political’norms, involving for example the new lex mercatoria or economic tropesconcerning the putative benefits of a free market and free trade. What-ever the veracity of claims of the Pareto-enhancing benefits of market-based approaches to the organisation of social, economic and politicallife, these are political choices.) The establishment of law norms reflectsan exercise of political choice by an authority in conditions of uncertaintyand reasonable disagreement. The presumption must be (subject toreview) that laws reflect a good faith expression of what the authorityconsiders, even misguidedly, to be the ‘right thing’ to do in the particularcircumstances, ie that they have arrived at some approximation of a‘political truth’. There is a presumption in favour of the validity of thenorms of a (legitimate) authority, a presumption in favour of the rule oflaw. In conditions of conflicting assertions of political will framed interms of law, there is no reason to conclude that a legal order wouldregard another as being inherently superior; a legal order might recog-nise the assertion of jurisdiction by another as being more appropriate (asfalling more clearly within the domain of the other legal order), or, moresignificantly for these purposes, reflecting a better approximation of apolitical truth in conditions of complexity and reasonable disagreement.

70 Consider, for example, the position of those national constitutional courts in EUstates, notably the German Constitutional Court, that do not accept the law of the EU willalways prevail. Conflict has been avoided thus far, ‘largely through judicial interpretationsthat have found ways to harmonise EU law and domestic constitutional requirements’:Michel Rosenfeld, ‘Rethinking Constitutional Ordering in an Era of Legal and IdeologicalPluralism’ (2008) 6 International Journal of Constitutional Law 415, 419. NW Barber concludesthat a pluralist model allows us to move away from the opposing and irreconcilabledemands of (state) sovereignty and supremacy of the EU legal order, providing a concep-tual framework in which the inconsistent claims can be recognised and co-exist. The risk ofsystem conflict is small where the European Court of Justice strives to interpret EU law in away that is acceptable to domestic courts, who, in turn, resist crude assertions of primacy ofnational rules: NW Barber, ‘Legal Pluralism and the European Union’ (2006) 17 EuropeanLaw Review 306, 328–29.




The key issue is one of ‘jurispersuasion’ – a legal order must persuadeanother legal order to recognise it as an autonomous legal order and toaccept the assertion of jurisdiction in the particular case. According toPaul Schiff Berman, the focus of analysis in global governance should notbe the power of a legal order to coercively enforce law norms throughformal institutions of government, but the ability to assert jurisdiction inthe language of law.71 Law is not (only) the coercive command of asovereign power, ‘but a language for imagining alternative futureworlds’. This idea of legal jurisdiction as ‘rhetorical persuasion’ is thedominant one in global governance, given the absence of coerciveenforcement mechanisms.72 Legal systems should defer when there is abetter imagined alternative future world.

The question as to whether and when a legal order should defer toanother is not a question of law, it cannot be answered by reference to thescience or concept of law. The exercise of (legitimate) authority framed interms of law reflects an exercise of political choice in conditions ofcomplexity and uncertainly. In the absence of consensus, law norms havean impugned legitimacy, an incomplete claim to reflect a political truth orconcept of (political) justice. The lack of consensus in relation to proposedor adopted law norms requires a democratic system of law (which isprincipally concerned with the avoidance of injustice) to reflect andconsider whether its position is consistent with the principles of delibera-tive democracy (including through formal processes of judicial review).Conflicting assertions of jurisdiction (and visions of truth and justice)present an implicit criticism of the justice claims of the host legal order. Inconditions of complexity, uncertainty and reasonable disagreement, anauthority must accept the possibility that it has failed to regulate inaccordance with the right reasons that apply to subjects, and that theregulations of another legal authority might represent a more accuratedetermination of the right reasons that apply to subjects (it is, of course,the role of the subjects of regulations also to make this determination).73

Given that the ‘right reasons’ that apply to subjects can only be deter-mined through engagement with subjects through democratic proce-dures and mechanisms, a legal order will only be persuaded to accept the

71 Paul Schiff Berman, ‘Dialectical Regulation, Territoriality, and Pluralism’ (2006) 38Connecticut Law Review 929, 952.

72 Paul Schiff Berman, ‘From International Law to Law and Globalization’ (2005) 43Columbia Journal of Transnational Law 485, 534.

73 cf Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90Minnesota Law Review 1003, 1021: ‘When several authorities pronounce on the same matterand their directives conflict, we must decide, to the best of our ability, which is more reliableas a guide … In such cases the question whether a given authority’s power extends toexclude the authority of another is to be judged in the way we judge the legitimacy of itspower on any matter, namely, whether we would conform better to reason by trying tofollow its directives than if we do not’.




regulatory norms of another legal order by references to the criterion ofdemocratic legitimacy (understood in terms of deliberative democracy,and not by reference to competitive elections, etc).

The application of the idea of legitimate authority to the regulation ofsocial, economic and political life by autonomous systems of law pro-vides the basis for structuring the relationships between the varioussystems of state and international law (broadly defined to include publicinternational law and the international governance norms of non-stateactors) that constitute the complex world of global governance. Thepractice of democracy following the globalisation and fragmentation ofgovernance requires that a legal system not only ‘legislate’ in accordancewith the principles of deliberative democracy, but also reflect on the‘democratic legitimacy’ of conflicting assertions of authority by othersystems of law. The conclusion represents an acceptance that there can beconflicting (legitimate) political ‘truths’ (identified through democraticprocedures), and conflicting visions of (political) justice. The exercise oflegitimate authority requires that a legal system, organised in accordancewith a constitution, accepts that it is open to the influences of othersystems of law, and other versions and visions of political truth andjustice.74 A legal system should defer to the regulatory norms of anotherlegal system where it is persuaded that a conflicting norm represents abetter expression of a political ‘truth’, determined through democraticprocedures for the adoption of law norms.

STATE LAW AND INTERNATIONAL LAW

Having concluded that it is for each autonomous system of law toestablish its own version of political justice (consistent with the require-ments of legitimate authority) and that no a priori relationship betweenthe various systems of global governance can be established, the analysisnow turns to the relationship between already existing constitutionaldemocracies and international law norms. Given that the practice ofdemocratic government has been established (albeit imperfectly) at the

74 cf Boaventura de Sousa Santos, ‘The Heterogeneous State and Legal Pluralism inMozambique’ (2006) 40 Law and Society Review 39, 45–46: ‘We can identify three scales [oflaw]: the local, the national, and the global. Each has its own legal norms and rationale,with the result that relations between them are very often tense and conflicting… Paradoxi-cally, if this denser relationship makes conflict and tension between the different legalorders more likely, it also shows that the different legal orders are more open andsusceptible to mutual influences. The boundaries between the different legal orders becomemore porous and each one loses its “pure,” “autonomous” identity and can only be definedin relation to the legal constellation of which it is a part.’




level of the state, concern has emerged following the globalisation ofgovernance and the loss for democracy and the enforcement of ‘undemo-cratic’ and ‘illiberal’ norms adopted by de facto global regulators (withthe listing of terrorist suspects by the UN Security Council a particularfocus). The state remains central to debates around the legitimacy andauthority of international law norms whilst it retains a monopoly on thecoercive enforcement of law (although the capacity to commit violencedoes not legitimate the use of violence). The focus on constitutionaldemocracies is justified by reference to a revised understanding of thenormal justification thesis, which provides that the ‘right reasons’ thatapply to the citizens of democratic states must be established throughdemocratic mechanisms. The authority of international law norms canonly be demonstrated to constitutional democracies by reference to theidea of democratic legitimacy,

States have responded to globalisation through the globalisation ofgovernance functions, including inter-state cooperation measures andestablishment of regional and global regulatory institutions. Whilst thedevelopment can be seen as a practical response, it creates problems forthe practice of democracy – once an issue is regulated at the level ofinternational law, the people do not decide for themselves, by demo-cratic political procedures, all of the conditions of social, economic andpolitical life that are political decidable. International law subjects thestate law system to the ‘authority’ of global regulatory norms, resultingin a deficit (at the domestic level) in the practice of democracy. Bothinternational law and domestic constitutional law form part of a publiclaw order that constrains the exercise of popular sovereignty, under-stood in terms of the direct expression of the will of the people throughgeneral elections, referendums and other expressions, limiting the pos-sibilities of political self-determination within the state. Constitutionaldemocracies accept the need for international cooperation in response tocoordination and collective action problems, but demonstrate an unwill-ingness to recognise that the will of the people should in all cases besubject to the authority of international law. The relevant questions arethen: in what circumstances should a democratic state consent to theadoption of international law norms that regulate the conditions ofsocial, economic and political life within the state, and how shoulddomestic (democratic) systems of law respond to the assertions ofjurisdiction and authority by the various systems of international law(broadly defined to include both public international law norms and theregulatory norms of non-state actors)?

Abram Chayes and Antonia Chayes observe that (at least in relationto democratic states) the conclusion of a treaty must be regarded as

State Law and International Law 351



representing a considered expression of the national interest,75 and abargain of mutual interest to the parties.76 The establishment of thetreaty regime removes the need to continuously revisit the relevantissue, as it defines ‘the methods and terms of the continuing interna-tional discourse in which states seek to justify their actions’.77 RobertDahl makes the point that ensuring the exercise of popular control overforeign policy presents a ‘formidable problem’.78 Citizens do not gener-ally participate in debates on foreign affairs, partly as a consequence ofan absence of information of the activities of the executive in foreignaffairs and the practices of international organisations, and the fact thatmany foreign policy issues appear remote to their interests. The policypositions of democratic states are developed with limited input fromcitizens, who remain rationally ignorant on questions of foreign policy.There may be occasional exceptions, in relation to major issues such aswar or participation in an international regime such as the EU, NorthAmerican Free Trade Agreement, or World Trade Organization, wherecitizens can play ‘an influential or even decisive role’,79 but these do notundermine the general rule: citizens at the level of domestic politics donot exercise a determinate influence on the foreign policy positions ofstates. The lack of citizen participation is noteworthy, given that onlyfour states do not formally require the national parliament to beinvolved in the acceptance of treaty obligations — Australia, Canada,Israel, and United Kingdom.80 In the majority of states, the mechanismsfor adopting treaties are the same as for adopting national legislation,

75 Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with Interna-tional Regulatory Agreements (Cambridge, Massachusetts, Harvard University Press, 1998) 6.

76 ibid at 7.77 ibid at 8. International law norms ‘define the methods and terms of the continuing

international discourse in which states seek to justify their actions’: Alan Boyle andChristine Chinkin, The Making of International Law (Oxford, Oxford University Press, 2007) 8.

78 Robert Dahl, ‘Can International Organizations be Democratic? A Skeptic’s View’ inIan Shapiro and Casiano Hacker-Cordón (eds), Democracy’s Edges (Cambridge, CambridgeUniversity Press, 1999) 19, 23. A notable exception is the Special Agreement between Belizeand Guatemala to submit Guatemala’s Territorial, Insular and Maritime Claim to theInternational Court of Justice, done at Organization of American States (OAS) headquarters,Washington, DC on 8 December 2008. It was agreed to submit the dispute to the Interna-tional Court of Justice only after the positive approval by the two peoples in simultaneousreferenda. cf Bhikhu Parekh, ‘Cosmopolitanism and Global Citizenship’ (2003) 29 Review ofInternational Studies 3, 12–13, on the idea of a globally oriented citizenship that has threecomponents: it examines the policies of one’s country, and seeks to ensure that they do notdamage and, within the limits of resources, promotes the interests of humankind; it takes anactive interest in the affairs of other countries; and involves an active commitment to createa just world order, under fair terms of cooperation.

79 ibid at 30.80 See Oona Hathaway, ‘Treaties’ End: The Past, Present, and Future of International

Lawmaking in the United States’ (2008) 117 Yale Law Journal 1236, 1362 ff.




with few relying on supermajorities in legislative bodies, notwithstand-ing the fact that international law obligations limit the scope andpossibilities of democratic self-determination for ‘future majorities’ to amuch greater extent than domestic constitutional law norms.81 Thedemocratic legitimacy of state law depends both on an act of legislationthat represents the will of the people (at a particular moment), and thefact that the law has remained unaltered by the people. By contrast,consent to international law norms limits the future possibilities ofpolitical self-determination unless the state is able to repudiate itsinternational law obligations, or the other states parties to the agree-ment consent to a variation in the terms of the international public lawinstrument.

Historically, it may have made little sense for citizens to take a directinterest in foreign policy, as international law was principally concernedwith issues that had limited impact on the life experiences of mostcitizens (consider, for example, the international law regimes on diplo-matic relations and law of the sea). The argument applies to citizens ofsovereign states, and I leave to one side (but do not seek to underesti-mate) the position of those individuals and groups subjected to colonialand other forms of exploitation ‘legitimated’ by international law.82

International law was inter-state law. That is not to suggest that publicinternational law could not (indirectly) provide citizens with a mecha-nism for the regulation of important aspects of social, economic andpolitical life. Armin von Bogdandy refers to the idea of international lawas providing ‘foreigners a voice in national law-making’.83 Internationallaw might be seen, not as a mechanism for ensuring the cooperation ofsovereigns, but the cooperation of political communities organised assovereign states. Traditional forms of international law provide forcollective regulation of relevant issues, allowing sovereign communities‘the power to enter into binding international legal agreements grantingstates reciprocal influence over each other’s policies … in exchange forsurrendering some domestic discretion’.84 Trans-frontier

81 Robert A Dahl, Congress and Foreign Policy (Yale Institute of Int’l Studies, WorkingPaper No 1949) 24, quoted ibid at 1315.

82 cf Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cam-bridge, Cambridge University Press, 2004). Boyle and Chinkin make the point that thenon-democratic nature of the customary international law ‘undermines its legitimacy and itis rendered illegitimate to those who have been adversely subjugated by it… To suchoutsiders who are marginalised “from full citizenship in Western democracies… such aswomen, indigenous peoples, the mentally ill or refugees”, international law may hold littlelegitimacy’: Boyle and Chinkin (n 77) at 29.

83 Armin von Bogdandy, ‘Globalization and Europe: How to Square Democracy, Glo-balization, and International Law’ (2004) 15 European Journal of International Law 885, 901.

84 Robert Keohane, Stephen Macedo and Andrew Moravcsik, ‘Democracy EnhancingMultilateralism’ (2009) 63 International Organization 1, 4.




pollution, for example, impacts on the life experiences of citizens whoseonly possibility of influencing the policy choices of the polluting state is(indirectly) through the recognition or development of international lawnorms on cross-border pollution.85 Martti Koskenniemi argues that theidea of equity in the resolution of international law disputes appears tobe concerned with ‘reconciling important interests of a State or part of itspopulation so as to arrive at the most efficient interest-fulfilment for all’.86

Participation in the international law system allows for the possibility ofinfluencing the laws of other states, and allows the state to take intoaccount the interests of those affected by its own policies beyond thosedefined by the co-membership criterion of citizenship. Dennis Thompsonsuggests that the democratic principle that ‘those affected’ have a right toparticipate in deliberations might suggest some institutional changes indomestic politics: the state might be required to establish forums inwhich representatives ‘could speak for the ordinary citizens of foreignstates, presenting their claims and responding to counter-claims of repre-sentatives of the host state. The responsibility could even be formalizedby establishing a special office – kind of Tribune for non-citizens.’87

The world of positive law that emerged following the Westphaliansettlement provided a clear demarcation of regulatory tasks between thestate law system (the regulation of social, economic and political lifewithin the state) and international law (relationships between sover-eigns). Both forms relied on an expression of sovereign will for theadoption of law norms with legitimacy provided by democratic institu-tions for the adoption of state law norms, notably national parliaments,and the principle of sovereign equality and requirement of consent forestablishing international law norms. The two-track model of democraticself-determination is no longer sufficient to explain the legitimacy andauthority of law norms: self-determination for the political community

85 See Stockholm Declaration of the United Nations Conference on the Human Environ-ment Principle 21 (June 16, 1972) 11 ILM 1416; also, Trail Smelter Case (US v Canada) (1941) 3Rep Int’l Arb Awards 1938, 1965.

86 Martti Koskenniemi, From Apology to Utopia: the Structure of International LegalArgument (Cambridge, Cambridge University Press, 2005) 49 (emphasis added). In Delimi-tation of the Maritime Boundary in the Gulf of Maine Area, the International Court of Justiceconcluded that whilst the respective scale of activities connected with fishing could not betaken into account as ‘an equitable criterion’, the Court would be concerned to ensure thatthe application of equitable principles should not ‘unexpectedly be revealed as radicallyinequitable, that is to say, as likely to entail catastrophic repercussions for the livelihood andeconomic well-being of the population of the countries concerned’: Delimitation of the MaritimeBoundary in the Gulf of Maine Area (judgment) [1984] ICJ Rep 246 [237] (emphasis added).

87 Dennis Thompson, ‘Democratic Theory and Global Society’ (1999) 7 Journal of PoliticalPhilosophy 111, 121–22.




that is the state is no longer guaranteed by domestic democratic institu-tions and a contractual model for the development of international law.International law norms are greatly intrusive in terms of regulation ofmatters previously within the domaine réservé of states and positiveconsent is no longer regarded as essential for the creation of internationalobligations. We have seen a shift from an essentially contractual model ofinternational law, to a public law, or ‘governance’, model. The develop-ment is reflected, inter alia, in the decline of the importance of consent ininternational law, emergence of ‘law-making’ treaties, majoritarian ten-dencies in the development of customary international law, and develop-ment of a modern form of custom that relies on widely acceptedinternational treaties and the resolutions of international organisations(notably the UN General Assembly) to identify both the practice of statesand requisite opinio juris. The development of a normative hierarchy ininternational law, emergence of global regulators (the United Nations, forexample), and (implicitly) a global constitutional order provides a newcontext for (domestic) democratic self-determination.

The practice and theory of law following the globalisation and frag-mentation of governance must reconcile the requirements for openness toother systems of law and the need for international cooperation, with thefactual and constitutional constraints provided by the autonomy thatcharacterises all legal systems defined by reference to a basic norm orrule of recognition (‘sovereignty’ in the nomenclature of the state,although the term is so closely tied to the Westphalian concept of thestate and positive law that it should be avoided in other contexts). Thecontroversy and complexities are not, though, the result of globalisationand fragmentation. The relationship between international law and statelaw is not settled as a matter of legal practice or theory. International lawtexts refer to the ideas of monism (the supremacy of either internationallaw or state law) and dualism (a plurality of legal systems). The West-phalian settlement that divided sovereign authority into its internal andexternal components failed to resolve the relationship between the two.88

From the perspective of international law, once a state has accepted aninternational law obligation, it may not invoke provisions of domestic

88 See article 15, of the League of Nations Covenant: ‘If the dispute between the partiesis claimed by one of them, and is found by the Council, to arise out of a matter which byinternational law is solely within the domestic jurisdiction of that party, the Council shall soreport, and shall make no recommendation as to its settlement.’ The contemporary positionis reflected in article 2(7), of the UN Charter: ‘Nothing contained in the present Charter shallauthorize the United Nations to intervene in matters which are essentially within thedomestic jurisdiction of any state or shall require the Members to submit such matters tosettlement under the present Charter; but this principle shall not prejudice the applicationof enforcement measures under Chapter VII.’




law to justify a failure to comply,89 even where the domestic law reflectsfundamental ‘constitutional’ norms,90 and/or an expression of demo-cratic will-formation.91 A state cannot plead a provision of its internal lawin response to a claim of an alleged violation of its obligations underinternational law.92 This is not the position of most domestic law systems,where ‘the starting point for any examination of the relationship[between international law and national law] is its own constitution’.93

International law binds the state law system only to the extent that it hasbeen accepted by the domestic system of law.94

The complexities of the relationship between state and internationallaw are illuminated in the work of Hans Kelsen, who refers to the idea ofinternational law norms as incomplete norms: international law pre-scribes what ought to be done by states, but leaves it to the discretion ofthe state in determining the identity of the juristic person that will in factcarry out the international law obligation.95 The international law orderpresupposes the existence of the state law orders and ‘delegates’ thefunction of completing its own norms.96 International law forms part of a‘universal legal order’, which also includes state law orders.97 States aresovereign ‘as long as no international law exists or is assumed to exist’. But ifinternational law exists then a legal order superior to that of the state is

89 See for example Vienna Convention on the Law of Treaties 1155 UNTS 331 art 27: ‘Aparty may not invoke the provisions of its internal law as justification for its failure toperform a treaty.’ cf art 46(1): a state ‘may not invoke the fact that its consent to be bound bya treaty has been expressed in violation of a provision of its internal law regardingcompetence to conclude treaties as invalidating its consent unless that violation wasmanifest and concerned a rule of its internal law of fundamental importance’ (emphasis added).

90 On the fact that constitutional law norms may violate international law, see Treatmentof Polish Nationals in Danzig PCIJ Series A/B No 44, 24.

91 Article 32, ‘Irrelevance of Internal law’, Articles on Responsibility of States forInternationally Wrongful Acts (with commentaries), in Report of the International LawCommission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, 43,UN Doc. A/56/10 (2001), reprinted in James Crawford, The International Law Commission’sArticles on State Responsibility: Introduction, Text and Commentaries (Cambridge, CambridgeUniversity Press, 2002).


93 Eileen Denza, ‘The Relationship between International and National Law’ in Mal-colm Evans (ed), International Law, 2nd edn (Oxford, Oxford University Press, 2006) 424,428.

94 In Medellin v Texas (2008), before the US Supreme Court, Chief Justice Roberts notedthat whilst no one disputed that the judgment of the International Court of Justice in Avenaand other Mexican Nationals (Mexico v United States) (Judgment) [2004] ICJ Rep 12 created aninternational law obligation for the United States, it did not create enforceable rights at thelevel of domestic law actionable before domestic courts: Medellin v Texas, 128 S Ct 1346(2008).






recognised, determining the existence of states, and the scope andvalidity of their legal orders.98 International law not only depends on theexistence of national law systems, it also ‘determines their spheres ofvalidity in all respects, international and national law form one insepara-ble whole’.99 The delimitation of ‘sovereign’ competence can only beundertaken by a legal order that encompasses all of the sovereignpolitical communities, ie by the international law order, which deter-mines the existence of states and the jurisdictional competence of statelaw systems that retain their competence ‘only insofar as internationallaw does not regulate a particular subject matter’.100 The foundationalprinciple of the international law order, pacta sunt servanda, does notdepend for its validity on the laws of any one state, ‘since the competenceof each State, the scope of validity of a national legal order, is limited toits own sphere.’ In order to create a legal norm that applies to more thanone state, ‘States must be empowered by a legal order superior to theirown legal order’. It is international law ‘that makes possible the creationof norms valid for the sphere or two or more States, that is, internationalnorms’.101

For Kelsen, the validity of any legal order depends ultimately on thesuperior or basic norm.102 At the level of the state, the basic norm isprovided from the first constitution: ‘That this first constitution is abinding legal norm is presupposed, and the formulation of the presuppo-sition is the basic norm of this legal order.’103 The constitution holdsunless there is a revolutionary event when the old order is replaced by anew legal order, but not in conformity with the provisions of the old legalorder. If the new order ‘begins to be efficacious, because the individualswhose behaviour the new order regulates actually behave, by and large,in conformity with the new order, then this order is considered as a validorder’.104 This presumes a new basic norm. When the international laworder is taken into account, the basis for the basic norm of the state lawsystem becomes clear, the principle of effectiveness: ‘The historically firstconstitution is valid because the coercive order erected on its basis isefficacious as a whole.’105 Given that the basic norm of the national legalorder is determined by international law, it is a basic norm ‘only in arelative sense. It is the basic norm of the international legal order which is

98 ibid at 370 (emphasis added).99 ibid at 351.





the ultimate reason of validity of the national legal orders, too.’106 Thebasic norm of the international law order is as follows: ‘States ought tobehave as they have customarily behaved.’ Customary international lawis the first stage within the international legal order, allowing the devel-opment of foundational or general international law norms such as pactasunt servanda.107 In cases of conflict between an international law normand a state law norm, there is a conflict between a higher and lowernorm, but this does not result in the higher order norm invalidating thelower order norm. Where a lower order norm is made in conflict to therequirements of a higher order norm, there may be a ‘delict’, and the actmay expose the author to sanction, but the norm may remain valid. Thisis the case, Kelsen argues, in relation to international law and state law: astate that acts in a way that is inconsistent with its international lawobligations is liable to sanction, but ‘international law does not provideany procedure in which norms of national law which are “illegal” (fromthe standpoint of international law) can be abolished.’108

Kelsen observes that, according to a general theory of jurisprudence,the relationship between state and international law can be understoodin one of three ways: the two orders might form part of the samenormative order, with one deriving its validity from the other; the twolegal orders might derive their validity from a third, common, legalorder, which is a superior order that determines the relationship of thetwo orders; or there may be no relationship between the two (a conditionof legal pluralism). Kelsen adopts the first position, finding no evidenceof a third legal order and rejecting the argument from legal pluralism.State and international law are in a hierarchical relationship, ie one of thelegal orders ‘derives its validity, its relative basic norm, from another, thesuperior order’. But it is not clear whether state law derives its validityfrom international law, or international law from state law. Whilst Kelsenadopts a monist position in determining the relationship between thestate and international law orders, he accepts that the structuring of therelationship will depend on the perspective of the observer (an argumentfrom legal pluralism). On the one hand, the international law order,through the principle of effectiveness, is seen to determine the sphereand reason of validity of national law, and in this respect may beregarded as superior to national law. On the other, the recognition theoryholds that international law enjoys the capacity to determine the sphere

106 ibid at 368.107 ibid at 369. Hart asserts that the rule ‘says nothing more than that those who accept

certain rules must also observe a rule that the rule ought to be observed. This is a mereuseless reproduction of the fact that a set of rules are accepted by states as binding rules:HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) 236.

108 ibid at 372.




and reason of validity of national law ‘only if international law has somevalidity; and it is valid only if recognized by the State’. The basic norm ofthe national legal order ‘is the absolute supreme source of the validity ofall law and hence the State can be conceived of as sovereign’.109 Therecan, logically, be only one national law system that is superior: ‘one Stateonly, can be conceived as sovereign’. The relationships between the firststate and all other states are determined by international law, which is

valid only because it is recognized by the first-mentioned State, which ‘is’sovereign because the international legal order is considered as part of, andhence as inferior to, its legal order. Since the other national legal orders derivetheir validity from international law, they have to be considered as inferior tothe legal order of the State which first is, and which, therefore, alone can bepresupposed to be, sovereign.110

The sovereignty of one state ‘excludes the sovereignty of every otherState’. It is a question of (subjective) perspective, and it is logicallypossible for different theorists to

interpret the world of law by proceeding from the sovereignty of differentStates. Each theorist may presuppose the sovereignty of his own State… [and]consider the international law which establishes the relations to the legalorders of the other States and these national legal orders as parts of the legalorder of his own State.

The theory of the primacy of national law is ‘State subjectivism. It makesthe State which is the starting point of its construction, the theorist’s ownState, the sovereign center of the world of law.’111 Which then is to bepreferred: international law and the principle of effectiveness, or nationallaw and the theory of recognition? Kelsen concludes that the choicecannot be dictated by the science of law, but must be guided by ethicaland political preferences:

A person whose political attitude is one of nationalism and imperialism willnaturally be inclined to accept the hypothesis of the primacy of national law. Aperson whose sympathies are for internationalism and pacifism will beinclined to accept the hypothesis of the primacy of international law.112

Kelsen concludes that the relationship between state law and interna-tional law cannot be determined by reference to the science of law. Fromone perspective, international law determines the sphere and validity ofstate law, and is superior to state law. But international law enjoys thecapacity to determine the sphere and validity of state law only where it is





recognised by the state. It is possible for a state law order to regard itselfas sovereign, with international law subject to the sovereign authority ofthe state, and it is possible for all state law systems to understandthemselves in this way. No conclusion is provided by jurisprudence:jurists are free to choose between the supremacy of international law andthe principle of effectiveness, or national law and the theory of recogni-tion. The choice cannot be dictated by the science of law, but must beguided by ethical and political preferences.

The argument developed in this book is that (legitimate) authority(framed in terms of law) depends on democratic procedures for thedevelopment of the law norms that frame social, economic and politicallife; it is a preference for democratic self-determination. Drawing on theanalysis presented by Hans Kelsen, the preference suggests that a consti-tutional democracy should regard itself as ‘sovereign’ and construct theworld of law in accordance with the ideal of deliberative democracy, onlyrecognising the authority of international law norms consistent with the(democratic) rule of law. State law systems will make strategic decisionsto comply with international law norms and may regard themselves asbound by prior undertakings (pacta sunt servanda), but the democratisa-tion of ‘law’ (including ‘international law’) requires the plural articula-tions of a democratic world of law by (democratic) state law systems,which remain the primary guarantors of public and private autonomy forthe individual citizen.

RELATIONSHIP BETWEEN DEMOCRACY AND INTERNATIONAL LAW

In evaluating the democratic legitimacy of international law from theperspective of the state law system, it is important to develop a analysisthat grounds the authority of law (state and international law, and newforms of international governance framed in terms of law) in terms ofthe idea of (legitimate) authority, defined by reference to deliberativedemocracy. With the exception of the rejectionist literature of the ‘NewSovereigntists’,113 there has been little written on the attitude that demo-cratic systems should adopt in relation to international law normsfollowing the globalisation of governance functions. Notable exceptionsare provided in the work of Keohane et al, Buchanan and Powell, TomGinsburg and Mattias Kumm. The arguments are considered in turn.

113 See chapter 1.




The Limits of International Law

The rational choice theory of international law suggests that the questionof compliance with international law depends on how political leadersjudge the balance of interests for the state in complying with interna-tional law against the benefits that might accrue from norm-violatingbehaviour. Given the absence (in most cases) of the coercive enforcementof international law, the democratic state retains the practical ability, ifnot the (international law) right, to follow the demands of the (demo-cratic) will of the people, albeit at certain costs in terms of sanctions andreputation.114 Consequently, whilst international law norms create de jurelimits on a state’s freedom of action, they do not always present de factolimits on the possibilities of political and democratic self-determination.115 The argument is developed by Goldsmith and Posner,who conclude that states have no moral obligation to comply withinternational law. In evaluating its rational interests, the state will usuallyconclude in favour of complying with international law norms, but‘when the instrumental calculus suggests a departure from internationallaw, international law imposes no moral obligation that requires contraryaction’.116

The lack of binding authority of international law is a result of theapplication of a particular understanding of the principle of democraticself-determination. A commitment to comply with international lawnorms (reflected in ideas of pacta sunt servanda and opinio juris) is madeby the here-and-now people. It is not possible, according to democratictheory, for the here-and-now people to bind future peoples (or futuremajorities). Where a state makes a promise about its future conduct, itpre-commits a different entity (a different set of citizens) to a set ofinternational law obligations (consequently, it makes no sense to drawany analogy with individual autonomy and contractual obligations).117

114 Alexander Wendt, ‘Collective Identity Formation and the International State’ (1994)88 American Political Science Review 384, 393.

115 Kal Raustiala argues that ‘the better conception of sovereignty looks to legal revoca-bility and the availability of exit to evaluate the effect of international institutions onsovereignty. That effect on sovereignty is generally very low because only seldom does aninternational institution rest on irrevocable delegations of power’: Kal Raustiala, ‘Rethink-ing the Sovereignty Debate in International Economic Law’ (2003) 6 Journal of InternationalEconomic Law 841, 852. Dan Sarooshi concludes that, in practice, the conferral of sovereignpower is always revocable provided that the state has retained its own sovereign personal-ity: Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford,Oxford University Press, 2005) 29.

116 Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford, OxfordUniversity Press, 2005) 185.

117 ibid at 190.

Relationship Between Democracy and International Law 361



No obligation for accepting the authority of international law followsfrom the consent of the here-and-now citizens.

The normal justification for the exercise of authority (following JosephRaz) is that individuals subjecting themselves to an authority will morelikely act in accordance with right reasons that than if they were to actautonomously. Goldsmith and Posner reject the possibility of applyingthe normal justification thesis to international law, whereby states wouldbe better off by subjecting themselves to international law than seeking toact according to some rational choice model, concluding that howeverplausible the normal justification thesis might be for domestic law, ‘it isunlikely to be true for international law’.118 Further, it appears difficult toapply the concept of authority to the international law order, given theabsence of an international authority, world government, or otherauthoritative institution. Moreover, domestic laws are ‘good’ where theyrespect and promote the autonomy or welfare of citizens, but ‘states donot have autonomy in the same way that individuals do’. The autonomyand welfare of the state cannot be a reason for complying with interna-tional law.119 Any moral obligation to obey international law must begrounded in the autonomy and welfare of human persons. The argumentmust be that individuals would be better off if states had an obligation tocomply with international law. This is a question of empirical judgment,and there are many reasons for thinking that the assumption might notbe correct.120

Goldsmith and Posner identify two objections to any analogy betweenthe (normal) justification for authority at the level of the state and forrecognising the authority of international law. The first concerns the ques-tion of presumption, in that we presume that laws in a liberal democracy aregood, provided that citizens have influenced the political process. Theargument does not apply to international law, and many of the founda-tional rules of international law ‘evolved long before liberal democracybecame a common mode of political organization’. International law‘reflects the interests of States not individuals’. The second reason relates toenforcement; in contrast to domestic systems, international law ‘is notreliably enforced and depends entirely on states voluntarily setting asidetheir immediate interests’.121 There is little reason to accept the authority ofinternational law, which is the product of agreements between govern-ments that favour their own citizens (or some subset thereof), with littleconcern for others or future generations.122 There are no good arguments

118 ibid at 195.119 ibid at 193.120 ibid at 194.121 ibid at 195.122 ibid at 200.




for imposing a moral obligation on states and citizens to comply withinternational law. Citizens and leaders might believe that they have a moralobligation to obey international law (and even act accordingly), but thiswould be a mistaken belief. International law is constructed through therational self-interest of states; it is a form of politics that relies on ‘precedent,tradition, interpretation, and other practices and concepts familiar fromdomestic law.’ It is the case that international law ‘can be binding androbust, but only when it is rational for states to comply with it.’123 Com-menting on the arguments, Hathaway and Lavinbuk observe that theconclusion is not simply that democratic states are permitted to violateinternational law;

they may be obligated to do so. Liberal democratic states are bound byconstituent preferences, not by some abstract cosmopolitan duty to followinternational law or to pursue the interests of all humanity . . . When theconstituents of a state want the state to act in a way that is contrary to itsinternational legal obligations, the state must do its democratic duty andfollow the dictates of its own people.124

Democracy-Enhancing International Law

Keohane, Macedo and Moravcsik make the counterintuitive argumentthat the participation of democratic states in multilateral institutions(international organisations comprised of states) can enhance the qualityof democracy by restricting the influence of special interest factions,protecting individual and minority rights, and by increasing the informa-tion and arguments available to national politicians and publics (thusimproving the quality of democratic deliberation).125 The argument relieson a particular understanding of ‘constitutional democracy, [one] inwhich much of politics is deliberately insulated from direct majoritariancontrol’. The model is regarded as a better description of the real worldpractices of democracy, in which the popular will, established throughdemocratic politics, in only one value. Others include constraints onpowerful (economic) actors, the protection of democratic minorities, andrecognition of the value of the democratic discussions that precede thepoint of decision. A system of checks and balances on the exercise ofpolitical authority and existence of institutions that are only indirectly

123 ibid at 202.124 Oona Hathaway and Ariel Lavinbuk, ‘Rationalism and Revisionism in International

Law’ (2006) 116 Harvard Law Review 1404, 1419 (references omitted).125 Robert Keohane, Stephen Macedo and Andrew Moravcsik, ‘Democracy Enhancing

Multilateralism’ (2009) 63 International Organization 1, 2.




accountable to the people, such as constitutional courts, is in fact ‘democ-racy enhancing’.126 Those policy issues delegated to specialised bodies atthe domestic level, such as central banking, human rights protection andtechnical regulation, are the same ones likely to be delegated to interna-tional institutions.127 Even with their ‘intrinsic epistemic advantages[,]individual democracies can utilize information, expertise, and debateeven more effectively when they participate in multilateral institutionsand networks’.128

Elsewhere, Andrew Moravcsik observes that EU decision-making,including decision-making by insulated national representatives, enjoysthe greatest political authority in those areas, central banking, constitu-tional adjudication, economic diplomacy, etc, in which many advancedindustrial democracies ‘insulate themselves from direct political contes-tation’.129 The introduction of ‘insulted institutions’ ensures the impartialimplementation of prior bargains within the political community. Threenormative justifications, alone or in combination, are provided for theirintroduction: the need for greater attention, efficiency and expertise inpolicy areas in which most citizens remain rationally ignorant, or non-participatory; the need impartially to dispense justice for individuals anddemocratic minorities; and the need to provide majorities with unbiasedrepresentation and avoid the capture of decision-making processes by‘powerful particularist minorities’. Modern democracies are not populist,but constitutional, and constitutional democracy is enhanced by insulat-ing certain issues from majoritarian decision-making.130 The justificationfor insultation is system effectiveness, at the expense of citizen participa-tion,131 and an understanding of democratic will-formation that requireslaws to enjoy the support of the majority, subject to the conditions thatmajority rule does not offend against settled constitutional norms; theprinciple of public reason; or violate the rights of minorities. Moravcsikconcludes that where international institutions ‘perform about as well asthe existing, generally legitimate, national systems they (partially) sup-plant, they should receive the benefit of the doubt’.132

The exercise of regulatory functions by international organisations andnon-state actors ‘above’ the state provides a further ‘check and balance’

126 ibid at 9.127 ibid at 14.128 ibid at 18.129 Andrew Moravcsik, ‘In Defence of the ‘Democratic Deficit’: Reassessing Legitimacy

in the European Union’ (2002) 40 Journal of Common Market Legal Studies 603, 613.130 ibid at 614. See also Andrew Moravcsik, ‘What Can We Learn From the Collapse of

the European Constitutional Project?’ (2006) 47 Politische Vierteljahresschrift 219, 238.131 Robert Dahl, ‘A Democratic Dilemma: System Effectiveness Versus Citizen Participa-

tion’ (1994) 109 Political Science Quarterly 23, 29.132 Andrew Moravcsik, ‘Is there a ‘Democratic Deficit’ in World Politics? A Framework

for Analysis’ (2004) 39 Government and Opposition 336, 337.




to those established within the domestic constitutional framework,ensuring that democratic minorities are not subject to an ‘injustice’.Daniel Esty observes that where domestic policy disputes are ‘deep’ and‘highly contested’, the existence of global regulation ‘can reduce theall-or-nothing nature of national politics’. By requiring careful considera-tion of policy choices and demanding that domestic decision-makersjustify their actions, the existence of global institutions ‘adds depth to thesystem of checks and balances, thereby limiting national governmentalmistakes and improving social welfare’.133 Engagement with interna-tional organisations might well improve the quality of domestic democ-racy, providing an additional reason for states to accept global lawnorms, but the analysis does not provide any guidance as to whichnorms should prevail in cases of conflict and ignores the exercise ofglobal regulatory authority by non-state actors that do not allow for theparticipation of all states subject to the international governance regime(Germany, for example, is an important member of the EU, but not apermanent member of the UN Security Council).

Constitutional Self-Limitation

Buchanan and Powell argue that there are two reasons for citizens ofdemocratic states to accept, what they call, ‘robust international law’, ieinternational law that ‘claims the authority to regulate matters onceconsidered to be the exclusive concern of the state’.134 The first reason is acosmopolitan one, to ensure the protection of basic human rights every-where.135 The second reason is that the participation of the state in aninternational governance regime can enhance constitutional democracyby ensuring greater protection of human rights, constraining specialinterest groups in domestic politics, and providing technical expertiseand access to ‘best practices’ in a number of policy areas.136 The argu-ment follows from an understanding of democracy as a form of constitu-tional self-government, requiring entrenched human rights and aseparation of government powers, and an acceptance that democraciesare fallible: ‘Even the best existing constitutional democracies may fail toprovide equal protection of the human rights of some of their citizens.’137

Participation in international institutions can also enhance domestic

133 Daniel Esty, ‘Good Governance at the Supranational Scale: Globalizing Administra-tive Law’ (2006) 115 Yale Law Journal 1490, 1502.

134 Allen Buchanan and Russell Powell, ‘Constitutional Democracy and the Rule ofInternational Law: Are They Compatible?’ (2008) 16 Journal of Political Philosophy 326, 326.





democracy by providing important factual information, and improvingthe quality of ‘moral and legal argumentation that is crucial for demo-cratic deliberation about domestic policy’. This may be particularlyimportant where there is a significant risk that democratic deliberation‘will be distorted by biases present in the dominant domestic culture’.138

Engagement with international law may also correct the ‘inherent biasof democracy’, which only takes into account the interests and perspec-tives of citizens. It ensures that the state takes into account the ‘basicinterests of foreigners’, although this should not imply that the interestsof foreigners ‘ought to be weighed equally with those of citizens’.139

Engagement with international law can also serve to promote the idea ofthe rule of law, which, at both the domestic and international levels,expresses a commitment to resolving conflicts by peaceful means and notby recourse to ‘sheer power’. It is a cosmopolitan argument, assuming‘the fundamental equal moral status of persons: all are to be treatedfairly; vulnerable persons generally, not just the vulnerable who are one’sfellow citizens, are to be protected’.140 The idea of the rule of law does notprovide an absolute reason to support robust international law, only acontingent one: the ideas that underlie the commitment to the rule of lawsuggest that the state should accept the authority of international law ‘incases where there is a risk that bias and the perquisites of power wouldotherwise be likely to determine the outcome’. The argument is compara-tive: international law is to be preferred where the international lawnorm ‘sufficiently embodies the ideal of the rule of law’. At present, thisis unlikely to be the case in most instances.141

Buchanan and Powell accept that even if international organisationsand institutions were to operate in a way that could be regarded asdemocratically legitimate, there would still be a (domestic) democraticdeficit, as the exercise of political authority beyond the state would limitthe possibilities of political self-determination. The relevant questionwould be whether the diminution of democratic self-determination wasso great ‘as to be incompatible with it warranting the title of a democracy,a territory whose inhabitants are in some meaningful sense self-governing’.142 International law norms should be regarded, like constitu-tional law norms, as a ‘higher’ form of law, and, consequently, should

138 ibid at 331.139 ibid at 333.140 ibid at 333–34.141 ibid at 334.142 ibid at 344. In its judgment on the Acts approving the Treaty of Lisbon, the German

Federal Constitutional Court concluded that there were limits on the extent to which ademocratic state could transfer sovereign powers to an international organisation andremain a democracy: Bundesverfassungsgericht (Treaty of Lisbon), BVerfG, 2 BvE 2/08 of




require a higher standard of acceptance by the democratic system for theremoval of policy issues from political contestation. Buchanan and Pow-ell identify a meta-constitutional principle which is ‘both simple androbust: some political changes are so momentous that the ordinaryprocesses for making political decisions are inadequate, and in such casesthe decision ought to be made by the ultimate source of politicalauthority, the people’.143

In a democracy, significant constitutional change, concerning there-allocation of political power, requires ‘some form of democraticauthorization that is more robust than the ordinary legislative process[:]public constitutional deliberation and popular choice seem to berequired’. Mutatis mutandis, significant delegation of political authorityto global governance institutions ‘requires public deliberation and popu-lar choice, some sort of authorization that is more directly democraticthan an ordinary legislative act or the ratification of a treaty’. Theargument does not apply in relation to all international law norms, only‘Robust international law’ norms (note the capitalisation): internationallaw norms that can be expected to significantly restrict a polity’s self-determination or alter its internal constitutional structures. Constitu-tional democracy may only legitimately become subject to Robustinternational law through forms of a priori ‘public constitutional delib-eration and popular choice, by processes that give more weight tothe popular will than ordinary legislative processes and which arepreceded by special public deliberations designed to reflect the fact thatconstitutional changes are at stake’.144 Possible mechanisms include aconstitutional convention, constitutional amendment, or referendum, orsome form of parliamentary super-majority for the adoption of legisla-tion.145

The difficulty in the analysis is that whilst the idea of public delibera-tion and popular choice can be applied to contract-like agreements,where the state is considering accepting an international law treaty orproposals for a greater regulatory role for an international organisationor global regulatory regime, the requirement for greater public involve-ment and evidence of the political ‘will’ cannot be applied to situations inwhich ‘Robust international law’ norms emerge from autonomous laworders (consider, for example, the role of the UN Security Council as a

30 June 2009 [175]. Available: http://www.bverfg.de/. The idea of democracy is inconsist-ent with a position in which the will of the people (defined in terms of majority rule) is nolonger capable of determining policy: ibid at [210].





legislative institution); nor can it accommodate the possibility that citi-zens might change their position on a policy issue, and, in contrast toconstitutional law norms, international law cannot be subject to unilat-eral revision or repudiation by the people of the state.

International Law as a Pre-Commitment Device

Goldsmith and Levinson argue that there is a conceptual divide betweenlaw for states and law by states. Public law for states includes bothconstitutional law and international law, and is distinguished fromordinary domestic law. The state is the subject of the public law system; itis the source of ordinary domestic law. Constitutional law and interna-tional law share much in common: both share a sense of ‘foundationaluncertainty and contestation’, which results from an absence of a legisla-ture with the authority to authoritatively determine the existence andcontent of public law norms (the authority of the courts to undertake thisfunction is limited and contested); the absence of ‘an enforcement author-ity capable of coercing powerful political actors to comply’ (the logicalimpossibility of a sovereign power above the sovereign); and fact thatboth constitutional law and international law strain to legitimate theconstraints it purports to impose on popular self-government ‘by invok-ing various forms (or fictions) of prior sovereign consent’.146 Both consti-tutional law and international law are implicated in the counter-majoritarian difficulty, whereby ordinary domestic laws with majoritysupport are held to be invalid or inappropriate by reference to public lawnorms, all of which rely on narratives of consent that find expression inideas of sovereignty.

Tom Ginsburg describes domestic constitutions as ‘precommitmentdevices’. Constitutions represent ‘self-binding acts’, whereby the drafterslimit the policy options available to future politicians. Certain policychoices are placed beyond the scope of legislators, or require specialprocedures or super-majorities in national parliaments. The justificationfor ‘pre-committing’ future majorities is the need to resolve existingpolitical controversies ‘and thereby facilitate stable political order in thefuture’.147 Where international law binds states, limiting the policyoptions of decision-making, it can also serve as ‘a precommitmentdevice’.148 Pre-commitment is defined as being obligated ‘to some courseof action or inaction or to some constraint on future action … to influence

146 Jack Goldsmith and Daryl Levinson, ‘Law for States: International Law, Constitu-tional Law, Public Law’ (2009) 122 Harvard Law Review 1791, 1794.

147 Tom Ginsburg, ‘Locking in Democracy: Constitutions, Commitment, and Interna-tional Law’ (2006) 38 New York University Journal of International Law and Politics 707, 710.

148 ibid at 724.




someone else’s choices’.149 The advantage for the state is that a formalexpression of commitment to a policy position makes clear to other statesthat it is ‘serious about [its] promises’, with the consequence that thoseother states will be more likely to comply with their (international law)promises.150 The argument is that ‘[a]ll politicians face problems commit-ting to their promises’, because, in a democracy, the fact of electoralcompetition will ‘ensure that the politician will eventually be out ofpower’.151 International law helps to resolve the domestic commitmentproblem as those in power are able to entrench policy positions byentering into international law agreements. Given that ‘undoing interna-tional agreements is typically costly, a policy that is entrenched interna-tionally may survive the demise of the current political coalition or evenregime’.152

Domestic power-wielders may commit themselves to substantivepolicy commitments or to pursuing certain policy objectives throughmembership of an international organisation or institution. Once policy-making is delegated to a global institution, it becomes difficult for anyone state to exercise decisive control over the policy, which, as Ginsburgobserves, is ‘the source of concern about a “democratic deficit” ininternational institutions’, although he concludes that the loss of politicalself-determination may be a ‘good thing to the extent that it facilitates theentrenchment of democratically enacted policies’.153 Whilst constitutionaland international law norms share a number of similarities, including asense that they are somehow ‘above’ domestic politics, there is a signifi-cant difference: constitutional law norms remain subject to contestationand (potential) change by the people (alone), albeit subject (in most cases)to special procedures and/or majorities; this is not the case in relation tointernational law norms, which (from the perspective of internationallaw) bind the state, irrespective of the attitude of the people.

A Contestable International Rule of Law

In evaluating the relationship between constitutional democracy andinternational law, Mattias Kumm develops a moral case for the interna-tional rule of law, ie for compliance with international law. Fidelity to theinternational rule would curtail the abuse of power, in particular in cases

149 ibid at 721, relying on Thomas Schelling, Strategies of Commitment (Cambridge,Massachusetts, Harvard University Press, 2006) 1.





of unjustified coercive intervention;154 contribute to the protection ofdomestic groups though respect for international human rights norms;enable ‘welfare-enhancing cooperative endeavors’ through internationallaw regimes;155 and enhance the freedom of various actors, by ‘creating apredictable [normative] environment in which actors can make meaningfulchoices’.156 The principle of international legality, or ‘international rule oflaw’, requires that liberal democracies operate a rebuttable presumption infavour of compliance when faced with international law norms, ie in favourof the authority of international law. The presumption is rebutted whereinternational law norms ‘constitute sufficiently serious violations of coun-tervailing normative principles relating to jurisdiction, procedure or out-comes’.157 International law is prima facie legitimate and deserving of therespect of citizens in constitutional democracies simply by virtue of beingthe law of the international community, which establishes ‘a fair frameworkof cooperation between actors of international law in an environmentwhere there is deep disagreement about how this should best beachieved’.158 The international rule of law can also serve to protect theinterests of domestic actors as it contributes to the ‘checks and balances’ ofdomestic systems, and locks in and stabilises liberal democratic forms ofgovernment. The international rule of law can also serve to prevent orcurtail the illegal abuse of political power, preventing ‘powerful actors whowould otherwise have the capacity to exercise political power to the detri-ment of those protected by law from doing so’.159

Kumm argues that concerns about a democratic deficit in internationallaw are best understood as concerns related to jurisdiction, procedureand/or outcomes. The principle of jurisdictional legitimacy or subsidi-arity serves to replace the idea of sovereignty as ‘demarcat[ing] therespective spheres of the national and international’.160 The principle ofadequate participation and accountability ‘focuses on the proceduralquality of the jurisgenerative process’. It does not imply the applicationof electoral models to international organisations or institutions, but theestablishment of transparent and participatory procedures for the adop-tion of law norms, and the establishment of accountability mechanismsto ensure that regulators remain responsive to the concerns of those

154 Mattias Kumm, ‘International Law in National Courts: the International Rule of Lawand the Limits of the Internationalist Model’ (2003) 44 Virginia Journal of International Law 19,24.

155 ibid at 25.156 ibid at 26.157 Mattias Kumm, ‘The Legitimacy of International Law: a Constitutionalist Framework

of Analysis’ (2004) 15 European Journal of International Law 907, 917.158 ibid at 918 (references omitted).159 ibid at 919.160 ibid at 920–21.




subject to the regime.161 The final category relates to ‘outcome legitimacy’or ‘achieving reasonable outcomes’.162 Citizens should regard interna-tional law norms as binding, and consequently comply with them,provided that the norm in question does not violate, to a significantdegree, the jurisdictional principle of subsidiarity, the procedural princi-ples of adequate participation and accountability, and/or the substantiveprinciple of achieving outcomes that do not violate fundamental humanrights.163 International law norms are presumptively binding: the princi-ple of international legality ‘generally requires that addressees of interna-tional law should obey it’.164 Citizens should accept and comply withinternational law norms, even when they disagree with the norm inquestion, or international law would have no chance of achieving itspurpose of providing a fair framework of co-operation.165 The presump-tion in favour of compliance may be overridden where there are defectsrelating to the jurisdictional principle of subsidiarity, the proceduralprinciples of adequate participation and accountability, or the substan-tive principle of achieving outcomes that do not violate fundamentalhuman rights. Where defects are sufficiently serious,

citizens in a constitutional democracy ought to think of themselves as free todeviate from the requirements of international law. In these cases, citizens havegood reasons to conceive of themselves as free to generate and apply theindependent outcomes of the domestic legal and political process.166

It is for the citizens of the state to determine their attitude to internationallaw norms, with the judgment, in part, depending on international lawnorms upholding the liberal principles of political self-determination andrespect for human rights – the subjective judgment of the people isconditioned by objective principles of constitutional law.

CONCLUSION

The works of Keohane et al, Buchanan and Powell, Ginsburg, and Kummprovide important insights into the ways in which a constitutionaldemocracy might respond to the claims of international law, with the

161 ibid at 926.162 ibid at 928.163 Mattias Kumm, ‘Democratic Constitutionalism Encounters International Law: Terms

of Engagement’ in Sujit Choudhry, The Migration of Constitutional Ideas (Cambridge, Cam-bridge University Press, 2006) 256, 261–62. See also Armin von Bogdandy, ‘Pluralism, DirectEffect, and the Ultimate Say: on the Relationship between International and DomesticConstitutional Law’ (2008) 6 International Journal of Constitutional Law 397.

164 ibid at 262.165 ibid at 263.166 ibid at 263–64.

Conclusion 371



arguments making clear that there is no reason to conclude that interna-tional law will always be bad for democracy, or that a constitutionaldemocracy should recognise and give effect to all international law norms(broadly defined). State law systems must be at once open to the authorityof international law, and suspicious about international law.167 The rela-tionship will be determined in large part through the existence (or other-wise) of the consent of the state to the international law norm. Consent to aninternational norm does not (from the perspective of the state system)subject the state law order to the authority of international law (a lessonfrom global legal pluralism). As a matter of practice, however, states acceptthe need for international cooperation in response to the pressures of‘globalisation’, and they will make a strategic decision (as a matter of‘rational choice’) to comply with the majority of international law normsopposable to the state. Further, it is important to remember the lessons ofconstructivism: the identity of the ‘sovereign’ state in the ‘Westphalian’system is constructed through engagement with other law actors in accord-ance with the rules of the international law game. The idea of sovereignty ininternational relations exists through inter-subjective understandings thatconstitute a particular kind of international community based on the inter-national law principle that promises must be kept – pacta sunt servanda. Thestate (defined by the exercise of political authority in accordance with aconstitutional system of law) will understand itself as being bound tocomply with those international law norms established through an exerciseof sovereign will.

There are, however, limits to the extent to which a state will accept thatit is subject (as a matter of domestic law) to comply with all promisesestablished at the international level. The understanding of internationallaw, along with constitutional law, as a system of public law thatconstrains the exercise of popular sovereignty confirms that the act ofpolitical self-determination takes place within an agreed (‘constitutional’)frame that is always subject to challenge and reform. The external frameestablished by international law norms does not (from the perspective ofthe autonomous system of state law) subject the state system to theauthority of international law, it challenges the state law order to justifythe version of political truth developed within the state by holding up analternative vision. The requirement of epistemic humility in conditions of

167 Joseph Weiler concludes that democratic governments should both ‘embrace interna-tional normativity’, and treat international normativity ‘with considerable reserve’. Theapproach accepts the international law order as an acquis, ‘but it is unwilling to celebrate thebenefits of that acquis when gained by a disenfranchisement of people and peoples’. Thepeople of a constitutional, or liberal, democracy can reject international law norms ‘in thename of that very same value, liberal democracy’: JHH Weiler, ‘The Geology of Interna-tional Law-Governance, Democracy and Legitimacy’ (2004) 64 ZaöRV [Heidleberg Journal ofInternational Law] 547, 562.




uncertainty and reasonable disagreement requires that a democraticsystem of law not only ‘legislate’ in accordance with the principles of(deliberative) democracy, but also that it reflect on the ‘democratic’ truthsemerging in other systems of law. The exercise of legitimate authorityrequires that a legal system accepts that it is open to the influences ofother systems of law, and other versions and visions of truth and justice.A legal system should defer to the regulatory norms of another legalsystem where it is persuaded that a conflicting norm represents a betterexpression of a political ‘truth’, determined through democratic proce-dures for the adoption of law norms.

The existence of ‘consent’ for the establishment of an international lawnorm situates the analysis broadly within the Westphalian paradigm,albeit recognising the absence of any a priori hierarchy between systems oflaw. Where international law norms are established without the consent ofthe state, new understandings are required for the attitude of the state tointernational law norms. The establishment of international law withoutthe consent of the state can occur in one of two circumstances: wherepublic international law emerges without the direct involvement of thestate concerned (the ‘modern’ form of customary international law, forexample), and where non-state actors ‘legislate’ international law norms.In relation to the first possibility, ie where the state does not participate inthe development of an international public law norm, the idea of commu-nicative reason suggests that forms of ‘deliberative diplomacy’ betweenstates and within international organisations can establish expressions ofpolitical truth and global justice in public international law, and thedemocratic state must remain open to accepting that other systems of lawmight establish a better approximation of political truth through a processof communicative reason (which is why a state should feel ‘uncertain’where domestic provisions on, for example, human rights conflict withnorms generally recognised in international law instruments, even wherethe state is not a party).

In addition to public international law, global law now includes interna-tional governance norms adopted by non-state actors. Ralf Michaels notesthat there are a number of possible responses that a state might adopt whenfaced with a ‘soft law’ norm legislated by a non-state actor. First, rejection,the state law order may simply reject the authority of the global norm.Secondly, incorporation, which involves the transformation of non-statelaw into state law. Non-state norms are ‘domesticated’, thus becoming statenorms. Non-state actors are recognised as ‘generators of norms’, but thenorms are denied the status of autonomous law.168 Thirdly, deference,

168 Ralf Michaels, ‘The Re-State-Ment of Non-State Law: the State, Choice of Law, andthe Challenge from Global Legal Pluralism’ (2005) 51 Wayne Law Review 1209, 1232–33.

Conclusion 373



whereby the state law system transforms the norms of non-state actors intofacts, thus, for example, the normative autonomy of ethno-cultural groupsand transnational merchants (lex mercatoria) is recognised as a fact andprotected from state regulation. The state takes into account the customsand expectations of the group in applying state laws, but does not recognisethe norms of the group as ‘law’.169 Fourthly, the idea of delegation involvesthe transformation of non-state law into subordinate law, ie, the staterecognises a non-state actor as a self-regulatory body, with the right todevelop its own system of law — subject to the state law system. Whilst thestate might recognise non-state norms as law, ‘only state law is autonomouslaw. The norms of non-state communities become state law through incor-poration, or become relevant facts through deference, or become subordi-nated law through delegation.’ The state retains its ‘legal monopoly.Nothing is law unless it is recognized as such by the state.’170 From theperspective of the state, non-state normative orders are secondary norma-tive orders.171 The state may recognise other ‘state’ normative order assystems of law, because states have a ‘collective interest in maintaining theircartel of law-making and law administration’.172 Through conflict of laws,states ‘mutually constitute each other as law-makers’. The relationshipbetween states and non-state actors is different: it does not concern arelation of ‘mutual delimitation of spaces to engage in structurally similaractivities like legislation, enforcement, or adjudication’.173 States cannotrecognise the norms of non-state actors as law ‘and at the same timemaintain the same concept of itself’.174

The Westphalian orthodoxy operates as a discourse in global society,constraining the ways in which the world of law is understood. Legalpositivists hold to the importance of sources, whilst a rejection of theorthodoxy concludes that de facto authority is sufficient to ‘legislate’international law norms. The positivist position does not reflect the realworld of law, whilst the pluralist analysis ignores the importance ofnormative legitimacy for establishing ‘law’ norms. There is a need forstate law systems to adapt to the realities and normative requirements forglobal law norm production, following the globalisation and fragmenta-tion of governance. Global law norms are the product of legal systemsorganised in accordance with a constitution, with regulations adopted inaccordance with the right reasons that apply to subjects. The recognitionof an autonomous system of law is a function of those ‘lawyers’ that





determine the scope and content of the legal system. External recognitionis provided by other systems of law. The recognition of another norma-tive system as an autonomous legal order constitutes that legal order, butonly from the perspective of the legal system that engages in therecognition. Michaels points out that recognition may be symmetrical(where, for example, states recognise each other and their laws), asym-metrical (the mutual recognition between state law and non-state law), orone-sided (non-state law recognises state law as law, but state law doesnot recognise the non-state law):

This understanding, in which the relationship between laws replicates thatbetween self and other, opens new and promising ways for a new conflict oflaws, now understood as a general theory of interlegality, as the way in whichthe law makes sense of its own plurality.175

The idea of legal pluralism allows for a relativism of position: ‘it is anepistemic relativism in which law is constructed – not only by communi-ties for themselves, but especially by legal systems for each other’.176 Theglobal world of law is constructed from plural perspectives: a multiverseof overlapping law orders.

The democratisation of global law can only be achieved throughmultiple articulations of a democratic world of law by (democratic) statelaw systems, which remains the central guarantors of public and privateautonomy for the individual citizen. The legal institutions of the state(including courts) must evaluate global law norms to determine their(legitimate) authority in accordance with the deliberative ideal for validlaw norms: laws are valid where all subject to them could agree to thenorms through discourses. The rule of international law creates a pre-sumption for the authority of international law norms (properlyso-called) that can be rebutted where the law cannot claim (legitimate)authority. This occurs in two circumstances: where a global regulatordoes not enjoy legitimate authority it cannot legislate law norms; andwhere the democratic legitimacy of the state law norm (establishedthrough deliberative procedures) ‘trumps’ that of the international lawnorm, the norm of the state law system is to be preferred (taking intoaccount the strategic and constructed interests of the state in compliancewith international law). Where the claims to democratic legitimacy, ie toassert a political truth, of the international law system are stronger thanthose of the domestic system, the international law norm is to bepreferred. This application of a test of democratic legitimacy to globalregulatory norms will have the practical consequences of requiring the

175 Ralf Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and SocialScience 243, 255.

176 ibid at 256.

Conclusion 375



autonomous systems of international law to engage in a process ofdemocratisation, in order to overcome the problem of compliance withglobal law norms by democratic societies. The rejection of the authorityof international law norms by functioning democracies (the argumentdoes not apply where non-democracies reject ‘democratic’ internationallaw norms) will promote the development of democratic procedures inthe international system in accordance with the deliberative ideal, whilstrecognising the no one approach or mechanism will be appropriate in allcircumstances. The construction of a multiverse of democratic visions ofglobal governance orders by democratic states will have the practicalconsequence of democratising the international law order, providingdemocratic legitimacy for international law.




10

Conclusion: Democracy and the PublicInternational Lawyer

THE WORK BEGAN by reviewing the literature on the putativedemocratic deficit that has resulted from the globalisation ofregulatory functions, and various proposals for responding to the

problem. It argued for the need for clarity of analysis, and that thestarting point should be the perspective of the constitutional democraticstate and the democratic deficit experienced by citizens where they donot decide for themselves, by democratic political procedures, all thoseconditions of their lives that are politically decidable. The argumentsdeveloped here relied on the deliberative model outlined by JürgenHabermas, which provides the most compelling account of the require-ments of democracy, consistent with the liberal principle of consent forthe exercise of political authority: ‘D: Just those action norms are valid towhich all possible affected persons could agree as participants in rationaldiscourses.’ The necessary conditions for the practice of democracy areprovided by an application of the principle of discourse to the processesof political law-making. The difficulties in applying the idea to systemsof international law and international governance were observed, giventhe absence of a global public sphere or global publics that mightlegitimate the exercise of political authority by global regulators as anexpression of democratic opinion- and will-formation (no demos, nodemocratic legitimacy). Deliberative democracy is an ideal-type theory:the democratic state imagines itself to be an association of free and equalpersons, who agree to regulate their lives in accordance with the princi-ples of (deliberative) democratic law. The objective of this book was toreconcile the counterfactual ideal with the global regulatory frameworkprovided by international law (broadly defined), recognising that sover-eignty confers the capacity to legislate valid (‘Westphalian’) laws within aconstitutional framework established by the international law order,consistent with global justice norms.

The system of international law that emerged following the Westphal-ian political settlement divided sovereignty into its internal and externalcomponents, expressed in terms of state and international law. The

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authority of international law is inherently problematic from the perspec-tive of sovereignty and democracy, the twin principles that providepolitical legitimacy for the constitutional democratic state. The functionof domestic democratic law-making is to legitimate the exercise of(coercive) political authority within the taken-for-granted state. Democ-racy is a mechanism for establishing political truths, ie right policy, alsoframed in terms of justice, in conditions of complexity, uncertainty, anddisagreement between rational and reasonable persons, ie those who arewilling to propose fair terms of cooperation applicable to all. Democraticlegitimacy for international law norms (in terms of communicativereason) is provided by deliberative forms of diplomacy that lead to aconsensus amongst participating states. The agreement of democraticstates is taken as an expression of the (external) will of the people,binding the state law order in the same way as constitutional law norms,with the additional moral and political obligations inherent in the con-cept of pacta sunt servanda: promises must be kept. Constitutional andinternational law norms remain, though, subject to the democraticopinion- and will-formation of the here-and-now people of the state.

The globalisation and fragmentation of governance has made thepractice of democracy more complex. In conditions in which systems oflaw may be both territorial (at the global, regional and state levels) andsectoral, there is a need for (legal and political) tools for dealing withconflicts between legal orders, consistent with the lessons of legal plural-ism. In order to make sense of the democratic legitimacy of internationallaw, a number of arguments were developed. First, valid law norms arethe product of democratic procedures. The framework of rights andliberties that structures the social context of human existence is estab-lished through a process of political dialogue in accordance with theprinciple of public reason. Secondly, the two-track model of democraticself-determination that developed following the Westphalian settlement(democratic rule of state law, and consent to international law norms) isno longer sufficient to explain the legitimacy and authority of law norms.International law norms are increasingly imposed on the state without itsconsent, and non-state actors have emerged as significant de facto‘legislators’ of law norms (although that is not to suggest that allnon-state actors enjoy (legitimate) authority). Thirdly, all systems of law,including the fragmented systems of international law, are autonomous,and are not subject to the authority of any other system of law. Fourthly,all systems of law, organised in accordance with a constitution thatestablishes rules about (political) rule-making, develop norms and prin-ciples of political justice; the existence of coercive institutions of govern-ment and a taken-for-granted political community are not pre-requisitesfor the development of (global) justice norms; they exist in each system oflaw. Fifthly, autonomous systems of law can emerge in any number of

378 Conclusion: Democracy and the Public International Lawyer



ways, and do not require a formal ‘delegation’ of sovereign powers oflaw-making. An autonomous system of law is recognised where thoseconcerned with the interpretation and application of its law norms act asif it were an autonomous system of law. Sixthly, in the absence of a globalconstitutional settlement, autonomous systems of law (including statelaw systems and the legal systems of global governance) are not organ-ised in accordance with any a priori hierarchy. Seventhly, from theperspective of the democratic state, international public law norms that‘legislate’ for the conditions of social, economic and political life withinthe state should be seen (along with constitutional law norms) as a formof public law constraining the exercise of popular sovereignty. Finally, thedemocratic state must remain open to international law, and the benefitsof international cooperation and global regulation, but also recognise thatthere are limits to the extent to which a democratic state can accept theauthority of international law.

One of two responses is available to the democratic state that con-structs the world of valid law in accordance with its own constitutionand understanding of itself as a sovereign and democratic state: it mayreject the authority of international law norms adopted by a regulatorwithout legitimate authority (defined by reference to democratic prac-tices), or it may accept the validity of the international law norm, butaddress the issue from a conflict of laws perspective. The application ofthe idea of legitimate authority to the regulation of social, economic andpolitical life by autonomous systems of law provides the basis forstructuring the relationships between the various systems of state andinternational law. The practice of democracy following the globalisationand fragmentation of governance requires that a legal system not only‘legislate’ in accordance with the principles of deliberative democracy,but also that it reflects on the ‘democratic legitimacy’ of conflictingassertions of jurisdiction by other systems of law. The conclusion repre-sents an acceptance that there can be conflicting political ‘truths’ (identi-fied through democratic procedures), and conflicting visions of (political)justice. A legal system should defer to the regulatory norms of anotherlegal system where it is persuaded that a conflicting norm represents abetter expression of a political ‘truth’, determined through democraticprocedures for the adoption of law norms.

The world of law has both globalised and fragmented. It is certainlythe case that much of the de facto regulation of social, economic andpolitical life falls outside of the Westphalian paradigm and is inconsistentwith the requirement of democratic legitimacy for the establishment ofvalid law norms. The introduction of rules framed in terms of law doesnot, however, require an application of the rule of law, and presumptionthat ‘law’ norms are binding on subjects. The right to regulate, ie todetermine the normative situation of others, exists only where the




regulator enjoys legitimate authority. In the case of the regulation ofdemocratic societies, it seems implausible that states or individualswould subject themselves to the authority of another in the absence of‘democratic’ processes to determine the right reasons that apply tosubjects; a regulator has authority only where norms are adopted in amanner that can be described as democratic. Legitimate authority isestablished where the regulator ‘legislates’ in accordance with the rightreasons that apply to the subjects following democratic processes todetermine the nature and content of those right reasons. The idea oflegitimate authority presupposes the moral ideas of autonomy andequality, requiring the adoption of regulatory norms in accordance withthe (deliberative) principles of equality and public reason: law norms arevalid only where all subjected persons could agree as participants inrational discourses. The commitment to equality follows from the factthat a requirement to offer reasons for regulations only exists betweenequal persons; the commitment to autonomy from the idea that individu-als have reasons and the capacity to reflect on those reasons. A non-stateactor that fails to exercise its powers in accordance with the (deliberative)(democratic) principles of equality and public reason does not possess(legitimate) authority; it is not an authority.

The recognition of the authority of non-state actors is principally afunction of domestic law systems (responsible for coercive enforcementin the division of global regulatory labour). The emergence of new formsof global law (in addition to forms of state and international law) requiresthat domestic systems evaluate the authority of hard and soft interna-tional law norms. This requires that domestic lawyers develop an exper-tise in the validity of international law norms (broadly defined), withimplications for the curriculum in legal education. A constitutionaldemocracy will accept the authority of a non-state actor (and its lawnorms) by reference to two criteria: the strategic interests of the state inglobal regulation and compliance with the law norm, and an evaluationof the version of political truth (right policy, or justice) developed by thenon-state actor, and the perspective of the state law system as to whetherthe alternative version of political truth represents a more compellingversion of right policy or justice, defined by reference to communicativereason.

In its post-ontological condition, the discipline of international law hasbeen successful in developing complex sub-disciplines, concerning thelaw of the sea, international human rights and international trade law, etcand in embedding the language and authority of international law ininternational relations. International lawyers have played a central role in‘recognising’, ‘developing’ and ‘interpreting’ international law. The glo-balisation and fragmentation of global governance, decline of the West-phalian settlement, emergence of new forms of global law, and revised




concept of (international) law raise questions of first principle that publicinternational lawyers have generally been unwilling to engage with. Theextant condition of international law is not simply a more complex andincoherent version of the positivist orthodoxy that went before. Thefunction of the international lawyer is not only to identify what stateshave willed, but to determine the scope and content of internationalpublic law norms opposable to the state that regulate the conditions ofsocial, economic and political life within the state (delimiting the possi-bilities of political self-determination). The fragmented systems of inter-national law reflect a new world of global governance, and require a newunderstanding of the idea of ‘international law’.

Law emerged as a discipline in the eleventh and twelfth centuries withthe first European universities. Trained lawyers helped to provide struc-ture and coherence to the accumulating mass of legal norms, thushelping to carve out new legal systems from older legal orders. In 1150,perhaps 10,000 law students from all over Europe went to Bologna innorthern Italy to study law. The interest in law as a discipline waspromoted by the revolutionary upheaval that separated ecclesiastical andsecular jurisdictions, with a learned profession of jurists emerging inWestern Europe to deal with conflicts within the Church, between churchand secular authorities, and among and within secular polities. The legalprofession helped develop a science of law.1 Universities played a centralrole in the development of law, providing the transnational character ofWestern legal science, and law with its transnational terminology andmethod, which involved the construction of legal systems from pre-existing (and conflicting) law norms towards an ideal of coherence andconsistency. Universities emphasised the role of the scholar (the lawscientist) in shaping the law through the interpretation of authoritativetexts, and the distinctive nature of the discipline of law, helping toproduce a professional class of lawyers bound by a common training anda common professional function of providing guidance to the users of thelaw.2 Following the decline of the Westphalian political settlement thereis a need for public international lawyers to return (metaphorically) toBologna (through academic debate, publication, and deliberation), for theinvisible college of international law academics and others concerned forthe discipline to engage with questions of first principle on the nature ofinternational law and exercise of political authority through law. There isa need for the profession to emphasise the public in public internationallaw, and the constraints that public law imposes on the exercise of

1 Harold Berman, Law and Revolution: the Formation of the Western Legal Tradition (Cam-bridge, Massachusetts, Harvard University Press, 1983) 160.

2 ibid at 161–63.




(legitimate) authority. The professional enthusiasm of international law-yers for global law norms, developed in the face of indifference andhostility from domestic law colleagues, must be replaced by a morecritical and rigorous evaluation of the authority of international lawnorms if the profession is not to be complicit in undermining theachievements of democracy in promoting just conditions of social, eco-nomic and political life in domestic societies, and in removing thelegitimate right of all political communities to establish their own versionof political truth, consistent with the idea of democratic self-determination.




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Index

Accountabilitycitizens, relationship with 82–3experts 72–9global administration 81–2global governance 71–83IMF 81importance 80international organisations 79–83meaning 80remedies 81standards 80–1World Bank 81

Afghanistan 235–6Authoritarian regimes 211Authority

Coleman, Jules 307–8concept of 300–9deliberative democracy and 311, 315–22democracy and 303–9, 311, 315–22international law 361–3Raz, Joseph 300–2, 303–4

Basel Committee on Banking Standards257, 264–7

Coleman, Jules 307–8Colonised territories 213, 214–17Commonwealth 224Consumer boycotts 252Cosmopolitan democracy

cosmopolitan democratic law 60–4Held, David 60–4Kant, Immanuel, 53subsidiarity 61

Customary international law 150–5

Dahl, Robert 65De Búrca, Gráinne 330Deliberative democracy

see also Democratic deficitapplication of model 311–12assertion of jurisdiction 315authority 311, 315–22bargaining 103–4beyond the state 115–21, 311–33citizenship 322–3community 323consensus 93, 103consent 105–6constituent power 312–15discourse principle 322–7

global justice 327–31global politics 327–31Habermas, Jürgen 18, 21, 92, 92–4, 94,

105, 108, 109, 115, 121, 311, 377human rights 105ideal speech situation 93Kalyvas, Andreas 313law-making 94meaning 103political authority 2political justice 323–31Rawls, John 327–31reasoned deliberations 103–4representation 323–7self-determination 312sovereignty 313, 313–15state 102–6, 115–21, 138–45value of model 106voluntariness 312–15

Deliberative majorities 106–8Democracy

see also Deliberative democracy;Democratic deficit

authority 303–9, 311, 315–22benefits 211–12beyond the state 115–21competition 101deliberative majorities 106–8deliberative politics 108–9elections 222–3European Union 224, 226–7human rights 109–11, 219–22international law

customary norms 222–3generally 211–12human rights 219–22international organisations 223–8practice of states 222–3principle of democracy 228–31regime change 231–45self-determination 213–19

international organisations 223–8judicial review 100, 113–15majority rule 101–2parliamentary principle 112–13politically decidable issues 98–102popular government 102procedure, importance of 99requirements 92–8self-government 98–9

Democratic deficit

Columns Design Ltd / Job: Wheatley / Division: Index /Pg. Position: 1 / Date: 13/5


see also Deliberative democracy;Democracy

European Union 5, 66, 97generally 92–4global democratic federation 47–50global governance

accountability deficit 71–83bypassing democracy 25–6categories of complaints 22–3civil society actors 27–8cosmopolitan democratic law 60–4democratisation of global governance

33–50global democratic federation 47–50global democratic state 43–7horizontal complaint 22–3, 28–31ideological complaint 23, 31–3international institutions 64–71parliamentary assemblies 65–7relations between states 28–31sovereign equality 29, 29–31substantive deficit 283vertical complaint 22, 23–8World government 43–7

Habermas, Jürgen 31–2, 324international civil society 83–9international law 94–8international organisations 2–11meaning of democracy 92–3

Discourse principledeliberative democracy 322–7Habermas, Jürgen 93, 105, 140

Dryzek, Johncommunicative power 84democratic deficit 17–18global governance 86transnational discursive democracy 87

Electionsdemocracy 222–3global governance 3regime change 234

European Unionauthority 91, 271autonomous law order 248democracy 224, 226–7democratic deficit 5, 66, 97governance 5, 118Parliament 46, 66pluralism 339public policy 116subsidiarity 42

Expertsaccountability deficit 72–9

Federationsglobal democratic federation 47–50

Habermas, Jürgen 49peace 52–3

Force. See Use of forceFraser, Nancy 323–6

Global democratic federation 47–50Global governance

accountability deficit 71–83authority 7, 250–1citizen participation 4consumer boycotts 252decision-making 8deliberative democracy 8–11democratic deficit

accountability deficit 71–83bypassing democracy 25–6categories of complaints 22–3civil society actors 27–8cosmopolitan democratic law 60–4democratisation of global governance

33–50global democratic federation 47–50global democratic state 43–7horizontal complaint 22–3, 28–31ideological complaint 23, 31–3international institutions 64–71parliamentary assemblies 65–7relations between states 28–31sanctions regime of UN 28sovereign equality 29–31substantive deficit 28vertical complaint 22, 23–8veto, UN 29World government 43–7

democratisation 33–50elections 3European Union 5government distinguished 1–2, 250Habermas, Jürgen 121justification 3–4legal pluralism 335–8legitimate policy-making 8meaning 1, 249–50non-state actors 249–52pluralism 335–8proliferation of norms 1public law concepts 251–2response to globalisation 2unilateral exercise of authority 250–1US constitutional values 7World government 43–7

Globalisationsee also Global governancecauses 2democratic deficit 2–11

Governmentgovernance distinguished 1–2, 250law and 339–40

396 Index



Griffiths, John 341–3

Habermas, Jürgenallocation of governance functions 118,

295, 311authority of law 103autonomy 109–10bureaucratisation 78co-originality thesis 119communicative action theory 140, 168–9consent 105–6cosmopolitan democracy 64courts’ role 114deliberative democracy 18, 21, 92, 92–4,

94, 105, 108, 109, 115, 121, 311, 377democratic legitimacy 105democratic deficit 31–2, 324discourse principle 93, 105, 140federations 49global governance 121global superpowers 116human rights 105, 109–11international law 116, 120, 141judicial review 114legitimacy 8, 10, 105, 107, 108parliamentary principle 112

Hart, HLAconcept of law 277–8, 279

Held, David 60–4Himma, Kenneth Einar 306–7Human rights

deliberative democracy 105democracy 109–11, 219–22Habermas, Jürgen 105, 109–11international law 198–202Lauterpacht, Hersh 203, 204Rawls, John 55self-determination 213, 217–19sovereignty 37, 42United Nations 202–7

IMF 33accountability 81governance 326voting 29

Indigenous peopleslegal pluralism 337, 344

International civil society 83–9International law

authority 361–3constitutionalisation

community interests 171–4constitutional moments 171–2constitutional order 187–93generally 163–4human rights 198–202international constitution 182–7

liberal democratic values 193, 207–9meaning 175–6normative hierarchy 176–9rule of law 194–8United Nations 179–82use of term 175

constructivist approach 165–71contract model 164–71customary international law 150–5democracy

customary norms 222–3elections 222–3international organisations 223–8practice of states 222–3principle 228–31regime change 231–45self-determination 213–19

democratic deficit 94–8democratic legitimacy 11–15general principles of law 155–7governance model 164–71human rights 198–202international organisations 96Kelsen, Hans 249Lauterpacht, Hersh 202legal pluralism

democracy 360–71state law and 350–60

liberal democratic values 193, 207–9pre-commitment device 368–9profession, the 152–4publicists, writings of 157–8regime change 231–45rule of law 194–8, 369–71secession 229–30self-limitation, as 365–8soft law 253–6United Nations 179–82

International organisationsSee also Non-state actorsaccountability deficit 79–83Commonwealth 224democracy 223–8European Union 5international law 96regional organisations 118, 224–6soft law 254–5United Nations 224

Internet domain namesglobal governance 251

Iraqregime change 237–45

Judicial reviewdemocracy 100, 113–15Habermas, Jürgen 114

Index 397



Kant, Immanuelcosmopolitan democracy 53law of nations 53peaceful inter-state relations 50–3Perpetual Peace 17, 44, 50–3republicanism 52

Kelsen, Hansinternational law 249sovereignty 356–60

Kingsbury, Benedictconcept of international law 279–80

Lauterpacht, Hersh 202–4Lawyers

role 277, 381–2Legal pluralism

autonomous communities 338borrowing from other legal orders 348citizen participation 352–4conditions 336–7conflicts of law norms 337–8environmental overlap 347global governance 335–8global legal pluralism 343–50globalisation of law 334Griffiths, John 341–3indigenous communities 337, 344institutional incorporation 346international law and state law 350–60Kelsen, Hans 356–60meaning 341–3normative coordination 347normative ordering 345–50normative pluralism 338–41official legal systems 338, 339–40overlapping jurisdictional assertions

343–5persuasion 349–50state-centralism 338sympathetic consideration 347system recognition 346–7Tamanaha, Brian 338–9, 341Westphalian law 340–1

Luhmann, Niklas 280–6

McGinnis, John 24, 40, 152, 153Majority rule 101–2

Nagel, Thomas 328, 328–9NATO

democracy 227–8Networks

non-state actors 257, 264–7Non-governmental organisations (NGOs)

civil society 85domestic role 86

representation 86, 264role 34, 84–6, 88

Non-state actorsSee also International organisationsBasel Committee on Banking Standards

257, 264–7communities 257coordination of policy 257generally 247–8, 380global governance 249–52governance 271–6international governance schemes 257,

269–71networks 257, 264–7private schemes 257, 269–71public-private partnerships 257, 267–9self-regulation 257soft law 253–6UN Security Council 257–64World Commission on Dams 257, 267–9

North Atlantic Treaty Organization 65

Organization for Security and Co-operationin Europe 65

Pacta sunt servanda 21, 22, 125, 134, 188,278, 357, 358, 360, 361, 372, 378

Pan-African Parliament 66Peace

democratic peace 50–60federations 52–3Kant, Immanuel 51–3Law of Peoples 54–60perpetual peace 51–3Rawls, John 54–60

PluralismSee also Legal pluralismEuropean Union 339global governance 335–8

Political justicedeliberative democracy 323–31Nagel, Thomas 328–9Rawls, John 59–60, 327, 328

Professionsinternational law 152–4public policy 75

Public policyacademics 106consensus 93decision-making 75European Union 116legitimacy of law 103political participation 116professions 75

Public-private partnerships 257, 267–9Publicists, writings of 157–8

398 Index



Rawls, Johnconstitutional democracy 327–8deliberative democracy 327–31difference principle 84global democratic law 23, 51human rights 55Law of Peoples 17, 51, 54–60, 84military interventions 235peace 54–60political justice 59–60, 327, 328public reason 327

Raz, Joseph 300–2, 303–4Regime change

Afghanistan 235–6Atlantic Charter 231–2elections 234failed states 235international law 231–45Iraq 237–45Johnson doctrine 232military force 233–4Reagan doctrine 232rogue states 235self-determination 232UN Charter 231, 232, 233

Rousseau, Jean-Jacques 6, 44Rule of law

Habermas, Jürgen 118international law 194–8modern ideal 95

Rule of recognition 277–8

Sadurski, Wojciech 305–6Secession

democracy 229–30international law 229–30remedial right 213

Security Council 33, 48, 257–64Self-determination

colonised territories 213, 214–17deliberative democracy 312democracy 213–19human rights 213, 217–19regime change 232right 213–14United Nations 214World War I, post 213

Self-governmentdemocracy 98–9

Soft lawGA resolutions 254, 255–6influence 254international law 253–6international organisations 254–5meaning and nature 253–4non-state actors 253–6

Sovereigntyallocation of decision-making power 42

bilateral cooperation 37consent 34customary international law 37democratic deficit 24, 34–43development of theory 124–7global democratic state 43–7human rights 37, 42international law obligations 38–9Lotus principle 128New Sovereigntists 36–7, 39, 40–1non-intervention 34state 124–7subsidiarity 42, 43, 370United States 35–6, 39

Statecontractual autonomy 133–5democracy beyond the state 115–21self-legislator

contractual autonomy 133–5customary international law 150–5general principles of law 155–7generally 123international law 128–33, 145–9judgments of courts 158–61law-making treaties 135–8publicists, writings of 157–8sovereignty 124–7Westphalian settlement 123, 124–5,

128sovereignty 124–7

Subsidiaritycosmopolitan democracy 61European Union 42meaning 42power allocation principle 45sovereignty 42, 43, 370

Tamanaha, Brianconcept of law 296–300legal pluralism 338–9, 341

Teubner, Guntherconcept of international law 286–8, 293globalisation of law 334

United Nationsdemocratic deficit 29federation 48General Assembly 255–6global law development 288human rights 202–7international law 179–82Security Council 257–64UN parliamentary assembly 67–71use of force 174, 231, 295

United StatesConstitution 7Madisonian legitimacy 6–7

Index 399



sovereignty 35–6, 39Use of force

Afghanistan 235–6international organisations 95, 127, 295Iraq 237–45political objectives 232self-defence 57United Nations 174, 231, 295

Walker, Neil 89−90, 294–5, 346−7Washington consensus 3–4Westphalian settlement

sovereignty 123, 124–5, 128

World Bankaccountability deficit 81civil society actors 84–5Inspection Panel 81

World Commission on Dams 257, 267–9World government 43–7World Trade Organisation

citizens’ role 352constitutionalisation 295governance 326India 4justice 33role 88, 288

400 Index


[Steven Wheatley] the Democratic Legitimacy of Int(BookFi.org)

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