PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE
Authors: Stephan Paul B. 
Published: January 2006

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.