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Democracy and International Law:

There is now an ongoing and very prominent debate about the extent to which international law should be interpreted to override US domestic law. In this new paper, Northwestern law professor John McGinnis and I argue that the debate so far overlooks an important consideration: the undemocratic nature of the political processes by which most international law is generated. Here's an excerpt from 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.

In this paper we try to combine John McGinnis' expertise in international law with my knowledge of democratic theory. Whether we have suceeded in getting the best of both worlds or have instead combined the worst is for readers to judge!

ThirdCircuitLawyer (mail):
I don't think anyone who favors the use of international law to trump U.S. law claims that this use actually furthers democracy.
9.12.2006 2:58am
Ilya Somin:
I don't think anyone who favors the use of international law to trump U.S. law claims that this use actually furthers democracy.

Perhaps not. But they tend to ignore the fact that it undermines it. They also neglect the impact of lack of democratic accountability on the substantive quality of international law.
9.12.2006 3:04am
Zach (mail):
If you get a chance, could you discuss the peculiar EU lawmaking procedure sometime? That's always seemed to me to be a peculiarly perverse case of democratic deficit -- at the time of the French referenda, I recall reading that legislators actually have a very limited ability to originate legislation.
9.12.2006 3:10am
Lev:

the debate so far overlooks an important consideration: the undemocratic nature of the political processes by which most international law is generated


This is hard to believe, that something so basic has been overlooked so far in the debate.
9.12.2006 3:23am
Thief (mail) (www):
This is hard to believe, that something so basic has been overlooked so far in the debate.

Believe it. Most of the people pushing this kind of international law (Fonte called them "transnational progressivists"), if their writings are to be believed, seem to think that real democracy is the first step on a downward slide to fascism, and that in order to forestall that, the people must never, ever, be allowed to have any real influence over the political (and hence law-making) process.
9.12.2006 3:47am
steve (mail):
But they tend to ignore the fact that it undermines it.

Of course, nothing undermines democracy more than bad laws
enacted under a democracy: Alien and Sedition laws, slavery
sanctioned in the US Constitution, Jim Crow, etc.
9.12.2006 6:43am
PersonFromPorlock:
Isn't the reality here that foreign laws, not having been passed by competent (i.e., US) authority, are simply out of reach for US courts? The fact that an act has been passed by, say, the Icelandic Thing no more makes it a law here than its being decreed in a New York Times editorial would.

Although, come to think of it, the fans of foreign law would probably want that too, eventually.
9.12.2006 9:07am
Richard Aubrey (mail):
Democracy IS the problem. Foreign/international law won't take no stuff from Joe Lunchbucket about how Joe wants to live his life.

The elites are annoyed Joe goes on about his business, ignoring his betters.

Something Must Be Done.
9.12.2006 9:23am
MDJD2B (mail):
In the United States and other common law countries, most private law is made by courts. The influence of democratic processes on judicial decisions is so remote as to make a mockery of the proposition that this law is arraved at through a democratic process.

That being said, legislatures have the chance to change bad judicial dicisions, and frequently legislate to this effect.
9.12.2006 9:55am
Hoosier:
There appears to me--admittedly casual observer--to be more critical focus upon the unconstitutionality of certain international law, as applied to Americans. The International War Crimes tribunal, for example: Americans indicted and handed over for trial by this country would not be protected by constitutional due-process gurantees. Can Congress assent to this jurisdiction without raising Amendment V issues? That sort of thing.

I find this convincing in a number of cases. But, rhetorically, people respond more to the language of democracy than constitutionality. So thanks for the article.
9.12.2006 10:21am
Houston Lawyer:
Personally, I don't care if everyone in Europe votes for a law. As an American, I am subject to laws passed by Congress and state and local laws. I should not be subject to any other laws as long as I remain in US Jurisdiction.
9.12.2006 11:47am
Pete Freans (mail):
I quickly scanned your article and I look forward to reading it's entirety tonight.

You write: The ICCPR and related treaties could be used to censor debate over racial, religious, and political issues all over the world.

Great point. I think the recent litigation between French officials and Yahoo's attempts to sell Nazi memorabilia on its auction site underscores what's at stake in your argument. As you know, the French government is not only demanding that Yahoo not sell Nazi memorabilia on its site, but it is demanding that Yahoo prevent French citizens from accessing such auctions. This sort of overreaching would clearly not pass constitutional muster in the States. While the Yahoo case doesn't technically involve international law in the strict sense, I believe it shows how our laws (and the culture that's inherently tied to them) are often seen as an aggressive imposition of our values on foreign states. I believe the most recent development has the 9th Circuit tossing the case out on technical grounds. The Court did mention however the importance of our First Amendment jurisprudence outweighing the imposition of a foreign order and its enforceability here in the States.

(Incidentally, I happen to enjoy Ms. Fallaci' work as you mention in your article; she reminds me of an Italian version of Ann Coulter.)

The pitfalls of incorporating international law is clear; it's frequently used as a weapon to neutralize or "tame" the United States as a modern day Hegemony (appropriate terminology you allude to in your article). We certainly shouldn't consider it in order to allow foreign entities to level the playing field against us. Recent Supreme Court jurisprudence suggests that the U.S. is somehow provincial in its thinking and that we should join the international community, whatever that means. Without exaggerating the point, I'm afraid this sort of deference - based in part on "superpower guilt"- places U.S. legal and financial interests in jeopardy.
9.12.2006 12:07pm
Mark Field (mail):
The principal criticism I see here is that foreign laws often are made by indirectly, through what I'll loosely call administrative agencies or through undemocratic governments themselves.

The initial design, or perhaps better, intent of the Constitution had "the people" represented in the House and states represented in the Senate. Assuming that the Senate had ever actually functioned as intended (it didn't), would that have made our political process illegitimate?

Another question: to what extent are judges who use foreign law using the law per se rather than the reasoning which justifies the law? The latter seems a perfectly legitimate source for legal reasoning.
9.12.2006 12:51pm
fooburger (mail) (www):
All I can say is 'DUH!'.

I mean really, is this news to the legal community? Are they that far removed from politics as to not realize that just laws are mandates of the people, not mandates of agreements between dictators?

I find it difficult to believe that something so basic is lost upon the legal community. I mean I can understand that the legal counsel for say, the ISM or other far left organizations, may not be aware of this, but the 95% case must be.
9.12.2006 12:51pm
elChato (mail):
I wonder if the "international constitutionalists" on the US Supreme Court will cite with approval England's modification to their 800-year-old double jeopardy law, the next time a double-jeopardy case goes to the US Supreme Court?
9.12.2006 2:32pm
SeaLawyer:
A man walks into a bar and grabs a woman's ass, she turns around and slaps him. She is fighting for her rights. A man walks into a bar and grabs a man's ass. He turns around and punches him. He is a homo-phobe.
9.12.2006 3:15pm
SeaLawyer:
Sorry that last post was meant to be in a different thread.
9.12.2006 3:19pm
dick thompson (mail):
My whole problem with international law is that it is so undefined. What is the source of the law, how can it be amended, who determines what constitutes the basis for whether you are assumed guilty or innocent, what standards are in place for the judges and lawyers, who do you appeal to, who is charged with executing the sentences, who decides which judges from which countries can handle the cases, where is the text of the law. I know this sounds like a case against the international courts but what is the use of the law unless it can be tried and enforced. Having a basis for decisions is one thing, using the reasoning behind the laws is another. I can understand the second, I really don't see the first. Since I am a citizen of this country and swear fealty to this country then my laws should be sourced in this country. I should not be subject to the laws based in Uganda to be enforced in the USA just as I would not expect Uganda to base its laws on what the US says.
9.12.2006 3:33pm
PersonFromPorlock:
I screwed up, reading "international" as "foreign." But I don't think it substantially changes my argument, which is that laws not passed by US legislatures are no laws at all in US courts.
9.12.2006 3:38pm
fiddler:
PersonFromPorlock: Article VI of the Constitution stipulates that "...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...". "Under the Authority of the US" I'd interpret (IANAL, German, too) as ratified by Congress, which holds said authority. IOW, such treaties, even if negotiated without much chance of input by "we the people" (can't that in all honesty be said of most domestic law-making as well?), would indeed have been "passed by US legislature".
9.12.2006 4:31pm
Barbara Skolaut (mail):
I don't think anyone who favors the use of international law to trump U.S. law claims that this use actually furthers democracy.

Perhaps not. But they tend to ignore the fact that it undermines it.

Are you sure it's just ignorance, Ilya?

/cynic
9.12.2006 5:00pm
PersonFromPorlock:
fiddler:

I think we're talking about 'international' laws which have not been ratified by the Senate, i.e., the EU passes a law which an American court then reaches out to cite in an American case.
9.12.2006 5:50pm
Lev:

fiddler:
PersonFromPorlock: Article VI of the Constitution stipulates that "...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...". "Under the Authority of the US"


Why do you people always bowderlize and dowdify that section? Why don't you people ever quote the whole sentence? Why do you people, start in the middle of the sentence? Why don't you people ever include the beginning of the sentence?

Of course, it is because it is too inconvenient for your propagandistically destructive position.


The Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;


Which has priority? Treaties? I don't think so.
9.12.2006 7:15pm
fiddler:
PersonFromPorlock:
I think we're talking about 'international' laws which have not been ratified by the Senate, i.e., the EU passes a law which an American court then reaches out to cite in an American case.

I thought we were talking about both ratified and unratified (by Congress) international laws; I was obviously trying to deal with the former.
As for the latter, it seems obvious to me that treaties that have not been ratified have no legal power in the respective country, but why should that prevent a court from considering them, or the reasoning behind those treaties? Courts, just like ordinary persons, use ways of general reasoning all the time that have never been codified into law. E.g., when determining monetary damages, tax evasion cases, and so on, mathematics is used, which has certainly never been enacted by Congress. Etc., etc.

Lev: I'm relatively new here, and will for once assume you're not a troll. I'll also overlook that even you couldn't bring yourself to quoting the entire sentence, as you demand I should've. (Hint: it goes on after the semicolon.)
I've grown a habit on the 'net to try and quote only relevant parts of whatever I'm quoting from. The first part of the sentence was simply not relevant in this context. I wasn't trying to infer any order of priority from this. You did. If Congress passed a law or ratified a treaty that conflicted with another law, or the Constitution, Congress would've made a blunder. I was, for argument's sake, assuming they didn't, so the issue of priority doesn't arise in the first place. It only arises in the case that a bill or the conduct of the executive branch conflicts with existing, ratified treaties. I'm thinking in terms of "first come, first served" here. Obviously you don't. If that makes you need to resort to ad hominems (ad homini?), oh well. I've seen worse *shrug*.
9.12.2006 8:44pm
Lev:
fiddler

Uh huh.

Somin: There is now an ongoing and very prominent debate about the extent to which international law should be interpreted to override US domestic law.


You: Article VI of the Constitution stipulates that "...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...".
9.12.2006 11:53pm
Lev:
I wonder what button I pressed for that.

fiddler

Uh huh.


Somin: There is now an ongoing and very prominent debate about the extent to which international law should be interpreted to override US domestic law.



You: Article VI of the Constitution stipulates that "...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...".


Your implication, in context, by your omission, is that treaties override US domestic law, and US domestic law includes the Constitution. And that is illustrated by your comment:


If Congress passed a law or ratified a treaty that conflicted with another law, or the Constitution, Congress would've made a blunder. I was, for argument's sake, assuming they didn't, so the issue of priority doesn't arise in the first place. It only arises in the case that a bill or the conduct of the executive branch conflicts with existing, ratified treaties.


The issue of priority arises in that case if a bill or the conduct of the executive branch conflicts with treaty in question but is in accord with The Constitution and the Laws of the United States which shall be made in Pursuance thereof. And also, previous treaties.


I'll also overlook that even you couldn't bring yourself to quoting the entire sentence, as you demand I should've. (Hint: it goes on after the semicolon.)


Instead of a gratuitously irrelevant comment, why don't you include what remaining unquoted part of the sentence you feel is relevant that I left out, as I pointed out to you what remaining unquoted part I thought was relevant that you left out.
9.13.2006 12:07am
Sparticus (mail):
Can anybody say, "Constitutional REPUBLIC"! We are not a Democracy as most have been touting. Our national identity is being destroyed every time people try to spout such a term. Even from our President. Anyone who say's we are a democracy should go back to school and read our Founding Fathers' arguments. To have me set the record straight is a waste of my time and your lack of respect for our laws &countries origins. How long will our Republic last with such careless use of describing our nation to other countries? People/citizens/fellow patriots, please, consider the danger with such a description of our unique heritage. Our brave soldiers are fighting for our way of life, and it is not for a democracy! I hope all who use the "D" word will take time to remember Thomas Jeffersons' answer when asked what kind of government we were given. If you don't know the answer, please stay out of politics and law. Our Republic might last another 230 years. We need citizens not clients
9.13.2006 12:19am
fiddler:
Lev:

Of course, it is because it is too inconvenient for your propagandistically destructive position.
,

There's the button you pressed. It's probably my own fault for not being used to gratuitious assaults from someone who doesn't know me a bit, but instantly thinks he does. Can we behave like grown-ups now?

Again, by my omission I was not trying to claim that "treaties override domestic law", at least not in such sweeping terms. Clearly the Constitution is the supremest of the "supreme laws of the land" ("in Pursuance thereof", "under the Authority"), but I don't see either treaties or "ordinary" laws having general priority over the other.
In my view, precedence gives priority, not the fact that a particular piece of law came into being in the form of an international treaty, which Congress, after all, had been free to deliberate and ratify or not.

The conduct of the executive branch, even the President, is always subordinate to the law, as SCOTUS made clear in Hamdi.

If a bill (apart from amendmends to the Constitution) conflicts with existing legislation, including treaties, I would think the bill can't be passed unless the pre-existing laws are explicitly amended or repealed. In the case of treaties that would involve re-negotiations with the other parties. I'd agree that's not the most practical or convenient way, but if any party to a treaty could willy-nilly amend it unilaterally because to do so is seen as advantageous for the party, it wouldn't make sense to have such treaties in the first place.
Perhaps it's useful to think of a piece of domestic law as a sort of treaty, too: a treaty between members of Congress. No one Representative or Senator can by his own glorious self alter existing law, regardless how advantageous it might seem for his particular constituency.
9.13.2006 1:01pm