Democratizing International Law

Published date01 October 2011
AuthorSteven R. Ratner,Robert E. Goodin
Date01 October 2011
Democratizing International Law
Robert E. Goodin
Australian National University and University of Essex
Steven R. Ratner
University of Michigan
Jus cogens are peremptory norms of international law. No treaty between states can violate them. They are based on
fundamental moral precepts and are supposed to ref‌lect a global consensus. As a result, the views of the people of the
world – not just states and courts and international lawyers – ought to be assessed as part of that. Direct democratic
input into what should be considered jus cogens can be promoted by convening Global Citizens’ Juries on the norms
under discussion. Deliberations in small groups of people drawn from many nations can provide robust indicators of
what world opinion would be, if everyone had access to similar information and discussions. Where broad consensus
emerges across several such Global Citizens’ Juries, countries, courts and others ought to take that into account in
deciding what to treat as peremptory norms of international law. Such a process would mark a signif‌icant contribution
to improving the democratic def‌icit that currently prevails in making and implementing international law.
Policy Implications
International law in general suffers from a democratic def‌icit, lacking any direct democratic input.
The problem is particularly acute for peremptory norms of international law, those ‘super-norms’ that trump even
treaties, which are supposed to ref‌lect a global consensus concerning fundamental moral values.
Global Citizens’ Juries with people from many nations could test whether the norms under discussion would indeed
command such a consensus.
Widespread endorsement of a norm by Global Citizens’ Juries would suggest that it should be regarded as a
peremptory norm of international law.
The result would lend more legitimacy to these norms than is achieved by mere governmental endorsement and,
ultimately, promote greater respect for them.
International law is largely made by states. They sign
treaties. They develop customs that become binding as
law, at least on those states that did not persistently
object. They recognize certain norms of international law
as peremptory or jus cogens, from which no state is
permitted to derogate.
Much of this proceeds without any direct input from
the people of the world. True, there is indirect civil
society input through NGOs (Boyle and Chinkin, 2007;
Raustiala, 1997). True, also, many treaties are approved
by legislatures. But those bodies are often not fairly
elected, and in any case many treaties and customs
enter into force without parliamentary action. Further-
more, treaty regimes can create institutions that are
empowered to devise new rules and resolve disputes –
between states, or between states and investors or
individuals – in a binding way without further popular
That democratic def‌icit in international lawmaking is a
source of consternation to critics across the political
spectrum. Critics from the left protest that the World
Trade Organization and investment treaty regimes
subject people around the world to rules and arbitral
decisions without their own direct consent. Critics from
the right protest at the prospect of democratically made
domestic law being preempted by international human
rights law, which is made and interpreted by interna-
tional bodies that do not have any particularly strong
democratic mandate themselves and that do not defer
enough to the state’s domestic values.
We offer one modest proposal to ameliorate those
worries about the democratic def‌icit in international law.
For reasons we shall elaborate, our proposal targets one
special category of law, jus cogens. That is def‌ined, in
the words of the most authoritative text, as ‘a norm
accepted and recognized by the international community
Global Policy Volume 2 . Issue 3 . October 2011
Global Policy (2011) 2:3 doi: 10.1111/j.1758-5899.2011.00117.x ª2011 London School of Economics and Political Science and John Wiley & Sons Ltd.
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