Tom Ginsburg, “An International Court for Constitutional Law”
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Tom Ginsburg, “An International Court for Constitutional Law”

October 14, 2019

right, thank you all for coming today to this
segment of Chicago’s Best Ideas. This segment is unique,
because it’s not actually Chicago’s Best Ideas,
it’s Tunisia’s Best Ideas. And I’ll explain exactly
why that is the case. I’m talking today about
an international court for constitutional law. And this is an idea
that originated with a man named
Moncef Marzouki, who was a doctor and a dissident
in Tunisia for many years, fighting the Ben Ali
regime, which was in power for about 30 years. And this dissident,
at one point, formed a political party. His constant call during
his years of dissent was for the government
to simply obey the law as it was written
in the Constitution and the national law codes. That’s all he wanted. But, of course, it
was a dictatorship. And a particularly corrupt
dictatorship at that. And so, they didn’t
do very much of that. When he formed a
political party in 2002, they banned the party–
even though there was a constitutional right
to form parties– and he went off to
exile in France. And then began to call for
not international intervention or anything like
that, but simply some mechanism to enforce
the Tunisian constitution. Now, of course, this
couldn’t be done in Tunisia, because it was a dictatorship
and the dictator controlled the courts. But his idea has
gained new force since he was elected
president of the country. That helps, of course,
to advance your ideas. And he has proposed this
idea at the United Nations. He’s going to continue
to push it this fall and, among other things, has
set up a little commission. He invited me to serve
on this commission, to try to prepare the
groundwork for this idea. So I thought I would
spend the time today talking about this idea and
evaluate it in a neutral way, to decide whether it’s
something or to see what the possibilities and
constraints are for an idea as radical, really, as
an international court for constitutional law. In some sense the
project faces three big conceptual difficulties. The first is, of course,
that the Constitution is supposed to be the
highest law of the land. It is a law created by we
the people for ourselves, an expression of our fundamental
values and our deepest beliefs. It is a device for
self-government. It’s not a device for
international government. And so, this is something
that is a kind of challenge, just in terms of thinking
about what constitutions are. This challenge, I think, can
be overcome, as I will explain. A second conceptual
challenge is the idea that constitutions are best
interpreted at the local level. We have seen in recent years a
wave of constitutional courts be established in many
countries all over the world. And these– the
job of these courts is to interpret
the constitution. And so, the second
conceptual difficulty is that those are the only
body that should do so. This difficulty, too, I
think can be overcome. I’ll explain that, in fact,
constitutional interpretation happens rather routinely
outside the national boundaries. That is, outsiders routinely
interpret constitutions, whether or not the country
or the government concerned wants them to do so. So I think that can be overcome. The third challenge is the
most significant, though. And that is the question of
whether this external body that we’re talking
about ought to be at the international level. That is, whether it ought
to be a sort of single body for the whole world or not. And this touches on many
contemporary debates in international law,
including the idea about whether there is
an international right to democracy, which
is a very large debate in international legal sphere. And this, I think, is
a greater challenge. So I will go through
each of these in turn. So first, the idea
that constitutions are exclusively local products. Well, if you think about the
earliest written constitutions, we know, of course, they were
expressions of we the people. But they were also
designed to communicate on an international sphere. Constitutions from
the very beginning have been about designating
a national government so that other countries
can deal with it. And that was, of course,
a major objective of our founding fathers,
trying to come up with a vehicle for
international relations in the wake of the rather failed
Articles of Confederation. The Constitution itself
says lots of things about foreign affairs. Who’s the commander
in chief, who is the representative in
terms of foreign affairs, and, of course, the
crucial question of how treaties are made, how
international commitments can be made that other
states can rely upon. So that’s a really important
international function. But beyond this
rather basic point, constitutions around the world
have always and increasingly are produced in a
transnational process. They’re not exclusively
local documents. Now, this point is
most apparent if you think about the cases of
foreign military occupation. So after World War II, when the
United States occupied Japan, the Japanese began to draft
a constitution of their own. The draft leaked to the
press, the local press, and MacArthur heard about it. And he and many
Japanese citizens were very unhappy
with the draft. It was a very
conservative draft. So Douglas MacArthur,
in his wisdom, jotted down on a piece of
paper four basic principles, handed it to his
assistant, and said, go draft a
constitution for Japan. Which the assistant and
about 20 other Americans did, in about 10 days. They kept this secret
for many years. But basically, if you read
the Constitution of Japan, it’s full of all these phrases
which make no sense in Japanese but make a lot of
sense in English. Rights are the fruit of man’s
age-old struggle to be free. Things like this,
which read well in English and the Americans
insisted on putting in there. In any case, that’s an extreme
case of a foreign drafting of a constitution. We’ve also seen,
more recently, cases like Iraq and Afghanistan,
where the draft is produced by a local team, but under– with heavy support from
international actors. And to some degree, the
choices that the local drafters can make are bounded by the fact
that there is a foreign force that’s keeping security. Beyond that,
colonial countries– countries that got
independence, let’s say, from the United Kingdom– typically, in order
to do that, had to negotiate with the
British Foreign Office about their own constitution. And the document was
typically produced in a kind of joint meeting, with
local political leaders meeting with colonial lawyers– colonial office lawyers–
to draft the text. So a lot of these
texts, at least the first constitutions of
many ex-British colonies look very similar. Because they were drafted by
a similar group of lawyers in the colonial office. So that’s a source of
international influence, if you will, on
constitutional text. More broadly, there
is a large category of instances in which
foreigners show up and advise the local drafters on
what they’re doing. This, too, is of ancient origin. The great French philosopher
Rousseau himself went to Poland and went to Corsica
to draft constitutions for these local countries. Unfortunately, Corsica
was invaded by the French before he could finish the job. But he, in any case,
was going to be the foreign father, if you
will, of the constitution. More recently in any recent
constitution making exercise– say, that of the world’s newest
country, that of South Sudan– you have a whole plethora of
international organizations that are supporting
the Constitution making process, providing
input on drafts, and sometimes in some countries, actually
having foreigners who sit on the drafting commission. So the point is that what you– what the documents
being produced are not simply expressions
of what we the people– of Somalia, South Sudan, Kenya,
Kyrgyzstan, you name it– want. It’s what we the people
can say in collaboration with some foreign technocrats
who kind of advise and constrain what is
actually going to be said. So the point is that
constitutions are not simply local documents. And therefore, it’s
not necessarily crazy to think that foreigners
might have something to say about the
interpretation of the document. Second challenge,
should interpretation be exclusively local? Well, again, this is something
which, if you think about it, is not– really has probably
never been the case. But increasingly
is something which we find a lot of interpretation
of constitutional text outside the borders
of the state. Another example from
ex-British colonies is the countries that,
after becoming independent, retained the
jurisdiction of something called the Privy Council. The judicial committee
of the Privy Council. What’s the judicial committee
of the Privy Council? It’s a bunch of judges
sitting in London who were, in fact, the United
Kingdom’s Supreme Court. They sat as the House of Lords,
which you may have heard of. But for disputes that arose
outside of the United Kingdom, they were the highest
court of appeal. So that in a country, let’s
say, like Jamaica, you would– if you had a problem with
the local constitution, you would appeal all the way
the Jamaican Supreme Court. And then, if you didn’t
like their decision, you could say they got it wrong. You could appeal outside
the borders of the state back to London. And this was
probably a good thing from the point of view
of the new creators of these constitutions. After all, every
constitution maker faces a fundamental
problem of credibility. How is anyone to believe
the promises that I make on a piece of paper? In order to make
promises credible, you need some institution
to guarantee them. And the problem with an
exclusively local institution is they can always be captured. You can always
influences the judge to– influence the judges to
give an interpretation that you like. And we see this
all over the world. By tying their own hands,
the new countries– the new ex-colonies– by limiting their own power
to manipulate the judges who would interpret
the constitution, they might have
actually, in some sense, empowered themselves. Because they would–
their promises suddenly became believable when
they would not otherwise be. And this might have
helped local people– local capital, for example– stay around and not
simply flee the country. It might help induce
foreign investment. And it might indeed add
protection for human rights. I should say that
in recent years, this jurisdiction has been
declining very severely. Many countries are leaving this. And maybe it’s
because they no longer need an international
mechanism for credibility. But for present purposes,
it’s an important example of international
constitutional interpretation. And shows, in some
sense, how that can function to help local
constitution makers to make their promises more believable. Regional organizations
often have a role in interpreting
national constitutions and I’ll give some examples. In recent years, there’s
been a consolidation of an organization called
the Economic Committee– Commission of West
African States. It’s 15 West
African states, they were trying to
form a free market. And it turned out
that the free– they set up a court
to adjudicate disputes related to the free market. It’s actually had
very few cases. They’ve had a much more
important jurisdiction in human rights. But for present purposes it’s
not necessarily the court I want to talk about,
it’s the organization. West Africa, as anyone who
follows the news knows, is a pretty unstable region. There are frequent coups,
civil wars, many other things. But sometimes what will
happen in this region now is that after an
unconstitutional change in government, the organization
will get together and decide to suspend the membership
of the country in question. They’ve done this
for Guinea-Bissau, they’ve done it for
the Ivory Coast, Mali, and most recently– or not most recently,
but earlier– in Niger. Let me give an example
of how it works. In Niger, in 2009, the president
was a man named Mamadou Tandja. He himself had been
elected 10 years before. He was seen as a
great democratic hope. He had been an
opposition leader. And as often happens in
Africa and many other parts of the world, the
opposition leader– once they show up in
the president’s office– decides it’s a pretty
comfortable place. And, well, even though
the constitution limited me to 10
years, the people really do want me to stay. I mean, I just can’t help it. I’ve got to accede
to popular demands and find a way to stay on. So Tandja proposed this,
proposed a referendum on this topic, whether the
Constitution should be replaced so that he could stay in power. But that, unfortunately,
is illegal according to the terms
of the constitution. That was not a possible
subject for referendum. So the dispute went to the local
constitutional court, which ruled against the president. He responded by
suspending the legislature and ruling by decree, running
a sham referendum very quickly, and managing to
secure a new mandate. Well, this is a case
where there’s obviously– the best, most
charitable description is that there is a local
dispute about the meaning of the constitution. The constitutional court says
one thing and the president says another. The constitutional court
doesn’t always need to be final. There’s a lot of debate
in American constitutional scholarship about how the
court is not actually final. And there’s dialogues that
happen among multiple actors. So the most charitable
description for the dictator– or for Tandja– was that he just
had a different interpretation. The thing, then, is that the
international organization, the regional organization, then
had to make a determination. And they decided, after looking
at all the circumstances, that he had violated
the constitution. And they suspended
the membership. Now, he didn’t last very long. There was a coup a
few months after that and they remain suspended
because of that. But the point is that
regional organizations, by virtue of controlling
their own membership, engage in a kind of
constant monitoring about not just the
state of democracy but the state of
constitutional– the state of the constitution
in any given country. Because they will
typically guard against unconstitutional
changes in power. More broadly, any time
an international actor must respond to a
change in government, they are engaged in
some sense in a kind of implicit or explicit
interpretive act. Are we going to recognize
this government or not? That’s easy enough when the
change is through an election. But if there’s anything
fuzzy, in some sense, every other state has
a decision to make about what the local
constitutional order required in terms of the change of power. So it’s a kind of ubiquitous
and necessary function. A couple other examples. In Latin America,
of course, there’s an organization called
The Organization of American States. And in recent years, they
had a number of fights with the government of
Hugo Chavez, rest in peace. After he took power in
1999, he set up a commission to restructure the judiciary. Which meant, of course, that
he could hire and fire judges at will. He was trying to
replace the judiciary with people who were more
amenable to his Bolivarian revolution. The terms, the text
of the constitution says this commission will
be in existence for a year. 10 years later, it
was still in existence and it’s still in
existence today. And so, the Organization
of American States through the inner American court
were faced with this question. Well, what is what
is going on here? And what they said is
that you are not following your own constitution. Again, it’s a kind
of regional solution. And this is just one of many
examples of their engagement. Of course, it doesn’t have
to be a regional body. One other example I’d like to
give is that of Afghanistan. So the Afghan constitution was
adopted in very early 2004. And in 2009, the first term
of President Hamid Karzai was coming up and there was
going to be an election. And the constitution seemed
to require an election date. Which pretty clearly
required an election– it didn’t require
an election date. It set a date by which
he had to step down. He proposed to have an
election then, very early. The problem was, Afghanistan
was not at all a secure place. How do you have an
election in a country where the government controls
40% of the territory? What is that election
going to mean? The United States and the
Afghan local Election Commission said that– set an election date. Or said that there should
be an election date, which was a little bit later,
to allow the security situation to improve. This turned into a giant
constitutional dispute between Karzai on the one
hand– who maybe, for the first and
only time in his life, thought the text of the
constitution was really important– and the Election Commission
on the other hand. The United States, again,
was in this position of having to decide between two
domestic interpretations, sided with the Election Commission. Again, I’m just– my
point is that this is a kind of routine thing. The problem is, of course,
that if external actors have to interpret local
constitutions, there’s a possibility
that they might disagree on what the local
constitution requires in any particular case. And this, I think, is
illustrated by a case in 2009 in Honduras. So in Honduras, the president
was in a similar situation to my example from Niger. The constitution had term
limited to the president to one term, a five-year term. The constitution, in addition,
to prevent any manipulation of that, said that
anyone who even proposes a change in the term
limit immediately loses office. Pretty good poison
pill type of mechanism. Well, Manuel Zelaya,
an ally of Hugo Chavez, decided that it would be a
good thing to try to stay on and the people
demanded it and such. And so, he proposed
that there be a referendum on whether to
adopt a new constitution. The Supreme Court of the country
said that was a violation and they issued an
arrest warrant for him. So far, so good. That’s where things–
this is where things get a little fuzzy. Instead of having the
police come and have a trial in Honduras,
the military came, took him in his
pajamas, and sent him out of the country on a plane. And this led to a very
big debate as to what exactly had happened. Immediately after that, the
line of succession was followed. So the speaker of the house–
who was supposed to take power if the president can’t
serve in office– became the president. The military never took power. But the Organization
of American States characterized it as a
coup, a coup d’etat, because the military had removed
the president physically. Is that at coup d’etat or not? Depends on your definition. Is it an unconstitutional
change in government? Well, it depends on how you
view the Supreme Court– which was a pretty
partisan body– and this mechanism
of military removal. There was a dispute. The United States initially
said there was not a coup. And later actors
or later commission sort of came to the
agreement that both parties were in the wrong. The point is that there
was a lot of disagreement among international actors. And that might
provide a rationale for having an
international body. The basic problem is one
that we see all the time in international relations. We need– if we’re a
community of states that are trying to
react to a situation, it might be helpful to
coordinate our understanding as to what happened. Why? So we can coordinate our
punishment or our acceptance of what happened. And that would be, I
think, a useful function for an international court
of constitutional law. There are, however, a number
of problems with the proposal. And I suppose the first
one is that states, in reacting to situations
like, say, Honduras, might prefer to
have the flexibility to react differently in
different situations. It might be the United States
didn’t want to call this a coup because they didn’t like Zelaya,
the president, because he was an ally of Hugo Chavez. Politics may have been
determining the reaction. And if that is the
case, then you’re going to see states being
very reluctant to give up some power to nine unelected
international judges to make decisions like this. So that seems to be a
pretty big challenge. Furthermore, there is likely
to be at least a potential for a kind of undermining of
the regional mechanisms which I describe, which seem to
be working pretty well. In many regions
of the world, you have regional organizations
which act as local cops, if you will, to prevent
constitutional changes in government. And at least in some
parts of the world, that seems to be working. Of course, the problem is
they don’t exist everywhere. There are large parts of
the world which don’t have such a regional organization. East Asia, pretty important
part of the world. The Middle East
outside of Africa. And so, an
international body might be able to cover
those regions which aren’t currently protected. On the other hand, if you
have an international body, it might undermine these
pretty effective bodies. It might crowd them
out of the enforcement that they’re already engaged in. Another issue related to this
is what law it would enforce. And this gets to
the large debate about whether there is
indeed an international right to democracy. To briefly summarize,
a professor at NYU a couple of decades
ago surveyed– many international
documents said, you know, there is an
international right to democracy. Every person on
earth has a right to be governed by a
democratic government. It was kind of a
radical proposition. It sounds good at
first, except when you realize that the
international environment is made up of lots of different
kinds of states, many of which are not– are not democracies, right? And so, you’re
essentially saying that we have to have
regime change in half the states of the world. Now that is going
to lead to a kind of interventionist foreign
policy, maybe a policy which would generate much more
conflict than one which accepts the kind of pluralist
basis of International Society. Recognizes that
many different kinds of states with many different
kinds of local legitimacy exist. And so, there’s been a
large debate about it. I, myself, am a little
skeptical that there’s an international right to
democracy, as you might guess. But there are some people
who advocate that it indeed does exist and should exist. But whatever the
state of it, I don’t think it’s possible
to claim that it does exist as an effective
right at this point. And that leads to the question
as to what this court would enforce, were it able to do so. I think there are another number
of quite practical challenges in the creation of
the International Court for Constitutional Law. And some of them have
to do with politics. And it might be good,
just for comparison, to think about the other great
international court that’s been created in recent years,
the International Criminal Court. Now, when the
International Criminal Court was first proposed– and, really, in the
early ’90s, I suppose, is when it began to
really take steam– everyone thought it
was a complete fantasy. And yet today, it’s
sitting in the Hague. It has a number of cases. It’s got a big budget. It’s operating. I mean, that suggests
that we shouldn’t just throw this idea out of hand. There may be some way or
some political alignment in which the International
Court for Constitutional Law might follow a similar pattern. But in thinking about
the probability of that, I think we have to look at the
politics of the International Criminal Court. So recall, the International
Criminal Court really took steam in the wake
of two massive genocides in which the west did nothing. And that’s, of course,
Bosnia, the former Yugoslavia, and Rwanda. And the embarrassment factor
for Western governments was pretty severe. How can we– after 50 years in
the development of human rights in the United Nations system
and declaration of commitment to preventing human
rights violations– how can governments just stand by
when genocide is occurring? So governments not actually
wanting to go and prevent genocide decided
that at least they could adjudicate these
things afterwards and that might have a
kind of deterrent effect. The politics of it involved
a large group of countries that allied together. Many of those are places
like Norway and Denmark and Australia, countries
where genocide is never, ever going to occur. So for them, this was
a very easy decision. They can take the moral
high ground with no risk that this body is going
to really infringe on their own sovereignty. There are also countries that
are very weak and unstable. The kind of countries
where serious human rights violations do occur– civil
war, genocide, et cetera. For those countries, this
court was also desirable. Why? Because it meant that
there might be some help for them in trying
to enforce and prevent these horrific kinds of events. So that was a natural
alliance which emerged. Of course, famously,
the United States stayed out of it after
negotiating quite a bit about the treaty. And that’s because
we were afraid of– our military was
afraid that they would be subject to its jurisdiction. But setting that aside,
you had a coalition. Now, if we’re talking about
an international right to democracy, what is
that going to entail? What is that going to embody? We in the United States
have many problems with our own democracy. Many problems. Would it entail international
review of Bush v. Gore? Would it entail an
international adjudication requiring national
uniformity in ballot boxes? It’s hard to know. Democracy is something
which countries differ about what
its content requires. In the United States, we
think freedom of speech is absolutely
essential and should be more or less absolute. In Europe, absolute freedom of
speech is seen as the threat to democracy because of hate
speech and things like this. You need to protect
against that kind of thing. There’s different
interpretations to what it would actually require. Gun control, right? For most countries in
the world, the idea that democracy would be
benefited by everyone having a gun seems crazy. But there are many
Americans who think it is. That is the essence
of democracy, because it allows
citizen resistance against the government. And whatever your
views on it, the point is that people disagree. Wearing a hijab or
a full face cover, which is now illegal in
several European countries. And there are proposals in more. Well, United States, we tend to
think that’s a ridiculous law. That’s an undemocratic law,
it interferes with democracy. In Europe, they think
it’s pro-democracy. The point is that we disagree. And so, how– what is
this court going to do that’s going to help
this coalition to form? Because I don’t think Norway and
the United States and Australia are going to be very happy
with international adjudication of democracy if it’s going
to affect them and us. And you could say that’s wrong. In my opinion, the
court should focus only on a narrow category
of things which form actual threats to the
continuation of democracy. It is very unlikely
in the United States that we are going to be
subject to a coup d’etat. It’s very unlikely
we are going to get an unconstitutional
usurpation of power, an overturning of the
constitutional prohibition on more than two terms,
this kind of thing. So you could imagine
a small set of norms– which would be
articulated in a treaty– for which international
adjudication might work. And it would be
those things which were most threatening to fragile
democracies, new democracies, rather than old,
established ones. To continue in terms of
the prospects for this, there are more lessons, I think,
from the International Criminal Court. But the point about narrow
set of law was part of it. The International
Criminal Court really focuses on four
categories of very severe international
crime, which everyone thinks are outrageous. The fourth one, aggression,
there’s a lot more dispute about. And that one has been a little
more difficult to define. So limiting the jurisdiction
would be helpful. Another lesson of the
International Criminal Court is the role of civil society. I don’t think this can just
be a project of states. The International
Criminal Court was produced with
overwhelming support from the states of the world,
largely because civil society non-governmental organizations
got behind it and lobbied their own governments–
or embarrassed their own governments–
into participating. At the Rome conference in 1998,
when the court was finally produced– their own statute
was finally produced– some 200 non-governmental
organizations were present and
lobbying and helping to support the
countries that were trying to put the
thing together, as well as the United Nations. So that kind of
alliance, I think, would be very important as well. But all this said,
there is likely to be some severe problems. And I think one of
the questions is one that is prompted in
some sense by my suggestion that an international court
might review Bush v. Gore. What if that had happened? Well, if they had
overturned Bush v. Gore, I guarantee you 50% of the
United States would be happy and 50% would be very unhappy. It wouldn’t actually
help to resolve the fundamental
cleavage in the society. And in some sense, having
international actors engage in these things
can generate a backlash. A very good example– again
from the International Criminal Court– concerns Kenya. In Kenya, there was
post-election violence a few years ago. And the International
Criminal Court was called in. And they indicted a number of
Kenyan leaders, two of whom have just won the presidency
and vice presidency of Kenya. And people there tell
me that this would not have happened had they not been
indicted by the International Criminal Court. That is, the International
Criminal Court indicting Uhuru Kenyatta may have
led his supporters to be more vigorous in
pushing him forward. So that’s a very
interesting point. And it suggests that these kind
of international interventions can have unintended
consequences and might have to be taken very carefully. Well, I’ve spoken
for quite a while. I will just conclude by
saying that this proposal does seem to be going forward. The Tunisians are pushing it. And it remains to be
seen how far it will go. There has been a
lot of work in terms of developing the details,
the institutional details of the court. I can talk a little
bit about that in the question and answer,
if you’re interested. But I think, ultimately,
this question of how deep the
court is going to be is going to be a
really important one. Basically, in international
institutional design, there is a trade off
between depth and breadth. The deeper you intervene into
local and national processes, the fewer countries
are going to join. The shallower you
intervene, the broader. The International
Criminal Court is actually a pretty shallow intervention. It just means, don’t– it basically says,
don’t commit genocide. Don’t harbor people
who’ve done it. That doesn’t require
too much of states. A much deeper thing, like, say,
the European Union treaties are face of real
challenge or trade off between breadth and depth. And I expect that this
one would as well. And so, my recommendation to
those who are pursuing this is to focus not on
depth but on breadth. And on forming a
political coalition, which might make this
dream turn into a reality. Thank you very much. So I have a little time for
questions, if there are any. Or comments? Yeah, in the back. STUDENT: Given the United
States’ aversion to giving up authority to international
tribunals or organizations, do you expect that
it would be likely for us to join one of
these organizations? TOM GINSBURG: No, I expect
that we would be the last power to ever do so. I mean, imagine a proposal
in the senate today. How many senatorial
votes would that get? Maybe one. Maybe two. But the point is that the
International Criminal Court is really the beginning
of an era which shows us the United States doesn’t
matter that much in terms of these institutions. And the regional, the efficacy
of the regional bodies in terms of policing
democracy at a local level suggests that that’s not
an insurmountable obstacle. So I think it’s a
good question, but I don’t think it’s likely that
we’d be joining anytime soon. Yeah, [? Alli? ?] STUDENT: I have a question
about the implications for this kind of institution,
for the development of institutions within
the state, because you’re delegating to the extent that a
constitution is a constituting document of the state. And you’re saying
that this would– your work recognizes
that constitutions die and constitutions fail. To what extent are
you not helping states the right to
develop in their own way, to develop constitutions
in their own way? Even if you’re very
narrow and just saying, we’re going to
prevent these coups. In my country, there
was a coup and he fled to another [INAUDIBLE] TOM GINSBURG: Right. STUDENT: So why are
we handicapping them by creating this body
outside the [INAUDIBLE] TOM GINSBURG: Right. It’s a really good question. So, sometimes
international institutions can complement local push
for democracy in this case. But sometimes, they
can substitute for it. That is, they can
crowd it out and make it more difficult for
locals to organize. And that’s, in some
sense, the backlash story that I was telling
with Kenyatta in Kenya. Is Kenya better off without him? I don’t want to get into
the politics of that. But the point is that the
outside intervention may not have been complementary
as it was intended to be. It’s hard to know,
though, because you have to take both sides of
the ledger into account. To the extent that an
institution like this has some deterrence value,
we’re unlikely to observe many challenges to democracy. How many presidents
decide not to seek a third term because of the fear
of international enforcement? Typically, what you’ll have
when a new institution like this is established is a
transition period, where you have some instances
of backlash and such. But eventually, if the
regime stabilizes properly, then you can imagine it could
play a supplemental role. STUDENT: Well, what about
somebody in this point of view if there is a region with,
say, a dominant superpower, or region, a dominant
country and region. The problem of that
country through the court affecting the politics of
its neighbors, so to speak. TOM GINSBURG: Right. So yes, there is a
fear of moral hazard with external intervention. Where you just intervene
in the cases with people you don’t like or you might have
some kind of selfish motive. And of course, we do observe
that very frequently. I think that’s one reason that
this proposal is for a court. Courts are standing bodies. Their appointments are
through some very transparent mechanism. And the thought is that
as an international court, it might be more
immune, if you will, from purely partisan pressure. Or the current situation, which
is that countries intervene when it’s in their interest. This is a big
issue when it comes to the idea of
humanitarian intervention. Humanitarian
intervention is the idea that a state can intervene when
there’s severe human rights violations. And one of the great
parts of the debate is, oh, if we allow
this doctrine to exist, there’s going to be a
lot of interventions. There’s going to be a
moral hazard problem. I think that problem
may be overrated. It’s still costly to have a
humanitarian intervention. But it is a concern whenever
you have an international court. Yeah. STUDENT: If constitutions have
relatively short lifespans, would every constitution
have to be– would it be
automatically opted in? You just [INAUDIBLE] the
constitution and regime in a state? TOM GINSBURG: Yes. So there’s a kind of
technical international law question of how you create
an institution like this. One possibility,
of course, would be to have a
constitutional amendment. Or when drafting a
new constitution, to just put in there– like the post-colonial
constitutions that had jurisdiction to
the Privy Council– a clause which
disputes about meaning of the constitution
on X and Y topics can be appealed to this
international court. That would be one way to do it. The other way of
course– and I think that’s the way that
they’re proceeding– is to adopt an actual
international treaty. And that would involve
states signing a treaty. And of course, it
depends on whether it’s in international law terms
a monist or dualist state. But the basic notion is that
once you sign the treaty, it doesn’t matter what
happens constitutionally. Constitutions come and go,
governments come and go. The treaty binds the country. And so, it will endure,
notwithstanding various domestic changes in power. That seems to be the
way things are going. STUDENT: Going off
of your comment on the breadth and
depth, would you expect to see a significant
amount of variation for a court like this regarding
the internal processes of judicial review
within a state? So, State A has
a certain process for reviewing
constitutional matters and State B has a different one. Would the court’s
interaction vary based on domestic policies? Or would the treaty
aspect supersede that? TOM GINSBURG: Well,
again, I mean, it obviously depends
on the details of the institutional design. But I think that’s
exactly the kind of thing you’d want to avoid. And it gets to the
question before about whether or not we’re going to– we need to empower local
constitutional courts. We need to make sure that
they’re institutionally strong. So displacing them
and allowing people to appeal any decision up
to some international level tends to make these national
courts less important, less valued. And that seems, to me, a real
downside of the proposal. And again, a reason
for just restricting it to the small number
of cases or issues on which you expect
that capture is likely to be a
particular concern. I should say that in designing
constitutional courts in recent years– because of the
spread of judicial review and the popularity
of it and really, the success of many
constitutional courts in adjudicating
difficult disputes– there’s been a tendency
to increasingly assign new powers to them. Power, for example, to
decide election disputes. Or power to declare political
parties unconstitutional and things like this. In some cases, even the
power to propose legislation. And in my view, this
is also a danger, overloading an institution that
seems to be performing well. It’s a common problem in
the development literature. You have an institution that’s
doing well, all of a sudden you give it a bunch of
new tasks and then it can’t do its original
task very well. So that’s a danger, too. But basically you’re getting
at the substitution point. I think that’s definitely
a very valid concern. STUDENT: Do you think that the
exception you just elaborated is only work for developing
countries or less developed countries? Because, I mean– actually, I
guess even Democrats would not be happy to see Bush versus
Gore reviewed by, let’s say, a Chinese government. So I wonder whether
this only work only– to be very honest– in
less developed countries. TOM GINSBURG: Well, that might
be right, the countries that– but again, think back to my
example of the Privy Council. That. was a decision
that was taken perhaps with some pressure from
the British on, let’s say, the Jamaicans
or the citizens of Barbados or whatever. But it did serve
a local function. And I think it could be a
particularly useful thing during a period when a
new democracy is just coming into being, during a
period of democratization. It might help to make those
promises more credible. That might suggest, actually,
that the form of this thing should take into account the
possibility that it’s simply a temporary jurisdiction. That it’s something that
you would opt into by treaty for a period of X
years just to guard against very particular
kinds of problems and threats that you think are
likely to undermine the local democratic order. And that might be
a good addendum to the institutional design. It’s not what’s
being thought of now. The basic institutional
design that’s contemplated is really copying the way that
the International Criminal Court was created. So that involves delegating a
body called the International Law Commission– which is a
body of the United Nations, which drafts large
multilateral treaties– with the task of
coming up with a draft, model draft design,
which would then serve as the basis of a
statute like the Roman statute. Which would be adopted
by many countries in the form of a treaty. So that’s the way
they’re going about it, but it’s not the only
way that one could. You can imagine some
soft law type mechanisms or some other
alternative designs which might be more effective. But I think you’ve touched
on the temporal aspect and the idea that maybe
it’s not something that established democracies
really are going to want. STUDENT: So, my concern, maybe
you already responded to it and I just missed it. So, fundamentally– or at
least my understanding, again– is that this is talking
about developing countries who maybe won’t just be
developing countries. But it seems like
those are going to be the ones trying
to essentially bolster their institutions. And thus, they already have
these rule of law issues. TOM GINSBURG: They
only have what? STUDENT: They’re
already probably going to have some rule of
law issues if they need this independent body. And thus, if they’re
not even going to abide by their own
rule of law for a thing like overstaying
their terms in office, why would they be
willing to listen to an international institution
to tell them to do it? TOM GINSBURG: Right. So we have an example from
this regional experience that it’s actually
costly to be kicked out of a regional institution in
a number of different ways. So when you were kicked out of
the West African community– well, there’s actually
trade benefits you lose. That’s really concrete. If you’re kicked out
of the international or the Organization
of American States, it’s maybe less
economic but more a kind of embarrassment factor. The British Commonwealth,
I should add, also plays this kind of role. It’s kind of a club
of ex-British colonies and they show up and advise you
on democracy and law and such. But I think there is
something to being sanctioned at this international level. It means you’re called out. It’s not going to be
a perfect corrective. It’s not going to be a
perfect mechanism that’s going to deter people who
want to stay in power. Being a dictator’s a
pretty good job, right? A pretty valuable one,
though it often ends badly. But you can at least
exploit some money– exploit the country
for a little while and do pretty well temporarily. Now, how else might
enforcement work if it’s not just kicking you out of a club? Well, it’s difficult.
There’s nothing in the statute
which contemplates any particular sanction. I think what is being called
on in some sense is well, really what the default
mechanism of enforcing international law
is, which is nothing. Barring exceptional cases, like
threats to peace and security– international peace and
security– where the Security Council can mobilize. The general mode of
international law is not to provide sanctions
so much, in my view, as to declare one side or the
other being right or wrong. It’s not worthless,
by any means. What it does is it
allows private parties or individual states to
coordinate their own reaction to what the situation. So if all the
countries in the world condemn a particular
country, well, then they have an incentive to
coordinate their enforcement behavior, which would
be very decentralized. General feature of
international law is that enforcement
is decentralized. Having a court to declare
an action is either kosher or not– if you’ll
pardon the expression– can help states to effectuate
de-centralized enforcement. STUDENT: Professor
Ginsburg, there’s another question on that side. TOM GINSBURG: Oh, I’m sorry. Where is it? Go ahead. STUDENT: I’m going to
leave you just to clarify. STUDENT: Do you consider this
an alternative or a supplement to the Security. Council and Commission on UN
and Commission on Human Rights? TOM GINSBURG: Yes. Well, it’s a really
interesting question to raise the Commission
on Human Rights. So I think when the people
who are talking about a right to democracy tend to root it in
a provision in the UN charter, which says that the United
Nations will promote human rights and
fundamental freedoms. So that’s some
democracy-sounding language in the UN charter. Notwithstanding the fact
that many countries were dictatorships
fundamental freedoms– whatever that means– was part of the category. So the idea is that,
well, maybe democracy is such a human right. We have had in the
nearly 70 years since the adoption of the
UN Charter a large number of different bodies
that have been set up to promote and protect human
rights within the United Nations. And, of course, regional
organizations as well. By and large, the lesson
of that experience is that the international
organizations– the UN organizations– don’t
function very well at all. They require states
to set them up. And they require state consent. And they tend not to
reach very deeply, as you might expect, into
the concerns of states. Furthermore, they’re
already set up. So to me, this suggests that
thinking about this as a right to democracy within that
framework is not helpful. And that indeed, if this court
is going to be effective, it should not focus
on rights at all. Why? Because as soon as
you announce it’s going to have a rights
jurisdiction, now all of a sudden, you
have 15 different bodies which are competing with you. They say, no, no, we
are the authoritative– the Human Rights Council is
the authoritative interpreter of human rights. Or the European court is the
authoritative interpreter of human rights. That kind of
competition wouldn’t be good for such a
nascent institution. And so, I think that
probably avoiding rights entirely is a good idea. Hank? STUDENT: So the court seems
to be primarily focused on, like you said, a very
limited number of regimes, essentially. Whether certain regimes
are going to stay in power or whether they’re going to
sort of entrench themselves with dictators, with the
exception of a few regimes and a few [INAUDIBLE]
for the planet. Like, on the extremes,
maybe, like with genocide or whatever you called that
regime in South Africa. [INAUDIBLE] Most
regimes, there seems to be an inconsequential
factor, in terms of their development as
democracies or as free markets or as economies. Don’t you think
we’re just getting involved in a process
that seems to be really complex and difficult
to understand to begin with? And that might not be a
consequential [INAUDIBLE] TOM GINSBURG: Is the
question really about democratization and
how that happens? STUDENT: Right. I mean, that
doesn’t seem to be– we don’t know how that
relates for developmental or [INAUDIBLE] Which might
be completely irrelevant, whether the president
of Bolivia or whoever is going to stay
in power or not. TOM GINSBURG: Right. Well, I mean, I’m not so sure. I mean, I do think
that we tend to– term limits is a pretty
interesting institution to talk about in this
regard, because, of course, you can differ on whether
term limits are themselves democratic or undemocratic. With a term limit, you’re saying
essentially, we the people, even if we want to elect someone
by a majority in 10 years, we cannot do it. It’s a hands-tying mechanism. And are term limits democratic–
democracy supporting or democracy hindering? And there’s no consensus on it. There does seem to be
a kind of intuition in many new democracies
that term limits are really important. And that they can help
foster long term democracy. STUDENT: Is there
examples of that? TOM GINSBURG: Yes. Mandela, I think, is a
conventional example. Mandela probably could still be
president today if he wanted, but he stepped down. George Washington, same thing. They kept begging
him to keep running. He said, no, I don’t want to. And after that, we had a
norm, unconstitutional norm– I mean, excuse me, unwritten
constitutional norm that presidents wouldn’t
serve for more than two terms. So all that said,
we don’t really know about what the magic
is that creates democracies. We certainly know nothing about
timing and really, sequencing. And there’s not a lot of work
that’s been put into that. I’m not sure we
can say very much. And we’re continually surprised
by people like the Tunisian Mohamed Bouazizi, the guy who
immolated himself in late 2010 and sparked the Arab Spring. Would have been impossible
to predict that. No one did. So I think you’re
right to suggest that it’s a poorly
understood process and we don’t really
know what the effect of an international
intervention would be. All that said,
there do seem to be things where most people agree
a violation of democratic orders occur. We can make some
judgments, I think, about the quality of democracy. But maybe I’m not fully getting
the responding question. STUDENT: I would just say–
let’s say the regime in China [INAUDIBLE] made a
decision, it was appealed. And then the constitutional
court said, no, you were wrong. And what is the benefit to
that, if the alternative was just we did nothing, we
didn’t care about it. China would probably
still be developing relatively at a fast pace. I don’t know if it
would do anything other than create another
opportunity for violence or some sort of instability,
that in the long run– 10, 20, 30 years– would
all just be inconsequential, in terms of [INAUDIBLE] TOM GINSBURG: I mean,
yes, that’s true. But it would tend to
think repression is bad, regardless of
whether it is going to have mid-term
consequences that are good. I mean, by the logic,
you’d say, well, that genocide was really good. Because it spurred
people to promise never to do it again or
something like that. So I do think we can be short
term in our assessments, although I think your question
also gets at very real concerns that I’ve raised about backlash. And it’s very hard to know how
an international intervention would actually play out
in the local context. STUDENT: It seems
like whatever you think is a one law fits
all kind of a institution, you’re always using
[INAUDIBLE] to justify it. But there’s a lot of– for
instance, Latin America– developing countries where
the democracy is actually very solid right now. [INAUDIBLE] Which, I think
that if the institutions are solid for these
types of countries, it’s important for
the citizens should believe in one of
the institutions where you actually
have a final word. It’s like the last institution
that can make a mistake and there’s no
recourse after that. Because it can cause
[INAUDIBLE] There’s always going to be a
small amount of people that would be dissatisfied
if the Supreme Court decision would try to go
to international court. But if the Supreme Court can
sometimes create divisions within its own country, imagine
if foreign bodies were trying to deal with multilateral– hundreds of different
countries and situations. TOM GINSBURG: I’m not sure. I think it’s a little more
complicated than that. I want to make two points. First of all, Latin
America, of course, one of the– the
major body is the OAS. One of the reasons they
reacted so strongly against the Honduran case
was because many of them had had coups. Many of them had suffered coups. And democracy was now entrenched
enough as a norm for the OAS to take it on and champion it. But in some sense,
when they did that, they are an external body. And they’re reinforcing the
norm in all of their members. They’re saying, we are
drawing the line here. No military
intervention anywhere. So any of you other militaries
that are thinking about that, no, you can’t do it. And so, in some sense, I
think the international level can be complimentary in ways. And we shouldn’t just assume
that the local or national level is the only level at which
democracy reinforcement can happen. The other point you
made is about finality. And this is, I think, quite
relevant to major debates in American constitutional law. So the traditional view among
law professors and judges was that the Supreme
Court is final. And this comes out in
a 1958 court decision, Cooper v. Aaron, where the court
says, we are actually final. But in response to
that, many people said, well, wait a minute. You’re not final. The executive has a
constitutional duty to uphold the Constitution. The Congress has a
constitutional duty to uphold the Constitution. Why do we prefer one
body’s view over another? Not only that, there’s a large
body of scholarship now saying that it’s actually
we the people that are the ultimate guarantor
of the Constitution, not the Supreme Court. After all, why do people
obey the Supreme Court? It’s not because of– they were appointed by God,
it’s because they’re embedded in a democratic system. So that suggests that even
at the national level, it’s not clear that one
body really is final. Now, it’s been very
good in recent years to see the development
of constitutional courts around the world. I think that’s been a generally
stabilizing, except in Brazil last week. And what happened
in Brazil last week is that the court
decided to enjoin the legislature from
deciding a particular issue. They were discussing an issue
that was just a proposed bill, the court enjoined
them from passing it. Well, the legislature wasn’t
very happy about that. And it seems to be a kind
of excess of jurisdiction. And now they’re proposing
to limit the court. Well, that’d– OK, that’s
an example of a court overreaching. And that’s the
fundamental challenge of the era of
juristocracy that we’re living in, where courts have
become so much more important. So we shouldn’t assume that
courts are always right. And therefore, it
might be possible for international courts
to check lower ones in ways that are actually
helpful for democracy. STUDENT: And the
[INAUDIBLE] body can always change the constitution. But as long as it’s written
in the constitution, I guess that’s important
to [INAUDIBLE] what’s written there, just to avoid
the tendencies [INAUDIBLE] TOM GINSBURG: Yes,
I agree with that. Yeah? STUDENT: I was
wondering if maybe you could describe or compare
international criminal tribunal. Just what the
constitutional court would look like [INAUDIBLE]
somewhere different [INAUDIBLE] international criminal tribunal? TOM GINSBURG: Yeah. So I wasn’t at all
involved in this. But there was a–
there’s a group of folks who’ve drafted a
mechanism for appointing these judges. And the challenge, of course,
for all international courts is how to get people who are– have the support of states
but are not just partisans, are not simply partisans. There’s a lot of
very good literature, by the way, on
trying to determine whether international
judges are in fact neutral or biased or biased
towards their home state or they’re biased
toward states like them. And it’s just a very
interesting literature. It seemed to be, in some
cases, you could find bias just as you would in
the US Supreme Court by who appointed the judge. So those kind of
dynamics do play out. The proposal is to have the
judges of several important international courts– the
International Court of Justice, the International
Criminal Court, I think the International
Tribunal of Law of the Sea, I’m not sure– get together and
nominate a large group of potential judges, double
the number that are needed. And then have the General
Assembly of the United Nations elect the judges. That’s somewhat
similar to the way the International Court of
Justice justices are appointed. But they are, as well, elected
by the General Assembly. So that’s the idea
of trying to solve the problem of insulation, but
also some deep representation and accountability
for the judges. It’s a little bit
premature, in my view, to be talking about this. Because who even
knows if a treaty is going to be the right form or
that the UN will be involved? But that’s the proposal. Yeah? STUDENT: You may have
already covered this, because we already talked about
jurisdiction a little bit. And it might be too
early [INAUDIBLE] this hasn’t been
talked about yet. But you’ve compared
it to the ICC a lot. And I’m wondering if
you see this court as having the same referral
process as the ICC? That there be a third-party
referral process with the UN Security Council
or a self-referral process. TOM GINSBURG: Right. Right, so who would be able
to bring cases to the court? Now, with the International
Criminal Court, it’s basically states and UN– the UN body. And the prosecutor
can take some cases with approval of the
Security Council. What is contemplated here
is something much more open than that, something that would
include even the possibility of individuals or NGOs
and such bringing cases once they have exhausted
local remedies, once they’ve gone through the entire system. And again, that has some
of the costs and benefits that have come out in
the discussion today. On the one hand,
you don’t want yet– you don’t want
everything to be appealed to this international level. But for extreme violations,
it might make some sense. And you also, of course,
want to have some screen, because the court’s going to
have very limited capacity. So an exhaustion of
remedies requirement seems to accomplish that. I don’t think that there
is any notion that we– such as we find in the
International Criminal Court– which is that states
can be brought before the International
Criminal Court or people can be brought before the
International Criminal Court, even if their own
government didn’t agree to the jurisdiction. I don’t think
that’s contemplated. This is going to be, in some
sense, a more traditional body, in that states will
either buy in or will not. I don’t imagine they’ll
be adjudicating cases from North Korea very soon. Well, thank you very
much for your attention.

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