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.