11
In Defence of ‘Constitution’
Rainer Wahl*
i. introduction
For over 200 years, ‘constitution’ has been a key concept of political–juridical
thinking. Its widespread transposition to the European and international level today
might therefore be assumed to trigger fundamental thinking about the justification
of this terminological and conceptual analogy. A successful transplantation could
provide both levels—European and international—with a reinvigorated experience
of how the concept of the constitution became so successful in nation states. But an
inflationary and substantively inaccurate transfer from the level of the state to levels
beyond the state might only offer an illusory solution, one that acts as a barrier against
devising more adequate conceptual solutions. The title of this chapter anticipates its
hypothesis: that the concept of the constitution is not strengthened but weakened
when the terms ‘constitution’, ‘constitutionalism’, and ‘constitutionalisation’ are
transferred without thought to the international level.
The term ‘constitution’ is placed in quotation marks in the title for a reason. What
needs to be defended is not existing constitutions, but the linguistic and conceptual
use of the term. The core of the controversy does not concern conceptual issues.
Terms such as ‘constitution’ are linguistic usages which can be altered. But when
a term is well established, it may prove inexpedient or even misleading to adopt a
substantially different use of it. In the context of usage of the term ‘constitution’,
the claim being made by those extending it beyond the state level is that the essence
of the existing term applies with equal effect to the new usage, and this extension of
scope is conceptually justified. The objective of this chapter is to examine this claim.
ii. constitution in and beyond the state
My subject is the extending usage of the term ‘constitution’, initially with respect
to the European Union (EU) and then in the international arena, both as a guiding
formulation for the sphere beyond the nation state and, more generally, as providing
*
I am indebted to Mitch Cohen, Wissenschaftskolleg zu Berlin, for the translation and Anna
Katharina Mangold for helpful comments.
In Defence of ‘Constitution’. Rainer Wahl.
© Oxford University Press 2010. Published 2010 by Oxford University Press.
In Defence of ‘Constitution’ 221
the foundation for a new form of international law. The basic claim being made
by advocates of constitution beyond the state is that above the traditional norms
of international law, in particular beyond treaties under international law, there lies
another layer of norms and principles, and that—this being the decisive point—these
norms should bind states. States should be subject to duties that arise independent of,
or against, their will.1
The claim to be examined here goes further and suggests that
these higher duties and norms add up to a whole, to a constitution (or at least add
up to larger orders). This notion of the constitution beyond the state is propounded
in two main variants. In the strong hypothesis, one speaks of international constitutionalism;
in the weaker variant, of a (mere) constitutionalisation. The latter, weaker
hypothesis avoids the apparent problem of the first: that there is no presentable and
perceptible formal constitution on the international level, either as a whole or in
relevant partial arrangements.
The traditional understanding of the constitution on the state level is unavoidably the
starting point for further considerations. Those who want to apply the term to political
units beyond the states must have a clear idea of this concept. Consider two representativeanalyses.Inhissystematicelucidationof
theGermanBasicLaw,PeterBadurabegins
withanabstractlegaldefinitionof ‘constitution’thatconstitutionalistsmightuseastheir
starting point: by constitution, Badura writes, ‘one understands basic legal prescriptions
summarized in a constitutional law (‘a constitutional document’) on the organization
and exercise of state power, state tasks, and basic rights.’ He then elaborates:
The constitution is an order-creating and programmatic act of foundation and
shaping that seeks to give the community a legal foundation in a concrete
historical situation. The constitution traces back to a political decision by the
political forces that determine the instituting of the constitution.… The constitution
has legal, but also political effects, because it is a symbol of state unity and
commonality that influences legal consciousness and political life.2
Similarly complex is the definition by Dieter Grimm:
The constitution in the modern sense is characterized by five components:
(1) Itistheepitomeof legalnorms,notasummaryof philosophicalfoundations
and not a description of actual power relations in a community.
(2) The object of these legal norms is the institution and exercise of political
rule or public power.
(3) The constitution tolerates neither extra-constitutional powers nor extraconstitutional
ways and means of rule.
(4) Because rule is legitimate only when constituted and limited by
constitutional law, constitutional law takes primacy over all other acts of
1
See C. Tomuschat, ‘Obligation arising for States without or against their Will’ (1993-IV)
241 RdC (Recueil des cours de l’Académie de Droit Internationale de la Haye) 195–374.
2
P. Badura, Staatsrecht: Systematische Erläuterung des Grundgesetzes (Munich: Beck, 3rd edn,
2003), 7 (emphasis in original).
222 Rainer Wahl
rule. The latter are valid only when they remain within the framework of
constitutional law.
(5) The norms of constitutional law are based in the people, because
every other principle of legitimization of rule unhinges the remaining
components and, in case of conflict, would prevail over the constitution.3
Such descriptions of the concept make it clear that ‘constitution’ is a complex
phenomenon belonging to the spheres of both law and politics. The constitution
certainly has normative content and makes normative claims. But also important is
whether, and the degree to which, it is accepted among the people. And ultimately this
recognition by the individual and the people gives the constitution its normative force.
The concept of the constitution is very attractive for the European and, to a degree
also, for the international level mainly because this constitutional approach draws on the
successstoryof constitutions.Thesuccessof nationalconstitutions,especiallyafter1945,
has been so great that hardly any state wants to eschew the honour of having a constitution,
even if it is not a genuine constitution. Here we are speaking mainly of the smaller
number of genuine, so-called Western constitutional states. For these states, it is true
that there was and still is a success story of constitutions and in particular of constitutional
jurisdiction. Constitutional jurisdiction is what first gave these constitutional texts
the normative effectiveness they were striving for. Law enforced by this jurisdiction is
law with a quality different from law without such jurisdiction; it is, so to speak, law in
a different aggregate state. All constitutional states that have instituted a constitutional
jurisdiction have made a leap to a higher level of normativity and legitimacy.
This high esteem for such constitutions is the starting point for the many proposals
that are seeking to transport the idea of the constitution to the supranational and
international levels. The hope is that of achieving similar successes to that obtained in
the case in states. Here, a role is played by the expectation that the use of the proven
‘honorary title’ of constitution will ensure that a significant part of the achievements
of national constitutions can be transferred to the newer political units. It is also
hoped that, as a result of this transfer, a unified and binding concept of constitution
can be adopted as the foundation of all three levels: national, European, international.
There is another quality of constitutions, emphasised mostly by jurists. With the
establishment of constitutions, an internal hierarchy within the legal order is created.
There now exist an easily identified group of fundamental legal norms; they are
norms about norms, norms of a second and higher order. As fundamental norms,
they stand above all others, above the vast number of norms contained in ‘ordinary’
law.4
They take precedence over all other acts and legal norms. All of this is more
3
D. Grimm, ‘Gesellschaftlicher Konstitutionalismus: Eine Kompensation für den
Bedeutungsschwund der Staatsverfassung?’, in M. Herdegen (ed), Festschrift für Roman
Herzog (Munich: Beck, 2009), 69–82. See also D. Grimm, ‘Die Verfassung im Prozess der
Entstaatlichung’, in M. Brenner (ed), Festschrift für Peter Badura (Tübingen: Mohr Siebeck,
2004), 145–68, and Grimm in this volume.
4
The term ‘ordinary’ law in this extreme form exists only in German law. The term may
and must initially surprise, because it designates rather relativisingly precisely the laws
In Defence of ‘Constitution’ 223
precisely described as the concept of the primacy of the constitution.5
Once again,
the establishment of constitutional jurisdiction is the immanent, logical conclusion
of this concept or of this institutional formation of higher rank.
This concept of the hierarchical order of precedence is so attractive that, not
surprisingly,itisemployedalsooutsidepubliclaw,andoutsidelawingeneral.Thetheory
of societal constitutionalism exhibits the attraction of this construction of primacy: of
rules about rules.6
This is also true of the economic theory of constitutional economics,
which focuses on rules about rules: of meta-rules that govern the other rules.7
But it might be noted that although the traditional understanding is the starting
point, it is not necessarily the authoritative standard for evaluating a broader
understanding of the concept. This raises the basic methodological problem.
It is assumed that the European and international level are units with special
characteristics: units sui generis in relation to the state, so to speak. But actually there
is little that can constructively be said about what is special about units sui generis and
initially one can only measure these units with respect to their degree of distance
from the characteristics of states. That is, the comparison must be with what the
new units precisely are not: states. And as long as one does not have any convincing
positive understanding of these special qualities, this is unavoidable.
iii. constitutional law beyond the state
Nothing in the broad inventory undertaken in 2007 under the title Zur Zukunft der Völkerrechtswissenschaft
in Deutschland (The Future of International Law Jurisprudence in
Germany) in the Max Planck Society’s Zeitschrift für ausländisches und öffentliches Recht
passed by parliament. This relativisation of laws has internal consistency, however, namely
because of the primacy and the comprehensive meaning of constitutional law in the
German legal order. This formation of terminology once again reflects the earlier observation:
the primacy of the constitution at the same time means the lower ranking of the
laws. See R. Wahl, ‘Der Vorrang der Verfassung’ (1981) 20 Der Staat 485–516. See also id,
Verfassungsstaat, Europäisierung, Internationalisierung (Frankfurt: Suhrkamp, 2003), 121–60.
5
Wahl, ‘Vorrang’, above n 4; id, Verfassungsstaat, above n 4, 161–87; id, ‘Der Vorrang der
Verfassung und die Selbständigkeit des Gesetzesrechts’ (1984) NVwZ 401–9.
6
D. Sciulli, Theory of Societal Constitutionalism (Cambridge: Cambridge University
Press, 1992); G. Teubner, ‘Globale Zivilverfassungen: Alternativen zur staatszentrierten
Verfassungstheorie’ (2003) 63 ZaöRV 1–28; A. Fischer-Lescano and G. Teubner,
Regimekollisionen (Frankfurt am Main: Suhrkamp, 2006), 43, 57.
7
J. M. Buchanan, Constitutional Economics (Oxford: Blackwell, 1991); id, The Economics and the
Ethics of Constitutional Order (Ann Arbor: University of Michigan Press, 4th edn, 1994); I. Pies
(ed), James Buchanans konstitutionelle Ökonomik (Tübingen: Mohr, 1996); G. Grözinger and
S. Panther (eds), Konstitutionelle politische Ökonomie: sind unsere gesellschaftlichen Regelsysteme
in Form und guter Verfassung? (Marburg: Metropolis-Verlag, 1998); V. Vanberg and J. M.
Buchanan, ‘Constitutional Choice, Rational Ignorance and the Limits of Reason’ (1991) 10
Jahrbuch für Neue Politische Ökonomie 61–78; V. Vanberg, ‘Market and State: The Perspective of
Constitutional Political Economy’ (2005) 1 Journal of Institutional Economics 23–49. See also
(since 1990) the journal Constitutional Political Economy.
224 Rainer Wahl
und Völkerrecht is so often cited as the constitutionalisation of international law, albeit
with numerous variants in wording.8
In hardly any relevant pan-European or international
context has the (primarily, if not exclusively German) literature felt drawn
towards adopting the time-honoured concept of the constitution. The aforementioned
intention to live from the high degree of esteem for this term in the context of the
state is conspicuous—even if states are otherwise conceived as being in a process of
erosion. At least with the ‘demise’ of the state, in the currently predicted phase of
de-statification (Entstaatlichung), one wants to profit from one of its greatest achievements:
the idea of the constitution.9
Thus, in various contexts, terms like world
constitutionalism,10
international constitutionalism,11
global constitutionalism,12
international
democratic constitutionalism,13
multi-level constitutionalism,14
European
constitutionalism beyond the state,15
and postnational constitutionalism16
appear in the
literature. An interesting variant is that of ‘compensatory constitutionalism’, expressing
the hope that the promotion of constitutionalism on the European or international
level will compensate for deficits and losses of constitutionalism on the state level.17
8
ZaöRV 67 (2007) with articles by Benvenisti, Kadelbach, Keller, Marauhn, Nolte,
Oeter, Paulus, Peters, de Wet, and Zimmermann, all with titles varying the given main
theme. Recently, there have been three inaugural lectures regarding this topic: O. Dörr,
‘“Privatisierung” des Völkerrechts’ (2005) Juristenzeitung (JZ), 905–16; M. Nettesheim,
‘Das kommunitäre Völkerrecht’ (2002) JZ 569–78; R. Uerpmann, ‘Internationales
Verfassungsrecht’ (2001) JZ 565–73.
9
Cf trademark law, where the behaviour of someone who seeks to exploit the fame of a
trademark for himself is called ‘acting parasitically on the major trademark’.
10
R. St John Macdonald and D. M. Johnston (eds), Towards World Constitutionalism: Issues in the
Legal Ordering of the World Community (Leiden: Martinus Nijhoff, 2005).
11
J. Klabbers, A. Peters, and G. Ulfstein, Constitutionalization of International Law (Oxford:
Oxford University Press, 2009).
12
A. Peters, ‘Global Constitutionalism in a Nutshell’, in K. Dicke (ed), Weltinnenrecht: Liber
amicorum Jost Delbrück (Berlin: Duncker & Humblot, 2005), 535–50.
13
B.-O. Bryde, ‘International Democratic Constitutionalism’, in Macdonald and Johnston
(eds), above n 10, 103–25.
14
I. Pernice, ‘The Global Dimension of Multilevel Constitutionalism: A Legal Response to
the Challenges of Globalisation’, in P.-M. Dupuy (ed), Völkerrecht als Wertordnung: Festschrift
für Christian Tomuschat (Kehl: Engel, 2006), 973–1006.
15
J. Weiler and M. Wind (eds), European Constitutionalism beyond the State (Cambridge:
Cambridge University Press, 2003).
16
N. Walker, ‘Post-national Constitutionalism and the Problem of Translation’, in Weiler
and Wind, above n 15, 53.
17
A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental
International Norms and Structures’ (2006) 19 Leiden Journal of International Law 579–610; E. de
Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the
Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law
611–32. See also R. Wahl, ‘Verfassungsdenken jenseits des Staates’, in I. Appel and G. Hermes
(eds), Mensch—Staat—Umwelt (Berlin: Duncker & Humblot, 2008), 135–54.
In Defence of ‘Constitution’ 225
Constitutional thinking addressed here is often directed specifically at the UN
Charter as the constitution of the international community; in this variant, the
focus is on the constitutionalisation of the entire order of international law.18
But the
WTO also receives constitutional recognition as a partial order.19
In addition, there
is the evolutionary concept of constitutionalisation, in which a great deal of what is
constitutional is expected from further development in the future, but which already
places a label on the development.
The constitutionalist interpretation finds similar diversity and an even more
frequent use in the German literature, which is generally considered the original
source and primary habitat of this approach.20
The German formulations speak of
überstaatliches Verfassungsrecht (constitutional law beyond the state),21
internationales
Verfassungsrecht (international constitutional law),22
kommunitäres Völkerrecht
(communitarian international law),23
constitutionalisation,24
and Der Staat der
Staatengemeinschaft (the state of the community of states).25
The influence of the
private-law-based, or system-theoretical, concept of the civil constitution has already
been referred to.
18
Recently M. Knauff, ‘Konstitutionalisierung im inner- und überstaatlichen Recht:
Konvergenz oder Divergenz?’ (2008) 68 ZaöRV 453–90, with a systematisation of the forms
of appearence.
19
J. Trachtman, ‘The Constitutions of the WTO’ (2006) 17 European Journal of International
Law 623–46. Otherwise J. L. Dunoff, ‘Constitutional Conceits: The WTO’s “Constitution”
and the Discipline of International Law’ (2006) 17 European Journal of International Law
647–75. Cf M. Hilf, ‘Die Konstitutionalisierung der Welthandelsordnung: Struktur,
Institutionen und Verfahren’, in W. H. von Heinegg (ed), Entschädigung nach bewaffneten
Konflikten: Die Konstitutionalisierung der Welthandelsordnung (Heidelberg: Müller, 2003),
257–82.
20
The constitutionalist interpretation is considered to be a German concept, eg A. Paulus,
‘Zur Zukunft der Völkerrechtswissenschaft in Deutschland: Zwischen Konstitutionalisierung
und Fragmentierung des Völkerrechts’ (2007) 67 ZaöRV 695–720, at 697, 699, 703, 718. Too
few problems take British authors into consideration using the terms constitution and constitutionalism,
probably because those terms and concepts are not part of the British law and
its tradition.
21
SeeS.KadelbachandT.Kleinlein,‘ÜberstaatlichesVerfassungsrecht:ZurKonstitutionalisierung
im Völkerrecht’ (2006) 44 Archiv des Völkerrechts (AVR) 235–66.
22
Uerpmann, above n 8; critically, U. Haltern, ‘Internationales Verfassungsrecht:
Anmerkungen zu einer kopernikanischen Wende’ (2003) 128 Archiv des Öffentlichen Rechts
(AöR) 511–57.
23
Nettesheim, above n 8.
24
C. Walter, ‘Die EMRK als Konstitutionalisierungsprozess’ (1999) 59 ZaöRV 961–83; id,
‘Constitutionalizing (Inter)national Governance’ (2001) 44 German Yearbook of International
Law 170–201; critically R. Wahl, ‘Konstitutionalisierung: Leitbegriff oder Allerweltsbegriff?’
inC.-E. Eberle (ed), Der Wandel des Staates vor den Herausforderungen der Gegenwart: Festschrift
für Winfried Brohm zum 70. Geburtstag (Munich: Beck, 2002), 191–207.
25
W. G. Vitzthum, Der Staat der Staatengemeinschaft: Zur internationalen Verflechtung als
Wirkungsbedingung moderner Staatlichkeit (Paderborn: Schöningh, 2006).
226 Rainer Wahl
Evidence of the use of constitutional concepts in the international arena can be
found in the positive law of various international courts, in the architecture of the
WTO, and in several, much-noted, spectacular problem constellations and cases.26
Eight illustrations of these usages can be listed as follows.
1. At the top of the frequently mentioned examples stands the limitation of states’
immunity in cases of severe violations of human rights. The leading case is that of the
formerChileanPresident,Pinochet.27
Inthiscase,theEnglishHouseof Lordseventually
removed Pinochet’s immunity, in proceedings that were not, overall, convincing. But
policy considerations—the health issues that were pleaded—prevented the implementation
of the penalty, and ultimately the process contained a mixture of rigorous decisions
and political considerations. In contrast, the Cour de Cassation did not permit a
suit against the Libyan head of state, Gaddafi, over the attack on a passenger plane.28
2. Limitation of states’ immunity in the case of states’ foreign ministers. The most
conspicuous case is that of the Foreign Minister of the self-styled Democratic
Republic of Congo, who is alleged to have been involved in severe violations of
human rights. In accordance with the principle of international law operating
in Belgium at the time, a Belgian investigating judge issued an arrest warrant
against the Foreign Minister. In proceedings filed by the Democratic Republic of
Congo, the International Court of Justice (ICJ) maintained the traditional immunity
of Foreign Ministers. But this was a majority decision and a notable minority
dissented.29
In the literature, this immunity problem has rightly been interpreted as
26
The major cases each time initiated a very extensive discussion whose references cannot be
given here in total—D. Thürer, ‘Modernes Völkerrecht: Ein System in Wandel und Wachstum:
Gerechtigkeitsgedanke als Kraft der Veränderung?’ (2000) 60 ZaöRV 557–604, at 560, considers
‘eight scenarios’ that he regards as a ‘thematic thread’ and as approaches to a paradigm for a
newly emerging system of international legal order. For a more detailed survey of the cases
and their problems, see Knauff, above n 18, and Dörr, above n 8.
27
For an account of the complicated circumstances of the different decisions see Thürer,
ibid, at 568 et seq. See also C. Maierhöfer, ‘Weltrechtsprinzip und Immunität: Das
Völkerstrafrecht vor Den Haager Richtern—Urteil des IGH Demokratische Republik Kongo
Belgien’ (2003) EuGRZ 545–54, at 545, nn 1–3; M. Ruffert, ‘Pinochet Follow Up: The End
of Sovereign Immunity?’ (2001) 48 Netherlands International Law Review (NILR) 171–95;
K. Ambos, ‘Der Fall Pinochet und das anwendbare Recht’ (1999) JZ 16–24; C. Tangermann,
Die völkerrechtliche Immunität von Staatsoberhäuptern (Berlin: Duncker & Humblot, 2002).
28
Cour de Cassation, decision of 13 March 2001, (2001) Revue géneralé de droit international
public (GDIP) 473.
29
Judgment of the ICJ of 14 January 2002 (Democratic Republic of the Congo v Belgium), excerpts
in (2003) EuGRZ 563; Maierhöfer, above n  27; C. D. Classen, ‘Rechtschutz gegen fremde
Hoheitsgewalt: Zu Immunität und transnationalem Verwaltungshandeln’ (2005) 96 VerwArchiv
464–84; M. Goldmann, ‘Arrest Warrant Case’, in R. Wolfrum (ed), Max Planck Encyclopedia of
Public International Law (Oxford: Oxford University Press, 2nd edn, 2009 et seq); S. Zeichen
and J. Hebestreit, ‘Kongo v. Belgien: Sind Außenminister vor Strafverfolgung wegen völkerstrafrechtlicher
Verbrechen immun?’ (2003) 41 Archiv des Völkerrechts (AVR) 182–200; O. Dörr,
‘Staatliche Immunität auf dem Rückzug’ (2003) 41 AVR 201–19.
In Defence of ‘Constitution’ 227
a stage for the conflict between diverging conceptions of international law.30
At issue
is the understanding of international law either as the coordinating law of sovereign
states or as the constitution of the ‘international community of mankind’. The
disagreement between majority and minority in the court was over differing views
of the process of production of international law and differing views of international
law as such. It is no surprise that the methodology of majority and minority
were fundamentally different.31
3. A topic widely discussed recently is the immunity of states against civil suits for
damages due to torture or other human rights violations.32
Suits for damages from
Greek citizens against the Federal Republic of Germany over Nazi crimes in the Greek
community of Distomo have drawn much attention; the verdict against Germany
handed down by the highest Greek courts was initially declared inadmissible in the
implementation phase, whereupon the plaintiffs strove for the implementation of their
demands in Italy.33
Currently, the entire dispute is before the ICJ, which—with Italy’s and
Germany’s agreement—will aim to clarify the underlying primary issue of immunity.34
4. A standard case on the reinterpretation of a Convention that previously applied
solely to states in favour of third parties is the case of the German citizen, LaGrand.35
30
Maierhöfer, above n  27, at 548, 549. The immunity of foreign ministers is not
comprehensively regulated in treaties, and is therefore a question of customary law. The ICJ
holds with state practice and explains that, even for the case of war crimes or crimes against
humanity, in state practice there is no exception to the generally recognised immunity of
foreign ministers. The dissenting judges’ opinions took various forms.
31
The fundamental international law decision to protect elementary human rights suffices—
according to this opinion—to deduce new rules from it. For the dissenters, the concept of jus
cogens and its asserted higher priority over immunity took central importance, while it played
no role in the argumentation of the court. In the opinion of the—constitutionally thinking—
minority, a direct connection should be established between the will and interest of single
individuals—who thereby become something like ‘world citizens’—and international law,
bypassing the states, from whose consensus a norm of international law no longer need be
derived. But no practicable process of legal recognition can be seen that could directly register
the wills of all 6 billion people and the basic values they share despite all cultural differences
and from which concrete norms could then be derived.
32
W. Cremer, ‘Entschädigungsklagen wegen schwerer Menschenrechtsverletzungen vor
nationalen Zivilgerichtsbarkeit’ (2003) 41 AVR 137–68; ECtHR in the decision Al-Adsani v UK
((2000) EuGRZ 403, with comment by Maierhöfer, 391).
33
Case Distomo, Corte suprema di Cassazione (Judgment of 29 May 2008, No 14199),
German translation: (2008) NVwZ 1100–1. See also IMI-decision (military interned/forced
labourer) of the same Court (Order of 29 May 2008, No 14201) (2008) NVwZ 1101–2;
also E. M. Frenzel and R. Wiedemann, ‘Das Vertrauen in die Staatenimmunität und seine
Herausforderung’ (2008) NVwZ 1088–91.
34
Frenzel and Wiedemann, above n 33; Cremer, above n 32; Dörr, above n 29.
35
Judgment of the ICJ of 27 June 2001 (LaGrand—Germany v United States of America)
(2001) EuGRZ 287, (2002) 91 JZ with comment by C. Hillgruber, 94; K. Oellers-Frahms, ‘Die
Entscheidung des IGH im Fall LaGrand: Eine Stärkung der internationalen Gerichtsbarkeit
und der Rolle des Individuums im Völkerrecht’ (2001) EuGRZ 265–72. For a comprehensive
228 Rainer Wahl
This and several parallel cases concerned violations of Article 36 of the Consular
Convention of 1963. The USA failed in several cases to report to a consulate of the
state of an arrested (and then convicted and executed) foreigner, as stipulated in
the Convention. In the LaGrand case, the Federal Republic of Germany obtained
an interim decision from the ICJ, although this did not postpone the execution. At
the core of the case is the—controversial36
—reinterpretation of the Convention
(which, as a consular convention, was originally intended to protect the states’ interests
in orderly diplomatic intercourse) into a treaty applicable to third parties and
containing subjective rights for affected parties.37
5. The Tadic judgment, the first ruling of the International Criminal Tribunal for
the Former Yugoslavia, sets minimum standards of humanity and justice in civil war.38
Since what were addressed were crimes in a civil war, this judgment is one of the first
instances in which at least some aspects of international law was applied in relation
to internal events, and which therefore interfered with the internal affairs of states.39
6. An extreme example is so-called humanitarian intervention.40
At the forefront
of this many-layered topic stands the noble and recognised goal of helping people
whose human rights are in danger of violation. But ultimately the means of pursuit
is military action, which itself necessarily endangers and usually also destroys life.
This specialised topic will not be further examined here. But the dilemma is clear:
the noble values being pursued do not safeguard against very problematic, namely
deadly, interventions and actions resulting from that pursuit.
7. We will mention only in general the innovations and improvements through
the international criminal jurisdiction before and after the Rome Statute. Here we can
note a development with some gradual steps of progress and with great political
reservations.
account of the facts and the controversial arguments, see B. Grzeszick, ‘Rechte des
Einzelnen im Völkerrecht: Chancen und Gefahren völkerrechtlicher Entwicklungstrends am
Beispiel der Individualrechte im allgemeinen Völkerrecht’ (2005) 43 AVR 312–44, especially
316 et seq.
36
See K. Oellers-Frahms, above n 35; B. Simma, ‘Eine endlose Geschichte? Art. 36 der
Wiener Konsularkonvention in Todesstrafenfällen vor dem IGH und amerikanischen
Gerichten’, in P.-M. Dupuy (ed), above n 14, 423–48; Hillgruber, above n 35; Grzeszick
above n 35.
37
Case concerning Avena and Other Mexican Nationals (Mexico v United States of America), ICJ
Reports 2004, 12 et seq (with comments).
38
See <http://www.icty/org>, links: The Cases, Completed Cases, Tadi´c. Also J. Menzel,
T. Pierling, and J. Hoffmann (eds), Völkerrechtssprechung: Ausgewählte Entscheidungen zum
Völkerrecht in Retrospective (Tübingen: Mohr Siebeck, 2005), 787, with references at 791.
39
Thürer, above n 26.
40
Intervention for humanitarian reasons: Thürer, above n 26; Nettesheim, above n 8; Paulus,
above n 20. On the NATO intervention in Yugoslavia, see Thürer, above n 26, at 574 (facts
and grounds) and 579 et seq, there clearly stating that an intervention for humanitarian
reasons—if at all—can only be justified by means of a new methodological interpretation of
the UN-Charter. For the consideration that great innovations are often preceded by such a
change of methodology, see below section IV. 8.
In Defence of ‘Constitution’ 229
8. The Listing Procedure carried out by the UN or, more precisely, by a committee
of the UN, has brought international law one of its current major cases, namely
the proceedings of the cases Yusuf and Kadi. To combat terrorism, the UN ordered
the freezing of all bank accounts of persons registered on a list. The proceedings
concern the legality of the listing procedure, with the plaintiffs claiming that they
have been wrongly placed on the list. With this instrument of counter-terrorism,
the Security Council has adopted a type of legislation. The key question is whether
there are legal limits to the Security Council’s power to legislate and whether these
limits lie solely in ius cogens or also in other legal prescriptions. At any rate, this
question about the limits placed on the Security Council addresses the constitutional
dimension in, and tests the strength of, international law.41
iv. constitutional thought: an overview
In the following section, the basic ideas of constitutionalist theories will be
synthesised, in ideal-typical form, from the rich and highly differentiated literature.42
At the core of these theories lies the constitutionalisation hypothesis: namely, that
international law should not be solely state-centred or consensus-determined.43
The
wills of individual states should not be the standard; rather, an independent layer of
fundamental norms should exist above the states.
41
Joined cases C-402/05 P and C-415/05 P Kadi and Al Barakaat IF v Council of the EU and
Commission of the EC [2008] ECR I-6351, (2009) Europarecht (EuR) 80; (2008) EuGRZ 480. For
commentary, see S. L.-T. Heun-Rehn, ‘Die europäische Gemeinschaft und das Völkerrecht
nach Kadi und Al Barakaat’ (2008) ELR 327–38; H. Sauer, ‘Rechtsschutz gegen völkerrechtsdeterminiertes
Gemeinschaftsrecht?’ (2008) NJW 3685–8; K. Schmalenbach, ‘Bedingt
kooperationsbereit: Der Kontrollanspruch des EuGH bei gezielten Sanktionen der Vereinten
Nationen’ (2009) JZ 35–43; J. A. Kämmerer, ‘Das Urteil des Europäischen Gerichtshofs
im Fall Kadi: Ein Triumph der Rechtsstaatlichkeit?’ (2009) EuR 114–30; S. Remberg,
‘Recht auf Verteidigung und effektiven Rechtsschutz gegen Vermögensbeschlagnahme
wegen Terrorismusverdacht durch Ratsbeschluss’ (2008) ERL 60–7; C. Ohler,
‘Gemeinschaftsrechtlicher Rechtsschutz gegen personengerichtete Sanktionen des
UN-Sicherheitsrats’ (2008) EuZW 630–3; C. Tomuschat, ‘Die Europäische Union und ihre
völkerrechtliche Bindung’ (2007) EuGRZ 1–12; S. Steinbarth, ‘Individualrechtsschutz gegen
Maßnahmen der EG zur Bekämpfung des internationalen Terrorismus’ (2006) ZEuS 269–85;
S. Hörmann, ‘Völkerrecht bricht Rechtsgemeinschaft? Zu den rechtlichen Folgen einer
Umsetzung von Resolutionen des UN-Sicherheitsrates durch die EG’ (2006) 44 Archiv des
Völkerrechts (AVR) 267–327.
42
For references to the rich German literature, see: Dörr, above n 8; Nettesheim, above
n 8; Kadelbach and Kleinlein, above n 21; Thürer, above n 26; Uerpmann, above n 8; Peters,
above n 17; de Wet, above n 17. Critically taking different perspectives: A. von Bogdandy,
‘Constitutionalism in International Law: Comment on a Proposal from Germany’ (2006) 47
Harvard International Law Journal 223–42; Haltern, above n 22; C. Hillgruber, ‘Dispositives
Verfassungsrecht, zwingendes Völkerrecht: Verkehrte juristische Welt?’ (2006) 54 Jahrbuch des
Öffentlichen Rechts (JöR) 57–94.
43
For a summary of the constitutionalisation hypothesis, see Paulus, above n 20, at 700.
230 Rainer Wahl
From this basic conviction, constitutionalist developments assume the following
internally consistent derivations.
1. If international law is not state-centred, then it requires a new reference point
and a new subject. This new subject is the community of states or, more properly
termed in the frame of the constitutionalists, the international community. The
international community is not simply a new concept;44
it is also the standard-setting
concept, the lynchpin. The concept offers an answer not only to new problem situations
of global reach, but also to the common interests of (most) states to combat
the human rights violations of some states.
2. If the content of international law is no longer to depend on consensus (or be the
result of contractual agreement), then it requires substantive anchoring. That is why
the new international law is building on and evolves from general values and principles.
Recourse to values is of such importance to the writing of constitutionalists that influential
essays invariably adopt the corresponding thesis in their titles. Illustrative are: Der
Schutz der Menschenrechte als zentraler Inhalt des völkerrechtlichen Gemeinwohls (The Protection
of Human Rights as Central Content of General Welfare under International Law)
and ‘The Emergence of International and Regional Value Systems as a Manifestation
of the Emerging International Constitutional Order’.45
It is the highest values that
lend some norms the character of ius cogens, or compelling law,46
ie norms that remain
binding even if individual states reject their validity.47
A similarly important role is played
by the recourse to common goods, ie global goods, as is found in internation law.
3. The concept of ius cogens is a cornerstone of the new thinking and the embodiment
of constitutionalisation. Ius cogens has its own attraction as a category, although
44
Nettesheim, above n 8, at 569–70, 571 et seq, with comprehensive references to other
literature; A. Paulus, Die internationale Gemeinschaft im Völkerrecht (Munich: Beck, 2001);
Bryde, above n 13, at 107: ‘The core of a constitutionalised international law is the general
acceptance of a common interest of mankind that transcends the sum of individual
interests.’
45
B. Fassbender, ‘Der Schutz der Menschenrechte als zentraler Inhalt des völkerrechtlichen
Gemeinwohls’ (2003) EuGRZ 1–16; id, ‘The Meaning of International Constitutional
Law’, in R. St John Macdonald and D. M. Johnston (eds), above n 10, 837–51, at 838;
de Wet, above n 17, at 614; T. Rensmann, ‘The Constitution as a Normative Order of
Value: The Influence of International Human Rights Law on the Evolution of Modern
Constitutionalism’, in P.-M. Dupuy (ed), above n 14, 259–78; id, Wertordnung und Verfassung:
Das Grundgesetz im Kontext grenzüberschreitender Konstitutionalisierung (Tübingen: Mohr
Siebeck, 2007); Thürer above n 26.
46
Regarding ius cogens see Stefan Kadelbach, Zwingendes Völkerrecht (Berlin: Duncker und
Humblot, 1993); Kadelbach and Kleinlein, above n 21, at 235, 251 et seq; J. A. Frowein,
‘Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung’, in R. Bernhardt
(ed), Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte: Festschrift für
Hermann Mosler (Berlin: Springer, 1983), 241–62; id, ‘Jus cogens’ (1997) 3 Encylopedia of Public
Law 65–9; C. Tomuschat and J.-M. Thouvenin (eds), The Fundamental Rules of the International
Legal Order: ‘Jus Cogens’ and Obligations ‘Erga Omnes’ (Leiden: Nijhoff, 2006).
47
The central problem of whether the imagined values are really universal or not is hardly
mentioned and even less solved by argumentative means.
In Defence of ‘Constitution’ 231
its area of application is small. It is impossible to overlook the great discrepancy
between the theoretical esteem for ius cogens and its very low relevance in the practice
of international law.48
Nevertheless, conceptualisations of hierarchies of norms
and the deduction from abstract values are very popular among constitutionalists.49
4. If internationallawisnottoremainformallaw,thenitmustbecomesubstantive
law. Logically, a materialisation of international law is required.50
5. If international law is not to exhaust itself in legal positivism, then the new
international law relies on ethical foundations. The idea of justice is characterised
as the power of change.51
Accordingly, it is said that international law must orientate
itself more towards human values and the value and meaning of justice. In this
sense, international law adopts principles of morals and integrates legal philosophy.52
6. In advanced versions, the state is grasped as a member and the states as members
of the international community. The states are responsible for the realisation of worldwide
general interests. They are declared organs of the international community
and thereby take on a serving role in the realisation of superordinated purposes. The
state is viewed as part of the community of states, and the community has primacy.
7. If the states are not the final purpose of the law and also not of international
law, then it is consistent that, as in every other law, also in international law the
individual person is understood as the final purpose. The world population is the
legitimate reference point of international law and at the same time the rights of
the individual do not form an exception, but become a normal component of international
law. The ‘individual in international law’ becomes a privileged theme and
an essential pillar of a constitutionally orientated international law. It is therefore
stated with much pathos: all law serves the human being. International law, too,
must serve the human being and must not be merely law among states. International
48
For the related concept of obligations erga omnes, see B.-O. Bryde, ‘Verpflichtungen Erga
Omnes aus Menschenrechten’, in W. Kälin (ed), Aktuelle Probleme des Menschenrechtsschutzes
(Heidelberg: Müller, 1994), 165–90; Tomuschat and Thouvenin, above n 46; D. Schindler,
‘Die erga-omnes-Wirkung des humanitären Völkerrechts’, in U. Beyerlin (ed), Recht
zwischen Umbruch und Bewahrung: Festschrift für Rudolf Bernhardt (Berlin: Springer, 1995),
199–212.
49
Erika de Wet reports about the VICI-project of the Netherlands Organisation for Science
Research (NWO): ‘The Emerging International Constitutional Order: The Implications of
Hierarchy in International Law for the Coherence and Legitimacy of International Decisionmaking’
(2007) 67 ZaöRV 777–98.
50
Explicitly Nettesheim, above n 8, at 571, with several relativisations of this demand.
51
Thürer, above n 26.
52
Ibid 581, regarding the acceptance of intervention for humanitarian reasons: ‘Therefore
one has to consider whether the accent lies on the text of the Charter or the spirit and
meaning of the modern constitutional order. As with national constitutional law, the
question is if and to what extent the constitutional law can be interpreted in an evolutionary
and goal orientated manner, in the sense of an optimal realization of basic human
values and whether the providers of the constitutional order can acquire implied powers.’
It is questionable whether the Kosovo-case could be the starting point and catalyst of an
advancement of international customary law (581–2).
232 Rainer Wahl
law does not serve the states; the states serve international law. This proclaims an
anthropocentric turn in international law.53
At the same time, a harmony between
national, European, and international law results on the basis of this unified
individualistic orientation.
8. From the standpoint of scholarship, each great change in law begins with
a change in method of interpretation, with the creation and prevalence of a new
preconception. If state-centredness is abandoned, then the will of states can no
longer be the sole standard for interpreting contracts. The objective method of
interpretation necessarily moves into the foreground as something new, whereas
international law was traditionally the domain of the subjective method.54
This is
easily explained. If the subjective method had the specific function of not obligating
states, as masters of contracts, to more than what they agreed to consciously and
explicitly in the contracts, then it suggests itself that a conception that builds a layer
of principles and guidelines superseding the states must make itself independent
of the will of the states by means of objective interpretation. The methodology
is pivotal, and those who are able to make a new method prevail can claim to have
gained decisive legal-political ground.
v. critique
If we move from the ideal-typical description of constitutionalist theories to critique,
then at the outset there is considerable agreement on the nature of the changes
taking place in the international field and its law, changes that are paralleled in the
equally great ‘transformative change’ affecting states.55
There can be no doubt about
the persistent nature of the changes taking place in the international realm and
affecting international law. The crucial question is whether this change is so great
and so uniform that it can be characterised as amounting to a constitutional turn. In
order to answer this, it is necessary to examine normative assumptions and political
content of the constitutional claim.
53
For the relation between international law and the individual, see P. Häberle,
‘Nationales Verfassungsrecht, regionale “Staatenverbünde” und das Völkerrecht als
universales Menschenrecht: Konvergenzen und Divergenzen’, in C. Gaitanides (ed),
Europa und seine Verfassung: Festschrift für Manfred Zuleeg (Baden-Baden: Nomos, 2005),
80–91; P. Kunig, ‘Das Völkerrecht und die Interessen der Bevölkerung’, in P.-M. Dupuy
(ed), above n 14, 377–88.
54
Thürer, above n 26; Nettesheim, above n 8; M. Herdegen, ‘Das “konstruktive Völkerrecht”
und seine Grenzen: Die Dynamik des Völkerrechts als Methodenfrage’, in P.-M. Dupuy (ed),
above n 14, 898–911.
55
The expression ‘transformations of the state’ is the central expression of the project in
Bremen: see S. Leibried and M. Zürn (ed), Transformation des Staates (Frankfurt: Suhrkamp,
2006). It is fitting because it avoids the ‘from—to’. If something undergoes a transformation
the perpetuation of former decisions continues to resonate, and the process cannot be easily
and pithily be put into a ‘from—to’ formula.
In Defence of ‘Constitution’ 233
Normativism
What is immediately—and negatively—conspicuous is the purely normative
approach of the advocates. It is, of course, not inaccurate to understand law as a
demand for what ought to be. But what is disconcerting is that there should be no
non-normative prerequisites or effectiveness prerequisites for this normativity, at
any rate, none is discussed. The theory of international constitutionalism and of
the values and value systems postulated by constitutionalism does not and cannot
name the institutions and processes that could serve as paths to their realisation.
The constitutionalist theories postulate a pure normativity and pure values; they
thereby claim validity in, of all places, the international world, a field characterised
by power relations and conflicts of interest.56
But an overarching fundamental order
of primacy, which is a particular interest of these theories, does not come for free,
but only through the fulfilment of important prerequisites.
It might be noted, by way of comparison, that the primacy of state constitutional
law could not and cannot be taken for granted or be implemented in reality simply
by edict. The material primacy of the constitution develops with and through the
institution of constitutional jurisdiction. The German constitutions since the beginning
of the nineteenth century differ from today’s fundamentally in that the former,
without constitutional jurisdiction, were only semi-effective constitutions that were
raised to the level achieved today only after 1949 with the victory of the Federal
Constitutional Court. The values found today in the basic rights of Germany’s constitutional
document, the Grundgesetz or Basic Law, and in other constitutions were
already formulated and present in the philosophical and political–theoretical literature
of the eighteenth century. But that was far from giving them legal effectiveness,
even after the promulgation of the first constitutions.
Only when the values postulated in the literature were first adopted in the texts
of the constitutions (and concretised there), and much later gained institutional
anchoring and a venue for realisation with the institution of constitutional jurisdiction,
could the development of what today is the standard for a constitutional norm
begin: namely, fundamental content, substantive primacy, and procedures for implementation.
An order of primacy that actually stands the test of reality does not arise
solely within a normative cocoon. More is needed, namely the overall constellation
of a constitutional state and in the history of constitutionalism, the path to this was
(with the exception of the United States) very long.
The politically emptied concept of the constitution
The transposition, within the literature, of the concept of the constitution from
the states to the European and international levels usually suffers from a narrow,
politically emptied, under-complex, and diluted version of the concept of the state
56
Paulus, above n 20, at 703: ‘Eine Völkerrechtswissenschaft, die sich auf die bloße
Normativität zurückzieht, vergisst, dass jedes Sein-Sollen eben doch ein Mindestmaß an
Verwirklichungsmöglichkeit impliziert, um Autorität zu beanspruchen’ (‘A science of public
international law which restricts itself to mere normativity overlooks the fact that, in order
to claim authority, every ought implies at least a minimal chance of its realisation’).
234 Rainer Wahl
constitution.57
This concept says the constitution is the highest norm, it has primacy,
it politically organises fundamentals, and it expresses the relationship between
political rule and the citizens. But the concept does not address the question of why
this highest norm possesses the power to shape political–social life, why the nation
and the individual should recognise it, and why this recognition confers on it the
possibility of being effective.
The question of the transferability of the concept of the constitution ‘beyond
the state’ takes on its necessary depth and its full seriousness only when one begins
with what took shape as a constitution in the history of the state. The challenge is
not that of offering a (new) definition of constitution as the supreme component of
the legal order. In the course of the last two centuries, constitutions were striven for
not only by jurists for legal use; they were also the object of intense and passionate
political strivings. Numerous political movements worked for the enactment of a
constitution: it was struggled for, politically and frequently with revolutions. Every
overcoming of a dictatorship is sealed with the enactment of a constitution: in
Germany in 1949, in Spain, Portugal, and Greece and in all transition states after
1989. Those who fought for a constitution knew why they did so. These movements
were borne by important segments of the nation—in short, constitutions were and
are parts of political–social movements and real political forces stood and stand
behind them.
These forces were effective and important not only during the process of
establishing a constitution. Citizens continue to support the constitution with their
recognition and acceptance; the citizens’ expectations of freedom are orientated
towards the constitution. It is this esteem that gives the constitution its real power, a
power that the norms of the constitution need if they are to have the effect that was
previously improbable, namely to fetter the strongest institutions of political power
and to eliminate unconstitutional action.
The complex constitutional-state constellation
This outline makes it clear that ‘constitution’ in the state is not only the highest norm
but that ‘constitution’ is also an overall constellation of legal effects and qualities, of
political hopes, of acceptance from ‘below’, and of real forces in political life. In
Germany, constitutional court rulings are to a great degree ‘carried’ (getragen) by the
citizens; this is precisely what gives the court its weight. All in all, one can speak of a
complex, multifaceted constitutional-state constellation. It consists of a combination of
• principles;
• the formulation of general values in constitutional-law norms, ie the
transposition of state philosophy into law in general;
57
Ultimately, the same is true for the influential opinion of Christian Walter about the
constitutional functions which are bundled at the state and are unbundled beyond the state
(C. Walter, ‘Die Folgen der Globalisierung für die europäische Verfassungsdiskussion’ (2000)
Deutsches Verwaltungsblatt (DVBl) 1–13; id, above n 24).
In Defence of ‘Constitution’ 235
• the formation of institutions, whose importance cannot be overestimated.
This begins with the establishment of representative parliaments that maintain
an internal connection between democracy and the principle of the
rule of law and it finds its high point during the twentieth century with the
worldwide spread of constitutional jurisdiction;
• a shift in mentality among the rulers from a power orientation to a legal
orientation;
• an equally necessary shift in mentality among subjects to the mentality of
citizens and possessors of basic rights; and
• the anchoring of the idea of the constitution among the players in the political
sphere and also among individuals.
What is termed the constitutional-state constellation here is called ‘law in context’ in
parts of the scholarly literature.58
It expresses the conviction that the constitutional
question does not only concern the legal quality of the norms of constitutional law;
the field is much broader.
In light of these considerations, the general discussion whether the concept of the
constitution can be detached from the state takes on a new accent.59
As is well known,
the constitutionalists vehemently advocate such a detachment. For such advocates,
the basic problem seems solved if this tie is broken and a concept of constitution—in
some ways changed—is applied to the two other levels. But behind this connection
between constitution and state stands not only an understanding of a concept; the
complex concept of ‘constitution’ refers to and is in reality carried by the aforementioned
constitutional-state constellation. More—and something more important—is
required if the concept of constitution is to work on the European and international
level. The objective here is not to register a copyright or trademark for the term
‘constitution’. But the transposition is plausible and adequate for the actual problem
only if something substantively comparable to the aforementioned constitutionalstate
constellation is present on the two other levels. This remains a matter of dispute.
The essential point is to avoid a technocratic or diminished concept of the constitution,
a rump concept. That is why the complexity of the traditional legal–political
idea of the constitution in the state is underscored. The constitutionalist interpretation
in international law bears the burden of proof that a similar constellation of
legal and political components stands behind its concepts. This new constellation
need not be exactly the constitutional-state constellation, but it does have to be a
constellation that combines the normative and the political, values and institutions,
58
Haltern, above n 22.
59
From the comprehensive discussion shall here be cited only: E. de Wet, ‘The International
Constitutional Order’(2006) 55 International and Comparative Law Quarterly 51–76.
Traditionally the term ‘constitution’ was reserved for domestic constitutions. Most municipal
constitutions today provide a legal framework for the political life of a community for an
indefinite time. They present a complex of fundamental norms governing the organisation
and performance of governmental function in a given state and the relationship between
state authorities and citizens. This is a rather abstract definition.
236 Rainer Wahl
and that is politically supported by some kind of ‘community’. In regard to the latter,
the normative construct of an international community probably does not suffice;
rather, in some way or other, a real, perceptible, and acting connection must exist
between persons.60
With respect to the overall constellation, it is evident that on the international
level there has been
• great progress made in terms of principles, values, and concepts;
• much less progress in terms of political buttressing: the international order
and international law do not reach people nearly as much as state law does;
and
• minimal progress in institutionalisation.
A similar critique is levelled against the neglect of the political processes that finally
buttress the acceptance of the constitution. In a state, the constitution is a layer of
norms within a political unit in which the fundamental adherence to the norms
results from the individual’s relationship of belonging to this state as a citizen. This
resource,too,isnotavailableinthiswayontheinternationallevel.If itischaracteristic
of state and constitutional law that the political realm must be addressed, then this is
even more true for international law. It is surprising that the constitutionalist interpretation
of the understanding of ‘international law’ is narrowly limited to texts
and values, constructions and theories, and this in a time when the study of history,
for example, is undergoing a thorough cultural turn, in which it grasps rule and the
exercise of rule comprehensively and in which it explicitly regards documents and
texts as insufficient for the purpose of understanding the complex phenomena of
political rule and allegiance. Substantially contributing to this narrowing are systemtheoretical
theories with their painful abstractions and avoidance of analysis of
actual processes.
The constitutionalist viewpoint is holistic. Drawing on the concept of the constitution
as the entire basic order of a political unit, it seeks to capture the rapidly developing
international field and its international law in one great formula. This grand endeavour
has failed and cannot currently succeed. An important reason for this is the high degree
of differentiation among the individual sectors, regimes, or contractual orders of international
law. To postulate grand formulas or mere value orders first and only then to
begin a detailed analysis of all these areas, sectors, and partial orders is to take the third
or fourth step before the first. There is good reason why the theme of fragmentation
60
A. von Bogdandy, ‘Konstitutionalisierung des europäischen öffentlichen Rechts in der
europäischen Republik’ (2005) JZ 529–40, n 9: ‘Dass eine Konstitutionalisierung ohne
einen entsprechenden politischen Willen zum Zusammenschluss nicht gelingt, zeigt die
vorerst gescheiterte Konstitution eines globalen Völkerrechts.’ (‘Constitutionalisation
cannot succeed without a corresponding political will for unification; this is demonstrated
by the fact that for the present the constitution of a global public law has
failed.’)
In Defence of ‘Constitution’ 237
has become a major theme.61
It has also become a counter-concept to constitutionalism
and to constitutionalisation, if only because the high degree of differentiation and the
internal complexity of the international level that it reveals and takes as fundamental,
is incompatible with the unified world and the holistic approach of constitutionalism.
vi. the state of the art
The concept of the constitution on the European level
On the European level, which from the beginning seemed predestined to take up the
idea of the constitution, a major learning process has taken place. Even if the Lisbon
Treaty should take effect, neither its wording, nor its substance, nor its symbols fulfil
the hopes that were originally placed in the European constitutional treaty. The
question arises: What did the political movement in favour of a European constitution
originally intend?
Themovementinitiallyadvancedsuggestionsfromthejurisprudence,includingthe
characterisations of the European Court of Justice.62
But the aim of the constitutional
treaty was also to accelerate the course of integration, by reforming the machinery
of government on the European level after the accession of so many new states and
generally advancing the political integration that was always also to be pursued along
with the initial path of economic integration. The constitution discussion was an offer
to enhance political integration by using the highly esteemed term of ‘constitution’,
by revising the understated language of the earlier treaties,63
and by equipping the
Union with the symbols of a flag and an anthem. Thus far, the constitution project
began properly. It did not relate solely to the legal sphere; rather, the intent was to
strengthen the political basis, the political infrastructure of the EU, so to speak, and
above all to increase the citizens’ acceptance of, and attachment to, the EU.
The initiators of the European constitution project wanted a constitution for
the individuals and the nations in Europe in the full sense of a combination of the
legal and the political. The individuals were to identify more with the EU, feeling
an attachment to it similar to the attachment they felt and still feel for their (nation)
state. The problem, however, was that one can make offers for more attachment and
identification, but the success of this depends on whether the citizens also want to
take this qualitative step onto a new level of integration. At any rate, two nations,
the French and the Dutch, apparently did not want to accept this offer. And thus the
61
For further references, see A. L. Paulus, ‘Subsidiarity, Fragmentation and Democracy:
Towards the Demise of General International Law?’, in T. Broude and Y. Shany (eds), The
Shifting Allocation of Authority in International Law (Oxford: Oxford University Press, 2008),
193–213.
62
Beginning with the Opinion delivered by Advocate-General Lagrange of 25 June 1964
concerning the ECJ, Case 6/64 Costa v ENEL [1964] ECR 1279, at 1289; Case 294/83 Les
Verts v European Parliament [1986] ECR 1357, at 1365, para 23: ‘charte constitutionelle de base
qu’est le traité’.
63
In the first decades, the Treaty establishing the European Community consciously avoided
the terms ‘constitution’ and ‘laws’.
238 Rainer Wahl
fate of the constitutional treaty illustrates the point that the theoretical concepts of
academicians and the slogans of politicians and EU elites do not suffice. The individuals
themselves have to decide whether to accept the offer of increased integration.
Thus, political processes and political movements in favour of European integration
are necessary,64
but texts that academicians claim resemble the character of
constitutions are not enough. In formulating the constitutional package, the politicians
rightly assumed that the legal order of primacy and the legal design as a whole
are insufficient and that symbols and words play important roles. But this insight is
also useless so long as the nations of Europe, or some of them that are permitted to
express themselves, have not boarded the train of increased integration.
Consequently, in a long process on a winding path that lasted almost ten years,
the great—even decisive—political question of a European constitution was
answered—in a negative fashion. A European constitution worthy of the name must
also connect the legal and the political. The mere order of primacy, the creation of
fundamental and overriding norms is not enough. A constitution cannot successfully
be instituted while ignoring the people and the nations. An explicit constitutionformulating
convention, which has occasionally been held in the history of the
constitutional state, is not always necessary. But the emergence of a constitution
involves more than the drafting of a mere legal document: there must be a secured
site for the nations and the individuals, where these are recognised to be the bearers
(Träger) of the constitutional process. If this does not exist, then the intrastate
referendums on the treaty become referendums on Europe’s path as a whole.
Whether the concept of the constitution can be detached from the state is ultimately
a secondary and superficial conflict. Of course it can—provided something is offered
that is comparable to the concept of the constitution.
The constitutional concept at the international level
The constitutional project is even more problematic at the international level.65
Whereas in the EU there is a certain acceptance of some form of European integration
and a corresponding feeling of community and belonging,66
in the international
64
Here, the possibility of developing a stronger feeling of pan-European identity among
the nations is in no way denied or assumed to be unlikely. But such a development must not
be simply postulated, it must actually occur. This is a strategic point where actual events
and normative claim are inseparably tied and mutually dependent, just as empirical and
normative sciences depend on each other in this point.
65
Wahl, above n 17, 135–54.
66
In the text, the wish for integration and the feeling of belonging has been consciously
relativised. Thinking and languages have to do justice to a problem that has been mostly
neglected. In regard to integration or the feeling of belonging to the EU, the issue is not yes
or no, but degrees. Since 1958, the respective members of the EC or EU have had a limited
feeling of belonging (expression taken from Gertrude Lübbe-Wolff). The point is always the
degree of feeling of belonging; in the prehistory of the constitutional contract, one strives
for a higher degree of feeling of belonging.
In Defence of ‘Constitution’ 239
sphere, all the characteristics associated with community and a political structure are
absent. In a number of circumstances, ‘international community’ is a meaningful
term which expresses the fact that, beyond the consensus of all states, in certain—
albeit very few—problem situations there exists a value relation distinct from that
created by state consent. But there is no international community in the strong sense
of the term as an entity capable of acting or of legitimising action. And the notion of
having democratically elected delegates representing such an international community,
in some world forum, is entirely utopian.
From the outset, the use of the term ‘constitution’ in this context invokes a legal
concept of constitution, a mere order of primacy of legal norms. The establishment
of fundamental values and the hope that courts (initially national courts, then
perhaps international ones) will implement these values directly in positive law
are not unjustified. But all prerequisites for the strong variant of constitutionalism
are lacking. Overwhelmingly, the opinion is voiced that the UN Charter is not the
world’s constitution; it is accepted that its work in its own sphere is important, but its
responsibilities are far from covering all sectors of international politics. The attempt
to extend the UN Charter and to define it as the core of a future substantive world
constitution was problematic from the beginning and, at any rate, has failed.67
But the weak variant, the assertion of a progressing constitutionalisation, also meets
doubts and misgivings. The constitutional idea in general international law, conceived
as the one great peg (Klammer) on which to hang many individual arrangements and
which could function as an order of primacy for treaties and customary law, has—to
summarise almost ten years of discussion—not succeeded. The project failed because
of its sweeping ambition in seeking to transpose itself as the juristic mark (Kennzeichen)
of ius cogens, and promoting the validity of a series of other concepts (common goods,
common interest, and the like68
), independently of the current consensus of the states.
The concept of the constitution was to serve as the means of transport, but this
interest hardly extended beyond the constitution’s claim to hierarchical superiority.
In general, what has not progressed during the last ten years is the meshing of
individual components into a coherent concept that, with the name ‘constitution’,
recalls similar syntheses and integration achievements in state constitutions. Instead,
the difficulties of such an idea have clearly emerged. As for German and European
voices in particular, they have often transposed the earlier, positively evaluated
experience with the project of a European constitutional treaty to the international
level. The European discussion was to serve as a door opener for the international
discussion.69
It is therefore not surprising that the constitutionalist interpretation was
67
Paulus, above n 20, at 699; Fassbender, above n 45, 1–16, nn 5, 15.
68
In the same way, the figure of the world order treaties must not only be generally
described, but also formed in detail. In the German tradition, one says it must be doctrinally
or dogmatically elaborated, which means a great deal of work.
69
F. C. Mayer, ‘European Law as a Door Opener for Public International Law’, in
J.-M. Thouvenin and C. Tomuschat (ed), Droit international et diversite des cultures juridiques—
International Law and Diversity of Legal Cultures (Paris: Pedone, 2008), 345–59.
240 Rainer Wahl
even less successful on the international level. As a consequence, we should eschew
for the foreseeable future the comprehensive approach of international constitutionalism.
And, for reasons of scientific clarity, we should also avoid usage of the term
‘constitution’.70
Further steps of progress in international law will take place on a
more concrete level in individual sectors and in patient analyses, as is taking place in
the project on Global Administrative Law. Only a problem-saturated and practicallyoriented
international law can once again take the path of abstraction—but in a
much more reflective mode.
The concept of societal constitutionalism
The defence of the term ‘constitution’ is mounted in particular against the thesis of
‘societal constitutionalism’.71
Insightful observations and analyses, including much
that is innovative and worth considering, are presented under this name. But the
use of the word ‘constitution’ is not understandable. As the name suggests, the
lynchpin of this approach is society or segments of society (societal constitutions).
This revives and gives a new content to the old European concept of civil society,
although now the plural, civil constitutions, is used.
The thesis assumes these civil constitutions exist independently of state boundaries
and state politics and that, in accordance with their respective inner character, they
act in a worldwide association. In the context of a systems theory that becomes ever
more abstract, these regimes, being such civil constitutions, are based solely on societal
factors. The character of a constitution should be acknowledged for these regimes
because they have developed fundamental rules into a higher-ranking order. The order
of primacy, the set of rules on rules, is interesting. But the constitution is emptied of
everything political, everything that otherwise characterises constitutions. With great
pathos, the theory addresses the individual person, but what it has in view is individuals
solely as societal beings; every political connection to and every participation in a
political unit is removed. The individual is conceived as a subjective individual who
is supposed to have rights and duties. But nothing is said about the individual as a
political being, as citoyen. What the American and French Revolutions launched—the
combination of political freedom and the individual’s political participation alongside
the protections of the rule of law—has no place in these concepts.
70
Let us recall once more the fate of the European constitutional treaty. Back then, in their
double role as scientific observers and legal policy shapers, numerous scholars of Europe
used powerful rhetoric to defend the concept and the constitution and saw major progress in
transposing concepts and terms from their narrow nation-state application to the European
level. In their often very powerful will to help shape politics, which always also endangers
scholarship, they used the concept of the constitution to help bring citizens over hurdles
to a deepened union. With the concept of the constitution, citizens were to advance to the
next step of integration. The intentional and also instrumentalised use of the concept of
the constitution was of no avail here, but was rather a component of the failure. It is not
difficult to predict the same for the international level.
71
See above n 6 and, critically, Grimm, ‘Gesellschaftlicher Konstitutionalismus’, above n 3.
In Defence of ‘Constitution’ 241
Societal constitutionalism is the furthest away from the originally rich and
comprehensive constellation of the constitution; of all conceptions it offers the least
in the way of a comparable transposition of this overall constellation into presentday
circumstances. The use of the terms ‘societal constitutions’ and ‘regimes’, in
Sciulli’s and Teubner’s sense, is based on a great number of premisses that cannot
all be discussed here. But it is clear that the theory of societal constitutions has
demanding and strong presuppositions. It presupposes the self-development of
societal systems that apparently function mostly without addressing any form of
public and sovereign tasks.
Beyond that, the theory is characterised by a number of absences: no politics takes
place in it, there is no parliament as legislature, no politically accountable legislation,
no public law, no constitutional law, no sovereign one-sided relationships. It is
difficult to imagine that the pure civil society it imagines can be made a reality. The
theory cannot entirely ignore political steering, but it is hard to judge what type, by
means of laws or treaties under international law, is silently assumed. But this issue
is not explicitly discussed.
The proponents of societal constitutionalism enjoy discovering the new so much
that they have no attention left for already existing achievements. Overall, this literature
lacks a basic acceptance of a figure of simultaneity, namely, that along with all
the newness one sees or hopes to have in the future, much that is old retains great
importance and may even be the indispensable prerequisite for the new. This is a
fundamental objection. The decisive problems of the present and the future not
only concern speculation on which completely new situation the current constellation
will develop into; the decisive problems lie in the description of the simultaneity
of different phases, different components, different principles—of the state, the EU,
and international subjects, and of state, European, and international law. The overall
constellation of all levels, all layers of law, and all public tasks that must be managed,
must be kept in focus.
vii. conclusion
The term ‘constitution’ is a demanding concept which can be understood only as an
overall constellation of numerous components. The narrowing in the literature is
based primarily in the narrowing and political emptying of the concept. The objective
of this chapter has not been to place ‘constitution’ under trademark protection,
nor to protect the term as an exclusive characteristic of state constitutions.
To be defended are the comprehensive and complex components of the concept of
the constitution: the diversity of its preconditions, its institutional formations, and
the developed mechanisms of its realisation. ‘Constitution’ is also to be defended
against the many who want to exploit the noble aura of the term without first
achieving the necessary prerequisites. But so much of what is meant by ‘international
constitution’, ‘international constitutionalism’, and ‘constitutionalisation’ is
mere anticipation, distant hope, contourless ‘emergence’, and the invocation of
evolution.
242 Rainer Wahl
This, however, is not the last word. It may be true that the constitutionalist
approach to international law has reached its zenith, and it might well have failed.
Yet it cannot be ignored that the discussion has offered much insight into the need to
use supranationally founded ideas in international law. To gather in the harvest is a
worthwhile continuation of this discussion. Obligations arising for states without or
against their will exist, be it ius cogens or obligations erga omnes. And the phenomena
which fall under the heading of societal constitutionalism are important enough
to be analysed further and in conjunction with the related sovereign or public law
figures or elements. But important though these elements are, they do not provide
the foundation for a totally new construction of international law. Rather, they
are elements added to the existing and changing building of international law. If
a constitutionalist approach beyond the state needs a new start, then, this has to
be more modest and must engage with other fields of discussion, such as the fragmentation
of international law, the emergence of global administrative law, and the
emergence of sectoral international law. International law has many manifestations
and a considerable dynamic: it cannot be apprehended or newly conceived solely by
deduction and abstraction.