Constituent power, boundaries and identity: On the justificatory depth of constitutionalism - A rejoinder to Neil Walker

1. Three challenges

In “Constituent power, cosmopolitan constitutionalism, and post-positivist law,” I have argued that the foundation of constitutionalism is the idea of free and equal persons governing themselves through law as part of an international community of equally sovereign states. Within such a conception, “We the People” and “the international community” are co-constitutive for state constitutions and international law as central components of an integrative conception of global public law. Constituent power in such a constitutionalist world is not foundational, but normatively constituted and circumscribed. And it exists both on the national and the international level, largely irrespective of sociological facts relating to identity and structure of the international.

After providing a concise and generally accurate analysis of my argument, Neil Walker, who has over many years been as sharp and critical an interlocutor as one can hope for, makes three core points.

First, he claims that even if founding acts of constituent power may not plausibly ground ultimate authority, they at least “provide a way of identifying the ... boundaries of the community involved in the process of ongoing justification.”¹ These acts may not constitute ultimate authority, but they constitute the identity of the concrete bounded community, that is the subject of collective self-government and anchors practices of recursive justification. The “international community,”² on the other hand, cannot supply the same orienting function, because it “lacks the constitutive unity to provide an anchoring identity.”³ It is unable to “generate a robustly reflexive collective post-national self.”⁴ The practice of recursive, internally generated critical justification needs sociological grounding, that acts of constituent power on the national level can provide, whereas acts of constituent power on the international level are merely externally constructed hypotheticals. This “grounding function” of constituent power cannot be fulfilled by a conception of constituent power that floats “ever more free of actual formative grounds and conditions.”⁵

Second, Neil claims that the sociologically unhinged account I sketch could not provide the kind of clear and uncontroversial guidance that “continuous reflexive negotiation and precision of meaning that an actual process of collective self-identification might allow.”⁶ To illustrate that point he goes on to analyze the normative structure that I claim mediates the relationship between the national and the international, and focuses on the idea of justice-sensitive externalities, in particular. He criticizes that it is unclear “just what level and type of encroachment of external interests is sufficient to generate justice-sensitive externalities and so engage international constitutional jurisdiction.”⁷ The question is how exactly to distinguish between justice sensitive and non-justice sensitive externalities. Call this the baseline problem. Neil claims I have sought to resolve that issue by way of a circular test, which in turn draws on social facts: What obligations states have in fact assumed as a matter of Treaty law? Social facts then, enter unpersuasively, through the back door and lead to unimaginative and complacent legitimation of existing structures.

Third, Neil uses this observation to make a general methodological point. The “constitutionalist path to justice” I have laid out, he suggests, is ultimately too statist, apologetic of the status quo and tame to deliver what it promises.⁸ It unsuccessfully tries to square the circle between the local and the global, by grafting a cosmopolitan veneer onto a statist world. It compares unfavorably to more critical contributions by “blue sky” moral thinking of global justice theorists. There is value, he insists, to keep the idea of constituent power more closely linked “to the actual authoritative underpinnings of political community” acknowledging the possibility of a large gap between legal facts and moral norms, that explorations of global justice may reveal.⁹ Constitutional theory does well to remain sociologically grounded and leave the heavy critical moral lifting to first order political philosophy.

I will proceed by first addressing this last general methodological/jurisprudential point, then, much more briefly, work myself up to the critique of the substantive normative account, before finally addressing in greater depth the extent and precise way in which questions of identity and boundaries of the political community are or are not foundational for constitutionalism.

2. Constitutionalism as a critical theory of law that is internal to the law

The question about the proper relationship between social facts and norms is, of course, a central theme in modern jurisprudence and has given rise to competing conceptions of law.¹⁰ Echoing the position of H.L.A. Hart, Neil appears to suggest that the value of a sociologically richer and normatively thinner account of the law is desirable because it allows us to guard against complacency and preclude confusions between what law is and what law ought to be, leaving space for radically critical external justice-based challenges to the law. If this is already a serious issue in the context of domestic law, it must surely be a more pressing concern when we move beyond the national. The classical counterargument against morally thin positivist conceptions of law made by Lon Fuller is that it tends to disarm judges and lawyers, precluding them from critically engaging the law from an internal perspective. I’m on Fuller’s side of the debate on this, but not for the reason Fuller emphasizes. Fuller was right not simply because all things considered, the overall social benefit of an internal critical perspective on the law is likely to be greater than the dangers of tendencies towards status quo oriented legitimation, that such an approach may or may not foster.¹¹ My starting point, which I can only briefly lay out but not defend here, is a different one and does not depend on such contingencies.

It is a distinctive feature of law that it makes a claim to legitimate authority.¹²The point of constitutionalism is to ensure that the claim to legitimate authority, that law invariably makes, is in fact made correctly. The point of saying that a law is constitutionally justified is that it actually has the authority that it claims for itself. Constitutionalism provides a critical perspective that is internal to the law. Constitutionalist standards seek to ensure that law in fact has the authority that it claims for itself. In the constitutionalist tradition, the idea of legality has internal reflexive critical capacity. The lodestar of that critical capacity is not justice, but legitimate authority.

It is this critical reflexivity of the law that positivists deny, whether in the tradition of Hobbes/Austin, Hart, or Kelsen. Such reflexivity would be meaningless and correctly denied, if legality understood in the positive sense itself provided sufficient grounds for justifying law’s claim to legitimate authority. If you believe that the fact that law is part and parcel of a generally effective positive legal order is itself a sufficient justification for law’s claim to legitimate authority (something that Kant or Hobbes arguably claimed was true and that most contemporary political theorists rightly reject), then there is no space for an internally critical conception of legality. In such a world, law would have legitimate authority simply in virtue of being law. Of course, there would still be questions of justice, but these would be political questions only, external to the law. But that is not our world. In our world, the claims of legitimate authority of the law are connected to its justifiability in terms of constitutionalist principles.

Furthermore, the insistence that legitimate authority and not justice is the lodestar for the standards of critical legality does not imply that questions of justice are irrelevant to it. On the contrary, the idea of legitimate authority is dependent on justice. No legal norm can claim legitimate authority which cannot be understood at least as a good faith attempt to do justice.¹³ But that does not mean that the idea of legitimate authority is reducible to the idea of justice (which would make the idea superfluous). A legal norm can rightly claim legitimate authority, even if you and I sincerely and correctly conclude that it is not just. It is one of the conditions of politics that there is reasonable disagreement about what justice requires. If the procedure used to settle questions of disagreement, itself reflected reasonable respect for sovereign equality of states and equality of individuals, then any settlement of questions of justice that is not unreasonable can count as establishing legitimate authority. Constitutionalism is best understood as the enterprise to work out what that requirement amounts to in more specific terms.

This suggests that the complacency charge deserves to be turned around: there is something complacent about lawyers and legal scholars who describe the practice of making legal claims as if it were some kind of a game, ultimately following conventionally grounded rules. The defining feature of legal practice is that the claims that are being made in the name of the law are claims that imply legitimate authority. The addressees are not being asked whether they would like to play the game of law or whether they agree with the outcome. They are ordered to comply and may face sanctions if they don’t. When Neil refers to the concept of constituent power as more appropriately linked to “the actual authoritative underpinnings of the political community,”¹⁴ the complacency charge seems perfectly on point: What does “actually authoritative” refer to here? Empirically believed to be authoritative? But then these “authoritative underpinnings” merely refer to the underpinnings of actual political power, which may or may not be authoritative in a normative sense. Here it is indeed important not to conflate legal constructions with the sociological grounds of political power.

3. Clarifying the substance of the theory: normative baselines and social facts

The constitutionalist approach, on the other hand, provides the grounds for a powerful critique of a variety of rules of international law authorizing and structuring practices of domination that call into question its legitimacy. To provide just one example:¹⁵

A justice sensitive externality account has significant reach. A great deal of misery and extreme poverty in the world is connected to corrupt, despotic, and kleptocratic governments that ruin life prospects of the citizens, who, by virtue of having been born in that place, happen to have drawn the short straw in the birthright lottery. . . . [W]hen kleptocratic despots loot, ravage and pillage their country for their own purposes, they generally do with the help of weapons bought from developed countries, with expertise and license fees provided by helpful multinational companies, all the while receiving symbolic validation and diplomatic recognition and protection under international law. In that sense, developed countries are invariably complicit in the misery that characterizes many despotically-run or failing states, whose citizens are condemned to live in misery. This complicity in injustice is just another justice sensitive-externality of state behavior. Such complicity might plausibly give rise to justified demands of tortious liability against states that either provide regimes with weapons or permit their multinational companies to cooperate with and finance the organized criminals who have happened to have captured the levers of power. Arguably one of the scandals of existing international law is the extent to which complicit states are shielded from accountability under prevailing rules of state responsibility. . . . Beyond tortious liability . . . there may well be Good Samaritan duties that apply to well-off states in their relationship with states burdened by unfavorable conditions. . . . But this residual duty to assist other people will rarely ground an obligation for which there are not independent moral grounds . . ., with duties that generally go considerably further than Good Samaritan duties in the Rawlsian tradition plausibly might. I that is true, Good Samaritan duties are mostly distractions in debates about cosmopolitan duty. Talk of solidarity tends to detract from the fact that rich and powerful states bear considerable responsibility for many of the most atrocious forms of contemporary injustice and depravation.^16,17

Besides the complacency charge, Neil also argues that the account provided is ultimately not grounded in a principle that would make it possible to draw clear lines. To escape these difficulties, he claims, I ultimately draw on state consent—the actual agreements states have entered into—to provide some specificity, but in a way that is ultimately circular: the obligations that states have depends on the obligations states have voluntarily assumed. But this is not a fair characterization. The basic principle underlying the distinction between justice sensitive externalities and non-justice sensitive externalities is reasonably clear and well known from other areas of the law. It is true that consent remains an important independent ground for claims of justice. In that sense the account I provide is theoretically non-reductive and internally complex, but not circular. Let me explain.

Central to my argument is the distinction between justice sensitive and non-justice-sensitive externalities. If originally state A and state B coexist as autarchic entities, and then state A, for its own reasons, opens up its borders to trade with B and then closes them again some years later, with significant economic effects in state B whose producers can no longer sell their products in state A, state B has no claim of justice against state A. The externalities from making the market no longer available in state A are not justice-sensitive, because state B has no plausible claim of justice for requiring those borders to remain open. Why? Once we take seriously the idea of self-governing entities (individual persons or political communities), those entities may well be restricted from making others worse off than they would be, if the other entity did not exist. The fact that state B exists can be a ground for restricting the behavior of state A. But self-governing entities are not under a general obligation to become the means for improving the conditions of others. Self-governing entities are not under a general duty to enable others to do something they otherwise would not be able to do without them, even though they are under a prima facie duty not to disable them, make them worse off than they would be if there was no other self-governing entity.¹⁸ If state A makes state B worse off, as determined by that baseline, then we have a justice-sensitive externality. If not, then the externality is not justice-sensitive. In a rough and ready way, this hypothetical articulates the relevant normative baseline. The basic intuition is one that we are familiar with from other areas of the law and that underlies much of tort law and criminal law. In both criminal and tort law, for example, we are generally not obligated to act to prevent something bad from happening, unless we are under a special obligation to do so (for example, because we have illegally created a danger for the other person, or we have a contractual duty to protect them or we have some other kind of special relationship that might ground such a duty).

But now imagine state A and state B freely enter into a trade agreement in which state A promises state B to keep its borders open to goods from state B (and vice-versa). If state A now closes its borders for goods from state B, then the fact that this violates an agreement means that an injustice has been done to state B and there are justified claims for restitution that state B can make against state A to recover its losses. The fact that there is an agreement makes the externalities inflicted on the other state as a result of closing the borders a justice sensitive externality. Nothing puzzling in that.

Finally, I also claim that treaties that establish long-term, relatively encompassing cooperative endeavors, create further duties of justice among participants: the duty to share the benefits of the joint cooperative endeavor fairly. What justice requires thus depends in part on the structure of the practice that states have consented to be part of. This is what I take to be the core truth underlying so-called “practice-based accounts of justice.”¹⁹ Here it is possible to raise questions about what follows from states membership in the World Trade Organization, the International Monetary Fund, or the World Bank and the structures established by these organizations. States claiming that injustice is being done to them would have to argue that, notwithstanding the actual terms of the agreement and the fact that states have entered them voluntarily, there are structural features of the agreements that preclude benefits of the joint cooperative endeavors to be shared fairly.

4. Constituent power, identity and the drawing of boundaries of the political community: On the depth of constitutionalism

I have argued in the main article that constituent power is not basic in normative terms, because its exercise is itself internally authorized and circumscribed by non-derogable principles that it is the task of constituent power to specify and concretize in the act of constitution-giving. It is the idea of free and equals governing themselves through law that authorizes and circumscribes the exercise of constituent power and that guides the interpretation of positively enacted constitutions. Even on the foundational level the constitutionalist project is normative and justificatory, not empirical/sociological.

I take Neil Walker to concede that this is true. The historical act of exercise of constituent power may not be the plausible ground for the supreme authority of the constitution. But it helps define who “We the People” are, determining the boundaries of concrete political communities, that define the relevant actors and provide “the base point of orientation,” the “indispensable platform upon which a collective authority comes to recognize itself as such over time.”²⁰ The absence of a comparatively sociological relevance of an “international community” means that, in the end the cosmopolitan account I provide hangs in the air and lacks sociological grounding. It “cannot serve the same orienting function of emergent collective self-identification at the post-national level.”²¹ This “grounding function” of constituent power cannot be fulfilled by a conception of constituent power that floats “ever more free of actual formative grounds and conditions.”²² The constitutionalist account of law I provide, Neil effectively claims, is not sociologically grounded enough and overplays the constitutive role of the international.

I think this criticism is largely misguided. First, the sociology card is being overplayed and the constitutive and constraining role of principle for establishing and contesting the boundaries of the political community is being neglected. Furthermore, both as a matter of principle and as a matter of historical fact, the wider international community generally plays a complementary constitutive role in the definition of boundaries of the relevant political community. Here, too, the exclusive focus on actual historical exercises of constituent power by those establishing a political community covers up more than it illuminates. Let me illustrate these points by briefly alluding to three relatively familiar historical contexts.

First, take the context of decolonization in the twentieth century, a process in which the UN was heavily involved and provided an important forum.²³ Here the problem was that the decolonized territories were in many cases to constitute themselves as independent sovereign states, even though there were no such states before colonization. So how were the boundaries of the new self-determining political communities to be organized in the form of sovereign states to be drawn and by whom? The principle of self-determination was as useful to support the struggle against domination by foreign European governments building Empires across Asia, Africa, and South America in the post-World War II era, as it was to settle certain territorial disputes between established European nation states following World War I. But it played a very limited role in determining the boundaries of the newly established postcolonial states. Instead, guided by the principle of uti possidetis (literally: those who possess, may possess), the boundaries used by the previous Empire to divide up the territory to make it easier to administrate were simply accepted as the boundaries of the new states by all involved. Far more important than the exact boundaries of the new states was the principle not to be dominated by foreign governments and, for those subject to public authorities, to govern themselves within that framework. Beyond that, what mattered more than drawing boundaries one way or another was that questions relating to boundaries be settled and be settled peacefully. These were the issues of principle that mattered. Given these prerogatives, the boundaries within which constituent power was exercised were generally taken as given. The exercise of constituent power on the local level merely endorsed a prior international prerogative that pre-established boundaries would be recognized.

But if you believe that the story of decolonization in its more concrete details is too morally ambiguous, its success too dubious, and its failures too obvious to count as much of an argument, it might be useful to shift the focus to American Independence and the founding of the United States. The colonists originally refused to be governed by the British Crown and a British Parliament which did not represent them—an issue of constitutional principle. In the Declaration of Independence, a document addressed to “mankind,” these principled grounds were laid out in the form of a list of grievances seeking to persuade the international community of the legitimacy of their actions.²⁴ When after the successful War of Independence “We the People” established the US Constitution, it was not only an open question who would join, given that the project would have gone ahead even if only nine of the thirteen constituent states had ratified the document.²⁵ It was also understood to be an open question, where the boundaries of the USA would ultimately lie. Some lands would later be purchased (think of the Louisiana purchase from the French and Alaska from the Russians), others conquered (Texas, California, and New Mexico from the United Mexican States). Meanwhile, for much of the eighteenth and nineteenth centuries, there were few border controls and the country was open to anyone willing to come. “We the People” were simply those who were born within the jurisdiction of the USA or were naturalized after having spent some years living there legally. The American experience up until the twentieth century nicely reflects Kant’s position that a people are merely people under the same laws.²⁶Or to put it another way: the people as a political community are defined by the territorial jurisdiction of their laws. The original historical exercise of constituent power did little to define or stabilize the boundaries of the American political community.

The story of the Civil War does not change the picture, but adds an interesting wrinkle. The reason why it was legitimate for the North to clamp down coercively against the secession of the South was not simply to uphold the unity of the country and the integrity of an established political community. This is why Lincoln, following the battle of Gettysburg in which 50,000 soldiers died in three days, sought to reframe the nature of the war in constitutionalist terms: if that kind of bloodshed can be justified at all, it would have to be justified as part of an effort to bring about “a new birth of freedom”—the abolition of slavery—not the simple insistence on unity. Conversely, what delegitimized the Confederate secession was the illegitimate nature of its purpose: to enable the institution of slavery to continue. The idea of maintaining the boundaries of the Union did not justify the actions of the North and the idea of self-determination of the Confederate States did not justify the secession of the South. Instead, abolitionist principles grounded in basic principles of freedom and equality, which Lincoln could invoke with reference to the Declaration of Independence (not, of course the US Constitution), justified the military intervention of the North and delegitimized the endeavor of the South to secede. Thus the competing claims and settlements reached about the legitimate boundaries of political communities can be assessed based on principles.

The constitutive role of principles shaping and limiting the role of constituent power to define the boundaries of political communities is not just a distinctive feature of the US constitutional tradition. Take the example of nations divided by a deep ideological conflict—not divided in the way that, in the 2016 US elections the Donald Trump and Hillary Clinton voters were divided, but in the more profound way that North Koreans are divided from their South Korean brethren and the way that East Germany and West Germany were divided during the Cold War. In March 1952, Stalin presented an offer for East Germany and West Germany to reunite so long as they would remain neutral and demilitarized. That offer was rebuffed by the West German government, because it did not have confidence in the assurances of neutrality in the context of the Cold War, and it ultimately believed that a united Germany was likely to end up in the Soviet orbit of influence, undermining the principles of the new Basic Law and everything that it entailed. These reasons were taken as sufficient to reject the offer of reunification. Here issues of constitutive principle took precedence over the idea of national unification. You do not sacrifice the principles of the (then: West) German Constitution—human dignity, freedom, and equality and genuine multi-party democracy—on the altar of national unity, even while you continue to strive for national unity under the right conditions (better this way than the other way around). Community is not more basic then principle. Conversely, when the Berlin Wall fell and the Cold War was over, the fundamental point was that, looking forward, East Germans, too, would be governed by basic principles of liberal constitutional democracy. The question whether there would be two German states or a reunified Germany was important, too, of course, but it was a question that was, in constitutionalist terms, secondary. Politically, it was subject to political contestation, with different parties in both East and West Germany arguing for either side. When the Christian Democrats won the relevant majorities in East and West, the unification was brought about quickly by a simple treaty. Again, the boundaries of the political communities were radically altered, without a meaningful exercise of constituent power. Furthermore, the reunification could only go ahead with the approval of the regional international community. The British, and to a lesser extent the French, were originally reluctant to sign off on the deal, without first ensuring that Germany was bound up irrevocably in strengthened supranational institutions in the form of a new European Union, established by the Maastricht Treaty. And the Poles insisted on a treaty, guaranteed by the Allies, in which Germany would recognize the existing borders and renounce all claims regarding the territories it had lost in World War II. In this way, the determination of new boundaries of a national community required the endorsement and the reconstitution of the wider international environment, of which that redefined enlarged national community was an integral part.

So what about the Scots and their claims to independence, the Catalonians, or the Quebecois? Or the British, voting to exit the EU? Don’t these examples illustrate the basic nature of collective identities and the potential centrality of acts of constituent power for determining the boundaries of a political community? What is clear in all of these cases is that, absent deeper grounds for complaint rooted in constitutional principle, without a history of serious discrimination and unjustified disadvantage, there is no unilateral right to secede that does not require engagement with the larger community. On the other hand, nor is there a categorical claim on behalf of the larger community to insist, as a matter of principle, to have the minority community be part of the larger national project, as defined by that larger community. The Canadian Supreme Court’s position reflects a perfectly plausible understanding of a constitutionalist sensibility in this regard: even though the Canadian Constitution said absolutely nothing about secession, the Court claimed that the principles underlying constitutionalism had something to say about how the issue ought to be addressed.²⁷ Once there is a clear and stable majority in favor of secession, there is a duty of the national government to engage in good faith negotiations with the regional government about just terms of secession. Even more permissive is Article 50 of the Treaty of the European Union governing the exit of a member state from the EU, effectively granting states the right of exit, but subjecting the exercise of that right to procedural requirements the point of which is to ensure that the legitimate interests of the larger community are properly taken into account.

Neither acts of constituent power, nor the boundaries of a political community are the extra-constitutional preliminaries to constitutionalism. They are not the given foundations of a constitutional project, that are themselves beyond the reach of principled assessment. Constitutionalism is both justificatorily deeper and more foundationally cosmopolitan. Drawing boundaries is an exercise shaped and constrained by considerations of principle. And given the justice-sensitive externalities of all exercises in drawing boundaries, the specific meaning and implications of these principles are and need to be negotiated and contested not just within a political community, but also within the larger community of which the national community is a part.

1

Neil Walker, The Return of Constituent Power: A Reply to Mattias Kumm, 14(4) Int’l J. Const. L. 906, 909 (2016).

2

Id. at 908.

3

Id. at 910.

4

Id. at 910.

5

Id. at 909.

6

Id. at 910.

7

Id. at 911 (emphasis in original).

8

Id. at 911–912.

9

Id. at 913.

10

For an excellent appraisal of the state of play, see Liam Murphy, What Makes Law? An Introduction to the Philosophy of Law (2014).

11

In my view, law’s claim to establishing legitimate authority within a context in which it is habitually obeyed creates legitimating effects, the extent of which is not likely to depend much on the jurisprudential theories adopted by lawyers.

12

On this point I agree with Joseph Raz, The Authority of Law (1979), 28–33. Linking law conceptually to claims of authority is more precise then linking law to a “claim to rightness” (Robert Alexy) or an “aspiration to justice” (Gustav Radbruch) or other ways of fleshing out the “internal point of view” (Hart).

13

See, e.g.,Ronald Dworkin, Justice for Hedgehogs (2011), at 322.

14

Walker, supra note 1, at 912.

15

Another is Mattias Kumm, An Empire of Capital? Transatlantic Investment Protection as the Institutionalization of Unjustified Privilege, 4(3) Eur. Soc’y Int’l L. (2015), available athttp://www.esil-sedi.eu/node/944.

16

Mattias Kumm, Sovereignty and the Right to be Left Alone: Subsidiarity, Justice-Sensitive Externalities, and the Proper Domain of the Consent Requirement in International Law, 79 Law & Contemp. Prob. 239, 255–257 (2016).

17

This critique sharpens and puts in a constitutionalist frame the kind of complaints that are well described by the political philosopher Wenar. Leif Wenar, Blood and Oil, Violence and the Rules that Run the World (2015).

18

That prima facie duty not to inflict such a disadvantage on others can be overcome, however, if such an infliction is not a disproportionate burden for the disadvantaged when compared to the overall social benefits of permitting the mutual infliction of such harms. This means, for example, that the infliction of noise and other dangers connected to individuals driving around in automobiles is justified if authorized by law, and the burden imposed on some by automobiles is outweighed by the overall social benefits. But the decision whether to authorize imposing such a proportionate justice-sensitive burden on outsiders is one that requires that those on whom such a burden is inflicted participate in an appropriate way. Such burdens can not legitimately be inflicted by national laws and decisions, in which outsiders have no say, without an authorizing framework established by international law, in which all those relevantly affected have an adequate say.

19

See, e.g., Andrea Sangiovanni, Global Justice, Reciprocity and the State, 35 Phil. & Pub. Aff. 3, 21 (2007).

20

Walker, supra note 1, at 909.

21

Id. at 910.

22

Id. at 909.

23

See, in particular, UN GA Res. 1514 (XV) of Dec. 14, 1960, Declaration on the Granting of Independence to Colonial Countries and Peoples.

24

SeeDavid Armitage, The Declaration of Independence: A Global History (2007).

25

US Const. Art. VII.

26

See Immanuel Kant, Metaphyik der Sitten, in §43, VI Kant Werke, 429 (Wilhelm Weischädel ed.,1956.

27

See, the landmark judgment of the Supreme Court of Canada, Reference re Secession of Quebec [1998] 2 SCR 217.

Author notes

* Inge Rennert Professor of Law, NYU School of Law, Research Professor for “Global Public Law”, WZB Berlin Social Science Center. Email: .