Democracy Paradox

Tom Ginsburg Shares his Thoughts on Democracy and International Law

October 19, 2021 Justin Kempf Season 1 Episode 70
Democracy Paradox
Tom Ginsburg Shares his Thoughts on Democracy and International Law
Show Notes Transcript

At the end of the day, I am optimistic despite all the evidence. First of all, I think there are a lot of resources that democracies can use. A lot of areas of law, where as long as we recognize what it is we're fighting for, democracy is worth fighting for and have a common view as to what that means that we can advance it in many places, not just here but abroad. And this might sound a little hokey, but there really is a genuine human demand for freedom and that's not going away.

Tom Ginsburg

A full transcript is available at www.democracyparadox.com or a short review of Democracies and International Law here.

Tom Ginsburg is a professor of international law and political science at the University of Chicago. He is the coauthor of How to Save a Constitutional Democracy with Aziz Huq and the author of Democracies and International Law.

Key Highlights Include

  • How is international law made and enforced?
  • How do democracies approach international law differently than authoritarian regimes?
  • Is there a right to democracy?
  • Differences and similarities between the approach of China and the United States towards international law.
  • How do regional organizations support democratic norms?


Key Links

Democracies and International Law by Tom Ginsburg

Follow Tom Ginsburg on Twitter @tomginsburg

How to Save a Constitutional Democracy by Tom Ginsburg and Aziz Huq


Democracy Paradox Podcast

Charles Kupchan on America's Tradition of Isolationism

John Ikenberry on Liberal Internationalism

More Episodes from the Podcast


More Information

Democracy Group

Apes of the State created all Music

Email the show at [email protected]

Follow on Twitter @DemParadox

Follow on Instagram @democracyparadoxpodcast

100 Books on Democracy

Tom Ginsburg is among the most important voices in political science today. He brings insights as a legal scholar into scholarship on democracy. Of course, many legal scholars double as political scientists. But what makes Tom different is he is a comparative political scientist. So, he examines judicial institutions, constitutions, and international law from around the world to help us understand democracy. 

Tom Ginsburg is a professor of international law and political science at the University of Chicago. Tom’s done a lot of impressive scholarship, but some of you may have read an influential article Tom wrote along with Aziz Huq called “How to Lose a Constitutional Democracy” in the UCLA Law Review. They followed it up with a popular book called How to Save a Constitutional Democracy. His latest book is called Democracies and International Law. I actually heard he was working on this book last year and have been hounding him every few months to get him on the podcast. It’s available to purchase as an ebook now, but won’t be available as a hardcover until December. 

Our conversation touches on the way democracies shape international law and the way international law shapes democracies. We discuss the roles of both international and regional institutions. But out conversation also touches on authoritarian governments like China and Russia and their use of international law. 

Before we start I want to thank anybody listening to the podcast for the first time. You might want to check out democracyparadox.com where you’ll find a full transcript of the episode. I’m also available via email at [email protected] for questions about or suggestions for the podcast. But for now this is my conversation with Tom Ginsburg…

jmk

Tom Ginsburg, welcome to the Democracy Paradox.

Tom Ginsburg

Thanks so much for having me on Justin. Really love the show.

jmk

Thanks. Well, Tom, I'm actually a really big fan of yours. I'm not sure how often you hear that, but read a number of your books. Big fan of a lot of your articles. See you as one of the really big names in not just political science, but in connecting democracy with international law itself. So, I was extremely excited when I saw your book come out and it did not disappoint. So, thank you so much for writing it.

Tom Ginsburg

Well, thanks for reading it. I think you might be the first person to read it.

jmk

Well, it definitely was a great book. So, Tom, as I read your book, I felt like the main point was to try to understand what makes democratic regimes different in the international arena. And for me, along with a lot of the listeners, the first thing that comes to mind is that democracies don't fight in wars with each other. It's that Kantian logic that assumes that democracies behave differently in the international arena, particularly in terms of conflict. So, to start out, can you tell us first off, is this actually true and maybe what does it tell us about the approach that democracies take to international law with this basic assumption that many of us make?

Tom Ginsburg

Yeah, that's such a great question. And, of course, you're right. It's like one of the few laws in social science that democracies don't go to war with each other. And, of course, we have a lot of speculation, a lot of scholarship on reasons why that occurs, but, you know, the fact that it occurs there's no doubt about it. So, one reason democracies might not go to war with each other is that they might be more interconnected. They might trade more with each other. They might have more exchanges across borders and such, and, you know, that would raise the cost of going to war.

Another argument is that democracies, because of their turnover in government, right, which is what's definitional of democracy. Like, you know, if you don't have turnover in government or at least the possibility of it, you're not really a democracy. That creates kind of a need for democracies to be thinking a little bit longer term and to cooperate with each other using international law.

And that's really the argument in my book that precisely because the governments in democracies know that they're going to be out of power, they're trying to secure policies and secure public goods for their successors and for their own followers down the road. And that leads them to cooperate. And what's the way you cooperate over time. It's international law. You conclude agreements and so that sort of compliments the idea that they don't go to war with each other and also means they can affirmatively cooperate across time using international law.

jmk

So, why don't we talk about international law? Because I think that it's a complicated idea. A lot of Americans are very averse to it, because they're focused on their own community and they think that the American laws should effectively be the only law that they're concerned about. But international law dates back a very long time. John Marshall, the first big Justice on the Supreme Court, used international law in a lot of his rulings. So, international law is not new. It doesn't arrive after Wilson. It doesn't arrive with the emergence of the UN. Can you help us understand what this kind of ambiguous topic is? What is international law? How do we create it especially, because there's no international government to enforce it or promulgate it's laws?

Tom Ginsburg

Yeah, that's a common question that you ask. Like is international law, really law? And we always spend a lot of time, you know, in our international classes debating that issue. And it's kind of, you know, a jurisprudential question I'd say, but maybe one place to start is to say we've always had it. Human societies have always had it. The first treaties go back to the Ancient Mesopotamians. Ancient Greeks used international law, the Romans. So, anytime you have more than one government, you need some mechanism to coordinate among those governments and it could be as simple as like just deciding where one's territory ends and the other begins. What's the border between our two kingdoms and countries? Kingdoms have used treaties to do that since time immemorial.

So, I think that goes to the question of why international law must exist, why it's often effective, and why we have so much more of it now than we used to. So, if states have a need to coordinate, if only to keep their troops from butting up against each other because they both think they have the same territory. Well, then you need some mechanism of writing that down and memorializing it. But once you do that, it's kind of what we'd call a self-enforcing agreement in political science. Like once, you know, you and I declare a border between us, that means I will send my troops right up to that border. But I'm not going to cross it because that's going to create a conflict with you.

And so, there's kind of a natural self-enforcing quality to that at least in many cases now, of course, there are breaches of these kinds of arrangements all the time. But the point is that there's much more compliance with international norms generally and particularly this kind of coordination norms than there are breaches. Now, international law has really accelerated in terms of its intensity. The number of topics that covers, really since World War Two, like the Post-WWII order is founded in international law. It's sometimes called a liberal order in which there's a lot of international agreements, a lot of trade agreements, a lot of security arrangements across borders. And things like the United Nations, which, of course, are sort of constitutional bodies in international law you might say.

And that's probably because of, but also contributes to all the cross-border interaction we have which just generates a need for more coordination. So, I think it's like an inherent, almost a natural phenomenon now. You've also asked, well, how do we enforce these things? And I think a lot of international law is just enforced because it's in the interest of all the parties to enforce themselves.

And I think a good analogy is which side of the street you're going to drive on. You know, you go out in the United States. You drive on the right side of the street that's not because you're really worried about a policeman pulling you over and enforcing that rule. It's because, you know, if you drove on the left side of the street, you'd be eliminated from the gene pool pretty quickly. Another car would hit you. So, our expectations of what actors are going to do will determine our strategy in any given situation. I think international law plays that function a lot for states.

jmk

Yeah. You mentioned that international law has developed quite a bit since World War II. I mean, we've had the United Nations and we've got lots of different international regimes that exist today. There was a passage in your book where you wrote, “Most innovations in governance technology occur in democracies.” So, with the rise of liberal democracy after World War II, it doesn't seem like it was an accident that we also expanded international law and international institutions. How do liberal democratic values encourage the development of international law and all these different institutions that we have today?

Tom Ginsburg

So, you know, at the end of World War II, of course, we wanted to do a bunch of things. The victors in World War II wanted to prevent war from happening again. You set up the United Nations Security Council and things like that, but there was also, because of the horrors of World War II, a new emphasis on human rights and self-determination in the face of all the colonialism that was going on. And, I think, certainly those latter two things sort of square with the idea. Democracy was really important. People should be allowed to determine their own future governments. Of course, should be free to do what they want to do. There are sovereignty concerns, but there's a certain set of boundaries which no government can legitimately cross. And that's really a post-World War II idea. It's a liberal idea. It's the human rights idea.

And that was really, from the beginning of the United Nations and the Universal Declaration of Human Rights, kind of built into the normative structure of international law. Now, it wasn't always enforced. We had the Cold War and such, but still like those ideas have a really strong place in international law. And, you know, I think that means that the two things can kind of, what's the word co-constitute each other, I suppose you'd say, promote each other and support each other.

jmk

So, does international law focus on the individual or does it really just focus on states?

Tom Ginsburg

So, the starting point, of course, is that international law is primarily law among states and those are the primary actors. All states are considered sovereign, which means they get to determine within their boundaries of their territory what kind of governance system they’re going to have. And we need international law to help them coordinate their behavior outside their borders. Again, after World War II, you saw this new emphasis on the individual, but also on groups, collective rights of self-determination and concerns about equality. When you have societies which are based on one group dominating another, trying to get at that. And so, I would say it's kind of both nowadays. It's both states, but also now individuals and collectivities. All those things are legitimate targets of international law or legitimate subjects of international law.

jmk

Okay. I’m going to draw us away from international law for just a second. There's a line in the book where you kind of linked together the idea of democracy and individual rights. You write, “I do not believe that one can have a democracy that is truly illiberal in the sense of rejecting certain core individual rights.” I bring this up because we're talking about the importance of individual rights that emerges after World War II, along with the establishment of democracies after World War II. And we largely assume that there's a connection between the two. I’d like you to kind of draw the link there, because you spend a lot of your research, a lot of your time, focused on how democracies do emphasize individual rights. And I think you're a perfect person to kind of help us understand what the connection is.

Tom Ginsburg

So, you know, I suppose you could start with a really thin political science definition of democracy which is just like you have elections and the losers give up power. That's Adam Przeworski. It's kind of a common starting point. But, you know, I guess one first observation is you can't really have these elections unless you have some other things. And in my definition, developed in my last book with Aziz Huq, you know, we emphasize two other things. One is a certain set of individual rights. You have got to have a right to speak your mind, a right to assemble with other groups, maybe a group right to form parties, the right to vote. You know, you can't really have elections without those things, the small set of individual rights being viable and robust.

And then we also emphasize that you need a bureaucracy. And this is something most definitions of democracy don’t really consider, but like you can't really have an election unless you have people counting the votes in a neutral and honest way. And more broadly, we just think bureaucracy is really important for democracies to thrive. So, I mean, all of that is to say that democracy depends on a certain number of individual rights and democracies are a really good vehicle for promoting individual rights. By and large human rights protections are much better in democracies than non-democracies, which is not to say that democracies like our own don't have lots of problems and lots of rights abuses. But it's just that we have mechanisms for dealing with them.

We have mechanisms for exposing them and talking about them and sometimes mechanisms for redressing them. And that's just really not true in authoritarian countries. Even if they like to claim that they're also advancing certain rights, I just don't really see that as being equivalent. So, I think the two things do go together.

jmk

So, let's extend that idea. Thomas Frank, years ago, wrote an article called, “The Emerging Right to Democratic Governance,” where he posed the idea that there was starting to become a right to democracy. I’d like to ask you your thoughts on that. Do individuals have a right to democracy?

Tom Ginsburg

Okay, great. And this is exactly where I get off the train. You know, rights are important. Human rights are important. Democracy is a really good way to promote human rights. But I do not think there's an individual right to democracy in international law. And I want to explain why, because I think that position will be seen as controversial by some people. I mean, just because something is a good thing doesn't mean we need a right to it. I think going to baseball games is really fun, but I don't really have a right to go to a baseball game. And then that's not an international human right. Everyone loves the sunshine, but there's no human right to it.

The problem with naming something as a right, is that it then means there's duties on the parts of states and the international community to protect and enforce those things. And that's where I'm really concerned with the idea of a right to democracy. If you really say there's an individual human right to democracy, that means, you know, the governments of China and Egypt and Saudi Arabia and Iran, not to mention milder governments like that in Thailand or Uganda or something are violating a core freedom. And thus, the rest of us should do something about it. We have an obligation to protect human rights. Does that mean we're not going to invade all those countries and impose democracy on them as a way of protecting human rights? I think that would be counterproductive.

Basically, I've a kind of minimalist view of international law which is we have to recognize that, yes, rights are important. And they are limits on state sovereignty, but we're also dealing with a system in which there's all kinds of different bases of government that are legitimate. Just democracy is not the only legitimate basis of government in my view and that's partly informed by the fact that comparative politics tells us that like not every country can be a democracy.

Certain levels of wealth seem to be required for a democracy to really survive and flourish, certain levels of education. These are conditions which aren't really met everywhere on earth. It would be nice if they were met, but the way to expand the realm of democracy is to improve those underlying conditions and then support those within those societies who are trying to advance the democratic project rather than using international law to declare the non-democrats to be illegitimate. That's my opinion.

jmk

No and that's fair. Now, Thomas Frank argued that there's an individual right to democracy. Let me soften that a little. And kind of test out an idea. Sheri Berman wrote an article entitled, “The Pipe Dream of Undemocratic Liberalism,” and her idea, along with Marc Plattner and many others, have said that it's very difficult to be able to protect liberal rights when you don't have democracy. So, if we soften that idea, instead of saying that people have a right to democracy, if the argument was it's difficult to protect other human rights, unless there's democracy. Does that mean that effectively people have a right to democracy in international law or does that not change anything?

Tom Ginsburg

I'm not sure it changes anything. You know, when someone says that there's no real such thing as an illiberal democracy, they're saying two things. They're saying, first of all, the democratic category requires liberalism or certain core rights which I agree with. And they're also saying that illiberal regimes, therefore, you know, need to be liberalized. They need to be made democratic. And again, I think that's kind of an empirical question of what the best strategy is. If you think that we should be expanding individual rights, expanding liberalism, certainly a strategic question, but I guess I'd also question the premise of the argument. Like, is it really the case that there are no decent societies that are illiberal? I'm not sure. Liberalism is an ideology basically of the Enlightenment West. It’s thrived in only a few places.

There's a lot of different ways to organize society and ways that are compatible with basic human rights. I think that may or may not be liberal and may or may not be democratic. I really do believe that, notwithstanding the fact that some of those illiberal regimes engage in very bad behavior that we should condemn and try to minimize as well.

jmk

So, to get back onto the idea of international law for just a moment, when we look at it, is it really just a series of political norms? Like you described that we established boundaries and people don't invade one another. But the way that you described it, it sounds very much almost like a social norm or rather a political norm that everybody behaves, but there's no real enforcement of it, or does it really have legal standing in those countries that abide by international law?

Tom Ginsburg

So, there’s a large literature, as you might guess, on enforcement of international law and international lawyers definitely recognize it's a challenge. And yet we're surrounded by international law that is enforced. The Taliban have to run an airport in order to get planes in and out. They've got to abide by the relevant international treaties and if they don't want to do that, they're not going to have any planes coming in and out. So, that's just a very basic kind of coordination point. More difficult questions arise when you talk about, you know, nation's core interests or something like that.

But it remains the case that even the United States which, of course, doesn't have a robust history of really celebrating international law in recent years, complies with most of its agreements, most of the time. And we're always trying to use treaties and international law to advance our particular ends. Here's a realm which might Illustrate the point. It's the realm of international investment.

You know, if I was a Swiss person and I had a company here in the United States, and the city of Chicago decided to tear down my building and take my factory because I didn't pay the right alderman or something like that, which could have happened here in this city with some point, I would be wronged. And as a foreigner, I have a right to be treated according to a minimum standard of treatment. There's a treaty between these two countries which protects my investment. And if I went to U S courts and they didn't give me satisfaction, I'd be able to sue on the international plane and I’d get recovery. And the United States would pay that award.

So, you know, that's enforceable. We should not focus on the very high-profile cases of nonenforcement, but more on the routine cases in which international norms are enforced. Let me give you one other example. The Trump Administration, of course, you know, it was very hostile to international law, but when they withdrew from the Paris agreement, you know, they followed the mechanisms of international law in doing so. Like it's perfectly legal to withdraw from a treaty and they followed those protocols, those norms. It's a way of states communicating with each other and, you know, it does have legal consequences in the sense that a domestic court can hold you liable, can enforce these rules, even if there are plenty of examples of international law, which are not routinely enforced as well.

jmk

That's interesting how you bring up the economic implications of international law and the need to be able to do that within a globalized economic system. Like we have two countries that are playing a larger and larger role in our international system. And oftentimes have a different view of international law would be China and Russia. And oftentimes they're seen as aligned, but I'd like to get your insights into how they hope to change international law or international institutions in the future. How do they approach international law different than a democracy like the United States or democracies in Europe?

Tom Ginsburg

Yes. Well, I think, your first observation’s right. You know, these are giant countries that we have to deal with and both are hostile to the liberal project. Both are pretty hostile to the United States right now. Interestingly, they do have a lot of differences among them. They have very different regime structures, but they have in the last few years issued joint statements on international law. So, they see international law as an area in which their interests are quite aligned. And what are those interests? What's their vision of international law? Well, it's very much focused on sovereignty, non-interference in the internal affairs of other countries. Of course, they don't want us interfering with their internal affairs.

And also, something that they sometimes phrase as the rule of international law, which is a little twist on a phrase that others sometimes use, the international rule of law. And typically, what they mean is that states should not impose force on other countries outside the context of the Security Council. You know, the rule of international law is like the UN system with the Security Council at its center. And, of course, who's on the Security Council, Russia and China. In a way, it's a move in which they're kind of using international rule of law discourse to consolidate their own veto power on the international plane.

So, I think it's really interesting how they've come to a common strategy. Even though they are not, of course, aligned on every issue. They certainly share this particular vision of international law and they share certain other things like cooperating on a cyber law treaty where they're basically trying to ensure that states and not markets are at the end of the day in charge of the internet. So, yeah, you see a lot of cooperation.

jmk

At the same time though, China in particular has really become embedded in a lot of different international institutions beyond just the United Nxations. I mean, we can look at the WTO. We can look at the WHO. We can also look at some of the more regional institutions that they're trying to create such as the Asian Investment Bank. Even the Belt and Road Initiative that they've put forward is a form of international cooperation. How does China view a lot of these organizations beyond the United Nations in terms of its initiative? I mean, obviously, they're trying to play everything to their advantage, but is there a more coherent ideology beyond that?

Tom Ginsburg

I think they're being real experimental, which is of course how their domestic reforms played out since 1979. You try something. You see if it works. You tinker with it. You try something new, but international law is definitely a plane on which they are experimenting. And that includes creating international organizations. This is an example of what I call authoritarian international law where the organization's purpose is not so much to undermine sovereignty or anything like that of the member states, but to reinforce it, to help each state cooperate on dissidents across borders and things like this and to ritualize international interaction. So, yeah, they're experimenting with new international organizations, new forums. A lot of these take innovations like a regional development bank that developed in the west and then just tweak them a little bit.

And so, I think they're, in some sense, trying to fit into the existing international order in ways that obviously expand their freedom of action and don't constrain them. And that's kind of interesting. I mean, it's a very different China, certainly not comparable to the Soviet Union in the Cold war which really had an alternative vision for global society that it was willing to push aggressively and with guns. China's not like that at all. It's really, not withstanding a lot of saber-rattling over Taiwan and things like that, basically focused on its own internal governance and giving itself freedom of action and not wanting to be constrained by international norms. And it’s big enough to actually play a role in shaping those norms. And that's what it's trying to do now.

jmk

Yeah, despite the obvious differences between the United States and China in terms of its form of governance, it's surprising how many similarities actually do exist in terms of their approach. You write in your book, “Powerful states do not like constraint and this is true of democratic as well as authoritarian states.” And we've seen the United States, oftentimes, rebel against constraints placed upon it by the international community. You just mentioned about pulling out of the Paris climate agreement. Also along with China It did not opt into the Optional Protocol in terms of the Treaty on Torture.

We would have assumed years ago the United States would have, as a defender of human rights, but it chose not to put that type of constraint on it, just like China didn't. Russia did not as well. So, referring to the United States, does the United States care more about its sovereignty than the liberal order that it actually helped to create?

Tom Ginsburg

Yeah. I mean, one of the ironies that I point out in this book is that the United States and China for all their differences are actually acting pretty similarly with regard to international law. And both states as potential global hegemons have the same attitude, ‘International law is great. It's fine to constrain the rest of you, but it can't constrain us. It's a tool by which we will try to advance our interests. But boy, if it's going to keep us from doing something we want, no, we're not going to play that game.’ So, that's kind of ironic, if you think about it, given the increasing tensions between the two countries. It's basically kind of a structural position that they're in where they not only don't want to be constrained, but they don't have to because of their scale. And that's interesting and novel.

In a way then what does that mean? Like the realm of international law especially when it comes to like promoting and helping democracies secure themselves is going to be most important in the smaller midrange states when it comes to enforcement and cooperation across borders. Maybe the action isn't in either the United States or China. Maybe it's in smaller countries, regional organizations in Africa and Latin America where they do have pretty thick norms about democracy that just apply to those regions and we have some history of enforcement. So, I think your question is absolutely right, but also, maybe we all spend a little too much time thinking about the United States and China when we're trying to analyze something like democracy and authoritarianism.

jmk

That's a great point. Why don't we take a second right now to talk about some of those regional organizations? You write about regional organizations all throughout the world. You mentioned Africa. You also write quite a bit about Latin America. How do those regional organizations approach ideas like human rights and democracy differently, maybe than a global approach does?

Tom Ginsburg

So, first of all, regional organizations are not evenly distributed around the world. There's the Organization of American states in Latin America and a number of subregional organizations there in Africa. There's the African Union and some subregional trade agreements. But there aren't really any regional organizations that are Asia wide. There's one in south Asia that's very weak and dominated by India. There's one in Southeast Asia, ASEAN, which is not a very, you know, what's the word, robust in terms of its internal integration that it's promoted. So, that's the first point. It's like different regions have different attitudes about these things and the importance of regional organizations may differ.

Now in both Latin America and in Africa you have seen the emergence of pro-democracy pro-human rights norms at both the subregional and the regional level. And, you know, each story is different in terms of how those things came to be about. But the point is now, you know, in Africa there are norms against unconstitutional changes in government, which include not only coups d'état, but also an attempt to undermine term limits that would be considered an unconstitutional change in government. And there's a regional rule against that that is enforced some of the time in some countries. So, that's pretty interesting. I don't think we could ever have that at the global level. But you start in a region where all the states are pretty similar and they all have an interest in not having conflict in their neighbors because that could spill over.

And that's sort of the building blocks of prodemocracy international law. In my view, you know, there are other parts of that where, like in Southeast Asia I just mentioned where, there just aren't very many democracies. In ASEAN there's only sort of one and a half democracies right now, Indonesia and Malaysia, I guess you'd call it a democracy. And you know, they're not confident or institutionalized enough to certainly want to play a role in trying to encourage Myanmar to democratize further much less Thailand or these kinds of other cases. So, I don't think we're headed for robust global norms, but that doesn't mean that we don't have prodemocratic international law

jmk

It's interesting to me that Africa is among the leaders in terms of establishing democratic norms through a regional organization. Can you help explain why Africa has been at the forefront of this, because I don't know that most people think of Africa as being highly democratic even though most of its people actually score very highly on different questions in terms of their support for democratic ideas and democratic norms?

Tom Ginsburg

I think a number of things are going on. So first of all, obviously in Africa you have the most intense history of colonialism anywhere. So, you know, there's this sense of like, ‘Wow, the international community hasn't done much for us.’ From the beginning of independence, you actually had Pan-Africanist kind of thinking on the continent, which was basically saying like, ‘Let's govern Africa by Africans. Let's do things together, because our countries are very small.’ You know, there's 50 something countries in Africa. They're not necessarily able to have the market size or the resources to have robust security regimes. Cooperation is kind of a natural thing in that part of the world and I think what really triggered integration in the 1990s, was, not just the need for common markets, but the fact that security crises in various countries there had enormous spillover effects.

You know, there's something Americans don't know anything about, what we call the world war three of Africa which was the Congo Civil Wars in the late 1990s, early two thousands where millions and millions of people died. Nine countries were involved. You had these horrible human rights atrocities in Sierra Leone, Liberia and so there's just a sense that like, ‘Wow! Things could really fall apart. It's in our interest, each country's interest, to pay attention to what's happening in its neighbors.’ And what better way to do that than through a regional organization. So, that's kind of, sort of, my view of the history of why these organizations started to form.

And then, you know, again, not all the countries are democratic. Not even the majority, but you have certain like civil society actors, bureaucrats in the international organizations, lawyers who were pushing for pro-democratic language and actually got it in there and began to implement it through the regional courts. So, I think it's a very interesting story politically. A very interesting story for political scientists, as well as international lawyers, as to how you can do that.

And again, I'm not trying to say that the systems are working perfectly by any means, but in a way, that's always been true of all of international law. Normative rules or normative aspirations are always ahead of enforcement on the ground. The fact that you get some enforcement on the ground in a place like Africa is actually really remarkable and may tell us something more broadly about the conditions under which international law can succeed.

jmk

In some ways Africa might actually be more effective than some other regional organizations that on paper should be more powerful. Like we look at it in Latin America, they've been very ineffective at being able to affect regime change over in Venezuela. And Europe, they've been very ineffective and holding Hungary or Poland to account within the European Union. You write in the book about cases in Africa where they've actually been able to ensure that they actually had change in leadership in certain countries. I don't want to say that they necessarily imposed democracy in some of these countries. They still score relatively middling like The Gambia still scores as partly free according to Freedom House, but it's made a lot of progress within the past few years.

Tom Ginsburg

Right, and that's only because the neighbors were concerned about ignoring an election. And so, I think that's absolutely right. And I think the dog which didn't bark here is actually the European Union, as you say, which has just had a ton of trouble with Poland and Hungary and kind of very late to wake up to the problem. And it's actually a problem of regime design if you think about it. You know, we saw with Brexit, it's really hard to leave the European Union. The system isn't designed to facilitate that. And it's really hard to expel a member who isn't abiding by the European norms. So, you know, in some sense, it goes back to what we were talking about earlier. Like what is the best way to spread international law and democracy?

I mean, what happened in the 1990s, of course, was the extension of the European Union eastward. And that was largely a political decision because we wanted to sort of get all these countries into the fold of democracy. But it's not surprising that the greatest challenges now are coming from precisely those, you know, not particularly institutionalized democracies in Eastern Europe with their own histories and cultures. Maybe there's something there somewhat analogous to the nation building efforts in Afghanistan and Iraq which didn't go that well that the U.S. did. I guess what I'm suggesting is that policymakers need kind of a realistic theory about what democracy requires and under what conditions it can be sustained. And then to design institutions to reinforce that rather than just assume that everyone wants democracy. It will fit everywhere and all we have to do is knock out the dictator and it's going to emerge.

jmk

So, we're talking about democracy promotion. How to be able to create institutions, to be able to encourage democracy. And there's largely an assumption, among political scientists, that the goal is to promote democracy. But like you said, there's a lot of authoritarian regimes that exist. Do those authoritarian regimes, not just China, not just Russia, but even smaller ones, are they actually in the business of promoting authoritarianism in other places or are they just indifferent to it outside of their own countries?

Tom Ginsburg

I think it's mixed actually. My own view is that, you know, each country has its own histories with regard to this. You take a country like China. What does it really want? It really wants trading partners that are going to be reliable. And with the important exception of Taiwan, which is democracy that it will not tolerate, it doesn't really care if it's neighbors are democrats or authoritarians, as long as they, you know, engage in commerce and allow Chinese investments to function unimpeded. And, you know, they're pretty actually benign about regime type. In some sense, that's more conformist with the classical view of international law than the United States has been where obviously the invasion of Iraq being case number one in terms of violating international law to promote democracy.

Russia is a little more complicated. It's certainly shown incredible ability to interfere with its neighbors and even countries far away in terms of elections. So, they seem to be playing the role of a kind of a spoiler at times. And I don't really know what motivates that, but I think at the end of the day, what do they want? You know, they want security as well. And some evidence that they might be tolerant of a democracy that didn't threaten them is found in the recent events in Armenia where, you know, as a kind of somewhat democratic country which was making noises at one point about even reaching out to NATO and the European Union.

Russia really didn't want that. They don't care what Armenia does in its own borders. What they don't want is that it would be potentially a place for Western basis or something like that. And so, the Armenians have kind of learned this and they made it clear that we're not going to do anything security wise that you don't want us to do. We’re simply going to have our internal mechanism for governing ourselves. And, you know, that all suggests that maybe there is a modus vivendi that we could come to in terms of authoritarian and democratic countries.

Now the problem with all of that is that we're also in an era of massive democratic backsliding within even established democracies. And, you know, there just sitting by isn't going to be a very effective strategy, but it's also not clear exactly what international law could do. You know, in any country, even like our own where we face severe attacks on our democracy it's not really like we can turn to international law. So, I guess my thought is that the international law and its norms and its machinery of democracy promotion is very useful and potentially more useful for mid-level and smaller democracies, but might not be able to grapple with the major challenge that established democracies are facing in terms of backsliding.

jmk

So, the way that you think about authoritarianism is interesting. In the book you actually write, “Today's autocrats are not autarkic.” I'm curious Tom. What's the difference between being authoritarian and being autarkic?

Tom Ginsburg

Yeah. So, what I mean by that is, you know, I'm thinking about autarky as in economically isolated, right? The old idea of a country like North Korea basically believes that it can produce everything it needs in its borders and it doesn't need to cooperate with the rest of the world on anything. A country like China, obviously, that's not true. Right? China's economy is embedded and dependent on, in some sense, many other economies around the world. So, you know, they're authoritarian, but they're not autarkic. They need international regimes for trade, for investment, for economic flows, for standards. All of those things depend on international law. And so, that means that they're not going to be able to really insulate themselves from international law.

Instead, the better strategy, and this is what I argue, that we observe is to get into the international legal machinery and try to make sure they can get the good things they want, which is, you know, economic governance and cross border transactions without the bad things, human rights norms and things of that nature, international criminal law. So, that's, I think, the strategy and, you know again, the United States seems to be maybe the more revisionist country at least under the Trump Administration, really turning away from international economic law, but that's maybe another subject.

jmk

Well, why don't we touch on that? How was Trumpism distinct from other forms of retrenchment popular in the United States? I mean, we've got a long history of isolationism. I had Charles Kupchan on. He walked us through how isolationism is more American in terms of our history than having a much more involved country that we really didn't start till after World War II. So how is Trumpism distinct from other forms of retrenchment that might be popular?

Tom Ginsburg

That's a great question. You know, I actually agree. I think that we shouldn't see it as a great radical break. It's just drawing on these old themes which have always been there in American politics that we can ignore the rest of the world. And the rest of world is kind of dangerous and we need to insulate ourselves. And of course, you know, I think that's false, but that's the political move, because of that political attitude. There's always points to be scored by beating up on international institutions. You know, the UN is the black helicopters and all that. It's an old theme in American politics. And I think Trump tapped into that too.

As a formal matter, they withdrew from the Paris Climate Agreement. They withdrew obviously from the Iran nuclear deal, which it's debated over what international legal status that had. They withdrew from various UN bodies. But, you know, at the end of the day, they wouldn't and couldn't withdraw from lots of other arrangements that we have. Yes. They tried to hamper the World Trade Organization. That was a really big new innovation of the Trump administration to try to sort of undermine an institution by blocking appointments to it. But they kept investment law around and they didn't do anything about that. They selectively invoked human rights norms, you know, against countries like Iran and Venezuela.

So, in some sense, maybe it's a long way of saying, I think I agree with you that they were incrementally sort of hostile, and maybe a little more hostile than prior regimes. Even the Bush administration tried to justify the Iraq war in international legal terms. But at the end of the day, they're just another in a long line of American governments that score political points from attacking international law. And I should say populists generally like that strategy because populists want to emphasize, we the people, the people of this country. Viktor Orbán has scored a lot of points. Kaczyński has scored a lot of points in Poland attacking international legal institutions.

jmk

So, why is there this dual identity within democracies then where, on the one hand, democracy tends to create international institutions? They innovate, as you describe it, and look for new ways of governance. But, on the other hand, there is a democratic tradition that looks into itself and draws away from internationalism and focuses on the people themselves. Why is there this dual personality within democracy that seems to arise?

Tom Ginsburg

It's a really interesting question about how that dualism aligns with the party system. Right? So, you can imagine that, you know, under Clinton who was generally a pro-international law president, the Republicans became a little more isolationist. But, you know, under George H.W. Bush, the Republicans were very in favor of international cooperation, very much internationalists and oddly the Republican internationalism kind of, you know, burnt itself out with the Iraq War and such and leading, ultimately, in my view to Trump. So, I don't know. I mean, I think, look, it's a natural dualism to think of sort of pro and anti-international cooperation as being a cleavage. It's just that it doesn't always align with the cleavages in the party system to become super salient in electoral politics.

And I'm not sure where we are now. I mean, it seems like the Biden administration though definitely much more in favor of international institutions, it hasn't really spent a lot of political energy on reinvesting in them from what I can tell. But certainly, a lot more along that line than Trump was. So, maybe we're at the point where we have a partisan cleavage over these issues and we're going to be internationalists when there's Democrats and hostile to it when there’s Republicans.

But I don't know. These things tend to move around because in my view, there's always public goods to be obtained from international cooperation. So, you're doing a service for your citizens by cooperating in particular areas at particular times and places. So, I think at the end of the day, there's always going to be kind of a shift if you will and no partisan alignment on this issue is going to be permanent.

jmk

So, Tom, near the end of your book, you have what is probably my favorite line. You write, “Being a citizen of a democracy can be depressing as leaders continually come up short and we have the collective freedom to voice our displeasure.” We talk a lot about democratic recession, about how there are real challenges to moving democracy forward, how we're seeing democracy slip away in many countries around the world, including the United States. In a democracy where, as you describe it, it can be depressing and we tend to fuel that depression because we have the right to speak out against our government, how do we turn that around? How do we make democracy better and turn the tide, if you will, so that we can start regaining ground for democracy, not just in the United States, but around the world?

Tom Ginsburg

Yeah, what a terrific and very difficult question, I have to say, Justin. Like, what do we do in other words? what's to be done? And, you know, I think first of all, we have to recognize that, wow, this, this kind of malaise that we feel about, you know, the bad performance of our government, that criticisms we like to array against it, actually is a sign of our democratic freedom. That we can do that. We can think that. We have to, in other words, appreciate the contestation. The fact that there are people in the United States who I disagree with vehemently, but I can express that. I can argue with them. I can debate with them in civil terms. Wow. That's in the end, an incredible privilege historically. Quite rare. And so, I think maybe we need to talk more about that.

That's a good thing and that it's worth celebrating. The other thing, of course, is the capacity of government to deliver. The United States government is, a vetocracy, if you will. There's too many blocking points. And we know the government doesn't deliver policies that are wanted by a majority of Americans, whether that's these culture war issues like gun control or abortion or economic issues, bread and butter issues. The government doesn't seem to be able to do what people want. And that's the deep source of frustration. And it's in that environment where you see these populists who promise the ability to fix it all, you know, emerged. And so that's a particularly dangerous moment we're in. But at the end of the day, I am optimistic. despite all the evidence.

First of all, I think there are a lot of resources that democracies can use. A lot of areas of law, where as long as we recognize what it is we're fighting for, democracy is worth fighting for and have a common view as to what that means that we can advance it in many places, not just here but abroad. And this might sound a little hokey, but there really is a genuine human demand for freedom and that's not going away. People have more ability to communicate across borders and you may not see it much in the United States these days.

But you do see it in lots of other countries, Malawi or Armenia, I mentioned before or, you know, the opposition in Burma. They just had a coups d'état that failed in a sense because they have triggered a massive civil war. And I'm not saying that's a great thing. But what it does show you is that there are tens of millions of Burmese who are not really willing to live under a repressive dictatorship. And I just think that energy isn't going anywhere and we have to continue to not just note it, but celebrate it and institutionalize ways to support it. And maybe governments aren't the right way to do it, but there's a lot that can happen. And so, I feel like that's our duty.

jmk

Well, Tom, thanks so much for taking the time. Really enjoyed talking to you today.

Tom Ginsburg

Fantastic, Justin. Thank you for having me on and look forward to hearing your future episodes.