5.1 Introduction

This chapter proposes demoicratic representation as a subtype of representation in international organizational practice. While the regime-neutral representation of States remains prudent for legitimate international organization of States with different and conflicting regime types, demoicratic representation ought to guide international law- and policy-making among democratic Peoples.

The tenets of the chapter’s argument are the following:

1. P1: The People is constituted by rules that create a set of interconnected statuses, institutions, and procedures which jointly exercise highest political authority, i.e. govern sovereignly.

2. P2: The People is composed of citizens. The democratic People is composed of citizens who hold specific deontic powers that enable them to govern via the institutions of the People, directly and by representatives whom they authorize and hold accountable.

3. P3: Political representing is either standing for the People as a whole or its institutions, or it is the acting of representatives in the stead of and for the citizens in governmental institutions of the People.

4. P4: The People is represented only by all the different types of representative persons who act within different types of governmental institutions and procedures of the People. These types of governmental institutions are determined by essentially different and jointly complete types of governmental actions, such as law-giving, executive government, and jurisprudence.

5. P5: Democratic Peoples are accountable to each other as Peoples and to each other’s citizens.

6. P6: Under any decision rule, even consent, there is a possible consent deficit about the decision rule even in case of unanimity on a substantive issue.

7. C1: Towards each other, the Peoples are adequately represented and held accountable only via the systemic interaction of all the different types of highest governmental institutions.

8. C2: Demoicratic representation needs to be designed in common institutions of the Peoples that unite its highest governmental intuitions, i.e. in the Peoples’ councils of parliaments, the Peoples’ councils of executives, the Peoples’ councils of high courts.

9. C3: Demoicratic representation ought not to be understood as working exclusively under the principle of Peoples consent (unanimity rule). Rather it is the representational space in which the consent deficit about the decision rule of inter-People relations is addressed and calibration sought by seeking a balance between different decision rules.

10. C4: Political international organizations (IOs) ought to conform to the principle that all institutional manifestations of the People be represented in the corresponding common governmental institutions. They need to embody demoicratic representation within their organization. The less comprehensive, economic, legal, technical intergovernmental organizations (IGOs) ought to be part of a system of mutual accountability and thereby assure demoicratic representation by IOs.

The goal of this chapter is to sketch out a conception, justification, and some basic guidelines of an institutional design of demoicratic representation.Footnote ¹ It aims to contribute to further joining the fields of philosophy of democracy and philosophy of international law.Footnote ² Given the plurality and interdependence of Peoples, philosophy of democracy ought not to remain fixated on the monadic demos and exclude the dimension of the relation among governing Peoples from the core of its normative and empirical inquiries. Alternatively, it ought not to dissolve the demos by conceiving democracy as ‘subject-less’ and ‘unbounded’ deliberationFootnote ³ as this disregards the capacity of Peoples to act effectively and responsibly which is necessary for any meaningful realization of democracy.Footnote ⁴ Philosophy of international law, for its part, ought not to remain largely a philosophy of States, of will and consent of States, and of law of States, the legal possibility of treaty-making by IOs in their area of competence notwithstanding.Footnote ⁵ Important ground has been broken by the thesis of the exception of democratic State consent in international law at large.Footnote ⁶ This chapter proposes that the forging of consent and addressing of reasonable disagreement among democratic States in international relations and in IOs ought to be realized by demoicratic representation. It thereby goes beyond but not against the thesis of exception of democratic State consent.

5.2 Demoicratic Theory

European law theory has been the primary meeting ground of philosophy of democracy and of international law.Footnote ⁷ Kalypso Nicolaïdis, who coined the term demoicracyFootnote ⁸ succinctly defines it as ‘a Union of peoples who govern together, but not as one’.Footnote ⁹ In the version of Pavlos Eleftheriadis, the European Union as ‘Union of Peoples’ is a dual system, based on reciprocity and equality of Peoples.Footnote ¹⁰ The assumption is that a multitude of democratically governed Peoples relate to each other horizontally based on shared principles. A demoicratic union is a plurality of concordant members. A democratic unit, on the other hand, is a whole without vetoes, opt-outs, or exit rights for the subunits.Footnote ¹¹ The debate on demoicracy has gained momentum.Footnote ¹² The recent publications remain confined to EU studies, but the normative core includes claims that go beyond contingent voluntary association: mutual non-domination and mutual recognition of Peoples.Footnote ¹³

The concept and theory of demoicracy have been criticized in three ways: (1) Demoicracy as the finalité of European integration.Footnote ¹⁴ (2) Demoicracy as justification of the actual EU.Footnote ¹⁵ (3) Miriam Ronzoni criticized Nicolaïdis’ ‘third way’-conception of demoicracy, stating that it conceptually collapses either into intergovernmentalism or statist federalism.Footnote ¹⁶ Ad (1) and (2): The present chapter is committed to an ideal-typical and general justificatory theory of demoicracy, not a philosophy of history about the perfect end-state of the EU, and not a legitimation of the actual EU. The legitimation of the instantiation of demoicracy in a concrete political entity such as the EU cannot be directly deduced from a general concept and justification of demoicracy. Ad (3): First, Ronzoni’s position neglects the possibility of the existence of a rule of recognition among demoi who want to act together but not as one. The existence of such a rule would mark a qualitative difference between demoicracy and intergovernmentalism as well as State federalism. Second, if demoi, as popular sovereigns, are understood to have legal disabilities, multiple institutional modes of being, and guarantee transnational fundamental rights, the reduction of demoicracy to either statist federalism or executive intergovernmentalism is inadequate. Third, intergovernmental rule-making limited to executives violates the separation of powers principle and sidelines representational bodies through which citizens can authorize and control legislation.Footnote ¹⁷ Federalism, for its part, is a theory that predates liberal democracy.Footnote ¹⁸

5.3 The Social Ontology of the Demos

At the basis of a theory of demoicratic representation lies the question how the citizen, the People, and a group of Peoples can be understood ontologically as social entities, and what modes of representation are possible and normatively necessary from the democratic standpoint. I avoid the dichotomy between a substantialist and interactionalist ontology of democracyFootnote ¹⁹ by assuming that social beings are constituted by social speech and document acts.Footnote ²⁰ If we assume that (1) ‘people’ denotes the same social entity in all three descriptions of democracy as government of, by, and for the people; if we further assume that (2) the people are the sovereign person in democracy, then there occurs:

1. (i) a circularity problem concerning the people as pouvoir constituant (‘of the people’) and pouvoir constitué (‘by the people’; demos problem);

2. (ii) a paradox of popular sovereignty: the sovereign and the subject are identical (transitivity problem).

We must be able to show that ‘people’ does not refer to the same entity in the three nominal descriptions of democracy. The People as origin or ground of the exercise of governmental powers (pouvoir constituant) cannot be the same as the People that rules via institutions (pouvoir constitué). Furthermore, the People that rules cannot be the same as the People that is ruled. I will not address the demos problem. As I have tried to show, demoicracy might be the closest shot we can get at solving the demos problem.Footnote ²¹ I will also not further pursue the question what the people is, for which rule is exercised (population). I assume it is the group of agents under the obligation to follow the laws and orders of the demos and the group of agents to whom the governing People is supposed to give priority in serving. It is important to understand the ontological difference between the People as pouvoir constituant, the People as pouvoir constitué, and the population to be served. To understand the term in the middle that is of interest here, the People that rules, I follow and complement the Ciceronian, jural position, and circumscribe the People in the following terms.

The democratic People is a group that is constituted by the common recognition of a coherent set of primary and secondary rules, which establish statuses, institutions, and procedures through which status holders, first and foremost citizens, exercise highest lawmaking and law-enforcing authority (deontic power) in view of providing the service of government, that is to say, of public goods and public services within a territory, to a population.Footnote ²²

The democratic People has ownership of and priority over the State and not vice versa. A State controlled by the People deserves the name ‘res publica’, as opposed to a State that is the instrument of self-serving rulers. It is important to determine what constitutes a People (demos) as a specific social entity in distinction to what constitutes a State, and how the two are related. The ontology of the State is beyond the remit of this chapter. I consider the State an apparatus of epistemic and coercive administrative instruments and procedures that are purely rational from an ideal-typical point of view (as opposed to reasonable). In a democracy, the State apparatus is controlled by the democratic People. In virtue of this control and constraint of the State by the People via reasonable debate on the yielding of rational State power, the State becomes res publica. ‘Est res publica … res populi’ as Cicero wrote. Whoever officiates in the State or represents the State as res publica, must act under the control of the People in the service of the Population. The representation of the People vis-à-vis other Peoples might, and most likely must pass through the State, but the latter has only an instrumental value for the People. For demoicratic IOs this means that the core social entity that is to be represented is the People, not the State.Footnote ²³ From a democratic point of view, international relations are inter-People relations. The term ius gentium can be reinterpreted in this jural and republican sense, that is, as ius populorum. To conceive international law as a law of States can be accepted as a shorthand that indicates that only Peoples disposing of certain State-like capacities and instruments to give credible assurance to other Peoples can honour justice among Peoples.Footnote ²⁴ Second, international representation as representation of States can be understood as compromise that one must consider to avoid severe conflict with and to allow for constructive peaceful relations with non-democratic States. But among governing populi, the system of representation needs to be conceived and designed as a representation of Peoples.

I cannot go through the full set of rules that constitute a governing People. Nor can I fully explain my approach to social ontology, which draws on Adolf Reinach, Herbert L. A. Hart, John Searle, and Barry Smith. However, I can aim for completeness regarding the types of secondary rules that constitute a democratic People: (1) a fundamental act of recognition of a union claim of the People as constitutional unit under one system of law. This enactment of the claim to constitute a coherent system of law is the rule of recognition;Footnote ²⁵ (2) constitutive and regulative rules that establish statuses, institutions, and procedures and regulate them.Footnote ²⁶ The regulative rules include rules of change and adjudication; (3) rules conferring deontic rights, powers, and duties to office holders and institutions, but first and foremost to citizens.Footnote ²⁷

Here, I skip over the rule type (1). It is identical in content for democratic and non-democratic peoples. Peoples under any type of government require a rule of recognition, a recognized union claim, to exist as a constituted people or union of Peoples. To (2) and (3): a democratic People is distinguished from other legally constituted non-democratic Peoples by the content of specific secondary, formalized rules. Also by informal rules and social norms, but these cannot be the object of my analysis here and require a historical and empirical method of analysis. Furthermore, I cannot do justice to the concrete instantiations of the formal rules. I hold that the distinctive formal rules of a democratic People concern mainly the status (office) and deontic powers of citizenship, and the procedures that citizens are involved in when making authoritative decisions themselves or via representatives, when governing together as People.

These rules, first, determine freedom rights that are necessary elements of democratic procedures.Footnote ²⁸ These freedoms do not conceptually depend on the status of citizenship. Freedom of speech and association, essential conditions of the deliberative demos in any democracy, are not specifically citizen-freedoms, they are fundamental freedoms of humans. It necessarily follows that the deliberative People (as type) and the formally governing People (as type) are not constituted by the same set of statuses of individuals, and they are potentially composed by different individuals de re.Footnote ²⁹ This means that liberal democratic Peoples, in which citizens and non-citizens have freedom of expression of opinion and association, are essentially open towards each other as deliberative Peoples. In this sense, deliberative demoicracy is a fact as soon as contiguous liberal democratic Peoples exist. The fact that domestic publics are stronger than transnational publics and the individual ability and structural conditions to participate in deliberation are different empiricallyFootnote ³⁰ does not change this ontological fact of reciprocal openness of liberal democratic demoi. The existence of ‘echo chambers’ and ‘filter bubbles’ in cyber space would reinforce the point, because they do not only fragment the deliberative demos within the borders of the formal demos but also cut across formal demoi. The formal governing People as demos type is composed by members constituted by rules that define the status of citizenship and regulate accession and exit to this status. Following Searle, the status is a term in a rule holding: X counts as Y in C. Meaning, X counts as citizen in C. The C-term refers to the entity established by the recognition of the union claim. The status-term, the Y-term (the status of citizen in our example), is established by a rule that enacts something like ‘members of C have the status of citizens of C’. This is then further substantiated by deontic powers given to individuals with this status, and by the rules of accession to and exit from the status, as well as the rules how to document identification of a person as holder of a status, and so on. The conceivable deontic powers of the democratic citizen are the power to vote and stand in elections of political representatives, to vote in issue-specific votes (referenda or initiatives) as well as to be active in bringing them about. The status of citizens and of office holders of the institutions of the People also comes with a right over duties, duties that only the status-holder can claim to be under an obligation to fulfil and that persons who do not hold the status are not allowed to fulfil. Examples are jury duties, military service, and civil service.

The status rules just mentioned are not sufficient to constitute the People. When citizens sleep in bed, gather informally, gather to protest, and so on, they are, and they might even be acting specifically as citizens, but they are not the People that rules with democratic authority. Their acts (e.g. of protesting, of making representative claims, deliberating, etc.) are not acts that directly yield the deontic powers of the People. The ruling demos needs what Jean-Jacques Rousseau called ‘lois fondamentales’. Minimally, they consist in rules of assembly and decision-making procedure.Footnote ³¹ But more are necessary, because the People need executive and juridical institutions, and a functional legislative assembly in most cases is an assembly of representatives, not of all citizens. Direct democracy is not assembly democracy, it is the existence of direct democratic devices within fundamentally representative democratic systems.Footnote ³² The People is thus further constituted by rules setting up an ensemble of governmental institutions and procedures with office holders who are social persons: representatives; and by rules conferring deontic powers to the citizens and office holders. Democratic authority is yielded by the citizens and representatives just in case they act within specified institutional procedures.

As ruling collective, the People need to perform many different types of acts at the same time and hence delegate these tasks to various institutions. This seems clear, independent of any (inadequate) conception of direct versus representative democracy and independent of any conception of group agency one might subscribe to.Footnote ³³ The people will delegate control to institutions, who control each other. The consequence is that vertical accountability is complemented by horizontal accountability and that the realization of democracy is best understood not by looking at the individual institutions of the People in isolation but as a democratic system solving certain problems.Footnote ³⁴ Any form of horizontal accountability necessarily implies representation in some form and shape.Footnote ³⁵ Overall, the exercise of the deontic powers of citizens happens via institutions which necessarily demand the existence of the status of representative in different institutional instantiations. It is these institutions through which the People is to be represented toward other Peoples in demoicratic representation.

5.4 Representation

Political representation is a broad concept, widely debated, multidimensional, and complex in different contexts.Footnote ³⁶ Nevertheless, I hold that the analytical structure of political representation is simple, and it is the following. Political representation of x is either standing for x or acting for x.Footnote ³⁷ The former can be attributed to many sorts of beings including agents, the latter is enacted only by social persons, which I call representatives. ‘X is a social person, if and only if X is the subject of social acts’.Footnote ³⁸ Social acts are acts that a person addresses to another person and that have as their success-condition that the other person grasps it. Political representation is a social act. If A (or a group A_1-n)Footnote ³⁹ represents B (or a group B_1-n) in the mere sense of standing for, then A embodies, depicts, or symbolizes B. It can also be that A carries essential traits of B (descriptive representation). Examples are a head of State who stands for the union of the People under a constitution. The fish represents the Christian community in coded form.Footnote ⁴⁰ The half-moon stands for Islamic community. The star of David stands for Judaism. A flag symbolizes the nation, and so on. These entities (fish-image, half-moon image, flags, etc.) are not social persons. Unlike promising, commanding, requesting, agreeing with, symbolizing is not a social act. A ‘mini-public’, created by semi-random sortition, depicts the people as image of the public at large, that is why it is called a mini-public in distinction to an elected assembly, which is not an image of the people but an elite or group of interest representatives under some criterion of choice. An image does not perform social acts, a ‘mini-public’ as such is not a social person. Women can be understood to represent women in the sense that they share their essential descriptive features and life-perspectives (descriptive representation). A descriptive representative as such is not a social person. An attorney defending a serial killer sharing no descriptive traits with the serial killer is a social person, they act for the serial killer in court. The representational action for can only be tied to descriptive representation under the empirical assumption that people who share features of other people can be expected to act in their interest because the descriptive features have led them to certain experiences and perspectives which will allow them to act for others. They thus draw trust in view of acting for. But this is not a necessary dependence. The lawyer representing the serial killer does not have to share the experience of this practice to be a good representative of the serial killer at court. Pro tanto, B does nothing for A or vis-à-vis A by simply sharing features of or symbolizing A. This aspect merits a lot more analysis, but I will leave it at this because I think democratic legitimacy depends on social action much more than symbolic action. It is a feature of fascist theory of representation to misrepresent the symbolic standing for the People as a whole of one leader as the acting for the People as a whole.Footnote ⁴¹ Authorization and accountability that are part of an a priori theory of social acts of representation are cut out.

If A represents B in the sense of acting for, this comes in two forms: (1) B puts an obligation or a rule on A to carry out an act on its behalf or in its stead (delegation); (2) B creates representative powers in A, that is, powers to act freely in their name and best interest and thereby commit B to certain positions, or even to put B (and themselves de re) under rules and obligations. Who puts a rule and obligation on whom is the opposite in the two figures of representation: (1) B puts an obligation on A; (2) A puts an obligation on B (or on B and A). Both cannot be the case at the same time regarding the same content of obligation. One collides with the other. Furthermore, both figures can be conditional or unconditional. Ad (1): B can give A a conditional command (obligation) with unconditional content (B commands A to do y just in case x occurs) or an unconditional command with conditional content (B commands A to do y or z in case x occurs).Footnote ⁴²

The democratic representative government adopts both counter-directional forms of representation (1) and (2), and this in respect to the same legislative or executive body of representatives. The system of democratic representation is like a two-way street with no clear rule on which side to drive on. Representatives have a mandate in the sense that they are elected by the represented based on promises and programmes of what they will do on their behalf or interest, or in what they see as the public interest, with different conditionalities. The election is the acceptance of a promise by the represented that puts an obligation on the representatives. When they get elected, there is a sense in which the represented rightly see the representatives as being under the obligation to carry out the programme for which they were sent to parliament, the executive, or the judiciary. The representative promises ‘if elected, I will do x’.

The counterargument to this thesis would be to say that the representatives put the obligation on themselves by making the electoral promises. There is thus no bidirectionality. But that is not what happens in an election, and it does not cover the election of the representatives in the judiciary. The promise, as any social act, is ‘vernehmungsbedürftig’.Footnote ⁴³ Some act of grasping, reception, or acceptance is necessarily part of its success conditions. If you promise to help me move next weekend that promise does not put any obligation on you if I do not acknowledge your promise. Representatives make all sorts of promises before the election. By casting a vote, the voter chooses between different promises of different representatives and parties. The winner of the election is under a pro tanto obligation to carry out a promise only because their promises of the promisor have been accepted by the promisees in the electorate and their votes have been aggregated according to the rules. It is thus the represented who choose (under a decision rule) which promises count and thereby confirm a mandate of the representatives to do x in the representative assembly. Besides, offices also come with preset duties ex ante. There is always a non-promissory mandate implied in the office of a representative.

However, in many cases representative government implies that the political representatives impose obligations on the represented in a way not foreseen in the mandate they voted for. Representatives have a mandate and their promissory obligations are only pro tanto obligation. Additionally, they have representative powers to put binding obligations on all in ways their voters did not foresee or in an interpretation of the public interest that is not necessarily shared by their constituents. In all this, the representatives still claim to act for the represented, but not in a narrow sense of responsiveness to mandates. The represented, on the other hand, still expect the representatives they voted for to stay as close to the mandate as possible, or to have a reasonable explanation for why they moved away from the mandate, or even did something completely not foreseen in the mandate. One should not misconceive this situation with a simple citizen-bourgeois dichotomy ascribing the mandate to narrow interests of a constituency and the going past the mandate to a citizen perspective of common interest or best overall solutions. The mandate can be understood in terms of best overall solution and the compromise going beyond the mandate can be the result of interest bargaining. Be that as it may, it is inconceivable to ascribe only a mandate to representatives who have powers to put obligations on all (legislative, executive orders). They operate in a normative space that is characterized by the countervailing normative figures of mandate and representative power. The creative granting of deontic powers authorizes the representative to act in the name of the represented when putting obligations upon them. The election is the clearest and most certain form of authorization, albeit not the only one.Footnote ⁴⁴ On the other hand, it is also a priori possible that A act in the interest of B and according to the intention of B without representing B and even without making a claim to represent B.Footnote ⁴⁵

The ‘puzzle’ of the two necessary, but counter-directional figures of democratic representation has no definite solution in purely representative systems. It is only manageable over time in a cycle of authorization and accountability. One should not expect this to change in demoicratic representation in and by IOs. Elections are moments of authorization of representatives with both a mandate and with representative powers for cases in which it is not possible or not reasonable to narrowly adhere to the mandate. What is possible and reasonable must be judged by the represented and the representatives and re-negotiated at each election. By the formal periodic repetition of elections (and informal critique and debate), the electoral cycle also assures accountability. Representatives explain their choices, or the choices of their predecessors in the same party in case they are not incumbents. Voters judge if the representatives they voted for kept their promises and programmes, for which the represented gave them a mandate via their vote. They also judge whether the representatives have used their representative power in a reasonable way given their original programme and promises. The right to vote is a normative power, an instrument of authorization and accountability, meaning also of sanction or confirmation of the representatives or their party, in the hand of the represented, the citizens. Be that as it may, the tension and possible confusion between delegation of a mandate and representative power always remains present in democratic systems.Footnote ⁴⁶ The representative democratic system that includes the facultative referendum is a close shot at solving the ‘puzzle’ of democratic representation. For one, it puts additional normative powers of accountability in the hands of citizens (and non-elected representatives such as action committees) and increases deliberative qualities.Footnote ⁴⁷ This make for a reasonable justification of facultative referenda.Footnote ⁴⁸ But here I mean something more fundamental. The facultative referendum implies that representative powers are given to the representatives conditionally, and that the direction of command can be reversed by the represented in the framework of a democratic procedure (e.g. collecting a certain amount of signatures that trigger a vote the result of which is legally binding and can annul an obligation the representatives wanted to put on the represented). A representative democratic system with the facultative referendum has an instrument that allows for the possibility to avoid bidirectionality in case the countervailing forces of the latter cause an issue-specific gap between responsiveness to preferences of the represented and the decisions of the representatives, and in case this gap is judged too large by a majority of the represented. This is especially important in international demoicratic representation where the long chains of representation can make the gap between the represented and the representatives particularly large. A representative system with facultative referendum is a bidirectional system of obligation-imposition that can switch back to a unidirectional system of command with the possibility to avoid negative or confusing effects of bidirectionality. I say closest shot to solving the problem and not total solution to the problem because in the facultative referendum the command remains one of editing and not authoring the obligation (law). The facultative referendum gives citizens the right to refuse an obligation put upon them by representatives in the exercise of their representative powers. It does not give them the right to statute, to be the authors of the laws.

5.5 Demoicratic Representation

The People as governing entity is a semi-abstract entity and as such a composite of real human individuals under documents and representations that constitute offices and institutional entities and institutional procedures by document acts. This is important to understand democratic and demoicratic representation. It might be the case that a single institution of the demos alone is understood to stand for the People as if it were the whole or as if it were to encapsulate the whole, for example, the flag, the head of State, the citizen assembly. But this should not be misconceived as representative acting for the People. No single human or social status person, no single party, no single institution of the People alone, no single branch of government, not even the assembly of all the citizens, can act solely for the People as a whole. The People can only act via the institutional constellation of all interconnected offices, institutions, and procedures. Hence, if the People is to be represented adequately vis-à-vis other Peoples, all these institutions need to be involved and several different IOs together might be understood to represent the Peoples. The representative acting for needs to be performed by the corresponding highest institution of the People, that is, of lawmaking, law enforcement, and jurisprudence. Consequently, demoicratic representation ought to be understood systemically, as horizontal and vertical interplay of checks and balances of several institutions (IOs) commonly created and upheld by the Peoples.

In what follows, I try to show that the democratic representation is unfinished if there is no demoicratic representation and that demoicratic representation needs to be designed as representation of the Peoples via all their highest governing institutions, that is, legislative, executive, and judicial. In other words, the law of Peoples should be drafted by lawmaking representatives of the Peoples, the execution of the law overseen by representatives from the executive, the judiciary of Peoples by representative from the highest judiciary powers of the Peoples, and these institutions ought to respond to each other in a representative system. Part of this are also referenda of the Peoples.

(1) Only in a demoicracy, the governing People is accountable to other governing Peoples. In international relations in general, the People is accountable to other States or IOs of States overseeing international law, but not to other Peoples. Within a democracy, the popular sovereign might have restricted domain via legal disabilities, but in such a setting the popular sovereign is ultimately accountable to no one. It does not matter whether popular sovereignty is enacted as parliamentary sovereignty, in a system of checks and balances with constitutional jurisprudence, or direct democracy, or any other mode or combination of the above. The People, as a whole, is accountable to no one if we conceive democracy as an enclosed system of a singular demos. If the place of the sovereign is considered empty and the democratic sovereign replaced by the constant struggle for hegemonyFootnote ⁴⁹ we can no longer distinguish the legitimate electorate or legitimate voice of the people from usurpation. But in a democracy, the place of the sovereign is not empty. It is occupied by a set of interconnected institutions that represent the legitimate expression and authoritative voice of the People. A group of demonstrators is a legitimate form of voicing demands in democratic politics, but it is not an authoritatively binding voice of the People that replaces or empties the seat of sovereign People. The first raison d’être of demoicratic representation is the necessity of accountability of the Peoples towards each other. In international law, States are accountable to each other and that is of course a good thing and not to be replaced but complemented by the mutual accountability of Peoples. If we agree that the State, as a rational administrative and coercive apparatus is only an instrument of the People under its control in democracy, and if we hold that many States are not controlled by the People via corresponding institutions, then if follows that a democratic People is accountable to other democratic Peoples, not States. Second, all the democratic Peoples together cannot form a sovereign democratic People because this People would be an entity that is again accountable to no one.Footnote ⁵⁰ The overarching union of democratic PeoplesFootnote ⁵¹ is a union of sovereigns, not a sovereign unit.

(2) In a constellation of interdependence, democratic Peoples face (minimally) the following challenge: It is possible that People P₁ take a domestic decision d, that would not be accepted by either all or a majority of the citizens of Peoples P_2-n, a majority of the citizens P_2-n, a minority of the citizens P_2-n, or any combination of the three possibilities, i.e. a majority of P2, a majority of P3, a minority in P4, and so forth. The unacceptability of expected consequences C_exp in case they would affect P1 constitute the reason why the majority of P₁ take decision d. The citizens of P1 thus take a decision they would possibly have reason to reject were they the citizens of P2, and so on, but they have no idea if it is really the case and if it were the case how they could justify their decision to the citizens of other peoples or their corresponding representatives. Suppose that to create accountability among democratic Peoples, international institutions are created as we know them. In the classic form this happens by giving the executives representative powers in common international institutions. Suppose this institution of P_1-n discusses decision d. This can give the citizens of P₁ important guidance. They will know how many and which States do (not) accept their decision d, and for what reasons. But the citizens of P₁ still have at least the following epistemic problems:

1. (i) The citizens of P₁ have no way of knowing if the executives of P_2-n represented the majority or minority will of their citizens regarding decision d;

2. (ii) The citizens of P₁ have no way of knowing if decision d would be accepted by a majority of all citizens of P_1-n, albeit not by all the executives of the States, due to the fact that majorities and minorities will occur in Ps of unequal size;

3. (iii) The citizens of P₁ have no way of knowing the reasons why the majorities and minorities of the citizens of P_2-n reject (accept) their decision d.

Demoicratic representative institutions, in which the domestic political constituencies are represented vis-à-vis other Peoples have an epistemic and normative function. They can produce the knowledge about what other Peoples want when confronted with decisions of common concern. ‘People’ here refers to all the essential institutions that constitute the People as a collective actor, as opposed to only the executive. Such common institutions create a knowledge that central international bureaucracies, State executives, or domestic institutions that only debate internally cannot produce. Common demoicratic institutions in form of IOs can further serve the normative function to address mutual accountability issues of popular sovereigns in a manner that fulfils normative principles of the relation of sovereign Peoples.Footnote ⁵² If the citizens of P1 or any P_2-n assume that being a citizen is accepting accountability to citizens acting in legitimate democratic institutions, they will accept demoicratic institutions that serve an epistemic function of knowing how other majorities and minorities of other Peoples view decisions of common concern, and that serve the minimal normative function to calibrate decisions while taking into account the information produced by common institutions.

(3) In a democracy, the decision process is based on the majority rule in some form and shape. In a demoicracy, it is assumed that decisions are based on unanimity and that individual Peoples have veto rights and exit options. I will show that, fundamentally, demoicracy at the core is about dealing with reasonable disagreement among democratic Peoples about the adequate decision rule.Footnote ⁵³

As opposed to legal representation where one to one representation is possible, in political representation a representative represents not only one individual, always a group’s interests, opinions, perspectives. That is the whole point of political representation. This means that no individual’s particular interests are represented entirely by one single representative, as is the case when an attorney represents a client. The largest group in a constitutional unit are the group of the represented (all the citizens) and the group of the representatives (the government in various institutional forms and instantiations). The collective action of the group becomes possible by a collective decision rule. The decision so taken is considered as the decision of the group in virtue of the correct application of the decision rule (and further fairness conditions). In that case, the representative assembly (as group) acts in the name of the represented (as group), the disagreement of individual representatives and represented notwithstanding.

The consent of the group as such is established by a collective decision rule and only applies to the group.Footnote ⁵⁴ If the group adopts a unanimity rule, the difference between the number of vetoes and the majority votes is called a majority deficit.Footnote ⁵⁵ If a decision is rejected because three out of five persons vote against, the majority deficit is two, meaning that the majority of two who would have decided the vote under a majority rule are disregarded under the unanimity rule. If the group adopts a majority rule, the number of minority votes can be called the consent deficit. The consent deficit is the absolute number of minority votes under a majority rule, not to be confused with the minority–majority quota. If four out of five vote against a decision, the consent deficit is four meaning that the decision was adopted against four who would have been necessary to change their vote to reach consent, or who would have each been decisive in rejecting the decision under the unanimity rule. In this case the majority-superavit is one as an absolute number and the minority–majority quota (mi/maj) is 80 per cent. The mi/maj is one in case of a tie (a non-decision) and decreases the higher the number of the minority–majority difference gets. The higher the mi/maj, the less voters are disregarded in proportion to the total number of voters under a majority rule. The mi/maj thus puts the consent deficit in relation to the number of voters the veto-rule would disregard.

If the mi/maj ratio is repeatedly very low under the unanimity rule, the unanimity rule gets charged with increasing burdens of justification because a minority is constantly vetoing decisions. If the mi/maj ratio is repeatedly high under a majority rule, the majority rule gets charged with increasing burdens of justification because only a small majority is deciding the outcome. It is thus important to notice that the decision about the decision rule is subject to the same formal relations as the decision on material issues. It is not the case that under a unanimity rule everybody gets their way due to everybody’s veto position. There can be a second-order consent deficit, including a very large one, about the application of the unanimity rule even if the decisions that are taken under this rule are unanimous, that is, even when there is first-order unanimity about content. The application of the unanimity rule is in that case ‘pseudo-libertarian’, because under full libertarianism there would be no second-order consent deficit about the unanimity rule. But regarding the majority rule as well there can be a large consent deficit regarding its application even when the min/maj ratio is very low.

What does this mean for international relations’ principle of State consent in relation to the idea of demoicratic representation? First, international relations, based on free State consent, are possibly ‘pseudo-libertarian’ until proven otherwise. In the Vienna Convention on the Law of Treaties the ‘principle of free consent’ is voiced as ‘universally recognized’ but applied only to States, not citizens.Footnote ⁵⁶ Granted, all States that sign the Vienna Convention on the Law of Treaties agree to the consent-rule. There is thus no second-order consent deficit regarding the general application of this rule as far as the States that signed the convention are concerned. Now, in international representation, the States are represented by their executive governments. In some States, freely and equitably elected parliaments have the right to refuse binding obligations by the right to ratification of treaties. If that is the case, we could say that the principle of State consent is realized as Peoples’ consent in so far as the highest legislative institution of the People consents to an obligation. In the case of decision-making in the representative assembly of the People (parliament), the individual represented can assume that their representatives weigh in on the collective decision in deliberation and decision-making. If the assembly is elected by proportional representation that possible weight increases for minority positions. In international representation as it is currently practiced, the individual represented (citizen) is no longer represented by a representative of their constituency in an assembly, but only by a representative chosen by the assembly by majority rule or by direct election by majority rule, or by usurpation of the ruler. In other words, international representation means moving up the steps of a multilevel representation system whereby the possible consent deficit increases at each step, State consent notwithstanding. Furthermore, there is no voice in agenda-setting. In international relations where States have veto powers, there is no consent deficit regarding new decisions taken, but there is a possible large consent deficit among States regarding this decision procedure when it comes to certain issues, and this consent deficit will not be noticed from the inside of the system of State representation. What is more, from the point of view of the individual citizens, there might be a large first-order consent deficit regarding the decisions taken by State consent and regarding the unanimity rule of binding common State action. In brief, the problem of international representation is not only that international law is a set of primary rules and that IO lacks a single legislator adapting the law under a rule of change.Footnote ⁵⁷ Arguably, by endorsing the universal principles of free consent, of good faith, and of pacta sunt servanda (this principle is grounded on the a priori rule that promises create obligations), international law is based on a rule of recognition: the States form a union by recognizing as law all law that is enacted under these principles. As Hart mentioned,Footnote ⁵⁸ this is increasingly changing.Footnote ⁵⁹

The argument here is thus not about making consent and unanimity a direct source of international law by demoicratic representation of Peoples with veto powers. The point is that demoicratic representation can be understood as a way of institutionalizing a more adequate management of disagreement of international lawmaking, which, as Samantha Besson has pointed out, is arguably more pervasive in international than in domestic lawmaking, consent as constitutive element of international law notwithstanding.Footnote ⁶⁰ If we assume that international representation ought to be the representation of Peoples at least among democratic Peoples, meaning of citizens governing via common representative institutions, the possible first-order consent deficit of decisions taken by States and the possible second-order consent deficit of citizens of Peoples acting together regarding the principle of State consent cannot be ignored.

For a representation of democratic Peoples, this means that first-order State consent in international lawmaking is too reductive. From the point of view of the citizens, State consent to international law is given with a possible (and highly probable) first-order consent deficit, but one that can be assumed to be accepted within a democratic constitutional order accepting majority decision rule. But citizens can arguably assume that:

1. (i) first-order State consent masks large first-order majority dissent in case the population-strong States’ numerically large minorities who are discarded in the decision outnumber population-weak States’ numerically weak majorities who are decisive in the decision;

2. (ii) there is a large second-order consent deficit of citizens regarding the principle of consent, at least on some issues.

Demoicratic representation therefore minimally implies a principle of free consent of Peoples as opposed to States. The free consent of the People needs to be given to international obligations (treaties) by the People’s highest law-giving body, which can be a freely and equitably elected parliament or a direct vote of the citizens. But that is not where demoicratic representation can stop. Demoicratic representation needs common institutions in which representatives of Peoples address the second-order consent deficit about the principle of People-consent in relation to the positioning of the citizens regarding this decision rule when applied to specific laws and issues. Demoicratic representation cannot be solely committed to the principle of State or People-consent, nor can it simply abandon the principle of People-consent in favour of a majority decision rule across the board. The latter is democratic representation. Demoicratic representation needs to account for the citizens’ possible second-order consent deficit regarding the principle of People-consent in common institutions, in which the decision which decision rule ought to be adapted for what decision is debated, settled, and constantly re-adapted. In other words, demoicratic representation institutionalizes a rule of change that allows for switching from the decision rules of People-consent to majority voting in common institutions of the Peoples in international lawmaking.

(4) For IGOs the argument here presented has different normative implications depending on the type of IO. There is no room here for an in-depth typology of IOs. My normative argument proposes that the IOs of democratic Peoples ought to form a demoicratic system of representation. Not all democratic IOs are as or need to be as comprehensive as the EU, that is, engage in lawmaking, executive transnational government, and jurisprudence.Footnote ⁶¹ Ideally, such a comprehensive political IO ought to embody demoicratic representation within, that is to say, contain all the representative institutions of the Peoples. Less comprehensive IOs are not under this imperative of separation of power and completeness of representation. But they ought not to stand alone. They ought to be a complementary part of a representational system and thereby contribute to assuring demoicratic representation by IOs. As I propose to understand democracy and demoicratic representation systemically, there is thus no need that all IOs encompass all the institutions of the Peoples in one organization. Demoicratic representation can be realized if IOs are integrated in a coherent and transparent institutional system of separation of power and checks and balances upheld by the member Peoples.