11 Dec McGinnis and Somin on Customary International Law
Several OJ contributors (Peter, Duncan, Julian and Roger) are in San Diego today as part of an ASIL Interest Group meeting. Right now we are discussing with John McGinnis and a couple dozen other prominent internatioal law scholars this provocative article by John McGinnis and Ilya Somin, in which they argue that customary international law is fundamentally defective because those principally responsible for advancing it–judges and law professors–lack democratic legitimacy. Here is the abstract:
The potential displacement of domestic law by international law has become a major topic of debate among both scholars and jurists. But the growing literature on the subject has largely ignored the fact that most international law is generated by undemocratic political processes. In this Article, we seek to fill this void by systematically analyzing the impact of the democracy deficit of international law on the desirability of allowing international legal rules to supplant American domestic law.
International law that has not been ratified by domestic political processes – what we refer to as raw international law – has a particularly severe democracy deficit because it is not subject to any kind of electoral accountability. In addition, international lawmaking processes are generally less transparent to the public than domestic ones, further undermining democratic control of its content. We contend that the democracy deficit of raw international law is a strong consideration weighing against allowing it to displace American domestic law.
The Article addresses multiple factors that contribute to the democracy deficit. We consider the role of unrepresentative publicists and international jurists in shaping international law. We also look at the materials from which they infer international law rules and find that they are influenced by nondemocratic and even totalitarian nations. Even the periodic acceptance of these norms by democratic nations is often little more than cheap talk. We offer social science data that suggests citizens are less familiar with the international than the domestic lawmaking process, thus reducing the transparency and democratic accountability of the former. Finally, we show that domestic application of raw international law has the potential to diminish the exit rights of citizens, thereby preventing them from voting with their feet and further undermining popular control over public policy.
We then review in detail the different doctrines by which raw international law may be used in domestic jurisprudence. We argue that in each case the low quality of the processes that generate international law militate against its displacing or supplementing law made through our domestic processes.
Not only is international law likely to be worse than United States law for Americans because of its democracy deficit, but foreigners too may be better off if the US refuses to incorporate raw international law into its domestic legal system. This possibility has also been largely ignored by the previous literature. Because of its structural position in the international system, the United States is likely to generate public goods, including good legal norms, for the rest of the world. We, of course, do not believe that United States laws that affect foreigners are likely to be perfect, but only that they are likely to be better on average than raw international law. We thus show that strict dualism – the proposition that international law should not penetrate the domestic legal regime without express domestic authorization – is a peculiarly suitable constitutional structure for the United States, precisely because it is a democratic superpower with global reach.
John McGinnis and I know each other from when he was in 9th grade at Phillips Exeter. And we were in the same first year section at Harvard Law School. I have a certain affection for John though I have felt for so many years he is so wrongheaded. Of course, I am sure he feels the same about me if he ever thinks of me. He has always seemed to write in a manner that is an apology for a peculiar American aristocracy which looks with disdain on many people I love – foreigners, people of colors who do not endorse American (sometimes read as white) supremacy, poor whites etc – you know, the losers to the trust fund aristocracy. Don’t worry I love members of what Gore Vidal called the Vault too – clueless as they frequently are. I downloaded the above article to read and must say that I am not surprised but I am disappointed. The principal concern that I have is that the article is an apology for what I call the virtue of ignorance approach to international law that permeates the present American scene. All of the American failings in helping citizens understand customary… Read more »
I must confess a fundamental disconnect with Mr. Davis’ argument. Why does the US possess “international obligations” to pacts and treaties to which it has not acceded and ratified, or to the rulings of courts without jurisdiction over the citizens and lands of the United States?
If states were willing (including the United States) to allow the citizens greater direct roles in creating international law, then the democracy deficit would not be there.
Citizens elect the legislature, which in turn, ratifies treaties and agreements with other nations. Are you calling for a direct democratic vote by the people on every treaty? If not, what are you calling for?
I must suspect that you are feigning ignorance my friend of customary international law. See Article 38 of the Statute of the International Court of Justice among other sources. The US incurs/possesses such international obligations because it is a state and all states incur/possess these obligations. Treaties may codify these obligations but these obligations exist outside of treaties. I hope I do not have to engage in a discussion of whether customary international law exists with you. I would prefer to refer you for that to any coursebook on public international law anywhere in the world. The critique of customary international law that McGinniss and Somin appear to be making is that there is a democratic deficit in that not all states making international law are democracies. My point is that we have a state system because states want it that way. Customary international law is forged from the interaction of those states on the international plane. McGinniss and Somin posit the superiority of American style democracy to other regimes. Of course, the other regimes posit the superiority of their approach. My point is that this is of no moment as (however the internal structure of each state) the process… Read more »
I must suspect that you are feigning ignorance my friend of customary international law. To an extent. See Article 38 of the Statute of the International Court of Justice among other sources. The US incurs/possesses such international obligations because it is a state and all states incur/possess these obligations. Article 38 refers to disputes submitted to the court. The court does not possess universal jurisdiction and many countries have either never submitted compulsory jurisdiction or have withdrawn from it (The United States, in particular.) By that criteria, are you implying that the United States is bound by customary international law only to the extent it cares to be (i.e. grants jurisdiction?) I hope I do not have to engage in a discussion of whether customary international law exists with you. I would prefer to refer you for that to any coursebook on public international law anywhere in the world. That it “exists,” I have no real argument with, although I suppose the extents and exact nature of such is rather arguable. My point is that much of the international law community accepts as gospel the applicability of customary international law when in fact, much of their argument is built on… Read more »
Matthew, Thanks. My argument is really much simpler. 1) customary international law exists and means of discerning it are available as has been done by courts, international tribunals, jurists, etc. 2) States create customary international law. Whether such states are democratic or not is irrelevant to that. 3) I am not making an argument about the “true will of the global population, tyrants, no reason, individual etc” stuff. I do not go there. 4) To me it is of no moment that most people may or may not find this argument convincing as I am not making that argument. Some individual citizens may not wish to accept the applicability of customary international law. Others accept the applicability of customary international law. Some persons torture or break into houses. Others do not. The point is whether the state through its acts and/or omissions complies with the obligations it has under customary international law. If it does, so be it. If it does not, it is in breach. On Article 38, Article 38 describes sources and evidence of international law in the Statute of the ICJ. Acceptance of jurisdiction for a given dispute is irrelevant to this point. The US has acceded… Read more »