The Natural Superiority of Courts
Despite the title of his post, I do not read Chris Borgen as a natural law skeptic! He accepts the existence of norms and principles that must be explained by theories other than positivism. He is just skeptical about the standard approach to explaining the source of natural law, namely, the use of the concept of the common good.
I am concerned about that approach, too, and for some of the same reasons as Chris. Like him, I, too, see the New Haven School taking a common good approach that has been formulated through the observations of a handful of scholars. We should not dismiss the importance of concepts such as human dignity to inspire us to press for better international law, but such scholarship cannot be the source of universal principles.
The other classical explanation of the source of natural law is to draw on the evidence offered by the positive law. My contribution to the use of this source is to look to the development of legal process theory in this country—first by Hart and Sacks of Harvard, then Koh of Yale—as to who should be drawing the conclusions from examining the evidence. Legal process teaches it should be the authorized decision-makers—authorized under the positive law—through reasoned decision-making. This is not, of course, a perfect approach. Judges can only aspire to objective analysis, but I believe it is a far more reliable approach than the one offered by proponents of the common good. Chris’s only real concern with the legal process approach is the fear that judges will start expanding the body of jus cogens norms. I do not see much evidence of this happening. Even if it is potentially a problem, with a robust theory of legal process to guide judges it should not get out of hand–not that I see having too many jus cogens norms as the equivalent to the problem of having too few. But even with the possible problem of “jus cogens creep”—it is far better for judges to be responsible for this than a few scholars or NGOs.
Chris also mentions the “democratic deficit” with respect to judges being the decision-makers to identify jus cogens norms. I am not certain this is a problem with respect to international courts and tribunals. The process of selecting these judges has far more input from those who will be judged than is often the case with domestic court judges. I am not, in fact, at all certain the “democratic deficit” is the problem in general for international law that some have suggested over the years. I discuss this at pages 127-28 of the book. It seems to be more of a slogan by those who wish to denigrate international law in whole or in part.
Chris also seems concerned that courts will determine such important jus cogens norms as the contours of prohibition of aggression. In fact, the ICJ has been doing just that since 1948 in the Corfu Channel case. If it uses the evidence of positive law and produces a reasoned decision to reveal its evidence and its reasoning, subjectivity can be limited, as Hart and Sacks argued. In the case of aggression, a critical document, underappreciated by some in this country, I believe, is the 2005 World Summit Outcome document. It reflects world consensus to continue to support the rules of the United Nations Charter as written as our best hope of to a stronger norm of non-violence and reflecting our responsibility to peace.
Legal process also teaches that the purpose of law is to settle disputes. We need rules that can resolve conflicts peacefully and courts that can interpret and apply them. We need a coherent system so that there is respect for and finality regarding the meaning of rules, especially jus cogens norms. In domestic jurisdictions, there is usually a high court or supreme court serving this function with respect to domestic law. In the international community we do not have such a court, but the ICJ comes closest as the only court of general jurisdiction and 88 years of experience. On questions such as the interpretation of provisions of widely-adhered to treaties, such as the Vienna Convention on Consular Relations, it is important that the national courts of the many states party have a harmonious approach to the meaning of the treaty. The German Constitutional Court stated this view in a 2006 decision. The U.S. Supreme Court has similarly stated in numerous cases that it is important to apply uniform interpretations to multilateral treaties such as those governing air and maritime transportation. But the Court rejected this traditional view in Sanchez-Llamas, imposing its own interpretation of the Vienna Convention and rejecting the ICJ’s ruling. The decision in Medellin v. Texas was even more troubling as the court mischaracterized the very nature of the ICJ for, it appears, ideological reasons.
No one suggests the ICJ is perfect—no court is—but it is important for the rule of law in the international community that its decisions be respected. Some of the criticism against it have been made by losing parties and when examined do not stand up. (See my discussion of the Nicaragua case in International Law Stories.) In this country, there is a lack of knowledge and understanding of international law and the ICJ—the subject of my first post. This has translated into distrust and reluctance to apply the appropriate rule of international law in cases—we seem to no longer have judges knowledgeable about international law such as Marshall, Story, Gray, Jackson, White and so many others–until the 1960s.
We in the American academy have a lot to do to bring our legal community back up to speed.