With the establishment of the two superpowers after World War II, the international power of the European states waned. While military defeats brought this reality to light for Germany and Italy, it was the Suez crisis that taught this lesson to policymakers in France and the United Kingdom. Three European visions of world order and the role of international law can be seen as the response to this new insight. The first vision is that European nations should follow the superpower most closely aligned with their own interests and convictions. This vision entails a rather realist understanding of international law, in particular regarding issues of international peace and security. The second vision is the building of a unified Europe that is equal to other global powers\u2014the multi-polar world vision. The third vision is that of striving for a global legal community that frames and directs political power in light of common values and a common good. This entails a reconaguration of international law often summarized as \u201cconstitutionalism.\u201d These three visions are commonly associated with the United Kingdom, France, and Germany, respectively. To equate constitutionalism with German public international law thinking, however, would be erroneous. There are certainly other approaches in German international law scholarship, and international constitutionalism is most assuredly taught in other countries.<\/p>\n
Nonetheless, understanding current international law as a building block of a global legal community has been a constant thread of thought among many German international law scholars. Of the three German scholars (Hermann
\nMosler, Wilhelm Wengler, and Christian Tomuschat) who have taught the General Course at The Hague Academy since 1945, Mosler and Tomuschat were prominent exponents of this approach to international law. In 1974, Mosler taught the General Course under the title \u201cThe International Society as a Legal Community.\u201d Since the course was given during the Cold War, it taught a dampened version of constitutionalism. Yet, it echoed the core concept of Walter Hallstein, Mosler\u2019s former superior in the nascent German Foreign Service and the arst president of the Commission of the European Economic Community. Hallstein had devised the term Rechtsgemeinschaft (\u201clegal community\u201d) in order to conceive and direct the embryonic European integration project.6 Hallstein succeeded in inspiring the \u201cconstitutionalization\u201d jurisprudence of the European Court of Justice (\u201cECJ\u201d), laying the conceptual basis for the enormous power the Commission\u2019s Legal Service wielded for decades as well as generally framing the political discourse. Mosler\u2019s course brought this idea to the global level.<\/p>\n
After the fall of the Iron Curtain, Tomuschat taught a much bolder course in 1999 entitled \u201cEnsuring the Survival of Mankind on the Eve of a New Century.\u201d This Article focuses on Tomuschat\u2019s text, extrapolating from its 436 pages a \u201cvision of Global Public Order,\u201d which is more doctrinal than theoretical and representative of an understanding held by many scholars in the German speaking world. The strengths of Tomuschat\u2019s thinking, as well as some inherent tensions, will be addressed.<\/p>\n
Part I of the Article describes Tomuschat\u2019s ideas about the roles and the normativity of international law. Tomuschat holds that among the various roles of international law, the constitutional function of legitimating, limiting, and guiding politics is of particular importance. Consequently, as discussed in Part II, Tomuschat inverts the prevalent understanding of the relationship between international law and municipal constitutional law, whereby the state becomes an agent of the international community. Part III examines the organization of the international community and discusses Tomuschat\u2019s understanding of international institutions, focusing particularly on the issue of international federalism, since Tomuschat attributes a substantial and autonomous role to such institutions. Tomuschat does not himself use the term \u201cFederal International Order\u201d for his model. His reticence in this respect may be explained by his view, discussed in Part IV, that international law possesses merely derivative democratic credentials. This issue requires an examination of international law\u2019s \u201csocial substratum\u201d in the \u201cinternational community.\u201d Finally, Part V places Tomuschat\u2019s vision of international law in the broad stream of universalistic thinking, along with its latest development in a recent text by Habermas.<\/p>\n
* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" With the establishment of the two superpowers after World War II, the international power of the European states waned. While military defeats brought this reality to light for Germany and Italy, it was the Suez crisis that taught this lesson to policymakers in France and the United Kingdom. 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