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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. THE RISE AND COMPOSITION OF RAW INTERNATIONAL LAW A. Reasons for the Rise of Raw International Law 1. Global spillover effects 2. Universalism 3. International law as an expression of juristocracy B. The Components of Raw International Law 1. The use of raw international law in constitutional interpretation 2. Customary international law as our law 3. Construing statutes to conform with international law II. THE DEMOCRACY DEFICIT OF RAW INTERNATIONAL LAW A. Why the Democracy Deficit Matters B. The Nature of Customary International Law C. The Democracy Deficit of the Modern Conception of Customary International Law 1. The role of publicists 2. The undemocratic sources of modern customary law D. The Democracy Deficit of Classical Customary International Law E. Citizens' Comparative Ignorance of International Law 1. Public knowledge of international legal institutions 2. Comparisons with knowledge of domestic institutions 3. International institutions and information shortcuts a. Party affiliation b. Retrospective voting c. Other shortcuts F. Customary International Law's Potential Threat to Exit Rights 1. International exit rights and democratic accountability 2. The case of restrictions on "hate speech" G. Alternative Process Justifications for International Law 1. Customary international law as efficient custom 2. Customary international law as efficient common law III. THE DOCTRINAL IMPACT OF THE DEFECTS OF INTERNATIONAL LAW A. International Law as a Constitutional Constraint on Domestic Legislation B. International Law as a Default Rule C. International Law as a Constraint on Presidential Power 1. Constraining presidential power flowing from congressional authorization 2. Constraining the President's inherent authority 3. Constraining subordinate executive branch officials D. International Law as a Constraint on State Law IV. AMERICAN LAW AS BETTER THAN INTERNATIONAL LAW FOR THE REST OF THE WORLD A. Situations in Which U.S. Law Has No Direct Spillovers B. Norms with Spillover Effects 1. Providing international public goods a. International legal norms as public goods b. Raw international law and the production of international public goods c. American incentives to provide international public goods 2. Providing private goods for citizens of other nations CONCLUSION
INTRODUCTION
As globalization runs its course, the domestic world is becoming full of international law. One of the mechanisms by which international law penetrates domestic law is largely unproblematic: our own political actors--Congress and the President through statutes, or the Senate and President through treaties--can incorporate international law into the domestic legal order. But international law now may enter into the domestic sphere in more controversial ways. First, some Supreme Court Justices have suggested that the Court should use international law as a source for construing the U.S. Constitution, and the Court itself has begun to use this interpretative strategy to a limited degree. (1) Such constructions could lead to the invalidation of domestic laws. Second, advocates of customary international law argue for its direct incorporation into domestic law in order to constrain federal and state governments. (2) Finally, others suggest that important domestic statutes be construed in light of customary international law, even if such interpretations prevent the President and his subordinates from exercising otherwise lawful discretionary authority. (3)
We use the term "raw international law" to denote this latter kind of international law, which has not been endorsed by the domestic political process. Raw international law is distinguished from "domesticated international law," which our political branches have expressly made part of our law through the legislative process; as when the President and Senate enact treaties or when Congress by statute decides to incorporate norms of customary international law into American law.
The penetration of raw international law into the domestic sphere has led to extensive debate over the desirability of this development. (4) But the existing literature has largely neglected a major disadvantage of international law relative to domestic law: the lack of democratic control over its content. We call this the "democracy deficit" of international law. (5) This Article is the first to comprehensively analyze the democracy deficit. Finding that a serious democracy deficit exists, it also shows that the processes that generate international law do not make up for the deficit through other procedural virtues. (6)
Our reason for focusing on the democracy deficit is straightforward: as we discuss at greater length below, democracy is the political process most likely to generate beneficial norms. (7) Even if democratic control is only one of several normative standards by which to judge the desirability of international law, (8) it remains central to any analysis of its consequences. Holding constant other considerations, if international law has a comparative democracy deficit, this deficit substantially reduces its attractiveness relative to domestic law. If international law suffers from a democracy deficit relative to domestic law, and there is no other compelling process justification to compensate for this defect, the burden of proof shifts to those who would like to use international law to displace domestic law and constrain domestic political actors.
We then review a broad range of doctrinal arguments defending the incorporation of raw international law into domestic jurisprudence. We conclude that the low quality of the political processes generating international law provides a strong argument against allowing raw international law to become part of domestic law in any respect. Not only does the democracy deficit undermine the utility of raw international law for Americans, (9) it also undermines it for foreigners. American law, by contrast, is not only likely to be beneficial for Americans because of its democratic origin, but in many areas is also likely to benefit foreigners. Because of the position of the United States as the dominant economic and military power in the international system, it has strong incentives to provide international public goods that benefit foreigners as well as Americans. In some situations, it even has incentives to provide "private goods" for foreigners as well.
The aftermath of the Supreme Court's decision in Hamdan v. Rumsfeld (10) is likely to make the question of the status of raw international law in domestic jurisprudence even more salient. In Hamdan, the Court relied on international law to hold that the President lacked the authority to establish military commissions to try prisoners held at Guantanamo Bay for war crimes. But it invoked international law only because it held that Article 21 of the Uniform Code of Military Justice--a statute enacted by Congress--conditioned the use of the tribunal on compliance with international law. (11) Thus, the Court relied on domesticated international law, not raw international law, in reaching its decision.
But confining reliance on international law to that which is endorsed by the political branches is unlikely to resolve the issues relating to the War on Terror set to arise in the wake of Hamdan outside the context of military commissions. Examples of areas in which scholars have accused the Bush Administration of violating international law include the rendition of suspects, (12) the legality of preemptive war, (13) and the treatment of detainees. (14) Moreover, the relevance of international law is not limited to the War on Terror. Emerging international law norms on a wide range of issues, such as hate speech, (15) the death penalty, (16) and labor unions, (17) may conflict with domestic legal norms. Applying raw international law to create domestic rules of decision would have ever farther-reaching consequences as the scope of international law grows.
In concluding that raw international law should not displace domestic law because of its substantial democracy deficit, we provide a new justification for "dualism"--the proposition that international law and domestic law control only their respective legal spheres. (18) Because American law derives from a political process and geopolitical position that is likely to benefit both Americans and foreigners more than raw international law, we also show that strict dualism is particularly suitable for the legal regime of a modern democratic superpower. (19)
To argue in favor of strict dualism, however, does not commit us to any particular distribution of power among the branches of the U.S. government. Our conclusions are distinct from those of Bush Administration supporters who claim that the President should have nearly unlimited power to interpret or ignore international law as he sees fit. (20) To the extent that international law is incorporated into domestic law through treaty ratification or enactment in a congressional statute, we see no reason to give the President unlimited authority to set it aside, or even very substantial interpretative deference. Treaty ratification by the Senate or incorporation of international law by statute cures the democracy deficit that we find in raw international law. And nothing in our approach prevents the political branches from incorporating international law into our law through treaty or statute.
In Part I, we review the principal reasons for the rise of raw international law. First, international law may be a solution to the growing coordination problems caused by global spillover effects. Second, with the demise of totalitarianism, the belief that all people everywhere have rights has given rise to a notion of universalism, and international law seems the natural mechanism to implement universal rules. Third, raw international law may be part of a worldwide trend by which elites seek to develop legal mechanisms to restrain democracy. These powerful impetuses for raw international law are likely to endure, making the status of such law a central legal question for the rest of this century.
We then describe the different doctrinal categories in which raw international law may find expression. First, raw international law may be used as a source of authority to aid in the construction of the U.S. Constitution. Second, it may cross into the domestic sphere as customary international law binding on states, the President, and even on Congress. Third, customary international law may be used as a canon of construction for statutes. Even as an interpretative principle, international law may exercise substantial power within domestic law by limiting the President's otherwise lawful discretion and requiring Congress to provide clear statements to avoid its strictures. In all these areas, doctrinal disputes have eluded textual or historical resolution, making a fresh pragmatic approach all the more useful. (21)
Part II presents a comprehensive analysis of the democracy deficit of raw international law. The deficit is inherent in the political processes that "make" international legal rules. Since the Treaty of Westphalia, international law has been constructed from the actions of nation-states, many of which are far from democratic.
Second, according to most theories of international law generation, nation-states do not explicitly agree on many principles that are deemed customary international law. Instead, these rules are inferred from state actions by publicists--such as international law professors--and international courts. Both of these groups are highly unrepresentative and not subject to democratic control, thereby exacerbating the democracy deficit.
Third, customary international law suffers from the problem of the "dead hand." Because of the requirement that international law be made by consensus, our generation finds it difficult to change past international law to meet new conditions, which further reduces the law's quality. Fourth, because international law is more opaque to citizens than domestic law, we argue that it has comparatively high agency costs, reducing its quality and permitting insiders to manipulate it to their advantage. In the long run, international law with global application may also undermine democratic control of government by diminishing the scope of "exit rights," which enable citizens to "vote with their feet" by emigrating from nations with harmful or oppressive policies. (22) Part II ends by focusing on other potential process justifications for international law, including custom and the common law. We show that the processes generating raw international law lack the advantages of the common law or custom that might in the domestic context compensate for a democracy deficit.
Part III discusses how the process defects in the generation of international law militate against its use in interpreting the Constitution, construing statutes, or adopting customary international law as a domestic rule of decision. In particular, we discuss in detail the way in which the low quality of the processes for generating international law counts against using it to displace the decisions of political branches, including Congress, the President, and state legislatures.
Part IV addresses the argument that incorporation of international law into the domestic sphere is necessary to serve the interests of the people of the world as a whole, even if it does not serve the parochial interests of Americans. Even if valid, this claim still does not justify its use in the many cases where U.S. domestic law does not create significant externalities. Defenders of raw international law have claimed that it should displace domestic law even in many situations where there are no real spillover effects. By reaching into areas without substantial negative externalities, international law may actually harm the people of the world by undermining the benefits of international diversity and migration.
But even in situations where externalities are possible, international law may do more harm than good if it is worse than the U.S. law it displaces. U.S. domestic law may in fact be better for the citizens of the world even in spite of externalities. Because of its dominant position in the world economy, the United States has strong incentives to provide both public and private goods for foreign citizens and thus is likely to generate legal norms that facilitate such goods. At the very least, it has better incentives to do so than do the political elites who create raw international law. Foreigners as well as Americans are likely to be better off if we do not allow raw international law to override our domestic legal rules.
I. THE RISE AND COMPOSITION OF RAW INTERNATIONAL LAW
Here, we briefly discuss the reasons for the rise of raw international law in domestic law as well as some of the primary doctrinal components of raw international law. The salience and depth of these reasons show that this movement is likely to be enduring. Similarly, the breadth of the movement to incorporate raw international law into domestic jurisprudence over different doctrinal areas shows its salience to the contemporary development of law.
A. Reasons for the Rise of Raw International Law
The reasons for the increasing use and increasing advocacy of the use of raw international law are complex. But three are worth discussing here. First, globalization is creating a smaller world. More actions of individuals in one nation are likely to affect the welfare of individuals in other nations. International law offers the possibility of creating coordination mechanisms. Second, the idea of universal norms has a more powerful hold than ever on the human imagination, as Western liberalism diffuses globally and all the peoples of the world are continuously visible through the mass media. Finally, the rise of international law may have roots in the domestic struggle for power. It is one means, among many others, by which elites push back against democratization.
1. Global spillover effects
The first reason for the growth of international law within the federal system is similar to one of the arguments used to justify the growth of federal power from the Founding through the New Deal. Just as it was thought by some that the federal government needed to project more authority as the activities of individual states affected other states, so it can be argued that an international regime is needed to project greater authority into our domestic system as the activities of our nation affect other nations. The optimal scope of a legal regime depends on the extent of the spillovers it is meant to regulate. (23) In theory, local government should address only local matters, (24) state governments should address only matters that affect the state's residents, and the federal government should address issues that affect multiple states. By this reasoning, international law Should address international matters, which an economist would describe as activities within nations that impose substantial costs or benefits outside those nations' borders. (25)
Thus, international law may be called upon to regulate those modern-day activities that have transnational effects, which a purely national regime would not have an incentive to take account. (26) Transboundary pollution is a classic example. If human economic activity now creates effects like global warming, economic activity in one nation acutely affects the welfare of citizens in another, and some mechanism is needed to take those effects into account. (27)
However, spillover effects among nation-states may not serve as a complete explanation for the rise of raw international law because many areas in which advocates are most insistent about using raw international law have few concrete externalities. This is true most notably of international human rights law. (28) For instance, the use of international law to attack the application of the death penalty in the United States addresses an issue that has few international spillover effects. The United States imposes the death penalty on crimes committed within its jurisdiction. Accordingly, the U.S. policy on the death penalty has no direct effect on citizens in other nations, except in the rare cases where a foreigner who commits a crime on U.S. soil is sentenced to death as a result. (29)
In addition, the externality model may not serve as a complete explanation for the rise of raw international law because the expanding scope of international regulation itself imposes political transaction costs. For instance, decisionmaking costs increase as the size of the polity is expanded. (30) So too does the danger that the larger jurisdiction will entrench harmful policies over a wider area. Finally, special interests have greater ability to impose costs on others in a larger polity where exit is more difficult. (31) Only an international law sensitive to these costs as well as to the benefits of reducing negative externalities can be justified on economic grounds.
2. Universalism
The rise of universalism may also help explain the rise of raw international law. (32) If human rights are universal, all humans wherever situated on the globe deserve the benefit of them. Much of Western liberalism carries this universalist element. Rights are assumed to be self-evident truths and these truths by their very nature can know no national boundaries. (33) This philosophical impetus to use international law as a vehicle for imposing universal values has no doubt gained strength from the rise of global media. More than ever, we are confronted with events in faraway places on a daily basis. The common humanity of foreigners is much more visible to us than before. (34)
This explanation may have particular resonance in the area of human rights and thus help explain why resort to international law is popular, even in an area where the economic rationale for expanding the scope of international regulation is not plausible. Nevertheless, the universalist explanation for the rise of international law may not be a complete explanation either. Some of those enthusiastic about the expansion of international law are also concerned about imposing Western values and desire to protect cultural diversity. (35) Yet most universal human rights standards derive from the Western political tradition, (36) and practices inconsistent with those standards are crucial elements of many non-Western cultures. Moreover, the expansion of international law has gone well beyond human rights issues. Thus, even the universalist turn in international law, particularly human rights law, may not offer a complete explanation of the rise of international law.
3. International law as an expression of juristocracy
A final explanation for the rise of raw international law may be its attractiveness to groups that are dissatisfied with the outcomes of the domestic political process. Political scientist Ran Hirschl has suggested that political and social elites have reacted to the rise of democracy in the modern world by constructing more powerful and wide-ranging roles for the judiciary, over which they retain substantial influence. (37) Whatever the merits of Hirschl's theory as an explanation for the rise of domestic judicial review, we believe that it has important applications to raw international law.
As discussed below in Part II, international law can be popular with groups seeking political change because its content is not strongly constrained by the domestic legal process. It allows domestic political "losers" to regain some of the ground they have lost. (38)
B. The Components of Raw International Law
We focus on the three most important doctrinal categories by which raw international law can become part of our law. First, raw international law can be used as a rule of construction for interpreting the Constitution. Second, customary international law can generate norms that bind actors in the domestic world. What actors it should bind and to what degree are, as we shall see, matters of heated disagreement. Finally, international law can be invoked as a rule of statutory construction.
We show that in each of these doctrinal areas, the quality of the processes for generating raw international law--and therefore its relative democracy deficit--is central to determining the appropriate scope of the doctrines at issue. We also suggest that doctrine in these areas is not well settled by precedent, historical practice, or the consensus of scholars, and thus would benefit from a reconceptualization that puts the quality of international law front and center in the analysis.
1. The use of raw international law in constitutional interpretation
The Supreme Court has recently used international materials as part of its decisions to invalidate domestic laws. (39) In Roper v. Simmons, the Court cited the Convention on the Rights of the Child as evidence of international consensus on the execution of juveniles. (40) However, the United States never ratified the Convention. (41) In addition, the Court cited the International Covenant on Civil and Political Rights, (42) even though the United States has entered a formal reservation against the Covenant's death penalty provision. (43) Thus, the Court relied on international law material that the political branches expressly refused to incorporate into domestic law.
To be sure, this use of international law is modest and equivocal. The Court cited the Convention as "confirmation" of a decision it based on domestic materials. Moreover, its reference to the Convention may have been less to establish a norm of international law than simply to show a consensus of other nations' practices. But some Supreme Court Justices have expressed enthusiasm for broader uses of international law in their extrajudicial speeches. (44) For example, in a recent speech to the American Society of International Law, Justice Ruth Bader Ginsburg suggested that we refer to international law as one of the "common denominators of basic fairness between the governors and the governed." (45) Many academics are even more enthusiastic and explicit about using international law to ensure that judicial interpretations of the U.S. Constitution reflect the values of the wider world community. Dean Harold Koh of Yale Law School has heralded the death of "nationalist jurisprudence," and has suggested that the time is near when "transnational legal process" will regularly provide precedents to move our own law closer to that embraced by other nations. (46)
Nevertheless the practice of using contemporary international law in constitutional interpretation is hotly contested both within and outside the Court. (47) Under a pragmatic theory of constitutional interpretation that takes account of the consequences of constitutional decisions, (48) our inquiry into the quality of the processes that generate international law is of substantial relevance to evaluating the use of international law as an aid to constitutional construction. (49) If international law's quality is likely to be higher than that of domestic law, then perhaps international law should indeed be a factor in interpreting the Constitution to invalidate domestic law. But if the opposite is true, we should be far more reluctant to use international law to displace our own law.
2. Customary international law as our law
The notion that international law can have direct effect without action by the political branches is best captured in the slogan "international law is part of our law," taken from the Supreme Court's famous decision in The Paquete Habana. (50) Unfortunately, however, scholars disagree about the exact sense in which international law is part of our law. The lack of consensus is not surprising because the legal status of raw international law in the domestic legal system does not rest on the text of the Constitution. To the contrary, the only kind of international law that Article VI makes the "supreme Law of the Land" is a treaty. (51) Moreover, international law has changed greatly since the Founding in its breadth and scope. (52)
Here we briefly summarize the range of views on the status of raw international law in our domestic system and suggest that consideration of the quality of the processes for generating international law may help us resolve the unsettled question of the extent to which customary international law really is part of our law. We move from the most expansive to the least expansive views of the effect of customary international law in our domestic jurisprudence.
The most expansive theory justifying the incorporation of international law into domestic law holds that customary international law--at least in so far as it embodies fundamental norms such as those governing war crimes or torture--cannot be violated by the United States, even with the express authorization of Congress and the President acting in unison. (53)
The more prevalent opinion of scholars, however, is that Congress has the power to override any norm of customary international law by enacting statutes. (54) Under this view, customary international law is a default rule that can be overridden by congressional action. Within this camp, some advocates of international law believe that newly developed norms of international law nevertheless supersede prior inconsistent federal statutes until Congress overrules them. (55) By this rationale, whenever a new norm of international law arises, that norm can be enforced by U.S. courts unless and until Congress chooses to override it. (56)
While there is widespread agreement that Congress can override customary international law, there are a variety of views on the question of whether the President is bound by it. One position holds that customary international law binds the President unless he is exercising constitutionally enumerated powers. (57) Another holds that the President has no independent constitutional authority to violate customary international law and is thus always bound, unless authorized by Congress. (58) A distinct minority of scholars believe that the President has no obligation to follow customary international law whatsoever. (59)
The dominant view also holds that customary international law, as determined by federal courts, can displace state law. (60) Irrespective of Congress's or the President's authority over international law, it is argued that international law remains federal common law and thereby takes precedence over conflicting state law. (61) Recently, some scholars have denied that customary international law has the status of federal law. (62) Under this view, neither the political branches nor the states are bound to follow it. (63)
The quality of raw international law is obviously relevant to the extent to which Congress, the President, or state governments should be bound by customary international law. Our own domestic actors are bound by domestic law. Displacing that authority should require a process that is likely to generate superior legal rules. Yet scholars have failed to focus on the issue of the relative quality of international and domestic law. Instead they focus on historical arguments such as the status of international law at the time of the Framing or the Paquete Habana case itself. (64)
We do not believe either of those types of inquiries is likely to resolve the issue. At the time of the Framing, most of those who understood customary law as part of our law viewed customary law as a species of natural law. (65) For instance, in United States v. La Jeune Eugenie, Justice Story stated that "every doctrine[] that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligation, may theoretically be said to exist in the law of nations." (66) Assuming that natural law exists, it follows that it should trump other law. (67) But if we are generally positivist in our approach to legal interpretation, natural law arguments cannot be used to resolve the relative status of international and domestic law. (68)
Nor does The Paquete Habana (69)--a case from early in the transition towards positivism in American legal interpretation--resolve this question. The Paquete Habana concerned the legality of the seizure of a fishing boat taken off Cuba during a period when the United States had instituted a blockade against Cuba. President McKinley stated in his blockade order that the United States would maintain it "in pursuance of the laws of the United States, and the law of nations applicable to such cases." (70) The owners of the Paquete Habana later sued in federal court, arguing that international law forbade the seizure.
Justice Horace Gray held for the owners. (71) He declared that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." (72) On the other hand, international law would govern only when there is no "controlling executive or legislative act or judicial decision." (73) Thus, Justice Gray incorporated the law of nations into our domestic law, but only insofar as Congress through statutes, the executive through executive acts, and the courts through their own decisions had not displaced that law.
Justice Gray's resolution, however Solomonic, cannot settle the status of customary law by virtue of either its holding or its analytic coherence. Doctrinally, his entire discussion appears to be mere dicta. Those who want to give a greater status to customary international law in the United States by denying the executive (and often Congress as well) the power to override international law have noted that the Court did not find as a matter of fact any such controlling executive act. (74) Less noted is the fact that international law may have had application not by its own force, but by virtue of President McKinley's blockade order endorsing its application. (75) The Paquete Habana thus may not even have involved a question of what we are calling raw international law, but of international law that had been domesticated by one of the political branches.
Beyond its uncertain precedential status, the opinion has an analytic void at its core, at least from a positivist standpoint. (76) If law is made by sovereign command and the Constitution establishes the political branches as sovereign, why does international law that is not fabricated according to the Constitution's established political processes have any governing authority? It is no answer to say that the rule is only governing provisionally, (77) because the Constitution establishes a system in which the federal government must act affirmatively to impose legal regulation on its citizens or displace state law. In the absence of federal law, state law governs. Conversely, if international law is a positive federal rule of decision that should govern within its appropriate sphere, why should a decision of the executive or even Congress be able to trump it? (78)
Particularly given the doctrinal instability in this area, the quality of the process for generating international law is directly relevant to how far customary international law should be incorporated into our law. If international law is generally superior to domestic law, perhaps the President and even Congress should not have the authority to override it. If international law's quality is almost as good as our own domestic law, perhaps it should be given a provisional status subject to overruling by the democratic branches. But if its quality is much lower than that of domestic law, even that provisional status is unjustified.
3. Construing statutes to conform with international law
A final and important mechanism for integrating international law into domestic law is the claim that statutes should be interpreted to be consistent with international law whenever possible. (79) Advocates of this mode of interpretation argue that it gains support from certain venerable precedents--most famously the Charming Betsy case. (80) In the Charming Betsy, the Marshall Court upheld a claim by a Danish citizen that a voyage on his ship did not violate the Nonintercourse Act, because applying that act to him would violate neutrality principles of international law. (81) If this canon of construction were applied to statutes on which government actors rely, the President would be constrained from his claim to act under a statute in violation of international law, unless Congress clearly expressed its intent that he he able to do so....
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