Participatory Democracy and Customary International Law

Christiana Ochoa of Indiana Law School has just published in the University of Cincinnati Law Review an interesting article entitled, Towards a Cosmopolitian Vision of International Law. The article and an abstract is available on SSRN here. The article addresses Sosa and the role of the judiciary in establishing customary international law.

But it is Part VI that really caught my attention regarding participatory democracy in the formation and definition of CIL. Here is a taste:

The CIL of human rights, no less than treaty law, has direct effects on individuals. It sees them as the subjects addressed by those provisions that have attained the status of CIL. Unlike treaty law, though, there is no space in the traditional formulation of CIL for individual participation in the CIL formation process. As a result, there is currently an uncomfortable disjuncture in the CIL of human rights. Individuals are its subjects but are not seen as legitimate participants in its formation…. The traditional state-centric conception of CIL, at least within the CIL of human rights, is incongruent with models of participatory democracy.

Although I doubt that international law will progress toward genuine participatory democratic prescription of a CIL of human rights, she is right to identify the democratic concerns in the creation of CIL human rights law. But rather than criticize CIL as undemocratic, she identifies the judiciary as providing a key role in starting and informing dialogue among the citizenry. It is an interesting argument for the least-political branch–the judiciary–playing an essential democratic function in the formation of CIL. Democratic participation through human rights litigation, not the ballot box.

Not sure I agree, as ATS litigation is not exactly a vehicle for representative democracy which, in Robert Dahl’s language “inculcates among people of all walks of life a justifiable feeling that they have the power to participate in decisions which affect them.” But very interesting and worth a read.