Isabelle Ley. Opposition im Vo lkerrecht: Ein Beitrag zur Legitimation internationaler Rechtserzeugung [Opposition in International Law: A Contribution to the Legitimation of International Law-Making]

The democratic pedigree of international law has always been suspect. Much international law has always been made in less than fully transparent dealings through diplomatic channels. Parliaments would sometimes be informed and sometimes even consulted, but informing and consulting them was always done with considerable reluctance. For many years, the opinion prevailed that foreign policy was best left to diplomats and experts; after all, speed and flexibility were deemed essential, and parliaments (and others) were obstacles to both.1 If, in this classic form, this particular opinion is no longer generally seen as acceptable, it nonetheless lingers on in claims about the usefulness of concluding political agreements and engaging in soft law. Here too, parliaments and other voices are largely cast aside, typically portrayed as nosy and noisy interlopers who do not know what they are doing.2 Arguably, this was not much of a problem as long as international law was merely limited to arranging for the co-existence of states3 and as long as the law could not enter domestic legal orders without further acts, but the rise of international regulatory law and of monist thought have made the democracy deficit highly visible. This is hardly a novel observation – in recent years, it has given rise, on the one hand, to calls for ‘compensatory constitutionalism’ or ‘dual democracy’4 and, on the other hand, to calls for enhanced democracy and enhanced representativeness,5 perhaps even an emerging right to democratic governance.6 Isabelle Ley, in her exemplary dissertation defended at Humboldt University, takes the emergence of regulatory international law as her starting point and aims to investigate how its democratic legitimacy could be enhanced. For her, democracy is not just a matter of particular institutions or practices but, rather, of open and possibly oppositional politics. Building on the work of Claude Lefort and, in particular, Hannah Arendt, she develops a framework for discussing democracy in international law conceptualized as the possibility for opposition. A democratic polity is one where every participant has the possibility of helping to take care of the common world, as Arendt might have put it, and presupposes open politics. This politics is, so to speak, politics for the sake of politics or politics in the Olympic spirit: what matters is not so much winning but taking part; what matters is not so much which policies will be adopted but the political process itself. Following Aristotle, taking part in public affairs is viewed as the most salient manifestation of human excellence: man being a political animal, he can do no better than take part in the political process – this is where individual happiness is achieved and, therewith, the ultimate justification of democracy.7