Lawmaking on the Road to International Summits
Indiana University Robert H. McKinney School of Law
DePaul Law Review, Vol. 59, pp. 1-68, 2009
The rising dispute over greater public access to the machinery of international law features two rival camps, each raising a flag of democracy, and each claiming that the other threatens that flag. They represent competing models of global governance. One camp sees a vital constitutive role for non-state actors in lawmaking. The other views states as exclusive and autonomous international protagonists. Yet despite these polar positions, each claims the mantle of the “more democratic”. This Article joins the debate and examines international summits as an emerging phenomenon that offers a potential bridge between the two positions. Summit meetings of heads of state and government are public forums where transboundary constituencies engage state leaders even as those leaders engage one another. Lawmaking, though only a ceremonial fraction of summit meetings themselves, is advanced by planning and implementing summit commitments; in these interstices, non-state actors work to inform outcomes and shape institutional agendas. This Article examines the role of non-state actors in summits and asks whether they can be viewed as contributors to the lawmaking process. The Article studies inter-American summits as a case in point, focusing on efforts to advance a regional “democracy agenda” through the catalysis of the summit process. Case studies include a U.S. proposal for a regional public participation strategy, a Peruvian initiative to discourage and respond to coups, and a Canadian measure to increase citizen access to the region’s chief political body. The Article shows that summits facilitated these initiatives by providing a context for cooperative law-making in which non-state actors played a central role – a key concern for public access proponents. Yet states initiated and managed the process, and heads of state and government ultimately ratified the outcomes, so the public role in shaping outcomes did not threaten state authority – a key concern for access critics. In the debate over the appropriate place for non-state actors in international lawmaking, the author thus concludes that summits can advance the legitimacy and democracy concerns that, at their core, appear to motivate the competing positions. While summits are not a basis for lasting peace between the camps, they can be seen as an emerging mechanism that offers common ground.
Number of Pages in PDF File: 68
Keywords: International Law, International Institutions, International Summits, Public Participation, Public Access, Civil Society, Democracy, Transboundary Legal Process, Transboundary Networks, Non-State Actors, Sovereignty, Non-governmental Organization, NGO, Deliberative Democracy, Summit of the Americas
JEL Classification: H1, H11, K33
Date posted: July 19, 2010