Response to Professor Weiler's "Geology of international law".

Author:Obregon, Liliana
Position:Joseph Weiler, response to lecture given at other forums - The Geological Strata of International Law - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

The panel was convened at 10:45 a.m., Thursday, March 30, by Carolyn Lamm. The commentator was Liliana Obregon of the University of the Andes, Colombia. The panel's lecturer, Joseph Weiler of New York University School of Law, was unable to attend.

RESPONSE TO PROFESSOR WEILER'S "GEOLOGY OF INTERNATIONAL LAW" *

It is an honor to participate in ASIL's centennial celebration as a respondent to Joseph Weiler, whose work in international, comparative, and European law exemplifies the search for a "just world under law." Unfortunately, Professor Weiler could not be with us today to discuss the issues of justice and the disparities of power among states presented in his "The Geology of International Law--Governance, Democracy and Legitimacy." Professor Weiler has been presenting this piece in various forums since 1999, and it would therefore have been especially interesting to ask him about the evolution in his thinking in relation to the following topics: democracy and the rule of law as applied to international law, the history of international law, international law as governance, the legitimacy of international law, international law as community, and, particularly, the "geological" method used to analyze these topics. In Professor Weiler's absence, the following are posed more as questions than as comments:

INTERNATIONAL LAW AND DEMOCRACY

Weiler distinguishes national and international spheres: States are in the "business of governance" conditioned by orders of legitimacy through the "inextricably linked" concepts of democracy and rule of law; international law is in the business of "setting a legal matrix for coexistence and community among States and of ensuring order and justice." (1) But why does Weiler compare a state with law? It seems more logical to compare the business of national law to that of international law, or the business of states to that of international organizations. However, I think Weiler purposely makes this obviously awkward comparison to make us question how ideas of democracy and rule of law are applied to international law.

One of Weiler's central concerns is that the concept of democracy is inapplicable to international governance because of the fundamental absence of the premise of majority rule (demos). Therefore, democracy cannot legitimate international governance because "any attempt to bring [international norm setting and law making] into the laboratory of democracy as if belonging to a monolithic species called 'international law' will result in a reductionist and impoverished understanding of international law, of democracy and of the actual and potential relationship between the two." (2) Weiler's comment concurs with three contemporary positions on this point.

(1) Global governance theory takes democracy as a descriptive, rather than normative, concept. Since there is no global government, governance cannot be associated with the act of "governing," or in the institutions and authority controlling it in the domestic sphere. (3)

(2) The prevalent idea of "rule of international law" dating to the nineteenth century is the "liberal impulse to escape politics" through...

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