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Volumn 16, Issue 3, 2008, Pages 326-349

Survey article: Constitutional democracy and the rule of international law: Are they compatible?

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EID: 49749117981     PISSN: 09638016     EISSN: 14679760     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2008.00322.x     Document Type: Review
Times cited : (38)

References (39)
  • 2
    • 49749103862 scopus 로고    scopus 로고
    • and The Case for Sovereignty Washington, D.C, American Enterprise Institute Press, 2004, Later we criticize this 'exclusive accountability argument, Rabkin and some others who have been labeled New Sovereigntists may also hold a related, but distinct view: the Austinian-Hobbesian dogma that any genuine polity or any genuine legal system must have a single sovereign source, a publicly identifiable agent that is capable of both resolving any possible issue about what the law requires and of effectively enforcing its judgment in this regard. We believe that the dubiousness of this view has been sufficiently exposed and that it is not necessary to consider it here
    • and The Case for Sovereignty (Washington, D.C.: American Enterprise Institute Press, 2004). Later we criticize this 'exclusive accountability argument'. Rabkin and some others who have been labeled New Sovereigntists may also hold a related, but distinct view: the Austinian-Hobbesian dogma that any genuine polity or any genuine legal system must have a single "sovereign source," a publicly identifiable agent that is capable of both resolving any possible issue about what the law requires and of effectively enforcing its judgment in this regard. We believe that the dubiousness of this view has been sufficiently exposed and that it is not necessary to consider it here.
  • 3
    • 0346443630 scopus 로고    scopus 로고
    • Customary international law as federal common law: A critique of the modern position
    • For the seminal articulation of this view, see
    • For the seminal articulation of this view, see Curtis A. Bradley and Jack L. Goldsmith, "Customary international law as federal common law: a critique of the modern position," Harvard Law Review, 110 (1997), 815-876,
    • (1997) Harvard Law Review , vol.110 , pp. 815-876
    • Bradley, C.A.1    Goldsmith, J.L.2
  • 4
    • 49749088245 scopus 로고    scopus 로고
    • and UN human rights standards and US law: the current illegitimacy of international human rights, Fordham Law Review, 66 (1997), 319-369.
    • and "UN human rights standards and US law: the current illegitimacy of international human rights," Fordham Law Review, 66 (1997), 319-369.
  • 5
    • 0039149960 scopus 로고    scopus 로고
    • See e.g, 2nd ed, Washington, D.C, American Enterprise Institute Press
    • See e.g. Jeremy A. Rabkin, Why Sovereignty Matters, 2nd ed. (Washington, D.C.: American Enterprise Institute Press, 1998);
    • (1998) Why Sovereignty Matters
    • Rabkin, J.A.1
  • 6
    • 0347468599 scopus 로고    scopus 로고
    • Globalism and the Constitution: Treaties, non-self-execution, and the original understanding
    • John C. Yoo, "Globalism and the Constitution: treaties, non-self-execution, and the original understanding," Columbia Law Review, 99 (1999), 1955-2094;
    • (1999) Columbia Law Review , vol.99 , pp. 1955-2094
    • Yoo, J.C.1
  • 8
    • 47249096837 scopus 로고    scopus 로고
    • Democracy-enhancing multilateralism
    • See e.g, Institute for International Law and Justice Working Paper No., New York: New York University Law School, 4
    • See e.g. Robert O. Keohane, Stephen Macedo, and Andrew Moravcsik, "Democracy-enhancing multilateralism," Institute for International Law and Justice Working Paper No. 2007/4 (New York: New York University Law School, 2007);
    • (2007)
    • Keohane, R.O.1    Macedo, S.2    Moravcsik, A.3
  • 10
    • 84928951487 scopus 로고    scopus 로고
    • The legitimacy of international law: A constitutionalist framework of analysis
    • Mattias Kumm, "The legitimacy of international law: a constitutionalist framework of analysis," European Journal of International Law, 15 (2004), 907-31;
    • (2004) European Journal of International Law , vol.15 , pp. 907-931
    • Kumm, M.1
  • 11
    • 49749127192 scopus 로고    scopus 로고
    • Whose constitution(s)? International law, constitutionalism, and democracy
    • ed. J. Dunoff and J. Trachtman forthcoming
    • Samantha Besson, "Whose constitution(s)? International law, constitutionalism, and democracy," Ruling the World: Constitutionalism, International Law and Global Governance, ed. J. Dunoff and J. Trachtman (forthcoming 2008).
    • (2008) Ruling the World: Constitutionalism, International Law and Global Governance
    • Besson, S.1
  • 12
    • 47249096837 scopus 로고    scopus 로고
    • For what may be the best articulation of this second sort of compatibilist view, see
    • For what may be the best articulation of this second sort of compatibilist view, see Keohane, Macedo, and Moravcsik, "Democracy- enhancing multilateralism."
    • Democracy- enhancing multilateralism
    • Keohane, M.1    Moravcsik2
  • 13
    • 49749147784 scopus 로고    scopus 로고
    • The scare quotes here are to emphasize that these are not necessarily egoistic reasons, but rather are reasons that should have force for those who value their own constitutional democracy independently of any cosmopolitan considerations
    • The scare quotes here are to emphasize that these are not necessarily egoistic reasons, but rather are reasons that should have force for those who value their own constitutional democracy independently of any cosmopolitan considerations.
  • 15
    • 49749096292 scopus 로고    scopus 로고
    • This remains true even for well-developed democracies. For instance, in Dudgeon v. United Kingdom, 4 Eur. Ct. H.R. 149 (1981, the issue before the European Court of Human Rights was whether statutes in Northern Ireland criminalizing homosexual conduct (buggery or gross indecency) between consenting adults violated the right to privacy under Article 8 of the European Convention on Human Rights. The criminal statutes in question made such acts punishable by up to life in prison. The Court, however, held that the buggery laws breached Article 8 of the Convention, since there was no pressing social need to justify such a significant violation of privacy and family life. See Lawrence v. Texas, 539 U.S. 558 (2003) for a similar result in the United States. Likewise, in Toonen v. Australia, Case No. 488/1992, U.N. Hum. Rts. Comm, 15th Sess, U.N. Doc. CCPR/C/50/D/488/1992 1994, the United Nations Human Rights Committee struck down criminal prohibitions on homosexua
    • This remains true even for well-developed democracies. For instance, in Dudgeon v. United Kingdom, 4 Eur. Ct. H.R. 149 (1981), the issue before the European Court of Human Rights was whether statutes in Northern Ireland criminalizing homosexual conduct ("buggery" or "gross indecency") between consenting adults violated the right to privacy under Article 8 of the European Convention on Human Rights. The criminal statutes in question made such acts punishable by up to life in prison. The Court, however, held that the buggery laws breached Article 8 of the Convention, since there was no pressing social need to justify such a significant violation of privacy and family life. See Lawrence v. Texas, 539 U.S. 558 (2003) for a similar result in the United States. Likewise, in Toonen v. Australia, Case No. 488/1992, U.N. Hum. Rts. Comm., 15th Sess., U.N. Doc. CCPR/C/50/D/488/1992 (1994), the United Nations Human Rights Committee struck down criminal prohibitions on homosexual activity in Tasmania, holding that the word "sex" should be understood to include sexual orientation within the meaning of the International Covenant on Civil and Political Rights. See generally Keohane, Macedo and Moravcsik, "Democracy-enhancing multilateralism."
  • 16
    • 49749111923 scopus 로고    scopus 로고
    • provide valuable concrete examples
    • Keohane, Macedo and Moravcsik, ibid., provide valuable concrete examples.
    • ibid
    • Keohane, M.1    Moravcsik2
  • 18
    • 85017285588 scopus 로고    scopus 로고
    • Directly deliberative polyarchy
    • See e.g
    • See e.g. Joshua Cohen and Charles Sabel, "Directly deliberative polyarchy," European Law Journal, 3 (1997), 313-42.
    • (1997) European Law Journal , vol.3 , pp. 313-342
    • Cohen, J.1    Sabel, C.2
  • 19
    • 0033482869 scopus 로고    scopus 로고
    • The internal legitimacy of humanitarian intervention
    • and Justice, Legitimacy and Self-determination
    • Allen Buchanan, "The internal legitimacy of humanitarian intervention," The Journal of Political Philosophy, 7 (1999), 71-87 and Justice, Legitimacy and Self-determination.
    • (1999) The Journal of Political Philosophy , vol.7 , pp. 71-87
    • Buchanan, A.1
  • 20
    • 49749141917 scopus 로고    scopus 로고
    • This does not imply that the interests of foreigners ought to be weighed equally with those of citizens. Recognizing that the interests of foreigners ought to be taken into account is compatible with a moderate cosmopolitanism according to which the interests of citizens may be accorded priority
    • This does not imply that the interests of foreigners ought to be weighed equally with those of citizens. Recognizing that the interests of foreigners ought to be taken into account is compatible with a moderate cosmopolitanism according to which the interests of citizens may be accorded priority.
  • 21
    • 15244353938 scopus 로고    scopus 로고
    • Kristen Hessler has argued that democracies have epistemic virtues-in particular, resources for public deliberation-that create a presumption that they should have the authority to interpret human rights norms in their domestic application. This is compatible with the claim that there are circumstances in which the authority of international human rights law should supercede the authority of the state. Kristen Hessler, Resolving interpretive conflicts in international human rights law, The Journal of Political Philosophy, 13 (2005), 29-52.
    • Kristen Hessler has argued that democracies have epistemic virtues-in particular, resources for public deliberation-that create a presumption that they should have the authority to interpret human rights norms in their domestic application. This is compatible with the claim that there are circumstances in which the authority of international human rights law should supercede the authority of the state. Kristen Hessler, "Resolving interpretive conflicts in international human rights law," The Journal of Political Philosophy, 13 (2005), 29-52.
  • 22
    • 49749107762 scopus 로고    scopus 로고
    • At this point an asymmetry between domestic and international law becomes salient. In well-developed domestic legal systems except in cases of rulings by the country's highest court, if a party complains that a law or a court's judgment is simply an instance of arbitrary power in legal guise, there are established legal processes and principles that can be invoked to determine the validity of the complaint. But in international law, or at least in some areas of international law, these legal resources may be lacking and therefore the suspicion that the law is merely a disguise for the rule of power may be hard to dispel. Where this is the case, the claim that the commitment to the rule of law speaks in favor of acknowledging the authority of RIL is less compelling
    • At this point an asymmetry between domestic and international law becomes salient. In well-developed domestic legal systems (except in cases of rulings by the country's highest court), if a party complains that a law or a court's judgment is simply an instance of arbitrary power in legal guise, there are established legal processes and principles that can be invoked to determine the validity of the complaint. But in international law, or at least in some areas of international law, these legal resources may be lacking and therefore the suspicion that the law is merely a disguise for the rule of power may be hard to dispel. Where this is the case, the claim that the commitment to the rule of law speaks in favor of acknowledging the authority of RIL is less compelling.
  • 23
    • 34548085202 scopus 로고    scopus 로고
    • Is international law impartial
    • Stephen Ratner, "Is international law impartial," Legal Theory, 11 (2005), 39-74.
    • (2005) Legal Theory , vol.11 , pp. 39-74
    • Ratner, S.1
  • 25
    • 49749140009 scopus 로고    scopus 로고
    • Note that our claim here is not that democracy precludes a constitution that requires exclusive accountability, but only that there seems to be no reason to assume that a democratic constitution must require exclusive accountability. Hence we are not committed to the view that if the US Constitution requires exclusive accountability, then this shows that it is defective. For a detailed defense of the view that RIL is not in principle incompatible with either the idea of constitutionalism or with that of democracy, see Allen Buchanan and Russell Powell, Fidelity to constitutional democracy and to international law, The Routledge Handbook of International Law, ed. David Armstrong (Cambridge: Cambridge University Press, forthcoming).
    • Note that our claim here is not that democracy precludes a constitution that requires exclusive accountability, but only that there seems to be no reason to assume that a democratic constitution must require exclusive accountability. Hence we are not committed to the view that if the US Constitution requires exclusive accountability, then this shows that it is defective. For a detailed defense of the view that RIL is not in principle incompatible with either the idea of constitutionalism or with that of democracy, see Allen Buchanan and Russell Powell, "Fidelity to constitutional democracy and to international law," The Routledge Handbook of International Law, ed. David Armstrong (Cambridge: Cambridge University Press, forthcoming).
  • 26
    • 49749131103 scopus 로고    scopus 로고
    • See Transcript of discussion between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer on 'The constitutional relevance of foreign court decisions,' American University, Jan. 13, 2005, available at: http://domino.american.edu/AU/media/mediarel.nsf/ 1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument. See also Atkins v. Virginia, 536 US 304 (2002) (Justice Scalia, dissenting); Rabkin, Law Without Nations? and The Case for Sovereignty.
    • See "Transcript of discussion between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer on 'The constitutional relevance of foreign court decisions,'" American University, Jan. 13, 2005, available at: http://domino.american.edu/AU/media/mediarel.nsf/ 1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument. See also Atkins v. Virginia, 536 US 304 (2002) (Justice Scalia, dissenting); Rabkin, Law Without Nations? and The Case for Sovereignty.
  • 27
    • 49749101571 scopus 로고    scopus 로고
    • Justice Scalia, for instance, maintains that the only legal and moral standards relevant to US constitutional jurisprudence are [t]he standards of decency of American society - not the standards of decency of the world, not the standards of decency of other countries that don't have our background, that don't have our culture, that don't have our moral views. Scalia-Breyer, ibid.
    • Justice Scalia, for instance, maintains that the only legal and moral standards relevant to US constitutional jurisprudence are " [t]he standards of decency of American society - not the standards of decency of the world, not the standards of decency of other countries that don't have our background, that don't have our culture, that don't have our moral views." Scalia-Breyer, ibid.
  • 28
    • 49749123732 scopus 로고    scopus 로고
    • In the US case, on the assumption that customary international law has the status of federal common law, all of these worries are exacerbated. And because federal common law takes precedence over conflicting states' laws, there is the additional concern that judge's recourse to international law undermines federalism by encroaching on the proper domain of the states' law-making authority
    • In the US case, on the assumption that customary international law has the status of federal common law, all of these worries are exacerbated. And because federal common law takes precedence over conflicting states' laws, there is the additional concern that judge's recourse to international law undermines federalism by encroaching on the proper domain of the states' law-making authority.
  • 29
    • 49749124916 scopus 로고    scopus 로고
    • One worry is that an overly-permissive conception of what it takes to satisfy the opinio juris condition for the emergence of a customary norm has begun to take root-in particular, that mere pronouncements by State officials can suffice to demonstrate the subjective belief that the practice is consistent with or required by the prevailing law.
    • One worry is that an overly-permissive conception of what it takes to satisfy the opinio juris condition for the emergence of a customary norm has begun to take root-in particular, that mere pronouncements by State officials can suffice to demonstrate the subjective belief that the practice is consistent with or required by the prevailing law.
  • 30
    • 49749100662 scopus 로고    scopus 로고
    • Attempts to harmonize domestic and international law are varied. In some countries, human rights conventions and other aspects of international law are accorded a supreme status above all domestic law including the Constitution (see e.g, the Netherlands, Belgium, and Luxembourg, For instance, under Article 91 (3) of the Netherlands' Constitution (adopted in 1983, treaties that conflict with the Constitution may be approved by the Chambers of Parliament by a two-thirds vote; as per Article 94, statutes that are inconsistent with treaties are not applicable. In other countries (such as Austria and Finland, treaties that derogate from or are otherwise inconsistent with the domestic constitution may be approved by a super majority in parliament, rendering them equal or superior to the Constitution. In many states, international treaties preempt both earlier and subsequent domestic statutes see inter alia France, Portugal, Spain, Switzerland, and Greece, although a few countrie
    • Attempts to harmonize domestic and international law are varied. In some countries, human rights conventions and other aspects of international law are accorded a supreme status above all domestic law including the Constitution (see e.g., the Netherlands, Belgium, and Luxembourg). For instance, under Article 91 (3) of the Netherlands' Constitution (adopted in 1983), treaties that conflict with the Constitution may be approved by the Chambers of Parliament by a two-thirds vote; as per Article 94, statutes that are inconsistent with treaties are not applicable. In other countries (such as Austria and Finland), treaties that derogate from or are otherwise inconsistent with the domestic constitution may be approved by a super majority in parliament, rendering them equal or superior to the Constitution. In many states, international treaties preempt both earlier and subsequent domestic statutes (see inter alia France, Portugal, Spain, Switzerland, and Greece), although a few countries only accord this status to international law concerning human rights (see e.g., Russia, Romania, and the Czech Republic). In other states, however, the major human rights conventions have the status of ordinary domestic law, applying a 'later-in-time' rule to resolve conflicts between domestic and international law (see e.g., Germany, Ireland, Italy, Norway, Poland, Turkey, United Kingdom, and the United States, inter alia).
  • 31
    • 49749099959 scopus 로고    scopus 로고
    • The tripartite separation of powers is allegedly vitiated by the federal incorporation of international law in several ways. The judicial branch is said to exceed its constitutional mandates by incorporating customary international law into federal common law and by invoking foreign precedent as persuasive authority in US constitutional jurisprudence. The executive is claimed to exceed its constitutionally enumerated powers by entering into 'self-executing' treaties which regulate subject matter reserved to Congress and/or to the several states. Finally, the entire federal government is held to exceed its legitimate authority by incorporating into US law international norms which regulate content constitutionally reserved for state regulation. See, respectively: Bradley and Goldsmith, Customary international law as federal common law; Yoo, Globalism and the constitution; and Rabkin, Law Without Nations? and The Case for Sovereignty
    • The tripartite separation of powers is allegedly vitiated by the federal incorporation of international law in several ways. The judicial branch is said to exceed its constitutional mandates by incorporating customary international law into federal common law and by invoking foreign precedent as persuasive authority in US constitutional jurisprudence. The executive is claimed to exceed its constitutionally enumerated powers by entering into 'self-executing' treaties which regulate subject matter reserved to Congress and/or to the several states. Finally, the entire federal government is held to exceed its legitimate authority by incorporating into US law international norms which regulate content constitutionally reserved for state regulation. See, respectively: Bradley and Goldsmith, "Customary international law as federal common law"; Yoo, "Globalism and the constitution"; and Rabkin, Law Without Nations? and The Case for Sovereignty.
  • 32
    • 49649159880 scopus 로고    scopus 로고
    • See US Constitution, Art. VI
    • See US Constitution, Art. VI.
  • 33
    • 49749100663 scopus 로고    scopus 로고
    • Globalism and the constitution (arguing that self-executing treaties are unconstitutional); Rabkin
    • Yoo, "Globalism and the constitution" (arguing that self-executing treaties are unconstitutional); Rabkin, The Case for Sovereignty.
    • The Case for Sovereignty
    • Yoo1
  • 34
    • 49749092213 scopus 로고    scopus 로고
    • This case is persuasively made by David M. Golove, Human rights treaties and the US Constitution, DePaul Law Review, 52 2002, 579-635;
    • This case is persuasively made by David M. Golove, "Human rights treaties and the US Constitution," DePaul Law Review, 52 (2002), 579-635;
  • 35
    • 0346688191 scopus 로고    scopus 로고
    • Treaty-making and the nation: The historical foundations of the nationalist conception of the treaty power
    • 98 2000
    • "Treaty-making and the nation: the historical foundations of the nationalist conception of the treaty power," Michigan Law Review, 98 (2000), 1075-1319.
    • Michigan Law Review , pp. 1075-1319
  • 36
    • 8344230859 scopus 로고    scopus 로고
    • On the creation of a global peoples assembly: Legitimacy and the power of popular sovereignty
    • See
    • See Richard Falk and Andrew Strauss, "On the creation of a global peoples assembly: legitimacy and the power of popular sovereignty," Stanford Journal of International Law, 36 (2000), 191-219.
    • (2000) Stanford Journal of International Law , vol.36 , pp. 191-219
    • Falk, R.1    Strauss, A.2
  • 37
    • 49749117355 scopus 로고    scopus 로고
    • On reflection, this intuition may not stand scrutiny, because, at least in principle, it seems that the citizens of a democracy could (mistakenly) cede authority beyond the point at which it could be said that they are self-governing
    • On reflection, this intuition may not stand scrutiny, because, at least in principle, it seems that the citizens of a democracy could (mistakenly) cede authority beyond the point at which it could be said that they are self-governing.
  • 38
    • 49749108124 scopus 로고    scopus 로고
    • In order to ratify treaties of major importance, such as those which establish robust supranational organizations, many nations require special majority legislation (e.g., Greece, Austria, Finland, Croatia, inter alia) or constitutional revision (e.g., France), while others hold referenda (e.g., Denmark, Sweden, and Switzerland).
    • In order to ratify treaties of major importance, such as those which establish robust supranational organizations, many nations require special majority legislation (e.g., Greece, Austria, Finland, Croatia, inter alia) or constitutional revision (e.g., France), while others hold referenda (e.g., Denmark, Sweden, and Switzerland).
  • 39
    • 49749098300 scopus 로고    scopus 로고
    • James Nickel has suggested that in some cases of acknowledging the authority of RIL what might be called tacit democratic authorization would suffice-that none of the mechanisms for public deliberation and choice we list would be required. For example, if citizens do not punish those officials who signed the relevant treaties, etc, by voting against them in the next election, this could count as a kind of democratic authorization. In our view, the notion of tacit democratic authorization is problematic in general, but perhaps especially problematic when it comes to such significant political changes as secession, accession, and devolution. Accordingly, we hold that there should be a presumption of a requirement of public deliberation and choice, at least for cases in which acknowledging the authority of RIL is likely to produce constitutional changes or changes in the scope of self-determination that are comparable to secession, accession, and devolution
    • James Nickel has suggested that in some cases of acknowledging the authority of RIL what might be called tacit democratic authorization would suffice-that none of the mechanisms for public deliberation and choice we list would be required. For example, if citizens do not "punish" those officials who signed the relevant treaties, etc., by voting against them in the next election, this could count as a kind of democratic authorization. In our view, the notion of tacit democratic authorization is problematic in general, but perhaps especially problematic when it comes to such significant political changes as secession, accession, and devolution. Accordingly, we hold that there should be a presumption of a requirement of public deliberation and choice, at least for cases in which acknowledging the authority of RIL is likely to produce constitutional changes or changes in the scope of self-determination that are comparable to secession, accession, and devolution.


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