by John Otrompke, JD
Following is my commentary on Prof. Richard Albert's new paper, "Does the World Need an International Constitutional Court?"
Prof. Albert was kind enough to extend to me a general invitation to come to Austin, Texas to present my research comparing the treatment of executive discretion by two Supreme Courts: that of the US in Sierra Club v Trump (Trumps' wall) and the UK in Cherry v Solicitor (Brexit).
Prof. Albert's text can be found here
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4198354
I conclude, among other objections, that an International Constitutional Court is not a good idea, because it could be used to justify aggressive warfare, which is otherwise a grave international crime.
Dear Prof. Albert,
I enjoyed reading your recent article, “Does the World Need an International Constitutional Court?” Thank you also for extending to me the general invitation to comment.
While I learned much from your article, I respectfully disagree with your thesis that such a court would be a good idea, although I agree with your conclusion that the idea should not be rejected without more thinking.
Here is where I disagree.
When I studied international criminal law under the late Prof. Cherif Bassiouni at DePaul, it seemed emphasized that peremptory norms, or jus cogens, were not political; that is, they were not based on what kind of government a country had. Grave crimes such as crimes against humanity or other forms of human rights abuse were subject to prosecution before the International Criminal Court, but no particular form of government is privileged over another (eg, democracy, socialism, etc).
International law came of age during the Cold War, and it was important the form of a land’s government not present a justification for superpowers to invade and bring about regime change, possibly justifying what would otherwise be a violation of the grave crime against aggressive warfare.
And historically, notions about democracy and its idealization often did provide an excuse for colonizing countries in the west to intervene in traditional societies, in Africa, the Pacific islands, and elsewhere, to demand that they adopt modern democracy, as a cover for colonizing them and exploiting their natural resources and labor.
And our own country has a not very good track record for helping democracy to happen in other countries. One of closest allies is Saudi Arabia. And when direct military intervention justified by a perceived need for democratic “regime change” doesn’t work, intelligence agencies will work behind the scenes, such as by putting the Shah of Iran in power.
Perhaps democracy is stymied because the US began supporting monarchies when the US chose to enter WWI 100 years ago, ignoring Washington’s injunction to avoid the broils of Europe.
Part of the problem is probably one of definition. For example, societies of great variety all over the world call themselves “Republics,” but nobody really agrees as to what that means. As for Plato, I’m not even sure I like his model of a society.
I’m also not sure that democracy is on the wane. The League of Nations and the UN have been created in the last century. It is kind of a form of global democracy, but perhaps the democracy is stymied or thwarted in the design: votes in the General Assembly often go 150-3 (the 3 being the UK, US and Israel), but the proposals get no traction because of the Security Council.
Maybe a modified UN really is the way to create a more democratic world, but the US might not recognize it, and might oppose it, just as the US opposes the International Criminal Court.
However, it’s not a bad idea, and I certainly enjoyed learning about de Gaulle’s referendum, and the regional Constitutional courts you wrote about so eloquently. Thanks again for the opportunity!
~John
