1. Introduction
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, moralization, or sheer disregard for the law, particularly by the world's only remaining superpower. In fact, with the risk that increasingly powerful institutions could be hijacked for baser motives, or perhaps just marginalized altogether, the fate of international law now seems to hang in the balance between US hegemonic instrumentality and a promised European, or Kantian, future of global constitutionalism under the rule of law. Recently, even Jürgen Habermas has entered the debate, questioning whether the Kantian project for the constitutionalization of international law still has a chance in the light of what he perceives is the flagrant disregard for international law shown by the United States in its invasion of Iraq in 2003:Footnote 1
The project of a new liberal world order under the banner of a pax Americana advocated by the neoconservative masterminds of the current US administration raises the question of whether the juridification of international relations should be superseded by a moralization of international politics grounded in the ethos of a superpower.Footnote 2
This may be an overly simplistic picture of an emerging divide, but in Habermas's juxtaposition of European and US alternatives there is unearthed a tension in opposing conceptions of a liberal world order, including different ideas about the purpose and potential of international law itself;Footnote 3 that is, whether it should be instrumental to an underlying purpose, or whether lawyers should content themselves with securing the procedural justice of effective, but still accountable, global institutions, through more adjudication or perhaps strengthened enforcement mechanisms. As such, there may be many constitutionalist projects currently afoot in international law,Footnote 4 but my intuition here is that Habermas is referring to a more long-standing commitment, a mainstream consciousness or cosmopolitanism which gives the discipline its unquestionable internationalist spirit.
As such, the Kantian project to which he refers is no radical reinvention of the law. When he speaks of the ‘juridification’ of international relations, he is describing a deeper constitutional connection, intrinsic to the identity of international law as a ‘project’ and not just a discipline. This project was begun by the first professional international lawyers of the nineteenth century, aimed squarely against the worst excesses of sovereign freedom, men such as Westlake, Bluntschli, Mancini, Lorimer – as Martti Koskenniemi describes them, the ‘popular conscience of the civilized world’.Footnote 5 They were fundamentally committed to this cause, but saw the only hope in this direction lying in the formality of a positive law of nations as an end in itself. They resolutely believed that the future transformation of international law would be a gradual, but inevitable, transition brought about by the combination of empirical realism and progressive, enlightened reformism. These lawyers and subsequent generations of the discipline's professional mainstream have relentlessly pursued the codification, development, and institutionalization of international law, confident in their status as representatives of a global public consciousness.
In this sense, constitutional imagery and explicit public law analogy have a long history in international law, inseparable from the idea of progress itself. It has become largely uncontroversial, in fact, to apply more explicit constitutional analogies to intergovernmental organizations. Oppenheim interpreted the transition from the Hague Conference to League of Nations as a process of constitutionalization, describing the League's Covenant as an ‘attempt to organize the hitherto unorganized community of states by a written constitution’.Footnote 6 Lauterpacht, McNair and many others followed suit, but it was always in substance, not in legislative form, that international law was constitutionalizing. For Lauterpacht, it was the effect of the Covenant which had instigated an institutional and normative hierarchy, but it was still a treaty like any other.Footnote 7 Meanwhile, McNair merely added subcategories to the law of treaties, trying to accommodate hierarchical, public forms in a bilateralist paradigm.Footnote 8 None of these men thought it necessary to conceive of international law in any radically new way; none of them saw any contradiction between their commitment to Westphalian voluntarism and a more progressive, even ‘constitutionalist’, project.
Nowadays the Charter of the United Nations, with its ‘We the Peoples’, seems to resound with the imagery of collective submission to a new order,Footnote 9 prompting many to examine it in terms borrowed from domestic public law.Footnote 10 Reading international law and its institutional structures in explicitly constitutional terms seems to give sense to our enterprise as a project, making it easier for the international lawyer to rely on the familiar, to plot or control its development. One can think of the United Nations as an integrated system, functionally divided into international executive, legislative and judicial bodies.Footnote 11 However, this is more comforting than accurate; thinking in such a structural way, aided through analogy and introspection, one will always be disappointed, perpetually attempting to fill in the gaps.Footnote 12 But still it seems part of the international lawyer's underlying sensibility to seek out the unobtainable certainty of the constitutional state, our epitome of legal and political progress.Footnote 13
In this article I want to sketch out some continuity between the post-revolutionary, public law connection instilled by our first professional lawyers and the recent claims that international law, through emerging normative hierarchies and enhanced institutional structures, is undergoing a process of constitutionlization. I argue that while these developments seem to suggest a ‘postmodern’ concern within the academy – for instance, the withering away of old certainties about the structure and legitimacy of the international legal orderFootnote 14 – they nonetheless only reflect more long-standing tensions in the discipline, those ingrained in the very idea of a positive law of nations. In fact, since natural law philosophy was swept away from international law by the nineteenth-century lawyers, there has always been a tension between the voluntarist legitimacy of the law and lawyers’ underlying cosmopolitan ambitions. Nevertheless, both stemmed from the influence of public law and the constitutional revolutions transforming the ancien regime across Europe during the early to mid nineteenth century. Constitutionalism is therefore not only inseparable from the identity of modern international law, but is equally ingrained in the legal consciousness of mainstream international lawyers, who continue to make sense of legal development in terms borrowed from domestic constitutional law, and relentlessly pursue the restraint of sovereignty through forms of public regulation. I argue that one can only really understand the logic of the recent, supposed constitutional transformation of international law by considering this sense of fatality, itself embedded in the consciousness of mainstream academic lawyers.
My argument proceeds in three parts. In the next section (2) I try to contextualize the ‘project’ of international law instigated by the ‘professionals’ from the nineteenth century, who were fundamentally influenced by both their domestic political struggles and a shared European consciousness of constitutional renewal. I highlight how they were instrumental in ingraining a sense of purpose in the development and, particularly, the institutionalization of international relations, propelled by their belief in scientific organization and the universality of public law doctrine. Nevertheless, their domestic political projects and commitment to post-revolutionary constitutional values created something of a paradox. While justifying the legitimacy of collective national interest channelled through popular sovereignty, this could only bolster the autonomy of the nation-state as sole arbiter of international legal obligation. Not only did they not see this as a tension, they built on this as a cause in furthering the ‘constitutional’ project of the institutionalization of relations between states. I argue that seemingly opposable trends were reconciled through the empirical filter of these jurists: their liberal-juridical consciousness. In particular, their commitment to ‘science’ and organization as an end in itself only helped to instil a sense of certainty or inevitability in the cosmopolitan transformation of the law.
In section 3 I trace how these tensions make problematic recent claims of a constitutional transformation in the substance and character of international law, which still build on sovereign consent as the only legitimate basis for developing and enforcing non-consensual legal obligations. In this respect I look in detail at two influential ‘constitutionalist’ readings of the international system from the Hague Academy lectures delivered by Bruno Simma and Christian Tomuschat in 1994 and 1999 respectively. I highlight similarities in their concerns and in the structures of their argument, and aim to illustrate how they remain grounded, not in a radical rereading of the international system, but within a mainstream sensibility which still relates progress to the containment of state sovereignty. As both authors, like their nineteenth-century predecessors, seem to avoid the utopianism of any overtly naturalist agenda, or in fact any explicitly philosophical position, their normative assertions as to the reinvention of international law still seem based on the certainty of their convictions, and ultimately their authority as representatives of this mainstream liberal-juridical consciousness.
In section 4, therefore, I consider these claims as part of the mainstream tradition, a historical continuity since the time of our first professionals, who sought to anchor their ‘project’ somewhere between future promise and unfolding reality. I examine how a progressive narrative from this time sustains the sense of movement or transition in the law, putting distance between both the realists and dreamers of the past, as well as the spoilers of the future, still without seeing any of these continuities. I relate this to Habermas's juxtaposition of the ‘European project’ against the seemingly unacceptable alternative of US instrumentality, but note how the two alternatives only help to sustain each other, avoiding the need to engage in legal philosophy. As there is an avoidance of clarity on what is taken for granted in a leap from (selective) empirical realism towards assertive normative ambition, I argue that it is only in the differentiation, in the reflection of American ‘empire’, that the constitutional narrative can continue to promise a particular kind of future without any specifically philosophical commitment. In other words, the alternatives which Habermas claims divide the West are merely different sides of the same coin, necessary oppositions, on which the very identity of a Kantian project depends, and sustains its relevance by reflecting back the alternative of American empire. In this sense recent support for an explicitly constitutional agenda seems more a political manoeuvre within the mainstream, a call to arms to reassert old commitments within the field. But as a political manoeuvre it may be just as hegemonic as an explicitly ‘moralized’ US agenda.
I conclude, therefore, by considering what unites the mainstream, particularly that which goes unspoken and what is taken for granted. In the end, both alternatives only represent distinct ways of coping with the seemingly irreconcilable tensions ingrained in the law since the positivist transformation described here, which continues to make necessary this strategy of positioning and differentiation. Ultimately, the price of all this is the price of forgetting; forgetting that which is taken for granted, that which appears already universal, and whence this sense of universality once came. As a (brief) parting shot, therefore, I consider that if there may be a point to embracing the apparent universality of constitutional discourse then it must be in critically engaging with, rather than naively embracing, claims made in the name of all humanity.
First of all, some caveats. To begin with, I do not attempt to set out a theory of constitutionalism in this work,Footnote 15 but only to sketch what I believe to be a deep intrinsic connection between international law as a positive, empirical ‘discipline’, and a more purposive, cosmopolitan project. In this regard, I shall attempt to justify and explain this connection in section 2, and outline the consequences of this towards the end of the paper. Second, in justifying this particular constitutional connection, my interest is not in developing the correct interpretation of particular philosophical traditions, in defining a ‘Kantian’ project of international law, for instance;Footnote 16 and nor do I wish to pass judgement on what may be much-needed work in developing other theoretically sound constitutional frameworks, particularly in the area of the accountability and responsibility of international organizations.Footnote 17 Indeed, if anything, I would applaud these enterprises. Finally, in juxtaposing these claims over the time frame that I use, bearing in mind the need for clarity in my argument, I have had to narrow my focus as regards recent ‘constitutionalist’ approaches to international law, which will naturally hinder any attempt to make generalizations about these recent trends. In this respect, my treatment of the works of Simma and Tomuschat in section 3 will inevitably invoke the response either that their views are not representative of mainstream international lawyers generally, or that constitutionalism in the sense that they describe it is unique to these authors, or perhaps is a particularly Germanic phenomenon in international law.Footnote 18 To an extent I would accept these criticisms, but nonetheless feel that their avoidance of explicit naturalist or other philosophical foundations, as well as their combination of inductive and deductive empirical claims, positions both of them centrally within a mainstream tradition between realism and idealism, conservatism and progressivism,Footnote 19 the identification of which is central to this work.
2. Europe, civilization and the reinvention of international law: progress through juridical consciousness
By the post-revolutionary nineteenth century, the European constitutional nation-state had become one of the most powerful symbols of renewal in international law.Footnote 20 At the domestic level, the reconfiguration of sovereignty towards a representational model impacted at the international level as the terms and structures of the law became increasingly intertwined with national constitutional law.Footnote 21 But perhaps the biggest impact of the revolutionary change in state legitimacy was the progress it represented – as an achievement of European civilization it was something to be furthered, emulated, a seemingly peaceful end in itself.Footnote 22 In fact, for the first ‘professional’ international lawyers of the century – the likes of John Westlake, Johann Casper Bluntschli, or Pasquale Mancini – it was their conviction that public law doctrine had managed to tame sovereignty at the domestic level which gave legitimacy and primacy to a voluntary and positive law at the international level, at least among the ‘civilized’ states of Europe. As Kratochwil notes,
Despite its revolutionary implications, ‘popular sovereignty’ seemed to fit neatly into the existing scheme. All that was necessary was to follow the generative logic of ‘contract’ itself and to reconceptualize the emerging differences between state and society again in contractual terms.Footnote 23
Even with particular national interests or causes, and distinctive political preoccupations, it was a shared atmosphere of political and intellectual renewal among these men, therefore, which impacted on the relative homogeneity of international law as it developed into a professional practice and overwhelmingly positivist discipline, inseparable from its European, liberal origins. This is not to say that there was a shared philosophy of international law itself, rather the inverse. A heterogeneous political outlook, embracing particular domestic struggles, but combined with a shared atmosphere of political renewal, gave a sense of the transcendental to international law.Footnote 24 It fuelled their internationalism, their cosmopolitan certainty, to the extent that it would allow their particular causes to be stressed in the language of universalism.Footnote 25 In this way, these nineteenth-century lawyers were inward- and backward-looking. They espoused a positivist ‘empiricism’ which derived law from historical experience, charted society's progress through evolution, and tied this to the ‘now’: the internally shared popular (west European) conscience. But they were also forward- and outward-looking. Reflecting on shared consciousness and historical progress offered the ability to universalize and project into the future. Lawyers turned their particular experiences and a shared sense of European fatality into an international civilizing force.
For example, writing on the first Hague Conferences, and contextualizing his conception of this pervading public spirit in terms of the future outlook for international law, Westlake commented that
The changes in Men's point of view towards the problems of their nature and destiny, which have powerfully moulded their social and political relations to one another, so far as those relations have been confined within the city or the State, seem to have done nothing for the improvement of their international relations . . . To bring that action under some responsibility is the object of a great cry which goes up from modern Europe, a cry based on no new spiritual vision, but wrung from suffering and fear.Footnote 26
This was to be no utopia, therefore; there were to be no spiritual, metaphysical underpinnings to this project, just the plain facts of historical social, political, and legal progress extrapolated upwards as a template for man's highest social grouping. At the same time this was no mere analogy; it was not simply a comparison between states at the international level and individuals in the domestic state. Westlake was well aware of the artificiality of such a paradigm of ‘relations’ between states. For him, the society of states represented in European civilization was the ‘most comprehensive form of society among men’ but ‘states were its immediate, men its ultimate members’.Footnote 27 This kind of cosmopolitan outlook was infectious. Divorced from seemingly utopian schemes of the past, this order was being built by real achievements in the political transformations of European states, and beginning to be observed in positive developments in multilateral diplomacy and law-making between states.
This combination of empirical realism and cosmopolitan idealism is observable also in Bluntschli's Theory of the State. While he saw international law as the assemblage of principles governing the relations between states, these states were constituted by peoples in organized national groups. The state was a personification of this national willing, in turn pointing with ‘inner necessity to the higher unity of mankind of which the nations [were] only members’.Footnote 28 Although this meant for Bluntschli that, internally, states possessed rights in equality to all other states, the injection of public law principle meant that each state's freedom was constrained in international law by the necessity of ensuring the existence of its people.Footnote 29 This idea of international law being in the service of the rights of man meant also for Bluntschli that the powers of states were limited by those same rights. Basically, everything came back to these seemingly universal constitutional principles; international law had to respect limits which one could trace back to the postulates of public law.Footnote 30
In reconciling the national will with legitimate statehood, and with constitutional restraint, Bluntschli built on the ‘doctrine of nationalities’,Footnote 31 particularly propounded by fellow founding members of the Institut de Droit International, Pasquale Mancini and Augusto Pierantoni. Influenced principally by the struggles of the Italian people for self-determination and unification, their argument saw a natural transition from the reform of public law, based on ideas of individual autonomy at the national level, to the reform of international law under the same principles of legitimacy.Footnote 32 At each level the rights of man were to be regenerated regardless of nationality or state borders.Footnote 33 In Mancini's thought, this outlook meant that state rulers were under an obligation to participate peacefully in international society, principally by recourse to arbitration, while others took this further as implying the necessity of organizing some form of league or society of nations.Footnote 34
Like many others at this time, they saw little contradiction in combining nationalist sentiment, fuelled by popular sovereignty, and internationalism in some cosmopolitan scheme for a reinvented European (and therefore international) public order. Both could be justified under the values of the liberal revolution.Footnote 35 The problem, of course, was that the influence of the revolution, enshrining the constitution as the foundation of legitimacy, meant also a voluntarist reading of law, which could only transfer at the international level into the approximation of states as the legitimate subjects of a voluntary, contractual form of public order.Footnote 36 The irony here is that the state-centricity of the voluntarist reading of interstate obligation is borne of the same liberal logic as the cosmopolitan ambition – an ambition which could only become placed squarely in opposition to this state-centricity, at least as that translated into unrestrained power. The professional hopes for a future peace under international law began as the projection of human rights, of the autonomy of man qua nation in his universal state. However, as soon as the state was personified somehow as the representation of the nation (however artificially) and thus as an individual moral entity, the cosmopolitan promise begins to look a little thin. Combining empiricism and romanticism (of European traditions, of liberal freedom) in this way resulted only in the reification of the state form just as states began to pursue, often with great vigour, something akin to the ‘national interest’ in the form of sovereign freedom.Footnote 37
This, then, was the frustrating paradox at the heart of a liberal, positive law of nations, but was also in many ways definitional to international law as a project as well as a discipline. The cosmopolitan ambition and statist-voluntarist legitimacy were inseparably connected, and their juxtaposition, even opposition, began to give a sense of direction in crafting an institutional future for the law of nations. The problem of progress in international organization, taken up with such enthusiasm by twentieth-century international lawyers,Footnote 38 had little to do with promoting cosmopolitan unity, with freedom, equality, and fraternity of peoples, but had everything to do with containing the seemingly uncontainable sovereignty of states. It is the state, not ‘man’, which becomes the ‘a priori, the transcendental condition from which discourse proceeds and which is not itself subject to discussion’.Footnote 39 The growth of ‘statism’ meant that law became, above all else, about competence. Comparisons were increasingly drawn with the individual within the domestic state and served through private, contractual analogy, carving out international law's domain as the compromise between public regulation and sovereign freedom. And thus it becomes the system itself which has to be opposed; organizational planning becomes the complete transformation of this system. In the final measure, the enigmatic quality of picturing the state, like man, as free and equal, is nothing if not conducive to ‘a climate which is convinced that international institutions must be developed and as quickly as possible, to harness the sovereignty of States’.Footnote 40
This was no new philosophy of international law, therefore; it was rather an abandonment of philosophy to ‘science’. Lawyers could speak of progress by distancing themselves from the dreamers and utopians of the past and getting on with the important tasks of codifying, defining, and developing the rules themselves, transforming the law from a primitive to a mature system of public law.Footnote 41 The turn to empiricism, tempered by ‘insights’ from the social and natural sciences,Footnote 42 was itself proof of modernity, helping to ‘do away with unreasonable prejudices, to develop the sentiment of solidarity of interests and to bring forward the true principle of a community of interests’.Footnote 43 As such, their enthusiasm for empiricism was never aimed only at making sense of what states did or said. Outside treaty law, for instance, evidence of state conduct was relevant, but only when posited against what was taken as certain and universally valid. These empirical phenomena always had to be interpreted by the lawyer, somehow imagined as the appointed spokesman for a global public conscience.Footnote 44 They saw this as an objective, ‘sociological’ method for determining history's progression, perfecting an inevitable end through ‘scientific’ organization of empirical phenomena.Footnote 45 As Westlake saw this, international law developed and became binding law, ultimately, through (a loose form of) consensus: the nurturing of a European consciousness which could then be channelled through these legal elites.Footnote 46 Koskenniemi puts this in another, perhaps more accurate, way: ‘The microcosm of individual sensibilities and the macrocosm of public law were experienced as aspects of one and the same reality.’Footnote 47
Taking the example of the ambitious cosmopolitan schemes for international governance propounded by Pasquale Fiore and James Lorimer around the turn of the last century, both recognized the need to move beyond the contractual interstate base to achieve greater democratic engagement, and each thus also had to rely – quite explicitly – on the catalytic power of this enlightened class of jurists as representatives of this public conscience.Footnote 48 The fact that the schemes put forward by both these men were so similar (at the very least, similarly utopian at that time) highlights how Lorimer's naturalist outlook and Fiore's strictly positivist, empirical ‘codification’ mattered little in the certainty of the cosmopolitan future they both desired and saw as inevitable. For instance, in Fiore's ‘scientific’ approach, it was the international lawyer who was contributing to the development of international law and organization, representing the European public consciousness. He could already see – prove, even – the involvement of lawyers positively contributing to the development of international law, for instance at the Hague Peace Conferences in 1899 and 1907.Footnote 49
This project could not be left in the hands of states alone; they knew that international organization could never count as progress if it only allowed states to drive the agenda. Still, they simply did not see the implications of any contradiction between statist–voluntarist justification for legal obligation and the cosmopolitan transformation of the international system they and others championed at this time. International conferences could be read as the first step towards something more ambitious, as the unflappable belief in organization through scientific method (i.e. juridical influence) allowed only one conclusion: the universal realization of Western values, liberal freedoms, and democratic authority.Footnote 50
The problem, of course, was that there were two ways of reading the advances in interstate co-operation represented at The Hague. One could see this as the birth of a true international assembly – empirical evidence that statesmen were finally, at the dawn of the century, willing to come together, to listen to public opinion (and above all lawyers) – or one could look at the results, actual achievements, and simply conclude that true co-operation was difficult to achieve on a voluntarist basis, and that arbitration was an inadequate procedure on its own terms.Footnote 51 But in the fixed inevitability so inherent in this liberal mindset the outcome of each conclusion is barely distinguishable. In the latter reading, thoughts soon turn to institutionalized forms which will ensure that law can be emplaced above the arbitrary whims of statesmen, and thus (con)federalism, some great power alliance, or some similar scheme enters the frame once more, this time not as utopia, but only as the logical next step, or at least distant target towards which each small step can be evaluated and critiqued and the overall project refined accordingly.
It was perhaps for this reason that other (particularly Anglo-Saxon) jurists, men such as Henry Summer Maine and James Lawrence, saw hope in examples of power-orientated interstate alliance rather than conference diplomacy: Maine in the example of the Holy Alliance, Lawrence in the further development of the Concert of Europe, as a central authority in an increasingly state-like international system.Footnote 52 Neither saw these schemes as contradictory to the progressive development of public regulation and constitutional values witnessed in the nation-state. They saw the natural evolution of law – the observable shift from primitive to organized public law at the domestic level – equally applicable at the international level; they had little problem reading institutional developments as slowly but inevitably leading in the same direction.Footnote 53 For Maine, in particular (and his successor at Cambridge, Paul Vinogradoff), the empirical, even anthropological, observation of societal development could determine certain universalized phases of a society's ordering.Footnote 54
To reiterate here: while this was not about shared philosophy, there was still a sense of collective purpose in the certainty with which these men viewed their task in promoting the juridification and institutionalization of interstate relations. For Lawrence, like Maine, it was simply obvious that the benefits of the development of some ‘rudimentary order’ would lead men – it was their human nature, after all – to seek to develop a more sophisticated juridical organization of the international system.Footnote 55 Despite his different approach, for Bluntschli also it was human nature that required the state, and therefore also required something approximating an international state.Footnote 56 And ultimately, it was generally taken as given that European civilization was the very embodiment of ‘progress’ itself, and therefore that the organization of the Western state provided a universally sound basis for a peaceful international future.
What united these approaches, in the final measure, was that all sought to distance themselves from the utopian, federalist philosophies of the past, but when and if natural law was explicitly rejected it was only replaced by juridical certainty, by consciousness.Footnote 57 They did not need philosophy; empirical proof could be garnered through observing the history of all civilization (which of course was represented in Europe itself). As this ‘empiricism’ attempted to make sense of the development and progress of the law and, therefore, to predict (and even shape) its future – lawyers had to explain the march towards their ideals of liberal freedom from an interstate compact which could be justified under a similar idea of freedom.Footnote 58 They had to reform as well as explain; they became in equal measure apologist and progressive, and their liberal internationalism and their professional, neutral science began to make demands on each other which were not, and still are not, always easy logically to sustain.Footnote 59
3. Constitutionalism in the mainstream tradition: Tomuschat, Simma, and the abandonment of legal philosophy
It may be overly controversial to claim that a narrative of constitutional transformation is written into the fabric of positive international law, sustained through a consciousness committed to the inevitability and fatality of the law's transformation. Nevertheless, up to the present there seem to be irreconcilable tensions between the very identity and legitimacy of a positive law of nations and the academy's simultaneous commitment to systemic transformation. In fact, if one can speak of progress at all, as indeed we are prone to do, then it can only really be through some shared, yet implicit, understanding of the purpose and destiny of international law and its institutional structures, even if this may only perpetuate these difficult tensions in the lawyer's role.
Into the twentieth century, although continually shaken by war and bouts of pessimism, the narrative still manifests in the description of international law's progression from a private law ‘writ large’ towards a public model, centred on community interests and fundamental rights. Influenced by the monist, systemic thinking of Hans Kelsen, authors from Alfred Verdross early in the centuryFootnote 60 to, more recently, Hermann Mosler,Footnote 61 Bruno Simma,Footnote 62 and Christian Tomuschat,Footnote 63 have all sought to encourage and foster this transition. Yet, perhaps with the exception of Verdross's openly naturalist position, there has been a lack of conceptual clarity about exactly how this systemic reading affects or restructures the traditional paradigms of Westphalian international law. In fact, lawyers such as Simma or Tomuschat seem to fit more readily into the mainstream tradition: grounded in the realities of voluntarist international law, but nonetheless committed to a progressive, reformist project aimed squarely against the perceived excesses of this state-centrism.
In this section I want to consider how this narrative of the ‘public’ transformation of the law persists in recent claims of international law's constitutional transformation. In particular, I consider two highly influential Hague Academy lectures delivered by Simma and Tomuschat in 1994 and 1999 respectively,Footnote 64 with the purpose of demonstrating how the structure of their argument both reveals and attempts to mask the tensions between voluntarism and cosmopolitan ambition unearthed in the previous section. I will argue that it is only the authors’ conviction as to this fatality, their consciousness acting as an empirical filter, which fuels the leap from empirical reality, through interpretation and critique, towards normative assertion. In their jettisoning of philosophy and their conviction as to the built-in fate of international law, their arguments are most revealing for what they cannot say. I will pick up on this sense of the unspoken in the following, final section and briefly consider the consequences of this in my conclusion.
3.1. Constitutionalism as mainstream: progress which runs of itself
Christian Tomuschat's inspirational 1999 Hague Academy lecture has placed on international law the burden of ensuring ‘the survival of mankind’. This is no small feat. Nevertheless, in terms of the lecture's content he makes no outlandish claims which would be unfamiliar to international lawyers’ understanding of recent developments in the law. In fact, it is rooted not in a radical reinvention of the law, but ‘a “positivist” legal discourse . . . [which] assumes that [international law] can operate similarly to municipal public law’.Footnote 65 It is perhaps for this reason that it has come to represent something of a hallmark of a mainstream reformist agenda, where lawyers highlight positive changes in the law and enthusiastically embrace and attempt to further these developments as much as possible.Footnote 66 Accepting that legal development must be based on interstate consensus, this approach also therefore claims to accept the decentralized nature of international law: a legal order ‘characterized by one salient feature, the lack of a superior authority endowed with the comprehensive powers to issue binding commands which every member of the international community would be obligated to abide by’.Footnote 67 It thus also accepts, as both legitimate and a practical necessity, the consent of states as the foundation for legal rules.Footnote 68 The key to this argument, however – the reformist agenda running through it – manifests itself in the way in which this order is itself being willed to change:
It is no exaggeration to state that, for decades now, international law is moving forward to replace its traditional structure of co-ordination by hierarchical elements that do not allow obstruction of public interest goals identified by the international community at the hands of individual States or small groups of States that oppose them by dint of a purely selfish no.Footnote 69
At first glance this would seem to sit uneasily with a legal order characterized by ‘the lack of a superior authority’, yet it appears that the law is transforming itself, with the lawyer's task being only to complete that which is under way. In other words, they have only to embrace what states themselves have willed, and are continuing to will, into existence. Nevertheless, the existence of these positive developments, these indicators of progress, means that Tomuschat can move towards a normative claim, towards critique. He therefore decries the ‘deficiencies’ of an international system still grounded in sovereign equality, where ‘consent is required for any measure carrying adverse consequences for its addressees’.Footnote 70
Like Tomuschat's, Bruno Simma's 1994 Academy lecture celebrates the evidence of a move towards, and increasing protection of community interests in, international law, juxtaposing this against what he sees as the classic bilateralism of Westphalian international law. Simma clearly cannot hide his disdain for the interstate voluntarism, which for him characterizes this classical international legal order, noting in particular the ‘feeling of worldwide “togetherness” which cares little about legal niceties and the sovereignty-sensitivities of governments’.Footnote 71 Yet at the same time Simma also reminds us not to forget that this ‘traditionally patterned bilateralist international law still constitutes the basis on which the new developments are taking shape’.Footnote 72
The striking feature of their respective lectures, therefore, is that both Tomuschat and Simma aim to convince by highlighting ‘positive’ developments within the existing international order, the effect of which simultaneously undermines this order. This sense of concern over what are in fact real, unfolding changes is a common trend in recent ‘constitutionalist’ perspectives.Footnote 73 However, by seeking to be descriptive and normative at the same time – rejecting the legitimacy of any change which has not been willed into existence, but recognizing that reliance on will undermines the substance of the developments under way – a strange paradox emerges where voluntarism is both essential and inadequate. Both Tomuschat and Simma ground their claims in the mainstream, rejecting the utopianism of changes which have not themselves been willed into existence, yet because of these changes, or perhaps because of an existing internationalist outlook, they share a clear antipathy towards the law's traditional structural framework. Thus, on the one hand, the existence of jus cogens norms, purporting to be non-negotiable, is justified because they are accepted in positive law, they are the result of conscious choice on behalf of the international community (of states). For Simma, for example, the move from a doctrinal debate towards a workable law of jus cogens accepted in treaty texts is taken as evidence of its universal acceptance.Footnote 74 But, on the other hand, this is taken as the justification for his assertion that states should never be able to escape these norms – they exist objectively in contradistinction to the traditional paradigm of voluntarist law. This then justifies the move towards more centralized enforcement, with Simma criticizing the existing structures of state-led human rights enforcement as equivalent to the ‘foxes guarding the chickens’.Footnote 75
Similarly, much evidence is put forward by Tomuschat suggesting both the existence and acceptance of fundamental peremptory norms and community interests, which leads to the conclusion that they operate autonomously, ‘independently of the actual will of the parties involved in a legal relationship’.Footnote 76 This then, again, proceeds to the point of the need for enhanced, centralized enforcement. For Tomuschat, ultimately, it is in enhancing the institutional dynamic of international law that the ‘substance’ of a true international community lies.Footnote 77 The key message that emanates from both theses is that the purported changes are occurring much faster in normative terms than they are being matched by appropriate institutional machinery.Footnote 78
In many ways it is uncontroversial that, if states will into existence non-derogable norms, they should be held to account if they then derogate from them. For Simma and Tomuschat it seems that there are no substantive goals, no purported values which cannot be shown to flow, however obliquely, from a broad consensus, so it seems that there is no problem for them to go on to promote more muscular enforcement of collective authority. Indeed, it does not require a great leap forward to suggest that it would be preferable that such norms were better enforced, particularly to make more relevant and effective the changes already under way.Footnote 79 But things become more problematic when the argument moves from the ‘is’ to the ‘ought’ in this way. On the surface it would not seem to require a radical transformation of the international legal order, only to make more concrete stated intentions, but if interstate consensus is a poor basis for enforcing those interests then what is a probable alternative? It is in this respect that the argument pushes for greater centralization of authority, of hierarchy and compulsory enforcement, but there are no details as to how this could work other than through utilizing powerful states, which seems to be most unconstitutional, standing perhaps in opposition to other ‘constitutional’ projects aimed at restraining the perhaps overly unaccountable freedom of international organizations.Footnote 80
This is interesting, as it seems that what might be a necessary tension or symbiotic relationship between consent, or at least consensus, and the law's purpose and direction, which seemed so intrinsic to the nineteenth-century project, simply has to be resolved in favour of purpose. To push forward and protect these community interests emerges as the only acceptable alternative to Simma's (somewhat loaded) description of Westphalian bilateralism.Footnote 81 Thus, for instance, Simma describes how institutions should develop themselves into the master of their treaty, to control state behaviour so that the regime can make effective the protection of fundamental rights and other shared interests.Footnote 82 Yet, like Tomuschat, in his desire to convince and to avoid utopian claims and face up to realpolitik, he seems to disavow natural law, substantive conceptions of the ‘good life’. His approach must remain grounded within, and legitimized by, a consensual, voluntary conception of political authority. The law (and thus its institutional enforcement mechanisms also) must be justified by, willed into existence through, state agreement, but then must somehow exist apart from this agreement in order to be enforced against states. This is also evident when Tomuschat stresses the need for the law's effectiveness, and the development of its enforcement capability, even in the face of state disagreement; as he argues,
In order to improve the real thrust of . . . responses [to breaches of international law] modern international law is seeking to institutionalize mechanisms according to which community institutions enjoy or would enjoy the power to impose sanctions on a wrongdoing state.Footnote 83
This gives rise to a peculiar situation where it seems that the law is giving itself institutional mechanisms and not that states are collectively uniting for this purpose. There is a sense of dislocation prevalent in the text in this respect. For instance, in Simma's consideration of the development of treaty-making practice from bilateralism towards a richer consensual approach, he contrasts these seemingly positive developments with a conception of states as self-interested, rational actors, as if international law has somehow developed, not in opposition to, but certainly in spite of and antagonistic towards, the national interests of states.Footnote 84 The structure of both their arguments, in fact, particularly as it applies to community interests and peremptory norms, allows Tomuschat and Simma to endorse the legitimacy of a structural change in international law willed by states themselves, while at the same time dislocating these changes, suggesting their imminent necessity apart from state will, rooted – just as in the past – in the transcendental character of international law itself. This gives the narrative of progress an autonomous, automatic character, which then justifies a structural shift away from consent.
And thus, just as before, these tensions only resurface. As seemingly moving of itself, international law must be pictured, like the international community, as something both encompassing (its representational legitimacy) but also autonomous from states (its purposive legitimacy). One can imagine this to be like the public-interest construct often employed in domestic law, for example a consciousness (the ‘people’) or a hypothetical good (public interest) represented by the appointed spokespeople (the lawyers).Footnote 85 The international community seems artificial; yet, because the decentralized nature of international law must simultaneously be grounded in the real community of states, in the decision-making processes of their mutual interrelations, this artificiality is reinforced through consensual argument.Footnote 86
However, this international community (simultaneously apart from yet encompassing states) appears only to embody hypothetical common interests of states, which are cognizable only by aggregating and interpreting the interactions between particular interests and therefore undermining the very basis of liberal legitimacy (freedom, rule determination, etc.) which structures the decentralized nature of law to begin with.Footnote 87 This is interesting as it is taken as the only legitimate starting point for an analysis of the changes presented. To illustrate with reference back to the two texts, Simma's idea of international community rests on a ‘consensus according to which respect for certain fundamental values is not to be left to the free disposition of states individually or inter se but is recognized and sanctioned by international law as a matter of concern to all states’.Footnote 88 But can that which is ‘a matter of concern to all states’ really be anything other than a hypothetical construct if juxtaposed against state will in this way? To acknowledge this as progress (the need to restrain sovereignty through more effective institutions), Simma acknowledges that states are part of this international community, but, at the same time, strangely, he claims that they do not really share in the broad values of the community in the sense he relates this.Footnote 89 This is somewhat illogical if we take these arguments on their own terms; something more seems necessary to justify this argument, just as it does for the structural ‘hierarchization’ which Tomuschat purports is occurring and is somehow unstoppable.Footnote 90
Alas, as in the nineteenth century, there is a tension unearthed as soon as the enforcement or institutional angle is pushed forward, seemingly in opposition to the consensual foundation. Nevertheless, as before, this paradox or perhaps even contradiction does not seem to trouble the two commentators, as there is still a sense of certainty and self-evidence in the claims they make. These are real, unfolding events. It is history which is vindicating the claims they make, not philosophy after all.
3.2. The abandonment of legal philosophy and the certainty of juridical consciousness
One may legitimately question whether rooting explanations for the future development of international order in the context of unfolding, positive developments escapes the need for some theoretically grounded justification for that future vision. Perhaps it may, but then we are offered no justification for why we should accept Tomuschat's explanation or interpretation of these events over any other. Perhaps in wanting to address the concerns of realists, sceptics, and others who question the possibility of law determining state behaviour, rather than vice versa, and perhaps just to avoid the utopianism, naturalism, or cultural bias of presupposing any substantive aims for international law, the constitutionalist agenda builds on evidence of what states actually do. But in doing so it loses any normative force in its argument: it cannot provide the ‘why’, the justification for this as a constitutional development and not merely power politics masquerading as universal commitments. If, hypothetically speaking, states later adopt postures opposed to the values enshrined as jus cogens, there is no ground for critiquing this change if a positivist, pragmatic, or even sociological perspective is adopted.Footnote 91
To take an analogous but related example, the positive proof that human rights have been accepted by states as principles within numerous multilateral treaties does not of itself provide a moral justification for upholding those rights as foundational values which are non-negotiable, let alone negate the need for a theoretical explanation of how conflicting rights and interests are to be reconciled and conflicts resolved.Footnote 92 We accept that the law either is moving towards an unstated purpose or is based on some foundational non-negotiable norm, but in the former case rights become only instrumental to social ends, and in the latter case the argument based on consent is entirely superfluous to justifying the norms in the first place. Merely developing a consensual basis of authority cannot provide a sense of foundational normativity. As Roberto Unger has claimed,
If we treat . . . rights as somehow derived from the circumstances of social life, we are forced to explain how evaluative standards can be inferred from facts. If, on the contrary, we present the rights as simply prudent means to achieve agreed-upon ends, like peace and prosperity, we have to explain how we go about explaining divergence from these ends and what happens when, in a particular case, the purpose seems to be better served by disrespecting the right.Footnote 93
This may be familiar terrain, already well trodden, but there seems to be a great deal that remains unclear which cannot be resolved merely by pointing to the emergence of positive developments in the law. There is an avoidance of clarity of what it is about these trends which makes them distinctly constitutional.Footnote 94 To avoid naive analogy, which may obfuscate as much as add clarity to the processes and potentiality of international law, constitutionalization as a deductive, normative claim would seem to require some independent justification based on the specific structure and content of international law. If, indeed, it is changing, then it must place a burden on those capturing this change to justify this in theoretical terms, if only because of the loaded baggage which liberal doctrines of constitutionalism themselves bring with them.Footnote 95 As Walker has said,
Just because international law displays, or may be interpreted as displaying, an increasing doctrinal concern with certain substantive values, or an increasing institutional depth and efficacy, or an increasing universality of norm application, is of course in and of itself no authority for the continuation of these trends . . . In the final analysis . . . [these] ‘constitutionalizing’ trends have to be premised upon some distinctive feature of the trends themselves, and cannot be reduced to the tautology that they contribute to or are interpreted as contributing to the formal intensification or advancement of something called international law. Arguably, if all the constitutional label can provide is an unjustified patina of authority, it is either useless, or, to the extent that it deflects attention from the task of independent justification of the structure and content of international law and lends comfort or confidence, worse than useless.Footnote 96
It would seem, therefore, that to make the claim that states can will into existence non-derogable norms, which themselves then change or reorient our understanding of the basis of obligation in international law, requires a more profound normative claim. It suggests either that such norms were there all along (naturalism), regardless of consent, or, at least, that there is something peculiar about the norms themselves, rather than how they are created, or the moral weight that Simma, Tomuschat, I, or anyone else might attach to them. The argument based on acceptance in positive texts or their (still somewhat limited) judicial application does not seem enough. Yet if it is not, then this seems to bring us back to substantive values or purpose, not to consent. This might necessitate some kind of explanation of a minimum content of natural law, for instance, as Hart formulates this as essential to the foundation of a legal community.Footnote 97 Alternatively, and more likely, given the respective backgrounds of both authors, this could require a deeper systemic reading of the law along the lines prefigured by Kelsen and developed by Verdross.Footnote 98 If international legal obligation no longer rests on consent, then a logical line of ‘constitutional theory’ might develop Verdross's conviction of a foundational core of ethics or morality which binds society together.Footnote 99 But in this respect there is little revealed in the texts, and that which is revealed perhaps adds to, rather than resolves, this conceptual ambiguity.
For Simma's part there is little in the Academy lecture itself to clarify his theoretical position, but an understanding of his views can be garnered from his contribution to the European Journal of International Law's symposium in honour of Verdross in 1995.Footnote 100 In particular, in a reference to the theoretical foundation of norms other than those arising from custom or treaty, such as general principles of law in Article 38 of the PCIJ Statute, he outlines the difficulties in reconciling these principles with a strictly positive basis in law.Footnote 101 An alternative basis would of course be natural law, as it would be for peremptory norms also. However, at an earlier point in the article, in a revealing paragraph, he disavows natural law altogether, claiming that his is a rather ‘eclectic’ approach to legal philosophy:
Within this spectrum of functions, natural law arguments fulfil the task of setting limits to the validity of legal norms, of depriving them of their claim to authority, whenever they evidently and grossly contradict the postulates of justice. But to me it does not matter whether, ultimately, such limits are conceived in legal or moral terms; I consider the ‘conscience of mankind’ or ‘elementary considerations of humanity’ imperative for international law, irrespective of whether these phenomena are cast in the language of natural law or not.Footnote 102
This seems unsatisfactory as a theoretical underpinning, but Simma is not alone in this respect. When considering the basis of authority in the international system, Tomuschat claims that world order is in a process of transition between two competing Grundnormen – the lawyers’ task is to drive the transition – from a foundation of order characterized by sovereign equality towards one founded on respect for fundamental human rights;Footnote 103 or as he earlier describes this: an order existing ‘between the traditional model of sovereign self-sufficient states and a world with a hierarchical structure, topped by a single command structure’.Footnote 104 Here, rather than make sense of the law systemically within either order or from an alternative perspective, law seems to exist only in its intermediate nature; it takes its normativity only in its progression. The lawyer's purpose seems to be to further a mysterious process of transition between two divergent, even oppositional orders, both of which – as emerged above – have been (and, arguably, can be) justified under liberal political doctrine.
Tomuschat seems to reject the instability and tensions of an intermediate state of affairs, between sovereign consent and enforcement of community interests, and calls for greater centralization of authority. But this pushes him in one direction which he equally purports to reject. Without explaining how to resolve a conflict between the centralization of authority and decentralized voluntarism – which legitimizes his claim in the first place – he argues that international law may have ‘overburdened itself’, and is facing an ‘uphill struggle’,Footnote 105 by which he means that in regulatory terms, law can do little without appropriate enforcement machinery. Yet without any other detail on how international law can develop in the direction of centralization and enforcement while somehow sustaining its non-hegemonic consensual legitimacy, he can only opine that compulsory enforcement mechanisms must be the last resort.Footnote 106
Thus both authors suggest that recent changes are threatening the nature of the system, and both suggest the need to continue to move in this direction; yet the thrust of their argument, the very strength of their normative claim, comes not from theory, philosophy, or some substantive conception of justice, but from the real, willed change to which we must open our eyes and which we must embrace. In this sense the claim to strengthen the law further is based only on legal process (jurisdiction, enforcement, etc.) rather than on its source or substance. One can consider this vis-à-vis Kennedy's structural critique of the way in which mainstream international law moves from an inter-sovereign subjectivity bias in the sources and substance of the law, to a bias towards objective, autonomous jurisdiction and restraint in its processes.Footnote 107 In justifying the emergence of the norms which are purported to be non-consensual, lawyers must stress the collective will which separates their binding nature from individual choice, but ultimately must place stress on the consensual nature of the law's source in order to underline its legitimacy.Footnote 108 However, in terms of the processes of application, organization, and enforcement, the lawyer must distance himself from the sources, ‘must refer only to facts and practices, precisely not to the consensual authority of legal sources’,Footnote 109 or, as he later puts well,
[P]rocess establishes itself, sustains its independence, by projecting that which it would achieve elsewhere – back to sources or onward towards substance. As a result, process is able to refer to, even subtly determine, both sources and substance by a continual reference towards them – a reference which leaves them always at a distance.Footnote 110
This appears as a reflexive movement caught up in an oscillation between ascending (apologist) and descending (utopian) justifications,Footnote 111 which is central to the core mainstream legal approach, and thus intrinsic to the surface legitimacy of the constitutionalist claim to be taken seriously.Footnote 112 This facilitates the move from empiricism to normative assertion, methodologically speaking, in its combination of inductive and deductive reasoning.Footnote 113 The inductive method illuminates by claiming that a constitutional reading can explain apparent structural and normative shifts and trends better than other theories, while deductively, and thus normatively, allowing the explanation that the ‘constitutionalization’ of international law provides the best method of securing ends which themselves are justified by this reading.Footnote 114 As Walker describes this,
The common rhetorical purpose seems to be to lend additional gravitas to the particular trend or trends in question. In a circular or boot-strapping logic, it is the documentation of the supposedly progressive trend or trends which justifies a ‘constitutional’ attribution, and it is the constitutional attribution which then both dignifies the existing state of affairs and authorizes further progress.Footnote 115
It would be easy – too easy, perhaps – to depict this (rather problematic) combination of realism and idealism solely in terms of Koskenniemi's idea of an oscillation between apology and utopiaFootnote 116 when, in fact, a more subtle ‘play’ or movement is perhaps discernible. One is tempted to term this a social, or even sociological, conception of the law.Footnote 117 Attempting to locate the law in the actual practices and interactions of states and non-state parties, the constitutionalist narrative attempts to formulate a position which rejects the utopianism of natural law (or perhaps now the claims of Eurocentricity, or Western neo-imperialismFootnote 118) but equally the unreality of positivist formulations of law (Article 38 sources, state sovereignty as absolute, etc.). However, Amin von Bogdandy, commenting on Tomuschat's paper, describes its author as an ‘enlightened positivist’, by which he means that
He is aware of the shortcomings of international law as an instrument of social order, as well as the rational limits of legal formalism, the established legal reasoning. Nevertheless, he sees this established form of legal reasoning as the best way so far for lawyers to live up to undisputed postulates on how to carry out their profession. Moreover, social theory and political philosophy, in particular, have never proved able to lead the debate on ‘right or wrong’ more effectively than the established paths of legal reasoning.Footnote 119
This seems to chime somewhat with Simma's rather pragmatic, eclectic approach to theory, and the rejection of explicitly naturalist arguments such as might only cause controversy. This agenda is therefore caught somewhere between ‘political realism and intellectual imagination’,Footnote 120 or, as Werner describes it,
[I]nternational constitutionalism is located in between ideals and reality. It claims to rely on actual developments in international law, but is also a normative, programmatic project: if the facts do not match constitutional ideals, advocates of constitutionalism emphasise the need to change the facts rather than the need . . . to water down the ideals of internationalism.Footnote 121
But is this really unique to an explicitly constitutionalist agenda and not simply a propensity in the wider mainstream of international law, a central urge which makes law not merely instrumental to sovereign will, but also a reformist, cosmopolitan project?
The light between the two may be dimmer than we imagine.
4. Constitutionalism as mainstream international law: variations on a theme
It is no surprise, given his evident enthusiasm for embracing the constitutionalist project as an alternative to US unilateralism, that Habermas, like Tomuschat, advocates strengthening the independence and therefore the effectiveness of institutions such as the UN Security Council, somehow by isolating them from the biases of national interest.Footnote 122 But, just like Tomuschat and Simma, he offers no indication of how this could be achieved, how to strengthen a truly universal international law without making its institutions more instrumental to particular interests. Perhaps this is to be expected. Habermas is not an international lawyer after all. Nevertheless, noting his commitment to discourse rather than to some imposed, anti-pluralist liberal order,Footnote 123 his recent enthusiasm for this project is still somewhat surprising. But at the risk of oversimplification and doing a disservice to his overall philosophy, my aim is not to challenge this on its own terms but nonetheless to pick up on a central theme which echoes from the past and resonates now with the broader constitutionalist agenda in international law which he identifies. To put this bluntly, it is the idea that international law's recent history has been characterized by the steady secretion of powers to supranational authorities in the areas of peace and human rights, and furthering this agenda is synonymous, in whole or in part, with the constitutionalization of the international legal order.
Whether the terminology of constitutionalism is adopted explicitly or not, it still seems that this narrative sustains the very idea of progress in international law. Consider, for instance, the positioning by Christopher Weeramantry, a former judge of the International Court of Justice, of this idea as part of the inevitability of history's progression:
Through gradual relinquishments of authority, numerous rights that form the bundle of rights we call sovereignty will be voluntarily passed on to the relevant international agencies or authorities. The areas of relinquishment will increase. The international authorities will gain in prestige and efficiency. The process, spread over many years, will be gradual. Indeed the experience of the European Community will provide a very strong precedent.Footnote 124
For sure, as a lawyer Weeramantry is non-Western,Footnote 125 progressive even, but is still nonetheless a central rather than peripheral figure, influential rather than radical, in the reformist spirit of Lauterpacht as much as Tomuschat or Simma. As for our nineteenth-century predecessors, there is a sense of continuity in terms of juridical certainty, of voluntarist legitimacy grounded in a healthy dose of cosmopolitan enthusiasm. All the elements are there: the seemingly autonomous progress of law, yet the voluntarist legitimacy of the transformation, which is, in turn, ensured by the certainty of the model of progress experienced through the process of European governance. The reference to European experience is explicit here, but the inference much more subtle. Just as lawyers in the past, Weeramantry puts distance between himself and the utopian dreamers of a more distant past, claiming that a process of weakening state sovereignty will not lead to the creation of ‘a super-sovereign that will dominate the rest’; rather, the precedent set by European institutions shows how ‘larger and more dramatic changes will ensue as the world is knit closer together by a successful track record on the part of the international agencies already in operation’.Footnote 126 One is reminded of Maine's or Lawrence's evolutionary certainty, their faith in the example set by interstate alliances such as the Concert of Europe, or even Fiore's novel precedent established in the Hague Conferences, more than a hundred years previously.
As such, if across the West we are now no longer as certain as our predecessors were about the inevitability of historical progress, or exactly what that progress will signify,Footnote 127 it still seems that history's supposed demise has to some extent vindicated the values and liberal organization we hold dear.Footnote 128 For instance, Weeramantry's reference is not that the world should emulate Europe directly, but, more definitively, that there is a taken-for-granted idea of international legal progress, the reality and possibility of which the more integrated and centralized European agencies are only demonstrating. This still suggests international law's incompleteness without institutions more like domestic constitutional organs, and still reads the progress narrative as a move from politics to law. Consider Tomuschat here also:
[T]he litmus test for the fruitfulness of the concept of international community must be whether, impelled by its driving force, rules, procedures and mechanisms have been established with a view to vindicating and enforcing the common intent recognized by all states. Should nothing of specific legal significance have materialized, we would know that we still find ourselves in the antechamber of politics, waiting for the law to see the light of day.Footnote 129
This is all very familiar. The concern is, above all else, for institutional enforcement; the progression is from politics to law. But if this is not just a specific, or recent, but a more long-standing mainstream concern – a taken-for-granted standard or benchmark which defines progress in international law and organization – then this still leaves the question of why there has been such recent enthusiasm for an explicitly constitutionalist agenda since the end of the Cold War. Why is this now proffered as the only alternative to the moralization and instrumentalization of the law under American empire? My feeling is that this is a call to arms, a reassertion of faith in the project of international law, not to lose the legitimacy which comes from process, from multilateralism, by pushing the purpose or the substance of the law too far in opposition to this foundation. It avoids overt moralization by returning to the same benchmarks of progress. Rather than theorizing explicitly about the ‘good life’, it builds on law's apparently inbuilt quest for its own reinvention in the restraint of sovereignty. Just as before, there is a desire to position the normative claim of an acceptable future in real, unfolding changes in the discipline, but it must still promise something more: it must not give up on purpose and substance altogether. As Franck claims, even in this supposedly ‘post-ontological era’, we must still prove that the law is ‘effective’, ‘enforceable’, even ‘fair’.Footnote 130 We must still respond to the admonishment of the realists, the ghosts of Austin, while protecting our fragile victories from those who would seek to undermine them, to undermine the supposedly pluralist legitimacy which comes from the consensual foundation of the law.
Perhaps what may divide the West now is that we Europeans, or at least European international lawyers, know that our values, our human rights, and our commitments to democracy, for instance, cannot be vindicated on their own terms. After all, it is history that has taught us that we cannot impose them through any sense of cultural superiority.Footnote 131 It would be easy to single out the constitutional agendas of European international lawyers, such as De Wet or Petersmann,Footnote 132 for their belief in the universality of human rights as a foundation for international order,Footnote 133 particularly so when explicit references are made to experiences of European integration or to a new rights-based ‘ordre public’ spearheaded by the European Court of Human Rights.Footnote 134 However, when references are made to the experiences of European integration as an impetus for furthering international organization, it is often not to shared European values or consciousness, to the myth of demos or telos, but only to structures, or to process,Footnote 135 to the self-evident benefits of ‘subsidiarity’ for instance,Footnote 136 perhaps forgetting that these might only be instrumental mechanisms towards a larger purpose. As Weeramantry claims, international lawyers, as ‘keepers of the international juridical conscience’, are ‘committed to such principles as reciprocity, good faith, non-retroactivity, proportionality and natural justice’.Footnote 137 In other words, just as before, some issues seem to be off the agenda for discussion; they are already taken as universals, vindicated by history and experience.
However, if constitutionalism is about furthering the processes rather than the substance of the law,Footnote 138 then deep down are we not confident, if not always absolutely certain, that these processes will vindicate our world view eventually? This is why American empire is pictured as so threatening to the historical ideal, and this is why one can sense the anxieties of Dupuy, for instance, as he castigates Koskenniemi for questioning the motives of European international lawyers in their faith in a promised international rule of law:
[I]t is perhaps not the right moment to be encouraging European internationalists to doubt the sincerity of their own convictions that favour the rule of law at the international level. It is enough simply to remind them that their actions in the promotion of universal values, which have now been integrated into the rules of positive law, must always be carried out resolutely but with vigilance, without naivety but also without compromise.Footnote 139
But is Koskenniemi not right that the commitment to law and to organization as ends in themselves may be just as hegemonic, just as instrumentalist, as any ‘well-meaning’ neo-liberal agenda?Footnote 140 If one focuses on what unites rather than divides the West – or at least its international lawyers – the difference is perhaps not as vast it seems.
If there is now uncertainty, an acute anxiety, then, as Habermas suggests, the West's division manifests itself over how to realize long-standing ambitions, ‘whether via the legally established procedures of an inclusive, but often weak and selective, world organization, or via the unilaterally imposed decisions of a well-meaning hegemon’.Footnote 141 The means may be different, but we may still share a similar vision of a new world order. This is perhaps a crude oversimplification of collective ambition, not to mention an overly divisive distinction between Europe and the United States. Nevertheless, this still hints at real underlying tension which persists in the liberal underpinnings of the law, in its promise of some substantive goods – of a liberal peace, of justice and security, perhaps now even of democracy – and lawyers’ commitment to a more procedural form of justice, a form of pluralist formalism.Footnote 142 My intuition therefore is that the perspectives that Habermas claims divide the West are actually different sides of the same coin: variations on a theme of making sense of a liberal doctrine of politics, which ingrained this fundamental tension into the law in the first place.
Let me explain further what I mean. David Kennedy describes a post-Cold War continuity in international law's mainstream, a repetition of an agenda of renewal, where hopes and anxieties come and go, uniting and dividing commitments in each post-war wave of enthusiasm, but still with a feeling of the bounded possibilities of the whole enterprise of international law.Footnote 143 Each generation must differentiate itself from that which holds it back: a past of apologist instrumentalism or utopian naturalism, or a present which represents similarly dangerous paths to follow. But in that which the mainstream rejects or reflects back as dangerous, it moves the progress narrative forward, united by a sense of purpose and project, but also with a shared feeling of the limitations and bounds of possibility in the renewal of this project. Arguments repeat and ghosts from the past resurface, but the discipline as a whole moves forward without seriously questioning certain core assumptions: ‘that we have plenty of politics but only very little law’, that there is ‘an orientation to a past of sovereign states and a future of international law’, and that through (re)defining that which has gone before, and that which is threatening to the project, we may still be ‘confident that we will arrive in the future with history at our side’.Footnote 144 Within this strategy of differentiation, there is created a feeling of centre and periphery, a ‘mainstream’ and an ‘other’, which mutually define and sustain each other, creating normality, self-evidence even, in that which is never open to discussion as the arguments continue to play themselves out.Footnote 145
If the constitutionalization of international law is a particularly European phenomenon, then it is through a similar discursive strategy of differentiation,Footnote 146 still centred within a Western legal tradition where certain background assumptions are simply off the agenda. In other words, in its fixed benchmarks and points of reference, it builds on this taken-for-granted progress narrative. As Miller and Bratspies define this, it is ‘a collectively understood movement toward greater levels of integration, organization and co-operation . . . indicative of the state of international law, where background assumptions often go unnamed, and there is a presumed sense of shared directionality’.Footnote 147 But in reifying, or even naturalizing, the sense of inevitability in this progressionFootnote 148 – giving history a cosmopolitan telos – we as Europeans must express our own ‘universal’ and its ‘other’; we must respond to, and reflect back, the idea of US instrumentality, suggesting law's immanence and necessity as an autonomous end in itself. But this may still only mask any underlying normative project and substantive sense of the ‘good life’. In a quite fundamental way, the very idea of a (European) constitutionalist approach to international law avoids philosophical controversy in its projection or juxtaposition against the alternatives of instrumentality, informality, or moralization of international law.Footnote 149 The apparent self-evidence of its assertions lies in the manifest absurdity of the alternatives: enforceable law rather than weak law; autonomous normativity rather than selective instrumentality; community and integration rather than isolationism and exceptionalism. But the alternatives, those which appear so threatening and hegemonic, may only be another variation on a liberal theme, or the dark side of cosmopolitanism and liberal internationalism. After all, there are never any other alternatives on the table. It is in this conception of a shared project that I speak about consciousness and it is this bounded possibility, despite its oppositional nature, which makes me feel that the apparent moralization and instrumentality of US international law is so very necessary in sustaining the legitimacy of the European alternative.
Thus I feel uneasy when Tomuschat reassures us that community interests should not be left to the arbitrary whims of statesmen. For him the answer is simple: ‘Discourse on what is right and wrong must be crystal clear and should not fall into the hands of a few magicians who invariably are able to prove that law and justice are on their side.’Footnote 150 Yet are lawyers not equally magicians here,Footnote 151 crafting a collective future using the structures of international legal argument? It is in this sense of the taken for granted where the lawyer's role becomes crucial, pivotal rather than peripheral; they must sustain, interpret, and ultimately reinforce that which is self-evident, and thus maintain the sense of autonomy in a movement towards some promised international rule of law. Without their input no advance seems possible; a commitment to a similar liberal world-view could equally explain these developments in instrumental terms, as power politics masquerading as law – and, indeed, often does.Footnote 152 As Korhonen observes of the liberal mainstream's propensity for empirical justification, this approach would amount to ‘extreme conservatism if it was not for the subjective mind making predictions as well as explanations of past behaviour . . . [finding] causal patterns and [guiding] future behaviour through expectations that it has chosen to vindicate’.Footnote 153 It is for this reason that Skouteris describes the lawyer's role as being like that of the ‘organic intellectual . . . as equally and terribly important in the production of culture, as translator and converter of ideology into a coherent world-view and the necessary doctrinal and institutional machinery for its implementation’.Footnote 154
Thus, within the explicitly constitutionalist, but nonetheless mainstream-reformist, agenda – in the movement from empirical realism to normative idealism – there are both ghosts of the past and shadows of a more explicitly liberal agenda.Footnote 155 Nevertheless, reflecting backwards in an oppositional way allows us to differentiate rather than make obvious any continuities; to explain through punctuating breaks between the old and the new.Footnote 156 It allows us to show the present as the final or penultimate episode in a narrative that makes sense only by relating ‘progress’ to what is now known, or at least what manifests as self-evident, or merely taken for granted. Looking further back in time, to the pre-institutional, a break is easily posited with a past of old passions and diplomacyFootnote 157 and the twentieth-century's embrace of the rational, legal, and institutional progress of the future.Footnote 158 This ‘unregulated’ past thus precipitates the explosive growth in international law and institutions in the new century,Footnote 159 which itself must be overcome because of its association with that interstate past. The constructed narrative allows the association of this past with the political, the institutional future with the legal,Footnote 160 as politics itself is relegated to the national interest and the national interest to the anti-cosmopolitan.Footnote 161 The lawyer develops their own take on history, ‘insisting that [their] own age is the ultimate, or at least penultimate, stage of the whole process’,Footnote 162 meanwhile continuing to ignore the fact that the telling of the progress narrative itself is an inseparable part of constructing an acceptable kind of present and projecting a particular kind of future. Still the narrative continues, seemingly impermeable to political interference.
However, this still creates a tension in the lawyer's role. Throughout this narrative the lawyer must appear to act both neutrally and catalytically, bringing together ‘human effort’ and ‘evolution’, while history itself is somehow an uncontainable force.Footnote 163 This is revealing, as Outi Korhonen explains through reference back to Maine and his followers, suggesting broader tensions in the way in which lawyers interact with their subject of study.Footnote 164 To act as a neutral technician in some historical process – as Skouteris puts this, as a ‘scientific observer of human history’Footnote 165 – only makes sense if the desired end, the future of international law, can itself be taken as settled and beyond disputation.Footnote 166 Otherwise it begins to look more like ‘a program of assumptions fixed on linear trajectories between points that are outside the map (exogenous) and thus cannot be justified by it’.Footnote 167
This is why, ultimately, I am hesitant about claims of promised new world orders which often take a ‘short cut to the good life without appearing to realize that the good life is itself controversial’.Footnote 168 But perhaps it is because the ‘good life’ is so controversial that something more purposeful is going on here. As Pemberton observes in this regard,
The rhetoric of new orders is a way of responding to perceptions of crisis and an attendant sense of social insecurity. However, predictions of dramatic social transformation coupled with attempts to generate excitement about possible tomorrows are also strategies of persuasion with the aim of rearranging intellectual and political priorities.Footnote 169
As such, ‘progress’ can only really make sense through (somewhat selective) empiricism and interpretation by unstated but ever-present standards of the public good, which must be vindicated by hypothetical interpretations of claims to real community. This is why history always appears to proceed enigmatically: law is regenerating itself towards its own inevitable destiny, the international lawyer merely tinkering at the margins.
If, as I claim, a liberal-juridical consciousness persists in international law, then these shared background assumptions and the narrative of progress, which seemed at one time so obvious, can now only simmer (unspoken, yet ever-present) under the surface of the law. Whatever future is pictured, the battle to capture and control it must still be played out within the tensions that have been ingrained in the law from the nineteenth century: purposively, its ‘uneasy balance between progress and pluralism’;Footnote 170 ideologically, between its Eurocentric origins and its purported universality;Footnote 171 and structurally, in terms of objective normativity within a system founded on consensual authority.Footnote 172 These tensions are intimately connected and may be frustratingly necessary, even definitional, to the very identity of something we call international law.Footnote 173 To push them, to move in the direction of something overtly purposive, requires the narrator to show how one side can legitimately be overcome, or they will simply have to continue to mask or manipulate the existence of the tension in the first place.Footnote 174 Still, as Oppenheim once said, ‘our science will not succeed . . . unless all authors . . . make an effort to keep in the background their individual ideas concerning politics, morality, humanity, and justice’.Footnote 175
5. Conclusion: that which goes without saying and that which must go unspoken
It is this then, that which goes unstated, which is most revealing of this continuity in liberal-juridical consciousness. It appears in that which is taken as natural or self-evident, that which is called progress, without ever revealing the future to which this progress leads. It sustains a collective sense of cosmopolitanism, even when postmodern anxieties begin to shake or divide us. In fact, in this paper I have tried to outline how this continuity has revealed a deep, systemic constitutional connection since the nineteenth century, which has in many respects come to define and limit the theoretical imagination of the discipline. This connection embedded a liberal world-view in the very substance and direction of international law, creating a paradox which manifests in a sense both of shared purpose (a liberal world order) and of shared limitation (of liberal freedom). This is by no means absolutely unique to international law, but it helps to explain the apparent divisions within the discipline which actually sustain and reinforce each other – without ever revealing what is taken for granted by each.
As such, the constitutionalization narrative seems built into a fatality within the academy, a certainty or conviction which itself seems ingrained in international law's history. The very idea of progress and transformation in the law seems irresistible, yet unjustifiable other than through historical vindication or reflecting against unacceptable alternatives. However, if the recent and supposedly constitutional transformation of international law is not grounded in an explicit legal philosophy, other than this sense of progression – indeed, of a progress narrative so central to mainstream tradition – then one must analyse the claims of its proponents on their own terms. This seems to offer us no reason why we should accept Tomuschat's or Simma's conception of a new world order over any other.
In fact, rather than being grounded in any explicitly ethical foundation, the recent enthusiasm for constitutionalism in international law seems merely a more purposeful scratching of a mainstream itch. The purported need for international law to embrace seemingly obvious normative and structural change only responds to long-standing anxieties which re-emerge after each wave of post-war enthusiasm, reasserting the mainstream project and redefining its periphery, but not straying too far from the overall commitments of the field. Europeans are marking out their territory as a call to arms, to keep the faith and not to lose sight of core objectives, by questioning the convictions or sincerity of the representatives of the global public consciousness. They are reasserting their mainstream and casting out the critical voices of the periphery. This is how an explicitly constitutional narrative arises in the context of a supposedly ‘divided West’, and this is why Dupuy castigates Koskenniemi for his cynicism at this crucial time, why he calls for European internationalists to unite in the face of US hegemony,Footnote 176 and, ultimately, why he pleads for domestic and international judges to combine their mental ‘architecture’ towards our collective project of securing the unity and integrity of international law.Footnote 177
This, of course, was a project which was begun with so much vigour, so many years before, which is perhaps why I feel that constitutionalism now is only about faith and commitment. It is a political manoeuvre in the field, as much to reassert these commitments and soothe anxieties as to explain any unfolding reality. It taps into ‘the inferiority complexes of the international lawyer’, casting a legitimizing veil, while still promising ‘to turn a regime into something approximating real law’.Footnote 178 For the international lawyer it is thus comforting for its familiarity. And it is familiar because it has always been there: in the incomplete nineteenth-century project, in the unspoken benchmark of progress.
Ultimately, therefore, it is this sense of the familiar and the intrinsic which I have been seeking to develop here, to highlight how assumptions, anxieties, and tensions became buried beneath the surface of the positive, ‘modern’ law of nations that we inherited from our nineteenth-century professional ancestors. Within the bounded possibilities created by oppositions and reflections on these tensions, the mainstream constitutional agenda needs no theoretical grounding, and its authors appear not to have to content themselves with a mere descriptive exposition of current trends. This makes me question whether Tomuschat's ‘enlightened positivism’, or Simma's promotion of a ‘worldwide social consciousness . . . that “communalizes” and “publicizes” far beyond the traditional rituals of governmental interaction’,Footnote 179 are so far removed from more openly liberal agendas. Think of Tom Franck's ‘fairness’,Footnote 180 for instance, particularly his juxtaposition of a ‘rhetorical’ and an ‘imagined’ international community,Footnote 181 or Anne-Marie Slaughter's disaggregated but ‘common judicial enterprise’.Footnote 182
In fact, when one dislocates that which is taken as natural, inevitable, or vindicated by history, the apparent automaticity of the constitutionalization of the law begins to look just as contingent and just as instrumental as any, more committed, explicit liberal agenda. Certainly, there is a shared sense of dissatisfaction with the sterile rituals of traditional interstate diplomacy and organization, but also, methodologically speaking, there is a common approach which is both descriptive and normative at the same time,Footnote 183 raising particular questions about the leap from observation, through interpretation, towards final normative assertion.Footnote 184 If there is a difference between the two then perhaps it is that Slaughter takes the values as given; she looks inwards to the United States and sees the world there, as a utopia already come true.Footnote 185 Others, particularly Europeans, are hesitant to extrapolate values in this way; they look to the world first but perhaps, however unconsciously, they see Europe there still.
If there is a price attached to this then it is surely a price of forgetting. Kant had to embrace empire before he could embrace the universal of the cosmopolitan.Footnote 186 But maybe he was – like Tomuschat, Simma, Slaughter, and so many others – only trying to make sense of the world around him. Nevertheless, his sense of conviction, of the certainty of the need for his particular project, came not in making sense of the world around him, but in castigating the injustices perpetrated by it.Footnote 187 His was a critical project which had to be juxtaposed against reality rather than explained by it. If there is something which seems to be missed in our current enthusiasm for constitutionalism as ideal model for world order, it is this sense of critical potential: that which would allow particular, even everyday, struggles or injustices to be enunciated in the language of the universal. This sense of critical engagement was not lost completely on the nineteenth-century reformers, but what we have taken as their legacy now is perhaps just their certainty and introspection. This compulsion, rather than allowing us to denounce injustice through the language of the universal, makes us only interpret what already appears as universal through the familiarity of the particular, through the constitutional.
But still, this is our comfort as Europeans. With our brutal lessons of history, but still apparently sound legal heritage, we can continue the propensity of our reformist predecessors to idealize all our passions, to see the world in ourselves and humanity in our homeland.Footnote 188
