Die Herrschaft der Fremden – Zur demokratietheoretischen Kritik des Völkerrechts

»Do you want to be governed by the views of foreigners?«, the US Supreme Court Judge Antonin Scalia asks his audience during public discussions in order to suggest that the US Supreme Court should not apply international law when interpreting the US constitution. The question highlights a fundamental democratic criticism of international law: Does international law lead to a »submission to non-national acts of sovereignty« because international law increasingly affects the national legal system? Depending on their point of view authors offer different answers to this question. Some advocate the introduction of democratic structures into the international order. Others try to reconstruct a more traditional understanding of sovereignty. While both approaches address the problems of legitimation which are inherent in present international law they also tend to endanger its normative force. Whereas calls for more democracy on the international plane introduce requirements into the international order which this order might not be able to meet, arguments of national sovereignty might weaken States' willingness to comply with international law. The article addresses these forms of democratic criticism by looking at the idea that international law leads to a submission to views and acts of foreigners and by analysing possible deficits of legitimation from the perspective of German constitutional law. The exercise of governmental authority by international organisations and the relationship between international law and direct democracy will serve as folio for evaluating efforts to enforce democracy in respect of international law.