Democratizing International Law

Jus cogens are peremptory norms of international law. No treaty between states can violate them. They are based on fundamental moral precepts and are supposed to reflect a global consensus. As a result, the views of the people of the world – not just states and courts and international lawyers – ought to be assessed as part of that. Direct democratic input into what should be considered jus cogens can be promoted by convening Global Citizens’ Juries on the norms under discussion. Deliberations in small groups of people drawn from many nations can provide robust indicators of what world opinion would be, if everyone had access to similar information and discussions. Where broad consensus emerges across several such Global Citizens’ Juries, countries, courts and others ought to take that into account in deciding what to treat as peremptory norms of international law. Such a process would mark a significant contribution to improving the democratic deficit that currently prevails in making and implementing international law.

Policy Implications

  • International law in general suffers from a democratic deficit, lacking any direct democratic input.
  • The problem is particularly acute for peremptory norms of international law, those ‘super-norms’ that trump even treaties, which are supposed to reflect a global consensus concerning fundamental moral values.
  • Global Citizens’ Juries with people from many nations could test whether the norms under discussion would indeed command such a consensus.
  • Widespread endorsement of a norm by Global Citizens’ Juries would suggest that it should be regarded as a peremptory norm of international law.
  • The result would lend more legitimacy to these norms than is achieved by mere governmental endorsement and, ultimately, promote greater respect for them.
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