These preliminary considerations allow us to distinguish between different modes of general international law constitutionalization. That constitutionalization as understood in the framework of the normative approach here chosen can be perceived in three modes: internationalization, generalization and entrenchment of rules protecting individual rights, especially human rights rules. In addition, but somehow at odds with the structure offered by those three modes, the systemization of general international law, and the individual availability of judicial protection, must be seen as conducive to international law constitutionalization.
The first mode of constitutionalization — internationalization — simply implies that fundamental rules, i.e. rules constitutional because of their fundamental importance for the international legal system, are part of international law, or become part of it, by whatever means.45 In particular, those rules may well be laid down in treaties. Even if they partake, in that case, of international law's traditional polynormativity46 i.e. the fact that the contents of the latter are not the same for every State and therefore not uniform, and by that fact appear to fall short of even informal municipal constitutional rules, in view of their very fundamentality they should be considered as constitutional; they enrich the body of international law by rules traditionally found in municipal constitutions. Such fundamental rules, it is submitted, are those dealing with the life of the international community, the relationship of that community to its members, and its (as well as its members') relationship to the individual. In view of the normative approach here chosen, it is the latter group of those rules which is of interest here; they are in the foreground when „sliding back into the barbarity of the past“ must be prevented.47 Both the second and the third modes of international law constitutionalization — generalization and entrenchment, respectively — correspond to typical traits of municipal constitutions. The second mode implies that those fundamental rules internationalized under the first mode of constitutionalization apply throughout the international legal system i.e. that they are not subject to the traditional polynormativity of international law; this constitutionalization mode, it appears, is only necessary in the case of an internationalization by treaty. The third mode would imply that some general international law rules — most probably rules of a fundamental character — become entrenched. Both would appear to challenge „structural characteristics“ of present day international law, the first one its „polynormativity“ and the second one exactly its lack of a hierarchy of norms.48 General international law will only be able to safeguard the achievements of the constitutional State system, in particular the human rights standards there developed, if it contains such standards itself, if those standards are applicable throughout the international legal system, and, arguably, if they are entrenched procedurally or relationally. To make any talk of international law constitutionalization meaningful under structural aspects, there should therefore be — beyond the fact that international law knows of fundamental rules — some response to one or both of the above challenges. General international law will be better able to safeguard the said achievements if it is systemized and somehow offers individual judicial protection. This completes the second step of the enquiry.
3. First Excursus: The Dynamism of the International Legal Order. First Excursus: The Dynamism of the International Legal Order. First Excursus: The Dynamism of the International Legal Order49 Before proceeding to the third step of the enquiry i.e. to describe the relevant legal facts found on the ground it appears expedient to point out an important aspect implied in the requirement that general international law respond to the challenges to its structural characteristics. This requirement implies a certain degree of dynamism in general international law, i.e. some possibility of the international community intentionally to change the law. A relevant distinction operated in municipal constitutional law, necessary exactly because of the latter's dynamism, is the one between substantive and adjective rules. The former, e.g. human rights provisions, are a common, even archetypical,50 and normatively welcome, but not a theoretically necessary part of a municipal constitution. In contrast, the latter, i.e. rules defining the powers of an entity, in particular the power to legislate, the institutions exercising those powers, in particular the legislature,51 and their interactions are necessarily constitutional in character. In other words, this distinction is between rules concerning the contents of State actions including, importantly, prohibitions of certain State actions, in particular prohibitions of human rights violations, and rules determining the mode the State institutions operate, and their powers are exercised, prominently among them rules concerning law-making. What we are looking for, therefore, are some — necessarily constitutional — rules about intentional general international law-making.
It is a major structural problem of the discussion of the constitutionalization of international law that there is no agreement on the latter's Grundnorm. Of course, Kelsen has formulated that Grundnorm in this sense that the States' custom makes law,52 or that „states ought to behave as they have customarily behaved“.53 Thereby, he has made customary law — including important principles like pacta sunt servanda — the Grundnorm of international law. This Grundnorm, while it appears to cover the traditional view of the purview of international law — treaty law, customary law, consensus law54 and case-law —,55 does not refer to so clear and agreed-upon a point for cutting off the legal discussion on the validity of international law as does, for the validity of municipal law, the Grundnorm in a constitution State i.e. that the constitution should be obeyed. Therefore, while the latter Grundnorm generally succeeds in cutting off any further discussion on the validity of the constitution or on extra-constitutional methods of law-making,56 the former does not. Rather, while the outcome of law-generating mechanisms within the Kelsenian Grundnorm is generally accepted as law, all kinds of additional mechanisms outside that Grundnorm are also discussed in international law.57 Among the law-generating mechanisms, of special interest in the present context are rules about law-making that are comparable to rules about municipal legislation in that they allow (i) the making of posited law, as opposed to observed (customary) law,58 that (ii) is applicable throughout the legal system, as opposed to only in some parts of it.59 Such law may be made either within the Kelsenian Grundnorm i.e. by the international community of States or, arguably, outside it, by international civil society.
a) State-Made Lawa) State-Made Lawa) State-Made Law
Of the three sources of law known to Article 38 (1) of the Statute of the International Court of Justice (ICJ), reflecting customary law, treaty law is not applicable throughout the legal system, and traditional customary law is not posited law. General principles of law are best understood as a reference, originally based on customary law, to legal systems more fully developed than international law: also such a reference cannot be assimilated to positing law. But there is, in modern international law, a category of general rules that appear to fulfil the criteria mentioned above. While their classification is controversial, their existence appears to be undisputed in theory and practice. I am speaking, of course, of the so-called coutume sauvage,60 consisting of rules which are universally affirmed, but not reliably applied, by the States. They are classified sometimes as general principles of law61 and overwhelmingly as customary law. This classification, however, is unsatisfactory.62 There are two possible sources of positive law: customary law and posited law. The respective reasons to consider them as law are very different. Posited law is considered as law because it is issued by a legislator accepted as such. Customary international law is considered as law because „[t]he basic norm of international law ... establishes custom — the reciprocal behaviour of states — as a law-creating material fact“.63 Custom as such fact is „characterized in that people belonging to a community of law under certain equal circumstances behave in a certain equal way, that this behavior takes place for a sufficient period of time, and that for those reasons in those individuals who constitute the custom by their actions arises the collective will that one ought to behave in that way“.64 Also in international law, traditionally the perception of a custom as law requires an actual State practice.65 There appears to be a deep philosophical reason for such a restricted perception: under the condition of legal equality of States (Article 2 (1) of the UN Charter), the fact that a certain State behavior could develop into a general practice of States is an ex post facto proof for the claim that that behavior corresponds to the „Golden Rule“,66 or reciprocity,67 in this sense that everyone's maxim should be: „Act so that you can will that your maxim ought to become a universal law (no matter what the end [Zweck] may be)“;68 otherwise, the behavior in question could not have developed into such a general practice.69 It is for this reason that in the traditional treatment of customary law practice is seen as preponderant, and opinio juris as secondary; once there is a practice in an international field which is considered as open to legal regulation — there is a remainder of opinio juris in this „considered“ —70, it is not to be expected that this practice will not be considered as binding. Therefore, only actual practice i.e. a practice consisting of observable behavior of State organs can give rise to customary international law in the narrow sense.71 Such a practice may be confirmed, but must not be replaced, by verbal acts of municipal or international organs. Rules of so-called customary law which cannot be shown without relying on verbal acts i.e. rules of coutume sauvage therefore should be attributed to a different source of law.
In view of the dichotomy of legal sources, rules based purely or predominantly on verbal acts of international or municipal organs which, for that reason, cannot be customary international law in the narrow sense of that concept must therefore be posited law.72 One source of posited international law, it is submitted, and the one fitting best the emergence of rules of coutume sauvage, is consensus law.73 An indication for the existence of such a type of law is Article 53 of the Vienna Convention on the Law of Treaties (VTC) according to which „a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole ...“ which expressly regonizes the international community as law-giver.74 While Article 53 is not concerned with the recognition of a norm as such but only of its property as jus cogens, the clause „accepted and recognized“, which may be understood as expression of the consensus principle, can be applied to the coming into being of consensus law; indeed, it exactly describes the — observable — requirements of the formation of coutume sauvage rules by verbal State practice. State consensus plays an important rôle in international law also outside Article 53. For instance, the European Court of Human Rights (ECtHR) has considered an emerging European and international consensus as sufficient reason to change its interpretation of the ECHR, thereby giving that consensus the effect of changing the preëxisting (treaty) law.75 Similarly, the ICJ, in the context of the question whether treaties may lead to the emergence of customary law, has put „considerable weight to what it termed ,the general consensus ...‘“.76 There is therefore, it is submitted, a convincing case for the claim that international law recognizes State consensus as a means to posit law for the international community as a whole and thus as a source of law in which verbal acts may lead to the formation of law.77 This raises the question as to the circumstances under which such a State consensus may be assumed. The answer to this question has been precast by the discussion of the concept „international community of States as a whole“ in Article 53 of the VTC. According to the comments of the Drafting Committee,78 this concept permits only for the disagreement of a very small number of States, and it requires that all important groups of the international community share the majority view. Within the framework of Article 53, modern law still requires a majority of States which at the same time is representative for all important groups of the international community.79 The same must apply for international consensus law.80 If there is a State consensus on a specific rule of international law, this consensus must find expression;81 otherwise, it could not be verified. While it does not appear that the details of the making of consensus law have already emerged as customary law, it is submitted that generally it is not necessary that all the States forming the majority of States required for the assumption of a consensus give expression to their relevant persuasion. Rather, it is submitted that at least prima facie a sufficient expression of the consensus requires only that one or more States give expression to their persuasion that a given purported legal rule is, or should be, universal law, and not only politically desirable. By the same token, an objection expressed by one or more States must be enough prima facie to refute the assumption of a consensus. In the case of a dispute over the existence of a consensus, therefore, it is submitted, its verification exceptionally requires all the States necessary for the assumption of that consensus to express their corresponding persuasion.
The required persuasion may be expressed by the States directly or indirectly. An example for a direct expression of such a persuasion is the statement of U.S. President G.W. Bush, made in connection with the „Operation Iraqi Freedom” in June 2003: „I call on all governments to join with the United States and the community of law abiding nations in prohibiting, investigating and prosecuting all acts of torture”.82 A more general example are widespread protests against certain State behavior as expression of the protesting States' persuasion that the protested behavior is forbidden by international law. An indirect expression of such a persuasion may be given e.g. by a Security Council or UN General Assembly resolution83 or even by a statement of the UN Secretay General. One examples of such an indirect expression is the Security Council resolution 1368 (2001)84 which, as no State expressly objected against it, may be understood as the expression of a general consensus of the international community, having emerged after the attacks on the World Trade Center of Sept 11, 2001, and permitting self-defense against a State on the territory of which terrorists live even if that State neither exploits nor supports those terrorists. Another example is the Secretary General's report which – „traduisant le sentiment majoritaire prévalant au sein de l'Organisation” –85 referred to the international humanitarian law principally of the Geneva Conventions as a source of rules of customary law.86 On the other hand, a treaty as such (with the possible exception of a truly universal treaty), or even a succession of similar treaty provisions, generally87 cannot be understood as the expression of such a persuasion. Rather, such a treaty is a legislative act for a „micro-legal system“ so that its signature and ratification does not indicate the persuasion of its States parties as to the contents of general international law.88 The facts found on the ground therefore allow the conclusion that the international community has the power intentionally to make law, or to change the law, by positing consensus law. While this power is an essential part of international law constitutionalization as here discussed, important in the present context is less the classification of the rules thus made as consensus law89 but rather their general agreed90 nature as posited law which comes into being without any practice being required.
b) Law Made by the Civil Societyb) Law Made by the Civil Societyb) Law Made by the Civil Society
Outside the Kelsenian Grundnorm, different claims have been made as to the emergence of international law. One example is the claim that in want of central institutions, global law emerges spontaneously, created by international civil society itself, i.e. the general public of the world, or some parts of it — e.g. international pressure groups (NGOs) or the general public of some region of the world — in distance or even in opposition to political institutions.91 Thus, human rights including those which have not (yet) been made positive law by mechanisms within the Grundnorm are claimed to be able to be created as valid law by the civil society continuously invocating certain legal myths.92 Another example is the claim that a much larger and more open law-making process, which is transmitted through multiple electronic and print channels and operates directly on the politically relevant strata of the great democratic states and the governments dependent on them, is also continuously shaping expectations and demands of what is right and wrong and, more urgently, which wrongs require some legal remedy.93
Both examples94 may be seen as the purported creation of living law directly by the civil society.
International civil society undisputedly plays an increasing rôle in international law-making.95 Important examples of treaties which in all likelihood would not have seen the light of day without the vigorous support by the civil society are the Ottawa Landmine Treaty96 and the Rome Statute of the International Criminal Court.97 In addition, a compelling case can be made that some legal rules ultimately applied by the courts have originated in perceptions held by the civil society. A prime example here is the perception that forced disappearances form a distinct human rights violation.98 Of course, there are other rules perceived by civil society which have not (yet) been applied by the courts. After the judicial application of such a perception, we clearly are dealing with a legal rule, case-law being one of the mechanisms of law-making within the Kelsenian Grundnorm. But the interesting question is to the status of that perception before any court decision i.e. the question whether it had been transformed, before its application by the court, by some State actions into (consensus) law,99 — in that case, we are still moving within the traditional framework of State-made international law — or whether the perception was applied by the courts, without more, as law, and thus treated, in spite of the absence of any relevant State action, as lex lata —100 in that case, we are looking at a phenomenon which is, in international law, completely new.101 By the same token, in the absence of any court decision about a rule perceived by the civil society, it must remain doubtful whether that perception may be described as law and, if so, whether such law is part of the same legal system as traditional State-made law, or whether this is a case of pluralism of legal systems. If it is part of the same legal system as State-made law it may yet be applied by a court acting within that system which would be a case of what I just have called a „completely new phenomenon“. If it is not,102 it remains by necessity outside of any consideration of State-made law.103 The „completely new phenomenon“ can be integrated in the present discussion by taking the point of view of the adjudicator or other actor under international law. From that point of view, it is possible to deal with the lack of a consented breaking-off point for the discussion of the contents of international law;104 that point is here replaced by the breaking-off point applied by the respective adjudicator or other actor. Indeed, in deciding cases or giving legal advice, every actor necessarily must rely on some Grundnorm or rule of recognition; otherwise, she could not determine which law to apply. Therefore, if an actor decides, or gives advice, on the basis of a rule only perceived by the civil society,105 she must discuss her reasons to consider that rule as law, and thereby allow an observer to determine the Grundnorm she has applied.
However, because of the fragmentation of international law, reliance on adjudicators and other actors poses an additional problem. In contrast to both municipal legal systems and many international law subsystems, general international law is characterized by the absence of a centralized court (system). For many questions, international law does not provide for compulsory jurisdiction of any adjudicator, and only in rare cases, municipal adjudicators are competent to act.106 International law is applied by a multitude of — municipal and international — actors and adjudicators which are not in a hierarchical relationship but act quite independently from one another. Basically, therefore, if seen from her proper perspective, each of those actors — more exactly: each of the respective systems, if any, to which those actors belong — is applying her own „international law“. Consequently, where one actor is prepared to act in the paradigm of the „completely new phenomenon“, another actor likely will decline to do so and treat the rule only perceived by the civil society as non-law. In practice, there is only one way to rein in the fragmentation thus caused i.e. an informal and voluntary dialogue between the different jurisdictions.107 This dialogue is well under way among the actors and adjudicators, as is shown e.g. by the remarks of the U.S. on the General Comment 24 of the UN Human Rights Committee (HRC),108 and, among courts,109 by a decision of the Italian Supreme Court110 discussing extensively decisions of a whole range of other courts, even if rejecting in the end all of the latter's approaches. As is also shown by those examples, the inter-jurisdictional dialogue does not prevent or abolish the fragmentation of international law as such but may prevent an unreasoned fragmentation.111
In the present context, while, in the last analysis, the pitfalls of fragmentation cannot be avoided, it does not appear at the time of writing that any decision yet has been handed down (or, presumably, any advice been issued) that was not based, on the face of it, on the Kelsenian Grundnorm of international law. A good example is the case of Forti v. Suarez-Mason112 where the District Court states:
The legal scholars whose declarations have been submitted in connection with this Motion are in agreement that there is universal consensus as to the two essential elements of a claim for ,disappearance‘. ... Plaintiffs cite numerous international legal authorities which support the assertion that ,disappearance‘ is a universally recognized wrong under the law of nations.