Is International Law Democratic?
Kal Raustiala writes and teaches in the areas of international law and international relations. He holds a joint appointment between the UCLA Law School and the UCLA International Institute, where he teaches in the Program on Global Studies. He is also director of the UCLA Ronald W. Burkle Center for International Relations (click here to read about this appointment). The Burkle Center is UCLA's primary academic unit that fosters interdisciplinary research and policy-oriented teaching on the role of the United States in global cooperation and conflict, and military, political, social and economic affairs.
Professor Raustiala's research focuses on international cooperation and conflict in areas such as environment, trade, armed conflict, dispute resolution, and intellectual property. Recent publications include "The Global Struggle Over Geographic Indications," European Journal of International Law (2007), "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design" (with Chris Sprigman), Virginia Law Review (2006) and "Form and Substance in International Agreements", American Journal of International Law (2005), which won the 2005 Francis Deak Prize from the American Society of International Law. His current book about the extraterritorial reach of American law, Does the Constitution Follow the Flag?, will be published by Oxford University Press in May 2009.
Professor Raustiala has been a visiting professor at Harvard Law School, Columbia Law School, Princeton University, and the University of Chicago Law School. Prior to coming to UCLA he was a research fellow in the Foreign Policy Studies Program at The Brookings Institution, a Peccei Scholar at the International Institute for Applied Systems, and an assistant professor of politics at Brandeis University. A member of the Council on Foreign Relations and editorial board of International Organization, he is a frequent media contributor whose writing has been featured in the New York Times, the Wall Street Journal, the Financial Times, the New Republic, the New Yorker, the International Herald Tribune and Le Monde.
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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Political division is nothing new. Throughout American history there have been numerous flare ups in which the political arena was more than just tense but incideniary. In a letter addressed to William Hamilton in 1800, Thomas Jefferson once lamented about how an emotional fervor had swept over the populace in regards to a certain political issue at the time. It disturbed him greatly to see how these political issues seemed to seep into every area of life and even affect people's interpersonal relationships. At one point in the letter he states:
"I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend."
Today, we Americans find ourselves in a similar situation, with our political environment even more splintered due to a number of factors. The advent of mass digital media, siloed identity-driven political groups, and a societal lack of understanding of basic discursive fundamentals all contribute to the problem.
Civil discourse has fallen to an all time low.
The question that the American populace needs to ask itself now is: how do we fix it?
Discursive fundamentals need to be taught to preserve free expression
In a 2017 Free Speech and Tolerance Survey by Cato, it was found that 71% of Americans believe that political correctness had silenced important discussions necessary to our society. Many have pointed to draconian university policies regarding political correctness as a contributing factor to this phenomenon.
It's a great irony that, colleges, once true bastions of free-speech, counterculture and progressiveness, have now devolved into reactionary tribal politics.
Many years ago, one could count on the fact that universities would be the first places where you could espouse and debate any controversial idea without consequence. The decline of staple subjects that deal with the wisdom of the ancients, historical reference points, and civic discourse could be to blame for this exaggerated partisanship boiling on campuses.
Young people seeking an education are given a disservice when fed biased ideology, even if such ideology is presented with the best of intentions. Politics are but one small sliver for society and the human condition at large. Universities would do well to instead teach the principles of healthy discourse and engagement across the ideological spectrum.
The fundamentals of logic, debate and the rich artistic heritage of western civilization need to be the central focus of an education. They help to create a well-rounded citizen that can deal with controversial political issues.
It has been found that in the abstract, college students generally support and endorse the first amendment, but there's a catch when it comes to actually practicing it. This was explored in a Gallup survey titled: Free Expression on Campus: What college students think about First amendment issues.
In their findings the authors state:
"The vast majority say free speech is important to democracy and favor an open learning environment that promotes the airing of a wide variety of ideas. However, the actions of some students in recent years — from milder actions such as claiming to be threatened by messages written in chalk promoting Trump's candidacy to the most extreme acts of engaging in violence to stop attempted speeches — raise issues of just how committed college students are to
upholding First Amendment ideals.
Most college students do not condone more aggressive actions to squelch speech, like violence and shouting down speakers, although there are some who do. However, students do support many policies or actions that place limits on speech, including free speech zones, speech codes and campus prohibitions on hate speech, suggesting that their commitment to free speech has limits. As one example, barely a majority think handing out literature on controversial issues is "always acceptable."
With this in mind, the problems seen on college campuses are also being seen on a whole through other pockets of society and regular everyday civic discourse. Look no further than the dreaded and cliche prospect of political discussion at Thanksgiving dinner.
Talking politics at Thanksgiving dinner
As a result of this increased tribalization of views, it's becoming increasingly more difficult to engage in polite conversation with people possessing opposing viewpoints. The authors of a recent Hidden Tribes study broke down the political "tribes" in which many find themselves in:
- Progressive Activists: younger, highly engaged, secular, cosmopolitan, angry.
- Traditional Liberals: older, retired, open to compromise, rational, cautious.
- Passive Liberals: unhappy, insecure, distrustful, disillusioned.
- Politically Disengaged: young, low income, distrustful, detached, patriotic, conspiratorial
- Moderates: engaged, civic-minded, middle-of-the-road, pessimistic, Protestant.
- Traditional Conservatives: religious, middle class, patriotic, moralistic.
- Devoted Conservatives: white, retired, highly engaged, uncompromising,
Understanding these different viewpoints and the hidden tribes we may belong to will be essential in having conversations with those we disagree with. This might just come to a head when it's Thanksgiving and you have a mix of many different personalities, ages, and viewpoints.
It's interesting to note the authors found that:
"Tribe membership shows strong reliability in predicting views across different political topics."
You'll find that depending on what group you identify with, that nearly 100 percent of the time you'll believe in the same way the rest of your group constituents do.
Here are some statistics on differing viewpoints according to political party:
- 51% of staunch liberals say it's "morally acceptable" to punch Nazis.
- 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
- 51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.
- 65% of Republicans say NFL players should be fired if they refuse to stand for the anthem.
- 58% of Democrats say employers should punish employees for offensive Facebook posts.
- 47% of Republicans favor bans on building new mosques.
Understanding the fact that tribal membership indicates what you believe, can help you return to the fundamentals for proper political engagement
Here are some guidelines for civic discourse that might come in handy:
- Avoid logical fallacies. Essentially at the core, a logical fallacy is anything that detracts from the debate and seeks to attack the person rather than the idea and stray from the topic at hand.
- Practice inclusion and listen to who you're speaking to.
- Have the idea that there is nothing out of bounds for inquiry or conversation once you get down to an even stronger or new perspective of whatever you were discussing.
- Keep in mind the maxim of : Do not listen with the intent to reply. But with the intent to understand.
- We're not trying to proselytize nor shout others down with our rhetoric, but come to understand one another again.
- If we're tied too closely to some in-group we no longer become an individual but a clone of someone else's ideology.
Civic discourse in the divisive age
Debate and civic discourse is inherently messy. Add into the mix an ignorance of history, rabid politicization and debased political discourse, you can see that it will be very difficult in mending this discursive staple of a functional civilization.
There is still hope that this great divide can be mended, because it has to be. The Hidden Tribes authors at one point state:
"In the era of social media and partisan news outlets, America's differences have become
dangerously tribal, fueled by a culture of outrage and taking offense. For the combatants,
the other side can no longer be tolerated, and no price is too high to defeat them.
These tensions are poisoning personal relationships, consuming our politics and
putting our democracy in peril.
Once a country has become tribalized, debates about contested issues from
immigration and trade to economic management, climate change and national security,
become shaped by larger tribal identities. Policy debate gives way to tribal conflicts.
Polarization and tribalism are self-reinforcing and will likely continue to accelerate.
The work of rebuilding our fragmented society needs to start now. It extends from
re-connecting people across the lines of division in local communities all the way to
building a renewed sense of national identity: a bigger story of us."
We need to start teaching people how to approach subjects from less of an emotional or baseless educational bias or identity, especially in the event that the subject matter could be construed to be controversial or uncomfortable.
This will be the beginning of a new era of understanding, inclusion and the defeat of regressive philosophies that threaten the core of our nation and civilization.
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