International Law and Democracies
International is a riddle for the political theorist. It exists despite the absence of any formal state or government. So, not only is there no international body to enforce its edicts, but it lacks any formal institution to promulgate its laws. It bypasses the notion of sovereignty traditional democratic theory depended upon, yet the expansion of democracy around the world has accelerated the development of international law and global institutions. Ironically, authoritarian states are the ones demanding greater respect for national sovereignty today.
Still, the political theorist is left with the unsettling realization that democracies encourage the development of international law and its corresponding institutions even though they often lack democratic legitimacy. Perhaps it is too strong to say an international institution lacks democratic legitimacy. Nonetheless, the link between international bodies to people is indirect at best. Indeed, many democratic movements seek to provide greater autonomy for local governance where people have greater influence. So, why have democratic states embraced international law and even expanded its influence into new domains?
Tom Ginsburg offers some insights in his latest book Democracies and International Law. He examines the ways democracies approach it differently than authoritarian states. Let me be clear, he does not tackle large philosophical questions directly. However, his background as a political scientist and legal scholar offer revelations for the link between democratic governance and International law. His book goes beyond broad claims to examine its practice including the behaviors of regional organizations like the African Union (AU), Organization of American States (OAS), and the Association of Southeast Asian Nations (ASEAN). Through this approach, he considers how democracies shape international law and how international law shapes democracies.
Democracies Shape International Law
Ginsburg views international law as a natural phenomenon. It arises any time states make agreements between each other. It carries more force than an international norms, because it depends on explicit agreements between states. Still, its adoption depends on the behavior of state actors rather than the enforcement of a global security apparatus. In this manner, the promulgation of international law does not depend on more recent institutions like the United Nations. Rather its existence is much more mundane and often lacks any ceremony.
Nonetheless, its proliferation in the postwar era has brought about a wide range of international institutions such as the United Nations, World Trade Organization, and many others. Democratic nations have often spearheaded the global cooperation necessary to create these institutions. Ginsburg writes, “Most innovations in governance technology occur in democracies.” Of course, China in recent years has strived to offer alternatives to Western backed institutions. The Asian Infrastructure Investment Bank (AIIB) and the Belt and Road Initiative (BRI) offer alternatives to the World Bank. However, Ginsburg notes these are not innovations so much as copies of approaches democracies had previously developed. Authoritarian states often develop institutions designed to mirror or counter the West. For example, the Warsaw Pact was an attempt to counter NATO.
Still, it’s not clear so far why democracies adopt it more easily than authoritarian states. Anne-Marie Slaughter offers some clarification when she writes, “The global rule of law depends on the domestic rule of law.” For me this is the link between democracy and the proliferation of new forms of international law. It’s critical to recognize its adoption depends on liberal democracies. Liberalism, of course, emphasizes the rule of law so it is only natural to extend these principles into the world arena.
International Law Shapes Democracies
Despite its widespread embrace, it does raise challenges for democratic governance. Europeans frequently criticize the European Union for its democratic deficits. The United States is another persistent critic of international regimes despite its central role in their creation. Many Americans fear global institutions and law as undemocratic or even under the influence of authoritarian governments. The growing influence of China does not alleviate any of these fears.
Nonetheless, China expresses hesitations similar to the United States. Indeed, the deeper reluctance about international law among Americans has little to do with a commitment to democracy than a concern over legal constraints. Tom Ginsburg writes, “Powerful states do not like constraint, and this is true of democratic as well as authoritarian states.” In recent years, the United States joined China, Russia, and other authoritarian states who refused to sign the Optional Protocol to the Convention against Torture (OPCAT). During the Trump Administration, the United States has withdrawn from the World Health Organization (WHO) and taken steps to disrupt the World Trade Organization (WTO).
Indeed, international law does impose constraints on states. However, the constraints typically involve positive developments. For example, the human rights regime raises the bar for democratic and authoritarian states in the treatment of their citizens. Similarly, the WTO has reduced trade barriers between countries. Some regional organizations like the EU, AU and OAS have reinforced democratic norms surrounding elections, term limits, and impeachment. Of course, the enforcement of democratic norms remains incomplete, but their ability to bring about any democratic outcomes is remarkable.
A Right to Democracy?
In recent years, some scholars have sought to extend human rights to incorporate democracy. Thomas Franck wrote an influential article called, “The Emerging Right to Democratic Governance.” He made a case for a human right to democracy. Moreover, he argued it had already found its way into international law even though it is unevenly enforced. Ginsburg believes this is a step too far. In his view, a right to democracy places every authoritarian government in violation of international law. Moreover, it obligates democracies to enforce this emerging right.
Still, its proliferation may encourage democracy indirectly. Commitments to international agreements may lead to similar commitments to domestic agreements. Over time the global rule of law may reinforce the domestic rule of law. This inverts the earlier insight I referenced from Anne-Marie Slaughter. Perhaps this is too optimistic. Moreover, it’s not clear how the rivalry between the United States and China will disrupt the international arena in the coming years. The resiliency of international law and institutions may represent a harbinger for the resiliency of democracy in the future.
Tom Ginsburg is the featured guest in this week’s Democracy Paradox. He will discuss his latest book and offer additional thoughts on international law, democracy, and world events. Look for it on October 19th, 2021 or simply subscribe to the Democracy Paradox on your favorite podcast app.
Alexander Cooley and Daniel Nexon (2020) Exit from Hegemony: The Unraveling of the American Global Order
Thomas Franck (1992) “The Emerging Right to Democratic Governance,” American Journal of International Law
Tom Ginsburg (2021) Democracies and International Law
John Ikenberry (2020) A World Safe for Democracy: Liberal Internationalism and the Crises of Global Order
Rana Siu Inboden (2021) China and the International Human Rights Regime: 1982-2017
Immanuel Kant (1795) Perpetual Peace: A Philosophical Sketch
Dankwart Rustow (1990) “Democracy: A Global Revolution,” Foreign Affairs
Anne-Marie Slaughter (2000) “A Liberal Theory of International Law,” Proceedings of the ASIL Annual Meeting
Fernando R. Tesón (1992) “The Kantian Theory of International Law,” Columbia Law Review
Detlev Vagts (2001), “Hegemonic International Law,” American Journal of International Law