Once governments are seen as representatives of those whose consent they have obtained, an entirely new question arises: What powers have the people consented to delegate to their representatives? To a constitutional lawyer, this issue is strangely absent from much international law. One of the core elements of constitutionalism is that there must be constitutional authority for every action by a public body. This is reinforced by the ‘closure rule’ in public law that: ‘whatever is not permitted is prohibited’.
Domestically, this principle is sometimes reconciled with sovereignty by seeing the people as sovereign and the only power a public body has is that which has been specifically authorized by the constitution which has been agreed (or at least accepted) by the sovereign people. Raising such questions means that the international community would have to take domestic constitutions seriously. State international representatives would be seen as just that: representatives, with only the power they have been given. In some cases, different constitutionally endorsed bodies might be authorized to exercise different elements of the people sovereign power.
Methodologically, the question of what powers public bodies exercise will become a matter of international as well as domestic constitutional law. This will automatically introduce critical elements of domestic constitutional content and doctrine into international law. In the other direction, the actual limitations on state power caused by globalization and the increasing domestic reach of treaties will mean that international doctrine and methodology will infuse domestic law in all forms. As the walls between states break down so will the walls between domestic public law and public international law.
By the same token, the growing reach of international business and the growing recognition of international agencies mean that public and private international law will be increasingly linked. Domestic corporate law will at least be linked, and probably fused, with the new emerging global public law. If anything, it actively encourages human rights abuses by rewarding the successful exercise of force to secure dominion over a particular territory. It rewards those who mount anti-democratic coups. It rewards those who rig elections. It rewards those who intimidate the population or who rule through and for one ethnic or social group against others.
If sovereignty is seen as extending only over those to whom the sovereign power is democratically accountable, then this principle provides members of any group over which that sovereign power is claimed a right to democratic participation. It also accords a right to those who have been excluded to democratic participation in that or another state. Sovereignty is no longer the recognition of a power over a people but the collective right of a people to participate in, and benefit from, an independent political community, participating as an equal in the community of nations. To put it another way, sovereignty becomes a human right.
The fact that the group in power is only seen as representing those whose consent it has sought and to whom it is accountable has important consequences for international legal personality. Initially only states had international legal personality. The above paradigm shift would change the nature of the international legal personality of states. The excluded groups consent is not sought and to who the group in power is not accountable have a right to demand full participation in the processes by which consent is sought and accountability delivered. If that right is denied, then the group in power does not have the right to represent them in the international community. This provides a lacuna which the excluded people have a right to fill and gives those who represent the excluded a particularly important right to be heard. A form of international legal personality has to be extended to such representatives. If the group in power prevents the emergence of such groups, the right to be heard is not extinguished; the individual members of the excluded group retain it. The attempt to silence the representatives of excluded groups would only have the effect of giving every member of the excluded group a right to be heard in international forums.