International Constituent Power: Three Variants

The paper introduces ‘constituent power’ as a new criterion for the legitimacy of International Law in contexts of ‘global constitutionalization’. It consists of two parts. The first part outlines the meaning and functions of constituent power as the sole legitimating basis of the democratic constitutional state, creating a problem for the legitimacy of international law-making. The second part surveys recent attempts to transcend state-bound conceptions of constituent power to resolve this problem. It proposes a distinction between three ways in which it makes sense to conceive of international constituent power, for different contexts. The 17th and 18th century democratic revolutions introduced the notion of constituent power to claim that all competences to install and revoke governmental authority lay with the people, and reduced all governmental agencies to operating within pre-given norms (Locke, Sieyes). This restriction likewise applied to the international delegation of competences, especially of jurisgenerative mechanisms. Since processes of ‘global constitutionalization’ externalize judicial and some legislative competences, they affect and partly expropriate domestic constituent power. The question is whether such processes are accompanied by the formation of new constituent powers capable of shaping, controlling and legitimating international law-making. The two international contexts for which the notion of constituent power is beginning to be systematically explored are the European Union and the United Nations, with the two organizations exemplifying quite different types of federation. In the case of the EU, most authors claim that member state peoples should be seen as the constituent powers contributing to EU norm-generation. But it is controversial whether, over and above the compound nation-state powers, a new constituent subject – European citizenry – has emerged, and whether it makes sense to assume the existence of a fragmented (dual or plural, in any case “mixed”) constituent subject for a given polity. At the same time, it is far from clear whether the latter view could be meaningfully extended to global organizations like the UN. In addition, some geographical and policy areas invoke “humanity” as a legitimating subject in international law formation, thus seem to appeal to a cosmopolitan constituency. I propose a taxonomy of intergovernmental, supranational and cosmopolitan organizations to suggest they allocate constituent power differently, i.e. to various types of actors (state, states and citizens, or citizens), and thus trigger different conditions of legitimacy for international legal development.