The Democratic Legitimacy of International Law (Studies in International Law)

JOBNAME: Wheatley PAGE: 1 SESS: 8 OUTPUT: Thu May 13 10:07:10 2010 THE DEMOCRATIC LEGITIMACY OF INTERNATIONAL LAW The o...

Author: Steven Wheatley

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

THE DEMOCRATIC LEGITIMACY OF INTERNATIONAL LAW The objective of this work is to restate the requirements of democratic legitimacy in terms of the deliberative ideal developed by Jürgen Habermas, and apply the understanding to the systems of global governance. The idea of democracy requires that the people decide, through democratic procedures, all policy issues that are politically decidable. But the state is not a voluntary association of free and equal citizens; it is a construct of international law, and subject to international law norms. Political self-determination takes places within a framework established by domestic and international public law. A compensatory form of democratic legitimacy for inter-state norms can be established through deliberative forms of diplomacy and a requirement of consent to international law norms, but the decline of the Westphalian political settlement means that the two-track model of democratic self-determination is no longer sufficient to explain the legitimacy and authority of law. The emergence of non-state sites for the production of global norms that regulate social, economic and political life within the state requires an evaluation of the concept of (international) law and the (legitimate) authority of non-state actors. Given that states retain a monopoly on the coercive enforcement of law and the primary responsibility for the guarantee of the public and private autonomy of citizens, the legitimacy and authority of the laws that regulate the conditions of social life should be evaluated by each democratic state. The construction of a multiverse of democratic visions of global governance by democratic states will have the practical consequence of democratising the international law order, providing democratic legitimacy for international law. Volume 29 in the series Studies in International Law

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Studies in International Law Volume 1: Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law Mac Darrow Volume 2: Toxics and Transnational Law: International and European Regulation of Toxic Substances as Legal Symbolism Marc Pallemaerts Volume 3: The Chapter VII Powers of the United Nations Security Council Erika de Wet Volume 4: Enforcing International Law Norms Against Terrorism Edited by Andrea Bianchi Volume 5: The Permanent International Criminal Court Edited by Dominic McGoldrick, Peter Rowe and Eric Donnelly Volume 6: Regional Organisations and the Development of Collective Security Ademola Abass Volume 7: Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World Order Javaid Rehman Volume 8: Predictablity and Flexibility in the Law of Maritime Delimitation Yoshifumi Tanaka Volume 9: Biotechnology and International Law Edited by Francesco Francioni and Tullio Scovazzi Volume 10: The Development of Human Rights Law by the Judges of the International Court of Justice Shiv Bedi Volume 11: The Environmental Accountability of the World Bank to Third Party Non-State Actors Alix Gowlland-Gualtieri Volume 12: Transnational Corporations and Human Rights Edited by Olivier De Schutter Volume 13: Biotechnologies and International Human Rights Edited by Francesco Francioni Volume 14: Human Security and International Law: Prospects and Problems Barbara Von Tigerstrom Volume 15: The Arms Trade and International Law Zeray Yihdego Volume 16: Africa: Mapping New Boundaries in International Law Edited by Jeremy Levitt Volume 17: Forced Migration, Human Rights and Security Edited by Jane McAdam Volume 18: The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict Erik Koppe

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Volume 19: The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity Edited by Tomer Broude and Yuval Shany Volume 20: Counterterrorism: Democracy’s Challenge Edited by Andrea Bianchi and Alexis Keller Volume 21: Amnesty, Human Rights and Political Transitions Louise Mallinder Volume 22: Property Rights and Natural Resources Richard Barnes Volume 23: Human Dignity and the Foundations of International Law Patrick Capps Volume 24: Sovereignty and the Stateless Nation: Gibraltar in the Modern Legal Context Keith Azopardi Volume 25: The International Court of Justice and Self-Defence in International Law James A Green Volume 26: State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation Santiago Montt Volume 27: Reappraising the Resort to Force: International Law, Jus ad Bellum and the War on Terror Lindsay Moir Volume 28: International Law and Dispute Settlement: New Problems and Techniques Edited by Duncan French, Matthew Saul and Nigel White Volume 29: The Democratic Legitimacy of International Law Steven Wheatley

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The Democratic Legitimacy of International Law

Steven Wheatley

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Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213–3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Steven Wheatley 2010 Steven Wheatley has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84113-817-6

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Acknowledgements Some of the arguments developed here have been presented at seminars at the universities of Edinburgh, Lancaster, University College London, Liverpool, Newcastle, Nottingham, Sydney and Basel Institute on Governance. Many thanks to the participants for the very helpful comments. Thanks also to Sarah Blandy and Anne Peters for comments on parts of the work (the usual caveat applies). I would wish to express gratitude to my parents Michael and Rosaleen for their support over many years, to my wife Katherine for her encouragement and affection, to Francesca for the daily chats, and to Misty for dragging me out for a walk every day. Whalley (Lancashire), August 2009.

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Contents Acknowledgements ix Table of Cases xv Table of International Treaties, Conventions and other Legal Instruments xviii Table of General Assembly Resolutions xxiii Introduction Globalisation and the Democratic Deficit The Democratic Legitimacy of International Law The Structure of the Book

1 2 11 15

1 The Democratic Deficit in Global Governance The ‘Vertical’ Complaint The ‘Horizontal’ Complaint The ‘Ideological’ Complaint The Democratisation of Global Governance Reaffirming Sovereignty A Global Democratic State A Global Democratic Federation A Democratic Peace Perpetual Peace A Law of Peoples Cosmopolitan Democratic Law Democratising International Institutions International Parliamentary Assemblies A UN Parliamentary Assembly The Accountability Deficit The Role of Experts The Accountability of International Organisations Global Discourses: the Role of International Civil Society Conclusion

22 23 28 31 33 34 43 47 50 51 54 60 64 65 67 71 72 79 83 89

2 Democracy Within and Beyond the State International Law and the Democratic Deficit Politically Decidable Issues Deliberative Democracy Deliberative Majorities Deliberative Politics Human Rights in a Democracy The Parliamentary Principle of Democracy

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Contents Challenging Democratic Truths: the Role of Judicial Review Deliberative Democracy Beyond the State Conclusion

113 115 121

3 The State as (Democratic) Self-Legislator The Sovereign State The State as Self-Legislator Contractual Autonomy Law-Making Treaties Deliberative Diplomacy The Indeterminacy of International Law Obligations The Problem of Customary International Law The Role of the International Law Profession A Modern Form of Customary International Law General Principles of Law The Writings of Publicists and Judgments of Courts The Writings of Publicists The Judgments of Courts Conclusion

123 124 128 133 135 138 145 150 152 154 155 157 157 158 161

4 The Constitutionalisation of International Law From Contract to Governance Community Interests and Constitutionalisation The Constitutionalisation of International Law The Normative Hierarchy of International Law Article 103, Charter of the United Nations The International Constitution The International Constitutional Order Liberal Democratic Values in International Law Rule of Law International Human Rights Law Human Rights in the United Nations System The Construction of the Liberal State Conclusion

163 164 171 175 176 179 182 187 193 194 198 202 207 210

5 Democracy in International Law Democracy in International Law Democratic Self-Determination A (Human) Right to Democracy Democracy in the Practice of States Membership of International Organisations Democracy in the International Law Order

211 212 213 219 222 223 228

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Contents Democratic Regime Change in International Law Operation Enduring Freedom (Afghanistan) Operation Iraqi Freedom Conclusion

xiii 231 235 237 245

6 International Governance by Non-State Actors Global Governance International ‘Soft’ Law Non-State Actors as Law-Makers The UN Security Council ‘Networks’ of Officials: Basel Committee on Banking Standards Public-Private Partnerships: World Commission on Dams Private International Governance Schemes Governance by Non-State Actors

264 267 269 271

7 A Concept of (International) Law The Concept of (State) Law Autopoiesis: Law as a Closed System of Communication Global Bukowina The Fragmentation of International Law Constitutionalisation Beyond the State The Idea of Law The Idea of Authority Democracy and the Concept of Authority A Revised Concept of Law

277 277 280 286 289 292 296 300 303 309

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

311 312 315 322 327 331

9 Democracy in Conditions of Global Legal Pluralism Pluralism in Global Governance Normative Pluralism What is Legal Pluralism? Global Legal Pluralism Rethinking Global Legal Pluralism State Law and International Law Relationship Between Democracy and International Law The Limits of International Law Democracy-Enhancing International Law

334 335 338 341 343 345 350 360 361 363

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xiv Contents Constitutional Self-Limitation International Law as a Pre-Commitment Device A Contestable International Rule of Law Conclusion

365 368 369 371

Conclusion: Democracy and the Public International Lawyer

377

Selected Bibliography Index

383 395

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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 Decisions 2005-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 v Netherlands 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 Crime of 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 the Congo v Rwanda), judgment 3 February 2006 ..................................... 177, 213 Avena and other Mexican Nationals (Mexico v United States) [2004] ICJ Rep 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] ICJ Rep 151 ................................................................................................................... 11 Continental Shelf (Libyan Arab Jarnahiriya/Malta) [1985] ICJ Rep 13 ............ 130 Corfu Channel Case [1949] ICJ Rep 4 ............................................................. 172, 176

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xvi Table of Cases Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep 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 and Egypt (Advisory Opinion) [1980] ICJ Rep 73 ................................................ 273 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 ................ 179, 213, 240, 244 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 ... 133, 242, 256, 258 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 .............................................................................. 172, 176, 272 Legality 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 v United 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 Convention arising 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 of the 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 States of America v Iran) [1980] ICJ Rep 3 .......................................... 47, 128, 138, 203 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 ....................................... 214

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Table of Cases xvii 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 A No 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 or Speech 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 2/08 of 30 June 2009 .................................................................................................... 366

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

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Table of International Treaties, Conventions and other Legal Instruments African Charter on Democracy, Elections and Governance ................................ 225 art 4(2) ...................................................................................................................... 225 art 17 ......................................................................................................................... 225 art 19 ......................................................................................................................... 225 art 48 ......................................................................................................................... 225 African Charter on Human and Peoples’ Rights .................................................. 221 art 9 ........................................................................................................................... 221 art 10 ......................................................................................................................... 221 art 11 ......................................................................................................................... 221 art 13(1) .................................................................................................................... 221 art 20(1) .................................................................................................................... 221 American Convention on Human Rights art 13 ......................................................................................................................... 221 art 15 ......................................................................................................................... 221 art 16 ......................................................................................................................... 221 art 23(1) .................................................................................................................... 221 Charter Charter Charter Charter

of of of of

the Association of Southeast Asian Nations (ASEAN) 228 the Organization of American States ........................................... 225–226 Paris for a New Europe (CSCE) ........................................................... 227 the United Nations ......... 95, 130, 171, 175, 179, 183, 184, 185, 186, 187, 188, 195, 200, 203, 213, 216, 224, 231, 233, 239, 264 Preamble .................................................................................................................. 216 Chap V ..................................................................................................................... 183 Chap VII .......................................................................... 183, 232, 240, 258, 259, 355 art 1 ........................................................................................................................... 213 art 1(1) ...................................................................................................................... 231 art 1(3) .............................................................................................................. 203, 216 art 2(1) ........................................................................................................................ 29 art 2(4) ...................................................................................................... 231, 232, 233 art 2(6) .............................................................................................................. 181, 258 art 2(7) ...................................................................................................... 167, 203, 355 art 4 ........................................................................................................................... 186 art 4(1) ...................................................................................................................... 224 art 10 ......................................................................................................................... 255 art 17 ........................................................................................................................... 69 art 17(2) ....................................................................................................................... 11 art 22 ........................................................................................................................... 68

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Table of International Treaties, Conventions and other Legal Instruments

xix

art 23(1) .................................................................................................................... 258 art 24 ......................................................................................................................... 263 art 24(1) ............................................................................................................ 181, 258 art 25 ................................................................................................................. 181, 258 art 27(2) .................................................................................................................... 258 art 27(3) .............................................................................................................. 29, 183 art 31 ......................................................................................................................... 260 art 33(1) .................................................................................................................... 145 art 39 ......................................................................................................................... 262 art 42 ......................................................................................................................... 233 art 48(1) .......................................................................................................... 181, 2558 art 51 ................................................................................................................. 232, 233 art 53(1) .................................................................................................................... 233 art 55 ......................................................................................................................... 203 art 55(c) ..................................................................................................................... 203 art 73 ......................................................................................................................... 216 art 76(b) .................................................................................................................... 216 art 103 ................................... 167, 172, 179—182, 240, 258, 260, 261, 262, 273, 274 art 108 ............................................................................................................... 186, 271 art 109 ............................................................................................................... 186, 271 Constitutive Act of the African Union art 3(g) ...................................................................................................................... 225 art 17(1) ...................................................................................................................... 66 art 30 ......................................................................................................................... 225 (Aarhus) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ........... 324 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .................................................................................. 206 Convention on Biological Diversity art 22(1) .................................................................................................................... 275 Convention on the Participation of Foreigners in Public Life at Local Level ..................................................................................................................... 220 Convention on the Prevention and Punishment of the Crime of Genocide ..... 201 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction ......................... 84 Convention on the Rights of the Child ................................................................... 206 Convention on the Rights of Persons with Disabilities and its Optional Protocol ................................................................................................................ 206 Covenant of the League of Nations art ......................................................................................................................... 15 355 art 20 ................................................................................................................. 179, 180 Declaration on the Slave Trade (1815) .................................................................... 199 European Convention for the Protection of Human Rights and Fundamental Freedoms .............................................................................................................. 221 Protocol to the ECHR, art 3 .......................................................................... 221, 222

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xx Table of International Treaties, Conventions and other Legal Instruments Framework Treaty on Democratic Security in Central America art 1 ........................................................................................................................... 224 General Act for the Repression of African Slave Trade (1890) ........................... 199 General Framework Agreement for Peace in Bosnia-Herzegovina art 1(2) ...................................................................................................................... 233 Annex 4 .................................................................................................................... 233 Geneva Convention (Fourth) on the Protection of Civilian Persons in Time of War art 64 ................................................................................................................. 240, 244 Hague Convention (IV) with respect to Laws and Customs of War on Land .............................................................................................................. 240, 244 art 42 ......................................................................................................................... 240 art 43 ......................................................................................................................... 240 Harare Declaration (Commonwealth) ..................................................................... 224 ILC Articles on State Responsibility art 2 ........................................................................................................................... 172 art 22 ......................................................................................................................... 173 art 26 ......................................................................................................................... 173 art 26(5) .................................................................................................................... 213 art 32 ......................................................................................................................... 356 art 33 ......................................................................................................................... 173 art 33(1) .................................................................................................................... 172 art 33(2) .................................................................................................................... 172 art 40 ......................................................................................................................... 173 art 40(1) .................................................................................................................... 173 art 41(1) .................................................................................................................... 173 art 41(2) ............................................................................................................ 173, 244 art 48 ......................................................................................................................... 173 art 48(1)(b) ............................................................................................................... 173 art 49 ......................................................................................................................... 174 art 50 ......................................................................................................................... 174 art 50(1) .................................................................................................................... 174 Inter-American Democratic Charter art 1 ........................................................................................................................... 226 International Convention on the Elimination of All Forms of Discrimination against Women .................................................................................................... 206 International Convention on the Elimination of All Forms of Racial Discrimination ..................................................................................................... 206 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families ........................................................ 206 International Convention for the Regulation of Whaling ..................................... 91 art V .......................................................................................................................... 273 International Convention to Suppress the Slave Trade and Slavery art 2(a) ...................................................................................................................... 200

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art 2(b) ...................................................................................................................... 200 International Covenant on Civil and Political Rights ......... 185, 198, 206, 207, 220 art 1 ........................................................................................................................... 216 art 1(1) ...................................................................................................... 213, 220, 221 art 1(3) ...................................................................................................................... 216 art 14(1) .................................................................................................................... 220 art 19 ......................................................................................................................... 220 art 21 ......................................................................................................................... 220 art 22(2) .................................................................................................................... 220 art 25 ................................................................................................................. 220, 221 art 27 ......................................................................................................................... 344 International Covenant on Economic, Social and Cultural Rights ........................................................................................... 185, 198, 206, 207 art 1(1) ...................................................................................................................... 213 art 1(3) ...................................................................................................................... 216 Montreal Protocol on Substances that Deplete the Ozone Layer ....................... 137 Protocol of Tegucigalpa (Protocolo de Tegucigalpa a la Carta de la Organización de Estados Centroamericanos (ODECA)) art 3 ........................................................................................................................... 224 Statute of the International Court of Justice art 38 ......................................................................................................................... 158 art 38(1) .................................................................................................... 157, 254, 255 art 38(1)(b) ....................................................................................................... 150, 222 art 38(1)(c) ................................................................................................................ 155 art 38(1)(d) ....................................................................................................... 157, 158 art 59 157 Stockholm Declaration of the United Nations Conference on the Human Environment Principle 21 .............................................................................................................. 354 Supplementary 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 Union art 6(1) ...................................................................................................................... 227 art 7 ........................................................................................................................... 227 Treaty of Lisbon .................................................................................................. 226, 227 United Nations Convention on the Law of the Sea ............................................. 185 art 161(8)(e) .............................................................................................................. 136 UN Framework Convention on Climate Change ................................................. 137 Kyoto Protocol ........................................................................................................ 137 UNESCO Constitution ............................................................................................... 200

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Universal Declaration on Democracy (Inter-Parliamentary Union) .................. 219 Ushuaia Declaration (MERCOSUR) ........................................................................ 224 Vienna Convention on the Law of Treaties ............................................. 38, 292, 356 art 7(2)(a) .................................................................................................................... 25 art 26 ........................................................................................................................... 25 art 27 ................................................................................................................... 25, 356 art 30(1) .................................................................................................................... 180 art 31 ................................................................................................................. 145, 146 art 31(1) .................................................................................................................... 145 art 31(2) .................................................................................................................... 146 art 31(2)(a) ................................................................................................................ 146 art 31(2)(b) ............................................................................................................... 146 art 31(2)(c) ................................................................................................................ 146 art 31(3)(c) ................................................................................................................ 132 art 31(4) .................................................................................................................... 145 art 32 ......................................................................................................................... 146 art 46(1) .............................................................................................................. 25, 356 art 53 ................................................................................................................. 176, 177 art 61 .......................................................................................................................... 134 art 62 .......................................................................................................................... 134 art 63 .......................................................................................................................... 134 art 64 ................................................................................................................. 176, 177 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations art 26 .......................................................................................................................... 274 art 27 .......................................................................................................................... 274 art 30(6) ..................................................................................................................... 180 art 46 .......................................................................................................................... 274 art 53 .......................................................................................................................... 274 art 64 .......................................................................................................................... 274

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Table Of General Assembly Resolutions 2005 World Summit Outcome, GA Res. 60/1 ....................................... 136, 195, 223 Affirmation of the principles of international law recognized by the Charter 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 of Discrimination 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 and Peoples, 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, Religious and Linguistic Minorities, GA Res. 47/135 .................................................... 207 Observance in Bulgaria and Hungary of Human Rights and Fundamental Freedoms, GA Res. 272(III) ............................................................................... 204 Political Rights of Women, GA Res. 56(I) ............................................................... 204 Promotion 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) .......... 204 Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law, GA Res. 63/3 ........................................ 230 Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 .... 172 Rule of Law at the National and International levels, GA Res. 63/128 ... 195, 256 Situation in Afghanistan and its Implications for International Peace and Security, GA Res. 35/37 ..................................................................................... 217 Situation in Kampuchea, GA Res. 34/22 ................................................................ 217

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xxiv Table Of General Assembly Resolutions Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization, 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 ........................................................................................................................... 205 art 2 ........................................................................................................................... 205 art 4 ................................................................................................................... 111, 205 art 5 ................................................................................................................... 111, 205 art 7 ................................................................................................................... 111, 205 art 20 ......................................................................................................................... 220 art 21 ................................................................................................................. 205, 220 art 21(1) .............................................................................................................. 20, 220 art 21(3) .................................................................................................... 205, 218, 220 art 28 ........................................................................................................................... 58 art 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 Diplomatic Practices and other Principles of the Charter, GA Res. 285(III) .................. 204

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Introduction

T

HE CONSOLIDATION OF democracy at the level of the state has coincided with a proliferation of sites for the production of social, economic and political norms in global governance without any attempts, outside of the European Union, to replicate the institutions of democracy that legitimate authority at the domestic level. The globalisation and fragmentation of governance results in a loss for democracy as the people no longer decide all of those aspects of social, economic and political that may meaningfully be subject to political contestation, with no clear justifications emerging for usurping domestic political selfdetermination. The ambition of this work is to restate the requirements of democratic legitimacy in terms of the deliberative ideal developed by Jürgen Habermas, and apply the understanding to the systems of global governance. The principle of equality between human persons and need for justification for the exercise of political authority leads to a recognition that democratic laws can only be legitimated through discursive procedures of opinion- and will-formation that result in a consensus amongst participants: ‘Just those action norms are valid to which all possible affected persons could agree as participants in rational discourses.’1 The argument here demonstrates that the analysis developed at the level of the state can be applied to international law, broadly defined to include the inter-state system of public international law and new forms of international governance by international organisations and other non-state actors. The focus is the systems of law in global governance, and not all normative orders. Reference to ideas of global or international ‘governance’ is intended to distinguish international law (governance) from domestic law (government). It should not suggest any diminution of the role of law or politics in global governance (in fact, the contrary).2 Law is concerned with regulation by an authority, ie with determining the normative situation of others. Where global regulations are framed in terms of law, the scope, content and consequences of the exercise of 1 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans by William Rehg (Oxford, Polity, 1996) at 107. See also Jürgen Habermas, James Bohman and William Rehg (eds), Deliberative Democracy: Essays on Reason and 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) 14 European Journal of International Law 7, 15.

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Introduction

political authority can only be understood by reference to an analytical enquiry into the meanings of law and authority. The work concludes that the legitimate exercise of political authority through law is conditioned by respect for the cardinal principles of deliberative democracy: equality and public reason. International law norms are valid only where a global regulator can demonstrate that it enjoys legitimate authority, ie that it regulates in accordance with the right reasons that apply to subjects, and right reasons can only be discerned through democratic procedures. Legitimate authority depends on the existence of (deliberative) democratic forms of decision-making that take into account the interests and perspectives of those subject to the law: a (democratic) rule of (international) law.

GLOBALISATION AND THE DEMOCRATIC DEFICIT

Democratic self-determination requires that citizens decide all issues that are politically decidable. The fact of globalisation has removed many issues from domestic political control, with states finding it increasingly difficult to exercise jurisdiction over international financial capital and transnational corporations, for example, and the demands of global markets and economic non-state actors inhibiting the ability of governments to introduce welfare-enhancing measures to ameliorate the deleterious impacts of liberal policies of free-trade and a free-market. Globalisation has also seen increased social interactions between geographically diverse persons, following developments in transport and information technology, and an increase in the borrowing of social, economic and political ‘norms’ from other cultures, including the global cultural of human rights. The movement of persons and infectious diseases, such as swine influenza A(H1N1), and ideas such as the radical Islamic ideology of Al-Qaeda and associate organisations, and impacts of industrialisation on the global environment (global warming, etc) are policy issues that individual governments acting alone are unable to effectively regulate or control. States have responded to globalisation through the globalisation of governance functions, including inter-state cooperation measures and establishment of regional and global regulatory institutions. Whilst the development can be seen as a practical response, it creates problems for the practice of democracy — once an issue is regulated at the level of international law, the people do not decide for themselves all of the conditions of social, economic and political life that are political decidable. Eric Stein concludes that the

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Globalisation and the Democratic Deficit

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globalisation of governance almost invariably means a ‘loss of democracy’, as citizen participation in the exercise of political authority becomes even more remote.3 The contrast between domestic democracy and global regulatory institutions is striking: there are no direct elections for the selection of global political leaders or members of a global parliamentary assembly, and few mechanisms for holding power-wielders in global governance to account.4 International organisations and institutions have emerged as standard setters without, in any formal sense, being representative of, or directly accountable to, those they seek to regulate. Where democratic self-determination is defined in terms of the ability of a people to decide politically decidable issues, globalisation and the globalisation of governance presents significant challenges to the theory and practice of democracy, and the ‘move to institutions’ in international law5 and ‘transfer of policy-making prerogatives’ away from states,6 presents a radically different context for the practice of, and theorising about, democracy than in the past, when waves of democratisation washed over the territorial states of first Europe and North America, and subsequently the whole world.7 The modern world of democratic law must accommodate itself to the proliferation of sites for law-making, including the emergence of some 250 international organisations and institutions, and fragmentation of governance functions on sectoral grounds, such as human rights, the environment, trade and development. Ideas around democratic legitimacy have not been central to the justification for the globalisation of governance functions. The standard, instrumental, justification is that global regulation is an effective mechanism for responding to collective action and co-ordination problems, and for promoting certain global justice ends (the protection of human rights, the environment and a globalised economy, etc). Critics complain that international organisations and institutions have been implementing a neo-liberal ideology, the so-called ‘Washington consensus’ (the position of the United States, World Bank and International Monetary Fund),

3 Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95 American 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 ‘mythologizing domestic 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. See also José E Alvarez, ‘International Organizations: Then and Now’ (2006) 100 American Journal 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).

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which argues for free trade between states and a deregulated free-market within the state, often at the expense of social and economic rights and measures aimed at poverty alleviation.8 Richard Falk identifies a ‘marketorientated constitutionalism’ that emerged following the end of the Cold War: ‘[the] preferred shape of world order [was] built on the selforganizing propensity of the market, legitimated and stabilized by respect for constitutional principles, especially the rule of law’.9 There is a sense that global law norms are imposed on people who have little input into their design and formulation, and no opportunities for argument or protest. BS Chimni makes the point that the World Trade Organization has no address in India and it is simply not possible for Indian farmers to protest before its offices in Geneva. New technologies, notably the internet, may increase the possibilities of citizen participation, but he is sceptical about the possibilities of new forms of ‘electronic resistance’, particularly given that many people in the developing world do not have access to the necessary technology.10 Chimni writes about the ‘imperial character’ of international institutions,11 and the ‘emerging consensus among third world peoples’ that they suffer from a ‘democracy deficit’.12 From the 1999 Ministerial Conference of the World Trade Organization, the so-called ‘Battle at Seattle’, and subsequently at Prague (2000), Quebec City and Genoa (both 2001), Johannesburg (2002), and Cancun (2002),13 the lack of transparency, accountability, and citizen participation in relation to international organisations (the putative ‘democratic deficit’) has become a significant 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 the democratisation of global governance, which represents a form of Western hegemony, but on the development of powerful international institutions to promote social welfare goals in the face of economic globalisation. See Anthony McGrew, ‘Models of Transnational Democracy’ 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 International Realm: the New Participatory Demands’ (2001) American Society of International Law, 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 Law Review 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 public sphere questioning economic globalisation, which has been successful in influencing states and international organisations and in the governance of global issues. 14 Andrew Moravcsik describes the question as to whether international institutions can make a claim to democratic legitimacy as ‘perhaps the central question in contemporary world politics’: Andrew Moravcsik, ‘Is there a ‘Democratic Deficit’ in World Politics?’ (2004) 39 Government and Opposition 336, 336 (emphasis in original).

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and international relations, and more recently in international law, as the gains for democracy at the level of the state appear to be undermined by a move to global regulation. The apparent benefits of globalised governance have not abated the legitimacy critique, and the experience of the European Union (EU) demonstrates that formal legitimacy (established by an international law framework) and output legitimacy (good governance for the people) provide a necessary but not a sufficient justification for the exercise of political authority in the eyes of many citizens. The absence of direct citizen control over law-making within the European Union presents significant difficulties for establishing the sociological and normative legitimacy of governance by EU institutions, and the authority of EU laws. Arguments around the democratic deficit of EU governance are well rehearsed: European integration has increased executive power at the expense of parliamentary control; the European Parliament is too weak; there are no truly ‘European’ elections; the European Union is ‘too distant’ from voters; governance by European institutions results in a ‘policy drift’ away from voters’ ideal preferences. In short, governance by the European Union results in policies that are not supported by a majority of citizens in many or even most Member States;15 note the majoritarian critique. Debates around the European Union inform but do not exhaust consideration of the problem of democracy beyond the state. The European Union is sui generis; it is a more effective international organisation than any other, with developed structures for governance and law-making; the same cannot be said about the system of internation law that operates principally between states and forms of international governance by international organisations and other non-state actors. The European Union has responded to complaints that there is a democratic deficit in EU governance by replicating, in many respects, the institutions of government found in domestic systems. One part of the solution to the problem of democracy beyond the state may lie in establishing democratic institutions, principally representative assemblies (directly elected or otherwise). In the absence of a global demos, or global pouvoir constituant (constituent power), however, international parliamentary assemblies cannot be legitimate in the same ways that domestic parliaments are legitimate. Further, whilst we might conclude on the necessity for some form of direct representation in relation to the United Nations (UN), for example, a process of ‘parliamentarization’ cannot be applied to the 250 plus international institutions that play some role 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: a Response to Majone and Moravcsik’ (2006) 44 Journal of Common Market Studies 533, 534–37. See also Giandomenico Majone, Regulating Europe (London, Routledge, 1996) 284.

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Introduction

remain sufficiently knowledgeable about their respective activities to participate effectively in political deliberations or direct elections. The solution to the problem of democracy beyond the state does not lie in the multiple replications of domestic democratic institutions at the level of global governance. The democratisation of the international system, as Joseph 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. That could work in only limited circumstances. What is required is both a rethinking of the very building blocks of democracy to see how these may or may not be 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, for example, do we mean by ‘international law’ following the globalisation and fragmentation of governance; what is the relevance of democracy beyond the state, and what demos is implied; and crucially what do we mean by the idea of ‘democracy’? To analyse and evaluate the democratic legitimacy of international law it is essential to develop a concept of democracy that can be applied to state and international law, and new forms of international governance that have emerged to regulate domestic societies (or parts thereof). Daniel Esty identifies six types of legitimacy that might justify the exercise of political authority by international organisations and institutions, four of which relate to ideas around democratic legitimacy.17 Esty refers directly to an idea of democratic legitimacy, defined in terms of electoral legitimacy.18 In the modern age, the legitimacy of law is dependent on establishing democratic institutions as the ultimate source of the law and the existence of democratic law-making procedures. Since Jean-Jacques Rousseau (The Social Contract (1762)), the legitimate exercise of political power has been associated with elections that provide a mechanism for determining the will of the people. Secondly, Esty refers to systemic or Madisonian legitimacy, following the design of the US constitutional model. The fragmentation of regulatory functions on sectoral grounds ensures that political authority is

16 JHH Weiler, ‘The Geology of International Law-governance, Democracy and Legitimacy’ (2004) 64 ZaöRV (Heidelberg Journal of International Law) 547, 561. 17 Daniel Esty, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’ (2006) 115 Yale Law Journal 1490. The other two concern the legitimacy provided by the expertise of the policymaker and ability of the regulator to achieve good outcomes (ibid at 1517), and the idea of order-based legitimacy, in that order and predictability are required for stable social relations and ‘the legitimacy of a governance system derives, at least in part, from its capacity to clarify the rules of the game and thus provide order’ (ibid at 1518). 18 ibid at 1515.

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dispersed among competing institutions, ensuring ‘triangulation on difficult policy choices’, leading to better policy making;19 more importantly, the lack of a concentration of authority protects individual liberties (freedom from regulatory interference). The values of the American Constitution, of the rule of law, separation of powers, democratic legitimacy, legal hierarchies and judicial review, can be applied to global governance to establish ‘a system of shared and separated powers designed more for liberty than efficiency’.20 Anne-Marie Slaughter observes that a system of checks and balances, of competition and co-ordination, ‘creates sufficient friction to curb the abuse of power’.21 In the context of the European Union, Giandomenico Majone argues that the democratic deficit ‘becomes understandable in light of the model of mixed government’,22 ie a pluralist or Madisonian model, ‘which aims to share, disperse, limit and delegate power’.23 James Rosenau concludes that the extensive disaggregation of authority in global governance, which allows for much greater flexibility, innovation and experimentation in global regulation,24 has embedded within the system one of the functions of Madisonian government, that of inhibiting ‘the coalescence of hierarchical and autocratic centres of [unrestrained exercises of] power.’25 The test for whether democracy is evolving in the ‘Globalized Space’ is not whether representative institutions and accountability mechanisms conform to those in the domestic settings, rather, the test lies in the degree to which the ad hoc control mechanisms evolve to steer the politics of this emergent domain in the direction of more checks on the excesses of power, more opportunities for interests to be heard and heeded, and more balanced constraints among the multiplicity of actors that seek to extend their command of issue areas.26

19

ibid at 1519. Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability 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 of consociational democracy, which he argues is applicable in the context of the European Union – a polity ‘split by a number of deep cleavages, the most obvious being the distinction between large and small member states[.] Indeed, many non-majoritarian features 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 Daniele Archibugi et al, Re-imagining Political Community: Studies in Cosmopolitan Democracy (Stanford, Calif, Stanford University Press, 1998) 28, 32. 25 ibid at 40. 26 ibid at 49. 20

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Introduction

Thirdly, democratic legitimacy may be understood in terms of legitimate policy-making, or ‘right process’: a ‘thoughtfully structured rulemaking process will clarify underlying issues, bring facts to bear, promote careful analysis of policy options, and engage interested parties in a political dialogue.’27 Esty refers to a global administrative law ‘toolbox’ that includes controls on corruption and special interest influence; a requirement for draft policies and regulations to be made public, with opportunities for comment; the need for documented decision-making, and for transparency and public participation, including access to information.28 Finally, Esty observes that, following Jürgen Habermas, legitimacy can be understood in terms of the dialogue that accompanies rule-making, and which substitutes ‘for the missing democratic legitimacy and accountability that elections provide.’ The concern is to establish transparent decision-making processes in international organisations and other non-state regulatory actors that provide opportunities for debate and political dialogue with participation by representatives of a broad range of views.29 The analysis proceeds from the model developed by Habermas and other influential writers, rejecting any argument that opinion- and will-formation is only possible in already existing political communities (‘states’), or that coercive institutions of government (to implement agreed policies) are a necessary condition for the existence of ‘democratic’ governance. The focus of the writings is on one element of the deliberative model: deliberation in accordance with public reason. Joshua Cohen argues that the idea of deliberation may be applied to any association of (political) equals whose affairs can be governed by public deliberation and reasoned argument between members as to what should be done.30 The idea of deliberative democracy changes the way that regulators (and other participants) understand the regulatory function. In conditions of uncertainty and reasonable disagreement, it establishes that legitimate policy and valid laws emerge through inclusive processes of discussion that aim to reach a consensus amongst all participants, with deliberations conducted in accordance with the principle of public reason. All participants must be free to state their preferences and be willing to listen to others in the expectation that stated preferences may be subject to challenge and possible change though open and reasonable discussions. To persuade others, participants will need to relinquish self-interested reasoning and look for arguments that others

27

Esty (n 17) at 1521. ibid at 1524ff. 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. 28 29

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can find compelling. They must articulate reasons that others might find acceptable, eventually leading to a consensus as to which alternative is to be preferred for the benefit of all.31 In conditions of uncertainty and disagreement, democratic politics must be based on an understanding that (political) ‘truths’ emerge from democratic politics that focus on the interests and perspectives of those subject to the legal order. Increasingly it is accepted that democracy should be understood in terms of deliberative democracy, which provides the basis for beginning to think about the problem of democracy beyond the state. The argument for deliberative democracy follows from the recognition that the exercise of political authority requires reasoned justification, and, in the modern age, a claim to authority cannot be justified by reference to a single perspective, objective sense of morality, or philosophical argument; it must be justified in terms that those subject to the regime can accept. Martti Koskenniemi points out that the idea that a political order should be based on the subjective consent of individuals is the most fundamental claim of the liberal tradition. Behind it stands the great epistemic break[.] The ensuing uncertainty could only be disposed of by establishing a knowledge-producing process in a meaning-generative (name-giving) consensus in the State.32

Political authority must be justified through democratic procedures in which law plays a crucial role. In ideal conditions, as Iris Marion Young observes, citizens arrive at decisions, ‘not by determining which preferences have greatest numerical support, but by determining which proposals 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 potentially affected persons have the right to be included in deliberations and all have the right to speak freely in circumstances in which no one actor is in a position to threaten or coerce others.34 Legitimate authority rests on institutionalized procedures for deliberation and decision-making – the ideal is rational persuasion. The consensus that results from free and open deliberative processes should be regarded as ‘just’, and respected by all participants.35 The practice of deliberative democracy requires that laws result from a process of reasoned deliberation amongst equal participants that reach a

31

ibid at 74–75. Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (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. 32

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10 Introduction consensus. According to Seyla Benhabib, it is not simply another model about how democracy should work, but one that elucidates some aspects of the logic of democratic practices better than others, albeit in imperfect form.36 Open and inclusive public debate leading to agreed-upon policies is a common feature of advanced democracies. The assumptions are that deliberative mechanisms result in better law-making, as decision-making procedures are more informed and free from factual errors, and participants and decision-making made aware of the interests and preferences of all participants. Deliberation precludes recourse to self-interested arguments as disagreements are settled ‘through the exchange of reasons that are shared or can be shared by all who are bound by the decisions taken.’37 This in turn structures the form of democratic deliberations as participants must have recourse to reasons and reasoned arguments that others might accept. Where deliberation does not result in a consensus, the outcomes will nonetheless be ‘shaped by engagement in public debate, argument, and reason giving.’38 The deliberative model is a counterfactual ideal;39 Dyzenhaus refers to the ‘abstract and complex’ nature of the argument for deliberative democracy, which defies ‘easy comprehension, let alone obvious contact with reality’.40 Margaret Moore notes that the most decisive criticism of deliberative democracy is that it is ‘so difficult to institutionalize that it is unfeasible’.41 The ideal provides, however, a ‘useful theoretical tool’42 that can be used to analyse and evaluate the real world practice of democracy. The model acknowledges the inter-relationship between public 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 to deliberate on the terms of political justice for their association; and, given the centrality of consent, admits the possibility of reconciling the rights of (denocratic) minorities with the principle of self-determination. Perhaps most importantly, Habermas provides a test for democratic legitimacy

36 Seyla Benhabib, ‘Toward a Deliberative Model of Democratic Legitimacy’ in Seyla Benhabib (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: Bringing Down 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 Cyberspace’ (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.

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

THE DEMOCRATIC LEGITIMACY OF INTERNATIONAL LAW

The aim of this work is to give an account of the modern system of international law that operates in world society. The argument is for a different reading of the system, not its reconstruction. It does not, for example, propose an end to sovereignty, or the establishment of new global institutions, or the radical transformation of existing institutions. Writings on international law (from within the discipline) are constrained by the discipline of international law. The job-function of the international lawyer is to construct competent arguments that ‘emerge from the way international society is, and not from some wishful construction of it.’43 The defining features of international law are that it is international, not domestic, and law, not politics. The identity of the discipline is provided by its normative character (‘it tells people what to do’), and the assumption that international law can be separated from international politics;44 it is not, as Koskenniemi explains, concerned with ‘subjective beliefs about what the order among States should be life’.45 It is not the job-function of the international lawyer, qua international lawyer, to articulate the principles of justice that should govern international relations, and the disciplinary training of the international lawyer does not extend to studies of international ethics or global justice. Whilst international law cannot remain immune to discoveries in scientific disciplines46 43

Koskenniemi (n 32) at 573. 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 the question put to the Court is intertwined with political questions, and that for this reason the Court should refuse to give an opinion. It is true that most interpretations of the Charter of the United Nations will have political significance, great or small. In the nature of things it could not be otherwise. The Court, however, cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision.’ 45 Koskenniemi (n 32) at 16. 46 Consider for example the judgment of the International Court of Justice in GabcˇikovoNagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 at para 140: ‘Owing to new scientific insights and to a growing awareness of the risks for mankind – for present and future 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 44

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12 Introduction and developments in the ways that cognate disciplines think about the world society (hence the reliance here on work in disciplines such as political theory and international relations), international law remains a closed system that defines its own senses of reality and creates its own normative expectations.47 The reliance on work in cognate disciplines is intended to illuminate the understanding of international law and importance of democracy when evaluating the legitimate exercise of political authority through international law. A former UN Secretary-General, Boutros Boutros-Ghali, accepts that sovereignty, not democracy, has been the guiding principle of the international law system, but concludes that a ‘fundamental conceptual transformation may be under way: the democratization of the international system’. The practice of democracy in the international community requires that all states should be able to make their views heard and participate in decision-making processes. Democracy is based on ‘a spirit of dialogue’, a ‘readiness to discuss’, and a recognition that ‘decisions arrived at democratically’ should be accepted.48 Dialogue, debate, and agreement are the principal means through which ‘the society of states and the world community of peoples can express common will and achieve common progress.’49 In ‘We the peoples’, another former Secretary-General, Kofi Anan, observes that ‘[b]etter governance means greater participation, coupled with accountability’, concluding that ‘the international public domain – including the United Nations – must be

during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development’. 47 Jürgen Habermas observes that ‘the role of political science is to describe the state of international 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 basic conceptual features of the development of law’: 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, 117. 48 Boutros Boutros-Ghali, ‘Democracy: a Newly Recognized Imperative’ (1995) 1 Global Governance 3, 9. 49 ibid at 11. In An Agenda for Peace, Boutros-Ghali concluded that democracy ‘within the family of nations means the application of its principles within the world Organization itself. This requires the fullest consultation, participation and engagement of all States, large and small, in the work of the Organization… Democracy at all levels is essential to attain peace for a new era of prosperity and justice’: An Agenda for Peace, Report of the Secretary-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 maintain the integrity of each while finding a balanced design for all.’

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opened up further to the participation of the many actors whose contributions are essential to managing the path of globalization’.50 On 19 December 2006, the General Assembly adopted by 124 votes to 56, with four abstentions, Resolution 61/160, ‘Promotion of a democratic and equitable international order’. The votes against included Australia, Canada, Japan, New Zealand, the United States of America, and European Union states (including the United Kingdom). The reason was the determination that democracy ‘is not only a political concept but that it also has economic and social dimensions’, and that it is imperative for the international community ‘to ensure that globalization becomes a positive force for all the world’s people’, in particular those in developing states and those with economies in transition.51 The resolution is intriguing in outlining a vision of a democratic and equitable international order, to which everyone is entitled.52 First, a democratic and equitable international 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 of peoples and nations to permanent sovereignty over their natural wealth and resources; the right of all persons and peoples to development; the right to an international economic order based on equal participation in decision-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 and equal participation in their respective decision-making mechanisms; and the right to equitable participation of all, without any discrimination, in domestic and global decision-making.54 Needless to say, the resolution is not binding in terms of (positive) international law. Democracy becomes important as the international law order moves from an inter-state contractual paradigm to one of public (international) law governance, where the exercise of political authority is evaluated against (international) public law concepts such as legality (expressed in terms of intra and ultra vires) and reasonableness (ideas of proportionality, etc). In the modern age of uncertainty and disagreement, the exercise of (legitimate) authority depends in large part on the recognition of epistemic authority. At the level of domestic government, epistemic authority 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 and equitable international order’ (adopted 19 December 2006). 52 ibid para 1. 53 ibid para 2. 54 ibid para 4.

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14 Introduction review of government acts conditioned by ideas of democratic legitimacy: legislative acts of national parliaments demand greater deference than executive orders, and courts are reluctant to review measures that have been subject to extensive forms of democratic deliberation. Following the globalisation of regulatory functions, international organisations and institutions must also make a claim to epistemic authority, ie to know better, and it is not sufficient to simply assert a privileged position of knowledge or authority. The argument developed here is that epistemic authority is provided by deliberative procedures: inclusive, consensusseeking processes of reasoned deliberation. Robert Keohane concludes that seeking to move toward this ideal is crucial for establishing acceptable forms of global governance: ‘If all voices are heard, more objections will be expressed, deliberation may be enhanced and decisions more widely accepted.’55 An international organisation is epistemically legitimate to the extent that it ‘has the capacity to generate and properly use new information that can generate new policy responses, reduce bias in standards and implementation, and reduce the risk of opportunistic interventions.’ To ensure that this is the case, the organisation must ‘promote discussions in which all valid interests are represented, and it is equally important that there be provisions for critical re-evaluation, promoted by diversity.’56 There is an emerging recognition of the importance of deliberation to legitimate forms of global governance. Anne-Marie Slaughter argues that the foundational norm of global governance should be ‘global deliberative equality’57: all persons ‘belong at the table’ in collective deliberations about common problems, and those affected, or their representatives, are entitled to participate in deliberations on the formation of global governance norms.58 In this, she follows Michael Ignatieff, who concludes that the idea of global deliberative equality derives from the basic moral precept that ‘our species is one, and each of the individuals who compose it is entitled to equal moral consideration.’59 It assumes progress towards ‘a world of genuine moral equality among human beings[;] a world of conflict, deliberation, argument, and contention.’60 Steven Bernstein contends that the democratic legitimacy of global governance could be

55 Robert Keohane, ‘The Contingent Legitimacy of Multilateralism’ (2006) GARNET Working Paper No 09/06 at 5. See also Robert Keohane, ‘Governance in a Partially Globalized World’ (2001) 95 American Political Science Review 1, 2. 56 ibid at 15. 57 Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability 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, Princeton University Press, 2001) at 3–4. 60 ibid at 95.

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The Structure of the Book

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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 of global norms rests on good arguments ‘made under conditions in which free and equal autonomous actors can challenge validity claims, seek a reasoned communicative consensus about their understandings of the situation and justifications for norms guiding their action, and are open to being persuaded.’61 The deliberative account is, as Karin Bäckstrand explains, grounded in an idea that democracy is ‘more about deliberation, reasoned argument and public reflection than voting and aggregation.’ Democratic legitimacy is provided by deliberation, rather than competitive elections to parliamentary bodies, although the possibility for this is not excluded.62 As Margaret Moore observes: all affected should be able to participate in democratic deliberations and decisionmaking should operate in accordance with the aims of deliberative democracy: ‘inclusion, political equality, and public reasoning.’63

THE STRUCTURE OF THE BOOK

Following this introduction, chapter one reviews the arguments that have emerged in the literature around the putative democratic deficit that results from the exercise of political authority through (international) law. Globalisation and the globalisation of regulatory functions have led to a widespread perception that global law-making poses an ‘imminent and serious threat to democracy’,64 even if it is difficult to establish the nature and extent of that threat.65 José Alvarez makes the point that ‘[the] very 61 Steven Bernstein, ‘Legitimacy in Global Environmental Governance’ (2005) 1 Journal of International Law and International Relations 139, 147. 62 Karin Bäckstrand, ‘Democratizing Global Environmental Governance? Stakeholder Democracy after the World Summit on Sustainable Development’ (2006) 12 European Journal of International Relations 467, 475. See also Anthony McGrew, ‘Models of Transnational Democracy’ 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 Global Institutions’ (2006) 37 Journal of Social Philosophy 21, 31. 64 Michael Goodhart, ‘Democracy, Globalization, and the Problem of the State’ (2001) 33 Polity 527, 527. Peter Muchlinski observes that, outside of law, at least five approaches to globalisation can be identified, including a political science approach that emphasises ‘an increasingly supranational structure of governance both at the regional and multilateral levels’: Peter Muchlinski, ‘Globalisation and Legal Research’ (2003) 37 International Lawyer 221, 222–23. The other four are the geographical approach, examining the phenomenon in terms of space and time; the economic approach, looking at cross-border economic activity; the business management approach, looking at the development of global production and distribution chains by multi-national corporations; and the sociological approach, which looks at the ways that individuals and groups respond to the fact of globalisation. 65 ibid at 528.

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16 Introduction nature of international law makes it susceptible to “democratic” complaints.’66 The complaints fall into one of three types: a vertical complaint that there is a democratic deficit where social, economic and political norms are determined by international law (broadly defined); a horizontal complaint that results following any move away from the international law principle of the political equality of states (the position of the five permanent members on the UN Security Council is the locus classicus); and an ideological complaint which argues that global governance norms reflect a particular (Western) (liberal) discourse, functioning to embed the (contested) values of the free market and free trade and civil and political rights in the international law order. The deficit results from an absence of debate about and contestation of these policy preferences. The world of positive law that emerged following the Westphalian settlement provided a clear demarcation of regulatory tasks between the state law system (the regulation of social, economic and political life within the state) and international law (relationships between sovereigns). Both forms relied on an expression of sovereign will for the adoption of ‘law’ norms, with ‘democratic legitimacy’ provided by the existence of domestic democratic institutions (notably national parliaments) and the principle of sovereign equality and requirement of consent (representing the will of the people) for the adoption of international law norms. This two-track model of democratic self-determination is no longer sufficient to explain the legitimacy and authority of law norms, which are now greatly intrusive in the regulation of matters previously within the domaine réservé of states and consent is no longer required for the establishment of international obligations opposable to the state. There is a recognition that the Westphalian political settlement that defined political authority in terms of state and international law has broken down, but no consensus on any meta-principle to replace sovereignty 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, the principle of sovereignty should be strengthened to protect domestic democracies from the ‘authority’ of international law norms (the argument of New Sovereigntists in the United States). Secondly, given that democracy has only ever been imperfectly applied in the context of the state, and given the need for global governance following the recognition of 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.

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The Structure of the Book 17 (global) political authority requires the establishment of a global democratic state. Thirdly, accepting the impossibility of establishing a global state, existing structures (the UN, the state, etc) should be conceptualised in the form of a global federation, with the principle of democracy being applied to each political unit. Fourthly, there is a long tradition in liberal thought that argues for the need to establish a global confederation of democratic states. The writings of Immanuel Kant (Perpetual peace) and John Rawls (Law of peoples) are examined here. Fifthly, to the extent that globalisation has produced (political) communities of fate not defined by reference to state boundaries, the model of cosmopolitan democratic law developed by David Held argues that effective citizen control over decision-making processes requires the reconfiguration of political authority to ensure that political communities, however organised, exercise democratic control over the global regulatory regimes that emerge in response to the processes of globalisation. Sixthly, moving from idealtype theories to concrete proposals for the democratisation of extant institutions, arguments for the application of the principles of democracy to international institutions are examined. The parliamentary principle leads to proposals for the establishment of international assemblies, notably in relation to the UN; there is also a requirement to ensure the development of more accountability in global regulation, relying on the democratic principles of transparency, debate and public reason (including the requirement of public justification for the exercise of political authority). 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 society is 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 the democratic legitimacy of international law, chapter two seeks to bring some clarity to the debate by defining the idea of a deficit in the practice of democracy and evaluating the problem from the perspective of the constitutional democratic state. There is a deficit in the practice of democracy where the people do not decide for themselves, by democratic political procedures, those conditions of their lives that are politically decidable. The authority and autonomy of international law appears problematic for the practice of domestic democracy, but it is not clear what is lost in the absence of agreement on the meaning of democracy. The solution to any democratic deficit looks very different if we apply an electoral or representative conception of democracy, rather than one that relies on a deliberative understanding, and as John Dryzek observes, thinking about democracy beyond the state becomes easier where

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18 Introduction democracy is defined by reference to deliberation, rather than competitive elections.67 The work adopts the concept of deliberative democracy developed by Jürgen Habermas, who provides the most intellectually rigorous defence of the idea. The principle and practice of democracy depends on an implementation of the principle of discourse: ‘D: Just those action norms are valid to which all possible affected persons could agree as participants in rational discourses.’ The democratic state imagines itself to be an association of free and equal persons, with the exercise of legitimate political authority depending on the establishment of democratic institutions and practices, and a public sphere that allows the public (those affected) to regard themselves as both subjects and authors of law norms. The model outlined by Habermas becomes incoherent at the level of global governance as there is no global public that defines itself by reference to the exercise of global regulatory functions or that possesses the capacity of (global) opinion- and will-formation (no demos, no democracy). There is a role for a reformed UN, but this is limited to upholding international peace and security and the protection of human rights, although it is not clear what the justification is for exempting these global governance functions from the requirement of democratic legitimacy. The arguments developed in this book apply the insights provided by the model of deliberative democracy to global regulatory norms (including public international law norms and forms of international governance by non-state actors). The constitutional democracy might imagine itself to be an association of free and equal persons, but it does not define its own boundaries (or demos) or the conditions for the exercise of legitimate political authority (which are often defined by global law norms). The ideal of democratic self-determination must be reconciled with the authority of international law, which constructs the political entity entitled to self-determination (the state) and limits the right by reference to global justice norms. Three possibilities present themselves: to abandon the idea of democracy beyond the state and look to other bases of political legitimacy for global regulation; to ‘democratise’ global governance; or evaluate the attitude that the democratic state should adopt to global regulatory norms. The problem for democracy (and democratic self-determination) that results from the authority of international law is not a consequence of the collapse of the Westphalian settlement, although it has been exacerbated by recent developments in the reallocation of political authority to new sites. Chapter three examines the problem for democracy that results from the allocation of authority under the Westphalian settlement according to the principle of (internal and external) sovereignty: state and

67

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

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international law. Democratic legitimacy (according to the standard argument) rests on the expression of sovereign consent to laws (both internally and externally): the state as (democratic) self-legislator. The problems for the argument are that the authority and content of international law norms does not depend on the will of the people, but the interpretation provided by the discipline of international law (the rule of international law). International law norms bind democratic states and, in contrast to constitutional and political law norms, they are not subject to repeal or revision by the people (alone). The democratic legitimacy of public international law rests on the (legitimate) authority of the international law order and the (democratic) idea of deliberative diplomacy, in which international law norms are agreed through processes of reasoned deliberation in the international community. The (sovereign) state and the international law order are social constructs. Chapter four examines evidence that international law is undergoing a process of reconstruction (or ‘constitutionalisation’), moving beyond the proceduralist paradigm, based on sovereign consent, to a public (international) law governance model that embraces substantive values. This is reflected in the normative hierarchy of international law (norms of jus cogens standing and obligations erga omnes) and acceptance of the UN as an autonomous international organisation that operates without any requirement of consent by states subject to its authority. The work consequently examines the emergence of the international constitutional order that reflects liberal democratic values of separation of powers (fragmentation), rule of law, and protection of human rights. Chapter five evaluates the implications that arise from the emergence of democracy as a principle of international law, reflected in norms concerning rights of (political) self-determination, democracy and political participation; in the practice of states; and in the commitment to democracy found in a number of international law instruments. The discipline of international law (reflected in the understandings of the invisible college) has yet to conclude that there is a right to democracy or breach of an international law obligation for states that are not democratic. Democratic governments do, though, have the right to (legitimate) authority, reflected in the right of peoples to (political) selfdetermination, and the principle of democracy influences the interpretation and application of international law norms, concerning, for example, the right of peoples to self-determination/secession. The clearest example relates to the practice of forced democratic regime change (notably in the cases of Afghanistan and Iraq), providing further evidence that international law functions to construct democratic states. The focus of the book then turns from the inter-state system to the complexities and problems for democracy that arise from the globalisation and fragmentation of governance functions, and the emergence of

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20

Introduction

non-state actors as important producers of global norms framed in terms of law. Chapter six demonstrates the divergent nature of international governance by non-state actors, with a particular focus on the activities of the UN Security Council, Basel Committee on Banking Supervision, World Commission on Dams, and private international governance mechanisms such as the Forest Stewardship Council and Fairtrade Labelling Organisation. These non-state actors have emerged as global regulators without the clear jurisdictional boundaries or institutions of government (legislatures and courts) associated with the traditional source of regulatory authority, the territorial state. Regulatory norms are established by non-state actors without the link to validity provided by an 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 role for (public international) lawyers and for the application of the distinctive methods for the interpretation of (international) law norms. In cases of conflict between autonomous systems of law (including state law systems), complex questions of jurisprudence emerge; in cases of conflict between legal orders and other normative orders, law (always) prevails. The first requirement is to develop an analytical concept of (international) law in order to determine which conflicts are problematic from the perspective of the exercise of authority through ‘law’. Drawing on the works of Niklas Luhmann and Gunther Teubner, Brian Tamanaha, and Joseph Raz, chapter seven concludes that law is a system of communications framed in terms of law, ie coded legal/illegal, and issued by an authority to subjects. The (legitimate) exercise of authority is conditioned by respect for the cardinal principles of deliberative democracy: equality and public reason. Legitimate authority (and there is no such thing as illegitimate authority) depends on the exercise of authority in accordance with the right reasons that apply to the subjects of the authority regime: the legitimate exercise of authority depends on an institutionalisation of the (deliberative) principles of equality and public reason. The exercise of (legitimate) political authority by non-state actors requires democratic forms of decision-making that take into account the interests and perspectives of those subject to the international governance regime. (The argument should not be understood as a requirement for the introduction of competitive elections to a representative assembly in relation to global regulators.) Traditional forms of state and international law enjoy presumptive political authority, the doctrine of the rule of law. In the modern age, state law relies on forms of democratic legitimacy for its authority, inter-state law on a combination of contractual and democratic legitimacy, pacta sunt servanda and the process of rational deliberation that precedes the reaching of agreement. The revised concept of law developed here allows for

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the application of the principle of (deliberative) democracy to non-state systems of law. Chapter eight outlines the requirements and addresses Habermas’ objections to the application of deliberative democracy beyond the state, concluding that a political community is constituted and defined by the exercise of political authority. The exercise of political authority constitutes the demos; democratic practices legitimise the exercise of political authority. Those subjected to the law provide the ‘who’ of global political justice (within each autonomous law order), allowing the development of a discourse of global deliberative politics and arguments around the ‘what’ of (political) justice. In evaluating the democratic legitimacy of global governance, the work argues that the concept of deliberative democracy can be applied to the state system, the systems of public international law, and new forms of international governance by non-state actors. The problem of democracy following the globalisation and fragmentation of governance functions might not be a deficit of democracy, but a surfeit of competing and conflicting visions of (democratic) political truth, defined in terms of right policy, or (political) justice. Chapter nine draws on the literature on legal pluralism to conclude that there is no meta-perspective for evaluating the democratic legitimacy of international law (broadly defined to include all forms of global governance). In conditions of global legal pluralism, there may be multiple versions of (democratic) political truth. Returning to the perspective of the constitutional democracy, the legitimacy of global governance must be constructed from the perspective of the state law system in accordance with the values of deliberative democracy. The work recognises that state law systems will make strategic decisions to comply with international law norms and the continuing relevance of pacta sunt servanda (promises must be kept), but concludes that a democratic state should evaluate global law norms by reference to the deliberative ideal: legal norms are valid where all subject to them could agree to the norms through discourses. The (legitimate) authority of law depends on the establishment of norms that promote the right reasons that apply to the subjects of law norms, and in conditions of complexity, uncertainty and disagreement, right reasons can only be established through democratic procedures. The construction of a multiverse of democratic visions of global governance orders by democratic states will have the practical consequence of democratising the international law order, providing democratic legitimacy for international law. The book concludes with some reflections on the implications of the analysis for international law as a professional discipline.

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1 The Democratic Deficit in Global Governance

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HIS CHAPTER EXPLORES the arguments around the putative democratic deficit in global governance in order to clarify the issues and evaluate the dominant modes of thinking about democracy beyond the state. Complaints that there is a democratic deficit in international law fall into one of a number of categories: that in the absence of a global state it makes no sense to talk about global democracy; to the extent that international law operates in a way that does not respect 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 law system undermines the democratic legitimacy of international law norms. Why, for example, should citizens in democratic states accept the ‘soft’ resolutions adopted by the United Nations (UN) General Assembly with the support of authoritarian regimes, or international treaties that allow for the participation of non-democracies?1 The work follows José Alvarez in dividing the complaints into three types: vertical, horizontal and ideological.2 The vertical complaint concerns the relationship between global governance institutions and individual 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 the development of international human rights norms that, given the participation of totalitarian states such as the Soviet Union and People’s Republic of China, ‘[o]ne can hardly be confident that the same provisions would have emerged absent the influence of those “evil empire[s].”’ John McGinnis, ‘The Comparative Disadvantage of Customary International Law’ (2006) 30 Harvard 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 is provided by Charnovitz: international organisations are not run in a democratic manner vis-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.

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The ‘Vertical’ Complaint

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states (and between states and international organisations); whilst the ideological complaint concerns the fact that global governance functions to promote certain (liberal) values. Following an analysis of the forms that the democratic deficit critique has taken in the literature, the work then examines the responses that have emerged: that domestic democracy is protected by an affirmation of the principle of state sovereignty; that global democracy requires a global democratic state; that we should imagine the international community as a global democratic federation, with the principle of democracy applied at each level; that (following Immanuel Kant and John Rawls) global democratic law can only be achieved through the establishment of a democratic peace; that the globalisation and fragmentation of global regulatory functions must be reconfigured in accordance with the idea of cosmopolitan democratic law; that there is a need to democratise international institutions, notably through the greater use of international parliamentary bodies and accountability mechanisms; and finally, the need to challenge the communicative power of dominant global discourses by allowing the effective participation of international non-governmental organisations and other civil society actors in the practice of global governance.

THE ‘VERTICAL’ COMPLAINT

The first complaint concerns the relationship between international institutions and citizens. The ‘vertical’ complaint can be further divided: first, that the exercise of governance functions by non-democratic institutions constitutes a loss for democracy; second, that the globalisation and fragmentation of law-making prerogatives provides opportunities for political actors to promote the adoption of law norms that do not enjoy domestic support; and finally, that all liberal democracies share, at some level, a commitment to human rights. The introduction of measures by international organisations that do not respect minimum human rights standards is a loss for the idea of democratic legitimacy. In relation to the first point, it is evident that international law does not replicate in any meaningful way domestic democratic systems of government. Most significantly, there is no international parliament, with the consequence, as Alvarez observes, that international law ‘lack the ties to democratically elected polities that legitimise law within democracies’. Nor do international law-making processes appear to possess other components associated with constitutional democracies, such as the

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24 The Democratic Deficit in Global Governance separation of powers.3 The individual citizen is largely absent from the international law system, which is characterised (or caricatured) by the idea of an equal voice and vote for sovereign states (only), a position that is inconsistent with liberal political theory, which regards the individual as the ‘primary normative unit’.4 John McGinnis observes that international law represents agreement between states, not peoples, ‘and thus there is much less reason to think it should trump or even cast doubt on the judgments reached by democratic deliberations in particular nations’.5 On this understanding, the solution to the problem for democracy is provided by a re-affirmation of the principle of sovereignty, which requires the consent of states to any emergent (international law) norm. The alternative, consistent with liberal theory, would be to ‘inject the voice of individual citizens into the exclusively state-based structures’ of international law.6 The argument follows social contract theory, which demands evidence of real or hypothetical consent by those subject to the law to establish legitimate political authority. The process of decolonisation, ie the dismantling of non-contiguous empires, gave voice and vote to a greater number of individuals through the creation of new states (from around 60 to almost 200 in the period of the UN), but significant groups remain (formally) excluded from the processes of international law-making.7 Individuals are represented through state governments and the position of the government will not always correspond with that of the citizen. Moreover, an individual that seeks to influence the development of international law norms must influence not only her own government, but also other governments (without any right of access to or influence on domestic political debates in other states as rights of political participation are limited to citizens).8

3 ibid at 160. For ‘classical liberals, a separation of powers was the centrepiece of modern constitutionalism, a necessary condition of liberty’: Giandomenico Majone, ‘Delegation 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 Law Review 53, 54. 5 John McGinnis, ‘Foreign to our Constitution’ (2006) 100 Northwestern University Law Review 303, 313. 6 Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95 American Journal of International Law 489, 533. 7 The recognition of the rights of national minorities, minorities, and indigenous peoples, and introduction of human rights mechanisms has given a voice to some in the international law system. A notable development was the adoption of the UN Declaration on the Rights of Indigenous Peoples. After more than a decade of dialogue involving representatives of indigenous peoples, the UN General Assembly adopted Resolution 61/295, ‘The United Nations Declaration on the Rights of Indigenous Peoples’ (13 September 2007). The participation of indigenous peoples was regarded as significant, with the representative of Peru observing in the General Assembly that it lent ‘unquestionable legitimacy 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 the voice of the individual in global politics, and influence government officials of other states

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Secondly, in relation to the vertical complaint, the fact that international law is made by the executive branch of government and the requirement that states comply with international law obligations empowers the executive at the expense of the legislative and judicial branches of domestic government, reducing the effectiveness of any checks and balances on power.9 During the Westphalian epoch of international law,10 global governance was the domain of states, which spoke with a single voice, that of the executive.11 The position is articulated clearly in the Vienna Convention on the Law of Treaties: heads of state and government, and ministers for foreign affairs have, by virtue of their function, full powers to bind the state at the level of international law.12 Any international text agreed by senior members of the executive is legally binding and must be performed in good faith.13 The state may not invoke domestic law to justify a failure to perform a treaty obligation,14 unless consent was expressed in manifest violation of a provision of domestic law regarding competence to conclude treaties and concerned a rule of internal law of fundamental importance.15 The subsequent objection of a national parliament, popular opposition or change of government, or the fact that an international agreement conflicts with a provision of the national constitution, are irrelevant from the perspective of international law.16 In Case of Certain German Interests in Polish Upper Silesia, the Permanent Court of International Justice observed: ‘From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States.’17 Domestic executives may welcome the (domestic) democratic deficit that results from the globalisation of regulatory functions and may prefer the seemingly more straightforward processes of international lawmaking to those of domestic law, which often requires extensive processes 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.

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26 The Democratic Deficit in Global Governance parliamentary support.18 As Keohane, Macedo and Moravcsik observe, globalised governance allows domestic and international elites ‘to bypass the onerous processes of persuasion and consensus-seeking that democracy requires’.19 One example is Security Council (SC) Resolution 1624 (2005), which calls on all states to prohibit by law incitement to commit terrorist acts.20 The resolution was passed at a summit meeting attended by British Prime Minister Tony Blair, who was a key actor in its adoption. Before arriving in New York for the Security Council meeting, he had signalled the British Government’s desire to criminalise the glorification of terrorism as one part of the response to the bombings in London on 7 July 2005. Once SC Resolution 1624 was adopted, the British Government relied on the resolution to justify the tightening of domestic laws on incitement through the adoption of s 1 of the Terrorism Act 2006.21 It is not clear that the measure would have enjoyed sufficient domestic political and popular support absent the (apparent) requirement in international law to introduce the legislation. The globalisation of governance functions does not only enhance the executive. Where international law norms (broadly defined) are ‘domesticated’ by national courts without the positive support of the people, or their representatives, there is a loss for democracy. In addition to citing the jurisprudence of other constitutional courts on questions of social and political controversy,22 constitutional courts are increasingly willing to rely on international law norms and the judgments and opinions of international law courts and tribunals that do not formally bind at the level of domestic law (until adopted by the court). Mark Tushnet makes the point that where judges on domestic courts have the authority to make and re-make constitutional law, the ‘separation-of-powers concerns’ about them inappropriately domesticating international law

18 Aida Torres Pérez, ‘The Internationalization of Lawmaking Processes: Constraining or 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 of International Financial Regulatory Organizations’ (1998) 33 Texas International Law Journal 281, 323. 19 Robert Keohane, Stephen Macedo and Andrew Moravcsik, ‘Democracy Enhancing Multilateralism’ (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 a form of collective deliberation through mutual citation and direct communications, leading to a ‘nascent global jurisprudence’ on certain issues: Anne-Marie Slaughter, ‘A Brave New Judicial World’ in Michael Ignatieff (ed), American Exceptionalism and Human Rights (Princeton, New Jersey, Princeton University Press, 2005) 277, 278.

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norms ‘are no different from the separation-of-powers concerns associated with their power to make law generally’.23 The focus for concerns around the (domestic) counter-majoritarian difficulty does not lie at the level of international law. Civil society actors have also sought to take advantage of the shift in policy-making to global institutions. Finnemore and Sikkink identify a phenomenon whereby ‘norm entrepreneurs’ who have failed to have their position accepted in domestic politics seek to internationalise a policy issue, with the objective of subsequently using international norms to strengthen their position in domestic policy debates.24 Civil society actors who have been unsuccessful at the domestic level are provided, in John Bolton’s phraseology, with a ‘second bite at the apple’.25 A ‘boomerang’ effect is observed, whereby domestic actors by-pass national debates to appeal to actors in the international community to bring pressure on the government.26 Simultaneously principled and strategic actors, norm entrepreneurs seek to bring new ideas, norms, and discourses into policy debates at the global level.27 The first step is to attempt to convince a critical mass of states to embrace new norms. These states are the norm leaders. The second stage is characterised by a dynamic of imitation, as the norm leaders attempt to socialise other states to become norm followers. The norm ‘cascades’ through the ‘population of states’, the result of a pressure for conformity and a desire to enhance international legitimation. Following this, ‘norm internalization occurs; norms acquire a taken-for-granted quality and are no longer a matter of broad 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 Prior to that point, little normative change occurs without significant domestic movements supporting such change. After the tipping point, more countries begin to adopt new norms more rapidly even without domestic

23 Mark Tushnet, ‘The Inevitable Globalization of Constitutional Law’ Harvard Public Law 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 Political Change’ (1998) 52 International Organization 887, 893. 25 John Bolton, ‘Should we take Global Governance Seriously?’ (2000) 1 Chicago Journal of International Law 205, 217. On the effectiveness of international non-governmental organisations, see Alan Boyle and Christine Chinkin, The Making of International Law (Oxford, Oxford University Press, 2007) 93; also Eric Posner, ‘International Law and the Disaggregated State’ (2005) 32 Florida State University Law Review 797, 816. 26 Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’ in Thomas Risse et al (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press, 1999) 1, 18. 27 Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, New York; London, Cornell University Press, 1998) 3. 28 Finnemore and Sikkink (n 24) at 895.

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28 The Democratic Deficit in Global Governance pressure for change: the new norm is accepted as (re-)defining ‘appropriate behavior for the identity called “state” or some relevant subset of states (such as a “liberal” state or a European state)’.29 In relation to apartheid South Africa, Audie Klotz argues that the international law norm concerning racial discrimination played a crucial role in defining the identity and interests of states and international organisations, and shared understandings regarding illegitimate behaviour and policies.30 Judith Kelly argues that the global norm that elections should be free and fair and subject to external monitoring emerged as the result of an evolving set of norms related to democracy, elections and human rights, with the ‘tipping point’ occurring at the end of the Cold War. As more and more transitioning countries sought legitimacy through monitoring, the cost of refusing monitors increased, leading to the rapid spread, or cascade, of the norm of election monitoring.31 Thirdly, in relation to the vertical complaint, which concerns relations between international law and citizens, there may be a ‘substantive’ democratic deficit where international organisations fail to recognise and protect certain (human) rights that are assumed to be inherent in the practice of democracy. The sanctions regime of the UN Security Council is a particular source of concern here,32 with Bogdandy et al making the point that the listing of terrorist suspects by the Security Council ‘provides the most dramatic example of governance that would be hardly permissible at the domestic level’.33 The conclusion depends on the conception of democracy applied by the critical observer, and the proper balance between security and liberty that all democratic societies are required to achieve when faced with a determined terrorist organisation. It is not necessarily a conclusion that all good faith persons committed to democracy would share, ie it is not necessarily inherent in the idea of democracy. THE ‘HORIZONTAL’ COMPLAINT

The horizontal complaint identified by Alvarez concerns relations between states. Former UN Secretary-General Kofi Anan writes that democracy at the global level is important ‘because it affects relations 29

ibid at 902. 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 Law Journal 1375, 1379–80. 30

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The ‘Horizontal’ Complaint

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among states’.34 Referring to the idea of sovereign equality, reflected in art 2(1) of the UN Charter, Anan argues that small and powerless states feel ‘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 ‘democratic’ if it were ‘more representative of the membership as a whole’.35 The argument is that international law is democratically illegitimate ‘to the extent it fails to treat sovereigns as horizontal equals’.36 Alvarez himself has argued that a democratic deficit exists wherever international organisations use weighted forms of voting that elevate the rights of certain 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), but not others, with membership limited to the P-5 and 10 elected UN Member States.38 As constituted on 3 April 2009, the members of the UN Security Council represented (directly) some 2.3 billion persons, or 35 per cent of the world’s population. Other examples include the IMF, where voting is determined by an assigned quota, and World Bank, where it is determined by the number of shares to which the state has subscribed, giving the United States and its Western Allies ‘a clear preponderance in the two institutions’.39 The argument equates the sovereignty and equality of states with the political equality of citizens: one person, one vote, one state, one vote, etc. Democracy is understood as a system of collective decision-making in which any move away from the principle of political equality results in a deficit in the practice of democracy. Tony Carty, for example, argues that institutions such as the IMF should be ‘democratically governed’,40 and that ‘a regime of voting which approached “one state, one vote” would more closely correspond to the wishes of the majority of mankind[,] and, hence, be more consistent with the notions of political democracy prevalent in the West.’41 Carty confuses and conflates two arguments: that the agreement of a majority of states would accord democratic legitimacy 34

Kofi Anan, ‘Democracy as a Universal Issue’ (2002) 8 Global Governance 135, 139. 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 Legal Ordering of the World Community (Leiden, Martinus Nijhoff Publishers, 2005) 31, 47. In relation to the reform agenda of the IMF, see ‘International Monetary Fund, Reform of IMF Quotas 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 of the World Economy’ (1998) 98 Ethics 742, 748. 41 ibid at 756 (emphasis added). 35

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30 The Democratic Deficit in Global Governance and that a principle of aggregative legitimacy can be applied to relations between states. In relation to the first, the UN General Assembly is the most representative international institution (in terms of the representation of states), yet a simple majority of Member States, comprising the smallest in terms of population, represents less than five per cent of the world’s population.42 By contrast, a ‘majority of mankind’ can be achieved by aggregating the populations of just six states, around three per cent of the total number: the People’s Republic of China, India, the United States of America, Indonesia, Brazil, and Pakistan. The principle of sovereign equality, as Steve Charnovitz observes, is at odds with that of political equality. Democracy is concerned with popular rule by the people based on equal rights; what is true for a community of persons is not necessarily true for the international community of states: ‘giving China and San Tome and Principe an equal say would seem to contradict the principle of “one man one vote,” in view of the huge population disparity between the two countries’. The political equality of citizens is not analogous to sovereign equality: ‘one state, one vote’ does not follow logically from ‘one person, one vote’.43 Sovereign equality is essentially a contractual principle, precluding the imposition of international law obligations in the absence of state consent; the principle of political equality of citizens provides one part of the justification for the exercise of coercive political authority, even in the absence of consent. As Joseph Weiler observes, the idea that an international law norm cannot emerge without the consent of all states bound by it ‘sounds very much like democracy at the international level. But, in fact and in law, in theory and in practice, this is part of a very different vocabulary, namely that of sovereignty and sovereign equality.’ In fact it is ‘the opposite of any functioning notion of democracy which is based on the opposite premise[:] that a majority within a collectivity, a demos, has the authority to bind its individual members, even against their will’.44 (Of course this is only one understanding of democracy.) The requirement of consent to international law norms (at least in terms of treaty norms and the persistent objector rule in relation to customary international law) provides one part of the answer to the problem of democracy beyond the state, but a complete solution must recognise the existence of autonomous law orders in global governance; the importance of reasoned deliberation 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 Legitimacy’ (2004) 64 ZaöRV (Heidleberg Journal of International Law) 547, 548.

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The ‘Ideological’ Complaint

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moral or rational beings with homogenous identities (indeed democratic minorities within the state may prefer the international law norm to the position of ‘their’ government). THE ‘IDEOLOGICAL’ COMPLAINT

The ideological complaint contends that a democratic deficit results where global institutions pursue certain ‘ideological preferences’ at the expense of others.45 Barnett and Finnemore conclude that international organisations promote a particular, ‘mostly liberal, moral vision in world politics’,46 referring to the ‘substantively liberal character’ of international organisations, which have in the main been established by Western liberal states ‘and are designed to promote liberal values’, although they are themselves ‘emphatically not democratic’.47 Barnett and Finnemore refer to an idea of ‘undemocratic liberalism’, whereby international organisations use undemocratic procedures in the promotion of human rights and economic development through a free market and free trade.48 The imposition of global norms is justified on the basis that it prevents citizens from making wrong choices, substituting choices that the people would have made if they were sufficiently informed and rational, or imposing policies that domestic governments would have adopted were they not beholden to special interest groups. Kal Raustiala argues that by removing decisions from the realm of domestic politics, international economic institutions can become ‘saviors of sovereignty because they unshackle policymaking from the illegitimate power of concentrated special interest groups’. International economic institutions promote the establishment 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 acceptable only if the policy issues under consideration were not political, ie if they were not subject to disagreement by reasonable persons. Political debates are concerned with arguments around conflicting visions for organising society, and according to the democratic model of political legitimacy, the political constitution and conceptions of justice must be agreed by, or (ultimately) subject to, democratic procedures. Jürgen Habermas writes 45

Alvarez, (n 2) at 163. 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 and William Burke-White, ‘The Future of International Law is Domestic (or, the European Way of Law)’ (2006) 47 Harvard International Law Journal 327. 46

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32 The Democratic Deficit in Global Governance that a shift from domestic democratic government to global regulatory expertise would be acceptable if we were able to conclude that the liberal economic world order was the only appropriate model for organising society (and even then we would have to agree on the particular model of liberal economic order); then there would there be ‘no further need in the process itself to justify the promotion of a worldwide deregulation of markets against government intervention’.50 This is manifestly not the case in the politics of world society. There is little doubt that international organisations pursue their respective policy objectives on the (self-)understanding that they are engaged 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 then makes a number of claims about the ways in which the Bank is helping the poorest countries and peoples.51 Any deficit in the practice of democracy beyond the state may claim to be compensated for by the pursuit of global justice ends (a globalised economy, development of good governance practices, protection of human rights, eradication of hunger, poverty and preventable disease, protection of the environment, etc), but these do not reflect agreed principles of global justice, and it is difficult to accept that these subjective and contestable values should override claims of (domestic) democratic self-determination, justifying the imposition of global law norms. For a number of writers, the idea of justice is only possible where there are coercive institutions of government (cf the idea of global governance). Thomas Christiano argues that the state is a necessary instrument for establishing justice. The state adjudicates disagreements about justice by defining rights and responsibilities, and establishes the framework of government that allows for the coercive enforcement of agreed (justice) norms and a system of taxation that allows for the possibility of distributive justice. The idea of justice is established in law through democratic procedures by members of the political community, and protected through the adjudication of disagreements about justice norms in an impartial manner. The state is the only institution that has the capacity to achieve political justice (understood in this way): it is the only institution that can reliably and impartially enforce legal rights and evaluate claims of injustice through the establishment of formal judicial bodies. The state provides the context in which individuals can make ‘authoritative collective decisions’ about the nature and requirements of justice through liberal

50 Jürgen Habermas, ‘A Political Constitution for the Pluralist World Society?’ (2007) 34 Journal of Chinese Philosophy 331, 341. 51 http://digitalmedia.worldbank.org/tenthings/en/4.php (last visited 29 June 2009).

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The Democratisation of Global Governance

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democratic procedures (required by democratic theory).52 In the absence of universal conceptions of justice acceptable to all persons (a condition of reasonable pluralism), the content of justice must be worked out through liberal democratic procedures. No global institutions enjoy the legislative legitimacy of the liberal democratic state. The most powerful of these, the Security Council, World Trade Organization, IMF and World Bank are ‘deeply inegalitarian’.53 They do not legislate in ways that are responsive to the interests of those affected by their governance activities and do not apply international law norms in an impartial and evenhanded manner, because they are dominated by a small number of powerful states. For these reasons international institutions cannot perform the function of ‘carefully and impartially rendering [political] justice’.54 Christiano argues that it makes no sense to talk about justice absent coercive (governmental) structures capable of rendering justice and follows John Rawls in rejecting the traditional arguments of (moral) philosophy that there is a single reasonable and rational position on justice that has been or (ideally) can be articulated, and which holds that ‘institutions are justifiable to the extent that they effectively promote that good’.55 Concepts of (political) justice must be worked through democratic procedures in accordance with the principle of public reason. In the absence of democracy at the global level, it makes no sense to refer to substantive concepts of global (political) justice, which must instead be limited to justice issues immanent in the concept of law and the exercise of (global) regulatory authority though law.

THE DEMOCRATISATION OF GLOBAL GOVERNANCE

The complaints against international law result from the following, alone or in combination: that the shift in the locus of law-making to global sites inhibits the ability of citizens to exercise meaningful control over the development of international law norms; the protection that sovereignty affords the right of the people to democratic self-determination is undermined to the extent that the international system moves away from the principle of sovereign equality; and dominant global discourses inhibit the possibilities of citizens articulating and establishing other visions of social existence. The concern for the practice of democracy is complicated 52 Thomas Christiano, ‘A Democratic Theory of Territory and Some Puzzles about Global 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.

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34 The Democratic Deficit in Global Governance by the exercise of regulatory functions at different levels (state, regional and global), and the absence of an overarching constitutional settlement that frames the exercise of political authority. In order to make sense of the democratic deficit and requirements for the democratisation of global governance, there is a need to evaluate the contending meta-principles for the allocation and exercise of political authority following the decline of the Westphalian settlement. The dominant arguments are examined in turn: the need to ensure the protection of democracy through the affirmation of sovereignty; the establishment of a global democratic state; the imagining of the extant system as a global democratic federation; the establishment of a covenant of peace between democratic nations; the application of the principle of cosmopolitan democratic law to the systems of fragmented authority; the democratisation of international organisations, principally through the application of the parliamentary principle of democracy; the enhancement of accountability in relation to the exercise of political authority by international organisations; and the enhancing of the role of international non-governmental organisations (NGOs) and other civil society actors in challenging dominant global discourses.

Reaffirming Sovereignty Previously, the exercise of political authority was organised in terms of (vertical) state and (horizontal) public international law. The exercise of political authority was justified by reference to the idea of (‘Westphalian’) sovereignty, which explained both the validity of state and international law norms, and the idea of political legitimacy, justified in terms of the exercise of sovereign authority by a democratic Rechtsstaat (state bound by the rule of law). The exercise of legitimate political authority was conditioned by an expression of sovereign consent (in accordance with the will of the people) at both the domestic and international level.56 The people of a democratic state were only subject to those internal (state) and external (international) laws ‘willed’ by the state (the state as ‘self-legislator’). The position was affirmed by the principle of sovereignty and the corollary right of non-intervention in domestic affairs.57 The UN Declaration on 56 Nathan Diament observes that democratic self-government requires not only that the people create the laws that they live under domestically, but also that they determine ‘how they protect their interests and project their power abroad’: Nathan Diament, ‘Foreign Relations and Our Domestic Constitution: Broadening the Discourse’ (1998) 30 Connecticut Law Review 911, 931–32. 57 In the Nicaragua case (Merits), the International Court of Justice made the following point: ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the

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Principles of International Law Concerning Friendly Relations confirms that every state has the ‘inaniable right to choose its political, economic, social and cultural systems, without interference in any form by another State.’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 valuesystem and to pursue its own ideas of the good to the extent that no harm is caused to other States.59

Where democracy is understood in terms of a sovereign political community ‘legislating’ for itself, the solution to the problem for democracy created by international law is provided by a rejection of the authority of international law norms that have not received the consent of the people (directly, or through their representatives). The argument is made by conservative nationalists in the United States, largely writing from the perspective of American constitutional law. The principal issue is the extent to which US law should recognise the authority of international law norms. Consider for example the arguments of Ernest Young, that law in the United States is made through ‘an intricate, carefully balanced process that is deliberately designed to be difficult to navigate’; actors are accountable ‘to each other and to the American people’.60 In contrast, law-making in the international community lies outside of any system of checks and balances and accountability, and ‘it risks undermining [the] Constitution’s institutional strategy’.61 Any recognition of international law norms by domestic institutions (in the absence of adoption or affirmation by domestic legislatures) undermines both democracy and the idea of sovereignty, which in the United States is ‘intimately bound up with the basically procedural nature of our constitutional commitments. The American people expect that certain decisions affecting them will be made through specified constitutional processes by people who are accountable to them.’62

choice of a political, economic, social and cultural system, and the formulation of foreign policy. 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 International Law Concerning Friendly Relations (adopted 24 October 1970). See also Principle VI, Helsinki Final Accord, Conference on Security and Co-Operation in Europe: Final Act [1 August 1975]: ‘The participating States will refrain from any intervention, direct or indirect, individual or collective, in the internal or external affairs falling within the domestic jurisdiction of another participating State, regardless of their mutual relations.’ 59 Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (Cambridge, Cambridge University Press, 2005) 93. 60 Ernest Young, ‘The Trouble with Global Constitutionalism’ (2003) 38 Texas International Law Journal 527, 528. 61 ibid at 529. 62 ibid at 542.

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36 The Democratic Deficit in Global Governance Reflecting arguments articulated by HLA Hart,63 Jeremy Rabkin complains that there is ‘no international legislature to declare or elaborate international legal standards[,] [and] no reliable means of interpreting or enforcing most standards that do exist’.64 In addition to the problems of indeterminacy and bindingess, Rabkin criticises assertions that domestic law and international law have equal authority and importance. If that were the case, ‘it would be impossible to know what law to apply in the event of a conflict between U.S. law and international law’; it is not, and the US Supreme Court ‘has repeatedly insisted that American law takes priority’.65 Prominent ‘New Sovereigntists’ include Rabkin,66 John Bolton,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 incorporation of international norms ‘and drapes the power to do so in the mantle of constitutional legitimacy’.71 New Sovereigntists, he argues, deliver three ‘flawed lines of attack’: emerging international law norms are vague and ‘illegitimately intrusive’ in domestic affairs; international law-making processes are unaccountable, and international law norms are (ultimately) unenforceable; and the United States has the right to ‘opt out of international regimes as a matter of power, legal right, and constitutional duty’.72 The consequences of the application of New Sovereigntist thinking to international law can be seen in the rational choice analysis developed by Goldsmith and Posner, which seeks to explain international law in terms of ‘states acting rationally to maximise their interests, given their perceptions 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 entails institutionalised 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 International Law’ (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 Sovereign 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-selfexecution’ (2003) 55 Stanford Law Review 1557. 70 Curtis Bradley and Jack Goldsmith, ‘Federal Courts and the Incorporation of International Law’ (1998) 111 Harvard Law Review 2260. 71 Peter Spiro, ‘The New Sovereigntists: American Exceptionalism and Its False Prophets’ (2000) 79 Foreign Affairs 9, 9. 72 ibid at 10.

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power’.73 Inter-state activity is explained in terms of four possible patterns of behaviour: coincidence of interest, whereby each state acts in its own best interests without regard to the interests of the other state (the argument is framed in terms of bilateral inter-state relations); coordination, whereby states receive higher payoffs if they engage in identical or symmetrical actions than if they do not; cooperation, whereby states mutually refrain from activities that would otherwise be in their selfinterests in order to obtain greater medium- to longer-term advantage; and coercion, which results when a powerful state forces a weaker state to engage in acts contrary to its own interests.74 The usual argument, that international law constrains the selfinterested behaviour of states, is mistaken: ‘It is not a check on state self-interest; it is a product of state self-interest.’75 Customary international law emerges as a result of states seeking to maximise their interests through coincidence of interest, coercion, bilateral repeated prisoner’s dilemma, and bilateral coordination.76 The basic logic of international agreements (ie treaties) ‘follows directly from the models of cooperation and coordination’.77 In cases of coincidence of interest there is no requirement for an international agreement, and in cases of coercion states are unlikely to formalise a subservient relationship. The logic of bilateral cooperation can be extended to any number of agents, but relationships in the international community of states remain essentially bilateral in nature. The establishment of an international organisation by multilateral treaty can clarify the terms of cooperation and enhance monitoring, but ‘punishment still depends on state action and is subject to free-riding and related collective action difficulties’.78 The argument applies equally in the case of the international human rights system which consists of powerful states enforcing interests, including altruistic interests to be sure, and weak states yielding when sufficient pressure is brought to bear against them. The relationships are bilateral, and the degree of enforcement depends on the bargaining positions of the two states in each relationship.

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

73 Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford, Oxford University 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.

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38 The Democratic Deficit in Global Governance Goldsmith and Posner provide three reasons why states might (rationally) choose to incur international law obligations. First, the use of the treaty mechanism imports accepted international norms and principles for the interpretation of inter-state agreements, reflected in the Vienna Convention on the Law of Treaties. Second, in most states, the constitution requires that treaties are approved by domestic legislatures. Where a treaty is affirmed by the legislature, it transforms an agreement between governments into one accepted by the representatives of the people. The involvement of the legislative body makes public the commitment of the democratic state to the treaty regime.80 Legislative adoption also commits the state to the international law position to a much greater extent than mere executive agreement, requiring a change of domestic laws for any subsequent change of policy. Legislative approval sends a clear signal of the commitment of the executive branch to the policy, making clear that the state is a serious international partner on the issue.81 Third, the use of treaties implies a deeper commitment than non-binding and non-legal instruments; it is the same distinction that can be made in domestic law between a contract and a non-binding agreement.82 The analysis explains international law in terms of the rational interests of states and concludes that states have no moral obligation to comply with international law norms.83 Any preference for compliance must be weighed alongside other preferences; it will depend on what costs leaders and citizens are willing to incur and what they are willing to forgo. The determination as to whether a state will comply with an international law norm must be made on a case-by-case basis, depending on how political leaders judge the balance of interests for the state in complying on the one hand and other benefits that might accrue from norm-violating behaviour on the other. One of the factors to be weighed is the popular will of the people, who in a democracy ultimately determine policy. The analysis suggests that international law norms should be subject to the democratic will of the people (at least the people of the United States). It is an American perspective on the problems that arise from the globalisation of governance functions, reflecting the different ways in which Americans (and many American academics) view international law. Jed Rubenfeld explains that the modern system of international law, developed in the wake of World War II to be made and interpreted by international actors operating above popular democratic

80 81 82 83

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politics, was designed to be ‘antidemocratic’.84 It was a response to the ‘European’ problems of military conflict and political extremism that democratic politics had unleashed. Given that America (so it told itself) had not suffered such problems, the resulting international law system did not apply to the United States. The position regards international law as a mechanism for promoting universal values and constraining democratic self-government elsewhere.85 New Sovereigntists accept limitations on the democratic will of the here-and-now people of the United States only to the extent that the limitation is provided for in the US Constitution: political selfdetermination in the context of constitutional democracy. The position can be contrasted with that in Europe, where both academics and citizens appear more willing to accept supra-national limits on the possibilities of democratic self-determination. The difference is explored by Rubenfeld, who identifies two forms of constitutionalism. The first, ‘European constitutionalism’, regards constitutional rights as universal rights that individuals possess by virtue of their co-membership of the human species. These universal constitutional rights reside in a higher normative domain than politics and displace any conflicting outcomes of political decision-making. It makes no difference whether constitutional rights are recognised and enforced at the domestic, regional or international level, and there is no reason to conclude that international courts and tribunals are not competent to determine the content and application of universal norms.86 International law norms bind future majorities in the same way as constitutional law norms, displacing conflicting outcomes of democratic procedures. Any argument that there is a democratic deficit in international (human rights) law is ‘misguided or simply obtuse’, as ‘the very point of constitutional law is to enforce counter-majoritarian rights and thus to check democracy’.87 The second form of constitutionalism is a form of democratic constitutionalism. The argument here is that the Constitution does not lie outside of democratic politics, it is the product of democratic politics. It is for the people to decide for themselves ‘on the enduring legal and political

84 Jed Rubenfeld, ‘Unilateralism and Constitutionalism’ 2004) 79 New York University Law 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 University Press, 2005). Ignatieff distinguishes a number of ways in which American exceptionalism manifests itself in relation to human rights: the United States signs international human rights and humanitarian treaties, but then exempts itself through reservation, nonratification, or non-compliance; the United States maintains a double-standard, judging itself (and its allies) by more permissive standards than others; the United States rejects the application of international human rights within its own domestic laws (at 3). 86 ibid at 1992. 87 ibid at 2003 (references omitted).

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40 The Democratic Deficit in Global Governance commitments that will govern the polity in the future’.88 These include the nature and content of those fundamental rights that will displace majority decisions. On this understanding, counter-majoritarian rights are not counter-democratic because they represent ‘the nation’s selfgiven law, enacted through a special, democratic, constitutional politics, subject to democratic amendment processes in the future’. The American conception of the Constitution is strongly of the democratic constitutionalism model;89 the opposite is the case in Europe, where the ‘new European constitutionalism’ is grounded in the ideology of universal (or international) human rights norms, which possess ‘a supranational and almost supraconstitutional character, making them close to unamendable and rendering them peculiarly fit for interpretation by international juridical experts’.90 In some ways the position of the New Sovereigntists can be dismissed as a realist and nationalistic argument that seeks to have the evident military and economic power of the United States reflected in the system of global governance,91 at least as interpreted by domestic courts in the United States.92 There is though some veracity in the critique: from the perspective of a functioning democratic system, international law norms appear to be a poor substitute for domestic laws agreed through complex procedures of democratic will-formation. Prima facie, the good democrat should prefer domestic democratic laws to (undemocratic) international law norms produced by unelected and largely unaccountable international institutions. McGinnis and Somin refer to the ‘low quality’ of the political processes that generate international law norms, which provides a strong argument against the recognition of international law as part of domestic law, unless expressly incorporated by a democratic institution.93 The argument is comparative: international laws are less likely to

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ibid at 1993. ibid at 1994. 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 perceived military needs and unique global security responsibilities[;] European exceptionalism grows 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’ special economic needs’: Sabrina Safrin, ‘The Un-exceptionalism of U.S. Exceptionalism’ (2008) 41 Vanderbilt Journal of Transnational Law 1307, 1314. 92 cf Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International 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. 89 90

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be of ‘sound quality’ than those created by advanced democracies, such as the United States;94 it does not apply in relation to authoritarian states and transitional democracies.95 To the extent that that it can be generalised,96 the New Sovereigntist argument suggests that, in the absence of a clear expression of (sovereign) consent, international law obligations should not be imposed on democratic states, although of course there remains the possibility that global law norms might be more democratic than domestic law norms.97 The difficulty with the analysis is the failure to recognise the existence of collective action and coordination problems, such as threats to the global environment and from international terrorism, and problems created by the workings of the international financial system that cannot be resolved by states acting alone. Globalisation has resulted in a loss for democracy, as citizens find that decisions and actions taken outside of the boundaries of the state impact on them.98 The argument applies equally to the United States.99 Keohane, Macedo and Moravcsik observe that the ‘pooling of sovereignty’ allows democratic states to achieve policy goals together that none could realise by acting alone, in areas such as global warming, liberalising the international economy, combating terrorism and regulating multi-national corporations. The development of global governance mechanisms and consequential reduction in the freedom of action of individual states is a practical response to the problems associated with globalisation, affording citizens an opportunity to exercise some authority or control over actors outside of the territorial jurisdiction. The choice is not between global governance and domestic government, but between ‘the complementary activities of international and domestic institutions, on the one hand, and uncoordinated state action, on the other’.100 The refusal of states to delegate some authority to multilateral institutions represents ‘a self-defeating and arbitrary restriction on national democratic deliberation’.101 The rejectionist position implies that

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ibid at 1198. 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 of Law and Australian Judges’ (2008) 9 Melbourne Journal of International Law 171 (on Australian 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 of technical specifications, and there remains a (cosmopolitan) sense that the most serious forms 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. 95

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42 The Democratic Deficit in Global Governance societies have nothing to learn from each other (a conclusion at variance with the experiences of human history), and that there is nothing that can be done about trans-border and global problems and nothing to be gained from some pooling of sovereignty and (partial) loss of democratic control. This is evidently not the case. The recognition of collective action and coordination problems provides the context and justification for globalised governance, but does not tell us which issues should be dealt with at the global level and which at the domestic level. Robert Jackson observes that contemporary debates around sovereignty concern this allocation of ‘government decisionmaking power’,102 with complaints around restrictions on sovereignty reflecting disagreements as to the appropriate level for the allocation of decision-making authority.103 Most solutions rely directly or in modified form on the principle of subsidiarity, developed in the context of the European Union.104 Subsidiarity requires that the exercise of political authority be undertaken as close to the people as possible, consistent with the principle of achieving effective outcomes. The introduction of international law norms is justified following the recognition of a collective action or coordination problem, and where the advantages of relying on international law ‘override any disadvantages connected to the preemption of more decentralized rule-making’. The exception, according to Mattias Kumm, is the protection of minimum human rights standards, although, along with other writers, he fails to explain the rationale for the exception.105 Whilst it is common in the literature to include the protection of human rights as a necessary concern of the international community, the reason for this is not satisfactorily explained, given that, in most cases, human rights abuses in one state do not impact on the citizens of other states, ie human rights abuses do not require a practical (as opposed 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, International Organizations and their Exercise of Sovereign Powers (Oxford, Oxford University Press, 2005) 29. 103 Robert Jackson, ‘Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World’ (1987) 41 International Organization 519, 519. 104 See Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2008] OJ C115/01: art 5 (1) The use of Union competences is governed by the principles of subsidiarity and proportionality… (3) Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. 105 Mattias Kumm, ‘The Legitimacy of International Law: a Constitutionalist Framework of Analysis’ (2004) 15 European Journal of International Law 907, 921.

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Subsidiary is a ‘power allocation principle’, requiring that ‘the entity that can best achieve a task be in charge of it’. It does not, as Samantha Besson observes, necessarily require that the institution is democratic.106 Subsidiary is a practical tool, framing debates about the allocation of decision-making authority, and a philosophical position.107 The re-allocation of political authority from the state to international institutions without sufficient justification constitutes a loss of sovereignty, and in democratic states, a loss for democracy: the idea of subsidiarity reinforces the principle that ‘the vast majority of governance tasks should still be taken by national government officials’.108

A Global Democratic State Thomas Zweifel argues that in order to apply the idea of democracy at the global level ‘we need to think – in theory at least – of a global polity and a global population. An international state allows us to make that leap.’109 According to Campbell Craig, the idea of world government ‘is returning to the mainstream of scholarly thinking about international relations’, although reference is made only to an article by Alexander Wendt and a book by Daniel Deudney.110 Wendt’s argument is that a world state is inevitable in the next 100–200 years: with the transfer of state sovereignty to the global level, ‘individual recognition will no longer be mediated by state boundaries, even though as recognized subjects themselves states would retain some individuality’.111 Deudney’s conclusion is that a hierarchical world government is unlikely, as states will not surrender possession of nuclear weapons to a world authority. (He also notes the difficulty of conquering and controlling

106 Samantha Besson, ‘Sovereignty in Conflict’ (2004) 8 European integration online Papers (EIoP) 3.2.2.1. 107 Anne-Marie Slaughter refers to a foundational principle of legitimate difference in trans-governmental cooperation, reflecting a view that ‘a desirable diversity of ideas about how to order an economy or society’ is both good and appropriate in informing the nature of global governance: Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39 Government and Opposition 159, 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 of International Relations 491, 525.

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44 The Democratic Deficit in Global Governance occupied territories.) Instead, a ‘federal-republican image of world government’ looks more likely to emerge,112 building on the existing structures of the UN,113 but requiring also a ‘global constitutional conversation about first principles’. The result would be a ‘world Constitution based on 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 world government in the Stanford Encyclopedia of Philosophy.115 World government is defined as ‘the idea of all humankind united under one common political authority’. It can be traced back to ancient Chinese, Indian, Greek and Roman thought. In Medieval times, Dante articulated the Christian ideal of human unity and its expression through a world governed by a universal monarch (Convivio (The Banquet) (c1304) and Monarchia (1309–13)). The idea lost its appeal with the development of the idea of the sovereign state following the Peace of Westphalia (1648). In the eighteenth century, the dominant political thinkers, Immanuel Kant (Perpetual Peace (1795)) and Jean-Jacques Rousseau (The Social Contract (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 of atomic weapons on Hiroshima and Nagasaki, which led Albert Einstein to argue that peace required a world government ‘able to solve conflicts between nations by judicial decision. This government must be based on a clear-cut constitution which is approved by the governments and nations and which gives it the sole disposition of offensive weapons’. The Cold War prevented any serious debate on the issue. Lu’s review makes clear that no serious or systematic attempt has been made in contemporary political thought, at least in the English language, to articulate a vision of world government (the only references are again to Wendt and Deudney). William Scheuerman concludes that ‘no serious thinker today is advocating a single global Leviathan’.116 The literature is dominated by critics of the idea, who point to the facts that world government is not achievable (the argument is an exercise in ‘utopian thinking’); that it

112 Daniel Deudney, Bounding Power: Republican Security Theory from the Polis to the Global Village (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? Habermas on Postnational Democracy Political Theory’ (2008) 36 Political Theory 133, 148.

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would be undesirable, as it would ‘descend into a global tyranny’;117 and it is neither necessary nor sufficient to achieve the aims of the promotion of human rights and establishment of democratic government. Even if the need for world government were accepted and concerns that the concentration of power would lead to a global tyranny overcome,118 it is difficult to envisage a mechanism by which an effective world government could come into existence, particularly given the opposition of powerful democracies. There are also the practical objections as to how a global democracy of some six billion persons would operate, given the significant economic and cultural differences in world society that would make it difficult to reach a common position on many issues of policy.119 There would be significant questions of legitimacy and stability if the practice of global democracy were to result in large numbers of unsatisfied preferences and creation of persistent minorities, groups whose preferences can never be realised through democratic politics – Thomas Christiano observes that ‘[t]he larger the constituency, the larger the chances are that particular minorities would simply get lost in the democratic decision making’.120 That is not to conclude that the practice of democracy on a global scale could not be effective, only that the theory and practice of democracy suggests that the unit of political selfdetermination should be as small as possible, consistent with the requirement of including all those affected in political debates. Kal Raustiala makes the opposite point, observing that up until the eighteenth century the dominant view in Western political theory was that ‘small was beautiful’, but that in the Federalist Papers, James Madison reasoned that large size was in fact a saving grace: ‘Madison saw the primary threat to democracy in faction, or the power of special interests’. In the case of a large-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 21st Century (New York, United Nations, 2000) 7: Nothing would be less desirable than the idea of ‘world government, of centralized bureaucratic behemoths trampling on the rights of people and states.’ 118 See, for example, Daniel Weinstock, ‘The Real World of (Global) Democracy’ (2006) 37 Journal of Social Philosophy 6, 16; see also Thomas Christiano, ‘A Democratic Theory of Territory and Some Puzzles about Global Democracy’ (2006) 37 Journal of Social Philosophy 81, 102. John Rawls concludes that a world government would be undesirable as it would involve either ‘a global despotism or else would rule over a fragile empire torn by frequent civil strife as various regions and peoples tried to gain their political freedom and autonomy’: John Rawls, The Law of Peoples (Cambridge, Massachusetts, Harvard University Press, 1999) 36. 119 There is general agreement that social, economic and ethno-cultural differences make the practice of democracy more difficult, given the problem in identifying common interests: Robert Dahl, ‘Can International Organizations be Democratic? A Skeptic’s View’ in Ian Shapiro and Casiano Hacker-Cordon (eds), Democracy’s Edges (Cambridge, Cambridge University Press, 1999) 19, 26. 120 Thomas Christiano, ‘A Democratic Theory of Territory and Some Puzzles about Global Democracy’ (2006) 37 Journal of Social Philosophy 81, 103.

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46 The Democratic Deficit in Global Governance interests and parties: ‘Greater diversity made domination by faction less likely’.121 Mutatis mutandis, the development of a global democracy would avoid the possibility of the capture of global regulation by any single faction or special interest in world politics. The establishment of a global democratic state would inhibit the effectiveness of political participation by individual citizens as an individual voice or vote would have limited impact and it is not clear how the citizen could be meaningfully represented in a global parliament. The largest democratic states are India, with a population of 1.1 billion, represented by 552 members of the Lok Sadha (House of the People), and the United States, population 300 million, with 435 members of the House of Representatives. The Parliament of the European Union has 785 members, representing 492 million people. An assembly comprising 500 representatives in a global parliament would require that each member represent some 13 million individuals — the population of Malawi. Two-thirds of states have populations of fewer than 13 million, leading to questions as to how to draw constituency boundaries, assuming the use of constituencies in the global electoral system, and whether such boundaries would reflect the populations of states (and then for what gain). Daniel Weinstock argues that there is no reason to conclude that already represented territorially based units, including, but not restricted to states, would automatically be represented. The practice of global democracy might be ‘deterritorialised’, with constituencies emerging that cross existing state boundaries (giving the example of the Kurds) or that have 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 legislative assembly. Yet no serious writer argues for the introduction of a directly elected world parliament as a necessary component in the democratisation of world society. The focus of the literature is on the likely difficulties in the practice of democracy at the global level and the dangers for individual freedom in the establishment of a global Leviathan from which there could be no escape. Perhaps the reason for this is that the idea of a directly elected global parliament makes no sense in terms of the existing practices of global governance in which regulatory authority is exercised at different levels (global, regional and state) and in relation to different sectors. International law consists of a system of general and customary international law, and fragmented regimes concerning, 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.

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law of the sea, diplomacy, etc.123 In the absence of agreement on a new international constitution, the democratisation of international law cannot proceed through the establishment of a world legislative assembly: there is no coherent system of world law to which the parliamentary principle of democracy can be applied. (This is in contrast to the state where the introduction of a parliamentary assembly legitimates the exercise of power in a taken-for-granted political community defined by the exercise political authority.) Any analysis of the global democratic deficit must reflect and accommodate the realities of the fragmented nature of global regulation and global politics. Whilst some refer to the emergence of a nascent ‘global polity’,124 world society is fragmented into multiple sites for global law production and the conduct of global politics, each with its own focus and concern. In the absence of a unified international law order, with associated institutions of governance and politics, it makes no sense to focus on the state model in arguments around democracy beyond the state.

A Global Democratic Federation The principal objection to the idea of a global state is the continuing relevance of the territorial state in the theory and practice of democracy. One possibility is to imagine a global law order above the existing systems of sovereign states, focused on the UN, and re-conceive the structure as a global federation. The principle of democracy would apply at each level, with an international community of democratic states supplemented by a higher level of global governance whose powers and authority would be clearly demarked in the constitutive instrument of the 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-contained régime.’ 124 Brassett and Higgot argue that three elements underwrite the claim for recognising the emergence of a nascent global polity: political interconnectedness in the international system; the vast and interlocking network of global regulation by both international organisations and non-state actors; and the growing sense of ‘community’ that appears to be developing beyond the confines of the state, which importantly includes political contestation about the nature of globalisation: James Brassett and Richard Higgot, ‘Building the Normative Dimension(s) of a Global Polity (2003) 29 Supplement 1, Review of International Studies 29, 34. 125 cf 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, 128: ‘in a federal multilevel system nothing prevents the fictive unity of the presumptive popular sovereignty from being conceived as compatible with the corresponding chains of legitimacy that unfold in parallel with each of the various member states’.

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48 The Democratic Deficit in Global Governance with no requirement that citizens legitimate the global federation through an expression of consent for its exercise of political authority, or regard themselves as co-members of a global political community. The position is distinguished from that of a ‘thick’ federal system, which requires both an overarching structure of government and a ‘genuine “social substratum,” that is, a citizenry that provides that organization with original (as opposed to derived) legitimacy’.126 In a federal system (according to political theory), both the federal and state governments ‘exercise original, not derivative, public authority, and they are sovereign within their own sphere, i.e. the sphere in which each of them is competent to exercise public authority pursuant to the rules of the federal constitution (dual sovereignty)’.127 An initial difficulty is (again) the nature of the existing global system of law, which is not structured like some world federation. There are no existing global government structures to which the principle of democracy can be applied. Notwithstanding references to the contrary, the General Assembly is not a global legislature or ‘world parliament’;128 the Security Council is not a ‘world Government’,129 or ‘World Executive’;130 and the UN is not a world government.131 The federal model suggests a neat, organised system of governance institutions proceeding from the local to the global.132 However, the international system is not constructed like some matryoshka doll, progressing from national, to regional, to global

126 Armin von Bogdandy, ‘Constitutionalism in International Law: Comment on a Proposal from Germany’ (2006) 47 Harvard International Law Journal 223, 233. von Bogdandy concludes that most recent publications on international law that envisage a world federation ‘devote little space to the democratic principle’: Armin von Bogdandy, ‘Globalization 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: How Far Have We Come on Habermas’s Road to a “Well-Considered Constitutionalization of International 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 domestic government. There is ‘no legislature, in the technical sense of the term, in the United Nations 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 on international legal subjects’: Prosecutor v Dusko Tadic Case No IT-94–1-AR72 (1996) 35 ILM 32 [43]. 132 Georges Scelle refers to the ‘federal phenomenon’ in international law, a process leading from the individual state to larger normative units gradually and in successive stages as a result of expanding circles of ‘solidarity’: Georges Scelle, Cours de Droit International Public (Paris, Domat-Montchrestien, 1948) 253, referred to in Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification

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government. The real world of global regulation is messy and fragmented, without clearly defined jurisdictional boundaries. There is no overarching constitutional framework or organising meta-principle (following the decline of the idea of ‘sovereignty’). It is not possible to imagine a global democratic federation by democratising the United Nations and requiring that all states are democratic. Jürgen Habermas highlights a more philosophical problem in reading the global system as a democratic federation in that it is difficult to accept any analogy that associates the process of global state-formation with the (mythologised) process of state formation at the domestic level. Having previously written about a shift from international law, where the state preserves its supreme constitutional authority, to cosmopolitan law, which must be binding on state governments in accordance with some legal code or ‘constitution’,133 Habermas returns to the issue in his 2006 essay, ‘Does the Constitutionalization of International Law Still Have a Chance?’ Observing the emergence of global regulatory networks and the loss of political autonomy for states, he concludes that the federal analogy is not appropriate to describe the systems of global governance. At the domestic level, the atom of (popular) sovereignty may split, with a federal constitution establishing ‘corresponding chains of legitimation that unfold in parallel with each of the various member states’.134 The analogy does not apply at the global level. In contrast to constitutionmaking within states, individuals already enjoy a status as citizen that guarantees certain rights and freedoms — they have ‘already undergone a long political process of political formation and socialization’.135 The transformation from an international law of states to a cosmopolitan law of individuals cannot be seen simply as the logical evolution of the constitutional state from the national to the global level, given the absence of a supranational power with the capacity to coercively enforce international law norms.136 The constitutionalisation analogy in international law points to ‘an opposite evolutionary direction to that of the and Expansion of International Law, Report of the Study Group of the International Law Commission’, finalised by Martti Koskenniemi, (13 April 2006) UN Doc A/CN.4/L.682 para 207. 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 a Chance?’ 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 different matter from imposing a constitution on an existing state power’. He further concludes that it is not appropriate to ignore the legitimacy of the nation-state ‘and to return to an original condition prior to the state’: Jürgen Habermas, ‘The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society’ (2008) 15 Constellations 444, 448 (emphasis in original).

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50 The Democratic Deficit in Global Governance genealogy of the constitutional state. It proceeds from the nonhierarchical association of collective actors to the supra- and transnational organizations of the cosmopolitan order.’137 The ‘democratic federal state writ large’, the global state of nations or federal world republic, ‘is the wrong model’. There is no structural analogy between the constitution of a sovereign state, which comes to possess ‘supreme constitutional authority’, and the constitution of a world organisation that would have limited and carefully circumscribed functions: securing international peace and security, and promoting international human rights norms.138

A DEMOCRATIC PEACE

There is a long tradition in political theory, dating back to Immanuel Kant (Perpetual Peace (1795)), which argues that peaceful inter-state relations can only be guaranteed in an international community of democratic states. Writing in 1990, UN Secretary-General Kofi Anan observed that the significant increase in the number of democratic states following the ending of the Cold War had been important for a number of reasons, not least because established democracies, for a variety of reasons, rarely fight each other militarily.139 The ‘democratic peace’ thesis holds that major armed conflicts are unlikely between well-established democratic states.140 Where the decision to engage in military conflict is dependent on the will of the people, ‘war’ will be less likely. Explanations include the fact that when those who decide will bear the costs (in terms of their own lives) the risk of conflict is reduced, and the ability of democratic debate to exposes positions to critical scrutiny, making it more difficult to adopt unsound policies.141 The idea of the democratic peace as the organising principle of world society proceeds from the assumptions that democracy is an international public good, that states 137

ibid at 133. ibid at 134. 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: the Elusive Democratic Peace (Princeton New Jersey, Princeton University Press, 1999); AnneMarie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503; José E Alvarez, ‘Do Liberal States Behave Better: a Critique of Slaughter’s Liberal Theory’ (2001) 12 European Journal of International Law 183; and Michael Brown 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. 138 139

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are essential for the effective exercise of any right to democratic selfdetermination and that the (democratic) values of tolerance and reasonable pluralism preclude the possibility of governing others, even in their own ‘best interests’. The most significant arguments for a world order based on this model are provided in Kant’s Perpetual Peace, the locus classicus, and John Rawls’ The Law of Peoples. The works support a proposition that the democratisation of world society can be achieved through a commitment to domestic democracy and a global covenant on a (liberal) democratic peace.

Perpetual Peace In his essay Perpetual Peace, Immanuel Kant outlines a draft treaty containing three definitive articles and six preliminary articles. The preliminary articles concern prohibitions on treaties that implicitly allow for future wars; independent states coming under the domination of other states; standing armies; national debt to fund external activities; forcible intervention in the constitution or administration of another state; and ‘dishonourable’ modes of hostility during warfare that would make mutual confidence impossible in any subsequent state of peace.142 The first definitive article provides that the constitution of each state shall be republican.143 A republican constitution is founded in accordance with the principles of the freedom of the members of the society as human beings, the dependence of all subjects on a common legislation, and the equality of all citizens.144 Given that the republican constitution requires the consent of subjects in deciding ‘whether there should be war or not, nothing is more natural than that they should weigh the matter well’.145 The likelihood of war is reduced where those who pay the ultimate cost are involved in the decision-making process. Kant distinguishes a republican constitution from a democratic constitution, in which sovereignty lies with the people.146 Democracy ‘is of necessity despotism’, because the will of the people is, in reality, the will of the majority, allowing for the imposition of majority rule against dissenting individuals. The idea of a ‘universal will’ of the people ‘is in contradiction 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.

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52 The Democratic Deficit in Global Governance Kant is influenced, Mortimer Sellers argues, by a traditional of republicanism that associates legitimacy for the exercise of political authority with service to the ‘common good of the people’, and ‘the best test of the common good of the people is the public deliberation of elected representatives through institutions’.148 Kant himself observes that republicanism ‘is the political principle of severing the executive power of the government from the legislature’.149 Fernando Téson concludes that the republican constitution is what we would call today a liberal democracy, ‘a constitutional democracy, conceived as a participatory political process constrained by respect for rights’.150 The second definitive article provides that the law of nations ‘shall be founded on a federation of free states’.151 The argument is that war results from the fact that inter-state disputes cannot be resolved by courts with compulsory jurisdiction.152 In order for there to be peace, there must be some form of compact or agreement between states, ‘an alliance of a particular kind which we may call a covenant of peace (foedus pacificum) [that] would seek to put an end to war forever’. The alliance would not aim to ‘gain of any power whatsoever of the state, but merely at the preservation and security of the freedom of the state for itself and of other allied states’.153 The analysis proceeds from a recognition of the moral 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 Connecticut Journal 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 of international relations, arguing that international law should be based on a union of liberal democracies. The principle of non-intervention applies only as between liberal democracies. Recourse to the use of force may be justified in order to defend the liberal alliance against outlaw dictators, and against tyrants, as the principle of non-intervention, reflected in 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 and implemented [a republican constitution]’: ibid at 92. cf David Kennedy, ‘My Talk at the ASIL: What is New Thinking in International Law?’ (2000) 94 American Society of International Law Proceedings 104, 119; also Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization’ (2007) 8 Theoretical Inquiries in Law 9, 28. 151 Kant (n 142) at 128. 152 ibid at 114. On the importance of compulsory adjudication, see Ernst-Ulrich Petersmann, ‘Constitutionalism and International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?’ (1999) 31 New York University Journal of International Law and Politics 753, 790. In 1944, Hans Kelsen argued that the only way to protect the principle of sovereign equality was ‘the establishment of an international community whose main organ is an international court endowed with compulsory jurisdiction’: Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ (1944) 53 Yale Law Journal 207, 214. 153 Kant (n 142) at 134. 154 ibid at 109.

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to promote their own security, states should demand the introduction of a federation of nations.155 This would not be a ‘State of nations’, as this would involve a contradiction, given that the idea of the state ‘implies the relationship of one who rules to those who obey’: lawgiver and subject. Further, a state of nations would not be consistent with the understanding that states have of themselves, as being free from external legal authority.156 Whilst referring to the idea that a state of nations with coercive public laws might ‘finally embrace all the peoples of the earth’,157 Kant accepts that this is not possible as long as states hold firm to their conception of the ‘law of nations’, as opposed to the ‘positive idea of a world-republic’. If the tendency of states to engage in warfare is to be brought to an end, what is required is a ‘negative substitute’ for a world-republic – ‘a federation averting war, maintaining its ground and ever 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 universal hospitality’.159 This is the right not to be treated as a enemy; it belongs to all human persons by virtue of our common right of possession on the surface of the earth on which… we cannot be infinitely scattered, and must in the end reconcile ourselves to existence side by side: at the same time, originally no one individual had more right than another to live in any one particular spot.160

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

155

ibid at 129. 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 published Perpetual Peace: Giegerich (n 127) at 34. 159 Kant (n 142) at 137. 160 ibid at 138. 161 ibid at 139. 162 ibid at 142. 156

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54 The Democratic Deficit in Global Governance A Law of Peoples The argument in Perpetual Peace is that the avoidance of war can only be achieved through the establishment of a global federation of republican states. Each state is free to develop its own conception of political justice, whilst recognising the cosmopolitan reality that all human persons are co-members of world society. An important and influential variant on the democratic peace thesis that both draws on and resonates with the existing international law order is developed by John Rawls in The Law of Peoples. The aim is to outline a foreign policy for a reasonably just liberal people,163 acceptable within a reasonable Law of Peoples,164 ie to develop a political conception of rights and justice that would apply to international relations, framed in terms of international law.165 The liberal international law order is agreed in a second (international) original position, following A Theory of Justice, which is concerned with domestic principles of justice.166 One criticism of A Theory of Justice was that it was based on an atomised individual, abstracted from her social context.167 The Law of Peoples adds a second original position, in which participants are not individuals, but the rational representatives of liberal peoples,168 who must agree a conception of international law acceptable to nonliberal but decent peoples. Consistent with the liberal principle of pluralism within and between societies, the law of peoples requires that liberal peoples tolerate other decent peoples as ‘equal participating members in good standing of the Society of Peoples’.169 The focus on ‘peoples’ has been subject to criticism, not least because Rawls fails to define the term with any clarity,170 although, as Charles Beitz observes, ‘for most purposes it can be interpreted as referring to a society with a common political culture organized as a state’.171 Rawls argues that peoples strive to protect their hard won political independence 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 unfavourable conditions; and benevolent absolutisms, which honour human rights, without permitting 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.

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well-being of their citizens’.172 Nowhere does Rawls suggest that peoples not organised as states are equal participants in the society of peoples.173 In another context, Philip Allott observes the obsession in international law 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 independence), as if it feared the impulsive power of human solidarity’.174 International law ‘begins to speak of democracy as an international legal concept, but seeks to incorporate it in an international system whose structure assumes that there are no societies other than state-systems, statesystems in a systematic relationship of pre-democracy and presociality’.175 In contrast to states, which are rational self-interested actors, Rawls argues that we can attribute ‘moral motives’ to peoples:176 what distinguishes peoples from states is that ‘just peoples are fully prepared to grant the very same proper respect and recognition to other peoples as equals’.177 The principle of discourse is applied to the representatives of liberal peoples in the second original position. Liberal peoples have three basic features: a reasonably just constitutional democratic government that serves the fundamental interests of citizens; citizens united by common sympathies; and a moral nature, ie a political conception of right and justice.178 In the first original position, the rational actors are individuals who agree principles of domestic justice. The second (international) original position does not allow for the participation of individuals, although Rawls concludes that one of the principles of international justice will be that peoples honour human rights.179 The objective of discussions is agreement, through reasoned deliberation, on

172

Rawls (n 163) at 34. 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 in societies, including liberal democracies: Seyla Benhabib, ‘The Law of Peoples, Distributive Justice, and Migrations’ (2004) 72 Fordham Law Review 1761, 1766. Benhabib notes that national forms of collective (self-)identity are formed through ‘competing and contentious narratives, through which universalizing aspirations and particular memories compete with 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 of tyrannical states’: Fernando Téson, ‘The Kantian Theory of International law’ (1992) 92 Columbia Law Review 53, 84. See also Pogge (n 170) at 1745 173

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56 The Democratic Deficit in Global Governance the principles that can be shared by different peoples.180 The representatives of liberal peoples will agree a Law of Peoples that reflects the liberal conception of justice agreed in the first original position, including the idea of reasonable pluralism.181 Given that the Society of Peoples will have many more different cultures and traditions than domestic societies, Rawls concludes that respect for pluralism and tolerance of difference requires the recognition of the principle of the equality of peoples,182 and the right, within certain limits, of peoples to follow their own ways of life. 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, and between liberal peoples and decent hierarchical peoples, whose societies have a pre-ordained conception of the good, pursued by the people through government institutions. Rawls gives the example of the fictional state of Kazanistan, where Islam is the favoured religion and only Muslims can hold the upper positions of political authority and exert a decisive influence on fundamental policy issues, but in which minorities are tolerated and enjoy the rights to a distinctive culture.184 Decent hierarchical peoples are distinguished by the fact that whilst they are not liberal (ie, they do not possess a political concept of justice and the good life developed through democratic deliberations), they do not have aggressive aims and do respect the human rights of all members and provide mechanisms to give members a role in political decisionmaking.185 The principle of equality does not apply between liberal peoples and ‘outlaw states’, ‘burdened societies’, or ‘benevolent absolutisms’, which are not well ordered because they do not permit effective participation by all members of the society.186 The Law of Peoples outlines ‘familiar and traditional principles of justice among free and democratic peoples’, following JL Brierly’s The Law of Nations:187 peoples are free and independent; peoples are to honour 180

ibid at 55. 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 updated The Law of Nations, and articulated the following ‘principles of the international legal system’, drawn from GA Res 2625 (XXV), ‘Declaration on Friendly Relations’, which ‘looks almost like a statement of basic constitutional rules and principles’: a prohibition on the use of force; the settlement of international disputes by peaceful means; non-intervention in domestic affairs; a duty of co-operation; the principle of equal rights and selfdetermination; the principle of sovereign equality of states; and that states shall fulfil 181

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treaties; peoples are equal; peoples are to observe the duty of nonintervention; peoples have the right to self-defence, but not to wage war for 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 unfavourable conditions that prevent their having a ‘just or decent political and social regime’.188 Whilst The Law of Peoples outlines an ideal theory of peaceful relations between peoples, it also recognises the possibility of conflict between liberal peoples and ‘non-well-ordered peoples’.189 Liberal peoples will go to war ‘with unsatisfied societies, or outlaw states[,] when such a state’s policies threaten their security and safety, since they must defend the freedom and independence of their liberal culture’.190 Well-ordered liberal and decent peoples will not engage in war with each other and they will only engage in conflict with non-well-ordered societies in response to the expansionist policies of the other.191 A war of self-defence is legitimated for liberal societies in defence of the basic freedoms of their citizens, their constitutionally democratic political institutions, and the many religious and non-religious traditions and forms of life.192 Decent peoples also have the right to defend their (monolithic) way of life, as do benevolent absolutisms: ‘any society that is nonaggressive and that honors human rights has the right of selfdefence’.193 In addition to the use of force in self-defence, The Law of Peoples permits military intervention in cases of severe human rights abuses.194 The relevant ‘minimalist’ human rights standards concern the rights to life, liberty, property and formal equality,195 and the ‘security of ethnic groups from mass murder and genocide’.196 Charles Beitz explains that ‘humanitarian’ 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 human rights. 188 Rawls (n 163) at 37. Steven Ratner argues that Rawls makes ‘two critical errors: (1) he uses international law norms applying to states to advance a moral theory regarding a wholly different entity, namely peoples; and (2) by focusing on peoples alone (or by equating them with states), Rawls ignores the multiple entities – most important, states and individuals – that can and do have rights and duties’: Steven Ratner, ‘Is International Law Impartial?’ (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.

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58 The Democratic Deficit in Global Governance 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 military intervention is to ensure that the target society becomes a full member of the society of well-ordered peoples.198 The aim of a ‘just war’ is a just and lasting peace among peoples; this does not necessarily require the imposition of a liberal and democratic government on the target society.199 The Law of Peoples does not include any principle of distributive justice among peoples analogous to the ‘difference principle’ agreed in the first original position which provides that all social primary goods (liberty and opportunity, wealth, etc), should be distributed equally, unless an unequal distribution is to the advantage of the least favoured.200 The Law of Peoples proceeds as if societies ‘are economically self-sufficient and distributionally autonomous (so long as they are well governed)’.201 States are responsible for the welfare of their citizens; ‘the international community is responsible for maintaining background conditions in which decent domestic societies can flourish’.202 Poverty is a domestic, not an international, concern:203 inequalities between peoples result from the good or bad choices that they make for themselves;204 burdened societies are burdened as a result of their own domestic policy failures.205 Liberal peoples have a duty of assistance, to help burdened societies manage their own affairs and eventually to become members of the society of well-ordered peoples, but that assistance must not be paternalistic, it must aim for the ‘freedom and equality of the formally burdened societies’.206 Once a burdened society is capable of effective selfgovernment, the duty of humanitarian assistance is fulfilled; no further transfers of aid are required.

197

Beitz (n 171) at 685. 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 this Declaration can be fully realized.’ See, further, Thomas Pogge, ‘Recognized and Violated by International Law: the Human Rights of the Global Poor’ (2005) 18 Leiden Journal of International Law 717, 721: ‘Article 28 should be read as holding that the moral quality, or justice, of any institutional order depends primarily on the extent to which it affords all its participants secure access to the objects of their human rights; any institutional order is to be assessed and reformed principally by reference to its relative impact on the realization of the 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 way accountable to its citizens: Joel Trachtman, ‘Welcome to Cosmopolis, World of Boundless Opportunity’ (2006) 39 Cornell International Law Journal 477, 494. 206 ibid at 111. 198

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The Law of Peoples is an ideal theory. It does not address obligations that might arise from past relations of colonial exploitation or external interventions, the advantages that the international system provides for certain states,207 or the fact that different peoples enjoy greater or poorer opportunities as the result of factors outside of their control.208 The theory fails to acknowledge the structural advantages enjoyed by developed nations in dealings with developing states as the organisation of world society reflects the preferences of wealthy and powerful states who are able to ‘use their greater bargaining power to shape and reshape this order in their own favor’.209 International law agreements concerning trade, investments, intellectual property, and the use of common resources ‘can be shaped to be more or less favorable to various affected parties and, in particular, shaped to be more favorable to affluent societies (and their citizens and corporations)’.210 The possibilities of inter-state cooperation are conditioned by this ‘global basic structure’, and, as Allen Buchanan notes, it is ‘unjustifiable to ignore [this] in a moral theory of international law’.211 The Law of Peoples provides a significant contribution to debates around the democratisation of world society. It concludes that the principles of liberal democracy and social solidarity that legitimate the exercise of coercive political authority in the state should not be imposed on other states, and need not be applied to the global law order. Joseph Raz observes 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 Houston Journal of International Law 659, 670; Buchanan (n 173) at 706; also Stephen Macedo, ‘What Self-Governing Peoples Owe to One Another: Universalism, Diversity, and The Law of Peoples’ (2004) 72 Fordham Law Review 1721, 1727. 208 A World Bank report on Equity and Development notes that the most significant determinant 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 a disproportionately negative effect on developing countries. The rules ‘are the outcome of complex negotiating processes in which developing countries have less voice’. The report concludes that a more equitable system would require ‘more equitable rules for the functioning of global markets, more effective participation of poor countries in global rule-setting processes, and more actions to help build and maintain the endowments of poor countries and poor people’. World Bank, World Development Report: Equity and Development (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 the global basic structure’s distributional effects did not impede that society’s capacity to achieve its own conception of justice, and avoid principles that might turn out to assign them an inferior status in the Society of Peoples: ibid at 708. Concerned to protect their interests, they would also choose a principle of ‘democratic participation in the most important global governance institutions’: ibid at 711.

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60 The Democratic Deficit in Global Governance at the domestic level cannot simply be extended to the international arena: ‘much of the content of the moral principles which govern social relations and the structure of social organisation is determined by the contingent practices of different societies’. Two conclusions follow: the principles of justice that apply to global governance and international relations cannot simply replicate those of a particular society, or type of society, and ‘respect for the independence and autonomy of the state is of great moral significance’.212 These conclusions are important in any debate around the democratisation of world society.

COSMOPOLITAN DEMOCRATIC LAW

The implicit assumption of the democratic peace thesis is that if all states were democratic, the problem of democracy in world society would be resolved. The analysis follows the meta-principle of (Westphalian) sovereignty in focusing on democratic representation through domestic institutions (internally) and the inter-state system (externally). The argument could be sustained on two conditions: that the authority of international law is subject to the democratic will of all states (see chapter three for the difficulties with this argument), and that (sovereign) states enjoy a monopoly on the production of law norms. This is clearly not the case. The globalisation and fragmentation of governance subjects states to international law norms to which they have not given their consent. Daniele Archibugi makes the point that the ‘democratization of world affairs [cannot] be achieved solely by proxy, through single state governments, however democratic they may be. A set of democratic states does not generate a democratic globe.’213 A global democratic order cannot be founded on democracy within states. Arguments for the strengthening of sovereignty, or replication of state-like institutions at the global level, or for a confederation of democratic states fail to recognise and accommodate the extant nature of global governance. It is perhaps for this reason that those arguments, previously examined, have not resonated in policy discussions or the academic literature. Debates around the globalisation of the principle of democracy remain dominated by the model of ‘cosmopolitan democracy’, associated most closely with the work of David Held. The model does not aim to develop a model of global democratic governance from first principles, but to consider the implications of applying cosmopolitan and democratic principles 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.

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‘cosmopolitan’ and ‘democracy’ are not easily conjoined. Democracy is a system of government in which ‘the sovereign power resides in the people as a whole, and is exercised either directly by them … or by officers elected by them.’214 It is literally, ‘rule by the people’, a term derived from the Greek demokratia, from demos (‘people’) and kratos (‘rule’), and coined to describe the political systems in some Greek city-states, notably Athens.215 The idea of democratic ‘self’-government requires a bounded demos, with rights and obligations following from the fact of membership. Cosmopolitans do not accept that the limits of political justice are defined and delimited by the contingent boundaries of the sovereign state.216 The individual is the ultimate unit of concern and all human persons are of equal concern for everyone, not just those linked by bonds of citizenship, or other contingent relations of nationality, culture, etc.217 The Oxford English Dictionary defines a cosmopolitan as a person ‘belonging to all parts of the world; not restricted to any one country or its inhabitants’. According to Noah Feldman, the origin of the term is credited to Diogenes the Cynic, a stranger in Athens (ie not a citizen), and thus excluded from the Greek ideals of the virtue of participatory citizenship. When asked where he came from, Diogenes replied: ‘I am a citizen of the world [kosmopolites].’218 For the cosmopolitan, co-membership is defined by reference to common belonging in the human species. The argument may be understood both as a personal ethic,219 and as a meta-principle for the organisation and allocation of political authority in world society. There are seven paramount cosmopolitan principles: equal worth and dignity; active agency; personal responsibility and accountability; consent; reflexive deliberation 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 University Press, 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 Civil Power) 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 conversation partner with me: I have a moral obligation to justify my actions with reasons to this individual or to the representatives of this being. I respect the moral worth of the other by recognizing that I must provide him or her with a justification for my actions’: Seyla Benhabib, Another Cosmopolitanism (Oxford, Oxford University Press, 2006) 18. These ideas may provide the basis for ethical reflection and consumer choice, but not the legitimate exercise of political authority by global governance actors (or the conditions for the exercise of that authority).

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62 The Democratic Deficit in Global Governance amelioration of urgent need.220 Archibugi writes that the political project of cosmopolitan democracy is an attempt to reconcile globalisation with democracy, and recognise and respond to the threats to democracy posed by the processes of globalisation, whilst at the same time accepting that it is not possible for individual states to regulate the dynamics of globalisation in an effective manner.221 Social, economic and political problems and regulatory solutions are no longer defined exclusively by reference to the bounded territory of the state. The effects of global warming are the concern of all human persons, whilst inequalities in trade relations are the concern of consumers in the developed parts of the world and other places, and producers in less developed parts. Globalisation has produced communities of fate defined by a common problem requiring a (global) regulatory solution.222 Cosmopolitan democracy proceeds from an understanding that democratic theory can no longer be elaborated exclusively in terms of a theory of government for a territorially delimited polity; nor can the state be displaced as a central point of reference. The argument for cosmopolitan democratic law is outlined by David Held: the idea of sovereignty should be disentangled from notions of fixed borders and territories to become an attribute of the basic democratic law, which would operate at different levels, from the global to the regional to the state to lower levels (cities and more local associations). The aim would be to establish a more participatory form of democracy and create a ‘political order of democratic associations, cities and nations as well as of regions and global networks’.223 The application of cosmopolitan and democratic principles would result in overlapping systems of governance organised in accordance with democratic law. Individuals would enjoy multiple citizenships and associated rights of political membership in the ‘diverse political communities that significantly affect them’.224 Those affected (in a ‘nontrivial’ way) by public decisions would have ‘an equal opportunity, directly or indirectly through elected representatives, to influence and shape 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) 8 Legal Theory 1, 24. 221 Archibugi (n 213) at 28. 222 Richard Bellamy and Dario Castiglione, ‘Democracy, Sovereignty and the Constitution of the European Union: Republican Alternative to Liberalism’ in Zenon Ban´kowski and Andrew 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 in the Context of Globalization’ in Ian Shapiro and Casiano Hacker-Cordón (eds), Democracy’s Edges (Cambridge, Cambridge University Press, 1999) 84, 107. 224 Held (n 220) at 33. 225 David Held, ‘Cosmopolitanism: Globalisation Tamed?’ (2003) 29 Review of International Studies 465, 471.

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that would be as small as possible, but still include all those significantly affected. Issues that can be dealt with at the local level, should be dealt with at the local level, but it may be appropriate to move the locus for democratic decision-making away from the state when cosmopolitan principles can be upheld only in a transnational context, and when ‘those significantly affected by a public matter constitute a transnational grouping’.226 Cosmopolitan democratic theory is both cosmopolitan and democratic. The twin foci concern effective citizen control over decision-making processes and recognition that political communities of fate are not defined exclusively by reference to the boundaries of the sovereign state. Cosmopolitan public law is distinct from state law and international law in that it operates both ‘within and across borders’,227 reflecting a global system of fragmented authority. The concern is to ensure that the various communities of fate exercise democratic control over the global regulatory regimes that emerge in response to the processes of globalisation. There is no necessary connection between the boundaries of political decision-making and the modern state, and no requirement that there is a single locus of political authority: issues may be dealt with at the local (city/town), regional, or global level as appropriate. The implementation of cosmopolitan democratic law and establishment of a ‘cosmopolitan community – a community of all democratic communities’ requires a ‘transnational, common structure of political action which alone, ultimately, can support the politics of self-determination’.228 Political institutions must be designed to ensure that all significantly affected individuals can participate effectively in decision-making processes that maximise the potential influence of the individual voice and vote. This demands novel and imaginative responses to the problem of democratic capture, and it is not sufficient simply to argue for a replication of state institutions in a legal world in which ‘those affected’ are not (only) defined by the boundaries of the territorial state. Whilst a number of regional and global regulatory regimes may seek to establish state-like democratic structures, including legislative and executive bodies,229 other systems may rely on different mechanisms for determining the will of transnational communities, such as elected supervisory bodies, or the use of referenda, that would cut across nations and nation-states at regional or global levels.230 A particular concern is the protection of international

226

ibid at 475. 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. 227

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64 The Democratic Deficit in Global Governance 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 Individuals would be able to appeal to international human rights bodies and have judgments enforced against domestic governments. The idea of cosmopolitan democracy provides important insights for the democratisation of world society, and for beginning to think about the democratisation of global law. What Held fails to explain with sufficient clarity is how political discourses can occur within global, transnational, or even sectoral communities of fate. In the absence of genuine processes of democratic will-formation, the exercise of political authority in the name of some or other putative community of fate will remain, 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 decisionmaking authorities under the cosmopolitan model would result in a decline of accountability, certainly in contrast to the state law system. The development of a complex network of sites of authority will not provide non-members with opportunities for control or influence, or assist members to deal with the effects of the uncoordinated decisions of other agencies and assemblies: ‘The dispersal of authority may generate more points of influence and more opportunities for participation, but it is also likely to offer less effective control and coordination.’233

DEMOCRATISING INTERNATIONAL INSTITUTIONS

Cosmopolitan democracy is an argument for the reallocation of political authority to ensure the participation of all those affected in processes of democratic will formation. It demands the recognition of new communities of fate and establishment of democratic institutions to ensure the legitimacy of global governance. A less radical approach is to apply democratic principles of representation and accountability to existing structures. The following sections examine arguments for applying the parliamentary principle of democracy to international organisations, specifically in relation to the UN, and for developing the idea of accountability of international organisations.

231

Held (n 220) at 34. 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. 232

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International Parliamentary Assemblies One mechanism for the democratisation of global politics would be the establishment of parliamentary-type institutions. At the domestic level, national parliaments legislature within a constitutional framework; hold the executive to account; provide a forum for democratic debate; and, in parliamentary democracies, provide an expression of the ‘will of the people’ leading to the establishment of an executive government. Where international organisations (and other non-state actors) exercise a regulatory function, the parliamentary principle associated with the practice of democracy suggests a requirement to establish a directly elected assembly that would both adopt international law norms and hold the regulatory power-wielders to account. Robert Dahl is the best known proponent of the view that democratic legitimacy for international organisations requires the establishment of political bodies to provide individuals with opportunities for political participation and mechanisms 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 bureaucracies.234 In the fragmented world of law, the responsibility for global regulation is divided between some 250 international organisations and institutions that differ in the scale and importance of their responsibilities. Forty five have parliamentary assemblies, with representation often reflecting the size of population of the relevant Member State. Anne Peters argues that the most powerful international organisations and institutions should be ‘parliamentarised’, although she counsels against any view that global parliamentary assemblies can provide effective political oversight: their importance lies in opening up international organisations to greater transparency and public scrutiny, contestation and debate, and in promoting ‘political dialogue at the level of [domestic] parliaments, political parties, and civil society’.235 Examples of international parliamentary assemblies include236 the Organization for Security and Co-operation in Europe, the Council of Europe, and North Atlantic Treaty Organization. 234 Robert Dahl, ‘Can International Organizations be Democratic? A Skeptic’s View’ in Ian Shapiro and Casiano Hacker-Cordón (eds), Democracy’s Edges (Cambridge, Cambridge University Press, 1999) 19, 31. 235 Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009) 324. See also Stefan Marschall, Transnationale Repräsentation in Parlamentarischen Versammlungen: Demokratie und Parlamentarismus Jenseits des Nationalstaates (Baden-Baden, Nomos, 2005). 236 There have also been proposals to ‘democratise’ the World Trade Organization through the introduction of a standing Parliamentary Assembly: Gregory Shaffer, ‘Parliamentary Oversight of WTO Rule-Making: the Political, Normative, and Practical Contexts’ (2004) 7 Journal of International Economic Law 629, 639.

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66 The Democratic Deficit in Global Governance A notable development is the Pan-African Parliament, established under the Constitutive Act of the African Union ‘to ensure the full participation of African peoples in the development and economic integration of the continent’.237 The Pan-African Parliament, which held its inaugural session in March 2004, is described as the ‘legislative body of the African Union’. At present it exercises an oversight function, and has advisory and consultative powers, although the ultimate aim is to establish the Pan-African Parliament as an institution with full legislative powers, whose members are elected by universal adult suffrage. Presently, the 265 representatives are elected by the legislatures of the 53 African Union states and do not enjoy a direct electoral mandate. With the exception of the Parliament of the European Union, no international parliamentary assembly permits direct elections. This may be significant, as the European Court of Justice has stated that the existence of the European Parliament reflects ‘the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly’.238 The ideal of parliamentary democracy provides the dominant paradigm in debates on the European Union’s putative democratic deficit,239 with complaints focusing on the unwieldy size of the European Parliament, the disproportionate representation of smaller Member States, internal language barriers, popular and media disinterest, and the central role of the European Council and Commission in decision-making and law-making.240 There is also the problem of a lack of a clear ‘European’ identity amongst the citizens of the European Union, with political debates (and democratic will-formation) remaining resolutely focused on domestic politics (even in relation to issues within the competence of the European Union). A comparative analysis of the roles and responsibilities of the various parliamentary assemblies in the system of global governance is beyond the 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). 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 Supranationalism: the Example of the European Community’ (1999) 99 Columbia Law Review 628, 674. Lindseth concludes that the Parliament of the European Union lacks democratic legitimacy for the very reason that it is not exercising powers delegated to it by a sovereign people: ‘In the absence of a European demos, the Community legislative process might still be legitimate, but only in an administrative sense, in that it is exercising authority within its sphere of competence lawfully delegated by the Member States’: ibid at 675. Mattias Kumm argues that without meaningful electoral politics, the attitude of citizens toward European institutions will continue to oscillate between disinterest, fickle support, and resentment: Mattias Kumm, ‘Why Europeans Will Not Embrace Constitutional Patriotism’ (2008) 6 International Journal of Constitutional Law 117. 238

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international parliamentary assemblies functions in a way that is analogous to domestic legislatures in constitutional democracies, and there is no direct (electoral) relationship between any international organisation and those (formally) subject to its authority. Nanz and Steffek conclude that a democratic deficit exists in global governance ‘because international policy elites are not (elected) representatives of the people’.241 Citizens do not select international policy elites, and they cannot sanction them for poor or deficient performance, or remove them from office through electoral defeat. Daniel Weinstock argues that elections and democratic representation ‘are contingently, rather than conceptually, related to the foundational normative commitments of democracy’. Individuals have an interest in avoiding domination, ie situations in which ‘others have arbitrary power over them’. Elections ensure that citizens have control over power-wielders, as they require that political elites are ‘in some degree responsive to the interests of those for whom they legislate’.242 There is also an instrumental value in electoral politics, as direct participation provides an incentive for citizens to maintain an interest in global politics,243 and the debate that precedes the act of voting is often an essential element in the process of democratic will-formation, as preferences are often shaped during an electoral campaign.244 The absence of competitive elections to international assemblies impugns the political legitimacy of global regulatory norms – no elections, no democracy. A UN Parliamentary Assembly The previous section examined arguments seeking to establish a general principle that (at least the most important) international organisations should possess a directly elected representative assembly to legitimate regulatory authority. A particular focus in the literature is the ways in which the parliamentary principle might be applied to the UN. Concrete proposals include Thomas Franck’s second chamber at the level of the UN General Assembly to represent individuals elected on the basis on universal suffrage, and Richard Falk’s Global Peoples Assembly, which would emerge as a de facto legislature in the global system.245 In Fairness 241 Patrizia Nanz and Jens Steffek, ‘Global Governance, Participation and the Public Sphere’ (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 make international relations and decision-making more transparent. The idea is to create a

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68 The Democratic Deficit in Global Governance in International Law and Institutions, Franck introduces the idea of a second chamber, but does not provide any detail.246 Elsewhere, he observes that a forum that represented persons rather than governments would establish ‘some correlation between population and representation’. With implicit reference to the largely unremarked ‘China problem’ (a requirement of strict proportionality in representation would require that almost one in five seats in any global parliament be allocated to citizens of the People’s Republic of China), Franck concludes that it might be necessary to prescribe a maximum (and minimum) number of representatives per state.247 The proposal is for a more accurate reflection of the plurality of opinions within states, and not the plurality of opinions in world society. Following the US federal system, which provides for equal representation to each of the 50 states in the Senate (with two members for each state) and proportionate representation in the House of Representatives (giving, for example, California 53 members and Alaska one), Franck proposes a bicameral General Assembly: one chamber organised along the Westphalian model of one state, one vote, the other directly elected according to the principle of universal suffrage, with the number of seats allocated to each state corresponding generally to population. General Assembly resolutions might then be adopted on the basis of a simple majority in both chambers.248 The initiative would have the effect of energising world public opinion and creating possibilities for direct participation in global politics, with corresponding positive effects on domestic democratic politics. In the longer term, the directly elected chamber might assume the powers of the ‘traditional state-sponsored “upper house”.’249 Franck does not specify what these powers might be, although in most cases the legislative authority of the upper house is subservient to that of the lower, often on the basis that the lower house represents a clearer and more direct expression of the popular will. Anne Peters argues that a UN Parliamentary Assembly could be established as a subsidiary organ to the General Assembly under art 22 of the UN Charter.250 Deputies could be appointed from the membership of

two-way direct line of communication between the UN and the national parliaments that are 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, Clarendon Press, 1995) 483. 247 Thomas M Franck, ‘Fairness in Fairness Discourse’ in ‘Citizens in the International Realm: 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.’

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national parliaments and hold a dual mandate.251 Delegates would reflect the political composition of national parliaments, including members of the opposition, and thus reflect more accurately the plurality of the dominant political perspectives within the state. Significant groups would continue to be unrepresented, notably the 370 million indigenous peoples of the world, who are not generally represented in national parliaments. Representation in the UN Parliamentary Assembly would be ‘roughly proportionate to the population of the UN member states, with minority protection for small states’. In an assembly of 560 members, the People’s Republic of China would have 31 seats, with states with populations of under one million being guaranteed one seat, although it is not clear what influence they might have on that basis, or how the diminution of voice and vote in comparison with the UN General Assembly might provide for a more ‘democratic’ UN. The UN Parliamentary Assembly would exist alongside the UN General Assembly, and might subsequently allow for direct elections. In this ‘global federalist scheme, the General Assembly as the member states’ chamber would become a “second” chamber’. The Parliamentary Assembly would not initially enjoy law-making powers or ability to control the government (whatever that might mean in the context of the UN), although it might share the budgetary power with the General Assembly under art 17 of the Charter. The Assembly would ensure that citizens had a voice, if not a vote, at a global level. The functions of the Parliamentary Assembly might include a right of notice and comment on important General Assembly resolutions prior to a vote, and a right to propose measures that might be adopted by other UN bodies, including the General Assembly. Its most important function would lie ‘in the parliamentary function of socialization and mediation and in the strengthening of national parliaments[,] [as it] would inform national parliaments about UN and world policies and vice versa’.252 Richard Falk observes that democracy is now generally accepted as the only legitimate form of domestic government, ‘leaving the conspicuous lack of global democratic institutions as the world’s greatest political

251 The use of the term ‘deputy’ as opposed to ‘representative’ is noteworthy. The OED defines a deputy as a person ‘appointed or nominated to act for another or others’: The Oxford English Dictionary. 2nd edn 1989. OED Online (Oxford, Oxford University Press, 2000). 252 Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009) 326. A more modest proposal is made by Paul Kennedy, who argues that the UN General Assembly should become a more effective deliberative body and thus increase its influence over other UN organs: Paul Kennedy, The Parliament of Man: the United Nations and the Quest for World Government (London, Allen Lane, 2006) 275.

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70 The Democratic Deficit in Global Governance anomaly’.253 The solution is an ‘internationally elected global assembly’, a Global Peoples Assembly (GPA), which would challenge the existing order and ‘undermine the claim that states are bound only by statecreated international law, and then only when they give their consent’.254 While the consent of states confers a degree of legitimacy on international institutions, the idea that is ‘the exclusive means of legitimizing transnational institutions is anachronistic’. The idea of sovereignty must reconcile itself with the modern commitment to democracy and human rights.255 States derive their sovereign authority from the people, and, because citizens are the ultimate source of political authority, they can bypass their ‘sovereign intermediaries’ to create an international organisation with law-making powers. Citizens have the right ‘and perhaps responsibility to found their own [Global Peoples Assembly]’.256 Once established, the GPA would increasingly act as a ‘de facto legislature’ (whatever that might mean).257 Representatives to the GPA would be democratically elected, assuming the possibilities of democratic politics and rights of political participation in the electoral process. On this basis, the citizens of non-democracies ‘would have to go unrepresented, or possibly be represented by delegates selected in some other way’.258 Daniel Weinstock explains (rather patronisingly): ‘[j]ust as children and various categories of incompetent persons are represented within mature democracies by proxies, we can imagine a similar arrangement obtaining for the peoples of the world currently being governed undemocratically.’259 International parliamentary assemblies might provide a useful addition to the global institutional architecture where membership in the organisation is limited to states and ‘global’ citizenship defined in a derivative manner by reference to citizenship of a state. The establishment of a global Parliament or introduction of a range of parliamentary assemblies in relation to the most significant international organisations and institutions would not, however, ensure the democratisation of global governance through law. The establishment of a legislative assembly does not provide democratic legitimacy in the absence of a political community defined by the exercise of political authority through law. The principal advantages of international assemblies lie in their ability to ensure a representation of the plurality of dominant political opinions

253 Richard Falk, ‘On the Creation of a Global Peoples Assembly: Legitimacy and the Power 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.

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The Accountability Deficit

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within states, and to compensate to some extent for the democratic deficit created by any application of the principle of sovereign equality to the lawmaking processes of international organisations (allowing for the representative of a greater diversity of interests and perspectives). Lack of citizen engagement with global politics suggests that members of international assemblies should be (indirectly) elected by national parliaments, although engagement with an international electoral campaign might generate a degree of awareness and ownership by citizens over global policy-making in relation to a limited number of international organisations. The need to ensure that citizens are able to engage in democratic debates around global politics suggests that the application of the parliamentary principle must remain limited to international organisations that restrict membership to democratic states (to allow for citizen engagement with global politics at the domestic level, and free and fair (direct or indirect) elections to the international assembly). The most significant contribution of international assemblies to the democratisation of global society lies, though, in the potential to develop an institutional mechanism to monitor the governance activities of global regulators and provide a locus for informed democratic debate on the appropriateness (or otherwise) of global law norms, taking into account the interests of those represented in the deliberative body. The laws and policies adopted by such a body would not enjoy the same democratic legitimacy of a national Parliament, but the legislative acts of international assemblies would have a claim to epistemic authority, in terms of stating 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 concerned with the holding of free and fair elections to a representative assembly. Other aspects include open public debate, transparency, and the accountability of power-wielders to those affected by their actions. The idea of transparency also assumes a relationship of accountability: the transparency 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 offering information, and makes clear the relational character of transparency.260 A number of writers contend that the emphasis of reform should be on the accountability deficit in global governance. Gregory Schaffer argues that the normative legitimacy of a decision does not only depend on 260 Alexandru Grigorescu, ‘Transparency of Intergovernmental Organizations: the Roles of Member States, International Bureaucracies and Nongovernmental Organizations’ (2007) 51 International Studies Quarterly 625, 626–27.

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72 The Democratic Deficit in Global Governance whether it has been made by an elected official or assembly. If that were the case, decision-making in a democracy could not be delegated to bureaucracies, courts, or any other body. The legitimacy of a political institution should be evaluated in a broader sense, as concerning the relative accountability of decision-making processes to those affected by them: International institutions should not be judged against some ideal type of national democracy, but in terms as to whether they allocate decision-making authority in a manner that permits for a relatively less-biased representation of affected parties compared to other institutional alternatives.261

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

The Role of Experts The phenomenon known as globalisation has created a number of difficulties for the organisation of social, economic and political life that can (seemingly) only be dealt with through global regulation by international organisations and other non-state actors. The relocation of regulatory authority is seen to provide benefits that could not otherwise be achieved. Proponents of global regulatory responses argue that democratic legitimacy should not depend on competitive elections to select power-wielders, but on the establishment of accountable institutions that engage in problem-solving activities in accordance with the public interest. Kal Raustiala observes that international economic institutions may be legitimate, because they are instrumentally useful: ‘if state legitimacy is partly grounded in effectiveness, effective international economic institutions may be legitimate – because they are instrumentally useful – even though they lack accountability in the usual sense’.262 International organisations may make a claim to output-legitimacy, through the positive effects they have for the peoples of the world, even though they lack input-legitimacy, given the absence of citizen participation and control.263 The distinction between ‘output-’ and ‘input-legitimacy’ is made by Fritz Scharpf, who observes that, in a democracy, the exercise of coercive 261 Gregory Shaffer, ‘Parliamentary Oversight of WTO Rule-Making: the Political, Normative, 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, Strong Public, Global Constitutionalism’ (2002) 31 Millennium: Journal of International Studies 675, 688.

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political authority is legitimised as a manifestation of collective selfdetermination: government by the people (input-orientated legitimisation, often defined in terms of participation and/or consensus) and government for the people (output-orientated legitimisation). Legitimacy cannot be based on input-orientated, ie participatory, notions of democracy alone, given the problem of self-interested majority-rule. Political choices are legitimate only to the extent that they ‘promote the common welfare of the constituency in question’.264 The ‘welfare of all’ must be an argument in the preference function of each citizen. Members of a political community must recognise that they are part of the same community of fate, and have regard to the interests and perspectives of co-members, who must in turn have regard to their interests and perspectives. This requires a degree of trust and solidarity, which, Scharpf argues, 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 the majority of states (excepting those with significant intra-state conflict) does not exist in the case of supranational organisations.266 In relation to the European Union, the lack of a pre-existing sense of collective identity, of Europe-wide policy discourses, and absence of Europe-wide institutional infrastructure to ensure the accountability of power-wielders to a European constituency means that there is no reason to assume solidarity, and no reason to favour direct over representative forms of democracy: citizens may legitimately be represented by states in law-making fora.267

264 Fritz Scharpf, Governing in Europe: Effective and Democratic? (Oxford, Oxford University 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 political self-determination is only possible in the context of the (largely) homogenous nation-state is familiar to persons belonging to minorities and indigenous peoples, as dominant or titular majorities often claim special privileges in the name of national self-determination. The reality (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 of Western Europe where political borders largely resulted from the processes of decolonisation, not assertions of national self-determination). It is certainly the case that citizens feel and 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 other relationships in world society. The mistake is to assume that the sense of trust and solidarity flows from the fact that co-members are not ‘others’, ie that they are like us, and not from a commitment to the constitutional order. 266 ibid at 9. 267 ibid at 13.

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74 The Democratic Deficit in Global Governance Democratic self-determination requires a commitment to democratic law-making and democratic politics focused on the welfare of all. Government for the people (‘output-legitimacy’) derives its legitimacy from a capacity to solve problems requiring collective solutions that could not be solved through individual action, market exchange or voluntary cooperation in civil society. It pre-supposes the existence of a constituency connected by the perception of a range of common interests that justifies the institutional arrangements for collective action. There may be ‘multiple, nested or overlapping, collective identities defined by specific classes of problem-solving concerns’. Constituencies need not claim the exclusive, or even primary, loyalty of their members; they may be both territorial and sectoral.268 Government for the people is interest based rather than identity based.269 Legitimacy is provided by legal norms and institutional arrangements that hinder the abuse of public power, and facilitate effective problem solving. This does not imply some form of benevolent global governance, only that ‘all interests should be considered in the definition of the public interests, and that the costs and benefits of measures serving the public interest should be allocated according to plausible norms of distributive justice’.270 Scharpf concludes that government for the people ‘will favour policy choices that can be justified in terms of consensual notions of the public interest’.271 Globalisation has resulted in social, economic and political life becoming both more complex and more uncertain. In conditions of scientific and social complexity, the idea of good governance might suggest that the force of better expert argument (government for the people) developed in terms of consensual notions of the public interest might be preferred to (ill-informed) government by the people. The complex problems of globalisation require technical solutions that only expert deliberations and decision-making can provide. Informed, consensusseeking deliberations in expert committees can be seen as an essential legitimating device for the exercise of political authority by non-state actors. Peter Haas has developed the idea of governance by ‘epistemic communities’. Technological uncertainties and the complexities of global governance have made international policy coordination ‘not only increasingly necessary but also increasingly difficult’.272 This leads to an increasing reliance on networks of policy based experts, or epistemic

268

ibid at 11. ibid at 12. ibid at 13. 271 ibid at 188. 272 Peter Haas, ‘Introduction: Epistemic Communities and International Policy Co-ordination’ (1992) 46 International Organization 1, 1. 269 270

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communities, that both frame problems of global governance and articulate solutions, and play an important role in constructing knowledge and identities in the international system.273 An epistemic community is a network of professionals with recognised expertise in a particular domain, ‘and an authoritative claim to policy relevant knowledge within that domain or issue area’. The professional standing of members of the epistemic community and their reputation for expertise is highly valued by society and political elites, enabling them to influence social and political discourses and policy outcomes. The community will possess a common set of normative principles that provide the rationale for the social action of community members; shared causal beliefs derived from an analysis of the problem; shared notions of validity, ie for validating knowledge in their domain of expertise; and a common policy enterprise to which professional competence is directed, ‘presumable out of the conviction that human welfare will be enhanced as a consequences’.274 One example would be a sub-set of economists with a particular ideological perspective (economists as a whole constitute a ‘profession’).275 The paradigm case in global governance would be those Chicago freemarket economists influenced by Milton Friedman. The move from inter-state politics to a reliance on expert knowledge in global governance, and on knowledge and ‘truths’ constructed by experts, replicates the shift at the domestic level from the democratic state to the so-called administrative state, in which significant aspects of regulatory authority are delegated by representative bodies to administrative agencies. Many policy decisions in a constitutional democracy are made by non-representative institutions, such as bureaucracies, courts and quasi-public bodies that are neither elected by, not directly accountable to, the people. Giandomenico Majone argues that the delegation of policy-making results in better, ‘less political’, policy-making, given that elected governments, with one eye on forthcoming elections, are unlikely to adopt and maintain policies in the face of (short-term) antagonistic public opinion.276 As the government/legislature cannot bind its successors, public policy is always vulnerable to reform, and therefore ‘lack[s] credibility’.277 The relatively short period between elections militates against the government adopting the right policy-position on issues requiring long-term solutions. Delegation to independent institutions allows for credible policy positions to be established that are likely to be

273

ibid at 2. ibid at 3. 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. 274 275

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76 The Democratic Deficit in Global Governance sustained in the face of hostile public opinion, and may consequently be relied on by (economic) actors. The substantive legitimacy of administrative bodies depends on the ability to deliver ‘good outcomes’ in accordance with relatively precise objectives established by institutions accountable to the people.278 Procedural legitimacy is provided by ‘professional discretion, policy consistency, fairness [and] independence of judgement’.279 The argument suggests that it is possible to make a distinction between ‘political’ issues, which should be decided by the people or their representatives, and ‘administrative’ or ‘non-political’ problems, which should rely on the ability of non-majoritarian institutions to identify the correct policy position by reference to agreed knowledge. (The delegation of interest rate policy to the central bank is the paradigm example.) Politicians decide on political issues, whilst bureaucrats administer technocratic problems. Barnett and Finnemore argue that we should regard international organisations as a form of bureaucracy, an institution that enjoys a distinctive social form of authority based on the ability to make impersonal rules.280 Modern bureaucracies share four central features: a hierarchy of officials within the bureaucracy; continuity of staff and full-time salary structures; impersonality, ie the work is undertaken in accordance with prescribed rules and operating procedures that eliminate arbitrary and political influences; and expertise, in that bureaucrats are selected according 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 social construction: ‘It cannot be understood and, indeed, does not exist apart from the social relations that constitute and legitimate it.’283 Whilst authority often concerns the issuing of instructions or commands, international organisations cannot simply assert: ‘Do what we say’. To be effective, they must demonstrate that they ‘serve some valued and legitimate social purpose, and, further, they must be seen to serve that purpose in an impartial and technocratic way using their impersonal rules’. The authority of international organisations lies in their ability to present themselves as ‘not exercising power but instead serving others’.284 The instrumental character of a bureaucracy is ‘its need to serve others’. Rational-legal authority is not sufficient by itself to provide

278

ibid at 294. 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. 279

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authority for international organisations (as bureaucracies), they must demonstrate that they ‘serve some social purpose’.285 The authority of international organisations is constituted by the delegation of authority from states; the moral authority of international organisations, ie their claim to represent the values of the international community against ‘self-seeking’ states; and their expert authority.286 The idea of expertise is central to the ability of international organisations to ‘dominate and control’. The argument, in the words of Zygmunt Bauman, is that ‘those who possess [expertise] ought to be in charge of doing things’.287 In conditions of complexity and uncertainty, a ‘community’ of experts can, through rational and reasoned deliberation, establish a particular version of the truth about world society, but that conception of truth cannot 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 knowledge is only true for this point in time, until shown to be untrue, or subject to some necessary re-interpretation (consider the ways in which the ‘truths’ of the Newtonian world have adapted to those of Einstein and quantum physicists). In the social world, ‘truths’ are only true to the extent that they are accepted as being true. Truth is always contingent and contestable. In democratic societies, claims to epistemic authority (to be demonstrating a ‘truth’) are subject to the political will of the people and regulation by democratic laws (in accordance with the principles of rationality and public reason). Technocrats can only inform political deliberations; they cannot determine (political) outcomes.288 In conditions of reasonable disagreement and imperfect knowledge there are no ‘non-political’ issues. Regulatory norms must always remain ultimately a question 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 (government by experts) in global governance is logically incompatible with democracy (government by the people). In domestic settings, public pressure can be brought to bear on non-representative (ie administrative) bodies to ensure that they remain

285

ibid at 22. 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 to recognise and respond to that ‘truth’ (in the absence of other compelling truth-claims) amounts to a failure of public reason. 286

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78 The Democratic Deficit in Global Governance broadly responsible and responsive to the people.289 Regulatory norms that are not accepted by a majority are unlikely to be maintained in the face of antagonistic public opinion. Administrative policies are legitimate, not because they are the ‘right’ polities, but because they are the right policies for the particular community. The question as to whether policy positions are ‘right’, ‘just’, or ‘correct’ is ultimately determined by the members of the political community. Democratic laws and regulations reflect (in ideal circumstances) an expression of will-formation by the people. Jürgen Habermas observes the tendency to bureaucratisation in the administration of the state and increased role for highly specialised experts removed from the supervision of ‘rationally debating bodies’.290 Administrative law is, however, a lesser, less legitimate, form of law that is subject to democratically enacted law and the priority of laws legitimated in democratic procedures: ‘administrative power may not be used to intervene in, or substitute for, processes of legislation’.291 All laws and regulations in the (democratic) state remain subject to the will of the people, expressed in the constitutional settlement and political laws. Experience in domestic settings suggests that technocratic expertise and compliance with constitutional and political law norms are insufficient in themselves in terms of providing democratic legitimacy for administrative agencies. Increased political legitimacy is achieved through enhanced accountability mechanisms such as judicial review, transparency, and participation rights.292 Further, traditional forms of hierarchical supervision by elected representatives remain of paramount importance in legitimating the exercise of political authority by administrative bodies. Most importantly, domestic administrators are seen to be embedded within a shared legal and political tradition, with the administrative agency exercising government functions for the people, aimed at the welfare of all, ‘and, presumably, a shared commitment to the ultimate national well-being’.293 In the case of supra-national organisations, there

289 Majone argues that procedural legitimacy for domestic regulatory bodies requires that they are created by democratic laws that define the authority and objectives of the agency; that regulators are appointed by, and responsible to, elected officials; that agencies follow clearly defined decision-making procedures, with rights of participation for affected persons; and that decisions are justified, ‘and especially that they are open to judicial review, 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 a Category 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 Law and Democracy, trans by William Rehg (Oxford, Polity, 1996) 173. 292 Peter Lindseth, ‘Democratic Legitimacy and the Administrative Character of Supranationalism: the Example of the European Community’ (1999) 99 Columbia Law Review 628, 646. 293 ibid at 648.

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is no ‘democratically-legitimate hierarchical superior’,294 and no sense that the regulatory activities of the organisation are directed to the well-being of the people of any particular state (in fact the opposite). Peter Lindseth makes the point that all international organisations share a similar telos: to overcome a coordination or collective action problem.295 A supranational administration must balance the sovereign interests of member 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 political principal in the system, and it is to this abstraction that supranational agents are supposed to owe their loyalty.’ It follows that any presumption in favour of a particular member (or members), ‘even if justified on democratic legitimacy grounds, is “constitutionally” inappropriate’.296 Administrators in international organisations owe their loyalty to the international regime, which seeks to overcome a coordination or collective action problem. By regarding the collective membership as a whole as the political principal, the logic of supranational delegation ignores the absence of a ‘democratically-legitimate political principal capable of expressing or symbolizing the sovereignty of a self-governing people’. What remains is a ‘technocratic body… with an attenuated relationship to the perceived ultimate source of the agency’s normative powers: the participating states severally as representatives of their “sovereign” peoples.’297 The Accountability of International Organisations Accountability is an important aspect of democracy: ‘in a wellfunctioning democracy those who are ultimately responsible for policy should be directly accountable to those who are affected by it’.298 Accountability may be both retrospective and prospective: retrospective elements include reporting requirements and complaints procedures; prospective elements include participation in, and transparency of, decision-making processes that take into account the interests of the various stakeholders.299 The idea of accountability applies both to the unlawful (ultra vires) and illegitimate exercise of political authority 294

ibid at 634–35. 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 Law Journal 1987, 1991. 295

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80 The Democratic Deficit in Global Governance (often expressed in public law terms), and the exercise of authority that is deemed to be (politically) unwise or unjust (with the possibility of political sanctions such as enforced resignations). Grant and Keohane observe that the idea of accountability implies that one or more actors have the right to hold other actors to a set of standards; to judge whether they have fulfilled their responsibilities in light of those standards; and impose sanctions if they determine that these responsibilities have not been met. The idea presupposes the acceptance of roles and a relationship between those who exercise power and those who hold them to account, and of the legitimacy of the operative standards for accountability.300 An accountability relationship is one in which an individual, group or other entity makes demands on an agent to report on their activities, and has the ability to impose costs on the agent.301 Barnett and Finnemore observe that accountability matters because the absence of accountability implies that those with power ‘have the capacity to act without regard for those who authorize their actions and for those whose lives are affected’.302 It is the idea of accountability that separates the exercise of power from domination.303 A report by the International Law Association on Accountability of International Organizations concludes that accountability is linked to the authority and power of an international organisation: ‘Power entails accountability, that is the duty to account for its exercise.’304 The report argues that international organisations should follow the principle of stating reasons for decisions or a particular course of action.305 In terms of standards of accountability, Michael Bothe makes the point that under public international law ‘international organizations are

300 Ruth Grant and Robert Keohane, ‘Accountability and Abuses of Power in World Politics’ (2005) 99 American Political Science Review 29, 29. 301 Robert Keohane, ‘Global Governance and Democratic Accountability’ in David Held and Mathias Koenig-Archibugi (eds), Taming Globalization: Frontiers of Governance (Cambridge, Polity, 2003) 130, 139. 302 Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in 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: accountability for the fulfilment of functions established in constituent instruments; tortious liability for injurious consequences arising out of acts or omissions not involving a breach of any rule of international and/or institutional law; and responsibility arising out of acts or omissions 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 and most effective way of improving transparency and accountability is to require regulators to give reasons for their decisions. This would in turn activate a number of other mechanisms for controlling regulatory discretion such as judicial review, public participation and debate, peer review, policy analysis to justify regulatory policies and so on’: Giandomenico Majone, Regulating Europe (London, Routledge, 1996) 292.

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sealed off from legal challenges put forward by individuals: no remedy is provided by the organizations, and they are immune from legal process in the courts of states’. To the extent that this is not deemed acceptable, three possibilities emerge: some form of waiver of immunity by the international organisation; arbitration; or some judicial or equivalent institution within the international organisation.306 In addition to the possibility of public remedies, a number of international organisations have established bodies to hold the organisation accountable for the design and implementation of policy. The World Bank Inspection Panel provides a useful model in this respect.307 In the absence of formal mechanisms, most international organisations have introduced informal mechanisms to engage with external actors, including international civil society organisations and those potentially affected by policy decisions. The website of the IMF claims that the organisation ‘is held accountable by multiple stakeholders, including by its own internal watchdog, member governments, the media, civil society, and academia’. The internal watchdog 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 the work of the Fund, and support institutional governance and oversight’. The IMF has also enhanced transparency through engagement with the media, and established an ‘IMF and Civil Society’ webpage.308 An important contribution in the literature has focused on the application of domestic administrative law principles to global governance institutions, developed under the auspices of the Global Administrative Law Project based in the Institute for International Law and Justice, New York University School of Law. Proponents include Nico Krisch and Benedict Kingsbury, who argue for the recognition of a ‘global administrative space’ in which administrative functions are performed ‘in often complex interplays between officials and institutions on different levels’.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 Criminal Justice 541, 542. 307 Daniel Bradlow and Claudio Grossman, ‘Limited Mandates and Intertwined Problems: a New Challenge for the World Bank and the IMF’ (1995) 17 Human Rights Quarterly 411, 431–32. See also Daniel Bradlow and Sabine Schlemer-Schulte, ‘The World Bank’s Inspection Panel: a Constructive Step in the Transformation of the International Legal Order’ (1994) 54 ZaöRV (Heidelberg Journal of International Law) 392; also Daniel Bradlow, ‘Private Complainants and International Organizations: a Comparative Study of the Independent Inspection Mechanisms in International Financial Institutions’ (2005) 36 Georgetown Journal 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 International Law 1, 1.

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82 The Democratic Deficit in Global Governance possibility of recognising and applying certain common (‘global administrative law’) principles: transparency; opportunities for participation in decision-making processes; access to information; reasoned decisionmaking, including principles of non-discrimination and nonarbitrariness; and mechanisms of accountability, and effective remedies, including the possibility of informal and formal (judicial) review of adopted policies and regulations.310 The idea of global administrative law is concerned with the mechanisms, principles and practices that promote the accountability of global administrative bodies, and the extent to which a global governance actor is required to account to others for the exercise of authority. The idea of accountability includes both formal and informal mechanisms.311 Krisch accepts that the Global Administrative Law ‘project’ emphasises a liberal (or even libertarian) idea of the rule of law: Focusing on the accountability (and thus largely on constraints) of existing institutions may overemphasise the threat these institutions pose at the expense of more positive, liberal or republican visions that see them as forms and fora for realizing self-government or non-domination.312

In a democracy, the key accountability relationships are between citizens and the holders of public office, both elected and appointed. Citizens are entitled to hold those in power to account, ‘either as the source of that power (the delegation model), or as the body of persons affected by it (the participation model), or both’. Deficits in performance may lead to apologies, resignations, the payment of compensation, or the closure of the institution.313 The ability to sanction those in power for poor performance provides ‘a powerful incentive for responsible and, more importantly, responsive decision-making’. Decision-makers ‘have an incentive to respond effectively to the needs of the populace if they know they can be criticized and sanctioned by citizens’.314 The concept of accountability has expanded in recent times to include a sense of individual responsibility and concern for the public interest expected from public services; the institutional checks and balances by which democratic states seek to control the actions of the government, including both formal institutional mechanisms and informal ones; the linking of accountability with the 310 ibid at 2. See, also, Doreen Lustig and Benedict Kingsbury, ‘Displacement and Relocation from Protected Areas: International Law Perspectives on Rights, Risks and Resistance’ (2006) 4 Conservation and Society 404, 413. 311 Nico Krisch, ‘Global Administrative Law and the Constitutional Ambition’ LSE Legal Studies 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.

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extent to which governments pursue the wishes or needs of their citizens (accountability as ‘responsiveness’); and the idea of accountability as public discussions between citizens.315 Increasingly, accountability is seen as a dialogical activity, requiring officials to ‘answer, explain and justify, while those holding them to account engage in questioning, assessing and criticising’.316 The simplest method of improving accountability is to require an institution to demonstrate that it has taken into account the impact of decisions on those affected by them, and to provide public justification for all policy positions. The distinction between government for the people and government by the people is important in highlighting the need for democratic politics to take into account the welfare of all those subject to the law. Where it is not meaningful to speak about input-legitimacy (participatory notions of government by the people), the requirement remains for regulators to demonstrate that the welfare of all is the principal focus in the formation of policy. The contributions of expert opinion (validated within the relevant profession) is essential in developing effective policy, but in conditions of complexity, uncertainty and disagreement amongst reasonable persons, ‘right’ policy must be determined through democratic practices. Democratic laws and the idea of political justice remained tied to some concept of ‘community’ (or ‘demos’). Whilst we might accept their instrumental value in resolving problems of coordination and collective action problems, it is not meaningful to refer to the democratic legitimacy of global regulation by technocracies exercising governance functions for the people. The instrumental value of accountability lies in its ability to promote the development of better policy outcomes. The development of a global politics of the welfare of ‘all subjected’, transparent and participatory methods of policy-making, and mechanisms for the sanctioning of poor performance by global regulators do not provide democratic legitimacy for the exercise of political authority through (international) law, but they should provide for better policy outcomes.

GLOBAL DISCOURSES: THE ROLE OF INTERNATIONAL CIVIL SOCIETY

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

315 Richard Mulgan, ‘“Accountability”: an Ever-Expanding Concept’ (2000) 78 Public Administration 555, 556. 316 ibid at 569.

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84 The Democratic Deficit in Global Governance ideology of free trade and free markets (‘globalism’),317 and (less critically) respect for liberal human rights norms. Opposing voices are regarded as being somehow backward, deviant, or unenlightened. The democratic deficit is not the result of an absence of elections, but a lack of contestation around and about the dominant discourse, and its implications for policy-making by international organisations. Michael Goodhart observes, for example, that one of the greatest failures of Western democratic thinking about globalisation ‘has been its inability (or unwillingness) to address the rather awkward problem of inequalities in the global distribution of and entitlement to wealth and social justice’.318 The point 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 distribution is to the advantage of the least favoured), with the absence of any principle of distributive justice in the second original position imagined in The Law of Peoples. Institutional reform of the UN (the introduction of a World Parliament, for example) would not change the way that global elites think about the issue of global poverty. Margaret Moore argues that the democratisation of global governance requires the opening of spaces for political contestation in which international non-governmental organisations and other voices can provide a counterweight to the position of international institutions.319 According to John Dryzek, the ‘real power of transnational civil society… is communicative power’, ie the ability to ‘change the terms of discourse’.320 To the extent that global law norms reflect dominant discourses, the possibility arises for international NGOs and other civil society actors to influence international law by influencing the terms of the discourse.321 A notable contribution was the campaign for the introduction of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-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, Harvard University Press, 2000). 318 Michael Goodhart, ‘Democracy, Globalization, and the Problem of the State’ (2001) 33 Polity 527, 541. 319 Margaret Moore, ‘Globalization and Democratization: Institutional Design for Global Institutions’ (2006) 37 Journal of Social Philosophy 21, 21. 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 concluded that ‘the opinion of civil society… cannot be completely discounted in the formation of customary international law today’: Dissenting Opinion of Judge Van Den Wyngaert, Arrest Warrant 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 of Anti-Personnel Mines and on their Destruction 2056 UNTS 211.

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acknowledged the increasing influence of civil society actors in shaping global policy in areas such as land mines, debt cancellation and environmental protection. The Bank uses the term civil society to refer to ‘the wide array of non-governmental and not-for-profit organizations that have a presence in public life, expressing the interests and values of their members or others, based on ethical, cultural, political, scientific, religious or philanthropic considerations’. These include international NGOs, trades unions, indigenous groups, charitable organisations, faithbased organisations, professional associations, and others.323 Jan Aart Scholte observes that civil society engagement of ‘is now part of the daily fare of [global] politics.’324 Each UN global summit, at Beijing, Cairo, Johannesburg, etc, has included a parallel civil society forum,325 and most international organisations have devised mechanisms to engage with civil society actors, often through elaborate websites. International NGOs and other civil society actors may contribute to accountable global governance in a number of ways: they can encourage and enable transparency, in particular effective transparency, making sure that information is understood by those affected by global governance activities; they can participate in policy monitoring and review, undertaking ‘watchdog and evaluation activities’ to ensure that international institutions are complying with their constitutive instruments and stated policy positions; and can assist those who suffer the deleterious consequences of global governance activities in seeking redress, and consequently in establishing formal accountability mechanisms for monitoring and control.326 The participation of international nongovernmental organisations and other civil society actors is also an important element in any attempt to ‘democratise’ global governance, as they can both inform democratic debates, and link international institutions to public deliberation, in particular with affected and marginalised individuals and communities. Increasingly it is argued that the focus for the democratisation of global governance should be on the role of non-state actors, and that international NGOs should have a greater say in international law-making in order to make ‘transnational governance more legitimate’.327 The argument does not hold: the participation of international NGOs does not

323

www.worldbank.org/ 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: the Democratic 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 324

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86 The Democratic Deficit in Global Governance legitimate the exercise of global regulatory functions. First, it is not necessarily the case that international NGOs are legitimate actors.328 Secondly, international NGOs are required to undertake a function (in legitimating the exercise of political authority) for which they were not constituted. The aim of civil society actors is to influence debate. They are often ‘single-issue political agents’, not required to ‘see how the issues that they militate for fit into a broader policy agenda.’329 Thirdly, international NGOs must demonstrate a moral claim of a right to participate in global democratic politics. In domestic contexts, citizens have inherent rights of political participation, with NGOs representing the views and interests of citizens. It is not clear whom international NGOs and civil society actors ‘represent’, as opposed to claim to represent, as they are often not connected in any meaningful way to those persons whose interests they seek to advance. In many cases, international NGOs represent the perspectives, if not necessarily the interests, of one part of the global population: the middle classes of democratic states in Europe and North America.330 The inclusion of other voices in global governance discourses is an important element in better, more inclusive decisionmaking processes, but it cannot be taken as authorising, or legitimating, the exercise of political authority by international organisations, or regarded as an expression of the will of the people(s) of the world, given the structural inequalities of power and influence.331 John Dryzek argues that global governance can be subject to democratic control where global publics are able to engage with, and exercise a form of control over, the dominant discourses in world society: ‘Democratic action in the international system is rooted in reflexive control of the prevailing balance of discourses.’332 A discourse involves a set of basic understandings, it is a ‘shared set of assumptions and capabilities embedded 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 for World Government (London, Allen Lane, 2006) ch 7. 328 The legitimacy of international NGOs is dependent on a number of factors: compliance with legal norms; compliance with an internal constitution and consistency between professed mission (values) and actual behaviour; representativeness, ie the claim to represent (and the consent of the represented); accountability, including appropriate governance structures and ‘downward’ accountability; and performance. The three key aspects emphasised 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 International 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 Anthony McGrew (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.

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sensory information that come their way into coherent wholes’.333 The exercise of governance functions requires both institutions and rules, and an understanding of the purpose of governance: ‘if formal rules constitute institutional hardware, then discourses constitute institutional software. In the international system, the hardware is not well developed, which means that the software becomes more important still.’334 Extant discourses include market liberalism and human rights. Dryzek refers to the idea of ‘transnational discursive democracy’, one that rests on the idea that ‘discourses and their interactions are consequential in producing international outcomes through their influence upon and constitution of actors. The democratic question then becomes how dispersed, critical, and competent influence can be established’. The idea of transnational democracy is not institutionalised in formal organisations and does not rely on electoral processes: ‘it is to be found in communicatively competent, decentralized control over the content and relative weight of globally consequential discourses, which in turn resonates with theories of deliberative democracy stressing communicative action in the public sphere’.335 The idea of a discourse provides a way of thinking about the world and making sense of different situations, providing the basic terms for ‘analysis, debate, agreement, and disagreement’. Discourses construct meaning and delimit what counts as legitimate knowledge.336 The idea of discursive democracy at the transnational level allows discourses to be influenced by the ‘reflective choices of human agents’.337 The democratisation of global governance does not depend on the existence of democratic institutions, but the ability of critical citizens to engage in reasoned deliberations in an attempt to persuade others. For many, Dryzek’s argument may appear too amorphous to satisfy the need for dominant and powerful international organisations to be brought under some form of accountability and democratic control. Arguments around the power of communicative action are perhaps more effectively addressed in the context of a specific organisation. Oren Perez makes this argument, drawing on the concept of ‘creativity’, which is distinguished from ‘dullness (or uniformity)’.338 There are two aspects of creativity: the possession of a flexible representational framework, ie the ability to perceive an issue through several different perspectives, and

333

ibid at 34. 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 Studies 25, 55. 334

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88 The Democratic Deficit in Global Governance the ability of a meaning system to break out of loops of all sorts. That is, the capacity of a “thinking system” to observe itself, to identify different patterns in its activities, and to be able to cut short those patterns which become repetitive, obsolete, or just uninteresting.339

In relation to a legal institution, the idea of creativity refers to the capacity to produce varied images of the same issue and possibility for the institution ‘to reinvent itself in a non-repetitive way’. One of the virtues of a creative transformation ‘is that it defies domination and exclusion. While it cannot guarantee that one’s voice will be heard, much less accepted, it can ensure that the law is not dominated by a single voice.’340 Reference to the idea of creativity may be used as a measure for evaluating the legitimacy of legal structures, with attempts to democratise international law ‘reinterpreted as an effort to ensure the creativity of transnational law’.341 In the context of the World Trade Organization, for example, the role of international NGOs is not to ‘augment the WTO democratic profile, but, rather, to build up its creativity by exposing it to a variety of cognitive and normative standpoints.’ NGOs with different political or philosophical agendas must be allowed to participate, and their arguments must receive a fair hearing.342 The legitimising power of the procedural mechanisms of inclusion ‘depends, ultimately, on their capacity to challenge the habitual patterns of the domains in which they operate’.343 Political legitimacy for the exercise of global regulatory functions can be seen in terms of an international organisation adopting the right policy in conditions in which it can be challenged (and challenges itself) to justify and reflect upon policy choices. Buchanan and Keohane argue that legitimate global governance institutions should possess three epistemic virtues: the ability to generate reliable information about coordination points; transparency in the narrow sense, because accountability is required to determine whether they are performing current functions efficiently and effectively; and transparency in the broad sense, understood in terms of providing sufficient information to permit inclusive, informed contestation of their current terms of accountability, and consequently accepting the possibility of revising the terms of accountability.344 The focus should be on the ‘epistemic-deliberative quality of the institution’, the extent to which it is able to provide the ‘information needed for grappling with normative disagreement and uncertainty 339

ibid at 56. 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 Institutions’ (2006) 20 Ethics and International Affairs 405, 429. 340

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Conclusion 89 concerning its proper functions’.345 There is a need for international governance actors to ‘offer public justifications of at least the more controversial and consequential institutional policies and . . . facilitate timely critical responses to them’.346 Public justification allows global publics to engage with decision-making processes, make a judgement as to whether the decision-maker has sought to act in the global public interest, 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 democratic states; should satisfy the substantive criteria of minimum moral acceptability, comparative benefit and institutional integrity; and should possess the epistemic virtues needed to make credible judgements about whether the three substantive criteria (minimal moral acceptability, comparative benefit, and institutional integrity) are satisfied, and ensure ongoing contestation about and critical revision of the goals of the institution, the terms of accountability, ‘and ultimately their role in a division of labor for the pursuit of global justice, through their interaction with effective external epistemic agents’.347 CONCLUSION

This chapter began by highlighting the different ways in which the idea of a democratic deficit has been expressed in the literature: the deficit that citizens experience through the activities of global regulators; the deficit that results in any move away from the principle of sovereign equality; and deficit that results from the exercise of global governance functions in accordance with a dominant (liberal) ideology. The complaints share an acceptance that (state) sovereignty is no longer the exclusive basis for the allocation of political authority, although there is no agreement on a single meta-principle of authority to replace the Westphalian settlement. There are, as Neil Walker observes, ‘various contending global metaprinciples of legal authority’.348 Each has both a ‘strong and exclusive application’ and a ‘moderate and contributory application’. There is the absolutist model that calls for the reaffirmation of state sovereignty and a return to anarchy in international relations, and a version of liberal internationalism, reflected in The Law of Peoples; there are arguments for recognising vertical frameworks of authority, the establishment of a world government in the strong version, and, in the moderate version, 345

ibid at 425–26 (emphasis in original). 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. 346

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90 The Democratic Deficit in Global Governance structures with some cosmopolitan norms and institutions; arguments for accepting the establishment of regional government and a divided world order, or some balance between regional conceptions of the international order; for recognising horizontal frameworks of authority, seeking to achieve integrity and the universalisability of norms across legal orders, or, in the moderate version, some coherence in conflict norms or ‘legal-field discursive’ ideas around international constitutional law or global administrative law, which in the strong version would recognise a particular legal field as providing the ‘master discourse of law’. Finally, there is the pluralist meta-principle, which recognises a ‘new anarchy of legal forms and relations’, or a ‘bottom up’ countervailing power model. Whilst the strong versions of each of the metaprinciples of authority are mutually incompatible, the moderate versions are not: what we see in their development is ‘either a degree of modesty of ambition and an awareness that they cannot provide a comprehensive metaprinciple or a degree of developmental openness to the other metaprinciples’.349 Arguments for the democratisation of world society demonstrate an acceptance that globalisation (including the globalisation of governance) has resulted in a loss for democracy, but no consensus on the nature of the loss, or necessary solution to the problématique of democracy following the globalisation and fragmentation of governance functions. The project of popular self-government appears more complex, with no possibility of returning to the Westphalian status quo ante, but no agreement on whether popular self-government is possible following the collapse of the Westphalian settlement, or what it might look like. There is no prospect of a global state, democratic or otherwise, and little to be gained in imagining the present system as a global federation. Nor can law be seen in terms of a binary divide between state and inter-state (public international) law; the democratisation of global governance cannot be achieved through the establishment of a peaceful confederation of democratic states. The globalisation and fragmentation of regulatory functions has resulted in a condition in which states, international organisations and other non-state actors assert political authority without any organising constitutional framework or organising principles.350 The anarchic 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. Phillip Cerny refers to the ‘neo-medieval’, ie pre-Westphalian, nature of the modern global governance, with its competing institutions with overlapping jurisdictions, contested legal boundaries, and multiple and fragmented loyalties: Phillip Cerny, ‘Globalization and the Erosion of Democracy’ (1999) 36 European Journal of Political Research 1, 21. 350

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Conclusion 91 stand in hierarchical relationship with the ‘sovereign’ state. The development has occurred at both the global level, with the exercise of regulatory authority 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 the need for highly focused cooperation and coordination efforts in various sectors of global society. Some of this sectoral regulation is undertaken by formally constituted international organisations, such as the International Whaling Commission, established by the International Convention for the Regulation of Whaling 1946,351 but there is also a role for non-state actors such as the Internet Corporation for Assigned Names and Numbers (ICANN), a not-for-profit private California company formed at the behest of the Government of the United States to control internet domain name policy. The validity of international law is no longer a question of sovereign will and we cannot be certain that all forms of global law will be under the democratic control of citizens, or that power-wielders will be accountable to citizens, either indirectly through the participation of states in international organisations, or through direct lines of accountability between non-state actors and those affected by their regulatory activities. Any account of the democratisation of global governance must account for both the democratic legitimacy of traditional forms of state and international law, and new forms of global governance by non-state actors — and for the ways in which these legal systems interact with each other. In circumstances in which the idea of politically decidable issues is significantly affected by the processes of globalisation and the globalisation of governance, we need to radically rethink the understanding of democracy and democratic politics, and the authority of international law.

351

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

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2 Democracy Within and Beyond the State

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OMPLAINTS THAT THERE is a democratic deficit in international law follow the globalisation of governance, and exercise of administrative and legislative functions beyond the state. When, as in the past, the international law system was concerned principally with relations between sovereigns, it made little sense to talk or worry about a democratic deficit; increasingly, however, international law norms regulate aspects of social, economic and political life that were previously within the domaine réservé of states, with little, if any, input from those subject to the norms. The loss of political control at the domestic level, where democratic institutions and practices legitimise the exercise of government power, has not been accompanied by any compensatory moves to democratise international organisations and institutions. From the perspective of domestic societies, the removal of policy issues from the domain of democratic politics creates a deficit in the practice of democracy that is difficult to ignore. International law limits the possibilities of political self-determination with no coherent justification emerging for the relocation of policy-making prerogatives to global institutions. To understand what is lost by any shift in the locus of lawmaking, it is essential to understand what is meant by democracy. A number of models of democracy have been developed in the literature,1 and a variety of possible structures, institutions and processes employed (or proposed) in the practice of democracy. This work adopts the model of deliberative democracy developed by Jürgen Habermas in Between Facts and Norms,2 concluding that, in conditions of uncertainty and disagreement, the democratic legitimacy of laws depends on recognising those subject to the authority of the state law regime (the people) as being (albeit indirectly) the authors of law norms. Whilst noting the importance of competitive elections, the focus of concern is discourse and debate: 1

See David Held, Models of Democracy, 3rd edn (Cambridge, Polity, 2006). Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans by William Rehg (Oxford, Polity, 1996). 2

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political truths emerge through processes of deliberation and bargaining (in accordance with the principle of public reason) that lead to a consensus on public policy. Deficiencies in the practice of democracy are evidenced by an absence of participation or lack of public reason. Gunther Teubner explains that Habermas follows a ‘consensus theory of truth, which declares as the criterion of truth the “potential” consensus of all discourse participants’. Epistemic authority is attributed to the ‘communicative community’.3 Each communicative community must work out its own version of political truth. Political truth equates to the consensus that would be arrived at through dialogue in an ideal speech situation, in which positions are accepted as legitimate only where agreed through uncoerced discussions by those affected by the outcomes of the process:4 ‘morality consists of the values by which we legitimately decide to govern our common lives’.5 The aim of deliberations in the ideal speech situation is to arrive at a reasoned consensus that results from the force of the better argument. All those affected (or their representatives) have a right to participate, and each participant has the right to bring issues to the deliberations, and all arguments must be given 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 all those affected by them. Democratic laws result from the legal institutionalisation of discursive procedures of opinion- and will-formation ‘in which the sovereignty of the people assumes a binding character’.6 This leads Habermas to the principle of discourse: ‘D: Just those action norms are valid to which all possible affected persons could agree as participants in rational discourses.’7 Democracy depends on the recognition and application of the principles of discourse, democracy, and (parliamentary) representation: ‘democratic’ laws should have the agreement of

3 Gunther Teubner, ‘How the Law Thinks: Toward a Constructivist Epistemology of Law’ (1989) 23 Law and Society Review 727, 733. 4 Thomas Risse recalls Michel Foucault’s objection to the possibility of an ideal speech situation, ie that ‘power as a social structure resides in the discourse itself. The rules of the discourse prescribe which arguments can be legitimately used by the participants’: Thomas Risse, ‘“Let’s argue!”: Communicative Action in World Politics’ (2000) 54 International Organization 1, 17, relying on Michel Foucault, ‘Politics and the Study of Discourse’ in Graham 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 human subject is no longer the author of the discourse. Just the opposite: the discourse produces the human subject as a semantic artifact’: Teubner, ibid at 735. 5 David Dyzenhaus, ‘The Legitimacy of Legality’ (1996) 46 University of Toronto Law Journal 129, 150. See also Edward Rubin, ‘Rethinking Human Rights’ (2003) 9 International Legal Theory 5, 58–59. 6 Habermas (n 2) 104. 7 ibid at 107.

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94 Democracy Within and Beyond the State all citizens, and should be adopted by citizens, or their representatives, in an institutionalised process of law-making, which should be discursive in character. In the practice of democracy, the absence of an ideal speech situation and reliance on majority rule explains the basis for (judicial) review, and possibility of challenge to democratic laws consistent with the principle of democracy: laws adopted by majority rule have a contestable quality that precludes any argument that they represent any absolute form of political truth. The proliferation of sites for the making of law norms following the globalisation of governance makes the practice of (deliberative) democracy more complex as the locus for law-making is not only the sovereign state. The democratisation of global law orders (even if possible or desirable) would result in competing versions of democratic truth (consistent with the requirements of deliberative democracy): the democratic state no longer decides all issues that are politically decidable, and there is no one place that we can have reference to in order to establish ‘right’ or ‘just’ norms for domestic societies (or parts thereof). This chapter proceeds as follows: it first establishes the nature of the problem for democracy created by the existence of international law, defining democratic self-determination in terms of the ability of citizens to decide politically decidable issues. The work then defends the deliberative model developed by Jürgen Habermas and elaborates the central requirements for the practice of (deliberative) democracy, emphasising the principle of discourse, distinctive nature of deliberative politics, and requirement for law-making within formal deliberative institutions of a representative character (ie parliaments). A particular focus is the nature of human rights in a democracy, and the recognition that the scope and content of human rights norms is established through domestic democratic processes, leading to a revised understanding of the nature of constitutional review (in terms of democracy promotion). The idea of democratic self-determination is made both more complex and problematic by the emergence of systems of global governance in the absence of a global political community capable of democratic opinion- and willformation. The chapter reviews the more recent attempts by Habermas to make sense of the deliberative ideal given the (partial) globalisation of governance functions.

INTERNATIONAL LAW AND THE DEMOCRATIC DEFICIT

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

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of the world;8 and no international organisation enjoys a monopoly on the legitimate use of force or ability to coercively enforce international law norms, the traditional claims, following Max Weber, of the modern state. The theory and practice of democracy appears premised on the existence of a bounded political community with defined membership, capacity for democratic self-determination, and ability to coercively enforce agreed law norms. There seems little reason to apply the test of democratic legitimacy that has since the nineteenth century been applied to the state to (public) international law. Democracy, Joseph Weiler writes, ‘does not exist in a vacuum. It is premised on the existence of a polity with members – the demos – by whom and for whom the democratic discourse with its many variants takes place.’9 The ‘no demos, no democracy’ point is well known, but it is not the totality of the argument. Weiler observes that the traditional understanding is that states are in the business of government, whilst international law is concerned with the establishment of ‘a legal matrix for coexistence and community among and of States ensuring order and justice’.10 Different bases for legitimation have been applied to the two systems: at the domestic level, the modern idea of the rule of law required that legal norms result from democratic processes; legitimacy in the international law system rested on the idea of sovereign equality. The binary model was appropriate provided a clear division of responsibilities existed, with domestic law operating within the state and international law applying between states. This is no longer the case. The laws that apply to domestic societies also result from international law-making processes, including those that result in the adoption of international instruments (treaties) and (global) law norms established by international organisations and other non-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 fundamental principle of democracy, that of popular sovereignty, rooting the sovereign authority of Member States, and, consequently, the legitimacy of the UN itself, in the will of their peoples. 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 the peoples’, it ‘reaffirms the dignity and worth of the human person, respect for human rights and the equal rights of men and women, and a commitment to social progress as measured by better standards of life, in freedom from want and fear alike. Ultimately, then, the UN exists for, and must serve, the needs and hopes of people everywhere’: Kofi Anan, We the Peoples: 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 German Maastricht Decision’ (1995) 3 European Law Review 219, 222. 10 JHH Weiler, ‘The Geology of International Law-Governance, Democracy and Legitimacy’ (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 of Law.’

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96 Democracy Within and Beyond the State Weiler distinguishes three forms of international law or modes of governance: international law as transaction, international law as community, and international law as regulation. The idea of transactional international law has been the predominant form in the past; the paradigm example is the bilateral treaty, although multilateral treaties may equally be seen as expressions of sovereign consent and interest.11 Where international law agreements move beyond executory type contracts, terminated upon completion, to establish ongoing relationships, they also exercise an independent governance function, creating a regime of management.12 Secondly, the idea of international law as community follows from the emergence of international organisations, such as the United Nations (UN) and European Union, which regulate certain ‘common assets’ that may be both spatial and functional (international peace and security, the protection of human rights, etc). These regimes cannot be explained exclusively in terms of expressions of sovereign consent; their defining feature is the existence of a legal community whose objectives and values may be distinct from the objectives of one or more of the members (separately).13 Thirdly, the idea of international law as governance, or ‘[World] Governance without Government’, is reflected in the activities of international organisations and international law instruments (often treaties) that increasingly seek to regulate activities that were hitherto ‘not only within the domain of States but within the domain of the administration within the State’. International law norms may directly replace domestic norms, may inhibit domestic regulatory regimes, or place de facto limits on political self-determination through the adoption of non-binding instruments.14 There is ‘governance, but critically there is no government and no governed’. Where there is governance, Weiler argues, it should be legitimated democratically. The idea of democracy presumes, however, the existence of both demos and institutionalised government: ‘We may define demos and demoi in different ways. But there is no convincing account of democracy without demos. Demos is an ontological requirement of democracy.’15 There is, according to this argument, no possibility of applying the idea (and practice) of democracy in the absence of already existing demos, defined by reference to the sovereign state (or equivalent political unit). There might be other bases of political legitimacy for international law norms (broadly defined), but democracy is not a relevant criterion for evaluating the legitimacy of the regulatory practices and structures of global governance.

11 12 13 14 15

ibid at 553. ibid at 554. ibid at 557. ibid at 559. ibid at 560.

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Michael Goodhart observes that whilst there is no necessary relationship between democracy and the state, many, if not most, writers on democratic theory hold that democracy is probably impossible without the state, and this dependency ‘appears to have firm empirical confirmation: democratic accountability isn’t guaranteed by state sovereignty, but it has only been achieved within the framework of sovereignty’.16 The theory and practice of democracy emerged in the context of the territorial state, which defined and delimited the people: modern democracy is ‘sovereign democracy; it presupposes and builds upon the normative and empirical framework of the Westphalian state’.17 Democratic theory relies on the taken-for-granted relationship between those making the law, the ‘people’ or their representatives, and those subject to the law. The requirement for democratic legitimation for the exercise of political authority followed the emergence of sovereignty as the organising principle of government in the modern world (following the Peace of Westphalia 1648), and the shift from a non-territorial to a territorial basis for the exercise of authority and from a functional differentiation to the consolidation of authority within the state.18 The (‘Westphalian’) sovereign state defined ‘those affected’ as ‘the citizens of an alreadyconstituted political community of fate’. Political institutions within the state are democratically legitimate ‘not because they are representative and give citizens equal influence but because they represent and give equal influence to the right people’. At the level of global governance, the model becomes incoherent, as it is not possible to determine who the ‘right people’ are — there is no ‘taken-for-granted’ connection between those 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, be little to be gained by attempting to develop arguments around the democratic legitimacy (deficit) of international law. Democratic selfdetermination requires a clearly defined ‘self’, a citizenry with the capacity for opinion- and will-formation, and effective (governmental) institutions for the execution of collectively binding decisions. It might be neither possible, nor sensible, to talk about democracy beyond the territorial state, organised in accordance with a political constitution and

16 Michael Goodhart, ‘Democracy, Globalization, and the Problem of the State’ (2001) 33 Polity 527, 542. 17 Michael Goodhart, ‘Europe’s Democratic Deficits through the Looking Glass: the European 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 and Equality 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).

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98 Democracy Within and Beyond the State taken-for-granted membership. The argument has not prevented complaints that international law and global governance suffers from a democratic deficit, with the move to global law-making having a deleterious impact on the practice of democracy at the level of the state. The existence of autonomous legal orders, not under the political control of states, creates — from the perspective of democratic societies — a problem for the practice of democracy. This is the starting point for any enquiry into the democratic legitimacy of international law.

POLITICALLY DECIDABLE ISSUES

This work follows Frank Michelman in regarding democracy as a system of ‘popular political self-government’. Democracy requires that citizens ‘ought to decide for themselves all the politically decidable matters about which they have a good moral and material reason to care’.20 The importance of democracy lies in the ability of people to govern themselves politically as ‘[one] aspect of human dignity and freedom that is sometimes called positive liberty’.21 Democracy serves self-government by providing each person ‘with reason to identify his or her political agency with the lawmaking and other acts of political institutions, or to claim such acts as his or her own’. The democratic ideal applies to a collection of autonomous human persons taken severally, and not the political community as a whole, and there is no reason to conclude ‘that a nation, a people, or a political community [has] a capacity for consciously self-directive agency for which we have any final, moral reason to care’.22 A self-government conception must rely on a procedural understanding of democracy and democratic legitimacy (it is not concerned with substantive outcomes): ‘democracy is at its fullest when a country’s people decide for themselves, by democratic political procedures, all of those conditions of their lives that are politically decidable’.23 The idea applies equally to the (constitutional) laws of law-making that frame the exercise of democratic politics.24 There is a deficit in the practice of the democracy where the 20 Frank Michelman, ‘The 1996–97 Brennan Center Symposium Lecture’ (1998) Californian 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 and generating power and thereby conferring authority. The idea of constitutive power also enables us to acknowledge the fact that the institutional framework of authority is conditional – ‘Constituted power always remains subject to political pressures for change’: Martin Loughlin, The Idea of Public Law (Oxford, Oxford University Press, 2003) 162.

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Politically Decidable Issues

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people do not decide, by democratic political procedures, all of those conditions of their lives that are politically decidable. The commitment to democracy follows the liberal concern around the problem of coercive enforcement of political authority against free and equal persons. The coercive enforcement of law norms is acceptable ‘only insofar as everyone subject to it has his own reasons for agreeing to its basic terms, including its laws of lawmaking’. In order for laws to be legitimate, they must respond to reasons that are ‘objectively consonant with everyone’s interests or that are in accord with what everyone, being reasonable, would agree to in a proper normative discourse’.25 The solution to the problem of political legitimacy is provided by democratic procedures in which reasonable citizens can collectively pursue a political project of self-government ‘for which there can be no final end, but for which there is nevertheless a foundational standard. The democratic pursuit of democratic justice would be that project’. The pursuit of democratic justice requires that decisions that cannot be reached by consensus ‘are nevertheless reached by institutions that are always effectively subjected to the pressures of a public-opinion-in-formation that is bent on democratizing itself and the legal and social conditions of its production’.26 In a democratic system of government, all constitutional and political law norms are subject to contestation and challenge by reasonable citizens (those who accept that law norms should apply generally, and that the welfare of all should be the basis of political discourses). In a democratic state, the constitution (written or unwritten) establishes political procedures through which citizens exercise the right to democratic selfdetermination. Law results from a process of collective decision-making in accordance with the principle of political equality of citizens. The exercise of coercive political authority is legitimated by an act of collective willformation by citizens (but not others). Policies are ‘just’, ‘correct’, or ‘right’ to the extent that they are consistent with the requirements of right process and substantive democratic principles, concerning, for example, political equality and public reason. The importance of procedure is confirmed by the facts of reasonable disagreement and imperfect knowledge in political discussions (there are no ‘right’ answers in a modern/post-modern context); the importance of private autonomy and public participation for the individual citizen; the liberal principle of legitimacy, which demands at least hypothetical consent for the exercise of political authority; and the need for members of a political community to commit themselves to a process of collective decision-making that takes into account the interests of others within the community.

25 26

ibid at 420–21. ibid at 424.

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100 Democracy Within and Beyond the State A state is democratic to the extent that laws are enacted with the express or implied consent of the people (or their representatives). The idea of democracy rests on the twin principles of political equality and popular sovereignty: citizens participate on the basis of equality in a process of collective will-formation. There are a number of institutional arrangements that can give effect to these principles, although at the level of the state all will rely on free and fair elections to a representative assembly or parliament. Too often, the requirement to hold elections and respect the outcome becomes the sole test of democratic legitimacy, an approach that accords with theories of limited, or thin, democracy. Joseph Schumpeter, for example, concludes that the role of the citizen in a democracy is simply to determine who will hold power: democracy is the rule of the elected politician, with elections regarded as a competitive process in which political parties offer their platforms and attempt to satisfy the largest number of preferences.27 Elections provide one mechanism through which citizens participate in democratic politics, enabling them to express policy preferences and sanction office holders for poor performance by removing them from office. Elections provide the clearest, 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 willformation. The centrality of elections to democratic systems results from their ability to provide a (relatively) clear expression of the will of the people, reflected directly in a majority of votes cast or indirectly through the allocation of a majority of seats in a representative assembly. Elections are central to majoritarian conceptions of democracy, in which legitimacy is provided by free and fair elections, and application of agreed rules for determining the identity of the candidates deemed to have ‘won’ (which is taken as a surrogate for winning the argument). The majoritarian understanding of (domestic) democracy greatly influences 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, that a majority would or should do anything it felt an impulse to do’,28 complaints of a democratic deficit invariably reflect a majoritarian concept of democracy, mirroring the ‘counter-majoritarian difficulty’ identified by Alexander Bickel in relation to judicial review by domestic courts. In constitutional democracies, a counter-majoritarian difficulty exists where the position of a majority of the ‘here and now’ people is rejected

27 Joseph Schumpeter, Capitalism, Socialism and Democracy, 5th edn (London, Allen and Unwin, 1976) at 284–85. 28 Robert Dahl, A Preface to Democratic Theory (Chicago, University of Chicago Press, 1956) 36.

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by reference to ‘higher’ constitutional law principles, as interpreted by a constitutional court, including constitutional provisions for the protection of human rights.29 In relation to international law, Roger Alford refers directly to an ‘international countermajoritarian difficulty’, which reflects concerns that law-making outside of the state ‘thwarts the will of the people and undermines the values of the prevailing majority’. Moreover, whilst constitutional law norms remain responsive to popular will, the same cannot be said about international law norms, which may not reflect the will of the people of a particular state at a particular time.30 The counter-majoritarian argument relies on an understanding of democratic will-formation that functions by aggregating the votes of citizens (or, in more sophisticated models, preferences, which can also be measured, reflecting the different strengths of individual preferences) to identify where the majority lies on a particular issue, and consequently to determine the policy position that is acceptable to most citizens. When the people decide, they often, but not always, rely on the principle of majority rule.31 The justification for majority rule is that each citizen is the best judge of her own interests (without the need for interactions with others) and that a decision with majority support will realise the interests of the maximum number of citizens.32 Politics is no different from any other market activity, the dominant assumption being one of competition, as political parties advertise their policies and seek as much support as possible from amongst the electorate.33 Majoritarianism is important in the practice of democracy, as there must come a point where the people, or their representatives, will need to make policy choices, and there is only a certain amount of time that can be devoted to discussion of a particular issue. The possibility of not deciding is not available, as this would involve an implicit decision in favour of the status quo. If, following reasoned public debate, a majority determine that A is the right thing to do, the majority principle provides that the conclusion is the most rational and legitimate outcome, although it is not infallible, and the minority will feel that they have the right to return to the issue in the future 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 the United Kingdom, are designed to ensure minority rule, in that the political party with the greatest support (but not necessarily, and historically rarely, a majority) is entitled to form the government. 32 Julia Black, ‘Procuralizing Regulation: Part I’ (2000) 20 Oxford Journal of Legal Studies 597, 607. 33 Tom Campbell, ‘Legal Positivism and Deliberative Democracy’ in Michael Freeman (ed), 51 Current Legal Problems (1998) 65, 73–76.

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102 Democracy Within and Beyond the State Majoritarianism does not, however, define democracy. The etymology of democracy lies in the idea of popular government, or rule by the people, not by a majority at a particular point in time.34 Bellamy and Castiglione describe the idea that majoritarianism is central to democratic theory as ‘both trivial and unfounded’, arising from confusion between ‘people’ and ‘majority’.35 The value of democracy lies in its problemsolving capacities, and the possibility of promoting ‘value pluralism, at least in ideal conditions’. This requires the accommodation of diverse values through consensus-seeking decision-making, and the settlement of disputes in ways that are recognised as fair and legitimate by all those involved.36 Amartya Sen is equally clear: ‘We must not identify democracy with majority rule.’37 Democracy has an intrinsic value, in that political freedom is a part of human freedom, and an instrumental value, in allowing citizens the ability to express their interests and perspectives in decision-making processes, and providing opportunities for citizens to learn from each another, thus allowing the society to formulate its values and priorities.38 Democracy is a system of collective decision-making that provides for popular and institutional deliberation to determine the will of the people. It is an ongoing process of debate, deliberation and choice. Democratic legitimacy for the exercise of political authority through law is not guaranteed by the holding of free and fair elections or seeking to aggregate the votes and/or preferences of citizens, but by a politico-legal system that ensures that laws result from acts of opinion- and willformation by the people in accordance with the principle of public reason.

DELIBERATIVE DEMOCRACY

The central question in democratic politics is ‘What is it that we should do?’ In conditions of uncertainty and disagreement, how do we know what to do, and who should we rely on to determine the (legal) norms that structure social, economic and political life, and by reference to what criteria, and what processes? Epistemology is the theory or science of the method or grounds of knowledge. Epistemic authority concerns the recognition that an actor is in possession of the knowledge of the ‘right’ 34 The Oxford English Dictionary. 2nd edn 1989. OED Online (Oxford, Oxford University Press, 2000). 35 Richard Bellamy and Dario Castiglione, ‘The Uses of Democracy: Reflections on the European Democratic Deficit’ in Erik Eriksen and John Fossum (eds), Democracy in the European 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.

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or (in politico-legal terms) ‘just’ course of action. X has epistemic authority over Y, if (and only if) it is accepted that X is in a privileged position concerning knowledge of the ‘right’ or ‘just’ course of action. In the modern era, the epistemic authority of law, following Jürgen Habermas, is provided by the consensus of a communicative community that determines political truths on questions of public policy. The legitimacy of law depends on a communicative action: ‘as participants in rational discourses, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possible affected’.39 The deliberative model of democracy proceeds from a view that no one actor can claim a privileged position in political debates and that legitimate laws result from a process of reasoned communications, the aim of which is to achieve a consensus amongst all participants. Consensus is easier to achieve where the participants share a set of common understandings, or ‘shared, unproblematic beliefs’, a common ‘lifeworld’ that provides shared meanings and identities, and ‘forms both the horizon for speech situations and the source of interpretations’.40 Political arguments about legal norms must be justified in terms that others might accept. Democratic politics is concerned with questions about what is equally good for all. Those seeking to demonstrate the (political) ‘truth’ of positions must rely on reasoned arguments if they are to convince others (the idea of public reason).41 The requirement for reasoned argumentation follows the need to orientate language towards mutual understanding: participants must communicate and attempt to vindicate claims by reference to reasons that others might accept if they are to reach an agreement. When an argument is not accepted by other participants, there is a shift from justification to discourse in search of agreement, with claims and arguments tested through reasoned deliberations. Individuals must rely on arguments supported by reasons in an attempt to convince others, and all participants must accept that their positions may be subject to review and revision. Where consensus is not possible, the relationship shifts again from discourse to bargaining, in which each participant engages in strategic argumentation. Bargaining is permissible to the extent that the process is deliberative (ie rational) and the compromises acceptable in principle to all participants, who may agree for different reasons (in contrast to a discursive consensus).42 Bargaining results in a negotiated

39

Habermas (n 2) at 104. 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. 40

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104 Democracy Within and Beyond the State agreement that balances conflicting interests; whereas a rationally motivated consensus rests on reasons that can convince all the parties in the same way, compromises can be accepted by different parties for different reasons.43 The process of bargaining depends on the willingness of participants to cooperate. A compromise agreement must be more beneficial than no agreement and exclude free-riders and exploited parties (those who contribute more than they gain). All interested parties should have an equal opportunity to exercise influence in the process of bargaining, ‘so that all the affected interests can come into play and have equal chances of prevailing. To the extent that these conditions are met, there are grounds for presuming that negotiated agreements are fair.’44 In the conditions of pluralism that define modern societies, it is neither possible nor acceptable for a legal order to impose any single perspective on all actors. The legitimacy of law rests on the ‘concurring and united will of all’ free and equal citizens.45 The democratic state imagines itself to be an association of free and equal persons; membership depends on the principle of voluntariness.46 The normative basis of a legitimate constitution is provided by a ‘deliberative decision-making process that the founders [established] with the intention of creating a voluntary self-determination association of free and equal citizens.’47 The democratic constitution that frames political life is not fixed. It may be subject to challenge and contestation by citizens; the constitution is a ‘traditionbuilding project with a clearly marked beginning in time’.48 The democratic legitimacy of laws depends on an institutionalisation of the principle of discourse in a constitutional order that recognises the equality of citizens and the voluntariness of the legal order. The law must grant equal liberties to all: the freedom of each citizen must ‘coexist with the freedom of all’.49 For this to be the case, the addressees (‘subjects’) of law norms must at the same time ‘understand themselves, taken as a whole, as the rational authors of those norms’.50 The legal order draws its legitimacy from the idea of collective self-determination: citizens must think of themselves as authors of the law to which they are subject as addressees, ‘and it is only participation in the practice of politically

43

ibid at 166. 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). 44

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autonomous lawmaking that makes it possible for the addressees to have a correct understanding of the legal order as created by themselves’.51 Habermas provides a test of democratic legitimacy that does not rely on substantive values against which to evaluate the acceptability or otherwise of law norms. It follows from the recognition of the equality of citizens and need for justification for the exercise of political authority. The twin ideas of human rights and popular sovereignty that have determined the normative self-understanding of constitutional democracies provide the basis by which to justify modern (state) law.52 Democratic laws result from the legal institutionalisation of discursive procedures of opinion- and will-formation ‘in which the sovereignty of the people assumes a binding character’.53 This leads Habermas to his principle of discourse: ‘D: Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.’ The idea of action norms refers to ‘temporally, socially, and substantively generalized behavioural expectations’; the idea of ‘those affected’ includes ‘anyone whose interests are touched by the foreseeable consequences of a general practice regulated by the norms at issue’.54 If all possibly affected persons have participated in deliberations, with an equal opportunity to influence others, any consensus position may be regarded as ‘right’ or ‘just’ for that political community. A distinct principle of democracy follows from an application of the principle of discourse, providing that the validity of statutory law norms relies on the adoption of laws that can meet with the assent of all citizens in a discursive process of legislation that has been legally constituted.55 Brian Tamanaha criticises the reliance on the counterfactual ideal of the agreement of all possibly affected persons, concluding that Habermas ‘does not really mean unanimous consent, or even actual consent’.56 In common with all social contract theories, the aim is to ‘legitimate the status 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 deliberative democracy as ‘a process of moral discussion with a time limit’.58

51

ibid at 121 (emphasis in original). ibid at 99. ibid at 104. 54 ibid at 107. 55 ibid at 110. 56 Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford, Oxford University Press, 2001) 64 (emphasis in original). 57 ibid at 65. 58 Carlos Santiago Nino, The Constitution of Deliberative Democracy (New Haven, Connecticut, Yale University Press, 1996) 118. 52 53

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106 Democracy Within and Beyond the State Reliance on a counterfactual ideal to evaluate the democratic legitimacy of law raises the possibility that the analysis simply provides intellectual justification for the otherwise problematic exercise of coercive political authority. The value of the deliberative model is that it does not rely on the acceptance of any contested political or moral values, beyond those inherent in the practice of deliberative democracy, providing an ‘objective’ basis for critiquing the exercise of political authority without requirement to demonstrate the ‘wrongness’ or ‘injustice’ of policy positions. The deliberative model allows the development of a (democratic) critique within the discipline of law that evaluates the exercise of regulatory authority through law, without the need to read progressive (natural law-type) values into the concept of law. It also affirms that academic commentators (and other elites) have no privileged position in debates about the practice of democracy, and substantive questions of public policy. The principle of discourse requires that we treat all citizens as equals and that political discussions are conducted in accordance with the principle of public reason, with a view to establishing what is equally good for all.

DELIBERATIVE MAJORITIES

In contrast to majoritarian understandings of democracy, the deliberative model regards the existence of any objecting minority (the absence of consensus) as problematic for those seeking to exercise authority. This is particularly the case in relation to permanent minorities defined by reference to ethno-cultural identity on ‘questions of culture’.59 James Bohman argues for a reformulation of the discourse principle and its insistence on unanimity: ‘it is deliberative majorities who should rule’.60 All citizens should have the opportunity to participate in decisionmaking processes in such a way that they have a reasonable expectation that they might affect its outcome.61 Where, following reasoned deliberations, 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 of culture’, the absence of consensus does not result from a lack of time or insufficiently compelling arguments. Indigenous peoples will not, for example, recognise the economic value 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 “Democratic Society”’ (2007) Public Law 770. 60 James Bohman, ‘Complexity, Pluralism, and the Constitutional State: on Habermas’s Faktizität und Geltung’ (1994) 28 Law and Society Review 897, 919. 61 ibid at 921.

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Deliberative Majorities

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a presumption that the position is democratically legitimate. It is, however, as Wojciech Sadurski observes, contrary to our intuitions to suggest that any outcome of a democratic system will, by definition, be democratic ‘because we do not have an independent outcome-based notion of democratic legitimacy’.62 Sadurski refers to the impossibility of ‘perfect procedural justice’, concluding that, in the real world, all we can hope for is a system of ‘imperfect procedural justice’.63 An alternative, ‘weak but plausible’, version of the liberal principle of legitimacy, which requires hypothetical consent to confer some degree of legitimacy upon laws, would provide that ‘only those laws that are based upon arguments to which no members of the society have a rational reason to object can boast political legitimacy, and as such be applied coercively’.64 If a law is based on an argument ‘that casts me out from the political community (for example, an argument that considers my racial group as inherently inferior to other groups), then there is no moral reason why I should recognize this law as legitimate’.65 There is no rational argument that could lead an individual to accept such a measure. The fact of disagreement 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 it rationally that it is based upon arguments that I can recognize as valid, then a necessary condition for its legitimacy has been met.66

The democratic legitimacy of laws is provided by law norms that a rational person could accept, even if they do not in fact accept the laws in question. For Sadurski, as for Habermas,67 unreasonable objections do not count. But, as Joseph Raz points out, ‘why should the agreement only of those with reasonable views be required?’68 The interests of persons with ‘unreasonable views’, those who ‘stubbornly fail to see what the reasonable see’,69 are just as likely to be affected by the exercise of political authority as those of ‘reasonable’ persons, ‘and if the other people’s agreement is required, so should theirs be’.70 Disagreement is evidence that 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 Oxford Journal 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.

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108 Democracy Within and Beyond the State consider whether it is their position. Much will depend on whether disagreement can be assigned to bias or ignorance, or the authorities acting against expert advice, or in circumstances where the life experiences of the minority group ‘are foreign to those in power’.71 The participation and consent of all those who might reasonably be affected is required to establish legitimacy for the exercise of political authority through law, a point Habermas concedes when he writes: ‘deficits [in democratic legitimacy] will always result when the circle of all those involved in democratic decision making does not extend to cover the circle of all those affected by those decisions’.72

DELIBERATIVE POLITICS

The deliberative model is an attempt to construct a politico-legal system from the first principles of autonomy and equality: law is legitimate only if all who are possibly affected could assent as participants in rational discourses. From this, Habermas derives a system of rights and the discursive character of lawmaking, providing (democratic) criteria against which to evaluate the legitimacy of law. The principle of democracy results from an application of the principle of discourse to those action norms that appear in legal form.73 It provides that the validity of statutory norms depends on the adoption of laws that can meet with the assent of all citizens in a discursive process of legislation that has been legally constituted.74 The principle both establishes the requirements for legitimate lawmaking and frames the nature of political debate about legitimate policy it creates the language in which a community can understand itself as a voluntary association of free and equal consociates under law.75 A genuinely proceduralist understanding of democracy is not simply concerned with democratic institutions and rights of political participation: democratic procedures must be ‘institutionalized in discourses and bargaining processes by employing forms of communication that promise that all outcomes reached in conformity with the procedure are reasonable’.76 Democratic politics must be conducted in accordance with the requirements of deliberative democracy: the language of politics must recognise the principle of political equality and importance of private autonomy; the welfare of all must be the central focus in political 71 72

ibid at 51. Jürgen Habermas, ‘Toward a Cosmopolitan Europe’ (2003) 14 Journal of Democracy 86,

90. 73 74 75 76

Habermas (n 2) at 108. ibid at 110. ibid at 111. ibid at 304.

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Human Rights in a Democracy

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discourses; political argument should be conducted in a way that attempts to persuade others by the force of better argument; and all laws, including justice norms (framed in terms of constitutional law norms and human rights) must be determined through democratic politics.

HUMAN RIGHTS IN A DEMOCRACY

One of the major contributions of the theory of deliberative democracy is that it moves us away from the sterile debates that position democracy and (human) rights in an antagonistic relationship (the allegedly unresolved tension of ‘liberal’ ‘democracy’). For Habermas, there can be no democracy without rights and no rights without democracy. Those rights required in a democratic system include the general right to equal liberties, along with the correlative membership rights, and guaranteed legal remedies. Democracy requires the recognition of rights that generate the legal code by defining the status of legal persons, ie rights that result from the politically autonomous elaboration of the right to the greatest possible measure of equal individual liberties. These legal rights require, as necessarily corollaries, the basic rights that result from the politically autonomous elaboration of the status of a member of a voluntary association of consociates under law; in addition to the basic rights that result from the actionability of rights and from the politically autonomous elaboration of individual legal protection. These result from an application of the discourse principle to the medium of law.77 In order for a citizen to be transformed from ‘addressee’ to one of the authors of the legal order, they must also enjoy basic rights to equal opportunities to participate in processes of opinion- and will-formation in which citizens generate legitimate law. Finally, all citizens must have the right to the provision of basic living conditions, insofar as they are necessary for citizens to have equal opportunities to exercise the other legal and democratic rights.78 The (unelaborated) category of ‘social welfare’ rights includes those rights that are necessary insofar as the exercise of civil and political rights depends on certain social and material conditions.79 In contrast to liberal theories that hold rights to be both prior and superior to democratic laws, typically ‘rights as trumps’ over collective positions,80 Habermas regards private and public autonomy as both

77 78 79 80

ibid at 122. ibid at 123. William Rehg, ‘Translator’s Introduction’ in Habermas (n 2) at xxvii. See Ronald Dworkin, Taking Rights Seriously (London, Duckworths, 1977).

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110 Democracy Within and Beyond the State ‘co-original’ and ‘internally related’.81 The framework of rights and liberties that structures the social context of human existence is established through a process of political dialogue in accordance with the principle of public reason, with valid laws receiving the assent of all affected citizens. Non-discrimination norms are central to arguments around public reason: any difference of treatment must be capable of rational justification, and if a difference in treatment cannot be rationally justified the measure must be withdrawn, or applied generally, leading to public discussion and democratic debate, and requiring the consent of all in democratic theory (and consent of the majority in the practice of democracy). The rationality of laws is proven, in part, by the ‘equal treatment of legal persons who at the same time are protected in their integrity’. The norms passed by the legislature and applied by the courts ‘prove their “rationality” by the fact that addresses are treated as free and equal members of an association of legal subjects’ (the principle of equal treatment). This includes both the idea of equality before the law, and the broader principle of substantive legal equality, ‘which holds that what is equal in all relevant respects should be treated equally, and what is unequal should be treated unequally. But what counts in each case as the “relevant respect” requires justification.’82 In pluralistic democracies (ie all democracies), the scope and content of human rights norms must be worked out on a case-by-case basis in a collective act of democratic self-determination, the aim of which is to promote the public and private autonomy of equal citizens. Injustices are evidenced in discriminatory laws that prevent persons from vulnerable and marginalised groups from exercising their private and public autonomy.83 Private autonomy is the right to be left alone, to pursue an ‘existential life project’;84 public autonomy concerns the rights of political participation, 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 equal participants in a common life, a commitment which is presupposed by and made possible by the legal order of the democratic Rechtsstaat (the state bound by the rule of law).86

81

Habermas (n 2) at 275. 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. 82

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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, involving political 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 the appearance of moral rights is not their content, and most especially not their structure, but rather their mode of validity, which points beyond the legal orders of nation-states.

With the exception of the basic rights (outlined above), human rights emerge from processes of democratic will-formation, although all (deliberative) democracies will share similar visions of the ‘just’ society, reflected in the standards recognised in universal human rights instruments, which give expression to the collective experiences of democratic peoples.89 The argument is consistent with the body of international human rights norms that has emerged in the global system. The Universal Declaration of Human Rights, for example, contains a limited number of absolute provisions (prohibitions on slavery (article 4) and torture (article 5), and equal protection under the law (article 7)), and ‘rights’ that may be subject to such limitations as are necessary for protecting the rights and freedoms of others, and ‘meeting the just requirements of morality, public order and the general welfare in a democratic society’.90 International human rights law provides the language with which domestic societies deliberate about the nature and content of (domestic) human rights norms, but international human rights laws are only universal in the sense of framing the social, economic and political questions that all (democratic) societies must address, ie the relationship between private autonomy (individual self-determination) and the rights and interests of others, including the interests of society more generally.

87

ibid at 164. Seyla Benhabib, Another Cosmopolitanism (Oxford, Oxford University Press, 2006) 70. 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). 88 89

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112 Democracy Within and Beyond the State THE PARLIAMENTARY PRINCIPLE OF DEMOCRACY

The exercise of coercive political authority in a constitutional democracy owes its legitimacy to a democratic process that guarantees the rational treatment of political questions, and (ideally) allows all relevant issues, interest and perspectives to be brought into the processes of democratic discourse and negotiation. Given that it is not possible for all persons to engage in deliberations on all issues, citizens must be represented by others in formal institutions. This leads Habermas to the parliamentary principle, which provides for the establishment of representative bodies for deliberation and decision-making.91 A person is ‘represented’ where the representatives ensure that decision-makers take into account the opinions, interests and perspectives of those affected by lawmaking acts. Representative institutions are a necessary compromise in the practice of democracy, as citizens do not have the time or capacity to acquire the knowledge to participate effectively in all decision-making procedures that affect them. The ideal of representation requires that the selection of members of Parliament should provide for the ‘broadest possible spectrum of interpretive perspectives, including the views and interests of marginal groups’.92 In terms of voting within representative bodies, and other institutions in a constitutional democracy such as courts, majority rule is acceptable in that it ‘retains an internal relation to the search for truth inasmuch as the decision reached by the majority only represents a caesura in an ongoing discussion; the decision records, so to speak, the interim result of a discursive opinion-forming process’.93 Majority decisions do not, though, enjoy the same claim to truth as consensus decisions, and in the practice of democracy, majority decisions are constrained by the basic rights that protect individuals and minorities: ‘in exercising their political autonomy citizens must not violate the system of rights that first constitutes this autonomy’.94 Parliamentary bodies do not provide the sole locus for democratic deliberations in the modern state. The principle of discourse provides a principle of political pluralism both inside and outside of representative bodies; it requires that legislative bodies remain open to interests and perspectives emerging from the public sphere: parliamentary opinionand will-formation ‘must remain anchored in the informal streams of communication emerging from public spheres that are open to all political parties, associations, and citizens’.95 Citizens must enjoy extensive

91 92 93 94 95

Habermas (n 2) at 170. ibid at 183. ibid at 179. ibid at 180. ibid at 171.

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constitutional rights concerning freedom of political expression and association, rights that are universally guaranteed by the requirements of democratic politics. Discourse conducted by representatives can meet the condition of equal participation ‘only if they remain porous, sensitive, and receptive to the suggestions, issues and contributions, information and arguments that flow in from a discursively structured public sphere’.96 It is not majority rule that legitimates democratic forms of decision-making but the processes that precede the decision, both formal, parliamentary-style, processes, and the informal discourses and deliberations in the political public sphere. A robust civil society can only develop in the context of a liberal society, which accepts the possibilities of alternative viewpoints. Civil society actors in the public sphere can acquire influence, but not power. The degree of influence will depend on the extent to which arguments resonate with the public of citizens, which possesses the final authority in a democracy: ‘there can be no public sphere without a public’.97 In order to exercise power, civil society actors must directly influence democratically regulated deliberations in legislative assemblies:98 communications in the public sphere ‘can be converted into political power only if it passes through the sluices of democratic procedures and penetrates the constitutionally organized politics system in general’.99 Whilst the political public sphere provides an arena in which social, economic and political problems can be identified and solutions proposed, effective discourses and bargaining occur only in formal institutions for opinion- and will-formation. The practice of democracy and formal processes of democratic will-formation require the existence of lawmaking institutions (operating in accordance with the principle of public reason) in which those affected can be said to be represented, with deliberative institutions remaining open to the ‘better arguments’ that might emerge in the public sphere.

CHALLENGING DEMOCRATIC TRUTHS: THE ROLE OF JUDICIAL REVIEW

Legitimacy, in the procedural sense, focuses on the deliberative processes within and between institutions, the latter of which provides the rationale for the doctrine of the separation of powers and judicial review by courts. Disagreement between the institutions of government, between the parliament and the constitutional court, or more accurately between 96 97 98 99

ibid ibid ibid ibid

at at at at

182. 364. 371. 327.

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114 Democracy Within and Beyond the State the majorities of the members of the respective institutions, will, as Sadurski observes, reflect disagreements in the wider society as to the right answer to a complex political or constitutional question. The fact of judicial review does not usurp democracy, it is simply ‘one step to the constitutionally prescribed procedure that has to be followed in order for the decision to be final and legitimate… The decisions that emerge from such a procedure acquire democratic legitimacy’.100 It is always open to the public or the legislature to re-open a political question, and to (re-)legislate accordingly. Courts do not have the final and constitutionally decisive say. The counterfactual ideal of deliberative democracy suggests the possibility of an objective model of judicial review that evaluates the legitimacy of democratic laws, and that judicial review of constitutional norms should reinforce rather than contravene the processes of democratic will-formation. Habermas follows John Hart Ely in arguing for a ‘participation-orientated, representation-reinforcing approach to judicial review’,101 one that is consistent with the values of representative democracy and involving a task that the courts are qualified to perform. Courts should not intervene where decision-making procedures 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, or where they are formally included but the representatives of the majority do not take their interests and preferences seriously.102 For Habermas, there is no role for the courts in the process of lawmaking in a (deliberative) democracy,103 an argument that ignores the implicit authority of courts to develop the common law (at least in common law jurisdictions) and augment legislation through (nonpolitical) ‘interpretive’ judgments. The argument might be better expressed in the sense that the legislative process ‘domesticates’ competing policy goals and conflicting values, and courts are not free to re-work this domestication process afresh, ‘as if they were legislators’.104 Popular sovereignty lies with the people and is expressed through the adoption of democratic laws in accordance with the constitution. Where the constitution is regarded as a system of rights in which private and public autonomy are seen as being internally related, the function of the constitutional court (a court concerned with constitutional questions) is

100 Wojciech Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’ (2006) 26 Oxford Journal 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.

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to be the ‘custodian of deliberative democracy’.105 The judicial role is to ensure that representatives have acted deliberatively and that legislation results from ‘reasons that can be publicly advocated’, and not ‘private interests’.106 Legal adjudication ‘unwraps… the variegated arguments that have already been entered into the lawmaking process and provided a rational basis for the legitimacy claims of established law’.107 The function of judicial review is to ensure the development of effective processes for establishing political truths in a political community within a system of democratic law. To be effective, legal judgments must be acceptable to the interpretive community of judges, lawyers, academics and the wider public. Constitutional review must secure both private and public autonomy, and ‘establish a coherent set of constitutional rights adapted to the particular historical legacy of the polity’.108 The practice of democratic lawmaking and elaboration of constitutional rights through judicial review occurs within the framework of an autonomous system of law.

DELIBERATIVE DEMOCRACY BEYOND THE STATE

For Habermas, legitimate (democratic) lawmaking is only possible in the context of the state. The voluntary association of citizens requires a central (governmental) authority to protect the collectivity from external threats and internal disorder, and to carry out collective action decisions. The state is a necessary mechanism for the coercive exercise of political authority, ‘because rights must be enforced, because the legal community has need of both a collective self-maintenance and an organized judiciary, and because political will-formation issues in programs that must be implemented’.109 The context for democratic will-formation is provided by the nation state, which manufactures ‘an abstract form of solidarity among strangers from a combination of the cultural symbolism of “the people” and the republican status of citizens’.110

105

Habermas (n 2) at 275. 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 communicative capacity that enables deliberation and generates a sufficiently strong we-feeling than can carry the weight of effective and democratic government’: Lars-Erik Cederman, ‘Nationalism and Bounded Integration: what it would take to Construct a European Demos’ (2001) 7 European Journal of International Relations 139, 157. 106

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116 Democracy Within and Beyond the State In Between Facts and Norms, Habermas makes only a few brief comments about the emergent governance regimes beyond the state, referring to the progressive denationalisation of international law, the trend towards the dissolution of the sovereignty of the nation-state, and the emerging global public sphere.111 He observes that the (imperfect) practice of democracy has only been achieved inside the boundaries of the sovereign state, a fact that creates significant problems for accepting the possibility of opinion- and will-formation in a supranational organisation such as the European Union, given that citizens of the European Union do not orientate themselves to the common good and their democratic loyalties remain ‘fragmented’. What emerges is a functional elite, nominally responsible to states and their publics, but in reality operating autonomously. Policy measures are adopted, but without the possibility for those affected influencing the legislative process.112 Only where rights of political participation are recognised can a system be regarded as democratic, as negative liberties and social welfare rights can equally be conferred by some ‘paternalistic authority’.113 A democratic polity requires a connection between deliberations in the political public sphere and deliberations in formal institutions. In the context of the European Union, this would require Europe-wide public policy deliberations (distinct from the various national deliberations) and a European Parliament with increased authority.114 In relation to the possibilities of global will-formation and exercise of communicative power by a global democratic public, Habermas argues that global superpowers cannot ignore worldwide public protests, over, for example, US military interventions in Iraq (referring to the idea of a ‘world citizenship, which is already taking shape today in worldwide political communications’).115 The ‘cosmopolitan condition is no longer merely a mirage. State citizenship and world citizenship form a continuum whose contours, at least, are already becoming visible.’116 In subsequent writings, Habermas expresses scepticism over the possibility of applying democratic principles beyond the state. It is not possible to regard international law as another layer of government to be democratised. The emergent global regulatory networks cannot be

111

Habermas (n 2) at 444. ibid at 503. 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 of opinion- and will-formation; and, finally, social rights that guarantee minimum income and social security: ibid at 503. 114 ibid at 507. 115 ibid at 514. 116 ibid at 515. 112 113

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117

understood in the same way as state governments, and it is not possible to accept any analogy that associates the process of global state formation with the (mythologised) process of state formation. The federal analogy is not appropriate to describe the emergent global system. At the domestic level, the atom of (popular) sovereignty may split, with a federal constitution establishing chains of legitimation that unfold in parallel.117 The analogy cannot be applied to the global level. In contrast to constitution-making within states, persons already enjoy a status as citizen that guarantees certain rights and freedoms.118 The transformation from an international law of states to a cosmopolitan law of individuals cannot be achieved because there is no supranational power with the capacity to coercively enforce international law norms.119 There may be global governance, but not global government. The constitutionalisation analogy in international law ‘proceeds from the non-hierarchical association of collective actors to the supra- and transnational organizations of the cosmopolitan order.’120 The global state of nations or federal world republic ‘is the wrong model’. Habermas accepts the requirement for international cooperation and a world organisation, although this would have limited and carefully circumscribed functions, relating to securing international peace and security, and promoting international human rights norms.121 The argument follows from an analysis of the perceived success of the European nation state model, where legitimacy is provided by a combination of three factors: the existence of effective government institutions; civil solidarity; and a political constitution.122 The absence of any sense of civil solidarity beyond the state limits the possibilities of supranational constitutions to those ‘of the liberal type’ that aim to regulate the interactions between collective actors ‘with the goal of setting mutual restrictions on their power’. Supranational constitutions limit the exercise of political authority in accordance with relevant international treaties, and in conformity with international human rights norms, and ‘leave the task of applying and developing law to courts, though without being

117 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, 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 state governments in accordance with some legal code or ‘constitution’: Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge, Massachusetts, MIT Press, 1998) 179. 120 ibid at 133. 121 ibid at 134. 122 ibid at 137.

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118 Democracy Within and Beyond the State exposed directly to democratic inputs and controls’.123 Liberal constitutions may be contrasted with the republican conception of a constitution, where the legitimacy of laws depends on acts of opinion- and willformation. Habermas concludes that the relationship between the rule of law and democracy would be dissolved ‘if supranational constitutions were completely severed from the channels of democratic legitimation which are institutionalized within the constitutional state’. Liberal constitutions beyond the state, ‘if they are to be anything more than a hegemonic legal façade, must remain tied at least indirectly to processes of legitimation within constitutional states’.124 The constitutionalisation of international law, if it is not to involve the establishment of a global democratic state, must receive ‘indirect “backing” from the kinds of democratic processes of opinion- and will-formation than can only be fully institutionalized within constitutional states… This weak form of constitutionalization beyond the nation-state remains reliant on continued provisions of legitimacy within state-centred systems.’125 Governance functions, according to Habermas, can be allocated to one of three levels: the supranational level of international law, properly limited to human rights, international peace and security, and ‘technical’ questions of cooperation; the regional level; and the nation state. There is no possibility of a legislative framework emerging outside of the regional context, where there is an increased tendency to cooperation through organisations such as Asia-Pacific Economic Cooperation (APEC), Association of Southeast Asian Nations (ASEAN), North American Free Trade Agreement (NAFTA), African Union (AU), and Economic Community Of West African States (ECOWAS). The exemplar is the European Union, although European unification will only be able to stand as a model for the construction of higher-order capacities for political action if it attains a degree of political integration that enables the EU to pursue democratically legitimated policies both 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 the Appellate Body of the World Trade Organization), Deborah Cass concludes that the ‘judicial norm-generation argument claims too much in respect of constitutionalisation; pays insufficient attention to the equation between legitimacy and constitutionalisation; and underestimates the role of politics in the constitutional process’: Deborah Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the 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.

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waters of the global political economy’, most states, with the exception of a small number of great powers, will be required to ‘merge into novel forms of highly integrated regionally based political blocs, along the lines of a democratized EU’. In doing so, they lose their distinctive identity as states.127 Beyond questions of human rights and international peace and security, Habermas regards coordination problems in the international law order as essentially ‘technical’ in nature, not ‘political’, and ‘technical’ problems do not require a framework of international legislation, or collective will-formation. Neil Walker argues that the ‘modesty’ of the role for the world organisation reflects a conviction ‘that justly vested and effective political capacity depends upon conscious and reflexive choice by particular political associations or communities of attachment’;128 it reflects Habermas’ continuing commitment to the democratic Rechtsstaat. At the global level there would be a ‘global domestic politics’, but without a world government, with consensus emerging on the limited functions of securing international peace and security and protection of international human rights norms (although Habermas fails to acknowledge the need for state-like institutions for securing human rights and international peace and security). The difficulty with the analysis is that whilst it might be possible to agree that the role of a world organisation should be limited to securing peace and security and human rights (and that must be subject to reasonable disagreement), there is no consensus on what measures would be required in practice. Disputes around the necessity (or otherwise) of military interventions are a significant aspect of politics in world society (consider, for example, arguments around military interventions in Kosovo and Iraq), and international human rights norms exhibit an indeterminate and contestable quality. In state law systems, decisions on peace and security are taken by government bodies that are ultimately accountable to the people, and the scope and content of human rights determined through constitutional processes (both legislative and judicial). It is not clear how a (nondemocratic) world government could be accountable for decisions on international peace and security or legislate legitimate human rights norms, as Habermas abandons his co-originality thesis at the global level, removing the necessary link between democracy and rights, between public and private autonomy: international human rights are entrenched and protected by international institutions, but are not in any meaningful

127 William Scheuerman, ‘Global Governance without Global Government? Habermas on Postnational Democracy Political Theory’ (2008) 36 Political Theory 133, 149. 128 Neil Walker, ‘Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalization of International Law’ EUI Working Papers Law No 2005/17 (2005) 7.

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120 Democracy Within and Beyond the State way subject to democratic opinion- and will-formation.129 Martti Koskenniemi makes the point that the universal and factoid nature of international human rights sits uneasily with the idea of democracy: ‘the more we insist on the ability of rights to impose an external standard for the community, the more it starts to resemble theology, and the more difficult we have in aligning it with the ideal of popular sovereignty’.130 In a subsequent article, Habermas reaffirms his position that a political world constitution does not require the establishment of a global state, concluding that ‘a politically constituted world society would be composed of citizens and states’.131 Both individuals and states are the ‘founding subjects of a world constitution’, and both paths of legitimisation flow from the citizen, as cosmopolitan citizen, and national citizen.132 There would be two paths of legitimation for a politically constituted world society: the first would lead from cosmopolitan citizens, via an international community of states, to the peace and human rights policy of the world organisation; the second from national citizens, via the state, and any regional regime, ‘to the transnational negotiation system that would be responsible, within the framework of the international community, for issues of global domestic politics’. Both paths would meet in the General Assembly of the world organisation,133 which would be composed of representatives of cosmopolitan citizens and delegates from the democratically elected parliaments of member states (or alternatively one chamber for the representatives of the cosmopolitan citizens, and one for the representatives of the states). Delegates would combine the task of representing the citizens of (their) states, and represent the same citizens in their capacity as cosmopolitan citizens. The function of the General Assembly would be that of a ‘World Parliament, although its legislative function would be confined to the interpretation and elaboration of the Charter.’ 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 by creating a more centralised democratic world organisation, a ‘minimal world state’ that complements the existing system of national self-determination, and is capable of securing human rights: Ronald Tinnevelt and Thomas Mertens, ‘The World State: a Forbidding Nightmare of Tyranny? Habermas on the Institutional Implications of Moral Cosmopolitanism’ (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 Legitimation Problems of a Constitution for World Society’ (2008) 15 Constellations 444, 448 (emphasis in original). The constitutional state qualifies by virtue of its role in guaranteeing the political self-determination of citizens and in making state government institutions available for the coercive enforcement of international law norms (through legitimate violence). 132 ibid at 449 (emphasis in original). 133 ibid at 448.

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Conclusion 121 for processes of opinion- and will-formation concerning the ‘principles of transnational justice from which global domestic politics should take its orientation’.134 According to the revised model of global governance, the practices of the world organisation, including the reformed General Assembly and Security Council, would be legitimised by a ‘functional global public sphere’, which has not yet emerged. It would require that ‘[v]igilant civil society actors’ generate worldwide transparency on global political issues, allowing cosmopolitan citizens to develop informed opinions and positions on relevant issues that could produce effects through elections to the General Assembly. Habermas admits that ‘a diffuse world public opinion armed solely with the weak sanctioning power of “naming and shaming” could at best exert a weak form of control over the interpretive, executive, and judicial decisions of the world organization’. The deficit might though ‘be made good’ through enhanced internal controls, including a right of veto for the General Assembly in relation to the resolutions of a reformed Security Council and rights of appeal to an international court for parties subject to Security Council sanctions. Provided that the world organisation operated in accordance with constitutional principles that reflect existing democratic processes at the level of the state, ‘it might be acceptable that the remaining need for legitimation would be met by an informal global opinion’.135 Elsewhere, Habermas concludes that opinion- and will-formation ‘within the world organization could be more closely connected back to the communications flows of national parliaments and more effectively exposed to the monitoring of nongovernmental organizations (NGOs) and other representatives of a mobilized world public’.136 CONCLUSION

The deliberative model developed by Jürgen Habermas presents the most rigorous and sophisticated justification of liberal democracy 134 ibid at 449 (emphasis in original). Heikki Patomaki calls for the establishment of a world parliament of two chambers that would express a democratic and legitimate public opinion (or opinio juris) of the world community, replacing the current idea of ‘international community’. The first chamber would be a directly elected body of citizens’ representatives, the second chamber would consist of legal experts, who would determine whether the decisions of the first chamber are reasonably based on the existing body of law, with the second chamber given limited veto powers. The members of the second chamber would be nominated by states, international courts and law schools of various universities representing different parts of the world: Heikki Patomaki, ‘Rethinking Global Parliament: Beyond the 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.

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122

Democracy Within and Beyond the State

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 as participants in rational discourses (the principle of discourse). Applied to the practice of democracy, the deliberative model makes clear that politics must be grounded in arguments around what is equally good for all (it is not sufficient simply to aggregate a majority of self-interested positions), and conducted in accordance with the principles of rationality and public reason. The parliamentary principle establishes the importance of representative assemblies, and the need to ensure that representatives remain tied to the flows of opinion- and will-formation that emerge in the public sphere. The democratic model of judicial review affirms the position that all constitutional (as well as political) law norms are ultimately subject to the democratic will of the people. The difficulty with the analysis is twofold. First, it fails to locate the constitutional democratic state in world society and the regulatory framework of international law. The deliberative model is applicable in counterfactual conditions in which a legal order constitutes itself as a voluntary association that is not subject to legal or political pressures from other law orders. Deliberative democracy requires that the people decide all politically decidable issues in accordance with the principle of public reason. Secondly, the attempt to reconcile the authority of the UN in relation to peace and security and human rights with the idea of domestic democracy does not work. Even if we accept, for example, that international human rights norms represent the experiences of liberal democratic peoples (which seems reasonable), there remains the requirement to determine the scope and content of specific human rights norms when applied in domestic societies already subject to democratic law norms and constitutional provisions. There is a need to accommodate the theory and practice of deliberative democracy with the authority of international law, and evaluate the authority of international law in terms of democratic legitimacy.

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3 The State as (Democratic) Self-Legislator

T

HERE IS A sense in the literature that the globalisation and fragmentation of governance functions represents both a collapse of the Westphalian political settlement and a new problem for democracy. The positivist orthodoxy provided that the validity of law rested on an expression of sovereign will, in terms of (internal) state law and (external) international law. Democracy was protected by the limited relevance of international law norms for domestic societies, the sovereign right of non-intervention in domestic affairs, and requirement for consent to international law norms. Democracy legitimacy was provided by the requirement for internal and external law norms to reflect the will of the people, agreed through democratic procedures. On this understanding, it was possible (at least hypothetically) to suggest that all (‘Westphalian’) forms of law could be regarded as democratic, with democratic representation occurring through a ‘two-link chain’, internally through domestic democratic institutions and externally through the inter-state system.1 The objectives of this chapter are to examine this argument and outline the problem for democracy that results from the existence and authority of a system of international law. The chapter first examines the emergence of the sovereign state and idea of sovereignty before outlining the Westphalian ideal of state as (sovereign) self-legislator. In terms of democratic legitimacy, the work rejects the argument grounded in the metaphor of contract in international relations, and locates political legitimacy for international law norms in the authority of the system of international law and in the processes of (deliberative) diplomacy that conclude in agreement. The autonomous international law order is not subject to the (democratic) will of the state, a point emphasised through an evaluation of the sources of international law. It is not possible to refer to an idea of absolute self-determination following recognition of the existence of a system of international law.

1 Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373, 393.

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124 The State as (Democratic) Self-Legislator THE SOVEREIGN STATE

The transition from the medieval to the modern world had at its core the institution of the sovereign state, and corresponding international community of states. Social and political upheavals, including plague induced demographic changes, a commercial revolution, and the Reformation, produced a political vacuum from which emerged territorial units under the political authority of regional monarchies.2 The development was particularly noteworthy in Italy, with the rise of independent communities, 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 justification for recognising the political independence of the ‘sovereign’ state. The international law orthodoxy is that the Treaty of Westphalia 1648 marked the end of one epoch and the opening of another, replacing the Christian commonwealth under the authority of the Pope and Holy Roman Emperor.4 This idea of Westphalian sovereignty was said to provide a ‘bundle of attributes [,] [including] territory, recognition, autonomy, and control’.5 The new system rested on ‘international law and the balance of power, a law operating between rather than above states’.6 From the time of the publication of Emer de Vattel’s Le droit des gens (1758),7 international law was positivist and consensual, with the will of states explaining the content and the binding force of the system.

2 Christian Reus-Smit, ‘Politics and International Legal Obligation’ (2003) European Journal of International Relations 591, 617. cf Charles Tilly, Coercion, Capital, and European States, 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 practice of religion. ‘Article 5, paragraph 11, established that a ruler who chose to change its religion could not compel its subjects to do the same. The Treaties formally recognised freedom of conscience for Catholics living in Protestant areas and vice versa’: Stéphane Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or Reality?’ (2000) 2 Journal of the History of International Law 148, 164 (references omitted). 5 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton, Princeton University Press, 1999) 220. Krasner identifies three aspects of sovereignty: international legal sovereignty, ie, the right of recognised sovereign territories to enter into international agreements; Westphalian (or ‘Vattelian’) sovereignty, the principle of non-intervention in the internal affairs of states; and domestic sovereignty, which concerns the institutions under which a particular state is governed and their effectiveness: Stephen Krasner, ‘The Hole in the Whole: Sovereignty, Shared Sovereignty, and International Law’ (2004) 25 Michigan Journal of International Law 1075, 1077. 6 Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal of International Law 20, 29. 7 Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (Dublin, Luke White, 1787).

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Whilst it is difficult to read any general principle of sovereignty in the Peace Treaty between the Holy Roman Emperor and the King of France and their Respective Allies, international lawyers have, over time, come to refer to the idea of state sovereignty in terms of Westphalian sovereignty.8 After ‘Westphalia’, the language of international justification shifted, albeit gradually, away from an idea and image of Christian unity, to one of diversity, based on a secular society of self-determining sovereign states.9 A system of public international law emerged, and by the eighteenth century Europe had become a society of sovereign states governed by legal rules that were determined exclusively by the members of that society.10 International law was the result of consent between sovereigns and not some ‘pre-existing [Christian] morality.’11 Martti Koskenniemi explains the emergence of the modern legal world in terms of a ‘social contract’, with the international law system emerging from the 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 of individual expressions of sovereign consent, with the system of general international law limited to (secondary) rules about rules, principally pacta sunt servanda (agreements or promises must be kept). The era of international legal positivism resulted, as Leo Gross observes, in absolutist states, jealous of their territorial sovereignty to the point where the idea of an international community became an almost empty phrase and where international law came to depend on the will of states more concerned with the preservation and expansion of their power than with the establishment of a rule of law.13

Following Westphalia, global governance actors constituted a political system that divided first Europe and later the entire world into clearly demarked territorial units with clear hierarchical structures of government.14 Sovereign will defined the content and binding nature of international 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 and Historical 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 Legal Argument (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 that permanently separated the two crowns, enshrining a new principle that sovereign rights

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126 The State as (Democratic) Self-Legislator authority ‘to determine further its own constitutional authority’.15 The development of the state and international law were ‘mutually reinforcing processes’,16 with states constituting the international law system, which in turn constituted the sovereign state as the principle actor in the international law order.17 Sovereignty was, and remains, a question of status:18 the right to be recognised as an independent political unit, enjoying the rights and privileges that follow recognition, including the right to contract in international law and freedom of internal political self-determination. Sovereignty provided those societies organised (and recognised) as states with a right of political self-determination. States co-existed on the basis of (sovereign) equality, with each state society protected from interferences by other state societies. Writing in the first edition of the American Journal of International Law, Robert Lansing observed that it was an accepted principle of international law that every state, whatever may be its population, power and resources, is the political equal of every other state, and that its sovereign is independent and supreme within the state. There is no such thing as degrees of sovereignty among states; the nature of real sovereignty precludes such a thought.19

International law allowed states to exercise both internal and external political self-determination in a legal system designed to support their autonomous political development. Gregory Fox observes that the emergence of the state as a separate legal entity provided an incentive to develop an international law system that protected the central attribute of the juridical personality of the state: the exercise of exclusive political authority in respect of a defined territory. With the development of the idea of popular sovereignty (the ‘will of the people’), and the embodiment of nationalist myths within each ‘Nation’, the social, economic,

were to be territorially bounded: Christian Reus-Smit, ‘Politics and International Legal Obligation’ (2003) 9 European Journal of International Relations 591, 619. 15 Daniel Philpott, ‘Westphalia, Authority, and International Society’ (1999) XLVII Political 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 of treaties: Stephen Neff, War and the Law of Nations: a General History (Cambridge, Cambridge University 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 Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999, 1067–68. 18 Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with International 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 be left 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 of International Law 105, 124.

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political and cultural distinctiveness of the sovereign state become even more deserving of protection and the international law system was placed at the disposal of the state-building project, ‘allowing the individual identities of European States to unfold at a pace dictated by domestic politics’.20 Within the state, clear hierarchical structures of government developed that claimed a monopoly on the legitimate use of force, and (often) a monopoly on the prerogative of law-making.21 Internal sovereignty did not imply absolutism, however: the idea, if not the practice, of human rights also emerges in political thought in the seventeenth century, reflecting a belief that there are inherent limits on the 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 of Independence and French Revolution, that it comes to be understood as the ‘foundational law which first purports to set out the objectives of a political community in terms that correspond to the interests of that political community and, secondly, distributes and constrains administrative power’.23 Modern political constitutions are ways of organising and constituting power, and thereby conferring authority.24 The idea has come to be understood as a foundational agreement, framed in terms of law, that both constructs and constraint political power, ie the constitution identifies the institutions entitled to exercise political authority, the conditions under which it may be exercised (and any limits), and the political objectives and values of the political community, framed in terms of (political) justice. In the constitutional state, political authority is exercised within an agreed constitutional framework, and, according to the fiction of the social contract, in accordance with the will of the people, expressed in the idea of popular sovereignty. The people provide the ultimate source of all legal and political authority. Law is an expression of the general will, and as the Declaration of the Rights of Man (1789) makes clear: ‘Every citizen has a right to participate personally, or through his representative, 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. 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’ in Walter Lacquer and Barry Rubin (eds), The Human Rights Reader (Philadelphia, Temple University 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. 22

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128 The State as (Democratic) Self-Legislator THE STATE AS SELF-LEGISLATOR

The Westphalian settlement (according to the international law narrative) constructed the modern political world, establishing the sovereign territorial state, and dividing the idea of law along a strict binary line: (internal) state law in accordance with a (self-given) constitutional law order, and (external) inter-Nation (international) law that relied on the principle of (sovereign) consent. The international order was organised in accordance with the principle of sovereignty and requirement of consent for the introduction of international law norms. Ian Brownlie observes that the sovereignty and equality of states is ‘the basic constitutional doctrine of the law of nations’. One corollary is the ‘dependence of obligations arising under customary law and treaties on the consent of the obligor’.26 The International Court of Justice has referred to ‘the fundamental principle of State sovereignty, on which the whole of international law rests’.27 In Case of the S.S. ‘Lotus’, when international law ‘first asked itself whether the international legal order was fundamentally one of sovereign freedom or constraint’,28 the Permanent Court of International Justice affirmed that international law ‘governs rules between independent States. The rules of law binding upon States therefore emanate from their own free will’.29 States enjoy both a right of internal self-determination, and the right to accept or reject emerging international law norms. Koskenniemi explains: ‘One aspect of sovereignty is the liberty to “legislate” international norms which bind oneself.’ 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 positivist orthodoxy,31 is the result of a complex web of voluntary legal relationships between sovereign and independent states.32 Yet the fact that

26 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 289. 27 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 [263]. 28 David Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’ (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 Ratner and Anne-Marie Slaughter, ‘Appraising the Methods of International Law: a Prospectus for Readers’ (1999) 93 American Journal of International Law 291, 293. 32 The International Court of Justice has referred to the ‘edifice of [international] law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community’: United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [92].

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international law norms, once agreed, are binding undermines the claim of the state to be ‘sovereign’.33 But if states were free to reject existing international law commitments, it would be meaningless to refer to the idea of a system of international law. States cannot, at one and the same time, be ‘absolute’ sovereigns and subject to international law norms. The binding force of international law cannot logically be found in positive law itself.34 The position in international law was expressed by the Permanent Court of International Justice in Case of SS ‘Wimbledon’: ‘The Court declines to see in the conclusion of any Treaty… an abandonment of [State] sovereignty… [T]he right of entering into international agreement is an attribute of State sovereignty.’35 The sovereignty of states, as Hans Kelsen explains, ‘is the legal authority of the States under the authority of international law’.36 The state is sovereign ‘when it is subjected only to international law, not to the national law of any other State. Consequently, the State’s sovereignty under international law is its legal independence from other States.’37 Sovereignty provides the right to be subject only to international law, and not (other) state law systems, and to determine which international laws will apply to the state. It is not a right of absolute political self-determination (ie a right to reject existing international law norms): The fact that a State has, by concluding the treaty, given its consent to the competence of the agency established by the treaty is quite compatible with the fact 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 State remains legally bound by the treaty, even if it ceases to will what it declared to will at the moment it concluded the treaty. Only at that moment is concordance of the wills of the contracting States necessary in order to create the duties and rights established by the treaty. The fact that the contracting State remains legally bound by the treaty without regard to a unilateral change of will clearly proves that a State can be bound even against its will and that the autonomy of the State under international law is not, and cannot be, unlimited.38

Absolute self-determination is not possible for the sovereign state in the international law system. Once international relations are defined in terms 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 the common property of the international community and were confirmed in the interest of all.’ 33 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton, Princeton University Press, 1999) 224. 34 Hans Morgenthau, ‘Positivism, Functionalism, and International Law’ (1940) 34 American 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 International Organization’ (1944) 53 Yale Law Journal 207, 208. 37 ibid at 210. 38 ibid at 210–11.

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130 The State as (Democratic) Self-Legislator guide for future actions.39 Recourse to international law ensures that future relations will be conducted in accordance with agreed rules, even against short-term interests. The voluntary act of contracting subjects the state to international law, constraining the scope of (democratic) selfdetermination. Disputes in international law emerge in relation to disagreements on ‘a point of law or fact, a conflict of legal views or of interests between two persons’.40 The presumption is that that a dispute is capable (in principle) of being resolved in accordance with international law, and not the sovereign (or democratic) will of one or more of the parties. The dominant mindset of the international lawyers is one of adjudication, not the arbitration of competing moral and political claims.41 The presumption that a dispute can be resolved in accordance with international law applies equally in bilateral settings, where only the states parties to a dispute are involved. In cases of disagreement over the interpretation of the meaning, scope and content of an international law norm a ‘dynamic of justification’ emerges, as each party will justify its position to the other disputant in the hope of establishing a common understanding. Differences in interpretation can be reconciled, provided that the will exists, with an authoritative interpretation of the legal text resulting from a process of inter-subjective argumentation which results in agreement.42 Disputes in international relations on points of international law are resolved by reference to the techniques of public international law for the interpretation and application of international law norms. Ian Johnstone makes the point that processes of dispute resolution are constrained by the existence of law norms that provide both evidence of a commitment to comply with the substantive obligations, and to engage in a process of constructing the meaning of the relationship together. The argument applies to all international law agreements, including constitutional instruments such as the Charter of the United Nations (UN), the latter of

39 In Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judge Valticos observed that the function of the International Court of Justice was to ‘resolve disputes by means of legal solutions and, in so doing, to elicit, state and exemplify the relevant rule of international law… In so doing, it will also be able to contribute to that clarity, certainty, predictability and stability which are so essential in international law’: Continental Shelf (Libyan Arab Jarnahiriya/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 codified law. The aim of the process was to arrive at a fair and equitable decision through an assessment of competing moral claims: Christian Reus-Smit, ‘The Constitutional Structure of International Society and the Nature of Fundamental Institutions’ (1997) 51 International Organization 555, 574–75. 42 Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Massachusetts, Harvard University Press, 1998) 123.

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which are more open-textured. Drawing on Owen Fiss’ theory of ‘bounded objectivity’, in which interpretation is constrained by a set of disciplining rules recognised as authoritative by an interpretive community,43 Johnstone argues that the meaning of any word, or set or words, is either clear or capable of clarification, because communication occurs within situations and ‘to be in a situation is already to be in possession of (or to be possessed by) a structure of assumptions, of practices understood to be relevant in relation to purposes and goals that are already in place’.

Disputes over the interpretation of law norms are resolved by the conventions of description, argument, judgement and persuasion as they operate within a given ‘interpretive community’.44 Where another is persuaded, it is not because the truth of the interpretation has been demonstrated, ‘but because the listener and speaker have settled on certain common beliefs and categories of understanding’.45 By entering a treaty regime, state parties not only agree to be bound by the terms of the agreement, ‘but also to a process of interpretation whose goal is an intersubjective understanding of the treaty terms’. In this way they create and constitute an interpretive community, whose function is ‘to “uncover together” 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 interpretive authority can be found either in the text or with the reader, and from an observation of both agreement and disagreement in the interpretation of texts. Meaning is not produced by the text or the reader, but by the interpretive community in which both are situated. In this sense, interpreters are no longer individuals, but together form a community of interpreters with a shared understanding as to the task of interpretation.47 The act of interpretation is not constrained by the language of the text, or its context, but by the ‘cultural assumptions within which both texts and contexts take shape for situated agents’.48 In relation to international law, Johnstone identifies an interpretive community with two concentric circles: an inner circle, consisting of those individuals responsible for the formulation, negotiation, conclusion, implementation and application 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) 14 European Journal of International Law 437, 444. 48 Fish, Doing What Comes Naturally (1989) at 300.

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132 The State as (Democratic) Self-Legislator other experts engaged in professional activities associated with the area regulated by the law norm. Members of the inner circle are responsible for the processes that bring international law norms into existence, and for their implementation and application. The outer circle is composed of ‘an amorphous group of all those regarded as possessing expertise in international law and/or special knowledge in the relevant field[,] [and] who are dedicated to a common intellectual enterprise and engage in a continuous process of communication and collaboration’.49 The outer circle includes all those individuals (judges, national government officials, international bureaucrats, lawyers, academics, and individuals working for international non-governmental organisations, etc) who participate in some way in the practice of international law, or in the interpretation or application of international law norms. What unites them is that they regard themselves as being engaged in a common activity requiring ‘a mastering of discipline or technique’.50 The interpretation and application of (agreed) international law norms is undertaken in accordance with the disciplinary techniques and understandings of international law. Whilst the establishment of international law obligations depends (formally) on an expression of political will, the interpretation of international law norms is not exclusively the responsibility of the states parties to the international agreement.51 John Griffiths observes that the first consequence of embodying a political decision in legal form ‘is that lawyers become involved in all aspects of the execution of the decision – its formulation, its interpretation, and its application’. The importance of law resides, in part, ‘in the effects of those special characteristics of lawyers’.52 A second consequence ‘is that the resulting legal rule takes its place in an existing body of legal propositions and accepted criteria of legal reasoning’.53 The fact that a political decision is framed in terms of law might be important because of the importance of lawyers, or because of the partial autonomy of law.54 Koskenniemi observes that legal words ‘cannot be separated from the language in

49

Johnstone (n 47) at 450. 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 ‘is measured by how the legal world will view the outcome’: Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International 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). 53 ibid at 360. 54 ibid at 363. 50

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which they lead their life. They operate only in the context of other legal words and of a professional grammar about how they are used in relation to each other’.55 The meaning of words and phrases (and consequently of international law norms) is provided by the discipline of international law. As the International Court of Justice observed in the South-West Africa case, the meaning of legal terms must be understood in light of the ‘framework of the entire legal system prevailing at the time of interpretation’.56 The idea of international law as a legal system requires that participants argue and debate with the lawyers’ tools of interpretation, deduction and inference. The ‘vision’ of international law as a legal system, as opposed to a mere collection of discrete treaties, allows participants ‘to interpret, deduct, draw inferences and resolve conflicts not only by resorting to the specific treaties at hand but also by relying on the basic principles of the system and its underlying norms’.57 The (voluntary) acceptance of the authority of international law norms subjects the (sovereign) state to the discipline of international law.58 From the perspective of domestic democracy, the existence of a binding system of international law is inherently problematic.

CONTRACTUAL AUTONOMY

The subjection of the state to the authority of international law is problematic from both the perspective of (‘unlimited and illimitable’) sovereignty and (absolute) democratic self-determination in relation to a territory. International law scholars have never satisfactorily explained how it was possible that a sovereign could limit its freedom of action through entering into international law agreements. David Kennedy observes that the candidates for the international meta-principle ‘are 55 Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about 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 law norms only changes where the parties intended the meaning to alter in light of changing circumstances. See Duncan French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 International and Comparative Law Quarterly 281, 296. 57 Eyal Benvenisti, ‘The Conception of International Law as a Legal System’ (2008) 50 German Yearbook of International Law 393 (SSRN) 4. 58 See, for example, Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 [114]: ‘The Court would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between States, which the parties have implemented in considerable measure and at great cost over a period of years, might be unilaterally set aside on grounds of reciprocal noncompliance.’

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134 The State as (Democratic) Self-Legislator legion, and quite familiar’: the ‘nature’ or ‘requirements’ of an international system (of states); the ‘status’ of statehood, and ‘nature’ of sovereignty; and/or utility, legitimate expectations, and reciprocity.59 The difficulty created by the requirement to subject sovereign will to the authority of international law led positivist scholars to develop ‘a series of even more elaborate “theories” of law which could retain law’s roots in consent and still explain its force against the dissenter’.60 It was not, however, possible for international law theories to satisfactorily explain how international law obligations could be imposed on a sovereign state with its consent.61 The Westphalian paradigm is one of a global state of nature, in which actors remain free until they consent to limitations on their freedom of action (the ‘Lotus’ principle). Rights and obligations are essentially a bilateral matter, with treaties (including multilateral treaties) analogous to private law contracts. The model proceeds from the assumptions that states are sovereign, and that expressions of sovereign consent create international law norms that bind the state, but it is not clear why this should be the case. From the end of the nineteenth century, the private law metaphor came to dominate, and international treaties are often written about as if they were private law contracts,62 binding actors in a legal relationship that can only be avoided in case of supervening impossibility of performance,63 fundamental change of circumstances,64 or emergence of a new peremptory norm.65 States were unified sovereigns, analogous in competence to the individual.66 An act of contractual autonomy generated an expectation that agreed law norms would be followed (the ‘jus-natural maxim’ pacta sunt servanda), ‘not because of any sovereign command but because [the state] consented to them’.67

59 David Kennedy, ‘Theses about International Law Discourse’ (1980) 23 German Yearbook 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 justifications adduced 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 follow morality), to Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (1688), concluding that two ideas underpinned its conception: that the relationship between the sovereign and subject (within the state) and between sovereigns was governed by a moral framework, and that (in contrast to Hobbes) the state of nature was a state of peace

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Friedrich Kratochwil argues that the contractual analogy ‘“solved” the problem of how “persons of sovereign authority” were to relate to each other in international politics’, allowing the voluntary creation of international law rights and obligations, ‘while at the same time preserving the sovereigns’ independence and authority’.68 The right to contract is an aspect of private law. It subjects the (economic) relations of autonomous actors to agreed law norms defined at a particular moment in time. Democracy is an ongoing process of debate, deliberation and choice; it is not logically possible to ground the democratic legitimacy of international law in the consent of states. Analogous to constitutional law norms, an international norm commits the people to a standard of behaviour that is not subject to review or repeal through ‘normal’ (domestic) politics and democratic will-formation. Whilst constitutional law norms remain ultimately subject to the will of the people, through reform or (legal) revolution, international law norms are only subject to reform, modification or repeal with the consent of other states parties to an agreement. Even if a treaty were ratified only by democratic states, following extensive forms of democratic deliberation and review at the domestic level, it would not enjoy democratic legitimacy on an ongoing basis: ‘consent lies properly within the domain of contracts, not democratic politics[,] [which must take into account] the present-day wishes of present-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-interested bargaining that results in a mutually beneficial agreement. Sovereignty and democratic self-determination are protected to the extent that the agreement is concluded in the absence of coercion or manipulation (and in accordance with the will of the people). The difficulties inherent in the contractual analogy becomes apparent with the change in the nature of international law from a bilateral model of inter-state bargaining to a governance system of international public law regulation, much of which and gaps in the law of nature could be filled by agreement: Richard Hyland, ‘Pacta Sunt Servanda: A Meditation’ (1993/4) 34 Virginia Journal of International Law 405, 423. See also Hans Wehberg, ‘Pacta Sunt Servanda’ (1959) 53 American Journal of International Law 775. 68 Friedrich Kratochwil, ‘The Limits of Contract’ (1994) European Journal of International Law 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 for democracy even though these tribunals further justice’: ibid at 526.

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136 The State as (Democratic) Self-Legislator is greatly intrusive in domestic social, economic and political life. Brownlie points to a general distinction in the literature between treaties ‘involving bargains between states’, which are ‘like contracts’, and multilateral treaties creating either a set of rules, or an institution, which may be referred to as ‘law-making’.70 Law-making treaties are often the product of conferences of the negotiating parties (or series of conferences) within formal diplomatic settings. The development can be seen as a more ‘democratic’ method than bilateral treaty negotiations, facilitating values of ‘discussion, negotiation, compromise, persuasion, influence and participation’.71 Boyle and Chinkin accept that ‘leading states’ remain highly influential,72 but conclude that broad participation in multilateral law-making fora ‘enhances the democratic nature of the process’.73 This is particularly the case ‘when the negotiating power of individual states, however small, is strengthened by consensus negotiating procedures’.74 Consensus is defined as ‘the absence of any formal objection’.75 Where consensus is required, democratic states cannot be subject 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’ international law instruments has been the UN General Assembly. International lawmaking through such institutions creates a number of problems for regarding the state as a ‘self-legislator’ as the influence of any one state is 70 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 637. 71 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford, Oxford University 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 European Journal of International Law 1, 33; Gregory Shaffer criticises the ‘green room’ practices in the World Trade Organization (WTO), whereby the officials leading a negotiation will invite selected governments into a room to hammer out a deal that is later presented to the entire membership: 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 Governance (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 of national parliaments in the scrutiny of foreign policy and activities of international institutions. 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) 1 Chicago Journal of International Law 223, 228; also, ‘Cardoso’ Report of the Panel of Eminent Persons on United Nations–Civil Society Relations, ‘We the peoples: civil society, the United Nations and global governance’ UN Doc A/58/817, 11 June 2004, para 187; and General Assembly (GA) Res 60/1, ‘2005 World Summit Outcome’ (adopted without a vote on 16 September 2005) paras 171–72.

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reduced in multilateral negotiations, with the consequence that the outcome of treaty negotiations is less likely to reflect initial preferences; further, most treaty negotiations are undertaken in public, allowing arguments to be subject to scrutiny, and pressure brought to bear on negotiations by domestic and international non-governmental organisations. The complex nature of diplomatic negotiations and need to accommodate divergent (and possibly conflicting) perspectives in a consensus agreement often leads to the adoption of open-textured instruments that contain little in the way of specific detail. In contrast to contractual documents, the agreement subjects the states parties to a particular (if indeterminate) modus vivendi. The approach might promote inter-state cooperation, but it limits the influence of domestic publics on the development of international law norms, and empowers international lawyers, who interpret the scope and content of (indeterminate) norms. The development is particularly significant in relation to framework conventions, the notable feature of which is the deliberate indeterminacy, at least initially, of the obligations of states parties. The principal obligation is to participate in the collective development of international law norms at quasi-institutionalised conferences or meetings of the parties.77 The approach has been noteworthy in relation to environmental agreements. Examples include the Vienna Convention for the Protection of the Ozone Layer,78 and Montreal Protocol;79 and the UN Framework Convention on Climate Change,80 and Kyoto Protocol.81 Laurence Helfer outlines the distinctive nature of the ‘framework-protocol’ approach. First, states convene a diplomatic conference to discuss a problem relating to the global environment and possible responses. The conference concludes with the adoption of a ‘“shallow” treaty that contains relatively modest commitments’. The treaty expresses the shared concern of states parties and their commitment to find a solution; creates mechanisms for the gathering and sharing of information; and adopts a structure for future negotiations. The next stage involves the ‘expansion, tightening, speeding-up or other adjustment of the parties’ commitments’. Here, the ‘framework-protocol’ approach deviates from a consent-based approach to international law-making, through the use of majority or qualified majority voting systems, and the entry into force of

77 José E. Alvarez, ‘International Organizations: Then and Now’ (2006) 100 American Journal 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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138 The State as (Democratic) Self-Legislator instruments without the need for state-by-state ratification.82 Whilst the instrument may permit a state to object (preventing its entry into force in relation to the dissenting state), the ‘majority-adoption rules and tacitacceptance procedures [grant] de facto lawmaking powers to the “conference of the parties” for each agreement, transforming those treaty-based collective bodies “into issue-specific equivalents of global legislatures”.’83

DELIBERATIVE DIPLOMACY

Diplomacy is an essential mechanism for the development of international law norms, which reflect the political will of states.84 The idea of contract can explain the establishment of inter-state agreements, but not the authority, or (democratic) legitimacy, of international law norms (or international law).85 In terms of democratic legitimacy, a significant body of political thought argues that where a political community exhibits significant and persistent disagreements between different groups, defined by reference to ethno-cultural identity and the absence of a common sense of political identity, it is better to give precedence to bargaining or ‘consociational’ procedures. Consociational democracy provides for the introduction of a power-sharing scheme that requires political elites to bargain in the interests of their respective group. The system should allow for political self-determination within each group (often defined by reference to territory), and provide mechanisms for group cooperation and bargaining over public goods. It should also protect minority communities against any tyranny of majority rule. There are four central features in the consociational model, which is associated

82 Laurence R. Helfer, ‘Nonconsensual International Lawmaking’ (2008) University of Illinois 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 essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means’: United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [91]. 85 The idea that contractual autonomy might provide democratic legitimacy for international law norms creates a number of difficulties, not least that it might hold democracies to higher standards of compliance with international law norms than non-democracies. Consider, for example, a bilateral treaty between a democratic state and authoritarian state for the processing of dangerous waste in the latter. Given that the people of the authoritarian state cannot be said to have meaningfully ‘consented’ to the arrangement, a change of government might provide a democratic right to repudiate the treaty.

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most closely with the work of Arend Lijphart:86 a grand coalition, or power sharing executive; proportionate allocation of public goods, such as resources and opportunities; minority veto; and segmental autonomy, often defined in terms of territorial autonomy.87 A number of writers have sought to read the international system in light of the model, with states replacing ethno-cultural groups as the sub-entities with competing and conflicting interests. Margaret Moore, for example, argues that the consociational model can explain the democratic legitimacy of international organisations in that the participation of governments ensures that ‘each political community has a “voice” and some influence over policies in the international organizations’.88 The function of national political leaders is to bargain hard on behalf of citizens over the distribution of international public goods, not to promote the general interest. Other consociational features may be read into the inter-state system, including the principle of consent (minority veto), and sovereignty and nonintervention (territorial autonomy). To the extent that the consociational model is consistent with the principles of democracy (and I have argued elsewhere that it is not),89 global governance is democratically legitimate to the extent that it develops and sustains consociational institutions and structures.90 Though superficially attractive, the argument for reading the democratic legitimacy of international law in terms of consociational practices is ultimately unconvincing. In the practice of consociational politics, there is a logic of political extremism, as representatives bargain hard over political goods in a zero-sum game. Bargaining is characterised by actors seeking to achieve pre-determined objectives ‘by exchanging demands backed by credible promises, threats, or exit opportunities’. The

86 See, for example, Arend Lijphart, ‘Consociational Democracy’ (1969) 21 World Politics 207; 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 in Power-Sharing Systems’ in Will Kymlicka (ed), The Rights of Minority Cultures (Oxford, Oxford University Press, 1995) 275, 278. 88 Margaret Moore, ‘Globalization and Democratization: Institutional Design for Global Institutions’ (2006) 37 Journal of Social Philosophy 21, 38. 89 Steven Wheatley, Democracy, Minorities and International Law (Cambridge, Cambridge University Press, 2005) 166–67. In a democratic society, governments emerge from an electoral process that constitutes an expression of the ‘will of the people’. The state may facilitate a more representative executive through its choice of electoral system, or constitutional 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. Consociational democracy 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 democracy by reference to ideas of transitional justice 90 See Anne Peters, ‘European Democracy after the 2003 Convention’ (2003) 41 Common Market Law Review 37, 84.

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140 The State as (Democratic) Self-Legislator goal is to maximise given preferences. In the absence of significant disparities in power, which make threats credible, bargaining is unlikely to be effective. Thomas Risse observes that bargaining is only one of three possible ways in which states may communicate with each other, and it is the least likely to be successful in terms of allowing for inter-state cooperation. The second concerns the use of rhetoric, whereby states attempt to persuade others ‘that they should change their views of the world, their normative beliefs, their preferences, and even their identities’, but do not accept that they may be persuaded by the arguments of others.91 The use of rhetoric is not discursive, although it implies certain discursive practices, as participants cannot simply repeat their positions in the expectations that others will eventually be persuaded. The third possibility, drawing on Jürgen Habermas’ theory of communicative action, is to understand diplomatic conversations as a process of ‘arguing’, understood in terms of giving reasons (not heated discussions). Arguing occurs where the focus of diplomacy is on achieving a reasoned consensus, 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 their positions when faced with a ‘better argument’. It is an application of Habermas’ principle of discourse: ‘D: Just those action norms are valid to which all possible affected persons could agree as participants in rational discourses.’ Where actors deliberate about the truth, or ‘argue’, they are engaged in a form of collective communication that aims to establish whether their assumptions about the world are correct (theoretical discourses), and which norms should apply under given circumstances (practical discourses). Actors will challenge the claims of others, and must accept that their claims will be subject to challenge. The aim is to establish a ‘communicative consensus about their understanding of a situation as well as justifications for the principles and norms guiding their action’. All participants must accept that their position will be changed when faced with the force of the better argument, with relationships of power and social hierarchies receding in the background.93 In a truth-seeking or argumentative process, interests and identities are not fixed, ‘but subject to interrogation and challenges and, thus, to change’.

91 Thomas Risse, ‘“Let’s argue!”: Communicative Action in World Politics’ (2000) 54 International Organization 1, 8 (references omitted). Goldsmith and Posner observe that states provide legal justifications for their actions, no matter how transparently selfinterested those actions may be: Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford, Oxford University Press, 2005) 169. Whilst ‘talk is cheap’, the failure of a state to send such a signal would reveal that it belongs to the ‘bad type’, and would not be a good cooperative partner: ibid at 174. 92 ibid at 9. 93 ibid at 7.

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The objective is an argumentative consensus, not the imposition of a particular world vision.94 Elsewhere, Risse observes that interests, preferences and perceptions in a process of deliberative diplomacy are subject to discursive challenges: Where argumentative rationality prevails, actors do not seek to maximize or to satisfy their given interests and preferences, but to challenge and to justify the validity claims inherent in them – and are prepared to change their views of the world or even their interests in light of the better argument.95

Communicative processes oriented toward achieving mutual understanding presuppose a counterfactual ideal speech situation, in which actors try to persuade each other, and are themselves open to being convinced: ‘The goal of the discursive interaction is to achieve argumentative consensus with the other, not to push through one’s own view of the world or moral values.’ Argumentative rationality requires the existence of a number of preconditions: the ability to empathise, to see the world through the eyes of others; participants must share a ‘common lifeworld’, a common understanding of the world, and their role and that of other participants in the world, and a common system of norms and rules perceived as legitimate to which actors refer in the process of argumentation.96 Further, actors must recognise each other as equals, and have equal access to the discourse, which must also be open to other participants and be public in nature. The pre-conditions for argumentative rationality in the international community are provided by the mutual recognition of sovereign states as equals, and by the common lifeworld reflected in the rules of the international law game.97 Habermas observes that international law ‘lays down the rules of the game’, the qualifications that potential participants must satisfy (effective control of the population of a territory), the admission requirement (recognition), and the idea of status, or sovereignty, including rights of nonintervention, and the right to participate as a full member of the international law system.98

94 ibid at 10. Habermas observes that there is no alternative to ‘multilateral willformation in interstate relations’ because no state, ‘even the good hegemon’, can know better what is good for others, or ‘equally good for all. There is no sensible alternative to the ongoing development of international law into a cosmopolitan order that offers an equal and reciprocal hearing for the voices of all those affected’: Jürgen Habermas, ‘Interpreting the Fall of a Monument’ (2003) 4 German Law Journal 701, 708. 95 Thomas Risse, ‘Global Governance and Communicative Action’ (2004) 39 Government and 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.

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142 The State as (Democratic) Self-Legislator One of the difficulties in applying any concept of democratic legitimacy to the international law order is the differences in power between the various actors. Relations of power impact on the possibility of truth-seeking (ie the formation of international laws in accordance with the requirements of communicative reason) in one of two ways: by restricting access to the deliberations (consider, for example, the limited membership of the UN Security Council), and by limiting what counts as a good argument.99 The issue is not whether power relations are present in international relations (they are), but the extent to which they explain the ‘argumentative outcome’. The following are examples of inappropriate recourse to bargaining or rhetoric, rather than discourse: where actors refer 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 (actors must display ‘argumentative consistency’); and any assumption that ‘the materially more powerful actors’ have the better arguments.100 Risse concludes that processes of arguing are more likely to occur the more actors are uncertain about their interests and even identities; the less actors know about the situation in which they find themselves and about the underlying ‘rules of the game’ (‘common knowledge’); and the more apparently irreconcilable differences prevent them from reaching an optimal rather than a merely satisfactory solution for a widely perceived problem (‘problem solving’).101

In the (hypothetical) ideal speech situation, (democratic) norms emerge through inter-state discussions though an application of the principle of communicative reason applied to the international law of states. Valid international law norms must enjoy the consent of all possible affected states in rational discourses. This does not presuppose that all possible outcomes 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 of the international community. The requirement of rational deliberations and application of the consensus principle prescribes a mechanism for the conduct of diplomatic conversations and discovery of political truths in the international law order, and (logically) proscribes certain (democratic) ‘truths’ from being revealed. Consider, for example, the argument that small states should be regarded as being in an inferior relationship to other states, as was proposed in relation to (very) small states in the

99 100 101

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UN.102 The argument undermines the idea of sovereignty, and would not be accepted by those affected (ie very small states). The requirements for democratic legitimacy in the international law system are a justificatory legal discourse that leads to a negotiated consensus. Ian Johnstone explains: ‘It is a distinctive form of deliberation, or style of argument, that requires a decision to be justified in terms that those who are subject to it can accept, even if they disagree with the decision itself.’103 Self-interested arguments will not persuade others. Participants in consensus-seeking deliberations must rely on ‘generalizable principles, impartial reasons, and arguments that reach beyond narrow self-interest’ to convince others to change their position, and they must be prepared to listen and reflect on the arguments of others. Whilst it is ‘an open question’ as to whether the ideal of deliberative democracy is possible in international relations, there is evidence of legal discourse and argumentation within the international community. States justify their actions largely in terms of international law, and challenge other states to justify their actions in the same terms. The requirement to engage in ‘meaningful legal discourse [and give reasons] generates an expectation that claims will be based on conventions of argument and discourse that operate in the discipline of international law’. Once international relations are framed in terms of law, they operate within the disciplinary constraints of an interpretive community, given that legal discourse, ‘by extension, entails appeals to legal norms as they are understood not by each actor individually (subjectively) or in some abstract sense (objectively), but together as a collective law-interpreting body (inter-subjectively)’.104 States must offer reasonable arguments in diplomatic conversations within a shared understanding about the rules that structure inter-state relations. International law defines and delimits the possibilities of argumentation and justification, ie what counts as a good argument. There are two objections to developing a concept of democratic legitimacy on this basis: first, that governments ‘merely pay lip service to the law and, because international law is so malleable, a legal justification can be found for any action’; and, secondly, that powerful actors ‘so dominate the interpretive community that they are able to control the terms 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: Humanitarian Intervention and Counter-Terrorism’ (2005) 43 Columbia Journal of Transnational Law (2005) 337, 380. 104 ibid at 381.

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144 The State as (Democratic) Self-Legislator interests and wishes’.105 There is, though, a limit to which any legitimating 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 the game’. 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 respect the conventions of argument, persuasion, and justification associated with the particular enterprise in which the deliberations occur.106

The analysis developed by Risse and Johnstone presents important insights for accepting the democratic legitimacy of international law, one that depends on the ability of states to develop democratic ‘truths’ through a process of communicative reason that approximates to the deliberative ideal. In the (hypothetical) ideal speech situation, international law norms should enjoy the consent of all possible affected states in rational discourses. The requirement of rational deliberations and application of the consensus principle prescribes a mechanism for the conduct of diplomatic conversations and discovery of political truths in the international law order, a form of deliberatively diplomacy. The analysis is limited in that not all international law norms can be regarded as an expression of sovereign will, consider for example the development of customary international law (below) and increased reliance on treaties, UN resolutions and other sources for the identification of state practice and customary norms. It is though important in emphasising the requirement of reason and reasoned deliberation. Jens Steffek argues that legitimacy in the modern age ‘is derived from the authority of reason. “Reasoning” or “giving reasons” is the communicative process that legitimates governance.’ The characteristic feature of legitimate global governance is evidence of reasoned argumentation that results in a consensus amongst participants, and it is noteworthy that many forms of inter-state relations ‘are guided by a unanimity rule’, in which ‘all contracting parties need to agree explicitly to the values, goals and procedures of the future regime’.107 Reasoned deliberations leading to consensus is not, however, sufficient to legitimate global governance in the long term. The existence of an international law agreement reflects the fact that states have decided ‘that a certain political goal shall be pursued by the international community for a particular reason’. The agreement will only remain 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. 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. 106

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argument restates the problem of accepting the (ongoing) democratic legitimacy of an inter-state agreement following consensus (deliberative or otherwise) at a particular point in time. International law norms agreed through deliberative processes of diplomacy are more democratic than those that result from other processes (indeed, we might accept them as the democratic laws of the international system), but the problem for democracy remains at the domestic level, as the people can no longer decide all those issues that are politically decidable.

THE INDETERMINACY OF INTERNATIONAL LAW OBLIGATIONS

The function of international lawyers is to judge the conduct of the parties to an international law dispute in accordance with existing law, ie to apply relevant laws to established facts. In many cases the content of international law norms will be the subject of (reasonable) disagreement (the existence of a dispute involves recognition that there are at least two possible interpretations of the scope and content of a law norm). In bilateral relations, where only the states parties are involved, a dispute can only be resolved (within the framework of international law) in accordance with the will of both parties.109 The submission of a dispute to an international court or tribunal involves a rejection of the (sovereign) right of a state to define its obligations under international law (‘state as self-legislator’). The issue becomes one of interpretation of the rights and obligations contained in international law rules and instruments. In Territorial Dispute (Libyan Arab Jamahiriya/Chad), the International Court of Justice affirmed that the rules for the interpretation of treaties in the Vienna Convention on the Law of Treaties reflect a customary international law norm, and that interpretation must be based above all upon the text of the treaty.110 Article 31, the general rule of interpretation, provides that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.111 The consent of the parties is more important than the ordinary usages of language: ‘[a] special meaning shall be given to a term if it is established that the parties so 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 continuance of 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 of their 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).

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146 The State as (Democratic) Self-Legislator account any subsequent agreement between the parties regarding the interpretation of the treaty,114 or practice in its application, which establishes the agreement of the parties regarding its interpretation.115 Reference may also be had to relevant rules of international law applicable in the relations between the parties.116 Article 32 refers to ‘supplementary means of interpretation’, including the preparatory work (travaux préparatoires) leading to the agreement on the text of the treaty, and the circumstances of its conclusion, which may be relied upon to confirm the meaning resulting from application of the general rule of interpretation, or determine the meaning when the application of the rules of interpretation in article 31 leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable.117 Alexander Orakhelashvili concludes that in selecting the methods of interpretation of international law norms, the focus is ‘not what academics [and others] want or perceive them to be, or what could under certain circumstances be sensible, sound, reasonable or agreeable, but what is agreed by and as between States in one way or another’.118 The methods of interpretation reflected in articles 31 and 32 ‘serve the inherent rationale of interpretation – to clarify the meaning of legal norms and instruments on the basis of their rationale’. In determining the appropriate method, what matters are the ‘exigencies [that] follow from the inherent consensual and contractual character of the relevant rules and instruments’. International law instruments do not ‘just embody the intention of the entity that adopts them, but also they are understood in terms of their face value and plain meaning’. The intention of the parties is constrained by the language used to express that intention: ‘The methods of interpretation are aimed at preserving the original consent, will and intention behind the relevant legal instrument and thus at ensuring the determinacy of the relevant provision by enabling its application to facts.’119 Herein lies the difficulty: international law disputes reflect conflicting views 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 shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument 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.

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relevant facts). In Orakhelashvili’s terms, disputes reflect conflicting views as to the original consent, will and intention behind the relevant international instrument. Both parties cannot be right: there must be some objective understanding of the original consent, will and intention of at least one of the parties that is at variance with its understanding of the law. Martti Koskenniemi argues that international law disputes are always hard cases, requiring an exercise of (judicial) discretion,120 because each disputing state will be able to ‘make a prima facie justification of their action by referring to their sovereign liberty’. In order to resolve the dispute, the judge/law-applier must reach a conclusion that ‘privilege[s] one sovereign over another in a manner that necessitates the construction of a hierarchy of values for evaluating sovereign action’.121 The possibility of not deciding is not present; the dispute must be resolved by objective reference to international law.122 The only alternative would be to accept the subjective position of each state as to what it regards as binding law at a particular moment in time. Where the state denies that it has consented to an international law norm, or a particular interpretation, the standard response is to rely on tacit consent. But this assumes either that the law-applier ‘can know-better’ what the state has consented to, or that there is ‘some non-acceptance-related criterion whereby we can judge whether acceptance is present or not’.123 Where the position of the state is not accepted, the imposition of international law obligations no longer relies on the ‘expressed will of the legal subject’.124 What law means will depend on the judgment of the lawapplier.125 In cases of conflict between the sovereign rights of states (where the Lotus principle is not helpful), balancing seems necessary in order to reach a decision,126 with judicial practice supporting the conclusion.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 explain why a State should be bound by other States’ subjective values. This is manifestly contrary to its sovereign equality.129

120

cf Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977) ch 4. 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). 121

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148 The State as (Democratic) Self-Legislator Koskenniemi concludes that the success of modern international law depends on its ‘refusal to set down determining rules or ready-made resolutions to future conflict’. International law appears to be ‘an elaborate framework for deferring substantive resolution elsewhere: into further procedure, interpretation, equity, context, and so on’.130 His indeterminacy thesis builds on the work of critical legal studies scholars,131 who argue that indeterminacy is inherent in all normative systems. In the case of systems of law norms, there is indeterminacy in the meaning of language, deliberative indeterminate in certain legal expressions (the idea of ‘reasonableness’, for example), and indeterminacy in the application of law norms, and in cases of conflict between law norms. The indeterminacy thesis concludes that law norms are too vague to be determinate of outcomes.132 It is not, David Kennedy argues, ‘meaningful to speak of a particular solution to a legal problem as having being compelled by a line of reasoning’.133 The ‘unstructured indeterminacy’ of international law ‘results from the manipulability of the basic norms out of which international legal discourse is constructed’.134 There is no international law doctrine that does not involve a conflict ‘between autonomy and cooperation of states, because by definition no international legal issue is raised until the interests of states collide’.135 Indeterminacy results from conflicting ideas about sovereignty, between sovereignty understood as authority (‘an internationalist vision of sharing’) and sovereignty as equality (a ‘nationalist vision of exclusive domestic power’). International law disputes can be articulated and/or resolved by reference to the objective standard of sovereign consent, or by reference to some ‘subjective solution [that] would bring values beyond consent into the process’.136 International law discourse, Kennedy argues, is ‘conversation without content – a ritualized exchange which avoids confronting the very question it purports to address’. Legal disputes may be resolved at a point in time, but this does not reflect the power of legal argument, but the imposition of an ‘underlying value choice’, or exercise of coercion.137

130

Koskenniemi (n 124) at 28. 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 indeterminacy thesis does not expressly take into account the fact that most legal norms are accepted and applied by actors without recourse to formal legal procedures: ibid at 496–97. 133 David Kennedy, ‘Theses about International Law Discourse’ (1980) 23 German Yearbook of International Law 353, 357. 134 ibid at 359. 135 ibid at 362. 136 ibid at 368. 137 ibid at 376. 131

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The indeterminacy argument present a significant problem for regarding the international law system as democratically legitimate, in that it seeks to demonstrate that legal argument and judgment is nothing more than the concealed expressions of arbitrary opinion, personal preferences or political convictions of the law-interpreter/law-applier. International law obligations are not the result of sovereign (and democratic) will, but the legislative acts of ‘others’, notably judges on international courts and tribunals. The indeterminacy thesis should caution us against any arguments that international lawyers are simply articulating some objective truth inherent in the logic of international law norms, and to examine the texts produced by international lawyers (including those sitting in a judicial capacity) for concealed political preferences (including cosmopolitan and humanitarian preferences). It should not though require that we give up on the possibilities of public international law determining the ‘legal’ position of states and other non-state actors. Stephen Toope makes the point that indeterminacy provides scope for divergent legal arguments in cases of conflicting interpretations, it does not ‘render discourse meaningless’.138 Moreover, as Isaiah Berlin observes, the ‘right answer’ thesis, which the indeterminacy thesis critiques, depends on a utopian claim concerning the metaphysics of values and of normative justification. It assumes that ‘all questions in the domain have one answer, that is knowable, and that all the answers in the realm are mutually compatible’. Such assumptions are ‘inconsistent with our experiences’ and ‘misdiagnose the nature of practical arguments’.139 Friedrich Kratochwil concludes that the recognition of ‘plural possibilities’ does not imply ‘the nihilist or existential conclusion that anything goes and/or that because there is no single right answer, any answer is as good as another’.140 What it demands is an investigation of indeterminacy as it arises in legal reasoning and consideration as to ‘how particular choices (out of several “possible” ones) can be justified on nonidiosyncratic grounds’.141 Legal interpretation takes place in the context of an interpretive community, and whilst there may be disagreements about the proper use of a term, or the interpretation of a legal rule, ‘purely idiosyncratic uses are excluded even if the use of the concepts remains contestable and contested’.142

138 Stephen Toope, ‘Emerging Patterns of Governance and International Law’ in Michael Byers (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?’ in Michael 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.

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150 The State as (Democratic) Self-Legislator THE PROBLEM OF CUSTOMARY INTERNATIONAL LAW

The previous sections focused on the problems for democracy that result from the existence of the international law order. A constitutional democracy might express its consent to be bound by an international law norm following domestic debate, deliberation and decision (ie through democratic procedures), but limitations on the possibilities of (future) political self-determination are problematic from the perspective of democratic theory: how is it possible that the ‘here and now’ people can limit the choices available to future generations? Treaty is one of two principal mechanisms through which international law norms become opposable to the state. The other is customary international law. Custom creates particular problems in terms of democratic legitimacy, as there is no requirement that a particular state consents to the emergence of a new customary norm, or that a majority of states participate in its formation, or that only democratic states participate, or that the practices of states accord with the wills of their respective peoples. It may create particular problems for states, often those with common law systems, which recognise customary international law as part of domestic law, without the requirement for positive legislative approval. Moreover, as customary norms are, by definition, not authoritatively written down, the task of identifying and interpreting, and by implication ‘applying’, customary obligations often falls to non-state actors, judges, academics, etc, with no requirement to take into account the attitude of the state against whom the norms are opposed. The requirements for the recognition of customary international law are provided by article 38(1)(b) of the Statute of the International Court of Justice, which refers to ‘international custom, as evidence of a general practice accepted as law’. Both elements must be present: there must be evidence that ‘the existence of the rule in the opinio juris of States is confirmed by practice’.143 In contrast to treaties, the subjective opinion of states is not sufficient by itself to develop customary international law obligations;144 nor is custom the mere ‘repetition, or imitation, of similar acts’.145 The settled practice of states is not sufficient to generate international law rights and obligations. There must be ‘evidence of a belief that

143

Nicaragua v United States (Merits) [1986] ICJ Rep 14 [184]. 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 the members of the international community, together with a set of customary rules whose presence in the opinio juris of States can be tested by induction based on the analysis of a sufficiently extensive and convincing practice, and not by deduction from preconceived ideas’: Delimitation of the Maritime Boundary in the Gulf of Maine Area (Judgment) [1984] ICJ Rep 246 [111]. 145 Koskenniemi (n 11) at 415. 144

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The Problem of Customary International Law

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this practice is rendered obligatory by the existence of a rule of law requiring it’.146 Community acceptance does not require the consent of all states: the general acceptance by a significant majority is sufficient for the recognition of a new customary international law norm, taking into account any opposition from those specially affected.147 Custom is distinguished from international treaties as a source of international law obligation ‘by its less consensual character’.148 There is no requirement that all states participate in the relevant practice, or that the practice of states is in ‘absolutely rigorous conformity with the rule’. As the International Court of Justice observed in Nicaragua v United States (Merits), it is sufficient that ‘the conduct of States should, in general, be consistent with such rules’.149 The international law system accepts that customary norms will emerge without the consent of all states, but insists that a norm will have general application. The sovereign consent of all states is not required for the development of customary international law. As the Court observed in North Sea Continental Shelf, customary norms, ‘by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour’.150 Sovereignty (and the principle of consent to international law norms) is protected (in a negative manner) through the persistent objector rule. The rule, which is required to ‘safeguard non-consenting States’ sovereign equality’,151 permits, in the words of Ian Brownlie, a state to ‘contract out of a custom in the process of formation’ (note the contractual analogy): ‘Given the majoritarian tendencies of international relations the principle is likely to have increased prominence’.152 The requirement that a state object from the inception of the rule provides a significant limit on political self-determination. The only subsequent possibility is for a state is to seek the acquiesce of all other states in contracting out of the rule of customary international law.153 The people are unable to exempt themselves from the application of a customary norm that they do not accept, or that they come to realise has serious deleterious consequences for the welfare of the society, even if the rule was established prior to the establishment of the state itself, and it was not therefore possible for the state to have objected to the emergent norm. The application of the rule is

146

North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 [77]. 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. 147

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152 The State as (Democratic) Self-Legislator 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 effectively in the formation of customary international law, or indeed object to practices 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 Westphalian conception of the state as self-legislator. The recognition of custom requires an acceptance that the international community of states (collectively) constitutes an authority with legislative powers. The source of authority is a social practice recognised as legally binding by the international community. In the case of customary (international) law norms, the assertion of political authority is made by a secondary or interpretive ‘observer’ (who may also be a member of the community) who claims that a ‘customary’ practice is binding as a matter of law. Authority and legitimacy are joined. The international community is the authoritative source of customary international law norms: ‘It is a community’s acceptance of norms that confers legitimacy on them.’155 Whilst the identification of the subjective element (opinio juris) will always be subject to speculation, it should be possible to identify the settled practice of states that contributes to the development of a customary international law norm. In practice, however, international courts and tribunals rarely engage in any systematic enquiry into the practices of the majority of states.156 The identification of state practice by international law professionals is essentially a subjective matter. McGinnis and Somin complain that custom suffers a ‘double democracy deficit’: the materials on which it is based ‘lack serious democratic bona fides’, and the authority to determine the status and meaning of those instruments is allocated to ‘an undemocratic and unrepresentative elite’.157 They make the following (rather illuminating) observation: ‘Elite international law professors in the United States are very unrepresentative of popular opinion, leaning Democratic rather than Republican by a ratio of over five to one… A group with such unrepresentative values is unlikely to generate representative norms.’158 154

Steven Ratner, ‘Is International Law Impartial?’ (2005) 11 Legal Theory 39, 57. 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. 155

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The Problem of Customary International Law

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Given that customary laws are not authoritatively written down, their existence must be recognised according to conditions established by members of the international law profession, who determine when a settled practice has hardened into a rule of customary international law, and the scope and content of that rule. The responsibility falls principally to justices on international courts and tribunals,159 and international law professors, who often act in multiple roles in the international law system — as ‘publicists’ of international law writings, the authors of influential international ‘soft’ law instruments, and judges on international courts and tribunals (cf article 38(1) of the Statute of the International Court of Justice).160 There is no requirement that international law professors represent the interests and perspectives of the people of ‘their’ state. The principal loyalty of members of the profession (in their professional capacity) is to the discipline of international law. Shirley Scott observes that one of the self-give functions of international lawyers is to ‘serve as guardians of the relative autonomy, cohesion and consistency of international law’.161 Both international law judges and professors may, however, be likely, as McGinnis argues, to be ‘biased toward discovering consensus among states even when it does not exist to create more international law and thus more power for themselves’.162 Elsewhere, he accuses this ‘ideologically skewed group’ of being more likely to choose ‘ideologically skewed norms’.163 More sympathetically, Mattias Kumm refers to the ‘cosmopolitan enthusiasm for international law that is perhaps 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 discretion in both “identifying” state practice and in determining whether following that practice reveals a state’s acknowledgment of its binding quality’: Eyal Benvenisti, ‘The Conception of 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 Restatement of Foreign Relations Law concludes that ‘substantial weight’ is accorded to the judgments of international and national courts and tribunals; judicial and arbitral tribunals; the writings of scholars; and pronouncements by states, when such pronouncements are not seriously challenged by other states: Restatement (Third) of Foreign Relations Law § 103(2) (1987). 161 Shirley Scott, ‘The Political Life of Public International Lawyers: Granting the Imprimatur’ (2007) 21 International Relations 411, 420. 162 John McGinnis, ‘Foreign to our Constitution’ (2006) 100 Northwestern University Law Review 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: Terms of Engagement’ in Sujit Choudhry, The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006) 256, 260.

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154 The State as (Democratic) Self-Legislator norms cannot be objectively determined, what is involved, as Koskenniemi points out, ‘is legislative construction by the judge’,165 or other international law actor. Patrick Kelly concludes that customary norms are in many cases determined by ‘academic and judicial elites… without the participation 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 jobfunction of the international law professional (according to the rule of recognition in public international law) is to identify a relevant practice of states and evidence of opinio juris, reflected in normative statements framed in terms of law. In practice this rarely occurs.167 International lawyers rarely attempt any systematic enquiry into state practice or the attitude of states to a customary practice. The criticism applies equally to the International Court of Justice,168 which ‘in most cases, declares rules of law without investigating the attitude of states on the legal character of a customary norm or undertaking an investigation of the actual practice of the majority of states’.169 The Court ‘deduces norms that it terms customary’ from treaties, UN resolutions, and other sources,170 and in doing so elevates those norms from ‘soft’ to ‘hard’ status in international law. Consider, for example, the judgment in Nicaragua v United States (Merits), where the Court relied on General Assembly Resolution 2625 (XXV), ‘Declaration on Friendly Relations’, as an expression of ‘the validity of the rule or set of rules declared by the resolution by themselves’.171 José E Alvarez concludes that customary international law, in the age of international organisations, is no longer observed by ‘historians consumed with surveying extensive state practice over decades or 165

Koskenniemi (n 11) at 470 (emphasis in original). Kelly (n 155) at 519–20. A notable exception is the International Committee of the Red Cross project to identify state practice in international humanitarian law. See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005). 168 Mark Movsesian concludes that the International Court of Justice ‘suffers from a serious democratic deficit’. The selection of judges occurs through a process ‘far removed from popular oversight’, or the control of domestic governments or democratic states: Mark Movsesian, ‘Judging International Judgments’ (2007) 48 Virginia Journal of International Law 65, 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 the Law of the Non-Navigational Uses of International Watercourses, adopted by the UN General Assembly A/RES/51/229, 21 May 1997) as evidence of customary international law, see Gabcˇikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 [85]. 166 167

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General Principles of Law

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even centuries’. Instead, international lawyers rely on ‘institutionalized shortcuts’ to identify customary international law, including resolutions adopted by the General Assembly and the provisions of widely ratified multilateral treaties, which are taken as ‘expressions of “community” interests’.172 The premise of the new methodology is that the unanimous or near-unanimous adoption of international instruments provides evidence of the opinio juris of states in the international community.173 According to Anthea Roberts, the emergence of this modern form of custom reflects ‘a desire to create general international laws that can bind all states on important moral issues’. The objections of dissenting states and instances of contrary state practice are ignored because the international community ‘is not prepared to recognize exceptions to the maintenance of certain fundamental values’.174 The process is ‘potentially more democratic because it involves practically all states [who] participate in the negotiation and ratification of treaties and declarations of international fora’. The principle of sovereign equality, one state, one vote, also ‘helps to level the playing field’, providing less powerful states with a cost-efficient means of expressing their views, although ‘allowing a majority of states to bind a minority does not sit well with the notion of state sovereignty’.175

GENERAL PRINCIPLES OF LAW

The existence of customary international law (and corresponding obligations of states) cannot be understood by reference to the contract metaphor developed to explain how a sovereign could limit its freedom of political action. The sovereignty of states and possibilities of political self-determination are exercised ‘under the authority of international law’.176 The position is affirmed by the inclusion of ‘general principles of law’ 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 between proponents of expanding the scope of international law-making and adherents to a strict positive doctrine that limited participation to 172 José E Alvarez, ‘International Organizations: Then and Now’ (2006) 100 American Journal of International Law 324, 332. 173 Kelly (n 155) at 484. 174 Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary International 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 International Organization’ (1944) 53 Yale Law Journal 207, 208.

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156 The State as (Democratic) Self-Legislator states.177 The provision permits the International Court of Justice, and by extension all other interpreters of international law obligations, to have recourse to principles common to systems of (national) law, without, in the words of Christine Chinkin, ‘authorizing unfettered recourse to notions of objective justice’.178 Examples of general principles include the obligation to make reparation, good faith, estoppel, and ex injuria non jus oritur. Koskenniemi makes the point that these general principles were not ‘“enacted” by positive acts of States’, but form ‘parts of the general frame of international law’.179 The inclusion of general principles as a source of obligations affirms both that international law is a system of law, and that it is a system of law of the same order as domestic law systems; it is not a category error to 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 the will of the members of the society in which it functions, as something to which those members are subject, and which derives its obligatory character from sources that do not rest on consent, but rather themselves confer on consent its law-making capacities. And the ultimate source of the validity of this law is and 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, but because we believe it to be just to obey the law.’ It is this precept that seems to provide the firmest ground for the affirmation that the law, national or international, is binding; and the most fundamental, and therefore ultimately the most compelling, reason for its authority.181

The recognition that international law is more than a collection of positive expressions of sovereign consent confirms the existence of a system of law that (from the perspective of international law) binds the ‘sovereign’ members of the international community to a set of primary rules that regulate the behaviour of members, and secondary rules of change, adjudication and recognition.182 Sovereignty (and democratic self-determination) is exercised within an international law system that is

177 Bruno Simma, ‘The Contribution of Alfred Verdross to the Theory of International Law’ (1995) 6 European Journal of International Law 1, 16. 178 Christine Chinkin, ‘Normative Development in the International Legal System’ in Dinah Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International 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.

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The Writings of Publicists and Judgments of Courts

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not subject to the will of the people: the idea and authority of international law does not accept the possibility that the people of a constitutional 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 Justice recognises judicial decisions and the teachings of the most highly qualified publicists of the various nations ‘as subsidiary means for the determination of rules of law’. Article 59 reads as follows: ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ The following sections examine the role of publicists and courts in developing international law.

The Writings of Publicists Article 38(1) of the Statute of the International Court of Justice establishes the sources of international law obligations as treaties, customary international law, general principles, and, ‘as a subsidiary means’, judicial and academic opinion (article 38(1)(d)). Academic opinion includes the works of ‘authors of standing’, and the reports, resolutions and other texts of international law bodies, such as the Institute of International Law, International Law Association, and, perhaps most significantly, the International Law Commission.183 In the absence of formal law-making structures, international law professionals have played a significant role in the development of international law, which proceeds by argumentation, repetition, and acceptance. Koskenniemi concludes in the epilogue to From Apology to Utopia: ‘International law is what international lawyers make of it’.184 By the use of analogy and abstraction of general principles from individual rules, the international lawyer attempts to develop an understanding of the discipline as a coherent whole, allowing for the application of international law norms to new factual circumstances. The identification and interpretation of international law is the job-function of the international lawyer, defined to include the members of international and domestic judicial and arbitral tribunals, international law practitioners, and academics, all of whom claim to possess specialist knowledge and skills that others do not possess. This chapter has already highlighted the difficulty in regarding the contribution of international law 183 184

Restatement (Third) of Foreign Relations Law § 103 (1987), reporter’s note 1. Koskenniemi (n 11) at 615.

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158 The State as (Democratic) Self-Legislator publicists as democratically legitimate. Whilst international law writings must fall within the disciplinary understandings of the profession (the validity of claims about international law are determined by the profession), the authority of international law texts does not depend on their acceptance by states, and, as Brownlie observes, when international lawyers interpret the nature, scope and content of international law norms, it is ‘obvious that subjective factors enter into any assessment of juristic opinion’.185

The Judgments of Courts Article 38(1)(d) of the Statute of the International Court of Justice permits, again as a subsidiary means, recourse to the judgments of domestic and international courts to determine generally applicable rules of international law. The judgments (and reasoning) of courts and tribunals may be taken as authoritative statements of international law, even if the judicial body in question has no standing to decide on the law, and by implication to limit the freedom of action of states subject to the international law norm in question. It is important to recognise the central role of the International Court of Justice (and before that the Permanent Court of International Justice) in developing the fundamental principles of international law, and many standard references in international law texts are to judgments of the Court. Article 38 is a direction to the International Court of Justice as to the sources of international law that it can examine in resolving disputes submitted to it. The function of the Court is that of adjudication: to sit in judgment on the parties, and to judge in accordance with existing law. It is not the function of the Court to make the law. In South West Africa, Second Phase, the Court affirmed that 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 the legal position of the parties in the case before it. Article 59 of the Statute of the International Court of Justice confirms that a judgment has no binding force except as between the parties and in respect of that particular case. In Certain German Interests in Polish Upper Silesia, the 185 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 24. The international lawyer is not precluded from making proposals for reform, both technical and policy-orientated, but she must always make clear the distinction between the de lege ferenda (what the law ought to be), and the lex lata (what the law actually is). The privileged position of international lawyers in political debates is provided by the status accorded to members of the profession, and their professional expertise. 186 South West Africa, Second Phase [1966] ICJ Rep 6 [89].

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The Writings of Publicists and Judgments of Courts

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Permanent Court observed that the object of the (equivalent) article ‘is simply to prevent legal principles accepted by the Court in a particular case from being binding upon other States or in other disputes’.187 The requirement for states to consent to international law suggests a limited role for courts and tribunals in its development. Koskenniemi argues that international courts take a more restrictive approach to the issue of judicial discretion than municipal courts, emphasising the importance of consent as the basis of international law obligations, ‘with which a wide discretionary power would conflict’.188 Some judicial discretion is inevitable, but it should take place ‘within “the existing law”’.189 The function of an international court is to determine what a particular state has willed and not to determine the scope and content of a body of (public international) law than can be applied to the particular facts. This is the fundamental difference in the ways in which international and domestic lawyers view the (legal) world: for the international lawyer, the object of enquiry is evidence of sovereign consent; for the domestic lawyer, the object is the content of authoritative law norms issued by a competent institution. The shift in the nature of international law from a consensual model to a (international) public law governance model consequently requires a re-evaluation of the authority of international law and role of judicial bodies. The establishment of international courts and tribunals both enhances compliance by increasing the probability that sanctions and reputational costs will be imposed on defaulting states,190 and allows for the development of a more detailed body of law through ‘judgments’ in contentious cases, particularly where non-state actors have the right to bring complaints. There are at least 40 ‘institutionalized international dispute settlers’, reflecting the faith of international lawyers in legal elites, neutral forms of adjudication, and an independent judiciary.191 There is also an increasing tendency of international courts and tribunals to refer to the jurisprudence of other courts and tribunals, in what Helfer and Slaughter refer to as ‘a form of collective deliberation about common legal questions’.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. Koskenniemi (n 11) at 30. 189 ibid 34. 190 Laurence Helfer and Anne-Marie Slaughter, ‘Why States Create International Tribunals: 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 Supranational Adjudication’ (1997) Yale Law Journal 273, 282. See also Eyal Benvenisti, ‘Reclaiming Democracy: the Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241; and William Burke-White, ‘International Legal Pluralism’ (2004) 25 Michigan Journal of International Law 963, 977–78. 188

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160 The State as (Democratic) Self-Legislator 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 In the absence of a ‘supreme court’ capable of resolving conflicting interpretations of law and jurisdiction, and no ‘unifying [“constitutional”] document’,194 the system of international courts will be ‘self-organising’, although two significant trends can be identified: international courts are beginning to recognise that they are engaged in a common endeavour and they will not lightly disregard the judgments of other international courts; and certain courts and tribunals are recognised by other courts as having special expertise.195 We have seen a shift from an essentially contractual model of international law, to a public law, or ‘governance’, model. The validity of international law is no longer a question of sovereign will. The development is reflected, inter alia, in the decline of the importance of consent in international law and emergence of ‘lawmaking’ treaties, majoritarian tendencies in the development of customary international law and emergence of modern forms of custom that rely on widely accepted international treaties and the resolutions of international organisations. A public (international) law governance paradigm suggests the need for an international court to locate any decision in the ‘seamless web’ of international law: an argument for integrity and coherence, and requirement to treat like cases alike. In practice, international courts, including the International Court of Justice, invariably refer to their previous decisions, refusing to depart from them without a good reason, an international variant of stare decisis, the legal principle of determining cases in accordance with precedent, ie in accordance with the body of law and reasoning of previous judgments, and not the sovereign will of the states parties to the dispute. Where states are subject to the authority of international law, the interpretation of generally applicable norms in cases to which a state is not a party is not problematic: it is an application of the rule of law principle that like cases be treated alike, and recognition that international law is a system, by which is simply meant ‘that the

193 Jenny Martinez, ‘Towards an International Judicial System’ (2003) 56 Stanford Law Review 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 intentions of nation-state sponsors; to serve the rational interests of powerful states; to act as a counterweight to the interests of powerful states; to protect international peace and security; to promote economic efficiency; and/or to advance human rights. Martinez offers a further possibility: to establish a federalism of democratic states that respects individual human rights: ibid at 461.

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Conclusion 161 various decisions, rules and principles of which the law consists do not appear not randomly related to each other’.196 The role of international (and arguably domestic) courts and tribunals becomes problematic where the ‘interpretation’ of international law norms augments the obligations of states beyond the literal meaning of contracted norms, creating difficulties both in terms of sovereignty and democratic self-determination: according to democratic theory, it is for the people or their representatives to ‘legislate’ law norms, with the function of the unelected and largely unaccountable judiciary to apply those norms.197 At the domestic level, the function of courts is to interpret statutes adopted by the national parliament (and, in common law systems, to develop the common law). Where the courts interpret or develop the law in a way that is not consistent with the will of the here-and-now people, a national parliament is at liberty to (re-)legislate on the same issue. This is not the case in relation to international courts, which claim the final, and thus constitutionally decisive, word in relation to the content of international law norms. The exercise of legislative authority by international courts reflects the separation of powers concern and counter-majoritarian difficulty identified at the domestic level: in a legal system, the role of judicial law-making should be limited to the application and logical development of democratically legislated political law norms. Consequently, the lawmaking activities of international courts and 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 the globalisation and fragmentation of governance regards the decline of the Westphalian settlement as the principle cause for concern. Where the existence of binding law norms (internal state law and external international law) depended on a positive expression of sovereign will, democracy was protected to the extent that sovereign will was determined by the people. This chapter demonstrates the incoherence of the argument once the existence of the authority of international law is recognised; nor is it possible to provide democratic legitimacy for international law norms by reference to the idea of sovereign consent. In the case of international treaties, democratic legitimacy rests on the ability of diplomatic conversations to produce reasoned outcomes in conditions in 196

Koskenniemi (n 51) at para 33. cf John Rawls, Political Liberalism (New York, Columbia University Press, 1993) 231. Rawls regards courts as the paradigm of rational deliberative decision-making. 197

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162 The State as (Democratic) Self-Legislator which only the force of better argument is able to prevail. The authority of customary international law is provided by a recognition by the international community that a practice is binding as a matter of law, and in making that determination regard may be had to whether the rule will contribute to international order.198 International law serves the social purpose of ensuring peaceful inter-state relations. From the perspective of domestic societies, the existence of a system of public international law not under the control of the state law system creates a deficit in the practice of democracy (the people do not decide all ‘politically decidable issues’). But, following Hans Kelsen, it makes little sense to refer to restrictions on sovereignty by international law. The right of democratic self-determination is exercised within the framework provided by the international law order. The following chapters demonstrate the ways in which international law is constructing a single legitimate form of political community for domestic societies: the liberal democratic state. The practice of (domestic) democracy must be understood in the context of a framework of international law norms that provide for the protection of individual human rights and (increasingly) a requirement for democratic forms of government. The function of a democratically legitimate international law order is (in part) to construct legitimate domestic polities, ie the ‘liberal democratic’ state.

198

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4 The Constitutionalisation of International Law

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HE PREVIOUS CHAPTER demonstrated the difficulty in reconciling democratic self-determination with the authority of international law. The objective of this chapter is to examine the ways in which international law undermines the claims of ‘sovereignty’ by promoting liberal democratic values in world society. According to the positivist orthodoxy, international law is an expression of sovereign will, excluding from its domain ‘all matters of an a priori, metaphysical nature’.1 The system of international law is the result of a complex web of bilateral inter-state relationships framed in terms of law. The attitude of the people of a state to an emergent or established international law norm is irrelevant. The state is sovereign, not the people. It enjoys the right to contract in international law, and to demand that other states respect 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 an international law norm. The positivist analysis is increasingly regarded as anachronistic, with a recognition in cognate disciplines, such as political theory, that sovereign rights are not absolute, but contingent on the legitimate exercise of government authority.2 This chapter observes the shift in the nature of international law from a bilateral model of inter-state contract to a public law governance model in which an international constitutional order frames and delimits the exercise of political power at the domestic level. The work develops a constructivist analysis, arguing that the international law system has undergone a process of reconstruction in the period following the establishment of the

1 Hans Morgenthau, ‘Positivism, Functionalism, and International law’ (1940) 34 American Journal of International Law 260, 261. 2 David Held, for example, argues that sovereignty can no longer be understood in terms of ‘untrammeled effective power’, and that the legitimate exercise of political authority within the state depends on the government upholding certain human rights standards and establishing a legal order that reflects an expression of the democratic will of the people: David Held, ‘Law of States, Law of Peoples: Three Models of Sovereignty’ (2002) 8 Legal Theory 1, 17.

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164 The Constitutionalisation of IL United Nations (UN). This has included both the recognition of (legitimate) political authority for the world organisation (UN), and the development of a normative hierarchy, reflecting global justice norms, a development referred to as the constitutionalisation of international law. International law subjects sovereign will and domestic political determination to a set of global law norms that constructs the state as an autonomous political unit and legitimates the exercise of domestic government in accordance with certain global justice norms, reflected, for example, in international human rights law.

FROM CONTRACT TO GOVERNANCE

The positivist model that emerged in the nineteenth century paid little attention to conditions within states, or the interests and values of the international community as a whole: ‘each state was embarked upon its own adventure [in its own] national interests, as determined exclusively by itself’.3 The approach resulted in an era of ‘absolutist states’,4 unfettered 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 strictly our business.’5 The positivist (or Westphalian) epoch ended following the devastating consequences of the two world wars (1914–18, 1939–45), and discoveries, inter alia, at Auschwitz and Buchenwald. Today, as David Kennedy observes: [w]hen we public international lawyers look out the window, we see a world of nation-states and worry about war. We remember the great wars of the twentieth century. We were traumatized by the Holocaust, fear totalitarianism, and are averse to ideology. Our common project is governance: how can sovereign states be governed so that war may be avoided?6

Harold Hongju Koh notes that the disastrous consequences of World War II led the international community to replace a ‘loose customary web of state-centric rules with an ambitious positivistic order, built on institutions and constitutions’.7 Whilst the intense bipolarity of the Cold War 3 Stephen Neff, War and the Law of Nations: a General History (Cambridge, Cambridge University Press, 2005) 171 (emphasis in original). 4 Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal of International Law 20, 38. 5 Quoted in Paul Lauren, The Evolution of International Human Rights, 2nd edn (Philadelphia, University of Pennsylvania Press, 2003) 204. 6 David Kennedy, ‘One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan 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 Law Journal 2599, 2614.

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era rendered the vision a ‘Potemkin Village’,8 the institutional architecture of global governance put in place in the immediate aftermath of World War II has become increasingly important, with the emergence of the UN Security Council as a powerful actor on the international stage being the clearest example. The modern world of international law accords more with an international public law governance model than a private law model of contract. The establishment of international institutions, such as the UN, allows for the exercise of global regulatory functions and the emergence of rules and principles that reflect the interests and values of the international community as a whole. In the period since 1945, states have been socialised to accept global law norms concerning respect for human rights and the necessary conditions for the (democratic) exercise of political authority. In We the Peoples, UN Secretary-General Kofi Anan observes that ‘the spreading acceptance of new norms has profoundly affected the lives of many millions of people’. These include norms providing for universal human rights and the practice of democracy, which is ‘now generally seen as the most legitimate and desirable form of government’.9 The Report of the International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’, concludes that, today, sovereignty is more than just a functional principle of international relations: it is the recognition of the equal worth and dignity of states and peoples, and an affirmation of the right of all peoples ‘to shape and determine their own destiny’.10 Sovereignty is not understood as the ‘unlimited power of a state to do what it wants to its own people’; it implies a dual responsibility, externally, to respect the sovereignty of other states, and internally, ‘to respect the dignity and basic rights of all the people within the state’. The idea of sovereignty as responsibility, including the responsibility to protect, ‘has become the minimum content of 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 which international lawyers understand the discipline. There has been a decline in the Westphalian political settlement, yet sovereignty remains one of the competing meta-principles for organising world society. According to the positivist analysis, arguments that we are in a post- or lateWestphalian era present a misreading of the world of law and the 8

ibid at 2615. 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 Intervention and State Sovereignty’ (Ottawa, International Development Research Centre, 2001) para 1.32. 11 ibid at para 1.35. 9

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166 The Constitutionalisation of IL allocation of political authority in world society.12 Sovereignty remains the organising principle of international relations, and law is understood exclusively in terms of expressions of sovereign will: internal state law and external international law. Sovereignty and the sovereign state are facts of the world that we must recognise and accommodate. But sovereignty 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. Christian Tomuschat makes the evident, but oft forgotten, point that the system of international law, like any legal order, ‘is a man-made product and should be understood as such’.14 The argument developed here regards states and the international law system as social constructs. Constructivist insights are important in explaining the emergence of international public law norms that (from the perspective of international law) constrain the freedom of action of sovereign and independent states. No new meta-theory of (international) law is required to replace the idea of Westphalian sovereignty. The system of global governance works in a particular way because it is understood to work in that way. If the international law order is a social construct, it can be re-imagined by the international law profession in different ways. Consider, for example, the dictum of the International Court of Justice on the legal personality of the UN organisation in Reparations suffered for injuries suffered in the service of the United Nations. The Court concluded that the UN was not a state, still less ‘“a superState” whatever that might mean’. It is a subject of international law, capable of possessing international rights and duties.15 In establishing the UN, 50 states, ‘representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, 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 the emerging post-Westphalian order, it becomes possible to conceive of ‘autonomy without exclusivity – to imagine ultimate authority, or sovereignty, in non-exclusive terms. This is because 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 Pluralism’ (2002) 65 Modern Law Review 317, 346. 13 Tanja Aalberts, ‘The Future of Sovereignty in Multilevel Governance Europe – a Constructivist Reading’ (2004) 42 Journal of Common Market Studies 23, 35. See also Thomas Biersteker and Cynthia Weber, State Sovereignty as Social Construct (Cambridge, Cambridge University 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 (Advisory Opinion) [1949] ICJ Rep 174, 179. 16 ibid at 185 (emphasis added).

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international law order was re-constructed with the establishment of the UN, which proclaimed that its laws were a higher form of law in the international system,17 and (ultimately) superior to the domestic laws of states.18 It has been further re-constructed with the emergence of substantive constitutional values, reflected, for example, in the emergence of international norms of jus cogens standing, which cannot be explained by reference to the positive orthodoxy. Consider also the question of membership 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 political authority by regional monarchs in Europe is now constructed by the system of international law. This can be seen in the growth of the number of states since 1945, which has resulted from an application of international law norms concerning the right of peoples to self-determination. Serge Sur observes that during the period of decolonisation, ‘the international society became a machine for the manufacture of states’.19 The international law on the right of peoples to self-determination created large numbers of political units that were recognised as ‘sovereign’. The independence of those societies and autonomy of their state legal orders was guaranteed by the application of the principle of sovereignty and its corollary of non-intervention. Phillip Karber observes that reference to constructivism in the international law literature reflects ‘a growing interest in the role of “ideas,” the influence of “culture,” and the importance of “rules” in understanding global interaction’. The concern is to understand the ‘constitutive and regulatory “rules of the road”’ that apply to the complex ‘social system’ of international relations.20 Constructivists advance three main arguments: 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 the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ 18 ibid art 2(7): ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.’ 19 Serge Sur, ‘The State between Fragmentation and Globalization’ (1997) 8 European Journal of International Law 421, 424. 20 Phillip Karber, ‘“Constructivism” as a Method in International Law’ (2000) 94 American Society of International Law Proceedings 189, 189. Anne-Marie Slaughter notes that international lawyers are often drawn to constructivist theory, inhabiting as they do ‘a world of discourse’, constructivism ‘provides a deeply satisfying account of how and why what they do matters’: Anne-Marie Slaughter, ‘International Law and International Relations Theory: a Prospectus’ in Eyal Benvenisti and Moshe Hirsch (eds), The Impact of International Law on International Cooperation: Theoretical Perspectives (Cambridge, Cambridge University Press, 2004) 16, 37.

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168 The Constitutionalisation of IL actors; that actors within the system of global governance are in a ‘dialogue with the prevailing norms of legitimate agency that constitute role identities to define their [own] senses of self’; and that normative and ideational structures exist as a result of the routine practices of social agents, and as ‘human artefacts’, they are, consequently, ‘amenable to transformation’.21 Alexander Wendt explains that the fundamental principle of constructivist social theory is that people act towards objects, including other actors, on the basis of the meaning that the objects have for them. It is collective understandings that constitute the structures that organise our actions. Actors acquire identities through participation in collective processes: identities are ‘inherently relational’.22 Through reciprocal interaction, actors create and instantiate enduring social structures that define their identities and interests.23 Wendt refers to the idea of an ‘institution’: a relatively stable set of identities and interests that is often codified in formal rules and norms. The process of creating an institution ‘is one of internalizing new understandings of self and other, or acquiring new role identities’.24 Sovereignty is an institution. The idea of sovereignty in international relations exists only by virtue of inter-subjective understandings that not only constitute a particular kind of state, the ‘sovereign’ state, but also a particular form of international community.25 International law norms, as expressions of sovereignty, ‘are now so taken for granted, so natural, that it is easy to overlook the extent to which they are both presupposed by and an ongoing artifact of practice’. If states ceased to act in accordance with those norms, ‘their identity as “sovereigns” (if not necessarily as “states”) would disappear.’26 The constructivist argument is that actors acquire identities through participation in collective processes. The identity of the sovereign state as an actor in international relations is created through interactions with other actors in both informal and formal contexts (international organisations). States understand the concept of sovereignty through interactions with other actors. The idea of sovereignty only exists by virtue of intersubjective understandings; it can, consequently, be re-conceptualised through the revised inter-subjective understandings that emerge through participation in international organisations. Brunnée and Toope observe that 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 of Power Politics’ (1992) 46 International Organization 391, 397. 23 ibid at 406. 24 ibid at 417. 25 ibid at 412. 26 ibid at 413.

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proposition that the identities of international actors are constructed in large part through “communicative action”.’27 Processes of deliberation require that states ‘learn to be “discursively competent,” that is, capable of persuading’.28 Through interactions between states (as actors in international relations) and between states and non-state actors (and, indeed, between non-state actors), inter-subjective structures emerge that ‘give the world meaning’.29 Inter-subjective understandings and institutions may persist for long periods, but they can be ‘reshaped through changes in the constructed identities of the actors, identities that are in turn shaped and reshaped by action within the structures’.30 The argument is not that ideas, knowledge and norms ‘operate as direct causes of action, rather that social structures constrain and enable actors in their choices, and thus help to shape world politics’.31 Global actors have constructed a system of governance that provides the context for interactions, and which shapes identities. International law norms and institutions ‘furnish the context within which interaction takes place and shape the identities of the actors themselves’. Actors in the international system ‘come to understand themselves and their interests in light of their interaction with others and in light of the norms that frame the interaction’.32 Christian Reus-Smit argues that constructivists attach too much explanatory weight to sovereignty, and in doing so fail to recognise that sovereignty is embedded in a larger complex of constitutive meta-values that structure the global system. The idea that sovereignty defines the social identity of the state ‘is both logically and historically problematic. Unless embedded within a larger complex of values, the principle of sovereignty cannot alone provide the state with a coherent social identity.’ It cannot, for example, explain why a sovereign entity is entitled to political self-determination in both the internal and external senses. Constructivists must identify the more primary and substantive values that provide for their status in world society as ‘centralized, autonomous political organizations’.33 Three such values emerge: a shared belief about the moral purpose of a centralised political unit; the organising principle

27 Jutta Brunnée and Stephen Toope, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’ (2000) 39 Columbia Journal of Transnational Law 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.

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170 The Constitutionalisation of IL of sovereignty; and a norm of pure procedural justice.34 These constitutive meta-values define the sovereign state and the rights and privileges of sovereignty. Whatever past justifications there might have been for recognising the sovereignty of the state (monarchy or other raison d’état), the function of sovereignty today is to protect the right of political self-determination for taken-for-granted political communities. This is the ‘moral purpose of the state’, justifying the foundational principle of sovereignty ‘and the prevailing norm of pure procedural justice’.35 The idea of procedural justice provides that law is legitimate where authored by those subject to it, or their representatives, and equally binding on all.36 The ideal of legitimate statehood, a ‘democratic, rule of law polity’, which emerged following the revolutions in America and France, also came to be applied at the international level in the nineteenth century, with the emergence of multilateral forms of law-making. The institution of universal conferences of states reflected a determination to apply the principle of pure procedural justice to the international level, and consequently to ensure the collective legislation of international law norms, which would be authored by those subject to them and equally binding on all.37 Examples include the Congress of Vienna, the Hague Peace Conferences, and the creation of the League of Nations and UN, all of which, Leo Gross argues, represented a ‘conscious effort to establish a community of states based on the will of all states or at least on the will of the Great Powers’.38 Constructivist insights are important to understanding international law. The idea of sovereignty is not fixed, it is a social fact understood by actors within the international law order (and observed by international lawyers). The importance of resolutions adopted by international organisations such as the UN, the emergence of norms of jus cogens, and principles of global justice such as human rights and self-determination cannot be understood by reference to the positivist orthodoxy, and we need not contort our understandings of the international system to demonstrate sovereign will for all law norms. The international law system has undergone a process of ‘constitutionalisation’ during the period of the UN, establishing formal institutions for global regulation and allowing for the emergence of community values. The anarchic positive system that operated in accordance with the principle of sovereignty has been replaced by an international constitutional order that

34

ibid at 556. ibid at 566. 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. 35 36

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Community Interests and Constitutionalisation

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frames the basic rights and obligations of states in the international community: ‘community being a term suitable to indicate a closer union that between members of a society’.39 The approach is constitutionalist because it exhibits a view that actors in the system of global governance form an international community governed by law, which reflects, in important respects, community interests. COMMUNITY INTERESTS AND CONSTITUTIONALISATION

Constitutional lawyers, following Bruce Ackerman, speak of ‘constitutional moments’, points in time when a political movement succeeds in placing a new problematic at the centre of political life: Although constitutional politics is the highest kind of politics, it should be permitted to dominate the nation’s life only during rare periods of heightened political consciousness. During the long periods between these constitutional moments… normal politics… prevails[;] it is, however, democratically inferior to the intermittent and irregular politics of public virtue associated with moments of constitutional creation.40

The adoption of the Charter of the UN is one such constitutional moment for the international order. Others suggested moments include the Congress of Vienna 1815,41 the Paris Peace conference of 191942 and the UN decolonisation resolutions of the 1960s.43 Writing in 1950, George Jaffin argued that in universalising human rights and the adoption of the UN Charter ‘constitutional experience has been invaluable. This enrichment of the classic law may be viewed as the constitutionalization of international law or the internationalization of constitutional law.’44 The Charter proclaimed 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 legal community ‘proceeds from the assumption that it is international law which binds the parts together, affirming the existence of a “community of States” on the one hand and lending the necessary normative structure to this community on the other’: Bruno Simma, ‘From Bilateralism 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 International Legal 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 International Relations (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 systemic challenges that the international legal system now faces: decentralisation and disaggregation; 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

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172 The Constitutionalisation of IL (article 103), and recognised the authority of the Security Council to take enforcement measures on vague and indeterminate grounds, irrespective of the view of the Member States against which the measures were applied.45 In Corfu Channel Case, the first judgment of the International Court of Justice, decided 9 April 1947, Judge Alvarez concluded that we can no longer regard sovereignty as an absolute and individual right of every State[,] according to which States were only bound by the rules which they had accepted. Today, owing to social interdependence and to the predominance of the general interest, the States are bound by many rules which have not been ordered by their will.46

At the end of the century, in Legality of the Threat or Use of Nuclear Weapons, President Bedjaoui declared that the resolutely positivist, voluntarist approach of international law still current at the beginning of the [twentieth] century [had] been replaced by an objective conception of international law, a law more readily seeking to reflect a collective conscience and respond to the social necessities of states organized as a community.47

The model of atomised and autonomous sovereigns interacting to construct a web of international law rights and obligations is no longer an accurate description of the international law system. The point becomes clear in the International Law Commission’s Articles on State Responsibility. The Articles provide that there is an internationally wrongful act when conduct consisting of an action or omission ‘of a State’ is attributable to the state and constitutes a breach of an international obligation of the state.48 Whilst responsibility may accrue only to a state, it may be owed to another state, to several states, or the international community as a whole, depending on the character and content of the obligation.49 This is ‘without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State’.50 In relation to international human rights

that domestic legal systems have answered through constitutions’: Laurence Helfer, ‘Constitutional Analogies in the International Legal System’ (2003) Loyola of Los Angeles Law Review 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 Internationally Wrongful Acts’ art 2, General Assembly Resolution 56/83, ‘Responsibility of States for Internationally Wrongful Acts’ (adopted 12 December 2001). 49 ibid art 33(1). 50 ibid art 33(2).

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treaties, for example, ‘the individuals concerned should be regarded as the ultimate beneficiaries and in that sense as the holders of the relevant rights’.51 In addition to recognising that international obligations may be owed to individuals, the Articles accept that international law obligations may be owed to states (individually or collectively, where the arrangement transcends the scope of bilateral relations to establish a common interest, over and above the interests of the states individually), and to ‘the international community as a whole’.52 The commentary to the Articles makes the following point: ‘All States are by definition members of the international community as a whole, and the obligations in question are by definition collective obligations protecting interests of the international community as such.’53 Two issues confirm the shift from a bilateral system to an international constitutional order. First, the Articles accept the existence of peremptory norms of general international law. Article 40 provides that in cases of a serious breach (one that ‘involves a gross or systematic failure’) of an obligation arising under a peremptory norm of general international law,54 states shall cooperate to bring any serious breach to an end,55 and no state shall recognise as lawful a situation created by a serious breach of a jus cogens norm, nor render aid or assistance in maintaining that situation.56 Those peremptory norms that are clearly accepted and recognised include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.57 Secondly, the provisions on countermeasures both affirm the bilateral nature of much of the inter-state system, and confirm that state relations are conducted within a constitutional framework. The wrongfulness of an act not in conformity with an international obligation is precluded if, and to the extent that, the act constitutes a lawful countermeasure.58 Countermeasures are otherwise unlawful acts that are justified by the failure of the other state to comply with its international obligations. An injured state may only take countermeasures in order to

51 Commentary on art 33, Articles on Responsibility of States for Internationally Wrongful Acts (with commentaries), in Report of the International Law Commission 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’s Articles on State Responsibility: 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.

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174 The Constitutionalisation of IL 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 the Charter of the United Nations; (b) Obligations for the protection of fundamental [i.e. non-derogable] human rights; (c) Obligations of a humanitarian character prohibiting reprisals; (d) Other obligations under peremptory norms of general international law.

These issues are ‘sacrosanct’,60 ie ‘inviolable, sacred’.61 The idea of an international community and development of global law norms that are not simply an aggregation of the ‘sovereign’ interests of individual states is reflected, inter alia, in the adoption of ‘constitutional’ resolutions by the UN General Assembly and other international organisations in areas such as international peace and security, the protection of the environment, human rights, and the alleviation of extreme poverty.62 Further, Antonio Cassese observes that whilst the relationship between states remains ‘largely horizontal’,63 involving essentially bilateral legal relationships, a number of international agreements establish obligations for states that are not reciprocal, but which reflect the emergence of values that the international community ‘regard[s] as being worthy of special protection’.64 These community obligations have the following ‘unique’ features: they are obligations protecting fundamental values, including peace, human rights and self-determination; they are obligations erga omnes; they are attended by a correlative right that belongs to all states or, in the case of multilateral treaty regimes, to all contracting states parties, and this right may be exercised ‘on behalf of the whole international community (or the community of the contracting States) to safeguard fundamental values of this community’.65 Together, community obligations constitute a body of values shared by ‘the whole of mankind and to which the particular interests and demands of individual States should yield’.66

59

ibid art 49(1). Commentary on art 50. 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 (emphasis in original). 64 ibid at 15. 65 ibid at 16 (emphasis in original). 66 ibid at 16. 60 61

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The Constitutionalisation of International Law

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THE CONSTITUTIONALISATION OF INTERNATIONAL LAW

Increasingly, it is accepted that it is appropriate to use the term ‘constitution’ in relation to international law, with related discourses as to the meaning(s) of ‘constitutional’ and ‘constitutionalisation’.67 The development is observed by European public international lawyers, notably German and Dutch public international lawyers, who draw on the constitutional experiences of domestic societies. Michael Wood summarises the arguments as follows: The Germans think of international law as a set of value norms, with the United Nations at its centre… And a constitutionalist Germany (followed by Austria, Sweden, Finland, together with The Netherlands) strives for a global legal community that frames and directs the power of all international actors alike.

This is contrasted with the British concept, which ‘is shaped more by the common law approach that international law norms are developing, but do not necessarily constitute a complete system of law’. In this way the United Kingdom follows the United States.68 Martti Koskenniemi observes that Europeans ‘read international law in the image of our domestic legalism: multilateral treaties as legislation, international courts as an independent judiciary, the Security Council as the police’. It is this intuition that has led to debates about ‘the constitutionalization of international law under the UN Charter’.69 The constitutionalist approach reflects an emphasis in world society on collective goals and a belief in community rather than the state-focused paradigm of the positivist conception of international law.70 The approach is constitutionalist because it regards the international community as a world society governed by an international legal order, or constitution. The international constitution is not codified in a single document, but found in a number of diverse sources, written and

67 See Jost Delbrück, ‘Transnational Federalism: Problems and Prospects of Allocating Public Authority Beyond the State’ (2004) 11 Indiana Journal of Global Legal Studies 31, 55. 68 Michael Wood, ‘The Security Council and the “Constitutionalization” of International Law’ (, 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 ‘proceeds from the assumption that it is international law which binds the parts together, affirming the existence of a “community of States” on the one hand and lending the necessary normative 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 the capacity of law and, conversely, underestimates the necessity of a society consensus as a precondition for the formation of, and in particular the respect for, legal rules’: Simma (n 39) at 245 (emphasis in original).

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176 The Constitutionalisation of IL unwritten. It is not the form of the instrument that makes it constitutional, ‘but a specific quality of some of the most important and basic international norms’.71 The usual topics for enquiry are the hierarchy of legal norms in international law, including jus cogens and erga omnes, the diminishing relevance of consent, the effects of international law on private actors, and the third party effects of treaties. Additionally, reference may be made to international treaties on territories that create objective regimes, the Antarctic Treaty regime, for example, and worldorder treaties in areas such as international human rights law that create international public law. These elements support the basic assumption ‘that substantive, universal, community values exist, implementation of which must be guaranteed by international mechanisms’.72 The constitutionalist argument is that the international community recognises a number of international law norms that cannot be understood in terms of sovereign will. The subjection of sovereign will to ‘higher’ international law norms suggests the existence of an international law order with its own procedural norms and norms of substantive justice. A particular focus is the emergence of a normative hierarchy in international law, and the global regulatory activities of the UN, notably the 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 recognition of norms of jus cogens,73 the identification of obligations erga omnes,74 and in the idea of ‘intransgressible principles of international customary law’.75 The Report of the Study Group of the International Law Commission, finalised by Martti Koskenniemi, on Fragmentation of International Law observes that the idea that ‘some norms are of a higher legal rank than others has found its expression in one way or another in all legal systems’.76 The relevant provisions of the Vienna Convention on the Law of 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 of Contemporary Approaches to International Law’ (2001) 44 German Yearbook of International Law 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 Justice refers to ‘elementary considerations of humanity, even more exacting in peace than in war’. 76 Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission’, Finalised by Martti Koskenniemi (13 April 2006) UN Doc A/CN.4/L.682 para 361.

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conflicts with a peremptory norm of general international law’,77 and that where a new peremptory norm of general international law emerges, ‘any existing treaty which is in conflict with that norm becomes void and terminates’.78 The Convention defines a norm of jus cogens in the following way: a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.79

In Armed activities on the territory of the Congo, the International Court confirmed the existence of norms of jus cogens.80 In his separate opinion, Judge ad hoc Dugard observed that the recognition by the Court of jus cogens, along with the notion of obligations erga omnes, ‘affirms the normative hierarchy of international law’.81 According to Judge ad hoc Dugard, the right of peoples to self-determination is a norm of jus cogens standing. The judgment of the Court refers only to the prohibition on genocide as having jus cogens character. Judge ad hoc Dugard observed that norms of jus cogens ‘give legal form to the most fundamental policies or goals of the international community’.82 Norms of jus cogens represent the established interests of the international legal community, distinct from those of the sovereign collective interests of the members of that community.83 In cases of conflict between treaties and norms of jus cogens, the treaty becomes void: ‘Conflict of a treaty with jus cogens renders the treaty – or a separable provision thereof – invalid. It makes no difference whether the treaty is bilateral or multilateral.’ The same logic applies to a conflict between jus cogens and general or customary law.84 The most frequently cited candidates for jus cogens norms include the prohibition on the aggressive use of force, the right to self-defence, the prohibition of genocide, the prohibition of torture, crimes against humanity, the prohibition of slavery and the slave trade, the prohibition of piracy, the prohibition of racial discrimination and apartheid, and the prohibition of hostilities directed at civilian population, ie the ‘basic rules of international humanitarian law’.85

77

Vienna Convention on the Law of Treaties art 53. 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. 78

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178 The Constitutionalisation of IL These peremptory norms, recognised by the international community of states as a whole, reflect both the fundamental value to the system of international law of international peace and security,86 and a political idea of international justice, reflected, for example, in the adoption of the resolutions of the General Assembly that first de-legitimised and then declared unlawful the practice of colonialism as a violation of the right of peoples to self-determination.87 The concept of obligations erga omnes is not formally concerned with the normative hierarchy in international law; the idea designates the scope of application of the relevant law, and the consequences that follow any breach.88 Obligations erga omnes are owed to the international community as a whole, with all states entitled to invoke the responsibility of the state. The erga omnes nature of the obligation does not formally indicate any superiority over other obligations.89 The existence of obligations erga omnes was confirmed by the International Court of Justice in Barcelona Traction, Light and Power Company, Limited: [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.90

The judgment affirmed the existence of obligations erga omnes, which were not necessarily distinguished by the importance of their substance. They were norms with certain procedural features – namely the feature that a breach of 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 essentially bilateral understanding of the international law order to one involving elements 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 October 1946, reprinted (1947) 41 American Journal of International Law 172, 216–20. 87 See, in particular, General Assembly (GA) Res 1514 (XV) ‘Declaration on the Granting of 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 Nations art 11: ‘Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations.’ 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.

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between contracts and public law obligations. In the latter, the relationship is between the legal subject and then public power.’92 In Barcelona Traction, Light and Power Company, Limited, the International Court of Justice concluded that obligations erga omnes derive ‘from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’.93 In its Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice concluded that a number of the international law obligations violated by Israel included certain obligations erga omnes. These included the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law.94

Article 103, Charter of the United Nations The second principal focus for constitutionalists is the UN system, and emergence of the UN as a global regulator with the authority to bind states to international law norms. Whilst it is not possible to refer to the UN as a World Government, the organisation asserts the primacy of its laws over all other forms of international law (with the possible exception of peremptory norms of jus cogens) and state laws. In the language of ‘Westphalia’, the UN asserts its sovereignty in the global law order, and there are no serious voices that reject the claim of the organisation to be both autonomous and capable of binding Member States (and nonmembers) to a set of normative standards framed in terms of (international) law. The focus for the argument is the supremacy clause contained in article 103 of the Charter of the United Nations (‘the UN Charter’): ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ The idea that the laws of the world organisation should prevail over other international law norms was not itself a novelty in 1945. Article 20 of the Covenant of the League of Nations provides: The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent 92

ibid at para 395. 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]. 93

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180 The Constitutionalisation of IL with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof.

The provision applies the principle of lex posterior: extant inconsistent obligations are abrogated (ie annulled or cancelled), although article 20 provides that where a Member of the League, before becoming a member, had undertaken obligations inconsistent with the Covenant, ‘it shall be the duty of such Member to take immediate steps to procure its release from such obligations’. The consequences of the normative hierarchy were not clearly established in terms of international law. In relation to future obligations, the Covenant does not hold itself out to be a ‘higher’ (constitution-like) instrument: it provides a legal obligation on states parties not to enter into conflicting international law obligations (in contrast to art 103 of the UN Charter). Whatever the literal provisions of article 20 of the Covenant, the International Law Commission Report on Fragmentation concludes that the provision ‘suggested that the Covenant itself was “higher law” in respect to other international obligations’.95 Article 20 provided the starting point for drafting article 103 of the UN Charter, with the participants at the San Francisco Conference sharing a general understanding that obligations under the Charter should prevail over other treaty commitments.96 Article 103 applies the priority of UN law to existing commitments of Members States (lex posterior), and to any new commitments that might arise in legal relations between members, and between members and non-members.97 The provision is clear in its scope and effect: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ The primacy of article 103 of the UN Charter has been affirmed by the International Court of Justice,98 and by the international law regime concerning treaty obligations contained in the Vienna Convention on the Law of Treaties,99 and Vienna Convention on the Law of Treaties between States and International Organizations 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. 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 Organizations or Between International Organizations (1986) 25 ILM 543, art 30(6): ‘The preceding paragraphs are without prejudice to the fact that, in the event of a conflict between obligations under the Charter of the United Nations and obligations under a treaty, the obligations under the Charter shall prevail.’ 96

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obligation under article 103.101 This does not require that the conflicting obligation or instrument is rendered ‘null and void’, ie having no legal status and creating no international law rights and obligations. Article 103 ‘says literally that in case of a conflict, the State in question should fulfil its obligation under the Charter and perform its duties under other agreements’.102 States are under an obligation to comply with all of their obligations under international law. Article 103 refers to conflict between obligations under the Charter and ‘obligations under any other international agreement’. Two issues emerge: does the normative hierarchy asserted in article 103 apply to rules of customary and general international law, and what is the relationship between international law introduced by bodies established under the Charter (resolutions adopted by the UN Security Council, for example) and other international law norms? In relation to customary international law, the International Law Commission Report on Fragmentation concludes that ‘it seems sound to join the prevailing opinion that Article 103 should be read extensively – so as to affirm that charter obligations prevail also over United Nations Member States’ customary law obligations’.103 The basis for the conclusion lies in the character of certain of the provisions of the Charter, the constitutional character of the Charter, and the established practice of states and UN organs. On the relationship between article 103 and political organs established under the Charter, the focus of concern has been the authority of resolutions adopted by the Security Council. Under the Charter, the members of the UN ‘confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf’.104 In cases of conflict between resolutions of the Security Council adopted under chapter VII and rights and obligations under other sources of international law, it is the position of the Security Council that its resolutions should prevail.105 Security Council resolutions are binding in respect of UN Member States by virtue of arts 25 and 48(1),106 and by article 2(6) in relation to ‘all States’.107 Resolutions adopted under chapter VII constitute, by virtue of article 103,108 a 101

Koskenniemi (n 76) at para 333. 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]. 102

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182 The Constitutionalisation of IL ‘higher’ form of legal obligation within the international system of law. Article 103 and the practice of states and the UN support the interpretation that as a binding form of UN law, the resolutions of the Security Council prevail over other forms of international law (and in practice domestic law norms). Koskenniemi observes, however, that the idea of jus cogens, ‘suggests that even United Nations politics may meet with a “constitutional” limit’.109 The normative hierarchy of international law and regulatory authority of the UN cannot be understood without reference to constitutionalist discourses and concepts.

THE INTERNATIONAL CONSTITUTION

In domestic societies, social, economic, political and legal life is organised, in part, in accordance with a ‘constitution’. Mattias Kumm identifies three meanings that have been applied to the term in relation to political communities: a formal written document, with entrenched norms and ‘higher’ status in the legal order; a set of norms whose ‘content or function’ may be referred to as constitutional; and the establishment of legitimate constitutional authority, whereby the constitution claims to establish ‘a legally independent authority, an independent legal system that structures and legitimates a political process. Its independence lies in the fact that it does not derive its authority from any other legal authority’.110 Increasingly, it is accepted that constitutionalist discourse can be applied to international law, although there is no agreement on its implications for the allocation and exercise of political authority in world society, given the absence of a constitutional document, global pouvoir constituant (constituent power), global society, or coherent global law order. First, the idea of a constitution is applied to those international law treaties that establish international organisations and institutions. ErnstUlrich Petersmann argues that the term may be applied to the constitutive instruments of international organisations where they constitute a new legal order and assert legal primacy over state parties; create new legal subjects and hierarchically structured institutions with limited governance powers; provide for institutional checks and balances; limit the legal rights of state parties; and provide for the collective supply of international public goods, defined at least in part in terms of human rights, including both civil and political rights, and economic, social and cultural rights. Once established these constitutive instruments operate 109

Koskenniemi (n 76) at para 409. 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. 110

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as ‘living constitutions’, whose functions ‘increasingly evolve in response to changing needs for international co-operation’.111 The paradigm example is the Charter of the UN, and the development of an autonomous body of ‘UN law’ by the General Assembly and Security Council. The application of constitutional discourses can explain the divergence of the practice of political organs from the literal text, agreed, or ‘contracted’, by states parties. Consider, for example, the failure of the Security Council to operate in accordance with the requirements established under chapters V and VII of the Charter. Whilst the practice under chapter VII of authorising Member States to ‘use all necessary means’ to achieve stated objectives may have been a practical necessity, given the absence of direct control over armed forces, the (de facto/de jure) change in voting procedures in chapter V cannot be explained on the same basis. Article 27(3) refers to the need for decisions to be made with the ‘concurring votes of the permanent members’. The practice of the Security Council is to require a permanent member to positively exercise its veto power. The revised scheme cannot be easily understood by reference to a contractual model of textual interpretation. By contrast, constitutional law relies to a much greater extent on the practices of political actors in understanding the exercise of (public law) powers. As JL Brierly observes, constitutions ‘are overlaid with precedents and conventions which change them after a time into something very different from what anyone, with only the original text before him, could possibly have foreseen’.112 Secondly, there is the work of Alfred Verdross. The possibility of applying the term ‘constitution’ to international law is credited to Verdross,113 who regarded all human persons as members of the same community, and argued that the binding force of international law was grounded in a fundamental norm based in the law of nature.114 According to Bruno Simma, Verdross did not seek to argue that humankind constituted a ‘universal inter-human legal community’, but that the

111 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, 640–41. 112 JL Brierly, ‘The Covenant and the Charter’ (1946) 23 British Yearbook of International Law 83, quoted Bardo Fassbender, ‘The UN Charter as Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529, 594. 113 In 1920, Charlemagne Tower used the term ‘international constitution’ when discussing 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 world constitution’: Torkel Opsahl, ‘An “international constitutional law”?’ (1961) 10 International and Comparative Law Quarterly 760, 777. 114 Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft (The Constitution of the International Legal Community) (1926). See Simma (n 39) at 259.

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184 The Constitutionalisation of IL international community of states and international organisations constituted ‘parts of the community bound together by universal international law, a community comprising the whole of mankind’.115 The basic norm of the international order would provide that the subjects of international law ‘ought to behave as prescribed by the fundamental legal principles deriving from the social nature of human communities as well as by the rules of international treaty and customary law created on the basis of such principles’.116 The approach led Verdross to argue for the recognition of norms of jus cogens, a ‘general principle prohibiting states from concluding treaties contra bonos mores’, on the basis that no juridical order can ‘admit treaties between juridical subjects, which are obviously in contradiction to the ethics of a certain community’.117 Verdross subsequently argued that the UN Charter had assumed the ‘character of basic law for the whole international community’.118 The paramountcy of the Charter did not depend on legal rules, but on moral force, especially on the good faith of the all Great Powers [the five permanent members of the UN Security Council], which, by ratifying the Charter[,] [had] assumed the high and responsible role of trustees and guardians of the peace.119

Bardo Fassbender notes that Verdross was not consistent in his writings, at one point concluding that those norms that constitute the community of international law ‘can be called a constitution of the community of states in a 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 of the universal community of states’.121 Verdross and Simma use the term ‘constitution’ in a normative sense. It is a set of rules of international law which take precedence over other norms in so far as their existence is a precondition for the validity of the latter from a logical and a legal point of view.122

Thirdly, the idea of a constitution can be applied to the idea of the international community as a legal community of states (and international organisations) under (international) law. Fassbender argues that this idea of a 115 Bruno Simma, ‘The Contribution of Alfred Verdross to the Theory of International Law’ (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 International 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.

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constitution refers to ‘the basic norm of a system of positive law upon which the validity of all other norms depends. It provides the ultimate basis of obligation in a legal system’. Substantive principles are not part of the constitution, but part of the ‘common public order (ordre public international)’. Substantive principles are expressed in the recognition of norms of jus cogens standing, and existence of obligations erga omnes.123 Constitutional rules are rules about rules, and rules about law-making. Christian Tomuschat argues that secondary rules on law-making and the exercise of executive and judicial functions form the constitution of any system of governance: ‘Every modern system of governance is operated through law-making, administration and adjudication’,124 and the international community ‘can indeed be conceived of as a legal entity, governed by a constitution’.125 International law provides the framework within which states exercise rights of political self-determination. The Charter of the UN, along with other world order treaties, such as the International Covenant on 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 of the existing international legal order’.126 Following an analysis of the possible meanings when applied to the state, Fassbender concludes that the idea of a ‘constitution’ is concerned with a complex of fundamental norms that both govern the organisation and performance of government functions, and define the relationship between state authorities and the citizen. Constitutions may also prescribe the fundamental policy goals of the state, establishing the ‘guiding principles for the political life of a community for an indefinite time’. Established as a form of positive law, the constitution binds all actors within the political community, including the government. It is often codified in a single document. Constitutional law norms are often difficult to amend (ie ‘entrenched’), and regarded as a ‘higher’ form of law, ie in cases of conflict with a statute or common law, the constitutional norm will prevail.127 On this understanding, Fassbender identifies a number of ‘constitutional characteristics’ of the Charter of the UN.128 First, the Charter was introduced at a ‘constitutional moment’ on 26 June 1945 at San Francisco. Secondly, it provides for a system of international governance, including legislative, executive and judicial provisions. Thirdly, in

123 124 125 126 127 128

ibid at 547. Tomuschat (n 14) at 216. ibid at 236. ibid at 309. Fassbender (n 112) at 536–37. ibid at 573ff.

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186 The Constitutionalisation of IL article 4, the Charter defines the membership of the Organisation, establishing a political community (of states). Fourthly, the Charter affirms the hierarchy of its norms (article 103). Fifthly, the language in the Charter assumes an eternity of existence, proving only for amendment, not termination; moreover, the amendment procedures are difficult and complex.129 Sixthly, the treaty establishing the UN is a ‘Charter’, a term that denotes ‘an especially elevated class of legal instruments’.130 Fassbenber argues that ‘there is no doubt that in 1945 the term “charter” was understood to be equivalent to “written constitution”.’ The interpretation is confirmed by the opening words: ‘We the peoples of the United Nations.’ These words are modelled on the US Constitution.131 Seventhly, the Charter has a constitutional history, with UN organs and the UN system being responsible for a number of ‘constitutional’ developments in the international law system, such as the emergence of norms on self-determination and decolonisation, human rights, the common heritage of mankind, and environmental protection. Finally, the Charter applies a principle of universality or inclusiveness, applying equally to all members of the international legal community.132 Fassbender concludes that the UN Charter, ‘as constitution of the international legal community, embraces all international law’. There is no such thing as general international law existing independently of the Charter. The Charter is the ‘supporting frame of all international law and, at the same 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 organisations. The idea of international constitutional law ‘is the body of rules and principles defining, in form and in substance, the basis of the international community, and indicating the general course the community has decided to steer’. It is embodied in the Charter of the UN, which sets out common values, goals and principles, and establishes the institutional machinery ‘necessary for carrying out the substantive norms’.134 Other writers refer to the Charter as the ‘constitutional document of the international community of states’,135 or the ‘constitution of mankind’.136

129

Charter of the UN arts 108 and 109. 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 University Journal of International Law and Politics 753, 766–67. 130

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The International Constitutional Order

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The constitutionalist analysis makes a number of important contributions to understanding international law. Whilst the UN Charter forms an integral part of the international constitutional order, it cannot be regarded as the Constitution of the international law system. The international community does not possess a constitution in the sense of a formal written document that allocates law-making powers, providing entrenched constitutional rights, including fundamental human rights. As Tomuschat observes, if the constitution of the international community were to exist, it is ‘obvious’ that it would ‘display features which are largely similar to that of the British system of government’, which lacks a single constitutional document.137 The focus of the constitutionalist enquiry is not a particular instrument (ie the UN Charter), but those international constitutional norms and principles that together frame and constrain the exercise of political authority by state and non-state actors.

THE INTERNATIONAL CONSTITUTIONAL ORDER

The constitutionalist argument represents a significant move away from a contractual order, based on sovereign consent, to a public (international) law system of global governance, but it is important not to overstate the divergence of the constitutionalist understanding from that which existed previously. In one sense, the constitutionalist argument recognises 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’. In addition to primary rules of obligation, a legal system must possess (in HLA Hart’s terms) secondary rules of change, adjudication, and recognition, ‘which specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined’.139 Philip Allott, for example, distinguishes between international constitutional law, international public law, and the law of nations. International constitutional law ‘is what some older writers called the “necessary” law of nations’, those rules that determine the capacity of actors to enter into international law relations, and the scope and possibilities of their relations vis-à-vis each other’. It also determines the relations between international public law, and the law 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. Thomas Franck, Fairness in International Law and Institutions (Oxford, Oxford University 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. 138

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188 The Constitutionalisation of IL provide answers to three fundamental questions: who are the legitimate polities; what are the rules for becoming one of these polities; and what are the basic prerogatives of these polities?141 According to the procedural understanding, international constitutional norms define the ‘constitutive rules of the sovereignty game’,142 including rights of membership, the inherent rights of political units, and the rules for the establishment of legal relationships, notably pacta sunt servanda. Others argue for a more expansive understanding of international constitutional law to include substantive values.143 According to Erika 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 international community that is ‘underpinned by a core value system common to all communities’.144 The term constitution in global governance can be extended to include the fragmented multilevel system that embodies core values and provides a variety of legal structures for their enforcement.145 The international law system would then be regarded as a supra-national global (federal) constitutional order, with the different sectoral regimes functioning as ‘complementary elements of a larger whole. This would be the embryonic international constitutional order with the UN Charter system as the main connecting factor.’146 The literature on constitutionalism in world society emerged as one response to globalisation and recognition that governance functions were increasingly being undertaken outside of the constitutional frame for (democratic) law-making provided by the sovereign state. Consider, for example, the argument of Anne Peters that a ‘compensatory constitutionalization on the international plane’ is required, given that only the various levels of governance, taken together, ‘can provide full constitutional protection’.147 The analysis suggests new forms of legitimacy for

141 Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, Princeton University Press, 2001) 12. 142 Robert Jackson, ‘Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence 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 a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 611, 612. 145 Erika de Wet, ‘The International Constitutional Order’ (2006) 55 International and Comparative Law Quarterly 51, 53. 146 ibid at 56. 147 Anne Peters, ‘Global Constitutionalism Revisited’ (2005) 11 International Legal Theory 39, 41–42.

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the international system, with state sovereignty gradually ‘complemented (if not substituted) by other guiding principles, notably the “global common interest” and/or “rule of law” and/or “human security”.’148 Both domestic and international constitutional law must complement each other; they should not be understood as being in a hierarchical arrangement, but in the form of a network, and the ‘constitutional elements on the various levels and in the various sectors may complement and support each other’.149 A notable contribution is that of Ernst-Ulrich Petersmann, who argues that the constitutionalisation of international law requires the integration of international human rights law in general international law, specifically in relation to the UN and World Trade Organization. The aim is to entrench liberal human rights norms, including rights to property and trade, in national constitutions and before international courts and tribunals. The argument is controversial because of the focus on economic private law rights. Petersmann contends that markets are indispensable in promoting individual autonomy and that economic law ‘is a necessary precondition for the proper functioning of markets and for avoiding both market failures as well as government failures’.150 The analysis proceeds from an understanding of international law as a mechanism for ensuring the legitimate exercise of coercive political authority at the domestic level, which depends on three factors: the protection of the equal rights of citizens; the (democratic) requirement that decisions are taken by the people or their representatives; and the ‘welfare-increasing results of democratic policy-making’.151 International institutions should be understood as part of a ‘fourth branch of government’ (alongside the legislative, executive and judicial branches of domestic government) and, like domestic institutions, they derive their legitimacy from promoting the equal liberties and public interest of (domestic) citizens.152 The legitimate exercise of coercive government powers depends on the existence of liberal democratic institutions organised in accordance with a constitution, and there are certain ideas that are common to all (liberal democratic) constitutions: democracy, separation of powers, rule of law and the protection of human rights.153 Arguments around the democratic deficit in global governance should be understood in terms of the

148

ibid at 49. 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. 149

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190 The Constitutionalisation of IL teleology of all liberal democratic political associations: ensuring the democratic rights and welfare of individual citizens. The democratic legitimacy of international institutions depends on the transformation of the ‘society of states paradigm’ into a more ‘citizen-oriented paradigm’. Given that globalisation has reduced the capacity of states to secure the well-being of their citizens, there is a need for ‘new forms of democratic self-government, “transnational justice” and international rule-making for the collective supply of international public goods’.154 To the extent that the protection of rights, popular control over policy-making, and welfare enhancement cannot be achieved at the domestic level, it should be guaranteed at the international level by a ‘new U.N. Constitution’,155 based on international human rights, an agreed democratic peace, and compulsory jurisdiction for the International Court of Justice. States would have to commit themselves to the necessary democratic and legal reforms, or face exclusion from the ‘new United Nations’.156 Petersmann’s analysis demonstrates the essentially political nature of constitutional discourses. The constitutionalist analysis (as it appears in the literature) is an argument for the entrenchment of (contested) liberal democratic values of rule of law, democracy, and the protection of individual human rights in international law, and the subjection of states (who remain the principle subjects of international law) to the requirements of liberal democracy. Armin von Bogdandy refers to a ‘vision’ of a global legal community that ‘frames and directs political power in light of 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 on democratic politics are instructive: there is a ‘door closing’ function to constitutional 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 Trade Requires a Common Conception of Rule of Law and Justice’ (2007) 10 Journal of International Economic Law 529, 532. 155 Ernst-Ulrich Petersmann, ‘Constitutionalism and International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?’ (1999) 31 New York University Journal 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: Constitutionalization 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.

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191

and contestable policies.160 Constitutions are not only mechanism for allocating power and prescribing rules about rule-making, they are instruments that give expression to the fundamental political values and goals of a political society. There is a general acceptance in constitutional discourses that constitutional norms should not be subject to amendment without some special procedure, or sense that the political settlement has been repudiated and a new settlement put in its place. Constitutional norms sit outside of the domain of ‘normal’ politics: the idea of constitutionalism refers to the ‘containment of politics by a supervening law that stands beyond the reach of the politics it is meant to contain’.161 Agreed constitutional norms place certain choices beyond the reach of democratic politics.162 The people may replace or amend the constitution, but whilst it remains in place, it limits the political choices of the ‘here-andnow’ citizens. Mutatis mutandis, the application of constitutional discourse to international law requires that certain international norms are insulated from political contestation. Consider, for example, the response of (most) public international lawyers to any claim that torture may be justified in the global war on terror. The prohibition on torture is an international norm of jus cogens standing (and obligation erga omnes). It is a fundamental global justice norm of the international constitutional order. No political argument can succeed in displacing the prohibition from 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 to legal texts, does not ‘translate automatically into a substantive constitution in the absence of that sense of shared “project” or objective’.164 Stephen Gill refers to the ‘new constitutionalism’ as a ‘project of attempting to make transnational liberalism, and if possible liberal democratic capitalism, the sole model for future development’.165 Constitutionalism is a political project that argues for the recognition of liberal democratic principles concerning the rule of law, human rights and democracy in the

160 Robert Howse and Kalypso Nicolaïdis, ‘Legitimacy and Global Governance: Why Constitutionalizing 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, Brookings Institution Press, 2001) 227, 229. 161 Frank Michelman, ‘The 1996–97 Brennan Center Symposium Lecture’ (1998) Californian Law Review 399, 400. 162 ibid at 401. 163 Kenneth Abbott et al, ‘The Concept of Legalization’ (2000) 54 International Organization 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.

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192 The Constitutionalisation of IL international law order. Those principles are then imposed on state societies.166 Arguments for the constitutionalisation of international law are, simply put, arguments for the application of values first codified in the American Constitution at the global level: separation of powers (fragmentation of governance functions), rule of law, human rights, and democratic legitimacy. The fact that constitutional discourses in international law mirror the constitutional settlement in the United States is no coincidence. The evidence is that all international societies with shared values and assumptions have evolved within a matrix of a dominant culture.167 In the words of John Ruggie, it was ‘American hegemony that was decisive after World War II, not merely American hegemony.’168 The system of global governance, David Slater writes, reflects the contradictory 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 geopolitical destiny of the USA’. This has necessitated the development of a ‘discursive “bridge”’, able to ‘transcend the contradiction between an identity based on the self-determination of peoples and another rooted in Empire’. This discursive bridge has been formed through the invocation of a democratic mission that combines both the national and international spheres: ‘[A] horizon is created for other peoples who are encouraged to choose freedom and democracy, thereby embedding their own struggles within an Americanising vision and practice.’170 The result is an imperial project that seeks to develop, modernise and democratise domestic societies. The vision is that of liberal democracy, or more accurately market-led democracy, which has become hegemonic in an era

166 See, generally, Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009) 348–51; also Anne Peters and Klaus Armingeon, ‘Global Constitutionalism from an Interdisciplinary Perspective’ (2009) 16 Indiana Journal of Global Legal Studies 385, 389: ‘We employ the term “global constitutionalism” in order to characterize an academic and political agenda which identifies and advocates the application of constitutionalist principles, such as the rule of law, checks and balances, human rights protection, and possibly democracy, in the international legal sphere in order to improve the effectiveness and the fairness of the international legal order.’ 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 Fundamental Institutions’ (1997) 51 International Organization 555, 563. 169 David Slater, ‘Imperial Powers and Democratic Imaginations’ (2006) Third World Quarterly 1369, 1376. 170 ibid at 1377.

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Liberal Democratic Values in International Law

193

of neo-liberal globalisation.171 The assumption is that the Western liberal model of democratic governance should be applied to all (state) societies (including non-Western societies).172 The imposition of good governance norms concerning rule of law, human rights, and (liberal) democratic government form one part of an ‘imperial project’ that demonstrates a ‘lack of respect and recognition for the colonised or, expressed more broadly, imperialised society’.173

LIBERAL DEMOCRATIC VALUES IN INTERNATIONAL LAW

The two-track model of democratic self-determination that developed following the Westphalian settlement is no longer sufficient to make sense of the democratic legitimacy of law. The development of a normative hierarchy in international law, emergence of a global authority (in the form of the UN), and (implicitly) a global constitutional order provides a new context for (domestic) democratic self-determination. Political self-determination is exercised within a global constitutional framework that promotes the liberal democratic values of rule of law, protection of human rights, and democratic mechanisms for the establishment of valid laws. The international community of state and nonstate actors has developed an (admittedly amorphous) international constitutional order within which state exercise rights of political selfdetermination. The constitutionalisation of international law is a political project in the image of hegemonic power, suggesting the gradual emergence of a world community of liberal (democratic) states in which the individual is the primary unit of concern in the international order. Two developments support the analysis, the emergence of an international rule of law and body of international human rights law.

171 ibid at 1380. Ran Hirschl argues that all processes of constitutionalisation should be seen in terms of ‘hegemony preservation’ – unless proven otherwise, the most plausible explanation for constitutionalisation is that those political power holders, who either initiate or refrain from blocking reforms, assume that any limits on their own scope for political action will be compensated for by ‘the limits it might impose on rival political elements, their alternative worldviews, and policy preferences’: Ran Hirschl, ‘Preserving Hegemony? Assessing the Political Origins of the EU Constitution’ (2005) 3 International Journal of Constitutional Law 269, 278. 172 ibid at 1380. 173 ibid at 1372 (emphasis in original).

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194 The Constitutionalisation of IL RULE OF LAW

Increasingly, it is recognised that it is appropriate to speak about an international rule of law, or rule of international law.174 Following an analysis of the concept applied in domestic societies, Stephane Beaulac concludes that the rule of law requires certainty, predictability and stability.175 The idea involves the avoidance of the exercise of arbitrary power, and the constraint of discretionary power.176 There is no reason to conclude that the concept cannot be applied to international law. André Nollkaemper observes that at the domestic level the idea of the rule of law ‘primarily (though not exclusively) involves protection against the public power of the state’. The argument has not traditionally been applied at the international level, as there is ‘no equivalent to such centralized public power’.177 The idea of the international rule of law has been concerned with the horizontal relations between states, reflected, for example, in the non-intervention doctrine. The understanding is no longer sufficient, as international law is ‘increasingly of a regulatory nature, governing directly the legal rights and obligations of private persons who are located in domestic legal orders’. This is particularly the case in relation to international human rights law, which ‘strengthens and supports the domestic rule of law, for instance in protecting the autonomy of domestic courts vis-à-vis the political branches, and in protecting citizens against retrospective laws’.178 To the extent that international law ‘pervades the domestic legal order more deeply, it seems a sound premise that international law should conform to rule of law requirements that we tend to pose for domestic law’. The rule of law is associated with the protection of fundamental rights, and the need for domestic institutions, notably courts, to scrutinise ‘whether international acts (in particular acts of international organizations) are compatible with fundamental rights’.179 Nollkaemper articulates a substantive concept of the rule of law: it is not 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 the Law of the Constitution (London, Macmillan, 1939); Joseph Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law (Oxford, Clarendon Press, 1979) 224; Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137; also Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge, Cambridge University Press, 2004). 175 Stephane Beaulac, ‘An Inquiry into the International Rule of Law’ (2007) EUI Max Weber 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.

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Rule of Law 195 substantive values that must be present for the legitimate exercise of political authority through law. A number of international instruments refer expressly to the idea of an international rule of law. The Declaration on Friendly Relations refers to the ‘promotion of the rule of law among nations’. The 2005 World Summit Declaration affirms the need for universal adherence to the rule of law ‘at both the national and international levels’, and the commitment of Member States of the United Nations to an international order ‘based on the rule of law and international law’. In paragraph 134, Member States reaffirmed their commitment to the purposes and principles of the Charter and international law, ‘and to an international order based on the rule of law and international law, which is essential for peaceful coexistence and cooperation among States’.180 The provision also encourages states that have not done so ‘to consider becoming parties to all treaties that relate to the protection of civilians’,181 and calls on states ‘to continue their efforts to eradicate policies and practices that discriminate against women and to adopt laws and promote practices that protect the rights of women and promote gender equality’.182 It suggests a connection between the rule of law and the protection of the human person.183 On 11 December 2008, the UN General Assembly adopted, without a vote, Resolution 63/128: ‘The rule of law at the national and international levels.’ The resolution reaffirms the requirement for ‘universal adherence to and implementation of the rule of law at both the national and international levels’, and the ‘solemn commitment’ of the General Assembly ‘to an international order based on the rule of law and international law, which, together with the principles of justice, is essential for peaceful coexistence and cooperation among States’. The resolution concludes that ‘the promotion 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 the United Nations and of its Member States’. It reaffirms the link between human rights, the rule of law and democracy, describing them ‘mutually reinforcing and [belonging] to the universal and indivisible core values and principles of the United Nations’. The resolution further argues that respect for the rule of law at the state and international level ‘is essential for the realization of sustained economic growth, sustainable development, the eradication of poverty and hunger and the protection of all human rights and fundamental freedoms’.184 180 GA Res 60/1, ‘2005 World Summit Outcome’ (adopted 16 September 2005) at para 134(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.

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196 The Constitutionalisation of IL Whilst the existence of a rule of international law is no longer controversial, agreement on the content of the principle remains elusive. The indeterminacy is reflected in the very idea of the rule of law, which, as Simon Chesterman observes, ‘remains contested across both time and geography’.185 There is, however, a core meaning: the power of the state should not be exercised in an arbitrary manner, and it should be prospective, accessible, and clear; the law should apply equally to the sovereign and the institutions of the state, with some independent institution (‘court’) to apply the law in specific cases; and should apply equally to all persons.186 In relation to the international rule of law, Chesterman identifies three possible meanings: first, the application of rule of law principles to relations between states and other subjects of international law; secondly, an affirmation of the international law principle of a hierarchy that privileges international law over state law, for example in relation to international human rights norms; and thirdly, a ‘global rule of law’, reflecting the ‘emergence of a normative regime that touches individuals directly without formal mediation through existing national institutions’.187 Chesterman concludes that in international law, the rule of 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 expansive definition of the rule of law as a situation in which all actors ‘are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards’. It further requires ‘adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency’.189 The understanding relies on an idea of the rule of law that promotes substantive values of justice, and not one that simply demands the exercise of power in accordance with posited law norms.

185 Simon Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative 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 the rules are, predictability as to the legal consequences of conduct, equality before the law, the absence of arbitrary power, and effective and impartial application of the law’: Sir Arthur Watts, ‘The Importance of International Law’ in Michael Byers (ed), The Role of Law in International 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.

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Rule of Law 197 Lon Fuller has written on the ‘internal’ and ‘external’ morality of law. The internal morality is concerned with the way in which the law is created, interpreted and administered: law must exist; be obeyed by all; be published; be prospective; be written with reasonable clarity; avoid contradictions; not command the impossible; stay reasonably constant; and official action should be consistent with the declared rule.190 Law is distinguished from other normative systems ‘by the specific type of rationality apparent in the internal processes that make law possible’. Rationality depends on reasoned argument, precedent, and the use of analogy. The internal morality of the law ensure that rules are compatible with one with another, that they ask reasonable things of the people to whom they are directed, that they are transparent and relatively predictable, and that officials treat known rules as shaping their exercise of discretion.191 The external morality of the law is related to ‘the assessment of fairness, equality and justice produced by legal rules and a legal system’. Fuller does not specify any particular ‘external morality’: it is left to ‘high and debatable principle’, once the legal system is ‘largely constructed’, ie the internal morality ‘pre-dates the pursuit of substantive outcomes’.192 These ideas are reflected in Thomas Franck’s discussion of legitimacy and fairness in relation to international law. There are four variables affecting legitimacy: determinacy, symbolic validation, coherence and adherence. Legitimacy (‘procedural fairness’) is concerned with the properties of the rule, the process by which the rule was adopted and the process of interpretation.193 Distributive fairness (‘justice’) is concerned with the allocation of public goods in the international community, including their allocation to persons and peoples. There are no objective standards of fairness, which is ‘a human, subjective, contingent quality which merely captures in one word a process of discourse, reasoning, and negotiation leading if successful, to an agreed formula located at a conceptual intersection between various plausible formulas for allocation’.194 The position of the international community, a social system of continuing interaction and transaction, on the questions of distributive justice 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: Elements of an Interactional Theory of International Law’ (2000) 39 Columbia Journal of Transnational Law 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).

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198 The Constitutionalisation of IL ‘advance claims and [test] them against rival claims’. Deliberations about fairness exclude claims ‘which proceed not from reason but by automatic trumping’.195

INTERNATIONAL HUMAN RIGHTS LAW

Central to arguments around constitutionalism and international law has been the development of a body of international human rights law,196 notably the adoption of the ‘International Bill of Rights’: the Universal Declaration on Human Rights,197 and International Covenant on Economic, Social and Cultural Rights,198 and International Covenant on Civil and Political Rights.199 The idea of a Bill of Rights is taken from the first amendment to the US Constitution, which provides limits on the exercise of government authority, ensuring that majority will is subject to certain procedural requirements and minimum respect for human rights. Mutatis mutandis, the emergence of a body of international human rights law establishes the liberal nature of the international constitutional order and requires that all states respect minimum standards concerning the treatment of the human person. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judge Weeramantry noted that a state’s human rights obligations were not matters that ‘concern that State alone, but represent a contribution to human dignity and global stability’.200 The political idea of human rights has its origins in the seventeenth century. Important early writings include Thomas Hobbes, Leviathan 195 ibid at 478 (emphasis added). According to Chayes and Chayes, legitimacy in the international system is established where decisions emanate from fair and accepted procedures; they are applied equally and without invidious discrimination; and do not offend minimum substantive standards of fairness: Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Massachusetts, Harvard University Press, 1998) 127. 196 Annika Tahvanainen argues that human rights ‘contribute to the constitutionalization of international law, reflecting a nucleus of norms essential for assuring co-existence of and co-operation among different international actors, as well as the protection of the fundamental values and interests which are common to the international community as a whole’: Annika Tahvanainen, ‘Commentary to Professor Hafner’ (2004) 25 Michigan Journal of International Law 865, 866. 197 GA Res 217(III)A ‘Universal Declaration of Human Rights’ (adopted 10 December 1948). 198 International Covenant on Economic, Social and Cultural Rights, adopted by GA Res 2200A (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.

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International Human Rights Law 199 (1651),201 which located the source of political authority in the people, and made consent the basis of sovereign authority, precluding any subsequent appeal to any ‘higher’ authority, and John Locke, Second Treatise of Government (1690),202 which built on the principle of consent to argue that a social contract provided limits on the exercise of coercive political authority. These ideas are reflected in the Virginia Bill of Rights,203 and American Declaration of Independence, both 1776, the latter of which recognised not only the problems created by the existence of a supreme ruler, but also those of majority rule and the need to provide for ‘checks and balances’ in the exercise of coercive state power in the interests of individual freedom. Prior to the twentieth century, the idea of human rights was the concern of domestic law systems. With the exception of ad hoc instances of humanitarian intervention,204 and the imposition of obligations, principally concerning minorities, on states by the Great Powers,205 international law was not concerned with the protection of human persons. The notable exception was slavery, specifically the slave trade,206 although it was not until the 1926 Slavery Convention that states parties committed

201

Thomas Hobbes, Leviathan, intro. KR Minogue (London, Dent, 1973). 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, critical edn, 2nd edn (Cambridge, Cambridge University Press, 1967). 203 The Virginia Bill of Rights 1776 provided that ‘all men are by nature equally free and independent, 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). It also 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 a government shall be found ‘inadequate or contrary to these purposes, a majority of the community 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 Intervention: Its Current Validity Under the U.N. Charter’ (1974) 4 California Western International Law Journal (1974) 203. 205 Every major peace treaty from Westphalia onwards included provisions that contradict the ‘Westphalian model’, including provisions concerning the protection of minorities and 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, Prime Minister of the Polish Republic, stated: ‘It has long been the established procedure of the public law of Europe that when a state is created… the joint and formal recognition by the Great Powers should be accompanied by the requirement that such State should, in the form of a binding international covenant, undertake to comply with certain principles of government’: quoted in Leo Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal of International Law 20, 23. 206 See 1815 Congress Vienna (Declaration on the Slave Trade), Declaration of Eight Courts relative to the Universal Abolition of the Slave Trade (8 February 1815) 63 Consol TS 473; and 1890 Treaty Slave Trade, General Act for the Repression of African Slave Trade (2 July 1890) 27 Stat 886. See generally Steve Charnovotz, ‘Two Centuries of Participation: NGOs and International Governance’ (1997) 18 Michigan Journal of International Law 183. 202

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200 The Constitutionalisation of IL themselves to prevent and suppress the slave trade,207 and to ‘bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms’.208 The prohibition on slavery is now recognised as an international norm of jus cogens standing; the preamble of the 1956 Supplementary 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, there was a decline in the power of the idea of human rights, with neither the German Empire under the Constitution of 1871, nor the French Third Republic Constitution of 1871 containing clauses on the fundamental rights of the citizen.210 International human rights emerged in the period following what the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Constitution describes as the ‘great and terrible war’ of 1939–45, made possible ‘by the denial of the democratic principles of the dignity, equality and mutual respect of men’.211 International human rights formed one part of the constitutional settlement reflected in the adoption of the Charter of the UN, although elements of the right of peoples to self-determination212 and the protection of minorities had been present in the settlement that followed World War I.213 The recognition of universal (at least globalised) human rights norms represents an important shift in the nature of international law that accords recognition and rights to human persons. State law systems are subject to the international law order (at least in relation to fundamental rights). The change is reflected most dramatically in the Nuremberg Charter and decision of the International Military Tribunal (Nuremberg) (IMT), which

207 Article 2(a) of the Slavery Convention, International Convention to Suppress the Slave 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 Institutions 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 homogenous ‘Nation’ states were created, following the collapse of the multi-national Hapsburg, Ottoman, Russian, and German Empires. The application of the national self-determination principle sought, on objective criteria, to identify ‘Nations’ and to recognise their sovereign and 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 Minorities Treaty’) (adopted Versailles, 28 June 1919). Treaty of Peace Between the United States of America, 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) 14 American Journal of International Law 392.

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International Human Rights Law 201 affirmed a principle of individual criminal responsible for the commission of ‘crimes against humanity[,] whether or not in violation of the domestic law of the country where perpetrated’.214 In its judgment, the Tribunal determined that prisoners were treated ‘not only in defiance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity’.215 In relation to the persecution, repression, and murder of civilians in Germany before the war, notably the Jewish population, the IMT concluded that ‘revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, [a crime under the jurisdiction of the tribunal]’. The IMT felt precluded from making a declaration that acts committed prior to 1939 ‘were Crimes against Humanity within the meaning of the [Nuremburg] Charter’.216 The principles of international law recognised in the Charter of the Nuremberg Tribunal and judgment of the IMT were affirmed by the UN General Assembly in Resolution 95(I), adopted 11 December 1946,217 which described genocide as ‘contrary to moral law and to the spirit and aims of the United Nations’, as well as a crime under international law.218 The language is that of natural law: the system of positive international law that existed prior to 1945 was (de jure) subject to overarching moral principles. In 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The preamble affirms that genocide is a crime under international law and ‘contrary to the spirit and aims of the United Nations and condemned by the civilized world’. The Genocide Convention declares that ‘in order to liberate mankind from such an odious scourge, international co-operation is required’. Genocide is recognised as a crime under international law, whether committed in time of peace or in time of war.219 In Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice concluded that the principles underlying

214 Agreement for the prosecution and punishment of the major war criminals of the European Axis, 8 August 1945, 82 UNTS 279, art 6(c). 215 International Military Tribunal (IMT) (Nuremberg), judgment and sentences (1 October 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 also present in the preamble to the Rome Statute of the International Criminal Court, which observes that, in the twentieth century, ‘millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’: Rome Statute of the International Criminal Court (adopted 17 July 1998) 37 ILM 999 preamble.

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202 The Constitutionalisation of IL the Convention were binding ‘even without any conventional obligation’, noting its ‘special characteristics’. The Convention was ‘manifestly adopted for a purely humanitarian and civilizing purpose’. States parties did not have interests of their own: ‘they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which 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, Phillip Marshall Brown observed that ‘Men everywhere are beginning to realize the truth that the state exists, not as an end in itself, but as the means to their own individual welfare and happiness.’ He refers to a ‘democratic principle’ that must be ‘logically applied to international affairs as well as domestic’. The idea of the ‘sovereign state from which all rights flow must give way to the conception that international law itself derives its ultimate sanction and respect from the sovereign people’.221 The arguments are echoed in the writings of Hersh Lauterpacht following World War II, in which he sought to repudiate the strict positivism that had dominated international law prior to the establishment of the UN.222 Renée Jeffery concludes that the aim of Lauterpacht’s writings was a revival of natural law as an independent source of international law in the face of the calamities of World War I.223 The project required the refutation 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 rights law developed by the UN and other international organisations. The establishment of an international system for the protection of human rights had been one of the war aims identified by US President Franklin D Roosevelt and British Prime Minister Winston Churchill in the Atlantic Charter of 14 August 1941, and in the joint declaration of 1 January 1942 by 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 American Journal of International Law 532, 534. 222 Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 British Yearbook 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 Relations 223, 228. 224 ibid at 231.

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Human Rights in the United Nations System

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helped define the allied cause against Fascism.225 Elizabeth Borgwardt argues that whilst the Atlantic Charter implied that the individual was a legitimate object of international concern, it was with the Declaration of the United Nations that the term ‘human rights’ acquired its modern meaning.226 Discussions at Dumbarton Oaks in 1944 reflected divergent opinions between those states that wanted human rights to be central to the UN system, and others reluctant to admit any form of international involvement in domestic affairs.227 The different approaches are reflected in the structure of the Charter, which both recognises the importance of respect for human rights,228 and the continuing relevance of the idea of domestic jurisdiction (and principle of non-intervention).229 The purposes of the organisation include promoting and encouraging respect for human rights and fundamental freedoms, without distinction as to race, sex, language, or religion.230 Writing in 1950, Lauterpacht concluded that the provisions created a legal obligation to respect and observe fundamental human rights and freedoms;231 whilst it might not be possible to identify the necessary positive steps required of Member States, the Charter precluded the introduction of laws curtailing the rights of women, or imposing additional measures discriminating against persons belonging to religious, ethnical or racial groups, or the ‘active persecution of persons… on account of their race, language or religion’.232 The UN Charter established the principle that individuals have rights under international law. This was confirmed in United States Diplomatic and Consular Staff in Tehran, where the International Court of Justice concluded that wrongfully to deprive individuals of their liberty and to subject them to constraint in conditions of hardship ‘is in itself manifestly incompatible 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 that the Allied Declaration that the Allies are fighting to make the world safe for freedom of the individual and for democracy sounds hollow, so long as India, and for that matter, Africa are 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 of International 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 without distinction 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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204 The Constitutionalisation of IL Lauterpacht observes that the human rights provisions in the Charter were adopted after prolonged discussion ‘as part of the philosophy of the new international system and as a most compelling lesson of the experience of the inadequacies and dangers of the old’.234 Their introduction reflected a change in the character and function of international law,235 transforming the individual from ‘an object of international compassion into a subject of international right’, and to that extent it ‘constitute[d] the individual [as] a subject of the law of nations’.236 The importance of the protection of human rights was confirmed in early UN General Assembly resolutions.237 These included Resolution 39(I), adopted on 12 December 1946, which declared that the Franco Fascist Government did not represent the Spanish people, and demanded the establishment of a government ‘which derives its authority from the consent of the governed, committed to respect freedom of speech, religion and assembly and to the prompt holding of an election in which the Spanish people… may express their will’.238 In Resolution 272(III), adopted on 30 April 1949, the General Assembly noted that Bulgaria and Hungary had been accused of acts ‘contrary to the purposes of the United Nations and to their obligations under the Peace Treaties’.239 The Assembly expressed its ‘deep concern at the grave accusations’ regarding the suppression of human rights and fundamental freedoms,240 and the hope that measures would be introduced to ensure their respect.241 Bulgaria and Hungary were not members of the UN at the time of the adoption of the resolution. Hauke Brunkhorst argues that, after 1945, there was ‘nothing left from the Westphalian (or better the Vienna Congress) Order of International Law’. The new global order embraced both international and national law. It universalised the lessons of the democratic nation state: ‘the exclusion of inequality with respect to individual rights, political participation

234

Lauterpacht (n 231) at 147. 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 11 December 1956); also GA Res 285 (III) ‘Violation by the [USSR] of Fundamental Human Rights, Traditional Diplomatic Practices and other Principles of the Charter’ (adopted 25 April 1949). 238 GA Res 39(I) ‘Relations of Members of the United Nations with Spain’ (adopted 12 December 1946). 239 GA Res 272(III) ‘Observance in Bulgaria and Hungary of Human Rights and Fundamental Freedoms’ (adopted 30 April 1949) preamble. 240 ibid at para 1. 241 ibid at para 2. 235

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and equal access to social welfare and opportunities’.242 The position is expressed in the 1948 Universal Declaration of Human Rights adopted by the UN General Assembly. Article 1 provides: ‘All human beings are born free and equal in dignity and rights.’243 Equality and non-discrimination are key provisions in the Declaration.244 Following the adoption of the Universal Declaration, it could no longer be argued that human rights depend for their validity on recognition by state law systems (although the Declaration fails to explain why this is the case).245 The Declaration develops a political concept of justice and rights: it provides a limited number of absolute provisions concerning slavery (article 4), torture and cruel, inhuman or degrading treatment or punishment (article 5), and equal protection under the law (article 7); other ‘rights’ may be subject to such limitations as required for ‘securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’ (article 29(2)). The content of international human rights norms must be worked out through democratic procedures in each domestic society, a point emphasised in article 21, which provides that the ‘will of the people shall be the basis of the authority of government’. This shall be expressed in periodic and genuine elections (article 21 (3)). Allan Rosas refers to article 21 as a ‘revolution within a revolution’, with the international community not only declaring the idea of the equal and inalienable rights of the individual, but also setting down minimum requirements for the structure and functioning of the State: the authority of its government must be based on ‘the will of the people’, and there must be a system of democratic participation with equal political rights for every citizen.246

The Universal Declaration on Human Rights provides for the protection of rights in the context of democracy. It was not at the time of its adoption intended to be legally binding, or regarded as an authoritative interpretation of the human rights obligations in the Charter.247 The absence of binding obligations reflected an absence of the necessary ‘community of outlook 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 December 1948) 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.

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206 The Constitutionalisation of IL and State’.248 Nor was the Declaration regarded, in toto, as an expression of customary international law,249 although a number of the provisions have entered into the corpus of customary international law. Whilst it was adopted at a time when liberal democracies predominated in the UN, the Universal Declaration of Human Rights was, and remains, significant in defining legitimate standards of behaviour in the international community. In its own words, the Declaration establishes a ‘common standard of achievement for all peoples and all nations’.250 Following the adoption of the Universal Declaration, the UN General Assembly moved to delegitimise certain policies, notable discrimination against women, and groups identified on the basis of race251 and religion.252 In 1966, the Assembly adopted its ‘International Bill of Rights’, the International Covenant on Economic, Social and Cultural Rights, and International Covenant on Civil and Political Rights. A body of UN human rights law has emerged, reflected in the core human rights instruments: the International Convention on the Elimination of All Forms of Racial Discrimination;253 International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Convention on the Elimination of Discrimination against Women;254 Convention against Torture;255 International Convention on the rights of Migrant Workers;256 the Convention on the rights of the Child;257 International Convention against forced Disappearances; and Convention on the rights of persons with Disabilities.258 Reference may

248

ibid at 296–97. Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995/6) 25 Georgia Journal of International and Comparative Law 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 the Elimination of All Forms of Racial Discrimination adopted by GA Res 2106 (XX) (21 December 1965). 252 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based 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 or Punishment (1984) 1465 UNTS 85. 256 International Convention on the Protection of the Rights of All Migrant Workers and Members 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 November 1989). 258 Convention on the Rights of Persons with Disabilities and its Optional Protocol, adopted by GA Res 62/170 (18 December 2007). 249

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The Construction of the Liberal State 207 also be made to the Declaration on the Rights of Minorities;259 and Declaration on the Rights of Indigenous Peoples.260 A number of observations may be made in respect of the body of international human rights law that has emerged at the level of the United Nations. First, it represents a relatively coherent attempt to construct the human person in the context of domestic societies. The individual is regarded as autonomous, albeit existing within a social context, enjoying rights and freedoms to the extent that they are consistent with the rights and freedoms and others, and interests of the wider society. Secondly, the monitoring mechanisms established by human rights instruments have allowed for the development of a relatively sophisticated (and reasonably coherent) ‘jurisprudence’, both in relation to General Comments and Opinions on individual complaints. Thirdly, the literature and practice of international human rights is not generally concerned with the pedigree of international human rights norms, relying on a bricolage of hard and (formally) soft instruments rather than expressions of sovereign consent. The international law order has, through its constitutional practices, developed an international Bill of Rights that subjects the state to ‘higher’ global justice norms (irrespective of 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 depends on the principle of effectiveness: ‘A coercive order of human behaviour is valid law, and the community constituted by it, a State in the sense of international law, for that territory and population with regard to which the coercive order is permanently efficacious.’261 Effectiveness is no longer accepted as the sole legitimating factor for sovereignty. International human rights law establishes legitimate standards of domestic government in both ‘hard’ international treaties (International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, etc) and ‘soft’ instruments that include the Universal Declaration of Human Rights and judicial-like Opinions of human rights bodies (in addition to explanatory memorandums such as General Comments). Whilst the effectiveness of human rights instruments, in terms of direct 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 or Ethnic, Religious and Linguistic Minorities’ (adopted 18 December 1992). 260 GA Res 61/295, ‘The United Nations Declaration on the Rights of Indigenous Peoples’ (adopted 13 September 2007). 261 Hans Kelsen, General Theory of Law and State, trans by Anders Wedberg (New York, Russell & Russell, 1961) 350.

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208 The Constitutionalisation of IL subject of recent (sceptical) analysis,262 international human rights norms remain important in constructing legitimate statehood. The constructivist argument is that states and other actors define their identities and interests through inter-subjective communications with prevailing norms of legitimacy, including international human rights norms, which serve both a global expressive function and a domestic constitutive function:263 they both express legitimate standards of behaviour in the international community, and constitute domestic constitutional systems. Whatever the strategic, ideational or other motives of states in accepting human rights obligations, their adoption will (almost) inevitably lead to constitutional and/or political reform at the domestic level, creating new opportunities for contest and claim by domestic political actors. Minorities and other excluded groups orientate their identities and (political) claims in terms of recognised human rights norms, and rely on those norms in domestic political disputes.264 For a period, domestic debates will be around the nature, meaning and implications of international human rights norms for the domestic society, but over time the norm will become ‘institutionalization’ and ‘habitualized’, ie an accepted part of domestic policy discourses, without reference to its international pedigree.265 States are socialised to accept norms concerning the protection of human rights, which in turn helps to construct the identities of states. Compliance with an international treaty creates a presumption that behaviour is legitimate; non-compliance a presumption of illegitimacy. The argument applies at both the international and domestic level: a government acting in compliance with its international law obligations is more likely to be regarded as legitimate by its own citizens.266 In determining whether or not to accept emergent international law norms, 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 Yale Law Journal, 1935; also Eric Neumayer, ‘Do International Human Rights Treaties Improve Respect 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 interpreting the grievances and interests of actors who have some bearing on these events and to define them as violations that should not and need not be tolerated’: Neve Gordon and Nitza Berkovitch, ‘Human Rights Discourse in Domestic Settings: How Does it Emerge?’ (2007) 55 Political Studies 243, 243. 265 Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’ in Thomas Risse et al (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press, 1999) 1, 5. 266 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887, 903.

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The Construction of the Liberal State 209 combination: coercion;267 persuasion, whereby an issue is framed in terms that resonate with already accepted norms;268 and acculturation, which depends ‘less on the properties of the rule than on the properties of the relationship of the actor to the community’.269 Coercion concerns the introduction of rewards and punishments; persuasion works by framing an issue to resonate with already accepted norms. The campaign to ban anti-personnel landmines, for example, framed the issue in terms of the ‘indiscriminate nature and effects’ of landmines, linking the issue with a universally accepted principle of humanitarian law.270 Persuaded actors ‘internalize’ new norms and rules of appropriate behaviour, and redefine their interests and identities accordingly.271 Acculturation is a process by which states ‘adopt the beliefs and behavioral patterns of the surrounding culture’. It operates through pressures to assimilate, ‘some imposed by other actors and some imposed by the self’.272 Goodman and Jinks point to substantial evidence of the influence of acculturation on states in areas such as environmental policy, the laws of war, and human rights, concluding that ‘the extent of isomorphism across states is remarkable, and it is seemingly inexplicable without reference to acculturation processes’.273 In a subsequent article, they argue that all ‘sociallylegitimated actors routinely internalize, via acculturative processes, the cognitive frames and behavioural expectations of socially relevant others’. They conclude that states adopt ‘common beliefs and practices because they reflect taken-for-granted scripts of how “liberal” or “modern” states behave’.274 International human rights norms construct the legitimate state and meaning of sovereignty, with sovereign states socialised through the domestication of international human rights norms to accept a single legitimate form of (liberal) government.

267 Ryan Goodman and Derek Jinks, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54 Duke Law Journal 621, 633. See also John Ikenberry and Charles Kupchan, ‘Socialization and Hegemonic Power’ (1990) 44 International Organization 3. 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 diffusion as ‘prohegemonic norms’: ibid at 653. 274 Ryan Goodman and Derek Jinks, ‘Incomplete Internalization and Compliance with Human Rights Law’ (2008) 19 European Journal of International Law 725, 728.

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210 The Constitutionalisation of IL CONCLUSION

Democracy for the constitutional state takes place within an international law order that protects the exercise of political self-determination consistent 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. The international law order has shifted from its contractual model to an international constitutional order that commits states to maintaining minimum standards of human rights; the positive orthodoxy has been replaced by institutions and community values that subject the state to a system of global governance under international (‘constitutional’) law. The constructivist analysis explains the importance of dominant norms in constructing identities in world society and the emergence of a commitment to respecting the rights of citizens as a legitimating factor for the exercise of coercive political authority. The analysis now turns (directly) to the role of democracy in international law in the construction of legitimate political authority.

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5 Democracy in International Law

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HE PREVIOUS CHAPTER demonstrated that legitimate statehood in the international community is seen in terms of ensuring the protection of human rights. The responsibility to protect the human rights of those subject to the jurisdiction of the state is well established: the decision to protect human rights does not lie within the ‘sovereign’ discretion of governments. This chapter considers the argument that legitimate statehood should also be understood in terms of a commitment to democratic government. With notable exceptions, the community of states is becoming a community of democratic states. No coherent ideological alternatives present themselves in global discourses. Current alternatives include the theocratic republic in Iran, authoritarian capitalism under the authority of the Communist Party in the People’s Republic of China, and one-man dictatorship in the Democratic People’s Republic of Korea. Authoritarian regimes that exclude the population from any effective role in government, maintaining control only through coercive measures, are, like the coelacanth, remnants of a bygone era. There is not a uniform practice of democracy (which is not defined by reference to market-led democracy),1 but the international community demonstrates a strong normative commitment to democratic government for domestic societies. There is a general acceptance that democracy has considerable instrumental benefits in terms of economic growth, poverty alleviation and the avoidance of famine, and in the promotion of internal stability as political disagreements can be resolved without recourse to violence. Democratic states are also said to be more likely to honour their international obligations. The issue is not whether democracy is an international public good, but the existence (or otherwise) of an international law norm requiring the introduction or maintenance of democratic forms of government. A number of developments suggests that this is the

1 A liberal democratic state is one committed to democratic government and respect for international human rights norms. See ‘An Agenda for Peace’, Report of the SecretaryGeneral (17 June 1992) UN Doc A/47/277 para 81. It does not necessarily require a market economy based on private property rights. cf Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503, 509.

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212 Democracy in International Law case: the emergence of the right of all peoples to (democratic) selfdetermination; the fact that two-thirds of states are functioning democracies; the democratisation of territories under the administration or supervision of the United Nations (UN) (Kosovo, East Timor, and Eastern Slavonia); and the affirmation of the ‘norm’ of democracy in a number of (‘soft’) international law instruments. According to the constructivist argument, a commitment to a norm of democracy at the global level will have significant effects on domestic politics and domestic political systems, at least in the medium to long term. States will be socialised to accept the need to ensure that domestic laws reflect the will of the people (consistent with human rights norms), leading to the establishment of a single, legitimate form of domestic political community: the liberal democratic state. The following sections outline the arguments for recognising the commitment to democracy in international law, before examining the ways in which democracy, as a principle, influences the interpretation and application of international law norms, most notably in relation to military intervention and democratic regime change.

DEMOCRACY IN INTERNATIONAL LAW

International law has not traditionally been concerned with domestic government arrangements: each state has the right to choose its own form of government, free from external interferences by other states and international organisations. The position is expressed in Military and paramilitary activities in and against Nicaragua (Merits): ‘[E]ach State is permitted, by the principle of State sovereignty, to decide freely [the nature of its] political, economic, social and cultural system.’2 Arguments that citizens have a right to democracy, or that states have an obligation to introduce or maintain democratic forms of government, rely on the following (alone or in combination): that the right of peoples to selfdetermination should be understood as a right of democratic selfdetermination; that the corpus of international human rights law requires the introduction of democracy; that the practice of states (with the requisite opinio juris) suggests the emergence of a customary norm requiring democratic forms of domestic government; and that a requirement of democratic government for membership of key international organisations creates a de facto commitment to democracy in world society. 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].

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Democratic Self-Determination There is general agreement that the right of peoples to self-determination is a significant ‘constitutional’ norm in the international law order, a norm of jus cogens standing,3 and an obligation erga omnes.4 The right of peoples to self-determination has gone through four distinct phases:5 the recognition of a political right of national self-determination for certain populations in Europe following World War I; a legal right to independence and the establishment of a sovereign state for the populations of colonised territories;6 a remedial right to secession where a territorially concentrated group is systematically excluded from public life and subject to serious human rights abuses;7 and, finally, a right of ‘[a]ll peoples’ to self-determination (reflected in ‘common Article 1’)’By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’8 The formulation reflects the position under general international law. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice recognised that the principle of selfdetermination of peoples, enshrined in the UN Charter, and reaffirmed by in General Assembly Resolution 2625 (XXV) and common Article 1, ‘was recognised in international law as a “right” of peoples to selfdetermination: a right erga omnes’.9

3 Commentary on art 26(5), Articles on Responsibility of States for Internationally Wrongful Acts (with commentaries), in Report of the International Law Commission 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’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002). See also UN Commission on Human Rights, Resolution E/CN.4/RES/2000/4 (7 April 2000) preamble; Armed activities on the territory of the Congo (Democratic Republic of the Congo v Rwanda), judgment 3 February 2006, Separate Opinion of Judge ad hoc Dugard; East Timor (Portugal v Australia) [1995] ICJ Rep 90, Dissenting Opinion of Judge ad hoc Skubiszewski [135]; and Conference on Yugoslavia Arbitration Commission: Opinions on Questions 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, Cambridge University Press, 2005), ch 2. 6 General Assembly (GA) Resolution (Res) 1514 (XV), ‘Declaration on the granting of independence to colonial countries and peoples’ (adopted 14 December 1960). 7 GA Res 2625 (XXV), ‘Declaration on Principles of International Law Concerning Friendly Relations (adopted 24 October 1970) (hereafter, GA Res 2625 (XXV), ‘Declaration on Friendly Relations’). 8 Article 1(1), common to the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, adopted by GA Res 2200A (XXI) on 16 December 1966. 9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 [88].

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214 Democracy in International Law Democratic principles were central to the concept of self-determination in the decolonisation era of the UN.10 The right of peoples to selfdetermination was not applied to putative or historic ‘Nations’, but the population of a colonised territory. The peoples of non-self-governing territories were defined by their relationship to a political unit, and not any racial, ethnic, cultural, religious or linguistic characteristics. The limited exceptions concerned the reunification of pre-colonial entities, such as Morocco and Somalia; the voluntary union of two separate colonies; and circumstances where the inhabitants were opposed to maintaining a unitary political entity, for example in India and RuandaUrundi.11 On 14 December 1960, the UN General Assembly adopted General Assembly Resolution 1514 (XV), which proclaimed the necessity of ‘bringing to a speedy and unconditional end colonialism in all its forms and manifestations’.12 The resolution recognised that colonised peoples had the right to self-determination, and to ‘freely determine their political status’.13 Paragraph 5 provides that immediate steps should to be taken in Trust and Non-Self-Governing Territories ‘to transfer all powers to the peoples of those territories… in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom’.14 The objective was a determination of the international status of 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 to those parts of Europe that had seen the collapse of Empire. Wherever possible the boundaries of the new ‘Nation’ states would reflect the ethno-cultural identity of those who became citizens. An idea of national self-determination sought, on objective criteria, to identify Nations and to grant them sovereign and independent status. The Treaty of Versailles provided for the holding of a number of plebiscites, ‘but these were limited to the determination of the future of certain hotly disputed border regions’: Nathaniel Berman, ‘‘But the Alternative is Despair’: European Nationalism and the Modernist Renewal of International 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 districts between East Prussia and Poland (arts 94 and 96), the Saar (art 49), and Upper Silesia (art 88), 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 countries and 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 the Charter, ‘all peoples have the right freely to determine, without external interference, their political 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 and exploitation constitutes a violation of the principle [of equal rights and self-determination of peoples], as well as a denial of fundamental human rights, and is contrary to the Charter’.

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concerned. Three possibilities were recognised: the emergence of the territory as a sovereign and independent state; free association with an independent state; or integration with an independent state.15 Free association was to be the result of a free and voluntary choice ‘expressed through informed and democratic processes’;16 the integration of a nonself-governing territory with an independent state the result of ‘the freely expressed wishes of the territory’s peoples[,] their wishes having been expressed through informed and democratic processes’.17 In relation to independence, whilst there was no requirement for the holding of plebiscites, the principle of equal rights and self-determination recognises the right of the majority to determine the international status of the territory through democratic processes. The territorial approach was confirmed by the application of the principle of uti possidetis: the right to self-determination would be exercised within existing administrative borders, unless the relevant parties, or another decision-maker, such as the UN, determined otherwise.18 The people were identified on objective grounds, and then accorded a ‘democratic’ right of choice.19 In Fiji, Britain proposed the use of communal rolls for the Indian and Fijian populations. This was rejected by the General Assembly, which insisted that independence should be attained only on the basis of the ‘one man, one vote’ principle.20 In 1962, the General Assembly confirmed that Southern Rhodesia was a non-selfgoverning territory,21 and called on the United Kingdom, the colonial power, to put in place a constitution which would ensure the ‘rights of the majority of the people on the basis of “one man, one vote”, in conformity with the principles of the Charter of the United Nations and … resolution 1514 (XV)’.22 In 1978, Security Council Resolution 423 referred 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 and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing 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, UN Doc CCPR/C/75/D/932/2000. 20 Michla Pomerance, Self-Determination in Law and Practice (The Hague, Martinus Nijhoff, 1982) 21. 21 GA Res 1747 (XVI) ‘The Question of Southern Rhodesia’ (adopted 27 June 1962) para 1. 22 ibid para 2(a). See also, GA Res 1760 (XVII) ‘Question of Southern Rhodesia’ (adopted 31 October 1962).

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216 Democracy in International Law the ‘illegal regime’ and ‘peaceful and democratic transition to genuine majority rule and independence’ were a priority.23 Democratic transition required the holding of free and fair elections on the basis of universal adult suffrage.24 The term ‘peoples’ is applied in the Charter of the UN to the populations of non-self-governing territories,25 and the populations of trust territories.26 Additionally, the preamble begins with the words, ‘We the peoples of the United Nations’, and concludes ‘our respective Governments…do hereby establish an international organization to be known as the United Nations’.27 The term peoples in the Charter must also be read as applying to ‘peoples organised as States’.28 The term is not defined in the International Covenants, although article 1(3) confirms that the term ‘peoples’ includes the peoples of trust and non-self-governing territories.29 According to the Human Rights Committee, the scope of the application of article 1, International Covenant on Civil and Political Rights, is not restricted to ‘colonized peoples’;30 nor is the term restricted to peoples under alien subjugation, domination and exploitation. The term also includes the populations of sovereign and independent states. The right of peoples to self-determination is not only concerned with processes of decolonisation. All peoples have a right to selfdetermination, and the term ‘peoples’ includes ‘peoples organised as states’. The right can be interpreted as a reformulation of the sovereign right to non-intervention, opposable against external actors, but is more properly understood (also) as providing a right of the people of the state to political self-determination. A major innovation of the UN era has been

23

Security Council (SC) Res 423 (1978) para 3. ibid para 4. 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 equality between the peoples of the erstwhile Non-Self-Governing Territory and those of the independent country with which it is integrated’ (emphasis added). The clause subsequently refers to the ‘peoples of both territories’. 29 article 1(3), common to the International Covenant on Economic, Social and Cultural Rights, and International Covenant on Civil and Political Rights: ‘The States Parties to the present Covenant, including those having responsibility for the administration of Non-SelfGoverning and Trust Territories, shall promote the realization of the right of selfdetermination, and shall respect that right, in conformity with the provisions of the Charter of 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 Comparative Law Quarterly 867, 878. cf Fourth Periodic Report (Sweden) (10 November 1994) UN Doc CCPR/C/95/Add.4 para 1; also, Second Periodic Report (Algeria) (18 May 1998) UN Doc CCPR/C/101/Add.1 para 79. 24 25

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the recognition that the de facto ability to exercise power does not afford a de jure right to political authority.31 A violation of the right to selfdetermination occurs when the state is subject to alien domination or foreign occupation.32 The UN General Assembly has declared its firm opposition to acts of foreign military intervention, aggression and occupation, ‘since these have resulted in the suppression of the right of peoples to self-determination’.33 The international community does not accept the legitimacy of the exercise of coercive political authority by external ‘colonial’ forces, or where the territory is subject to military occupation and attempted annexation, or where a minority colonial settler elite seizes power (Rhodesia and South Africa), when those exercising illegitimate power came from within the political unit. Increasingly, it is accepted that the right of peoples to selfdetermination should be understood in terms of democratic government in accordance with the will of the people. With regard to article 1(1), the Human Rights Committee has requested that states parties detail the constitutional and political processes that allow the exercise of the right of peoples to self-determination,34 and include reference to the law on elections.35 The right of peoples to self-determination is understood as a right of (‘democratic’) self-government for the people of the state as a whole.36 Once democracy has been introduced, any seizure of power by non-democratic forces constitutes a violation of the right of the people to self-determination.37 There is a process of ‘locking-in’ democracy in the international community of states: once states have become democratic, the right of peoples to self-determination precludes the possibility of introducing other forms of government (or, at least, forms of government not consistent with the right of peoples to self-determination, according to which the people freely determine their political status and freely pursue their economic, social and cultural development).

31

cf Islands of Palmas Arbitration RIAA II, 838. 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 its Implications for International Peace and Security’ (adopted 20 November 1980). 34 Human Rights Committee, General Comment No 12, ‘Article 1 (Right to SelfDetermination)’ (adopted 13 March 1984), reprinted ‘Compilation of General Comments and 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. 32

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218 Democracy in International Law The reading in of a commitment to maintain democratic government is not the same as concluding that the right of peoples to self-determination requires the introduction of democracy (however defined) in states that are not democratic, or that states and international organisations have a right to intervene in the domestic affairs to promote democratisation. It is not possible to conclude from the law and practice of states, and judgments and opinions of international bodies, that the failure of a state to ‘democratise’ constitutes a violation of the jus cogens norm concerning the right of peoples to self-determination, an obligation erga omnes.38 Brad Roth explains that the idea of popular sovereignty, expressed in article 21(3) of the Universal Declaration of Human Rights,39 establishes that the will of the people shall be the basis of the authority of the government. In international relations, the idea of popular sovereignty equates with the doctrine of sovereign equality and the principle of non-intervention in internal affairs, ‘and a rejection of any imposition of foreign views as to what constitutes the “legitimate” government of the state’.40 The international community affirms a principle of ideological pluralism: domestic societies have the right to organise in accordance with their own social, economic and political values, and it is not for the governments of other states, or international organisations, to determine the legitimacy or otherwise of domestic arrangements. In seeking to identify whether a regime is established in accordance with the will of the people, reference should be had to the ‘effective control doctrine’.41 In order for external actors to establish the will of the people, it is important to examine to whom the people give their obedience: deference should be given ‘to the apparatus to which the populace has, for whatever reason, evidently decided to render obedience’. It is ‘far from ridiculous’, Roth concludes, that the right of self-determination, ‘may amount, as a matter of practical application, to the right to be ruled by domestic thugs rather than by foreigners announcing benevolent intentions’.42 The effective control interpretation does not hold where there are ‘unambiguous manifestations of popular repudiation of the ruling apparatus’, when it is evident that 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 and when’ to begin democratisation: UN Secretary-General, ‘Supplement to Reports on Democratization: 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’ (adopted 10 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 universal and 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 University Press, 2000) 413. 41 ibid at 414. 42 ibid at 415.

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people. Examples include the military regime in Haiti (1991–94) and the racist minority regimes in Southern Rhodesia and South Africa.43 The right of peoples to self-determination functions in a complex manner, providing the people of the state with a right to political self-determination, but not a right to democracy. The absence of agreement on the meaning of democracy has prevented consensus on the emergence of a right to democracy, grounded in the right of peoples to self-determination, with different views as to whether democracy is defined by reference to electoral competition or requires the establishment of a liberal democratic society.44 Self-determination functions as a critical norm for evaluating the legitimacy of domestic government in all societies, reflecting an abstract commitment to greater citizen involvement in political decision-making and control over processes of lawmaking, and providing a stimulus for cognitive learning about the requirements 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 of domestic 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 adverse judgment. The right confirms the illegality and illegitimacy of the forcible repudiation of the (democratic) will of the people and (given the jus cogens and erga omnes nature of the norm) a commitment not to recognise the exercise of illegitimate power, and to cooperate to bring its exercise to an end.

A (Human) Right to Democracy In an article published in 1992, Thomas Franck famously concluded that the international system was moving toward a clearly designated democratic entitlement. Domestic governments would be validated by international standards, and subject to systematic monitoring of compliance.45 In fact, no right to democracy has emerged in international law, and international instruments do not generally identify any such right.46 The 43

ibid at 416. See Gregory Fox, ‘Democracy, Right to, International Protection’ (Wayne State University Law School Research Paper No 07–22, 2007) (entry for the Max Planck Encyclopedia of Public International Law) (SSRN) paras 7–9. 45 Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal 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 InterParliamentary Council at its 161st session (Cairo, 16 September 1997), reprinted (2000) 1 44

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220 Democracy in International Law substantive elements of the right, political self-determination and freedoms of political participation, are though firmly established in the body of international human rights law. The Universal Declaration of Human Rights (1948) recognises rights to freedom of political opinion and expression,47 and peaceful assembly and association.48 Article 21(1) provides that everyone has the right to take part in the government of his or her country, directly or through freely chosen representatives.49 According to article 21(3), 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 universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.50

The democratic principles are given legal effect in the International Covenant on Civil and Political Rights (ICCPR),51 which provides for the establishment of a ‘democratic society’ in states parties.52 In addition to rights 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 or through freely chosen representatives’, and (b) ‘vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors’.58 In its General Comment on article 25, the Human Rights Committee explained the relationship between the right of peoples to self-determination and the rights of citizens to political participation: Netherlands Quarterly of Human Rights 127. The IPU, established in 1889, is the world organisation of parliaments of sovereign states. Over 100 national parliaments are currently members; also, art 1 of the OAS Inter-American Democratic Charter, adopted Lima, 11 September 2001 (2001) 40 ILM 1289: ‘The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it’. 47 GA Res 217(III)A ‘Universal Declaration of Human Rights’ (adopted 10 December 1948) 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.

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By virtue of the rights covered by article 1 (1), peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs.59

Article 25 ‘lies at the core of democratic government based on the consent of 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 democratic rights to freedom of expression,61 association62 and assembly,63 and the (limited) right to ‘participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law’.64 The Charter also recognises a right of peoples to self-determination.65 The American Convention on Human Rights contains more explicit democratic rights to freedom of expression,66 assembly,67 association68 and the right of every citizen (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters.69 Democracy is also central to the regime established by the European Convention on Human Rights (ECHR).70 Democracy is the only political model compatible with the ECHR,71 although it is, in the words of the Court of Human Rights, ‘for each Contracting State to mould into their own democratic vision’.72 The relevant provision is article 3, Protocol to the Convention for 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 Public Affairs and the Right to Vote)’ (adopted 12 July 1996), reprinted ‘Compilation of General Comments 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].

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222 Democracy in International Law elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’73

Democracy in the Practice of States The majority of states in the international community are committed to maintaining democratic forms of government, and establishing effective monitoring mechanisms to ensure compliance with democracy norms concerning the holding of free and fair elections and democratic rights of political participation. The question arises therefore as to whether the various international law commitments and state practice can be understood in terms of a customary international law norm requiring that states introduce and maintain democratic forms of government (noting the persistent objector rule). The test for the emergence of a customary norm is contained in article 38(1)(b) of the Statute of the International Court of Justice, which refers to ‘international custom, as evidence of a general practice accepted as law’. Both state practice and opinio juris must be present.74 The existence of a customary norm requiring democratic government may be addressed from two perspectives. The traditional approach is to examine the practice of states and use of normative language. The holding of elections is widespread in the international community, with Freedom House reporting that 121 states can be described as electoral democracies. The settled practice of states is not sufficient to generate a customary international law norm, there must also be evidence of a belief that the practice is rendered obligatory by the existence of an international law rule. There is no requirement that all states participate in the relevant practice, or that the practice of all states is in absolutely rigorous conformity with the rule. It is sufficient that conduct should, in general, be consistent with such rules.75 In the practice of states, a clear distinction is drawn between ruptures of established democratic practice through, for example, a military coup d’état, and the refusal of authoritarian states to adopt reform measures to provide for greater democratic participation for citizens. There is no evidence in the practice of states (or reactions to domestic conditions in other states) of a customary norm requiring the introduction of democracy. The alternative to the traditional approach is provided by a form of modern custom, deduced from international law instruments rather than 73 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1952) CETS No 9 art 3. 74 Nicaragua v United States (Merits) [1986] ICJ Rep 14 [184]. 75 ibid at [186].

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the actual practices of states.76 Customary norms are identified by reference to resolutions of international organisations such as the UN General Assembly and provisions of widely ratified multilateral treaties that provide evidence of the content of the norm, and evidence of the requisite opinio juris. A number of international public law resolutions adopted by the UN General Assembly confirm that democracy is a universal value within the international law order. These include Resolution 62/150, which notes ‘with satisfaction that increasing numbers of Member States are using elections as a peaceful means of discerning the will of the people, which builds confidence in representational governance and contributes to greater national peace and stability’;77 also, Resolution 60/1, the 2005 World Summit Outcome, which proclaims that human rights, the rule of law, and democracy belong to the ‘universal and indivisible core values and principles of the United Nations’.78 Democracy is a system of government ‘based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives’.79 The General Assembly is not alone in affirming the importance of democratic self-determination at the domestic level. Greg Fox observes that in ‘more or less explicit terms’, the UN Secretary-General, Security Council, and Human Rights Commission ‘have all identified democratic institutions as the vehicle by which governance can become coherent, peaceful, and legitimate. Whilst actors do not define the idea of democracy, they frequently speak of the familiar pairing of majoritarian elections with the protection of counter-majoritarian rights.’80

Membership of International Organisations The preceding section evaluated the emergence of de jure requirements for states to introduce and maintain democracy contained in customary international law and international human rights treaties. The majority of inter-sate cooperation occurs through international organisations. Any restriction on the rights of membership in key organisations to democratic states would de facto require a commitment to democracy in order 76 Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary International 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 the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization’ (4 March 2008) preamble. 78 GA Res 60/1 ‘2005 World Summit Outcome’ (adopted without a vote on 16 September 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.

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224 Democracy in International Law that states could access and retain the benefits of membership. The most significant international organisation is the UN. There is no reference to democracy in the UN Charter and democratic government is not a condition of membership of the organisation.81 There is no breach of the obligations of membership by those states that are not democratic. This is not the case in relation to a number of regional organisations, with the following (formally) committing Member States to the principle of democracy: the African Union (AU), Organization of American States (OAS), European Union (EU), North Atlantic Treaty Organization (NATO), Council of Europe, the Organization for Security and Co-operation in Europe (OSCE), the Commonwealth, MERCOSUR (Common Market of the South),82 and System of Central American Integration.83 The Commonwealth has, in many ways, taken the lead. In 1971, the Singapore Declaration expressed a belief in the inalienable right of citizens ‘to participate by means of free and democratic political processes in framing the society in which they live’. The Declaration committed members to promote representative institutions and guarantees for personal freedom under the law as part of their ‘common heritage’. The 1991 Harare Commonwealth Declaration, issued by Heads of Government, expanded on the principles to focus on the necessity of governments obtaining democratic mandates.84 The 1995 Millbrook Commonwealth Action Program on the Harare Declaration created mechanisms to support and enforce democratic principles in case of ‘an unconstitutional overthrow of a democratically elected government’. A number of states have been suspended for undemocratic 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 other peace-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 the democratic order’. This may include suspension from participation in the organisation. The Declaration also provides that democracy is a condition for membership of the organisation. The Ushuaia Declaration was invoked following a military coup d’état in Paraguay in 1996: Fox (n 44) at para 24. 83 Article 3 of the Protocol of Tegucigalpa, the founding statute of the System of Central American Integration, identifies the promotion and strengthening of democracy as one of the organisation’s principal objectives. Protocolo de Tegucigalpa a la Carta de la Organización de Estados Centroamericanos (ODECA) art 3 1695 UNTS 382. In 1995, this objective was reaffirmed in the Framework Treaty on Democratic Security in Central America (SICA). Tratado Marco de Seguridad Democrática in Centroamérica 2007 UNTS 191. In addition to noting that the SICA is based on the principles of democracy and the rule of law, art 1 of the Treaty obligates states to elect governments through universal and free elections. See Niels Petersen, ‘The Principle of Democratic Teleology in International Law’ (2008) 34 Brooklyn Journal of International Law 33, 64–65. 84 Fox (n 44) at para 22. 85 ibid at para 23.

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Article 3(g) of the Constitutive Act of the African Union provides that one of the objectives of the Union is to promote ‘democratic principles and institutions, popular participation and good governance’.86 Article 30 provides that governments that come to power through ‘unconstitutional means 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 to read it as applying in cases where a repressive government is overthrown by pro-democratic forces in a manner not provided for in the constitution. (According to the African Commission on Human Rights, participation involves legitimating a sovereign power through elections.87) The limited practice of the AU suggests that article 30 was intended to target interruptions of democratic governance, and a number of regimes that have come to power through military coups d’états have not been recognised by the organisation.88 Mauritania and Guinea were, for example, suspended following military coups in 2008. In 2007, the AU adopted the African Charter on Democracy, Elections and Governance, according to which state parties committed themselves to promote democracy, the rule of law and human rights,89 and recognise popular participation through universal suffrage as the inalienable right of the people.90 They re-affirmed their commitment to hold regular ‘transparent, free and fair elections’,91 and to invite the Commission of the AU to send an electoral observer mission.92 The Charter is not yet in force, having failed to receive the necessary 15 instruments of ratification.93 The promotion of democracy has been a feature of other regional groupings. In Resolution 1080, adopted in 1991, the OAS observed that one of the purposes of the Organization was to promote and consolidate representative democracy. The General Assembly of the OAS agreed to take (unspecified) action in the case of the ‘sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization’s member states’.94 In 1992, the OAS Charter was amended 86

Constitutive Act of the African Union 2158 UNTS 3. 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 Rights and Peoples’ Rights, Twelfth Annual Activity Report of the African Commission on Human and Peoples’ Rights (1998–1999) 45 Doc AHG/215 (XXV), referred to in Petersen (n 83) at 67. 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). 87

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226 Democracy in International Law by the Washington Protocol to provide for the suspension of any Member State ‘whose democratically constituted government has been overthrown by force’. The revised Charter asserts that one of the purposes of the Organization is to ‘promote and consolidate representative democracy, with due respect for the principle of nonintervention’.95 Article 9 provides that any ‘Member of the Organization whose democratically constituted government has been overthrown by force may be suspended from the exercise of the right to participate in the [work of the Organization]’. The decision is taken by an affirmative vote of two-thirds of Member States at a meeting of the General Assembly, with the decision to remove the suspension likewise made by a two-third affirmative vote.96 In 2001, the OAS adopted the Inter-American Democratic Charter, which provides: ‘The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.’97 Article 19 provides that an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, constitutes, while it persists, an insurmountable obstacle to its government’s participation in [the work of the OAS].98

The relevant Member State may be suspended from the Organization by an affirmative two-thirds vote. The Organization will maintain diplomatic initiatives to restore democracy in that state.99 Resolution 1080 has been used on four occasions: Haiti (1991), Peru (1992), Guatemala (1993), and Paraguay (1996). The Inter-American Democratic Charter has been invoked in response to a coup d’état in Venezuela (2002).100 Following the expulsion of President José Manuel Zelaya Rosales, the OAS General Assembly adopted a resolution suspending Honduras in accordance with the Inter-American Democratic Charter (2009).101 In Europe, there is a strong commitment to democracy in regional organisations. Articles 6 and 7 of the Treaty on European Union provide for the imposition of sanctions in cases of serious and persistent breaches of democratic principles by a Member State.102 (The commitment is reaffirmed in the Lisbon Treaty, with a new article 1(a) providing: ‘The Union is founded on the values of respect for human dignity, freedom, 95

Charter of the OAS (as amended) 119 UNTS 3 art 2. ibid art 9. 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. 96 97

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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 the EU’s foreign policy; democratic rights are also recognised in the Charter of Fundamental Rights of the EU.104) Article 6(1) provides that the EU is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. Article 7 details the circumstances in which sanctions may be imposed for a serious and persistent breach by a Member State of one of the principles of democracy, which is not defined. The procedure has not been invoked. EU states have, though, imposed sanctions on a member in the past for an alleged violation of the principles of democracy. The 1999 parliamentary elections in Austria became controversial in the EU, when a free and fair election produced a result in which the far-right Freedom Party of Austria (FDÖ), led by Joerg Haider, achieved second place, and formed a coalition government with the centre-right People’s Party. The result caused political leaders across the EU to voice their concerns about Austria’s future. Individual members of the EU joined together to introduce diplomatic sanctions against Austria. The sanctions were lifted in September 2000.105 Democracy is also a condition of membership of NATO: applicant states must demonstrate that they ‘represent a functioning democratic, political system based on a market economy’.106 It is also central to the regime of the OSCE, where participating states have agreed to consolidate and strengthen democracy as the ‘only system of government of our nations’.107 In 1990, participating states adopted the Document of the Copenhagen 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 Treaty Establishing 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 Nanette Neuwahl and Steven Wheatley, ‘The EU and Democracy – Lawful and Legitimate Intervention in Domestic Affairs of States?’ in Anthony Arnull and Daniel Wincott (eds), Legitimacy and 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 para 17. 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 for Democratic Institutions and Human Rights (ODIHR), ‘Existing Commitments for Democratic Elections in OSCE Participating States: A Progress Report’ (30 June 2003) OSCE Doc ODIHR.GAL/39/03.

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228 Democracy in International Law democratic government. According to the Copenhagen Document, ‘the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of the authority and legitimacy of all government’.109 To ensure that the will of the people serves as the basis of government authority, OSCE participating states are required to hold free elections at reasonable intervals,110 by secret ballot,111 and by universal and equal suffrage to adult citizens.112 Candidates who obtain the necessary number of votes are to be duly installed in office, and permitted to remain in office until their term expires, or is otherwise brought to an end in a manner that is regulated by law in conformity with democratic, parliamentary and constitutional procedures.113 All seats in at least one chamber of the national legislature are to be freely contested in a popular vote.114 Democratic government is representative in character, with the executive accountable to the elected legislature or the electorate.115 In relation to Asia, the Charter of the Association of South-East Asian Nations (ASEAN) provides that the purposes of the Association include the following: ‘to strengthen democracy, enhance good governance and the rule of law, and to protect and promote human rights[,] with due regard to the rights and responsibilities of the Member States of ASEAN’.116

DEMOCRACY IN THE INTERNATIONAL LAW ORDER

The preceding sections demonstrate the commitment of the international community to democracy as the only legitimate form of domestic government, and an increased willingness (particularly at the regional level) to allow for collective action to ensure that democracy is not interrupted by non-democratic forces. There is, however, no ‘hard’ international law norm requiring that all governments should be democratic. It is, though, evident that democracy as a principle does have a significant influence on the interpretation and application of international law norms. A principle is defined by Ronald Dworkin as a standard to be observed, ‘because it is

109

ibid at para 6. 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). 110

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a requirement of justice or fairness or some other dimension of morality’.117 Legal principles are distinguished from legal rules. Rules are applicable ‘in an all-or-nothing fashion’, providing an answer to a legal question.118 Impugned conduct is either lawful or unlawful, following the application of a legal rule to the factual situation. Principles ‘do not set out legal consequences that follow automatically when the conditions provided are met’.119 A principle establishes a reason ‘that argues in one direction, but it does not necessitate a particular decision’. The fact that a principle does not prevail does not mean that it is not a principle; principles have a dimension that rules do not, ‘the dimension of weight or importance’.120 The principle may not be weighty enough to override a rule (or other principle). Principles operate in one of two ways: to override 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 an international law rule where a state refuses to introduce democracy, it is evident that democracy as a principle of the international law order informs the interpretation and application of international norms. In relation to secession, the principle of democracy (and democratic self-determination) has weakened the normative claim of the state to territorial integrity and non-intervention in conflicts involving selfdetermination claims. With the limited application of the ‘saving clause’,121 international law has not traditionally recognised any right of secession, the separation of one part of the territory without the consent of the central authorities.122 There is no general right of secession in international law.123 According to General Assembly Resolution 2625 (XXV) (‘Friendly Relations’), the territorial integrity of the state is ‘inviolable’, and any measure aimed at the disruption of the territorial ‘is

117

Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977) 22. 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 ‘conducting themselves in compliance with the principle of equal rights and self-determination of peoples’, and ‘thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’. See Steven Wheatley, Democracy, Minorities and International Law (Cambridge, Cambridge University Press, 2005) 93–99. 122 James Crawford, ‘The Right of Self-Determination in International Law: the Development 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 Court determined that international law ‘contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, eg, the right of secession that arises in the exceptional situation of an oppressed or colonial people’. 118

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230 Democracy in International Law incompatible with the purposes and principles of the Charter’. The recognition of a right of peoples to self-determination did not change the general rule: Nothing in the [section concerning the principle of equal rights and selfdetermination of peoples] shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples.124

The constitutionalisation of international law requires a re-evaluation of this position, with Anne Peters observing that there are changes in the concept of statehood and a legal evolution regarding the recognition of states 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 selfdetermination conflicts, Marc Weller concludes that we are witnessing a ‘move away from unipolar sovereignty concentrated exclusively in the central state’. The effectiveness of control is no longer the ‘principal criterion for the authority to govern’. Developments concerning democratic governance and the practice of the international community in relation to self-determination conflicts demonstrate an increasing recognition that, ultimately, the authority to govern is based on the will of the people. In this respect, we are witnessing a gradual recognition of self-determination as a genuine, generalized principle for the construction of states and governance, with a number of layers of meaning attaching.126

The relationship between territorial integrity and the right of peoples to self-determination can only be understood by reference to the principle of democracy – the right of a political community to be self-governing in accordance with its own institutions and constitutional structures. The position becomes clear in any analysis of the unilateral declaration of independence by Kosovo. In debates in the General Assembly following the adoption of General Assembly Resolution 63/3, requesting an advisory opinion of the International Court of Justice on whether the unilateral declaration was in accordance with international law,127 the United States representative referred to the democratically elected, multi-ethnic 124

GA Res 2625 (XXV) ‘Declaration on Friendly Relations’. Anne Peters, ‘Global Constitutionalism Revisited’ (2005) 11 International Legal Theory

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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 with international law’ (adopted 8 October 2008).

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Government’ in the Republic of Kosovo.128 The validity of the declaration of independence rests in large part on the right of the people of Kosovo to democratic self-determination. DEMOCRATIC REGIME CHANGE IN INTERNATIONAL LAW

The clearest example of the principle of democracy influencing the interpretation and application of international law norms is provided by the law and practice on regime change under the Charter of the UN.129 Article 2(4) provides that ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.’ Yet, the recent practice of the international community has permitted democratic ‘coalitions of the willing’ to intervene militarily in ‘rogue’ and ‘failed’ states, which are then subject to a process of forced democratisation in order to ensure that they become and remain members in good standing in the international community. The process is endorsed by the UN Security Council, which gives legal effect to an otherwise unlawful act of (democratic) regime change. The development can be explained by reference to the importance of democracy as a principle in the international law order. In the Atlantic Charter, adopted on 14 August 1941, the US President and British Prime Minister agreed a number of common principles on which they based their hopes for a ‘better future for the world’. The Charter expressed the desire that, ‘after the final destruction of the Nazi tyranny’, they would ‘see established a peace which will afford to all nations 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 of international peace and security, and, to that end, the UN is empowered to take effective collective measures to remove threats to the peace.130 The democratic peace thesis argues that universal peace is only possible under a covenant of peace, a foedus pacificum. Thomas Franck concludes that ‘[i]f the “end” of global peace needs the “means” of global democracy’, the Charter-based system ‘must also be presumed to have the authority 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. John Owen identifies 198 instances of forcible domestic institutional promotion between 1555 and 2000. The most intensive periods of promotion coincide with high transnational ideological tension and high international insecurity. Forcible promotion is most likely when great powers need to expand their power, and find that, by imposing on smaller 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 of Domestic Institutions’ (2002) 56 International Organization 375, 375. 130 Charter of the UN art 1(1). 129

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232 Democracy in International Law democratic political rights’.131 The law and practice of the UN does not however support any right of democracy promotion through the use of force: there is no right of pro-democracy military intervention in international law,132 and states have not sought to articulate one. The political objectives underlying the use of force may include the re-establishment (or even establishment) of democracy, ‘but this has not led states to espouse a legal doctrine of “pro-democratic” invasion without UN authority’.133 The point applies equally to regional organisations,134 such as the Economic Community of West African States (ECOWAS).135 The emergence of a right of peoples to political self-determination did not change the position.136 In the absence of the agreement of the government of the state, a lawful exercise of the right of self-defence (UN Charter article 51), or authorisation by the Security Council (UN Charter chapter VII), the use of military force against the territorial integrity or political independence of another state is a violation of international law.137 The putative Johnson138 and Reagan139 doctrines were no more than political rhetoric at a time when American military power was used ‘to overthrow unfriendly regimes and reinstall friendly ones, rather than bring about fundamental societal transformations’.140

131 Thomas Franck, Fairness in International Law and Institutions (Oxford, Oxford University Press, 1995) 1. 132 Above n 2 at [263]. On democratic regime change, see W Michael Reisman, ‘The Manley O. Hudson Lecture: Why Regime Change is (Almost Always) a Bad Idea’ (2004) 98 American Journal of International Law 516, 516. In the contemporary age, regime change is not concerned with imposing friendly regimes on unwilling populations: cf the Brezhnev Doctrine (1968) 7 ILM 1323. 133 Christine Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford University 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-keeping and Security’ (adopted Lomé, 10 December 1999) ECOWAS Doc A/P10/12/99, available at www.iss.co.za/AF/RegOrg/unity_to_union/pdfs/ecowas/ConflictMecha.pdf (last visited 25 July 2009). 136 cf W Michael Reisman, ‘Coercion and Self-Determination: Construing Charter Article 2(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 establishment of another Communist government in the Western Hemisphere’: Brad Roth, Governmental Illegitimacy in International Law (Oxford, Oxford University Press, 2000) 147. 139 According to the Reagan Doctrine, ‘legitimate government depends on the consent of the governed and on its respect for the rights of citizens’: Jeane Kirkpatrick and Allan Gerson, ‘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 Foreign Relations, 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.

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The Charter of the UN prohibits all uses of military force,141 except in self-defence,142 or where force is authorised by the UN Security Council.143 It has been the practice of the Council, since the end of the Cold War, to support democratically elected governments against insurgent forces.144 Further, the Council has been willing to both authorise, in the ‘unique’ and ‘exceptional’ case of Haiti,145 and accept, in the case of Sierra Leone,146 military intervention to reinstall democratic governments.147 Security Council resolutions concerning the ‘failed’ states of Somalia,148 Liberia,149 Bosnia-Herzegovina,150 Kosovo151 and East

141

UN Charter art 2(4). 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 democratic elections, 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 Council welcomed the formation of the new Government (SC Res 880 (1993) para 2), and demanded the cessation of all illegal acts of violence and military activities ‘directed against the democratically elected Government of Cambodia’ (para 5). See also, SC Res 1216 (1998), and SC 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 of force was not authorised by the Security Council. The Council welcomed the return of the democratic 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 of democratic elections in Burma (1990), Algeria (1991), Nigeria (1993), Niger (1996), Pakistan (1999), Côte D’Ivoire (1999), Fiji (2000 and 2006), Central African Republic (2003) and Thailand (2006) did not produce any UN authorisation for the use of force or other sanctions: Gray (n 133) at 59. 148 In Resolution 814 (1993), the Council identified the need to establish ‘representative democratic institutions’ in Somalia: SC Res 814 (1993) preamble. 149 The Council has referred to the objectives of its resolutions concerning Liberia as being ‘the creation of peace, stability and democracy in Liberia and lasting peace in the subregion’: 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 in Bosnia-Herzegovina, which provided that Bosnia shall be a ‘democratic state …with free and democratic elections’ (Art. I(2), The General Framework Agreement for Peace in Bosnia-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 the development of ‘provisional democratic self-governing institutions’: SC Res 1244 (1999) para 10. 142

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234 Democracy in International Law Timor152 all expressed the determination of the Council to see democratic forms of government introduced.153 A review of the practice of the work of the Security Council between 1 August 2007 and 31 July 2008 demonstrates the central role that democracy and elections play in the resolution of internal conflicts, and the importance that the Council places on democratisation in the avoidance of internal instability that may lead to a threat to international peace and security.154 In a Presidential Statement on the subject of children and armed conflict, the Security Council stressed the need to adopt a broad strategy of conflict prevention which addresses the root causes of armed conflict in a comprehensive manner in order to enhance the protection of children on a long-term basis, including by promoting sustainable development, poverty eradication, national reconciliation, good governance, democracy, the rule of law and respect for and protection of human rights’155

Democracy and the importance of free and fair elections are central to resolutions on Timor-Leste,156 Haiti,157 Afghanistan,158 Democratic Republic of the Congo,159 Iraq,160 Nepal,161 Somalia,162 Sierra Leone,163 Côte d’Ivoire164 and Sudan.165 In relation to Myanmar (Burma), the Security Council underlined the need for the Government of Myanmar to ensure the full participation of all political actors and respect for fundamental political freedoms in any referendums and elections.166 The UN Security Council demonstrates a commitment to democracy as one part of the resolution of internal conflicts threatening international peace and security.

152 Technically not a ‘failed’ state, but a nascent state with a difficult beginning. The mandate of the United Nations Transitional Administration in East Timor (UNTAET) included support for ‘capacity-building for self-government’, with the Security Council stressing ‘the need for UNTAET to consult and cooperate closely with the East Timorese people in order to carry out its mandate effectively with a view to the development of local democratic institutions’: SC Res 1272 (1999) para 2(e). 153 See also, Rwanda (SC Res 929 (1994)), and Albania (SC Res 1101 (1997) and SC Res 1114 (1997)). See also resolutions on the democratic processes in Democratic Republic of the Congo, 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.

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235

Whilst there is no right of democratic regime change in international law, 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 is a legitimate objective of military occupation. Clear examples are provided by the US military interventions ‘Operation Enduring Freedom’ (Afghanistan) and ‘Operation Iraqi Freedom’. The interventions are examined in turn.

Operation Enduring Freedom (Afghanistan) On 11 September 2001, terrorists attacked the twin towers of the World Trade Centre in New York and the Pentagon in Washington DC. Responsibility was attributed to the Al-Qaeda terrorist network, led by Osama Bin Laden, which had based itself in Afghanistan under the protection of the Taliban de facto Government.169 According to Francis Fukuyama, the failed state problem ‘suddenly took on a major security dimension’. Afghanistan was so weak that it could in effect be hijacked by Al-Qaeda, and serve as a base of global terrorist operations.170 With the cooperation of Afghan opposition forces, the United States and United Kingdom forced the Taliban to evacuate Kabul in November 2001, and drove them from power. On 14 November 2001, the Security Council expressed its ‘strong support’ for the efforts of the Afghan people to establish a new and transitional administration, which ‘should be broad-based, multi-ethnic and fully representative of all the Afghan people’.171 In debates in the Council, a number of states made reference for the need to establish a democratic government in 167 The concept of the ‘failed state’ includes situations in which the basic functions of government are no longer performed; the government does not maintain a monopoly on the use of violence; and enduring civil conflict. The fact that a state has ‘failed’ is manifested in the suffering of the local population. See Sebastian von Einsiedel, ‘Policy responses to state failure’, in Simon Chesterman et al (eds), Making States Work: State Failure and the Crisis of 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 United States of America (September 2002): states that ‘brutalize their own people, display no regard for international law, threaten their neighbors, are determined to acquire weapons of mass 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 Law 203. 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, ‘Intervention and State failure’ (2002) 49(1) Dissent 114; also, Sebastian Mallaby, ‘The Reluctant Imperialist’ (March/April 2002) 81(2) Foreign Affairs 2. 171 SC Res 1378 (2001) para 1.

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236 Democracy in International Law Afghanistan.172 The United Nations determined that the process of political transformation should be a largely Afghan affair,173 with the international community leaving ‘a light expatriate “footprint”’.174 On 5 December 2001, Afghan factions, in the presence of the UN Special Representative of the Secretary-General for Afghanistan, adopted the (‘Bonn’) Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions. The Agreement established a broad based representative interim authority, and provided for an Emergency Loya Jirga to meet and decide on a Transitional Authority, until free and fair elections and the establishment of a fully representative government. Security Council Resolution 1383 (2001) ‘endorse[d]’ the Agreement,175 and called upon all Afghan groups to implement it in full.176 A Transitional Administration, led by President Hamid Karzai, was established at the closing of an Emergency Loya Jirga in June 2002.177 The Security Council welcomed the development,178 and subsequently recognised the Transitional Administration as the sole legitimate Government of Afghanistan, pending democratic elections.179 On 3 January 2004, a new Constitution for Afghanistan was adopted, providing for an elected executive President and National Assembly.180 The Security Council again welcomed the development, which reflected ‘the determination of the Afghan people to ensure the transition 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; Mr Michel (Belgium), on behalf of the European Union, S/PV.4414 (Resumption 1) at 3; Mr Ruggiero (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; Mr Sun Joun-yung (Republic of Korea) S/PV.4414 (Resumption 1) at 25; and Ms Alvear Valenzuela (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 absolute majority in Afghanistan, and we therefore need a multi-ethnic and broad-based government in the country’. 173 See Lakhdar Brahimi, Special Representative of the Secretary-General for Afghanistan, ‘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 Implications for 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 Implications for International Peace and Security’ (26 November 2004) UN Doc A/59/581 – S/2004/925, para 3. 181 SC Res 1536 (2004) preamble.

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Operation Iraqi Freedom Following the perceived success of ‘Operation Enduring Freedom’ and the democratic transformation of Afghanistan, the attention of the administration of President George W Bush turned to the problem of ‘rogue’ states in general, and Iraq in particular. US foreign policy was greatly influenced by a neo-conservative analysis, notably the work of the Project for the New American Century, supported by Vice-President Dick Cheney, Secretary of Defense Donald Rumsfeld, and Deputy Secretary of Defense Paul Wolfowitz.182 Following the collapse of the Soviet Union,183 the United States identified a new ideological enemy, opposed to its values and interests: international (Islamist) terrorism and ‘rogue’ states possessing or seeking to acquire weapons of mass destruction. The rhetoric of the Bush administration in the period leading to the military intervention in Iraq is clear on the need for regime change. In January 2002, President Bush branded Iran, Iraq and North Korea an ‘axis of evil’. By seeking weapons of mass destruction, which they might provide to international terrorists, ‘these regimes pose[d] a grave and growing danger’.184 The American position was supported by UK Prime Minister Blair, who stated on 7 April 2002 that ‘leaving Iraq to develop WMD, in flagrant breach of [relevant SC resolutions] is not an option’. Any military intervention would involve ‘regime change’ and the promotion of values of freedom, democracy and justice.185 On 12 September 2002, President Bush, addressing the UN General Assembly, referred to ‘outlaw’ regimes, including Iraq, which ‘accept no law of morality and have no limit to their violent ambitions’. The President went on to assert that ‘[l]iberty for the Iraqi people is a great moral cause, and a great strategic goal’, and looked forward to the people of Iraq joining a democratic Afghanistan and a democratic Palestine, ‘inspiring reforms throughout the Muslim world’.186 A few days later, the administration published its National Security Strategy (2002), which identified a number 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 ‘Defense Planning Guidelines’ drawn up in 1992 under the supervision of Paul Wolfowitz, which argues 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’s Plan: ‘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 25 July 2009). 186 US President Bush address to the United Nations General Assembly (12 September 2002).

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238 Democracy in International Law display no regard for international law, threaten their neighbors, are determined to acquire weapons of mass destruction, sponsor terrorism, and reject basic human values and hate the United States’.187 The Strategy determined that the United States would continue to assert its right to act pre-emptively if necessary, ‘in order to forestall or prevent hostile acts by the adversaries of the United States’.188 The National Security Strategy 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, and free enterprise’.189 On 16 October 2002, the US Congress gave the President the authorisation to use military force against Iraq. The resolution ‘expressed the sense of Congress that it should be the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime’.190 Harold Hongju Koh observes that from Ronald Reagan’s speech at Westminster in 1982, until 11 September 2001, ‘successive administrations had supported the promotion of democracy as a fundamental goal of U.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 seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world’.192 A few days later, in the State of the Union address, the President asserted that the purpose of the military intervention in Iraq was to establish a ‘country that is democratic, representative of all its people, [and] at peace with its neighbors’. He further expressed American support for democratic movements in the Middle East and beyond, making a direct connection between the advance of democracy and international peace and security: ‘[B]ecause democracies respect their own people and their neighbors, the advance of freedom will lead to peace.’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. 188 189

ibid at 15. 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) 41 ILM 1440. 191 Harold Hongju Koh, ‘On American Exceptionalism’ (2003) 55 Stanford Law Review 1479, 1498. 192 Inauguration Address (20 January 2005). 193 US President George W Bush, State of the Union Address (2 February 2005).

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target ‘rogue’ states and spread democracy, thus enlarging the zone of democratic peace, with a particular focus on the Middle East and the wider Muslim world.194 Regime change did not, however, provide the legal basis for the military intervention in Iraq.195 The justification for the use of military force against Iraq was grounded in a contested interpretation of a right to use armed force provided in the Charter of the UN. The casus belli of ‘Operation Iraqi Freedom’ was the refusal of Iraq to cooperate fully with the UN, and comply with its disarmament obligations established by relevant Security Council resolutions. The legal basis of the military intervention depended on a particular reading of Security Council Resolutions 678 (1991), 687 (1991) and 1441 (2002):196 the ‘material breach’ of the disarmament obligations in Resolution 687 revived the right to use military force provided in Resolution 678. Democratic regime change was, however, a key political objective of ‘Operation Iraqi Freedom’. At the Azores summit, which immediately preceded the military action, the leaders of the United States, United Kingdom, Spain and Portugal issued a Declaration on ‘A vision for Iraq and the Iraqi people’: in the event of military action, the Iraqi people would be ‘lifted from insecurity and tyranny, and freed to determine for themselves the future of their country’. The Declaration expressed support for the ‘Iraqi people’s aspirations for a representative government that upholds human rights and the 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 proclaimed victory in Iraq as ‘one victory in a war on terror that began on September 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 sought to impose democracy in Somalia, Haiti, Bosnia-Herzegovina, Kosovo, Afghanistan and Iraq. Only Haiti does not have a majority Muslim population. See James Dobbins, ‘America’s Role 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 change cannot be the objective of military action’, reprinted 54 International and Comparative Law Quarterly (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 Intelligence on 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 York Times (17 March 2003). For the reaction of the international community, see the debates in the UN Security Council on 26 and 27 March 2003: S/PV.4726, and S/ PV.4726 (Resumption 1). 198 ‘Security Council Recognition of U.S. Postwar Role in Iraq’ (2003) 97 American Journal of International Law 681, 681.

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240 Democracy in International Law subject to a foreign military occupation.199 The legal basis for the intervention is unrelated to the position concerning regime change. Article 43 of the regulations annexed to the 1907 Hague Convention (IV) with respect to the Laws and Customs of War on Land obliges an occupying power to respect ‘unless absolutely prevented, the laws in force in the country’.200 The regulation represents the position under customary international law.201 Article 43 cannot be regarded as a norm of jus cogens, given that exceptions to the proscription are recognised in the second paragraph of article 64 of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.202 The exceptions concern threats to the security of the occupying power, obstacles to the application of the Fourth Geneva Convention, including the protection of the civilian population, and/or the need to maintain the orderly government of the territory. The introduction of democracy in a state subject to military occupation cannot be reconciled with the language of article 43, or justified by the exceptions recognised in the Fourth Geneva Convention: international law does not accept the legality of the forced democratisation of occupied territories. The legal basis for the military occupation and political transition in Iraq was provided by the rules of international humanitarian law, as amended by Security Council Resolutions 1483 (2003), 1511 (2003) and 1546 (2004).203 The power of the Security Council to amend international law is implicit in the principle of the supremacy of UN law, reflected in article 103 of the UN Charter. Security Council Resolution 1483 (2003), adopted under chapter VII on 22 May 2003 by 14 votes to nil, with Syria not participating,204 established the legal basis for the occupation.205 The resolution is clear on the need for regime change, calling on UN Member States to deny safe haven to members of the Baathist regime, thus

199 Adam Roberts, ‘The End of Occupation: Iraq 2004’ (2005) 54 International and Comparative Law Quarterly 27, 30. See SC Res 1472 (2003) para 1 and SC Res 1483 (2003) para 5. 200 The laws of military occupation apply where a territory is ‘placed under the authority 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. 201 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 [89]. 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 JUNE 2004/100 preamble. 204 Syria subsequently stated that it would have voted in favour of the Resolution had it been 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 International Law 842, 844.

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preventing the formation of a ‘government-in-exile’,206 and appealing to states and international organisations ‘to assist the people of Iraq in their efforts to reform their institutions’.207 The resolution both insisted on the application of occupation law and ‘proclaimed certain transformative objectives for the occupation’.208 Resolution 1483 (2003) affirmed the right of the Iraqi people to political self-determination,209 and referred to the need to establish a ‘representative government’ that affords equal rights to all Iraqi citizens ‘without regard to ethnicity, religion, or gender’.210 The establishment of a representative government requires the recognition of equal rights of political participation for all citizens,211 it does not require the introduction of democratic institutions, and Resolution 1483 (2003) makes no reference to the need to introduce democracy.212 The Security Council did express its support for the formation of an Iraqi interim administration,213 and on 13 July 2003 the occupying powers constituted a Governing Council of Iraq, which was given an advisory role to the Coalition Provisional Authority (CPA).214 Security Council Resolution 1511 (2003), adopted unanimously under chapter VII on 16 October 2003, invited the Governing Council to provide ‘a timetable and a programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution’.215 A common objective had been agreed within the UN for the establishment of a sovereign, democratic and independent Iraq as quickly 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 15 November proposals did not survive the opposition of the majority Shia population, which demanded early direct elections.217 A compromise emerged in the form of a new interim and transitional constitutional 206 Thomas Grant, ‘The Security Council and Iraq: an Incremental Approach’ (2003) 97 American 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 that Iraq 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.

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242 Democracy in International Law order, the Transitional Administrative Law (TAL),218 which was drafted by the Governing Council of Iraq, under the authority of the Coalition Provisional Authority, with CPA Administrator Paul Bremer playing a key role in the process.219 The TAL provided for the establishment of an Iraqi Interim Government from the end of the occupation until the establishment of an Iraqi Transitional Government, following elections in January 2005.220 It put in place a system of government that provided for the sharing of power between the representatives of the majority Shia population and minority Sunni and Kurdish groups,221 and recognised a right of self-government for the Kurdish population in northern Iraq.222 The TAL also introduced a political process, involving elections to a Transitional National Assembly, which had responsibility for drafting the permanent constitution. The permanent constitution would be approved in a general referendum, with elections for a permanent government held no later than 15 December 2005.223 In Resolution 1546 (2004), adopted unanimously under chapter VII on 8 June 2004, the Security Council ‘endorsed’ the interim and 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 leading to its adoption make clear the determination of the Security Council to give legal effect to the fact of democratic regime change in Iraq.227 The Security Council further welcomed the commitment of the Interim Government of Iraq to work towards a ‘federal, democratic, pluralist, and

218 Law of Administration for the State of Iraq for the Transitional Period (‘Transitional Administrative 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 to complete the political transition process to establish a free, and democratic Iraq’: SC Res 1546 (2004) Annex. 226 The Oxford English Dictionary. 2nd edn 1989 OED Online (Oxford, Oxford University Press, 2000). 227 See, on this point, 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 [114].

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unified Iraq’.228 In debates in the Council, all participants, including states that are not democratic,229 expressed support for the establishment of democracy in Iraq.230 On 28 June 2004, the occupying powers formally transferred power to the Iraqi interim administration. Elections to the Transitional National Assembly were held on 30 January 2005. On 15 October 2005, the people of Iraq voted by a significant majority to approve a new constitution, which describes Iraq as a ‘democratic, federal, representative (parliamentary) republic’.231 It recognises a continued right of self-government for the Kurdish population in northern Iraq,232 and also introduces the possibility of other self-governing regions emerging.233 Central government enjoys exclusive powers in defined and limited areas, in relation, for example, to foreign affairs, defence, finance, and customs policy.234 Elections under the new Constitution were held on 15 December 2005, bringing to an end the political transition process outlined in Resolution 1546 (2004).235 In Resolution 1546 (2004), the Security Council endorsed the establishment of a system of government involving the sharing of power between the three main ethno-cultural groups in Iraq, and expressed its support for the establishment of a ‘federal, democratic, pluralist, and unified Iraq’. None of the terms are defined, or the subject of elaboration in the debates in the Council. Reference to ‘federalism’, for example, is made only by the United States236 and the United Kingdom,237 and only in the context of a ‘federal, democratic, pluralist, and unified Iraq’. Nor do any of 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 the mandate provided by Resolution 1546 (2004) to draft a new permanent constitution which would ‘enshrine the ideas of… pluralism, democratic rights, [and] federalism’.238 There was no articulation in the relevant resolutions or the debates in the Security Council of the rationale for introducing democracy in Iraq, for the process of democratisation, or the 228

SC Res 1546 (2004) preamble. 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 25 July 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. 229

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244 Democracy in International Law system of government ‘endorsed’, reflecting differences between the occupying powers and other states on the process of political transformation.239 Security Council Resolution 1546 (2004) endorsed a system of ethnic power-sharing and highly devolved federal system with limited evidence of support from the Iraqi people, in contravention of their right to (political) self-determination: a norm of jus cogens standing, and an obligation erga omnes. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice concluded that states were under an obligation not to recognise an illegal situation resulting from the violation of the right of peoples to selfdetermination.240 Article 41(2) of the International Law Commission’s Articles on State Responsibility provides that no state ‘shall recognize as lawful a situation created by a serious breach’ of an obligation arising under a peremptory norm of general international law, including the right of peoples to self-determination.241 In evaluating the authority of Security Council resolutions endorsing regime in Iraq, it is difficult to conclude that the resolutions were capable of removing the right of the Iraqi people to political self-determination. In terms of the relevant position in international law, the conclusion must be that the international law norms on the prohibition on forced regime change of occupied territories (regulations annexed to the 1907 Hague Convention (IV) with respect to the Laws and Customs of War on Land) must be read both in the light of the 1949 Fourth Geneva Convention, and the right of peoples to self-determination: the test for the legality of a regime established following military intervention is evidence of the support of the people in free and fair elections (or equivalent procedure, such as a referendums).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 15 December 2005 can be understood as an expression of democratic selfdetermination, 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 May 2003, 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 Internationally Wrongful Acts (with commentaries), in Report of the International Law Commission 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’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002). 242 cf Eyal Benvenisti, The International Law of Occupation (Princeton, New Jersey, Princeton University Press, 1993) 173.

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Conclusion 245 notwithstanding the fact that they were not provided with a free choice in determining the form and functioning of democracy in Iraq, given the existence of a political system imposed by the occupying powers, and endorsed by the Security Council, in the form of the TAL. CONCLUSION

The practice of democracy at the level of the state is (from the perspective of international law) subject to the authority of international law, which both constructs the state as a legitimate political community and frames the legitimate exercise of coercive authority (consistent with international human rights norms). The international community has not yet adopted a position of intolerance to non-democracies, but increasingly world society is comprised of, and committed to, an international community of democratic states. The evidence of this is seen most clearly in the role of the UN Security Council in endorsing the (otherwise) unlawful democratisation of Iraq. The development also raises a number of problems for democratic theory, according to which the democratic state is understood as a voluntary association that constitutes itself by virtue of a pouvoir constituant (constituent power). Dann and Al-Ali observe that constitution-making, traditionally an expression of national selfdetermination, is increasingly becoming an object of international law.243 The UN Security Council plays an important role in the framing the possibilities for constitution-making, ie the democratic right of the people to create a new legal order. The development conflicts with the concept of the pouvoir constituant, which is an inherently democratic concept. It encapsulates the most fundamental act of self-determination of a people… The political elite of the constitution-making society typically plays a vital role in each of these scenarios, but always as an agent and representative of the entire nation. Its powers are ultimately rooted in the people and hence in the individual.244

The very idea of the pouvoir constituant (constituent power) ‘is thus tantamount to a national endeavor and a nation taking its political fate into its own hands and exercising its most fundamental and sovereign right.’245 The role of the UN Security Council in endorsing democratic regime change presents a radical move away from the democratic ideal (whilst imposing democracy). The development affirms that democracy does 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) Max Planck Yearbook of United Nations Law 423, 424. 244 ibid at 426. 245 ibid at 427.

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established by international law in the construction of the state, with political self-determination subject to global (political) justice norms, concerning, for example, international human rights. The practice of democracy occurs in a taken-for-granted context established by international law, and subject to global justice norms.

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6 International Governance by Non-State Actors

T

HE PREVIOUS CHAPTERS examined the complexities created for democracy by the existence of a binding system of international law (even one committed to the protection of human rights and promotion of democracy). The democratic legitimacy of international law is provided by the engagement of states in forms of deliberative diplomacy and the agreement of international law norms that represent a form of political truth in world society. The norms that structure democratic law-making are established both at the domestic level (constitutional law norms) and by law norms that are external to the legal order (undermining the claim of the people to decide all politically decidable issues). We cannot understand democracy as a voluntary association of citizens that organises social, economic and political life in accordance with norms agreed through (deliberative) democratic procedures, ie in accordance with a democratic constitution subject only to the will of the people. The analysis now shifts to the problems for (domestic) democracy that result from the exercise of governance functions by non-state actors. Former United Nations (UN) Secretary-General Kofi Annan refers to the many diverse and increasingly influential non-state actors that have joined with national authorities ‘to improvise new forms of global governance’,1 whilst Barnett and Finnemore observe that non-state actors are often the political institution to which actors defer when it comes to defining ‘norms of good behaviour’, and in doing so non-state actors play a significant role in helping to ‘determine the kind of world that is to be governed and set the agenda for global governance’.2 ‘Norms’ express and establish a ‘shared expectation about appropriate behaviour held by a 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 Organizations in 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.

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248 International Governance by Non-State Actors shared moral assessment, [and] prompt justifications for action’. Actions which are ‘norm-breaking’ generate ‘disapproval or stigma’; those in conformity with the norm receive praise, ‘or, in the case of a highly internalized norm, because it is so taken for granted[,] provoke no reaction whatsoever’.4 The exercise of global regulation cannot simply be explained in terms of a more complex world of Westphalian law, in which all laws depend for their validity on an expression of sovereign will. In addition to state and international law, the globalisation of governance functions has seen the emergence of autonomous law orders not defined by reference to sovereign authority, notably the legal orders of the UN and European Union. The development raises questions around the democratic legitimacy of global law norms themselves, and the consequences for the practice of democracy that results from competing claims to regulate aspects of social, economic and political life. The practice of (deliberative) democracy must accommodate the emergence of non-sovereign (nonstate) actors as regulators, and the fact that global law norms can (it seems) be adopted without any requirement for consent by the democratic people. The literature on (global) legal pluralism highlights the need for new ways of thinking about the fragmentation of international law, making clear the importance of distinguishing between legal pluralism and normative pluralism, and allowing for the possibility of developing concepts of regime collision based on the (democratic) nature of ‘law’. This chapter proceeds as follows. First, it examines the idea of global governance and attempts to link the idea to an exercise of public authority which can be subject to the requirements of the (democratic) rule of law. A number of case studies are examined to highlight the divergent ways in which non-state actors have emerged as law-makers, demonstrating a reliance on law-type norms by global regulators and concern for the practice of democracy following the proliferation of legislative bodies in global governance. There is a recognition that new forms of international governance framed in terms of law create systems of ‘law’ (properly so-called), and that they can be subject to the requirements for the exercise of public authority previously applied within (democratic) state law systems.

4 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887, 892.

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Global Governance

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GLOBAL GOVERNANCE

Hans Kelsen describes international law norms as ‘incomplete norms’. A norm is complete when it defines what ought to be done (or not done), and by whom. International law defines the first element (what ought to be done by states), but leaves the second element to the discretion of the state in determining the identity of the juristic person that will carry out the international law obligation.5 Westphalian law norms are enforced through coercive (domestic) governmental institutions in accordance with domestic law. International law norms are domesticated, ie brought into the state-law system, through executive action, judicial interpretation, or legislative action, all of which imply, directly or indirectly, a link to democratic publics, and democratic debate. States are no longer the only actors that generate law norms through an expression of (sovereign) political will (expressed in terms of state law and international law). The proliferation of sites for the production of law norms and emergence of non-state actors has broken the Westphalian frame for law-making, and formally de-coupled the concept of law from the coercive (state) institutions for the enforcement of law norms: ‘[W]e inhabit a world of multiple normative communities, some of which impose their norms through officially sanctioned coercive force and formal legal processes, but many of which do not.’6 In addition to (‘Westphalian’) state and international law, global governance now includes forms of ‘international governance’ by non-state actors that cannot, in contradistinction to state and international law, be linked to an exercise of sovereign authority.7 New forms of international governance, even when framed in terms of law, must rely on ‘non-hierarchical forms of steering,’ in order to ensure compliance with governance norms.8 Reference to ‘global governance’ and ‘international governance’ emphasises the difference between the way in which law functions at the

5 Hans Kelsen, General Theory of Law and State, trans by Anders Wedberg (New York, Russell & Russell, 1961) 347. 6 Paul Schiff Berman, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journal of International Law 301, 302. 7 cf Anne-Marie Slaughter, Andrew Tulumello and Stepan Wood, ‘International Law and International Relations Theory: a New Generation of Interdisciplinary Scholarship’ (1998) 92 American Journal of International Law 367, 371: ‘International governance is understood as the formal and informal bundles of rules, roles and relationships that define and regulate the social practices of state and nonstate actors in international affairs.’ 8 Philipp Pattberg, ‘Global Governance: Reconstructing a Contested Social Science Concept’, (GARNET Working Paper, No 04/06) 11. The idea of ‘global governance’ emerged in the context of debates around reform of the United Nations (UN) system in the early 1990s following the collapse of the Soviet Empire and hopes for the emergence of a ‘new world order’. Debates were focused on the role of governments as the principal actors in the system of global governance, mainly in the context of international cooperation through international organisations: ibid at 8.

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250 International Governance by Non-State Actors global level and way in which domestic state law functions.9 Governance is contrasted with government, the latter being associated with formal institutions and the capacity to legislate and coercively enforce law norms. James Rosenau argues that the idea of global governance should be taken to refer to ‘activities that may or may not derive from legal and formally prescribed responsibilities and that do not necessarily rely on police powers to overcome defiance and attain compliance’.10 The idea includes both formal systems of law and more informal normative orders for the regulation of global problems. Global politics is no longer constrained by the state law system: ‘two worlds of world politics’ may be identified, the inter-state system and ‘a multicentric system of diverse types of other collectivities that has lately emerged as a rival source of authority’. The second world operates without clear boundaries and with competing and proliferating centres of authority in a ‘highly complex system of global governance’.11 It includes all attempts at global regulation not captured by the first world of inter-state law, whether organised in bilateral or multilateral contexts (international organisations and institutions, etc) and it does not require that regulatory standards are framed in terms of law, as opposed, for example, to good practice or industry standards. Armin von Bogdandy and his colleagues conclude that the concept of ‘global governance’ employed by Rosenau and others provides important insights into the nature of global regulation, highlighting the multilevel character of governance activities, the role of non-state actors, and the informal nature of many regulatory regimes and attempts by a number of regulators ‘to escape the grasp of established legal concepts’.12 The concept is insufficient, however, as it fails to capture the distinctive contribution of those ‘acts which are critical because they constitute a unilateral 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 in which individuals and institutions, both public and private, organise their common affairs, including both ‘formal institutions and regimes empowered to enforce compliance, as well as informal arrangements’: Report of the Commission on Global Governance, Our Global Neighbourhood (Oxford, Oxford University Press, 1995) 2. 10 James Rosenau, ‘Governance, Order, and Change in World Politics’ in James Rosenau and Ernst-Otto Czempiel (eds), Governance without Government: Order and Change in World Politics (Cambridge, Cambridge University Press, 1992) 1, 4. See also Thomas Weiss, ‘Governance, Good Governance and Global Governance: Conceptual and Actual Challenges’ (2000) 21 Third World Quarterly 795. 11 James Rosenau, ‘Governance in a New Global Order’ in David Held and Anthony McGrew (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 Law Journal 1375, 1378. 13 ibid at 1381.

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terms of public (international) law: ‘Only authoritative acts need to be constituted and limited by public law, and the limiting function of public law depends on identifiable actors on whom to impose limitations.’14 Authority is the ‘legal capacity to determine others and to reduce their freedom, i.e. to unilaterally shape their legal or factual situation’.15 The exercise of authority is the realisation of that capacity through the issuing of directives that may or may not take the form of law (cf the dissemination of ranking information, for example). Authority concerns the factual ability to ‘determine others’, ie to limit their freedom of action or political self-determination, and this may equally be undertaken through nonbinding acts.16 The idea of an international public authority includes any authority whose competence is ‘instituted by a common international act of public authorities, mostly states, to further a goal which they define, and are authorized to define, as a public interest’.17 The concept includes international organizstions, public-private partnerships, and institutions and regimes based on private law (the new lex mercatoria, for example). A typical example would involve a global governance activity that directly affects public goods, such as the regulation of internet domain names by the Internet Corporation for Assigned Names and Numbers (ICANN).18 The exercise of authority by an international public authority requires justification: where a non-state actor limits the freedom of action or scope for political self-determination of another actor (including but not restricted to states), it must provide justification for the exercise of authority within a public law framework,19 based on a combination of three existing responses to the globalisation of governance: constitutionalisation, global administrative law, and international institutional law.20 The arguments of Bogdandy et al provide useful insights into the relevance of (international) public law concepts to global governance activities.21 The analysis fails, however, to provide a sufficiently clear distinction between the exercise of international governance through law and other forms of normative ordering. Can it be the case, for example, that the actions of international non-governmental organisations in putting pressure on states and multi-national corporations, often through

14

ibid at 1380–81. 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 domestic public law principles to those international organizations that exercise conferred powers of government’: Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford, Oxford University Press, 2005) 14 (references omitted). 15

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252 International Governance by Non-State Actors processes of ‘naming and shaming’ and consumer boycotts, require justification in terms of public (international) law? The Brent Spar case is instructive. In 1995, Shell Oil announced plans to decommission the Brent Spar by dumping the oil storage rig in the North Atlantic. Greenpeace and other environmental pressure groups staged a campaign to stop its dumping, given the possible risk of pollution. Whilst Greenpeace later apologised to Shell for its errors and inaccurate claims, a consumer boycott in Germany, Holland and other states forced Shell to change its plans.22 In the language of von Bogdandy et al, Greenpeace ‘determined’ the freedom of action of Shell (and other companies in the industry, as no major oil company will now propose to dump a structure),23 notwithstanding that Brent Spar was to be dumped in accordance with the laws of the United Kingdom and, in the view of the UK Government, international law.24 The actions of Greenpeace do not, however, amount to international governance, ie the exercise of international public authority that requires justification in terms of (public) international law. The action was directed at a single actor and single set of facts, and not framed in terms of ‘law’; the argument was moral, not legal, with Greenpeace claiming that Shell was engaged ‘in an act of environment vandalism which future generations would find hard to forgive’.25 Whilst von Bogdandy et al are correct in recognising the need to apply public law concepts to the exercise of international public authority by non-state actors, they are over inclusive as to the forms of global governance that can be captured and constrained by the idea of international public ‘law’. Law establishes a framework for inter-state relations, relations between governments and citizens, and between citizens themselves, but it is not the only normative order that structures social life (consider, for example, the various religious, cultural and economic norms that also structure social existence). There is a need to distinguish international ‘law’ governance from other forms of normative ordering. The analysis is important for linking any discussion about the necessary requirements for the exercise of political authority beyond the state to an analytical concept of law, and emphasising the importance of legitimate regulation through law.

22 Samir Mankabad, ‘Decommissioning of Offshore Installations’, (1997) 28 Journal of Maritime Law and Commerce 603, 613. 23 Geoff Hewitt, ‘Offshore Decommissioning: Where Now’ (2004) 8 International Energy Law and Taxation Review 173, 174. 24 Elizabeth Kirk, ‘The 1996 Protocol to the London Dumping Convention and the Brent Spar’ (1997) 46 International and Comparative Law Quarterly 957, 962. 25 Quoted in Samir Mankabad (n 22) at 613.

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INTERNATIONAL ‘SOFT’ LAW

International law texts deal with the ‘legislative’ activities of non-state actors under the rubric of ‘soft law’, defined as the ‘variety of non-legally binding 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 binding legal rules or a formal regime for enforcement.27 Non-binding norms are common to all social systems and all legal systems.28 Norms, both ‘hard’ and ‘soft’ (or however else described), establish shared expectations about appropriate behaviour in a community. Hard law norms will be recognised 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 irrelevant from the perspective of institutionalised normative systems of law. The distinction between hard and soft norms is significant in domestic law, with its coercive mechanisms for enforcement of law norms, but less so in the international law system, which relies to a minimal extent on formal mechanisms for the resolution of legal disputes. Vaughan Lowe notes that whilst international soft law norms may not be legally binding, they form part of a ‘broader normative context within which expectations of what is reasonable or proper State behaviour are formed’.29 Widespread acceptance of soft law norms, as Boyle and Chinkin note, will ‘tend to legitimise conduct and make it harder [for states] to sustain the legality of opposing positions’.30 The idea of ‘soft’ (international) ‘law’ appears oxymoronic. ‘Hard’ international 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’ instruments containing ‘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, Oxford University Press, 2007) 212. 27 Anna di Robilant, ‘Genealogies of Soft Law’ (2006) 54 American Journal of Comparative Law 499, 499. 28 Christine Chinkin, ‘Normative Development in the International Legal System’ in Dinah Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International 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 of General Assembly resolutions on the issue. The resolutions had no legal force, but they did prescribe legitimate behaviour, and compliance followed. 31 Dinah Shelton, ‘Introduction’ in Dinah Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System (Oxford, Oxford University Press, 2000) 1, 10.

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254 International Governance by Non-State Actors (although where international law obligations are not capable of being made determinate through the methods and principles of international law interpretation, the international rule of law might argue against their enforcement). Soft law norms fall outside of the pedigree of international norms recognised in article 38(1) of the Statute of the International Court of Justice:32 ‘contract-like’ agreements between states (treaties), customary international law, general principles common to legal systems, and the writings of publicists and decisions of courts on points of international law. Soft law norms may create moral and political pressure for compliance, but they are not relevant when ‘judging’ the actions of states against posited international norms – the standard mindset of the public international lawyer.33 Soft law norms may point to the future direction of international law (lex ferenda), or be evidence of customary international law, but are not (international) ‘law’. They only become part of (‘hard’) international law when 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 as resolutions adopted by the UN General Assembly, being highly influential in the development of international law, and international and domestic courts and tribunals often rely on a bricolage of hard and soft instruments to reach a judgment (in part to avoid the impression that the court is engaged in an act of ‘legislation’).35 The fact that a court or tribunal, or other law-official, treats a non-law source as authoritative does not make it a source of law. International organisations may exercise a legislative function where the states parties to a constituent treaty recognise such a power. The idea of sovereignty is not inconsistent with the transfer of law-making powers to an international organisation, the application of majority rule in legislative processes in international organisations, or for binding decisions to be taken by an international organisation without the participation of all states parties. Writing about the proposed establishment of the UN, Kelsen observed that the allocation of ‘true legislative power[s]’ to an 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 much restrict 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 pedigree criterion of legality’: Jules Coleman, ‘Authority and Reason’ in Robert George (ed), The Autonomy 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 York University 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, Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7, 88.

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community constituted by such a treaty is more centralized than other international communities usually are, justifies the argument that the establishment of a 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 unambiguous delegation of legislative authority. But what of the ‘legislative’ authority of the UN General Assembly, which has the power only to ‘make recommendations to the Members of the United Nations’ (article 10 of the UN Charter)? The limited mandate has not prevented the General Assembly from adopting resolutions that interpret the obligations of states under the Charter, or provide the basis for the progressive development of international law and the speedy consolidation of customary norms.37 The legislative authority of a General Assembly resolution can be understood in one of three ways. First, as the resolution does not fit within the pedigree of legal sources recognised in article 38(1), it is of no direct interest to the international lawyer; the resolution may reflect emerging normative standards (lex ferenda), but it does not represent an accurate statement of international law as it now stands (lex lata). Secondly, a General Assembly resolution might contribute to the development of a modern form of customary international law, deduced from international instruments rather than the identification of state practice. Customary international human rights law has often emerged through the adoption of ‘legislative’ instruments by the UN General Assembly, not least the Universal Declaration of Human Rights. The final possibility is that a resolution constitutes a form of ‘soft’ international law, and it is noteworthy that ‘non-binding’ resolutions of the General Assembly are invariably framed in terms of international law. The Restatement of Foreign Relations Law notes that whilst General Assembly resolutions and those of other international organisations are not included in article 38(1) of the Statute of the International Court of Justice (ICJ), the provision was drafted prior to the proliferation of international organisations since 1945,38 and it is not possible to conclude that resolutions of international organisations are insignificant in the development of general and customary international law. The Restatement observes that resolutions of universal international organisations, ‘if not controversial and if adopted by consensus or virtual unanimity, are given substantial weight’ in the identification of international law.39 In

36 Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ (1944) 53 Yale Law Journal 207, 211. 37 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 15. 38 Restatement (Third) of Foreign Relations Law § 103 (1987), reporter’s note 2. 39 Restatement (Third) of Foreign Relations Law § 103 (1987), comment.

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256 International Governance by Non-State Actors Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), the ICJ concluded that it would not be correct to assume that, because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design.40

General Assembly Resolution 63/128 reaffirms the role of the General Assembly ‘in encouraging the progressive development of international law and its codification, and reaffirms further that States shall abide by all their obligations under international law’.41 It is not possible to regard the UN General Assembly as a legislative institution analogous to national parliaments; nor would it be correct to conclude that the Assembly does not possess the capacity to ‘legislate’ international law norms, and reference to resolutions of the General Assembly as an expression of the position in international law are invariably made without exposition as to the basis for relying on the resolution as an authoritative statement of the law. The point is emphasised by the importance accorded to ‘Declarations’ (as opposed to ‘Resolutions’). In contrast with the amorphous development of international law in the past, lawmaking in the UN General Assembly allows the possibility for the participation of ‘all affected’ states on the basis of the one-stateone-vote principle, an application of the Athenian model of democracy in which full members a political community, but not others,42 meet and decide on the political issues of the day. Christine Chinkin makes the point that, since the 1960s, developing states have sought to enhance the law making authority of the General Assembly, where they enjoy a numerical majority, in order to ‘legislate’ international law norms, ‘and in doing 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 enhanced role of autonomous non-state actors in the production of international 40 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 [105]. 41 General Assembly (GA) Res 63/128 ‘The Rule of Law at the National and International levels’ (adopted 11 December 2008) para 2. 42 The participation of all states does not end complaints of a democratic deficit in the absence of the participation and inclusion of all affected persons. See, for example, the participation 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 of Indigenous Peoples’. 43 Chinkin (n 28) at 22.

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law norms. Reference to the idea of an autonomous actor concerns a condition in which a global regulator is not under the political control of states (understood in terms of decisive influence over the ‘constitutional’ regime governing the exercise of authority by the non-state actor, but accepting that non-state actors may be influenced by the political will of states). Where non-state actors such as the United Nations ‘legislate’ (international) law norms and compliance follows, they exercise a form of ‘regulatory’ authority traditionally associated with the state. The idea of the non-state ‘legislative’ actor includes international organisations constituted by treaty but operating outside the effective control of states parties (the European Union and United Nations being the paradigm examples); informal ‘networks’ of national officials seeking to coordinate policy in a particular area (Basel Committee on Banking Standards); public-private partnerships (World Commission on Dams; The Global Fund to fight AIDS, Tuberculosis and Malaria, etc); informal groupings (Commission on Food Safety Standards); self-regulatory regimes (International Court of Arbitration for Sport); purely private institutions (ICANN); and informal ‘communities’ of non-state actors, the new lex mercatoria, for example, developed by lawyers and arbitrators, and codified in the International Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial Contracts 1994.44 It is beyond the scope of this work to evaluate the exercise of political authority by all non-state actors or the extent to which ‘law-making’ by global regulators occurs in a way that is democratically legitimate. The following 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 Forest Stewardship Council and Fairtrade Labelling Organisation. The aim is to establish that non-state actors might exercise a legislative function, and that the democratic legitimacy, or otherwise, of this role is a subject of controversy.

The UN Security Council The UN Security Council is perhaps the clearest example of a non-state actor asserting a right to legislate in the international law system — a right that is nowhere provided for in the UN Charter, although it is not expressly excluded. Under the Charter, UN members confer primary responsibility for the maintenance of international peace and security on the Security Council, ‘and agree that in carrying out its duties under this 44 Alec Stone Sweet, ‘The New Lex Mercatoria and Transnational Governance’ (2006) 13 Journal of European Public Policy 627.

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258 International Governance by Non-State Actors responsibility the Security Council acts on their behalf’.45 Decisions of the Council adopted under chapter VII of the UN Charter are binding in respect of Member States by virtue of articles 25 and 48(1),46 and arguably in relation to ‘all States’ by article 2(6).47 To adopt a binding resolution, the Security Council must overcome a double veto:48 the formal veto accorded to each of its five permanent members (the ‘P-5’, the People’s Republic of China, France, Russia, the United Kingdom and the United States of America),49 and the ‘functional veto’ accorded to the non-permanent members, as a proposed resolution will fail without the requisite nine positive votes.50 The practice of the Security Council is to act where possible by consensus. To the extent that resolutions adopted under chapter VII conflict with other international law obligations, it is the position of the Security Council that its resolutions prevail.51 Security Council 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 individual states involved in an international dispute that threatens international peace and security, the resolution conforms to an executive type action envisaged by the framers of the Charter. The Security Council has, though, begun to adopt resolutions directed to all states in respect of general and continuous obligations. The legislative phase of the Security Council began on 28 September 2001, with the adoption of Security Council (SC) Resolution 1373 (2001), which implemented a number of provisions similar to those in the International Convention for the Suppression of the Financing of Terrorism, which was not in force.52 The resolution reaffirms the unequivocal condemnation of the terrorist attacks that occurred on 11 September 2001 and expressed determination

45

UN Charter art 24(1). 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 of the 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 American 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) 38 Victoria University of Wellington Law Review 175. 46

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to prevent all such acts, which ‘like any act of international terrorism, constitute a threat to international peace and security’.53 Acting under chapter VII, the resolution Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons [and entities] who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts.54

The resolution further decides that states shall refrain from providing support for entities or persons involved in terrorist activities, and actively seek to disrupt and bring to justice all those engaged in terrorist activities, 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 Criminal Court,57 and SC Resolution 1540 (2004), which imposes a number of general obligations concerning weapons of mass destruction and nonstate actors. Acting under chapter VII, the Security Council decided that ‘all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery’.58 Resolution 1540 required states to adopt and enforce effective laws to prohibit any non-state actor from manufacturing or otherwise developing the use of nuclear, chemical or biological weapons,59 and further required states to introduce a number of measures to ensure that non-state actors could not access weapons of mass destruction.60 In order to ensure its effective implementation, the resolution

53

SC Res 1373 (2001), preamble. ibid at para 1. 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 arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides 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. 54 55

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260 International Governance by Non-State Actors established a committee to report on the implementation of the resolution, ‘and to this end call[ed] upon States to present a first report no later than six months from the adoption of this resolution to the Committee on steps they have taken or intend to take to implement this resolution’.61 In contrast to earlier resolutions, the adoption of Resolution 1540 was accompanied by expressions of concern by Member States about the increasing tendency of the Security Council to ‘assume new and wider powers of legislation on behalf of the international community’.62 Pakistan argued that the resolution ‘exceeded the competence of the Security Council’. It appeared to be ‘“abstract legislation,” disconnected from the Council’s crisis management role’.63 Stefan Talmon defines the idea of international legislation by the Security Council in terms of the general and abstract character of the obligations imposed, which are ‘phrased in neutral language, apply to an indefinite number of cases, and are not usually limited in time’.64 Accepting the authority of the Security Council to impose obligations of an ‘abstract and general character’ (ie to legislate),65 he examines issues of legitimacy and participation in their adoption. A particular concern is the limited membership of the Council, in contrast, for example, to the UN General Assembly. Whilst all states may contribute to debates on a proposed resolution, only members of the Security Council can vote on legislative resolutions, undermining the principle of sovereign equality, unless ‘consent’ to the resolution may be located in membership of the organisation and the hierarchy implied, but not stated, in article 103 of the UN Charter. (The position is further complicated by the negative veto powers of the P-5.) In terms of participation, the general nature of legislative resolutions suggests that all states are potentially affected by the development of international law norms, and that all states should have the right to participate in the relevant debates. The Philippines representative to the UN observed: ‘Those who are bound should be heard.’66 Article 31 of the UN Charter provides that [a]ny Member of the United Nations which is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Security Council whenever the latter considers that the interests of that Member are specially affected.

61

ibid at para 4. 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. 62

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In terms of the possibilities for concerned states to participate in relation to legislative resolutions, the practice of the Council is to be as open as possible to non-members, with Talmon concluding that the participation of nonmembers is not a matter of discretion for the Security Council,67 although it is 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) is instructive. The concerns of Pakistan and others, and awareness of the Security Council’s legislative functions, led to a recognition amongst members of the need for ‘a more inclusive and drawn-out process’. Whilst the negotiations began amongst the P-5, Ian Johnstone reports that ‘the process was “intentionally porous,” allowing other members of the Council, nonmembers, the press, and nongovernmental organizations the opportunity to follow the deliberations and provide input’.68 SC Res 1540 (2004) was drafted by the P-5 over a period of six months, before the text was shared with the 10 elected members, with other states being briefed on its content. The sponsoring states ‘went to great lengths to explain the text and listened closely to member states within and outside the Council’. A process of informal consultations was undertaken, and on 22 April 2004, the Council held 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 international community’, the draft resolution should be adopted ‘after consultation with non-members of the Council’.69 By virtue of article 103 of the UN Charter, resolutions adopted by the Security Council under chapter VII displace other forms of international law and state law. The lack of legitimacy (including democratic legitimacy) and accountability of the Council presents a number of problems in accepting the absolute authority of this global Leviathan. One way of reading the idea of democracy at the domestic level is as a rejection of absolute deference to monarchy and all other forms of political authority. The exercise of political authority requires justification to avoid the abuse or arbitrary exercise of power: the doctrine of the rule of law. Yet (certain) international lawyers demand absolute deference to the authority of resolutions adopted by the UN Security Council on matters concerning international peace and security.70 The consent of UN Member States to submit themselves to the authority of the Security Council through

67

ibid at 187. Johnstone (n 63) at 292. 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 President Schwebel. 68 69

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262 International Governance by Non-State Actors membership of the organisation cannot, however, absolve the Council from an obligation to provide sufficient justification for the exercise of political authority in a particular case.71 The fact that an issue falls within its 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 the Security Council ‘has consistently taken a wide view of the phrase “threat to international peace and security” under Article 39’.72 The adoption of a resolution by the Security Council in accordance with proper procedure provides presumptive evidence that sufficient justification exists for the introduction of the relevant measures, but it cannot be conclusive: it does not, ipso jure, shield the resolution from legal challenge. (Questions concerning the legal status of Security Council resolutions will also impact on their effectiveness, pulling against voluntary compliance.) Whilst there is no formal process for the direct review of Security Council resolutions, by, for example, the ICJ,73 a right of indirect judicial review, in which the position of one or more parties to a dispute is dependent on the legal status of a Security Council resolution, has been recognised by international courts74 and tribunals.75 The democratic legitimacy of the relevant resolutions has not been the focus of the judgments. According to a deliberative understanding, the (democratic) legitimacy of Security Council resolutions would depend on conformity with the following: the constitutional framework provided by the UN Charter and general international law, concerning for example norms of jus cogens;76 the requirements of procedural legitimacy; and the requirements of substantive legitimacy, which require that measures can be justified in accordance with the principles of public reason and equal treatment, and in accordance with UN human rights standards and other agreed norms of (political) justice in relation to the UN.

71 See Daniel Bodansky, ‘The Legitimacy of International Governance: a Coming Challenge for International Environmental Law’ (1999) 93 American Journal of International Law 596, 601. 72 Christine Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008) 257. 73 Geoffrey Watson, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harvard International Law Journal 1. 74 cf Case T-315/01 Kadi v Council of the European Union [2005] ECR II-3649 (CFI); Case C-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 Council resolution and jus cogens’: Separate Opinion of Judge Lauterpacht, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia And Montenegro)), further Requests for the Indication of Provisional Measures [1993] ICJ Rep 407 [100]. Either the relevant paragraphs of the offending resolution should cease to be valid (ibid at [103]), or the Security Council should revisit the issue and revise the impugned measure accordingly (ibid at [104]).

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The UN Secretary-General has referred to a ‘democracy deficit in the UN governance’, and the need for the Security Council to be ‘more democratic and more representative’.77 Debates around reform of the UN Security Council have been framed in terms of democratic legitimacy. The focus is on the membership of the Council (‘vote’), and the position and powers, in terms of the veto, of the P-5. Michael Reisman observes that important political powers are reserved to five of the strongest states by giving them a dominant role in the Security Council, and through the allocation of veto powers.78 The position is exacerbated by the way in which the Council functions, notably the role of private discussion, with the Security Council becoming more secretive, and meetings taking place outside of the public meetings where records are taken.79 Meetings between the P-5 and also between the so-called P-3 (United States, United Kingdom and France) have become important in setting the agenda for debates in the Council.80 David Caron refers to the ‘disabling effect of the veto on the sense of participatory governance’,81 suggesting that the structure for Security Council decision-making reflects entrenched structures of power and influence as opposed to democratic ideals of deliberation and persuasion, although ‘other values such as representation and cohesion of the international community informed the design of the institution’.82 In terms of deliberative legitimacy, Ian Johnson concludes that whilst relationships of power and coercion are present in the Security Council, there are other features ‘that suggest raw material power is not the only thing that matters’: formal equality in terms of voting; the requirement for justification implicit in the public record of debates; the rotating Presidency, and article 24 of the UN Charter, which provides that the Council acts on behalf 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, he argues that an examination of the negotiation of legislative resolutions that 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 Panel on 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) 87 American 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 Security Council remains open to perspectives of certain non-state actors: ibid at 462.

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264 International Governance by Non-State Actors operating and in the criticisms of its manner of operating’.84 Members of the Council, in particular the P-5, ‘are in an enduring relationship and share certain understandings and expectations about the enterprise in which they are engaged’.85 They have created, in Habermasian terms, ‘an “institutional lifeworld” that makes minimally rational discourse possible’. Debates are structured by a normative framework that is provided by the UN Charter, the previous practice of the Council, and other ‘hard’ and ‘soft’ international law norms. Nor is the Security Council entirely dominated by the five permanent members. Non-permanent members, whilst not equal participants, ‘do wield some “discursive” power because the P-5 must compete for their support[,] [helping to] set the parameters of the more equal deliberations among the P-5’. States that are not members are able to speak at Council meetings, and the Security Council ‘is also influenced by organs of international public opinion, engaged representatives of NGOs, and other citizens who keep a close watch on what is going on in the Security Council’.86 There is also an increasing sense that the Security Council should articulate more clearly a justification for any exercise of international public authority, and justify its actions ‘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 Philip Alston, the ‘poster-child’88 for Anne-Marie Slaughter’s New World Order, in which networks of national officials cooperate to agree common standards, often framed in terms of codes of best practices, model 84 Ian Johnstone, ‘Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit’ (2008) 102 American Journal of International Law 275, 283. In relation to SC Res 1373, for example, Security Council members ‘sought to legitimate their actions through public justification, consultative opportunities, and accountable working methods’. Since the introduction of the regime, ‘the CTC has gathered a wealth of information 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 support decisions, and reasoning to back up the decisions’: ibid. 88 Philip Alston, ‘Remarks on Professor B.S. Chimni’s a Just World under Law: a View from the South’ (2007) 22 American University International Law Review 221, 233. Alston describes the Basel Committee as ‘so fundamentally elitist in its composition and in the ways in which it works that it is puzzling how anyone concerned with a just world order could consider it to be a model of anything other than a small group of rich countries determining universal standards which suit their own needs and interests’: ibid at 233.

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legislation, or governing principles to be implemented by national members. Slaughter argues that networks of government officials can be more effective governance institutions than more traditional, and ‘harder’, institutional forms, such as the multilateral treaty.89 Whilst each network will have its own aims and objectives, the establishment of transnational networks allows national government officials to keep pace with developments in globalisation, and establish relationships among the participants ‘that then create incentives to establish a good reputation and avoid a bad one’. Networks of government officials are able to respond effectively to the deleterious consequences of globalisation, in large part because of the personalised contacts between officials.90 In terms of democratic legitimacy, government networks can encourage discussion and deliberation in decision-making processes, creating favourable conditions for the emergence of a reasoned consensus. The outcome will be better quality decisions than those produced through interest-based bargaining, 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 in decision-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 auspices of the Bank for International Settlements to provide a forum for regular cooperation on banking supervisory matters. Its members come from Belgium, Canada, France, Germany, Italy, Japan, Luxembourg, the Netherlands, Spain, Sweden, Switzerland, the United Kingdom and the United States. They are senior officials responsible for banking supervision in central banks. The objective of the Committee is to improve the quality of banking supervision by exchanging information on national supervisory issues, approaches and techniques, with a view to promoting common understandings and developing ‘guidelines and supervisory standards’.93 The Committee monitors and reviews compliance with standards, 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 the state is no longer focused on the regulation of the activities of private actors, but on empowering individuals to solve their own problems within their own structures, and to facilitate and enrich direct deliberative dialogue. She refers to ‘a new conception of democracy, or self-government. It is a horizontal conception of government, resting on the empirical fact of mushrooming private governance regimes’: ibid at 310. 90 Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability 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/

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266 International Governance by Non-State Actors measures at meetings with other regulators and then rely on that agreement in domestic and other international contexts.94 The Committee has developed ‘sophisticated guidelines’ for capital adequacy in depository institutions, notably its 1988 Accord on International Convergence of Capital Measurement and Capital Standards (‘Basel I’),95 which was adopted by the members of the Basel Committee and applied to their banks, ‘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 possibility of participation in the process of its adoption. The legitimacy of the exercise of political authority by the Basel Committee must be addressed from two perspectives: that of the states participating in the governance network and other states subject to the regime. Slaughter argues that networks of government officials must be accountable to both ‘their domestic constituents [and] the publics in the states that they co-operate with’. Internally, regulators are accountable for their transnational activities in the same way they are accountable for their activities on the domestic level, but as participants in a global regulatory network, ‘they must have a basic operating code that takes account of the rights and interests of all peoples’.97 Political legitimacy for any global regulatory regime is enhanced by the participation of all states affected by the regulatory issue. Regulatory networks of officials are neither effective nor legitimate if they operate ‘as members of an exclusive club’.98 Developing states in particular have faced pressures from the market, the International Monetary Fund and World Bank to adopt the standards, converting the Basel I Accord ‘from a voluntary standardsetting body to an entity with real power to impose policy on countries’.99 In response to criticisms, the Basel Committee on Banking Supervision has begun to consult more widely in developing international capital standards, engaging in what Barr and Miller refer to as a relatively open process, akin to notice and comment rule-making. The process has been replicated at the domestic level, with central banks and national bank regulators opening up domestic processes of notice and comment on

94 David Zaring, ‘International Law by Other Means: the Twilight Existence of International 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.

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Basel standards.100 Whilst the processes leading to the adoption of Basel I were characterised by closed meetings with little or no transparency, the process in relation to ‘Basel II’,101 was more open, ‘in part as a response to financial institution pressure for greater transparency and in part because substantive concerns with the first accord had helped to galvanize a debate over new global rules’.102 Procedural developments included the issuing of a consultative paper and an accessible public website to encourage public debate, although most contributors were large financial institutions, with the role of the wider public being ‘relatively muted’.103 The Basel Committee also made efforts to engage with non-participating states, instituting a process of national and regional central banker consultations among non-members.104

Public-Private Partnerships: World Commission on Dams The World Commission on Dams (WCD), a group of independent experts, was established in 1997 following a meeting of participants from governments, the private sector, international financial institutions, civil society organisations and affected people concerned with the issue of large dams, and supported by the World Bank and the World Conservation Union. Its mandate was to review the development effectiveness of large dams, and develop internationally acceptable criteria, guidelines and standards for the planning, design, construction and operation of dams. The final report, ‘Dams and Development: A New Framework for Decision-Making’, was published in November 2000. It establishes a framework for decision-making based on five core values: equity, sustainability, efficiency, participatory decision-making and accountability. The Report also establishes seven strategic priorities and corresponding policy principles, including the need to gain public acceptance for the building 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 in relation to large dams. A number of provisions are framed in terms of 100

ibid at 17. For details, see Basel Committee on Banking Supervision, ‘Basel II: Revised international capital framework’: http://www.bis.org/publ/bcbsca.htm (last visited 15 January 2010). 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 DecisionMaking (London, Earthscan, 2000). 106 Erik Bluemel, ‘Overcoming NGO Accountability Concerns in International Governance’ (2005) 31 Brooklyn Journal of International Law 139, 163–64. 101

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268 International Governance by Non-State Actors (international) law. Consider, for example, Strategic Priority 1.4 (Gaining Public Acceptance): ‘Decisions on projects affecting indigenous and tribal peoples are guided by their free, prior and informed consent achieved through formal and informal representative bodies.’107 The provision does not reflect a generally accepted international law norm,108 certainly not at the times of its adoption.109 To the extent that the Report frames domestic political debate, imposes procedural requirements for developing large dams, and recognises new rights for indigenous peoples and other communities, it ‘determines’ the relevant actors, and forms one part of the complex web of global governance norms on large dams, the environment and human rights. Klaus Dingwerth reports that ‘Dams and Development’ received a mixed reception, with civil society groups approving the emphasis on the impact of large dams and lack of consultation in the past, whilst industry complained that the Report downplayed the benefits of large dams. Governments from industrialised states welcomed the guidelines, but some in the South felt that they were too strict. The Report has been influential in framing the discourse on large dams: it is widely considered as a new global reference point for thinking and talking about large dams. Even though individual policy recommendations remain contested, the descriptive and analytical part is commonly accepted as the most solid and comprehensive assessment of the social, economic and environmental 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 domestic level, civil society actors articulate arguments against individual dams in terms of ‘alleged non-compliance with WCD recommendations’. The standards are also relied upon by international organisations in the formation of policy, and a number of export credit agencies have included parts of the recommendations of the Report of The World Commission 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 (emphasis added). 108 cf Committee on the Elimination of Racial Discrimination (CERD), ‘General Recommendation XXIII on the Rights of Indigenous Peoples’, (adopted 18 August 1997), reprinted ‘Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (12 May 2004) UN Doc HRI/GEN/1/Rev.7, 215 para 4 (d); and the World Bank Operational Manual, Bank Procedures BP 4.10, ‘Indigenous Peoples’ (January 2005) para 2. 109 See on this point GA Res 61/295 ‘The United Nations Declaration on the Rights of Indigenous Peoples’ (adopted 13 September 2007) art 19. 110 Klaus Dingwerth, ‘Private Transnational Governance and the Developing World: a Comparative Perspective’ (2008) International Studies Quarterly 607, 613 (emphasis in original).

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projects, making it more difficult to obtain credit guarantees for politically contested projects.111 The global normative political and legal framework for the building of large dams was (in part) established by a group of experts chosen after consultations with interested groups, on the basis of expertise and experience, independence, and being representative of the 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-private regimes, global governance activities are increasingly undertaken by private international governance regimes, such as the International Accounting Standards Board (IASB), whose ‘mission is to develop, in the public interest, a single set of high quality, understandable and international financial reporting standards’;112 private credit rating agencies, who provide standards for establishing the creditworthiness of corporations and states; the transnational commercial arbitration regime maintained by the International Chamber of Commerce (ICC), which ‘aims to create a forum for experts to pool ideas and impact new policy on practical issues relating to international arbitration, the settlement of international business disputes and the legal and procedural aspects of arbitration’;113 the International Organization for Standardization, a network of the national standards institutes of 157 countries, which ‘enables a consensus to be reached on solutions that meet both the requirements of business and the broader needs of society’;114 and ICANN, formed in 1998 as a not-for-profit public-benefit corporation to promote competition and develop policy on the internet’s unique identifiers.115 These private international governance regimes have been established by commercial actors pursuing the objectives of economic globalisation. The role of (global) publics and international non-governmental organisations and other civil society actors has traditionally been one of campaigning and complaint, although increasingly it is shifting from the lobbying of national governments and international organisations for law 111

ibid at 614. www.iasb.org/Home.htm (last visited 9 January 2009). 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, ie internet domain names), it is worth observing that it has been subject to US congressional hearings and influence, and is subject to the jurisdiction of the Californian legal code, and courts: Michael Froomkin, ‘[email protected]: Toward a Critical Theory of Cyberspace’ (2003) 116 Harvard Law Review 749 at 846–48. 112 113

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270 International Governance by Non-State Actors reform to the framing of global regulatory standards and attempts to embed those standards in global supply chains. Examples include the Marine Stewardship Council, which seeks to ‘transform the world’s seafood markets to a sustainable basis’;116 the Fair Labor Association, a not-for-profit organisation dedicated to ending sweatshop conditions in factories worldwide;117 the Forest Stewardship Council, which seeks to promote the responsible management of the world’s forests;118 and the Fair Trade Labelling Organization,119 which attempts to improve the position of farmers and workers in the developing world through encouraging consumers and suppliers to make informed moral decisions. Bernstein and Cashore refer to these as ‘non-state market driven’ (NSMD) governance systems. They are ‘deliberative and adaptive governance institutions designed to embed social and environmental norms in the global marketplace that derive authority directly from interested audiences, including those they seek to regulate’. Non-state market driven systems use global supply chains to recognise, track and label products and services from environmentally and socially responsible businesses;120 the objective is to reconfigure the market in these goods, and so consequently to change the attitude and activities of economic actors.121 Given that NSMD systems both promulgate standards of legitimate behaviour and seek to monitor 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 decisionmaking processes of many NSMD systems may indicate the possibilities of a democratic form of international governance by non-state actors. The focus would be on ‘norm generation and community building’, and the inclusion of expert and interested voices in the processes of deliberation leading to the introduction of agreed norms. A key mechanism would be a forum where expert knowledge could be presented, criticised, and justified.123 Decision-making processes would provide forums for exchanges of expert information and the development of best practices. A ‘learning environment’ would be developed in which ‘stakeholders can “build community” that taps into shared understandings of legitimacy among participants’. Understandings of legitimacy would also depend on broader

116

www.msc.org/about-us (last visited 9 January 2009). 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. 117

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understandings of legitimacy in global governance, including fairness: ‘a sense that weaker actors [should] have a reasonable ability to influence outcomes and that mechanisms are in place to ensure, for all actors, a sense of ownership of decisions that affect them’.124

GOVERNANCE BY NON-STATE ACTORS

The case studies illustrate the diverse nature of global regulation. The Security Council is a formally constituted institution whose membership does not extend to all states subject to its political authority; the Basel Committee provides an example of executive coordination by advanced democracies that has developed a global regulatory role; the influence of the Report of the World Commission on Dams suggests that a single ad hoc 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 highlights the possibilities of private (non-governmental) actors bypassing political processes and exercising regulatory functions through global supply chains. The studies highlight the facts that attempts by non-state actors to regulate are often (although not always) framed in terms of law; that non-state actors do not operate with the (sovereign) consent of all states subject to their global law norms; and a concern in relation to the lack of democratic legitimacy for the exercise of international governance functions. Following the Westphalian settlement, the idea of law was divided between state law, which operated in domestic societies, and international law, which operated between states. Both forms of law depended for their validity on an expression of sovereign will. According to the positivist analysis, it is meaningless to refer to an idea of law not validated by an expression of sovereignty. The exercise of sovereign authority may have become more complex, but law ultimately owes its validity to sovereign will. The authority of the ‘laws’ of the UN and European Union is provided by the relevant constitutive treaty. The analysis is problematic, not least because, in many cases, amendments to the powers of international organisations do not require the consent of all states parties,125 and few international organisations rely on the principle 124

ibid at 363. 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 adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.’ Article 109 outlines the procedure. 125

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272 International Governance by Non-State Actors of consensus in the process of international law-making law. According to Hans Kelsen, the application of majority rule or the exercise of legislative authority without the participation of all states is not incompatible with the sovereignty of the state: ‘Only at [the moment of agreement] is concordance of the wills of the contracting States necessary in order to create the duties and rights established by the treaty.’126 From the traditional perspective of sovereignty, the exercise of political authority by a non-state actor is legitimate to the extent it is provided by its express or implied powers,127 following a contractual model of political legitimacy. It is the principle argument for accepting the legislative authority of the UN Security Council by reference to article 103 of the UN Charter. Any analysis of the (democratic) legitimacy for the exercise of political authority by non-state actors by reference to a constitutive agreement is ultimately unconvincing. First, not all non-state actors are formally constituted by states parties in a formal treaty. Some are informal groupings (the Basel Committee on Banking Standards), whilst others ‘self-constitute’ (private governance regimes). Secondly, few international organisations restrict participation to functioning democracies. The most significant global regulators, the UN, World Bank and International Monetary 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 many international organisations and institutions of which it is a member. Increasingly it is accepted that mere membership of an international organisation cannot provide the basis for subjecting the state to all of the regulatory law norms adopted by an organisation. Christian Tomuschat refers to the ‘fictitious’ character of legitimisation by consent by membership of the organisation128 and calls for ‘compensation by a right of participation’: the loss of absolute sovereign rights through membership of a treaty regime requires that the state is party to any negotiations and deliberations on emerging normative commitments.129 Phillip Trimble argues that the accountability of international organisations ‘requires

126 Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ (1944) 53 Yale Law Journal 207, 211. 127 See Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66 [25]: ‘The powers conferred on international organizations are normally 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 to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international 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.

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popular review of decisions that are reached’, and that this means that ‘the people affected by an international decision, or their democratically elected governments, must be able to reject the decision, and they must be able to do so without being punished for their decision.’ What he has in mind is the ‘opt-out’ provisions of international law-making mechanism, such as article V of the International Convention for the Regulation of Whaling130 which is a significant element of democracy and a significant protection of national sovereignty. A cost-free ‘opt-out’ feature of an international regulatory regime could end up destroying that regime, but that result would be better than one destroying democracy.131

Even where formally constituted by international agreement, international organisations and institutions do not remain ‘creatures’ of the multilateral treaty regime.132 Over time, they develop and pursue their own agendas. International organisations are not ‘simply passive servants of states. They are political actors in their own right.’133 On a day-to-day basis, international organisations and institutions operate in a way that is largely removed from the original source of political legitimacy (the consent of states parties) and in accordance with their own priorities and constitutional norms, principles and procedures. Catherine Brölmann refers to the idea of ‘institutional autonomy, or “independent will”’.134 In its 1980 Advisory Opinion on Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, the ICJ concluded that international organisations ‘are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are a party’.135 The judgment affirms that certain international organisations can be regarded as autonomous actors that operate in accordance with their own constitutional norms. The position is confirmed in the Court’s judgment in Legality of the Use by a State of Nuclear Weapons in Armed Conflict: But the constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with 130

(1946) 161 UNTS 72. 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 International 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). 131

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274 International Governance by Non-State Actors a certain autonomy, to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.136

The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations confirms the view that a number of international organisations may be autonomous actors within the international community.137 The preamble recognises that international organisations have the capacity to conclude treaties in accordance with their constitutive instruments, and the possibility and existence of international law agreements between (largely) autonomous non-state actors on the basis of equality.138 In many respects the Convention regards international organisations as political entities analogous to states. Consider, for example, article 27, which provides that a state may not invoke the provisions of its internal law as justification for its failure to perform a treaty obligation, and, likewise, that an international organisation may not invoke the rules of the organisation as justification.139 Article 46 re-enforces the point: internal ‘laws’ (states) and ‘rules’ (international organisations) vitiate consent only in circumstances in 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 emerges from its own internal ‘constitutional’ structures. Where the constitutive instrument is framed in terms of law, the superiority of international law over domestic law (from the perspective of international law) constitutes the order as an autonomous legal regime within the international law system, and, unless provided to the contrary, constitutes the regime as ‘self-contained’. The clearest expression of this can be found in article 103 of the UN Charter: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations 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 International Organizations or between International Organizations (1986) UN Doc A/CONF.129/15 preamble and arts 53 and 64. 138 ibid art 26 (pacta sunt servanda). 139 ibid art 27. 140 ibid art 46.

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under the present Charter shall prevail.’ This is a supremacy clause: the Charter asserts the supremacy of the law of the UN over other international law orders. Similar clauses can also be found in other international law instruments.141 The supremacy of an international law order can also be asserted in the judgments of courts established as part of the international governance system; consider for example the European Court of Justice in NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration: The community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals.142

Once it is accepted that international organisations cannot be regarded as agents of a collective authorising principle (the states parties to the constitutive agreement), the establishment (or emergence) of an autonomous global regulatory actor cannot be justified by reference to the original delegation of authority (with arguments focused the scope of agency) and the accountability of international organisations ‘cannot be understood as a matter of strengthening the incentives of rulemaking agents to implement the plans of an authorizing principal’.143 It is not simply a matter of the citizens of democratic states engaging in a process of opinion-formation at the domestic level with the expectation that the settled opinion will be accurately reflected and acted upon in global settings. There is a need to make sense of the normative regimes emerging in global governance and the relevance of international law and (international) public law concepts for the exercise of (legitimate) authority. The (‘Westphalian’) world of state and international law is supplemented by a plurality of normative assertions by international public authorities, including international organisations and institutions, public-private partnerships and purely private organisation, all of which assert a right to regulate, and in doing so to limit the right of the people of a democratic state to decide politically decidable issues. Whilst reference is made to ideas of global ‘governance’ and ‘regulation’ by non-state actors, 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 any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.’ 142 Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1 (Judgment 5 February 1963). 143 Joshua Cohen and Charles Sabel, ‘Global Democracy?’ (2006) 37 New York University Journal of International Law and Policy 763, 765.

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276 International Governance by Non-State Actors distinction between global governance through law and other forms of normative regulation. The importance of the distinction between law and non-law norms lies in the authority of ‘law’, what HLA Hart refers to as the ‘internal aspect’ of (legal) norms, which requires a ‘critical reflective attitude to certain patterns of behaviour as a common standard’, leading to ‘criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticisms and demands are justified, all of which find their characteristic expression in the normative terminology of “ought”, “must”, and “should”, “right” and “wrong”’.144 Christian Reus-Smit questions why states would choose to incur legal obligations in 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 for compliance.146 Not all attempts at social control in global governance are framed in terms of law, but it is clear is that ‘legalized regimes … operate differently from non-legalized regimes’.147 There are distinctive methods for the interpretation of law norms, which emphasise the importance of a literal understanding of words and phrases, the importance of precedents, and the application of reason and rhetoric in argumentation, the desire for coherence between legal rules (ie for understanding law in the context of a system of law), etc. Absent from much of the analysis in the literature on the legitimate (or otherwise) exercise of political authority in global governance is a concept of (international) law.

144

HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) 57. 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 to international law, which appears ‘less as this rule or that institution than as a placeholder for the vocabularies of justice and goodness, solidarity, responsibility and – faith’: Martti Koskenniemi, ‘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: a Prospectus’ in Eyal Benvenisti and Moshe Hirsch (eds), The Impact of International Law on International Cooperation: Theoretical Perspectives (Cambridge, Cambridge University Press, 2004) 16, 41–43. ‘What distinguishes legalized regimes is their potential for setting in motion a distinctive dynamic built on precedent, in which decisions on a small number of specific 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. The greater independence of judges, wider access of litigants, and greater potential for legal compliance insulates judges, thereby allowing them to develop legal precedent over time’: Robert Keohane, Andrew Moravcsik and Anne-Marie Slaughter, ‘Legalized Dispute Resolution: Interstate and Transnational’ (2000) 54 International Organization 457, 479. 145

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7 A Concept of (International) Law

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HE PREVIOUS CHAPTER demonstrated the different ways in which global regulatory norms may be established. An increase in global regulation does not necessarily mean an increase in international law or increased role for (public international) lawyers, who fulfil a distinctive role in world society. The function of lawyers is defined by reference to the idea of law, and not all regulatory practices that limit the choices available to actors, or determine the scope of self-determination, are framed in terms of law. The objective of this chapter is to develop a concept of law that does not rely on the idea of law as institutionalised norm enforcement (by the institutions of ‘government’), but which can explain the authority of law, including state law, international law, and new forms of global regulatory governance framed in terms of law. The following sections evaluate the important contributions of Niklas Luhmann and Gunther Teubner, before examining Brian Tamanaha’s thesis that law is whatever people identify and treat through their social practices as law. Finding the absence of any idea of authority in the concept of law problematic, the work follows Joseph Raz in outlining an idea of authority as the ability of one actor to change the normative situation of other actors to develop an understanding of law as a system of communications framed in terms of law, ie coded legal/illegal, issued by an authority to subjects.

THE CONCEPT OF (STATE) LAW

The concept of law developed by HLA Hart, which has proved highly influential in the identification of systems of law (and concerns around the ontological status of international law as ‘law’), may provide the basis for evaluating the claims of global regulatory orders to the descriptive terminology of law (leading to new ways of evaluating the exercise of regulatory authority in terms of public law). Law officials act in accordance with a rule of recognition, or basic norm, which provides validity for all norms in the legal order and constitutes the legal order as a single

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278 A Concept of (International) Law system of law.1 The application of the analysis and concept of law developed in relation to state law systems leads to doubts about the status of international law as law (properly so-called). Notwithstanding efforts to suggest that there is a single rule of recognition in international law (pacta sunt servanda or other expression of sovereign will, or that states ought to behave as they have customarily behaved), Hart concludes that the rules of international law do not share a single rule of recognition. In all societies, members may view rules as binding (rules of etiquette, for example) without the need to identify a basic norm from which all other norms owe their validity: ‘Such rules do not form a system but a mere set [of rules].’2 In relation to international law, it is not possible to identify a basic norm or secondary rule of recognition from which all other international law norms derive their validity. That is not to suggest that the rules are not binding, only that it is not meaningful to refer to the idea of international law as a legal system. The norms of international 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 gets accepted as a rule or not; in a system with a basic rule of recognition we can say before a rule is actually made, that it will be valid if it conforms to the requirements 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 of international law, and the rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties.4

Observing the increased use of multilateral treaties, Hart comments that a general recognition that a multilateral treaty can bind third parties would involve the acceptance that such treaties would in fact be legislative enactments and international law would have distinct criteria of validity for its rules. A basic rule of recognition could then be formulated … Perhaps international law is at present in a stage of transition towards acceptance of this and other forms which would bring it nearer the structure to a municipal system.5

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The Concept of (State) Law

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It is in this context that debates around the constitutionalisation of international law become important, in that they emphasise the development of international law norms that subject the sovereign will of states to ‘higher’ forms of international law. The existence of primary norms of obligation is not sufficient to demonstrate the existence of a system of law. In addition to primary rules of obligation, there must be secondary rules of recognition, change and adjudication ‘that specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined’.6 The existence of secondary rules distinguishes legal systems from other systems of control. The secondary rules must be acknowledged by the officials of the legal system: legislators when they introduce laws in accordance with the rules that empower them to do so; courts when they identify and apply legal norms; law experts when they provide advice in accordance with recognised legal norms. The citizen ‘manifests his acceptance largely by acquiescence in the results of these official operations’.7 To make explicit what Hart left implicit: ‘the key to the existence of a legal system is that private citizens and legal officials conventionally act as if the products of certain persons – whom they treat as “legal officials” – are “law”’. Those systems of primary and secondary rules administered by legal officials are ‘legal’ systems. Systems of primary and secondary rules not administered by legal officials ‘may be institutionalized normative systems, but they are not “legal”’.8 Benedict Kingsbury draws on and develops Hart’s analytical concept in relation to the global administrative ‘law’ principles of review, reasongiving and publicity/transparency, with a particular focus on the ideas relating to law as a social practice, the importance of sources of law and the rule of recognition. In relation to the ‘social fact’ conception, one condition for the existence of law is the ‘internal attitudes actually held by leading participants and by those dealing with and critically evaluating them and their practices’. Law further requires agreement on the valid sources of law norms, which in the case of global administrative law are provided by recognised sources of (international and state) law, including treaties, custom, general principles of law and domestic law norms (note the link to ‘Westphalian’ expressions of sovereignty).9 Finally, whilst it is not possible to identify a single rule of recognition

6

ibid at 94. ibid at 61. Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford, Oxford University Press, 2001) 142. 9 Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 European Journal of International Law 23, 29. 7 8

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280 A Concept of (International) Law within global administrative law, it might be possible to identify ‘different rules of recognition within different social-institutional-sectoral groupings in specific practice areas of global administrative law’.10 Kingsbury seeks to extend the analytical concept of law to identify qualities immanent in public law, ie law that frames and regulates public authority (including national, transnational, and international law). Those qualities are the principle of legality, that is the channelling and organising of power to constrain powerful actors;11 the principle of rationality, which requires that decision-makers give reasons for their decisions; the requirement of a relationship of proportionality between means and ends; the rule of law (however defined); and the protection of basic human rights, which is ‘almost intrinsic (or natural) to a modern public legal system’.12 Kingsbury concludes that global administrative law is made by public entities that operate ‘under their own constitutions, adhering to their own public law, and oriented toward publicness as a requirement of law’.13 The idea of a public entity includes, but is not restricted to states; it also includes ‘global public entities’, defined by reference to the relevant entity’s legal and political arrangements, ‘which may derive from national law, inter-state agreement, self-constitution, or delegation by other entities’.14 Both state and non-state actors can be regarded as public law entities, with global administrative law principles applying to all exercises of public authority. There is no requirement that the exercise of public law be linked to an expression of sovereign will. Kingsbury is correct in emphasising the importance of applying an analytical concept of law to global governance. The difficulty is the reliance on a concept developed in the context of the state law system, based (ultimately) on coercive, institutionalised norm enforcement. The relevance of the concept and ideal of state law to international law is not evident, and attempts to apply concepts developed at the level of the state have generally proved unsatisfactory.

AUTOPOIESIS: LAW AS A CLOSED SYSTEM OF COMMUNICATION

In A Sociological Theory of Law, Niklas Luhmann defines norms as ‘counterfactually stabilised behavioural expectations’.15 Social behaviour in a highly complex and contingent world requires reciprocal behavioural 10

ibid at 30. 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). 11

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Autopoiesis: Law as a Closed System of Communication

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expectations structured in terms of the avoidance of disappointments. Increased social complexity ‘presumes a differentiation between cognitive (prepared to learn) and normative expectations, as well as the availability of successful mechanisms for the relief of disappointment’.16 The idea of ‘law’ in social systems is concerned with ‘congruently generalised normative behavioural expectations’.17 Law is not primarily a coercive order, ‘but rather a facilitation of expectation’. In developed societies, the legitimacy of a norm is demonstrated ‘by the supplementary normation of disappointment relief by sanctions or by the successful realisation of expectation’.18 The functional analysis leads to the conclusion that ‘there is law in every society’. As the complexity of society increases there is a greater need for ‘congruently generalised normative behavioural expectations’. The function of law is to facilitate complicated, highly preconditioned action, and it can only achieve this ‘by congruent generalisation of contingent premises of action.’ The idea of law relates to ‘behavioural expectations… It relates to the expectation of other people’s behaviour.’19 Law is defined as the ‘structure of a social system which depends upon the congruent generalisation of normative behavioural expectations’.20 Law is concerned with establishing norms that stabilise behaviour expectations. Its function is to facilitate the complex interactions of actors in society through the establishment of the congruent generalisation of contingent premises of action. Given that law fulfils a necessary function in society it follows that ‘in every meaningfully constituted society[,] [it] must therefore always exist’.21 In complex societies, law is the product of institutionalised processes for the production of normative expectations, but law is not legitimated through the adoption of democratic procedures or reliant on ‘[d]emocratically learning politics’. The ‘learning situation’ of those engaged in political law-making is different from those affected by politics, ‘who have to adapt themselves to a given decision, whether they be happy or disappointed’. It is necessary to introduce arrangements that ‘facilitate the assumption that those who are affected by decisions have learned; that is, that they have taken over the decision as premises of their future expectation and behaviour’. The institutional aspect of legitimacy is provided by ‘the assumption of acceptance[:] those decisions are legitimate where one can assume that any third parties expect normatively that the directly affected persons cognitively prepare themselves for what the

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ibid ibid ibid ibid ibid ibid

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282 A Concept of (International) Law decision-makers communicate as normative expectations’.22 The legitimacy of law norms is provided by the acceptance of those subject to the law that they will organise future behaviour in accordance with legal norms in the expectation that other actors will do the same. Law serves a necessary function in complex societies, enabling subjects to organise their behaviour in accordance with normative expectations in the (reasonable) assumption that others will do the same. Law is created in ‘local political systems and directed by their decision-making procedures’. Law serves to facilitate complicated, highly preconditioned action in domestic societies. The analysis cannot however be applied to the processes of global governance, with Luhmann concluding that ‘a situation is developing in which those problems which can only be solved at the level of global society… can therefore no longer be resolved in the form of law’.23 The increasing specialisation and functional differentiation of the world social system results in a situation in which politics is incapable of ‘thematising the worldwide consequential problems of functional differentiation, since it is itself differentiated and functionally specialised’. In the absence of a global state, it is not possible for the global society to develop the characteristics of a social body, or ‘collectivity’, capable of action at the international level.24 The ‘stabilising [of] highly contingent expectations’ occurs in ‘consolidated political systems’. The absence of the possibility of a global state precludes the possibility of ‘legal-political norming’.25 The ‘political incapacity’ of international law-making in global society is the problem, not the absence of politics or democracy.26 Luhmann questions whether the idea of law requires some form of re-evaluation as ‘global society consolidates itself and gives primacy to the cognitive style of human contact’. Law might be understood as a learning process: global ‘law’ regulations would not operate as a form of a ‘supra-positive law’, but would establish ‘stimuli for learning, perhaps exercising pressures toward learning and drawing up a certain nonarbitrariness of problem solutions’.27 The meaning of law would need to change ‘toward in-built learning’. The previous understanding that operated on the basis of an either/or validity would not be appropriate ‘for detecting the sublime shifts in the way in which law fulfils its function and is experienced as meaningful’.28 The new concept of law would take the form of

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283

normed models of behaviour which have been drafted as solutions to recognised problems, are legislated upon, tried and changed according to the rules of experience. Normativity would then only have the function of securing the constancy of expectation as long and is as far as it appears meaningful.

Luhmann concludes that ‘whether law can therefore be adapted to the constitution and dynamics of a unified societal system which encompasses the globe is an open question’.29 Following Humberto Matuana, Luhmann refers to the idea of autopoietic systems: ‘[S]elf-referential systems which themselves produce every type of unity that they require and employ[;] they themselves produce and delimit the operative unity of their elements.’30 The legal system is a ‘normatively closed system’; it produces its own elements ‘as legally relevant units by the fact that it lends normative quality precisely with the aid of such elements’. Elements within the legal system are given a ‘special status that is solely relevant for the legal system on the basis of the normative context in which they function as elements upon which others depend’.31 The validity of a legal order is ‘nothing other than the self-reference of law, the continuity of reproduction from case to case with a view to the continuity of reproduction from case to case’.32 In Law as a Social System, Luhmann develops an argument that law is a system of communications identified through its use of the binary coding legal/ illegal. From the perspective of law, impugned conduct is either ‘legal’ or illegal’ or some equivalent (judgmental) terminology, as opposed, for example, to ‘unwise’ or ‘not in accordance with best practice’. The central insight of autopoiesis is that law, politics, and other disciplines, such as science, economics, etc, are closed systems of communications that construct their own boundaries, in the case of law, through the operation of the binary distinctions between norms and facts and legal/illegal.33 Whilst law is a sub-system of the social system (society is the environment that makes the ‘self-production of law possible and, moreover,

29

ibid at 264. 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 the theory developed by Habermas in Between Facts and Norms, in that ‘the procedures of discourse can be justified only by discourse whose procedures in turn have to be justified by discourse. And in order to avoid infinite regression or circularity, Habermas resorts to communicative transcendentalism’: Gunther Teubner, ‘How the Law Thinks: Toward a Constructivist Epistemology of Law’ (1989) 23 Law and Society Review 727, 734 (references omitted). 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 of discourse that we have to avoid at all costs, but is its very reality that we cannot avoid at all’: ibid at 736. 30

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284 A Concept of (International) Law tolerates it’), law is properly regarded as an ‘autopoietic, selfdistinguishing system… [that] produces by itself all the distinctions and concepts which it uses’.34 This is not to suggest that law is immune from developments and insights in science and political thought and action. Law remains open to, and influenced by, other forms of social communications, with legal constructs exposed to a test of ‘social coherence’ with the constructs of other discourses in society, particularly those of science.35 The positivist analysis of the validity of law norms focuses on the sources of law, but fails to explain why certain sources should be regarded as authoritative. Luhmann observes that once a system becomes self-referentially closed, ‘[o]ne no longer asks: what is valid law based on the corresponding sources of law? Instead the question is now: how does the system do what it does?’36 The focus of analytical enquiry is 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 of society) and a binary coding of the system through application of a positive value (‘legal’) and negative value (‘illegal’). If law officials want to know whether a communication belongs to the legal system, they must 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 a system of communications framed in terms of law; the autonomy of a legal system is a consequence of its operative closure.38 A legal system is identified from ‘second-order observations’ of the application of the binary distinction in repeat performances of communication that reference the communicative operations of law, ie second-order observations attest to the operations of the binary distinction framed in terms of law. Ad hoc invocations of legal terminology are insufficient to demonstrate the existence of a system of law, only if the second-order observations ‘refer recursively to each other (and can pretend that this has always been the case) can the legal system tighten and become operatively closed’.39 The function of law in society is the stabilising of normative expectations in the face of an unorganised growth of normative expectations (conventions, customs, morals, etc), and the selection of those normative expectations that are worth protecting. The existence of a legal order

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285

allows actors to rely on an expectation that certain causes of action will be followed (or not followed) and organise their affairs accordingly. The function 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 of implementation because otherwise one would resign oneself to accepting the facts and learn from them.’41 Formal dispute resolution bodies are particularly important in allowing for the operative closure of the legal system, which must provide ‘sufficiently reliable consistency’ in its decision-making in order to function as ‘unity’.42 Gunther Teubner observes 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 rulemaking. Autonomous law (with or without a state) only exists when institutions have been established which systematically assess all first order observations that use the code legal/illegal by means of second order observations on the basis of the code of law.43

The possibility of formal dispute resolution allows for the development of legal arguments and determination of the content of law norms that other actors can rely on to structure their affairs. On this understanding, a global governance regime would be regarded as a system of law only where a form of dispute resolution existed, and ‘judgments’ published in an accessible public space (ie the internet), to be referred to in other disputes.44 This would guarantee legal certainty, by treating like cases alike, and enable the development of a ‘seamless web’ of law, whereby each decision ‘has to expressly integrate itself into the continuum of other decisions’.45 In the context of the new lex mercatoria, Calliess and Renner observe that instances of adjudication can be regarded ‘as performative speech acts, that literally “talk into existence” lex mercatoria’. They gain their ‘performative quality only by the “linkage of episodes” that especially the doctrine of precedent provides for’. Given the inchoate practice of precedent and stare decisis in commercial arbitration and absence of

40

ibid at 152. 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), Regime Interaction in International Law: Theoretical and Practical Challenges (SSRN) 10. 44 Gralf-Peter Calliess and Moritz Renner, ‘From Soft Law to Hard Code: the Juridification 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 Juris 260. 45 ibid at 23. 41

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286 A Concept of (International) Law institutionalised court hierarchy, however, it is difficult to conclude that an autonomous legal system of lex mercatoria has emerged.46 In Law as a Social System, Luhmann is more open to the possibility of the ‘legal-political norming’ of global society, concluding that a recursive network of communications does exist.47 There is a ‘worldwide functional system, in which one can distinguish legal issues from all other issues’. There is no doubt that the global society has a legal order, even in the absence of centralised legislation and decision-making.48 A notable development is the attention paid to violations of human rights, with global public debate around human suffering framed in terms of international human rights norms with concern focused on ‘particularly severe’ violations of human rights (defined by reference to the idea of human dignity), involving officially sanctioned disappearances, deportations, expulsions, killings, arrests and torture.49

GLOBAL BUKOWINA

Teubner follows Luhmann in regarding law as an autonomous epistemic subject that constructs a social reality of its own.50 All social discourses are ‘autopoietic systems [that] recursively produce their own elements from the network of their elements’. They are founded on ‘selfreferentiality’, finding justification in their own circularity.51 This is a radicalised version of the social construction of reality, given that ‘[s]ocial autopoiesis is exclusively based on communication’.52 Law ‘creates worlds of meaning’, constructs its own sense of reality, and defines normative expectations: it is ‘communication and nothing but communication’.53 The world of law is not populated by actual persons, but by characters — plaintiffs, defendants, judges, legislators, parties to a contract, corporations, the state, etc — that are ‘an internal invention of the legal process’. ‘[T]he “persons” the law as a social process deals with are not real flesh-and-blood people[.] They are mere constructs, semantic artifacts produced by the legal discourse itself.’54 The autonomy of law results from its separateness from other social discourses, its ability to construct legal structures and norms, and construct realities of its own 46 47 48 49 50 51 52 53 54

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Global Bukowina 287 distinct from other social disciplines, such as science and politics;55 although law remains open to and influenced by these other social discourses, notably those of science.56 In a subsequent article, Teubner and Fischer-Lescano develop the idea of law as an autonomous epistemic subject in the context of polycentric globalisation, which has resulted from a shift in the locus of law-making away from the territorial state and fact that global regulation has fragmented on sectoral grounds. Legal regimes have emerged in particular sectors, or ‘social spheres’, such as markets, science, culture, technology, health, the military, transport, tourism, and sport, as professional communities juridify their specialised and technical norms in legal regimes, ‘each of whose current developmental logic has today carved out an autonomous global system’. Through their own operative closure, these functional systems create a space within which they can operate autonomously, as long as they are tolerated by the wider social sphere, in accordance with ‘their own rationality without regard to other social systems or, indeed, regard for their natural or human environment’.57 A situation of global legal pluralism is identified, in which the ‘national differentiation’ of the state law system is ‘overlain by sectoral fragmentation’.58 The systems of state and international law are complemented by autonomous law orders that emerge from the sectoral interests in world society: lex mercatoria, lex digitalis, lex sportiva, lex constructionis, etc. International organisations and other regulatory regimes establish themselves as autonomous legal orders through the generation of highly specialised primary norms and (secondary) norms on law-making, lawrecognition and application of legal sanctions.59 Law is no longer defined exclusively 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 the identification of global law norms, the centre shifts from legislatures to courts, with political legislation, the structural coupling of law with politics, ‘[losing] its centrality as the top of the hierarchy, it becomes peripheral, but [retaining] the status of norm production internal to the legal system’.60

55

ibid at 742. 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 International Law 999, 1006. 58 ibid at 1008. 59 ibid at 1015. 60 Gunther Teubner, ‘Breaking Frames: the Global Interplay of Legal and Social Systems’ (1997) 45 American Journal of Constitutional Law 149, 158. 56

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288 A Concept of (International) Law Teubner’s argument is that ‘global law’ develops outside of the political structures provided by states and international organisations: ‘The basic device is contract, and the paradigm is lex mercatoria.’61 Boundaries are no longer territorial, but consist of invisible markets and professional communities that transcend territorial borders; the sources of global law are self-organising processes of structural coupling of law with ongoing globalised processes of a highly specialised and technical nature. Francis Snyder acknowledges that the analysis makes a number of significant contributions to understanding the idea of global law and legal pluralism: there are sources of norms other than states and international organisations; norms may be aggregated in the form of a system, and there is a plurality of such systems; and these soft law norms may have practical effects. The problem, however, is the focus on contract, and the new lex mercatoria. Contract is only one source of law, and an exclusive focus on non-state actors reveals only part of the picture.62 There is an insufficient focus on political institutions. The idea of global legal pluralism should be taken to refer to a variety of ‘institutions, norms, and dispute resolution processes located and produced at different structured sites around the world’. States and international organisations, the United Nations, European Union, World Trade Organization, etc, continue to play an important role in the development of global law, which is often expressed in terms of ‘hard’ international law, and not ‘soft law’ norms.63 The sites for the production of global law include both marketbased sites, generated by economic actors as part of economic processes, and polity-based sites, those which ‘form a part of established political structures’, including international organisations constituted by agreements between governments. The various sites differ in their institutional structures, in their reliance on case law, in the binding force of norms and decisions, ‘in other words, in respect of those characteristics which are often associated with law’.64 The system of global law is comprised of multiple sites for the production, implementation and sanctioning of global law norms, and ‘even when viewed very broadly, they do not make up a legal system’.65

61 Francis Snyder, ‘Governing Economic Globalisation: Global Legal Pluralism and European Law’ (1999) 5 European Law Journal 334, 340 (references omitted). 62 ibid at 341. 63 ibid at 342. 64 ibid at 372. 65 ibid at 374.

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The Fragmentation of International Law

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THE FRAGMENTATION OF INTERNATIONAL LAW

The functional differentiation produced by globalisation results in the regulatory activities of the state being supplemented by the norms adopted by various international governance regimes, each of which operates in accordance with its own internal logic. It is for this reason that international lawyers have been unable to reconcile conflicts between the international law norms of the various sectoral regimes, between, for example, trade and human rights, or trade and the environment. Each of the sectoral regimes asserts a claim to hegemony in the regulation of one aspect of global society, legislating in accordance with its own value systems: the function of the international trade system is to promote trade, the function of the international human rights system to promote human rights, etc. International lawyers deal with the proliferation of specialist functional regimes under the heading ‘fragmentation’, although the metaphor is problematic, as it assumes a prior unity of the international system. International law is said to have fragmented on sectoral grounds, with specialist regimes emerging. The issue has been the subject of a major study by the International Law Commission, under the chairmanship of Martti Koskenniemi, which concluded that the fragmentation of the ‘international social world’ obtains legal significance when ‘accompanied by the emergence of specialized and (relatively) autonomous rules or rule-complexes, legal institutions and spheres of legal practice’.66 Global regulation is the result of ‘technically specialized cooperation networks with a global scope’, in areas such as trade, the environment, human rights, diplomacy, crime prevention and security, and the rights of indigenous peoples,67 with each of these cooperation networks developing their own rules and rule-systems.68 The developments should not been be regarded as ‘legal-technical “mistakes”’. 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 specialist regimes to deal with the legal regulation of a particular subject matter, with each regime reflecting the differing interests of the relevant actors and introducing global law norms in light of the object and purpose of the particular regime. Each regime will have its own ‘experts and ethos,

66 Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission’, finalised by Martti Koskenniemi (13 April 2006) UN Doc A/CN.4/L.682 para 8 67 ibid at para 481. 68 ibid at para 482. 69 ibid at para 16.

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290 A Concept of (International) Law priorities and preferences’, and its own structural bias, as each regime is ‘institutionally “programmed” to prioritize particular concerns over others’.70 Fragmentation is not itself a problem. Difficulties arise where the (international law) norms of the fragmented regimes conflict, given the absence of a global constitutional structure. Fischer-Lescano and Teubner conclude that conflicts between autonomous legal systems cannot (by definition) be resolved by reference to legal norms: ‘law can only, at the very best, offer a kind of damage limitation. Legal instruments cannot overcome contradictions between different social rationalities.’71 The only possibility for resolving political conflicts is the explicit politicisation of legal norm collisions through power mechanisms, negotiations between relevant collective actors, public debate and collective decisions. It may be the case that there are legal principles that are common to all systems of (international) law, but this cannot be assumed. Norms of jus cogens may not necessarily form part of autonomous private governance regimes, such as the new lex mercatoria.72 We are left with a network logic, the idea, or ‘operative fiction’, that ‘networks linkages exist between these decentralized reflections in the sense that nodes observe each other closely’. Each autonomous legal order can ‘build on the assumption of common reference points [around which they can] orient their own rule-making’,73 and in doing so ‘establish their own grammars for their version of a global ius non dispositivum’.74 Autonomous legal systems are defined by reference to a rule of recognition, or basic norm, that defines the scope and validity of law norms, but no system of law can operate in practice without reference to the existence of other systems of law. Fragmentation is problematic in terms of the coherence and practice of international law. The Report of the International Law Commission on Fragmentation does not outline any relationships of priority between the different rule-systems that have emerged in the global law order, concluding that relationships of priority cannot be achieved by any process of legal reasoning: the relationships ‘should reflect the (political) preferences of international actors, above all States’. New international law regimes ‘emerge as responses to new preferences, and sometimes out of conscious effort to deviate from preferences as they existed under old regimes. They require a legislative, not a legal-technical response.’75 The

70 71 72 73 74 75

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shift from a world fragmented into sovereign states to a world fragmented into sectoral regimes may not, however, require a fundamental transformation of public international law. In both instances, the concern is to ensure coordination and cooperation between the ‘(autonomous) rule-complexes and institutions’ of the respective legal orders.76 The report concludes that self-contained (autonomous) regimes are in fact part of the international law order: there are no legal regimes outside general international law. Whilst regimes on trade, the environment and human rights ‘have special rules for rule-creation, rule-application and change[,] when the rules run out, or regimes fail, then the institutions always refer back to the general law that appears to constitute the frame within which they exist’.77 The function of international law is to structure the relations of autonomous political entries (states), in accordance with sovereign will. General and customary international law provides the basic framework for inter-state cooperation, but this does not preclude the development of specialist norms (lex specialis), or the setting aside of generally applicable norms. Most international law is dispositive: ‘rules of international law can, by agreement, be derogated from in particular cases or as between particular parties’.78 Non-dispositive norms, for example, norms of jus cogens, cannot be set aside. The report concludes that the basic professional tool-box of the international lawyer, the techniques of lex specialis and lex posterior, the superior position given to peremptory norms and recognition that there are obligations owed to the international community as a whole (obligations erga omnes), provide the mechanisms by which problems of conflict and fragmentation can be addressed.79 A self-contained regime may not deviate from a law benefiting third parties, including individuals and non-state entities, from obligations having erga omnes character, or treaties that have a public law nature or which are constituent instruments of international organisations.80 There is a system of international law and the resolution of conflicting legal rights and obligations that result from the normative assertions of different rule-systems is one that the professional lawyer is able to undertake. The world of public international law may have

76

ibid at para 487. Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) Modern Law Review 1, 17. Simma and Pulkowski conclude that international law, whilst not constituting a comprehensive and organised legal order, can be regarded as a system of law that recognises certain informal hierarchies, of which the most important ‘is the concept of general international law, in which all “special” law is embedded’: Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International 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. 77

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292 A Concept of (International) Law become more complex and less coherent, but the professional requirement remains the same: to identify what states have willed. The focus of the Report of the International Law Commission on Fragmentation is on the fragmentation of public international law and emergence of conflicting regimes in areas such as trade and environment, trade and human rights, etc. The report does not address private governance regimes such as the new lex mercatoria, which is the focus of Teubner’s analysis. It observes, however, that ‘new types of “global law” might be emerging outside the scope of traditional, State-centric international law’.81 That being said, the Vienna Convention on the Law of Treaties and international law generally might be used ‘so as to channel and control these patterns of informal, often private interest-drawn types of regulation as well’.82 As with the specialist regimes of international law, techniques of lex specialis, lex posterior, superior norms (jus cogens) and obligations erga omnes might be applied, and could ‘be used so as to give expression to concerns (e.g. economic development, human rights, environmental 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 their legitimacy (if not their validity) from the system of public international law, 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 Fragmentation concludes that sectoral regimes form one part of the international law order, and are subject to the principles that structure and regulate international law norms. Teubner disagrees: autonomous ‘self-contained’ regimes cannot, by definition, be subject to another law order (or they would not be autonomous). There is no reason to conclude that the tests of political legitimacy that applied to state and international law would apply to new forms of international governance by ‘self-contained’ regimes. An autonomous legal system is self-regulating, developing its own idea of political legitimacy from the internal logic of the regime.84 81

ibid at para 490 (emphasis added). 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, ‘The legitimacy of International Law and the Role of the State’ (2004) 25 Michigan Journal of International Law 1047, 1054. 82

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Teubner recognises certain problematic consequences with the analysis when he asks whether the shift away from political law-making amounts to ‘a grandiose de-legitimation of law?’85 We are, he concludes, ‘provoked to look for new forms of democratic legitimation of private government that would bring economic, technical and professional action under public scrutiny and control.’ The development of global law without the state requires ‘an expansion of constitutionalism into private law production which would take into account that “private” governments are “public” governments.’86 Autonomous legal orders are constitutional regimes, organized in accordance with their own (secondary) ‘constitutional’ rules for the production and sanctioning of law norms (laws about law-making). Fischer-Lescano and Teubner conclude that ‘regime collisions’, i.e. conflicts between regimes, ‘are lent a final increased intensity by virtue of their constitutional anchoring.’87 Conflicts of law norms represent conflicts between legal regimes, as expressions of the ‘fundamental conflicts between organizational principles of social systems.’88 The self-contained regimes of global governance are not simply legal regimes, but also ‘auto-constitutional regimes.’ The idea of a constitution outside of the state is applied where there is an explicit constitutional discourse and constitutional self-consciousness; a claim to foundational legal authority; the delineation of a sphere of competences; the existence of an organ internal to the polity with interpretative autonomy as regards the meaning and the scope of the competences; the existence of an institutional structure to govern the polity; rights and obligations of citizenship, understood in a broad sense; and some mechanism to ensure the representation of the interests and perspectives of citizens in the polity.89 The idea of a polity is not restricted to the idea of institutionalised politics, it can also be applied to other areas of social life, and it is possible to refer, for example, to the constitutionalisation of economic regimes, the academic system, and the digital regimes of the internet. Norm-generating regimes become constitutional regimes when they emerge as political constitutions, ‘understood as structural coupling of the reflexive mechanisms of law with those of politics’. The characteristics of an autoconstitutional regime is the linkage between the reflexive processes of law with the reflexive processes of politics; they are defined ‘by their duplication of reflexivity’.90

85 86 87 88 89 90

Teubner (n 60) at 158. ibid at 159 (emphasis added). Fischer-Lescano and Teubner (n 57) at 1014. ibid at 1024. ibid at 1015. ibid at 1016.

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294 A Concept of (International) Law The analysis draws on the influential account provided by Neil Walker, who identifies a ‘revised concept of constitutionalism’ that depends on the recognition of six factors: 1. 2. 3.

The need to accept the continued relevance of the state. The possibility of constitutional discourses in non-state sites. The requirement of historical continuity: constitutional discourses must remain tied to the original ideas of a constitution. The requirement of discursive continuity: constitutional debates reflect a particular discourse with its own history.91 The requirement of inclusive normative coherence: discourses around constitutionalism should be as inclusive as possible, consistent with the minimal standards of legitimate constitutional discourse.92 The requirement of ‘external coherence’: if constitutionalism is a form of practical reasoning, it must have something relevant to say to those who are sceptical about its claims to be relevant in understanding the allocation and exercise of political authority in the postWestphalian order.93

4. 5.

6.

The context for the emergence of the idea of the modern constitution was provided by the mutual articulation of law and politics in the sovereign state. Politics could not be conceived without a ‘constitutive legal setting and framework. Yet on the other hand, constitutional law always presupposed some prior political setting.’94 Constitutional law developed within the Westphalian system of state law, with the idea of a polity or political community ‘simply that of a site that has the twin attributes of a plausible claim to authority (the political dimension) and a sense of identity with that site on the part of a particular population (the community dimension)’. The idea ‘is not bound to or exhausted by the idea of the modern nation state’. It is possible to apply discourses of constitutionalism to sites which are not ‘polity bound’.95 In order for this to occur, the following are required. First, the emergence of ‘constitutional selfconsciousness’ on the part of those associated with the polity, and claim to foundational legal authority, ie to be recognised as an autonomous law-making authority. Secondly, the delimitation of a sphere of competence or jurisdiction, a claim to interpretive autonomy, and the establishment 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 93 94 95 96

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335. 336. 340 (emphasis in original). 341 (emphasis in original). 342.

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societal criteria, an idea of association with the polity (‘citizenship’, in the nomenclature of the state) and the introduction of procedures for giving ‘voice’ to members, ‘democratic or otherwise’.97 The idea of constitutionalism remains linked to the ‘core governance values’ of democracy, accountability, equality, separation of powers, rule of law and fundamental rights that (de-)limit the scope for legitimate constitutional discourses.98 Autonomous systems of law are established in accordance with a rule of recognition, or basic norm, that constitutes and provides validity for the legal order (according to law officials within the legal order), in accordance with a constitution (the rules about rule-making). Jürgen Habermas agrees that the state in its modern form is not a necessary precondition for a constitutional order: supranational communities such as the United Nations or European Union do not have a monopoly on the legitimate use of force and lack the modern administrative features of government that provide the necessary backing for the rule of law, ‘[y]et they affirm the primacy of supranational law over national legal orders’.99 The application of constitutional terminology to international organisations is increasingly common in the literature, particularly in relation to the World Trade Organization.100 Deborah Cass argues that the constitutionalisation of the World Trade Organization describes a process of change by which the formal arrangements are constituted and the value of liberal constitutionalism embedded. A constitution is the formal arrangement of government; constitutionalism, the values associated with liberal constitutions, rule of law, protection of rights, etc.101 The process of constitutionalisation depends on six core elements. First, constraints on social, economic and political behaviour in accordance with the values of the political community; the legal order must deal with the problem of social order by ‘pressuring, guiding, controlling or changing behaviour of agents with decision-making capacities’. Secondly, a change in the recognised Grundnorm, ie the emergence of a new rule of recognition, or basic norm, that provides unity and coherence to the rules of the new legal order, and establishes the criteria by which to

97

ibid at 343. 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 International Trade Requires a Common Conception of Rule of Law and Justice’ (2007) 10 Journal of 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 University Press, 2005) 28. 98

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296 A Concept of (International) Law establish the validity of norms within the legal system.102 Thirdly, the existence of a community that can authorise the constitutional order; it is the demos, the public subject to the law norms, that provides for the possibility of establishing democratic legitimacy for the law order.103 The fourth element is the practice of deliberation: in order to be constitutionalised, the legal order must include processes of deliberation to facilitate dialogue about the values, practices and procedures of the legal order.104 Fifthly, there must be a realignment of relations between states and the constitutional entity.105 The sixth element is substantive legitimacy, which is required for the legal order to be accepted as authoritative by a community:106 legitimacy, ‘however defined, measured, or justified, is a critical element in the constitutionalization process’.107

THE IDEA OF LAW

Brian Tamanaha observes that the idea of law as a system of communications marked by the binary code legal/illegal (Luhmann/Teubner), provides ‘a relatively clear criterion for separating the legal from non-legal’. The definition includes, however, many issues that most people would not consider to be ‘law’, because it delimits law in terms of how social actors identify law: law is ‘whatever social actors themselves discuss in legal terms’. Further, in characterising law in terms of communication, the concept ‘loses touch with the material power and effects of law… One may agree that sanction need not be the touchstone of law without going to the opposite extreme of banishing it from law.’108 The functionalist approach of Luhmann and Teubner is one of two dominant approaches to developing an analytical concept of law. The other characterises law in terms of institutionalised norm enforcement. In the identification of a system of law, HLA Hart argues that in addition to primary rules of obligation, there must be secondary rules of recognition, change and adjudication ‘that specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined’.109 Secondary rules must be acknowledged by the officials of the legal system. Tamanaha accepts that 102 103 104 105 106 107 108 109

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the idea of law as an institutionalised system involving a union of primary and secondary rules is illuminating, but confines it to state law. Both the functionalist approach (Luhmann/Teubner) and concept of law as institutionalised norm enforcement (Hart) ‘were derived from by abstracting the core features of state law’.110 Both assume that there is a single set of criteria that can be used to define law (‘generate social order’, ‘institutionalized norm enforcement’).111 The problem that faces legal pluralists when attempting to rely on the concepts is that the functional criterion cannot distinguish law norms from other norms that function to generate social order (language, customs, morals, etc), whilst the second criterion cannot distinguish other forms of institutionalised norm enforcement (such as companies and sports leagues).112 The problem originates in the conceiving of law in terms of some function-based abstraction: ‘Law is institutionalized norm enforcement’; ‘Law is a mechanism for maintaining social order’; etc. It assumes some essentialist definition of law that can be captured in a formulaic description; each includes state law within the definition, because state law ‘served as the model for most theories when formulating their abstract concept of law’.113 The resulting definition proves problematic, however, when applied to other systems of law and normative orders, proving to be either too broad or too narrow, including orders that few would regard as law, and/or excluding orders generally accepted as ‘law’ (cf arguments around the status of international law as ‘law’). Tamanaha concludes that ‘[w]hat law is and what law does cannot be captured in any single concept, or by a single definition’. Law is whatever we attach the label law to, and we have attached it, inter alia, to state law, 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 phenomenon. Law has no essence.114 ‘Law is whatever people identify and treat through their social practices as “law” (or recht, or droit, etc.).’ The distinctive content of the manifestations of law are determined by the social actors who give rise to them, and ‘not by theorists legislating for others based upon an abstract conception of the essential requirements of a singular phenomenon they designate as law’.115 Law is a social practice, an activity that contains aspects of meaning and behaviour: ‘[t]o enter a practice is to accept the authority of those standards and the inadequacy

110 111 112 113 114 115

Tamanaha (n 8) at 177. ibid at 178. ibid at 180. ibid at 192. ibid at 193. ibid at 194 (emphasis in original).

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298 A Concept of (International) Law of my own performance as judged by them’.116 Reference to the idea of a social practice ensures that there is ‘some minimal degree of continuous social presence’. Transient or idiosyncratic identifications of law do not amount to a social practice. There must be ‘sufficient people with sufficient conviction [to] consider something to be “law”, and act pursuant 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 of institutions, ie ‘[c]o-ordinated complexes of human interaction’, often supported by a material base such as office buildings.118 Law exists whenever there are social practices giving rise to ‘law’.119 It is whatever people identify and treat through their social practices as ‘law’. The existence of a system of law does not depend on the existence and participation of legal officials: ‘any members of a given group can identify what law is, as long as it constitutes a conventional practice.’120 If no group within 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 ineffective, has no institutions or enforcement, involves no union of primary and secondary rules, and even if there is no normative element’.122 Tamanaha’s understanding of law excludes any requirement of normativity: ‘a wicked or repressive or rapacious legal regime’, obeyed solely out of fear, ‘counts as a legal system if people subject to it identify and treat it as law in their social practices’.123 In the absence of an analytical concept of law, it becomes difficult, however, as Martti Koskenniemi observes, ‘to distinguish between the gunman and the policeman, the regime of corruption from the regime of contract’.124 What, for example, do we make of evidence that Al Qaeda and other terrorist organisations operate in accordance with their own system of ‘law’?125 It seems

116 Brian Tamanaha, ‘A Non-Essentialist Version of Legal Pluralism’ (2000) 27 Journal of Law 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 of Non-State Law: the State, Choice of Law, and the Challenge from Global Legal Pluralism’ (2005) 51 Wayne Law Review 1209, 1253.

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The Idea of Law

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contrary to our intuitions to conclude that the ability to ‘command’ in terms of framing goals, directives and policies, accords the right to command.126 Tamanaha concludes that international law ‘is clearly a kind of law’.127 By contrast, the emergent body of international human rights and role of non-state actors in putting pressure on governments and corporations to eliminate human rights abuses are not presently aspects of international law, ‘though they may later be incorporated as such, and thereby acquire the status of law’.128 (The reason for this conclusion and distinction between ‘international law’ and ‘international human rights law’ is not clear.) The analysis is important in removing the concept of law from its association 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 transnational communities of bankers and lawyers, etc. Law is whatever we attach the label ‘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 treat through their social practices as ‘law’. The over inclusive nature of the definition results in a failure to exclude normative systems that we should not regard as law and include normative orders where there is little value in describing them as ‘law’, simply because the participants regard their social practices as law. There is little to be gained, ‘either analytically or instrumentally, by appending the label “law” to the informal, unwritten normative relations within the family’.129 Yet Tamanaha accepts that, according to his definition, the normative relations within the family can be regarded as law, ‘if the people within that social arena conventionally characterize then in terms of “law”’.130 But surely we are missing the point about analogy: the use of the term ‘law’ implies the exercise and legitimation of authority. Individuals who make reference to ‘law’ in their social relations are often aware of the authority of state law, where justification is required for a refusal to comply with posited law norms. Reference to ‘law’ implies a claim to authority. Whilst a 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 Daniele Archibugi et al, Re-Imagining Political Community: Studies in Cosmopolitan Democracy (Stanford, 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.

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300 A Concept of (International) Law peoples, etc, Tamanaha accepts that the only elements common to all of these versions ‘are that they in some sense involve rules or principles and all make a claim to authority’.131 Law is a social practice that involves the exercise of authority. It is not sufficient that individuals refer to the idea of 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 a legal system) must involve the exercise (and acceptance) of authority. Law is a social practice concerned with the assertion of authority, where compliance is expected or assumed.

THE IDEA OF AUTHORITY

The idea and exercise of authority can be understood in a number of ways. The most influential account of the justification for the exercise of authority is provided by Joseph Raz, who makes a useful distinction between ‘orders’ and ‘advice’. The primary intention of advice is to influence; advice is ‘merely another reason to be added to the balance by which the addressee will determine what to do’.132 In contrast, a person who gives an order ‘intends the addressee to take his order as a reason on which to act regardless of whatever other conflicting reasons exist’.133 A person or other actor with a problem, ie in a position of uncertainty, may turn to an expert or expert body (an ‘authority’) for advice, and may decide to follow the advice where the reasons adduced ‘tip the balance’ of reasons in favour of the outcome suggested. A command, on the other hand, ‘is not merely trying to change the balance by adding a reason for the action’. It is expected that ‘one is to follow the authority regardless of one’s view of the merits of the case’,134 and ‘without even attempting to form 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 peremptory reason is a reason ‘not to deliberate on the underlying merits of complying with 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).

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Joseph Raz notes that RP Wolff’s oft quoted definition that ‘authority is the 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 more complex and problematic than that of authority’.139 Instead, Raz follows John Lucas: ‘A man, or body of men, has authority it if follows from his saying “Let X happen, that X ought to happen”.’140 Authority is the ability to change the normative situation of others.141 Authority is relational and dyadic. The idea of authority involves the issuing of directives, framed in terms of norms, standards, principles, doctrines, etc to a subject.142 A directive can be authoritatively binding only if it is a view about how its subjects ought to behave. It must be possible to identify the content of the directive without relying on reasons or considerations on which the directive purports to adjudicate.143 The directive must ‘represent the judgment of the alleged authority on the reasons which apply to its subjects, or at least it must be presented as the authority’s judgment’.144 Raz argues that the normal way to establish that a person has authority over another (the ‘normal justification thesis’ (NJT)) involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.145

The thesis is concerned with establishing that a person has authority, not that they are entitled to authority. On this understanding, legitimate authority is only likely to be established where the presumed authority already 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 whatever they do – confer powers or rights, grant permissions or immunities, change status, create and terminate legal persons (corporations and their like), regulate the relations between organs of legal persons, and much else – they do by imposing duties, actual or conditional’: 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.

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302 A Concept of (International) Law subjects: ‘There is a strong case for holding that no political authority can be legitimate unless it is also a de facto authority.’146 The exercise of de facto authority is not, however, sufficient to demonstrate that an actor enjoys legitimate authority. The exercise of authority is legitimate where it is based on reasons that already apply to the subjects of authority directives. These reasons are dependent reasons. The dependence thesis does not claim that authorities always act for dependent reasons. It is an ideal-type theory that tells us how authorities are supposed to function, informing the public justification for the exercise of authority; how authorities should understand their function; and ways in which we should evaluate the performance of authorities (in comparison with the ideal).147 The exercise of authority is justified, according to the normal justification thesis, ‘if it is more likely than its subjects to act correctly for the right reasons’.148 It is not sufficient to assert that authority is justified because it serves the public interest: ‘If it is binding on individuals it has to be justified by considerations which bind them.’149 The requirement to coordinate the actions of the members of a society ‘may be a necessary condition of political legitimacy[,][but] it is not a sufficient condition. It is not in itself sufficient for legitimacy.’ The (‘normal’) justification for the exercise of government power is that individuals are more likely to succeed in realising that which reason requires of them ‘if subjected to the government concerned than if left to themselves’.150 Authority is justified where the subject of the normative regime is likely better to comply with reasons that apply to him[,] if he accepts the directives of the alleged authority as authoritatively binding, and tries to follow them, than if he tries to follow the reasons which apply to him directly.151

The ‘surrender of judgment’ does not imply ‘immense power’ for the authority, but reflects a more limited role: authorities cannot introduce new and independent considerations, they must reflect on ‘dependent reasons in situations where they are better placed to do’.152

146 147 148 149 150 151 152

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DEMOCRACY AND THE CONCEPT OF AUTHORITY

Raz outlines a service conception of authority: authority is justified when the subject would better conform to reasons that apply to him anyway if he intends to be guided by the authority’s directives than if he does not (the normal justification thesis); and the matters regarding which the first condition is met are such that it is better to conform to reason than to decide for oneself, unaided by authority (the independence condition).153 On this understanding, the idea of authority does not conflict with that of individual autonomy: ‘authority helps our rational capacity whose function is to secure conformity with reason. It allows our rational capacity to achieve its purpose more successfully.’154 In accepting the authority of another, the subject must accept what the authority directs without recourse to the reasons underlying the judgment of the authority: The preemptive force of authority is part and parcel of its nature. It cannot succeed 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 to improve our conformity with those background reasons by making us try to follow 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 be applied to diverse forms of (political) community. Raz observes that a group of people might believe that they have a duty, ‘perhaps a religious duty or a duty of loyalty arising from some historical circumstances, to obey some person or institution. In that case the normal justification thesis is easily satisfied. By obeying that person or institution one is discharging that duty.’156 The same argument can be made in respect of those people who believe that one has a duty to obey anyone elected by the majority: ‘Again, that is no problem for the service conception. If that is so it simply shows that the conditions of the service conception are met regarding anyone who is so elected.’157 There is nothing particularly significant about the exercise of authority in a democracy; Raz is explicit on this point: I do not believe that democracy is the only regime that can be legitimate, nor that all democratic governments are legitimate. That is not to say that democratic governments do not have, in many countries, unique claims to enjoy some qualified or limited authority, either through their ability to produce

153 Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90 Minnesota Law Review 1003, 1014. 154 ibid at 1016. 155 ibid at 1019. 156 ibid at 1030. 157 ibid at 1031.

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304 A Concept of (International) Law beneficial results or because of their ability to give expression to people’s standing 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 act for the right reasons that apply to them by subjecting themselves to the authority than by acting autonomously. No particular form of authority is prescribed: authority is justified where the subjects accept that the authority regulates in accordance with the reasons that apply to them. The acceptance of authority requires that individuals should subject themselves to authority, and not reflect upon, or seek to make independent judgements about, the relevant issues. Authority directives must be expressed in terms that an individual can rely on without the need for any further evaluation of the balance of reasons that the directive is supposed to replace: the normal justification thesis ‘implies that an authoritative directive must express a view about what ought to be done’.159 It must be possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which 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 and balancing those reasons itself and then issuing a new, consolidating directive that 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 that almost no one shows in modern democracies’. Citizens do not regard laws ‘as excluding and replacing the background reasons the framers of that law rightly considered in adopting it. We rather regard those laws as creating rights and duties that normally [but not always] trump those other reasons.’162

158

ibid at footnote 20. 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. 159

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A number of critics complain that the normal justification thesis neglects the importance of the procedural mechanisms of democracy. Scott Hershovitz, for example, argues that the idea is at odds with our idea of democracy: in a democracy ‘we are binding ourselves through acts of legislation’, a position that he contrasts with Raz’ argument that ‘[g]overnments decide what is best for their subjects and present them with the results as binding conclusions that they are bound to follow’.163 The idea of democracy suggests a political system ‘where each citizen has the ability to participate (preferably, at some foundational stage, equally) in the creation of government and policy. All democracies embody in some sense the ideal [of] “rule by the people”.’164 The fact of engagement and participation is more important that getting the ‘right’ answer (a position Hershovitz contrasts with Raz’ normal justification thesis for the exercise of authority).165 Wojciech Sadurski accepts that the normal justification thesis is ‘vulnerable to the objection that it cannot be squared with the idea that citizens should have a critical, reflective attitude towards the authorities that govern them; a critical attitude characteristic of a democratic society’. The criticism is, however, misguided. Raz does not suggest ‘that citizens are advised to follow the authority’s directives instead of following 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 no longer guided by the actions of an authority, ‘then the law, at this point, is no longer a legitimate authority for them because it does not fulfil the role of mediating between people and the practical reasons upon which they act’. Legal norms ‘normally “trump” our various extra-legal considerations (e.g. of utility), but extra-legal considerations may “trump” the law’s authority when compliance with law’s directives is morally or politically 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 in that of authority: his avowed aim is to tell us what it means for one person or entity to have authority over another.’ In developing the idea of authority, Raz proceeds from a conception of legitimate authority (law must have or claim ‘legitimate authority’):168 the idea of authority ‘is not

163 Scott Hershovitz, ‘Legitimacy, Democracy, and Razian Authority’ (2003) 9 Legal Theory 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.

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306 A Concept of (International) Law intelligible without a prior notion of legitimate authority’.169 The concept of authority ‘derives conceptually from the property of legitimacy’. An authority which does not claim to be legitimate, or which is not recognised as being legitimate, is not an authority — a point emphasised in the vocabulary employed for the exercise of political power that does not make any claim to legitimacy: ‘tyranny, occupation force, etc’. The idea of authority implies some connection between the exercise of authority and certain facts about the subjects of the authority, ie reasons that apply to the subjects of directives. An authority that did not even pretend to respect such a connection, even if successful in exercising control, would not even be an illegitimate authority, it would not be an authority. It would represent nothing more than the exercise of ‘naked power’.170 The notable feature of institutions that claim ‘authority’ is that they invariably make a claim to legitimacy: authority is inherently related to legitimacy. The focus of the normal justification thesis is the establishment of the requirements for the exercise of legitimate authority, and not the development of a normative political theory about the necessary and sufficient conditions of legitimacy. Raz’ concept of authority is not incompatible with democratic procedures; as Sadurski observes, ‘it is only a matter of interpreting the meaning of “the reasons which apply to the subjects” of authoritative directives’.171 Legitimate authorities must mediate between subjects and the right reasons that apply to them, but ‘what reasons can “apply to the subjects” other than those that they actually have?’ It may be possible to contend that ‘paternalistic non-democratic authorities’ are better at indentifying the reasons than the subjects themselves, but the argument is ‘deeply implausible’. The only way in which an authority can ascertain the reasons that apply to the subjects of authority directives is by asking the subjects themselves, ‘through democratic elections, representative bodies, referenda, etc’. The only plausible authority that can be legitimate ‘is one that is procedurally democratic.’172 A similar argument is made by Kenneth Einar Himma. According to the normal justification thesis, authority ‘is justified only insofar as it does a better job than its subjects of deciding what right reason requires’.173 But an individual would only be certain that this were the case if, in all circumstances, the authority was perfectly infallible in respect of what is in the individual’s best interests, or the individual were

169

Sadurski (n 160) at 385. 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. 170

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perfectly incompetent in evaluating their own self-interest.174 In the vast majority of cases, the individual will be better placed and more likely to be aware of the right reasons that apply to them than another actor, even in the conditions of complexity that characterise substantial societies. But the normal justification thesis does not simply require that the individual take into account authority directives; it requires that the individual comply with the directives of the authority, irrespective of the content of the directive — authority is legitimate if, and only if, the subject is more likely to comply with the demands of right reason (ie the reasons that apply to them) by following the directive than by relying on their own judgment about what right reason requires.175 In other words, the reason for following the directive of the authority follows from what the authority says, but not for the reason that the authority says it.176 The normal justification thesis depends on the adoption of directives that accord with the right reasons that apply to subjects, and it is not conceivable that those right reasons could be established in the absence of the participation of the individual: ‘respect for subject autonomy requires that subjects be allowed to participate in a meaningful way in making decisions that vitally impact their well-being and hence requires decision-making procedures that are at least minimally responsive to citizen input’.177 Jules Coleman observes that the acceptance of authority follows from conditions of uncertainty, in which each individual will ask themselves: ‘What ought I do?’ The answer will depend on the reasons that will apply to the individual, ‘[reasons] that would ground or justify one or another course of conduct’.178 An individual would only subject themselves to the judgment of others, according to the normal justification thesis, where acting on the directives of an authority, they are more likely to fully comply with the reasons they already have for acting than they would by acting directly on the basis of those reasons[:] one would more fully or satisfactorily comply with the demands of right reason that apply to one by acting 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 to coordinate actions with others, it is often impossible for the individual to determine what right reason requires. The individual would be better

174

ibid at 126. 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. 175

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308 A Concept of (International) Law subjecting himself or herself to the authority of another. The idea of authority proposed by Raz, as Coleman observes, ‘does not [appear to] presuppose a particular conception of the class of reasons’.180 The practice of giving reasons is though ‘public and itself presupposes the moral values of autonomy and equality’. The commitment to equality follows from the fact that the offering of reasons and giving of criticism can only arise amongst persons ‘who believe that they owe it to others to justify their actions to others’. The commitment to autonomy follows from the ‘very idea that individuals can respond to reasons and arguments, that others’ judgments are formed as a result of reflecting on the reasons offered’.181 The reasons that apply to us are partially determined by a social or public practice of giving reasons, of offering justifications that can withstand public scrutiny, and such a practice presupposes the moral ideas of autonomy and equality: The reasons that apply to agents … themselves derive from our normative practices, an essential part of which is offering justifications for what we do, inviting criticisms, reflecting on our own reasoning, and the like. But these practices presuppose commitment to ideals of autonomy and equality. The reasons that apply to us, therefore, derive from practices that reflect ideals of autonomy 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 to the extent that the law implements the ideals of autonomy and equality that the practices presuppose[;] law’s authority comes down in part of its implementing certain substantive political or moral ideals of autonomy and equality.182

The exercise of political authority requires justification in terms that the individual can accept as applying to them: individuals will accept the ‘directives’ of an authority only to the extent that the law implements the ideals of autonomy and equality. The legitimate exercise of authority requires the application of the (deliberative) (democratic) ideas of autonomy and equality; but they are part of the law ‘only if we take law to be a framework within which individuals can discuss what is to count as good or right reason for them’.183 Legitimate authority depends on the exercise of authority in accordance with the right reasons that apply to the subjects of an authority regime. In the case of democratic societies, there is no reason to conclude that the subjects of authority directives would accept the normative 180 181 182 183

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A Revised Concept of Law

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legitimacy of regulations adopted in the absence of direct engagement with those subject to ‘law’ norms. Following Coleman, the legitimate exercise of authority requires the adoption of regulatory norms in accordance with the (deliberative) principles of equality and public reason: law norms are valid only where all subjected persons could agree as participants in rational discourses.

A REVISED CONCEPT OF LAW

The works of Niklas Luhmann, Gunther Teubner, Brian Tamanaha and Joseph Raz provide important insights into the concept of ‘law’ following the globalisation and fragmentation of governance functions and emergence of non-Westphalian sites for the production of law norms. First, in order for law to exist, actors must organise their social, economic and political relations in terms of law, ie directives framed in terms of norms, rules, standards, or principles. Law is a system of communication expressed in terms of law, and it makes no sense to talk about a legal system where none of the relevant actors refers to the idea of law or codes norms in terms that a lawyer would recognise. Secondly, as Luhmann observes, law is a system of communication that constructs its own boundaries through the operation of the binary distinctions between norms/facts and legal/illegal: the application of law norms to facts must be capable of resulting in a determination that impugned conduct is either ‘lawful’ or ‘unlawful’, as opposed, for example, to ‘undesirable’. Thirdly, there is no reason to consider that only ‘Westphalian’ forms of state and international law are ‘law’. Fourthly, Tamanaha’s conclusion that law is whatever people identify and treat through their social practices as ‘law’ fails to recognise the need for an assertion of authority framed in terms of law before an actor can regard him or herself as being subject to the law. In relation to customary law, including customary international law, authority is provided by the authority of law.184 Fifthly, law norms cannot exist outside of a system of law: transient or idiosyncratic identifications of law do not constitute a legal order, or create binding (legal) obligations. Sixthly, politics involves the exercise of choice at moments of uncertainty and disagreement. Political decisions must be 184 Joseph Raz, The Authority of Law (Oxford, Oxford University Press, 1979) 29. In relation to customary norms, including customary international law norms, the source of authority is a social practice recognised as legally binding by a particular community. The assertion of political authority is undertaken by a ‘secondary’, or ‘interpretive’, actor (who may also be a member of the community), who asserts that a social practice in a defined community of actors is binding in terms of law. cf Lon Fuller, ‘Law as an Instrument of Social Control and Law as a Facilitator of Human Interaction’ (1975) Brigham Young University Law Review 89.

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A Concept of (International) Law

framed in terms of law to be given effect in the legal order following the identification of a conflict or coordination problem. Finally, given the indeterminacy of law norms and disputes over meaning and application, the assertion of authority must be accompanied by an interpretive community of law-actors capable of determining whether impugned conduct is norm-violating (or not), ie to give concrete meaning to normative obligations, and in doing so to interpret and develop the law. The interpretive community may include both Hart’s institutionalised law officials, and also law-actors that are not part of the formal, judicialtype, institutions of the authority. In the context of global governance, law-declaring fora may include institutions established under an international governance regime; domestic and international courts, as well as ad hoc tribunals; domestic and regional legislatures; executive bodies; (formal) commissions of international publicists; the invisible college of public international lawyers; and international non-governmental organisations. There is no requirement that all law declaring fora reach the same conclusion: in a legal system, interpretive actors, including formally established courts and tribunals, often reach different conclusions on the application of law norms to facts.

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8 Deliberative Democracy Beyond the State

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HE PRECEDING ANALYSIS leads to a reformulation of the problem of (deliberative) democracy beyond the state. Law concerns the exercise of authority. It is a system of communications (‘directives’) framed in terms of law, ie coded legal/illegal, or other binary equivalent, issued by an authority to subjects of the legal regime, with law-actors capable of interpreting the content and application of law norms, and consequently of developing the law in a way that is consistent with ‘legislated’ norms. The (legitimate) exercise of authority is conditioned by respect for the cardinal principles of deliberative democracy: equality and public reason. Legitimate authority (and there is no such thing as illegitimate authority) depends on the exercise of authority in accordance with the right reasons that apply to the subjects of the authority regime, and the right reasons that apply to subjects can only be determined by the authority engaging with subjects through ‘democratic’ mechanisms: the legitimate exercise of authority by non-state actors depends on an institutionalisation of the (deliberative) principles of equality and public reason. There remains, however, the difficulty of applying the deliberative model of democracy beyond the state. The objection is that democratic law-making is only possible within the state, which provides the context for collective opinion- and will-formation and the institutions of government to ensure that collective action decisions are carried out. The problem of democracy beyond the state leads Habermas to conclude that governance functions should be allocated to one of three levels: the supranational level of international law, limited to human rights, international peace and security, and ‘technical’ questions of cooperation; the regional level, where greater legislative activity would be permitted on coordination and collective action problems (drawing on the experiences of the European Union); and the democratic Rechtsstaat, which remains the locus for democratic self-determination. The division of regulatory labour is normative (although it is descriptive of the emerging systems of global governance). The desirability (or otherwise) of supranational and regional forms of global regulation is determined by the implications for

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312 Deliberative Democracy Beyond the State democratic self-government within the state: certain (limited) forms of global regulation may be good for (domestic) democracy and the welfare state, which are under threat from the forces of (economic) globalisation, but global governance presents a threat to (domestic) democracy for the very reason that it cannot be democratic (no demos, no democracy). Democracy beyond the state is not possible because the global public does not have the capacity to imagine itself as a voluntary association of free and equal citizens with the capacity for collective will-formation. The deliberative model is a counterfactual ideal in which a legal order is understood to constitute itself as a voluntary association. The legal order draws its legitimacy from the idea of collective self-determination: citizens must think of themselves as authors of the law to which they are subject as addressees. If all possibly affected persons have participated in deliberations, with an equal opportunity to influence others, any consensus position may be regarded as ‘right’ or ‘just’ for that political community. A distinct principle of democracy follows, providing validity for law norms that can meet with the assent of all citizens in a discursive process of legislation that has been legally constituted. This chapter modifies the deliberative model in one important respect: it does not regard a political community as a voluntary association of free individuals, but a community constituted by the exercise of ‘authority’. The exercise of authority defines the demos (in the language of democratic theory and practice). The function of democracy is to legitimate the exercise of regulatory power, and legitimise the exercise of authority. There is, on this understanding, no reason to conclude that the deliberative model could not be applied to the regimes of governance established by global regulators. The work first outlines the ways in which an autonomous law order can be brought into existence by an exercise of constituent power, and requirement of deliberative legitimacy for the assertion of authority. It then affirms the requirement for democratic legitimacy for the exercise of (legitimate) authority, before evaluating the possibilities of applying the deliberative 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 justice emerging within the fragmented regimes of global governance.

THE IDEA OF CONSTITUENT POWER

The concept of voluntariness in democratic theory legitimates the exercise of coercive (political) authority through the device of (original) contract. Consent is important for the establishment of voluntary associations, but it does not explain and cannot justify the establishment of a

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The Idea of Constituent Power 313 system of law, which is defined by the assertion of authority. The emergence of autonomous normative orders in global governance, with primary rules framed in terms of law and secondary (‘constitutional’) rules about rule-making, suggests that the idea of a legal system (properly understood) does not depend on an expression of ‘sovereign’ will. At the level of the state, law-making concerns the exercise of sovereign authority in relation to a particular territory (the idea of legal jurisdiction relates primarily to territory); it is the exercise of regulatory authority by a government established by a constitution in relation to a political community defined by territorial boundaries. The first question, then, is how can ‘sovereignty’ be established in relation to a territory or political community? Andreas Kalyvas describes the idea of sovereignty in terms of the ‘constituent subject’. The sovereign is the one who ‘determines the constitutional form, the juridical and political identity, and the governmental 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 The sovereign act does not depend for its validity on any prior act or delegation of authority: ‘It signifies a new legal beginning.’ The constituent act redefines ‘[the constitutional] horizon.’ The exercise of constituent power is truly autonomous; if the new legal order were determined by some previous or prior (or ‘other’) legal order, ‘it would not be a constituent power but rather a constituted power.’2 The delegation of sovereign power from one authority to another sovereign is a revision of the existing legal order, not the establishment of a new legal order. Drawing on the arguments in Habermas’ Between Facts and Norms, Kalyvas concludes that the exercise of constituent power must be consistent with the requirements of democratic constitution: ‘the legitimacy of the fundamental norms and institutions depends on how inclusive the participation of the citizens is during the extraordinary and exceptional moment of constitution making’. The association of constituent power with democratic legitimacy is unavoidable, ‘[p]recisely because the concept of the constituent sovereign resituates the normative ideals of political freedom and collective autonomy at the center of democratic theory, it points at a distinctive theory of democratic legitimacy’. Constituent politics occurs where citizens are ‘jointly called to be the authors of their constitutional identity and to decide the central rules and higher procedures that will regulate 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. 2 ibid at 228. 3 ibid at 237.

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314 Deliberative Democracy Beyond the State community is a re-statement of the fundamental democratic principle of self-government and self-determination, ‘according to which the people are the authors of the laws that govern them’. Those who will be subject to the constitutional order must ‘co-institute it’. Validity is granted to a constitutional document through the ‘full participation of its prospective addressees’.4 The mere fact that an actor ‘has prevailed in establishing a text claiming it to be the higher positive law is no reason to regard it as valid democratic law, [or] as a law binding the individuals at whom it is directed’. In the absence of inclusive procedures for the collective establishment of the original constitutional structures (ie the laws and law-making reflected in the Constitution), ‘valid legal norms do not come into existence, and the laws created in this way are void. They are simply an expression of might disguised as right.’5 The focus of the analysis is the idea of (exclusive) sovereignty in relation to territory. It provides, however, a number of important insights for evaluating the possibility of autonomous legal orders emerging beyond 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 the constitution 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 a particular kind of activity, exercising a very special, real, and visible form of power – the supreme, sovereign power to write and determine the higher laws and regulative principles of a political association.6

The establishment of an autonomous system of law does not depend for its validity on any prior act or delegation of authority. The constitution of an international governance regimes does not occur through the delegation of authority by the (‘sovereign’) states parties to the constituent instrument, but the assertion of autonomy by the legal system established through the exercise of regulatory authority by the organisation. The assertion of regulatory authority is not limited to states and international organisations established by states through an international agreement (ie, it does not depend on a ‘delegation’ of sovereign authority). The assertion of jurisdiction in accordance with the basic norm or rule of recognition of the legal system defines the boundaries of a political community. One of the functions of law is to allow a distinction to be made between the legitimate exercise of authority by the policeman, and illegitimate assertion of power by the gunman. Legitimate authority is

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provided by the democratic rule of law. The establishment of a system of law involves the joining of an assertion of jurisdiction (the issuing of regulatory directives) with the establishment of legitimate authority; at this point, the regulatory directives of a legitimate authority are able to determine the normative situation of others. The assertion of jurisdiction is reflected in the adoption of regulatory norms framed in terms of law (ie. coded legal/illegal, or other binary equivalent). Ad hoc invocations of the language of (international) law (cf the Report of the World Commission on Dams) do not constitute a legal system with ‘law’ norms capable of determining the normative situation of others. The exercise of (legitimate) authority depends on the adoption of regulations in accordance with the right reasons that already apply to subjects, and these must be determined through democratic procedures. Consequently, whilst any number of non-state actors may claim to establish global regulatory standards (framed in terms of law), the exercise of (legitimate) authority (and there is no such thing as illegitimate authority) requires the adoption of global regulatory norms in accordance with the principles established by the deliberative model of democracy. Where this does not occur, 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 many aspects of regulation framed in terms of international law enjoy de facto authority, with international law norms generally obeyed in practice: ‘As a matter of fact, international law claims much more legitimate authority than it can ever have in practice.’7 The distinction between de facto and de jure legitimacy becomes important, however, in terms of compliance with international law, and in cases of conflict between legal systems, notably conflict between international law orders and the state law systems of constitutional democracies. It is, then, essential to identify the requirements for the exercise of (legitimate) authority by global regulators, 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 is defined by the assertion of authority; the function of democracy is to legitimate the exercise of regulatory authority. In the demos/democracy debate, it is important to recognise the possibility of establishing a

7 Samantha Besson, ‘The authority of international law – lifting the state veil’ (2009) 31 Sydney Law Review 343, 379.

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316 Deliberative Democracy Beyond the State functioning democratic polity whose members (citizens) will subsequently recognise themselves as members of the same political community, providing democratic legitimacy for the exercise of political authority. The avoidance of injustice requires that those subject to the laws should regard themselves as the authors of those laws: political truths emerge through a process of communicative reason that structures political debate. At the level of the state, legitimate laws must enjoy the consent of all ‘those affected’. In conditions of complexity and uncertainty, initial disagreement over policy is inevitable and, given that the only force is the ‘force of better argument’, participants must rely on reasons that others might accept in order to reach a consensus. Democratic politics must be conducted in accordance with the requirements of public reason, and with the objective of establishing the support of ‘those affected’ (‘D: Just those action norms are valid to which all possible affected persons could agree as participants in rational discourses.’) The requirement of (hypothetical) consent transforms citizens from subjects of the legal regime into the role of authors. Bargaining and compromises are acceptable to the extent that they are agreed in accordance with the principle of public reason and acceptable to rational participants. The outcome should reflect a fair compromise between the interests of all participants and be potentially acceptable to all those affected, with fairness 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 – established both in a formal instrument (the ‘Constitution’), and the formal and informal norms and practices that construct and constrain the exercise of political authority. The focus for the practice of democracy at the level of the state is the national parliament, or legislature: ‘the power that makes laws’.8 Legitimate law-making requires that all relevant interests and perspectives are represented, with democratic debates in legislative bodies remaining tied to the ‘will of the people’. Those affected must be able to participate and influence debates, and the process of democratic politics must place the interests and preferences of ‘those affected’ to the forefront of deliberations. Enacted laws must represent a good faith attempt to legislate in the interests of all, and in accordance with the principle of public reason. The fact of impugned (democratic) legitimacy, evidenced by a reliance on majority-rule, requires that the minority is afforded opportunities to challenge the decision-making process and any inconsistency with ‘constitutional’ norms through some form of (judicial) review in order to

8 The Oxford English Dictionary. 2nd edn 1989. OED Online (Oxford, Oxford University Press, 2000).

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ensure the inclusion of all relevant interests and perspectives and that decisions can be justified in accordance with the principle of public reason. There is no reason to conclude that the requirements of (deliberative) democracy could not be applied to the exercise of regulatory authority beyond the state. An autonomous law order establishes its own jurisdictional boundaries and enters into an accountability relationship with those subject to the legal order; it constitutes a political community and defines its membership. The democratic conception of authority (the ‘normal’ justification for the exercise of authority) provides that the justification for (legitimate) authority is that subjects are more likely to act in accordance with the right reasons that apply to them by subjecting themselves to the authority than if they were to attempt to form an independent judgement. In order to ascertain the right reasons that apply to subjects, the authority must engage with subjects through democratic procedures, to ensure the inclusion of the interests and perspectives of those subject to the regime in any law norms. In this way, those subject to the law can come to regard themselves as the authors of the normative order (as well as its subjects). There is no requirement that all subjected actors do in fact participate, although there may be a requirement for those specially affected to be consulted and to participate directly. The establishment of valid (ie ‘democratic’) laws by international organisations and other non-state actors depends on the establishment of discursive and deliberative procedures within formal institutions and in the public sphere constituted by the exercise of public authority. Nonstate actors that claim (legitimate) authority are required to make public the reason for any decision; recognise and give effect to universal rights to political participation, including rights to freedom of political expression (the right to receive and impart information) and association; and establish mechanisms to allow for the participation of those affected by proposed regulations. Law-making must operate in accordance with the principles of representation and discourse: legitimate laws require the assent of the representatives of those affected, with consensus achieved through rational discourses and fair bargaining. Those affected have the constitutional right to have their interests and perspectives represented in the institutions responsible for making the laws. The democratic principle of representation requires that the interests and perspectives of all those subject to the regime are included in deliberations on the adoption of global regulatory norms. The more important global law norms (the identification of which may be subject to reasonable disagreement) should be adopted by representative institutions, and not committees of experts, in order that as many diverse perspectives and ways of understanding the social, economic and political world as possible can be

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brought into discussions. This may include the establishment of representative assemblies along the lines of the European Parliament or Pan-African Parliament, and the possibility of direct or indirect elections. There is, though, no single template that can be applied to all international organisations, and whilst there may be a need to ensure some form of direct representation in relation to the United Nations, for example, a process of ‘parliamentarisation’ cannot be applied to the 250 plus international institutions that play some role in global regulation. The solution to the problem of democracy beyond the state does not lie in the multiple replications of domestic democratic institutions within the institutions of global governance. There is no single model of ‘representative’ law-making that can be applied to all international organisations. The idea of (legitimate) authority establishes that a regulatory body (ie, an institution that claims the right to determine the normative situation of others) unable to demonstrate that it is undertaking its regulatory function in accordance with the right reasons that apply to the subjects of its directives is not a (legitimate) authority – it cannot legislate international law norms. In the absence of the (legitimate) authority provided by (deliberative) mechanisms to determine the right reasons that apply to the subjects of the international governance regime, global regulators cannot claim the right to determine the normative position of legal persons. That is not to suggest that all procedural deficiencies in the process of law-making will have the effect of denying the ‘authority’ of a global regulator (systems of public law often invalidate law norms without calling into question the authority of the source of the law); only where there are systemic failings in the procedures for the adoption of law norms, and where ‘subjects’ reject the authority of norms, does the issue of the ‘authority’ of the global regulator become relevant. In order to be effective regulators, non-state actors must demonstrate to sceptical domestic publics (in democratic societies) that they take seriously the requirements of democratic law-making: the inclusion of the interests and perspectives of those subject to the regime with the conclusion of political deliberations representing a fair bargain between all interests and perspectives of the subjects of the regime; institutionalised mechanisms to ensure the inclusion of a diversity of representation; decision-making following reasoned debate; the adoption of regulations consistent with (minimum) international human rights norms (as an expression of the minimum requirements for the exercise of political authority); and a sense of epistemic humility, in that any absence of consensus within formal decision-making bodies and the wider public sphere should lead to a recognition of the importance of formal mechanisms of review and challenge and the need to allow issues to be brought back on the agenda where new evidence or arguments are adduced. The

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‘democratic’ legitimacy of an international governance regime requires that a non-state actor operates within a constitutional framework that recognises those subject to the normative regime as its authors, albeit indirectly. The (hypothetical) communicative community of an international governance regime – ‘those subjected’ – has the right to participate in decision-making processes, directly or through representatives. In order to be recognised as a legitimate authority, international organisations and other non-state actors are required to legislate in accordance with the right reasons that apply to those subject to the regime, and it is not possible to do this in the absence of the representation of the interests and perspective of subjects through formal processes for the adoption of law norms. No one template can be applied to all non-state actors, but the failure to ensure the effective representation of the right reasons that apply to subjects in decision-making processes will preclude the recognition of the global actor as a (legitimate) authority. The exercise of public power in the absence of (legitimate) authority (even if perceived to be in the interests of those subject to the regime) is nothing more than (benevolent) autocracy. A non-state actor must demonstrate to the subjects of the international governance regime that it has (legitimate) authority, ie the right to determine the normative situation of subjects in accordance with the reasons that already apply to those subject to global regulatory norms. In the absence of (legitimate) authority, the norms adopted by non-state actors cannot be regarded as ‘law’ norms, and they do not enjoy the authority implied by the idea of the international rule of law. In addition to the establishment of formal mechanisms to ensure the inclusion of the interests and perspectives of those subject to the governance regime in relevant decision-making processes, global regulators must be sensitive to the possibilities of a ‘public opinion’ emerging in the informal (global) public spheres which are constituted by the exercise of political authority, ie within the hypothetical communicative community constituted by the exercise of public authority. Global regulatory authorities are required to develop mechanisms to allow the expressions of opinion- and will-formation in the global public sphere to influence debates within law-making bodies. This will, in many cases, require proactive engagement with those subject to the regulatory regime, and introduction of mechanisms to allow their voices to be heard and to influence relevant deliberations. The involvement of international civil society actors, ‘we the peoples’ representatives’, may link regulators with the global public in the process of collective will-formation and ensure that relevant interests and perspectives are included in decision-making processes, in particular those of hitherto marginalised or excluded groups. Again, no single template will apply. James Bohman, relying on Neil MacCormick, concludes that the issue is not whether some public sphere ‘is totally or completely democratic, but whether it is adequately

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320 Deliberative Democracy Beyond the State democratic given the kind of entity we take it to be’.9 For a state to be democratic, ‘it requires a certain sort of public sphere sufficient to create a strong public via its connections to parliamentary debate’. International organisations and institutions require a ‘different sort of public sphere in order to promote sufficient democratic deliberation’. The minimum requirement is that participants in the public sphere must be ‘sufficiently empowered to create opportunities and access to influence over transnational decision-making’. The presently ‘weak’ public spheres, which are only able to influence public opinion, may become ‘strong publics’ when they are able to exercise influence through ‘institutionalized decision procedures with regularized opportunities for ex ante inputs’. At the domestic level, strong publics are assumed to be connected to a particular sort of legislatively empowered collective will. In the transnational case, strong publics may be required to seek more direct forms of deliberative influence given the dispersal of authority and the variety of its institutional locations.10

In modern societies, the legitimacy of an institution depends on the normative validity of the political order.11 Jens Steffek defines legitimacy as the voluntarily acceptance of domination ‘on the grounds [of a belief] in its normative rightfulness’.12 The definition combines both the idea of legitimacy as an empirical or social fact, reflected in the attitude of actors to the exercise of authority, and the idea of normative legitimacy, which requires that law norms are established in accordance with certain (democratic) rules and procedures. Steffek observes that the ‘obvious lack of coercive capacities makes international domination much more dependent on voluntary compliance than governance taking place inside the state’.13 In the absence of coercive institutions for the enforcement of global regulatory norms, international organisations and other non-state actors must rely on the acceptance of their authority by those subject to the international governance regime. In order to be effective regulators, non-state actors must be regarded as legitimate regulators. Ian Hurd explains that legitimacy contributes to compliance by providing an 9 James Bohman, ‘Expanding Dialogue: the Internet, the Public Sphere and Prospects for Transnational Democracy’ in Nick Crossley and John Michael Roberts (eds), After Habermas: 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 an institutionalized public sphere backed by institutions that make it possible for them make claims upon each other only if they stand as equals to those who make the same claims upon 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.

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internal reason for an actor to follow a rule. When an actor believes a rule to be legitimate, compliance is no longer motivated by the simple fear of retribution, or by a calculation of self-interest, but instead by an internal sense of moral obligation. Belief in the legitimacy of a norm may result either from a belief in the normative legitimacy of the rule, or the legitimacy of the actor that generated the rule.14 The internalisation of a norm occurs when an actor defines its own interests by reference to external standards, laws, rules or norms. A rule becomes legitimate ‘when the individual internalizes its content and reconceives his or her interests according to the rule. Compliance then becomes habitual.’15 Once an actor internalises a rule because it perceives it as legitimate, the rule takes on the quality of being authoritative over the actor. The rule is then in some sense hierarchically superior to the actor, and partly determinate of the actor’s behavior, by virtue of contributing to the constitution of the actor’s definition of its own interests.

An organisation perceived by an actor as a legitimate rule-maker is in a position of authority over the actor, where authority is defined as ‘the condition in which power is married to legitimacy, where most compliance is unproblematic and only occasional deviance needs to be policed’.16 An external source that defines legitimate actions must be regarded as a source of ‘authoritative control, and is, for all intents and purposes, governmental’.17 In order to be effective regulators, ie to overcome the legitimacy problem of compliance, non-state actors must be guided in their regulatory functions by the ‘democratic’ (ideal-type) conditions for the establishment of international laws by global authorities: the inclusion of the interests and perspectives of those subject to the regime concluding with a ‘fair bargain’; institutionalised mechanism to ensure the inclusion of a diversity of representation; decision-making following reasoned debate; the adoption of regulations consistent with (minimum) international human rights norms (a shared understanding of the requirements for the exercise of political/public authority); and a sense of epistemic humility, in that any absence of consensus demonstrates the requirement for formal mechanisms for review. The question remains, however, as to the identity of those actors whose interests and perspectives must be included (and whose hypothetical consent is required). At the level of the state, there is a taken-for-granted relationship between the (state) law 14 Ian Hurd, ‘Legitimacy and Authority in International Politics’ (1999) 53 International Organization 379, 387. 15 ibid at 388. 16 ibid at 400. 17 ibid at 401.

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322 Deliberative Democracy Beyond the State order and those subject to the law (‘those affected’). This is not the case in relation to governance by non-state actors.

THOSE ‘AFFECTED’/‘SUBJECTED’

The practice of (deliberative) democracy is concerned with the implementation of the principle of discourse: ‘D: Just those action norms are valid to which all possible affected persons could agree as participants in rational discourses.’ The idea of ‘those affected’ is defined as ‘anyone whose interests are touched by the foreseeable consequences of a general practice regulated by the norms at issue’.18 At the domestic level, the idea of ‘all affected’ is a sub-set of the taken-for-granted class of those subject to the jurisdiction of state law. Once the locus for law-making shifts from the (relatively) settled jurisdictional boundaries of the state to the more amorphous arenas of global regulation, there is no taken-for-granted relationship between those asserting political authority (ie claiming the right to regulate) and those subject to global law norms. The principle of democracy provides that valid laws should have the agreement of all citizens, and the process of law-making should be is discursive. Citizenship is the designation accorded to members of the political community, who enjoy the the right to have a voice and a vote in political processes that lead to the adoption of law norms (although enacted laws must be applied without arbitrary discrimination to all persons within the jurisdiction). Whilst citizenship may be legally conferred, and legally defined, ‘its resonance is political’.19 Citizenship is a recognition of membership in a political community that operates under the rule of law. The exercise of political authority by non-state actors creates new sites for law-making and new challenges for democratic representation. Once governance functions are exercised by non-state actors, it becomes difficult to make sense of the idea of citizenship. Having established the ‘how’ of political justice (deliberative procedures in accordance with public reason and including all those affected), it 18 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and 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 instrumentally related to material benefits and rights, as opposed to non-functional or affective citizenship, rooted in nationality centred emotions and conditions: Carole Lyons, ‘The Limits of European Union Citizenship’ in Zenon Ban´kowski and Andrew Scott (eds), The European Union and its Order: the Legal Theory of European Integration (Oxford, Blackwell, 2000) 149. On the idea of European Union citizenship, Joseph Weiler argues that the substance of membership is in a commitment to the shared values of the Union, expressed in its constitutive documents: JHH Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 3 European Law Review 219, 252.

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becomes necessary to establish the ‘who’ of political justice (the class of actors that determines the ‘what’ of political justice). Once the boundaries of political community can no longer be taken for granted, the first ‘democratic’ problem is the identification of those persons whose interests and perspectives are entitled to representation. Nancy Fraser refers to an idea of ‘misframing’, which occurs where the boundaries of a political community are drawn in such as way ‘as to wrongly exclude some people from the chance to participate at all in its authorized contests over justice’.20 The idea of (political) justice is defined in ‘radical-democratic’ terms of parity of participation in collective decision-making procedures.21 In its political conception, the idea of justice provides the context for debates about the distribution of public goods and the politics of recognition. The political dimension of justice defines those included (and by implication those excluded from the entitlement to a just distribution and reciprocal recognition). The political conception of justice establishes the rules of the (political) game for resolving disagreements over the norms that regulate social, economic and political life: ‘it tells us not only who can make claims for redistribution and recognition, but also how such claims are to be mooted and adjudicated’. In the application of a political conception of justice, which requires that each political community work out, through democratic procedures, its own conception of justice, the ‘who’ of justice becomes more important that the ‘what’ of justice. The principal questions, as Fraser observes, are: [D]o the boundaries of the political community wrongly exclude some who are actually entitled to representation? Do the community’s decision rules accord equal voice in public deliberations and fair representation in public decisionmaking to all members?22

Representation is the defining issue in political justice. Political injustice is defined by misrepresentation. This may be understood in one of two ways: decision-making rules may wrongly deny some members of the political community the right to participate on a basis of full equality (‘ordinary-political misrepresentation’); more fundamentally, the boundaries of the community (the boundaries of justice) may be drawn to wrongly exclude certain people from the chance to participate at all in debates over the meaning of (political) justice. In the second case, ‘misrepresentation takes a deeper form of “misframing”.’23 Where questions 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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324 Deliberative Democracy Beyond the State consideration, ‘the consequence is a special kind of meta-injustice, in which one is denied the chance to press first-order justice claims in a given political community’.24 An autonomous legal order manifests its own sense and vision of (political) justice in the framework of its constitutional settlement and in the adoption of political laws. The globalisation and fragmentation of governance has resulted in a proliferation of (global) law orders. Once the frame for political justice can no longer be taken for granted as the sovereign territorial state, it becomes important to ascertain the ‘who’ of political justice: who is entitled to participate in discussions around political justice in the systems of global governance. Fraser concludes that the most promising candidate for defining the ‘who’ of political justice is the all-affected principle: ‘all those affected by a given social structure or institution have moral standing as subjects of justice in relation to it’. The ‘fellow subjects of justice’ are defined by reference to their ‘co-imbrication in a common structural or institutional framework, which sets the ground rules that govern their social interaction, thereby shaping their respective life possibilities in patterns of advantage and disadvantage’.25 In defining political justice by reference to the ‘all affected’ principle, Fraser follows Habermas: deficits in democratic legitimacy result when the circle of all those involved in democratic decision-making does not extend to cover all those affected by those decisions. The idea that international organisations are accountable to ‘those affected’ by their global law regulations is increasingly common in the literature,26 and reflected in a number of international instruments,27 and the practices of

24

ibid at 77. 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 international institution can consist of a variety of international actors, ‘provided their interests or rights are affected by the conduct of the international institution in question’: Erika de Wet, ‘Holding International Institutions Accountable: the Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review’ (2008) 9(11) German Law Journal 1987, 1990. 27 The Cardoso Report on United Nations–Civil Society Relations argues that the organisation should be guided inter alia by the principle of participation, ie ‘involving people in decisions that affect them’: ‘Cardoso’ Report of the Panel of Eminent Persons on United Nations–Civil Society Relations, ‘We the Peoples: Civil Society, the United Nations and Global Governance’ UN Doc A/58/817 para 186. See also (Aarhus) Convention on Access to Information, Public Participation in Decision-making, which defines ‘The public concerned’ as the ‘public affected or likely to be affected by, or having an interest in, the environmental decision-making’: (Aarhus) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1999) 38 ILM 517 art 2(5). 25

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international organisations and institutions.28 Asserting a principle that ‘those affected’ (or their representatives) have a right to participate in the decision-making process of international organisations is easier than identifying the relevant constituency. Grant and Keohane observe that if being affected was a sufficient criterion for inclusion, then ‘anyone who buys gasoline would be entitled to participate in OPEC’s deliberations’.29 On closer examination, the ‘all affected’ principle proves unsuitable for developing a concept of deliberative legitimacy for the exercise of political authority by non-state actors. First, the idea is invariable defined by reference to (international) human rights,30 or material and financial considerations, reflecting particular ways of seeing the world (and particular value systems). Secondly, reliance on the ‘those affected’ principle leads to shifting boundaries of political constituency on policy issues, with international organisations finding themselves accountable to different constituencies on different questions of policy (with different requirements for representation). Thirdly, given that it is often possible for an individual to claim (and demonstrate) that they have in some way been affected by a global regulatory norm, the principle is invariably reformulated to include only those who are ‘significantly affected’ (etc), with the test 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 ‘all affected’ principle is the ‘butterfly effect’ (following chaos theory), which concludes that all actors are potentially affected by all global and local events – mutatis mutandis all persons are potentially affected by the activities of all international organisations and institutions. The ‘allsubjected principle’ limits the rights of political participation to ‘all those who are subject to a given governance structure’.31 It is their ‘joint subjection 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 provide reasoned justification for the listing of persons under the ‘1267 sanctions regime’. Resolution 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 supporting documentation, for the listing of a person as being associated with the Taliban, Al Qaeda, or Osama bin Laden: SC Res 1735 (2006) para 5. See also Ved Nanda, ‘Accountability of International Organizations: Some Observations’ (2005) 33 Denver Journal of International Law and Policy 379, 383. 29 Ruth Grant and Robert Keohane, ‘Accountability and Abuses of Power in World Politics’ (2005) 99 American Political Science Review 29, 33. 30 Carol Gould argues that ‘people are to be regarded as importantly affected when they are affected in their possibilities of realizing their basic human rights’: Carol Gould, ‘Self-Determination Beyond Sovereignty: Relating Transnational Democracy to Local Authority’ (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).

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326 Deliberative Democracy Beyond the State govern their interaction’.32 The idea of governance includes non-state actors, such as the World Trade Organization and International Monetary Fund, that generate enforceable rules that structure social interaction. In the establishment of a political conception of justice, the ‘who’ of political justice, those entitled to representation in public deliberations about the ‘what’ of political justice, are defined by their subjection to the regulatory directives of the international organisation or other non-state actor: an issue is justly framed ‘if and only if everyone subjected to the governance structure(s) that regulate the relevant swath(s) of social interaction is accorded equal consideration’.33 What is required is the invention of ‘new global democratic institutions where disputes about framing can be aired and resolved[,] [in addition to] new institutions for staging and provisionally resolving such disputes democratically, in permanent dialogue with transnational civil society’.34 The argument is for agreement on first principles of political justice in conditions of regulatory complexity and a recognition of the dangers for political injustice that result from the globalisation and fragmentation of regulatory functions in the modern world of law and politics. An autonomous law order establishes its own jurisdictional boundaries and enters into an accountability relationship with those subject to the legal order. The democratic conception of authority (the ‘normal’ justification for the exercise of authority) establishes that the justification for (legitimate) authority is that those subject to authority are more likely to act in accordance with the right reasons that apply to them by subjecting themselves to the authority than if they were to attempt to form an independent judgment. In order to ascertain the right reasons that apply to subjects, the authority must engage in democratic procedures to ensure the inclusion of the interests and perspectives of those subject to the regime in any law norms. In this way, those subject to the law can regard themselves as the authors of the normative order (as well as its subjects). The exercise of political authority defines ‘those subjected’. In relation to global governance regimes, the idea of ‘those subjected’ includes states and international organisations, corporations and other non-state actors, and individuals – any legal actor may be subject to the authority directives of an autonomous system of law. ‘Those subjected’ include both actors de jure subject to authority directives and those de facto subject to regulatory norms, ie those actors obliged to comply with the directives of the authority. Those de jure subject are those referred to directly in normative provisions; those de facto subject include all those legal actors in fact subject to regulation. 32 33 34

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ibid at 23 (emphasis added). ibid at 23–24. ibid at 28.

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One example would be the directives of the Basel Committee on Banking Standards, which apply to those states that are members of the Committee (‘de jure’), and de facto to many other states who find themselves subject to pressures from the financial markers and international financial institutions to comply with the Basel I Accord. The recognition that those de jure and de facto subject are included in the idea of ‘those subjected’ 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 an equal say in the questions of justice that frame the exercise of public authority is developed by John Rawls. According to the liberal concept of (political) justice, power can only be legitimately exercised in accordance with a constitution, the essentials of which all citizens as free and equal persons ‘may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason’.35 All constitutional questions and questions about justice should be settled in accordance with principles and ideals acceptable to the common reason of the subjects of the political order. A constitutional settlement, including questions of justice, must be both rational and reasonable: persons are reasonable when they are ready to propose ‘fair terms of cooperation and abide by them willingly, given the assurance that others will likewise do so’.36 The political conception of justice for a liberal society must be worked out in accordance with the principle of public reason. The subject of public reason is the good of the public, the public conception of justice.37 The idea of public reason legitimises the exercise of coercive political authority in the name of the people. Rawls differs from Habermas in restricting the application of public reason to constitutional laws on law-making and the limits of majority rule, and not the laws of the democratic Rechtsstaat more generally.38 The content of public reason specifies certain basic rights, liberties and opportunities familiar to liberal democracies, and accords a certain priority to these rights. It also guarantees citizens adequate opportunities to make effective use of their rights and opportunities.39 The concept of public reason applies in public political fora: the discourse of judges in their decisions (especially those in a Supreme Court); the discourse of government officials exercising 35 John Rawls, Political Liberalism (New York; Chichester, Columbia University Press, 2005) 137. 36 ibid at 49. 37 ibid at 213. 38 ibid at 214. 39 ibid at 223.

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328 Deliberative Democracy Beyond the State governmental authority; and the discourse of candidates for public office.40 Democratic politics and law must be conducted in accordance with the principle of public reason. Ideally, citizens should think of themselves ‘as if they were legislators’, and ask what laws it would be most reasonable to enact, ‘supported by what reasons satisfying the criterion of reciprocity’.41 Rawls refers to the idea of a ‘well-ordered constitutional democracy… understood also as a deliberative democracy’. The definitive idea of deliberative democracy is deliberation: the exchange of views and perspectives on political questions, with arguments supported by reasons. The essential elements of deliberative democracy are the idea of public reason, a framework of constitutional laws, democratic institutions, and the commitment of democratic citizens to the public reason.42 Rawls’ concept of political justice was developed in the context of the democratic state: a self-contained unit whose members ‘enter it only by birth and leave it only by death’.43 The liberal political community imagines itself to be both autonomous and enduring, with the community and its membership defined by the exercise of authority. The involuntary subjugation of individuals (‘citizens’) to a (coercive) political order raises the very questions of justice.44 Following Rawls, Thomas Nagel argues that (political) justice can only be achieved in the context of the state, as it requires ‘the coordinated conduct of large numbers of people, which cannot be achieved without law backed up by a monopoly of force’.45 The political conception regards justice as a political value – it is an ‘associative obligation’, something that we owe to others through co-membership in political institutions.46 At the level of global governance 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 from membership in a political society, and the ‘dual role each member plays both as one of the society’s subjects and as one of those in whose name its authority is exercised’.48 The role of author and subject are not chosen, but assigned by the fact of political association: ‘society makes us responsible for its acts, which are taken in our name and on which, in a democracy, we may even have some influence’.49 The ‘unique demands’

40

ibid at 443. 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. 41

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that the state makes on its members ‘bring with them exceptional obligations, the positive obligations of justice’.50 Nagel’s argument is that political institutions create ‘contingent, selective moral relations’. There may be other, non-contingent, universal relations to other human persons (a ‘minimal humanitarian morality’), but that does not demand that ‘we make their ends our own’.51 The objection to arbitrary inequalities resonates only in a societal context. The political conception of justice requires that we accord equal status to all persons that we are joined with in a ‘strong and coercively imposed political community’.52 The argument only applies at the level of the state. It does not apply to international organisations, which are not collectively enacted and coercively imposed in the name of all the individuals whose lives they affect; and they do not ask for the kind of authorization by individuals that carries with it a responsibility to treat all those individuals in some sense equally.53

Nagel concludes that arguments around the political legitimacy of international organisations are reminiscent of those around the legitimacy of state government, where ‘sovereignty usually precedes legitimacy… [T]he path from anarchy to justice must go through injustice’, which, in the context of global governance, requires the development of ‘effective but illegitimate institutions’.54 The argument is rejected by Cohen and Sabel, who conclude that equal concern for co-members follows the fact of the exercise of political authority by an institution with responsibilities for distributing a public good and rules for mutually beneficial cooperation. The allocation of public goods is no longer the exclusive responsibility of states; international organisations such as the United Nations, World Trade Organization and International Monetary Fund are important global actors, and it is often not possible for states to avoid their regulatory reach. It makes no sense to limit rights of political participation and the idea of democratic opinion- and will-formation to the domestic level.55 There is a direct rule-making relationship between the global bodies and the citizens of different states. In an attenuated but significant way, our wills – the wills of all

50

ibid at 130. 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 organisations ‘embody and nurture the spirit of global solidarity’: Bhikhu Parekh, ‘Cosmopolitanism and Global Citizenship’ (2003) 29 Review of International Studies 3, 14. 51

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330 Deliberative Democracy Beyond the State subject to the rule-making authority – have been implicated, sufficiently much that rules of this type can only be imposed with a special justification.56

The exercise of effective political authority through law requires justification to those subject to the (global) regulatory regime. Elsewhere, Cohen and Sabel observe that the ‘emergence of global politics is marked by a proliferation of political settings beyond domestic boundaries’. The globalisation of governance has resulted in new political actors, ‘shifting our understanding of political units and of relations among them’.57 Dismissing the possibility of a global democratic state, defined by reference to competitive elections, they conclude that the fragmented systems of global governance must be subject to the disciplining power of public reason.58 There is a need to apply the cardinal principle of deliberative democracy (‘the force of better argument’) to global regulators. The aim of a deliberative process is to find solutions that others can accept. Any number of processes might be both possible and acceptable within the many global public spheres, ‘loosely linked by elements of global public reason and global politics more generally’.59 The practice of global politics would allow for the emergence of a common global identity: ‘we would have a global demos[,] [with] sufficiently many of the indicia of a people … to make sense of talk of a global democracy without a global state’.60 Gráinne de Búrca builds on the argument to call for an approach to the democratisation of global governance that emphasises the fullest possible participation 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 possible participation and representation of those affected would be central to the design of global governance structures, rather than issues such as policy effectiveness or efficiency.63 The focus would be on ‘functional participation’, the involvement of interest groups, but without defining in advance those groups that would enjoy a ‘privileged stake in decisionmaking’. Central to the argument is the democratic principle of political equality, which concerns the idea of equal opportunity to participate in the process of governing, and equal consideration for the interests of all

56

ibid at 168. 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. 57

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Conclusion 331 members of the community.64 Rights to equal opportunities for participation and equal consideration would be accorded to ‘those concerned and affected by the policies being made’, but the class of individuals would not be determined in advance and would not be defined at any once and for all point in time. The first step would be to identify those groups, interests and individuals most likely to be concerned by the policies in question, but it must always be possible for other groups, interests and individuals 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 that frame the exercise of public authority. Norms and principles of political justice must be agreed by those subject to the legal order through democratic debate (both within and outside of formal institutions). The locus for ‘constitutional’ debates about the nature of justice is no longer (if it ever was) constrained by the boundaries of the sovereign state. An autonomous legal order is established where law officials act in accordance with a rule of recognition, or basic norm, that provides validity for all norms in the legal order and constitutes the legal order as a single system of law. All legal systems have primary rules that determine the normative situation of subjects, and secondary (or ‘constitutional’) rules that frame and delimit the exercise of regulatory authority in accordance with 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 enforcement of law norms is irrelevant in establishing the existence (or otherwise) of an autonomous system of law, and once established, an autonomous system of law – by definition – exercises its global regularly functions in accordance with its own conception of political justice, worked out through democratic procedures.

CONCLUSION

In the practice of democracy at the level of the state, ‘those affected’ are a subset of ‘those subject’ to law norms. Democratic laws represent an expression of the will of the people as a whole, but the liberal principle of consent (and concern for injustice) provides that laws are legitimate (according to the deliberative model) only where those who will be affected by the law consent to its introduction. Following the globalisation and fragmentation of regulatory functions, the ‘law’ norms that frame social, economic and political life are not only the product of state 64 65

ibid at 252. ibid at 253.

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332 Deliberative Democracy Beyond the State law procedures. Non-state actors have emerged as significant actors in global regulation, often with few opportunities for those subject to, or affected by, global norms to participate in the processes that lead to their adoption. At the level of the state, democratic procedures and institutions legitimate the exercise of coercive political authority in a taken-forgranted political community. Historically, the development of liberal democracy has been inseparable from the building and consolidating of the sovereign nation-state, with a ‘symmetrical or congruent relationship… presumed to exist between those experiencing outcomes and those taking decisions’.66 The modern idea of democracy developed in the context of the (sovereign) state, and has, thus far, only been (albeit imperfectly) successfully practiced at the level of the state, although, as Lars-Erik Cederman observes, the fact that democracy and the state ‘“grew up together” does not mean that the two are indissolubly linked’.67 Hitherto, demos has been defined by reference to membership in a taken-for-granted political community — the state. The mythology around the idea of a social contract between government and governed (the ideal of a voluntary association) has, though, underplayed the role of democracy in legitimating the exercise of coercive authority. Demos did not define its own boundaries, it was defined by the exercise of political authority. The requirements for valid global regulation (in terms of international law) are, first, the issuing of regulatory directives framed in terms of international law, and, secondly, a recognition that the global ‘regulatory’ actor enjoys legitimate authority. The exercise of legitimate authority depends on the adoption of regulations in accordance with the right reasons that apply to subjects, determined through (deliberative) democratic procedures. It depends on deliberative forms of decision-making that take into account the interests and perspectives of those subject to the directives of the law order. The ‘democratic’ legitimacy of the international law norms of an international governance regime requires that a non-state actor operates within a constitutional framework that recognises those subject to the normative regime as its authors, albeit indirectly. Members of the communicative community of the international governance regime — ‘those subjected’ — have the right to participate in decision-making processes, directly or through representatives. In order to be recognised as a legitimate authority, a non-state actor must legislate in accordance with the right reasons that apply to those

66 Susan Marks, ‘Democracy and International Governance’ in Jean-Marc Coicaud and Veijo Heiskanen (eds), The Legitimacy of International Organizations (Tokyo, United Nations University Press, 2001) 47, 50. 67 Lars-Erik Cederman, ‘Nationalism and Bounded Integration: What It Would Take to Construct a European Demos’ (2001) 7 European Journal of International Relations 139, 157.

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subject to the regime, and it is not possible to do this in the absence of the representation of the interests and perspective of ‘those subject’ in formal processes. No one template will apply to all international organisations and other non-state actors, but the failure to ensure the effective representation of the right reasons that apply to subjects will preclude the recognition of the global regulator as a (legitimate) authority; the directives issued by a global regulator that does not enjoy (legitimate) authority cannot be regarded as international law norms (properly so-called).

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9 Democracy in Conditions of Global Legal Pluralism

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HERE IS A developing recognition of the need for the discipline of international law to engage with the insights of legal pluralism in order to evaluate and make sense of the idea, authority and application of law following the globalisation and fragmentation of governance. The dominant positivist (or ‘Westphalian’) analysis provided that the sovereign will of a taken-for-granted political community provided validity for both (internal) state law, and (external) international law. The literature on legal pluralism demonstrates a need to be more open minded in defining and understanding the concept of law, highlighting the possibility of individuals being subject to the legal systems of non-state (nonsovereign) actors.1 The traditional focus of legal pluralism has been on communities within the state: religious communities, indigenous peoples, etc. Gunther Teubner argues that the globalisation of law requires that theories of legal pluralism shift their focus ‘from groups and communities to discourses and communicative networks’.2 In conditions in which the state does not possess a monopoly on norm-creation, as opposed to the legitimate use of coercive force, the definitive issue to consider is ‘where are concrete norms actually produced?’3 The following sections examine the concept of normative pluralism, and the need for an analytical concept of (global) legal pluralism. The work then applies the deliberative model of democratic legitimacy to the idea of global legal pluralism, concluding that the democratic legitimacy of law requires (ultimately) that constitutional democracies evaluate the democratic legitimacy of the authority of public international law and the regulatory norms of international organisations and other non-state actors, and reflect on their own laws and practices in light of the political truths (defined in terms of right policy or political justice) established in other systems of law.

1 See Paul Schiff Berman, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155, 1193. 2 Gunther Teubner, ‘Global Bukowina’: Legal Pluralism in the World Society’ in Gunther Teubner (ed), Global Law Without a State (Aldershot, Dartmouth, 1997) 3, 7. 3 ibid at 11.

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Pluralism in Global Governance

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PLURALISM IN GLOBAL GOVERNANCE

The globalisation and fragmentation of governance has created a number of problems for the practice of democracy: the norms that regulate social, economic and political life are legislated by democratic institutions established in accordance with the domestic constitutional settlement, but subject to international law norms; public international law norms are increasingly intrusive in the regulation of matters previously within the domaine réservé of states; the consent of the state is not always required for international law norms to be opposable to the state; and international organisations and other non-state actors are increasingly important producers of ‘law’. There is a loss for democracy, given that the people do not decide for themselves, by democratic political procedures, all those conditions of their lives that are politically decidable. The argument here is that international law norms (the argument applies equally to state law norms) enjoy (legitimate) authority only where adopted in accordance with the right reasons that apply to subjects, with right reasons identified through democratic procedures. The focus is the dyadic relationship between authority and subject. In the real world of global governance, however, a legal actor may be subject to the regulatory directives of a number of legal systems, which are not organised in accordance with any constitutional settlement. The complexities are evidenced by the facts that more than one state law may apply in any given circumstances, reflected in jurisprudence on the conflict of laws and non-territorial bases of jurisdiction; international law norms may conflict, in relation, for example, to treaty and customary international law, and in the application of different international law norms (nonintervention, protection of human rights, etc); and the disorganised forms of international governance established by the various sectoral regimes may assert jurisdiction in relation to the same act or actor. Plurality within system type is complicated by a plurality of system type, as state law, international law and international governance regimes may assert jurisdiction in a given social arena, leading to overlapping and potentially conflicting law norms, with no a priori reason to privilege or prioritise one legal norm over another. Following the globalisation and fragmentation of governance, in the counterfactual ‘democratic’ ideal, as Dennis Thompson observes, the problem of democracy might be ‘the problem of many majorities’, which results from the fact that ‘decisionmaking authority is dispersed, and that no majority has an exclusive and overriding claim to democratic legitimacy’.4

4 Dennis Thompson, ‘Democratic Theory and Global Society’ (1999) 7 Journal of Political Philosophy 111, 112.

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336 Democracy and Legal Pluralism The complexities reflected in an acceptance of a condition of legal pluralism in global governance are not the result of the collapse of the Westphalian settlement which allocated political authority to (relatively) clearly delimited political communities. Legal pluralism was (and remains) a feature of the Westphalian system: more than one state law may apply in any given circumstance, international law norms may conflict, and the application of different international law norms may provide for different outcomes. Article 38(1) of the Statute of the International Court of Justice does not, for example, with the limited exception of judicial decisions and the writings of publicists (which are regarded as a ‘subsidiary means for the determination of rules of law’), recognise any hierarchy of international law norms, certainly not as between custom and treaty: the adoption of a treaty does not subsume and supervene a conflicting norm of customary international law, ‘customary international law continues to exist alongside treaty law’.5 There is an informal hierarchy, in that ‘treaties generally enjoy priority over custom and particular treaties over general treaties’, but this is merely incidental to the fact that most general international law is jus dispositivum, permitting states to derogate from it by establishing specific rights or obligations to govern their relations.6 A condition of legal pluralism exists where more than one legal system asserts (seemingly valid) jurisdictional authority over a particular act or actor at a particular moment. The dominant assumption in the literature on legal pluralism is that the sovereign state does not have a monopoly on the establishment and enforcement of law norms (as opposed to social norms), or application of the word ‘law’ to its normative provisions.7 Whilst official forms of state law are clearly ‘law’, the pluralist approach ‘acknowledges that such official assertions of jurisdiction are only one of the many ways in which normative commitments arise’. Non-state norm-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 from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission’, finalised by Martti Koskenniemi (13 April 2006) UN Doc A/CN.4/L.682 para 95.. 7 Roger Cotterrell identifies four approaches to legal pluralism: an ‘orthodox juristic approach’, which, following Hans Kelsen, asserts that there must be a single criterion of law that can be applied to the diversity of legal regimes, with the criterion determining the relationship between the regimes (and structure of legal authority within and between regimes); an agnostic approach, adopted by William Twining, which avoids any final determination of the criterion of law; a statist approach that identifies ‘legal’ regimes by reference to criteria modelled on state law systems; and the approach adopted by Brian Tamanaha, 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 Juris 1, 8.

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articulate visions of future worlds’.8 The standard example concerns the customary laws of indigenous communities. The experience of colonialism resulted directly in a situation of legal pluralism, which often remained following sovereign independence for colonised territories, as European 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 which culturally very different legal systems coexisted that were vastly unequal in power’.9 Sally Engle Merry refers to this intersection of indigenous law and (European) ‘state’ law (often applied in non-European states) as ‘classic legal pluralism’, in distinction to ‘new legal pluralism’, which concerns the application of the concept of legal pluralism to ‘noncolonized societies, particularly to the advanced industrial countries of Europe and the United States’.10 The idea of legal pluralism can be applied both within and between legal systems. Within a legal system, the rule of law suggests that principles of legal hierarchy and rules of interpretation will resolve conflicts between apparently equally applicable law norms: it should be possible to determine the position of parties to a legal dispute in accordance with the (constitutional) rules about rules. Where legal norms conflict, the rule of law operates in a ‘jurispathic’ manner, killing off one of the legal norms, or refusing to apply it in the particular case.11 The possibility of inconsistent rules is recognised, but regarded as problematic from the perspective of the rule of law, as it will place an individual in a position where to act in a particular way results in law-breaking behaviour; equally not to act results in a violation of a law norm. A more radical version of legal pluralism accepts the possibility that more than one form of law can apply in a particular social arena without any ‘constitutional’ rules able to reconcile conflicting law norms. Law is only capable of resolving conflicts of law norms in accordance with the science of law. If a conflict between law norms can be resolved in accordance with legal rules or principles then we must accept one of two possibilities: either the law norm that prevails is a ‘higher’ norm (or the product 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 of law). Both conclusions are inconsistent with the central lesson of legal pluralism, ie that legal systems are autonomous, and by definition cannot

8 Paul Schiff Berman, ‘The Globalization of Jurisdiction’ (2002) 151 University of Pennsylvania Law Review 311, 493. 9 Sally Engle Merry, ‘Anthropology, Law, and Transnational processes’ (1992) 21 Annual 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.

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338 Democracy and Legal Pluralism be subject, as a matter of law, to the authority of another legal system (if that were the case, the system would not be an autonomous system of law, but would form part of the other legal order). The radical version of legal pluralism has traditionally been associated with a rejection of any claim by the state to enjoy a monopoly on the creation of law norms. The argument for state-centralism is summarised by Robert Cover: the state and its designated hierarchy are entitled to the exclusive or supreme jurisgenerative capacity. Everyone else offers suggestions or opinions about what the single normative world should look like, but only the state creates it.12

Cover rejects the statist paradigm, arguing that the creation of ‘legal meaning – “jurisgenesis” – takes place always through an essentially cultural medium’. The state is ‘not necessarily the creator of legal meaning, the creative process is collective or social’.13 Commonality of interests and objectives may result in patterns of social behaviour, in which groups of individuals ‘generate their own articulate normative orders[:] a new nomos, with its attendant claims to autonomy and respect’.14 The jurisgenerative process is one in which autonomous communities create law and give meaning to law through their own narratives and understandings. The focus is small, face-to-face communities, usually defined by reference to religious belief, with the analysis demonstrating that members of a group are often willing to comply with the laws of the group at a significant cost to themselves; that state law orders are rarely experienced as richly or painfully as those of smaller groups; that there is no reason to conclude that the law of the groups is necessarily liberal, or ‘good’; and, as Judith Resnik observes, ‘the thinner version of law associated with nation-states may have less durability over time, even as it can be more powerful (“jurispathic”) in a particular instance’.15

NORMATIVE PLURALISM

Brian Tamanaha identifies the following forms of normative ordering in the literature on legal pluralism:16 official legal systems; customary

12

ibid at 43. 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. 13

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Normative Pluralism

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(‘cultural’)17 normative systems;18 religious (‘cultural’) normative systems;19 economic or capitalist normative systems;20 functional normative systems;21 and community (again, ‘cultural’) normative systems.22 The final five are defined in relation to their distinction to the first. The idea, problems and possibilities of legal pluralism occur because, as Tamanaha points out, each of the six sources of normative ordering ‘typically make one or more of the following claims: they possess binding authority, they are legitimate, they have normative supremacy, and they have (or should have) control over matters within their scope’.23 Official legal systems are characteristically linked to ‘an institutionalized legal apparatus of some kind’, legislatures and courts, with formal rules concerning rights and responsibilities. There may be more than one official source of law in a ‘social arena’, with, for example, individuals in the 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 of international 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, very difficult to think about law without government, and the imposition of law by government.26 Law is the ‘essential framework of government’.27 17 The distinction between customary laws and cultural norms lies in the inter-actor relationships, ie laws can only apply to ‘real’, as opposed to ‘imagined’ communities of actors. Social and moral communities define themselves by (imagined) reference to co-membership. Political communities are defined by the authority of law. 18 Customary normative systems consist of shared social rules and customs, as well as social institutions and mechanisms: Tamanaha (n 16) at 397. 19 Religious normative systems are ‘an aspect of and inseparable from customary normative systems’: ibid at 398. They may be legal systems in one of two senses: through recognition of their norms by the official legal system, and in that they embody what members consider to be customary law: ibid. 20 Economic/capitalist normative systems consist of those norms and institutions that constitute 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 function that is not purely commercial, examples include universities and sports leagues: ibid at 399. 22 Community or cultural normative systems involve ‘an imagined identification by a group of a common way of life’. This will normally be tied to a common language and history, 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 considers themselves to be a member of an indigenous people (ie a specific group), and also one of the world’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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340 Democracy and Legal Pluralism This is the dominant understanding of official forms of law in the literature on legal pluralism; yet international law is regarded as an official form of law, notwithstanding the fact that the international system lacks the institutions of government, notably a central legislature, and courts and executive to ensure the coercive enforcement of international law norms. Since the seventeenth century, however, following Grotius, De jure belli ac pacis,28 and Emer de Vattel, Le droit des gens,29 writers have referred to the ‘law’ of nations and/or ‘international law’, a term coined in 1789 by Jeremy Bentham to apply to ‘mutual transactions between sovereigns’.30 Roberts argues that the idea of law and ideology of ‘legalism’ is associated with the processes of centralisation ‘that led ultimately to the formation and proliferation of the nation state’. The linkage between the exercise of (coercive) political authority and ‘law’ has proved extremely durable, with the term ‘law’ applied to all instances of governance at all levels, including the international level. Where the processes of ‘state formation’ are replicated at the regional and global level, the application of the term law is ‘entirely unproblematic’: ‘The whole thing is just moved up to another site.’ Given the dominance of law in providing meaning at the level of the state and the wide extent to which the discourse of law has now for a long time provided the idiom in which aspects of relations between states are characterised, it is not surprising that a natural, instinctive response of the actors involved should be to extend the use of that idiom to characterise understandings and practices at regional and global level.31

That being said, Roberts urges caution in ‘representing what are essentially negotiated orders at regional and global level as legal orders’, given in part that the regional and global governance norms are reached through 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) international law. Following the Peace of Westphalia 1648, sovereign authority

27

ibid at 24. 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 (Washington and London, M Walter Dunn, Publishers, 1901). 29 Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (Dublin, Luke White, 1787). 30 Jeremy Bentham, A Fragment on Government and an Introduction to the Principles of Morals and Legislation (Oxford, B Blackwell, 1948) 426, quoted in Jeremy Rabkin, ‘American Self-Defense Shouldn’t be too Distracted by International Law’ (2006) 30 Harvard Journal of Law and Public Policy 31, 34 31 Roberts (n 25) at 18. 32 ibid at 23. 28

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What is Legal Pluralism?

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was divided into its internal and external components: state law and inter-nation law. The idea of Westphalian law implies a direct link to an exercise of sovereign authority by states, both at the domestic level and in relation to the development of a system of public international law: ‘The rules 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 an expression of sovereign will.

WHAT IS LEGAL PLURALISM?

Tamanaha refers to ‘forms of normative ordering’. In an influential article, John Griffiths argues that legal pluralism involves a rejection of ‘legal centralism’, the ‘myth’ that ‘law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions’, and that other ‘lesser’ normative orderings, such as those of the church, family, etc, ‘ought to be and in fact are hierarchically subordinate to the law and institutions of the state’.34 Griffiths identifies two versions of legal pluralism. According to the weak version, a legal system may be said to be pluralistic ‘when the sovereign (implicitly) commands … different bodies of law for different groups in the population’. The paradigm example is the recognition of the laws of indigenous peoples by the colonial power or state, a situation that constitutes a move away from the idea of a uniform state legal system.35 The basic ideology remains, however, centralist. The fact of recognition reflects an idea ‘that “law” must ultimately depend from a single validating source’.36 Griffiths goes on to develop a model of legal pluralism in the strong sense. In doing so he relies on Sally Falk Moore’s idea of a ‘semiautonomous social field’, which has ‘rule-making capacities, and the means to induce or coerce compliance’, but which is ‘simultaneously set in a larger social matrix which can, and does, affect and invade it’, with and without the ‘invitation of persons inside it’, and sometimes at the insistence of outsiders (although a self-regulating social field is likely to fight any encroachment on its autonomy).37 The semi-autonomous social field 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. 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. 34

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342 Democracy and Legal Pluralism coerce or induce compliance to them’.38 According to Griffiths, Moore defines a semi-autonomous social field as ‘an identifiable social group which engages in reglementary activities.’ This provides her criterion of the ‘legal’: ‘reglementation’ (ie regulation) by a semi-autonomous social field is ‘law’.39 The norms established by a semi-autonomous social field may be regarded as ‘more or less “legal” according to the degree to which it is differentiated from the rest of the activities in the field and delegated to specialized functionaries’. Given that ‘law’ is present in every semi-autonomous social field and every society contains many such fields, ‘legal pluralism is a universal feature of social organizations’. Social action takes place ‘in a context of multiple overlapping “semiautonomous social fields”’,40 ie in conditions of legal pluralism. Law cannot be subsumed with a single system, given that laws have their sources in the self-regulatory activities of the various semi-autonomous social fields in a given social arena. The law that is ‘actually effective on the “ground floor” of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism, and the like’.41 Legal pluralism is the presence in a social field of more than one legal order. Griffiths’ analysis has been subject to criticism by Tamanaha, who argues that Moore repudiates his use of the semi-autonomous social field to identify ‘law’. Moore writes that ‘non-governmental, semiautonomous social fields [can] generate their own (non-legal) obligatory norms to which they can induce or coerce compliance’.42 Tamanaha reminds us that, according to Griffiths, the norms of the semiautonomous social field are ‘law’; by ‘pointedly injecting the qualifier “non-legal” in this passage, Moore firmly demurs’.43 Tamanaha highlights the habit in the literature on legal pluralism of conflating the idea of normative pluralism with that of legal pluralism. Griffiths himself has argued that the word ‘law’ could be abandoned altogether, with legal pluralism ‘reconceptualized as “normative pluralism”’.44 The distinction between normative pluralism and legal pluralism collapses if all forms of social control are regarded as law, with little to be gained; a conclusion that ‘all forms of social control are law’ raises the suspicion legal

38

ibid at 722. Griffiths (n 34) at 36. 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. 39 40

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Global Legal Pluralism 343 pluralism is simply concerned with a ‘an exercise in theoretical re-labelling, transforming the commonplace sociological observation that social life is filled with a pluralism of normative orders into the supposedly novel observation that it is filled with a pluralism of legal orders’.45 Where Griffiths was wrong, Tamanaha argues, ‘was in thinking that law could be formulated as a scientific category’. At different times and in different places, ‘people have seen law in different terms’. State law is the current 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 ius commune, natural law, and more’.46 Tamanaha concludes that the term ‘law’ should be applied to ‘whatever people identify and treat through their social practices as “law” (or recht, or droit, etc.).’ A situation of legal pluralism exists whenever more than one kind of ‘law’ is recognised through the social practices of a group in a given social arena. Legal pluralism refers to different phenomena that are labelled ‘law’.47 GLOBAL LEGAL PLURALISM

Paul Schiff Berman applies the insights of the literature on legal pluralism to global governance, identifying a situation in which (international) laws are made by states and international organisations, in addition to a variety of transnational, sub-national, and epistemic ‘communities’.48 What we observe is an ‘interlocking web of jurisdictional assertions’ by states and non-state actors, which include formally constituted international organisations and ‘non-state normative communities’, such as ethno-cultural minorities and ‘communities of transnational bankers developing their own law governing trade finance’.49 The existence of overlapping jurisdictional assertions creates a ‘potentially hybrid legal space that is not easily eliminated’;50 nor is it necessarily to be avoided, as multiple overlapping jurisdictional assertions allow for a greater possibility 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 of Law 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, international legal pluralism recognizes the value of diversity in the choices, traditions, and approaches of international actors when those actors create rules, procedures, and even courts.’ 49 Berman (n 1) at 1161–62. 50 ibid at 1159 (references omitted).

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344 Democracy and Legal Pluralism larger space for creative innovation.51 Global legal pluralism allows for experimentation in social, economic and political policy, and avoidance of the possibility of domination by a global Leviathan. It also allows (democratic) minorities within legal systems to appeal to other legal orders 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 domestic politics.53 A notable example is the participation of indigenous peoples in drafting the United Nations (UN) Declaration on the Rights of Indigenous Peoples, and in developing the scope and content of the systems of international human rights law.54 We might, then, seek to create or maintain hybrid legal space for conflict between multiple overlapping jurisdictional assertions, rather than develop strategies for removing hybridity, and develop mechanisms, both doctrinal and procedural, that seek to manage hybridity (consider, for example, the margin of appreciation doctrine developed by the European Court of Human Rights). Berman concludes that a tolerance of pluralism in global governance would involve a recognition that ‘multiple communities may legitimately wish to assert their norms over a given act or actor’. Even where deference to the position of another legal regime is not possible, because there are limits on tolerance, ‘procedures for managing hybridity can at least require an explanation of why 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. 52 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887, 893. 53 See Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices’ in Thomas Risse et al (eds), The Power of Human Rights: 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 in terms 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 customary international law norms in domestic debates). The dispute between the (domestic) ‘democratic’ majority and (indigenous) minority is translated into a ‘collision’ between the state law and international law. In addition to the participation in ‘legislating’ the norms in GA Res. 61/295, 13 September 2007, ‘The United Nations Declaration on the Rights of Indigenous Peoples’, applications from indigenous groups have been important in developing the human rights ‘case-law’ in relation to art 27 of the International Covenant on Civil and Political Rights (the minority right to a distinctive ‘way of life’). See for example Chief Bernard Ominayak and the Lubicon Lake Band v Canada, Communication No 167/1984 (10 May 1990) 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 recognition and respect to all communities is widely accepted in the literature. Brian Tamanaha refers to a distinction between liberal (individualistic) and non-liberal (non-individualistic) cultural norms, noting the common examples concerning ‘the position and treatment of women,

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Rethinking Global Legal Pluralism 345 understand themselves to be bound by the norms of these multiple groups’.56 The aim should be to ‘study empirically which statements of authority tend to be treated as binding in actual practice and by whom’.57 Relying on Moore’s idea of the semi-autonomous social field, Berman argues that we should accept that a legal system may be ‘both autonomous and permeable’, with outside norms (and legal orders) affecting, but not dominating, the (legal) system. Arguments that have been applied to the relationship between state law and ‘internal non-state law’ can also be applied to the ‘external dialectical interactions both with other states, and with various international or transnational legal communities’.58 The reliance on Moore in a work on global legal pluralism is problematic, given her repudiation of the idea of the semi-autonomous social field as a source of ‘law’. Berman appears to recognise this when he argues that ‘pluralism frees scholars from needing an essentialist definition of “law”’.59 There is no need to engage in ‘long and ultimately fruitless debates’ about what constitutes law. We can instead ‘take a non-essentialist position: treating as law that which people view as law’.60 Berman makes express reference to Tamanaha’s understanding of ‘law’, which moves the focus away from state law, and allows us to avoid the ‘endless debates both about whether international law is law at all’.61 The analysis provides important insights into the nature of global governance; it is, however, difficult to accept the argument that there is no requirement for, and little to be gained from, any analytical enquiry into the idea of ‘law’ (and the ‘legal’ in global legal pluralism), with the attention 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 communications (‘directives’) framed in terms of law, ie coded legal/illegal, or other binary equivalent, issued by an authority to subjects of the legal family related issues, and caste related issues—including child marriages, arranged marriages, divorce rights, inheritance rights, property rights, treatment of low caste, and religious 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.

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346 Democracy and Legal Pluralism order, with law-actors capable of interpreting the content and application of law norms, and consequently of developing the law. The idea includes, inter alia, Westphalian forms of state and international law, and the exercise of global regulatory authority framed in terms of law, in addition to the laws of indigenous peoples, the complexities of which I have dealt with elsewhere.62 A situation of legal pluralism exists where more than one (legitimate) authority determines the normative situation of an actor at a point in time. In the absence of a global constitution (or global constitutional settlement), it makes no sense to refer to an idea of ‘global law’. The global legal order (‘global governance’) is characterised by a plurality of (largely) autonomous systems of (international) law. The only common feature is that they are systems of ‘law’. Conflicts of legal orders raise different questions from conflicts between normative regimes, and in contrast to conflicts between legal orders and other forms of normative ordering (customs, morals, etc), conflicts between (autonomous) systems of law cannot be resolved by reference to any a priori hierarchy. The basic norm or rule of recognition establishes a normative order as an autonomous system of law, and defines its relationship with other systems of law, whilst maintaining its autonomy. An autonomous legal order cannot subject itself to the authority of another and remain autonomous: it cannot subject itself to the basic norm or rule of recognition of another legal order. In conditions of global legal pluralism, it is necessary to develop an analytical framework to make sense of the relationships between legal orders. The fact that systems of law are (according to their own rule of recognition, or basic norm) autonomous requires that any analysis of the problems and possibilities of (global) legal pluralism be undertaken from the internal perspective of each system – there are no meta-perspectives from which we can structure the legal orders that together make up the modern world of law. Neil Walker observes that there are a number of ways in which legal systems can arrange themselves. First, the idea of institutional incorporation, in which the ‘host’ normative order introduces a general provision providing for the norms of the other order to be incorporated, ‘and, to that extent, to be treated as authoritative within the host normative order’. The only example is the relationship between the EU and Member States.63 Secondly, system recognition – the fact of recognition by the host legal 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 Age of Global Legal Pluralism’ in Michael Freeman and David Napier (eds), Law and Anthropology: Current Legal Issues Volume 12 (Oxford, Oxford University Press, 2009) 351. 63 Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373, 379.

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Rethinking Global Legal Pluralism 347 as in some way intrinsic to the self-definition of the host system’. Examples include the recognition by domestic law systems of international (human rights) law norms.64 Thirdly, normative coordination, which concerns all other cases of coordination between normatively empowered actors that goes beyond the ‘thin’ bilateral or multilateral relations of state law systems to allow for a degree of autonomous institutionalisation beyond the legislated will of states (the example given is the Basel Committee on Banking Standards).65 Fourthly, environmental overlap, which recognises that a plurality of normative assertions ‘can have an actual or potential bearing on the same practical context and on the same actors implicated in the same practical context’. The idea follows from the specialised and fragmented nature of global governance, with each regime having its own stakeholders and protected interests.66 Finally, sympathetic consideration, which is concerned with the migration of constitutional and other legal ideas between legal orders, in circumstances in which the legal orders ‘are neither in an internal normative relation . . . or in a relation of practical interlocking’. Examples include domestic constitutional courts relying on the jurisprudence of other constitutional courts, or the opinions of international human rights bodies that they are not formally bound to follow.67 The idea of sympathetic consideration is premised on the understanding that there is some ground of common understanding between the legal orders on the need to deal with common problems, or recognition of values common to legal orders, in relation, for example, to constitutional and human rights norms.68 It is for each autonomous legal order to determine its own relationship with each of the other legal orders in global governance (a traditional conflict of laws perspective). There is no meta-perspective from which to judge the various assertions of authority and conclude which should apply. Nor is it possible for an autonomous legal order to adopt a position of general deference to the authority of another legal order and to remain autonomous.69 The recognition of the authority of the laws of another legal order constitutes an act of self-limitation that is always

64

ibid at 380. 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 friendly understanding, by which each nation respects the laws and usages of every other, so far as may be without prejudice to its own rights and interests’. Ian Brownlie identifies as one meaning of comity in international law the idea of ‘[n]eighbourliness, mutual respect, the friendly waiver of technicalities’: Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 28–29. 65

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348 Democracy and Legal Pluralism subject to revision or reversal. Legal systems may sometimes make a strategic decision to defer:70 beyond strategic interactions, why would a legal order accept that the legal norms of another order should be recognised and given effect within the system? The issue is different from that of ‘borrowing’, when a legal institution (court, legislature, or executive body) looks to the experiences of other legal orders when faced with a similar problem, and adopts laws when persuaded by the conclusions of the other legal order and its legislative approach. The idea of legal pluralism involves a recognition of the (legitimate) authority of other legal orders, and possibility of giving effect to its laws in the particular case (sometimes at the expense of the host’s law norms). Legal norms represent an expression of political will that constitutes itself in the form of law. (The point applies equally to ‘non-political’ norms, involving for example the new lex mercatoria or economic tropes concerning the putative benefits of a free market and free trade. Whatever the veracity of claims of the Pareto-enhancing benefits of marketbased approaches to the organisation of social, economic and political life, these are political choices.) The establishment of law norms reflects an exercise of political choice by an authority in conditions of uncertainty and reasonable disagreement. The presumption must be (subject to review) that laws reflect a good faith expression of what the authority considers, even misguidedly, to be the ‘right thing’ to do in the particular circumstances, ie that they have arrived at some approximation of a ‘political truth’. There is a presumption in favour of the validity of the norms of a (legitimate) authority, a presumption in favour of the rule of law. In conditions of conflicting assertions of political will framed in terms of law, there is no reason to conclude that a legal order would regard another as being inherently superior; a legal order might recognise the assertion of jurisdiction by another as being more appropriate (as falling more clearly within the domain of the other legal order), or, more significantly for these purposes, reflecting a better approximation of a political truth in conditions of complexity and reasonable disagreement.

70 Consider, for example, the position of those national constitutional courts in EU states, notably the German Constitutional Court, that do not accept the law of the EU will always prevail. Conflict has been avoided thus far, ‘largely through judicial interpretations that have found ways to harmonise EU law and domestic constitutional requirements’: Michel Rosenfeld, ‘Rethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism’ (2008) 6 International Journal of Constitutional Law 415, 419. NW Barber concludes that a pluralist model allows us to move away from the opposing and irreconcilable demands of (state) sovereignty and supremacy of the EU legal order, providing a conceptual framework in which the inconsistent claims can be recognised and co-exist. The risk of system conflict is small where the European Court of Justice strives to interpret EU law in a way that is acceptable to domestic courts, who, in turn, resist crude assertions of primacy of national rules: NW Barber, ‘Legal Pluralism and the European Union’ (2006) 17 European Law Review 306, 328–29.

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Rethinking Global Legal Pluralism 349 The key issue is one of ‘jurispersuasion’ – a legal order must persuade another legal order to recognise it as an autonomous legal order and to accept the assertion of jurisdiction in the particular case. According to Paul Schiff Berman, the focus of analysis in global governance should not be the power of a legal order to coercively enforce law norms through formal institutions of government, but the ability to assert jurisdiction in the language of law.71 Law is not (only) the coercive command of a sovereign power, ‘but a language for imagining alternative future worlds’. This idea of legal jurisdiction as ‘rhetorical persuasion’ is the dominant one in global governance, given the absence of coercive enforcement mechanisms.72 Legal systems should defer when there is a better imagined alternative future world. The question as to whether and when a legal order should defer to another is not a question of law, it cannot be answered by reference to the science or concept of law. The exercise of (legitimate) authority framed in terms of law reflects an exercise of political choice in conditions of complexity and uncertainly. In the absence of consensus, law norms have an impugned legitimacy, an incomplete claim to reflect a political truth or concept of (political) justice. The lack of consensus in relation to proposed or adopted law norms requires a democratic system of law (which is principally concerned with the avoidance of injustice) to reflect and consider whether its position is consistent with the principles of deliberative 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. In conditions of complexity, uncertainty and reasonable disagreement, an authority must accept the possibility that it has failed to regulate in accordance with the right reasons that apply to subjects, and that the regulations of another legal authority might represent a more accurate determination 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 determined through engagement with subjects through democratic procedures and mechanisms, a legal order will only be persuaded to accept the 71 Paul Schiff Berman, ‘Dialectical Regulation, Territoriality, and Pluralism’ (2006) 38 Connecticut Law Review 929, 952. 72 Paul Schiff Berman, ‘From International Law to Law and Globalization’ (2005) 43 Columbia Journal of Transnational Law 485, 534. 73 cf Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90 Minnesota Law Review 1003, 1021: ‘When several authorities pronounce on the same matter and their directives conflict, we must decide, to the best of our ability, which is more reliable as a guide … In such cases the question whether a given authority’s power extends to exclude the authority of another is to be judged in the way we judge the legitimacy of its power on any matter, namely, whether we would conform better to reason by trying to follow its directives than if we do not’.

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350 Democracy and Legal Pluralism regulatory norms of another legal order by references to the criterion of democratic 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 of social, economic and political life by autonomous systems of law provides the basis for structuring the relationships between the various systems of state and international law (broadly defined to include public international law and the international governance norms of non-state actors) that constitute the complex world of global governance. The practice of democracy following the globalisation and fragmentation of governance requires that a legal system not only ‘legislate’ in accordance with the principles of deliberative democracy, but also reflect on the ‘democratic legitimacy’ of conflicting assertions of authority by other systems of law. The conclusion represents an acceptance that there can be conflicting (legitimate) political ‘truths’ (identified through democratic procedures), and conflicting visions of (political) justice. The exercise of legitimate authority requires that a legal system, organised in accordance with a constitution, accepts that it is open to the influences of other systems of law, and other versions and visions of political truth and justice.74 A legal system should defer to the regulatory norms of another legal system where it is persuaded that a conflicting norm represents a better expression of a political ‘truth’, determined through democratic procedures for the adoption of law norms.

STATE LAW AND INTERNATIONAL LAW

Having concluded that it is for each autonomous system of law to establish its own version of political justice (consistent with the requirements of legitimate authority) and that no a priori relationship between the various systems of global governance can be established, the analysis now turns to the relationship between already existing constitutional democracies and international law norms. Given that the practice of democratic government has been established (albeit imperfectly) at the

74 cf Boaventura de Sousa Santos, ‘The Heterogeneous State and Legal Pluralism in Mozambique’ (2006) 40 Law and Society Review 39, 45–46: ‘We can identify three scales [of law]: 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… Paradoxically, if this denser relationship makes conflict and tension between the different legal orders more likely, it also shows that the different legal orders are more open and susceptible to mutual influences. The boundaries between the different legal orders become more porous and each one loses its “pure,” “autonomous” identity and can only be defined in relation to the legal constellation of which it is a part.’

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State Law and International Law 351 level of the state, concern has emerged following the globalisation of governance and the loss for democracy and the enforcement of ‘undemocratic’ and ‘illiberal’ norms adopted by de facto global regulators (with the listing of terrorist suspects by the UN Security Council a particular focus). The state remains central to debates around the legitimacy and authority of international law norms whilst it retains a monopoly on the coercive enforcement of law (although the capacity to commit violence does not legitimate the use of violence). The focus on constitutional democracies is justified by reference to a revised understanding of the normal justification thesis, which provides that the ‘right reasons’ that apply to the citizens of democratic states must be established through democratic mechanisms. The authority of international law norms can only be demonstrated to constitutional democracies by reference to the idea of democratic legitimacy, States have responded to globalisation through the globalisation of governance functions, including inter-state cooperation measures and establishment of regional and global regulatory institutions. Whilst the development can be seen as a practical response, it creates problems for the practice of democracy – once an issue is regulated at the level of international law, the people do not decide for themselves, by democratic political procedures, all of the conditions of social, economic and political life that are political decidable. International law subjects the state law system to the ‘authority’ of global regulatory norms, resulting in a deficit (at the domestic level) in the practice of democracy. Both international law and domestic constitutional law form part of a public law order that constrains the exercise of popular sovereignty, understood in terms of the direct expression of the will of the people through general elections, referendums and other expressions, limiting the possibilities of political self-determination within the state. Constitutional democracies accept the need for international cooperation in response to coordination and collective action problems, but demonstrate an unwillingness to recognise that the will of the people should in all cases be subject to the authority of international law. The relevant questions are then: in what circumstances should a democratic state consent to the adoption of international law norms that regulate the conditions of social, economic and political life within the state, and how should domestic (democratic) systems of law respond to the assertions of jurisdiction and authority by the various systems of international law (broadly defined to include both public international law norms and the regulatory norms of non-state actors)? Abram Chayes and Antonia Chayes observe that (at least in relation to democratic states) the conclusion of a treaty must be regarded as

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352 Democracy and Legal Pluralism representing a considered expression of the national interest,75 and a bargain of mutual interest to the parties.76 The establishment of the treaty regime removes the need to continuously revisit the relevant issue, as it defines ‘the methods and terms of the continuing international discourse in which states seek to justify their actions’.77 Robert Dahl makes the point that ensuring the exercise of popular control over foreign policy presents a ‘formidable problem’.78 Citizens do not generally participate in debates on foreign affairs, partly as a consequence of an absence of information of the activities of the executive in foreign affairs and the practices of international organisations, and the fact that many foreign policy issues appear remote to their interests. The policy positions of democratic states are developed with limited input from citizens, who remain rationally ignorant on questions of foreign policy. There may be occasional exceptions, in relation to major issues such as war or participation in an international regime such as the EU, North American Free Trade Agreement, or World Trade Organization, where citizens can play ‘an influential or even decisive role’,79 but these do not undermine the general rule: citizens at the level of domestic politics do not exercise a determinate influence on the foreign policy positions of states. The lack of citizen participation is noteworthy, given that only four states do not formally require the national parliament to be involved in the acceptance of treaty obligations — Australia, Canada, Israel, and United Kingdom.80 In the majority of states, the mechanisms for adopting treaties are the same as for adopting national legislation,

75 Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with International 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 and Christine Chinkin, The Making of International Law (Oxford, Oxford University Press, 2007) 8. 78 Robert Dahl, ‘Can International Organizations be Democratic? A Skeptic’s View’ in Ian Shapiro and Casiano Hacker-Cordón (eds), Democracy’s Edges (Cambridge, Cambridge University Press, 1999) 19, 23. A notable exception is the Special Agreement between Belize and Guatemala to submit Guatemala’s Territorial, Insular and Maritime Claim to the International 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 International Court of Justice only after the positive approval by the two peoples in simultaneous referenda. cf Bhikhu Parekh, ‘Cosmopolitanism and Global Citizenship’ (2003) 29 Review of International Studies 3, 12–13, on the idea of a globally oriented citizenship that has three components: it examines the policies of one’s country, and seeks to ensure that they do not damage and, within the limits of resources, promotes the interests of humankind; it takes an active interest in the affairs of other countries; and involves an active commitment to create a 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.

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State Law and International Law

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with few relying on supermajorities in legislative bodies, notwithstanding the fact that international law obligations limit the scope and possibilities of democratic self-determination for ‘future majorities’ to a much greater extent than domestic constitutional law norms.81 The democratic legitimacy of state law depends both on an act of legislation that represents the will of the people (at a particular moment), and the fact that the law has remained unaltered by the people. By contrast, consent to international law norms limits the future possibilities of political self-determination unless the state is able to repudiate its international law obligations, or the other states parties to the agreement consent to a variation in the terms of the international public law instrument. Historically, it may have made little sense for citizens to take a direct interest in foreign policy, as international law was principally concerned with issues that had limited impact on the life experiences of most citizens (consider, for example, the international law regimes on diplomatic relations and law of the sea). The argument applies to citizens of sovereign states, and I leave to one side (but do not seek to underestimate) the position of those individuals and groups subjected to colonial and other forms of exploitation ‘legitimated’ by international law.82 International law was inter-state law. That is not to suggest that public international law could not (indirectly) provide citizens with a mechanism for the regulation of important aspects of social, economic and political life. Armin von Bogdandy refers to the idea of international law as providing ‘foreigners a voice in national law-making’.83 International law might be seen, not as a mechanism for ensuring the cooperation of sovereigns, but the cooperation of political communities organised as sovereign states. Traditional forms of international law provide for collective regulation of relevant issues, allowing sovereign communities ‘the power to enter into binding international legal agreements granting states reciprocal influence over each other’s policies … in exchange for Trans-frontier surrendering some domestic discretion’.84

81 Robert A Dahl, Congress and Foreign Policy (Yale Institute of Int’l Studies, Working Paper No 1949) 24, quoted ibid at 1315. 82 cf Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, Cambridge University Press, 2004). Boyle and Chinkin make the point that the non-democratic nature of the customary international law ‘undermines its legitimacy and it is rendered illegitimate to those who have been adversely subjugated by it… To such outsiders who are marginalised “from full citizenship in Western democracies… such as women, indigenous peoples, the mentally ill or refugees”, international law may hold little legitimacy’: Boyle and Chinkin (n 77) at 29. 83 Armin von Bogdandy, ‘Globalization and Europe: How to Square Democracy, Globalization, and International Law’ (2004) 15 European Journal of International Law 885, 901. 84 Robert Keohane, Stephen Macedo and Andrew Moravcsik, ‘Democracy Enhancing Multilateralism’ (2009) 63 International Organization 1, 4.

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354 Democracy and Legal Pluralism pollution, for example, impacts on the life experiences of citizens whose only possibility of influencing the policy choices of the polluting state is (indirectly) through the recognition or development of international law norms on cross-border pollution.85 Martti Koskenniemi argues that the idea of equity in the resolution of international law disputes appears to be concerned with ‘reconciling important interests of a State or part of its population so as to arrive at the most efficient interest-fulfilment for all’.86 Participation in the international law system allows for the possibility of influencing the laws of other states, and allows the state to take into account the interests of those affected by its own policies beyond those defined by the co-membership criterion of citizenship. Dennis Thompson suggests that the democratic principle that ‘those affected’ have a right to participate in deliberations might suggest some institutional changes in domestic politics: the state might be required to establish forums in which representatives ‘could speak for the ordinary citizens of foreign states, presenting their claims and responding to counter-claims of representatives of the host state. The responsibility could even be formalized by establishing a special office – kind of Tribune for non-citizens.’87 The world of positive law that emerged following the Westphalian settlement provided a clear demarcation of regulatory tasks between the state law system (the regulation of social, economic and political life within the state) and international law (relationships between sovereigns). Both forms relied on an expression of sovereign will for the adoption of law norms with legitimacy provided by democratic institutions for the adoption of state law norms, notably national parliaments, and the principle of sovereign equality and requirement of consent for establishing international law norms. The two-track model of democratic self-determination is no longer sufficient to explain the legitimacy and authority of law norms: self-determination for the political community

85 See Stockholm Declaration of the United Nations Conference on the Human Environment Principle 21 (June 16, 1972) 11 ILM 1416; also, Trail Smelter Case (US v Canada) (1941) 3 Rep Int’l Arb Awards 1938, 1965. 86 Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (Cambridge, Cambridge University Press, 2005) 49 (emphasis added). In Delimitation of the Maritime Boundary in the Gulf of Maine Area, the International Court of Justice concluded that whilst the respective scale of activities connected with fishing could not be taken into account as ‘an equitable criterion’, the Court would be concerned to ensure that the application of equitable principles should not ‘unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned’: Delimitation of the Maritime Boundary 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 Political Philosophy 111, 121–22.

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that is the state is no longer guaranteed by domestic democratic institutions and a contractual model for the development of international law. International law norms are greatly intrusive in terms of regulation of matters previously within the domaine réservé of states and positive consent is no longer regarded as essential for the creation of international obligations. We have seen a shift from an essentially contractual model of international law, to a public law, or ‘governance’, model. The development is reflected, inter alia, in the decline of the importance of consent in international law, emergence of ‘law-making’ treaties, majoritarian tendencies in the development of customary international law, and development of a modern form of custom that relies on widely accepted international treaties and the resolutions of international organisations (notably the UN General Assembly) to identify both the practice of states and requisite opinio juris. The development of a normative hierarchy in international law, emergence of global regulators (the United Nations, for example), and (implicitly) a global constitutional order provides a new context for (domestic) democratic self-determination. The practice and theory of law following the globalisation and fragmentation of governance must reconcile the requirements for openness to other systems of law and the need for international cooperation, with the factual and constitutional constraints provided by the autonomy that characterises all legal systems defined by reference to a basic norm or rule of recognition (‘sovereignty’ in the nomenclature of the state, although the term is so closely tied to the Westphalian concept of the state and positive law that it should be avoided in other contexts). The controversy and complexities are not, though, the result of globalisation and fragmentation. The relationship between international law and state law is not settled as a matter of legal practice or theory. International law texts refer to the ideas of monism (the supremacy of either international law or state law) and dualism (a plurality of legal systems). The Westphalian settlement that divided sovereign authority into its internal and external components failed to resolve the relationship between the two.88 From the perspective of international law, once a state has accepted an international law obligation, it may not invoke provisions of domestic

88 See article 15, of the League of Nations Covenant: ‘If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.’ The contemporary position is reflected in article 2(7), of the UN Charter: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’

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356 Democracy and Legal Pluralism law to justify a failure to comply,89 even where the domestic law reflects fundamental ‘constitutional’ norms,90 and/or an expression of democratic will-formation.91 A state cannot plead a provision of its internal law in response to a claim of an alleged violation of its obligations under international 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 has been accepted by the domestic system of law.94 The complexities of the relationship between state and international law are illuminated in the work of Hans Kelsen, who refers to the idea of international law norms as incomplete norms: international law prescribes what ought to be done by states, but leaves it to the discretion of the state in determining the identity of the juristic person that will in fact carry out the international law obligation.95 The international law order presupposes the existence of the state law orders and ‘delegates’ the function of completing its own norms.96 International law forms part of a ‘universal legal order’, which also includes state law orders.97 States are sovereign ‘as long as no international law exists or is assumed to exist’. But if international 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: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ cf art 46(1): a state ‘may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest 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 Treatment of Polish Nationals in Danzig PCIJ Series A/B No 44, 24. 91 Article 32, ‘Irrelevance of Internal law’, Articles on Responsibility of States for Internationally Wrongful Acts (with commentaries), in Report of the International Law Commission 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’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002). 92 Ian Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 34. 93 Eileen Denza, ‘The Relationship between International and National Law’ in Malcolm 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 noted that whilst no one disputed that the judgment of the International Court of Justice in Avena and other Mexican Nationals (Mexico v United States) (Judgment) [2004] ICJ Rep 12 created an international law obligation for the United States, it did not create enforceable rights at the level of domestic law actionable before domestic courts: Medellin v Texas, 128 S Ct 1346 (2008). 95 Hans Kelsen, General Theory of Law and State, trans by Anders Wedberg (New York, Russell & Russell, 1961) 347. 96 ibid at 348. 97 ibid at 363.

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recognised, determining the existence of states, and the scope and validity of their legal orders.98 International law not only depends on the existence of national law systems, it also ‘determines their spheres of validity in all respects, international and national law form one inseparable whole’.99 The delimitation of ‘sovereign’ competence can only be undertaken by a legal order that encompasses all of the sovereign political communities, ie by the international law order, which determines the existence of states and the jurisdictional competence of state law systems that retain their competence ‘only insofar as international law does not regulate a particular subject matter’.100 The foundational principle of the international law order, pacta sunt servanda, does not depend for its validity on the laws of any one state, ‘since the competence of each State, the scope of validity of a national legal order, is limited to its own sphere.’ In order to create a legal norm that applies to more than one state, ‘States must be empowered by a legal order superior to their own legal order’. It is international law ‘that makes possible the creation of norms valid for the sphere or two or more States, that is, international norms’.101 For Kelsen, the validity of any legal order depends ultimately on the superior or basic norm.102 At the level of the state, the basic norm is provided from the first constitution: ‘That this first constitution is a binding legal norm is presupposed, and the formulation of the presupposition is the basic norm of this legal order.’103 The constitution holds unless there is a revolutionary event when the old order is replaced by a new legal order, but not in conformity with the provisions of the old legal order. If the new order ‘begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order’.104 This presumes a new basic norm. When the international law order is taken into account, the basis for the basic norm of the state law system becomes clear, the principle of effectiveness: ‘The historically first constitution is valid because the coercive order erected on its basis is efficacious as a whole.’105 Given that the basic norm of the national legal order is determined by international law, it is a basic norm ‘only in a relative sense. It is the basic norm of the international legal order which is

98 99 100 101 102 103 104 105

ibid at 370 (emphasis added). ibid at 351. ibid at 350. ibid at 354. ibid at 111. ibid at 115. ibid at 118. ibid at 367.

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358 Democracy and Legal Pluralism the ultimate reason of validity of the national legal orders, too.’106 The basic norm of the international law order is as follows: ‘States ought to behave as they have customarily behaved.’ Customary international law is the first stage within the international legal order, allowing the development of foundational or general international law norms such as pacta sunt servanda.107 In cases of conflict between an international law norm and a state law norm, there is a conflict between a higher and lower norm, but this does not result in the higher order norm invalidating the lower order norm. Where a lower order norm is made in conflict to the requirements of a higher order norm, there may be a ‘delict’, and the act may expose the author to sanction, but the norm may remain valid. This is the case, Kelsen argues, in relation to international law and state law: a state that acts in a way that is inconsistent with its international law obligations is liable to sanction, but ‘international law does not provide any procedure in which norms of national law which are “illegal” (from the 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 understood in one of three ways: the two orders might form part of the same normative order, with one deriving its validity from the other; the two legal orders might derive their validity from a third, common, legal order, which is a superior order that determines the relationship of the two orders; or there may be no relationship between the two (a condition of legal pluralism). Kelsen adopts the first position, finding no evidence of a third legal order and rejecting the argument from legal pluralism. State and international law are in a hierarchical relationship, ie one of the legal orders ‘derives its validity, its relative basic norm, from another, the superior order’. But it is not clear whether state law derives its validity from international law, or international law from state law. Whilst Kelsen adopts a monist position in determining the relationship between the state and international law orders, he accepts that the structuring of the relationship will depend on the perspective of the observer (an argument from legal pluralism). On the one hand, the international law order, through the principle of effectiveness, is seen to determine the sphere and reason of validity of national law, and in this respect may be regarded as superior to national law. On the other, the recognition theory holds that international law enjoys the capacity to determine the sphere

106

ibid at 368. 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 mere useless 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. 107

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and reason of validity of national law ‘only if international law has some validity; and it is valid only if recognized by the State’. The basic norm of the national legal order ‘is the absolute supreme source of the validity of all law and hence the State can be conceived of as sovereign’.109 There can, logically, be only one national law system that is superior: ‘one State only, can be conceived as sovereign’. The relationships between the first state 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, and hence as inferior to, its legal order. Since the other national legal orders derive their validity from international law, they have to be considered as inferior to the legal order of the State which first is, and which, therefore, alone can be presupposed to be, sovereign.110

The sovereignty of one state ‘excludes the sovereignty of every other State’. It is a question of (subjective) perspective, and it is logically possible for different theorists to interpret the world of law by proceeding from the sovereignty of different States. Each theorist may presuppose the sovereignty of his own State… [and] consider the international law which establishes the relations to the legal orders of the other States and these national legal orders as parts of the legal order of his own State.

The theory of the primacy of national law is ‘State subjectivism. It makes the State which is the starting point of its construction, the theorist’s own State, the sovereign center of the world of law.’111 Which then is to be preferred: international law and the principle of effectiveness, or national law and the theory of recognition? Kelsen concludes that the choice cannot be dictated by the science of law, but must be guided by ethical and political preferences: A person whose political attitude is one of nationalism and imperialism will naturally be inclined to accept the hypothesis of the primacy of national law. A person whose sympathies are for internationalism and pacifism will be inclined to accept the hypothesis of the primacy of international law.112

Kelsen concludes that the relationship between state law and international law cannot be determined by reference to the science of law. From one perspective, international law determines the sphere and validity of state law, and is superior to state law. But international law enjoys the capacity to determine the sphere and validity of state law only where it is

109 110 111 112

ibid at 384. ibid at 385. ibid at 386. ibid at 388.

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360 Democracy and Legal Pluralism recognised by the state. It is possible for a state law order to regard itself as sovereign, with international law subject to the sovereign authority of the state, and it is possible for all state law systems to understand themselves in this way. No conclusion is provided by jurisprudence: jurists are free to choose between the supremacy of international law and the principle of effectiveness, or national law and the theory of recognition. The choice cannot be dictated by the science of law, but must be guided 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 the development of the law norms that frame social, economic and political life; it is a preference for democratic self-determination. Drawing on the analysis presented by Hans Kelsen, the preference suggests that a constitutional democracy should regard itself as ‘sovereign’ and construct the world of law in accordance with the ideal of deliberative democracy, only recognising the authority of international law norms consistent with the (democratic) rule of law. State law systems will make strategic decisions to comply with international law norms and may regard themselves as bound by prior undertakings (pacta sunt servanda), but the democratisation of ‘law’ (including ‘international law’) requires the plural articulations of a democratic world of law by (democratic) state law systems, which remain the primary guarantors of public and private autonomy for the individual citizen.

RELATIONSHIP BETWEEN DEMOCRACY AND INTERNATIONAL LAW

In evaluating the democratic legitimacy of international law from the perspective of the state law system, it is important to develop a analysis that grounds the authority of law (state and international law, and new forms of international governance framed in terms of law) in terms of the idea of (legitimate) authority, defined by reference to deliberative democracy. With the exception of the rejectionist literature of the ‘New Sovereigntists’,113 there has been little written on the attitude that democratic systems should adopt in relation to international law norms following the globalisation of governance functions. Notable exceptions are provided in the work of Keohane et al, Buchanan and Powell, Tom Ginsburg and Mattias Kumm. The arguments are considered in turn.

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361

The Limits of International Law The rational choice theory of international law suggests that the question of compliance with international law depends on how political leaders judge the balance of interests for the state in complying with international law against the benefits that might accrue from norm-violating behaviour. Given the absence (in most cases) of the coercive enforcement of international law, the democratic state retains the practical ability, if not the (international law) right, to follow the demands of the (democratic) will of the people, albeit at certain costs in terms of sanctions and reputation.114 Consequently, whilst international law norms create de jure limits on a state’s freedom of action, they do not always present de facto limits on the possibilities of political and democratic selfdetermination.115 The argument is developed by Goldsmith and Posner, who conclude that states have no moral obligation to comply with international law. In evaluating its rational interests, the state will usually conclude in favour of complying with international law norms, but ‘when the instrumental calculus suggests a departure from international law, international law imposes no moral obligation that requires contrary action’.116 The lack of binding authority of international law is a result of the application of a particular understanding of the principle of democratic self-determination. A commitment to comply with international law norms (reflected in ideas of pacta sunt servanda and opinio juris) is made by the here-and-now people. It is not possible, according to democratic theory, for the here-and-now people to bind future peoples (or future majorities). Where a state makes a promise about its future conduct, it pre-commits a different entity (a different set of citizens) to a set of international law obligations (consequently, it makes no sense to draw any 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 revocability and the availability of exit to evaluate the effect of international institutions on sovereignty. That effect on sovereignty is generally very low because only seldom does an international institution rest on irrevocable delegations of power’: Kal Raustiala, ‘Rethinking the Sovereignty Debate in International Economic Law’ (2003) 6 Journal of International Economic Law 841, 852. Dan Sarooshi concludes that, in practice, the conferral of sovereign power is always revocable provided that the state has retained its own sovereign personality: 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, Oxford University Press, 2005) 185. 117 ibid at 190.

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362 Democracy and Legal Pluralism No obligation for accepting the authority of international law follows from the consent of the here-and-now citizens. The normal justification for the exercise of authority (following Joseph Raz) is that individuals subjecting themselves to an authority will more likely act in accordance with right reasons that than if they were to act autonomously. Goldsmith and Posner reject the possibility of applying the normal justification thesis to international law, whereby states would be better off by subjecting themselves to international law than seeking to act according to some rational choice model, concluding that however plausible the normal justification thesis might be for domestic law, ‘it is unlikely to be true for international law’.118 Further, it appears difficult to apply the concept of authority to the international law order, given the absence of an international authority, world government, or other authoritative institution. Moreover, domestic laws are ‘good’ where they respect and promote the autonomy or welfare of citizens, but ‘states do not have autonomy in the same way that individuals do’. The autonomy and welfare of the state cannot be a reason for complying with international law.119 Any moral obligation to obey international law must be grounded in the autonomy and welfare of human persons. The argument must be that individuals would be better off if states had an obligation to comply with international law. This is a question of empirical judgment, and there are many reasons for thinking that the assumption might not be correct.120 Goldsmith and Posner identify two objections to any analogy between the (normal) justification for authority at the level of the state and for recognising the authority of international law. The first concerns the question of presumption, in that we presume that laws in a liberal democracy are good, provided that citizens have influenced the political process. The argument does not apply to international law, and many of the foundational rules of international law ‘evolved long before liberal democracy became a common mode of political organization’. International law ‘reflects the interests of States not individuals’. The second reason relates to enforcement; in contrast to domestic systems, international law ‘is not reliably enforced and depends entirely on states voluntarily setting aside their immediate interests’.121 There is little reason to accept the authority of international law, which is the product of agreements between governments that favour their own citizens (or some subset thereof), with little concern for others or future generations.122 There are no good arguments

118 119 120 121 122

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for imposing a moral obligation on states and citizens to comply with international law. Citizens and leaders might believe that they have a moral obligation to obey international law (and even act accordingly), but this would be a mistaken belief. International law is constructed through the rational self-interest of states; it is a form of politics that relies on ‘precedent, tradition, interpretation, and other practices and concepts familiar from domestic law.’ It is the case that international law ‘can be binding and robust, but only when it is rational for states to comply with it.’123 Commenting on the arguments, Hathaway and Lavinbuk observe that the conclusion is not simply that democratic states are permitted to violate international law; they may be obligated to do so. Liberal democratic states are bound by constituent preferences, not by some abstract cosmopolitan duty to follow international law or to pursue the interests of all humanity . . . When the constituents of a state want the state to act in a way that is contrary to its international legal obligations, the state must do its democratic duty and follow the dictates of its own people.124

Democracy-Enhancing International Law Keohane, Macedo and Moravcsik make the counterintuitive argument that the participation of democratic states in multilateral institutions (international organisations comprised of states) can enhance the quality of democracy by restricting the influence of special interest factions, protecting individual and minority rights, and by increasing the information and arguments available to national politicians and publics (thus improving the quality of democratic deliberation).125 The argument relies on a particular understanding of ‘constitutional democracy, [one] in which much of politics is deliberately insulated from direct majoritarian control’. The model is regarded as a better description of the real world practices of democracy, in which the popular will, established through democratic politics, in only one value. Others include constraints on powerful (economic) actors, the protection of democratic minorities, and recognition of the value of the democratic discussions that precede the point of decision. A system of checks and balances on the exercise of political authority and existence of institutions that are only indirectly

123

ibid at 202. 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. 124

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364 Democracy and Legal Pluralism accountable to the people, such as constitutional courts, is in fact ‘democracy enhancing’.126 Those policy issues delegated to specialised bodies at the domestic level, such as central banking, human rights protection and technical regulation, are the same ones likely to be delegated to international institutions.127 Even with their ‘intrinsic epistemic advantages[,] individual democracies can utilize information, expertise, and debate even more effectively when they participate in multilateral institutions and networks’.128 Elsewhere, Andrew Moravcsik observes that EU decision-making, including decision-making by insulated national representatives, enjoys the greatest political authority in those areas, central banking, constitutional adjudication, economic diplomacy, etc, in which many advanced industrial democracies ‘insulate themselves from direct political contestation’.129 The introduction of ‘insulted institutions’ ensures the impartial implementation of prior bargains within the political community. Three normative justifications, alone or in combination, are provided for their introduction: the need for greater attention, efficiency and expertise in policy areas in which most citizens remain rationally ignorant, or nonparticipatory; the need impartially to dispense justice for individuals and democratic minorities; and the need to provide majorities with unbiased representation 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 insulating certain issues from majoritarian decision-making.130 The justification for insultation is system effectiveness, at the expense of citizen participation,131 and an understanding of democratic will-formation that requires laws to enjoy the support of the majority, subject to the conditions that majority rule does not offend against settled constitutional norms; the principle of public reason; or violate the rights of minorities. Moravcsik concludes that where international institutions ‘perform about as well as the existing, generally legitimate, national systems they (partially) supplant, they should receive the benefit of the doubt’.132 The exercise of regulatory functions by international organisations and non-state actors ‘above’ the state provides a further ‘check and balance’ 126

ibid at 9. 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 Participation’ (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. 127

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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 the all-or-nothing nature of national politics’. By requiring careful consideration of policy choices and demanding that domestic decision-makers justify their actions, the existence of global institutions ‘adds depth to the system of checks and balances, thereby limiting national governmental mistakes and improving social welfare’.133 Engagement with international organisations might well improve the quality of domestic democracy, providing an additional reason for states to accept global law norms, but the analysis does not provide any guidance as to which norms should prevail in cases of conflict and ignores the exercise of global regulatory authority by non-state actors that do not allow for the participation of all states subject to the international governance regime (Germany, for example, is an important member of the EU, but not a permanent member of the UN Security Council).

Constitutional Self-Limitation Buchanan and Powell argue that there are two reasons for citizens of democratic states to accept, what they call, ‘robust international law’, ie international law that ‘claims the authority to regulate matters once considered to be the exclusive concern of the state’.134 The first reason is a cosmopolitan one, to ensure the protection of basic human rights everywhere.135 The second reason is that the participation of the state in an international governance regime can enhance constitutional democracy by ensuring greater protection of human rights, constraining special interest groups in domestic politics, and providing technical expertise and access to ‘best practices’ in a number of policy areas.136 The argument follows from an understanding of democracy as a form of constitutional self-government, requiring entrenched human rights and a separation of government powers, and an acceptance that democracies are fallible: ‘Even the best existing constitutional democracies may fail to provide 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 Administrative Law’ (2006) 115 Yale Law Journal 1490, 1502. 134 Allen Buchanan and Russell Powell, ‘Constitutional Democracy and the Rule of International Law: Are They Compatible?’ (2008) 16 Journal of Political Philosophy 326, 326. 135 ibid at 328. 136 ibid at 329. 137 ibid at 330.

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366 Democracy and Legal Pluralism democracy by providing important factual information, and improving the quality of ‘moral and legal argumentation that is crucial for democratic deliberation about domestic policy’. This may be particularly important 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 bias of democracy’, which only takes into account the interests and perspectives of citizens. It ensures that the state takes into account the ‘basic interests of foreigners’, although this should not imply that the interests of foreigners ‘ought to be weighed equally with those of citizens’.139 Engagement with international law can also serve to promote the idea of the rule of law, which, at both the domestic and international levels, expresses a commitment to resolving conflicts by peaceful means and not by recourse to ‘sheer power’. It is a cosmopolitan argument, assuming ‘the fundamental equal moral status of persons: all are to be treated fairly; vulnerable persons generally, not just the vulnerable who are one’s fellow citizens, are to be protected’.140 The idea of the rule of law does not provide an absolute reason to support robust international law, only a contingent one: the ideas that underlie the commitment to the rule of law suggest that the state should accept the authority of international law ‘in cases where there is a risk that bias and the perquisites of power would otherwise be likely to determine the outcome’. The argument is comparative: international law is to be preferred where the international law norm ‘sufficiently embodies the ideal of the rule of law’. At present, this is unlikely to be the case in most instances.141 Buchanan and Powell accept that even if international organisations and institutions were to operate in a way that could be regarded as democratically legitimate, there would still be a (domestic) democratic deficit, as the exercise of political authority beyond the state would limit the possibilities of political self-determination. The relevant question would be whether the diminution of democratic self-determination was so great ‘as to be incompatible with it warranting the title of a democracy, a territory whose inhabitants are in some meaningful sense selfgoverning’.142 International law norms should be regarded, like constitutional law norms, as a ‘higher’ form of law, and, consequently, should

138

ibid at 331. 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 a democratic state could transfer sovereign powers to an international organisation and remain a democracy: Bundesverfassungsgericht (Treaty of Lisbon), BVerfG, 2 BvE 2/08 of 139

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require a higher standard of acceptance by the democratic system for the removal of policy issues from political contestation. Buchanan and Powell identify a meta-constitutional principle which is ‘both simple and robust: some political changes are so momentous that the ordinary processes for making political decisions are inadequate, and in such cases the decision ought to be made by the ultimate source of political authority, the people’.143 In a democracy, significant constitutional change, concerning the re-allocation of political power, requires ‘some form of democratic authorization that is more robust than the ordinary legislative process[:] public constitutional deliberation and popular choice seem to be required’. Mutatis mutandis, significant delegation of political authority to global governance institutions ‘requires public deliberation and popular choice, some sort of authorization that is more directly democratic than an ordinary legislative act or the ratification of a treaty’. The argument does not apply in relation to all international law norms, only ‘Robust international law’ norms (note the capitalisation): international law norms that can be expected to significantly restrict a polity’s selfdetermination or alter its internal constitutional structures. Constitutional democracy may only legitimately become subject to Robust international law through forms of a priori ‘public constitutional deliberation and popular choice, by processes that give more weight to the popular will than ordinary legislative processes and which are preceded by special public deliberations designed to reflect the fact that constitutional changes are at stake’.144 Possible mechanisms include a constitutional convention, constitutional amendment, or referendum, or some form of parliamentary super-majority for the adoption of legislation.145 The difficulty in the analysis is that whilst the idea of public deliberation and popular choice can be applied to contract-like agreements, where the state is considering accepting an international law treaty or proposals for a greater regulatory role for an international organisation or global regulatory regime, the requirement for greater public involvement and evidence of the political ‘will’ cannot be applied to situations in which ‘Robust international law’ norms emerge from autonomous law orders (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 inconsistent with a position in which the will of the people (defined in terms of majority rule) is no longer capable of determining policy: ibid at [210]. 143 ibid at 347. 144 ibid at 345. 145 ibid at 346.

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368 Democracy and Legal Pluralism legislative institution); nor can it accommodate the possibility that citizens might change their position on a policy issue, and, in contrast to constitutional law norms, international law cannot be subject to unilateral 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 between law for states and law by states. Public law for states includes both constitutional law and international law, and is distinguished from ordinary domestic law. The state is the subject of the public law system; it is the source of ordinary domestic law. Constitutional law and international law share much in common: both share a sense of ‘foundational uncertainty and contestation’, which results from an absence of a legislature with the authority to authoritatively determine the existence and content of public law norms (the authority of the courts to undertake this function is limited and contested); the absence of ‘an enforcement authority capable of coercing powerful political actors to comply’ (the logical impossibility of a sovereign power above the sovereign); and fact that both constitutional law and international law strain to legitimate the constraints it purports to impose on popular self-government ‘by invoking various forms (or fictions) of prior sovereign consent’.146 Both constitutional law and international law are implicated in the countermajoritarian difficulty, whereby ordinary domestic laws with majority support are held to be invalid or inappropriate by reference to public law norms, all of which rely on narratives of consent that find expression in ideas of sovereignty. Tom Ginsburg describes domestic constitutions as ‘precommitment devices’. Constitutions represent ‘self-binding acts’, whereby the drafters limit the policy options available to future politicians. Certain policy choices are placed beyond the scope of legislators, or require special procedures or super-majorities in national parliaments. The justification for ‘pre-committing’ future majorities is the need to resolve existing political controversies ‘and thereby facilitate stable political order in the future’.147 Where international law binds states, limiting the policy options of decision-making, it can also serve as ‘a precommitment device’.148 Pre-commitment is defined as being obligated ‘to some course of action or inaction or to some constraint on future action … to influence 146 Jack Goldsmith and Daryl Levinson, ‘Law for States: International Law, Constitutional Law, Public Law’ (2009) 122 Harvard Law Review 1791, 1794. 147 Tom Ginsburg, ‘Locking in Democracy: Constitutions, Commitment, and International Law’ (2006) 38 New York University Journal of International Law and Politics 707, 710. 148 ibid at 724.

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someone else’s choices’.149 The advantage for the state is that a formal expression of commitment to a policy position makes clear to other states that it is ‘serious about [its] promises’, with the consequence that those other states will be more likely to comply with their (international law) promises.150 The argument is that ‘[a]ll politicians face problems committing to their promises’, because, in a democracy, the fact of electoral competition will ‘ensure that the politician will eventually be out of power’.151 International law helps to resolve the domestic commitment problem as those in power are able to entrench policy positions by entering into international law agreements. Given that ‘undoing international agreements is typically costly, a policy that is entrenched internationally may survive the demise of the current political coalition or even regime’.152 Domestic power-wielders may commit themselves to substantive policy commitments or to pursuing certain policy objectives through membership of an international organisation or institution. Once policymaking is delegated to a global institution, it becomes difficult for any one state to exercise decisive control over the policy, which, as Ginsburg observes, is ‘the source of concern about a “democratic deficit” in international institutions’, although he concludes that the loss of political self-determination may be a ‘good thing to the extent that it facilitates the entrenchment of democratically enacted policies’.153 Whilst constitutional and international law norms share a number of similarities, including a sense that they are somehow ‘above’ domestic politics, there is a significant difference: constitutional law norms remain subject to contestation and (potential) change by the people (alone), albeit subject (in most cases) to special procedures and/or majorities; this is not the case in relation to international law norms, which (from the perspective of international law) bind the state, irrespective of the attitude of the people.

A Contestable International Rule of Law In evaluating the relationship between constitutional democracy and international law, Mattias Kumm develops a moral case for the international rule of law, ie for compliance with international law. Fidelity to the international 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. 150 ibid at 725. 151 ibid at 726. 152 ibid at 727. 153 ibid at 736.

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370 Democracy and Legal Pluralism of unjustified coercive intervention;154 contribute to the protection of domestic groups though respect for international human rights norms; enable ‘welfare-enhancing cooperative endeavors’ through international law regimes;155 and enhance the freedom of various actors, by ‘creating a predictable [normative] environment in which actors can make meaningful choices’.156 The principle of international legality, or ‘international rule of law’, requires that liberal democracies operate a rebuttable presumption in favour of compliance when faced with international law norms, ie in favour of the authority of international law. The presumption is rebutted where international law norms ‘constitute sufficiently serious violations of countervailing normative principles relating to jurisdiction, procedure or outcomes’.157 International law is prima facie legitimate and deserving of the respect of citizens in constitutional democracies simply by virtue of being the law of the international community, which establishes ‘a fair framework of cooperation between actors of international law in an environment where there is deep disagreement about how this should best be achieved’.158 The international rule of law can also serve to protect the interests of domestic actors as it contributes to the ‘checks and balances’ of domestic systems, and locks in and stabilises liberal democratic forms of government. The international rule of law can also serve to prevent or curtail the illegal abuse of political power, preventing ‘powerful actors who would otherwise have the capacity to exercise political power to the detriment of those protected by law from doing so’.159 Kumm argues that concerns about a democratic deficit in international law are best understood as concerns related to jurisdiction, procedure and/or outcomes. The principle of jurisdictional legitimacy or subsidiarity serves to replace the idea of sovereignty as ‘demarcat[ing] the respective spheres of the national and international’.160 The principle of adequate participation and accountability ‘focuses on the procedural quality of the jurisgenerative process’. It does not imply the application of electoral models to international organisations or institutions, but the establishment of transparent and participatory procedures for the adoption of law norms, and the establishment of accountability mechanisms to ensure that regulators remain responsive to the concerns of those

154 Mattias Kumm, ‘International Law in National Courts: the International Rule of Law and 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.

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Conclusion 371 subject to the regime.161 The final category relates to ‘outcome legitimacy’ or ‘achieving reasonable outcomes’.162 Citizens should regard international law norms as binding, and consequently comply with them, provided that the norm in question does not violate, to a significant degree, the jurisdictional principle of subsidiarity, the procedural principles of adequate participation and accountability, and/or the substantive principle of achieving outcomes that do not violate fundamental human rights.163 International law norms are presumptively binding: the principle of international legality ‘generally requires that addressees of international law should obey it’.164 Citizens should accept and comply with international law norms, even when they disagree with the norm in question, or international law would have no chance of achieving its purpose of providing a fair framework of co-operation.165 The presumption in favour of compliance may be overridden where there are defects relating to the jurisdictional principle of subsidiarity, the procedural principles of adequate participation and accountability, or the substantive principle of achieving outcomes that do not violate fundamental human rights. Where defects are sufficiently serious, citizens in a constitutional democracy ought to think of themselves as free to deviate from the requirements of international law. In these cases, citizens have good reasons to conceive of themselves as free to generate and apply the independent outcomes of the domestic legal and political process.166

It is for the citizens of the state to determine their attitude to international law norms, with the judgment, in part, depending on international law norms upholding the liberal principles of political self-determination and respect for human rights – the subjective judgment of the people is conditioned by objective principles of constitutional law.

CONCLUSION

The works of Keohane et al, Buchanan and Powell, Ginsburg, and Kumm provide important insights into the ways in which a constitutional democracy might respond to the claims of international law, with the 161

ibid at 926. ibid at 928. Mattias Kumm, ‘Democratic Constitutionalism Encounters International Law: Terms of Engagement’ in Sujit Choudhry, The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006) 256, 261–62. See also Armin von Bogdandy, ‘Pluralism, Direct Effect, and the Ultimate Say: on the Relationship between International and Domestic Constitutional Law’ (2008) 6 International Journal of Constitutional Law 397. 164 ibid at 262. 165 ibid at 263. 166 ibid at 263–64. 162 163

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372 Democracy and Legal Pluralism arguments making clear that there is no reason to conclude that international law will always be bad for democracy, or that a constitutional democracy should recognise and give effect to all international law norms (broadly defined). State law systems must be at once open to the authority of international law, and suspicious about international law.167 The relationship will be determined in large part through the existence (or otherwise) of the consent of the state to the international law norm. Consent to an international norm does not (from the perspective of the state system) subject the state law order to the authority of international law (a lesson from global legal pluralism). As a matter of practice, however, states accept the 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 norms opposable to the state. Further, it is important to remember the lessons of constructivism: the identity of the ‘sovereign’ state in the ‘Westphalian’ system is constructed through engagement with other law actors in accordance with the rules of the international law game. The idea of sovereignty in international relations exists through inter-subjective understandings that constitute a particular kind of international community based on the international law principle that promises must be kept – pacta sunt servanda. The state (defined by the exercise of political authority in accordance with a constitutional system of law) will understand itself as being bound to comply with those international law norms established through an exercise of sovereign will. There are, however, limits to the extent to which a state will accept that it is subject (as a matter of domestic law) to comply with all promises established at the international level. The understanding of international law, along with constitutional law, as a system of public law that constrains the exercise of popular sovereignty confirms that the act of political self-determination takes place within an agreed (‘constitutional’) frame that is always subject to challenge and reform. The external frame established by international law norms does not (from the perspective of the autonomous system of state law) subject the state system to the authority of international law, it challenges the state law order to justify the version of political truth developed within the state by holding up an alternative vision. The requirement of epistemic humility in conditions of

167 Joseph Weiler concludes that democratic governments should both ‘embrace international normativity’, and treat international normativity ‘with considerable reserve’. The approach accepts the international law order as an acquis, ‘but it is unwilling to celebrate the benefits of that acquis when gained by a disenfranchisement of people and peoples’. The people of a constitutional, or liberal, democracy can reject international law norms ‘in the name of that very same value, liberal democracy’: JHH Weiler, ‘The Geology of International Law-Governance, Democracy and Legitimacy’ (2004) 64 ZaöRV [Heidleberg Journal of International Law] 547, 562.

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Conclusion 373 uncertainty and reasonable disagreement requires that a democratic system of law not only ‘legislate’ in accordance with the principles of (deliberative) democracy, but also that it reflect on the ‘democratic’ truths emerging in other systems of law. The exercise of legitimate authority requires that a legal system accepts that it is open to the influences of other systems of law, and other versions and visions of truth and justice. A legal system should defer to the regulatory norms of another legal system where it is persuaded that a conflicting norm represents a better expression of a political ‘truth’, determined through democratic procedures for the adoption of law norms. The existence of ‘consent’ for the establishment of an international law norm situates the analysis broadly within the Westphalian paradigm, albeit recognising the absence of any a priori hierarchy between systems of law. Where international law norms are established without the consent of the state, new understandings are required for the attitude of the state to international law norms. The establishment of international law without the consent of the state can occur in one of two circumstances: where public international law emerges without the direct involvement of the state concerned (the ‘modern’ form of customary international law, for example), and where non-state actors ‘legislate’ international law norms. In relation to the first possibility, ie where the state does not participate in the development of an international public law norm, the idea of communicative reason suggests that forms of ‘deliberative diplomacy’ between states and within international organisations can establish expressions of political truth and global justice in public international law, and the democratic state must remain open to accepting that other systems of law might establish a better approximation of political truth through a process of communicative reason (which is why a state should feel ‘uncertain’ where domestic provisions on, for example, human rights conflict with norms generally recognised in international law instruments, even where the state is not a party). In addition to public international law, global law now includes international governance norms adopted by non-state actors. Ralf Michaels notes that there are a number of possible responses that a state might adopt when faced 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-state law into state law. Non-state norms are ‘domesticated’, thus becoming state norms. Non-state actors are recognised as ‘generators of norms’, but the norms 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, and the Challenge from Global Legal Pluralism’ (2005) 51 Wayne Law Review 1209, 1232–33.

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374 Democracy and Legal Pluralism whereby the state law system transforms the norms of non-state actors into facts, thus, for example, the normative autonomy of ethno-cultural groups and transnational merchants (lex mercatoria) is recognised as a fact and protected from state regulation. The state takes into account the customs and expectations of the group in applying state laws, but does not recognise the norms of the group as ‘law’.169 Fourthly, the idea of delegation involves the transformation of non-state law into subordinate law, ie, the state recognises a non-state actor as a self-regulatory body, with the right to develop its own system of law — subject to the state law system. Whilst the state might recognise non-state norms as law, ‘only state law is autonomous law. The norms of non-state communities become state law through incorporation, or become relevant facts through deference, or become subordinated law through delegation.’ The state retains its ‘legal monopoly. Nothing is law unless it is recognized as such by the state.’170 From the perspective of the state, non-state normative orders are secondary normative orders.171 The state may recognise other ‘state’ normative order as systems of law, because states have a ‘collective interest in maintaining their cartel of law-making and law administration’.172 Through conflict of laws, states ‘mutually constitute each other as law-makers’. The relationship between states and non-state actors is different: it does not concern a relation of ‘mutual delimitation of spaces to engage in structurally similar activities like legislation, enforcement, or adjudication’.173 States cannot recognise the norms of non-state actors as law ‘and at the same time maintain 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. Legal positivists hold to the importance of sources, whilst a rejection of the orthodoxy concludes that de facto authority is sufficient to ‘legislate’ international law norms. The positivist position does not reflect the real world of law, whilst the pluralist analysis ignores the importance of normative legitimacy for establishing ‘law’ norms. There is a need for state law systems to adapt to the realities and normative requirements for global law norm production, following the globalisation and fragmentation of governance. Global law norms are the product of legal systems organised in accordance with a constitution, with regulations adopted in accordance with the right reasons that apply to subjects. The recognition of an autonomous system of law is a function of those ‘lawyers’ that

169 170 171 172 173 174

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Conclusion 375 determine the scope and content of the legal system. External recognition is provided by other systems of law. The recognition of another normative system as an autonomous legal order constitutes that legal order, but only from the perspective of the legal system that engages in the recognition. Michaels points out that recognition may be symmetrical (where, for example, states recognise each other and their laws), asymmetrical (the mutual recognition between state law and non-state law), or one-sided (non-state law recognises state law as law, but state law does not recognise the non-state law): This understanding, in which the relationship between laws replicates that between self and other, opens new and promising ways for a new conflict of laws, now understood as a general theory of interlegality, as the way in which the law makes sense of its own plurality.175

The idea of legal pluralism allows for a relativism of position: ‘it is an epistemic relativism in which law is constructed – not only by communities for themselves, but especially by legal systems for each other’.176 The global world of law is constructed from plural perspectives: a multiverse of overlapping law orders. The democratisation of global law can only be achieved through multiple articulations of a democratic world of law by (democratic) state law systems, which remains the central guarantors of public and private autonomy 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 valid law norms: laws are valid where all subject to them could agree to the norms through discourses. The rule of international law creates a presumption for the authority of international law norms (properly so-called) that can be rebutted where the law cannot claim (legitimate) authority. This occurs in two circumstances: where a global regulator does not enjoy legitimate authority it cannot legislate law norms; and where the democratic legitimacy of the state law norm (established through deliberative procedures) ‘trumps’ that of the international law norm, the norm of the state law system is to be preferred (taking into account the strategic and constructed interests of the state in compliance with international law). Where the claims to democratic legitimacy, ie to assert a political truth, of the international law system are stronger than those of the domestic system, the international law norm is to be preferred. This application of a test of democratic legitimacy to global regulatory norms will have the practical consequences of requiring the

175 Ralf Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science 243, 255. 176 ibid at 256.

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Democracy and Legal Pluralism

autonomous systems of international law to engage in a process of democratisation, in order to overcome the problem of compliance with global law norms by democratic societies. The rejection of the authority of international law norms by functioning democracies (the argument does not apply where non-democracies reject ‘democratic’ international law norms) will promote the development of democratic procedures in the international system in accordance with the deliberative ideal, whilst recognising the no one approach or mechanism will be appropriate in all circumstances. The construction of a multiverse of democratic visions of global governance orders by democratic states will have the practical consequence of democratising the international law order, providing democratic legitimacy for international law.

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10 Conclusion: Democracy and the Public International Lawyer

T

HE WORK BEGAN by reviewing the literature on the putative democratic deficit that has resulted from the globalisation of regulatory functions, and various proposals for responding to the problem. It argued for the need for clarity of analysis, and that the starting point should be the perspective of the constitutional democratic state and the democratic deficit experienced by citizens where they do not decide for themselves, by democratic political procedures, all those conditions of their lives that are politically decidable. The arguments developed here relied on the deliberative model outlined by Jürgen Habermas, which provides the most compelling account of the requirements of democracy, consistent with the liberal principle of consent for the exercise of political authority: ‘D: Just those action norms are valid to which all possible affected persons could agree as participants in rational discourses.’ The necessary conditions for the practice of democracy are provided by an application of the principle of discourse to the processes of political law-making. The difficulties in applying the idea to systems of international law and international governance were observed, given the absence of a global public sphere or global publics that might legitimate the exercise of political authority by global regulators as an expression of democratic opinion- and will-formation (no demos, no democratic legitimacy). Deliberative democracy is an ideal-type theory: the democratic state imagines itself to be an association of free and equal persons, who agree to regulate their lives in accordance with the principles of (deliberative) democratic law. The objective of this book was to reconcile the counterfactual ideal with the global regulatory framework provided by international law (broadly defined), recognising that sovereignty confers the capacity to legislate valid (‘Westphalian’) laws within a constitutional framework established by the international law order, consistent with global justice norms. The system of international law that emerged following the Westphalian political settlement divided sovereignty into its internal and external components, expressed in terms of state and international law. The

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378 Conclusion: Democracy and the Public International Lawyer authority of international law is inherently problematic from the perspective of sovereignty and democracy, the twin principles that provide political legitimacy for the constitutional democratic state. The function of domestic democratic law-making is to legitimate the exercise of (coercive) political authority within the taken-for-granted state. Democracy is a mechanism for establishing political truths, ie right policy, also framed in terms of justice, in conditions of complexity, uncertainty, and disagreement between rational and reasonable persons, ie those who are willing to propose fair terms of cooperation applicable to all. Democratic legitimacy for international law norms (in terms of communicative reason) is provided by deliberative forms of diplomacy that lead to a consensus amongst participating states. The agreement of democratic states 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 concept of pacta sunt servanda: promises must be kept. Constitutional and international law norms remain, though, subject to the democratic opinion- and will-formation of the here-and-now people of the state. The globalisation and fragmentation of governance has made the practice of democracy more complex. In conditions in which systems of law may be both territorial (at the global, regional and state levels) and sectoral, there is a need for (legal and political) tools for dealing with conflicts between legal orders, consistent with the lessons of legal pluralism. In order to make sense of the democratic legitimacy of international law, a number of arguments were developed. First, valid law norms are the product of democratic procedures. The framework of rights and liberties that structures the social context of human existence is established through a process of political dialogue in accordance with the principle of public reason. Secondly, the two-track model of democratic self-determination that developed following the Westphalian settlement (democratic rule of state law, and consent to international law norms) is no longer sufficient to explain the legitimacy and authority of law norms. International law norms are increasingly imposed on the state without its consent, and non-state actors have emerged as significant de facto ‘legislators’ of law norms (although that is not to suggest that all non-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 that establishes rules about (political) rule-making, develop norms and principles of political justice; the existence of coercive institutions of government and a taken-for-granted political community are not pre-requisites for the development of (global) justice norms; they exist in each system of law. Fifthly, autonomous systems of law can emerge in any number of

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ways, and do not require a formal ‘delegation’ of sovereign powers of law-making. An autonomous system of law is recognised where those concerned with the interpretation and application of its law norms act as if it were an autonomous system of law. Sixthly, in the absence of a global constitutional settlement, autonomous systems of law (including state law systems and the legal systems of global governance) are not organised in accordance with any a priori hierarchy. Seventhly, from the perspective of the democratic state, international public law norms that ‘legislate’ for the conditions of social, economic and political life within the state should be seen (along with constitutional law norms) as a form of public law constraining the exercise of popular sovereignty. Finally, the democratic state must remain open to international law, and the benefits of international cooperation and global regulation, but also recognise that there are limits to the extent to which a democratic state can accept the authority of international law. One of two responses is available to the democratic state that constructs the world of valid law in accordance with its own constitution and understanding of itself as a sovereign and democratic state: it may reject the authority of international law norms adopted by a regulator without legitimate authority (defined by reference to democratic practices), or it may accept the validity of the international law norm, but address the issue from a conflict of laws perspective. The application of the idea of legitimate authority to the regulation of social, economic and political life by autonomous systems of law provides the basis for structuring the relationships between the various systems of state and international law. The practice of democracy following the globalisation and 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 conflicting assertions of jurisdiction by other systems of law. The conclusion represents an acceptance that there can be conflicting political ‘truths’ (identified through democratic procedures), and conflicting visions of (political) justice. A legal system should defer to the regulatory norms of another legal system where it is persuaded that a conflicting norm represents a better expression of a political ‘truth’, determined through democratic procedures for the adoption of law norms. The world of law has both globalised and fragmented. It is certainly the case that much of the de facto regulation of social, economic and political life falls outside of the Westphalian paradigm and is inconsistent with the requirement of democratic legitimacy for the establishment of valid law norms. The introduction of rules framed in terms of law does not, however, require an application of the rule of law, and presumption that ‘law’ norms are binding on subjects. The right to regulate, ie to determine the normative situation of others, exists only where the

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regulator enjoys legitimate authority. In the case of the regulation of democratic societies, it seems implausible that states or individuals would subject themselves to the authority of another in the absence of ‘democratic’ processes to determine the right reasons that apply to subjects; a regulator has authority only where norms are adopted in a manner that can be described as democratic. Legitimate authority is established where the regulator ‘legislates’ in accordance with the right reasons that apply to the subjects following democratic processes to determine the nature and content of those right reasons. The idea of legitimate authority presupposes the moral ideas of autonomy and equality, requiring the adoption of regulatory norms in accordance with the (deliberative) principles of equality and public reason: law norms are valid only where all subjected persons could agree as participants in rational discourses. The commitment to equality follows from the fact that a requirement to offer reasons for regulations only exists between equal persons; the commitment to autonomy from the idea that individuals have reasons and the capacity to reflect on those reasons. A non-state actor 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 a function of domestic law systems (responsible for coercive enforcement in the division of global regulatory labour). The emergence of new forms of global law (in addition to forms of state and international law) requires that domestic systems evaluate the authority of hard and soft international law norms. This requires that domestic lawyers develop an expertise in the validity of international law norms (broadly defined), with implications for the curriculum in legal education. A constitutional democracy will accept the authority of a non-state actor (and its law norms) by reference to two criteria: the strategic interests of the state in global regulation and compliance with the law norm, and an evaluation of the version of political truth (right policy, or justice) developed by the non-state actor, and the perspective of the state law system as to whether the alternative version of political truth represents a more compelling version of right policy or justice, defined by reference to communicative reason. In its post-ontological condition, the discipline of international law has been successful in developing complex sub-disciplines, concerning the law of the sea, international human rights and international trade law, etc and in embedding the language and authority of international law in international relations. International lawyers have played a central role in ‘recognising’, ‘developing’ and ‘interpreting’ international law. The globalisation and fragmentation of global governance, decline of the Westphalian settlement, emergence of new forms of global law, and revised

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concept of (international) law raise questions of first principle that public international lawyers have generally been unwilling to engage with. The extant condition of international law is not simply a more complex and incoherent version of the positivist orthodoxy that went before. The function of the international lawyer is not only to identify what states have willed, but to determine the scope and content of international public law norms opposable to the state that regulate the conditions of social, economic and political life within the state (delimiting the possibilities of political self-determination). The fragmented systems of international law reflect a new world of global governance, and require a new understanding of the idea of ‘international law’. Law emerged as a discipline in the eleventh and twelfth centuries with the first European universities. Trained lawyers helped to provide structure and coherence to the accumulating mass of legal norms, thus helping to carve out new legal systems from older legal orders. In 1150, perhaps 10,000 law students from all over Europe went to Bologna in northern Italy to study law. The interest in law as a discipline was promoted by the revolutionary upheaval that separated ecclesiastical and secular jurisdictions, with a learned profession of jurists emerging in Western Europe to deal with conflicts within the Church, between church and secular authorities, and among and within secular polities. The legal profession helped develop a science of law.1 Universities played a central role in the development of law, providing the transnational character of Western legal science, and law with its transnational terminology and method, which involved the construction of legal systems from preexisting (and conflicting) law norms towards an ideal of coherence and consistency. Universities emphasised the role of the scholar (the law scientist) in shaping the law through the interpretation of authoritative texts, and the distinctive nature of the discipline of law, helping to produce a professional class of lawyers bound by a common training and a common professional function of providing guidance to the users of the law.2 Following the decline of the Westphalian political settlement there is a need for public international lawyers to return (metaphorically) to Bologna (through academic debate, publication, and deliberation), for the invisible college of international law academics and others concerned for the discipline to engage with questions of first principle on the nature of international law and exercise of political authority through law. There is a need for the profession to emphasise the public in public international law, and the constraints that public law imposes on the exercise of

1 Harold Berman, Law and Revolution: the Formation of the Western Legal Tradition (Cambridge, Massachusetts, Harvard University Press, 1983) 160. 2 ibid at 161–63.

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(legitimate) authority. The professional enthusiasm of international lawyers for global law norms, developed in the face of indifference and hostility from domestic law colleagues, must be replaced by a more critical and rigorous evaluation of the authority of international law norms if the profession is not to be complicit in undermining the achievements of democracy in promoting just conditions of social, economic and political life in domestic societies, and in removing the legitimate right of all political communities to establish their own version of political truth, consistent with the idea of democratic selfdetermination.

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Selected Bibliography Aalberts, T, ‘The Future of Sovereignty in Multilevel Governance Europe – a Constructivist Reading’ (2004) 42 Journal of Common Market Studies 23. Alvarez, J, ‘The New Dispute Settlers: (Half) Truths and Consequences’ (2003) 38 Texas International Law Journal 405. Alvarez, J, International Organizations as Law-Makers (Oxford, Oxford University Press, 2005). Alvarez, J, ‘Introducing the Themes [International Law and Democratic Theory]’ (2007) 38 Victoria University of Wellington Law Review 159. Anan, K, ‘Democracy as a Universal Issue’ (2002) 8 Global Governance 135. Anderson, K, ‘The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organizations and the Idea of International Civil Society’ (2000) 11 European Journal of International Law 91. Archibugi, D et al (eds), Re-Imagining Political Community: Studies in Cosmopolitan Democracy (Stanford, Calif, Stanford University Press, 1998). Barber, NW, ‘Legal Pluralism and the European Union’ (2006) 17 European Law Review 306. Barnett, M and Finnemore, M, Rules for the World: International Organizations in Global Politics (Ithaca, New York, Cornell University Press, 2004). Barr, M and Miller, G, ‘Global Administrative Law: the View from Basel’ (2006) 17 European Journal of International Law 15. Baxter, H, ‘Habermas’s Discourse Theory of Law and Democracy’ (2002) 50 Buffalo Law Review 205. Bellamy, R and Castiglione, D, ‘The Uses of Democracy: Reflections on the European Democratic Deficit’ in E Eriksen and J Fossum (eds), Democracy in the European Union: Integration through Deliberation? (London, Routledge, 2000) 65. Benhabib, S, ‘The Law of Peoples, Distributive Justice, and Migrations’ (2004) 72 Fordham Law Review 1761. Benhabib, S, Another Cosmopolitanism (Oxford, Oxford University Press, 2006). Benvenisti, E, ‘The Conception of International Law as a Legal System’ (2008) 50 German Yearbook of International Law 393. Berman, PS, ‘The Globalization of Jurisdiction’ (2002) 151 University of Pennsylvania Law Review 311. Berman, PS, ‘From International Law to Law and Globalization’ (2005) 43 Columbia Journal of Transnational Law 485. Berman, PS, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journal of International Law 301. Berman, PS, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155. Berman, N, ‘Intervention in a ‘Divided World’: Axes of Legitimacy’ (2006) 17 European Journal of International Law 743.

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384 Selected Bibliography Bernstein, S, ‘Legitimacy in Global Environmental Governance’ (2005) 1 Journal of International Law and International Relations 139. Beutz, M, ‘Functional Democracy: Responding to the Failures of Accountability’ (2003) 44 Harvard International Law Journal 387. Bodansky, D, ‘The Legitimacy of International Governance: a Coming Challenge for International Environmental Law’ (1999) 93 American Journal of International Law 596. Bohman, J, ‘Complexity, Pluralism, and the Constitutional State: on Habermas’s Faktizität und Geltung’ (1994) 28 Law and Society Review 897. Bolton, J, ‘Should We Take Global Governance Seriously?’ (2000) 1 Chicago Journal of International Law 205. Boutros-Ghali, B, ‘Democracy: a Newly Recognized Imperative’ (1995) 1 Global Governance 3. Boyle, A and Chinkin, C, The Making of International Law (Oxford, Oxford University Press, 2007). Brassett, J and Higgot, R, ‘Building the Normative Dimension(s) of a Global Polity (2003) 29 Supplement 1, Review of International Studies 29. Brierly, JL, The Law of Nations: an Introduction to the International Law of Peace, 6th edn, revised by Sir H Waldock (Oxford, Clarendon Press, 1963). Brownlie, I, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008). Brunkhorst, H, ‘Globalising Democracy without a State: Weak Public, Strong Public, Global Constitutionalism’ (2002) 31 Millennium: Journal of International Studies 675. Brunnée, J, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 Leiden Journal of International Law 1. Brunnée, J and Toope, S, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’ (2000) 39 Columbia Journal of Transnational Law 19. Buchanan, A, ‘Democracy and the Commitment to International Law’ (2006) Georgia Journal of International and Comparative Law 305. Buchanan, A and Keohane, R, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics and International Affairs 405. Buchanan, A and Powell, R, ‘Constitutional Democracy and the Rule of International Law: Are They Compatible?’ (2008) 16 Journal of Political Philosophy 326. Burke-White, W, ‘International Legal Pluralism’ (2004) 25 Michigan Journal of International Law 963. Byers, M (ed), The Role of Law in International Politics (Oxford, Oxford University Press, 2000). Cass, D, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the International Trading System (Oxford, Oxford University Press, 2005). Cassese, A, International Law (Oxford, Oxford University Press, 2001). Cederman, E, ‘Nationalism and Bounded Integration: What it would Take to Construct a European Demos’ (2001) 7 European Journal of International Relations 139. Chander, A, ‘Globalization and Distrust’ (2005) 114 Yale Law Journal 1193.

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Selected Bibliography

385

Charnovitz, S, ‘The Emergence of Democratic Participation in Global Governance (Paris, 1919)’ (2003) 10 Indiana Journal of Global Legal Studies 45. Chayes, A and Chayes, A, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Massachusetts, Harvard University Press, 1998). Chesterman, S, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 331. Cover, R, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4. Chimni, BS, ‘International Institutions Today: an Imperial Global State in the Making’ (2004) 15 European Journal of International Law 1. Christiano, T, ‘A Democratic Theory of Territory and Some Puzzles about Global Democracy’ (2006) 37 Journal of Social Philosophy 81. Cohen, J and Sabel, C, ‘Global Democracy?’ (2006) 37 New York University Journal of International Law and Policy 763 Cohen, J and Sabel, C, ‘Extra Rempublicam Nulla Justitia?’ (2006) 34 Philosophy and Public Affairs 147. Coleman, J, ‘Authority and Reason’ in R George (ed), The Autonomy of Law: Essays on Legal Positivism (Oxford, Clarendon Press, 1996) 287. Cotterrell, R, ‘Transnational Communities and the Concept of Law’ (2008) 21 Ratio Juris 1. Dahl, R, ‘Can International Organizations be Democratic? A Skeptic’s View’ in I Shapiro and C Hacker-Cordón (eds), Democracy’s Edges (Cambridge, Cambridge University Press, 1999) 19. de Búrca, G, ‘Developing Democracy Beyond the State’ (2008) 46 Columbia Journal of Transnational Law 221. de Wet, E, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 611. Dingwerth, K, ‘Private Transnational Governance and the Developing World: a Comparative Perspective’ (2008) International Studies Quarterly 607. Dryzek, J, ‘Transnational Democracy’ (1999) 7 Journal of Political Philosophy 30. Dyzenhaus, D, ‘The Legitimacy of Legality’ (1996) 46 University of Toronto Law Journal 129. Esty, D, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’ (2006) 115 Yale Law Journal 1490. Falk, R, ‘On the Creation of a Global Peoples Assembly: Legitimacy and the Power of Popular Sovereignty’ (2000) 36 Stanford Journal of International Law 191. Fassbender, B, ‘The UN Charter as Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529. Fassbender, B, ‘The Meaning of International Constitutional Law’ in R St John Macdonald and D Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Leiden, Martinus Nijhoff Publishers, 2005) 837. Finnemore, M, National Interests in International Society (Ithaca, New York, Cornell University Press, 1996). Finnemore, M and Sikkink, K, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887.

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386 Selected Bibliography Fischer-Lescano, A and Teubner, G, ‘Regime Collisions: the Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999. Franck, T, Fairness in International Law and Institutions (Oxford, Oxford University Press, 1995). Fraser, N, ‘Reframing Justice in a Globalizing World’ (2005) 36 New Left Review 69. Froomkin, M, ‘[email protected]: Toward a Critical Theory of Cyberspace’ (2003) 116 Harvard Law Review 749. Fuller, L, ‘Law as an Instrument of Social Control and Law as a Facilitator of Human Interaction’ (1975) Brigham Young University Law Review 89. Garcia, F, ‘The Law of Peoples’ (2001) 23 Houston Journal of International Law 659. Ginsburg, T, ‘Locking in Democracy: Constitutions, Commitment, and International Law’ (2006) 38 New York University Journal of International Law and Politics 707. Goldsmith, J and Posner, E, The Limits of International Law (Oxford, Oxford University Press, 2005). Goodhart, M, ‘Democracy, Globalization, and the Problem of the State’ (2001) 33 Polity 527. Goodhart, M, ‘Europe’s Democratic Deficits through the Looking Glass: the European Union as a Challenge for Democracy’ (2007) 5 Perspectives on Politics 567. Goodman, R and Jinks, D, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54 Duke Law Journal 621. Goodman, R and Jinks, D, ‘Incomplete Internalization and Compliance with Human Rights Law’ (2008) 19 European Journal of International Law 725. Gould, C, ‘Self-Determination Beyond Sovereignty: Relating Transnational Democracy to Local Authority’ (2006) 37 Journal of Social Philosophy 44. Grant, R and Keohane, R, ‘Accountability and Abuses of Power in World Politics’ (2005) 99 American Political Science Review 29. Gray, C, International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008). Griffiths, J, ‘Is Law Important?’ (1979) 54 New York University Law Review 339. Griffiths, J, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law 1. Gross, L, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 American Journal of International Law 20. Habermas, J, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans by W Rehg (Oxford, Polity, 1996). Habermas, J, The Inclusion of the Other: Studies in Political Theory (Cambridge, Massachusetts, MIT Press, 1998). Habermas, J, ‘Intolerance and Discrimination’ (2003) 1 International Journal of Constitutional Law 2. Habermas, J, ‘Toward a Cosmopolitan Europe’ (2003) 14 Journal of Democracy 86. Habermas, J, ‘Does the Constitutionalization of International Law Still Have a Chance?’ in The Divided West, ed and trans Cronin, C. (Cambridge, Polity, 2006) 115. Habermas, J, ‘A Political Constitution for the Pluralist World Society?’ (2007) 34 Journal of Chinese Philosophy 331.

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Habermas, J, ‘The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society’ (2008) 15 Constellations 444. Hart, HLA, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994). Hathaway, OA, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale Law Journal 1935. Hathaway, OA, ‘Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States’ (2008) 117 Yale Law Journal 1236. Held, D, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge, Polity Press, 1996). Held, D and Koenig-Archibugi, M (eds), Taming Globalization: Frontiers of Governance (Cambridge, Polity, 2003). Held, D, ‘Cosmopolitanism: Globalisation Tamed?’ (2003) 29 Review of International Studies 465. Helfer, LR, ‘Nonconsensual International Lawmaking’ (2008) University of Illinois Law Review 71. Himma, KE, ‘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. Himsworth, CMG, ‘In a State no Longer: the End of Constitutionalism’ (1996) Public Law 639. Hirschl, R, ‘Preserving Hegemony? Assessing the Political Origins of the EU Constitution’ (2005) 3 International Journal of Constitutional Law 269. Hurd, I, ‘Legitimacy and Authority in International Politics’ (1999) 53 International Organization 379. Ignatieff, M (ed), American Exceptionalism and Human Rights (Princeton, Princeton University Press, 2005). Jackson, R, ‘Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World’ (1987) 41 International Organization 519. Jackson, R, ‘Sovereignty in World Politics: a Glance at the Conceptual and Historical Landscape’ (1999) XLVII Political Studies 431. Jackson, J, ‘Sovereignty-Modern: a New Approach to an Outdated Concept’ (2003) 97 American Journal of International Law 782. Jeffery, R, ‘Hersch Lauterpacht, the Realist Challenge and the ‘Grotian Tradition’ in 20th-Century International Relations’ (2006) 12 European Journal of International Relations 223. Johnstone, I, ‘Treaty Interpretation: the Authority of Interpretive Communities’ (1991) 12 Michigan Journal of International Law 371. Johnstone, I, ‘Security Council Deliberations: the Power of the Better Argument’ (2003) 14 European Journal of International Law 437. Johnstone, I, ‘The Plea of “Necessity” in International Legal Discourse: Humanitarian Intervention and Counter-Terrorism’ (2005) 43 Columbia Journal of Transnational Law (2005) 337. Johnstone, I, ‘Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit’ (2008) 102 American Journal of International Law 275. Kalyvas, A, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12 Constellations 223.

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388 Selected Bibliography Kant, I, Perpetual Peace: a Philosophical Essay, 1795, trans by M Campbell Smith (London, Allen & Unwin, 1903). Karber, P, ‘ “Constructivism” as a Method in International Law’ (2000) 94 American Society of International Law Proceedings 189. Keck, M and Sikkink, K, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, New York; London, Cornell University Press, 1998). Kelly, JP, ‘The Twilight of Customary International Law’ (2000) 40 Virginia Journal of International Law 449. Kelsen, H, General Theory of Law and State, trans. by A Wedberg (New York, Russell & Russell, 1961). Kennedy, D, ‘Theses about International Law Discourse’ (1980) 23 German Yearbook of International Law 353. Kennedy, D, ‘International Law and the Nineteenth Century: History of an Illusion’ (1997) 17 Quinnipiac Law Review 99. Kennedy, D, ‘My Talk at the ASIL: What is New Thinking in International Law?’ (2000) 94 American Society of International Law Proceedings 104. Kennedy, D, ‘Tom Franck and the Manhattan School’ (2003) 35 New York University of International Law and Politics 397. Kennedy, D, ‘One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream’ (2007) New York University Review of Law and Social Change 641. Keohane, R, ‘Governance in a Partially Globalized World’ (2001) 95 American Political Science Review 1. Keohane, R, Macedo, S and Moravcsik, A, ‘Democracy Enhancing Multilateralism’ (2009) 63 International Organization 1. Kingsbury, B, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 European Journal of International Law 23. Klabbers, J, Peters, A, and Ulfstein, G, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009). Koskenniemi, M, ‘The Politics of International Law’ (1990) 1 European Journal of International Law 4. Koskenniemi, M, From Apology to Utopia: the Structure of International Legal Argument (Cambridge, Cambridge University Press, 2005). Koskenniemi, M, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1. Krasner, S, ‘The Hole in the Whole: Sovereignty, Shared Sovereignty, and International Law’ (2004) 25 Michigan Journal of International Law 1075. Krisch, N, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’ (2005) 16 European Journal of International Law 369. Kumm, M, ‘The Legitimacy of International Law: a Constitutionalist Framework of Analysis’ (2004) 15 European Journal of International Law 907. Kumm, M, ‘Democratic Constitutionalism Encounters International Law: Terms of Engagement’ in S Choudhry, The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006) 256. Lauterpacht, H, International Law and Human Rights (London, Stevens and Sons, 1950).

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Lindseth, P, ‘Democratic Legitimacy and the Administrative Character of Supranationalism: the Example of the European Community’ (1999) 99 Columbia Law Review 628. Lowe, V, International Law (Oxford, Oxford University Press, 2007). Luhmann, N, A Sociological Theory of Law, trans by E King and M Albrow (London, Routledge & Kegan Paul, 1985). Luhmann, N, Law as a Social System, trans by K Ziegert (Oxford, Oxford University Press, 2004). Macedo, S, ‘What Self-Governing Peoples Owe to One Another: Universalism, Diversity, and the Law of Peoples’ (2004) 72 Fordham Law Review 1721. Majone, G, Regulating Europe (London, Routledge, 1996). Majone, G, ‘Europe’s “Democratic Deficit”: the Question of Standards’ (1998) 4 European Law Journal 5 Majone, G, ‘Delegation of Regulatory Powers in a Mixed Polity’ (2002) 8 European Law Journal 319 McGinnis, J, ‘The Comparative Disadvantage of Customary International Law’ (2006) 30 Harvard Journal of Law and Public Policy 7. McGinnis, J and Somin, I, ‘Should International Law be Part of Our Law?’ (2007) 59 Stanford Law Review 1175. Merry, SE, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869. Merry, SE, ‘Anthropology, Law, and Transnational Processes’ (1992) 21 Annual Reviews in Anthropology 357. Merry, SE, ‘From Law and Colonialism to Law and Globalization’ (2003) 28 Law and Social Inquiry 569. Merry, SE, ‘Anthropology and International Law’ (2006) 35 Annual Review of Anthropology 99. Michaels, R, ‘The Re-State-Ment of Non-State Law: the State, Choice of Law, and the Challenge from Global Legal Pluralism’ (2005) 51 Wayne Law Review 1209. Michelman, F, ‘The 1996–97 Brennan Center Symposium Lecture’ (1998) Californian Law Review 399. Moore, SF, ‘Law and Social Change: the Semi-Autonomous Social Field as an Appropriate Subject of Study’ (1973) 7 Law and Society Review 719. Moore, JN, ‘Beyond the Democratic Peace: Solving the War Puzzle’ (2004) 44 Virginia Journal of International Law 341. Moore, M, ‘Globalization and Democratization: Institutional Design for Global Institutions’ (2006) 37 Journal of Social Philosophy 21. Moravcsik, A, ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’ (2002) 40 Journal of Common Market Legal Studies 603. Moravcsik, A, ‘Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis’ (2004) 39 Government and Opposition 336. Nagel, T, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113. Newman, M, Democracy, Sovereignty and the European Union (London, Hurst, 1996). Nollkaemper, A, ‘The Internationalized Rule of Law’ (2009) 1 Hague Journal on the Rule of Law 74 Opsahl, T, ‘An “International Constitutional Law”?’ (1961) 10 International and Comparative Law Quarterly 760.

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390 Selected Bibliography Orakhelashvili, A, The Interpretation of Acts and Rules of Public International Law (Oxford, Oxford University Press, 2008). Parekh, B, ‘Cosmopolitanism and Global Citizenship’ (2003) 29 Review of International Studies 3. Perez, O, ‘Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law’ (2003) 10 Indiana Journal of Global Legal Studies 25, Peters, A, ‘Global Constitutionalism Revisited’ (2005) 11 International Legal Theory 39. Petersen, N, ‘The Principle of Democratic Teleology in International Law’ (2008) 34 Brooklyn Journal of International Law 33. Petersmann, E-U, ‘Constitutionalism and International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?’ (1999) 31 New York University Journal of International Law and Politics 753 Petersmann, E-U, ‘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. Philpott, D, ‘Westphalia, Authority, and International Society’ (1999) XLVII Political Studies 566. Philpott, D, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, Princeton University Press, 2001). Pogge, T, ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48. Pogge, T, ‘The Incoherence between Rawls’s Theories of Justice’ (2004) 72 Fordham Law Review 1739. Posner, E, ‘International Law and the Disaggregated State’ (2005) 32 Florida State University Law Review 797. Rabkin, J, Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton, Princeton University Press, 2005). Raustiala, K, ‘Rethinking the Sovereignty Debate in International Economic Law’ (2003) 6 Journal of International Economic Law 841. Rawls, J, The Law of Peoples (Cambridge, Massachusetts, Harvard University Press, 1999). Rawls, J, Political Liberalism (New York; Chichester, Columbia University Press, 2005). Raz, J, The Authority of Law (Oxford, Clarendon Press, 1979). Raz, J, The Morality of Freedom (Oxford, Oxford University Press, 1986). Raz, J, Ethics in the Public Domain (Oxford, Clarendon, 1994). Raz, J, ‘Disagreement in Politics’ (1998) 43 American Journal of Jurisprudence 25. Raz, J. ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90 Minnesota Law Review 1003. Resnik, J, ‘Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State’ (2008) 6 International Journal of Constitutional Law 33. Reus-Smit, C, ‘The Constitutional Structure of International Society and the Nature of Fundamental Institutions’ (1997) 51 International Organization 555. Reus-Smit, C, ‘Politics and International Legal Obligation’ (2003) European Journal of International Relations 591.

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Reus-Smit, C (ed), The Politics of International Law (Cambridge, Cambridge University Press, 2004). Risse, T, ‘ “Let’s Argue!”: Communicative Action in World Politics’ (2000) 54 International Organization 1. Risse, T et al (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press, 1999). Roberts, AE, ‘Traditional and Modern Approaches to Customary International Law: a Reconciliation’ (2001) 95 American Journal of International Law 757. Roberts, S, ‘After Government? On Representing Law without the State’ (2005) 68 Modern Law Review 1. Rosenau, J, ‘Governance and Democracy in a Globalizing World’ in D Archibugi et al, Re-Imagining Political Community: Studies in Cosmopolitan Democracy (Cambridge, Polity Press, 1998) 28. Rosenau, J, ‘Governance in a New Global Order’ in D Held and A McGrew (eds), The Global Transformations Reader, 2nd edn (Cambridge, Polity, 2003) 223. Rosenau, J and Czempiel, E-O (eds), Governance without Government: Order and Change in World Politics (Cambridge, Cambridge University Press, 1992). Rosenfeld, M, ‘Law as Discourse: Bridging the Gap between Democracy and Rights’ (1995) 108 Harvard Law Review 1163. Rosenfeld, M, ‘Rethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism’ (2008) 6 International Journal of Constitutional Law 415. Rubenfeld, J, ‘Unilateralism and Constitutionalism’ (2004) 79 New York University Law Review 1971. Sadurski, W, ‘Law’s Legitimacy and “Democracy-Plus” ’ (2006) 26 Oxford Journal of Legal Studies 377. Scharpf, F, Governing in Europe: Effective and Democratic? (Oxford, Oxford University Press, 1999). Scholte, JA, ‘Civil Society and Democratically Accountable Global Governance’ (2004) 39 Government and Opposition 211. Scott, S, ‘The Political Life of Public International Lawyers: Granting the Imprimatur’ (2007) 21 International Relations 411. Shaffer, G, ‘Parliamentary Oversight of WTO Rule-Making: the Political, Normative, and Practical Contexts’ (2004) 7 Journal of International Economic Law 629. Shapiro, I and Hacker-Cordón, C (eds), Democracy’s Edges (Cambridge, Cambridge University Press, 1999). Shelton, D (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System (Oxford, Oxford University Press, 2000). Shelton, D, ‘Normative Hierarchy in International Law’ (2006) 100 American Journal of International Law 291. Simma, B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil de Cours 217. Simma, B, ‘The Contribution of Alfred Verdross to the Theory of International Law’ (1995) 6 European Journal of International Law 1. Slater, D, ‘Imperial Powers and Democratic Imaginations’ (2006) Third World Quarterly 1369. Slaughter, AM, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503.

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392 Selected Bibliography Slaughter, AM, ‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39 Government and Opposition 159. Slaughter, AM, ‘Sovereignty and Power in a Networked World Order’ (2004) 40 Stanford Journal of International Law 283. Slaughter, AM and Zaring, D, ‘Networking goes International: an Update’ (2006) 2 Annual Review of Law and Social Science 211. Snyder, F, ‘Governing Economic Globalisation: Global Legal Pluralism and European Law’ (1999) 5 European Law Journal 334. Solum, L, ‘On the Indeterminacy Crisis: Critiquing Critical Dogma’ (1987) 54 University of Chicago Law Review 462. Steffek, J, ‘The Legitimation of International Governance: a Discourse Approach’ (2003) 9 European Journal of International Relations 249. Stein, E, ‘International Integration and Democracy: no Love at First Sight’ (2001) 95 American Journal of International Law 489. Sur, S, ‘The State between Fragmentation and Globalization’ (1997) 8 European Journal of International Law 421. Talmon, S, ‘The Security Council as World Legislature’ (2005) 99 American Journal of International Law 175. Tamanaha, B, ‘A Non-Essentialist Version of Legal Pluralism’ (2000) 27 Journal of Law and Society 296. Tamanaha, B, A General Jurisprudence of Law and Society (Oxford, Oxford University Press, 2001). Tamanaha, B, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney Law Review 375. Teubner, G, ‘How the Law Thinks: Toward a Constructivist Epistemology of Law’ (1989) 23 Law and Society Review 727. Teubner, G (ed), Global Law without a State (Aldershot, Dartmouth, 1997). Teubner, G, ‘Breaking Frames: the Global Interplay of Legal and Social Systems’ (1997) 45 American Journal of Constitutional Law 149. Thompson, D, ‘Democratic Theory and Global Society’ (1999) 7 Journal of Political Philosophy 111. Tomuschat, C, ‘Obligations Arising for States without or against their Will’ (1993) 241 Recueil de Cours 195. Torres Pérez, A, ‘The Internationalization of Lawmaking Processes: Constraining or Empowering the Executive?’ (2006) 14 Tulsa Journal of Comparative and International Law 1. Twining, W, Globalization and Legal Theory (London, Butterworths, 2000). Twining, W, ‘A Post-Westphalian Conception of Law’ (2003) 37 Law and Society Review 199. Verdross, A, ‘General International Law and the UN Charter’ (1954) 30 International Affairs 342. Verdross, A ‘Forbidden Treaties in International Law’ (1937) 31 American Journal of International Law 571. von Bogdandy, A, ‘Law and Politics in the WTO: Strategies to Cope with a Deficient Relationship’ (2001) 5 Max Plank Yearbook of United Nations Law 609. von Bogdandy, A, ‘Globalization and Europe: How to Square Democracy, Globalization, and International Law’ (2004) 15 European Journal of International Law 885.

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von Bogdandy, A, ‘Constitutionalism in International Law: Comment on a Proposal from Germany’ (2006) 47 Harvard International Law Journal 223. von Bogdandy, A et al, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’ (2008) 9(11) German Law Journal 1375. Walker, N, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317. Walker, N, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373. Watson, A, The Evolution of International Society: a Comparative Historical Analysis (London, Routledge, 1992). Weiler, JHH, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 3 European Law Review 219. Weiler, JHH ‘The Geology of International Law-Governance, Democracy and Legitimacy’ (2004) 64 ZaöRV [Heidleberg Journal of International Law] 547. Weinstock, D, ‘The Real World of (Global) Democracy’ (2006) 37 Journal of Social Philosophy 6. Wendt, A, ‘Anarchy is What States Make of it: the Social Construction of Power Politics’ (1992) 46 International Organization 391. Wendt, A, ‘Why a World State is Inevitable’ (2003) 9 European Journal of International Relations 491. Wheatley, S (with N Neuwahl), ‘The EU and Democracy-Lawful and Legitimate Intervention in Domestic Affairs of States?’ in A Arnull and D Wincott (eds), Legitimacy and Accountability in the European Union after Nice (Oxford, Oxford University Press, 2002) 223. Wheatley, S, ‘Deliberative Democracy and Minorities’ (2003) 14 European Journal of International Law 507. Wheatley, S, Democracy, Minorities and International Law (Cambridge, Cambridge University Press, 2005). Wheatley, S, ‘The Security Council, Democratic Legitimacy and Regime Change in Iraq’ (2006) 17 European Journal of International Law 531. Wheatley, S, ‘Minorities under the ECHR and the Construction of a “Democratic Society” ’ (2007) Public Law 770. Wheatley, S, ‘Democratic Governance Beyond the State: the Legitimacy of NonState Actors as Standard Setters’ in A Peters et al (eds), The Role of Non-State Actors in Standard Setting (Cambridge, Cambridge University Press, 2009) 215. Wheatley, S, ‘Indigenous Peoples and the Right of Political Autonomy in an Age of Global Legal Pluralism’ in M Freeman and D Napier (eds), Law and Anthropology: Current Legal Issues Volume 12 (Oxford, Oxford University Press, 2009) 351. Young, E, ‘The Trouble with Global Constitutionalism’ (2003) 38 Texas International Law Journal 527. Zaring, D, ‘International Law by Other Means: the Twilight Existence of International Financial Regulatory Organizations’ (1998) 33 Texas International Law Journal 281. Zürn, M, ‘Global Governance and Legitimacy Problems’ (2004) 39 Governance and Opposition 260.

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394 Selected Bibliography Zweifel, T, International Organizations and Democracy: Accountability, Politics and Power (Boulder, Col, Lynne Boulder, 2006).

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Index global justice 327–31 global politics 327–31 Habermas, Jürgen 18, 21, 92, 92–4, 94, 105, 108, 109, 115, 121, 311, 377 human rights 105 ideal speech situation 93 Kalyvas, Andreas 313 law-making 94 meaning 103 political authority 2 political justice 323–31 Rawls, John 327–31 reasoned deliberations 103–4 representation 323–7 self-determination 312 sovereignty 313, 313–15 state 102–6, 115–21, 138–45 value of model 106 voluntariness 312–15 Deliberative majorities 106–8 Democracy see also Deliberative democracy; Democratic deficit authority 303–9, 311, 315–22 benefits 211–12 beyond the state 115–21 competition 101 deliberative majorities 106–8 deliberative politics 108–9 elections 222–3 European Union 224, 226–7 human rights 109–11, 219–22 international law customary norms 222–3 generally 211–12 human rights 219–22 international organisations 223–8 practice of states 222–3 principle of democracy 228–31 regime change 231–45 self-determination 213–19 international organisations 223–8 judicial review 100, 113–15 majority rule 101–2 parliamentary principle 112–13 politically decidable issues 98–102 popular government 102 procedure, importance of 99 requirements 92–8 self-government 98–9 Democratic deficit

Accountability citizens, relationship with 82–3 experts 72–9 global administration 81–2 global governance 71–83 IMF 81 importance 80 international organisations 79–83 meaning 80 remedies 81 standards 80–1 World Bank 81 Afghanistan 235–6 Authoritarian regimes 211 Authority Coleman, Jules 307–8 concept of 300–9 deliberative democracy and 311, 315–22 democracy and 303–9, 311, 315–22 international law 361–3 Raz, Joseph 300–2, 303–4 Basel Committee on Banking Standards 257, 264–7 Coleman, Jules 307–8 Colonised territories 213, 214–17 Commonwealth 224 Consumer boycotts 252 Cosmopolitan democracy cosmopolitan democratic law 60–4 Held, David 60–4 Kant, Immanuel, 53 subsidiarity 61 Customary international law 150–5 Dahl, Robert 65 De Búrca, Gráinne 330 Deliberative democracy see also Democratic deficit application of model 311–12 assertion of jurisdiction 315 authority 311, 315–22 bargaining 103–4 beyond the state 115–21, 311–33 citizenship 322–3 community 323 consensus 93, 103 consent 105–6 constituent power 312–15 discourse principle 322–7

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396 Index see also Deliberative democracy; Democracy European Union 5, 66, 97 generally 92–4 global democratic federation 47–50 global governance accountability deficit 71–83 bypassing democracy 25–6 categories of complaints 22–3 civil society actors 27–8 cosmopolitan democratic law 60–4 democratisation of global governance 33–50 global democratic federation 47–50 global democratic state 43–7 horizontal complaint 22–3, 28–31 ideological complaint 23, 31–3 international institutions 64–71 parliamentary assemblies 65–7 relations between states 28–31 sovereign equality 29, 29–31 substantive deficit 283 vertical complaint 22, 23–8 World government 43–7 Habermas, Jürgen 31–2, 324 international civil society 83–9 international law 94–8 international organisations 2–11 meaning of democracy 92–3 Discourse principle deliberative democracy 322–7 Habermas, Jürgen 93, 105, 140 Dryzek, John communicative power 84 democratic deficit 17–18 global governance 86 transnational discursive democracy 87 Elections democracy 222–3 global governance 3 regime change 234 European Union authority 91, 271 autonomous law order 248 democracy 224, 226–7 democratic deficit 5, 66, 97 governance 5, 118 Parliament 46, 66 pluralism 339 public policy 116 subsidiarity 42 Experts accountability deficit 72–9 Federations global democratic federation 47–50

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Habermas, Jürgen 49 peace 52–3 Force. See Use of force Fraser, Nancy 323–6 Global democratic federation 47–50 Global governance accountability deficit 71–83 authority 7, 250–1 citizen participation 4 consumer boycotts 252 decision-making 8 deliberative democracy 8–11 democratic deficit accountability deficit 71–83 bypassing democracy 25–6 categories of complaints 22–3 civil society actors 27–8 cosmopolitan democratic law 60–4 democratisation of global governance 33–50 global democratic federation 47–50 global democratic state 43–7 horizontal complaint 22–3, 28–31 ideological complaint 23, 31–3 international institutions 64–71 parliamentary assemblies 65–7 relations between states 28–31 sanctions regime of UN 28 sovereign equality 29–31 substantive deficit 28 vertical complaint 22, 23–8 veto, UN 29 World government 43–7 democratisation 33–50 elections 3 European Union 5 government distinguished 1–2, 250 Habermas, Jürgen 121 justification 3–4 legal pluralism 335–8 legitimate policy-making 8 meaning 1, 249–50 non-state actors 249–52 pluralism 335–8 proliferation of norms 1 public law concepts 251–2 response to globalisation 2 unilateral exercise of authority 250–1 US constitutional values 7 World government 43–7 Globalisation see also Global governance causes 2 democratic deficit 2–11 Government governance distinguished 1–2, 250 law and 339–40

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Index Griffiths, John 341–3

liberal democratic values 193, 207–9 meaning 175–6 normative hierarchy 176–9 rule of law 194–8 United Nations 179–82 use of term 175 constructivist approach 165–71 contract model 164–71 customary international law 150–5 democracy customary norms 222–3 elections 222–3 international organisations 223–8 practice of states 222–3 principle 228–31 regime change 231–45 self-determination 213–19 democratic deficit 94–8 democratic legitimacy 11–15 general principles of law 155–7 governance model 164–71 human rights 198–202 international organisations 96 Kelsen, Hans 249 Lauterpacht, Hersh 202 legal pluralism democracy 360–71 state law and 350–60 liberal democratic values 193, 207–9 pre-commitment device 368–9 profession, the 152–4 publicists, writings of 157–8 regime change 231–45 rule of law 194–8, 369–71 secession 229–30 self-limitation, as 365–8 soft law 253–6 United Nations 179–82 International organisations See also Non-state actors accountability deficit 79–83 Commonwealth 224 democracy 223–8 European Union 5 international law 96 regional organisations 118, 224–6 soft law 254–5 United Nations 224 Internet domain names global governance 251 Iraq regime change 237–45

Habermas, Jürgen allocation of governance functions 118, 295, 311 authority of law 103 autonomy 109–10 bureaucratisation 78 co-originality thesis 119 communicative action theory 140, 168–9 consent 105–6 cosmopolitan democracy 64 courts’ role 114 deliberative democracy 18, 21, 92, 92–4, 94, 105, 108, 109, 115, 121, 311, 377 democratic legitimacy 105 democratic deficit 31–2, 324 discourse principle 93, 105, 140 federations 49 global governance 121 global superpowers 116 human rights 105, 109–11 international law 116, 120, 141 judicial review 114 legitimacy 8, 10, 105, 107, 108 parliamentary principle 112 Hart, HLA concept of law 277–8, 279 Held, David 60–4 Himma, Kenneth Einar 306–7 Human rights deliberative democracy 105 democracy 109–11, 219–22 Habermas, Jürgen 105, 109–11 international law 198–202 Lauterpacht, Hersh 203, 204 Rawls, John 55 self-determination 213, 217–19 sovereignty 37, 42 United Nations 202–7 IMF 33 accountability 81 governance 326 voting 29 Indigenous peoples legal pluralism 337, 344 International civil society 83–9 International law authority 361–3 constitutionalisation community interests 171–4 constitutional moments 171–2 constitutional order 187–93 generally 163–4 human rights 198–202 international constitution 182–7

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Judicial review democracy 100, 113–15 Habermas, Jürgen 114

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398 Index Kant, Immanuel cosmopolitan democracy 53 law of nations 53 peaceful inter-state relations 50–3 Perpetual Peace 17, 44, 50–3 republicanism 52 Kelsen, Hans international law 249 sovereignty 356–60 Kingsbury, Benedict concept of international law 279–80 Lauterpacht, Hersh 202–4 Lawyers role 277, 381–2 Legal pluralism autonomous communities 338 borrowing from other legal orders 348 citizen participation 352–4 conditions 336–7 conflicts of law norms 337–8 environmental overlap 347 global governance 335–8 global legal pluralism 343–50 globalisation of law 334 Griffiths, John 341–3 indigenous communities 337, 344 institutional incorporation 346 international law and state law 350–60 Kelsen, Hans 356–60 meaning 341–3 normative coordination 347 normative ordering 345–50 normative pluralism 338–41 official legal systems 338, 339–40 overlapping jurisdictional assertions 343–5 persuasion 349–50 state-centralism 338 sympathetic consideration 347 system recognition 346–7 Tamanaha, Brian 338–9, 341 Westphalian law 340–1 Luhmann, Niklas 280–6 McGinnis, John 24, 40, 152, 153 Majority rule 101–2 Nagel, Thomas 328, 328–9 NATO democracy 227–8 Networks non-state actors 257, 264–7 Non-governmental organisations (NGOs) civil society 85 domestic role 86

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representation 86, 264 role 34, 84–6, 88 Non-state actors See also International organisations Basel Committee on Banking Standards 257, 264–7 communities 257 coordination of policy 257 generally 247–8, 380 global governance 249–52 governance 271–6 international governance schemes 257, 269–71 networks 257, 264–7 private schemes 257, 269–71 public-private partnerships 257, 267–9 self-regulation 257 soft law 253–6 UN Security Council 257–64 World Commission on Dams 257, 267–9 North Atlantic Treaty Organization 65 Organization for Security and Co-operation in Europe 65 Pacta sunt servanda 21, 22, 125, 134, 188, 278, 357, 358, 360, 361, 372, 378 Pan-African Parliament 66 Peace democratic peace 50–60 federations 52–3 Kant, Immanuel 51–3 Law of Peoples 54–60 perpetual peace 51–3 Rawls, John 54–60 Pluralism See also Legal pluralism European Union 339 global governance 335–8 Political justice deliberative democracy 323–31 Nagel, Thomas 328–9 Rawls, John 59–60, 327, 328 Professions international law 152–4 public policy 75 Public policy academics 106 consensus 93 decision-making 75 European Union 116 legitimacy of law 103 political participation 116 professions 75 Public-private partnerships 257, 267–9 Publicists, writings of 157–8

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bilateral cooperation 37 consent 34 customary international law 37 democratic deficit 24, 34–43 development of theory 124–7 global democratic state 43–7 human rights 37, 42 international law obligations 38–9 Lotus principle 128 New Sovereigntists 36–7, 39, 40–1 non-intervention 34 state 124–7 subsidiarity 42, 43, 370 United States 35–6, 39 State contractual autonomy 133–5 democracy beyond the state 115–21 self-legislator contractual autonomy 133–5 customary international law 150–5 general principles of law 155–7 generally 123 international law 128–33, 145–9 judgments of courts 158–61 law-making treaties 135–8 publicists, writings of 157–8 sovereignty 124–7 Westphalian settlement 123, 124–5, 128 sovereignty 124–7 Subsidiarity cosmopolitan democracy 61 European Union 42 meaning 42 power allocation principle 45 sovereignty 42, 43, 370

Rawls, John constitutional democracy 327–8 deliberative democracy 327–31 difference principle 84 global democratic law 23, 51 human rights 55 Law of Peoples 17, 51, 54–60, 84 military interventions 235 peace 54–60 political justice 59–60, 327, 328 public reason 327 Raz, Joseph 300–2, 303–4 Regime change Afghanistan 235–6 Atlantic Charter 231–2 elections 234 failed states 235 international law 231–45 Iraq 237–45 Johnson doctrine 232 military force 233–4 Reagan doctrine 232 rogue states 235 self-determination 232 UN Charter 231, 232, 233 Rousseau, Jean-Jacques 6, 44 Rule of law Habermas, Jürgen 118 international law 194–8 modern ideal 95 Rule of recognition 277–8 Sadurski, Wojciech 305–6 Secession democracy 229–30 international law 229–30 remedial right 213 Security Council 33, 48, 257–64 Self-determination colonised territories 213, 214–17 deliberative democracy 312 democracy 213–19 human rights 213, 217–19 regime change 232 right 213–14 United Nations 214 World War I, post 213 Self-government democracy 98–9 Soft law GA resolutions 254, 255–6 influence 254 international law 253–6 international organisations 254–5 meaning and nature 253–4 non-state actors 253–6 Sovereignty allocation of decision-making power 42

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Tamanaha, Brian concept of law 296–300 legal pluralism 338–9, 341 Teubner, Gunther concept of international law 286–8, 293 globalisation of law 334 United Nations democratic deficit 29 federation 48 General Assembly 255–6 global law development 288 human rights 202–7 international law 179–82 Security Council 257–64 UN parliamentary assembly 67–71 use of force 174, 231, 295 United States Constitution 7 Madisonian legitimacy 6–7

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400 Index sovereignty 35–6, 39 Use of force Afghanistan 235–6 international organisations 95, 127, 295 Iraq 237–45 political objectives 232 self-defence 57 United Nations 174, 231, 295 Walker, Neil 89−90, 294–5, 346−7 Washington consensus 3–4 Westphalian settlement sovereignty 123, 124–5, 128

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World Bank accountability deficit 81 civil society actors 84–5 Inspection Panel 81 World Commission on Dams 257, 267–9 World government 43–7 World Trade Organisation citizens’ role 352 constitutionalisation 295 governance 326 India 4 justice 33 role 88, 288

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