Is Global Governance Safe for Democracy?
Joel Richard Paul*
Contemporary critics of international legal institutions often frame their opposition in terms of a conflict between global governance and national democratic accountability. Both liberal and conservative critics view international entities like the United Nations, the World Trade Organization ("WTO"), or the European Union as steadily infringing upon national autonomy. In the United States, this debate often echoes the isolationist strains of earlier arguments that European colonialism, corruption, revolution, immigration, the League of Nations, or totalitarianism threatened American exceptionalism. Throughout US history, opponents of internationalism have called for disengagement from the world's troubles. The critics of the United Nations and the human rights covenants stand with the opponents of the League and the proponents of the Bricker Amendment as resisting the ceaseless tide of internationalism.
That said, Professor Paul Stephan does not fit easily into either the left or the right camp of critics. Stephan has earned a reputation as an independent and original thinker in international law. His sophisticated critique of global governance focuses on the process of lawmaking rather than on its substance.1 Stephan raises democratic process concerns both with the creation of customary international law and the development of international institutions, which he terms "new international law." By addressing the way that international norms develop, rather than the norms themselves, Stephan's thoughtful critique cuts deeper than many other contemporary critiques. I find much in Professor Stephan's analysis persuasive. Nevertheless, in my judgment Stephan both overstates and understates the nature of the challenge that global governance poses to American democracy.
One may begin by examining Stephan's argument against customary international law. Customary international law is the general practice of states accepted as law.2 To prove that a norm is customary international law, one must show that almost all states, or at least an identifiable group of states, actually practice this norm. If a particular state expressly objects to the norm during the norm's formation, the state is not bound by it. States are only bound by norms to which they consent, either implicitly or explicitly. In addition, to prove that a general practice is a customary legal norm and not merely a customary practice, one must show that states follow this practice out of a sense of legal obligation or opinio juris sive necessitates.
Stephan points out that courts often rely on the judgment of international legal scholars to determine whether a particular practice is in fact opinio juris. Doubtless, the personal biases of legal scholars inform their opinions and may indirectly influence courts. A legal scholar who opposes the death penalty may be inclined to conclude that the reason virtually all industrialized countries have abandoned capital punishment is out of a sense of opinio juris. In Stephan's view, applying customary international law in US courts has allowed an intellectual elite to impose its political preferences through the courts on an unwitting nation. I have three responses to this democratic process concern.
First, customary international law does not spring fully formed like Minerva from the minds of legal academics. The international common law process is both more nuanced and more familiar to our legal system. Legal experts often advise courts about the state of the law, and judges regularly consult treatises and law review articles to help them decide cases. Typically, both sides in a legal dispute might present evidence from scholarly authorities. Judges reach their own opinions based upon the weight of the arguments on both sides.
Several mechanisms constrain judicial freedom to decide cases according to principles of customary international law. …