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 international law are turned on their head to show the problem is with international law – not with the poor way that customary international law is taught, explained, etc. in America.
The democracy deficit argument does not address also the possibility that American citizens might petition all branches of the US government to comply with customary international law rules developed on the international plane and notwithstanding contrary United States law or poor interpretations of international law by governmental actors (torture memos). In this manner, the international law becomes integrated in the US political process through the democratic process within the United States – whether or not appeals are being made to courts alone.
Turning to the manner in which raw international law is created, their complaint about the state based manner to create international law is a red herring (one more in this arena I must add). 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. The point is that, particularly the nationalists such as these gentle persons, jealously guard the state model – even asserting with great hubris more of the American exceptionalism so cherished by American nationalists.
In addition, I must say I was amazed by the section on exporting American law as if it is some manna to the rest of the world. Puh-leaze. That would appear to smack of the worst kind of imperialistic project. As the former resident of France, I must say I smirked at this American mission civilisatrice and would expect that a very large number of persons from civil law traditions at least would demur.
Moreover, the analysis seems to ignore the role of general principles of law recognized by civilized states as a means by which internal law (US or other) can possibly become part of international law even in customary international law.
I must say that the use of provocative terms such as “raw international law” is the kind of reinterpretive passive-aggression that is fairly common in the discourse at present. It seems to be a modus operandi with the hope that by creating such a term one can subtly (or maybe not so subtly) devalue the subject matter.
Finally, the thing that bothers me is that this is not really international law talk. What it is is US constitutional law talk internally in the United States. Even as dualists I hope they appreciate that the United States retains its international obligations whatever shellgames are played inside the United States. So whatever is the internal excuse for not complying with an international law rule is of no moment even in the dualism vision. From the point of view of the other states party to the system the essence is whether the rule has been articulated and, if so, is the US in compliance with that obligation or in breach.
Maybe they believe that the United States can bully those other countries, but the United States is not so powerful that it can do that. Moreover, Americans are perfectly willing to extract a fee for that hubris – see the reaction in the recent elections to the Iraq hubris.
Moreover, one of the nice things about international law is that it gives the United States actors an opportunity to see how other societies deal with the same issue. So while a creative person can come up with rationalizations that snow others within the US context, it is much more difficult to create such a compelling rationale on the international plane with differing histories and visions of the way things are and should be. And other nations may unmask through their efforts the essential hypocrisy that may be done on an internal plane in their neighbors.
The writers also show the disdain of the uber-class for human rights which gets fatiguing. One can almost feel the palpable shock of having to see that there are others in this world – that the world is not some gated community.
All told, no doubt that group of intellectuals jazzing on about this are having a great time, but I would submit that this – like much scholarship these days in Us foreign relations law dressed up in error as international law – is a form of dreckt – an American dreckt (hope that spelling is right) but still dreckt.
Hope Stanford Law Review enjoys it.
Best,
Ben
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 of creation of customary international law is one dominated by the interaction between these states.
Even if all these states were democracies (or totalitarian regimes) there would be differences among them and persons would attempt to posit their own system as being superior. The differences are of no moment – the essence is how the states interact. At least for now in the state based system we have.
Citizens may or may not elect legislatures and legislatures may or may not make internal law (statute) that coincides with customary international law. Legislatures make such law for the internal operation of a given state. Independent of that internal process, the state interacts with other states and some of that interaction that is non-treaty based is considered as customary international law. Each state is seen by all states as having certain rights and obligations vis a vis other states.
One could imagine citizens getting their states to create supranational legislatures such as the European Union structure where citizens create structures that operate on the international plane in a way different from the state. That kind of process enhances democracy in the development of state practice on the international plane. Like in Europe citizens are both in their country and part of the European structure in a way that steps outside of solely a state based system.
But that kind of superstructure is a rare phenomenon in this time simply because states are not so willing to move to such supranational structures in other parts of the world.
States play with states. Whether states are democracies internally is of no moment in this system. Democratic deficits are of no moment in this system that the states want. Democratic deficit is a slogan for what purpose I am not sure but I suspect it seems mainly to be used in this arena to attempt to undermine customary international law being brought into the internal regime in the United States. It that sense it is merely a political creation.
I must note that one consistent aspect of the article is contempt for human rights regimes of any kind – no externalities justifying them are posited. Yet, this approach seems to overlook the state interest kernel of the origin of human rights in the right of diplomatic protection derived from one’s nationality – wherever one is in the world. Death penalty cases are not the only arena of interest of states as regards their citizens in another country. Once one foreigner is in one’s country there is an externality and his right o fdiplomatic protection are important and can be invoked by his state on the international plane. All the injury to alien customary international law. All the international humanitarian law. All that stuff is playing out here including the traety based law.
Best,
Ben
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 sand.
States play with states. Whether states are democracies internally is of no moment in this system. Democratic deficits are of no moment in this system that the states want. Democratic deficit is a slogan for what purpose I am not sure but I suspect it seems mainly to be used in this arena to attempt to undermine customary international law being brought into the internal regime in the United States.
There’s no need to suspect, it is most certainly their object. However, you casually dismiss the thrust of their argument as being irrelevant. There is no vote among states for customary international law. How do we quantify consensus or customary practice? By the population of the states agreeing? There’s no checks or balances here, just the assertions of those who wish to bend states to their will via global shaming.
If I’m not incorrect, your argument is essentially thus:
The democratic status of participating states in the formation of customary international law is irrelevant, seeing as the end result is the true will of the global population, transcending mere states.
I don’t think most people will find this argument convincing, as there is no actual per-person representation, in that tyrants can speak for large sections of the planet’s population, regardless of individual wishes. Furthermore, the individual citizen sees no reason to bow to the consensus of the globe, seeing as that defeats the whole point of a sovereign state.
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 to the statute and the statute at Article 38 does a reasonable job of synthesizing sources and evidence of international law.
Please look at any public international law textbook in the world and what is described as international law and I would be surprised if any did not consider customary international law part of international law.
We can do this all day long. You are free to consider yourself not bound by customary international law (“no reason to bow”) just as any individual may feel they are not bound by any law.
The question becomes one of whether our state is complying or not with its obligations. Just as the question is whether you are running the red light in violation of traffic law or not. If you are running the red light, you are in violation. If you are not, so be it. And yes – there may or may not be defenses in customary international law that apply – just like in the traffic violation setting.
The enforcement mechanisms are just different from the cop writing you a ticket. But they are there.
Best,
Ben