PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE
A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recognizing checks on the lawmaker's powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed in the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy. As A.O. Hirschman observed, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions. I want to inquire into the role of checks in international lawmaking.
At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle maintains that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decisionmaking, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle—that each state has a veto over the adoption of international law, at least as applied to itself and its subjects—suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule. One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption makes some states better off and no state worse off.
This first impression, however, is wrong. First, international lawyers argue for the existence of jus cogens norms that apply regardless of state consent. Second, the concept of state consent is artful, and opportunistic decisionmakers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic coercion can reduce state consent to a meaningless formality. I discuss each of these points in turn.
Once state consent ceases to constrain international lawmaking, the question role of alternative checks to protect liberty looms. Under what circumstances does the international lawmaking process as currently constituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify?
I address these questions in three steps. First, I explore whether international law does carry a threat of coercion. If not, concerns about arbitrary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institutions, with specific reference to the Rome Statute and the International Criminal Court. Third, I discuss the process-value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those interested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts. a
a I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and participants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone.