Is International Law Democratic?

Question: Is International Law Democratic Enough?

Kal Raustiala: No, I don’t think it’s democratic enough but it’s a double-edged sword. What you want to do--  One of the problems that has plagued the law-making process over the last I’d say at least 25 years has been a desire to have more democracy, to allow people and their groups, not just their governments but individuals, civil society, to play a role in creating let’s say the Kyoto Protocol on Climate Change. And that’s all well and good but it only works well if all groups have a seat at the table, and one of the big concerns is that in--  There are several but one is groups from the West, from rich countries, are going to be best situated to go and influence what happens in these treaty-making processes whereas groups from the South, meaning India and Sub-Saharan Africa, they don’t have that capacity. They don’t have the ability. They don’t have the money. All right. So there’s a democracy problem in that sense, which is not so different from what we have in our domestic context but it’s more pronounced, but that said there’s been a real push to incorporate nongovernmental organizations and to allow them to play a role in the diplomatic world and that was not the case in the past. So I think those are all moves to make this international legal process look a little bit more like the domestic process. Now it’s not perfect. Congress isn’t perfect but we allow lobbyists to play a role in part ‘cause we think they have something valuable to say, not just lobbyists in the sense of people who are greasing congressmen but lobbyists in the sense of groups who want to come and use their expertise. And so that process is unfolding at the international level in a way that I think is generally positive.

Question: How does international law hold states accountable?

Kal Raustiala:  Sure. Well, one of the big concerns--  I mentioned about trying to figure out what level of particular issue so schooling--  Should that be a state, local issue?  Should it be a federal issue?  Should it be an international issue?  You’ve got this question and one of the reasons that you might want to allocate an issue to a different level of governance in part turns on questions of accountability and we want to be able to hold- normally we want to be able to hold our politicians accountable, our leaders accountable, the decision makers. And so when you talk about international law one of the big points of resistance related to the concern about sovereignty is a concern that they’re unaccountable, kind of faceless bureaucrats off in some place. So the World Trade Organization gets attacked for this all the time on the grounds that their court--they have this court that decides disputes--their court is kind of hidden away in Geneva and totally unaccountable to the people who are being affected by their decisions, and that is a legitimate concern. Now how do you solve that?  Well, in our domestic context we solve it in a couple of ways. One is we often build in administrative procedures to the process of rule making so that people have notice and the ability to comment and the ability to use political pressure to shift the rule in a direction that they like. So we build in a whole administrative process to allow the public to hear- to get its voice heard. It’s a little harder to do that internationally and that cuts against the traditional grain of international law, which is state to state, not individuals. And the other thing to bear in mind is that we often don’t really want accountability. A good example would be courts in this country. Federal judges have life tenure and the reason they have life tenure is precisely because we don’t want them to be accountable. Ben Bernanke is not accountable to Congress when he sets or the fed open market committee sets the interest rate and we’ve done that on purpose ‘cause we don’t want them to be accountable. We want them to be free of political pressure to do what they think is right, and so in many cases accountability is a little bit of a problem. It’s not always something that you want. Now in international law that’s less common. It’s--  The situations in which you don’t want accountability are more rare but I just mention that
because the question of accountability is such a common one and I think it’s easy to assume you always want more accountability, but that’s not actually the case.

Question: Why is there reluctance to embrace international law?

Kal Raustiala:  The concern about international law that is- I think is so pervasive particularly in the U.S. is again a concern about sovereignty losing control, the fact that we might be losing control to these- the black helicopters that the United Nations has, and I think one of the things that’s important to recognize is that in a globalizing world, in a world that’s just so much more integrated than it was even 40, 50 years ago, is that we’re already losing control in a lot of ways. Right. We’re already necessarily engaged with lots of other countries, lots of other entities around the world, and so international law provides a framework to manage that. So I guess I would sort of turn the image on its head a little bit and say it’s not so much that we’re giving something up by joining the United Nations. In fact, we personally in the United States gain an enormous amount from the United Nations, but it’s also that we have no other choice. Right. We’re all--  We’re part--  Unless we want to be North Korea and isolate ourselves, we’re part of this larger global community and we want some rules of the road and that’s really what international law is about. Now it’s a fair question to ask whether more rules of the road are better. How many rules do you really need?  And I think most international lawyers have this belief that we ought to have more international law all the time; more is always better. I don’t think that’s true but, that said, there is an enormous scope for creating these rules and in general I think in this country
there is a resistance that is somewhat unwarranted. And you particularly see that on the Republican side though again it’s not limited to the right.

Question:What issues are better suited to diplomacy?

Kal Raustiala:  Yeah, I think there are, and honestly there’s- it’s a spectrum. Right. So when you’re creating new international law it’s a diplomatic process. Initially, you’re negotiating and then you agree to rules so there’s obviously a spectrum but I think there are certain issues of national security, issues of war and peace. We certainly have a lot of legal rules and they play an important role but there are some things that we don’t want to have to legalize. We want to have some flexibility and so if you look at something like the UN Charter and the way the security council operates, one of the things that the security council- one of the things that the framers of the UN Charter did is to grant a lot of power to the security council and specifically to what we know as the P5, the permanent 5 members; we are one of them, and that’s--  The security council has essentially unreviewable power. It can decide--  It can authorize an invasion. It can authorize sanctions. They do all kinds of things and it’s not really bound by any legal rules. There’s a kind of arcane debate about the degree to which that’s true but generally speaking it’s totally free and that’s a nod to the power realities that you need to recognize power and you need to give scope for diplomatic horse trading and you can’t have everything be super legalized. So I think at the international level there are plenty of security questions that fall in to that category.

Raustalia addresses the two most common concerns about international law.

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