International Governance and American Democracy

Abstract

Over the last two decades international law has gone from something that, in the eyes of many outside the discipline, seemed a contradiction in terms, to a source of genuine and direct conflict with domestic legal institutions. This change has three sources: the internationalization of everyday life in the United States; the emergence of international human rights law; and the growth of international institutional governance of economic matters. Two kinds of constraints on domestic lawmaking have emerged: Many advocates contend that international customary law constitutes the law of the United States and therefore binds all levels of government, absent a positive Act of Congress to the contrary, and the various international institutions increasingly reach decisions that overrule policy choices made by domestic political bodies. Each constraint represents a challenge to American democracy, but the nature of the challenge differs. The claim that customary international law constitutes U.S. law rests on authoritarian premises and invites a principled rejection based on assumptions about democracy. The limits imposed on the United States as a result of international entanglements deliberately entered into derives from considerations of political economy, and the response, if any, should involve changes in the processes that produce such entanglements. I conclude with a discussion of the International Criminal Court, an institution intended to enforce human rights law that the U.S. government helped to design but now has decided not to submit to.