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Constitutionalism as Liberal-Juridical Consciousness: Echoes from International Law's Past

Published online by Cambridge University Press:  01 June 2009

Abstract

The future of international law is uncertain. The long-hoped-for revitalization of international law and its institutional structures following the end of the Cold War now seems at risk from an increasing deformalization of, and neo-liberal disregard for, international law. Meanwhile European international lawyers are responding by reasserting a Kantian project for a global constitution under an international rule of law. In this article I attempt to position these recent claims that the international legal order is undergoing a process of constitutional transformation in the context of a long-standing connection, since at least the post-revolutionary nineteenth century, between the idea of a positive international law and the emerging structures of the European constitutional nation-state. If one can trace a cosmopolitan or constitutional project to the influence of domestic public law from this time, one can also trace the inherent tension between international law's promise of a substantive ‘good life’, or sense of justice, and its purported legitimacy in a commitment to a voluntarist, or contractarian, form of obligation. These simultaneous commitments seem incompatible, but are inseparable from international law's embedded liberalism, which requires interplay between them to make sense of progress in the absence of any explicit underlying philosophy. In tracing similarities in concerns from the nineteenth century to the twenty-first, as well as repetitions in legal arguments, I suggest that the alternatives of American empire and a (European) vision of global constitutionalism are merely necessary oppositions, reflecting this broader tension underlying the discipline. Because lawyers avoid clarity on what is taken for granted in a leap from (selective) empirical realism towards assertive normative ambition, I argue that it is a mainstream, liberal-juridical consciousness – rather than any explicit legal theory – which continues to sustain shared assumptions about international law's past, as well as a promise of a future liberal world order. The apparently opposing visions of future world order are merely different sides of the same coin: each reflecting back, but each ultimately sustained by the other.

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Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 J. Habermas, The Divided West (2006), 115–16.

2 Ibid., at 116 (emphasis in original).

3 Walker observes that Habermas attempts to differentiate his vision from American neo-liberalism which is ‘committed to the pursuit of the liberal goals of equal freedom under the rule of law in all the states of the world, but rejects faithful conformity to the procedures and substance of international law as the best way of delivering that disaggregated liberal world order’. See N. Walker, ‘Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalization of International Law’, EUI Working Paper LAW No. 2005/17, http://cadmus.iue.it/dspace/handle/1814/3762, at 2.

4 For a recent example of a range of perspectives in this respect, see the voluminous collection R. Macdonald and D. M. Johnston (eds.), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (2005). Interestingly, constitutionalist perspectives seem to be simultaneously aimed both at restraining overly powerful global institutions – for instance, B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (1998); A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’, (2006) 19 LJIL 579 – and the need for institutions to develop greater control over members and therefore further an internationalist project aimed at securing a global rule of law: see for instance E. de Wet, ‘The International Constitutional Order’, (2006) 55 ICLQ 51; E.-U. Petersmann, ‘How to Reform the UN System? Constitutionalism, International Law, and International Organizations’, (1997) 10 LJIL 421. Other (similarly motivated) perspectives aim for a radical reworking of the law, perhaps as a new ‘global law’ paradigm, or ‘international law of integration’; see, e.g., G. Z. Capaldo, ‘A New Dimension of International Law: The Global Law’, (2005) 5 The Global Community Yearbook of International Law and Jurisprudence xvi, at xxix; or even furthering a disaggregated governance network aimed at securing a ‘new world order’ under the rubric of human dignity: e.g. A.-M. Slaughter, A New World Order (2004). A common theme among all, however, seems to be dissatisfaction with the ability of ‘Westphalian’ international law to properly protect community interests and fundamental rights.

5 See generally M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001), 11–97.

6 L. Oppenheim, The Future of International Law (1921), at 308.

7 Lauterpacht, H., ‘The Covenant as the Higher Law’, (1936) 17 British Yearbook of International Law 54Google Scholar. See also on Lauterpacht's commitment to this idea and the constitutionalization of international politics generally, Koskenniemi, supra note 5, at 376–88.

8 McNair, A. D., ‘The Functions and Differing Legal Character of Treaties’, (1930) 11 British Yearbook of International Law 100Google Scholar, at 112.

9 See, e.g., R. Macdonald, ‘The International Community as a Legal Community’, in Macdonald and Johnston, supra note 4, 853 at 859–68; and, perhaps most famously, Fassbender, B., ‘The United Nations Charter as Constitution of the International Community’, (1998) 36 Columbia Journal of Transnational Law 529Google Scholar, at 579–80.

10 This is a trend which even avowed positivists such as Brownlie cannot resist, who in particular commented, back in 1974, that ‘it is much less accurate to say that the United Nations is not a form of government than to say that it is’. I. Brownlie, ‘The United Nations as a Form of Government’, in J. E. S. Fawcett and R. Higgins (eds.), International Organization (1974), 26–7. For a similar, ‘public law’ analysis of the powers of the UN Security Council see chapter 15 of his Hague Academy lecture, later published as I. Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (1998), 211 and passim.

11 For a discussion of these kinds of analogy as applied to the UN system, see White, N. D., ‘The United Nations System: Conference, Contract or Constitutional Order?’, (2000) 4 Singapore Journal of International and Comparative Law 281Google Scholar, at 294–5.

12 One can perceive this, in fact, as a mainstream ‘modernist’ concern which is central to a large part of institutional scholarship; see A. Orford, ‘The Destiny of International Law’, (2004) 17 LJIL 441, at 445–52.

13 Kennedy, D., ‘When Renewal Repeats: Thinking against the Box’, (2000) 32 New York University Journal of International Law and Politics 335Google Scholar, at 348–54. From a political perspective, consider the views of R. Guess, History and Illusion in Politics (2001).

14 See, e.g., Koskenniemi, M. and Leíno, P., ‘Fragmentation of International Law? Postmodern Anxieties’, (2002) 15 LJIL 553CrossRefGoogle Scholar, particularly at 559–60.

15 For this reason also I make no attempt to define ‘constitution’, ‘constitutionalism’ or ‘constitutionalization’ in this paper, particularly as I myself consider what international lawyers themselves intend or portray when they use these terms.

16 For the record, I would merely point at one of the more sober, reasoned reflections on Kant's perpetual peace thesis in F. H. Hinsley, Power and the Pursuit of Peace (1963), particularly his comments at 68–76.

17 See in this respect the second edition of J. Klabbers, Introduction to International Institutional Law (forthcoming, manuscript on file with the author), ch. 16.

18 See in particular Carty, A., ‘Convergences and Divergences in European International Law Traditions’, (2000) 11 EJIL 713CrossRefGoogle Scholar, at 715–20.

19 See generally Kennedy, supra note 13, and M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005).

20 See, e.g., W. G. Grewe, The Epochs of International Law (2000), 483–7.

21 Nussbaum, in his classic history of the law of nations, downplays the direct influence of the revolution, though he does note how ‘[t]he higher conception of the dignity of man, as evolved in the Revolution, probably accounts for the disappearance of the repulsive business and familial transactions by princes over state territories or subjects.’ A. Nussbaum, A Concise History of the Law of Nations (1954), 118. Others such as Grewe, however, have marked the revolution in terms of a break, signalling a new epoch where the principles of international law took on legitimacy through association with post-revolutionary liberal values and connection to the structures of contractarian constitutional law; see, e.g., Grewe, supra note 20, at 486–7. One particular aspect that is fundamental to this transformation of a positivist law of nations may be the principle of rule determination – that is, that in order for a norm to be legitimate it must be authored (in an indirect sense) by those who are subject to it. See C. Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations (1999), at 129–31; and see later, at 134–5, on the more general influence of revolutionary thought.

22 One can trace this idea to the writings of Rousseau, who saw Europe itself as a product of history's evolution towards better societal organization; see Hinsley, supra note 16, at 57. On this idea in broader context throughout the latter half of the nineteenth century, see D. de Rougemont, The Idea of Europe (1966), 253–336.

23 Kratochwil, F. V., ‘The Limits of Contract’, (1995) 5 EJIL 465CrossRefGoogle Scholar, at 466.

24 To take an example, Westlake's cosmopolitan international outlook was undoubtedly influenced by his progressive liberal political preoccupations at home, or as one commentator described this, a ‘spirit of West Country radicalism’. See Johnson, D. H. N., ‘The English Tradition in International Law’, (1962) 12 ICLQ 416CrossRefGoogle Scholar, at 440.

25 As Sorel notes on the impact of revolutionary doctrine more generally, ‘[d]octrines and ideas could only spread in the way they did because they were abstract and universal: every nation was susceptible to their influence because each could interpret them in the light of its own temperament, its feelings and its established ideas.’ A. Sorel, Europe and the French Revolution: The Political Traditions of the Old Régime (1969), 213. For similar connections between the domestic socio-political climate in Greece and the internationalist agenda of Stelios Seferiades, although some years later, see Skouteris, T., ‘The Vocabulary of Progress in Interwar International Law: An Intellectual Portrait of Stelios Seferiades’, (2005) 16 EJIL 823CrossRefGoogle Scholar, particularly at 842–53.

26 J. Westlake, ‘The Hague Conferences’, in J. Westlake, The Collected Papers of John Westlake on Public International Law, ed. L. Oppenheim (1914), at 532. In fact, he goes on (at 535) to criticize the diplomatic practices at the second conference as a ‘parody of a parliament’ and a ‘phantom of a legislature’.

27 J. Westlake, ‘Chapters on International Law’ (1894), reproduced in ibid., at 78.

28 Bluntschli, J. C., The Theory of the State (1885), 25Google Scholar.

29 J. C. Bluntschli, Le Droit International Codifié, translated from German by M. C. Lardy (1895), 1–2.

30 Ibid., at 20–1; note in particular (at 20) where he claims that ‘[i]l est donc nécessaire que, tout en se développent, le droit international respecte les limites qui lui trace le droit public’.

31 See generally A. Sereni, The Italian Conception of International Law (1943), 151–81.

32 P. S. Mancini, ‘La Vocazione del Nostro Secolo per la Riforma e la Codificazione del Diritto delle Genti e per L'ordinamento di una Giustizia Internazionale’ (1874), reproduced in P. S. Mancini and A. Pierantoni, Diritto Internazionale (1905), 42–3.

33 See A. Pierantoni, ‘I Progressi del Diritto Internazionale nel Secolo XIX’, in Mancini and Pierantoni, supra note 32, at 86. Mancini's ‘doctrine of nationalities’ sought primarily to further the political cause of national unification within Italy. Like Giuseppe Mazzini, he arguably conflated the solution of popular sovereignty at the national level with a legitimate future for a pan-European federation, without seeing any contradiction between nationalism and internationalism in this respect. See d'Appollonia, A. C., ‘European Nationalism and European Union’, in Pagden, A. (ed.), The Idea of Europe: From Antiquity to the European Union (2003), 171Google Scholar at 182–3.

34 Sereni, supra note 31, at 163–4.

35 For instance, in the very first contribution to the Revue Générale de Droit International, Pillet spoke of ‘la réflexion à faire reconnaître que le principe cosmopolitique l'emportait en importance de beaucoup sur le principe nationaliste, qui devait dès lors lui céder’. Pillet, A., ‘Le Droit International Public: ses Éléments Constitutifs, son Domaine, son Objet’, (1894) 1 Revue Générale de Droit International 1Google Scholar, at 9. On the compatibilities between nationalist and internationalist sentiment generally see M. Koskenniemi, ‘Nationalism, Universalism, Empire: International Law in 1871 and 1919’, online paper at the Erik Castrén Institute of International Law and Human Rights, www.helsinki.fi/eci/Publications/Talks_Papers_MK.htm, at 13–15.

36 See inter alia Kratochwil, supra note 23.

37 Hinsley, supra note 16, at 137.

38 See, e.g., Oppenheim and Lauterpacht, supra notes 6 and 7 respectively; and M. O. Hudson's classic work, Progress in International Organization (1932).

39 Koskenniemi, supra note 19, at 132.

40 A. Carty, ‘Why Theory? The Implications for International Law Teaching’, in P. Allott et al. (eds.), Theory and International Law: An Introduction (1991), 75 at 81 (emphasis added).

41 Westlake, supra note 27, at 78. On this idea as representing the maturity of the legal system, see H. L. A. Hart, The Concept of Law (1961), at 90–4.

42 Koskenniemi, supra note 5, at 92. Skouteris, supra note 25, at 831–2.

43 P. Fiore, International Law Codified and Its Legal Sanction: Or the Legal Organization of the Society of States (1918), at 9.

44 Koskenniemi, supra note 5, at 53, 92.

45 Ibid., at 43; see, for an example, Lorimer, J., The Institutes of the Law of Nations, vol. 2 (1884), 187Google Scholar. As Berman puts this, ‘[h]istorical jurisprudence was, in some measure, intended as an antidote to the worst excesses of positivism, without recourse to the more murky (and less legitimate) forms of natural law thinking.’ Berman, H. J., ‘World Law Transcendent’, (2005) 54 Emory Law Journal 53Google Scholar, at 55.

46 See, e.g., J. Westlake, ‘Introductory Lecture on International Law, 17 October 1888’, reproduced in Westlake, supra note 27, at 409–10. See also Koskenniemi, supra note 5, at 51–4. A good example of a similar approach is contained in Rivier, A., Principes du Droit des Gens, vol. 1 (1896), 27Google Scholar, where he includes as the ultimate source of international law, the common juridical conscience (‘la conscience juridique commune’) which manifested itself in customs and treaties. And within this, he includes ‘science’ as a specific source, defined (at 30) as ‘les avis et les ecrits des jurisconsultes’.

47 Koskenniemi, supra note 5, at 53.

48 Lorimer, supra note 45, at 241–2, and generally his scheme of governance set out as legislative text, at 279–87. Also, Fiore, supra note 43, at 17–18, 470.

49 Fiore, supra note 43, at 15–17, 27–8.

50 Ibid., at 52. See also T. J. Lawrence, Essays on Some Disputed Questions in Modern International Law (1885), at 244–5.

51 Hinsley, supra note 16, at 139–40.

52 Lawrence, supra note 50, at 271.

53 Ibid., at 244–5; Maine, H. S., International Law: A Series of Lectures Delivered before the University of Cambridge 1887 (1894), 213, 221Google Scholar.

54 P. Vinogradoff, The Teaching of Sir Henry Maine: An Inaugural Lecture (1904), 16–17.

55 Lawrence, supra note 50, at 252.

56 Indeed, he asks, ‘if mankind is in truth whole, if it is animated by a common spirit, how can it avoid striving after the embodiment of its own proper essence, i.e. seeking to become a State?’ Bluntschli, supra note 28, at 25.

57 Koskenniemi, supra note 5, at 51–4; and see further on the dynamics of natural law and positive law's interaction in professional writing, Koskenniemi, supra note 19, at 133–4. See also Delanty, G., Inventing Europe: Idea, Identity, Reality (1995), 90CrossRefGoogle Scholar, commenting how ‘[t]he new ideas of western rationalism were not post-metaphysical. Absolute values were simply secularised and made material . . . The most enduring of these new ideas was the notion of progress and civilisation.’

58 In a sense, the Hegelian assumption that rational organization could guarantee both individual freedom and the auto-limitation of the state itself became the only viable explanation of international organization. For a discussion on how post-revolutionary ideas were influential in Hegel's reconciliation of the individual's pursuit of freedom with a rational societal organization, see P. Singer, Hegel (1983), 20–23. On the general reconciliation of the consent-based, contractarian view of international law with the idea of binding, autonomous international law, see P. Capps, ‘The Rejection of the Universal State’, in N. Tsagourias (ed.), Transnational Constitutionalism (2007), 17 at 18–24. Attempts by scholars to move beyond the interstate, contractarian view through the idea of community will (e.g. H. Triepel's Gemeinwille, or Dionisio Anzilotti's Volante Communita) generally provided the only possible reconciliation of this formulation; see H. Triepel, Droit International et Droit Interne (1920), 27–61; D. Anzilotti, Corso di Diritto Internazionale (1955), 82–5. The problem of course was that this could not explain why treaties as bilateral or multilateral instruments were binding to begin with, hence predicating some Kelsenian idea of a hypothetical basic norm, such as pacta sunt servanda. See the critical engagement with these theories by A. Verdross, ‘Le Fondement du Droit International’, (1927-I) 16 RCADI 247, at 262–86.

59 One can describe this in terms of Koskenniemi's oscillation between apology and utopia, although one can construct the same tensions from much of the liberal idea of auto-limitation. See both Koskenniemi, supra note 19; and A. Carty, ‘Introduction: Post-modern Law’, in A. Carty (ed.), Post-modern Law: Enlightenment, Revolution and the Death of Man (1990), 3–4.

60 For a discussion of the development of these perspectives, see Fassbender, supra note 4, at 37–45 and 50–8 respectively. On the centrality of the UN Charter in this vision see further at 117–28; and see also Verdross, A., ‘General International Law and the United Nations Charter’, (1954) 30 International Affairs 342CrossRefGoogle Scholar, at 347–8.

61 H. Mosler, The International Society as a Legal Community (1980). See in particular (at 30) his systemic constitutional imagery, and (at 84–91) on the issue of normative hierarchy and the changing bases of international law-making.

62 B. Simma, ‘From Bilateralism to Community Interest in International Law’, (1994-VI) 250 RCADI 221.

63 Tomuschat, C., ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century, General Course on Public International Law’, (1999) 281 RCADI 9Google Scholar.

64 supra notes 62 and 63 respectively.

65 von Bogdandy, A., ‘Constitutionalism in International Law: Comment on a Proposal from Germany’, (2006) 47 Harvard International Law Journal 223Google Scholar, at 227.

66 As John Dugard recently stated in relation to developments in the field since the Second World War, ‘[w]e academic lawyers are understandably excited by these changes and do our best to expand and extend them.’ Dugard, J., ‘The Future of International Law: A Human Rights Perspective’, (2007) 20 LJIL 729CrossRefGoogle Scholar, at 731. For an example of recent enthusiasm for Tomuschat's vision see in particular S. Breau, ‘The Constitutionalization of the International Legal Order’, (2008) 21 LJIL 545.

67 Tomuschat, supra note 63, at 43, and note his explicit rejection of any federalist ambition (at 90). On Tomuschat's approach being grounded in mainstream positivism generally see also Bogdandy, supra note 65.

68 Bogdandy, supra note 65, at 227.

69 Tomuschat, supra note 63, at 48–9 (emphasis added).

70 Ibid., at 44.

71 Simma, supra note 62, at 234.

72 Ibid., at 230.

73 De Wet's approach to developing a constitution for the international legal order, for instance, is ‘inspired by the intensification in the shift of public decision-making away from the nation State towards international actors of a regional and functional (sectoral) nature, and its eroding impact on the concept of a total or exclusive constitutional order where constitutional functions are bundled in the nation State by a single legal document’. See De Wet, supra note 4, at 53.

74 Simma, supra note 62, at 286–93.

75 Ibid., at 243.

76 Tomuschat, supra note 63, at 81.

77 Ibid., at 78–9.

78 See, e.g., Simma, supra note 62, at 249.

79 Again, this is a common trend in recent perspectives, noting changes interpreted as pointing in a particular direction, and then seeking to institutionalize further or concretize those changes through enhanced enforcement. See also B. O. Bryde, ‘International Democratic Constitutionalism’, in Macdonald and Johnston, supra note 4, 103 at 109–10.

80 See generally note 4 supra. For a related but more modest ‘constitutional’ concern to move beyond the functionalist paradigm of international institutional law, see J. Klabbers, ‘Checks and Balances in the Law of International Organizations’, in M. Sellers (ed.), Autonomy in the Law (2008), 141.

81 Interestingly, Simma's hostility to the consensual nature of obligation in international law seems to be more pronounced in his later scholarship. In an earlier article addressing the concept of ‘objective regimes’ in relation to the Antarctic Treaty, his conclusions were much more cautious as to any objective or public grounding of the law. See Simma, B., ‘The Antarctic Treaty as a Treaty Providing for an “Objective Regime”’, (1986) 19 Cornell International Law Journal 189Google Scholar, particularly at 200–2.

82 Simma, supra note 62, at 373–4. This also seems a fundamental inconsistency for authors such as De Wet, given their stated justification for their constitutional project – the intensification of decision-making outside domestic constitutional structures; see, e.g., De Wet, supra note 4.

83 Tomuschat, supra note 63, at 47 (emphasis added).

84 Simma, supra note 62, at 325–31.

85 Bogdandy, supra note 65, at 234.

86 Bogdandy assumes here that Tomuschat must accept the role of the state as the only real democratic mediation point in international law; ibid., at 238. See also Simma, supra note 62, at 248, where he carefully mediates between an aggregated and a seemingly autonomous sense of international community.

87 R. Unger, Knowledge and Politics (1975), 83–8.

88 Simma, supra note 62, at 233.

90 Tomuschat, supra note 63, at 86. See generally Walker, supra note 3.

91 See O'Connell, R., ‘Do We Need Unicorns When We Have Law?’, (2005) 18 Ratio Juris 484CrossRefGoogle Scholar, at 497, who, on this basis, questions how a state could be legitimately criticized for refusing to sign up to a human rights treaty; or, perhaps as is often the case, when human rights treaties use deliberately open or ambiguous formulations of text.

92 This is by now a well-trodden critique of positivist formulations of human rights; see generally O'Connell, ibid. See also Langlois, A. J., ‘Conceiving Human Rights without Ontology’, (2005) 6 Human Rights Review 5Google Scholar; and recently, Mahoney, J., ‘Liberalism and the Moral Basis for Human Rights’, (2008) 27 Law and Philosophy 151Google Scholar.

93 Unger, supra note 87, at 71.

94 As Fassbender puts this,

Rooted in positivism and determined not to lose touch with actual state practice, but at the same time cautiously idealistic, [this approach] seeks to develop the international legal system towards greater cohesion and effectiveness. This tension causes a certain doctrinal improvisation, and even an indecisiveness, that cannot satisfy those looking for a clear and convincing theoretical foundation upon which the concept of an international constitution could rest. (B. Fassbender, ‘The Meaning of International Constitutional Law’, in Tsagourias, Transnational Constitutionalism, supra note 58, 307 at 320)

95 See generally, Walker, N., ‘The Idea of Constitutional Pluralism’, (2002) 65 Modern Law Review 317CrossRefGoogle Scholar, at 325–9; and Walker, supra note 3, at 4–5.

96 Walker, supra note 3, at 10.

97 Hart, supra note 41, at 186–9 in particular.

98 On the development of the Kelsenian Grundnorm through the work of Verdross, see Fassbender, supra note 4, at 37–45.

99 See, e.g., Verdross, A. V., ‘Forbidden Treaties in International Law: Comments on Professor Garner's Report on “The Law of Treaties”’, (1937) 31 AJIL 571CrossRefGoogle Scholar. For a similar point see recently A. Orakhelashvili, Peremptory Norms in International Law (2006), at 8, where he notes that peremptory norms take their binding character not from consent, ‘but because they are intrinsically superior and cannot be dispensed with through standard inter-state transactions’.

100 Simma, B., ‘The Contribution of Alfred Verdross to the Theory of International Law’, (1995) 6 EJIL 33CrossRefGoogle Scholar.

101 Ibid., at 48–9.

102 Ibid., at 34 (emphasis added; footnotes omitted). Interestingly, the ‘conscience of mankind’ and ‘elementary considerations of humanity’ to which Simma refers are quotations taken from the cases Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, [1951] ICJ Rep. 15, at 23, and Corfu Channel (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, at 22, respectively. In the Reservations case, the crime of genocide is described in peremptory terms, which shocks the ‘conscience of mankind’, which in turn is positioned in natural law terminology as arising from the ‘moral law’, but also the ‘spirit and aims of the United Nations’. The idea of ‘elementary considerations of humanity’ seems to have become a well-rehearsed formula of the ICJ since the Corfu Channel case (see, e.g., recently F. O. Raimondo, ‘The International Court of Justice as a Guardian of the Unity of Humanitarian Law’, (2007) 20 LJIL 593, although there is still uncertainty of what this actually means beyond the mere self-evidence of the claim.

103 Tomuschat, supra note 63, at 162.

104 Ibid., at 90.

105 Ibid., at 71 and 72 respectively.

106 Ibid., at 72.

107 See D. Kennedy, International Legal Structures (1987), particularly 188–91.

108 Kennedy, D., ‘A New Stream of International Law Scholarship’, (1988) 7 Wisconsin International Law Journal 1Google Scholar, at 30–2.

109 Ibid., at 33.

110 Ibid., at 34.

111 As Koskenniemi describes this, an argumentative practice sustained through oscillating claims of ascending and descending authority, or apology to realpolitik statecraft without jeopardizing the ideal of the autonomy of a higher legal order. Koskenniemi, supra note 19.

112 Indeed, Simma even hints at this in his partial adoption of Verdross’ legacy, supra note 100, at 34.

113 See Capps, P., ‘The Kantian Project in Modern International Legal Theory’, (2001) 12 EJIL 1003CrossRefGoogle Scholar, particularly at 1011–14.

114 Ibid., at 1012.

115 See Walker, supra note 3, at 10 (emphasis added).

116 Koskenniemi, supra note 19.

117 In other words, that it is ‘determined by social events, that is, treaties, customs, precedents, policies, ‘authority’ or more general patterns of history, in particular economic and technological development’. Koskenniemi, ibid., at 220.

118 Dupuy, P.-M., ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi’, (2005) 16 EJIL 131CrossRefGoogle Scholar.

119 Bogdandy, supra note 65, at 227 (emphasis added).

120 D. Johnston, ‘World Constitutionalism in the Theory of International Law’, in Macdonald and Johnston, supra note 4, 20 at 27.

121 W. G. Werner, ‘The Never-Ending Closure: Constitutionalism and International Law’, in Tsagourias, supra note 58, 329 at 342.

122 In the course of his recent rallying call to get behind the constitutionalization agenda, Habermas notes with cautious optimism how the post Cold-War era has guaranteed more ‘independent’ institutional capacity. See Habermas, supra note 1, at 147, and further (at 163) where he highlights the deficiencies of the UN Security Council's veto system, ‘a major obstacle’ to the effectiveness of the Council, and therefore goes on to call for further reforms to insulate the Council somehow from national interest. As he later puts this (at 173), ‘[t]he Security Council must be able to operate independently of national interests in its choice of agenda and its resolutions. It must bind itself to actionable rules that lay down, in general terms, when the UN is authorized and obligated to take up a case.’

123 See generally J. Habermas, The Theory of Communicative Action, trans. T. McCarthy, 2 vols. (1984). As Walker translates this into the logic of international decision-making, ‘proposals and preferences must instead be tested in a process of prior argumentation in which all affected parties can participate and in which the requirement of consensual decision making require each to assume and consider the perspective of all the others. Only a legal process and discourse, one in which both the legitimacy of norm generation and the authority of norm application depends upon – indeed implies – universalizability, can guarantee an appropriately inclusive structure of ongoing argumentation and a suitable general scheme of implementation’. Walker, supra note 3, at 7.

124 C. G. Weeramantry, Universalising International Law (2004), at 111 (emphasis added).

125 Still, this is not discounting his largely Anglo-American education and academic career.

126 Weeramantry, supra note 124, at 111.

127 J. E. Alvarez, ‘Foreword: Progress in International Law?’, in R. A. Miller and R. M. Bratspies (eds.), Progress in International Law (2008), at 7.

128 This is perhaps best characterized in Francis Fukuyama's famous assertion that mankind's evolution had reached its final stage with the eventual acceptance of liberal democracy as the only viable political constellation. F. Fukuyama, The End of History and the Last Man (1992).

129 Tomuschat, supra note 63, at 78–9 (emphasis added).

130 Franck, T., Fairness in International Law and Institutions (1995), 6Google Scholar.

131 On the idea of constructing a non-geographical, cultural identity of Europe based on political legitimation, rather than specific commitment to core values, see Delanty, supra note 57, at 148–9, 154–5 in particular.

132 Particularly in the case of Petersmann, with his attachment to free-trade norms and institutions as guarantors of a more ‘constitutional’ world order; for a representative summary of his approach see, e.g., Petersmann, supra note 4; and, more recently, his ‘Justice in International Economic Law? From the “International Law among States” to “International Integration Law” and “Constitutional Law”’, EUI Working Paper LAW No. 2006/46, http://cadmus.iue.it/dspace/bitstream/1814/6447/1/LAW+2006--46.pdf. For a sustained criticism of this approach see Howse, R., ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann’, (2002) 13 EJIL 651CrossRefGoogle Scholar.

133 For criticism in this respect see Klabbers, J., ‘Constitutionalism Lite’, (2004) 1 International Organizations Law Review 31Google Scholar, at 49 in particular. For a general criticism of claims to universal values as a foundation for strengthening the international legal order, see Koskenniemi, M., ‘International Law in Europe: Between Tradition and Renewal’, (2005) 16 EJIL 113Google Scholar.

134 See for instance Loizidou v. Turkey, Preliminary Objections, Decision of 23 March 1995, 1995 ECHR (Ser. A) No. 310, at para. 75, where the court expresses the need to uphold the ‘effectiveness of the [European] Convention [of Human Rights] as a constitutional instrument of European public order (ordre public)’. Authors such as E. de Wet have embraced this decision as highlighting the potential of regional regimes to instigate a truly enforceable hierarchy of values in the international legal order. See de Wet, E., ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’, (2006) 19 LJIL 611CrossRefGoogle Scholar.

135 These kinds of influence run throughout the lengthy study by T. Cottier and Hertig, M., ‘The Prospects of 21st Century Constitutionalism’, (2003) 7 Max Planck Yearbook of United Nations Law 261Google Scholar.

136 For a hesitant but nonetheless positive endorsement of a form of global subsidiarity, see Kumm, M., ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, (2004) 15 EJIL 907CrossRefGoogle Scholar, at 920–4.

137 Weeramantry, supra note 124, at 150.

138 De Wet in particular purports to take the existence of universal values as a given, making her project about furthering the reorganization of the system to fit better the existence of those pre-existing values; see de Wet, supra note 4, at 51. See also Cottier and Hertig, supra note 135.

139 Dupuy, supra note 118, at 137 (emphasis added).

140 Koskenniemi, supra note 133, at 118.

141 Habermas, supra note 1, at 116.

142 See generally M. Koskenniemi, ‘What Is International Law for?’, in M. Evans (ed.), International Law (2006), 57; Simpson, G., ‘Two Liberalisms’, (2001) 12 EJIL 537CrossRefGoogle Scholar.

143 Kennedy, supra note 13.

144 Ibid., at 347.

145 As Korhonen puts this, ‘[t]he centre constitutes itself by relying on the contrasts it establishes at the outset’. Korhonen, O., ‘Liberalism in International Law: A Centre Projecting a Periphery’, (1996) 65 Nordic Journal of International Law 481CrossRefGoogle Scholar, at 524.

146 As Delanty claims (in the context of the idea of ‘Europeanism’ in integrationist thinking),

Europeanism is not a fixed set of ideas and ideals which can be unilaterally aspired to as an alternative to national chauvinism and xenophobia. It is a strategy of discourse and it is constantly constituted by shifting terms of reference. When we look beneath the surface of the rhetoric of internationalism, we inevitably find thinly disguised discourses of power. (Delanty, supra note 57, at 143)

147 R. A. Miller and R. M. Bratspies, ‘Progress in International Law – An Explanation of the Project’, in Miller and Bratspies, supra note 127, 9, at 24. To put this more explicitly, J. Tully observes how ‘[t]he idea of Europe and of the world as a European federation writ large . . . has come to function as a more or less taken-for-granted normative standard against which many people organize and evaluate forms of political association in Europe and throughout the world’. J. Tully, ‘The Kantian Idea of Europe: Critical and Cosmopolitan Perspectives’, in Pagden, supra note 33, 331 at 333. See on this point, in the context of the unquestioning tendency to assume European integration as progress, H. Mikkeli, Europe as an Idea and an Identity (1998), 230–4, 240–2.

148 I borrow these terms froms Susan Marks's ideology critique, explaining how shared understandings can become embedded through processes or strategies of ‘legitimation’, ‘dissimulation’, ‘unification’, ‘reification’, and ‘naturalization’. S. Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (2000), 18–22 in particular.

149 On the idea of international law sustaining its identity and purpose in opposition to ‘American empire’, see Fitzpatrick, B., ‘“Gods Would Be Needed . . .”: American Empire and the Rule of (International) Law’, (2003) 16 LJIL 429CrossRefGoogle Scholar.

150 Tomuschat, supra note 63, at 28.

151 Bianchi has recently even encouraged lawyers to think of themselves in exactly this way in furthering the potential of jus cogens norms. See Bianchi, A., ‘Human Rights and the Magic of Jus Cogens’, (2008) 19 EJIL 491CrossRefGoogle Scholar. Fittingly, this seems to chime with the rather elusive way in which Simma relates the identification of jus cogens norms, it being ‘easier to describe the[ir] content . . . than to define their subjects and points of reference. This is due to the fact that the identification of common interests does not derive from common abstraction but rather flows from the recognition of concrete problems.’ See Simma, supra note 62, at 235.

152 See, e.g., J. L. Goldsmith and E. A. Posner, The Limits of International Law (2005).

153 Korhonen, supra note 145, at 501.

154 Skouteris, supra note 25, at 855.

155 See generally Korhonen, supra note 145.

156 On this idea see Kennedy, D., ‘The Move to Institutions’, (1987) 8 Cardozo Law Review 841Google Scholar, particularly at 854–5, where he notes how a century of ‘unbridled sovereign autonomy’ and an informal balance of power – a kind of ‘decentralised leviathan’ – is put to an end by a war which allows states to acknowledge their interdependence and instigate a more rational, democratic and social international order.

157 See for instance A. Zimmern's classification of the pre-League era as the ‘Old Diplomacy’. A. Zimmern, The League of Nations and the Rule of Law 1918–1935 (1936), 17–20.

158 Kennedy, D., ‘International Law and the Nineteenth Century: History of an Illusion’, (1997) 17 Quinnipiac Law Review 99Google Scholar, at 106–8 in particular.

159 Kennedy, supra note 156, at 855.

160 Ibid., passim, noting generally how this break is established with the signing of the League Covenant: a move from an unregulated, barbarous politics of the past, to a new legalized form of politics for the future.

161 See, e.g., F. Kratochwil, ‘How Do Norms Matter?’, in M. Byers (ed.), The Role of Law in International Politics (2000), 35, at 38–9.

162 J. W. Burrow, Evolution and Society: A Study in Victorian Social Theory (1966), at 226. Burrow also notes here how this can be explained in Hegelian logic: the idea that ‘a process can only be understood when completed, or nearing completion’, although it may also be explained more cynically, allowing the writer/lawyer – as Burrow puts this – to have it ‘both ways’.

163 Korhonen, O., International Law Situated: An Analysis of the Lawyer's Stance towards Culture, History and Community (2000), 189Google Scholar.

164 Ibid. The general tensions in the idea of scientific empiricism – between fatality and subjective possibility – are also explained in broader intellectual context by J. Pemberton, Global Metaphors: Modernity and the Quest for One World (2001), 13–25.

165 Skouteris, supra note 25, at 853.

166 A situated sense of the tension between science and historicism in Maine's thought is discussed by Burrow, supra note 162, at 163–5.

167 Korhonen, supra note 145, at 510.

168 Klabbers, J., ‘Book Review, Ulla Hingst, Auswirkungen der Globalisierung auf das Recht der völkerrechtlichen Verträge, 2001’, (2003) 16 LJIL 201Google Scholar, at 205.

169 Pemberton, supra note 164, at 109.

170 Kingsbury, B., ‘Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law’, (2002) 13 EJIL 401CrossRefGoogle Scholar, at 428.

171 For a short history of the perennial recurrence of the dichotomous ‘particular–universal’ anxiety in European international legal thought, see Jouannet, E., ‘Universalism and Imperialism: The True–False Paradox of International Law?’, (2007) 18 EJIL 379CrossRefGoogle Scholar, at 380–5.

172 See, e.g., Angie, A., ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, (1999) 40 Harvard International Law Journal 1Google Scholar, at 2–3, who notes how ‘[a]ttempts to resolve this problem, as well as the critiques of these attempts, have, on the whole, constituted the central theoretical debate of the discipline over the last century.’

173 Jouannet, supra note 171.

174 Unger, supra note 87, at 80–1.

175 Oppenheim, L., ‘The Science of International Law: Its Task and Method’, (1908) 2 AJIL 313CrossRefGoogle Scholar, at 335, cited also by Kingsbury, supra note 170, at 427.

176 Dupuy, supra note 118.

177 Dupuy, P.-M., ‘The Unity of Application of International Law at the Global Level and the Responsibility of Judges’, (2007) 27 European Journal of Legal StudiesGoogle Scholar (online manuscript).

178 Klabbers, supra note 133, at 47–8.

179 Simma, supra note 62, at 234.

180 Franck, supra note 130.

181 Kritsiotis, D., ‘Imagining the International Community’, (2002) 13 EJIL 961CrossRefGoogle Scholar.

182 See Slaughter, supra note 4, at 102 and passim.

183 Or as Slaughter herself describes her approach, ‘a combination of descriptive and predictive empirical claims’. Ibid., at 18.

184 See generally on the troubling consequences of Slaughter's method Korhonen, supra note 145.

185 As Mikkeli describes this, in terms borrowed from Baudrillard, ‘The principles once so dear to the Europeans – revolution, progress, freedom – all evaporated even before they became reality . . . America, by contrast, founds its very existence on the belief that it is a utopia come true’. Mikkeli, supra note 147, at 154.

186 See, e.g., Tully, supra note 147.

187 See generally Koskenniemi, M., ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization’, (2007) 8 Theoretical Inquiries in Law 9Google Scholar, at 28 in particular.

188 I borrow this phrasing from Sorel, supra note 25, at 214–15, describing how philosophers, in the pursuit of a perpetual peace, sought to emulate the progress witnessed in organization at the national and regional levels: the abbé de Saint-Pierre was influenced by the Holy Roman Empire and Kant by Germany; while Rousseau's Social Contract ‘was written solely for Geneva . . . [he] idealised all his passions; he saw the world in himself and humanity in his fatherland’.

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