The Principle of Democratic Teleology in International Law

In the early 1990s, after the fall of the Berlin wall, legal scholars initiated a debate on the existence of a right to democratic governance in international law. Many of the adherents to the democratic entitlement school seem to assume that democratization is a simple shift in the political status, a change from one form of government to another. This contribution seeks to analyze this underlying assumption by taking a look at the current discussion on democratization theory in the political sciences. Through this lens, it will reconsider the international practice and the corresponding legal documents related to the existence of a possible democracy principle. In this respect, a special emphasis will be put on three areas of potential precedents – resolutions of the UN General Assembly, the practice of regional organizations such as the Organization of American States or the African Union, and military interventions in the name of democracy. The analysis will show that the legitimacy principle of international law is, at the same time, more modest and more demanding than the claim of the democratic entitlement school. It will be argued that democracy is no strict obligation, but rather a teleological principle. States are obliged to develop towards democracy and to consolidate and to optimize democracy, once electoral institutions have been established.

Rational Choice or Deliberation? – Customary International Law between Coordination and Constitutionalization

Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.-

The Role of Consent and Uncertainty in the Formation of Customary International Law

While treaty norms only bind states that have explicitly consented to a treaty, the case is less clear with customary international law. According to the prevailing opinion in international law scholarship, states are not bound by a customary norm if they have persistently objected to the formation of the norm. This contribution will show that the concept of persistent objection cannot be consistently applied to all areas of international law. It proposes a classification of three different types of norms – norms protecting a common good, norms of coordination and norms related to ethical values. In each of these three fields, the considerations for whether states can be bound against their expressed will differ. In the case of common goods, state consent is perceived as an epistemological tool in order to cope with uncertainty. Dissent is, therefore, no compelling reason for a state not to be bound by a specific norm. Norms of coordination basically protect the expectations of other states, so that only such states are bound that do not explicitly object. The most difficult case is ethical norms, where states have a margin of discretion in balancing competing rights and interests, but cannot inhibit the validity of the norm through individual objection.

Antitrust Law and the Promotion of Democracy and Economic Growth

There is a considerable debate in the legal literature about the purpose of antitrust institutions. Some argue that antitrust law merely serves the purpose of economic growth, while others have a broader perspective on the function of antitrust, maintaining that the prevention of economic concentration is an important means to promote democratization and democratic stability. This contribution seeks to test the empirical assumptions of this normative debate. Using panel data of 154 states from 1960 to 2007, it analyzes whether antitrust law actually has a positive effect on democracy and economic growth. The paper finds that antitrust law has a strongly positive effect on the level of GDP per capita and economic growth. However, there is no significant positive effect on the level of democracy. It is suggested that these results might be due to the current structure of existing antitrust laws, which are designed to promote economic efficiency rather than to prevent economic concentration.

Avoiding the Common Wisdom Fallacy: The Role of Social Sciences in Constitutional Adjudication

More than one hundred years ago, the U.S. Supreme Court started to refer to social science evidence in its judgments. However, this has not resonated with many constitutional courts outside the United States, in particular in continental Europe. This contribution has a twofold aim. First, it tries to show that legal reasoning in constitutional law is often based on empirical assumptions so that there is a strong need for the use of social sciences. However, constitutional courts often lack the necessary expertise to deal with empirical questions. Therefore, I will discuss three potential strategies to make use of social science evidence. Judges can interpret social facts on their own, they can afford a margin of appreciation to the legislator, or they can defer the question to social science experts. It will be argued that none of these strategies is satisfactory so that courts will have to employ a combination of different strategies. In order to illustrate the argument, I will discuss decisions of different jurisdictions, including the United States, Canada, Germany and South Africa.proportionality, comparative law, Germany, Uncertainty, margin of appreciation, constitutional law, Canada, South Africa, social sciences, empiricism

Review Essay: How Rational is International Law?

Economic approaches are becoming increasingly prominent in international law. A few years ago, Jack Goldsmith and Eric Posner caused a great stir with their account of The Limits of International Law, in which they argued that international law did not have any effect on state conduct. This contribution reviews two recent books analyzing the effectiveness of international law from an economic perspective. Both authors, Andrew Guzman and Joel Trachtman, take a much more differentiated approach than did Goldsmith and Posner, thus making analytical methods of economics more acceptable for mainstream international law scholarship. Still, this contribution argues that we should be cautious to perceive the economic perspective as a holistic explanation of “how international law works”. Economic models are, for methodological reasons, based on certain assumptions. The analytical tools are thus only capable to answer a certain range of questions so that they have to be complemented by other theoretical approaches. Therefore, we have to be very cautious with policy recommendations that are based on a purely economical perspective.

The Reception of International Law by Constitutional Courts through the Prism of Legitimacy

This contribution seeks to shed new light onto the classification of legal orders with respect to the domestic effect of international law. Traditional theory distinguishes between monist and dualist systems, those that accept the primacy of international law over domestic law, and those that do not attribute direct effect to international law in the domestic legal order. We will examine three different lines of constitutional jurisprudence on the effect of decisions of international authorities in the domestic order. It is maintained that all courts dealing with the domestic effect of international secondary law ultimately face questions of legitimacy of the external decisionmaking procedure. We will identify three strategies to cope with this challenge and argue that it is more appropriate to consider the relationship of a national legal order to international law through the prism of how its constitutional court approaches the governance issue than to refer to the traditional monism-dualism-dichotomy.