Two Proposals for Universal and Perpetual Peace: A Short Comparison

1 The Duty to Strive for Universal and Perpetual Peace

Governments – democratic and autocratic alike – are still used to consider peace as a luxurious privilege they have an almost absolute right to bestow on, or withheld from, their subjects.^[1]

This is one major (over-structural) factor explaining why, since the end of the second world conflict, the dogs of war never ceased to bark. And why they are barking now, in several regions of the Earth, with an increased, bold, and shameless vigor.

Writing in 1944, Hans Kelsen found it necessary emphasizing that ‘There are truths which are so self-evident that they must be proclaimed again and again in order not to be doomed to oblivion’. And, having said that, he hastened to add: ‘Such a truth is: that war is mass murder, the greatest disgrace of our culture, and that to secure world peace is our foremost political task’.^[2]

To be sure, peace cannot be obtained or preserved at any price. History shows that there are situations where an organized armed conflict against a foreign aggressor is the only measure available to a people willing to survive, preserving its freedom and a decent life. This suggests, in turn, that only one form of pacifism is viable for the present world, and that is the form of a moderate pacifism, which considers war a disgrace to be avoided but, at the same time, distinguishes between just and unjust wars, and just and unjust ways of waging them.

Moderate pacifism is no quietist stance. From a moral point of view, the people who endorse moderate pacifism do not have just a ‘political task’, as Kelsen puts it, but a full-fledged duty. They have the duty to strive for universal and perpetual peace; they have the duty to promote the realization of a war-less state of affairs that be, at the same time, general all over the Planet (universality), and likely to be lasting forever (perpetuality).

Since the time Charles Irénée Castel de Saint-Pierre (the celebrated abbé de Saint-Pierre) (1658–1743) published his Projet pour rendre la paix perpétuelle en Europe, which appeared in Utrecht in 1713, several thinkers took that duty seriously. The names of Jeremy Bentham,^[3] Immanuel Kant,^[4] Claude Henri de Rouvroy de Saint-Simon and Jacques-Nicolas-Augustin Thierry,^[5] and Hans Kelsen,^[6] to quote just a few outstanding figures, immediately come to the mind.^[7]

That line of thought is not the furniture of a bygone past. Fortunately, here and now, we can take advantage of two recent books walking the path of moderate pacifism. I am referring, on the one hand, to Luigi Ferrajoli’s Per una Costituzione della Terra. L’umanità al bivio (A Plea for a Constitution of the Earth. Humanity at a Crossroad), which was published at the end of 2022;^[8] and, on the other hand, to Jorge E. Núñez’s Cosmopolitanism, State Sovereignty and International Law and Politics. A Theory, which appeared at the beginning of 2024.^[9]

My paper – originally intended as a discussion with ‘the author Núñez’ – will proceed in three steps. In the first step, I will provide an account of Núñez’s universal law project for securing (universal and perpetual) peace. In the second step, I will present Ferrajoli’s project for realizing (universal and perpetual) peace through global constitutionalism. In the third, and last, step, I will compare the two proposals from the standpoints of their practical acceptability, their probability of success, and their mutual relationships.

2 Núñez’s Universal Law Project

In his book, Cosmopolitanism, State Sovereignty and International Law and Politics. A Theory, Jorge Núñez purports to provide the outline of a ‘global project’ for coping, at the domestic, regional and international levels, with the problem of peace (that he considers from the standpoint of ‘territorial disputes, sovereignty conflicts and war’), but also, and more comprehensively, with any of the major social, economic, or political scourges (‘global issues’, ‘pervasive problems’) affecting the present world: to wit, poverty; gender inequalities; human dignity violations; human rights norms and their lack of enforcement; climate change; pandemics; drugs, arms and human trafficking; terrorism; displacement of refugees; capital market integration and unfair competition; international migration; etc.^[10]

Núñez articulates his global project from the starting point of two basic assumptions.

First – he claims –, we must ‘accept’ ‘the fact’ that ‘states will not give up their sovereignty (at least, not at this point in history)’.^[11]

Second – he claims –, we must ‘acknowledge’ that ‘individuals should have a minimum set of guarantees protected in law regardless of their individual circumstances’.^[12]

The first assumption affects Núñez’s global project in that it suggests (and justifies) the endorsement of a basic practical attitude of respect for state sovereignty, in its external as well as in its internal dimension. In its external dimension, sovereignty is tantamount to the set of rights any state (or state-like entity) is entitled to in its relations with other states (or state-like entities). Four rights are traditionally singled out as being inherent to the ‘sovereignty’ of a state in this external dimension: (a) the right to sovereign equality (i.e., to an equal legal status within the society of nations); (b) the right to other states’ respect for its territorial integrity; (c) the right to other states non-intervention inside of the state’s territory; (d) the right to other states non-interference in the state’s internal affairs.^[13] In its internal dimension, sovereignty is the supreme right, vested in an individual or set of individuals inside of a society, of making and interpreting laws. In non-liberal, non-democratic states, this right usually encompasses the right for the government to treat its subjects as it likes.

The second assumption likewise affects Núñez’s global project. This time by suggesting (and justifying) the adoption of a basic practical attitude of favour for legal cosmopolitanism. In particular, for the positive law cosmopolitan view according to which any individual should be regarded as having certain legal rights and certain legal obligations coming from her/his being the subject of a global legal order.^[14]

Armed with these two practical, normative, ingredients (respect for state sovereignty and respect for legal cosmopolitanism), Núñez claims the remedy to war, and to the other scourges of mankind, must be found in the twin ideas of a ‘universal law’ (a ‘universally binding law’) and a ‘global organization’ competent to apply that law and endowed with the ‘ability to enforce its decisions internationally, regionally and domestically’.^[15]

In Núñez’s view, universal law should meet four requirements: coordination, irenicism, principle pluralism, and value pluralism.

1. Coordination or No-superiority. Universal law should be ‘a legal system in tune with the coordination (not subordination of any kind) between all national legal orders and international law’.^[16] This involves the rejection of any fixed hierarchical relation between universal law, on the one hand, and national legal orders and international law, on the other. In Núñez’s own words: ‘Any universal law arrangement must avoid domination or hegemonic power of any kind. Hence, universal law is not a question about the subordination of national law and international law or nationalism and imperialism against pacifism but of coordination by means of balancing different interests in law’.^[17]

2. Irenicism. Universal law should be informed by a fundamental axiological and normative attitude of (I would say) irenicism concerning the unavoidable fatal tension in international law, politics and relations, between the dogma or principle of state sovereignty, on the one hand, and the cosmopolitan ideal, on the other hand. Universal law should ‘embrace’ both ‘[limited] sovereignty’ and ‘[legal] cosmopolitanism’, while at the same time rejecting ‘absolute sovereignty’ and ‘moral cosmopolitanism’.^[18] It should aim at ‘combin[ing] state sovereignty with a minimum set of enforceable legal guarantees for every individual, plus a certain level of coordination between national legal orders and international law’.^[19] It should ensure that ‘states could retain their sovereignty and individuals would benefit from guarantees recognized beyond jurisdictional differences’,^[20] and be entitled to ‘a set of basic rights and access, e.g., [to] food, water, shelter’.^[21]

3. Plurality of axiologically-equal basic principles. Universal law should be conceived as containing a normative core made by five principles, which represent the ‘minimum principles of law recognized by all sovereign states’, and ‘constitute the minimum requirements for the universal law’.^[22] These are the principles of ‘acceptability’, ‘humanity’, ‘efficacy’, ‘simplicity’, and ‘balancing’.

   The principle of acceptability gets its content and validity from the basic normative component of respect for state sovereignty.^[23] It requires that any cosmopolitan benefit to individuals be accepted by all the sovereign states involved.

   The principle of humanity gets its content and validity from the basic normative component of respect for the legal cosmopolitanism idea of individuals as subjects of a global legal order. It requires granting to any individual ‘a set of basic rights’, and ‘access’ to (vital goods, like, e.g.) food, water, and shelter’, on the basis of ‘a set of substantive principles of law or rules agreed on by all sovereign states’.^[24]

   The principle of efficacy requires that states-appointed ‘lawmakers creating universal law should include operative legal norms to guarantee both the enforcement of substantive universal law and alternatives in case of a lack of compliance’.^[25]

   The principle of simplicity requires universal law to avoid detailed regulations, and ‘incorporate’ instead ‘only principles and/or rules that allow a degree of flexibility and adaptability to the relevant domestic, regional, and international courts’.^[26]

   The principle of balancing, finally, requires universal law ‘to incorporate rules that enable the balancing’ between ‘the interests of sovereign states’ and those of the other units of concern involved (individuals and communities).^[27]

4. Value Pluralism. Universal law – as conceived by Núñez – should be neutral as to the content of its substantive rules and principles. Universal law should not be biased towards liberal-democratic values as those that should ultimately prevail. It should embrace a (quite) limited form of deontological individualism, accommodating to the need of respecting states’ sovereignty. Núñez takes stock of the wide variety of alternative tables of values that exist in the present world, also inside of liberal democracies, and considers a wise practical attitude not to compromise universal law with anyone of them in particular. To be sure, due to its legal cosmopolitanism component, universal law requires that some forms of guarantees, that some basic rights, be protected to the benefit of any and every human being, independently of which state she happens to be a subject of. However, it must be noticed, the capital issues concerning which rights should be universally protected, by which form of global organisation, and how, are totally entrusted to the states: to an act of collective decision making, of ‘co-creation’ of substantive and procedural universal law, by the states, and respecting states’ sovereignty.^[28]

3 Ferrajoli’s Global Constitutionalism Project

Following in the footsteps of enlightenment forefathers, Ferrajoli’s proposal for universal peace is part of a larger humanitarian, global constitutionalism, project to the benefit of any human (and living) being on the Earth.^[29]

The gist of Ferrajoli’s project consists in the following claims.

1. Any human being is entitled to the effective protection and guarantee of a set of fundamental liberty, social, political, and civil rights. These fundamental rights include, to mention just a few, the right to life, the right to physical and psychical integrity, the right to personal freedom in its several dimensions, the right to health, the right to education, the right to subsistence, the right to personal security and the free development of one’s personality.^[30]

2. Any human being is entitled to the effective and adequate access to certain fundamental goods. Three sorts of fundamental goods should be procured: natural vital goods, artificial vital goods, and strictly personal goods. Natural vital goods encompass clean air, potable water and its sources, rivers, seas, great forests and great glaciers, aerial spaces, electromagnetic waves, extra-atmosphere spaces, the Moon and other celestial bodies. Artificial vital goods encompass life-saving drugs, vaccines, healthy food, and internet. Strictly personal goods, finally, encompass the several parts of the human body and personal identity data.^[31]

3. The Earth belongs, as a common house, to every living being: to the human beings, to animals, and to plants. Every human being is a citizen of the Earth. The human beings living together on the Earth constitute the people of the Earth.^[32]

4. The sovereignty upon the Earth consists in the sum of those ‘fragments of sovereignty which are the powers and counter-powers making up the fundamental rights’ to which every human being is entitled.^[33]

5. The sovereignty upon the Earth does not belong, accordingly, to the several states. Rather, it is vested on the people of the Earth as a whole. And no established power – e.g., the public power of a state or of a group of states – is allowed to take possession of it or usurping it.^[34]

6. The states have no intrinsic moral value. They are not ends in themselves. The states are but the instruments for the local guarantee of the fundamental rights of their subjects. There is no legitimate room for any ‘reason of state’ not in tune with the duty of states to protect the fundamental rights of their subjects and provide them with adequate access to fundamental vital goods.^[35]

7. The people of the Earth, any people in the world, and any individual human being has ‘a fundamental right’ ‘to peace’. The guarantee of the right to peace is an ‘absolute duty’ of every public institution, at the state and global level alike.^[36]

8. The effective guarantee of the fundamental right to peace requires the adoption of several, conspiring, measures. The measures include:

   1. Introducing a universal wholesale prohibition of the production and commerce of weapons, but for those necessary to the exercise of internal and international police-functions;^[37]

   2. The universal suppression of national armies;^[38]

   3. Introducing the duty for any state to abstain from war and submit any controversy with other states (like, e.g., territorial disputes and sovereignty conflicts) to the mandatory jurisdiction of the International Court of Justice;^[39]

   4. Establishing an International Criminal Court, subsidiary to national courts, competent to adjudicate and sanction individuals (also those acting as state-agents) for crimes against peace;^[40]

   5. Establishing an International Court for Systemic Crimes, competent to issue truth-judgements about acts against peace not amenable to individual responsibility or involving individuals that are state-agents of states that do not recognize the jurisdiction of the International Criminal Court.^[41]

9. All the claims above should form the basis for starting a world-wide constituent process, aiming at approving a corresponding Constitution for the Federation of the Earth, binding for its subscribers from the thirtieth act of ratification or adhesion.^[42] The constituent process and the Constitution should take the lead from the several existing UN Conventions concerning the protection of human rights and from existing UN institutions and agencies.^[43]

4 Universal Law v. Global Constitutionalism: A Short Comparison

Having provided an (hopefully fair) account of Jorge Núñez’s and Luigi Ferrajoli’s projects for promoting (inter alia) universal and perpetual peace among states, I will conclude, as I said at the outset, by formulating a few comparing remarks about their practical acceptability, their probability of success (measuring their respective ‘utopian’ rates), and their mutual relationships.

One. The universal law approach appears to be pervaded – if I may say so – by an excess of irenic preoccupations, which turns it into an ‘appeasement project’, totally prone to states’ sovereignty. This attitude carries with it an ideological and a practical drawback.

The practical drawback is easily told. Considering the veto power Núñez project confers upon the states (in view of respecting their sovereignty), it is unlikely that states – above all, the powerful and imperialist ones – will ever accept any cosmopolitan arrangement flying in the face to their considered interests. It is highly improbable, in particular, that they will ever accept the idea of a legally limited sovereignty, together with the idea of a cosmopolitan protection of their own subjects, whenever such a protection purports to afford a remedy to their own deliberate violations of their subjects’ basic rights. This means that the cosmopolitan component of the universal law is likely to be utterly illusory: an ideal never to be realized.

The ideological drawback has to do with the following. The universal law project grants to states’ sovereignty an unlimited, unconditional, practical (and moral) value. It sanctifies the fact of states’ sovereignty, without questioning, for instance, whether the enjoyment of the rights making up the external dimension of the sovereignty of a state should somehow be subordinated to its respect for the human rights of its subjects. In so doing, the universal law project appears to endorse not only value pluralism, but also political realism, value relativism, and respect for whatever moral values a state may support, even though its implementation may result in the violation of the dignity and autonomy of its subjects.

The two drawbacks cast a very dim light on the probability of success of the universal law project in promoting and preserving universal and perpetual peace. Apparently, wars remain firmly within the scope of states’ sovereignty.

Two. The global constitutionalism approach appears more promising, both from an ideological and from a practical standpoint. To begin with, it includes into the draft of a Constitution of the Earth a fundamental right to peace, vesting it upon any individual human being, any people of the Earth, and the people of Earth as a whole. Furthermore, as we have seen, the project takes its lead from international conventions on human rights the states have underwritten, and so from a set of international law duties the states have assumed.

It must be avowed, to be sure, that the flight between saying and doing is very large (and dangerous). States – or, at least, a nucleus of well-meaning ones – should agree to increasing the power of existing guarantee-institutions (the several UN agencies, the International Court of Justice, the International Criminal Court) and introducing new ones (the International Constitutional Court and the Court for Systemic Crimes). But this is really unlikely, at least in the near future, since the very existence of those international bodies is currently under attack in a revival of XIX century-like nationalism and imperialism.

Nonetheless, what makes the global constitutionalism project preferable is its intellectual daring: its promoting a change of paradigm in the way of thinking at states’ sovereignty, international law and international relations. The project characterizes, in fact, for a radical criticism of the notion of states sovereignty, turning it into the sovereignty of individuals conceived as holders of fundamental rights.

Three. The two projects can be regarded as being complementary. The universal law project may find a firmer institutional support, and a proper way of keeping together its five basic principles, in the exercise of legal engineering carried out in the global constitutionalism project.

Four. From the standpoint of Bobbio’s typology of the different forms of pacifism, the two projects fare as many instances of active, legal, and institutional pacifism.^[44] The global constitutionalism variety also presents a dimension of instrumental pacifism, where it proposes a universal ban on the production and commerce of weapons, and advocates general disarmament, but for well-trained, fundamental rights respectful, internal and international police forces.

Five. In the Kantian philosophical project for perpetual peace, the first definitive article states that ‘The political constitution of every state ought to be republican’.^[45]

A republican constitution, as Kant makes clear, is the opposite of a despotic constitution. In a despotic constitution, the governed people are tantamount to as many things in the hands of rulers. Despotic rulers own their subjects, as they own castles, palaces, hunting reserves, and well-stocked foreign bank accounts. Contrarywise, in a republican constitution the subjects are autonomous (moral and) legal agents, living under equal laws they contribute to make.

Kant establishes an instrumental connection between forms of government and universal peace: despotic governments, autocracies, he claims, are by themselves a hindrance to universal and perpetual peace.

It must be noticed, however, that many major conflicts during the second half of the XX century were waged by democratic (‘republican’) states (think at the several colonial and post-colonial wars). This shows that a republican form of government proves to be, perhaps a necessary, but surely not a sufficient condition for universal and perpetual peace. And suggests, in turn, that purely institutional or instrumental recipes are not enough. We come in this way to my concluding remark, having to do with a further form of pacifism identified by Bobbio: ethical or pedagogical pacifism.

Six. Ethical pacifism claims that the most secure way to promote universal and perpetual piece consists in educating people to consider peace in its immense practical value and reject war, as Kelsen puts it, as mass murder, the greatest disgrace of our culture. The two projects I have been considering in the present paper, the universal law project and the global constitutionalism project, are apparently quite different from this standpoint. The universal law project, with its endorsement of state sovereignty, apparently gives up any attempt at changing people’s way of looking at peace and war. The global constitutionalism project, contrariwise, is pervaded by ethical pacifism, insofar as it aims at reducing the role of states in international relations, extolls the function of international courts, demystifies state sovereignty, as traditionally conceived, and purports to replace it with the sovereignty of each individual human being, in both domestic and international affairs.