Abstract
International law is quasi-constitutionalized, and there is a case to be made for further constitutionalization. But who should be in charge for making a global constitution? At the domestic level, the answer is the popular sovereign, namely the citizens understood as constitutional subjects who individually and collectively hold constituent power. We do not have an easy answer to the question of who holds constituent power at the global level. This article highlights some challenges for identifying the holders of constituent power in international law. The international community contains numerous authoritarian states. In the absence of reliable processes of representation of their citizens’ voice and interests, the inclusion of those states’ officials or representatives in negotiating the fundamental values and principles of a just global constitutional order raises special problems. We have reliable evidence that authoritarian states’ officials would undermine good faith negotiation of constitutional rules and principles, and even try to hijack the process for their own, narrowly self-interested ends. I will draw on the literature on constituent power to assess the limitations of a process by which the international community could articulate, activate, and exercise constituent power to negotiate and draft a morally defensible constitutional agreement.
Keywords
The constitutionalization of international law and the question of constituent power
Suppose that you have built a picture of international law that allows you to see certain features as quasi-constitutional. Namely you believe that international law already possesses principles fundamental for peace and justice, which safeguard sovereign equality, non-interference, and restrictions on the use of violence, which articulate and protect human rights and single out categories of crimes as being of concern to the international community as a whole, such as genocide, crimes against humanity, and war crimes, and which defines secondary rules or rules of recognition for the making, application, and interpretation of treaties and customary law (Dunoff and Trachtman, 2009; Fassbender, 1998; Klabbers et al., 2009; O’Donoghue, 2013). In other words, you see international law as a fairly developed, institutionally differentiated, and complex legal system made up of rules, practices, institutions, legal subjects and officials, but which suffers from glaring problems of legitimation and authorization of international rules and institutions, as well as less visible deficiencies (Criddle and Fox-Decent, forthcoming; Guzman, 2011; Pavel, 2021).
Suppose also that given some of the shortcomings of the various principles, practices, and institutions of international law, including some of its central treaties, such as the UN Charter and the Vienna Convention on the Law of Treaties, peoples and officials in different countries are motivated to create a new constitutional agreement which resolves conspicuous tensions between different principles, provides for new institutional capacity and authority to ensure more effective and consistent monitoring, interpretation, and application of international law, and generates rules and mechanisms for creating agreement in areas which require concerted effort from the international community, such as climate change (Pavel, 2021, 2025). What would be the main challenges of a process by which this new constitutional agreement is created? And how can we ensure the legitimate exercise of the constituent power of individuals and groups which will be subject to its authority?
This article addresses these questions and proposes a stepwise approach to the creation of a global constitutional treaty. While the endpoint of a global constitutional agreement should be maximally inclusive, getting there might necessitate a more selective approach to who can be part of the process for developing international constitutional rules. The main reason is the fact that many countries around the world are authoritarian, and this creates two problems. First, some of the currently authoritarian countries (though perhaps not all) do not have a history of constitutional rule and thus their political culture does not offer strong support for constitutionalism - constitutional ideals do not yet function as embedded social norms. Second, the representation of the interests of the citizens in these countries is difficult if not impossible to achieve, as the political elites, typically more concerned with their grip on power than with protecting their citizens’ interests, undermine or prevent processes of electoral representations that are free and fair. This means that the citizens living in authoritarian countries cannot exercise constituent capacity for the time being, both domestically and at the international level.
I am making two big, unargued for assumptions here: first, and hopefully less controversially, that one of the central purposes of constitutional rule in any legal system, including international law, is the protection of the rights and interests of all the individuals subject to it, regardless of the institutional make-up of political and legal institutions governing them at the state or regional level; and second, and more controversially, that social norms that reflect constitutional commitments, which we can call pro-constitutional social norms, are a necessary pre-condition for creating constitutional rule in any legal system. Therefore, the liberal constitutionalism assumed here places a number of constraints on the constitution-making process, including the ex-ante entrenchment of pro-constitutional commitments, procedural limitations with respect to the nature of representation of constituent power, and limitations on the content of legitimate rules resulting from global constitution-making.
In considering the challenges of global constitutionalism, I assume the role of the political theorist as democratic underlaborer, first articulate by Adam Swift and Stuart White in their essay describing the role of political theory in democratic politics (Swift and Stuart, 2008; see also Niesen, 2007). The democratic underlaborer participates in public deliberation by clarifying contested concepts, evaluating political rules and institutions in accordance with specific moral standards, and proposing reforms in line with best political practice and imagined but realistic possibilities. The political theorist claims an epistemically privileged role in democratic politics—it possesses expertise related to the most important values and principles which should govern political life—marked by democratic restraint, namely she lacks a privileged position in the decision-making process of the polity.
I will borrow David Owen’s term in this volume (Owen reference) of constitutional underlaborer to describe the role of the theorist in thinking about constitutional transformation, by reflecting on the nature of constituent power in international law. “Constituent power” seems like a uniquely apt concept to help us reflect on the question of who should make a constitutional agreement at the global level. The role of constitutional underlaborer at the international level is to take seriously the task of explaining, describing, and interpreting/reconstructing the realities of international politics and law; to evaluate and diagnose current problems and map out possibilities for reform; and to expand the political imaginary by creating new conceptual possibilities, including new constitutional possibilities. Central to this role is the work of facilitating collective autonomy and democratic empowerment, in the face of challenges of a distinct form of political organization of international politics which is decentralized and non-hierarchical, and in which states are ambivalent about resolving common problems via international legal rules. It is also a political sphere characterized by large scale human right violation, lack of political voice for people in authoritarian regimes, vast inequalities of power among states, and international legal rules which sometimes cement this inequality and ossify the status quo rather than dismantle it. Thus, the constitutional underlaborer would perform the function that Cord Schmelzle in this volume (Schmelzle reference) calls the moralization of structural deficits, offering a menu of choices for constitutional transformation in the space for public deliberation of international politics.
This argument will draw liberally from the literature on constituent power and particularly Peter Niesen’s contributions to it (Habermas, 2012; Niesen, 2017a, 2017b, 2019b; Patberg, 2017a; Walker, 2008). Neil Walker identifies two main questions about constitution-making relating to: 1. The identity of constituent power, namely
However, in legal orders beyond states, it is not clear who are bearers of constituent power, and how they can exercise this power in order to generate a constitutional order that is legitimate. There is no global people, and even if such a people existed, it is hard to imagine the process by which they could create a constitutional agreement. This is a difficult challenge, but one that is not as intractable as it seems at first. We can take some lessons from processes of constitution-making both at the state and European level to understand what a process of legitimate constitution-making could look like for international politics more generally. The second section introduces the idea of constituent power. The third discusses processes of constitutionalization at the European Union level and alternatives for conceiving constituent powers in the EU. The fourth draws some lessons for constitutionalization in international law and identifies some of the challenges for creating a global constitution. The fifth section answers some objections.
Constituent power in domestic constitutions
Written constitutions have their origins in eighteenth and nineteenth century American and European revolutionary movements, though they rely on rule of law principles developed gradually at least since Magna Carta (Blick, 2015; Dickinson, 2018). Constitutions structure political and legal systems in centralized states in which they are prised for a number of features and functions:
- They make possible peaceful coexistence and social cooperation among a group of people who disagree, sometime radically, on questions of justice. They do so by generating second order principles and decisions procedures for first order rules of behavior that apply to all. Inclusive electoral rules for political representation, democratic legislatures with majoritarian decision-procedures, and rules for making and changing the constitution itself are part of constitutional second order rules.
- They designate fundamental values and principles for the protection of the rights and interests of the citizens. These are typically specified in bills of rights, which include protections for individual and minority rights, including rights to personal autonomy, free speech, and equality before the law.
- They delegate limited and specified powers to institutions and offices which govern political communities and participate in the production of public goods. They design formal safeguards for accountability and lawful governance, such as the separation of powers, due process, and an independent judiciary (Dicey, 1889; Elster and Slagstad, 1988; Hardin, 1999; Hayek, 1978; Sunstein, 2001; Waldron, 1999).
Regardless of the specific forms constitutional rules end up taking in different constitutional texts, morally desirable constitutions worthy of support and respect share these features. But they have come to have these features despite the fact that at their origins, modern constitutional texts have not been the result of bottom-up, inclusive, democratic processes. While revolutionary processes have fomented breaks with previous monarchic, colonial, or absolutist orders, written constitutions have often emerged via negotiated compromises among a small number of political elites.
Despite their problematic origins, constitutions creates new constitutional subjects or at the very least transform existing constitutional subjects (Niesen, 2017b: 193,187–188; 2019b: 38–39; Habermas, 2012: 34). The American constitution, created after revolutionary action for political independence from Great Britain, united former colonies under one federal government whose citizens became new constitutional subjects (Wood, 2021). More often than not, constitutional subjects are transformed when constitutional rules change, in an open-ended process of constitutionalization. They become entities with different rights and obligations, whose agency can be expressed, defended, and restored in novel ways.
However, legal systems create constitutional subjects even before they acquire constitutions. State based legal systems have pervasive effects on the lives and livelihoods of the people subject to their rule. These subjects make up the dormant constituent power which can be activated and exercised at any point. The popular sovereign enjoys the fundamental right to renounce the existing political regime and institute a new one through a process of constitutional change. It does so by bringing about what Niesen calls the articulation, activation, and exercise of constituent power.
According to Niesen, the “
Theorists of constituent power have emphasized the fact that there is more than one way to articulate a constituent power. The revolutions in North and South America and France, which gave us the first written constitutions, identified as the bearers of constituent power men only, and typically men of a certain economic and social status. By the second half of the nineteenth century, due to movements for women’s suffrage, we witnessed the articulation of a new group of previously disenfranchised holders of constituent powers. Women were constitutional subjects whose constituent power was dormant, namely individuals who were subjected to the demands of the legal system but did not enjoy the right to participate in the negotiation and design of constitutional rules (Houghton and O’Donoghue, 2024). Civil rights and other movements have expanded the articulation of constituent power to include other previously marginalized racial, ethnic, and religious groups. Today most liberal democracies protect, however imperfectly, the political rights of all citizens and respect their equal standing as members of the constitutional system’s constituent power – namely as the ultimate source of authorization of political and legal rule (Rubio-Marín and Irving, 2019).
These processes which describe the articulation, activation, and exercise of constituent powers within states are processes in which the very understanding of who holds constituent power has dramatically shifted over time. Moreover, these are processes in which constituent power has been exercised in mostly reforming modes, not in the generation of the first constitutions (Ackerman, 1993). People exercising constituent power have changed in part or in whole written constitutional rules as well as their interpretation, application, and enforcement. Thus, while many constitutions may not have legitimate origins, they have been at least partially if not entirely legitimated through subsequent efforts to include all constituent subjects as bearers of constituent power in the creation of new constitutional rules.
This post constitutional legitimation happens through a process that scholars of constituent power call “bootstrapping” (Niesen, 2019b: 38; Chambers, 2018: 260). Constitutions are generated through flawed democratic processes but create the conditions for their own legitimation. Social movements which subsequently expand democratic inclusion lead to constitutional change authorized and legitimated by popular sovereigns retroactively. Thus, while constitutions do not always have a legitimate founding, they can become legitimate because, when suitably expanded, exercised, and protected, the constituent power is engaged in “perpetual founding.” As Simone Chambers points out, constitution-making does not consist of just one but of many “constitutional moments,” which “punctuate an essentially ongoing process of bootstrapping” (Chambers, 2018: 260).
Countries which have newer constitutional bargains in which constitutional rules have been thoroughly re-evaluated and reaffirmed or changed through appropriately exercised constituent powers come closer to full legitimation. Constitutions which result from the marginalization of the popular sovereign, and from coercion, manipulation, or imposition by authoritarian rulers are fraudulent and typically illegitimate. What lessons about inclusion and exclusion can we take from this brief overview of the connection between constitutions and constituent powers at the state level for the very different context of constitutionalism beyond the state, namely at regional and global levels? In the next section I will briefly summarize the extensive debates in the literature around these questions in response to the creation of European Union. I will subsequently develop these insights in thinking about a global constitutional treaty in the following section.
The European Union as a laboratory for the exercise of post-national constituent power
The European Union, which started as a series of economic communities among a small number of European states, has ballooned to include almost all European countries (27 as of 2025), which are now integrated across a wide number of policy areas. As Habermas puts it, the EU has served as a “laboratory for uncertain attempts” (Patberg in this volume, (Habermas, 2012)). The EU has evolved toward a legally integrated confederation among states, with European institutions such as the EU Council, the European Parliament, and the Court of Justice of the European Union serving as its main supranational organs. EU law has supremacy over national law and direct effect (Isiksel, 2016), though this is contested as a way of describing the relationship of EU law to member state constitutional law, and states themselves have pushed back again this view (Bellamy, 2019; Kumm, 2005). States continue to retain significant sovereign rights to make their own law, particularly in areas not covered by EU treaties, and the fundamental right to exit the EU at will, which the United Kingdom has exercised in 2020 (BBC News, 2020).
One notable feature of the EU member states is their relative uniformity in terms of political organization – all are constitutional democracies. The citizens of the EU “are thoroughly socialized in the traditions of liberal democratic constitutions” (Chambers, 2018: 262). New EU members from Eastern and Central Europe have had to meet especially stringent criteria for accession, also known as the Copenhagen Criteria, including a commitment to democracy, the rule of law, human rights, and the protection of minorities (Janse, 2019). 2 And article 2 of the Consolidated Treaty on the European Union says that all member states commit to the “values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights,” including respect for minority rights (Klamert and Kochenov, 2019). These pro-constitutional, liberal democratic norms have made legal cooperation and integration possible. It is hard to imagine there would have been any integration, let alone what shape it would have taken, if the constitutional democracies of Western Europe which initiated the European Economic Communities were faced with negotiating agreements with the authoritarian communist countries of the former Eastern bloc for instance, or countries governed by various other forms of authoritarian rule.
Given these shared values and practices, and the already significant legalizations and integration of the European Union, in the early 2000s a number of EU officials led the way for creating a Treaty for Establishing a Constitution for Europe. Its purpose was to replace existing EU treaties with a single text, create a Charter of Fundamental Rights for EU citizens, and expand qualified majority voting in areas in which the unanimity of members was required previously. Signed by the representatives of the then 25 member states in 2004, the treaty was ratified by 18 states the subsequent year. However, it was rejected in referendums in France and the Netherlands, in 2005, which meant that the constitutional treaty failed to get the unanimous ratification it needed to become EU law. Nonetheless, many of its provisions made it into the Treaty of Lisbon, adopted in 2007, which instead of replacing all treaties with a new text, simply amended many of the rules of existing treaties. With the treaty of Lisbon, the idea of a single constitutional treaty was abandoned, at least for the time being.
Nonetheless, even if the constitutional treaty was unsuccesful, the EU can be said to be “constitutionalized” in both a descriptive and normative sense. Descriptively, the EU contains rules creating new powers for supranational institutions and apportioning competencies between them and member states. It also contains implicit and explicit secondary rules or rules of recognition for the making, interpretation, and application of EU law. Normatively, it defines the political and legal status of individuals as citizens of the EU with additional rights and obligations to those each of them enjoys as citizens of member states, and the fundamental values and principles of a common market which governs the movement of goods, services, persons, and capital within EU (Isiksel, 2016).
If the EU is a constitutional system, it must have constituent subjects to whom the rules apply but which also can authorize and legitimate them. This is a point of considerable contention (Patberg, 2018; Walker, 2008). However, what is not contested is that the EU legal system did not emerge from some fully formed demos who authorized it through its various incarnations and metamorphoses. It was created by political officials acting on behalf of their states, the latter of which remain the “masters of the treaties.” Some scholars of constituent power have made the claim that “constituted powers,” namely the powers of government institutions, cannot themselves exercise constituent power and authorize constitutional rules, because they cannot unilaterally change the conditions of exercise of their own power (Niesen, 2019b: 33). Only the people understood as a popular sovereign can create and change grants of authority to various institutions and officials. But given that the EU was created by the consensus of political elites who represented their various countries, namely by powers “constituted” by state constitutions for domestic governance, the question arises of whether these officials count as constituent powers at the EU level. Although public officials are “constituted” for the purpose of domestic governance, they can be constituent for the purpose of EU governance. 3 At the same time, the creation of the EU citizen as a constituent subject with distinctive EU rights and obligations might suggest a form a constituent power that is underwritten by popular sovereignty just as it is in the domestic context.
Therefore, it is not immediately clear who the bearers of the constituent powers are in the EU, such that the authority of the EU institutions must be, at least in principle, derived from their authorization. But since European and international law impose new rules on previously existing collectives and individuals, they create new constituent subjects, or at the very least transform existing ones. Due to the power of organization and communication in an age of unprecedent access to technology, the constituent subjects of transnational law cannot be expected to be passive. Indeed, as Niesen observes, “when encountering the challenge of cross-border domination, new collectives may grasp the chance of extra-institutional self-activation” (Niesen, 2019a: 2). For instance, many protest movements have emerged in the aftermath of the eurozone austerity programs. The ones like “the3million,” an online platform which published a “Citizens Manifesto For European Democracy, Solidarity, and Equality” prepared for the 2014 European elections, act as examples of intra-European transnational activism which articulate and activate constituent powers. Namely, they adopt a communicative role in a larger democratic process aiming to shape or reshape the composition of the existing constituent power (Patberg, 2018: 273–276; the3million, 2024; Niesen, 2019b: 39–44). Notwithstanding the initial claiming of constitution-making powers by state officials (executives and other state representatives) in the EU, the emergence of constitutional practices that create new legal subjects “cannot fail to empower transnational constituent subjects post-hoc” (Niesen, 2019b: 38). Subject to the domination of European institutions, European transnational movements engage in processes of resisting rules via civil disobedience, of shaping rules, and of demanding constitutional change. Such movements articulate constituent powers in their actions of protest and civil disobedience, but they do not necessarily claim to exercise constituent power.
Scholars have defended various proposals for how to conceive of EU’s constituent power, with implications for what forms of representation would be appropriate. Some conceive of EU’s constituent power as a “demoi-cracy,” with a constituent power made up of representatives of the various peoples or countries of the EU (Nicolaïdis, 2004). Others conceive of “we, the people of Europe,” namely individuals making up a EU-wide demos, as the ultimate holders of constituent power (Eriksen and Fossum, 2000). Alternatively, one can invoke a constituent power that is bi-dimensional or hybrid, on the basis of the dual status of individuals as citizens of their countries and of the European Union. On this view, the power to authorize EU law is a “pouvoir constituant mixte,” which ultimately rests with the citizens of the EU understood as one people (a EU wide demos), as well as with the peoples (demoi) of the EU member states considered as separate units (Habermas, 2017; Niesen, 2017b). In practice, EU institutions embody various forms of representations of EU citizens, including directly elected members of the EU parliament, and heads of state as members of the EU Council, which gives some credence to the idea that a hybrid or mixed constituent power offers the best articulation of this ideal at the EU level.
Regardless of what form constituent power can and should take in the EU, one can make the case that new rules for governing European or global communities can give rise to new forms of constituent powers. In the case of the EU, the constituent power can be the citizens of members states taken together as one demos, as well as collectively as a demos made up of multiple demoi, or various combinations of the two. What does constituent power look like for international law? And what would it take to legitimate a global constitutional treaty?
Constituent power and constituent capacity in international law
After the Second World War, international law has undergone a similar process of legalization and institutionalization, though in contrast to the somewhat vertical integration of the EU, the treaties of international law are more loosely and horizontally integrated, with more fragmentation among different areas of international law, less uniformity of rules, and more patchy commitment from states. International law is said to contain its own quasi-constitutional commitments: the rules of the UN Charter such as the principles of sovereignty equality, non-interference, and restrictions on the use of violence among states, human rights principles, jus cogens norms, grants of authority for international Institutions such as the ICJ and ICC, the UN General Assembly, and the UN Security Council, as well as secondary rules guiding the adoption, interpretation and application of treaties codified in VCLT as well as various customary rules (De Wet, 2006a, 2006b; Fassbender, 1998; Klabbers et al., 2009; O’Donoghue, 2013).
At a time of intensified international military conflicts, withdrawal form international treaties, as well as violation of treaty rules, important questions about the legitimacy and authority of international law remain and perhaps become magnified. The authority of international law over sovereign states is much less settled, and conflicting claims of national legal supremacy and international law supremacy raise further questions about whether international law can solve various collective actions problems and enable states to coexist peacefully (Pavel, 2015, 2021). Different areas of international law such as law of the sea, economic law, and human rights law have evolved in relative isolation from one another, which gives rise to tensions within and between the rules of various legal regimes. Given the commitment problems of some states to even the most basic rules of peaceful coexistence, human rights, and progressive cooperation to resolve common problems, as well as many of the ambiguities of various existing treaty and customary rules, including of rules with quasi-constitutional status, a case could be made that international law must undergo a more explicit process of constitutionalization (Pavel, 2025).
The endpoint of this process of constitutionalizaton could be a constitutional agreement whose purpose would be to specify certain fundamental values and principles for the international community as a whole, articulate or re-articulate competencies for a range of international institutions, and generate new mechanism and procedures for the resolution of pressing collective action problems such as climate change. To ensure a legitimate process of constitution-making at the global level, we must answer the question of who would be the bearers of the constituent power, and what would be the process by which they would exercise that power.
4
The answer to the question of who are the bearers of constituent power at the global level is somewhat open-ended, because, as Niesen observes, “the presumptive bearers of self-identified
Regardless of how the membership of a global constituent power is conceived, we have good reasons to think that the involvement of authoritarian states will raise a number of distinct problems for the process of making a global constitutional treaty. Authoritarian countries, that is countries in which a dictator or small groups of elites exercise quasi-unlimited political authority, have a special relationship to both constitutional norms and to international law. They explicitly disavow basic constitutional limits on their power, reject independent courts, including constitutional courts, and oppose individual rights, due process, equality before the law, free elections, and free speech (Ginsburg and Simpser, 2013; Law and Versteeg, 2013). In fact, opposition to these morally desirable constitutional practices is a defining feature of authoritarian rule. Thus, instead of fostering a pro-constitutional political culture, authoritarian regimes do their best to undermine it. In addition, while they may pay lip service certain democratic values such as fair and free elections, in practice they tend to destabilize the conditions which make them possible, including by banning or restricting the functioning of opposition parties, censoring the media, and committing widespread electoral fraud. Unlike the authoritarian politics of older pedigrees, authoritarian regimes today are well-versed in using constitutional and democratic formal rules and institutions to legitimate authoritarian rule, and relying on “sham” constitutions to achieve their authoritarian ends (Law and Versteeg, 2013: 919; Ginsburg, 2020: 222–223). They manipulate elections, pack courts with loyal judges, and adopt constitutions with long lists of unenforceable individual rights. They hijack the language and forms of constitutional democracies for authoritarian ends.
The relationship of authoritarian regimes with international law, though more nuanced, display specific pathologies. As Tom Ginsburg has persuasively argued, unlike liberal democracies, which are more likely to conclude treaties, litigate cases before international courts, and engage in international cooperation and with international law-making bodies (2020, 227), authoritarian countries prefer shallower commitments to international rules, demonstrate less willingness to engage with third-party dispute resolution mechanisms, and make international rules that reinforce the survival of authoritarian politics at the domestic level (2020, 231). Authoritarian governments retool international law to suit their own ends and consolidate their rule. Via international treaties and organizations such as The Warshaw Pact, ASEAN, the Eurasian Economic Community, and the capturing of the Human Rights Council, they repurpose international agreements to dampen the effects of international law on domestic democracy promotion, to persecute and marginalize political opponents, to undermine international cooperative agreements that advance liberal democratic norms, and to promote autocratic forms of accountability, such as fraudulent election monitoring which entrench tyrannical rule (Ginsburg, 2020: 235–256). In other words, they create authoritarian international law.
Thus, there are two main problems with the participation of authoritarian regimes in making global constitutional law: one procedural, the other substantive. The first procedural problem, which we can call the problem of faithful representation, is that official representatives from authoritarian regimes cannot adequately represent their people and thus protect the latter group’s rights and interests. Indeed, political officials may directly oppose the interests of their citizens, insofar as limiting and preventing the exercise of the citizens’ political and other rights is the main way that authoritarian rule gets perpetuated domestically. Authoritarian states reject popular sovereignty which is key to the legitimate exercise of constituent power (Christiano, 2011; Patberg, 2017b). Therefore, the citizens in authoritarian states possess latent constituent power without constituent capacity. The second substantive problem is what we can call the problem of good faith negotiation. Official representatives of authoritarian regimes are not likely to engage in good faith negotiation of constitutional rules at the international level, because they prefer “authoritarian international law.” They tend to oppose or subvert rules protecting individual and minority rights, authorizing impartial dispute resolution at the international level, or committing to cooperative action to solve collective action problems. Authoritarian regimes are known to use knowledge about constitutional mechanisms to subvert constitutional purposes.
These features of authoritarian political regimes have implications for how we conceive of allocating constituent power across states and who can exercise constituent power for the purpose of making a global constitution beyond authoritarian regimes. While presumably all human beings are part of a dormant global constituent power, some method of appointing representatives who are delegated the responsibility to negotiate a constitutional agreement will have to be selected. The current practice of treaty making involves executives, empowered by domestic constitution to conduct foreign relations, appointing representatives (typically career bureaucrats) to negotiate with other states’ representatives. In authoritarian regimes neither the executives nor the bureaucrats have democratic legitimacy.
There are many alternatives to molding constituent powers on the current model of treaty formation in international law. One alternative could be a supranational constitutional assembly made up of representatives from different countries based on some rule of representation (proportional or not) especially elected for the purpose of making an international constitution. Building on the model of mixt or hybrid constituent power for the European Union, another one would be a bicameral supranational constitutional assembly in which one chamber is made up of representatives especially elected for the purpose of making an international constitution, and the second chamber is made up of elected officials on the basis of some geographical criterion of representation. 5 There are others.
Although I have already indicated two reasons to be skeptical that the representatives of authoritarian states will protect the interests of their citizens, let me add one more. A process of creating a new constitution at any level, whether domestic or international, cannot be successful if those who negotiate its rules are not committed to the values of constitutionalism as a legal and political project. It must rely on the participation of individuals who by and large display pro-constitutional social norms. At the international level, among these norms, the most important are:
- A commitment to peaceful coexistence among nations who disagree, sometime radically, on questions of justice; a commitment to inclusive processes of political representations, including fair elections and public political contestation; a commitment to constitutionalism as government bound by law, which operates within limited delegated powers, and whose officials cannot unilaterally change the limits of their own authority;
- A commitment to peaceful means of dispute resolution and joint action on collective issues. These involve authorizing third party, neutral institutions such as courts and tribunals for arbitrating disputes, and creating non-optional mechanism for providing public goods and avoiding public bads.
- A commitment to the values and principles of human rights law such as respect for the dignity of each individual and the protection of her interest, and a commitment to equality, autonomy, and due process as bedrocks of all law, whether domestic or international.
- A commitment to delegating limited and specified powers to international institutions and organizations empowered for shared governance in the production of public goods; a commitment to formal safeguards for accountability and lawful governance, such as an independent system of international courts.
These are broad pro-constitutional norms that point to the range of issues over which the members of a global constitutional assembly could deliberate, but leave ample room for a wide choice of constitutional rules as well as orders of priority among them, and for various specifications and designs of institutions tasked with their interpretation and implementation.
We know well that in authoritarian countries the political elites lack a commitment to these values and principles, and in fact they stand in opposition to them. We often do not have reliable information on whether citizens in these countries share an opposition to constitutional values. In some countries we know citizens share the elites’ values to an important extent, as when majorities authorize and re-authorize autocratic rulers via democratic means. However, in other authoritarian settings, the values of the citizens may be at odds with the authoritarian commitments of political elites, and citizens have no way of expressing this divergence due to the absence of free elections, the lack of representative political institutions, the suppression of opposition parties, and totalitarian restrictions on free speech, freedom of conscience, and freedom of assembly and protest.
Thus, the citizens of authoritarian states can be said to have latent constituent power for global constitutional norms which they cannot (yet) articulate, activate, or exercise. Due to the defects of political representations distinguishing authoritarian political regimes, no way of selecting representatives from those countries would ensure faithful representation of the rights and interests of their citizens or a sincere commitment to the project of global constitutionalism. Until these countries transition to liberal democratic rule or permit free and fair electoral processes, their participation in the constituent power authorizing a new constitutional treaty must be reconsidered.
At this point a couple of qualifications are in order. First, a constitution resulting from the negotiation of an assembly that is not fully inclusive cannot claim to be a global constitution that applies to all. It must instead be adopted as a constitution with limited jurisdiction and authority only over the people or peoples who have expressly authorized it. This limitation will ensure that people living in authoritarian countries will not be subject to domination of constitutional rules that they have not themselves authorized.
Second, the new constitutional agreement can be accepted at any point by countries with previous authoritarian rule if and when they transition to liberal democratic political rule and can activate the dormant constituent power of their citizens. They can do so by generating credible popular assent to an international constitution via referendum or any other adequate form of expression and aggregation of collective political preferences of the post-constituent constitutive powers of their citizens. At that point the citizens of these countries must be given a full role alongside other members of the global constituent power in affirming and re-imagining global constitutional rules as legislators, editors, and reflexive interpreters of those rules. 6
Objections
The argument so far may raise concerns that I am advocating denying citizens in authoritarian countries representation in the making of a global constitutional arrangement. I am thus compounding the injustice of their being denied a voice in domestic constitution-making with denying them a voice in a global constitution-making. However, reading my argument this way would be a misrepresentation. My main aim is to diagnose a pervasive problem in international law in the context of a putative constitutional agreement. The problem is that there is no easy path to the representation of the rights and interests of people living under authoritarian regimes, and relying on the inclusion of the political officials of these countries serves to mask rather than resolve the issue. Given what we know about authoritarian elites’ behavior domestically and internationally, their inclusion in processes of international law-making is not neutral with respect to their citizens interests and can be actively harmful.
The second objection to consider is that the procedural and substantive problems are not limited to authoritarian regimes alone. It is in fact not the case that
An adequate reply to this objection will acknowledge that the problem is not limited to authoritarian regimes alone. This means that we must consider representation in international law as a more general problem and think more creatively about ways to address it for constitutional democracies, authoritarian regimes, and everything in between. However, it is important to also point out that the difficulties of representation in the two types of regimes (constitutional democracies and authoritarian states) are of quite different scales and nature. There is a step change in the quality of political representation and accountability possible in constitutional democracies compared to authoritarian regimes. By their nature, constitutional democracies are more representative. This means that government officials participating in processes of international law creation on the whole more reliably track their citizens interests than authoritarian regimes. Insofar as political officials in constitutional democracies fail in their democratic mandates, this may invite a reconsideration of domestic constitutional allocations of international law competencies. I do not have the space to defend this point here, but one possible reallocation of constitutional competencies could be away from executives, which hold foreign relations powers and thus the competency to make international legal commitments in many concstitutional orders, and toward legislatures, which should be constitutionally empowered to make both domestic and international law.
A third objection could be raised about what this argument implies about standing to participate in constitution-making more generally. If we are adopting the perspective that authoritarian regimes should not be part of constitutional making at the international level, should we also adopt the view that individuals who do not display a commitment to constitutional values should be excluded from processes of domestic constitution-making? I think this is less a question about inclusion and more about how to think of situations in which a portion of the population lacks the necessary pro-constitutional commitments. Processes of public deliberation, filtration and aggregation by voting, and political representation significantly diffuse the challenge of having members of a community who do not support a constitutional project. But depending on the size of an anti-constitutional electorate, it may become impossible to have a liberal democratic constitution in communities in which a significant proportion of the population lacks the requisite norms. If the divide between citizens becomes too big, or the proportion of citizens who do not buy into the constitutional project are too large, constitutions projects cannot get off the ground. It may be that this is where a constitutional project in international law is at this specific point in time. Whether it will move closer or further away from the possibility of an international constitutional treaty will depend in part on the commitment of various publics and public officials to the project of global constitutionalism.
Finally, the bootstrapping view may suggest that it does not matter how a constitutional agreement comes into being. If we think that in many cases in which domestic constitutions have illegitimate origins but have subsequently been legitimated by constitutional subjects via various processes of articulation, activation, and exercise, then it might matter less what the origins of a global constitutional treaty are and if they involve representatives of authoritarian regimes. This is because we can expect that bootstrapping will be available at the global level as well, and subsequent processes of articulation, activation and exercise of constituent power will correct both the content and modes of authorization of constitutional rules.
However, this should not lead us to discount completely the need for just rules adopted by a legitimate process from the start. International agreements are path-dependent and hard to modify once adopted. The stakes of a global constitutional agreement are much higher, and the costs of getting it wrong both pervasive and immediate. This is why its rules and principles must reflect well-tested and widely shared constitutional principles from the start.
Thus, we should interpret the bootstrapping point differently. We can accept the exclusion of authoritarian countries from an initial constitutional bargain at the international level, and rely on subsequent bootstrapping, understood as participation by liberated publics in formerly authoritarian regimes which become able to activate and exercise new forms of political representation at the international level as they transition domestically to constitutional democracies. There is no one constitutional founding moment but many constitutional moments, and there will be many opportunities for exercising constituent power once a constitutional agreement is created.
Conclusion
The concept of constituent power is particularly well suited to help us understand and theorize the challenges of articulating a legitimate author for the constitution of international law. The purpose of this article has been to raise some challenges for how to conceive a global constituent power in charge of negotiating a constitutional treaty for international law. Even if the precise model according to which that global constituent power is conceived allows of many possibilities, I have argued that the citizens of authoritarian states lack constituent capacity. This means that although they have a latent constituent power for constitution-making at the global level, they cannot (yet) articulate, activate, or exercise it.
This argument has several implications. One is that initially, the reach and transformative power of a constitution for international law will be smaller. It will be able to legitimately claim authority over countries who can reliably ensure appropriate processes of activation and exercise of constituent power by their citizens. It will also mean that the collective action problems which can be addressed via constitutional means is going to be limited in number and scope, at least initially. Despite these shortcomings, a constitution for international law offers an opportunity to solve some commitment problems by states, to rethink the central values and principles of international law and the various ways in which they interact, and to create more effective mechanisms for their interpretation, application and enforcement. Answering the question of who should be empowered to make that constitution will be key to its success.
