ASIL The American Society of International
Law
Home About ASIL Membership In the news Careers Resources Events
 

ASIL Newsletter: Notes from the President
The Benefits of World Traveling

July/August 2006

Vol. 22, Issue 4
En Español

A common theme of much legal literature is that our views as scholars are historically, culturally, and geopolitically contingent, no matter how rigorously "objective" we try to be. Feminists, such as Isabelle Gunning, have written of the virtues of multi-cultural dialogues- "world traveling"-that seek to understand the differing contexts in which "other" women find themselves. MacDougal and Lasswell stressed the need to be attentive to perspectival standpoint.

There is nothing quite like traveling the world to make manifest why "world traveling" matters. Apart from the delights of seeing the majestic natural wonders featured in the Lord of the Rings movies, the virtues of my recent trip to Wellington, New Zealand to participate in a workshop that ASIL helped to organize as part of its 2006 centennial observances were the many scholarly provocations thrown my way. Such provocations continued at the annual conference of the Australian and New Zealand Society of International Law (ANZSIL), which followed. There is nothing quite like being among "foreign" international lawyers when the U.S. Supreme Court issues a decision like Hamdan, which triggered resounding and unanimous relief among ANZSIL participants (amidst repeated choruses of "what took them so long?") as compared to the partisan reactions, angst, and unease that continues to attend the decision here. Few presenters at an ASIL annual meeting are as provocative as Ann Kent, whose ANZSIL paper portrayed China, other than with respect to human rights, as a model citizen with respect to international law and a strong counterpart to U.S. exceptionalism. And the "war" on terror looks a bit different in a place where the most recent terrorist incident with local resonance is the 1985 bombing by French government agents of the Greenpeace vessel, the Rainbow Warrior-an act of state terrorism resolved by international litigation not warfare.

But the rewards of traveling coach for some 24 hours became clearest during the Four Societies Symposium-convened under the auspices of the ASIL, the Canadian Council of International Law, the Japanese Society of International Law, and ANZSIL-to consider the work of young scholars who responded to our joint call for papers on "International Law and Democratic Theory." The workshop's purpose was to consider the ever more prominent challenges to the democratic credentials of international law.

I was intrigued by the prospect of seeing whether claims that international law and institutions suffer from "democratic deficits" relative to national processes for law-making and adjudication have traction in the democracies of Australia, Canada, New Zealand, and Japan, or whether such views are more limited to U.S. scholars and policymakers.Were others' national judges as hostile to citing to non-national authorities as our own Justice Scalia? Were others' legislatures as skeptical as many members of the U.S. Congress appear to be about the virtues of "ceding" sovereign authority to "unaccountable" international organizations? Were others' government bureaucrats equally eager to avoid the trappings of formal law by resorting to, for example, Anne-Marie Slaughter's transnational networks?

The fourteen papers presented at that symposium-expected to be published in a forthcoming issue of the University of Victoria's law review-make it clear that even in this age of instant communications and porous borders, geography still matters.

To be sure there were commonalities- sometimes surprising ones. Joanne Harrington's close scrutiny of the ways Canadian courts cite international decisions suggested some doubts about the prevailing assumption, including among many Canadians, that Canadian judges are invariably more eager than are judges in the United States to engage in all forms of trans-judicial communication. Harrington, of the University of Alberta, presented evidence indicating to the contrary that Canadian judges appear willing to cite to international opinions issued by bodies, such as the European Court of Human Rights, whose views cannot be seen as binding on the Canadian government, but seem far more reluctant to mention others, such as the views issued by the ICCPR's Committee on Human Rights, since these interpretations involve a treaty that is binding on the Canadian government and as such might someday engage the Canadian judiciary itself. Harrington speculated that Canadian Supreme Court judges, no less than members of the U.S. Supreme Court, were concerned about retaining their primacy as final interpreters of binding Canadian law. The papers by Harrington and by Washington and Lee's Melissa Waters suggested that, beneath the surface, misgivings exist about certain forms of trans-judicial communications on both sides of the U.S.-Canada border.

For his part, Craig Forcese, of the University of Ottawa, suggested that the Canadian executive branch, no less than its U.S. counterpart, was eagerly seizing upon the Security Council's counter-terrorism edicts to expand its power, both in absolute terms and relative to Canadian provinces. These papers, as well as others by Jacqueline Peel (of the University of Melbourne) and Neil Craik (of the University of New Brunswick), suggested some common ground with "democratic" critiques by U.S. scholars. But, on the whole, the symposium identified sharp discontinuities concerning international law's ostensible democratic deficits, as well as considerable disagreement about whether these matter.

The most provocative set of papers were from Japan. The Japanese scholars were, on the whole, not terribly sympathetic to critiquing international law as "undemocratic" and far more interested in using international law to suggest flaws in, or to make corrections to, democratic lawmaking at the national level. Koji Teraya (of the University of Tokyo) forcefully contested the premise that democracy ought to be treated as the ultimate value, arguing that it was far more important to protect, even by less than democratic means, the dignity and rights of the many "nobodies"-such as the stateless, refugees, minorities, or "enemy combatants"- that democracies tend to dismiss as outside the their protected polities. Osamu Arakaki (of Shigakukan University) canvassed the ways Japanese judges, as well as a complicit Diet, interpreted (or misinterpreted) international refugee law to the detriment of asylum seekers. Shotaro Hamamoto (of Kobe University) argued that some of the suggested remedies for alleged democratic deficits, such as greater parliamentary involvement in treaty making, could be detrimental to effective human rights enforcement. The subtext of these papers, as well as one by Keiko Ko (of Mie University), was that Japan could use more, not less, international law: greater recourse to custom, greater sensitivity to giving effect to treaties and the rights of "nobodies," and greater acceptance of international claims procedures on behalf of individuals.

The symposium discussions made clear that, whether or not "liberal" states are more amenable to rule by international law, there are many reasons why even democracies differ with respect to how they accept or respect international norms. Here are ten: (1) differing constitutional or other mechanisms for acceding to treaties; (2) the differing domestic legal status of customary law or treaties once ratified; (3) differences between parliamentary and other forms of democratic governance (e.g., differing conceptions of "separation of powers"); (4) differing traditions with respect to the role of the judiciary; (5) differing levels of state involvement in, or power within, current regional or multilateral international regimes; (6) differing levels of NGO involvement in domestic and international forms of governance; (7) differing conceptions of what "democracy" entails (e.g., from an emphasis on representative government to a focus on "democratic" discourse); (8) differing commitments to an essentially immutable national constitution; (9) differing attitudes by political elites or other societal leaders; and (10) differences between common and civil law traditions.

Although these insights echo those of earlier generations who also have engaged in comparative examination of national incorporation of international law, the young scholars of the Four Societies Symposium have their own voice. Their views of international law blend postmodern skepticism with renewed faith in international law's power to curb the abuse of state power. Apart from a renewed appreciation for Oscar-winning director Peter Jackson, I left New Zealand with the welcome sense that international law was in good hands with Generation X.

José E. Alvarez

 
Search
Advanced Search

More Notes from the President

   
 
 
Contact Us Site
Map Privacy