The balance of power between authoritarian regimes and democracies in the world is ever-shifting and has significant consequences for issues such as human rights. International law is meant to provide stability to the process, allowing for legal order and cooperation.
The differences in approach to international law between different forms of government was the focus of a panel at the February 11 American Bar Association Virtual Midyear Meeting program, “Democracies and International Law,” sponsored by the American Bar Foundation.
The program centered on the recent publication of the book “Democracies and International Law” by ABF Research Professor Tom Ginsburg, a Leo Spitz Professor of International Law at the University of Chicago. Ginsburg has written extensively on constitutional democracy and before teaching law he served as a legal adviser to the Iran-U.S. Claims Tribunal.
Ginsburg started with a rough definition of democracy. He believes you must have elections in which the losers recognize the result and step aside. Add to that the idea that there are core rights: the right to freedom of speech, the right to vote, the right to form political parties. And thirdly, you need what he calls the bureaucratic rule of law, which he likened to having a system of thousands of people counting the votes in an election who are unbiased and who follow the law.
He described a core difference in the types of governments: Democracies are defined by the fact that leaders will eventually have to step down. In dictatorships, the leader’s survival and the regime’s survival are the same thing. If dictators lose, they will not only lose the office of power but also the wealth, the wealth of supporters and even their life. That means authoritarians are very risk averse.
Since democratic leaders like to extend their policies beyond their lifetime, it makes them more likely to sign onto international treaties. Authoritarians, on the other hand, fear public uprisings or internal coups, which make them less eager to cede any power to an outside arbiter.
Ginsburg found that most innovations in governments come from democracies, such as new rights or freedoms. But once they are invented, authoritarians copy and repurpose them for their own ends. “That means you can find a formal similarity in national constitutions of dictatorships and democracies,” he said.
But Ginsburg does not believe in a human right to democracy. “Democracy is a system of government that is actually not likely to work in many countries.”
He went on to point out how China has become much more sophisticated at using international law, both in economic matters but also increasingly politically in informing international organizations. This has allowed China to use international laws to its advantage.
Rachel Cichowski, a professor of political science at the University of Washington, brought up the importance of non-state actors, including anything from corporate interests to nongovernmental organizations and human rights organizations. She noted that today more than 20 different types of non-state actors are participating in human rights legal processes.
Cichowski cautioned about what these groups mean to the system of international law and wondered if some of them opened the door for authoritarian countries or corporate entities to take advantage. Different groups may be getting a voice in the process. “We have to ask, what happens, and whose voice?” Cichowski said. “And when someone’s voice is included, whose voice is left out?”
Dongsheng Zang, associate professor of law at the University of Washington School of Law, sees two different kinds of democracies emerging, pointing to the divisions between laws in the United States and Europe, such as privacy in cyberspace or laws concerning climate change.
Ginsburg believes that the United States and China will be less important than we think in the future of international law. “They are the two biggest, most powerful countries, but there’s lots of other stuff happening,” he said. “Maybe the future of democracy is not in their hands but in the hands of smaller countries.”
He said that the Cold War rhetoric does not apply and that China and the United States are bound together through their production systems and will remain tightly linked. Unlike the Soviet Union, he said, China does not have a problem with democracy as long as it doesn’t undermine its core interests.
Panel moderator David Tang, managing partner-Asia at K&L Gates, brought up the issue of sovereignty, which is something that authoritarian governments look to, and that the democracies use a different perspective in thinking about international law. He mentioned how the U.S. is not a party to the International Criminal Court because of sovereignty issues.
Ginsburg said sovereignty is a nice concept, but it is fairly abstract. “All nations use the term sovereignty when they are on defense,” he said. “When they want to actually engage in some cooperation that benefits them and their citizens, you never hear the word.”
In the end, Ginsburg said, international law is a critical component to preserving world peace. The purpose of it is for states with different moral backgrounds, histories and perspectives to get along and organize a good society. “Sometimes those are democratic and sometimes they may want to be democratic but the social conditions for democracy … are not there,” Ginsburg said. “Sometimes they might be rooted in other forms of the good life, religious traditions and such.”
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