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.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.
