8 Does the Constitutionalization of International Law Still Have a Chance?1

The Introduction

Divided As the European system of states was taking shape, phi losophy, in the persons of Francisco Suarez, Hugo Grotius, West and Samuel Pufendorf, still played the role of pacemaker in the creation of modern international law. Moreover, when legally constrained international relations later stabilized at the level of violence of so-called cabinet wars BY JORGEN HABERMAS [Kabinettskriege], philosophy assumed this role a second time. With his conception of a-"cosmopolitan condition" or "wekburgerlichen Zustand," Kant took a decisive step Edited and Translated by beyond international law centered exclusively on states. Since then, international law hasnot only developed into CIABANCRONIN a specialized brand of legal theory. Following two world wars, the constitutionalization of international law has evolved along the lines prefigured by Kant toward cosmo politan law and has assumed institutional form in inter national constitutions, organizations, and procedures.2 Since the end of the bipolar world order and the emergence of the US as the pre-eminent world power, an alternative to the evolution of a cosmopolitan constitution has emerged. A world dominated by nation-states is indeed 2-00 in transition toward the postnational constellation of a polity global society. States are losing their autonomy in part as they become increasingly enmeshed in the horizontal

115 THEKANTIANPROJECT THECXJNSTITUTIONALIZATIONOFINTERNATIONALLAW

networksofaglobalsociety.3Butinthissituationthe accordprioritytoitsown,ethicallyratherthanlegally,

Kantianprojectofacosmopolitanordernotonlyhasto justifiednationalinterests,evenovertheobjectionsofits

confrontthetraditionalobjectionof"realists"whoaffirm allies.Themarginalizationoftheworldorganizationbya

thequasi-ontologicalprimacyofbrutepoweroverlaw. superpowerbentongoingtowarrepresentedadramatic

Otheropponentsarecurrentlyemergingwhoadvocatethe challengetoexistinglaw.

liberalethosofasuperpowerasanalternativetolaw. Hence,thequestionarisesofwhetherthereisanything

Ontherealistconception,thenormativetamingof amiss,normativelyspeaking,inthisimperialapproach,

politicalpowerthroughlawispossibleonlywithinthe assuming,at leastforthesakeofargument,thatthe

confinesofasovereignstatewhoseexistenceisfounded Americanactioncouldhaverealizedmoreeffectivelythe

onitscapacitytoassertitselfwithforce.Onthispremise, samegoalswhichtheUnitedNationshadhitherto

internationallawmustforeverlackthecuttingedgeof pursuedhalf-heartedlyandwithscantsuccess.Or,even

alawarmedwithsanctions.Today,amorefar-reachinggrantingthiscounterfactualassumption,shouldwenot

conflictissupersedingthedisputebetweenKantianideal ratherholdsteadfastlytothealternativeprojectofa

istsandrealistsoftheCarlSchmittschooloverthelimits constitutionalizationofinternationallawanddoour

tothejuridificationofinternationalrelations.4Theproject utmosttobringafutureUSgovernmenttorecallthe

ofanewliberalworldorderunderthebannerofapax world-historicalmissionembracedbyPresidentsWilson

Americanaadvocatedbytheneoconservativemasterminds andRoosevelt,ineachcasefollowingacalamitousworld

ofthecurrentUSadministrationraisesthequestionof war?FortheKantianprojectcanonlycontinueiftheUS

whetherthejuridificationofinternationalrelationsshould returnstotheinternationalismitembracedafter1918 besupersededbyamoralizationofinternationalpolitics and1945andonceagainassumestheroleofpacemaker

groundedintheethosofasuperpower. intheevolutionofinternationallawtowarda"cosmopoli

Idealistsandrealistsclashedoverwhetherjusticeis tancondition." evenpossibleinrelationsbetweennations;5thenew A situationmarkedbyterrorismandwarandbydis dispute,bycontrast,isoverwhetherlawremainsan paritiesinglobaleconomicdevelopmentthataremerely appropriatemediumforrealizingthedeclaredgoalsof amplifiedbytheunfortunateconsequencesoftheIraq achievingpeaceandinternationalsecurityandpromoting Warcompelsustoreflectanewonthisissue.Granted, democracyandhumanrightsthroughouttheworld.Now nowadaysphilosophycanatmostplaytheancillaryrole thecontroversyconcernsthepathbywhichwecanachieve ofelucidatingthe conceptsemployedinthespecialized thesegoals,whetherviathelegallyestablishedprocedures treatmentsofinternationallawyersandpoliticalscien ofaninclusive,butoftenweakandselective,worldorga tists.Whereastheroleofpoliticalscienceistodescribe nization,orviatheunilaterallyimposeddecisionsofa thestateofinternationalrelationsandthatofjurispru well-meaninghegemon.Atfirstglance,eventsseemedto denceistogiveanaccountoftheconcept,validity,and havesettledtheissuewhenSaddam'sstatuewastoppled contentofinternationallaw,philosophycantryto fromitspedestalinBaghdad.BythentheUSgovernment clarifycertainbasicconceptualfeaturesofthedevelop hadignoredinternationallawtwice,firstwithitsprocla mentoflawinthelightofbothexistingconstellations mationofaNationalSecurityStrategyinSeptember2002 andvalidnorms.Onlyatthislevelcanitcontributeto andthenwiththeinvasionofIraqinMarch2003.In thediscussionofwhethertheKantianprojectstillhas addition,ithadsidelinedtheUnitedNationsinorderto afuture.

116 117 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW

Before returning to this question at the end of the International law lays down the rules of the game8 and chapter, I would like in the first part to detach the idea determines: of the cosmopolitan condition from its conceptual linkage with the concrete notion of a world republic. In the second, (a) the qualifications that potential participants must historically oriented part, I will examine the trends which satisfy: a sovereign state must be able to exercise have promoted or hindered the constitutionalization of effective control over its social and territorial bound international law, properly understood. aries and maintain law and order; (b) the admission requirements: state sovereignty rests on international recognition; and Politically Constituted World Society vs. (c) the actual status: a sovereign state can conclude World Republic treaties with other states. When conflicts arise, it has the right to declare war on other states without Classical international law and "sovereign equality" offering supporting reasons {jus ad helium), but it may not intervene in the internal affairs of other Kant deplores the idea of wars of aggression6 and questions states (the prohibition on intervention). the right of sovereign states to go to war, i.e. the jus ad helium. This "right," which is "strictly speaking, unintelli These principles entail a series of consequences: gible,"7 constitutes the structural core of classical interna tional law. This set of rules derived from customary law • there is no supranational authority to sanction and and treaties reflects the contours of the European state punish violations of international law; system which took shape following the Peace of Westpha • a sovereign state can violate standards of prudence and lia and remained in place roughly until 1914. With the efficiency, but it cannot violate moral norms: its behav exception of the Vatican, only states - and until the middle ior is treated as morally indifferent; of the nineteenth century only European states - were • the immunity enjoyed by states extends to their admitted. Thus tailored exclusively to the participation of representatives, officials, and functionaries; "nations," classical international law was constitutive for • sovereign states reserve the right to prosecute and try "inter-national" relations in the literal sense. It represents crimes committed in war (in accordance with the jus nation-states as participants in a strategic game: in hello)) • third parties may remain neutral vis-a-vis warring • states enjoy sufficient de facto independence to make parties. autonomous choices and act on their own preferences; • guided by the imperatives of self-assertion and self- Thus, the normative content of classical international defense, they pursue exclusively their own preferences law extends only to according equal status to sovereign (understood as "national interests") and the security of states, a status that rests on the reciprocal recognition of their citizens; subjects of international law, without regard to differences • any state can form coalitions with any other state and in size of population, territory, and actual political or they all compete to increase their political power economic power. The price for this "sovereign equality" is through their ability to exert military threats. the acceptance of war as the mechanism for regulating

118 119 THEKANTIANPROJECT THECX3NSTmjTlONALIZATIONOFINTERNATIONALLAW

conflictsandthusthefreedomtoresorttomilitaryforce astatethathiresitscitizens"tokillorbekilled"degrades Thisprecludesthepossibilityofhigherimpartialjudicial theminto"meremachines."10

andProsecutonalauthorities.Thesetwofeaturesaccount

torthesottcharacterofinternationallaw,whoseeffec

tivenessremainsdependentinthefinalanalysisonthe Peaceasanimplicationoflaw-governedfreedom

sovereignwillofcontractingparties.Theefficacyofinter

nationaltreatiesissubjectinprincipletothequalification Theabolitionofwarisacommandofreason.Practical thatthesovereignpartiesreservetherighttosubstitute reasonfirstbringsthemoralvetotobearagainstsystem

politicsforlawwhenevertheyseefit. atickilling:"thereistobenowar,neitherwarbetweenyou

Thepoliticalconstellationunderlyingclassicalinterna andmeinthestateofnaturenorwarbetweenusasstates,

tionallawisdifferentfromthatunderlyingstatelawThe which,althoughtheyareinternallyinlawful a condition,

powerofthestatewhichsecurestherightsofcitizensis arestillexternally(inrelationtooneanother)inlawless a

itselfboundbylaw.Atthenationallevel,thepolitical condition."11ForKant,however,lawisnotmerelyasuit

authorityofthestate,whichisfirstconstitutedinthe ablemeansforestablishingpeacebetweenstates;rather,

tormsoflaw,andlaw,whichiscontingentonthesanction heconceivesofpeacebetweennationsfromthebeginning

ingpowerofthestate,aremutuallyinterdependent.This intermsoflegalpeace.12Thisisanimportantdifference

interdependenceof"politicalpower"and"law"isabsent betweenKantandHobbes.

attheinternationallevel,whereanasymmetricalrelation LikeHobbes,Kantinsistsontheconceptualconnection betweenpowerandlawpersistsbecauseinternational betweenlawandsecuringpeace.However,incontrast legalregulationsreflecttheunderlyingpowerconstella withHobbes,hedoesnottracethelegalpacificationof tionsbetweenstateswithoutnormativelytransforming societybacktotheparadigmaticpledgeofobedienceby them^Lawexpressesand,incertainrespects,shapesrela thesubjectsoflawinreturnforthestate'sguaranteeof

tionsbetweensovereignpowers,butitdoesnoteffectively protection.FromKant'srepublicanperspective,thereis constrainthem. insteadaconceptualconnectionbetweentheroleoflaw Henceclassicalinternationallawcanexerciseaninher inpromotingpeaceandtheroleofalegalconditionthat entstabilizingeffectonlytotheextentthattheformally citizenscanacceptaslegitimateinpromotingfreedom.

equalstatusofthesubjectsofinternationallawis"backed" Thecosmopolitanextensionofaconditionofcivilliber byadefactobalanceofpowers,alwaysassumingthat tiesfirstsecuredwithintheconstitutionalstateisnotonly warringpartiesacceptatacitagreementtorespectcertain pursuedbecauseitgivesrisetoperpetualpeace,butalso limitsontheuseofviolenceinwarasmorallysacrosanct foritsownsake,asacommandofpracticalreason.Hence, Kantcontestsbothoftheseassumptionsonempirical "establishinguniversalandlastingpeaceconstitutesnot groundsWiththecontemporaryexampleofthedivision merelyapart...butratherthefinalendofthedoctrine otPolandinmind,hedescribestheroleofthebalanceof ofright."Theideaofa"peaceful,evenifnotyetfriendly, powerinpromotingpeaceasa"merefantasy."9Andit is thoroughgoingcommunityofallnations"isaprincipleof notonlythehorrorsof"warsofpunishmentandextermi right,notmerelyacommandofmorality.13Thecosmo nation"thatareamoralscandalforKant.Evencabinet politanconditionisjusttheconditionofpeacemade warsconductedwithstandingarmiesareincompatible permanent.Theideaofthecosmopolitanconstitution withtherightofhumanityinourownperson,"because whichguarantees"aunionofallpeoplesunderpublic

120 121 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW laws" has the meaning of a "genuine," definitive, and not inspiration from the revolutionary constitution-founding merely provisional condition of peace. acts of his time. The republics which emerged from the This conceptual connection between the telos of peace American and French Revolutions were the first and, at and the principle of law also explains the "cosmopolitan that time, the only examples of a form of law-giving that intent" of the philosophy of history, and hence the heu satisfied republican standards of legitimacy, "since all ristic standpoint from which Kant deciphers the course of decide about all, hence each about himself; for it is only history: "The problem of establishing a perfect civil con to oneself that one can never do wrong."19 From this per stitution depends on the problem of law-governed exter spective, a constitution for the international community nal relations among nations and cannot be solved unless was conceivable only in the form of a republic of repub the latter is."14 lics, that is, as a "republicanism of all states"20 or as a The reference to a "civil constitution" here is crucial: "world republic."21 In this way, the constitution of the international law, which regulates interactions among nation-state realized through revolution becomes the states, must be superseded by the constitution of a com model for the transition from classical international law munity of states. Only then will states and their citizens to cosmopolitan law - and misleads Kant into an over- enter into a "law-governed relation" to one another. hasty concretization of the general idea of a "cosmopoli By a "law-governed relation" Kant means one in which tan condition" or a constitution for the international the freedom of each coexists with the freedom of every community. In fact, there is no need to interpret the goal one else in accordance with a universal law.15 It is impor of a constitutionalization of international law in terms of tant to note that Kant shares Rousseau's material concept a world republic. of law.16 Laws satisfy the conditions of a pragmatic, and not merely a semantic, universality when they are the result of an inclusive procedure of will-formation marked From the law of states to the rights of by discussion and publicity.17 The danger of despotism world citizens lurking in all laws that are merely imposed from above can only be averted by a republican procedure, namely, a Before examining the problematic consequences of this fair process of opinion- and will-formation among all rash move, I would like to clarify the cosmopolitan those potentially affected. The laws of the international meaning of the construct of a world republic. This con community, too, will only take equal account of the struction renders war as a legitimate means of resolving interests of all states - regardless of their size and popula conflicts, indeed war as such, impossible, because there tion, their wealth and their political and economic power cannot be "external" conflicts within a globally inclusive - when they give expression to a will that is "united" commonwealth. What had hitherto been military con because it has arisen through an analogously inclusive flicts would assume the character of police actions and procedure.18 operations of criminal justice. Kant recognized, however, Kant uses the analogy of a "civil constitution" [staats- that the idea of a world republic could degenerate into biirgerliche Verfassung] to lend concrete content to the something different from a supranational legal order to general idea of a "cosmopolitan constitution" [weltbiirgerli- which governments submit themselves, by analogy with che Verfassung] in the sense of a "universal state of nations." the republican legal order among individual human In his bold outline of a cosmopolitan order, he takes his beings.22 After all, a "universal monarchy" could also bring

122 123 THE KANTIAN PROJECT THE CONSTITUTIONALIZATiON OF INTERNATIONAL LAW about a legal pacification of world society by repressive association of states which are morally committed to means, that is, through a despotic monopoly of power. peace while remaining legally sovereign. The notorious The idea of a cosmopolitan condition is more demanding passage in which he justifies this step reads as follows: because it projects the institutionalization of civil rights from the national level onto the international level. In accordance with reason there is only one way that The core innovation of this idea consists in the trans states ... can leave the lawless condition . ..; it is formation of international law as a law of states into cos that... they give up their savage (lawless) freedom, mopolitan law as a law of individuals. The latter are no accommodate themselves to public coercive laws, and so longer legal subjects merely as citizens of their respective form a ... state of nations that would finally encompass states, but also as members of a "cosmopolitan common all the nations on earth. But since, in accordance with wealth under a single head."23 The civil rights of individual their idea of the right of nations, they do not at all persons are now supposed to penetrate international rela want this, so ... in place of the positive idea of a world tions too. The price paid by sovereign states uniting to republic only the negative surrogate of a league that averts form a "large state body" for promoting their citizens to war... can stem the tide of hostile inclinations.24 world citizens is that they must submit to a higher author Associated with the project of a league of nations is the ity. In acquiring the status of members of a republic of idea of an ever-expanding federation of republics engaging republics, they renounce the option of substituting poli in commerce which renounce wars of aggression and tics for law in their dealings with other member states. accept a moral obligation to submit conflicts among them The imposition of the format of a state on international selves to an international court of arbitration, while reserv relations would mean that law completely permeates and ing the right to withdraw at any time. With this project transforms political power, even in external relations of a permanent congress of states - which would material among states. The difference between external and inter ize two decades later in the quite different form of the nal sovereignty would thereby disappear, not only on counter-revolutionary "Holy Alliance" - Kant by no means account of the global scale of the inclusive state of nations, repudiates the idea of a cosmopolitan condition as such.25 but also for normative reasons: the binding force of the As always, he relies on the course of history, which, begin republican constitution would disperse the "substance" of ning with the taming of military violence by international the state's "wild," legally untamed power of self-assertion law, and proceeding through the prohibition of wars of toward other states. "Political" power, in the sense of an aggression, would finally approach the goal of construct executive power conserved "behind" the law, would lose ing a cosmopolitan constitution. However, Kant judged its last domain of untrammeled exercise with the eclipse that the nations were not yet sufficiently mature and of the international stage. needed to undergo further learning processes. Even today Over the course of his career, Kant never actually there is ample empirical evidence for the fact that nation- renounced the idea of a complete constitutionalization of states cling to their sovereignty, that they "do not at all international law in the form of a world republic. There want" to give up the freedom of action granted them by has been much speculation over why, in his essay "Toward classical international law. Yet, for Kant, this was not a Perpetual Peace," he nevertheless introduced the weaker sufficient reason to abandon the idea itself. Ideas in the conception of a league or confederation of nations [Volk- strict sense always transcend the historical situations they erbund] and thereafter pinned his hopes on a voluntary illuminate through practical imperatives.

124 125 T THE CONSTITUTIONAUZATION OF INTERNATIONAL LAW THE KANTIAN PROJECT Kant does not generally respond to historical obstacles toward cosmopolitan law, he did not develop it in suffi by introducing a "surrogate" for such an idea. Instead, he ciently abstract terms. That idea was so closely bound up appeals to the philosophy of history to situate the idea with the image of a world republic or a state of nations within a rich context of accommodating trends.26 As is well that it was inevitably discredited when confronted with known, he pins his hopes primarily on three long-term the asymmetrical distribution of power and the over whelming complexity of a world society marked by strik factors: ing socioeconomic disparities and cultural divisions. • the peaceful character of republics, which will form Kant justifies the project of the league of nations the avant-garde of the league of nations; [Volkerbund] by arguing that the concept of the state of • the pacifying effect of free trade, which makes state nations [Volkerstaat] proves to be inconsistent on closer actors dependent on the growing interdependences of examination: the world market and compels them to cooperate with That would be a contradiction inasmuch as every state one another; and involves the relation of & superior (legislating) to an inferior • the critical function of an emergent global public (obeying, namely the people); but a number of nations sphere that mobilizes the conscience and political in one state would constitute only one nation, and this participation of citizens all over the world, because contradicts the presupposition (since here we have to "violations of law in one place of the earth are felt consider the right of nations in relation to one another in all"27 insofar as they comprise different states and are not to be fused into a single state).28 Although these trends can be reversed at any time, in the long run obstacles will be overcome. Hence, they do not In this context, Kant appears to treat "states" not only as compel Kant to modify the idea itself. However, if the associations of free and equal citizens in conformity with latter finds its proper expression in a federal world repub the individualism of modern constitutional law, but also lic, why then does he entertain the project of a league of in ethical-political terms, that is, as national communities. nations at all? These collectivities consist of "peoples" or "nations" (itali cized in the original) that are differentiated from one another by language, religion, and mode of life. The loss Why the "surrogate" of the league of nations? of the sovereignty of their state would mean for each of them the loss of the kind of independence already acquired In proposing a league of nations as a surrogate for the state by nations that form a political community of their own. of nations, Kant seems to be reacting to difficulties of a The autonomy of their respective collective forms of life conceptual rather than an empirical order. Moreover, would thereby be jeopardized. On this reading, the "con these conceptual problems prove to be the most instruc tradiction" resides in the fact that the price the citizens tive when we consider in hindsight the actual, though of a world republic would have to pay for the legal guar always precarious, progress of the constitutionalization of antee of peace and civil liberties would be the loss of international law since the end of World War I. They the substantive ethical freedom they enjoy as members reveal that, although Kant had good reasons for his idea of a national community organized as an independent of a transformation of state-centered international law nation-state.

126 127 THE KANTIAN PROJECT THE CXDNSTITUTIONAUZATiaN OF INTERNATIONAL LAW

In fact, this supposed contradiction, over which genera ultimately leads him to resort to the surrogate conception tions of Kant interpreters have racked their brains,29 of a "league of nations." dissolves once we examine the premise underlying the argument. Kant takes the French republic as his model and is forced into an unnecessary conceptual bind by the The misleading analogy of the state of nature dogma of the indivisibility of state sovereignty.30 Although "all authority proceeds from the people," this authority is This raises the question of whether the alternative itself already split at source in the constitutional state with its is correctly posed. Kant arrives at the alternative of a division of powers. The people cannot rule directly but world republic or world government by an analogy that (as stated in the German Basic Law, Article 20, Paragraph leads him to an over-hasty, concretistic interpretation of 2) it exercises governmental authority [Staatsgewalt] the idea of a "cosmopolitan condition" in terms of a global "through elections and other votes and through specific state or world republic. The anarchic character of inter legislative, executive, and judicial bodies/' Given this national relations in which sovereign states find them proceduralist conception of popular sovereignty, in a fed selves suggests a comparison with the "state of nature," eralist multilevel system nothing prevents the fictive unity familiar from social contract theory, in which pre-social of the presumptive popular sovereign from being con individuals are supposed to have found themselves.32 The ceived as compatible with the corresponding chains of social contract teaches them that the only way out of their legitimation that unfold in parallel within each of the wretched condition of unremitting insecurity is to orga various member states.31 Had Kant read this conception nize themselves as citizens of a state. Likewise, it seems of "divided" sovereignty from the US model, he would that states must now seek an analogous way out of a simi have realized that the "peoples" of independent states who larly untenable state of nature.33 Just as individual persons restrict their sovereignty for the sake of a federal govern previously renounced their natural freedom to unite into ment need not sacrifice their distinct cultural identities. a commonwealth under coercive laws organized as a state, Even this conception does not completely dispel the so too individual states must in turn renounce their sov concern that peoples "divided" by religion and language ereignty and form a "cosmopolitan commonwealth under would be "fused" in a world republic. Kant's concern that a single head." Just as the state was the solution to the in a highly complex world society general laws could be first problem, so too a state of states - a state of nations enforced only at the cost of a "soulless despotism" prefig or a world republic - is supposed to provide a solution to ures something akin to Foucault's fear of "normalization." this problem. Kant fears that a world republic, notwithstanding its However, this analogy is misleading, even on the prem federal structure, would inevitably lead to social and cul ises of Kant's own social contract theory.34 In contrast to tural uniformity. Behind this fear lurks the,objection that individuals in the state of nature, citizens of competing a global state of nations would develop an inherent, irre states already enjoy a status that guarantees them rights sistible tendency to degenerate into a "universal monar and liberties (however restricted). The disanalogy is chy" for sheer functional reasons. Kant seems to be rooted in the fact that citizens of any state have already concerned that the alternative to the existing system of undergone a long process of political formation and social belligerent sovereign states would be the global domina ization. They possess the political good of legally secured tion of a single world power. It is this alternative that freedoms which they would jeopardize if they were to

128 129 THE KANTIAN PROJECT THE CONSTTTUTIONAUZATION OF INTERNATIONAL LAW accept restrictions on the sovereign power of the state religiously neutral grounds of legitimation. Rational which guarantees this legal condition. The pre-social natural law provides a critical analysis of the conceptual inhabitants of the state of nature had nothing to lose but constellation of law and power whose aim is to make the fear and terror generated by the clash of their natural, explicit the egalitarian content which had until then and hence insecure, freedoms. Therefore, the curriculum remained implicit in the legal medium of a more or less that states and their citizens must undergo in the transi authoritarian form of political power. Rousseau and Kant tion from classical international law to a cosmopolitan decode this latent rational content of a law that had thus condition is complementary, rather than analogous, to the far only been instrumentalized for political purposes by curriculum in which citizens of constitutional states have means of their innovative concept of autonomy. They already graduated in the course of the juridification of an trace the legitimating function of the form of fully posi- initially unconstrained state power. tivized law back to the generality of legal norms, under The idea of the social contract represents an attempt stood in more than merely semantic terms, and ultimately to reconstruct conceptually the emergence of the state as to the legitimacy-generating procedure of democratic the organizational form of legitimate political authority. legislation.36 This conception of rational, i.e. democrati State-organized authority consists in the exercise of polit cally generated, law was to reveal the normative dynamic ical power through the administration of binding law. intrinsic to the very form of modern law which enables From a conceptual point of view, governmental authority this medium to rationalize the substance of an arbitrary has two components, a quasi-natural, hence initially pre- political domination and not merely to lend it a rational political, power of command, on the one hand, and the appearance. The point of the reconstructive program of rule structure and binding force of an originally metaso- social contract theory was to demonstrate that the con cially grounded law, on the other.35 As the source of col ceptual germ of the constitutionalization of the "irratio lectively binding decisions, political power results from the nal," unregulated decisionistic power of the state is, in fusion of these two components. Political power is consti virtue of its formal legal character, already implicit in tuted in the form of law. In stabilizing behavioral expecta political power itself. tions (and thereby fulfilling its specific function), law puts According to this view, the interpenetration of positive its rule structure at the service of power. To this extent, law and political power aims not at the legal type of law serves as the means by which power is organized. At modern government as such but at a democratically con the same time, it provides a resource of justice from which stituted rule of law. The terminus ad quern of the process power can simultaneously legitimate itself. While politi of juridification of political power is the very idea of a cal power thereby derives its sustenance from law, law in constitution that a community of free and equal citizens turn owes its compulsory character to the sanctioning gives itself. We must distinguish here between "constitu power of the state. There can be no rule of Jaw without tion" and "state." A "state" is a complex of hierarchically recourse to the means offeree held in reserve as the guar organized capacities available for the exercise of political antee of political domination. power or the implementation of political programs; a Modern natural law emerged in the seventeenth century "constitution," by contrast, defines a horizontal associa in the form of social contract theory. In the wake of the tion of citizens by laying down the fundamental rights wars of religion, it was supposed to provide an interpreta that free and equal founders mutually grant each other. tion of a system of states that reconfigured itself around In this sense, the republican transformation of the

130 131 THEKANTIANPROJECT THECONSTTTUnONALIZATIONOFINTERNATIONALLAW

substanceofstatepowerbylawisgearedtothetelosof Classicalinternationallawisalreadyakindofconstitu a"constitution." tioninthesensethatitcreatesalegalcommunityamong

Thecompletionoftheprocessofconstitutionalization partieswithformallyequalrights.Tobesure,thisinter

setsthesealonthereversaloftheinitialsituationin nationalproto-constitutiondiffersinessentialrespects

whichlawservesasaninstrumentofpower.Accordingto fromarepublicanconstitution.Itiscomposedofcollec

theself-understandingoftheconstitutionalstate,"all tiveactorsratherthanindividualpersons,anditshapes

authority"springsfromtheautonomously(i.e.rationally) andcoordinatespowersratherthanfoundingnewgovern

formedwillofcivilsociety(i.e.it"proceedsfromthe mentalauthorities.Comparedwithaconstitutioninthe

people").Followinglogicof the thesocialcontract,the strictsense,theinternationalcommunityofsovereign

startingpointfortheinternalrationalizationofgovern stateslacksthebindingforceofreciprocallegalobliga

mentalauthorityisalegallyconstitutedbutnotyetcon tions.Onlyvoluntaryrestrictionsonsovereignty-above

stitutionallybound,andhence"substantive,"powerwhose all,therenunciationitscorecomponent, of therightto

irrationalcorewillbedissolvedonlyinthedemocratic gotowarcan - transformpartiestotreatiesintomembers

processofthefullyestablishedconstitutionalstate. ofapolitically"constituted"community.Nevertheless,

Againstthebackgroundofthisidealscheme,wecannow withthevoluntaryrenunciationofaggression,members

explainwhythetransitionfromthelawofnationsto ofaleagueofnationsalreadyacceptaself-obligationthat

cosmopolitanlawcanindeedbeunderstoodasaconsti ismorebindingthantherulesofcustomarylawand

tutionalizationofinternationalrelationsbutnotasa internationaltreatiesevenwhenthereisnosuperordinate

logicalcontinuationoftheevolutionoftheconstitutional authoritytoenforcethem. stateleadingfromthenationaltoa.globalstate. A leagueofnationsandtheprohibitionofwarare

logicalextensionsofadevelopmentconnectedwiththe

membershipstatusof thesubjectsofinternationallaw.At

Stateorganizationvs.constitution the beginningofthetransformationprocessthereisonly

a"weakly"constitutedcommunityofstates(bycompari Inviewoftheirdifferentstartingpoints,theconstitution sonwiththerepublicanstate),whichmustbesupple alizationofinternationallawandthedomesticationof mentedatthesupranationallevelbylegislativeand

untamedstatepowerthroughtheconstitutioncannotbe adjudicativebodiesandbysanctioningpowersifitto is

understoodinthesameterms.Internationallaw,which becomeacommunitycapableof takingpoliticalinitiatives

initsclassicalformpresentsaninvertedimageof thestate andexecutingjointdecisions.Inthecourseoftheconsti

andtheconstitution,providesthestartingpointfora tutionalizationofinternationallaw,thispriorityof juridificationofinternationalrelationsthatpromotes horizontalrelationsamongmemberstatesovercentral peace.Whatismissinginclassicalinternationallawisnot izedpracticalcompetencespointsinanoppositeevolu

ananalogueofaconstitutionthatfoundsanassociation tionarydirectiontothatofthegenealogyofthe offreeandequalconsociatesunderlaw,butrathera constitutionalstate.Itproceedsfromthenon-hierarchical supranationalpowerabovecompetingstatesthatwould associationofcollectiveactorstothesupra-andtransna equiptheinternationalcommunitywiththeexecutive tionalorganizationsofacosmopolitanorder.Todaythis andsanctioningpowersrequiredtoimplementandenforce evolutionfindsexpressioninthethreemostimposing itsrulesanddecisions. examplesofinternationalorganizations,notwithstanding

132 133 THE raNSTrnjnONAUZATION OF INTERNATIONAL LAW THE KANTIAN PROJECT security - and, meanwhile, also the promotion of human the fact that they are quite diverse in function and struc rights - the world organization has acquired the authority ture. Whether they are called charters, agreements, or to intervene in the internal affairs of criminal govern constitutions, the treaties which define the "constitution" ments or failing states. In these two policy domains, the of the United Nations, the World Trade Organization, or member states grant the UN Security Council the com the European Union have one thing in common: they give petence to protect the rights of citizens against their own the impression of a suit of clothes a couple of sizes too big governments if necessary. Hence, it would be consistent waiting to be filled out by a stronger body of organiza to describe the world organization as already a community tional law - in other words, by stronger transnational and of "states and citizens." In a similar spirit, the Brussels supranational mandates for governance. Convention presented its draft of the European constitu With such an empowerment of the loose international tion in the name of "the citizens and the States of Europe." system of sovereign states, executive powers above the The reference to collective actors acknowledges the prom level of nation-states would complement the fragmentary inent position which they, as the driving subjects of the proto-constitution of classical international law. The fact development, will retain in a peaceful global legal order. that this process runs counter to the foregoing process of The reference to individuals, by contrast, draws attention taming state power by law can safeguard us from constru ing the constitutionalization of international law as simply to the actual bearers of the status of world citizen. a continuation of the development of the constitutional state at the global level. The democratic federal state writ Global domestic politics without a world government large - the global state of nations or world republic - is the wrong model. No structural analogy exists between the constitution of a sovereign state that can determine The dual reference to collective and individual actors marks a fundamental conceptual distinction between the what political competences it claims for itself (and hence possesses supreme constitutional authority), on the one thoroughly individualistic legal order of a federal world hand, and the constitution of an inclusive world organiza republic37 and a politically constituted global society that reserves institutions and procedures of global governance tion that is nevertheless restricted to a few, carefully for states at both the supra- and transnational levels.38 circumscribed functions, on the other. A cursory reflec tion on the historical actors involved in both cases con Within this framework, members of the community of states are indeed obliged to act in concert, but they are firms the asymmetry between the evolution of state and not relegated to mere parts of an overarching hierarchical cosmopolitan law. States that currently accept restrictions super-state. However, a constructive transformation in on their sovereignty for the sake of a regulated coopera the self-understanding of state actors whose sovereignty tion with other states are collective actors and have dif is restricted and who are bound by consensual norms of ferent motives and obligations from the revolutionaries membership would not leave the mode of negotiating who once founded constitutional states. power based on compromises hitherto dominant in inter The initial situation of classical international law has left indelible traces in the Charter of the United Nations. national relations unaffected. Taking one's orientation from currently existing struc It remains a community of states and peoples who mutu tures, one can construe the political constitution of a ally recognize each other's "sovereign equality" (Art. 2, decentered world society as a multilevel system that for Para. 1). On the other hand, in questions of international 135 134 THE KANTIANPROJECT THECONSnTUTIONALIZATIONOFINTERNATIONALLAW

goodreasonslacksthecharacterofastateasawhole?9 ofnations.Therequirementsfora"cosmopolitancondi Onthisconception,asuitablyreformedworldorganiza tion"understoodinsufficientlyabstracttermsarenot tioncouldperformthevitalbutclearlycircumscribed fulfilledbythemodelofaconstitutionalstateprojected functionsofsecuringpeaceandpromotinghumanrights ontoa globalscalealone. atthesupranationallevelinaneffectiveandnon-selective Theargumentthusfarsupportsthefurtherclaimthat fashionwithouthavingtoassumethestate-likecharacter themodelofaworldrepublicimpliesnotonlyafalse ofaworldrepublic.Attheintermediate,transnational representationofthesequenceofthestepsinvolvedinthe level,themajorpowerswouldaddressthedifficultprob transitionfrominternationaltocosmopolitanlawbutalso lemsofaglobaldomesticpoliticswhicharenolonger aproblematicaccountofitsgoal.For,intheglobally restrictedtomerecoordinationbutextendtopromoting extendedconstitutionalstate,stateandconstitutionwould activelyarebalancedworldorder.Theywouldhaveto alsoremainfusedinoneandthesameinstitution.By copewithglobaleconomicandecologicalproblemswithin contrast,thethreeessentialelementsactuallycombined theframeworkofpermanentconferencesandnegotiating inthehistoricallysuccessfulformoftheEuropeannation- forums.ApartfromtheUS,atpresenttherearenoglobal state-stateapparatus,civicsolidarity,andconstitution- playerswithasufficientlyrepresentativemandatetonego separateoncewemovebeyondthenation-state.Theywill tiateandthenecessarypowertoimplementsuchpolicies. havetoenterintoanewconfigurationifthepresent-day, Nation-statesinthevariousworldregionswouldhaveto culturallydivided,andhighlystratifiedworldsocietyisto unitetoformcontinentalregimesonthemodelofanEU havethegoodfortuneonedaytoacquireapoliticalcon equippedwithsufficientpowertoconductaneffective stitution.Thestateinitsmodernformisnotanecessary foreignpolicyofitsown.Internationalrelationswould preconditionofa constitutionalorder.Supranational continuetoexistinmodified a formatthisintermediate communities,suchastheUN ortheEUdonothavea level.Modificationwouldalreadyberequiredbythefact monopolyonthelegitimateuseofforce.Theylackthe that,underaneffectiveUNpeaceandsecurityregime, coreelementofinternalandexternalsovereigntyof the evenglobalplayerswouldbeforbiddentoresorttowar modernadministrativeandtax-basedstatewhichpro asalegitimatemeansofresolvingconflicts. videsthenecessarybackingfortheruleoflaw.Yetthey Themultilevelsystemoutlinedwouldfulfillthepeace affirmtheprimacyofsupranationallawovernationallegal andhumanrightsgoalsoftheUN Charteratthe supra orders.Inparticular,theEuropeanlawwhichislaiddown nationallevelandaddressproblemsofglobaldomestic inBrusselsandLuxemburgisrespectedbythemember politicsthroughcompromisesamongdomesticatedmajor statesoftheEU,eventhoughitthey iswhoholdthe powersatthetransnationallevel.Hereitisintendedto meansoflegitimateviolenceinreserve. servemerelyasanillustrationofaconceptualalternative Thethesisthatcapacitiesforcollectivelybindingdeci toworld a republic.A globaldomesticpoliticswithouta sions"lagbehind"theconstitutionalizedinteractionsof worldgovernmentwouldbeembeddedwithintheframe collectiveactorswithininternationalorganizations- in workofaworldorganizationwiththepowertoimpose otherwords,thatthereisa"gap"between"state"and peaceand implementhumanrights.Thisideaisintended "constitution"atthesupranationallevel-raisesthefurther toshow,bywayofexample,thata"worldrepublic"isnot questionofwhether"constitutionswithoutastate"[ent- the onlyinstitutionalformwhichtheKantianproject staatlichteVerfassungen]couldpossiblyconformtothe couldassumeasanalternativetothesurrogateofaleague familiartypeoftherepublicanconstitution(whichKant

136 137 THE CONSTTTLmONAUZATION OF INTERNATIONAL LAW THE KANTIAN PROJECT conservative tradition of public law, the declared aim here had in mind). If not, then the "constitutionalization" of international law would take on a different meaning. is that no residues of state power "behind the law" may Taking the examples of the UN; the WTO, and the EU, remain untouched. Hauke Brunkhorst analyzes "legal orders without a state" with particular reference to the democratic deficit of a Supranational constitution and "rule of law without self-legislation/'40 In their function of democratic legitimation containing and balancing divergent political powers, the constitutions of international organizations are reminis Halfway democratic procedures of legitimation have until cent of paradigms of a pre-modern legal tradition. In early now been institutionalized only at the level of the nation- modern societies, political authorities were based on trea state; they demand a form of civic solidarity that cannot ties between the crown or prince and the ruling estates be extended at will beyond the borders of the nation- (comprising the nobility, the Church, and the cities). This state. For this reason alone, constitutions of the liberal tradition gave rise to a concept of "constitution" geared type recommend themselves for political communities toward setting limits to political domination through a beyond states or continental regimes such as the EU.42 distributive division of power. The idea of a mutual restric They regulate the interplay among collective actors with tion and balancing of "ruling powers," already embodied the goal of setting mutual restrictions on their power; in the old parliaments and city councils and tailored to they direct the exercise of power governed by treaties into collective representation, was developed further in modern channels that conform with human rights; and they leave theories of the state. The concept of a distributive "divi the tasks of applying and developing law to courts, though sion of governmental authority" was reinterpreted in the without being exposed directly to democratic inputs and individualistic terms of modern law - specifically, in terms controls. Here the "constitutionalization" of international of a conception of human rights - in English liberalism law does not satisfy republican standards of democratic and in terms of a functional division of powers (between legitimation. Brun-Otto Bryde has the tradition of liberal legislation, administration, and adjudication) in German constitutionalism in mind when he explicates the "consti- constitutionalism. These constitute the sources of the tutionalization" of international law by differentiating "rule of law" and "Rechtsstaat" traditions, respectively. between the concept of a "constitutional order" and that Like the republican type of constitutionalism which of "state": Kant had in mind, these formal or informal liberal types aim at a juridification of political power. However, in the Although a constitutional state [Verfassungsstaat] cannot latter cases "juridification" means the domestication of exist at the international level, constitutionalism can; like power through the division and channeling of existing wise, there cannot be a (global) Rechtsstaat but there can power relations. The revolutionary constitutions of repub be a (worldwide) rule of law, there cannot be an interna lican pedigree, by contrast, overturn established powers tional welfare state [Sozialstaat] but there can be (global) in favor of a newly founded political authority grounded social justice The concept of "democracy1' lacks this in the rationally formed will of the united citizenry.41 component [of state organization], but it is read in by Only this republican tradition invests the term "constitu- translating "demos" by "sovereign people" [Staatsvolk] ... tionalization" with the meaning of rationalizing a quasi- whereas, in English, international political authority natural, substantive state power. In opposition to the [Herrschaftsgewalt] can also proceed "from the people."43

138 139 THE KANTIAN PROJECT THE CXDNSTITUTIONALIZATION OF INTERNATIONAL LAW However, this last inference is not self-evident. For, in liberal constitutionalism from Locke to Dworkin the two reciprocity, solidarity, etc.).45 To this extent, the consti- sources of legitimation, human rights, and popular sover tutionalization of international law retains a derivative eignty, are not on a par with each other. The "rule of law" status because it depends on "advances" of legitimation draws its legitimation from religious or metaphysical from democratic constitutional states. sources, ultimately from human rights, which are in turn As Kant already recognized, the world organization will grounded in the "natural order of things." However, it is finally be able to fulfill its tasks only when the inconspicu ditfacult to defend this position in terms of postmeta- ous wording of the constitutional texts of all of the physical thinking. The republican conception of the con member states has lost its merely nominal character. stitution, by contrast, has the advantage that it bridges this Moreover, at the transnational level, organizations that gap in legitimation. At least the constructivist reading of allow for an increasingly politicized mode of negotiation, discourse theory can explain how the principles of popular such as the WTO and other global economic institu sovereignty and human rights mutually presuppose one tions,46 will acquire the ability to develop and conduct another. On this reading, the legitimacy of the laws - something akin to a global domestic politics only when a including the basic laws on which the rule of law is founded group of global players emerges in which the channels of - is anchored in the legitimating force of the at once democratic legitimation are progressively extended deliberative and representative character of the proce "upwards" from the level of the nation-state to the level dures of democratic opinion- and will-formation which of continental regimes. The long overdue (but still by no are institutionalized in law.44 However, this interrelation means imminent) "deepening" of EU institutions could between the rule of law and democracy would necessarily provide a model for this development. be dissolved if supranational constitutions were com If an effective constitutionalization of international law, pletely severed from the channels of democratic legitima short of the creation of a global state, is to acquire the tion which are institutionalized within the constitutional legitimacy of a "cosmopolitan condition/' it must satisfy state. Hence, liberal constitutions beyond the state, if they certain preconditions. Both at the level of the UN and of are to be anything more than a hegemonic legal facade transnational negotiation systems, it must receive indirect must remain tied at least indirectly to processes of legiti "backing" from the kinds of democratic processes of mation within constitutional states. opinion- and will-formation that can only be fully insti Supranational constitutions rest at any rate on basic tutionalized within constitutional states, regardless of rights, legal principles, and criminal codes which are the how complex federal states on a continental scale may product of prior learning processes and have been tried become. This weak form of constitutionalization beyond and tested within democratic nation-states. Thus their the nation-state remains reliant on continual provisions normative substance evolved from constitutions of the of legitimacy from within state-centered systems. Only republican type. This holds not only for the UN Charter within states does the organizational part of the constitu and the Universal Declaration of Human Rights, but even tion secure citizens equal access to the politically binding for the treaties underlying GATT and the WTO The decisions of the government through institutionalized regulation and arbitration of the WTO increasingly take publics, elections, parliaments, and other forms of partici into account the protection of human rights, in addition pation. Only within constitutional states do administra to the usual legal principles (such as non-discrimination, tive mechanisms exist to insure the equal inclusion of citizens in the legislative process. Where these are lacking, 140 141 THECONSTlTUTIONALIZAnONOFINTERNATIONALLAW THEKANTIANPROJECT

Luckily,thelevelthatmustbeachievedinorderto asinthecaseoftheconstitutionsofinternationalorgani

satisfythesefunctionalrequirementsisnotunfeasibly zations,thereisalwaysthedangerthatthe"dominant"

high.Iftheinternationalcommunitylimitsitselftosecur interestswillimposethemselvesinahegemonicmanner

ingpeaceandprotectinghumanrights,therequisite undertheguiseofimpartiallaws.

solidarityamongworldcitizensneednotreachthelevel Inthecaseoftransnationalnegotiationsbetweencon oftheimplicitconsensusonthickpoliticalvalue-orienta tinentalregimes,theneedforlegitimationmaybemet

tionsthatisnecessaryforthefamiliarkindofcivicsolidar throughaconnectionwiththedemocraticinfrastructure ityamongfellow-nationals.Consonanceinreactionsof oftheirrespectivememberstates,assumingthatthenego moraloutragetowardegregioushumanrightsviolations tiationsystemsthemselvesensureafairbalanceofpowers.

andmanifestactsofaggressionissufficient.Suchagree Atthislevel,majorpowersaremorelikelytofulfillexpec

mentinnegativeaffectiveresponsestoperceivedactsof tationsoffairnessandcooperationthemoretheyhave

masscriminalitysufficesforintegratinganabstractcom as learnedtoviewjthemselvesatthesupranationallevel

munityofworldcitizens.Theclearnegativedutiesofa membersofaglobalcommunity-andaresoperceived

universalisticmoralityofjustice-thedutynottoengage bytheirownnationalconstituenciesfromwhichthey inwarsofaggressionandnottocommitcrimesagainst mustderivetheirlegitimation.Butwhoistosaythatthe

humanity- ultimatelyconstitutethestandardforthe hegemoniclawofthestronger(whichisatpresentexplic

verdictsofinternationalcourtsandthepoliticaldecisions itlyrecognizedbythevetopowerofthepermanent

oftheworldorganization.Thisbasisforjudgmentpro membersof theSecurityCouncil)isnotentrenched,in

videdbycommonculturaldispositionsisslenderbut turn,behindthefacadeoftheworldorganizationitself?

robust.Itsufficesforbundlingtheworldwidenormative HaukeBrunkhorst'sresponsetothisquestionhintsat

reactionsintoanagendafortheinternationalcommunity theauxiliaryroleofasupportiveglobalpublicsphere,

anditlendslegitimatingforcetothevoicesofaglobal thoughitcanexerciseonlyindirectinfluence:thespon

publicwhoseattentioniscontinuallydirectedtospecific taneousactivityofaweakpublicspherethatdoesnothave

issuesbythemedia. formallegalaccesstobindingdecisionsat leastmakes

possibleaformoflegitimationviaa looselinkageofdis

cussionanddecision.47Whatconcernsushereisnotthe TrendswhichmeettheKantianprojecthalfway empiricalquestionoftheactualstrengthofthelegitimat ingpressureexercisedbyaglobalpubliconthepolicies

Kantunderstoodpermanentworldpeaceasanimplica oftheworldorganizationandthedecisionsofinterna tionofthecompleteconstitutionalizationofinternational tionalcourts,aninfluencegeneratedbythemediaand

relations.Thesameprincipleswhichpreviouslytookshape newsorganizationsandmobilizedbysocialandpolitical intheconstitutionsofrepublicanstatesshouldalsostruc movements.Whatconcernsusis,rather,thetheoretical

turethiscosmopolitancondition-itmustaccordevery questionofwhetherglobalcommunicationinaninformal

onethesamecivilandhumanrights.InKant,thisideaof public,withoutconstitutionallyinstitutionalizedpaths acosmopolitanconditionassumesconcreteforminthe fortranslatingcommunicativeinfluenceintopolitical

constitutionofaworldrepublic.However,heistroubled power,cansecureasufficientdegreeofintegrationfor bythetendencytowardleveling,andevendespotic,vio globalsocietyandwhetheritcanconferasufficientlevel lencewhichseemstobe endemictothestructureofa oflegitimacyonthedecisionsoftheworldorganization.

142 143 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW world republic. This is why he falls back on the surrogate Kant also recognized this. Although he ascribed cate of a league of nations. If the global power monopoly of an gorical moral validity to propositions such as "There shall all-conquering state of nations represents the only alterna be no war," he recognized the need for a philosophy of tive to the coexistence of sovereign states, it seems better history whose heuristic aim was to lend the idea of the not to realize the idea of a cosmopolitan condition, which cosmopolitan condition empirical probability and plausi he nevertheless does not renounce, in the medium of bility. The accommodating trends he diagnosed at the coercive law. It should be realized instead in the weaker time, however, were not just "accommodating." The peace- form of a voluntary association of peaceful republics. I ableness of democratic states, the pacifying effect of global have tried to show that the alternative which compels trade and the critical function of the public sphere have Kant to draw this conclusion does not exhaust the possi proved with hindsight to rest on questionable assump bilities. If we conceive of the legal domestication of a tions. Although it is true that republics have generally belligerent international arena in sufficiently abstract behaved peacefully toward other republics, in other con terms and do not burden the idea with false analogies, a texts they have been as energetic in their military pursuits different path to the constitutionalization of international as authoritarian states. In addition, the take-off of capital law, one opened up by liberal, federalist, and pluralist ism had disruptive effects not only during the age of notions, seems at least conceptually possible. imperialism. It produced a combination of modernization International law has at any rate developed in this direc and a disruptive underdevelopment among the losers in tion. This legal development was fostered in the context the race to modernize. Moreover, a public sphere domi of an increasingly complex world society and a highly nated by the electronic mass media is as much an instru interdependent state system. It was a reaction to the chal ment of manipulation and indoctrination (with private lenges posed by military technology and security risks television often playing a deplorable vanguard role) as of and, in particular, a response to the historical and moral information. experiences of the destruction of the European Jews and If we are to do justice to the enduring relevance of other horrendous mass crimes. Hence, it is not merely Kant's project, we must look beyond the prejudices empty speculation to pursue the conceptual possibility of associated with his historical horizon. Kant was also a multilevel political system that does not assume a state- a child of his time and suffered from a certain color like character as a whole - a system* without a world gov blindness: ernment and a monopoly on force capable of securing peace and human rights at the supranational level and • Kant's lifetime predated the new historical conscious meeting the challenges of a world domestic politics at the ness which achieved pre-eminence around 1800 and transnational level. On the other hand, the paralyzing he remained insensitive to the perception of cultural reality of a world gripped by violence offers ample reasons differences which was already sharpened by early to ridicule these "dreams of a ghost-seer." It is also impor romanticism. Thus, although he recognized the divi tant to realize that the idea of a cosmopolitan condition, sive force of religious differences, he immediately however normatively well founded, remains an empty, qualified this with the remark that, although there even deceptive, promise without a realistic assessment may exist different sacred texts and historical creeds, of the totality of accommodating trends in which it is "there can be only one single religion holding for all embedded. human beings and in all times."48

144 145 THE KANTIAN PROJECT THE CONSTITUTIONAUZATION OF INTERNATIONAL LAW • Kant was so deeply influenced by an abstract notion of enlightenment that he was blind to the explosive Constitutionalization of International Law or force of nationalism. The highly influential political Liberal Ethics of the Superpower consciousness of ethnic membership in communities of shared language and descent was just awakening The history of international law in in Kant's time. During the nineteenth century, it would assume the form of national consciousness and the light of current challenges not only cause calamities in Europe but also contrib With the unearned epistemic privilege of later genera ute to the imperialist expansion of the industrialized tions, we can survey a dialectical development of states. European international law spanning 200 years. The two • Kant shared with his contemporaries the "humanist" world wars of the twentieth century and the end of the conviction of the superiority of European civilization and the white race. He failed to grasp the import of Cold War constitute junctures in this legal development, the selectivity of a particularistic international law although the latter juncture does not yet exhibit such a that was tailored to a handful of privileged states clear pattern as the previous two. The two world wars and Christian nations. Only these nations recognized were like watersheds in which new hopes arose as older each other as possessing equal rights and they divided ones subsided. The League of Nations and the United up the rest of the world among themselves into Nations are major, albeit precarious and reversible, spheres of influence for colonial and missionary achievements on the long, hard road to a political consti tution for world society. The League of Nations collapsed purposes. • Kant was not yet aware of the importance of the fact as Japan invaded Manchuria, Italy annexed Abyssinia, and that European international law remained embedded Hitler's aggressive military build-up brought initial suc cesses with the Anschluss with Austria and the annexa in a common Christian culture. Until World War I, the binding power of this background of implicitly tion of the Sudetenland. Since the Korean War, at the shared values remained sufficiently strong to constrain latest, the work of the United Nations has been hampered, the use of military force more or less within the bound if not brought to a complete stand-still, by a stand-off aries of a legally disciplined conduct of war. between the major powers and the stalemate within the Security Council. The provinciality of our historical consciousness The third juncture, the collapse of the Soviet Union, also inspires hopes for a new world order under the leader vis-a-vis the future is not an objection to the univer- ship of the world organization. With a series of humani salistic program of Kantian moral and legal theory. Its blind spots betray a historically understandable selec tarian, peacekeeping and peace-enforcing interventions, with the establishment of war crimes tribunals and the tivity in the application of the cognitive procedure of prosecution of human rights violations, the United Nations universalization and mutual perspective-taking which seems to be finally capable of taking independent initia Kant associates with practical reason and which un tives. At the same time, however, the setbacks are mount derlies the cosmopolitan transformation of international ing, including the terrorist attacks interpreted by the US law. and its allies as a "declaration of war" against the West.

146 147 THEKANTIANPROJECT THECONSTrrUTONAUZATIONOFINTERNATIONALLAW

Thedevelopmentswhichculminatedintheinvasionof administrationintheUnitedStates.Nevertheless,the

IraqbycoalitiontroopsinMarch2003havegivenriseto imageofasuperpowerthatusesitsmilitary,technologi

anambiguoussituationforwhichtherearenoparallelsin cal,andeconomicsuperioritytocreateaglobalorderin

thehistoryofinternationallaw.Ontheonehand,asuper accordancewithitsownreligiouslycoloredof notions

powerthatthoughtitcouldimposeitswillbymilitary goodandevilanditsgeostrategicsuggestsaheuristi- goals

meansasitsawfit,independentlyofSecurityCouncil callyusefulalternative,namely,onebetweenaprogressive

resolutions,citedarightofself-defense.Themostpower constitutionalizationofinternationallawanditssubstitu

fulmemberoftheUnitedNationsdisregardeditsbasic tionbytheliberalethicsofasuperpower.

norm,theprohibitiononviolence.Ontheotherhand, Thisissuepointsourattentiontothehistoryofinter

thisclearviolationofstandinglawdidnotdestroythe nationallaw(andoftheoriesofinternationallaw)ina

worldorganization.Onthecontrary,thelatterseemsto specificdirection.Crucialforaproperunderstandingof

beemergingfromtheconflictwithitsinternational thealternativeandwhatunderliesitthe isconceptofthe authorityenhanced. juridificationofinternationalrelations,inthesenseofa

Isthisobscuresituationanindicationthatprogressin transformationofinternationallawintoacosmopolitan

theconstitutionalizationofinternationallaw,aftertwo constitution.Kantascribesanintrinsiccapacitytoratio

calamitoussetbacks,hasneverthelesstakenonaself- nalizepoliticalpowertoalawthatisenactedandapplied

propellingdynamic?Ordoesitmarkthebeginningofthe inanimpartialmanner.Withoutthispremise,hegemonic

endofthewholeprojectofjuridifyinginternationalrela unilateralism,whichjustifiesmomentousdecisionsby

tions?Thediplomaticavoidanceofanopenconflictover appealtoitsownnationalvaluesratherthanintermsof

thefutureofinternationallawfostersarhetoricalgrey establishedprocedures,wouldassumeadifferentmeaning.

areainwhichaperplexingfusionofaconstitutionfor Itwouldnolongerrepresentaconspicuousethicalalterna

worldsocietywiththehegemoniclawofasuperpower- tivetointernationallawbutratherarecurrentimperial

ortheequallyalarmingprospectofacompetitionamong variantwithininternationallaw.

hemispheresalaCarlSchmitt-couldinconspicuously Onthelatterconception,internationallawisrestricted

transpire.Thepropagandistsblurringoftheclearly tocoordinatingrelationsbetweenstates.Itisincapableof

definedconceptof"armedattack,"coupledwitheuphe transformingtheunderlyingpowerconstellationsand

mistictalkof"adapting"internationallawtoaccommo hencemerelymirrorsthemindifferent a language.Itcan

datenewrisks,bodenogood,especiallywhenlongoverdue exerciseitsproperregulating,pacifying,andstabilizing

reformsarebeingused,ineffect,asapretexttosuspend functionsonlyonthebasisofexistingpowerrelationsbut

principlesofinternationallaw. itlackstheauthorityandtheinternaldynamictoempower

Thesanctioningofstateswhosegovernmentsprovidea aworldorganizationtodetectandsanctionviolationsof

havenfor,oractivelysupport,thenewinternational terrorinternationalpeaceandhumanrights.Onthesealterna

requiresneithertheerosionof thenarrowlydefinedright tivepremises,internationallawmerelyprovidesaflexible

ofself-defensenorthesuspensionofkeyprovisionsofthe mediumforshiftingconstellationsofpower,ratherthan

GenevaConvention.Nordoeseffectivelycombatingthe acrucibleinwhichquasi-naturalpowerrelationscouldbe

newterroratthedomesticlevelcallforrestrictionson dissolved.Accordingly,theidealtypesofinternationallaw basicrightsthatamountvirtuallytotheirdestruction.49varywithexistingconstellationsofpower.Atoneendof

Ofcourse,thisspectercouldvanishwithachangein thecontinuumisstate-centeredinternationallawwhich

148 149 r THEKANTIANPROJECT

THECONSTITUTIONALIZATIONOFINTERNATIONALLAW

reflectsmultilateralrelationsbetweensovereignstates;at

immediateactuality,andisthereforetheabsolutepower theotheristhehegemoniclawofanimperialpowerthat

onearth."Withthisslogan,Hegel,whodiscussesinterna withdrawsfrominternationallawonlyinorder,ultimately

tionallawundertheheading"aufieresStaatsrechfstill system^"^ incorPoratertintoitsownnationallegal standardinGerman(in§§331-40ofhisPhibsophyof

Right),takesaimatKant'sideaofa"perpetualpeace Howshouldwedecidebetweendifferentconceptions

ofinternationallaw?51TheynotonlyconflictJL*e throughaconfederationofstatesthatadjudicatesalldis

putes."Conflictsbetweensovereignstates"canbesettled correctinterpretationOfthehistoryofinternationallaw onlybywar,"becausetheunifyingethicalbackdropof butarethemselvessodeeplyembeddedinpoliticalhistory

religious"agreement"ismissing.52However,thetidal shift thattheyinfluenceitsactualcourse.Therelationbetween

fromhumanisticallyenlightenedtonationalisticallybiased powerandlawisaffectedbythenormativeself-under

liberalismwasnotfullycompletedinGermanyuntilafter standingofstateactors,andhenceisnotadescriptively

thefailedrevolutionof1848. ascertainableconstantThisfact,however,goescounter

ThebiographyandworkofJuliusFrobel,bornin1805 tothesocial-ontologicalreadingaccordingtowhichrela-

andthenephewof theeducationalreformerFriedrich WL°fP7613ayS£r°VidetheUltimatehermeneutic Frobel,53areexemplaryinthisregard.Frobelstudiedin keytolegalrelations.TheKantianconceptionofinterna

tionallaw,bycontrast,allowsforthepossibilitythata JenawiththeKantianFriedrich JakobFriesandwasin

fluencedbyLudwigFeuerbach'scritiqueofreligion.He superpowerassumingithasademocraticconstitution

andactswithforesightandprudence,willnotalways taughtgeographyattheuniversityinZurichandcamein

contactwiththeLeftHegeliancirclethroughArnold instrumentahzeinternationallawforitsownendsbutcan

Rugebeforeresigningfromhisteachingpostforpolitical promoteaprojectthatendsupbytyingitsownhands.It

reasonsandbecomingapublisher.Priortoparticipating mayevenbeinitslong-terminterestnottodeteremerg-

intheconstitutionalconventioninthePaulskirchein mgcompetingmajorpowerswiththreatsofpre-emptive ^^ Frankfurtin1848asamemberoftheextremeleft"Don- of?nS1v'11blnd*""ln3timdyfashion*> orapoliticallyconstitutedinternationalcommunity. nersberg"faction,hewroteatwo-volumeSystemofSocial

Politics,whichappearedin1847.54This"theoryofconsti

tutionallaw"inspiredby KantandRousseauisoutstand

Thepowerofnationalism: ingintheoriginalityofitsreflectionsonthestructureof

JuliusFrObeland beforeafter1848 thewelfarestateandtheroleofpoliticalpartiesindemoc

racies,whichpointfarbeyondtheirtime.Frobel'sunder

standingofdeliberativepoliticsmakeshimaforerunner Evenacursoryexaminationrevealsthecountervailing oftheproceduralconceptionofthedemocraticconstitu tendencieswhichhaveshapedthehistoryofinternational

tionalstate.55 lawuptothepresentday.Duringthelongnineteenth

Ofparticularinterestinthepresentcontext,however, century,theprevailingbeliefthatthepoliticalsubstance

istheradicalizationof theKantianideaof thecosmopoli andworld-historicalvocationofsovereignnation-states tanconditioninthecontextoftheVormdrz.56Frobelwas couldnotbetamedbylawovershadowedpacifistinitia- alreadyrespondingtothewidespreaddebatesinspiredby VM?T?UrTanunification:"T1*nation-state[das Kant'sessayonperpetualpeace.HehadtodefendKant's VolkalsStoat]isthespiritinitssubstantialrationalityand

"callforjusticeandperpetualpeaceamongstates"57ina 150 151 THE CONSTITUTIONAUZATION OF INTERNATIONAL LAW THE KANTIAN PROJECT his orientation from the federal system of the United political and intellectual climate that, by comparison with States and, especially, the Swiss nation-state, rather than the humanistic outlook of the eighteenth century, had from the centralized French republic. changed as a result of the influence of Hegel and the his The idea of a federal world republic does not need the torical school. Frobel displays his wide-ranging cultural, surrogate of a loose confederation of nations. Together historical, anthropological, ethnographic, and geographic with the right to go to war, the sovereignty of states knowledge concerning the differences between tribes, that have been transformed into members of a larger languages, and races because these conservative, "quasi- union disappears as well as its obverse side, the principle natural" elements of social and cultural life represent of non-intervention, which Frobel regards as "a sorry obstacles on the road to political liberation. Although the pretext in moments of weakness": "The question always course of cultural development alternately "separates and remains whether an intervention is to be undertaken for joins" peoples, a tension remains between the roots of the the sake of freedom and culture or of egoism and coarse ethnos and the will of the political nation. Switzerland ness."63 Wars are permissible only "as revolutions," hence served as an example for Frobel: "Nations whose existence in the shape of liberation movements for promoting is based primarily on free association and federation are democracy and civil rights. To this end, parties to civil often held together only by external pressure until the wars even deserve the support of intervening powers64 and components of the commonwealth have grown together international courts should police the legality of such to a certain extent."58 Frobel was passionately interested in the "ethical, free, genuinely political moment in the interventions. Frobel, the revolutionary, had to leave Germany in existence of nations," or what he called "federal fraternity 1849 when a warrant was issued for his arrest. When the based on free decisions."59 From the beginning, he was looking beyond nation-states to a federation of states. emigrant Frobel returned after eight years in the United States, he had not only undergone an intellectual conver To be sure, as long as the nation persists in regarding sion to "Realpolitik," as witnessed by L. A. von Rochau; itself as an end in itself, the consciousness of citizens in liberal states also retains a "limited patriotic character."60 his personal assimilation of the harsh experience of a precarious immigrant existence was so attuned to the In the name of "self-determination, for which each person times that his writings became emblematic of the shift in possesses his own standard,"61 Frobel categorically rejects political climate.65 When he again published two volumes such a substantialization of state and nation. Only equal in 1861, fourteen years after the appearance of the System respect for everybody and universal solidarity are worthy of Social Politics, this time under the title Theory of candidates for a "final end of culture." This ideal of human Politics,66 he professes in the preface to have forsworn the ity should take shape in a global federation of states that "brazenness of the revolutionary spirit." He now follows puts an end to war by overcoming the opposition between Hegel and the historical school in viewing the state not as national and international politics, between state and existing for the sake of its citizens but as an organic and international law. Frobel paints the Kantian idea of the sovereign ethical entity that is understood as an end in cosmopolitan condition in the striking colors of a "demo itself. Since states do not tolerate any authority above cratic federation of all human beings, of universal self- themselves, "power does not proceed from law, but law government of individuals joined together, who have an from power" in relations between states.67 The state of awareness of themselves as the autonomous residents, nature in the international arena is destined to continue proprietors and cultivators of the earth."62 In this, he takes . 153 152 THEKANTIANPROJECT

THECONSTTrunONALIZATIONOFINTERNATIONALLAW

forever:"Hencetheuniversalstateis1anideacom that

pletelycontradictsethicalstandards,notanidealtowhich tothepoliticalconscienceofhumanity.Theexistenceand

realitycanneverattainbutapathologyofthemind,an independenceofnation-stateswasagiven;butonlythe

errorofethicaljudgment."68 Europeanstatesbelongedtoaculturaldomaininwhich

theideals,oftheEnlightenment,humanrights,and

humanitarianprinciplescouldbeexpectedtomeetwith

Kant,WoodrowWilson,andtheLeagueofNations sympathy.Onlythecivilizedsocietiesappearedtothem

tobesufficientlymaturetoqualifyasmembersofthe

Frobelwasdoubtlesslyanacademicoutsider,buthis internationalcommunityofstateswithequalrights.The

acuteassessmentoftheKantianprojectnotonlyantici internationalistswerenotinsensitivetothebrutalaspects

patedafundamentaltenetofHegel'sstudentAdolf ofcolonialismbuttheyalsotooktheviewthatthe

Lasson69butalsogaveexpressiontothebackgroundcon Europeanshadbeenburdenedwiththeroleofbringing

sensusamongmostoftheconstitutionallawyersin civilizationtoallcornersof theearth.Fromtheperspec

Germanybetween1871and1933.70Facedwiththeprom tiveof thesuperiorityofthewhiteWest,itappeared

inent"deniers"ofinternationallawfromErichKaufmann perfectlynaturalthatthecolonialpowersshouldregulate

toCarlSchmitt,theinfluenceofinternationalistssuchas theirclaimstowardoneanother,butnottheirrelations

WaltherSchuckingandHansKelsenremainedmarginal. withtheirowncolonies,bylegalmeans.Theexistingdif

Nationalismandthepreoccupationwiththestrongstate ferencesinlevelsofcultures,andtheresultingmission

continuetothisdaytocastalongshadowovertheliberal civilisatnce,supposedlyexplainedwhytheuniversalismof

impulsesemanatingfromtheprofessionofinternationalinternationallegalprincipleswascompatiblewiththe

lawinWesterncountries.MarttiKoskenniemidevotes exclusionarylogicinherentinthecolonialproject.

twostimulatingchaptersofhisimpressivehistoryofinter Tobesure,thelegalprofessiondidnotmerelyrestrict

nationallawtothegenuine,butultimatelyequivocal,itselttothedogmaticelaborationofinternationallaw;it

endeavorsof thejuristsassociatedsincetheendofthe alsodevoteditselfwithsomesuccesstoissuesoflegal

1860swiththeInstitutdedroitinternationalandthe policyinparticularinthefieldofhumanitarianinterna

Revuededroitinternationaletdelegislationcomparee.Many tionallaw.Allthegreaterwasthementalshockproduced

ofthemwouldparticipateinthepeaceconferencesatThe r™ ™Tri&ctrenchwarfareandmechanizedslaughter

Hague.Untilthat time,andnotwithstandingtheGeneva ofWorldWarI(withtanks,poisongas,flame-throwers,

etc.)amongthepeoplesofEurope.Thefirst"total"war Conventionof1864,thejusinbeUo(i.e.thecivilizingof

renderedallattemptstosubjectmilitaryforcetolegal theconductofwarbyrestrictingittocombatants, the prohibitionoftreachery,theprotectionofciviliansandthe controlsandvoid. nullThiscontemptuousdisavowalof wounded,thehumanetreatmentofprisoners,theprotec theachievementsofthePeaceConferenceatTheHague tionofculturaltreasures,etc.)hadnotbeenbroughtunder representedonesideofthefirstmajorjunctureinthe universallybindingregulations:"Indeedthelawsofwar historyofclassicalinternationallaw;theotherwasthe

initiativeofWoodrowWilson,promptedbytheshockof haveperhapsneverbeenstudiedwithasmuchenthusiasm beforenorsincethe periodbetween1870and1914."71 thewar,tofoundtheLeagueofNations.Thelongnine

Thesenationallymindedliberalsassumedthatthe teenthcenturyendedwithanhistoricalupheavalthat

preparedthewayforthefirst,improbablestepstowarda vocationoftheinternationallawyerwastogivevoice

constitutionalizationofinternationallaw. 154 155 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW

The founding of the League of Nations placed the the evolution of law. The first clause of Article 11 of the Kantian project on the political agenda for the first time. Charter of the League of Nations (comprising just 26 Not long afterwards, it also became the focus of major articles in total) stipulates that "Any war or threat of scholarly controversies among constitutional and interna war, whether immediately affecting any of the Members of tional lawyers.72 Only after the terror of World War I did the League or not, is hereby declared a matter of concern Kant's idea have a concrete impact on the theory and to the whole League." No member of the League could politics of law. However, in an exhausted and decimated remain neutral. This solemn commitment of the members Europe the slogans of the peace movement found greater was followed in 1928 by the absolute prohibition of resonance among the public than among governments. It war in Article 1 of the Kellogg-Briand Pact, to which required the initiative of an American president who was American jurists once again made a decisive contribution. well prepared for the task by his legal training to translate Following the Kantian model, the League of Nations a philosophical idea into practice. Under the influence of was supposed to achieve this goal through the voluntary the progressive internationalists, in particular, of the self-obligation of peaceful sovereign and liberal states. Women's Peace Party and the British radicals from the Thus, the federation was supposed to combine state Union of Democratic Control,73 Wilson had already devel sovereignty with state solidarity based on the democratic oped the idea of a pacific league as the core of a post-war self-determination of peoples organized as nation-states. world order during the war, presenting it in a May 1916 Wilson clearly failed to appreciate the explosiveness of the address to the American League to Enforce Peace. Against principle of nationality which the Versailles Treaty made the vacillation of the Allies, he could bring to bear the the basis of a wide-ranging territorial reorganization of full weight of a major power that had for the fi&t time Europe and the Middle East in 1919. The permanent made a decisive intervention in European conflicts. members of the Assembly of the League were to be Great Three months after an armistice had been signed Britain, France, Italy, Japan, and the US (which, however, through American mediation in November 1918, Wilson never ratified the Treaty). Wilson saw them as the van assumed the chairmanship of a commission charged with guard of a new world order based on the rule of law and founding a league of nations. The commission came up democratic self-determination. The substantive require with a draft charter after just eleven days of deliberations. ments for the acceptance of further members were also In Germany, politically committed academics and intel shaped by a liberal outlook. As in Kant, only the realiza lectuals such as Karl Vorlander, Karl Kautsky, and Edward tion of the cosmopolitan condition would signal the defin Spranger immediately recognized the influence of Kant's itive abolition of war: "What we seek is the reign of law, idea of a league or confederation of nations.74 Although based on the consent of the governed, and sustained by Wilson never appealed directly to Kant's work "Toward the organized opinion of mankind."76 Perpetual Peace," numerous pieces of circumstantial evi The provisions of Articles 8-17 of the Charter con dence indicate that he must have been familiar with this cerning the prevention of war establish a system of col source.75 This intellectual debt to Kant is shown not only lective security on the basis of reciprocal obligations to by the political goals but even more so by the composition come to each other's aid, restrictions on armaments, eco and organization of the League of Nations. The prohibi nomic sanctions, and procedures of peaceful arbitration tion of war, which overturns an essential feature of inter (by a board of arbitration, an international court or the national law up to that point, represents a quantum leap in Assembly of the League) P But without a legal codification

156 157 THE OTNSmmONAUZATION OF INTERNATIONAL LAW THE KANTIAN PROJECT of the new crime of "war of aggression," without an inter representatives, officials, and functionaries of the defeated national court equipped with the requisite authority and regimes of war crimes, of the crime of preparing a war of without a supranational authority willing and able to aggression, and of crimes against humanity. This marked impose effective sanctions on belligerent states, the League the beginning of the end of international law as a law of had no means of effectively countering the aggression of states. It also laid down the moral parameters for the the later "Axis" powers, Japan, Italy, and Germany (which protracted process through which the idea of establishing had withdrawn from the League). It had long since suc an international criminal court has gradually won cumbed to paralysis by the time fascist Germany began a acceptance. world war that would wreak not just physical and material Already during the war, Roosevelt and Churchill havoc on Europe. A breakdown in civilization far beyond called in the 1941 Atlantic Charter for "the establishment the devastation of war rocked German culture and society of a wider and permanent system of general security." to its moral core and posed a, challenge to the rest ot Following the Yalta Conference, the four victorious powers issued an invitation to a founding conference in San humanity. Francisco. The 51 founding members duly passed the Charter of the United Nations unanimously on April 25, The UN Charter: A "constitution for 1945, after just two months of negotiations. Despite the the international community"? enthusiasm displayed at the solemn founding ceremony, there was no agreement over whether the new interna Henceforth, the harm to be averted was no longer only tional organization was supposed to go beyond the imme war that exploded all barriers and degenerated into total diate goal of preventing war and initiate the transformation conflict. Now the danger was violence of a previously of international law into a cosmopolitan constitution. It is unimaginable level of savagery, the transgression ot dear in retrospect that the vanguard of states represented elementary and previously "inviolable" inhibitions, the in San Francisco had crossed the threshold to a constitu- wholesale trivialization and normalization of absolute evil. tionalization of international law, provided that we under Confronted with this new form of evil, international law stand the latter in the sense specified above: "The goal of could no longer cling to the main premise underlying the constitutionalism ... is to place limits on the peremptory prohibition on intervention. The mass crimes of the Nazi power of the legislator - which, in the system of interna regime, which culminated in the destruction ot the tional law, is in the first instance the states which enact European Jews, and the state crimes committed by totali law - through superordinate legal principles, in particular tarian regimes against their own populations undermined human rights."78 the presumption that the sovereign subjects of interna In comparison with the shameful failure of the League tional law are immune from blame in principle The mon of Nations in the interwar years, the second half of the strous crimes revealed the absurdity of ascribing moral short twentieth century was marked by an ironic contrast and criminal indifference to state action Governments, between major innovations in international law, on the including officeholders, functionaries, and collaborators, one hand, and the stifling power constellation of the Cold could no longer enjoy immunity. Anticipating the defini War, on the other, which in practice thwarted the effec tions of crimes later integrated into international law, the tiveness of these achievements. We can observe a similar Nuremberg and Tokyo military tribunals convicted the dialectical movement to that following World War I:

158 159 THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW THE KANTIAN PROJECT regression during the war, an innovatory thrust after the character of the world organization and the universal war, followed by a disappointment all the greater because validity it claims for the law it enacts. To be sure, only the historical change of 1989/90 has of the new level attained. The paralysis which gripped the world body after the Korean War could be described in placed the question of whether the United Nations pos similar terms. However, this time there was a grinding sesses a constitution that requires its member states to deadlock at the political level, not a regression behind the alter their political self-understanding on the agenda in a level of law already reached. The United Nations remained constructive fashion. Moreover, only since the recent Iraq intact as an organization and even gave the impression of War has this question had a polarizing effect both on the business as usual. At any rate, it provided the framework profession of international lawyers and on political public opinion. In my view, the UN Charter provides a frame for the continued production of norms. Although the innovations in international law after work in which we no longer have to understand the 1945, which we will first examine, did not initially have member states exclusively as subjects of international much impact, they go beyond Kant's surrogate of a vol legal treaties. Together with their citizens, they can now untary federation of independent republics. But rather understand themselves as the constitutional pillars of a than pointing toward a world republic equipped with a politically constituted world society. Whether there are global monopoly of power, they point - this at least is sufficiently strong motives for such a gestalt shift in the their claim - toward a sanctioned regime of peace and self-perception of the subjects of international law ulti human rights at the supranational level. This regime is mately depends on the cultural and economic dynamics supposed to provide the framework for a global domestic of the world society itself. politics without a world government at the transnational level as global society becomes increasingly peaceful and Three innovations in international law liberal. It is, of course, a matter of considerable controversy among legal scholars whether the UN Charter can be I would like to discuss the three innovations of 1945 and interpreted as a constitution.791 am not an expert in these 1948 already mentioned which go beyond the situation in 1919 and 1928 in an attempt to explain why this topic matters, so I will simply highlight the three normative innovations which endow the Charter of the United provides the backdrop for the "split of the West." Nations, in contrast to the Charter of the League of Nations, with prima facie features of a constitution. This (1) Kant understood the problem of abolishing war as is not to say that the Charter was from the beginning one of creating a worldwide constitutional order. Although presented or intended as a global constitution. Like a this project also provided the motivation for Woodrow picture puzzle, the wording of the Charter is open both Wilson's initiative to found a league of nations, the charter to the conventional reading and to the constitutional of the League itself does not draw a connection between interpretation. This is primarily due to three features: world peace and a global constitution based on human rights. The development of international law remains a (a) the explicit connection of the purpose of securing peace with a politics of human rights; (b) the linkage of means to the end of averting war. All this changes with the prohibition on the use of violence with a realistic the UN Charter, which, in the second clause of the pre- threat of prosecution and sanctions; and (c) the inclusive amble, reaffirms "faith in fundamental human rights, in 161 160 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW the dignity and worth of the human person/' and in Article individual citizens recognition as immediate subjects of 1, Paras. 1 and 3, links the political goals of global peace international law.81 But the distance still to be traveled and international security with the promotion of "respect from state to cosmopolitan law may be judged from the for human rights and for fundamental freedoms for all fact that, although the convention on torture came into without distinction as to race, sex, language or religion" force in 1987 when ratified by 51 states, far fewer states throughout the world. The Universal Declaration of have accepted its binding provisions regarding petitions Human Rights of December 10, 1948, which explicitly by individuals. refers back to the statements from the preamble to the Charter, underscores this correlation. (2) The core of the Charter is the general prohibition With this, the international community commits itself on the use of violence, which cannot be overruled by an to the global implementation of constitutional principles international treaty of any kind, e.g. one between members that had previously been realized only within nation- of a military alliance or a coalition such as NATO. The states.80 The agenda of the United Nations has also gradu only exception is a narrowly defined right of self-defense ally expanded beyond the goal of securing peace outlined that excludes idiosyncratic and restrictive reinterpreta- in Article 1, Para. 1, to include the promotion and imple tions. Thus, the principle of non-intervention does not mentation of human rights. The General Assembly and hold for members who violate the general prohibition on the Security Council now interpret the crimes of "breaches the use of violence. The Charter makes provisions for of the peace," "acts of aggression/1 and "threats to the sanctions in case of violations and, if necessary, the use of peace" broadly in accordance with their policy on human military force in the conduct of police operations.82 Article rights. Whereas the United Nations initially viewed itself 42 of the Charter marks the second and decisive step in as concerned only with interstate conflicts and military the direction of a constitutionalization of international aggression, it increasingly responds to domestic conflicts, law. Whereas the Council of the League of Nations could such as breakdowns of governmental authority, civil war, only issue recommendations to its members concerning and egregious violations of human rights. coercive measures, the Security Council can itself under The Universal Declaration was supplemented in 1966 take the military measures it judges necessary. Article 43 by the International Covenant on Civil and Political Rights even authorizes it to take command of the forces and and the International Covenant on Economic, Social, and logistical support that member states are obliged to make Cultural Rights, as well as by a variety of anti-discrimina available to it. tion conventions. In the present context, the agencies for This provision is inoperative, so there has never been a monitoring and reporting on violations of human rights UN supreme command. Given that the UN is now involved operating on a global scale are particularly noteworthy. in many urgent operations, it would be desirable if the The UN High Commission for Human Rights is autho larger member states were to maintain units in reserve for rized to exert diplomatic pressure on the governments swift deployment in such cases. However, until now the involved if need be. It also investigates petitions by indi Security Council has only commissioned or permitted vidual citizens against violations of human rights by their member states to carry out its sanctions on its behalf. The own governments. Although it has no major practical Charter pays for the willingness of the major powers to effects at present, this institution of complaints by cooperate by granting them veto rights that pose a major individuals is important in principle because it accords obstacle to the effectiveness of the Security Council. It

162 163 THECX3NSTITUTI0NAUZATI0NOFINTERNATIONALLAW THEKANTIANPROJECT

(3)IncontrastwiththestructureofaLeagueofNations wasclearfromthebeginningthatthefateoftheworld

composedofavanguardofstatesthatalreadypossess organizationwouldbedecidedbyitssuccessincommit

liberalconstitutions,theUnitedNationswasdesignedto tingthemajorpowers(and,currently,thesoleremaining

beinclusivefromthebeginning.Granted,allmember superpower)toacommonpractice.Onlyonthiscondi

statesmustaccepttheobligationsimposedbytheprinci tioncanonereasonablyexpectthatparticipantswill

plesoftheCharterandthehumanrightsdeclarations;but developanawarenessofactingasmembersofacommu

fromthefirstdaystatessuchastheSovietUnionand nityofstatesastheybecomeaccustomedtothatpractice. ChinawereamongthemembersoftheSecurityCouncil Interventionistpowersbecomeallthemoreawareofthis

accordedvetopower.Today,theworldorganization,which rolethemoretheyhavetoconfronttheconstructivetask

hasexpandedto193members,comprises,inadditionto ofnation-building,thatis,thedutytoreconstructwrecked

liberalregimes,authoritarianandsometimesevendes infrastructuresandcollapsedadministrativeauthorities

poticandcriminalregimes.Thepricetobepaidisa andtoreplenishexhaustedsocialandmoralresources.

glaringcontradictionbetweentheprofessedprinciplesof Theblueprintforgovernancewithoutaworldgovern

theworldbodyandthehumanrightsstandardsactually mentcanbereadofffromtheby-nowwell-established

practicedbycertainmemberstates.Thiscontradiction practiceofpeacekeepingandpeace-enforcinginterven

underminesvalidnormsandimpairsthelegitimacyof tions-henceinthedomainofexternalsecuritywhich

procedurallycorrectresolutions-whenacountrylike wastheprimarytouchstoneofstatesovereigntyonthe

Libyaassumesthechairmanshipofthehumanrights classicalconception.Theworldorganizationdoesnot

committee,forexample.Ontheotherhand,theprinciple havetheauthoritytodefineandextenditsownspheres

ofinclusivemembershipsatisfiesanecessaryprecondition ofcompetence,nordoesitenjoyamonopolyonthe

fortheinternationalcommunity'sclaimtotransform legitimateuseofforce.TheSecurityCounciloperatesin

internationalconflictsintodomesticconflicts. carefullyrestrictedpolicyfieldsunderconditionsofa

aretoberesolvedpeacefullyandchan decentralizedmonopolyofthemeansoflegitimatevio Ifallconflicts

neledintocivilizedprocedures-onananalogywiththe lencethatremainsthepreserveofindividualstates.Yet,

judicialprocedureofprosecution,dueprocess,andpun ingeneral,theauthorityoftheSecretaryGeneralis

ishment- thenallstateswithoutexceptionmustbe sufficienttomobilizetheresourcesneededtoimplement

treatedasconcernedmembersoftheinternationalcom theresolutionsoftheSecurityCouncilamongthe

munity.Thelegalandpolitical"unityofnations"presup members. posedintheChristiantraditionsinceFranciscodeVictoria ThesanctioningpoweroftheSecurityCouncilalso

andFranciscoSuarezfoundinstitutionalembodimentfor extendstoestablishingtribunalstoprosecutecrimes

thefirsttimeintheUnitedNations.Correspondingly, underinternationallaw(warcrimes,preparationsforwars

Article103oftheCharteraffirmstheprimacyofUNlaw ofaggression,genocide,andothercrimesagainsthuman

overallotherinternationaltreaties.Thetendencytoward ity).Membersofgovernment,officials,functionaries,and

ahierarchizationofinternationallawisalsoconfirmed otherassociatesarenowpersonallyliablefortheactsthey byArticle53oftheViennaConventionontheLawof performedintheserviceofacriminalregime,afurther

Treaties:"Aperemptorynormofgeneralinternationallaw proofthatinternationallawisnolongermerelyalawfor

isanormacceptedandrecognizedbytheinternational states.

164 165 THE KANTIAN PROJECT THE CONSnTUTIONAUZATION OF INTERNATIONAL LAW community of States as a whole as a norm from which no Tokyo which had been overshadowed by the suspicion of derogation is permitted and which can be modified only "victor's justice." Under the conditions of the mutual by a subsequent norm of general international law having nuclear threats of NATO and the Warsaw Pact, the the same character." methodological differentiations between legal and politi Furthermore, the broad inclusion of the member states, cal science, international law and international order, lost which was a result of the post-1945 process of decoloniza their purely analytical character. In the bipolar world tion, finally shattered the framework of European itself, a chasm opened up between norms and facts - facts international law and ended the West's monopoly on to which the norms could not be applied. The discourse interpretation. During the nineteenth century, non-Euro of human rights degenerated into mere rhetoric, while pean countries such as the US, Japan, and the Ottoman the "realist school" in international relations theory Empire were accepted as the subjects of international law. increasingly influenced policy both in Washington and in However, only within the framework of the UN did Moscow. awareness of the cultural and religious pluralism of an The constellation formed by the Cold War and the increasingly complex world society transform the concept impotence of international law could not fail to favor a of international law itself. As a result of increased sensitiv theory that based the apparently well-founded conclusion ity to racial, ethnic, and religious differences, the members that international institutions are chronically ineffectual of the General Assembly have extended mutual perspec on a straightforward anthropological premise.84 In the tive-taking into domains that remained beyond Kant's view of Hans Morgenthau, the founder of the realist purview (and also that of Woodrow Wilson, who was school, the incessant drive for power is rooted in human anything but progressive in dealing with the race problem nature.85 The law-governed regularities of international in the United States). The catalogues of human rights and relations, dominated exclusively by the interest in power the Declaration on the Elimination of all Forms of Racial and its accumulation, are also supposed to be rooted in Discrimination demonstrate this. With the Vienna Con this invariant anthropological disposition. In this arena, ference on Human Rights, the United Nations confirmed legal provisions can be nothing other than reflections of the need for an intercultural dialogue on disagreements unstable and shifting interest constellations among powers. over the interpretation of its own principles.83 Moral condemnations and justifications intended to penal ize opponents are counterproductive because they merely intensify conflicts, which are best managed by rational, The two faces of the Cold War sober, game-theoretical considerations.86 On the other hand, the uncoupling of an ideological The quantum leap in the development of international rhetoric of human rights from power calculations also law following World War II produced institutions that led explains why the United Nations continued to produce an existence largely shielded from the political realities norms freed from the pressure of events. The political for many decades. The Security Council agreed once contours of a future global order remained vague on both again on military measures during the Korean conflict, sides. Neither "realists" nor "idealists" had any reason to though only in the form of a call to collective self-defense. reflect seriously on a political constitution for world During the Cold War, it did not manage to continue the society. The former did not even believe in it, whereas the practice of the war crimes tribunals of Nuremberg and latter had to view it as lying in the distant future.

166 167 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW

Paul W. Kahn, who establishes an interesting connec a future global order have emerged. Alongside the neolib- tion between the realism of the Morgenthau school and eral and the Kantian projects, the hegemonic vision of the the jurisprudential neoliberalism of the 1990s, recognizes American neoconservatives has taken on clear contours the enduring relevance of this ambiguity of the post-war and, by way of reaction, has provoked a revival of a cul- period. The complementary reluctance of realists and ide turalist variant on the theory of hemispheres on the Left. alists, both of whom neglected to clarify the notion of a I will return to this theme in the closing section of this new world order, though for conflicting reasons, weighs chapter. But first, I would like to depict the current situ even upon the situation following 1989: ation in broad outlines.

We can speak of [the Cold War] as an age of tremendous growth in human rights law, but we must simultaneously The ambivalent 1990s recognize this as an age of gross violations of human rights. Should we look to the genocide convention or the outbreak Once the competition between social systems and the of genocidal behavior to characterize this age? ... Should we look to the prohibition on the use of force - the central deadlock in the Security Council had been overcome, the tenet of the UN order - or the millions of dead in numer UN - until then a "fleet in being" - would become an ous wars that characterized this same period? It was an important forum of global politics. Beginning with the age that promised constraints on the state through law first Iraq War, between 1990 and 1994 alone the Security yet reached a kind of apotheosis of the state in adoption Council authorized economic sanctions and peacekeeping of policies of mutually assured destruction. The realist interventions in eight instances and military interventions could be dismissive of international law, while the idealist in five further cases. It has proceeded somewhat more could describe all of the recalcitrant fact[s] as a kind of cautiously since the setbacks in Bosnia and Somalia; aside rearguard action by outmoded political institutions. Simi from arms embargoes and economic sanctions, there have larly, the triumph of the West at the conclusion of the been UN authorized missions in Zaire, Albania, the Cold War resists easy characterization.... Was it our Central African Republic, Sierra Leone, Kosovo, East ideas or our military-technological edge, our conception Timor, the Congo, and Afghanistan. The global political of rights or our economic power that triumphed? Of course, it was both, but that just means that the ambiguity role of the Security Council also became clear in the two that infused the post-World War II compromise had not cases in which it withheld permission for military inter been resolved even with the end of the Cold War.87 ventions, namely, the NATO intervention in Kosovo and the invasion of Iraq by American and British troops. The unclarified ambiguity of the post-war period In the former case, there were good reasons to regret the remains problematic to this day. It took the recent Iraq indecisiveness of the Security Council;88 in the latter, War to alert the West to the fact that it lacked a shared the Security Council further enhanced the reputation the perspective. At most, the neoliberals in the 1990s were United Nations had acquired by rejecting an undertaking inspired by swift economic globalization to dream of the that was manifestly contrary to international law and withering away of the state. The war rhetoric emanating pointedly refusing to grant retrospective legitimacy to the from the White House and the return of a Hobbesian military facts on the ground. security regime represented a rude awakening from this Three circumstances underscore the increased political dream. In the interim, a number of possible scenarios for authority of the United Nations. The Security Council

168 169 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW not only becomes involved in international conflicts but too late, as in Iraqi Kurdistan, Angola, the Congo, Nigeria, also intervenes in conflicts within states, be it, (a) in response Sri Lanka, and, it must also be said, Afghanistan. Aside to violence caused by civil wars or breakdowns in govern from the fact that members of the Security Council with ment (as in the former Yugoslavia, Libya, Angola, Burundi, veto power such as Russia and China can thwart any Albania, the Central African Republic, and East Timor); intervention in their "internal affairs," the African conti or (b) in response to gross violations of human rights or nent suffers under the selective perception and asym ethnic cleansing (as in Rhodesia and South Africa, North metrical evaluation of humanitarian catastrophes. ern Iraq, Somalia, Rwanda, and Zaire); or (c) in order to The commander of the UN troops stationed in Rwanda promote democracy (as in Haiti or Sierra Leone).89 In alerted the relevant branch of the UN to the fact that a addition, the Security Council drew on the tradition of mass murder Was imminent as early as January 1994. The Nuremberg and Tokyo in establishing war crimes tribunals massacre duly began on April 7 and in the course of the for the massacres in Rwanda and the former Yugoslavia. next three months claimed 800,000 lives, mainly among Finally, the dubious concept of so-called "rogue states"90 the Tutsi minority. The UN vacillated too long over a (John Rawls uses the more neutral term "outlaw states") military intervention that it was obligated to undertake marks not only the intrusion of a fundamentalistic outlook under the Genocide Convention of 1948. Such shameful into the rhetoric of the leading Western power, but also selectivity on the part of the Security Council in acknowl a concretization of the practice of recognition in interna edging and addressing specific cases reveals the primacy tional law. In international affairs, states that violate the still enjoyed by national interests over the global obliga security or human rights standards of the United Nations tions of the international community. The reckless disre are increasingly stigmatized. The regular reports of gard for obligations applies especially to the West, which globally active monitoring organizations, such as Human is today confronted with the negative impacts of a failed Rights Watch and Amnesty International, contribute process of decolonialization in addition to the long-term essentially to such states losing their legitimacy.91 A com consequences of its colonial history, not to mention the bination of external threats and persuasion and internal effects of processes of economic globalization that are opposition has succeeded in winning concessions from insufficiently counterbalanced by political institutions.92 certain governments (such as Indonesia, Morocco, and The United Nations is increasingly encountering a new Libya). type of violence in both of its main areas of competence, On the other hand, these advances are counterbalanced i.e., threats to international security and egregious human by sobering facts. The world organization has a weak rights violations. In response to the challenges posed by financial base. In many interventions, it encounters the criminal states, the UN can mobilize military forces from delaying tactics of uncooperative governments that con member states should the need arise. To be sure, govern tinue to enjoy exclusive control over military resources ments still play a dangerous role in the clandestine and depend, in turn, on the support of their national acquisition and illegal manufacture of weapons of mass publics. The intervention in the civil war in Somalia was destruction and governments continue to be involved in a failure in part because the American government with ethnic cleansing and terrorist attacks. However, threats drew its troops in response to the negative mood of its emanating from criminal states are increasingly overshad own population. Even worse than such failed interven owed by the risks generated by privatized violence no tions are interventions that never take place, or take place longer tied to the armed forces of a functioning state. In

170 171 THECONSTTrunONAUZATIONOFINTERNATIONALLAW THEKANTIAN PROJECT

contrastwithclassicalcivilwarsbetweenideologicalsupportivecontextfortheaspirationtoacosmopolitan opponents,the"newwars"frequentlyresultfrom"failing condition,onethatmitigatestheinitialappearanceof

invincibilityoftheforcesopposedtopolitical a constitu states/1thatis,fromthecollapseofastateauthoritythat fragmentsintoanunholymixtureof ethnonationalism,tionforglobalsociety. tribalfeuds,internationalcriminality,andcivilwar terrorism.93

A differentmatteragainisthecurrentdangerofa The reformagenda

globalterrorismthatdrawsitsenergyfromreligiousfun

damentalismandisallthemoredifficulttocombat ThereformagendaforthecoredomainsoftheUN isnot

becauseitisdeterritorialized.94Whatisnewisnotthe especiallycontroversial.Itfollowsasamatterofcourse

terroristicintent,noreventhetypeofattack(notwith fromtherecordofthesuccessesandfailuresoftheexist

standingthesymbolicsignificanceoftheTwinTowers). inginstitutions:

Thenoveltyliesinthespecificmotivation,andevenmore

• Givenitswide-rangingcompetences,thecomposition sointhelogistics,ofthisformofprivatizedviolence

andmodeofdecision-makingoftheSecurityCouncil whichoperatesgloballybutisonlyweaklynetworked.

The"success"achievedbytheterroristsintheirowneyes mustbebroughtintoharmonywiththenewgeopoliti

sinceSeptember11,2001canbeexplainedbyavariety calsituation,withtheaimofstrengtheningitscapac

ityforactionandofassuringadequaterepresentation offactors,twoofwhichmeritparticularattention:first,

thedisproportionateresonancewithwhichtheterror forthemajorpowersandwholecontinents,whilealso

takingaccountofthelegitimateinterestsofasuper meetsinahighlycomplexsocietysuddenlyawareofits

ownvulnerability,and,second,theincommensuratereac powerthatmustbekeptintegratedintotheworld

tionofahighlyarmedsuperpowerthatdeploysthetech organization.

nologicalpotentialofitsarmyagainstnon-statenetworks. • TheSecurityCouncilmustbeabletooperateinde

Theterrorists'calculationaimsata"success"indirect pendentlyofnationalinterestsinitschoiceofagenda

proportiontotheanticipated"militaryanddiplomatic, anditsresolutions.Itmustbinditselftoactionable

domestic-legalandsocial-psychologicalconsequencesof rulesthatlaydown,ingeneralterms,whentheUNis

authorizedandobligatedtotakeupacase.96 theattacks."95

TheweaknessesofaUN inurgentneedofreformare • Theexecutiveishamperedbyinadequatefinancing97

manifest.Butthenewtypesofprivatizedviolencewhich andbyrestrictionsonhowitcanaccesstherequisite

makeincreasinglyfrequentandurgentdemandsonthe resourcesofthememberstates.Giventhedecentral

conflict-solvingandconstructiveorderingaccomplish izedmonopoliesonthe useofviolenceenjoyedby

mentsoftheinternationalcommunityaremerelythe individualstates,theexecutivemustbereinforcedto

mostpressingsymptomsofthedissolutionofthenational apointwhereitcanguaranteetheeffectiveimplemen

constellationandthetransitiontoapostnationalconstel tationofresolutionsoftheSecurityCouncil.

• TheInternationalCourtofJusticehasnowbeenaug lation.Thesetrends,whicharecurrentlycapturingatten

mentedbyanInternationalCriminalCourt(though tionundertheheadingofglobalization,donotonlyrun

thelatterhasnotyetwonbroadrecognition).The countertotheKantianprojectofacosmopolitanorder;

adjudicativepracticeofsuchaCourtwillpromotethe theyalsomeetithalfway.Globalizationalsoprovidesa

172 173 THE KANTIAN PROJECT THE roNSTTTUnONAUZATION OF INTERNATIONAL LAW requisite definition and codification of the loosely which we have not thus far discussed, are concerned with defined crimes laid down in international law. Until such political tasks. now, the jus in hello has not been developed into a law Of course, some of these organizations, such as the of intervention that would protect affected popula International Atomic Energy Agency in its role of moni tions against UN operations in a way analogous to the toring the production and proliferation of weapons of protection enjoyed by private citizens against domestic mass destruction, function as executive organs of the police operations. (In this connection, advances in Security Council. Other organizations, such as the Uni military technology might even for once facilitate versal Postal Union and the International Telecommunica the transformation of wars into police operations, tion Union, which date back to the nineteenth century, namely with the development of so-called precision fulfill coordination functions in technical areas. However, weapons.) the mandates of organizations such as the World Bank, • The legislative decisions of the Security Council and the International Monetary Fund, and above all the World the General Assembly require a more robust, if indi Trade Organization extend to political decisions with an rect, form of legitimation from a well-informed global immediate impact on the global economy. The key to public opinion. In addition to other options, the con understanding this complex collection of loosely con tinuous presence of non-governmental organizations nected international organizations in the narrower and (with observer status in UN institutions and reporting wider penumbra of the UN lies in the emergence of a duties in national parliaments) also plays an important world society, chiefly as a result of the globalization of role in this connection. markets and communication networks. • But this weak legitimation will suffice for the activity We must focus on these processes when we ask why of the world organization only if the latter restricts states allow themselves to be drawn into transnational itself to the most elementary tasks of securing peace networks and even join supranational alliances, and when and human rights on a global scale. we want to explain why they might one day even meet the challenge to reform the world organization in an effec We can take it for granted that these basic rights are tive way. For the globalization of economy and society has accepted as valid worldwide and that the judicial oversight condensed the context in which Kant already embedded of the enforcement of law for its part follows rules that his idea of a cosmopolitan condition into a postnational are recognized as legitimate. In both respects, the supra constellation. By "globalization" is meant the cumulative national procedures of a politically constituted world processes of a worldwide expansion of trade and pro society would build on legal principles that have long since duction, commodity and financial markets, fashions, the proved themselves within individual constitutional states. media and computer programs, news and communications At the supranational level, the enforcement of established networks, transportation systems and flows of migration, law takes precedence over the constructive task of legisla the risks generated by large-scale technology, environ tion and policy-making, both of which, on account of the mental damage and epidemics, as well as organized crime greater scope for decision, demand a higher degree of and terrorism. These processes enmesh nation-states in legitimation, and hence more effectively institutionalized the dependencies of an increasingly interconnected world forms of citizen participation. Many of the more than society whose functional differentiation effortlessly by 60 special and sub-organizations within the UN family, passes territorial boundaries.

174 175 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW The best indicator for the transformations of international The postnational constellation relations is the blurring of boundaries between domestic and foreign policy. These systemic processes are altering the social parame In this way, then, the postnational constellation meets ters for the de facto independence of sovereign states.98 the constitutionalization of international law halfway. Nation-states can no longer secure the boundaries of their The everyday experience of growing interdependencies in own territories, the vital necessities of their populations, an increasingly complex global society also imperceptibly and the material preconditions for the reproduction of alters the self-image of nation-states and their citizens. their societies by their own efforts. In spatial, social, and Actors who previously made independent decisions learn material respects, nation-states encumber each other with new roles, be it that of participants in transnational net the external effects of decisions that impinge on third works who succumb to technical pressures to cooperate, parties who had no say in the decision-making process. or that of members of international organizations who Hence, states cannot escape the need for regulation and accept obligations as a result of normative expectations coordination in the expanding horizon of a world society and the pressure to compromise. In addition, we should that is increasingly self-programming, even at the cultural not underestimate the capacity of international discourses level. States remain the most important actors and the to transform mentalities under the pressure to adapt to final arbiters on the global political stage. Admittedly, the new legal construction of the international commu they have to share this arena with global players of a dif nity. Through participation in controversies over the ferent kind, such as multinational corporations and non application of new laws, norms that are merely verbally governmental organizations, which pursue their own acknowledged by officials and citizens gradually become agendas in the media of money or influence. However, internalized. In this way, nation-states learn to regard only states can draw on the resources of law and legitimate themselves at the same time as members of larger political power. Even if non-governmental actors can satisfy the communities.101 initial regulatory needs of cross-border functional systems As we in the European Union have discovered, however, through private forms of legislation (e.g. corporations that this flexibility runs up against the limits of existing forms institutionalize market relations with the aid of interna of solidarity once nation-states unite to form continental tional law firms),99 these regulations will not count as regimes. For these regimes unavoidably take on character "law" if they are not implemented by nation-states, or at istics of a state as soon as they develop into global players. least by agencies of politically constituted international Moreover, if the chains of democratic legitimation are not organizations. to break, civic solidarity must extend across former Although nation-states are losing certain competences national borders within the enlarged communities.102 As (for example, the ability to tax domestic companies that everywhere in modern states, solidarity, even in the operate internationally), they are simultaneously gaining abstract, legally constituted form of civic solidarity, is a latitude for a new sort of political influence.100 The quicker scarce resource. It is all the more important that the uni they learn to direct their interests into the new channels fication of Europe should succeed, since this experiment of "governance without government," the sooner they will could serve as a model for other regions of the world. In be able to replace the traditional forms of diplomatic pres Asia, Latin America, Africa, and the Arab world, pro sure and military force with the exercise of "soft" power. cesses of regional political integration are still in their

176 177 THE KANTIAN PROJECT THE CONSTITUTIONAUZATION OF INTERNATIONAL LAW infancy. If these alliances do not take on a more concrete multilevel system that would remain incomplete without and at the same time democratic form, the obvious lack this intermediate level. of collective actors capable of negotiating and implement ing transnational compromises will remain acute. International organizations operate more or less well at Alternative Visions of a New Global Order this intermediate level as long as they perform coordinat ing functions. However, they fail in tasks of global re A U-turn in US policy on international law after gulation in the fields of energy and environmental policy September 11? and in financial and economic policy. Either there is a lack of political will or the West imposes law hegemoni- The United States does not need to develop the capacity cally in its own interest. David Held goes beyond merely to operate at the global level - it already has it. As the highlighting the unequal distribution of life chances in only global player of its kind, the superpower can escape a world in which 1.2 billion human beings live on less international legal obligations without fear of sanction. than one dollar per day, in which 20 percent consume On the other hand, the project of a cosmopolitan order more than 80 percent of global income and in which all is doomed to failure without American support, indeed other indicators of "human development1' point to similar American leadership. The US must decide whether it disparities: should abide by international game rules or whether it should marginalize and instrumentalize international law [W]hile free trade is an admirable objective for progres and take things into its own hands. Already the decision sives in principle, it cannot be pursued without attention of the Bush administration to refuse to recognize the to the poorest in the least well-off countries who are International Criminal Court, alongside such countries as extremely vulnerable to the initial phasing in of external China, Yemen, Qatar, Libya, and Saddam's Iraq, and, in market integration ... [Tjhis will mean that development particular, its unilaterally forced-through invasion of Iraq policies must be directed to ensure the sequencing of and the concurrent attempts to discredit the United global market integration, particularly of capital markets, Nations, seem to signal a U-turn in American policy on long-term investment in health care, human capital and international law. Of course, one can properly speak of a physical infrastructure and the development of transpar ent, accountable political institutions.... But what is "U-turn" only if the US government had pursued a differ striking is that this range of policies has all too often not ent course during the 1990s. been pursued.103 Even during this period, American policy on interna tional law did not exhibit unswerving commitment to The pressure of problems generated by an increasingly the internationalism of the early post-war years. As in globalized society will sharpen the sensitivity to the the period following 1945, the US exhibited a remark growing need for regulation and fair policies at the trans able degree of activism in the field of international law national level (i.e. the intermediate level between nation- following the end of the Cold War. However, it was states and the world organization). At present, we lack the pursuing a double agenda. On the one hand, it threw actors and negotiation procedures that could initiate such its weight behind the liberalization of trade relations a global domestic politics. Realistically speaking, we can and financial markets, the expansion of GATT to the only envisage a politically constituted world society as a World Trade Organization, the protection of intellectual

178 179 THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW THE KANTIAN PROJECT tional law following 1945 the hegemonic attempt to property, and so forth. Without American initiatives, important innovations in other areas - such as the con expand its own legal system to a global scale - in other ventions on landmines and chemical weapons, the expan words, the attempt to replace international law with sion of the treaty on the non-proliferation of nuclear national law: "America promoted internationalism and weapons and even the Rome Statute for the International multilateralism for the rest of the world, not for itself/1107 Criminal Court - would never have got off the ground. On this view, even the decidedly internationalist policies On the other hand, the American government either of Roosevelt and Wilson, both of whom entered into over failed to ratify many treaties or rejected them out of seas alliances in opposition to the "America First hand, in particular, treaties in the areas of arms control, Doctrine" and became involved in the power politics of human rights, the prosecution of international crimes, America's European allies, are brought into proximity and environmental protection. Examples include the with George W. Bush's unilateralism. Bush seems to be convention on landmines and the nuclear test-ban treaty, the heir to both traditions: the idealism of the American the right of individuals to submit petitions to the UN mission and the realism of a Jefferson who warned against Commission on Human Rights, the conventions on the "entangling alliances." With a clear conscience, this Presi law of the seas and the protection of endangered species dent unilaterally imposes US national territorial and secu and - concurrent with the collapse of the convention on rity interests in the name of the ethos of a new liberal biological weapons and the unilateral withdrawal from global order that he regards as a reflection of American the ABM Treaty - the Kyoto Protocol and the Statute of values. However, once the globalization of a particular the ICC. As a general rule, the USA ratified a consider ethos has replaced the law of the international commu ably smaller proportion of the multilateral treaties nity, whatever is then dressed up as international law is passed by the General Assembly than did the other G7 in fact imperial law. The evidence on which some critical readings of countries.104 These examples seem to conform to the classical pattern American policy on international law since 1989/90 are of behavior of an imperial power that rejects international based does not support this kind of over-hasty imputation legal norms because they limit its scope for action.105 Even of false continuities. The highly asymmetrical distribution the humanitarian interventions and the military deploy of power in a global society marked by cultural differences ments authorized - or, as in the case of the NATO Kosovo and asynchronous forms of life, which is nevertheless mission, retrospectively legitimated - by the Security becoming increasingly integrated under systemic pres Council do not speak for an unambiguous reinforcement sures, represents a highly ambivalent constellation; hence, it would be odd if one could read off unambiguous inten of the UN. Once the superpower exploits the instruments tions from the political decisions of a superpower operat of international legal multilateralism to promote its own interests, this development acquires a thoroughly ambiva ing under such conditions. Let us assume counterfactually lent significance.106 What from one angle appears to be that the superpower sees itself at the forefront of the progress on the path to the constitutionalization of inter constitutionalization of international law, that it wants to national law, from another appears to be the successful promote the reform of the UN and to pursue the goal of a politically constituted cosmopolitan society, mindful of imposition of imperial law. Some authors would even like to read into the undeni its own interests but respecting established procedures. Even in this ideal case it would not be possible to ably internationalist orientation of US policy on interna-

180 181 THE KANTIAN PROJECT THE CXDNSmUTIONALIZATION OF INTERNATIONAL LAW determine directly whether asymmetries of power were The weaknesses of hegemonic liberalism still lurking behind specific hegemonic acts that promote the juridification of international relations. Hegemonic law is still law. A well-intentioned and far-sighted hegemon This brings me back to my initial question: in view of the of this sort would be the darling of future historians who challenges we are currently facing, does the inefficiency lived to witness the happy outcome of the difficult experi of the United Nations, its selective perception and tem ment. Contemporaries living through the process without porary inability to act, provide sufficient reasons to break the benefit of the hindsight enjoyed by later generations, with the premises of the Kantian project? Since the end by contrast, will experience this history as involving an of the Cold War, a unipolar global order has emerged in ambivalent mixture of attempts at constitutionalization which a single military, economic, and technological of international law on the one hand and its instrumen- superpower enjoys unrivaled supremacy. This fact is talization on the other. indifferent from a normative point of view. Only if one Of course, even contemporaries can recognize a clear- interprets it as generating a prejudice in favor of a pax cut U-turn from an internationalist to an imperialist Americana based on power instead of law does it demand strategy. Those who locate the unilateralism of the Bush a normative response. For the happy circumstance that administration within a historical pattern of consistent the superpower is also the oldest democracy on earth imperialistic behavior trivialize the importance of what could inspire a completely different approach from that is in fact an abrupt reversal in policy. In September of hegemonic unilateralism - one oriented to the global 2002, the US President announced a new security doc expansion of democracy and human rights. In spite of an trine in which he reserves a self-defined discretionary abstract agreement in their goals, the hegemonic liberal right to launch pre-emptive strikes. In his State of the vision differs from the Kantian project of promoting a Union address on January 28, 2003, he solemnly declared cosmopolitan order both in the path that is supposed to that if the Security Council did not ultimately agree to lead to this goal and the concrete form the goal is sup military action against Iraq, however this was justified, posed to take. he would, if necessary, act contrary to the prohibition As regards the path, an ethically grounded unilateral on the use of violence of the UN Charter ("The course ism is no longer bound by established procedures in of this nation does not depend on the decisions of international law. Moreover, with regard to the concrete others"). Taken together, these two actions are alarming form of the new global order, hegemonic liberalism does indicators of an unprecedented rupture with a legal not aim at a law-governed, politically constituted world tradition that no previous American government had society, but at an international order of formally indepen ever explicitly questioned. They express contempt for dent liberal states. The latter would operate under the one of the greatest achievements of human civilization. protection of a peace-securing superpower and obey the The words and actions of this President do not admit imperatives of a completely liberalized global market. On any other conclusion than that he wants to replace the this model, the peace would not be secured by law but by civilizing force of universalistic legal procedures with imperial power, and the world society would be inte the particular American ethos armed with a claim to grated, not through the political relations among world universality. citizens, but through systemic, and ultimately market,

182 183 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW relations. However, neither empirical nor normative con unbiased proposal to a discursive procedure of opinion- siderations support this vision. and will-formation. The undeniably acute danger of international terrorism "Discursive" procedures make egalitarian decisions cannot be combated effectively with the classical instru dependent on prior argumentation (only justified deci ments of war between states nor, consequently, by the sions are accepted); they are inclusive (all affected parties military superiority of a unilaterally acting superpower. can participate); and they compel the participants to Only the effective coordination of intelligence services, adopt each other's perspectives (a fair assessment of all police forces, and criminal justice procedures will strike affected interests is possible). This is the cognitive meaning at the logistics of the adversary; and only the combination of an impartial decision-making process. Judged by this of social modernization with self-critical dialogue between standard, the ethical justification of a unilateral undertak cultures will reach the roots of terrorism. These means ing by appeal to the presumptively universal values of are more readily available to a horizontally juridified one's own political culture must remain fundamentally international community that is legally obligated to co biased.108 operate than to the unilateralism of a major power that This defect cannot be made good by the fact that the disregards international law. The image of a unipolar hegemonic power has a democratic internal constitution. world accurately mirrors the existing asymmetrical distri For its citizens confront the same cognitive dilemma as bution of political power. However, it is misleading because their government. The citizens of one political commu the complexity of a world society that is not just economi nity cannot anticipate the outcome of the interpretation cally decentered can no longer be mastered from a center. and application of supposedly universal values and prin Conflicts between cultures and major religions can no ciples made by the citizens of another political commu more be controlled exclusively by military means than nity from their local perspective and in their own cultural crises on world markets can be by political means. context. In another respect, however, the fact that the Hegemonic liberalism is not supported by normative superpower has a liberal constitution is indeed important. reasons either. Even if we assume a best-case scenario Citizens of a democratic political community sooner or and ascribe the purest of motives and most intelligent later become aware of cognitive dissonances if universal- policies to the hegemonic power, the "well-intentioned istic claims cannot be squared with the particularistic hegemon" will nevertheless encounter insuperable cogni character of the obvious driving interests. tive obstacles. A government that must decide on issues of self-defense, humanitarian interventions, or interna tional tribunals on its own can act with as much consid The neoliberal and post-Marxist approaches eration as it likes; in the unavoidable process of weighing goods it can never be sure whether it is really distin However, hegemonic liberalism is not the only alternative guishing its own national interests from the universaliz- to the Kantian project. In conclusion, I would like to able interests that all the other nations could share. This examine three further visions that are currently being inability is a function of the logic of practical discourses; advanced: it is not a matter of good or bad will. One can only test a unilateral anticipation of what would be rationally • the neoliberal model of a global market society beyond acceptable to all sides by submitting the presumptively the state already mentioned;

184 185 THE KANTIAN PROJECT THE CXDNSTltUTIONAUZATION OF INTERNATIONAL LAW • the post-Marxist scenario of a dispersed empire From the perspective of critics of globalization, the without a power center; and post-Marxist scenario of a dispersed imperial power illu • the anti-Kantian project of a system of hemispheres minates the reverse side of the neoliberal project. It shares polemically affirming their incommensurable forms of the latter's rejection of the classical image of state- life in opposition to one another. centered politics but not the counter-image of the global peace of a bustling private law society. It sees private legal The neoliberal model of global market society antici relations beyond the state as the ideological expression of pates a progressive marginalization of state and politics. the dynamics of an anonymous power that prises open Politics retains at most the residual functions of the night ever-wider cleavages within the anarchistic global society watchman state/09 whereas international law above the between vampiristic centers and desiccated peripheries. level of the state mutates into a global system of private The global dynamic has become detached from interac law that institutionalizes trade and commerce. The rule tions among states, but this self-propelling system can no of self-executing laws can dispense with state sanctions longer be identified exclusively with the global economy.111 because the coordinating functions of global markets Self-reproducing capital is replaced by a kind of vague can assure a pre-political integration of world society. expressive power that penetrates base and superstructure The marginalized states will regress to just one type of alike and manifests itself in cultural as well as economic functional system among others because the depolitici- and military violence.112 The correlate of the decentering zation of private citizens renders the functions of political of power is the local character of the dispersed forms of socialization and civic identity-formation superfluous. resistance that oppose it. The global human rights regime is restricted to the nega This conceptually vague scenario finds support in the tive liberties of citizens who acquire an "immediate" status superficial evidence that state power is becoming de- vis-a-vis the global economy.110 differentiated in a world society marked by growing This vision, which was in vogue in the 1990s, has in social disparities and deepening cultural fragmentation as the meantime been overtaken by the return of a Hobbes- a result of the globalization of the economy and the media. ian security regime and by the explosive character of This highly speculative outlook, though it may be fruitful politicized religions. The image of an apolitical global for social science, has nothing much to offer to a diagnosis market society no longer coheres with a world stage on of the future of international law because the limited which international terrorism has made its appearance conceptual frame prevents it from taking account of the and religious fundamentalism is reviving forgotten politi intrinsic normative dynamics of legal development.113 The cal categories: the "axis of evil" also transforms opponents distinctive dialectic of the history of international law into enemies. But the brave new world of neoliberalism cannot be interpreted with a completely deformalized has not only been rendered empirically null and void; conception of law as a mere reflection of underlying power normatively speaking it was a non-starter, for it robs indi constellations. The egalitarian and individualistic univer- viduals of their status as citizens and abandons them to salism of human rights and democracy has a "logic" that the contingencies of an unmanageably complex society. interferes with the dynamics of power. The individual liberties of private legal subjects are Carl Schmitt took issue with this universalistic presup merely threads on which autonomous citizens dangle like position of the Kantian project throughout his career.

puppets. Hence, his critique of international law is gaining new

186 187 THE KANTIAN PROJECT THE CONSTITUTiONALIZATION OF INTERNATIONAL LAW adherents among those who contest the priority of the justice between nations. This view rests on the assump right over the good on contextualist grounds or who tion that normative arguments in international relations suspect, for reasons grounded in the critique of reason, are nothing more than a pretext for masking one's own that universalistic discourse is always a mask for particular interests. The moralizing party is seeking to promote its interests. Informed by this moral non-cognitivism, own advantage by unfairly denigrating its opponent; con Schmitt's diagnosis appears to offer an explanation for testing one's opponent's status as an honorable enemy/or current trends, such as the detachment of politics from Justus hostis, produces an asymmetrical relation between the state and the political relevance of cultural hemi parties that are in principle equal. Worse still, the moral- spheres that transcend state boundaries. ization of war previously regarded as morally indifferent aggravates the conflict and leads to the "degeneration" of the conduct of war which is at least domesticated by law. Kant or Schmitt? After World War II, Schmitt radicalized his argument further in a legal opinion for the defense of Friedrich Flick In his capacity as an international lawyer, Carl Schmitt before the Nuremberg Tribunal;115 evidently, the "atroci developed essentially two arguments. The first is directed ties" of total war116 could do nothing to shake his faith in against a "discriminatory concept of war" and any further the blamelessness of the subjects of international law. juridification of international relations; the other argu Once we conceive the ban on war as a step toward the ment, the replacement of states by imperial hemispheres, "juridification" of international relations, it becomes appar is an attempt to salvage the supposed merits of classical ent that Schmitt's complaint about the "moralization" of international law beyond the dissolution of the European war is beside the point. For the consequence of this move state system. is to replace the distinction between just and unjust wars, With his defense of the legitimacy of war in interna whether grounded in natural law or in religion, by the tional law, Schmitt was reacting, on the one hand, to the procedural distinction between legal and illegal wars. League of Nations and the Kellogg-Briand Pact and, on Legal wars thereby take on the significance of global police the other, to the question of war guilt raised by the operations. With the establishment of an international Versailles Peace Treaty. For only if war is prohibited by criminal court and the codification of the relevant crimes, international law can a warring government incur "guilt." positive law would be extended to the international level Schmitt defended the classical principle of international and, under the protection of legal due process, also safe law that states cannot do anything wrong in a moral sense guard the accused from moral prejudgments.117 The recent with an argument he shared with Hans Morgenthau: conflict within the Security Council over the absence of judging opponents in moral terms poisons international evidence of weapons of mass destruction in Iraq and the relations and intensifies wars. He made the universalistic continuation of weapons inspections made clear, at any peace ideal of the Wilsonian League of Nations responsi rate, the role procedures can play in questions of war ble for the fact "that the distinction between just and and peace. unjust wars brings about an increasingly radical and acute, On Schmitt's understanding, legal pacifism leads inevi a more 'total' distinction between friend and foe."114 tably to excesses of violence because he tacitly assumed Because he thinks that conceptions of justice necessar that any attempt to domesticate military violence by legal ily remain controversial between states, there can be no means must fail. He was convinced that competing

188 189 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW conceptions of justice are incommensurable. Competing dynamic conception of "the political" from the state states or nations cannot agree on a single conception of during the 1930s. He first projected it onto the mobilized justice, and certainly not on the liberal concepts of democ "people," the fascistically marshaled nation, and later onto racy and human rights. However, Schmitt never provided partisans, liberation movements, the parties in civil wars, any philosophical justification for this thesis.118 His etc. Presumably, he would now also apply it to fanatical non-cognitivism rests instead on an existential "concept terrorist groups who perform suicide attacks: "Schmitt's of the political."119 He believed in an irreducible antago emphatic defense of the political as a world of collectivi nism between hypersensitive and aggressive nations that ties who demand a readiness to die of their members is must assert their respective collective identities in opposi ultimately driven by a fundamental moral critique of a tion to one another. Schmitt's "social-ontological" anti world without transcendence and existential seriousness, thesis to the Kantian conception of the juridification of of the 'dynamic of eternal competition and eternal discus international relations is grounded in this dimension. For sion/ and of 'the faith in the masses of an antireligious him, the substance of "the political" always consisted in secular activism'."121 the disposition to violent self-assertion, which he initially Already in 1938, in the second edition of his work Zum understood in terms of the nation-state, then in fascistic- diskriminierenden Kriegsbegriff (On the Discriminatory nationalistic terms, and finally in terms of a nebulous Concept of War), Schmitt distances himself from a con Lebensphilosophie. At all stages, however, his notion of "the servative reading of his former critique of the prohibition political" was charged with fantasies of life and death of war in international law. In the meantime, he had struggles. Schmitt's opposition to the universalism of embraced the idea of "total war" which he had previously Kant's philosophy of law was primarily motivated by his denounced as the consequence of an ill-conceived human rejection of the function of "rationalizing" the substance itarian abolition of war. Hence, he could now reject any of political power which the constitution is supposed to attempt to return to the classical international law of bel perform both within the nation-state and in the interna ligerent states as reactionary: "Our criticism [of the dis tional domain. criminatory conception of war] is not directed against the For Schmitt, the locus of the political was in the first notion of fundamentally new orders."122 In the middle of instance the impervious irrational core of the bureaucratic the war, in 1941, with the eastward expansion of the authority of executive state agencies. The process of con German Reich in view, Schmitt developed a forward- stitutional domestication must come to a halt before this oriented, genuinely fascistic,123 but after the war hastily core; otherwise, the state's capacity to assert itself against de-Nazified, conception of international law.124 This external and internal enemies would be impaired.120 second argument takes up the constructive idea of a poli Schmitt inherited the idea of the "state behind the law" tics beyond the state. In response to his criticism of the from an antiparliamentary ideology of legal positivism Kantian project, he outlines a project of his own: a system that prevailed in pre-World War I imperial Germany. This of hemispheres is supposed to bind the otherwise danger doctrine attributes to the state a "will of its own"; as it ously proliferating political energies once again into an happens, through Schmitt's students it enjoyed a later authoritarian form. career even among constitutional lawyers of the early Schmitt chooses the 1823 Monroe Doctrine (suitably Federal Republic of Germany during the 1950s. However, interpreted) as a model for an international legal construc Schmitt himself had already detached his expressive- tion that divides the world into territorial "hemispheres"

190 191 THE KANTIAN PROJECT THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW [Grojiraume] shielded against the interventions of "alien with current trends toward the deformalization and powers" [rautnfremde Mdchte]: "The original Monroe delimitation of state power, while riot playing down the Doctrine had the political meaning of defending a new enduring importance of political actors generally, as do political idea against the existing powers of the legitimate the liberal and post-Marxist models. Schmitt anticipates status quo by excluding interventions by alien powers/1125 the rise of continental regimes to which the Kantian On this model, the lines of demarcation laid down by project also assigns an important role. Moreover, his international law define separate "spheres of sovereignty" model invests the conception of hemispheres with con conceived, not as state territories, but as "spheres of influ notations that accord with the current idea of a "clash of ence." These spheres are dominated by imperial powers cultures." The design operates with an expressivist con and are shaped by the impact of their ideas. Internally, ception of power that has found resonance in postmodern the "empires" are hierarchically ordered. Dependent theories and it corresponds to a pervasive skepticism nations and population groups within their territory concerning the possibility of intercultural dialogue over submit to the authority of a "naturally" leading power that universally acceptable interpretations of human rights has achieved pre-eminence through its superior historical and democracy. accomplishments. The status of a subject of international Based on this skepticism - for which the new cultural law is not granted automatically: "Not all peoples are conflicts provide some misleading evidence but no cogent capable of passing the test of creating a sound modern philosophical grounds - an updated theory of hemispheres state apparatus and very few have the organizational, offers itself as a not altogether implausible counter industrial and technical resources to conduct a modern proposal to the hegemonic liberal model of unipolar global war on their own."126 order. In Schmitt's case, it was already nourished by The international system of hemispheres transfers the ressentiment against Western modernity and its up principle of non-intervention to the spheres of influence dated versions remain completely blind to the productive of major powers who assert their cultures and forms of ideas of self-consciousness, self-determination, and self- life against one another in a sovereign manner and, if realization that continue to shape the normative self- necessary, with military force. The concept of "the politi understanding of modernity. cal" is sublimated into the self-assertion and radiating influence of imperial powers who impose the stamp of their ideas, values, and national form of life on the identity of the hemisphere as a whole. Conceptions of justice are supposed to remain as incommensurable as before. The new international legal order does not find its guarantee, any more than did the classical, "in some substantive notion of justice, or in an international legal conscious ness" - but in the "balance of powers."127 I have devoted so much space to this project of an international legal system of hemispheres, originally designed for the "Third Reich," because it is capable of acquiring a fatal Zeitgeist appeal. The project links up

192 193 NOTES TO PP. 116-123 NOTES TO PP. 96-116 Bush defeated his Democratic Party challenger John 5 Thomas L. Pangle and Peter J. Ahrensdorf, Justice among Kerry. (Ed.). Nations (Lawrence, Kan.: University Press of Kansas, 8 On September 5, 1977, the Red Army Faction abducted 1999). and later murdered the industrialist Hans Martin Schleyer 6 See Kant, The Conflict of the Faculties, trans. Mary Gregor in Cologne. The socialist-liberal coalition government (New York: Abaris Books, 1979), p. 169: "[human beings] under Helmut Schmidt responded to the abduction and will see themselves compelled to render the greatest a subsequent airplane hijacking with harsh security obstacle to morality - that is to say, war ... - firstly by measures, thereby contributing to a mood of crisis and degrees more humane and then rarer, and finally to instability. (Ed.). renounce offensive war altogether.". 9 For Walzer's critical assessment of the hegemonic unilat 7 Kant, "Toward Perpetual Peace: A Philosophical Project," eralism underlying the policies of the Bush administra in Kant, Practical Philosophy, ed. and trans. Mary Gregor tion, see Michael Walzer, "Is there an American Empire?" (Cambridge: Cambridge University Press, 1996), p. 328. Dissent 50/4 (Fall 2003): 27-31. (Ed.). 8 Philip Kunig, "Volkerrecht und staatliches Recht/1 in 10 See below, ch. 8, p. 171. (Ed.). Wolfgang Graf Vitzthum, Volkerrecht, 2nd edn. (Berlin: de Gruyter, 2001), pp. 87-160. 9 Kant, "On the Common Saying: That May Be Correct in Chapter 8 Does the Constitutionalization of Theory but it is of No Use in Practice," in Kant, Practical International Law Still Have a Chance? Philosophy, p. 309. 10 Kant, "Toward Perpetual Peace," p. 318. 1 I am indebted to Hauke Brunkhorst for stimulating dis 11 Kant, The Metaphysics of Morals, ed. and trans. Mary cussions during the preparation of this text and to Arnim Gregor (Cambridge: Cambridge University Press, 1996), von Bogdandy for helpful comments on the penultimate p. 123. 12 Volker Gerhardt, Immanuel Kants Entwurf "Zum ewigen version. 2 Bardo Fassbender, "The United Nations Charter as Consti Friedenn (Darmstadt: Wissenschaftliche Buchgesellschaft, tution of the International Community/' Columbia Journal 1995). of Transnational Law 36 (1998): 529-619; Jochen A. 13 Kant, Metaphysics of Morals, pp. 123, 121 (translation Frowein, "Konstitutionalisierung des Volkerrechts," in amended). Volkerrecht und internationales Recht in einem sich globalisie- 14 Kant, "Idea for a Universal History with a Cosmopolitan renden internationalen System, Berichte der Deutschen Intent," in Kant, Perpetual Peace and Other Essays, trans. Gesellschaft fur Volkerrecht 39 (Heidelberg: Miiller, Ted Humphrey (Indianapolis: Hackett, 1983), p. 34. 2000), pp. 427-47; for a more comprehensive treatment, 15 Kant, Metaphysics of Morals, p. 30. see Hauke Brunkhorst, Soiidaritat. Von der Burgerfreund- 16 Ingeborg Maus, Zur Aufkldrung der Demokratietheorie schaft zur globalen Rechtsgenossenschaft (Frankfurt am (Frankfurt am Main: Suhrkamp Verlag, 1992), pp. Main: Suhrkamp Verlag, 2000); Brun-Otto Bryde, "Kon 176ff. stitutionalisierung des Volkerrechts und Internationalisier- 17 Jiirgen Habermas, Between Facts and Norms, trans. ung des Verfassungsrechts," Der Stoat 42 (2003): 62-75. William Rehg (Cambridge, Mass.: MIT Press, 1996), 3 Ernst-Otto Czempiel, Weltpolitik im Umbruch (Munich: pp. 133ff. 18 Kant, "Idea for a Universal History," pp. 34-5. Beck, 1993). 4 Czempiel, Neue Sicherheit in Europa. Eine Kritik an 19 Kant, "Theory and Practice," p. 295. Neorealismus und Realpolitik (Frankfurt am Main: 20 Kant, "Conclusion" to "Doctrine of Right," in Metaphysics Campus, 2002). of Morals, p. 123.

200 201 NOTES TO PP. 123-129 NOTES TO PP. 129-139

21 Kant, "Toward Perpetual Peace/1 p. 328. 33 Kant, "Theory and Practice," p. 307. 22 Cf. Kant, "Theory and Practice/' p. 309. 34 I am indebted for this point to Pauline Kleingeld, Kant's 23 Ibid., p. 308. So too the later work "Toward Perpetual Theory of Peace (Ms. 2004). Peace/' p. 322n., where Kant relates cosmopolitan law 35 Habermas, Between Facts and Norms, pp. 133-51. to persons "regarded as citizens of a universal state of 36 Cf. Maus, Zur Aufkldrung der Demokratietheorie. mankind." 37 On the concept of a federal world republic, see Otfried 24 Kant, "Toward Perpetual Peace," p. 328 (translation Hoffe, Demokratie im Zeitalterder Globalisierung (Munich: amended). C. H. Beck, 1999); Stephen Gosepath and Jean-Chris- 25 I was first convinced of this by Thomas A. McCarthy, toph Merle, eds., Weltrepublik: Globalisierung und "On Reconciling Cosmopolitan Unity and National Demokratie (Munich: C. H. Beck, 2002). Diversity," in Pablo de Greiff and Ciaran Cronin, eds., 38 Michael Greven and Rainer Schmalz-Bruns, eds., Poli- Global Justice and Transnational Politics (Cambridge, tische Theorie - heute (Baden-Baden: Nomos, 1999), Mass.: MIT Press, 2002), pp. 235-74. Part III; Beata Kohler-Koch, ed., Regieren in entgrenzten 26 For a more in-depth discussion, see Habermas, "Kant's Rdumen, Politische Vierteljahresschrift, 39 (1998); Idea of Perpetual Peace: At Two Hundred Years' Histori Markus Jachtenfuchs and Michele Knodt, eds., Regieren cal Remove," in idem., The Inclusion of the Other, ed. and in internationalen Organizationen (Opladen: Leske & trans. Ciaran Cronin and Pablo de Greiff (Cambridge, Budrich, 2002). Mass.: MIT Press, 1998), pp. 165-201. 39 Habermas, The Postnational Constellation, trans. Max 27 Kant, "Toward Perpetual Peace," p. 330 (translation Pensky (Cambridge: Polity, 2001), pp. 104-12. modified). 40 Brunkhorst, "Globale Solidaritat: Inklusionsprobleme 28 Ibid., p. 326. moderner Gesellschaften," in Lutz Wingert and Klaus 29 See the contributions of Reinhard Brandt, Volker Giinther, eds., Die Offentlichkeit der Vernunft und die Gerhardt, Otfried Hoffe, and Wolfgang Kersting, in Vernunftder Offentlichkeit (Frankfurt am Main: Suhrkamp Hoffe, ed., Immanuel Kant: Zum Ewigen Frieden (Berlin: Verlag, 2001), pp. 605-26; "Globalising Democracy Akademie Verlag, 1995); also: Brandt, "Historisch- without a State," Millennium Journal of International kritische Beobachtungen zu Kants Friedensschrift," in Studies 31/3 (2002): 675-90; Demokratie in der globalen Reinhard Merkel and Roland Wittmann, e»ds., Zum Ewigen Rechtsgenossenschaft. Zeitschrift fur Soziologjie, Sonderheft Frieden (Frankfurt am Main: Suhrkamp, 2001), pp. 12- Weltgesellschaft (forthcoming). 30; Orlando Budelacci, Kants Friedensprogratnm 41 Christoph Mollers shows how in European constitutional (Bamberg: Athena, 2003). law the liberal constitutional idea of "restricting author 30 Kersting, "Globale Rechtsordnung oder weltweite ity" becomes connected with the genuinely democratic Verteilungsgerechtigkeit?" in Recht, Gerechtigkeit und constitutional idea of "founding authority." See Mollers, demokratische Tugend (Frankfurt am Main:. Suhrkamp "Verfassungsgebende Gewalt - Verfassung - Konstitu- Verlag, 1997), pp. 243-315: here p. 269. tionalisierung. Begriffe der Verfassung in Europa," in 31 Stefan Oeter, "Souveranitat und Demokratie als Problem Arnim von Bogdandy, ed., Europdisches Verfassungsrecht der Verfassungsentwicklung der Europaischen Union," (Berlin: Springer, 2003), pp. 1-56. Zeitschrift fur ausldndisches offentliches Recht und Volker- 42 Gunter Frankenberg, "Die Riickkehr des Vertrages. Ober- recht 55/3: 659-712. legungen zur Verfassung der Europaischen Union," in 32 See the "Conclusion" to "Doctrine of Right," in Metaphys Wingert and Giinther, eds., Die Offentlichkeit der ics of Morals, pp. 123-4. Vernunft, pp. 507-38.

202 203 NOTES TO PP. 139-151 NOTES TO PP. 151-160 43 Bryde, "Konstitutionalisierung des Volkerrechts," p. 62. 57 Frobel (1847), vol. II, p. 458. 44 Habermas, Between Facts and Norms, pp. 118-31; "On 58 Frobel (1847), vol. I, pp. 246f. the Internal Relation between the Rule of Law and 59 Ibid., p. 245. Democracy/' in The Inclusion of the Other, pp. 253-64; 60 Ibid., p. 538. "Constitutional Democracy: A Paradoxical Union of 61 Ibid., p. 57. Contradictory Principles?" Political Theory 29/6 (2001): 62 Frobel (1847), vol. II, p. 469. 766-81. 63 Frobel (1847), vol. I, p. 250. 45 Rudolf Dolzer, "Wirtschaft und Kultur im Vdlkerrecht/1 64 Frobel (1847), vol. II, pp. 462ff. in Vitzthum, Vdlkerrecht, pp. 502-19. 65 His serisitization to the race question in the USA had 46 See the Special Report on the WTO Cancun Ministerial of even transformed the renegade into a precursor of social September 16, 2003 (www.globalservicesnetwork.com/ Darwinism. pdf/PostCancun.pdf). 66 A photomechanical reprint ofthe Vienna edition appeared 47 Brunkhorst, "Globalising Democracy without a State." in the Scientia Verlag, Aalen, in 1975: Julius Frobel, 48 Kant, "Toward Perpetual Peace/1 p. 336n. Theorie der Politik (Vienna, 1861: hereinafter Frobel 49 Gilbert Guillaume, "Terrorism and International Law/1 (1861), vols. I and II). International and Comparative Law Quarterly 53 (2004): 67 Frobel (1861), vol. I, p. 331. 537-48. 68 Ibid., p. 328. 50 I owe this point to Nico Krisch, Imperial Law (Ms. 69 Lasson, Prinzip und Zukunft des Volkerrechts (Berlin 2003). 1871). 51 Cf. the useful survey in Arnim von Bogdandy, "Demokra- 70 Martti Koskenniemi, The Gentle Civilizer of Nations. The tie, Globalisierung, Zukunft des Volkerrechts - eine Rise and Fall ofInternational Law 1870-1960 (Cambridge: Bestandaufnahme," in Zeitschrift fur ausldndisches und Cambridge University Press, 2002), pp. 179-265. offentliches Recht und Vdlkerrecht 63/4 (2003): 852-77. 71 Ibid., p. 87. 52 There has been no shortage of attempts to save Hegel's 72 Hans Kelsen and Carl Schmitt engaged in debates with honour; see, most recently, Robert Fine, "Kant's Theory George Scelle and Hersch Lauterpacht. of Cosmopolitanism and Hegel's Critique," Philosophy &i 73 Thomas Knock, To End all Wars: Woodrow Wilson and Social Criticism 29/6 (2003): 611-32. the Quest for a New World Order (Princeton, NJ: Prince 53 Friedrich Wilhelm August Frobel (1782-1852)/ who was ton University Press, 1995), ch. 4. influenced by the Rousseauean educational reformer 74 Gerhard Beestermoller, Die Volkerbundsidee (Stuttgart: Johann Heinrich Pestalozzi, founded the kindergarten Kohlhammer, 1997), pp. 16ff. movement. (Ed.). 75 Ibid., pp. lOlff. 54 A photomechanical reprint was published in 1975 by 76 Woodrow Wilson, The Public Papers of Woodrow Wilson, Scientia Verlag, Aalen: Julius Frobel, System der sozialen ed. Ray Stannard Baker and William E. Dodd, vol. I (New Politik, 2nd edn. (Mannheim 1847; hereinafter Frobel York: Harper and Brothers, 1925), p. 233. (1847), vols. I and II). The biographical details are 77 Alfred Verdross and Bruno Simma, Universelles Vdlker adapted from Rainer Koch's introduction to this recht, 3rd edn. (Berlin: Duncker & Humblot, 1984), pp. reprint. 66ff. 55 Cf. Habermas, "Popular Sovereignty as Procedure," in 78 Bryde, "Konstitutionalisierung des Volkerrechts und Between Facts and Norms, pp. 463-90: here pp. 473ff. Internationalisierung des Verfassungsrechts," p. 62. 56 I.e. the period of political ferment in the German states 79 Fassbender, "The United Nations Charter as Constitution leading up to failed revolutions of March 1848. (Ed.). of the International Community," lists eight constitutive

204 205 NOTES TO PP. 162-170 NOTES TO PP. 170-176

characteristics of a constitution: "A Constitutive Moment, 91 Frowein, "Konstitutionalisierung des Volkerrechts," pp. System of Governance, Definition of Membership, 429ff.; Zangl and Ztirn, Frieden und Krieg, pp. 254ff. Hierarchy of Norms, 'Eternity1 and Amendment, A 92 Herfried Miinkler, Die neue Kriege (Reinbeck bei 'Charter/ Constitutional History, Universality and the Hamburg: Rowohlt, 2002), pp. 13ff. Problem of Sovereignty." 93 Ibid.; Zangl and Ziirn, Frieden und Krieg, pp. 172-205. 80 On the internationalization of human rights, see Hauke 94 For an analysis of the different cultural milieus from Brunkhorst, Wolfgang R. Kohler, and Matthias Lutz- which fundamentalist movements draw their various Bachmann, eds., Recht auf Menschenrechte (Frankfurt am motivations, see Martin Riesebrodt, Die Ruckkehr der Main: Suhrkamp Verlag, 1999). Religionen (Munich: C. H. Beck, 2003), p. 35. 81 Kay Hailbronner, "Der Staat und der Einzelne als 95 Peter Waldmann, Terrorismus und Burgerkrieg (Munich: Volkerrechtssubjekte," in Vitzthum, Volkerrecht, pp. Murmann, 2003). 161-267. 96 Cf. the proposal presented to the Security Council by the 82 Jochen A. Frowein and Nico Krisch, "Chapter VIII. Committee on Intervention and State Sovereignty in Action with respect to Threats to the Peace, Breaches December 2001. The proposal shifts the emphasis from of the Peace, and Acts of Aggression," in Bruno Simma, a "right to intervene" to the "responsibility for protecting ed., The Charter of the United Nations. A Commentary, the population." 2nd edn. (Oxford: Oxford University Press, 2002), 97 The UN budget amounts to approximately 4 percent of pp. 701-63. the annual budget of New York City. For details, see 83 Habermas, "Remarks on Legitimation through Human Edward Kwakwa, "The International Community, Inter Rights," in The Postnational Constellation, pp. 113-29. national Law and the United States," in Michael Byers 84 Bernhard Zangl and Michael Ziirn, Krieg und Frieden and George Nolte, eds., United States Hegemony and the (Frankfurt am Main: Suhrkamp, 2003), pp. 38-55. Foundation of International Law (Cambridge: Cambridge 85 Pangle and Ahrensdorf, Justice among Nations, pp. University Press, 2003), p. 39. 218-38. 98 On the following, see Ulrich Beck, Power in the Global 86 Here Morgenthau is following Carl Schmitt. Cf. Kpsken- Age, trans. Kathleen Cross (Cambridge: Polity, 2005); niemi, "Carl Schmitt, Hans Morgenthau, and the Image David Held and Andrew McGrew, eds., Governing Glo of Law in International Relations," in Michael Byers, ed., balization (Cambridge: Polity, 2002). The Role of Law in International Politics (Oxford: Oxford 99 Klaus Gunther, "Rechtspluralismus und universaler Code University Press, 2003), pp. 17-34. der Legalitat: Globalisierung als rechtstheoretisches 87 Kahn, "American Hegemony and International Law," Problem," in Wingert and Gunther, eds., Die Offentlich- Chicago Journal of International Law 2 (2000): 1-18: here keit der Vernunft und die Vernunft der Offentlichkeit, pp. p. 13. 539-67; Klaus Gunther and Shalini Randeria, "Recht, 88 See above pp. 29-30. For the contrary view, see the Kultur und Gesellschaft im Prozess der Globalisierung," review article by Nico Krisch, "Legality, Morality and the in Schriftenreihe der Werner Reimers SHftung 4 (Bad Dilemma of Humanitarian Intervention after Kosovo," Homburg, 2001). European Journal of International Law 13/1 (2002): 100 Michael Ztirn, "Politik in der postnationalen Konstella- 323-35. tion," in Christine Landfried, ed., Politik in einer entgrenz- 89 Frowein and Krisch, "Chapter VIII. Action with respect ten Welt (Cologne: Verlag Wissenschaft und Politik, to Threats to the Peace," pp. 724ff. 2001), pp. 181-204; "Zu den Merkmalen postnationalen 90 Jacques Derrida, Rogues: Two Essays on Reason (Stanford, Politik," in Jachtenfuchs and Knodt, eds., Regieren in CA: Stanford University Press, 2005). internationalen Institutionen, pp. 215-34.

206 207 NOTES TO PP. 187-190 NOTES TO PP. 177-186

101 On this social constructive understanding of the trans in which political divisions are irrelevant. In both the formation in international relations, see Alexander Wendt, domain of rights and commerce, the state is reduced to Social Theory of International Relations (Cambridge: a means, not an end." Cambridge University Press, 1999). 111 Michael Hardt and Antonio Negri, Empire (Cambridge, 102 In France, the debate between adherents of the nation- Mass.: Harvard University Press, 2002). state and Eurofederalists is also sparked by this question; 112 Koskenniemi, "Comments on Chapters 1 and 2," in Byers cf. Patrick Savidan, ed., La Republique ou I'Europe? (Paris: and Nolte, United States Hegemony, p. 98: "Instead of Le Livre de Poche, 2004). making room for only a few non-governmental decision 103 Held, Global Covenant: The Social Democratic Alternative makers, I am tempted by the larger vision of Hardt and to the Washington Consensus (Cambridge: Polity, 2004), Negri that the world is in transit toward what they, bor p. 58. rowing from Michel Foucault, call a biopolitical Empire, 104 Jochen Hippler and Jeanette Schade, "US-Unilateralis- an Empire that has no capital, that is ruled from no one mus als Problem von internationaler Politik und Global spot but that is equally binding on Washington and Governance/1 in INEF, Universitat Duisburg, vol. 70 Karachi, and all of us. In this image, there are no interests (2003). Cf. also the contribution to Part VI Compliance, that arise from states - only interest-positions that are in Byers and Nolte, United States Hegemony, pp. dictated by an impersonally, globally effective economic 427-514. and cultural logic". 105 See the manuscript of Nico Krisch (above n. 50). 113 Elsewhere Koskenniemi {The Gentle Civilizer of Nations, 106 Brad R. Roth, "Bending the Law, Breaking it, or Develop pp. 494ff.) accords the role of the intrinsic normativity ing it. The United States and the Humanitarian Use of of the law its full due with his judicious formulation Force in the post-Cold War Era," in Byers and Nolte, "culture of formalism." United States Hegemony, pp. 232-63. 114 Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff 107 Jed Rubenfeld, "Two World Orders," Prospect (January (Berlin: .Duncker & Humblot, 1991 [1938]), p. 50. 2004): 32-7; abridged version of Rubenfeld, "Unilater 115 Schmitt, Das internationalrechtliche Verbrechen des Ang- alism and Constitutionalism/1 in G. Nolte, ed., riffskrieges, ed. H. Quaritsch (Berlin: Duncker & Humblot, American and European Constitutionalism, Part IV 1994). (forthcoming). 116 Ibid., p. 16. 108 Habermas, "Reply to Symposium Participants, Benjamin 117 Giinther, "Kampf gegen das B6se?,M in Kritische JusHz 27 N. Cardozo School of Law/' Cardozo Law Review 17/4-5 (2004): 135-57. (1996): 1477-1557. 118 Thus there is no need to address the issue of cognitivism 109 Jean-Marie Guehenno, The End of the Nation-State, trans. in ethics here; cf. Habermas, Justification and Application: Victoria Elliott (Minneapolis: Minnesota University Remarks on Discourse Ethics, trans. Ciaran Cronin (Cam Press, 1995). bridge, Mass.: MIT Press, 1993). 110 Kahn, "American Hegemony," p. 5: "As international law 119 Reinhard Mehring, ed., Carl Schmitt: Der Begriff des expands from a doctrine of state relations to a regime of Politischen. Ein kooperativer Kommentar (Berlin: Akade- individual rights, it poses a direct challenge to the tradi mie, 2003). tional, political self-conception of the nation-state. 120 Christoph Schonberger, "Der Begriff des Staates lm Human rights law imagines a world of depoliticised indi Begriff des Politischen/' in Mehring, ed., Ein kooperativer viduals, i.e. individuals whose identity and rights precede Kommentar, p. 21; cf. also Hauke Brunkhorst, "Der lange their political identifications. Similarly, the international Schatten des Staatswillenspositivismus," Leviathan 31/3 law of commerce imagines a single, global market order (2003): 360-3.

208 209 NOTES TO PP. 191-192

121 Schonberger, "Der Begriff des Staates im Begriff des Poli- tischen," p. 41. 122 Schmitt, Die Wendung zum diskritninierenden Kriegsbeg- riff, p. 53. Index 123 Schmitt, Volkerrechtliche Grojiraumordnung (Berlin: Duncker & Humblot, 1991 (1945)). 124 Schmitt, Der Nomos der Erde im Volkerrecht des Jus Publicum Europdum (Berlin: Duncker & Humblot, 1997 [1950]). 125 Schmitt, Volkerrechtliche Grofiraumordnung, p. 34. 126 Ibid., p. 59. 127 Ibid., p. 56.

ABM Treaty 5, 180 Bank for International Adorno, Theodor 88 Settlements 56 Afghanistan 4, 6, 9, 20, 21, Bartoszewski, Wladyslaw 62 85,93 Benelux countries xviii, 51, Taliban regime 6,32, 85,98 90 UN mission in 169, 171 Berlusconi, Silvio 73 al-Qaeda 7, 32, 85, 98 bin Laden, Osama 4, 6, 7 Albania 169 Biological Weapons American League to Enforce Convention 5, 180 Peace 156 Blair, Tony 53, 75, 91 American Revolution 123 Borradori, Giovanna 85 Amnesty International 109, Bosnian War 86, 93, 169 170 Brecht, Bertolt 25 Angola 170, 171 Britain xviii, 157 anti-Americanism 3, 62-3, in the EU 52-3, 65, 73, 110-12 90 anti-Semitism 62-3, 111-12 "special relationship" with Arendt, Hannah 58 US 41, 53, 64, 75, 91 Argentina 59 Union of Democratic ASEAN 21 Control 156 Atlantic Charter (1941) 159 Brunkhorst, Hauke 138, Atta, Mohammed 13 142 Axial Age 10, 88, 196n Bryde, Brun-Otto 139-40 Aznar, Jose Maria 91 Burundi 170 Bush administration xiv-xv, balance of power 75, 120, xvi-xvii, 5, 49-50, 81, 192 92-5, 116, 179-82

210 211 The

Divided

West;

BY JURGEN HABERMAS

i Editedand Translatedby , CIARAN CRONIN

i

polity First published in German as Der gespaltene Westen by Jiirgen Habermas © Suhrkamp Verlag, Frankfurt am Main, 2004. Chapter 1 first appeared in Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jiirgen Habermas and Jacques Derrida © The University of Chicago Press, 2003. Chapter 2 first appeared in a translation by Max Pensky in German Law Journal 4/7 (2003): 701-8 and in Constellations 10/3 (2003): 364-70. Chapter 7 Contents appeared under the title "America and the World: A Conversation with Jurgen Habermas/' translated by Jeffrey Craig Miller, Logos 3/3 (Summer 2004). This English translation © Polity Press Ltd, 2006 Reprinted in 2008

Polity Press 65 Bridge Street Cambridge CB2 1UR, UK

Polity Press Editor's Preface VII 350 Main Street Author's Foreword xxii Maiden, MA 02148, USA Note on the Translation xxiv All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may Part I After September 11 1 be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the 1 Fundamentalism and Terror 3 publisher. 2 Interpreting the Fall of a Monument 26 ISBN-10: 0-7456-3518-0 ISBN-13: 978-07456-3518-0 Part II The Voice of Europe in ISBN-10: 0-7456-3519-9 (pb) ISBN-13: 978-07456-3519-9 (pb) the Clamor of its Nations 37

A catalogue record for this book is available from the British 3 February 15, or: What Binds Library. Europeans 39 Typeset in 11 on 13 pt Berling 4 Core Europe as Counterpower? by SNP Best-set Typesetter Ltd, Hong Kong Printed and bound in The United States of America by Maple-Vail Follow-up Questions 49 The State of German-Polish For further information on Polity, visit our website: www.polity.co.uk 5 Relations 57 The publication of this work was supported by a grant from the Goethe-Institut 6 Is the Development of a European Identity Necessary, and Is It Possible? 67 Chapter 2, first published in the German Law Journal, Vol. 04. No. 07, Pages 701-708, used with permission of the editors. Part III Views on a Chaotic World 83 Chapter 7, this interview originally appeared in Logos: A Journal of Modern Society and Culture 3.3, Summer 2004. http://www.logosjournal.com/issue3.3habermasinterview.htm 7 An Interview on War and Peace 85

v CONTENTS

Part IV The Kantian Project and the Divided West 113

8 Does the Constitutionalization of Editor's Preface International Law Still Have a Chance? 115 Introduction 115 Politically Constituted World Society vs. World Republic 118 Constitutionalization of International Law or Liberal Ethics of the Superpower 147 Alternative Visions of a New Global Order 179

The writings collected in this volume document the re Notes 194 Index 211 sponses of one of the major social and political thinkers of our time to what are likely to be regarded by future generations as important events in world history. Since the early 1990s, when the end of the Cold War inaugu rated dramatic changes in the international political land scape, Jiirgen Habermas has produced important theoretical writings and numerous essays, and conducted interviews, devoted to global political issues. The underly ing themes and concerns of these writings have remained consistent, even as Habermas has refined his ideas con cerning law and politics above the national level and has responded to new political developments. His central theoretical preoccupation has been the articulation of a model of democratic politics beyond the nation-state that is capable of meeting the challenges of the "postnational constellation." In this connection, he has repeatedly dis cussed the process of European unification as a potential model for the transition from international law to cosmo politan society which he advocates. Habermas presents his approach to international law and politics as a critical appropriation of Kant's idea of a "cosmopolitan condition," to which the closing essay of this volume represents a further major contribution. This essay was also written as a direct response to the

VI vii