The more one looks at how international law is created, and who makes it, the less democratic its credentials appear. Even its overall quality is lousy—lousy when compared to law that emerges from the democratic structures in the USA, the UK, Canada, Australia or New Zealand. It no doubt isn’t lousy compared to the law in undemocratic countries such as Sudan, North Korea, Libya, Syria and China, or even pseudo-democratic ones such as Venezuela, Russia and Pakistan. But as the British comedian John Cleese was wont to say, his tone dripping sarcasm, “That’s high praise indeed”. Our focus is on five of the oldest democracies on the planet, and compared to their domestic law the quality of international law really is substandard, and the way it is made lacks transparency, democratic legitimacy and accountability.
Over two centuries ago the philosopher, prison reformer, advocate of ever greater democracy and legal commentator Jeremy Bentham—famous still for his exposition of the doctrine of utilitarianism—attacked the common law. Bentham thought there were big problems with this sort of judge-made law that we in Australia, New Zealand, the USA, the UK and Canada all call “the common law”. First off, it was retrospective. Judges made it at the point-of-application at the end of a lawsuit focused on things that had already happened, so any changes in doctrine, however they might be dressed up, effectively had altered the rules of the game for the side that had relied on how things stood before this change of doctrine (say, for an anachronistic instance, the duties owed by a manufacturer to consumers of those goods not in a contractual relationship with that manufacturer). The contrast with statute law enacted by an elected legislature and set to come into force on some specified future date could not be starker.
The next problem Bentham identified was related to that first one. In order to mask that retrospective element, many supporters of the common law talked as though the real, true common law had always been out there in the ether. For them, any change in doctrine announced by the judges amounted to telling the rest of us what had always been the correct understanding of the law. It just hadn’t been properly understood as such until now.
Think of this as the “one right answer” or “judges just discovering what was always out there” or “it was implicitly part of the best understanding of the settled case law, though earlier judges hadn’t yet recognised it” view of the common law. It solved the problem of retrospectivity. But the cure was in various respects worse than the disease. It was worse because it rested on a fiction, that judges weren’t ever making law at the point of application, but were merely announcing what had always been the law or the best understanding of earlier case law. Bentham had a field day with such claims, which rely on pretending that judge-made law, the common law, does not involve any discretionary input by the judges who decide a case.
Bentham also thought this common law was too unsystematic and unfocused on achieving the greatest happiness of the greatest number. But he also saw this sort of judge-made law as supremely undemocratic. Those who extolled the common law at least had to concede, thought Bentham, that it was the product of an unrepresentative, unaccountable lawyerly caste whose views and interests and values often could and sometimes did differ from those of the majority. In such circumstances, why should the judges’ views become law? On what grounds was that legitimate?
International law is desperately in need of its own Jeremy Bentham, someone who ruthlessly debunks its pretensions and shortfalls and illegitimacies.
A strong case can be made for thinking international law, or the parts of it I will be concentrating on, is worse than the common law when it comes to its undemocratic effects. Far worse, in fact. Everyone accepted that a statute overruled and trumped the judge-made common law when the two were inconsistent. By no means at all does everyone accept that international law must lose to inconsistent domestic statute law. Some even think the international variety ought to trump a country’s highest constitutional law. So the flaws and weaknesses and inefficiencies and opacities and illegitimacies of international law cry out even more for detailing and debunking.
How many of you have found yourselves unable to sleep and have decided to have a read of the 1989 United Nations Convention on the Rights of the Child (CRC)? It’s not the worst strategy for overcoming insomnia. In your late-night browsing you would have come across Article 19. It reads in part as follows: “State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.”
Now think about what you figure that covers and doesn’t cover. And remember that all these multilateral treaties like the CRC have to be worded so as to get on board as many as possible of the world’s Sudans, Chinas, Libyas and presumably worse—and I say worse because in 2010 Muammar Gaddafi’s Libya was overwhelmingly voted onto the UN Human Rights Council, to be there along with a bunch of other countries from which no sane person in any of the five democratic nations we’re concerned with here would take advice on human rights. (Libya stayed there until it bombed its own citizens in 2011.)
The failings of the UN Human Rights Council and its predecessor the Human Rights Commission, not least the way authoritarian regimes manage to get voted onto these bodies and the obsession they have with Israel, are well known. My point here is something else, namely that it’s not at all clear what that Article 19 of the CRC means. We know, for example, that almost all countries at the time of signing the CRC permitted parents to spank or smack their own children, if the degree of force was reasonable.
Now let’s say some democratic government, say one like Australia or Canada or New Zealand or the UK or the USA, had a statute (at the national or state level) that allowed parents to spank their kids. Would you say that that statute allowing corporal punishment breached human rights? Let me put that question slightly differently. Would your decision on whether parental corporal punishment infringed human rights depend upon the proper interpretation of Article 19 of the CRC or even be influenced in the least by Article 19? And if you thought parental spanking did not breach human rights, but you learned that some overseas experts (or, rather, self-styled experts) thought otherwise, would you defer to them? Would it matter to you in the least what they thought?
This is not a pointless hypothetical. All the big United Nations conventions or multilateral treaties, including the CRC, have committees that are set up to monitor the progress in implementing the conventions in all the nations that have signed up to them.
At this point you might like to know a couple of key things. First, the membership of all these monitoring committees is determined in a less than transparent way—nothing remotely close to how US Supreme Court justices are picked—that comes nowhere near letting anyone claim those selected have been democratically appointed, or anointed. Second, committee membership includes, indeed it is weighted towards, those from countries you wouldn’t take any moral advice from if your life depended on it. Third, and this is the point to take on board if you only remember one, the committee for the CRC has consistently maintained that parental corporal punishment violates the CRC convention.
When you learned that fact, and fact it is, would your view of the acceptability of parental spanking change? Let’s assume it would not. (It certainly would make no difference to me.) What if I told you, in rather more grandiose terms, that international law required that you not spank your kids because such spanking was a breach of their human rights as set out in Article 19 of the CRC? (After all, this is what the CRC committee thinks.)
Two roads now diverge. Go down one of them and you simply outsource your view of the acceptability of spanking to the committee for the CRC. You defer to this handful of self-styled experts, perhaps in the name of complying with international law, or because you think the committee is best placed to know what the vague Article 19 provisions mean, or even due to your desire to be part of the metropolitan elite in your home country. Spanking breaches human rights—I know because international law and the CRC committee tell me so.
Go down the other road, however, and you refuse to be swayed by this UN committee. This refusal, in its turn, can be motivated by two different concerns. In other words, not very far down this second road you find it splits or bifurcates. You find one path focuses on international law itself, accepts its core level legitimacy in resolving such issues as parental corporal punishment, but makes legalistic arguments for why the committee is wrong in its understanding of Article 19. These legalistic rejoinders would no doubt focus on the legislative history of the CRC—what the nations that signed up to it intended it to cover, your claim being that they did not intend it to cover parental spanking. To buttress this claim about the intentions of the state parties who signed it you would probably point to the fact that at the time of signing virtually all the countries signing up to the CRC had domestic legal systems that allowed spanking. This would be external evidence of likely intentions, it being unlikely that a government of a country that allowed spanking would knowingly sign up to a treaty forbidding spanking. And even if one or two governments did, perhaps to sidestep the need to change domestic law, it is implausible in the extreme that most governments signing up to the CRC did this. Certainly it is unlikely in the extreme that most democratic governments did.
Notice that those who travel down this sub-branch of the second road do not object to international law itself being relevant, if not determinative. No, they effectively simply argue for a different understanding of the proper meaning of Article 19. Where the committee of the CRC seems to see it as a metaphorical living tree, whose reach and meaning are not determined by the intentions of those state parties that signed it, those travelling down this sub-branch want it interpreted differently, perhaps according to some form of originalism. They don’t shun or reject or belittle international law itself. Some may seek a halfway house and say international law or the views of the committee are not determinative and conclusive, merely a guide that is relevant and needs to be considered. Meanwhile some may reject the committee and its views in favour of the text itself, a sort of Protestant approach to what international law does and doesn’t demand.
This second road of refusing to be swayed by what the CRC committee thinks about spanking has another sub-branch. Travellers down this one do not make legalistic arguments about how the committee has erred in its understanding of what Article 19 covers. No—they simply do not accept the applicability of international law to the question of whether parents in some of the oldest democracies in the world can or cannot spank their children. They not only dismiss the views of this handful of UN-appointed committee members; they dismiss, too, the relevance of international law itself to the issue. For many such travellers down this second sub-branch of this second road, it will be the fundamental lack of democratic legitimacy when it comes to international law that motivates their position.
I am much of their mind. If issues such as parental spanking are covered, in whole or in part, by an international law treaty couched in indeterminate, abstract terms then it must follow that the scope for democratic decision-making has been narrowed and enervated.
This example of the CRC and spanking can show us two ways in which international law of the treaty-based kind is democratically deficient. Once we’ve seen both those ways, we can move on to a much worse sort of international law—worse in the anti-democratic sense, that is. But let’s focus for now on the sort that flows from countries, nation-states, signing up to treaties and conventions.
Start with Canada, Australia, New Zealand and the United Kingdom. All four have ratified or signed up to the CRC. Doing so in a Westminster system is easier than in the USA. The executive can do so without any veto or block lying in the hands of any part of the legislature (though there are half-hearted nods towards parliament in the UK). Ratified treaties or conventions have less democratic legitimacy in Australia, the UK, Canada and New Zealand than they do in the USA. This point is often overlooked. And for all of us majoritarian democrats it is America that looks better in this comparison.
If you go back forty or fifty years there was a trade-off outside the USA for this lack of legislative input when it came to treaties and conventions. Yes, the executive could ratify and sign up to treaties all by itself. But such treaties did not become part of the country’s domestic law—unless they were incorporated into the country’s internal laws by also being passed as statutes by the elected legislature.
In the absence of a ratified treaty being explicitly incorporated into domestic law in this way, it was not a source of valid law. You couldn’t argue in court that you should win because of this treaty; you couldn’t argue that the written constitution meant this, rather than that, because of this treaty; you couldn’t even argue that a statute meant X rather than Y because of this treaty.
In that bygone world, the American approach to treaties and conventions was in fact not more democratic than the approach in the Westminster world. Sure, the Americans took treaties more seriously back then and one might have made an argument for the US approach on that basis, that we shouldn’t ratify a treaty unless we are prepared to make it enforceable law. But in no sense was the old Westminster approach to treaties any less democratic than the US approach. Americans did, and do, take treaties very seriously indeed and demand that they pass through the Senate on a super-majoritarian basis. Our Westminster countries did not, and do not, demand this but then a half-century ago the executive-ratified treaties did not become part of the domestic law. Your average voter could ignore them.
That is no longer the case in our Westminster countries. Judges have changed that. Administrative law, the rules and regulations below the level of statute law and including judge-made ones about how tribunals must operate and who must be heard, became permeated with rules plucked by judges from these treaties. Then statutes started to be interpreted with reference to these treaties from international law. It did not matter that the treaties were not in orthodox terms part of the domestic law in Westminster systems. The lack of democratic legitimacy compared to a US-type set-up for ratifying treaties didn’t matter to the judges either.
You know the game. First you start by appealing to treaties (however vague, amorphous, indeterminate or couched in moral abstractions—“all appropriate … measures to protect the child from … violence”) when the statute is ambiguous, and only then. That seems fairly harmless. After a while, once that has bedded down, you go further. You make what the treaties say the presumptive way of interpreting all statutes, so that only explicit, clear words in the statute overcome that presumption. No reason is given for why this should be the default position or why an unincorporated treaty with patently flawed democratic credentials should have such power to influence the meaning of the legislature’s statutes, some of which were enacted before the treaty was ratified. You just move on as though it’s self-evident that democratically enacted statutes ought to be interpreted through the prism of this sort of treaty- and convention-focused international law.
From there it’s a short step to using these unincorporated treaties as filters for interpreting the written constitution. That’s what happens in Canada; Australia still holds out against that last step, barely. Meanwhile in the UK and New Zealand there are no written constitutions, which forecloses this final step of using unincorporated treaties as filters for the task of constitutional interpretation. Alas, that only means that using them to help decide what statutes mean in the UK and New Zealand is even more problematic and potentially counter-majoritarian. There, statutes matter more. So interpreting them through the prism of treaties matters more too.
I said that there are two ways in which international law of the treaty-based kind is democratically deficient. And I’ve now outlined the first way. It happens in our four Westminster countries when treaties that have been signed and ratified are used by the judges to help make and re-make administrative law and also to aid in interpreting statutes and constitutional provisions even to the point of making these treaties the default, presumptive positions of what statutes mean.
The second way is worse. And this second way happens most publicly and most notoriously in the United States, possibly because of the very fact that Americans take ratifying treaties very seriously and expect them to win clear democratic support at least in the Senate.
What happens on this second scenario is this. Judges once again are interpreting domestic legal texts like statutes and constitutional provisions, just as above. And again the judges are doing this interpreting by referring to treaties or conventions—they may be looking to the treaties for evidence of international views on some issue or for a moral consensus on some rights-based disagreement or to see what meaning to give some morally charged phrase or term or something else. For our purposes, that is beside the point when it comes to this second way in which treaty-based international law is democratically deficient. The point is that on this second scenario the treaties and conventions the judges use have not even been ratified.
If we focus on the USA for a moment, they have failed to win a majority vote in the Senate, and they are therefore unratified treaties without domestic democratic approval. The treaty failed to win Senate approval, or it was not even put to the Senate, or the President did not sign up to it. And yet the judges use such a treaty to help them interpret, say, the US Constitution.
This is precisely what happened in 2005 in Roper v Simmons. The US Supreme Court in that case cited the CRC in the course of deciding what “cruel and unusual punishments” meant in the Eighth Amendment. The issue for those judges was whether the US Bill of Rights meant they could strike down or invalidate democratically enacted laws that allowed for the possibility of executing juveniles.
In deciding that question, a majority of US Supreme Court justices, as I said, cited the UN Convention on the Rights of the Child. But the United States has never ratified the CRC. It has no democratic standing at all. And yet it is being used to tell us what the US Bill of Rights, and its Eighth Amendment, mean.
It doesn’t stop there. In that same case the judges (or those in the majority) cited another treaty, the International Covenant on Civil and Political Rights (ICCPR). This treaty had been ratified by the USA, or rather most of it had. Not all of it though. The United States had entered a formal reservation against the ICCPR’s no-death-penalty provision, meaning that part of the treaty didn’t apply in the USA. But the judges in Roper cited it anyway in the context of a death penalty case.
Let me be blunt. Top American judges in the course of deciding whether they would gainsay and overrule democratically elected legislators by invalidating one of their statutes decided to cite and give weight to treaties that the elected political branches had explicitly refused to incorporate into domestic law. These top US judges—and it is only fair to say it wasn’t all of them—exercised their counter-majoritarian, anti-democratic Bill of Rights power to strike down statutes, but not before referring to, considering, citing, and presumably putting at least some weight on an international treaty the democratically accountable branches had rejected. This is anti-democratic juristocracy or kritarchy on stilts.
Now supporters of this sort of use of non-ratified treaty-based international law will point out that the top US judges who did this said they decided based on domestic materials and only mentioned or cited the CRC and ICCPR as “confirmation” of what they had anyway decided—namely, to invalidate a democratically enacted law. Some supporters might even try to make a more subtle, some might say sophistical, point. They might suggest that these majority judges were using these non-ratified treaties as evidence of a consensus of the practice of other nations, not as part of an attempt to discern some norm of international law.
However those attempts, and others, to explain away and legitimate this second way of using treaty-based international law will not satisfy the majoritarian democrat. Not by a long shot. Such attempts fall laughably short of providing a persuasive argument for such a practice.
Yet some past and present US Supreme Court justices vigorously defend this practice, and reliance on international law more generally, when speaking extra-judicially (meaning outside their day job of deciding cases that reach the Supreme Court, say when writing a law review article or giving a speech). Take just a few examples. Justice Stephen Breyer is a committed advocate of using international law in this way (and indeed was one of those in the majority in Roper who did so). Justice Ruth Ginsburg can be described in similar terms, and was on the same majority side in Roper. In 2005, when giving the keynote address to the annual meeting of the American Society of International Law, Ginsburg was vigorous in her defence of citing, referring to and appealing to international law. She saw that as one of the “common denominators of basic fairness between the governors and the governed”. Even Republican-appointed former Justice Sandra Day O’Connor, giving the keynote address to the same Society three years earlier, said that “conclusions reached by … the international community should at times constitute persuasive authority in American courts”.
The goal of this case study has been to make the reader doubt assertions such as those from Sandra Day O’Connor and Ruth Ginsburg (to say nothing of whole boatloads of law journal articles by legal academics that are even more gung-ho about using treaty-based international law to influence how the US Constitution is interpreted).
Take the debate down from the Olympian heights of disagreement-finessing abstractions to the quagmire of drawing highly contestable social policy lines—ones having to do with whether parents can spank their children for instance—and it is not at all clear to me why treaty-based international law should influence in any way how the US Bill of Rights is interpreted; and it is out-and-out democratically illegitimate to pay any heed to a non-ratified treaty like the CRC.
So the authoritative scope for deciding issues by letting the numbers count declines when judges in the USA appeal to non-ratified treaties to influence their interpretation of important legal texts. The same is true when judges in our four Westminster countries appeal to any treaties at all, even ratified ones, to give meaning to their important legal texts—leaving to one side instances where a treaty is put into the form of a statute and incorporated into domestic law by being passed by the legislature.
Any such decline concerns and angers the partisan of democracy. This case study has shown one way in which one sort of international law, the treaty-based sort, can cause that decline. It does not matter whether you, the reader, agree with some group of United Nations bureaucrats or committee members on the CRC that spanking is wrong, or even that spanking infringes rights. We are not debating substantive moral positions here. We are asking how such positions ought to be determined in a world where well-informed, nice, reasonable, smart people disagree about the moral rights and wrongs of spanking. As Jeremy Waldron puts it, we are asking about how best or most legitimately to resolve reasonable disagreements in society. Do we count everyone as equal and vote to elect representatives who will decide? Or do we put that aside when it comes to issues such as spanking or the death penalty and let treaty-based international law play a role in deciding what to do?
If you opt to go down the latter route you are part of a very recent trend, a few decades old. Here is how the late Lord Rodger, then of the UK’s new Supreme Court (formerly known as the Judicial Committee of the House of Lords and still its top court) describes this trend:
My impression is that much of the writing on public international law to which we are referred is slanted towards a particular result that the writer wishes to see prevail as the law. It often appears that the writers have, say, a particular human rights agenda and that their book or article is written with a view to securing that it will come to form part of the corpus of writings which help to shape the law. Indeed, often the writers sit on some international tribunal or other body which deals with the same matter. On occasions, however, it is difficult to see how the writer’s argument is to be squared with the wording of the particular international instrument in question—however desirable the result may be.q
The appeal to treaty-based international law (in its various guises and levels of toxicity) is another cause of today’s decline in democracy, of taking these decisions, in whole or in part, out of the hands of voters.
This is an edited extract from James Allan’s new book Democracy in Decline: Steps in the Wrong Direction, published by Connor Court. James Allan is Garrick Professor of Law at the University of Queensland.