Decline or Disaggregation of the Nation State, Dichotomy of Public and Private and Constitution and Constitutionalization

Abstract

This chapter discusses the decline, or, as Slaughter has shown, the disaggregation of the nation state. It highlights that it is possible, as a matter of principle, that forms of cooperation between regulatory agencies or other sub-state actors may also qualify for recognition as international organization based on progressive institutionalization. It is proposed that international organizations should transform themselves into fora and platforms that involve a great variety of stakeholders, including, inter alia, sub-state actors. The public-private distinction, “which stands out as one of the grand dichotomies of Western thought”, also increasingly became blurred, as the borderline between public and private international law is moving. Also, the way between international and non-governmental organizations has become a two-way road, and whether an entity should be classified as public or private, often is a policy decision and has nothing to do with the process of its creation or the representation arrangements in its governing bodies. Public authority may also be exercised by private-sector entities. The chapter also discusses the concept of constitution, the transformational potential of constituent agreements, and constitutionalization in relation to the membership structures and legal and policy frameworks of international organizations. While the constituent agreement establishing an international organization is frequently seen as a hybrid of treaty and constitution, an international organization does not need to be established by a treaty, nor does its constitution need to be adopted as a treaty. This is shown with several examples and it is substantiated that the constitution adopted by a plenary body of an international organization may have similar functions as a constitution adopted by a treaty; it may also be the basis for the external action of the organization. In addition, the chapter reviews the various implications of the discussion on constitutionalization and discusses the connotations of the “fragmentation, pluralization, verticalization (and privatization) of international law”, the role of the private sector, and implications of governance structures for the legitimacy of international organizations.