Principle of Affectedness in Political Theory

Such an obligation to take the rights and interests of those affected into account is still very vague,⁴³² and especially in the global context, a legal principle of affectedness raises many fol-low-up questions:⁴³³ How should, for example, the scope of affected stakeholders be defined – and what exactly does it mean to be “involved” in decision-making? How can transnational or international decision-making processes be designed in order to enhance transparent, participa-tory, and principle-based deliberation? How can deliberative processes interact with scientific practices? Are there – judicial or other - mechanisms available to sanction decision-makers who fail to comply with these requirements? The obligation (or in certain cases at least self-commitment) to conduct impact assessments - including impacts on humanity - is a consequence and confirmation of a principle of affectedness. A closer analysis of impact assessment regimes can therefore contribute to finding answers to these follow-up questions, which will therefore be addressed in parts IV and V.

based on majoritarian preferences, specific legal provisions, such as human rights and the rule of law, shall protect the interests of minorities. The legitimacy of public authority exercised by the state is largely maintained due to a shared commitment to the “rules of the game” ⁴³⁸ and the equal participation of all citizens. Compliance is enforced through judicial and non-judicial mechanisms, and individuals, who claim that their rights and interests are violated, usually have access to different review mechanisms. The demos thesis is powerful and in particular appealing due to its clarity and simplicity. In general, governments would be responsible towards their citizens, and responsibility towards foreigners in third countries (“distant strangers”) or to-wards other states would only exist where exceptionally established under international law.

Extraterritorial impacts on human rights are not a fundamental concern due to the clear dichot-omy between members of the demos and “the others”. Under the demos thesis, there would be no a priori responsibility to assess extraterritorial human rights impacts unless the democratically elected legislator decides, by statute or consent given to an international agreement, to establish such a duty.

Such statist approaches can be criticized on different accounts. First, the inclusion of citizens and exclusion of the others based on nationality is a somewhat arbitrary criterion that is in itself difficult to democratically justify. The so-called boundary problem becomes especially apparent in times of globalization: While democratic procedures guarantee self-authorship, the bounda-ries of the demos itself are not determined democratically.⁴³⁹ Linking democracy to the concept of the demos is also problematic because it disregards the complexities of modern societies. The legal division of society into “nationals” and “foreigners” considerably simplifies a complex transnational reality and misses the needs of modern complex societies.⁴⁴⁰

Second, statist approaches seem blind to imbalances of power between states. Economically powerful states can exert a strong influence on the behavior of poorer states, for example by imposing conditionalities in debt restructuring programs or ODA transfers.⁴⁴¹ This economic pressure undermines, critics argue, the democratic decision-making process and depreciates the legitimating potential of formal state consent. Third, statist theories only uncomfortably fit with the increasing autonomy and authority of international organizations and trans-governmental networks. Many activities can be described as an exercise of public authority that legally or fac-tually affects both states and individuals and therefore raises legitimacy concerns.⁴⁴² At the risk of generalizing too much, there are two potential consequences for statist theories: either to dismiss the claim that such an exercise of authority is problematic for democratic legitimacy, or to call for a re-nationalization of politics and a drawback on national democratic institutions.

438 Craik, ‘Deliberation and Legitimacy in Transnational Governance: The Case of Environmental Impact Assessments’ (above, n. 177).

439 Archon Fung, ‘The Principle of Affected Interests: An Interpretation and Defense’, in: Jack Nagel and Rogers Smith (eds.), Representation, pp. 236–268, p. 237; similar even though uncomfortable with the term “boundary” due to its geographic connotation: Robert Goodin, ‘Enfranchising All Affected Interests, and Its Alternatives’, Philosophy & Public Affairs, 35, no. 1 (2007); a justification for inclusiveness: Dahl, Democracy and its critics (above, n. 425), 119 ff.

440 Brun-Otto Bryde, ‘Wandlungen des Rechtssystems in der Einwanderungsgesellschaft’, in: Brun-Otto Bryde (ed.), Das Recht und die Fremden, pp. 7–13, p. 8.

441 Goldmann, ‘Human Rights and Sovereign Debt Workouts’ (above, n. 3); Fischer-Lescano, Human rights in times of austerity policy (above, n. 3).

442 On the Exercise of Public Authority and its effect on states and citizens see section 3.2.1.

Other authors, who take the challenges of globalization seriously but are unwilling to pull the re-nationalization card⁴⁴³, call for new concepts of democracy. One proposal – even though still within the representative models of democracy - is to design a democracy without demos⁴⁴⁴. In-stead of the collective national „demos“, the individual should be the point of reference for de-mocracy: Democracy should not be built on national citizenship alone, but on the equal worth of all human beings. All individuals who are subject to a government’s authority should be able to participate in its collective decision-making and be able to enjoy basically the same rights as national citizens do so far.⁴⁴⁵ However, the “all-subjected principle“ aims at including foreigners who live on a state’s territory or are otherwise subject to a state’s effective control. The question raised above is also concerned with the rights, interests and needs of individuals irrespective of where they live, but who are nevertheless affected by a public authority’s decisions. i.e. “distant strangers”.

Another proposal to close the legitimacy gaps in times of globalization starts from a different perspective, namely by attempts to extend democratic institutions globally⁴⁴⁶. The objective is to either construct new or “democratize” existing global institutions in order to regulate problems with global impacts. Even though it might be possible and desirable to reform institutions, it is doubtful whether it is possible or desirable to put too much trust in “global democratic institu-tions”, for both practical and normative reasons. First, even small steps towards a more balanced contribution of voting rights in international institutions, e.g. in the UN Security Council or the World Bank, are rarely successful; a democratic world government is therefore, at least for the time being, extremely unrealistic. Second, such an approach ignores the advantages of plurality and diversity. Third, democratic theory and research suggest that there is a perfect size of a rep-resentative democracy.⁴⁴⁷ While debatable whether the EU or the US has already achieved (or, for critical commentators, even exceeded) the “perfect size”, a world democracy would, based on these empirical and theoretical insights, have exceeded this size by far.

In contrast to representative models of democracy, deliberative democratic theories are less dependent on territorial boundaries without requiring the establishment of (close to) unrealistic global institutions. Unlike representative models which focus on the aggregation of individual preferences, deliberative approaches also emphasize principled discourse, reason-giving and reciprocal justification as a source of democratic legitimacy; these justifications are to be

443 On signs for trends of a re-nationalization of legal cultures already: Brun-Otto Bryde, ‘Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the German Law Journal – In Praise of Transnationalism’, German Law Journal, 10 (2009), pp. 1291–1294, p. 1293.

444 Catherine Colliot-Thélène, Demokratie ohne Volk (Hamburg: Hamburger Edition, HIS, 2011); on this debate already: Bryde, ‘Das Demokratieprinzip des Grundgesetzes als Optimierungsaufgabe’ (above, n.

47).

445 Sofia Näsström, ‘The Challenge of the All-Affected Principle’, Political Studies, 59 (2011), pp. 116–134, p. 117.

446 Daniele Archibugi, ‘The Architecture of Cosmopolitan Democracy’, in: Garrett W. Brown and David Held (eds.), The Cosmopolitanism Reader, pp. 312–333; for an overview see also: Goodin, ‘Enfranchising All Affected Interests, and Its Alternatives’ (above, n. 439).

447 Robert Alan Dahl and Edward Roef Tufte, Size and Democracy (Stanford, Calif.: Stanford Univ. Press, 1973). The same is true for the perfect size of constituencies: “By enlarging too much the number of elec-tors, you render the representatives too little acquainted with all their local circumstances and lesser in-terests; as by reducing it too much, you render him unduly attached to these, and too little fit to compre-hend and pursue great and national objects.” Madison, ‘Federalist No. 10’ (above, n. 437).

rected to those potentially affected by a decision, irrespective of territorial boundaries.⁴⁴⁸ This is why deliberative theories more comfortably fit with post-national concepts of democracy such as “universal cosmopolitanism”. Still, those affected by state actions are mostly people living in that state’s territory. However, territorial boundaries and a historically or culturally grown community (demos) do not define who may take part in democratic deliberation.⁴⁴⁹ It thus seems possible to conceive democracy in a modern transnational reality without the precondition of a pre-existing national demos.⁴⁵⁰ The danger of the externalization of costs becomes smaller the more successfully one brings together affectedness and decision-making responsibility. In this context, Bryde refers to the democratic ideal of the greatest possible congruence of political de-cision and affectedness.⁴⁵¹ The need to justify decisions also towards “distant strangers” has been framed as the “principle of affectedness” or “principle of affected interests” in political the-ory as defined above, namely stating that all those who are affected by an act of (public) authori-ty shall also be involved or at least be enabled to be involved in its creation.⁴⁵² In consequence, the long-term goal would not be to create a world state. What is necessary is, more modestly, the restructuring of legitimacy in international law, so that international law refers (also) to the people instead of (only or primarily) to states. Therefore, procedures and institutions are neces-sary which replace a mere intergovernmental reconciliation of interests with one that also pro-vides for the reconciliation of interests of the affected people of the respective area, and enables their articulation and inclusion in the decision-making process.⁴⁵³ It is before this background that the institutionalization of HRIAs can contribute to such a more inclusive representation of affected interests.⁴⁵⁴

I will not elaborate more on the fundamental concepts of cosmopolitan and deliberative demo-cratic theory. My objective is much more modest. There is abundant normative and conceptual literature on democracy beyond the nation-state and on how to make democracy work in times of globalization. I rather take these normative considerations as a starting point and argue that the responsibility to assess impacts on human rights and interests, irrespective of where they occur, is now also reflected in different areas of international and institutional law and thus a legal concretization of the philosophical principle of affectedness.

448 Craik, ‘Deliberation and Legitimacy in Transnational Governance: The Case of Environmental Impact Assessments’ (above, n. 177).

449 Still, some theorists are hesitant to renounce the term demos and re-define it in terms that would give sense to the concept of a global demos, for example: Christian List and Mathias Koenig-Archibugi, ‘Can There Be a Global Demos?: An Agency-Based Approach’, Philosophy & Public Affairs, 38 (2010), pp. 76–

110. Terry MacDonald, on the other hand, suggests to take a pragmatic approach instead and focuses on a

“stakeholder” community: Terry MacDonald, Global stakeholder democracy (Oxford: Oxford Univ. Press, 2008), 1. publ, 83 ff.

450 In this sense already: Bryde, ‘Wandlungen des Rechtssystems in der Einwanderungsgesellschaft’

(above, n. 440), p. 13; Bryde, ‘Kritik der Volks-Demokratie - Demokratie diesseits und jenseits des Natio-nalstaats’ (above, n. 309).

451 Bryde, ‘Grenzüberschreitende Umweltverantwortung und ökologische Leistungsfähigkeit der Demo-kratie’ (above, n. 427), p. 76.

452 In this sense: Dahl, Democracy and its critics (above, n. 425), p. 129; Bryde, ‘International Democratic Constitutionalism’ (above, n. 2), p. 117; Kreide, ‘The Ambivalence of juridification: On Legitimate Govern-ance in the International Context’ (above, n. 425), p. 28; Bogdandy, ‘Demokratie, Globalisierung, Zukunft des Völkerrechts: Eine Bestandsaufnahme’ (above, n. 425).

453 Bryde, ‘Grenzüberschreitende Umweltverantwortung und ökologische Leistungsfähigkeit der Demo-kratie’ (above, n. 427), p. 82.

454 On the normative and practical limits of a principle of affectedness: Ibid., p. 78.