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Electronic copy available at: http://ssrn.com/abstract=1397249 The University of Iowa College of Law University of Iowa Legal Studies Research Paper Number 09-25 May, 2009 From the Rule of Law to the Constitutionalist Makeover: Changing European Conceptions of Public International Law Alexander Somek College of Law, University of Iowa This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=1397249

Transcript of from the rule of law to the constitutionalist makeover

Page 1: from the rule of law to the constitutionalist makeover

Electronic copy available at: http://ssrn.com/abstract=1397249

The University of Iowa College of Law

University of Iowa Legal Studies Research Paper

Number 09-25

May, 2009

From the Rule of Law to the Constitutionalist Makeover:

Changing European Conceptions of Public International Law

Alexander Somek

College of Law, University of Iowa

This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=1397249

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Electronic copy available at: http://ssrn.com/abstract=1397249

Alexander Somek

From the rule of law to the constitutionalist makeover: Changing European conceptions of public international law

The article identifies major characteristics of how public interna-tional law has been endorsed by European legal scholars. Promi-nent among these is the repeated effort to pinpoint the deficiency of public international law as it stands and to suggest improve-ments. The article tries to identify a chain of substitutions with regard to what is taken to be the core problem. It can be shown how attempts to overcome one reveal another. The chain of sub-stitution, reconstructed in this article, begins with decentralisa-tion and results in the realisation that public international law is inadequate from a constitutional point of Tview. Not surpris-ingly, the constitutionalization of public international law be-comes an issue. However, it turns out that some current ideas re-garding the constitutionalization of public international law, rather than taking constitution-making seriously, appear to be idealistic refractions of the real absorption of legality by adminis-trative processes. Rather than offering a solution, they may very well be part of the constitutional deficiency that they claim to re-solve.

The chain of substitutions

The twentieth century was Europe’s nemesis. The first half of this cen-tury, at any rate, witnessed the leading civilizations’ self-demolition. European nations lost their prior position of hegemony and found themselves eventually eclipsed by new powers exercising geopolitical control.

At first glance, it may come as no small surprise that this abysmal century, more than the nineteenth, was also the era in which European legal scholars repeatedly endorsed public international law as a panacea

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for planetary survival.1 How could the “dark continent”,2

As is well known, the answer to this question is quite straightfor-ward. Ever since Europe made first-hand encounters with madness at the heart of its civilization it has looked to public international law as its saviour.

with its rich abundance of imperial ambition and nationalist zeal, also have been the depository of legal reason and moderation?

3

In what follows, I would like to highlight three characteristic ele-ments of the European endorsement of international law in which it figures as an indispensible cure of various atavistic drives towards self-demolition. The first element is a manifestation of both dissatisfaction and reformism. Twentieth-century European endorsements of public international law have never rested content with public international law as it is. In fact, the most interesting interventions have always tried

Religion, to be sure, was no longer available and the anes-thetizing effects of mass consumption had not yet been discovered. Even from a mere empirical perspective, self-help, terror and battles of mutual annihilation fare worse than law as a means of social integra-tion. In a sense, then, Europe’s preference for public international law stems from encounters with its collective id and resembles an applica-tion of the proportionality principle to the perception of the human condition.

Civilized dealings are precarious and brittle. War is a constant pos-sibility. Public international law promises to be the least violent means of sustaining civilization. It was the latter that had turned out to be Europe’s innermost challenge.

1 It should be noted that this view of public international law is different from the

belief that international law is a means for the resolution of the world’s problems. This spirit appears to have been rejuvenated in the work of Mary Ellen O’Connell, The Powers and Purpose of International Law (New York: Oxford University Press, 2008) at 14. It is also different from the nineteenth-century confidence that public internation-al law is a means of progress.

2 See Mark Mazower, The Dark Continent. Europe’s Twentieth Century (New York: Vintage Books, 1998).

3 See Immanuel Kant, Werke in zwölf Bänden (ed. W. Weischedel, FrankfurtaM: Suhrkamp, 1968), vol. 11 at 209-210 (Zum ewigen Frieden).

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to identify a deficiency that explains, in part, why public international law has so far been underachieving. The second element is the belief that, despite imperfection, humanity can secure its survival (or wellbe-ing) only through law. What emerges here, bluntly speaking, is a belief in the rule of law and its virtues.4 The third element is, in a sense, an ex-tension of the second, namely, a reply to Hobbes, or, more generally speaking, an explanation of why compliance is to be expected even in a world of sovereign states. As is well known, among the first to have hinted at such an explanation was Kant, who pointed to the tempering influence of international trade.5

Over the last decades, the discipline has made much progress with regard to exploring compliance

6 and debating the rule of law.7

4 As is well known, this belief comes in various guises. See Otto Kirchheimer, ‘The

Rechtsstaat as Magic Wall’ In W. E. Scheuerman (ed.), The Rule of Law under Siege: Selected Essays of Franz L. Neumann & Otto Kirchheimer (Berkeley: University of Cali-fornia Press, 1996) 243-263.

Rela-tively little attention has been paid, however, to the various characteri-sations of deficiencies. These characterisations merit attention along at least two dimensions. First, they vary with regard to what public inter-national law is supposed to accomplish. As the brief discussion of Scelle and Kelsen will show, conceiving of decentralisation as the system’s major flaw has different implications depending on a broader norma-tive background-vision of the international legal order. Second, it can be seen that even on the basis of one and the same vision, the attempt to overcome one deficiency may reveal another. This is the topic that I would like to explore in the relation between Kelsen and Lauterpacht. Their work can be seen as though connected through a critical conver-sation in the course of which an altered perception of the deficiency gives rise to a different understanding of the rule of law. Not surpris-

5 See Kant, note 3 at 226. 6 For an overview, see Markus Burgstaller, Theories of Compliance with Public In-

ternational Law (Leiden: Martinus Nijhoff, 2005). 7 See, most prominently, Ian Brownlie, The Rule of Law in International Af-

fairs:International Law at the Fiftieth Anniversary of the United Nations (Hague Acad-emy of International Law Monographs) (Leiden: Martinus Nijhoff, 1998).

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ingly, the broader themes of deficiency, rule of law and compliance are interconnected. Coping strategies emerge from certain conjectures about how to effect compliance. These conjectures, in turn, draw on certain understandings of the rule of law. Lauterpacht’s work will give me occasion to discuss briefly the problem involved in conceiving of public international law as another variety of common law.

Whereas Kelsen located the deficiency of public international law in its high degree of decentralisation, Lauterpacht shifted the focus to-wards the “voluntarism” of its sources. His attempt to overcome this de-ficiency inadvertently brought to the fore what I would like to call, with an eye to Hart, the “constitutional deficiency” of public international law. The constitutional problem marks the end of a chain of substitu-tions that began with decentralisation and later shifted to sources. In-deed, there is reason to believe that constitutional legality might con-tribute to making public international law more effective. Therefore, I turn, finally, to certain most recent ideas regarding the “constitutionali-zation” of public international law. But contrary to what one might have suspected, much of the current discourse does not reply to the de-ficiencies of a common law style conceptualisation of international law. Rather, it even appears to aggravate its problems.

Overcoming decentralisation: Solidarity beyond the nation state

With varying emphasis, Duguit and Scelle conjectured that growing so-cial interpenetration would give rise to a legal system that maps socially emerging relations of organic solidarity.8

Organic solidarity can be usefully contrasted with mechanical soli-darity, which is based on resemblance (Artgleichheit, in a sense) and underpins the vengeful instincts animating criminal justice. Against

Drawing on Durkheim, both believed this type of solidarity to be manifest in the increasing division of labour, which is intrinsically determined to spill across national bounds.

8 For a helpful and brief introduction to their work, see Martti Koskenniemi, The

Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cam-bridge: Cambridge University Press, 2002) 297-300.

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this background, it was easy to claim for Scelle that while the social facts of law are already cosmopolitan9 the nation state remains a reposi-tory of more atavistic and potentially sinister engagements. When so-cial facts, that is, relations among individuals, are no longer confined to relatively closed social worlds but rather turn out to be elements of one encompassing social sphere the legal system must become one, too.10 Since the legal system will work well only if its rules and principles match the evolution of society, Scelle, in particular, believes that the le-gal system needs to disaggregate nation states and to address individu-als as the bearers of responsibility, either public or private, for the at-tainment of greatest social utility.11

The idea is French. Hence, commands stemming from the more central unit are supposed to override the doings of more subaltern agencies. It is also clearly reminiscent of Durkheim's emphasis on the public role to be played by professions, in particular, when Scelle specu-lates about a future international government that is to be composed of non-partisan experts and of groups representing certain functional subdivisions of society.

12

Even though this vision is quite exuberant in its confidence with re-gard to what a transnational legal system may be able to accomplish it nonetheless reveals clearly one permanent feature of the European critical endorsement of public international law. In the case of Scelle, it was dissatisfaction with the enduring predominance of sovereignty

13

Remarkably, Scelle captured a spirit that has in the meanwhile, without being traceable to his work, taken hold of Europe. Organic

that made him incline towards a co-operative vision. What is more, he lent his voice to the growing sense that nationality is “mechanical” and therefore out of step with modern social organisation. Nationality easily becomes prey to unruly impulses that lead to destruction.

9 See ibid. at 299. 10 See ibid. at 331. 11 See ibid. at 332. 12 See ibid. at 267. 13 See, therefore, his rejection of the self-determination of peoples where those

people were unable to put resources to productive uses, ibid. at 334.

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solidarity is based on the rational pursuit of social utility. Its realisation requires universal access to opportunities and services regardless of na-tional bounds. Nationality is an obstacle that needs to be overcome in building a more prosperous society where political conflict is super-seded by the well-informed rational administration of risks and the op-timisation of consumer welfare.

Overcoming decentralisation: Finding an end to madness

Scelle’s articulation of the deficiency needs to be viewed against the background of his belief in the emergence of global rationality. He be-lieved law to be better equipped than any other alternative – religion, drugs, moral appeals, conquest or partial annihilation – to sustain civili-sation. But he also believed that formal law was in dire need of reform. Public international law, in particular, was seen as lagging behind the dominant mode of social integration.

Kelsen’s perspective was entirely different. I think it is fair to say that he expected public international legality to serve as a madness pre-venter. The scourge, more than economic inequality, was war, “the worst of all social evils”. 14

The contrast to French solidarism is stark. According to the French view, public international law was to become one component in the de-velopment of an increasingly centralized administration of human hap-piness. Hence, it was supposed to contribute to the creation of a ration-ally governed world. It should not come as a surprise to see a similar spirit reflected today in the work of those who want to introduce legal-ity to the task of global managing. What is not so clear, when it comes to this, is what would remain of it once it had become entirely con-sumed by the internal logic of problem-solving processes.

15

14 See Hans Kelsen, Peace Through Law (Chapel Hill: University of North Carolina

Press, 1944) at 16-17. 15 See my forthcoming paper “Administration without sovereignty”.

I shall re-turn to this matter in my concluding remarks. For now it is important to note that Kelsen’s principal concern is more limited. Public interna-tional law is to serve as a madness preventer and not as a problem-

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solver. The contrast is clear. Here is a facile analogy. Patients plagued by constant sounds in their ears—a condition called “tinnitus”—are or-dinarily told that modern medicine has not yet found a cure. The prob-lem cannot be solved. But overlaying the internal sound through an ex-ternal audio source, such as a constant hissing of flowing air, may dras-tically reduce the salience of the internal sensation. The air whiz serves as a madness stopper. When conceived of as the latter rather than as a problem-solver, the task of public international law becomes more modest and also more ambitious. It is more modest, for it is not per-ceived to be a means for the resolution of the world’s problems but rather a device for the prevention of cataclysmic happenings. The task is more ambitious, nonetheless, for in contradistinction to the mere transnationalization of administrative processes madness stopping needs to confront the question of sovereignty directly. The source of evil cannot be eliminated. Perpetual deferral may be as good as it can get.

Public international law, in the first place, is law. According to Kel-sen, this means that it constitutes a monopoly of force. It may appear ironic to ascribe a monopoly of force to a system for which self-help has long been the accepted principle of execution and collectively author-ised action comes to pass only when the executioners expect bounty (access to oil, for example). This ironic appearance notwithstanding, Kelsen’s observation is valid and defensible. So-called realists in inter-national affairs are notoriously oblivious to the social fact that which-ever act a state happens to engage in unilaterally the state will appeal for its justification to a unified system of public international law, no matter how perspectival such appeals may seem.16

16 That is, irony is built into the very system of law. See Christoph Menke,

Tragödie im Sittlichen: Gerechtigkeit und Freiheit nach Hegel (FrankfurtaM: Suhrkamp, 1996).

The United States, for example, does not refer to how public international law appears to it subjectively, rather, it appeals, from within its own bounded perspec-tive, to what public international law permits or requires objectively. Wherever there is a legal system there is a monopoly of force. In the

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case of public international law, however, the monopoly is exercised in the decentralised manner that is the mark of self-help. Put differently, public international law is a primitive legal system, for it rests—at any rate, at the time Kelsen was writing—on self-help, which must give rise, evidently, to grave doubts as regards the impartiality with which sanc-tions are being imposed. But monopolization of the use of force none-theless exists, for force must be used only if permitted by law.

Decentralisation, hence, is the deficiency perceived by Kelsen. It might be overcome by increasing the centralized exercise of executive power.

Adjudication: Law without sovereignty

Of course, there is a predicament. Among sovereign states no central-ised authority can be established for it would require these states to re-linquish their power to decide subjectively, in cases that affect them, what the law says, objectively understood. As a result, the status natu-ralis among states is to continue. Madness cannot be averted. At best, its outbreak can be deferred.

As is well known, Kelsen has a remarkable reply to this. At first glance, it seems to partake of the primitive spirit of the system of public international law that it subjects to critique. Kelsen is quick to concede this point as it turns out that what he means by a lack of centralization is actually the absence of statehood:17

However, Kelsen tacitly introduces a teleological element into the mo-nopoly of force, which is not warranted, as I will try to point out below, according to his legal-positivist premises. Here is how he goes about explaining the benefits of statehood:

The modern state is the most perfect type of a social order establishing a community monopoly of force.

18

Its perfection [i.e., the perfection of the monopoly or of the state as regards monopolization] is due to the centralization of the employment of the use of force (which must not be confused with its monopolization): Within the

17 See Kelsen, note 14 at 4. 18 Ibid.

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State, pacification of inter-individual relations—that is, national peace—is attained in the highest possible degree. Except under certain extraordinary circumstances, such as revolution and civil war, the employment of force is effectively eliminated from relations between citizens and reserved for cen-tral agencies, as governments and courts, that are authorized to use force as sanctions against illegal acts.

The state minimises violence. But since the establishment of a world state is wildly utopian and maybe not really desirable, public interna-tional law can aspire only to being law minus sovereignty if by sover-eignty is understood, in contrast to Kelsen,19

As is well known, Kelsen’s substitute for a centralized system of en-forcement is what he considers to be the seedbed for the development of such a system. Where the development of municipal legal systems is concerned, Kelsen observes, adjudication has always preceded the con-scious positing of rules in acts of legislation.

a power that accounts for the unity of legal enforcement.

20

Kelsen’s slip

He concludes that with an international court of compulsory jurisdiction it may be possible to pave the ground for the development of a more centralized system of public international law to which might accrue, in the next round, a more centralized system of enforcement and maybe even an interna-tional legislature.

The deficiency discovered by Kelsen, in the first place, is quite sim-ply the absence of a world state. Whether it would really be desirable to have one is a different matter. Kelsen’s diagnosis reflects, nonetheless, a concern about the rule of law. It is interesting to see, however, what his argument requires him to buy into, unwittingly.

The deficiency perceived by Kelsen cannot be that a decentralized mo-nopoly of force makes legal systems intrinsically defective. From the standpoint that Kelsen so often claimed for himself—namely, the standpoint of legal positivism—it does not matter how the monopoly of

19 For Kelsen sovereignty simply means that states are merely subject to public in-

ternational law and not legally constrained by anything else. 20 See Kelsen, note 14 at 21.

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force is given effect. It exists as long as the self-interested law enforcers appeal to norms that belong to the same system. Under this condition, within such a system the law is observed, even if in a manner that raises serious concerns about the general absence of impartiality of applica-tion. But any Klassenrecht would raise the same concern were it to exist on the domestic level. It would still have to be described as law.

Impartiality is a substantive value. A “value-free” legal science need not expect a system of law to be equal and impartial in its application. The deficiency perceived by Kelsen presupposes normative expectations of law that Kelsen himself would have considered external to a value-description of law. The alternative would be to regard impartiality of application as a necessary element of a normative system. It is not in-conceivable to defend such a view; however, attributing it to a legal positivist would turn Kelsen into Lon Fuller’s associate.

Hence, public international law in a state of decentralisation does not fail on its own terms, as it were, for in such a state it is not intrinsi-cally deficient. It appears to be deficient, of course, if held to the objec-tive of minimizing violence. By allowing those who feel offended by the conduct of others to take the law into their own hands, such a system may actually maximize violence. True legal positivists, however, would reply by shrugging their shoulders and saying that this is what one gets from law in a state of decentralisation: Maybe ugly, but at the end of the day it is law. If you want to use law in order to create more inci-dences of violence, this is what you choose.

I add that an appeal to centralization can serve more than one value. Above all, there is the value of control enjoyed by those occupy-ing the centre of the system. Unity may also mean unity of control by the bully in the decentralised schoolyard—that is, by the wolf that hap-pens to have more arms and greater military clout than others. Finally, the appeal to centralization may carry the promise of greater consis-tency and equality of application.

Turning Kelsen into his own renegade

Madness prevention aside, Kelsen also does not discuss the argument that might actually persuade states to submit their cases to a court with

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compulsory jurisdiction. It is the problem of compliance, which at this point becomes relevant for pinpointing the deficiency and also, as we shall see below, for the calibrating of what the rule of law is expected to deliver.

Imaginably, one might argue that whichever state claims to have its rights violated also claims that its substantive claim is defensible in an agent-neutral manner, that is, regardless of who is raising it. This is an implication of the observation made above that states assert subjective-ly what they perceive to be law, objectively understood. If it were not for such a claim to objectivity the monopoly of force would immediate-ly collapse in itself.

The assertion of rights implies neutrality of application. The latter is, in turn, deeply associated with the judicial department. Again, noth-ing in the concept of the legal system necessitates the conclusion that the neutral application of laws is the sole purview of courts. A commis-sion of papal legalists could do the work at least equally well and maybe even better given that they are likely to benefit from God’s grace, even if, and particularly when, working under the directions of the Pope himself.

When Kelsen claims that adjudication comes first and the explicit adoption of rules second, he draws implicitly on a conception of the le-gal system that is decidedly different from the one espoused in his legal positivism. Had Kelsen been consistent, at this point, he should have said that in the absence of a legislature and against the backdrop of only vaguely formulated customary rules the judiciary occupies the po-sition of the law-maker. He would have then encountered the difficulty, of course, of squaring this sober insight with the hope that the judicial adjudication of matters of international right is likely to be perceived by states as by and large impartial. He could have sustained this confi-dence, however, only by radically altering his vision of the legal system. He would have had to see the adjudicative process as embedded into an indeterminate set of moral background principles that are continuously woven into the fabric of law. In a word, Kelsen would have had to turn into his former student Hersch Lauterpacht, who had claimed against Kelsen—long before Dworkin made the same claim against Hart—that

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the neglect of natural law blinds legal positivists to the fact that natural law principles become constantly incorporated into existing systems of law.21

Sir Hersch

The conditions under which states may entrust powers to processes

of adjudication depend very much on the conception of law that is sup-posed to deliver international legality. With the resulting shift of con-ception, the perception of the deficiency becomes altered as well.

Lauterpacht perceived the deficiency of public international law to lie in its ostensible voluntarism. Law is seen to flow sources and regarded as existent only when “posited” in a Kelsenian sense. According to Lau-terpacht, such a view not only underestimates, but also actually sup-presses, the growth of law in the process of adjudication. Consequently, Lauterpacht replaces the positivistic conception of law with an image that is more than merely reminiscent of the common law. From this angle, the moral appeal of the law becomes revealed in the principles that judges consider relevant for deciding cases. They also account for core values of the rule of law. Among these values figures prominently what Kelsen was unable to deduce, namely, the principle nemo iudex in sua causa. Lauterpacht was infuriated about the tenacity with which the converse principle was sustained in public international law.22 A mature legal system would incorporate the former principle as much as the prevention of the abuse of rights or the recognition of good faith dealings.23 Most remarkably, Lauterpacht—assuming the position of a judge, to whom the non liquet reply is unavailable—regards the interna-tional legal order as complete and, hence, believes that there is a right answer to any legal question.24

21 See Hersch Lauterpacht, ‘Kelsen’s Pure Theory of Law’ In W. Ivor Jennings (ed.),

Modern Theories of Law, London: Oxford University Press 1933), 105-138 at 132, 137. 22 See Hersch Lauterpacht, The Development of Law by the International Court

(London: Stevens & Sons Ltd., 1958) at 158. 23 See ibid. at 158-165. 24 See ibid. 166.

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Once judges occupy the driver's seat, the international system will recognise that the law as developed by judges is the “socially obtainable natural law”.25 The internal morality of law, associated with the rule of law, serves as the wellspring for that which is also “externally” morally acceptable. The process is complex, of course, for judges always have to choose between arguments of greater or lesser merit and there is no mechanical way of arriving at answers.26 Judgement is what it all comes to at the end of the day. There is no convenient way of anchoring judi-cial rulings in the text of a Treaty or a proven custom. The quest for jus-tice “can derive no decisive assistance from exclusive reliance upon one single doctrine, or tendency or formula”.27 Judges make constrained choices “within the orbit of tendencies, enshrined in precedent”28

Today it appears as though this strategy had been highly successful. Public international law is, by definition, law without sovereignty. Law without sovereignty is the preserve not of legislatures or kings, but rather of courts. This is considered to be a sign of progress:

, and through their choices they contribute to the development of interna-tional law.

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Law as common law

With the growth of courts, international law is becoming more sophisticated with greater capacity to mitigate the world’s problems.

All of this represents, as Koskenniemi correctly conjectured, a late reply by the student of the common law to Hobbes.30

25 See Lauterpacht, note

In a sense, it represents the reply to Hobbes that had already been prepared by Kelsen. But Kel-sen ended up being caught in the middle, that is, between his sober le-gal positivism, on the one hand, and a belief in the madness-averting

21 at 133. 26 See Lauterpacht, note 22 at 396-397. 27 Ibid. at 397. 28 Ibid at. 399. 29 O’Connell, note 1 at 14. 30 See Koskenniemi, note 8 at 369. See also David Dyzenhaus, ‘The Rule of (Ad-

ministrative) Law in International Law’ (2005) 68 Law and Contemporary Problems 127-166, at 158, 161.

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power of adjudication, on the other. He could not formulate this reply, for he was well aware that there is something irredeemably complacent about professing belief in the latter.

When public international law becomes assimilated to the mindset of the common law31 it becomes recast from within a set of beliefs that is notoriously pleasing to the legal profession, in particular to judges. The core idea is that the law is not created by anything outside itself, neither by legislatures nor by judges. Rather, the evolution of the law is driven by cases. The judiciary merely serves as the living oracle of the law. Judges may not always be right in how they decide cases, but only time and experience can tell which decisional rule will turn out to be reasonable. The law is a storehouse of practical experience. Its accumu-lated wisdom resides in the particulars. From the particulars, that is, the fine-grained differentiation of cases with an eye to patterns of facts, originates its force to bind conduct. The origin of the web of legal con-straints extends to times immemorial. However, owing to its capacity to adapt to new situations the system is never out of step with the felt ne-cessities of the time. Since legal reasoning, as a specialised type of prac-tical reason, takes place against the broader background of community morality, the judicial practice of deciding cases serves as a medium for translating moral ideas into legal rights and obligations. Indeed, Lau-terpacht believed this to be all the more the case for a system such as public international law where the role accorded to the legislature or centralised judicial bodies was either peripheral or low-key.32

31 For an extremely useful account of the mentality of the Common Law tradition,

on which I shall draw in what follows, see Gerald J. Postema, Bentham and the Com-mon Law Tradition (Oxford: Clarendon Press, 1986). His account of the common law mentality has recently been complemented by the following articles: ‘Classical Com-mon Law Jurisprudence (Part 1)’ (2003) 2 Oxford University Commonwealth Law Jour-nal 155-180; ‘Classical Common Law Jurisprudence (Part 2)’. (2003) 3 Oxford University Commonwealth Law Journal 1-28.

32 See Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 British Yearbook of International Law 1-53 at 23: “In the absence of the overriding au-thority of the judicial and legislative organs of the state there must assert itself—unless anarchy and stagnation are to ensue—the persuasive but potent authority of reason and principle derived from the fact of the necessary coexistence of a plurality

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In his appeal to “the Grotian tradition in international law”, Lauter-pacht underscores that public international law is to be perceived as part of a wider system of law from which it cannot and must not be sev-ered. Following Grotius, he believes that any exposition of international law has to be heedful of the overall structure of legal systems.33

Common law as a mode of self-reflection

Conse-quently, international law, like any other type of law, partakes of the qualities of law.

At this juncture, I should like to remind readers that conceiving of law qua common law cannot simply be determined by observable features of a legal system, such as the reverence paid to members of the judicial branch and the relevance attributed to past decisions for future cases. It would not make sense to scan existing legal systems using a template that would explain whether a system belongs to either the common law or civil law variety. For example, the authority of precedent is not suffi-cient for the identification of a common law system. Indeed, I believe that no list of features would do the trick.34 What matters, instead, is how a legal system conceives of itself at the level of its dominant mode of self-reflection. Such a self-reflection is “interpretative” in the Dwork-inian sense35

of states. This explains the pertinacity, in the international sphere, of the idea of natu-ral law as a legal source.”

33 See ibid. at 18. 34 It goes without saying that my claims made above about what common law is

would invite criticism from others. See, for example, John Gardner, ‘Some Types of Law’ In D. E. Edlin (ed.), Common Law Theory (Cambridge: Cambridge University Press, 2007) 51-80.

35 See, most recently, Ronald Dworkin, Justice in Robes (Cambridge, Mass.: Har-vard University Press, 2006).

in that it is internally linked to a justification of practices to which the system gives rise. In other words, again, whether a system of law is a common law system or not depends on the jurisprudence that is implicit in its operation and that becomes explicit when partici-pants in the practice attempt to offer a justification. The manner in

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which the law is known in legal systems is not external, but rather in-ternal to them.

Adhering to particulars while tying them to broader moral princi-ples is key to the common law’s self-ascribed potential to serve as the most formidable tool for the exercise of state power. This, at any rate, must have been the appeal of common law constitutionalism whose origin predates the first English revolution.36

The promise to submit any exercise of power fully to the rule of law is what made a common law conception of public international law so exceedingly appealing to Lauterpacht. The rule of law is epitomised in the all-encompassing grip of the particulars. No exercise of power should be immune from review by a law-applying tribunal. In particu-lar, self-determination by states of their powers, such as the power to engage in self-defence or a pre-emptive strike, is considered to be im-possible.

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Light normativity

Immunities are to be conceded only subject to legally re-viewable constraints of respective concessions.

Law as common law promises to constrain. Nevertheless, from the per-spective of a legal theory that models legal norms on imperatives its promise turns out to be distressingly hollow.

As was first pointed out by Hobbes, the equation of law with reason “frustrates all laws of the world”. Not only does such a conception of law invite disobedience on the ground of the pretence that a particular law is “unreasonable”,38

36 See Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Ha-

ven: Yale University Press, 1996). 37 See ibid. at 19-20. 38 See Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the

Common Laws of England (ed. J. Cropsey, Chicago: University of Chicago Press, 1971) at 54-55.

it also creates the incentive to deploy discrimi-nating practical reason in order to carve out hitherto unregulated space. Instead of constraining conduct, the common law merely con-tains within itself the endless proliferation of differentiations among

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cases. If it constrains at all it does so more in the manner in which a language constrains as a medium of expression (indeed, certain things cannot be said in certain languages) than that of a computer software program that does not allow certain tasks. What is more, once clusters of precedents have grown sufficiently complex, laying down what is binding in a new case is delegated to the judge deciding the case at hand.39

Decisions are unavoidable, but they are only the meagre fallout of the growth of discursive skill and erudition. The law, as it is, is best known in the course of the elaboration and amendment of doctrine. It is a process, rather than a sum of norms. The common law has to treat precedents as binding, but their presence does not prejudice results (as Lauterpacht himself was more than ready to concede).

The “seamless web” of cases serves, incidentally, as one grandi-ose power-conferring norm, which betrays the system’s conceit to con-strain.

Common law is law that emerges from a deliberative process. Deci-sions are reached in reply to objections that appeal to conflicting precedents. All replies are bound to remain unsatisfactory, for they are systematically vulnerable to the charge of having ignored this or that factor.

40

39 See Melvin Eisenberg, The Nature of the Common Law (Cambridge: Harvard

University Press, 1999).

The settled law becomes permanently unsettled by new cases. Hence, the law is sus-tained in a light normative mode. Scarcely any consideration can be ruled out as irrelevant in advance. Such openness fits a discursive en-terprise where all normativity is believed to emerge from good reasons. What counts as a good reason is, of course, context-dependent. Conse-quently, the common law protects those with whom the administrators of justice share the view of the world. The common law is good so long as it is applied to you by your friends.

40 See Lauterpacht, note 21 at 389.

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The alternative mode

I do not wish to overdraw the contrast with a more command-style le-gal system. Nonetheless, I would like to sketch this alternative, in par-ticular, as our legal world has become increasingly enamoured with the sovereignty-defying features of the common law.

If law is understood to be essentially an imperative directed by a superior to a subordinate then the latter is free to determine the mode of compliance unless he or she has to expect censure by the former. You pay your dues by Friday. Whether you do so in the morning or at mid-night is up to you. Unless the superior amends the rule or specifies its meaning through an act of “authentic interpretation” the subordinate is not held by some principle, emerging from “background” community morality, as to when it would be “reasonable” to make an instalment. Thou shalt not use violence in international affairs. Not even when populations are threatened with extinction? Not even then.

At first glance, such an account of legality must appear unappeal-ingly rigid. It may also seem implausible. Commands are often not clear. What is the relation between the prohibition of violence and the right to self-defence? According to this model, it all depends on taking into account the hierarchical relation between the commander and the subordinates. As long as the subordinates get away without amending censure (“what I, the superior, really meant to say was…”) they may rightly claim to have done what the commander wanted them to do. In the case of the international community this means that when a coun-try kicks off a military campaign against terrorists and the community of states does not protest it can be argued that that country either le-gitimately engages in self-defence or that the community has had the pleasure of tacitly amending an existing set of rules. The work is done by a hierarchical relation of legal power. The whole muddle of differen-tiation that mushrooms in a common law system does not arise. It is absorbed by the power relationship, which is itself governed by law.

No obligation of equal treatment from one case to the next needs to exist in such a system. In principle, what has been decided by subordi-nate judges is in no manner normatively relevant to the meaning of the commander‘s command. This irrelevance is a great virtue. It permits

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forgetting. The system is not burdened with having to remember prior cases. Of course, the absence of precedent might raise the spectre of ar-bitrariness. But given that the system of precedents does not prejudice outcomes either, the common law cannot promise more impartiality than the alternative system. Power has the power to contain reason. It contains reason that would otherwise mushroom. Reason that confuses and stultifies is, in fact, unreason.

Constitutional deficiency

The observation that public international law is constitutionally defi-cient was once made, although not precisely in these terms, by H.L.A. Hart.41 According to Hart, public international law does not recognise secondary rules of amendment for primary customary rules of obliga-tion.42

A command-style system is not constitutionally deficient, for it bases itself on a set of legal powers to declare what the law is. Common law systems may present themselves as espousing constitutional form by ostensibly embracing, as their prime directive, that the law is what-ever the courts say it is; but they can raise such a claim only by borrow-ing from command-style aesthetics. Even when they resort to such bor-rowing they dissimulate merely the type of formality that they truly lack, for the assertion can merely mean that in the final instance a court

The reference to “custom” merely camouflages their absence. The same objection applies to a sufficiently complex common law where the system of precedents does not prejudice results. When precedents are regarded as tentative explorations of legal possibilities and when all legal fields are buried under several layers of complexity we can no longer make out what the rules are that govern the creation of general laws.

41 See H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at 90. 42 Hart is of course right. There is only an open set of principles, such as reciproc-

ity of legitimate expectations, underlying the generation of customary international law. See Michael Byers, Custom, Power and Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999) at 10-12.

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gets to decide a case and leave open what such a decision implies for the future.

Public international law already seems to be confronted with the consequence of having grown “more sophisticated” in the hands of courts. The system of sources has become so jumbled that along with legislative treaties we have inventive modifications of doctrines govern-ing customary law (for example, “instant” custom)43 and the well-known challenge posed by regime fragmentation, which invites forum shopping by parties.44 Precedent seems to matter more now than they did in the past. International treaties have become increasingly inter-mingled with strategies of managing problem solving, as a result of which the normativity of the common law, which is already light, be-comes even more deflated.45 The lack of resolve and the overall sprit of tentativeness with which options for further legal development of law are being explored encourages the emergence of a scholarly culture that expects wagers on bold claims with the vague anticipation that if only repeated often enough the relevant claims might become accepted (by whom?) as obligations. One hardly encounters in the literature the same list of erga omnes obligations or ius cogens immunities.46

Secondary rules of obligation would mitigate these problems. But they are, of course, unavailable in a system sans sovereignty. Hence, public international law is a weak legal system from a constitutional perspective. With the common law mindset conquering international legal theory, one form of primitiveness is taking the place of the

Their scope is unclear because too many have tried their hand at them.

43 For a respective diatribe, see Prosper Weil, ‘Towards Relative Normativity in In-

ternational Law?’ (1983) 77 American Journal of International Law 413-441 at 435. See also Ulrich Fastenrath, ‘Relative Normativity in International Law’ (1993) 4 European Journal of International Law 305-340 at 319, 332 (there is no rule for the emergence of a customary rule).

44 See the well-known MOX plant case. Case C-459/03, Commission v. Ireland [2006] ECR I-4635.

45 See the articles by Koskenniemi referred to below in notes 90 and 91. 46 See Alan Boyle & Christine Chinkin, The Making of International Law (Oxford:

Oxford University Press, 2007) at 17.

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other.47

Talking it up: The constitutionalist makeover

The diachronic primitiveness of decentralized enforcement is superseded by the synchronic primitiveness of rampant and unwar-ranted attempts at amendment.

One should not be surprised, in light of the foregoing, to see “constitu-tionalism” appear on the horizon of international law. In accordance with a long-standing pattern for the reformation of international law one would expect constitutionalists to address the deficiencies inherent in a system that is still, in core parts, based upon custom, reformulated by the International Law Commission, and burdened with growing functional drift and informalisation.

Until recently, it has been commonplace that the establishment of constitutional discipline requires an act of constitution-making. This, at any rate, would have been the understanding of constitutionalists of the nineteenth century. A constitution originates from an exercise of power that transforms institutional realities.

Amazingly, much of current constitutionalism in public interna-tional law approaches the matter in a more Burkean vein. It is believed that the constitutionalization of public international law does not pre-suppose a grand practical transformation but rather merely the adop-tion of a different perspective. A second look at public international law is assumed to reveal that it is already in a process of “constitutionaliza-tion”.48

47 See Alexander Somek, ‘Kelsen lives’ (2007) 18 European Journal of International

Law 409-451 at 440. 48 For an excellent conceptual analysis that puts the term “constitutionalization”

into a broader historical perspective, see Martin Loughlin, ‘What is Constitutionaliza-tion?’, to appear in M. Loughlin (ed.), The Twilight of Constitutional Law (forthcom-ing).

The latter term is a new kid on the block. It designates a process of constitution-making that does not involve political action. Rather, it merely requires a change of perspective or attitude, and maybe also a second reading of pronouncements made by the judicial department.

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The mainstream of constitutionalization discourse is remarkably continuous with Lauterpacht’s celebration of the common law. State sovereignty and voluntarism are still deemed to pose a major problem. The solution is also still assumed to lie in the hands of courts, even if the clarity of law might suffer at their hands. Here is, once more, Lau-terpacht’s original language:49

There is reason to suspect that current international constitution talk is the old common law wine in new bottles. What Sir Hersch would have called “higher” natural law now is appealed to in the name of superior constitutional value. Again, unsurprisingly, constitutionalization talk falls on fertile ground in a country where the national constitution is revered as the repository of legal reason.

The law of nature has been rightly exposed to the charge of vagueness and arbitrariness. But the uncertainty of the ‘higher law’ is preferable to the arbi-trariness and insolence of naked force.

50 In his context, even the sys-tem of international law is alleged to contain a “[c]omprehensive [b]lueprint for [s]ocial [l]ife”.51

Idealisations conceal. They cast things in a more favourable light than they deserve. In concealing, however, idealisations also reveal something about those who seek to rely on them. When idealisations are supposed to deceive they are simply ideological. Idealisations, how-ever, can also be part of an unconscious strategy to hide an unwelcome truth from oneself.

52 My hypothesis is that in the case of the public in-ternational lawyers’ exuberance about the constitutional nature of their law the idealisation springs from this second source. Constitutionaliza-tion talk is a strategy of coping with disempowerment.53

49 See Lauterpacht, note

There is no po-

32 at 24. 50 See Thilo Rensmann, Wertordnung und Verfassung: Das Grundgesetz im

Kontext grenzüberschreitender Konstitutionalisierung (Tübingen: Mohr & Siebeck, 2007).

51 Christian Thomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Recueil des Cours 10 at 63.

52 Marx, to be sure, would have called this ideological, too. 53 See Odo Marquard, ‘Kompensation: Überlegungen über eine Verlaufsfigur

geschichtlicher Prozesse’ In his Aesthetica und Anaesthetica: Philosophische Überlegungen (Paderborn: Schöningh, 1989) 64-81.

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litical movement in sight that would move the international system in a constitutional direction. Constitutionalization talk is the ironic denial of this situation.

As I tried to point out above, there are a number of true constitu-tional challenges that the international community may want to ad-dress in a revised UN Charter. Aside from the most cumbersome ques-tions affecting the war on terror or the resort to force, it may even pay to regulate issues such as the codification of customary norms by the International Law Commission and how parts of international law may be formally elevated to the level of higher law. These are not the chal-lenges addressed by international constitutionalists. Remarkably enough, the international constitutionalists are less concerned than Lauterpacht with pushing a new substantive vision of the rule of law than with talking public international law up and presenting it as re-plete with morally pleasing ideas.

More precisely, what constitutionalization talk does not address, puzzlingly, is the absence of an “international constitutional moment”, to borrow Ackerman’s most belaboured contribution to legal English; rather, the deficiency of public international law sans sovereignty is seen to lie in a type of powerlessness that can be overcome by taking a second look. The constitutional deficiency, therefore, becomes recali-brated in light of what can be accomplished by a re-description. The perceived powerlessness is constituted by what the second look is ex-pected to accomplish. In fact, the relation between one and the other reflects the influence of a culture in which the power of positive think-ing is expected to cure depressing inabilities. The power of thinking that matters in this vein is positive thinking about oneself inasmuch as it brings about positive thinking about oneself in others. In a society where one’s livelihood and success depend on how one manages to make others think good of oneself, the power of positive thinking helps to leave a good mark even when what is being impressed (i.e., one’s persona) is in fact entirely hollow. The remarkable cultural practice of makeovers is based on the same idea. The made-over subject remains the same, but all of a sudden that same subject has lost fat, gained mus-

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cles, has fuller hair, has straight white teeth and appears in designer outfits. Wow.

The second look at public international law is also supposed to cre-ate a wow-effect. Wearing the garments of constitutional law, public in-ternational law is expected to appear normatively so overwhelming that is can no longer be disobeyed. Essence is secondary. Appearance comes first. Positive-sounding norms have the power to create, in and of themselves, more observance, just like good-looking people are likely to be more successful in life.

What we get, in the final event, is the fetish-character of public in-ternational law and the regression of legal science.54

The monism of community values

The constitutional makeover that I have in mind comes in at least two forms.

It is formulated straightforwardly by those seeking to describe the UN Charter in constitutional terms.55 After all, in the wake of the Sec-ond World War the Charter originated from a constitutional moment.56 It establishes a system of different branches of government and appears to create in Articles 25 and 103 a hierarchy of norms.57

54 The allusion is, of course, to Theodor W. Adorno, ‘Über den Fetischcharakter

der Musik und die Regression des Hörens’ In Gesammelte Schriften vol 14 (ed. R. Tie-demann, FrankfurtaM: Suhrkamp, 1973) 14-50.

55 See, notably, Bardo Fassbaender, ‘The United Nations Charter as a Constitution for the International Community’ (1998) 36 Columbia Journal of Transnational Law 529. For further references, see Christian Walter, ‚International Law in the Process of Constitutionalization’ in E. de Wet & A. Nollkämper (eds.), Theoretical Perspectives on the Divide between International Law and National Law (Oxford: Oxford University Press, 2006) 191-215 at 192 footnote 8.

56 See also Anne Peters, ‘Compensatory Constitutionalism: The Function and Po-tential of Fundamental International Norms and Structures’ (2006) 19 Leiden Journal of International Law 579-610 at 599.

57 For a different account of Article 102 in terms of a pure “collision rule” see Ste-fan Kadelbach & Thomas Kleinlein, ‘Überstaatliches Verfassungsrecht. Zur Konstitutionalisierung im Völkerrecht’ (2006) 44 Archiv des Völkerrechts 235-266.

But facile analo-gies soon come to an end. They can be easily countered with a set of

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disanalogies.58

The more notorious variety of international constitutionalism does more than appeal to analogies. It perceives the international commu-nity to be based on certain values.

The international community created by the Charter is still a community of states and not of peoples. The Charter does not in-corporate a bill of fundamental rights. Most importantly, constitutional states are all-purpose-organisations. They are not restricted to the at-tainment of particular objectives, whereas, by contrast, the major point of the United Nations is that of maintaining peaceful international rela-tions. It is not decisive that the disanalogies establish a stronger case against the constitutional nature of the international community than the analogies adduced by Charter enthusiasts. The problem is that it cannot be made out which or how many analogies are needed in order to argue the constitutionalist case successfully.

59 Wow. Actually, the form of consti-tutional obligation, which is ordinarily associated with some type of higher law, is not supposed to follow from an act of establishing this order but rather from the substance of norms itself. Of substance, therefore, legal form is assumed to be derivative.60

The good values of the international constitution are seen as intrin-sically linked to taming the unruly freedom implicit in a system of sov-ereign equality. The constitution of the international community is pre-sented as an antidote to unbridled sovereignty.

This is an old strat-egy of natural law.

61

58 For a useful summary, see Walter note

The idea, not shared by all proponents explicitly, is that the international community is a le-gal community, that is, not based on ethnic fellow feeling or common religious belief but rather defined by a shared commitment to legal

55 at 195-196. 59 See (summarizing Tomuschat) Armin von Bogdandy, ‘Constitutionalism in In-

ternational Law: Comment on a Proposal from Germany’ (2006) Harvard Journal of In-ternational Law 223-242 at 228, 235; Peters, note 56 at 586; at 51; Erika de Wet, ‘The Emergence of International and Regional Value Systems as Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 611-632.

60 See Peters, note 56 at 588, 601; Kadelbach & Kleinlein, note 57 at 241. 248. 61 See Peters, note 56 at 586; Bogdandy, note 59 at 223.

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ideas, such as human rights and the rule of law.62 It is believed that the international community is composed of “different national, regional and functional (sectoral) constitutional regimes”.63 The resulting “Ver-fassungskonglomerat”64 of overlapping and interlocking communities is given unity by ultimate normative commitments. The international community is alleged to be based on the superiority of a value system and its “ethical force”.65

Most importantly, from the perspective of this value system the state is viewed as its agent—more precisely, an agent whose task is to realise the “blueprint” of the international value system.

66 In the words of Tomuschat, this means that “[…] States are no more than instru-ments whose inherent function is to serve the interests of their citizens as legally expressed in human rights”.67 Wow. Consequently, it is as-sumed that attributing a constitutional structure to public international law presupposes transcending the horizon of the mere co-ordination of state interest in favour of recognising the greater autonomy of public international law vis-à-vis the professed will of states.68 In any event, there has to be “something fundamental” about norms for them to be-come eligible to fall within the remit of international constitutional law.69

The constitutional core

The legacy of the natural law tradition is quite evident here.

According to de Wet, public international law has already developed into a “top-down” international value system.70

62 See Bogdandy, note

The top tier of values

59 at 224. 63 See Erika de Wet, ‘The International Constitutional Order’ (2006) 55 Interna-

tional and Comparative Law Quarterly 51-76 at 53. 64 De Wet, note 63 at 53 65 See de Wet, note 59 at 614. 66 See Bogdandy, note 59 at 225, 228, 235. 67 Tomuschat, note 51 at 161. 68 See, for example, Kadelbach & Kleinlein, note 57 at 235. 69 See Peters, note 56 at 599. 70 De Wet, note 59 at 57, 71.

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and foundational community interests are taken to be reflected in obli-gations of various types whose common feature is to transcend the forms of ordinary customary and treaty law. Among the notorious sus-pects are, of course, ius cogens and erga omnes obligations. Ius cogens cannot be abrogated by parties contracting an agreement. Which obli-gations fall into this class is difficult to tell since every legal scholar has either a shorter or longer list of offences that are so egregious that rea-sonable people are likely to react with outrage to the sheer possibility of their realisation. One should not be surprised, therefore, to see geno-cide, racial discrimination or torture on this list.71 Of course, the exam-ples beg the question. It is not easy to make out why unjustified aggres-sion72 and sex discrimination are not included. A straightforward ex-planation would have it that there is insufficient state consensus to that effect.73

The first is the allegedly higher level of obligations arising under the United Nations Charter. As is well known, Article 103 of the Charter says that in the event of a conflict between the obligations of the Mem-bers of the United Nations under the Charter and their obligations un-der any other international agreement, their obligations under the Charter shall prevail. Pursuant to Article 25 of the Charter resolutions by the Security Council are among the obligations arising under the

But then consent—and consent by whom?—would be readmit-ted to the foundational game through the backdoor. Erga omnes obliga-tions, by contrast, are also said to be in the interest of the community as such so that, as a consequence, states even have a legitimate interest in their protection when they are not immediately affected by a breach. Ius cogens and erga omnes obligations are not deemed to be co-extensive, even though it is difficult to see why not.

Below this top tier, other types of legal phenomena are taken to be of constitutional significance.

71 For a slightly longer list, see de Wet, note 59 at 59. 72 But see the Kadelbach & Kleinlein list at note 57 at 252. 73 Indeed, de Wet claims that ius cogens obligations are what they are because

states want to see them invested with superior abrogatory force. See de Wet, note 59 at 617: “The peremptory character of the prohibition of genocide and torture resulted from their specific recognition as such by a large majority of states.”

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Charter. This means that any other public international law obligation would have to yield to a Security Council resolution in the event of a conflict. It is not at all clear whether the relative supremacy of Charter obligations as such would actually justify counting the Charter among the indicia of growing constitutionalization. By contrast, it could make sense to conceive of Article 103 as a mere conflict-of-laws rule govern-ing the collision between different treaty obligations. Kadelbach and Kleinlein favour this interpretation simply because they are reluctant to attribute constitutional significance to a document, such as a Charter, whose substance does not amount to a constitution. In addition, they point out that neither the Charter nor Security Council Resolutions claim to have any direct effect within the context of a domestic legal order.74

Second, another phenomenon that is adduced in the constitution-alization context is “objective regimes”. Their relation to community in-terests is not abundantly clear. Nevertheless, what makes them special is the fact that despite their contractual origin they obligate and em-power third parties to the extent that the latter must tolerate the re-gime or may even require its implementation.

75

According to this view, what is “constitutional” about the new in-ternational system is the increasing role of constraints on state conduct that have never been underwritten by each state at will.

Furthermore, “world-order treaties”, such as the GATT, human rights pacts, the law of the sea and agreements dealing with international criminal responsibility are alleged to enshrine collective obligations that serve community in-terests transcending the individual interests of state parties. They in-corporate, in a sense, public interest norms, and are by their very na-ture close to coalescing into customary international law.

76

74 See Kadelbach & Kleinlein, note at 249-250.

This is essen-tially tantamount to Sir Hersch’s concept of non-voluntary amendment to the system. In fact, from the perspective of potentially dissenting states the constraints, such as ius cogens, must appear as unintended

75 See Peters, note 56 at 588. 76 On the disappearing of the “persistent objector rule”, see Peters, note 56 at 587.

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consequences originating from an evolving international system. I would like to note, at this point, that this is a highly peculiar concept of the constitution, which likens it more to natural law than to the con-scious act of adopting and committing oneself to a frame of govern-ment. In fact, since the constrains affect states in relation to one an-other, the system bears greater resemblance to non-dispositive private law and values protected by criminal law than to constitutional law. There is nothing particularly constitutional about ius cogens. Private law systems are perfectly well equipped to recognise the role of such norms. Every criminal statute establishes a value system. De Wet does not seem to see a difference of constitutional law here. All law that em-bodies values appears to be constitutional law. Since all law is in one way or another expressive of value judgements it is not easy to make out why the concept of law does not become co-extensive with consti-tutional law.

Confidence and administrative cooptation

The constitutionalist makeover is one more manifestation of how the inflation of normative meanings has left a mark on a certain culture of “doing international law”. I take it that this is not the whole culture of public international law but rather characteristic of the segment where asserting public international law is tantamount to pushing its limits. The lex lata can be what it is only if it is treated as the lex ferenda. This principle explains two elements of the style associated with doing pub-lic international law.

First, the normativity of public international law reflects confidence in progress. Arguments about what the law is are casts as arguments about where the law already ought to be. It is as though the question “May I drive 35 miles per hour on this street” is answered by saying “I am sure that the week after next you will be allowed to do so”. It does not take a Hegelian to realise that the synthesis between what is and what is not is progress. Public international law is seen as constantly on the move and pregnant with new norms. Confidence arguments abound. At bottom, they have the form that “there is some evidence of

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some evolving x”.77 A few examples may suffice. There is confidence, for example, that the ECHR has set the precedent for the establishment of a hierarchy of different legal sources78 or may at least influence practice under the ICCPR regime.79 There is confidence that the scope of erga omnes obligations is growing steadily such as to include, possibly, even free trade.80 There is confidence, apparently, that ius cogens can also come in regional form.81 There is confidence that it is by now firmly es-tablished (“undisputed”) that systematic human rights violations are tantamount to a threat to world peace.82 There is confidence that mul-tilateral treaties, once they have been around for a while, become cus-tomary international law with erga omnes effect on top.83 There is con-fidence that it would make a difference if the International Court of Jus-tice declared Security Council regulations illegal even though the Court does not have power to do so.84 Finally, there is widespread confidence in the magic of supranational self-extraction, that is, that the substance of treaty obligations may give rise to their higher abrogatory force.85

77 See De Wet, note

Second, traditional public international law, if taken seriously, is

destined to be a slow-moving field. Progress presupposes either long-entrenched use or effective diplomacy. The makeover needs to come forward with strategies of acceleration. One means of acceleration is the shift in attention from hard law to soft law. In addition to tinkering with sources, reference to soft law often underpins confidence argu-ments.

59 at 631. 78 See ibid. at 631. 79 See ibid. at 631. 80 See De Wet, note 63 at 63. 81 See De Wet, note 59 at 617. 82 See De Wet, note 63 at 64. 83 See ibid. at 63, 68. 84 See ibid. at 67. 85 Ibid. at 67.

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As has been argued by Schäfer and others,86 “soft law” is a method used by international organisations in order to continue activity in spite of disagreement. Consequently, international law becomes increasingly taken over by grey zones. Law can always be seen to exist against a background reserve army of “soft law”.87 Soft law is law in the modality of possibility, that is, in the midst of a leap to actuality (like a competi-tor in a swimming race waiting at the edge of the pool for the start sig-nal). Nobody knows what it really takes for that to happen, but all agree that it does not take much. The usual suspects for soft law are General Assembly resolutions, declarations at ministerial conferences, codes of conduct, best practices and joint statements. As has been pointed out by Klabbers, however, it would be a mistake to assume that law could be more or less binding or give rise to more or less obligations. This ex-plains why it can be commonly observed that when “soft law” is used by international tribunals it becomes recast in the form of more accepted sources, such as treaties and custom.88 Klabbers concludes, therefore, that as soon as soft law is applied in a court of law it ceases to be soft law and “becomes completely indistinguishable from hard law”.89

The practical equivalent of perceiving existing law against the re-serve army of soft law is the deformalisation of multilateral treaty law.

90

86 See Armin Schäfer, ‘Resolving Deadlock: Why International Organisations In-

troduce Soft Law’ (2006) 12 European Law Journal 194–208. 87 Soft law is, of course, a chimera. Law is either binding or not. See Jan Klabbers,

‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International Law 167-182. Nonetheless, the existence of the belief in the chimera of soft law tells us something about the normativity of transnational constitutional law.

This is not something that happens to contracting parties. Determinate general rules are likely to be perceived by them as either over- or un-der-inclusive with regard to how they could prejudice their own posi-tion or affect a future adversary. Consequently, parties are comfortable

88 See Klabbers, note 87 at 174. 89 Ibid. at 177. 90 See Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian

Themes About International Law and Globalisation’ (2006) 8 Theoretical Inquiries in Law 9-36 at 13.

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to support an inconclusive agreement, that is, “an agreement to leave such determination for decision as the situation arises (with the hope, of course, that one will then be in a position to decide for oneself).”91 The requisite instrument will merely set the stage for balancing inter-ests on a case-by-case basis. Sanctions for breach, if there are any, are likely to be channelled through a dispute settlement mechanism that emphasises reconciliation and constructive problem-solving rather than a liability to pay damages. Not infrequently, public shaming and loss of financial assistance are as bad as it gets.92 Koskenniemi summarizes the situation beautifully. Agreeing to a treaty means agreeing to continue negotiations, however, thereby allocating a decisive role to expertise and functional interests.93

The impending loss of credibility

In a deformalised form, international agree-ments establish procedures for addressing “issues” and mention factors, circumstances, aspirations, targets and objectives that ought to be taken into account. The synthesis underpinning a decision is not sup-plied by law but rather by some melange of technical and managerial expertise whose application is purportedly capable of adapting interna-tional institutions to new challenges. The legality of law thereby be-comes absorbed by administrative rationality in whose context it oper-ates and on which it was supposed to have a constraining effect.

Confidence boosting is the academic face of administrative absorption. In fact, confidence boosting is a strategy with which the belief in the goodness of public international law avoids confronting an uncomfort-able truth. This truth is the Pyhrronian victory suffered by legality when is becomes asserted at the cost of its own dilution. Expertise-driven re-gimes are either a substitute for diplomacy or even authoritarianism in disguise. They are ersatz diplomacy where the decision-making by ex-perts is tolerated as a transaction-cost saving equivalent of cumbersome

91 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique

and Politics’ (2007) 70 Modern Law Review 1-30 at 10.’ 92 See Koskenniemi, note 91 at 13. 93 See Koskenniemi, note 91 at 11.

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international negotiations; they are authoritarian where decision-making in contexts of functional differentiation traces the bias of the regime.94 As Koskenniemi observes, when regimes become “thoroughly managerialised” they “turn into unreflective support of the structural bias within a particular expert discourse.”95 States may want to benefit from delegating highly technical decision-making to peer-reviewed pools of international expertise, but the result is that regimes and “processes” take on a life of their own. Dispute resolution among the participants comes to be perceived as a matter of “management” itself in the course of which “the proper response is always technical or eco-nomic”.96 But technical and economic decision-making processes can-not accept rights and obligations as external limits set to the accom-plishment of their task. Their relevance needs to be translated into the language of their agenda. The administrative rationality of regimes does not encounter otherness. In a word, “contextual ad hocism”97

94 This is what Koskenniemi calls the “managerial mindset”. See Koskenniemi,

note

strength-ens the authority of expertise.

The dual process of confidence boosting and administrative co-optation is aggravated by the fact that public international law, owing to its primitiveness, is by its very nature an extremely messy field of law. It is in fact the antithesis of constitutional law. At its Westphalian core, all public international law originates from two sources: custom and agreement. Everything else is unclear. It is unclear, for example, why and under which circumstances customary international law can coalesce to ius cogens. If ius cogens can be introduced by customary in-ternational law then it can be abrogated by custom also. The prohibi-tion of torture might not be immune to change in the global war on ter-ror. The puzzles merely begin here. For example, one might wonder whether erga omnes obligations can be abrogated by a bilateral treaty. If not, they would be ius cogens.

90 at 17. 95 Koskenniemi, note 90 at 17. 96 See Koskenniemi, note 91 at 14. 97 Koskenniemi, note 91 at 9.

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When confidence boosting speaks niceness to administrative ra-tionality public international law becomes easy prey to those who be-lieve it to be nothing but state-centred Ko-ordinationsrecht.98

Conclusion

Paradoxi-cally, constitutionalization discourse, rather than overcoming constitu-tional deficiency, ends up making matters even worse. The hierarchy of norm-creation remains opaque (for example, nobody knows why reso-lutions by the UN General Assembly should be able to establish erga omnes obligations or, let alone, ius cogens, even though they could be easily alleged to be “indicative” of it).

The very aim of the constitutionalization exercise appears to be to arrive at a clear hierarchy of norms in terms of abrogation. But it is not able to use an existing one in order to arrive at a new one. This is why constitutionalism, traditionally understood, was consistently concerned with political acts of constitution-making. International constitutional law, qua compensation for the absence of such political power, be-comes hoisted by its own petard, that is, trapped in the messiness of the original system of international law.

In this paper, I tried to sketch a perspective on public international law that can be plausibly linked to dealing with the European cataclysmic experience. I identified three elements, which could plausibly even be traced back to Kant: first, the detection of a deficiency in public inter-national law as it stands; second, the belief that law is key to promoting an agenda that is more modest, but also more elementary than univer-sal problem-solving; third, the aspiration to explain how and why the rule of law can be sustained in a setting that is marked by state sover-eignty.

For the most part, I tried to sketch a chain of substitution with re-gard to characterisations of the deficiency. I tried to show how the pro-ject of reformation, for want of support by a political movement, is bound to rest its hope on processes of adjudication. With adjudicative

98 Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (Oxford

University Press, 2005).

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institutions predominating, a system of law is likely to be rationalized as common law. Any common law is caught up in the paradox that it systematically gives rise to a situation in which precedents do not prejudice results. The arising constitutional deficiency supposedly gen-erates a drive towards constitutionalization. Interestingly, instead of resting their hope on acts of law-giving some scholars who contribute to the current constitutionalization discourse seem to believe that in-creasing moralization is key to making public international law more appealing and hence, also more successful. Alas, it is at this point that the aspiration of constitutionalization becomes complicit with adminis-trative rationality. It becomes co-opted by a monistic version of the in-ternational system in which law is generally seen as subservient to managing complex relations as they arise under conditions of transna-tional organic solidarity.

The last word goes to Scelle. What do the Germans have to say to that?