International Governance and American Democracy

Does international governance threaten to crowd out American democracy? Many public figures and scholars think so. The street theater in Seattle last fall and Senator Dole's effort to establish a national tribunal to review World Trade Organization ("WTO") dispute resolution decisions both attest to the extent of the concern. As international institutions burgeon in number and significance, the residuum of authority left in our national government seems an ever diminishing domain. Extrapolating into the future, one can envision a time when the United States retains only as much sovereignty as, say, the members of the European Union or the States in our own federal system. The diminution of sovereignty brings with it a loss of democracy, as the distance between citizens and the institutions that make the most meaningful decisions grows greater. I take this concern seriously but believe its popular formulation is too simplistic and somewhat misplaced. International governance entails not only the formal institutions and explicit agreements that generate what I have called the "new international law."1 It also embraces a system of formulating and imposing norms on state and individual behavior that operates outside of any publicly accountable institution. A debate recently has arisen in the United States over the legitimacy of customary international law, with fierce arguments on each side. One dimension of this debate is the tension between American democracy and the adoption of customary norms through the courts. The uncritical incorporation of customary international law in US law encroaches on democracy by taking off the table choices that democratic institutions, whether federal, state or local, wish to make. To be sure, common law adjudication generally poses issues for a democracy, because the power to make law vests in the judiciary, a body designedly free of direct democratic constraints. But customary international law exacerbates this problem to the extent it involves a displacement of the common law process. It is one thing for courts, surveying precedent and relying on a variety of substantive and process preferences, to choose a rule that governs our conduct. It is another for courts to take over a prefabricated system of rules and norms, constructed by a loose alliance of like-minded academics and international law specialists through a form of advocacy that involves no democratic checks. These arguments provide a principled basis for rejecting the wholesale incorporation of customary international law into US law. The challenge to democracy posed by the new international law also is significant, but still quite different. The investment of lawmaking authority in multilateral international bodies, whether through the negotiation of international agreements or the resolution of international disputes, engages three antidemocratic tendencies. All things being equal, this shift strengthens the Executive with respect to Congress, enhances the ability of concentrated interest groups to procure rules that benefit their own, rather than the general, welfare, and bolsters the power of the bureaucracies of international institutions. Each of these developments shrinks the realm of democratic public decision-making and makes it less likely that lawmaking will reflect the popular will. US participation in the new international law, however, is not without democratic engagement. The multilateral agreements that make up this burgeoning field come to Congress for adoption, often after negotiations in which legislative leaders take some part. The agreements typically, although not inevitably, take the form of state-to-state commitments, with domestic legal consequences dependent on further administrative or legislative action. These limitations may be inadequate, because the agreements come as take-it-or-leave-it deals that cut short real deliberation, and the pressure on subsequent administrative and legislative actors to conform to international mandates may be too great to resist. …