Courts are a fundamentally strange creation. Parliaments, in comparison, are much easier. We vote for a representative to be part of the statute-creation process. The voting process indicates (to some degree at least) the authority of the parliament.
We can bring this to a folk notion of consent. In a republic of reasons, I can only interfere with another person if I have their consent. The State, legitimised through an election process, can assume to have the consent of the population it governs (even if any one particular individual did not vote for the governing parliament because… magic).
It’s never as simple as all of this. There’s a bit of chicken-and-egg when it comes to the rules of an election. Take, for example, the Senate which is unrepresentative swill. Take also the examples of the borders of an electorate, or whether you’ve got representative or proportional voting, a preferential system or a FPTP, &c., &c.
But at least there is a thread between the citizen and the parliament. The judiciary is an altogether different beast. Only people from the legal profession can become judges. Judges are appointed, not elected. They ‘interpret’ (whatever that might mean) the law as written by the people elected to create laws. They also define what the current law is (as seen in the ‘You don’t know the Executive Power like I do’ case, Williams v Commonwealth about the National Chaplaincy Program).
We can, at a stretch, say that the Courts are governed by the people through the Constitution. Through referenda, the people determine the content of the Constitution which authorises the creation, composition, and role of the judiciary. And then the Court interprets the meaning of that law… So it’s not a perfect system.
Let’s not discuss the Executive…
What we are seeing is something sort of like a closed system of legal authority. Somewhere, there’s a thread between the citizen and the institutions which have power over them. With the possible exception of part of the Executive, there are no outsiders to the system. It also shows why the debate between parliamentary sovereignty and judicial sovereignty is so important. Should judges be the final word on the limits of parliamentary power? Are elections a sufficient check on the limit of parliamentary power? A lot of us have very strong intuitions about what we think ought to be the case, but turning that into something reasonable is difficult.
Enter international law.
Instead of having individual citizens of an international community, public international law is about States. It’s also about the establishment of supranational legal authority through the creation of treaty bodies.
I struggle to reconcile the idea of international law with constitutionalism in any strong sense (the word ‘Constitutionalism’ often varies in its meaning from something theoretically interesting – the ‘-ism’ of constitutions, like ‘Marxism’ or ‘Socialism’ or ‘Positivism’ – through to just a pretentious term for the analysis of particular constitutions. When I use the word here – or anywhere, really – I’m using it in a strong, theory sense).
We can have a sensible discussion about constitutionalism entailing the control or restraint of State authority by the people who are governed (the last bit there is sleight of hand, because it might be possible to think of non-democratic constitutionalism). But public international law adds an extra layer: we now have States controlled both by the people who are governed and by a bunch of ambassadors (and former ambassadors) from various countries.
Perhaps the thread goes from the people, to the State, and then through the State to the treaty bodies. This seems like a stretch. Australia’s Constitution allows the Commonwealth Parliament to enter into treaties; perhaps the treaty bodies are legitimised in a similar way to the judiciary. This also seems like a stretch.
Treaty bodies with the authority to issue punishment are fundamentally problematic because they share control and restraint of the organs of State with people who are not governed by those organs. But maybe there’s the rub. Treaty bodies are generally unable to issue punishment and often rely on the consent of States to accept findings. Treaty bodies aren’t ‘controlling’ or ‘restricting’ the State in a strict sense.
Even so, that’s a tenuous point. If we talk about treaty bodies as creators of international legal norms (which we often do), then they need to have some sort of authority. There needs to be some explanation for how that authority can compete with the authority of the State to legislate in accordance with the wishes of the electorate.
Perhaps we should go down the path taken by other countries: the Commonwealth can sign international treaties, but they aren’t ratified until supported by popular vote. At each general election, we’d have a list of the treaties signed by the Commonwealth since the last election. We could indicate whether we agreed to it or not; if it failed to win a majority of support in a majority of the states (oh, how I hate the states), it would fail to become law.
Most of the groups who are enamoured with international humanitarian law would be extremely concerned about anything resembling democratic will (humanitarian groups love judicial supremacy). As sometimes happens, those groups are correct. Is it an efficient and effective way to engage in foreign policy if you have to wait for the next general election before you can act on treaties you’ve negotiated? The countries that do this are notoriously slow to act on treaties.
But it does leave us back at the start. What justifies shared control of the State with the ‘international community’ (by which we mean ‘a large committee of very senior, busy people whose seniority is not uniformly correlated with merit and whose expertise is patchy and often politically tinged’)?