CONTENTS INTRODUCTION I. THE WRONG ANSWER IS WHAT THE WRONG QUESTION BEGETS A. Sosa v. Alvarez-Machain B. United States--Measures Affecting the Cross-Border Supply of Gambling and Betting Services C. Indonesia and the International Monetary Fund II. DISCOVERING FUNDAMENTAL VALUES IN INTERNATIONAL LAW A. International Law as Common Endeavor B. International Law as Fundamental Human Rights Protection 1. Transnational Legal Process 2. A World Public Order of Human Dignity 3. Representation Reinforcement CONCLUSION The same lotus of our clime blooms here in the alien water with the same sweetness, under another name. (1) INTRODUCTION
The people of a democracy must be mercifully soothed when they find themselves ruled by the six men and one woman of the Appellate Body of the Dispute Settlement Body of the World Trade Organization. Or so might go the contemporary version of Alexander Bickel's famous indictment of the Supreme Court of the United States. (2)
"We know what the people imagine," Bickel wrote. "They imagine that they rule themselves...." (4) But a judiciary empowered to overrule the judgments of the political branches on constitutional grounds renders self-rule an illusion. Bickel thus articulated the principal challenge to judicial review of the last half-century.
Today we hear echoes of Bickel's complaint, but they now raise alarms about the power of tribunals in Geneva and The Hague, not Washington, D.C. Today's democrats find the whiff of authoritarianism in the International Criminal Court, the International Court of Justice, North American Free Trade Agreement (NAFTA) tribunals, the International Tribunal for the Law of the Sea, and, especially, the (awkwardly named) Appellate Body of the Dispute Settlement Body of the World Trade Organization. Critics distrust judgments of these remote decisionmakers. They find authoritarianism in the basic processes of international law. (5) International decisionmaking processes are yet more suspect than United States federal judges--they aren't even American.
Consider Massachusetts Chief Justice Margaret Marshall's reaction when she learned that her court's judgment in a dispute would be reviewed by an international tribunal: "I was at a dinner party.... To say I was surprised to hear that a judgment of this court was being subjected to further review would be an understatement." (6) In the same news story, a law professor issues a dire warning: "'This is the biggest threat to United States judicial independence that no one has heard of and even fewer people understand'...." (7)
Such complaints are carried not only in the popular press and academic journals, but also in the pages of the Supreme Court Reporter. Consider the words of Justice Scalia in the last case decided in the Supreme Court's 2003 Term, Sosa v. Alvarez-Machain:
We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today's opinion approves that process in principle....(8) Abhorring the Supreme Court's admission of international law into American law, Scalia sardonically defines for the Court "American law" as "the law made by the people's democratically elected representatives." (9)
It was a domestic version of this charge, based on a belief that judicial review is inconsistent with democratic theory, that motivated John Hart Ely to respond with his classic, Democracy and Distrust. (10) There, Ely offers the principal rebuttal to Bickel. Ely deftly turns insulation from the political process from a vice to a virtue. The judiciary's freedom from direct politics, he proclaims, enables it to serve as a bulwark against majority tyranny. Distrust of the judiciary (11) must be juxtaposed with distrust of majoritarian political processes.
Given Ely's rescue of judicial review within our borders, can Democracy and Distrust help rebut today's protests of a democratic deficit at the international level? Today, distrust of globalization touches not just the formal treaty-based institutions of international law, such as the World Trade Organization (WTO) and the International Criminal Court, but often the project of international law itself. International law is made and realized through a fluid process in which "public and private actors ... interact in a variety of ... domestic and international for a to make, interpret, enforce, and ultimately, internalize rules of transnational law." (12) Harold Koh has denoted this the "transnational legal process," highlighting the role of actors, other than unitary governments of nation-states, in the process of configuring and deploying international law.
Would Ely's theory find the transnational legal process consistent with popular sovereignty? The work of this article is to answer that question. (13)
This goal will strike many as a simple category mistake. After all, the international legal order does not even aspire to democracy. There is no global demos, no We the People in whom sovereignty is vested. Does it make sense to test today's international order for its democratic promise? Until the day a global ballot is introduced, with voting following the sun across all the time zones of the world, isn't the answer preordained? Doesn't international law, its authority not resting on a majoritarian political process, necessarily jeopardize popular sovereignty?
This certainly is the view of international law's critics, on both ends of the political spectrum. Right-wing critics in the United States argue that international law will subject this country to human rights, labor, health, environmental, and military rules not of our own making. (14) They object to the internalization of international norms in U.S. courts and the interpretation of the U.S. Constitution in light of international practice. (15) The targets of their ire are dazzlingly broad, including the International Criminal Court, the International Labor Organization, the Convention on the Law of the Sea, the Kyoto Protocol on Global Warming, the United Nations Human Rights Commission (and any other United Nations body that exists or may exist in the future, including the World Health Organization), the Comprehensive Test Ban Treaty, nongovernmental organizations such as women's groups, and corporate codes of conduct. (16) These international institutions steal power from We the People. Even if there is currently not "complete displacement" of domestic lawmaking processes, (17) over time there may well be a gradual aggrandizement of international authority at the expense of national sovereignty.
Progressive American critics of international law aim much of their fury at the WTO and other economic institutions. Lori Wallach of Public Citizen observes that the WTO implicates many domestic matters: It constrains "domestic food safety standards, environmental and product safety rules, service-sector regulation, investment and development policy, intellectual property standards, government procurement rules, and more." (18) International institutions are derided in other parts of the world as well, but these critiques are often coupled with complaints about the United States, foreign bankers, or foreign corporations. Arundhati Roy discerns a loss of sovereignty not only to the WTO but to a triumvirate of global players, with the United States as puppet master: "For all the endless empty chatter about democracy, today the world is run by three of the most secretive institutions in the world: the International Monetary Fund, the World Bank, and the World Trade Organization, all three of which, in turn, are dominated by the United States." (19)
If Bickel has an intellectual heir among the critics of international law, it may well be Jed Rubenfeld, like Bickel a professor at Yale Law School. In an unsettling piece, Rubenfeld argues that our commitment to democratic constitutionalism justifies America's unilateralism--its disregard for international law. (20) Rubenfeld's challenge drew the attention of the past president of the American Society of International Law, Anne-Marie Slaughter, who called on lawyers to rally to international law's defense. (21)
Still, today's complaints about international law have not reached the same public din, at least in the United States, as the complaints that Ely heard while composing Democracy and Distrust. Ely intervened following decades of socially cataclysmic judicial rulings, from Brown v. Board of Education to Roe v. Wade. But protests of international law are likely to grow, as international regimes produce increasingly significant and controversial results. The recent expansion of the world trade order into new arenas--including intellectual property, trade in services, investment, and government procurement--widens international law's ambit. Constituencies that had been blissfully unconcerned with international legal processes may become more alarmed as their livelihoods and ways of life are threatened. This anxiety was demonstrated most tragically by the suicide of a Korean farmer at the WTO ministerial meeting in Cancun in protest of agricultural liberalization. (22)
Imagine the year 2010. Breaking news: "World Trade Organization rules that U.S. regulations against international outsourcing of services contravene commitments on government procurement and telecommunications liberalization." Breaking news: "The WTO rules that a U.S. bilateral free trade agreement violates the most-favored-nation principle because it does not liberalize trade." (23) Breaking news: "The International Criminal Court indicts Donald Rumsfeld for torture and willful killing in the war against terror." (24) Breaking news: "The WTO declares that...