The Comparative Disadvantage of Customary International Law
McGinnis, John O., Harvard Journal of Law & Public Policy
International law is as important a topic as any to our future legal regime. International law increasingly infiltrates the domestic world. Some United States Supreme Court justices appear to use international law, including unratified customary international law, (1) as a source upon which to draw in defining the category of citizens constitutionally subject to the death penalty. (2) Other scholars advocate treating customary international law as federal law that constrains officials and even displaces conflicting federal legislation. (3) Under such a regime, international rules might then even bind the United States in the war on terror. (4)
What makes the domestic application of some customary international norms particularly controversial is that Congress and the President have not affirmatively chosen to give them domestic effect. This unprocessed international law, or "raw international law," is distinguished from international law expressly adopted by the political branches, such as self-executing treaties. Pragmatically, one should give domestic effect to raw international law if it is likely to produce norms better than those produced by our own political processes. The rule of international law is certainly not to be preferred if it destabilizes a better American rule of law.
To evaluate the quality of raw international law, one could simply cite instances where American law and professed customary international law diverge and then argue that the American law is better. American law, for example, permits the Executive to detain enemy combatants associated with al Qaeda who have not been convicted of specific crimes. (5) Many international lawyers assert that customary international law does not allow for such detention. (6) Yet, determining which law is normatively better might not be very productive. People who agree on abstractions like fairness often disagree on particular norms like these. One might instead assess whether the process of making raw international law is better than the process of making American law, which is based on domestic legal processes about which there is a consensus. To do so, one must compare international law with American law--first as it affects Americans and then as it affects the wider world.
Democracy is one process that commands consensus support for norm creation. Although a full analysis of why democracy is likely to reach good norms is beyond the scope of this Article, two arguments are worth noting. If individuals support norms when personal benefits exceed personal costs, then norms adopted by a majority are likely to be beneficial overall. Moreover, collective judgments of diverse individuals are likely to be more accurate in assessing costs and benefits than judgments made by only a few.
A glaring problem with customary international law, the most important category of raw international law, is that it has a democratic deficit built into its very definition. To be customary international law, a principle must result "from a general and consistent practice of states followed by them from a sense of legal obligation." (7) This definition mentions only the "general and consistent practice of" nation-states without any reference to representative processes or to the welfare of citizens. Thus, by its very definition, customary international law neglects democratic decision making. In addition to this theoretical
problem, customary international law has at least five different democratic deficits that arise in practice.
First, nations do not have to assent affirmatively to the creation of a principle of customary international law. Instead, nations are considered to have consented to a principle if they simply failed to object. (8) This measure of assent compares unfavorably with the requirements of domestic democracy, which assure both deliberation and accountability. Domestic political actors cannot create norms by inaction but instead must affirmatively embrace a practice to make it law. …