A Seminar note on Jürgen Habermas’ Constitutionalization of International Law, Constellations, Volume 15, No. 4, 2008, 444-455.
By Birgit Schlütter, Postdoctoral Fellow collaborating with the MultiRights Project
Jürgen Habermas’ discussion on the Constitutionalization of International Law is surely a must read for everyone interested in the legitimacy of international institutions, and visions on how to overcome certain alleged legitimacy deficits which may be witnessed in present day international institutional law. The work relates to his previous writings and expands them and responds to some of the criticisms levied against it. It is a sketch on the results of his discourse theory for the exercise of authority in a multi-level system, spanning the individual, the state, the supranational (regional), and the international.
The individual concept of Habermas in this context is twofold: the individual is characterized as cosmopolitan citizen interested in universal values, while at the same time being constituted in the national state, cherishing national values. The state, on the other hand is still prominent and present to the concept of the transnational constellation. As Habermas puts it: “it is not appropriate to ignore the legitimacy of nation-states under the rule of law and to return to an original condition prior to the state.” (p. 448) He further explains: “Today any conceptualization of a juridification of world politics must take as its starting-point individuals and states as the two categories of founding subjects of a world constitution.” (p.449). Nonetheless, it is crucial to the concept that the states accepts rendering more and more sovereign powers to the cosmopolitan order, agreeing to that certain powers may only be exercised at the international level. The international, on the other hand, is much alike to todays’ international institutional reality. It would be constituted of a World Organization with a General Assembly and an Executive/Legislative Council which would be in charge of promulgating binding decisions for all member states. The General Assembly would be to reconcile national with cosmopolitan interests, with delegates serving both the purposes of the World Organization, human rights and international peace, as well as the interests of their national states. The World Organisation will be in charge of issues of redistribution and positive coordination between states.
The paths of legitimation in the post-national constellation are twofold: First, in the international community, states act as representatives of their citizens. Second, national citizens will be represented in their own national system as well as in transnational regional organizations, which will tie into the work of the World Organization. Implementation, of the decisions of the World Organization, on the other hand will require “hierarchical position [of the World Organization] vis-à-vis the member states.” (p. 450)
Legitimation problems at the international level, can, according to Habermas, be overcome with the implementation of internal procedures, as veto rights of the UNGA toward the UNSC or with a right to appeal UN Sanctions before an international criminal court. It would be sufficient if the World Organization is scrutinized by informal public opinion and the normative power of the rule of law, as well as the principles of transnational justice which steer the work in the World Organization.
Habermas presents us with a modified utopia of modern days’ international realities. His concept of the World Organization is not far from the actual characteristics of the UN and its present organs, the main point of differentiation being that the UN is currently not able to render binding decisions for its members. He thus presents us with a concept, which, due to its familiarity to present day conditions is very palatable to anyone engaging with international law, international relations and international politics. The part provoking the most questions is the assumption that states willingly render competences and sovereign powers to international and supranational institutions, for the benefit of cosmopolitan values, human rights and international peace. Considering the current rows about the power and influence of the European Court of Human Rights and other human rights institutions on national states, it seems that states are not yet too eager to accept his conception.