On the Balance Between International Law and Democratic Sovereignty

I. INTRODUCTION The competition for authority between national sovereignty and international law has waxed and waned for centuries. Precursors to the modern nation-state rose to prominence in Europe by battling the Catholic Church, feudal suzerains, and commercial leagues for the right to rule.1 Even the documents underlying the Treaty of Westphalia, thought to represent a watershed in the rise of the state, are shot through with violations of state sovereignty.2 As the state has acquired more power as an institution, there has been a recurring tension between nations wishing to assert their own sovereignty while using international law as a way of weakening the sovereignty of others. Great powers constantly face the choice of maximizing their sovereign powers in an anarchic world or sacrificing some degree of sovereignty in the hope of constructing a stable order through multilateral institutions.3 This tension has existed for some time, but has escalated in the past few decades for three reasons. First, the sovereignty that is contested is increasingly democratic in nature. A century ago one could count the number of democracies on one hand; today the number of governments claiming a democratic mantle is well over a hundred.4 Citizens of democracies are naturally reluctant to cede decisionmaking authority to unelected international bodies unless the benefits of doing so are crystal clear. Second, the demand for international law has increased with the rise of economic globalization and transnational nongovernmental organizations ("NGOs"). Globalization has increased the degree and intensity of international economic exchange by several orders of magnitude. With this comes a demand for rules to govern these exchanges. This includes the need to settle trade disputes between nations, but also a desire by actors to harmonize different national regulatory schemes. Transnational NGOs have emerged to demand stronger international regimes to govern these issues. In the past decade alone, the number of transnational NGOs has quadrupled.5 NGOs like Greenpeace, Amnesty International, and the International Commission of Jurists are pushing for a codification of international norms governing a variety of issue areas. Third, the supply of international organizations and treaties that make international law has increased. A century ago, there were very few standing international organizations. Since then, the UN system has grown in size, the Bretton Woods institutions have entrenched themselves, and a welter of international and regional regulatory organizations has come into creation.6 In the past twenty years, the number of international governmental organizations ("IGOs") and emanations has more than doubled, as has the number of treaties deposited in the United Nations. There is a growing epistemic community of experts on international law eager to expand its empirical domain. There are more formal avenues for international law to be created than ever before. The question for democratic governments is how to balance serving the national will through democratic means with meeting international obligations that may be objectionable at points but are believed to advance the national interest in the long run. There are plenty of examples of governments acquiescing to international law in the face of vocal domestic opposition. The United States has had to void components of the Clean Air Act because of a World Trade Organization ("WTO") ruling. Yugoslavia arrested its former ruler, Slobodan Milosevic, in response to extradition demands by a UN War Crimes Tribunal. Japan has banned the commercial hunting of whales to comply with the dictates of the International Whaling Commission. These are clear cases where national governments have acceded to a policy that would have been politically difficult or impossible to implement through purely domestic mechanisms. Some commentators argue that, with such results, international law is making a sure and steady encroachment on democratic sovereignty, affecting the United States in particular. …