1. Introduction
It has become popular in international legal scholarship to fight under the banner of the ‘constitutionalization’ of international law.Footnote 1 A significant part of European, particularly German, scholars are following what Jeffrey Dunoff and Joel Trachtman have called ‘the constitutional turn in international legal discourse’,Footnote 2 motivated perhaps by the increasing perception that international law is subject to the forces of globalization and fragmentation and seeing this situation as a historic chance to make international law more relevant and effective in the process. So far, criticism of this scholarly trend has been muted.Footnote 3 However, the reaction of the ‘constitutionalizers’ to anticipated criticism can be taken to gauge what its basis could be,Footnote 4 yet criticism so far – mostly concerned with the appropriateness of the domestic analogy and the question of the primacy of state sovereignty in international law – sounds less than convincing. Moreover, according to the view espoused in this article, both debates miss an important problem of the constitutionalist approach. Hence a critique from a specific point of view and with a specific argument will be attempted in the following pages.
What, then, is the problem with constitutionalist scholarship? It is submitted that the use of language in this case has a mythological function. Uttering the word ‘constitution’ in connection with the analysis of legal regulation suffices for many scholars in making assumptions about what this constitution is. Certain content, for example, is now implicitly included or excluded; certain epistemological methods are now required. Those writing on the topic may feel the need for (literally) a ‘value-added’ concept of constitution. Polemically speaking, this could be identified as a subconscious need to find a deeper meaning behind the patchwork of international legal regulation. It could also be seen as a very potent argument by the cosmopolitan internationalists who form the majority of international legal scholarsFootnote 5 for making the world a better place through their analysis of law as constitution.
In other words, it will be shown on the basis of a specific methodological trait which constitutionalist writings exhibit that scholarship here claims competencies which it does not have. This article will use elements of the Pure Theory of Law, put forward by Hans Kelsen, because its emphasis on methodological soundness – the commonsensical proposition that legal scholarship relies on legal methodology to find out about the law – shows the limits of the constitutionalist project. It is also potent, because it can escape the constitutionalizers’ criticism; for example, it does not rely on a pre-legal notion of state sovereignty, as did Mattias Kumm's ‘statist paradigm’.Footnote 6
This methodological confusion which (according to the view espoused here) diminishes the benefits of the constitutionalist project for international law results in the adoption of non-legal methodology by constitutionalist scholars. Constitutionalists are not engaging in legal analysis when they adopt this approach. While this is legitimate as far as it goes (no one will deny the value of political science for the analysis of international legal relations), the heart of the matter lies in the law. The law does not change because of an empirical classification, whether as ‘constitution’ or as ‘tû-tû’.Footnote 7 However, the implicit and methodologically confusing claim is precisely that the constitutionalist paradigm somehow changes the law. Hence, in the following, we shall first look at the methodology that is implicitly espoused by constitutionalism (section 2), which is identified as relying on the concept of practical reason and which is then criticized from the perspective of the Pure Theory of Law. This is followed by a brief look at a specific case where constitutionalism shows legal consequences – the purview of Article 2(6) of the UN Charter (section 3). We shall conclude by drawing an alternative, legal, interpretation of the notion ‘constitution’ as the highest echelon of legal regulation in Kelsen's and Adolf Julius Merkl's pyramid of norm creation (section 4).
2. The methodology of international constitutionalism
2.1. Between international relations and political philosophy
International constitutionalism, although propagated largely by scholars of international law, is not a legal theory. As Michael Wood astutely points out, ‘Many international legal theories, including those that may be seen to fall under the heading of “constitutionalism,” are essentially policy approaches. As such they may be instructive . . . but they are policy constructs, not law.’Footnote 8 Among the scholars writing on constitutionalism we find a few who self-consciously reflect on method, and at one end of the scale we can see a clear descriptive approach. Dunoff and Trachtman, for example, speak of a ‘taxonomic, rather than normative [approach]’Footnote 9 one; the ‘constitutional matrix’ they develop is clearly marked as ‘an analytical tool and not [as] a normative argument’.Footnote 10
Yet on more than one front the assurances of methodological commitment to empirical science waver. One gets the impression – discussed further below – that scholars seem constrained by any one methodology; syncretism fighting under the banner of ‘holism’ is already apparent before we look at the constitutionalizers’ relationship to the legal method. Mattias Kumm's analysis, for example, ostensibly starts out with an empirical focus. For him, a ‘constitutional paradigm provides a cognitive frame that makes intelligible the legal and political world. It establishes a basic conceptual framework for the construction of public authority.’Footnote 11 The paradigm, in effect, ‘succeeds in reconstructing actual legal practice’, while adamantly not being ‘an institutional proposal for how the world should be governed’.Footnote 12 However, the very idea of a ‘cosmopolitan paradigm’ as espoused by Kumm transcends the barrier between empirical and normativeFootnote 13 modes of analysis, for cosmopolitanism is a political ideology, not a framework for empirical analysis. The connection drawn by Kumm of this paradigm to jurisprudential constructs for founding validity of norms (his paradigm ‘provides a thin account for the grounds of what positivists describe as the rule of recognition, or Grundnorm’Footnote 14); the notion of ‘public reason’Footnote 15 to which the phenomena have to conform; the fact that the paradigm of choice ‘projects the basic values underlying liberal democracy’;Footnote 16 and, most clearly, his view that cosmopolitanism ‘provides a morally more convincing account of constitutionalism’,Footnote 17 all point to a strong politico-ethical philosophical or ideological strain of constitutionalist thinking that is not restricted to Mattias Kumm's writings.
This leads us to Oliver Diggelmann's and Tilmann Altwicker's central insight, that
the world-constitutionalism argument cannot derive its force entirely from its explanatory value . . . In our view, the concept cannot be understood appropriately if it is regarded as a purely ‘analytical’ or ‘descriptive’ tool. It has a subtext which deserves our attention.Footnote 18
Martti Koskenniemi – while sympathetic to the constitutionalist movement – has equally clearly identified it as ‘a programme of moral and political regeneration. This is what I mean by the description of constitutionalism as a “mindset”.’Footnote 19 An example of how (political–philosophical) normative theories on how best to organize the polity – in the best tradition of political thinkers like Plato, Hobbes, or Kant – operate here is the substantialism (assigning an absolute value to terms) evident when it comes to defining ‘constitution’. Where ‘a purely formal concept of legitimacy appears insufficient’, there also ‘exists a substantive standard that needs to be fulfilled’.Footnote 20 This may sometimes take the form of cultural transplantation, to be found mainly among German scholars. Traits of German constitutional scholarship and constitutional culture are applied – adamantly not crudely transposing law – to international law. Lip service is paid to the fact that international law is not municipal law,Footnote 21 but deep-seated modes of domestic thinking are applied. The German tradition is very strongly one of substantialism, where the concepts of state, constitution, or individual rights tend to be treated as existing on a pre-legal plane which the law only recognizes. Thus the pathos in the language of the Grundgesetz and thus the clearly expressed notion of a pre-legal pouvoir constituant. This is a constitution written by natural lawyers. Yet one of the disadvantages of a substantialist definition is that one may find that the value and meaning-preferences are not reflected elsewhere. It is in this spirit that Michael Wood argues that ‘[t]he word “constitution” has no particular meaning in international law.’Footnote 22
Even before we add the legal method into the mix, it becomes clear that constitutionalism is an intermixture of methodologies – a holistic interdisciplinarity – which can be contrasted to Otto Pfersman's recent cry for the adoption of Kelsen's concept of pluridisciplinarity – that is, ‘the strict distinction between disciplines while using multiple disciplines contemporaneously (each according to its own object of cognition and within its own canon of method) ’.Footnote 23 As will be argued when we look at the intermixture of empirical and normativist/legal methods below, the dangers of syncretism outweigh its potential benefits.
2.2. The methodological circle and the problems of a practical reason
1. The methodological plurality that marks constitutionalist scholarship is seldom clearly expressed.Footnote 24 One could, for example, see the approach as a mix of three elements which allows the proponents to withdraw to the next level when challenged.Footnote 25 First, it is asserted that one is merely analysing what is already positive international law. This can be challenged by pointing out the many overly optimistic claims about the reach of positive normsFootnote 26 and that the theoretical basis for commonly held doctrines of orthodox scholarship is not questioned. Bardo Fassbender, for example, argues that ‘[t]oday, the constitutionality of such legislative acts of the [Security] Council is generally accepted’.Footnote 27 However one may stand on the issue of ‘legislative acts’ of the Council, to say that this is ‘widely accepted’ is too optimistic in the face of the intense debate on this point.
If it is confronted by counter-arguments, the position shifts to the claim that, even if international law has not yet got this far, this is an emerging trend or a proposal de lege ferenda.Footnote 28 Yet many of these designs are unlikely to be realized. In other words, the analysis is allowed to be undermined by the analyst's personal ideas of the preferred outcome and is unrealistic in its projections. When challenged, the argument morphs again: the trend identified should be realized, some absolute norm makes this the ideal solution, international law has to work for the betterment of mankind, and it therefore has to be consitutionalized.Footnote 29 The constitutionalists thus espouse a modern form of natural law theory, hidden under positivist rhetoric. Hence we find normativist analysis of a given legal order, a social scientist analysis of what is likely to happen or to be accepted, and an imposition of politico-moral personal values as overarching for all in a happy syncretistic admixture.
2. However, a slightly different aspect – or interpretation – of the methodological basis for constitutionalism will be discussed at length in this article. At quite a number of points in the writings that were used for this article, one can assert that the admixture of empirical, moral, political, and legal analyses is ‘falsifying’ the results from a legal point of view. This is what the present author would like to call the methodological circle in constitutionalism. Implicitly, impliedly, subcutaneously, somehow, constitutionalizers create an additional legal function from their prima facie taxonomic classification of legal orders or parts thereof as a ‘constitution’ or as ‘in the process of constitutionalization’. This additional function means that through scholarly analysis – by scholars calling something a constitution – the law is changed. In effect, some scholars derive elements, norms, or functions from their classification which cannot be found in positive law. Before we move on to the legal-theoretical classification and critique of this phenomenon, a few examples may show how the circle manifests itself.
i. Framing the cosmopolitan constitutionalism mentioned above, Kumm argues that the ‘argument presented here is a legal argument: . . . the basic conceptual framework [is] to be used for the interpretative reconstruction of an existing public law practice’.Footnote 30 While constitutional paradigms ‘do not determine specific outcomes’, the ‘cosmopolitan paradigm [nonetheless] reconceives public international law in light of constitutional principles’.Footnote 31 This could still be interpreted as concerned with legal epistemology, but it does raise the issue of whether ‘reconstruction’ of the law does not in effect purport to change the law in force. Recently, Alexander Somek has drawn our attention to the arguments on the borderline epistemology and legal change within constitutionalist scholarship. For him, ‘constitutionalization, as a legal process, happens somehow . . . Constitutionalization is a matter of reason and not of will’; it is ‘a result of a reasoning process that is conducted in an institutional [one is tempted to add: and scholarly] setting where reason matters and gives rise to real effects’.Footnote 32 The connection to ‘reason’ is indicative and will be discussed below.
ii. In his recent book Bardo Fassbender, finding that ‘in the work of Verdross and SimmaFootnote 33 the designation of the [UN] Charter as a “constitution” does not have consequences’,Footnote 34 argues more openly than Kumm that ‘a perception of a legal instrument as a constitution not only gives it a certain shape and contour but also a claim to a normative importance which will produce certain results’.Footnote 35 He cites Josef Isensee as an authority, who, however, discusses a categorically different phenomenon: Isensee speaks of the constitution itself (i.e. the text of the law) naming the Länder as ‘states’,Footnote 36 whereas for Fassbender it is scholars – not the law – who are naming the Charter a ‘constitution. Thus are ‘the legal consequences of a constitutional perception of the Charter’Footnote 37 constructed.
iii. In another important recent paper, the same author commits equally clearly to the normative significance of empirical classification. ‘Taking the constitutional character of the Charter seriously’, Fassbender argues, can be ‘a starting point for moving toward conditions in which the values pronounced in the Charter . . . are better and more evenly realized’.Footnote 38 This is followed by a quote from a 1972 article by Herman Belz which expresses the methodological circle most clearly: ‘The use of the term “constitutional” in a descriptive way . . . will have a normative connotation.’Footnote 39
3. The methodological circle is a manifestation of an older problem, and constitutionalism as a scholarly movement must face the problems of natural law. The claim can be made that, adopting the approach of the Pure Theory of Law, constitutionalists are necessarily natural lawyers, because to be what one might consider ‘relevant’ – in order to go beyond the banality of calling something a constitution without any consequences attached – the classification by the observing legal scholars has to create a legal effect. It is submitted that this scholarship relies on practical reason and as such is open to all the problems of the concept. The core problem of constitutionalist scholarship is a form of methodological syncretism. The Pure Theory of Law can help us in uncovering the problem and criticizing this stream of scholarship, because its consistently legal analysis and ethos of science can uncover such hidden inconsistencies.
The rest of this section will consider the Kelsenian interpretation and critique of that core concept of naturalist thought.Footnote 40 A word of caution may be appropriate, however, before we proceed to the minutiae. Adopting and applying Kelsen's views may mean that a disinterested intellectual-historical view of the development of the notion of practical reason from Aristotle to Kant and beyond may find that while Kelsen does cite the right pieces by the right authors, he places too little emphasis on the element of practical reason as ‘reason for action’, which, at least for Kant (as Bestimmungsgrund des Handelns or Willens),Footnote 41 was central vis-à-vis other aspects (discussed below) that Kelsen imputes. Norms as ‘reasons for action’ still remain a staple of legal theory, particularly in Anglo-Scandinavian traditions,Footnote 42 and they still form a source of misinterpretation of Kelsen's works.Footnote 43 Despite this, the symptoms as Kelsen describes them are there, even if they are not central to some of the historical meanings of ‘practical reason’. Furthermore, it is submitted that on this issue the Kelsenian critique of this concept of natural legal scholarship is effective as against constitutionalist methodology as well.
In reconstructing practical reason, νoῦς π ρ α κ τ ι κ ó ς (nous praktikos) or ratio practica, from the writings of Aristotle, St Thomas Aquinas, and Kant,Footnote 44 Kelsen locks on to the tension between ‘practical’ (relating to norms – what one ought to do) on the one hand and ‘reason’ (as cognitive faculty) on the other hand.Footnote 45
Reason denotes the cognitive faculty of humans. Norm-creation or legislation, however, is not an act of cognition. When a norm is created it is not the case that a pre-given object is perceived as and to the extent it actually exists, but a claim is made that something ought to be. In this sense norm-creation is a function of will, not of cognition.Footnote 46
Regarding Kant, Kelsen highlights that Kant identifies will and practical reasonFootnote 47 and that only because practical reason is will can it be seen as norm-creating.Footnote 48 Hence will and reason are identified by the theorists of practical reason – a categorical mistake, thinks Kelsen.
The term ‘practical reason’ is thus the result of an illicit admixture of two categorically different . . . faculties of human beings. Kant admits ‘that at the end it can only be one and the same mode of reason . . .’.Footnote 49 If there is only one reason, it will cognize in both its modes of usage; hence the modes can only be different in relation to the object . . . of cognition. If [it] is one and the same mode of reason, it cannot at the same time cognize as theoretical [reason] and perform a completely different function as practical [reason], i.e. will (in this case: create norms).Footnote 50
This argument is adopted to ‘justify the subjective value judgments which emerge from the emotional element of his consciousness; man tries to present them as objective principles by transferring to them the dignity of truth’.Footnote 51 In the end, Kelsen's potent critique of practical reason is that, by simultaneously being will and reason, it ‘destroys the dualism of Is and Ought’,Footnote 52 which, in turn, casts doubt on the possibility of norms.
4. As mentioned above, it is submitted here that one of the essential features of the constitutionalist method can be seen to fall under the Kelsenian interpretation of this feature of practical reason. The cognition by scholars of something as constitution creates norms; in constitutionalist rhetoric, the tension between will and thinking, between volition and cognition is established in the same way as the natural lawyers – and has to face the same objections. However, through a process which can be called ‘theory amnesia’ along the lines proposed by Otto Pfersman,Footnote 53 constitutionalist scholars ‘forget’ that their argument – subcutaneous as it may be – stands in this tradition and accordingly they are not aware of this aspect of their approach. Crucially – because this aspect of constitutionalist method is not new – the counter-arguments that have already been developed in response to the more established approach (naturalism) can be brought to bear against the new trend in scholarship as well.
2.3. Consequences: constitutional interpretation as modification?
‘All this is very fine’, one could object at this point, ‘but what does it mean in practice that the constitutionalizers derive law from taxonomy? Is it not a case of a theoretical basis having no relevance for the practical workings of the law?’ True, the methodological circle is subcutaneous and its consequences are not likely to be discussed openly. However, as pointed out above, it does come to light sometimes – most often as a plea for a specific ‘constitutional’ interpretation or reading of positive norms of international law, or for a different understanding of the received law in the light of the constitutionalist paradigm.Footnote 54 Thus we shall discuss that plea and its fundamental or theoretical critique here, while the concrete example of Article 2(6) of the UN Charter will be analysed in Section 3.
Many of the constitutionalizers’ arguments on this head are related to a somewhat more established tradition that argues for different rules of interpretation to apply to the UN Charter,Footnote 55 to constituent instruments of international organizations, or to traités-lois in general – connected with the jurisprudence of the International Court of Justice (ICJ) in, inter alia, Reparation, Certain Expenses, and Namibia.Footnote 56 In the light of this tradition, the scholars discussed can be seen as merely continuing it: ‘an interpretation of the Charter as constitution must aim to establish, at the time of interpretation, its objective meaning . . . (“dynamic-evolutionary” or “objective interpretation”)’.Footnote 57 The same applies to the doctrine of ‘implied powers’, for ‘[d]etermining the powers that complete or supplement those expressly defined in the Charter is an indispensable method of constitutional development’.Footnote 58 This argument is often connected with the plea for a teleologicalFootnote 59 and instrumentalist ‘interpretation’.
A constitution, however, calls for another interpretative mode altogether . . . such an instrument, meant to last for the ages, should be seen as ‘a living tree’ . . . Applied to the interpretation of the UN Charter, this means, at the least, that the constitutive instrument establishing the United Nations should be read broadly so as to advance, rather than encumber, its institutional ability to accomplish the purposes for which it was created.Footnote 60
In Kumm's words, ‘characteristically public-reason-oriented, purposive interpretations and the proportionality requirement play a central role and are openly endorsed’Footnote 61 by the constitutionalists. In more critical terms, ‘[t]he interpretation of norms is thereby covertly transformed into a means–ends test in which norms are submitted to instrumental scrutiny and consequently adjusted and readjusted in light of their purpose.’Footnote 62
The main problem with this view is that interpretation cannot do what the constitutionalizers want it to do – they overestimate the legal powers of interpretation. Interpretation is a hermeneutic process: the cognition of legal norms. Humans start interpreting as soon as they look at a legal text; interpretation takes place, however clear the words may sound, because they only sound clear as a result of interpretation. In treaties, the text is the norm and all texts are subject to the inherent vagueness of language. Norms are merely a frame of possible meanings, not any one of those meanings themselves.Footnote 63 Legal scholars cannot decide between multiple choices by interpreting (cognizing) the norm. If one were to choose one possible meaning over others, one would add norms which do not belong to the normative order to be described,Footnote 64 and personal values would be superimposed on positive lawFootnote 65 in order to be able to choose, for example, the ‘constitutional reading’ of a norm. Interpretation as a hermeneutic process therefore by definition cannot change the norm or its possible meanings.
Any claim to change the norm by interpretation is an example for the methodological circle. Instrumentalist scholarship presets values from outside the legal order and applies it to the law to come to a predetermined solution. If norms should now be interpreted in a specific, purposive way, where do the norms ‘should be interpreted’ and ‘interpreted in constitutionalist sense’ come from? If anything, constitutionalist (instrumentalist) interpretation now closes the methodological circle. Not only do we have a repetition of the methodical syncretism displayed above (section 2.2) – scholarly cognition (namely interpretation) changing the law (by ‘reading’ the law in a constitutional light – see section 3) – but we are also faced with a circulum vitiosum, for only through instrumentalist interpretation is the result that instrumentalist interpretation is mandated established in the first place. The premise incorporates the conclusion – but this is not a new feature of international legal scholarship.
3. A constitutionalized reading for Article 2(6) of the UN Charter?
At a more concrete level, the constitutionalist avant-garde clearly shows the consequences of the constitutionalist reading of international law. In the following, we shall analyse and critique a constitutional reading of Article 2(6) of the UN Charter, for it is here that the practical relevance of theory is demonstrated. It is here where, according to the Kelsenian ideal of legal scholarship, the methodology adopted by constitutionalists arguably hampers rather than improves our knowledge of the positive law.
Article 2(6) provides, ‘The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.’ Hence, so it has variously been claimed,Footnote 66 the Charter does attempt to prescribe duties for non-parties. Understandably, this reading of Article 2(6) accords with constitutionalist ideology and, accordingly, is taken up by our scholars; however, it takes on the specific flavour of constitutionalist rhetoric.
The most erudite and complex argument for a rereading of Article 2(6) in a constitutional light has been developed in Bardo Fassbender's recent book.Footnote 67 A ‘self-authorizing . . . revolutionary grand design’Footnote 68 is dismissed for the purposes of his argument and a more circumspect route is adopted. This may be motivated by the fact that, as he admits, ‘the claim that the Charter itself lays to the allegiance of non-member states . . . is phrased in rather cautious terms’.Footnote 69 Thus he argues ‘that it is a functional interpretation of the concept of sovereignty’ – one presumably where functionality, namely instrumentality, is supplied by the constitutionalist paradigm – ‘which explains the Charter's universal legal force, and accordingly legitimizes’Footnote 70 the claim made by Article 2(6).
The maxim pacta tertiis nec nocent nec prosunt has been at the focus of the traditional debate on the reach of Article 2(6), and has been given as a main reason why its reach is limited;Footnote 71 indeed, it might be true to say that ‘[t]he overwhelming majority of commentators maintain . . . that Art. 2(6), being a norm of mere treaty law, can have no binding effect vis-à-vis non-member States.’Footnote 72 In his argument, Fassbender attempts to turn the tables on the pacta tertiis rule and adopts a reinterpretation of sovereign equality in order to come to a conclusion that would benefit constitutionalism, but which, in effect, eliminates the need for Article 2(6).
The argument starts by interpreting the Charter as treaty in favour of third states, for ‘non-member states would benefit from the protection granted by the Charter . . . [y]et [they] would not be subject to any obligation set out in the Charter.’Footnote 73 For Fassbender,
[i]t is obvious that such a privileged position for some states would go directly against the fundamental principle of equality . . . It follows from the concept of sovereign equality itself that if a state can refer to Chapter VII as a remedy against unlawful action by other states, it must also be a possible addressee of Chapter VII measures when it violates the Charter.Footnote 74
One just wonders at this point about the position of the permanent members of the Security Council. Surely their exalted position in the Charter is contrary to the principle of sovereign equality – after all, they receive the benefit of Chapter VII action while no Chapter VII action can be brought against them. So why should not the Charter law be ‘disregarded’ in the light of an instrumentalist reading of international law, rather than the pacta tertiis rule (if it is indeed a norm of positive international law)?
Furthermore, if indeed the pacta tertiis rule ‘itself is based on principle of sovereign equality’ and ‘it is not by virtue of Article 2, paragraph 6 that the Charter is binding on non-member states’ but ‘because of the overriding principle of sovereign equality’,Footnote 75 one might wish to consider that if the law privileges non-parties as against treaty parties by allowing non-parties the benefits of the parties’ compliance with the treaty,Footnote 76 it is the law that establishes the difference. Understood in this sense, sovereign equality would be broken as part of the law everywhere and does not hinder the existence of differentiated obligations. The non-membership of Canada in the ECHR, for example, does not mean that it is bound by it nonetheless. Because Canada is not bound by the ECHR, Canadian subjects enjoy the protection of the ECHR in Europe, while Canada does not have any obligations under the ECHR. This ‘privileged position’ of Canada does not mean that this would violate the principle of sovereign equality vis-à-vis Germany, for example. On a legal view, sovereign equality only means that the subjects of law are a priori equal before the law and if the law differentiates, the equality is not broken.
The political and instrumentalist nature of such a line of argument can be taken from the conclusions that Fassbender draws:
Seeing the Charter as a constitution that applies to all community members offers the best possible explanation for the demands made on non-member states by Articles 2, paragraph 6, and 103 . . . It is true that the two provisions ‘are merely partial answers . . .’ Nevertheless, they give a strong hint of its constitutional character.Footnote 77
Then, of course, we have an issue that seems minor to many of the commentators on Article 2(6), the Kelsen of The Law of the United Nations (1950) included.Footnote 78 The paragraph simply cannot be read to include a duty for non-members. It says very clearly that the ‘Organization shall ensure’ – non-members are not addressed at all. This reading not only ‘comes closest to the actual wording of Art. 2(6)’,Footnote 79 there is no possible interpretation – as cumulative possible meanings of a norm – which would incorporate a prescription for any entity but the UN as juridical person.Footnote 80 Kelsen himself has become notorious in this connection for supporting a wide interpretation of Article 2(6), but this can only be understood within Kelsen's coercive order paradigm, which itself is a rather problematic element (even if one popular with other positivists) of Kelsen's oeuvre.Footnote 81
According to that paradigm, ‘[a] feature common to societal orders designated as law is that they are coercive orders in the sense that they react to anti-social “facts”, especially to such human behaviour, by [prescribing] an evil’Footnote 82 – that is, sanctions. If coercion is the legal reaction against certain behaviour, a normative order can be called law. Hence Kelsen is adamant that
The Charter establishes a true legal obligation of Members to behave in a certain way only if it attaches to the contrary behaviour a sanction. If the Charter attaches a sanction to certain behaviour of non-Members, it establishes a true obligation of non-Members to observe the contrary behaviour.Footnote 83
If (and that is the crucial point) the coercive order paradigm is relevant (Kelsen keeps open the possibility of not interpreting the Charter according to that paradigm):Footnote 84 ‘the Charter imposes . . . [obligations] indirectly also upon all the states which are not members of the United Nations’.Footnote 85 This is so only
provided it may be interpreted to mean that the Organisation is authorised to react against a non-Member state which does not act in accordance with . . . Article 2 with a sanction provided for by the Charter. There can be little doubt that such interpretation is possible at least with respect to the enforcement measures determined in Chapter VII of the Charter. According to the wording of the articles concerned, these enforcement measures are not restricted to Members.Footnote 86
Is not the question whether the Charter does indeed authorize the UN to take enforcement measures (outside the purview of Articles 53(1) and 107) vis-à-vis non-members determined by Article 2(6), rather than by Chapter VII? Kelsen realizes that this would be a dramatic departure from received law and uses language that reminds us strongly of present-day constitutionalizers:
In Article 2, paragraph 6, the Charter shows the tendency to be the law not only of the United Nations but also of the whole international community, that is to say, to be general, not only particular international law . . . [T]his tendency is in contradiction to one of the fundamental principles of existing international law[.]Footnote 87
The resemblance to the scholarly approach discussed here is uncanny. Understandably, Fassbender places much emphasis on Kelsen.Footnote 88 But is Kelsen in line with the constitutionalist paradigm? It is submitted here that there are some important differences, starting with the commitment of the Pure Theory to methodological purity of a specifically legal scholarship vis-à-vis the constitutionalizers’ syncretism. Accordingly, for Kelsen, such a claim may be made by legal norms, but ‘[f]rom the point of view of existing international law the attempt . . . must be characterised as revolutionary.’Footnote 89 A revolution establishes a new legal order on top of another; that is, it does not rely on the ‘old’ order for its validity. There simply is no way to decide between the two orders on the basis of a ‘better’ validity. The man in the street could establish such an order simply by willing that he be regarded as the world's only lawgiver; his claim would be irrelevant from the point of view of existing international law, but it would establish a legal revolution, however laughable the attempt may sound. From the point of view of a Pure Theory of Law, however, reliance on factual criteria – whether the claim of the man in the street or the Charter's illicit claim (if Article 2(6) were interpreted in such a fashion) is effective or not – does not change or end the validity of the norms thus established. Effectiveness as well as Kelsen's coercive order paradigm can only be a tactical choice for a scholar as to which legal orders it makes most sense to analyse. It is an empirical decision not impinging on the validity of norms.Footnote 90
4. The Pure Theory of Law and the structural constitution
As against the constitutionalists’ theories, the Pure Theory of Law can produce only a pallid conception of the constitution of international law. For those used to a more ‘dense’ conception of ‘constitution’, the positive law must remain unsatisfactory and full of gaps if Kelsen's own view, that substantive decisions cannot be pre-made by the scholar, is applied. The only small advantages of the Pure Theory's structural view of the constitution – reduced as it is – are, first, that it tends to reflect the law in force more accurately and, second, that the structural or formal view is more in keeping with the law as form – that is, as a type of vessel which can be filled with almost any content.
The asceticism demanded of scholars by the Pure Theory of Law is not welcome in present-day international legal scholarship.Footnote 91 ‘This is so because it is very difficult to limit one's gaze to the realm of the Ought . . . in the face of the eternal temptation to escape to the real world, the realm of the Is, and to explain what actually happens.’Footnote 92 Yet in using Kelsen's ideas of constitutionFootnote 93 we may find that this different, structural, conception of constitution – while not helpful to the constitutionalists’ political programme – is better able to reduce the notion to its legal core.
Kelsen classifies constitutions as either formal or material. A ‘constitution in the formal sense’ is a statute calling itself ‘constitution’ and regulating certain matters, constituting a statal organization and creating specialized organs such as parliaments and governments.Footnote 94 What Kelsen calls a ‘constitution in the material sense’Footnote 95 is perhaps better described as a norm-logical or structural constitution. Every legal order necessarily has a constitution, even though its form is determined by positive regulation. That constitution is the highest echelon of positive authorizing norms in a given normative order.Footnote 96 For Kelsen, the notion of constitution is intimately connected with the hierarchy of norm-creating norms vis-à-vis norms created under it.
The structural constitution has an ordering function, and the formal sources of international law – as hierarchically higher norms determining norm creation – are the foundation of the international legal order. We could say that the Pure Theory is no more than a theory of sources,Footnote 97 because the structure of normative orders depends upon the authorization to create norms.Footnote 98 Yet because a source usually allows the creation of many norms, norms with a common ‘pedigree’ belong to the same source, which Adolf Merkl would call a legal form (Rechtsform).Footnote 99 The ‘hierarchy of legal conditionality’ is a necessary element of all normative orders. This, the concept of the Stufenbau, is one of the most important contributions of the Vienna School of Jurisprudence to legal theory,Footnote 100 allowing for a hierarchical ordering of norms on a purely legal, formal, and structural basis without admitting external elements such as scholar's political value preferences.
But how is it determined which sources international law has? This is one of the crucial questions of international law. The answer of the Pure Theory may be theoretically clear, but it is of little practical value. The notion of a structural constitution (the highest positive norms of a legal order) at least allows us to ask the right questions: which norms of international law empower the creation of norm-creating norms?Footnote 101 Are there positive norms of international law that create source-law?Footnote 102 In no case can scholars assume that the traditional trias of sources in Article 38 of the ICJ Statute has pre-legal statusFootnote 103 – they will have to find out whether there is such positive law. But this is extremely difficult, if not impossible, because in all likelihood no one bothered actually to create law at this high level. Hence we may be faced with as many constitutions of international law as there are formal sources. By default – if we cannot prove a normative superstructure – the main sources would not be connected by normsFootnote 104 and, consequently, would not be hierarchically ordered.
Parts of constitutionalist scholarship claim that ‘the Charter is the supporting frame of all international law’Footnote 105 because a revolution (section 3) took place in 1945 which mediated the rest of international law through incorporation.Footnote 106 This is achieved by ‘the rules of law making in article 38 of the ICJ Statute’Footnote 107 becoming the source-law for all ‘ordinary’ international law. It is highly unlikely, however, that the drafters of the Charter, for all their talk of a new beginning after 1945, of a clean slate, actually intended the Charter to supplant ordinary international law and relegate the latter to being an appendage of the former, rather than seeing the Charter as a further treaty of great political importance. What is more, the concrete terms of the Charter and the Statute will not support such an interpretation. Article 38 of the ICJ Statute is an applicable law clause for a particular international tribunal and is formulated as such. Not without reason it is not part of the Charter sensu stricto, where we would have expected such a massively important incorporation clause. Not without reason does it say that ‘[t]he Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply’ (emphasis added), and it does not say that the following litera are the basis of validity of, say, customary international law itself. Moreover, how can a treaty include the formal source of all treaties without begging the question, for on what legal basis does the Charter operate? In the end, this is perhaps yet another example of the overly optimistic – less kindly one might be tempted to call it ‘tendentious’ – reimagining of international law to make it fit the constitutionalist paradigm (section 2.2).
5. Conclusion
In critiquing constitutionalism as a scholarly movement from a viewpoint that seeks to keep the various scholarly methodologies apart, we seem to be faced with a rather stark choice. International constitutionalism according to this view is either banal or illicit. Either it is an empirical taxonomy of a legal order as ‘constitution(al)’, which has no consequences and for a legal scholarly analysis is as irrelevant as our calling a rose a ‘stench-blossom’Footnote 108 is for its smell. If legal consequences are created from this taxonomy – and the clear tendency is to do so – the law is claimed to be changed by means other than the law provides. On balance, it is a project to advance internationalist or cosmopolitan values vis-à-vis the perceived interests of national states, nationalism, and ‘anti-international developments’.Footnote 109 In other words, it is political activism by international legal scholars – how else to interpret the following: ‘international constitutionalism as an attempt to establish and control international power remains a worthy endeavor’?Footnote 110
Perhaps we really do need Philip Allott's revolution of the mind – a true and complete re-formation (in the literal sense) of the legal bases of the international legal system.Footnote 111 In no case, however, can this revolution be achieved by scholars who take it upon themselves to change the positive law through their legal analysis. International law does not have certain features because scholars say it does. In this respect the Pure Theory's keeping law and external elements apart and the ‘scientific’ rigour in not allowing cognition to create law may make it a beneficial tool for the analysis of the constitutional elements of international law and for the critique of scholarship's designs for the law.
