2. The communitarian approach: international law as the legal order of the international community

Are international relations misconceived, if thought of in terms of an international society only? Or are there community elements to it, too? For quite some time now, some of the most prominent international-law scholars have put forward manifold arguments allowing for an affirmative answer to these questions. And even at present, the scientific involvement with the concept of the international community has not abated.Footnote ⁷ Mehrdad Payandeh's doctoral dissertation Internationales Gemeinschaftsrecht fits well into this trend. It expressly shares the international community school's progressive understanding of the international legal order and aims to analyse the significance that the concept of the international community bears for international law in the age of globalization (p. 3).

To this end, the first part of the book provides the conceptual and sociological groundwork. By briefly revisiting the community concept as developed in sociology and international law, Payandeh reminds the reader of the term's ambiguity (pp. 11–19). In contrast to Hermann Mosler and Alfred Verdross, for instance, for whom the subjection to common laws constitutes the major or even sole community-building factor,Footnote ⁸ Payandeh himself opts for a two-tiered approach that includes both a factual and a normative element (p. 20). In his mind a community first involves a high level of interaction and connectedness among its members and second ‘requires – even and particularly on the international scale – a minimum level of shared values and common interests’ (p. 58). Of course, the normative element of this definition prompts the question who exactly those community members are to whom these interests must be common. Following deliberations of Bruno Simma's famous Hague lecture,Footnote ⁹ Payandeh offers an answer that tries to find a middle way through the rival camps of ‘realists’, conceiving states as the sole relevant actors on the international plane, and ‘idealists’, who see humanity as the benchmark of international law. For him the international community integrates both states and individuals. In the last analysis, though, it is ‘a community of all human beings’ (p. 86). Accordingly, the interests of the international community give centre stage to mankind and its well-being. In a well-balanced analysis of the international political agenda, preambles of international treaties, and the substantive content of current international law, Payandeh identifies an overlapping consensus concerning six such interests underlying the international community: the preservation of peace and security (p. 100); the protection of human rights (pp. 101–15) and the environment (pp. 115–19); the liberalization of world trade (p. 120), development, and global solidarity (pp. 120–2); and finally the common heritage of mankind (pp. 122–4). Since in some of them – as might be most obvious for the liberalization of world trade – states may also have an interest, Payandeh rejects drawing a strict line between community interests on the one hand and state interests on the other. Instead, he convincingly argues that the two categories should be regarded as the opposite ends of a sliding scale along which single rules can be measured (p. 97).

In the second part of the book, Payandeh's conception of the international community serves as an analytical tool for the re-examination of international law. Here Payandeh analyses rudiments of an international community structure in present international law with regard to institutions, i.e. organs of the international community, methods of law creation, and modalities of law enforcement.

In terms of institutions, Payandeh's evaluation rightly confirms the proposition that the state remains a central agent of the international community (pp. 163 with fn. 136, 433). The institutionalization of the international community thus still lags behind the substantive integration of community interests in international law (pp. 168, 434). This imbalance poses a threat to the effective implementation of community interests that is only insufficiently compensated for by non-institutional community mechanisms. Payandeh's comprehensive search for exactly those communitarian but non-institutional mechanisms, though, demonstrates that even in the absence of community institutions, properly so-called communitarian tools of law-making and law enforcement are not entirely alien to international law. In the field of law-making structures, for instance, the softening of the principle of state consent bears witness to communitarian traits. Objective regimes, world-order treaties, third-party effects of the UN Charter, the process of customary law creation, the verification of peremptory norms, the continuation of international obligations in cases of state succession, the treatment of reservations to human rights treaties, and the legislative practice of the UN Security Council are only some of the instances he scrutinizes in detail only to reveal the declining relevance of state consent in all of them. What is even more, he carves out constitutive elements common to all of these forms of non-consensual law-making (pp. 358–63), inter alia the existence of a community interest, the participation of major parts of the international community, the regular involvement of international organizations and NGOs, and the openness of the law-creation process to all states. These elements establish the connection to the international community that is needed to justify the interpretation of the discussed instances of non-consensual law-making as manifestations of an emerging community structure in international law.

Following Payandeh's analysis in this part of the book, one cannot help but recall Christian Tomuschat's Hague lecture on obligations arising for states without or against their will.Footnote ¹⁰ However, what makes Payandeh's analysis stand out is his rather bold approach to the topic. Whereas Tomuschat indeed covered very similar aspects to the ones discussed by Payandeh, his objective was comparatively modest: ‘Our endeavour’, Tomuschat declared, ‘cannot be to upset the traditional system of sources’.Footnote ¹¹ Payandeh instead challenges this very reluctance and expressly considers a ‘further development of traditional sources doctrine’ (p. 177). Building on the constitutive elements common to all instances of non-consensual law-making identified earlier, Payandeh formulates one of his most remarkable research results: to his mind international law has under the influence of globalization developed a new form of non-consensual law creation. To give proper expression to this development, this novel form of law-making is to be conceptualized as a new source of international law not mentioned by Article 38(1) ICJ Statute, namely ‘International Community Law’ (p. 447). Recalling the discovered constituents of non-consensual law-making, he argues that for a norm of International Community Law to come into existence it must, first, embody an international community interest which, second, outweighs the legitimate interest of the state concerned; third, it must be accepted by the overwhelming majority of states, and take account of statements of international organizations, and fourth, have come into being in a law-making process that is open to all states (pp. 454–61).

The international community's non-institutionalized means to enforce and implement international law, though, are rare. Nonetheless, Payandeh detects them in what he calls the ‘third way’ of law enforcement. He submits that besides the ‘archaic structure of bilateral law enforcement’ (pp. 372–5) and the centralized enforcement mechanisms within the United Nations system (pp. 375–84) international law has under the influence of the international community shaped a form of ‘collective decentralized law enforcement’ concerning obligations erga omnes (p. 384). The fulfilment of these obligations is owed to the international community as a whole, not only to all other states individually (pp. 387–8). Accordingly, Payandeh submits that every state may on behalf of the holder of the correspondent right, i.e. the international community as a whole, bring judicial proceedings (pp. 401–2) or take countermeasures (p. 419) even if not directly affected by a state's failure to perform the obligation. Of course, the question of modalities and limits to this third way of law enforcement remains. Analysing customary international law, state practice, scientific writings, and the works of the International Law Commission, Payandeh argues that countermeasures by not directly affected states may only be taken as an ultima ratio in cases of grave violations of peremptory international norms and only if the international community does not object to it. In Payandeh's opinion, this form of ‘collective decentralized law enforcement’ is thus limited by a veto right of the international community (pp. 422–3).

Interestingly, in the last analysis these restrictive criteria – and the same applies to the criteria Payandeh identifies as constitutive for the emergence of a norm of international community law – seem to give more detailed expression to the general principle that states may only legitimately claim the right to enact universal norms on a non-consensual basis or the right to enforce obligations owed to the international community, if they truly act in the interest of the latter. According to Payandeh this underlying ‘legitimatory connection’ (Legitimationszusammenhang) between unilateral actions of individual states and the international community is associated with the fact that in present international law the international community enjoys legal personality: the holder of the right to enforce obligations erga omnes and the right to enact legally binding norms not based on state consent is the international community itself. It therefore bears rights of its own and consequently gains legal personality (pp. 442–6). But as the rights of unilateral law enforcement and non-consensual law creation rest with the international community, states claiming these capacities can only do so as agents of the latter; their powers are derivative. Hence, if they do not act in the interest of the international community, they act ultra vires and thus against the law (p. 444). Of course, considering that the identification of what really is in the international community's interest – or, as Payandeh nicely puts it, the ‘identification of the authoritative “voice” of the community’ (p. 433) – remains one of the international community's weak points, this criterion provides only a very vague standard for the determination of ultra vires actions.

With respect to the restrictive function this standard is meant to fulfil, it might therefore well turn out to be a cold comfort. Looking at what may be termed the international community's agency problem reveals why this is unfortunate: even though in Payandeh's conception the international community qualifies as a legal subject, it is incapable of acting on its own; instead, it is dependent on organs acting on its behalf. As Payandeh rightly points out, presently it is first and foremost states that fill this agency gap of the international community (p. 433). However, with agency comes power. The international community's law-making and law-enforcement competences thus bear the immanent danger of politically strong states invoking these competences in order to enforce their national interests under the pretext of acting on behalf of the international community (pp. 367, 430, 433–4). To avert this risk, clear legal limits to the international community's powers are badly needed. Payandeh's ambition to conceptualize those limits through the legal personality of the international community and the legitimatory connection thus established is welcome, to be sure. But given the fact that this connection places the concept of ‘being in the interests of the international community’ centre stage, Payandeh's reflections on how to determine these interests (pp. 98–100) would certainly have been worth extending.

On the basis of the identified changes in international law, Payandeh closes his study with the proposal to complement the ‘Friedmannian dualism’ of an international law of coexistence and an international law of co-operation with a third descriptive paradigm: international community law (p. 490).Footnote ¹² Considering Payandeh's arguments regarding the legal personality of the international community and the communitarian elements in law creation and enforcement, this proposal provides a convincing completion of his picture of current international law. The major achievement of Payandeh's book, however, is precisely not this descriptive element. Rather it is the fact that the concept of the international community is not narrowed down to a descriptive paradigm applied to the law from the outside, but instead becomes normative. It is the particular benefit of Internationales Gemeinschaftsrecht not only that it hints at communitarian traits in singular legal phenomena in order to name them ‘communitarian’, but that it gives expression to the international community concept in doctrinal terms and thus shows it to be an element of international law itself; it proposes a far-reaching legal doctrine of international community law. Therewith, Payandeh's book clearly enhances the writings of the international community school.

3. The constitutional approach: international law as a constitutional order

Thomas Kleinlein's Konstitutionalisierung im Völkerrecht takes up the discussion of a rivalling paradigm that has been called into play by, amongst others,Footnote ¹³ Anne PetersFootnote ¹⁴ as the proper follow-up of the coexistence/co-operation dichotomy: the international law of constitutionalization. International constitutionalists, Kleinlein argues, try to ‘put public international law on a constitutional foundation’ (p.2). It is the plausibility of this undertaking that Kleinlein's book aims to analyse. Although in some parts his study is somewhat difficult to read, it is worth the effort and gives reason to expect that it will soon become a standard reference on the topic, not least because of its remarkably broad focus.

The first part of the book chooses a meta-perspective starting point. Based on a systematization and evaluation of current international constitutional thinking Kleinlein submits the first comprehensive stocktaking of the vast international constitutionalism debate. Given the enormous scope and complexity of the latter, this is a most welcome endeavour to everyone trying to get an idea of this important discussion in current international legal scholarship. Accurately, Kleinlein argues that the majority of international constitutionalist writings build on legal phenomena that can be categorized as either instances of a detachment of international law from state will (Kleinlein speaks of an ‘autonomization’ of international law) (p. 7) or evidence of the fact that the international legal order fulfils or complements constitutional functions (p. 61). To some extent, though, these two categories overlap; considering international law in terms of constitutional functions amounts to a partial reinterpretation of exactly those phenomena already dealt with under the heading ‘autonomization’. One example may suffice to illustrate this: Norms protecting community interests – international human rights law, for instance – introduce values into international law that cannot be traced back to state interests. Therefore, from the viewpoint of autonomization their emergence illustrates international law's detachment from state will and is thus interpreted as the nascent substantive part of international constitutional law (p. 15–16). From the viewpoint of constitutional functions these same norms may be classified as constitutional because of their authority-limiting effect (p. 62).

Of course, neither of the two interpretations is per se implausible. Constitutions typically both codify the basic values of the community they constitute and thereby at the same time limit governmental powers. And of course, this duplication of perspectives is no shortcoming of Kleinlein's study. It rather represents a questionable point immanent to the constitutional approach itself and is owed to the fact that constitutions may be looked at from many different angles: their value-based content, the institutional set-up they define, the functions they perform or the formal properties they are invested with. This multiplicity of perspectives is even amplified once constitutional thinking is detached from the state. On the international plane it can be applied not only to general international law but also to specific treaty or sectoral regimes as in particular the United Nations,Footnote ¹⁵ its security system,Footnote ¹⁶ the World Trade Organization,Footnote ¹⁷ international environmental law,Footnote ¹⁸ or even the system of human rights protection set up by the European Convention of Human Rights.Footnote ¹⁹ It is one of Kleinlein's special credits that his inquiry covers the overwhelming majority of those aspects and approaches, manages to integrate them into his dualist scheme of autonomization and constitutional functions, and thus carves out their common denominator. To Jeffrey Dunoff's critical question ‘whether we should even consider the writings on constitutionalism as engaged in a common project’Footnote ²⁰ this systematization suggests an affirmative answer. Nonetheless, the great variety of approaches, provided for by different possible constitutional perspectives on the one hand and their different possible reference objects on the other, provides sufficient reason to question whether constitutional vocabulary is not ‘too protean and indeterminate to be of analytic use’.Footnote ²¹ Regrettably, Kleinlein does not deal with this possible critique.

The second part of the book is dedicated to preconditions and historical precursors of international constitutionalism. Here, Kleinlein deals with the concept of a constitution and skilfully revisits preceding international constitutional thinking going back not only to the disciples of the Vienna School of Law but even to the origins of international constitutionalism in seventeenth- and eighteenth-century philosophy. The way current constitutional approaches to international law are traceable to these philosophical projects illuminates the normative–idealistic agenda of current international constitutionalism. Kleinlein only shortly hints at this connection (p. 287). Nonetheless, in view of the critique this new form of international law idealism has recently sparked,Footnote ²² his deliberations on these theoretical foundations are a felicitous addendum to his study.

Finally, then, Kleinlein turns to his own evaluation of the law. In the third part of the book, he critically reviews the constitutionalists’ assertion that international law is undergoing a process of constitutionalization. Here, Kleinlein's starting point deserves approval. In his mind attributing a constitutional paradigm to international law can only be justified if the propria of the constitutionalization thesis he identified in the first part of the book also find expression in concepts of international legal doctrine (pp. 95, 315). Therefore, Kleinlein examines extensively whether three exemplarily chosen elements considered central to this doctrinal dimension of the constitutionalization thesis do have a counterpart in international-law doctrine: the hierarchization of international law (pp. 315–426), the establishment of an objective and universal legal order for the protection of community interests (pp. 427–509), and the subjection of the exercise of authority beyond the state to rules of law (pp. 510–613). When assessing whether current international law contains elements of an objective legal order independent of state consent and safeguarding community interests, Kleinlein refers to many instances also dealt with by Payandeh. He discusses third-party effects of so-called world-order treaties and of treaties providing for objective regimes (pp. 452–61), revisits the legal relationship of non-members to the UN (pp. 440–51), covers the question of continuity of human rights obligations in cases of state succession (pp. 463–8), touches upon the universal and objective character of jus cogens norms (pp. 428–9), and examines modern approaches to customary international law (pp. 473–508). He, too, concludes that there are indeed tendencies to attest certain norms,’ objective force. Interestingly however, Kleinlein argues that they are disparate and that the justification of their universal scope seems to depend on the circumstances of each particular case (e.g., pp. 460–1), especially the international discourse preceding or succeeding the adoption of the norms in question (p. 440). To his mind there are neither universally accepted and generalizable criteria under which treaties bind third parties, nor is customary international law – due to its dependence on reciprocity – a viable basis for an effective and universal international law incorporating public interests. Accordingly, the outlook Kleinlein offers to constitutionalists hoping for international law to establish an objective order for the common good (‘objektive Gemeinwohlordnung’) is rather bleak: there is only a ‘minimal core stock of universal norms’ in international law, namely jus cogens. This stock, however, Kleinlein holds to be too minimal to speak of a constitutionalization of international law in a meaningful sense (p. 429).

In constitutional terms this is a negative finding. And Kleinlein's discussion of hierarchization in international law rather confirms than refutes it. For a hierarchy in a constitutionally meaningful sense to exist, he argues, it requires certain norms that take precedence and at the same time incorporate basic values of the community (p. 330). At first glance, the fundamental norms of jus cogens appear to be promising candidates, as they nullify opposing norms of both international treaty and customary law, unilateral acts of states, and even Security Council resolutions (p. 363). By contrast, Kleinlein submits that norms of jus cogens occupy the same hierarchical rank as any other norm of international law. In his opinion only the principle that jus cogens norms nullify opposing norms enjoys logical priority (pp. 368–9). As a consequence, Kleinlein rejects conceiving of jus cogens as international constitutional law from which lower-ranking law derives its validity (p. 368). On this point one might well disagree with Kleinlein. It seems that in his understanding a norm can only be considered superior to another if it positively empowers the creation of the latter; a norm solely restricting this norm-creational power does not enjoy a hierarchically superior standing, although it is also directly conditional for another norm's validity. Thus, Kleinlein's approach is restrictive and would have been worth discussing in the broader framework of the classic notions of hierarchy put forward in legal theory, namely ‘hierarchy of legal conditionality’ and ‘hierarchy of derogation’.Footnote ²³ In order to support his thesis that peremptory norms do not enjoy constitutional rank Kleinlein subsequently examines the recognized legal consequences attributed to jus cogens violations beyond treaty law (pp. 369–406). Considering, inter alia, the debates on restrictive approaches to reservations in international treaty law (pp. 375–88), exceptions to state immunity in cases of jus cogens violations (pp. 389–97), and the admissibility of humanitarian interventions (pp. 397–406), he contends that beyond treaty law, judicial practice and scientific writings do not attribute strict priority to the values underlying jus cogens either. Rather, they are implemented through processes of balancing used to determine the correct interpretation of indeterminate rules on a case-by-case basis (pp. 406–7). Consequently, the jus cogens status of certain values is nothing more than a weighty argument in legal discourse, far from authoritatively determining results in their favour, as a norm fitted with normative priority would do (pp. 396–7, 406–7, 426).

The conclusions Kleinlein draws from these examinations are first and foremost negative: in his mind it would be overstating the case to hold that constitutionalization of international law has led to the emergence of a separate and uniform layer of international norms comprising constitutional values and enjoying constitutional priority or an objective, non-consensual existence. The examined developments in international law are too complex and too selective for such an abstraction (p. 615). For this reason, they suggest an ‘alternative, more open understanding of constitution, related to argumentation and discourse’ (p. 712 (English summary)). The final part of the book elaborates on this concept of constitutionalization and thus builds the intellectual centrepiece of Kleinlein's argument. The approach he offers draws on discourse theory and international constructivism, conceptualizing international constitutionalization ‘above all, [as] a process of changing identities and of normative self-entrapment in which states and other international actors are involved’ (p. 3). It might be worth noting that independently of Kleinlein's study, Christine Schwöbel has recently campaigned for a similar discursive and procedural constitutionalist conception. Like Kleinlein, Schwöbel calls for a ‘reconfiguration of global constitutionalism’ that should be guided inter alia by the following two themes: ‘(a) constitutionalism should be regarded as an ongoing process; (b) the debate on global constitutionalism should be political and discursive’.Footnote ²⁴ Moreover, according to Schwöbel, in this process ‘normativity is determined discursively’.Footnote ²⁵ In essence, this is also in line with Kleinlein's conception. To him, too, the process of changing identities and of normative self-entrapment, essential to his conception of the constitutionalization of international law, is of norm-generating relevance. It creates general principles of international law in the sense of Article 38(1)(c) ICJ Statute which in terms of legal theory are to be classified as optimization commands, i.e. principles in the legal-theoretical sense developed by Robert AlexyFootnote ²⁶ (pp. 661–81).

In legal discourse these principles first of all establish burdens of justification. In a nutshell, Kleinlein's argument runs as follows: on the international plane states cannot avoid processes of argumentation if they do not want to lose their influence on the outcome of negotiations. In these processes they have to demonstrate a general openness to truthfulness and the force of the better argument, even if they originally pursued strategic motivations of self-interest only (p. 641). But doing so inevitably leads to their self-entrapment. Their actions will be measured against their own arguments, and any inconsistency with claims once made to convince negotiating partners now calls for justification (p. 650). Besides calling for justificatory reasons, the emerging principles Kleinlein deducts from this process of self-entrapment serve as guides for interpretation in the application of other norms (pp. 670–81). Given their character as principles in a legal-theoretical sense, they have to be balanced in cases of conflict. This, Kleinlein argues, enhances the rationality of international legal decision-making (pp. 667, 670–3) and at the same time leads to the flexibility that corresponds to the findings on hierarchization and objectivization in the third part.

However, the discursive understanding of international constitutionalization also prompts hard questions: who exactly are the actors in the discursive constitutionalization process in which international normativity is determined? And what are their respective roles? In a somewhat encoded answer Kleinlein notes right at the outset that the discursive process he describes involves ‘states and other international actors’ (p. 3). Kleinlein's attempt to decipher this code in the third part of his book, though, suffers from its brevity. Kleinlein mentions the influence of NGOs to the entrapment of states in deliberative processes only briefly (pp. 639, 642–3) and, likewise, his comments on the ‘active and creative function’ of the judiciary with regard to the establishment of justificatory burdens for states are curt (pp. 648–9). Overall, Kleinlein thus contents himself with the finding that the benchmark for the determination of whether the discursive constitutionalization process has brought forth new normative output is the evaluation of an ‘interpretive community’ consisting of government representatives, judges, diplomats, and scholars (p. 652). Especially from the constitutional perspective Kleinlein adopts, all this might have been worth a more detailed analysis, for if nothing else, with regard to the creation of constitutional principles, questions of agency are questions of power, too – power that calls for legitimization.Footnote ²⁷

To be sure, these remarks cannot hide the fact that Kleinlein's conception of constitutionalization is clearly a most thought-provoking and innovative one. Although the potential of general principles and principle theory for the debate on international constitutionalism has now and again been noted,Footnote ²⁸ Kleinlein's deliberations are by now the most comprehensive and sophisticated on the matter. As such they contribute substantially to the international constitutionalism debate. Moreover, the liaison he establishes between discourse theory, insights of constructivist international relations theory, and the theory of international law sources in the context of his interpretation of Article 38(1)(c) ICJ Statute constitutes an interesting and intellectually challenging proposal that will certainly spark further discussions – not only among constitutionalist international-law scholars.

4. International communitarianism and international constitutionalism compared

The foregoing analysis of the two books under review has considered them separately and as illustrations of communitarian and constitutionalist approaches to international law respectively. The following part will take one more step of distance and look at the bigger picture the two books compose. It adopts a comparative perspective by approaching both of the two studies from three different angles: first as analytical and descriptive theories, second as doctrinal conceptions, and third as critical perspectives on international law. Highlighting the two books’ similarities and particularities in respect of these aspects will at once help to shed light on commonalities, differences, and blind spots of the two theoretical approaches they form part of.