My contribution addresses the constant clashes between the legal orders of states and International Organizations (IOs). It is my argument that developing a conception of a global Minimal Constitution, would ameliorate that situation in terms of checks of power, and significantly contribute to the global common good – that is, to the commoning of the political matters that are important. Nowadays, fundamental international norms of security, economy, and human rights (SEHR norms) fall largely within the jurisdiction of IOs. The mushrooming of IOs has produced a multiplication of SEHR norms stemming from Geneva, New York or Washington, among other places. However, the development of legal mechanisms for a democratic integration of those UN norms into the legal orders of the receiving states has not followed suit. Hence, rather than the outcome of global democracy, currently the incorporation of SEHR norms within a state’s legal order is often considered, and in fact is, a sign of that state’s weakness. This, of course, is related to a historically evolving conception of sovereignty that for numerous states now devolves into a more formalistic notion crippled by external debt and for others into hard power politics. (1)

During the 20th century, and especially after the Second World War, states’ sovereignty both was viewed as necessary and was distrusted. A classic example is Hans Kelsen’s early attempt to surpass sovereignty that he considered ‘a problem’, and his later return to principles more attuned with a strong notion of sovereignty. (2) Surely, contemporary understandings of sovereignty cannot any longer be disentangled from law-making and governance by IOs. The global legal order we face today is one in which, according to Jan Klabbers, ‘international organisations are, to some extent, autonomous operators in global governance’. (3) The importance of this claim can be appreciated when detached from the naive narrative of progress that was once in fashion. The struggles for power observed in the international legal order arise also from that autonomy.

We witness today political and social conflicts due to the perceived imposition of UN norms, which in turn increase political tensions. Thus, China, supported by numerous allies, has often rejected interference of SEHR norms with the slogan of ‘Western human rights’. Also with regard to human rights norms, a dissolution of domestic consensus has occurred in numerous countries, and constituencies have been internally divided due to economic and ideological (hyper) liberal rules coming from the UN. Several African, Asian and Latin American countries and also Spain come to mind. The result has been a ‘major wave of contestation’ due to what Tanja Börzel and Michael Zürn have described as the ‘steep increase in liberal intrusiveness’ after the end of the Cold War. (4) Not uncommonly, SEHR norms that are perceived as an extraneous normative imposition prompt radicalization in political positions against those norms. The case of the United States is paradigmatic, repeatedly exiting IOs such as the Human Rights Council or blocking others such as the Appellate Body of the WTO. The broad critique of international investment law is another reaction to a normativity that has been felt to come from a place of power towards those in weaker positions. As a matter of fact, the core argument against international investment law is that through a legal framework originating in IOs, it has established legal impediments to the relative economic autonomy of states, and hence to development. (5) To conclude this brief exposition of the palette of problematic impositions of IOs’ norms on states, without democratic checks, one can add the type of legal impediments to self-determination, entrenched in the Security Council’s design and veto power. Among other problems, this has perpetuated a Great Power ethos that we witness now, for instance, with Russia’s, China’s and the United States’ actions. In fundamental matters therefore, IOs have facilitated the great power politics, as was the case with food security and the US after the middle of the 20th century. (6)

Eyal Benvenisti stated in a recent paper that ‘the utopian premises in which the international law relating to International organisations is based are flawed’. (7) In this sense it is imperative to integrate IOs’ operations into a broad conception of sovereignty – and to analyse to what extent they exercise power that possesses the quality of a sovereign power. This would lead to the argument that analogically to what was mentioned above about the past century regarding the sovereignty of the state, in the 21st century, both states’ sovereignty and IOs’ autonomy are necessary, but that they ought to be distrusted as well.

If we want to have peace, domestically and internationally, and a sustainable international order, we need to head towards a more stable and robust global legal construction. I term that construction a ‘Minimal Constitution.’

Following David Dyzenhaus, one could argue that in a constitution, the sources of the authority of law can be sought in law, in the fundamental, substantive, public commitment to the legal order and in the moral and political principles that glue laws into a unified legal order. (8) With already abundant international law and international organisations law, what now is imperative is to make all that governance constituent by establishing the links of a democratically constituted order between the nodes that those legal orders formed by states and IOs. In other words, the way to a ‘Minimal Constitution’ is to painstakingly think in every location of clash, such as threats of withdrawal from a human rights treaty or an economic oppression denounced, democratic forms of union between the legal orders, of why and how the problematic instance might be improved or eliminated.

1. See for instance, describing an ‘archetypal’ ‘Third World sovereignty’, where ‘independence is accompanied by crippling debt.’ Antony Anghie, ‘Rethinking International Law: A TWAIL Retrospective’ 34 European Journal of International Law (2023), pp. 7-112, at 101.

2. See Hans Kelsen, Das Problem der Souveranität (Tübingen, J.C.B.Mohr Siebeck, 1920); Hans Kelsen, Principles of International Law (New York, Rinehart& Co, 1952).

3. Jan Klabbers, ‘Towards a Political Economy of International Organizations’ 20 International Organizations Law Review (2023), pp. 82-101, at 84.

4. Tanja A. Börzel and Michael Zürn, ‘Contestations of the Liberal International Order: From Liberal Multilateralism to Postnational Liberalism’ 75 International Organization (2021) pp. 282-305.

5. See e.g., Isabel Feichtner, ‘Law of Natural Resource Extraction and Money as Key to Understanding Global Political Economy and Potential for its Transformation‘ in Poul F. Kjaer ed. The Law of Political Economy. Transformation in the Function of Law (Cambridge University Press, 2020) pp. 152-180.

6. Monica García-Salmones, ‘Food Security and International Organisations Law: Why not Global, Why not Now’ in Jan Klabbers ed., Cambridge Companion to International Organisations Law (CUP, 2022).

7. Eyal Benvenisti, ‘After Mythology: Contemporary Challenges for the Law of International Organisations’, LCIL Friday Lecture, 6.2.2023. A summary can be found in: https://www.lcil.cam.ac.uk/press/events/2023/02/lcil-friday-lecture-after-mythology-contemporary-challenges-law-international-organisations-prof.

8. This is the main argument in David Dyzenhaus, The Long Arc of Legality. Hobbes, Kelsen, Hart (CUP, 2022).