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Vol 22 No 9 Sept/Oct 2017

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The Democratic Legitimacy of International Law


ISBN13: 9781841138176
Published: June 2010
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £80.00



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While international institutions continue to affirm that democracy is the only legitimate form of domestic government, the globalisation of governance has resulted in the removal of many issues from the domestic arena and the political control of citizens.

This is the now widely recognised “democratic legitimacy deficit” in international law, which encompasses traditional forms of inter-nation law, and new forms of international governance by non-state actors (the Security Council and World Bank for example). The standard response is to argue for the replication of domestic institutions at the global level, restructuring the international order along cosmopolitan lines.

In contrast, this work accepts the extant, fragmented system, and develops the idea that the counterfactual ideal of deliberative democracy developed by Jürgen Habermas (among others) can provide the basis for thinking about the exercise of political authority beyond the state, and explores an alternative view of the nature and purposes of the modern system of international law.

In traversing this terrain, this book addresses, inter alia, questions about the democratic legitimacy of ‘Westphalian’ inter-nation law, the idea of democratic self-determination, the twin facts of the constitutionalisation of international law and the practice of the democratic peace, the problems inherent in discerning, in an era of global legal pluralism, the extent to which we regard international governance norms as ‘law’, and the impact of the fact of globalised governance through law on the fundamental theory and practice of democracy (a model developed in the context of the state).

Subjects:
Public International Law
Contents:
Introduction
Globalisation and the Democratic Deficit
The Democratic Legitimacy of International Law
The Structure of the Book
1. The Democratic Deficit in Global Governance
The 'Vertical' Complaint
The 'Horizontal' Complaint
The 'Ideological' Complaint
The Democratisation of Global Governance
Reaffirming Sovereignty
A Global Democratic State
A Global Democratic Federation
A Democratic Peace
Perpetual Peace
A Law of Peoples
Cosmopolitan Democratic Law
Democratising International Institutions
International Parliamentary Assemblies
A UN Parliamentary Assembly
The Accountability Deficit
The Role of Experts
The Accountability of International Organisations
Global Discourses: the Role of International Civil Society
Conclusion
2. Democracy Within and Beyond the State
International Law and the Democratic Deficit
Politically Decidable Issues
Deliberative Democracy
Deliberative Majorities
Deliberative Politics
Human Rights in a Democracy
The Parliamentary Principle of Democracy
Challenging Democratic Truths: the Role of Judicial Review
Deliberative Democracy Beyond the State
Conclusion
3. The State as (Democratic) Self-Legislator
The Sovereign State
The State as Self-Legislator
Contractual Autonomy
Law-Making Treaties
Deliberative Diplomacy
The Indeterminacy of International Law Obligations
The Problem of Customary International Law
The Role of the International Law Profession
A Modern Form of Customary International Law
General Principles of Law
The Writings of Publicists and Judgments of Courts
The Writings of Publicists
The Judgments of Courts
Conclusion
4. The Constitutionalization of International Law
From Contract to Governance
Community Interests and Constitutionalisation
The Constitutionalisation of International Law
The Normative Hierarchy of International Law
Article 103, Charter of the United Nations
The International Constitution
The International Constitutional Order
Liberal Democratic Values in International Law
Rule of Law
International Human Rights Law
Human Rights in the United Nations System
The Construction of the Liberal State
Conclusion
5. Democracy in International Law
Democracy in International Law
Democratic Self-Determination
A (Human) Right to Democracy
Democracy in the Practice of States
Membership of International Organisations
Democracy in the International Law Order
Democratic Regime Change in International Law
Operation Enduring Freedom (Afghanistan)
Operation Iraqi Freedom
Conclusion
6. International Governance by Non-State Actors
Global Governance
International 'Soft' Law
Non-State Actors as Law-Makers
The UN Security Council
'Networks' of Officials: Basel Committee on Banking Standards
Public-Private Partnerships: World Commission on Dams
Private International Governance Schemes
Governance by Non-State Actors
7. A Concept of (International) Law
The Concept of (State) Law
Autopoiesis: Law as a Closed System of Communication
Global Bukowina
The Fragmentation of International Law
Constitutionalisation Beyond the State
The Idea of Law
The Idea of Authority
Democracy and the Concept of Authority
A Revised Concept of Law
8. Deliberative Democracy Beyond the State
The Idea of Constituent Power
Democracy and the Exercise of Political Authority
Those Affected/Subjected
The Political Concept of Global Justice
Conclusion
9. Democracy in Conditions of Global Legal Pluralism
Pluralism in Global Governance
Normative Pluralism
What is Legal Pluralism?
Global Legal Pluralism
Rethinking Global Legal Pluralism
State Law and International Law
Relationship Between Democracy and international Law
The Limits of International Law
Democracy-Enhancing International Law
Constitutional Self-Limitation
International Law as a Pre-Commitment Device
A Contestable International Rule of Law
Conclusion
Conclusion: Democracy and the Public International Lawyer

Series: Hart Studies in International Law

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The Permanent International Criminal Court ISBN 9781841132815
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