Many thanks to the Völkerrechtsblog for hosting this symposium, to Andreas Føllesdal and Steven Ratner for collecting and editing the comments and my reply, and to Kostia Gorobets, Kristen Hessler, David Lefkowitz, and Alain Zysset for incisive and provocative comments.
One of the central messages of the book Law Beyond the State is that states face the paradox of commitment: this paradox obtains when states can increase their sovereign power only if they accept reciprocal restraints on their freedom of action. Just as individuals increase their autonomy when they accept the limits imposed by domestic law, states can act more freely when they accept the limits imposed by international law.
Reply to David Lefkowitz
Both realists and legal pluralist fail to recognize the importance of this paradox. David Lefkowitz invites me to spend more time considering their views. David says that realists reject the idea that an impartial morality must play any role in the decisions of states. States are going to be partial when concerned with their own survival and are less likely to submit to rules in which the interests of other states are given equal weight.
I do not think that states’ necessity to reject international law follows from their commitment to partiality. First, partiality to one’s interests leaves room for considering the interests of others, while giving lexical priority to one’s survival, as some realists claim states must, does not. Survival is always at stake according to realists because states find themselves in a permanent state of war. David might be giving too much credit to the structural realists because what he is attributing to them is a much milder position, one compatible with an extensive and muscular system of international law. One fundamental aspect of law is the protection of the survival and interests of the individual subjects of the law, and well as their peaceful coexistence. Far from being incompatible with international law, state survival requires it. This is why understanding the paradox of commitment is so important. Realists believe states can survive or even thrive absent reciprocal restrictions on their behavior. It may be a particular folly of the American realist tradition at a time when the USA is so powerful to insist that this is the case. In reality, all states must be bound by some constraints if they are to be protected from each other’s inappropriate interference. I defend a stripped-down form of constitutionalism as setting the basic rules of interaction among states. These rules are continuous with existing principles of international law.
David believes my treatment of legal pluralists, especially Nico Krisch is not sympathetic enough. Krisch opposed constitutionalism because he believes incremental change in international law is preferable. The resulting legal evolution is more likely to be viewed as legitimate by the law’s subjects. I have great sympathy for Kirsch’s idea. But I think it matters how unjust or problematic the status quo is for a preference for incremental legal change to be defensible. Even if granting women or racial minorities voting rights would greatly unsettle the existing legal order, it might still be acceptable to push them through to avoid continued injustice being inflicted on vulnerable groups.
Furthermore, legitimacy is not just a function of how large the change is, but also of how morally acceptable the process is which leads to it. Thus, a global constitution may be perceived more legitimate if it is generated via a process that is seen as inclusive, transparent, and which takes various parties’ interests and values into account. The UN Charter was certainly a big change to the power politics during WWII. While incremental change generates legitimation beliefs, which are in turn important for the effectiveness and stability of legal rules, that should be the default approach only for a relatively just legal order, and the international legal order is not just for the reasons I explain in the book. Constitution-making can be fully compatible with respecting the national and local values and identities of individuals. In fact, such respect may require it. A global constitutional order can make individuals more secure within their states and states more secure in the international environment.
Reply to Kristen Hessler
The question Kristen Hessler raises is whether David Hume offers the best resources for defending constitutionalism at the international level. The answer is not immediately clear. Arguably constitutions can incorporate and articulate already existing rules, and there is a good case to be made that constitutionalizing international law would rely on already existing quasi-constitutional rules and principles such as state equality, non-interference, or prohibition of distinct international crimes. But fundamentally, Hume might be opposed to constitutionalization if it requires a substantive departure from the status quo. For my purpose, it matters less whether a Humean dynamic coordination model might lead to constitutionalism. The point of drawing on Hume was to defend the legitimacy of international law as a project and to urge states to invest in its further strengthening, whether incremental or not. But Hume ought not to be the only resource we turn to in seeking to evaluate and reform international law. Ideals of individual autonomy, rights, rule of law principles, inclusiveness, and accountability for office holders, are by now deeply imbedded in domestic constitutional practice as well as international legal practice, though of course they are weaker and much less institutionalized in the latter. Our best theories of justice are pluralistic, and a pluralist moral framework for judging the adequacy of international legal norms is also appropriate, though Kristen is right that this point should be more explicit in the book.
Like David, Kristen worries that I do not leavy any room for politics and diplomacy in the resolution of international conflicts and in the pursuit of common goals. I do, but my point is that politics plays too much of a role at this historical point. Take for instance the fact that conflict resolution in cases in which a state violates the rights of another state requires in many cases (though not all) the consent of both state parties to appear before an international court. When a perpetrator state refuses such consent, conflict resolution is left to more inadequate and lopsided political means, including power politics, military threats, and the withdrawal of economic assistance. Weaker states are quickly silenced, which means that many cases of rights violations are left unaddressed, and furthermore these states are continuously vulnerable to the predatory actions of more powerful ones. Thus, rather than not recognizing ‘any inherent value in the necessarily political mechanisms needed to bring international law closer to a coherent, morally justifiable system of law,’ I would claim such mechanisms must be much more constrained as the primary means for solving disagreements, especially where states’ legal rights are at stake. Constitutions confine politics but also make politics possible among peoples who disagree about fundamental values.
While Kristen is right to draw some parallels between my proposal and Immanuel Kant’s, I find his framework ultimately less helpful for the account of international law I wish to defend. As a social contract theorist, Kant leaves less room for and cannot explain the incremental evolution of international law which has by now surpassed in many ways (but also falls short of) his ideals of international peace and hospitality. Second, Kant may provide us with a limited institutional imagination for global governance. His proposal of federation of republics or a state of states (if his interpreters such as Jurgen Habermas and Pauline Kleingeld are correct) occludes from view much less intrusive proposals for creating order and protecting rights at the international level. The difficulty of constraining a world state would be substantial, while a constitutional order without a state (along the lines of the European Union) is more palatable from here and now.
Reply to Alain Zysset
Alain Zysset wonders why we need a constitution since the norms of a constitutional treaty already exist in international law. Norms such as sovereign equality and non-interference, human rights and jus cogens prohibitions against genocide and crimes against humanity are part of the fabric of treaties and institutions which already interpret and apply them. However, it is one thing for certain norms to exist in the law, it is another for them to have constitutional status, namely to constrain the operation and interpretation of all other norms, to limit the authority of states in their own territory, and to channel the resolution of conflicts via juridical rather than via military means.
Alain also believes that in my criticism of international law I erase the subtlety with which domestic constitutional rules and international law interact, as they do for example at the European Court of Human Rights (ECtHR). When interpreting and enforcing the rules of the European Convention for Human Rights the ECtHR leaves a margin of appreciation for states to comply with its decisions. However, in my view, international courts which operated on the model of the ECtHR would be a huge step forward compared to the status quo. If the International Court of Justice or the International Criminal Court had the luxury of leaving a margin of appreciation for states, this would also mean that these courts enjoyed compulsory jurisdiction, that individuals had legal standing to bring cases before the courts, that a body like the committee of minsters supervised the execution of judgments and puts pressure on non-complying states, and that it could resort to methods of coercion such as the adoption of interim measures culminating in expulsion from the Council of Europe. The authority that the ECtHR enjoys leave much less room for the inappropriate assertion of sovereign prerogatives which take place in international law when states breach the borders of other states and refuse the jurisdiction of a court or refuse to abide by the judgment of an international tribunal, both of which China has done in the South China Sea case.
Reply to Kostia Gorobets
Kostia Gorobets and I share a common mistrust of some of Hobbes’s premises of the foundations of social cooperation at both the domestic and international level. However, he claims my skepticism does not go far enough. He says Hobbes and his followers assume that there is society before normativity, while the two are always intertwined. I agree with Kostia that social life is never free of normativity understood as rules which guide human behavior and make peaceful coexistence possible. However, society could be free of legal normativity, in the sense that we could have social rules even absent a fully-fledged legal system. This distinction makes sense if one accepts that law is a qualitatively different mode of social order than social rules understood more broadly. This is why it makes sense to talk about the legal systems coming into being, evolving, and growing. Although the boundaries are not always clear, we can distinguish between normativity broadly conceived and legal normativity. Perhaps Kostia’s point is that realists reject both forms of normativity, and insofar as legal normativity depends and builds on other forms of normativity, realists fail to see the potential in developing an international legal system from customary rules and other implicit rules developed among states over time, such as for example the Westphalian principle of sovereign independence. The gloomy implication of the realist outlook is that states cannot transcend the permanent state of war, mutual suspicion, and power politics except only temporarily. But realists fail to see that states do not define the terms of their existence, including their borders, privileges, and immunities unilaterally. States are constituted by international law just as much as they constitute international law. Therefore, granting states robust legal personality via a legal system which protects their sovereign prerogatives must be much better even on the realist view than without a legal system in place.
Kostia also raises questions about the rule of law as either an existence condition for law or as a normative benchmark for what makes law legitimate or just. As a positivist I have no problem accepting the idea that the rule of law is not an existence condition for law. But there still remain important questions about how to characterize and distinguish law as a distinct system of social order, and Kostia is pushing for a more explicit model of law which informs my book. I have raised similar questions myself and I do not yet believe we have a compelling answer to the difficult conceptual question of ‘what is law?’ This just means that there is much scope to develop the philosophy of international law beyond this book, and I hope others will pick up where mine and other recent books leave off.