When major programs of President Roosevelt's New Deal were blocked by
the Supreme Court during the 1930s, Roosevelt insisted that the Court
must learn to apply a more "modern" view of the Constitution. Soon
enough, a reshaped Court did adopt a much more permissive approach
and scholars who liked the result spoke of a "living Constitution."
We heard more about "evolving standards" and a "living Constitution"
from defenders of judicial activism in the 1960s and 1970s. It seemed
to offer the prestige of a higher law without the inconvenience of a
fixed law. But sometimes we really want a constitution to have fixed
and reliable limits. So, for example, many of those who once praised
the "living Constitution" have, in recent months, invoked with great
solemnity the "law" of impeachment, which, they say, was "fixed" by
the Framers of the Constitution in the eighteenth century.

If nothing else, America's months of debate about impeachment remind
us that many Americans care deeply about "the rule of law"--and
disagree among themselves on what it means. Even those most devoted
to defending President Clinton have appealed to arcane legal
arguments about the proper application of the Constitution's
provisions on impeachment.

But our own law may not be the only law that determines what happens
in this country. At the very moment when Americans were so
preoccupied with debates about the meaning of perjury or the
requirements for impeachment, a series of events around the world
offered a foretaste of what may become the next subject of heated
legal debate for the United States: the proper reach of international
law.

In Britain, the House of Lords decided last December that Augusto
Pinochet could be held for extradition to Spain, where a magistrate
sought to try the former Chilean dictator for tortures and murders
committed by the Chilean government during Pinochet's period as chief
of state. Meanwhile, halfway around the world, the government of
Australia struggled to defend itself before a UN authority, which
condemned the Australian government for allowing a uranium mine to be
developed in the vicinity of an Australian national park. And here in
the United States, the U.S. Supreme Court, after repeated displays of
its own impatience with judicial second-guessing of capital
sentences, suddenly ordered a halt to an execution in Texas and
agreed to hear an appeal claiming that capital punishment in this
case would violate international standards.

All these cases reflect the deepening insinuation of international
law into the internal affairs of sovereign states. More than that,
they raise sharp questions about the status of this emerging body of
law. No one of these episodes marks a historic turning point in
itself, but they are all straws in the wind. Lots of things are now
rustling in that wind and it is gaining in force. We used to think
that the Constitution would serve as a windbreak, but that is no
longer so clear. To gauge the extent of the challenge it is necessary
to look briefly first at the theoretical assumptions on which our
Constitution was grounded, and in light of which it used to be
interpreted on matters of international law.

The Traditional American View and its Modern Rival

Resistance to international impositions has a long history in
American political and constitutional thinking. Indeed, the United
States was founded on a particular understanding of the limited
authority of an external law applied to American society. For the
American Revolution was a rebellion against the imposition of
transnational law, the precise issue being whether the British
Parliament possessed the rightful authority to make laws for the
internal affairs of the colonies. The colonists insisted that, as
they had never been represented in the British Parliament, they could
not accept such authority. The British disagreed, and so brought on a
revolutionary conflict.

Thus, when the Declaration of Independence asserts the "self-evident"
truth that all men are "endowed by their Creator with certain
unalienable rights", it proceeds almost at once to the conclusion
that governments "derive their just powers from the consent of the
governed." The specific grievances against British rule, enumerated
in the body of the Declaration, make it plain that "just powers" are
those constrained by law, and law derives from the enactments of
elected legislatures. In short, no legislature, no real law.

The argument of the American Founders was not a sentimental plea for
"participation." The Declaration speaks of consent to the "just
powers" of government, not to its every particular action. The point
of emphasizing constraints of law and legislative consent is that
government remains, at some level, unavoidably about coercion: one
submits to lawful government in the understanding that everyone else
will be bound by the same law.

Americans were ready to recognize that law requires force to make it
effective. Only five years after the end of the Revolutionary War,
they adopted a new Constitution precisely to assure more reliable
force to American government. The argument for the new Constitution
as opposed to the Articles of Confederation was that reliable common
policies required a common government, with its own army, its own
sources of revenue and its own powers to make and enforce laws. But
the underlying point was the same as in the Revolution: such powers
are acceptable only if placed under the ultimate control of a common
legislature.

Since the world as a whole has no legislature, this view might seem
to leave no place for any sort of international law. But that was not
quite the view of the Founders. The Constitution provided that
treaties adopted by the United States (along with federal statutes)
would be "the supreme law of the land." But it also stipulated that
Congress should have the power to "define and punish offences against
the law of nations"; and James Madison, often called the "father of
the Constitution", thought it worthwhile to publish a lengthy and
quite scholarly disquisition on the "law of nations" when he served
as secretary of state under President Jefferson.

The founding generation and its successors did not see this as a
threat to government by consent. On the contrary, some sort of
international understanding is actually required by the doctrine of
government by consent, since such government can only be effective if
outside powers refrain from interfering in it. The Declaration of
Independence itself appeals to such common understandings when it
asserts the right of American states, "as free and independent states
. . . to levy war, conclude peace, contract Alliances, establish
Commerce and to do all other Acts and Things which Independent States
may of right do" [emphasis added].

The "law of nations", as expounded in the leading European texts of
that era, was focused on the relations of sovereign states, precisely
with an eye to avoiding unnecessary affronts. It was concerned with
such matters as security guarantees for diplomats and for neutral
ships on the high seas. It was precisely to emphasize this focus of
the "law of nations"--a law defining the way states deal with each
other, and not how they govern at home--that Jeremy Bentham coined
the term "inter-national law", just two years after the Framers
convened in Philadelphia.

What made it seem plausible to speak of "international law" at the
time of the American founding, and throughout the nineteenth century,
was not only that this law was relatively undemanding, but that it
was associated with a body of long-standing custom in inter-state
dealings such that conformity with it could actually be expected of
other states--or, if necessary, demanded. In the background to
expectations of conformity was the assumption that the violation of
clear rules was an invitation to retaliation, perhaps even by
force--so that the law was not, after all, entirely removed from
force. International law was seen as the law that sovereign states
were willing to accept and also to insist upon. Whether or not it was
really or fully "law", it rarely entered into national courts,
because (apart from disputes about private property seized in naval
conflicts on the high seas) it rarely concerned the rights of
individuals.

In this area, as elsewhere, America's founding doctrines seem to have
exerted a lasting impression on subsequent American policy. The
United States has generally held back from grand international
schemes that might result in the imposition of international
standards onto American domestic affairs. Most notably, the United
States long refused to ratify international human rights conventions
(along with labor standards proposed by the International Labor
Organization). The Senate ratified a few human rights conventions in
the past decade, but then only with severely limiting reservations,
denying them any direct effect in domestic law. Critics have always
complained that fuller participation would bind the United States to
standards to which others would only pay lip service. In other words,
for the critics these were not bona fide treaties at all but simply
devices to shift fundamentally internal matters--how the American
government deals with its own citizens--to international forums not
directly accountable to the American people.

By now, this stance may seem less an expression of fundamental
liberal principles than of particular American crochets,
anachronistic survivals of eighteenth-century dogmas that make little
sense even to other Western democracies. Certainly, the evolution of
Europe's Common Market into the current European Union is a powerful
challenge to the assumptions of the American Founders. The EU has an
extremely ambitious regulatory agenda, reaching deeply into the
internal policies of the member states. Yet it has no common
army--and could not have, since some member states are committed to
the NATO alliance and others are pledged to neutrality. The EU does
not even have its own self-sustaining executive or law enforcement
machinery, relying instead on the governmental machinery of the
member states for ground-level enforcement and implementation of EU
policies. And while it lacks the conventional elements of power or
force, the EU also lacks a true legislature. There is a popularly
elected assembly, called the European Parliament, but it is
essentially an advisory body, with neither the power to tax nor the
power to legislate.

What the European Union has, instead, is a central bureaucracy in
Brussels (the European Commission) that elaborates new regulations.
And it has a central court in Luxembourg (the European Court of
Justice) that directs courts in the member states on the application
of EU law. With the ready cooperation of national courts, this
European Court has assumed the authority to hold even the acts of
national parliaments invalid when they conflict (in the ECJ's view)
with regulations of the Brussels bureaucrats or other requirements of
EU treaty law. So half a continent is now governed by a curious
collaboration of bureaucrats and judges, loyally supported by
specialized interest groups that lobby the bureaucrats for favorable
policies and then litigate before the judges to ensure their
implementation by national governments.

It may be too soon to concede the success of this remarkable form of
government, however--if indeed it can be considered a government.
Even today, after decades of integrationist effort, European "law"
does not mean the same thing in Greece or Italy as it does in
Britain. While specialized interests lobby for specialized policy
measures in Brussels, popular political protests still center on the
elected governments of the member states. And European authorities,
lacking the confidence of a direct electoral mandate, are wary of
leaning too heavily on recalcitrant member states.

For the United States, at any rate, the problems of the EU are, for
the moment, other peoples' problems. Indeed, by the classical
principles of international law, the United States would have no
clear right to object to how European states decide to share out
their governing powers with neighboring states. The European Union,
however, is only the most extreme instance of a larger trend that now
does threaten to engulf the United States.

Pinochet's Revenge?

Former Chilean President Augusto Pinochet was sought by a Spanish
magistrate wishing to try him for human rights abuses committed by
the Chilean government while Pinochet was head of state. In
September, with no prior warning, he was seized by British police,
weeks after he had entered Britain--on a diplomatic passport for an
arms-buying mission for the Chilean government. No one disputes that
the military coup that brought Pinochet to power in 1973 was followed
by nearly three thousand deaths or disappearances, the work of
government security forces acting outside the restraints of due
process. But it is also true that Chile has had a freely elected
democracy since 1990 and that successive elected governments there
have declined to challenge the amnesty law that protected Pinochet
from domestic prosecution. Indeed, Chile's democratic government has
declined even to challenge the constitutional scheme that made
Pinochet commander-in-chief of the armed forces until 1997 and
senator for life thereafter. So when British police arrested
Pinochet, the Chilean government launched sharp and persistent
protests and tried to assist Pinochet in his legal battle in the
British courts.

The case for Pinochet's release turned on what had seemed a firm
point of law. There has long been a customary rule of international
law that courts of one country will not sit in judgment on the
sovereign acts of, or the officials exercising sovereign power in,
another country. As a matter of principle, to let courts in one
country put the government of another on trial would be tantamount to
an assertion by the first country that the second was actually
subject to its authority and hence no longer fully sovereign: it
would be, in effect, an attempt at conquest by courts. As a more
practical matter, putting the government of another country on trial
was assumed to be such a belligerent act as to be virtually an
invitation to war. Thus the only exceptions to this rule until now
have been cases where the home country of the defendant did not
object--as in the Nuremberg trials (where the occupying Allied
powers, which organized the trials, claimed to be the lawful
government of Germany at the time), or in the more recent U.S. trial
of deposed Panamanian dictator Manuel Noriega (whose successors were
delighted to have him taken into U.S. custody and removed from their
midst).

Now, of course, the world at large has no legislature to establish a
new rule of international law, supervening the customary rules about
sovereign immunity. Supporters of the Pinochet prosecution claimed
that the rules had been changed by a succession of human rights
conventions, by which governments around the world have promised to
suppress and punish genocide, torture and other human rights abuses.
But none of these treaties gives clear indication that it is supposed
to supersede the customary rules of sovereign immunity, and certainly
none gives explicit authority for third-party states to try
government officials from other countries.

So in October Britain's High Court of Justice ruled unanimously that
Pinochet should be released. On appeal in the House of Lords, a
five-man panel split 3-2 the other way in early December. But in a
subsequent appeal, Britain's Lord Chancellor directed that a new
panel should be convened to reconsider this ruling. One of the three
Law Lords making up the majority turned out to have been closely
associated with fund-raising efforts for Amnesty International, a
human rights advocacy group that had strongly advocated Pinochet's
extradition and prosecution. The Lord Chancellor held that this made
the ruling of the original panel look improper and Pinochet should
therefore be accorded a new appeal before a new panel of Law Lords.

But it is hard to say why Amnesty International had any less right to
participate in the judgment of Pinochet--for misdeeds committed in
Chile, against Chileans--than the governments of Britain or Spain. In
fact, both the British prime minister and his Spanish counterpart
insisted that their governments were leaving the matter to the courts
and taking no policy stand on the issues. Both declined to exercise
the statutory powers that political ministers in either country could
have invoked to stop the extradition process. So the whole momentous
prosecution was supposed to be proceeding on the say-so of career
prosecutors--that is, essentially, bureaucrats--in each country.

While the British courts were deliberating, the European Parliament
sought to ensure that the prosecution would go forward. It adopted a
resolution urging Britain to extradite, and other governments to take
up the prosecution, if Spain finally declined to do so itself. This
intervention of the European Parliament had its own ironic logic: a
parliament that is not a real legislature demanded enforcement of a
new international doctrine that is not a real law.

And clearly, it cannot be a real law. Weak and distant Chile will not
go to war with Britain or Spain or the EU. But the notion that
"international law" will now hold evil-doers of all lands to account
is absurd. If "international law" requires the trial of Pinochet in
an outside country, then it must require similar trials to hold
accountable far worse butchers from many other places. Nothing in
international law, however, says that only former dictators from
small countries can be held to account in this way. There is no
distinction in the relevant human rights treaties between dictators
and democratic officials, between top officials of small countries
and top officials of powerful countries, or even between former
officials and currently serving ones. But no one expects EU countries
to hold a top Chinese leader to account for massacres in Tibet, or to
hold former Russian officials for extradition to Latvia--or American
officials for extradition to Sudan, which has been threatening to
charge them with war crimes for the bombing of an undefended aspirin
factory last August. The European Parliament seems to have in mind a
"law" that applies only to Pinochet.

Human rights advocates insist that the whole problem could be
equitably handled if there were an international criminal court. And
a UN conference did indeed come out with a treaty proposal to
establish such a court in the summer of 1998. Its provisions were so
vague and all-encompassing, however, that even the Clinton
administration felt compelled to refuse its assent and the United
States has since been lobbying other countries not to ratify the
International Criminal Court (ICC) Statute. In effect, Spain's
prosecution of Pinochet was a forcing of the issue by asserting the
right of national courts to proceed in the name of the international
community without waiting for the explicit agreement of other
countries. It thus presents reluctant nations with the choice of
submitting to the ICC (which does have a number of explicit
procedural safeguards not recognized here by Spanish courts) or
trusting to the vagaries of legal reasonings in the national courts
of dozens of separate countries.

But even the ICC bids to force its jurisdiction on unwilling
participants. The new court will be empowered to assert jurisdiction
over war crimes and extreme abuses, not only when committed by
nationals of signatory states, but also when committed against
victims who are nationals of a signatory state. In theory, then, the
ICC could be turned against the United States at the behest of Sudan,
even if the United States does not itself ratify the treaty
establishing the ICC. So we are back to the same basic problem.
Either the ICC does not act, because its independent prosecutors have
the bureaucratic nimbleness to avoid confrontation with a great
power, or we have in store for us some troubling confrontations down
the road.

Or would the United States finally agree to cooperate if its own
citizens were called to account? Human rights advocates insist that
the United States has nothing to fear because the ICC Statute
acknowledges the right of home countries to conduct their own trials.
But it also provides that if the trial result is judged to be
inadequate or unsatisfactory, then the international prosecutor
retains the authority to demand a new trial before the ICC. Then the
United States would have to decide whether it would or would not go
along if one of its own citizens were sought for a trial by the ICC.

Could the United States hand over an American citizen to an
international tribunal, even for trial on the basis of acts committed
while in the service of the U.S. government and even within the
boundaries of the United States? A host of legal authorities have
insisted that there is no constitutional objection to the U.S.
government doing so. No one disputes that international tribunals
violate guarantees in the U.S. Bill of Rights--such as the guarantee
of trial by jury, which follows an English common law tradition that
means nothing to international authorities. The argument is simply
that if the United States can extradite its citizens to other
countries for crimes committed in those countries, it can also
extradite to international authorities for international crimes. But
if it could do so for "war crimes", why not for other crimes? In that
case, why not hand over drug dealers to an international drug
court?--another venture that has received serious discussion. But
then what do the guarantees in the Bill of Rights mean if they can be
side-stepped any time our government finds it more convenient to have
Americans tried by foreign authorities? We would then have a
Constitution that can be amended without the bother of persuading
three-quarters of the states to adopt a formal amendment.

Perhaps it will not come to that. But it is remarkable that we no
longer feel the need for a constitutional boundary. Do we rely on
public sentiment to stiffen the resolve of our government? If so, we
may be misguided, for the new trend in international affairs is for
transnational coalitions of advocacy groups to play on public
sentiment in order to bolster the authority of international
institutions.

Global Civil Society vs. Australia

That is just what happened in Australia at the same time the Pinochet
case was proceeding through the British courts.

On November 30, 1998 the World Heritage Committee of UNESCO voted to
condemn the government of Australia for allowing a uranium mine to
operate in close proximity to an Australian national park that had
been designated as a World Heritage site. The committee agreed that
the government of Australia should be given six months to defend the
mine against findings of an international inspection team that the
mine would endanger the scenic values of the Kakadu Park and its
cultural significance for aboriginal people nearby. If Australia
could not by then satisfy the committee, the park would be placed on
the list of sites "in danger."

What made this episode remarkable was, in the first place, the
willingness of this UN forum to enter into a confrontational dispute
with a participating government. The World Heritage Convention
essentially establishes a registry of sites in participating
countries that are judged to be of special significance for the whole
world. Essentially, it is the UN equivalent of a landmark registry,
which has come to include such sites as India's Taj Mahal, America's
Yellowstone National Park and France's Louvre Museum. A committee of
representatives from twenty-one states, elected from all the states
party to the convention, oversees the list. The committee not only
decides which sites may qualify but purports to monitor their
continuing safekeeping. Its only sanction for such purposes is to
list a deteriorating site on a separate list of sites "in danger" and
ultimately, if the dangers are not addressed, to de-list the site. No
site has ever been de-listed.

Indeed, no site has ever been put on the "in danger" list except at
the request of the home state. Some states have requested such
listing as a way of dramatizing problems and seeking international
financial assistance for corrective actions. But states that fear
embarrassment have often resisted listing on the "in danger" list.
Ecuador, for example, asked the World Heritage Committee to organize
international assistance for what it admitted were serious problems
in its management of its World Heritage site in the Galapagos
Islands. But it specifically requested that the site not be listed as
"in danger"--and it was not. The obvious reason to avoid such listing
is that the whole scheme--such as it is--depends on the cooperation
of the affected governments; a government that does not want to
cooperate can simply walk away.

But the committee in this case took a very hard line because of
another difference: within Australia itself, political opponents of
the current conservative government were prepared to support--indeed,
even invite--international intervention. The environmental spokesman
for the opposition Labor Party actually wrote to the World Heritage
Committee to urge it to take a tough stand. The networking skills of
domestic opponents were altogether remarkable. Environment-alists,
who seem to have opposed the mine in large part due to general
opposition to nuclear power, managed to draw attention to the handful
of aboriginal people who did oppose the mine, obscuring the majority
view of local aborigines who stood to gain substantial payments from
the mining company. Australian environmentalists have organized a
separate Green Party, but with only two seats in the Australian
parliament it is in itself a negligible threat to the government. But
an Australian Green leader managed to make his case to important
Green ministers in the governments of Western Europe and, in this
way, secured a vote of the European Parliament urging Australia to
shut down the mine. The same sort of back-channel mobilization has
been credited with persuading the French government to take a tough
stand against the mine through the French representative on the
current World Heritage Committee.

The ultimate result is still uncertain but the pattern is clear. An
international institution with no real authority has gained special
leverage by acting as a bridge between opposition factions in one
country and allies in other countries--over a matter that has no real
connection to those other countries.

And this is not an isolated case. In its 1995 report, the UN
Commission on Global Governance hailed the emergence of what it
called "global civil society", which it saw as "best expressed in the
global non-governmental movement." It did not mean business firms,
churches or sports clubs--all of which are also "non-governmental."
It meant advocacy groups. It noted that NGOs have proliferated at a
remarkable rate over the past decade and praised their "vital
assistance to the UN in the conduct of its work." Such organizations

often provide independent monitoring, early-warning and information
gathering services that can be especially useful in preventive
diplomacy. They can serve as unofficial or alternative channels of
communication and can help establish relationships that create the
trust necessary to bridge political gaps.

Also, though the report does not quite note the fact, NGOs never have
to face voters or bear any sort of accountability. It is not clear,
in any case, who would be entitled to demand accountability from
them, since they so often claim to speak for "humanity" or "the
earth", constituencies that are not well equipped to demand any sort
of direct accounting.

"Global civil society" is, in the older understanding, virtually an
oxymoron. What makes a society "civil", in the classical liberal
view, is a common government, able to enact and enforce common rules.
The United Nations is not a government. What UN agencies seek is an
authority that is somehow above government, without the
accountability that actual governments have toward particular
electorates or defined citizen bodies. Actual governments can be
awkward for UN agencies. It is usually much easier to deal with
constituencies that do not themselves have to pay UN bills or submit
to UN directives. NGOs--a sort of phantom citizenry--are the perfect
partners for the phantom authority exercised by UN agencies. So the
UN and other international institutions have become great sponsors of
NGOs, which figure prominently at UN conferences on global concerns.
The World Bank, eager to deflect NGO criticism, has actually poured
over a third of a billion dollars into NGO coffers in recent years.
(And, not coincidentally, the European Commission in Brussels funds
European NGOs on an even more lavish scale.)

Past Australian governments have cheerfully cooperated with NGOs
working through international forums on other issues. Now the current
government is finding it hard to ignore the World Heritage Committee,
as local advocates demand adherence to the Committee's direction in
the name of "international law."

Thinking Globally, Acting Locally

On December 12, 1998 the U.S. Supreme Court issued a stay of execution for Joseph Stanley Faulder less than thirty minutes before he was scheduled to die by lethal injection in Texas. The state of Texas was hardly acting with undue haste: Faulder had been on death row for twenty-one years. It was, in other words, the classic sort of death penalty appeal in America's endless litigation over capital punishment.

Faulder had been convicted for the brutal killing of a seventy-five year-old woman, leaving her to be found by her relatives "bludgeoned, bound with tape and Christmas wrapping paper, a knife protruding from her chest." Faulder never denied the charges. But years after his conviction he remembered that he was a Canadian citizen, something he had not mentioned to Texas officials at the time of his arrest, when he was found with a Colorado driver's license. So after many other failed appeals on other grounds, Faulder's lawyers launched the argument that his conviction violated the Vienna Convention on Consular Relations, which obligates signatory states, when they arrest a foreign citizen for a serious crime, to notify the nearest consulate of the defendant's home country. Texas officials, not knowing of Faulder's Canadian citizenship, did not notify Canadian officials until 1991 - when he was deep into his various procedural appeals on other grounds.

What made the Supreme Court's intervention so notable was that a very similar case had been presented earlier in the same year. In that case, lawyers for a Paraguayan national, Angel Breard, who were appealing his death sentence in Virginia, persuaded the government of Paraguay to file claims before the International Court of Justice in The Hague, based on Virginia's failure to notify Paraguayan officials at the time of the trial. The ICJ asked Virginia to postpone the execution while the matter was considered by international authorities, and Secretary of State Madeleine Albright pleaded for Virginia to do so out of respect for international law. But Virginia refused and a last-minute attempt to appeal to the U.S. Supreme Court was denied by the justices.

The Faulder case followed the same script - earnest diplomatic entreaties from the Canadian foreign minister, followed by earnest entreaties from Albright, followed by the rejection of these entreaties by state officials in Texas. Only this time, the U.S. Supreme Court ordered the execution postponed to give itself time to consider the issues.

The Court may yet decide that the execution can go forward. The preamble to the relevant Vienna Convention stipulates that its purpose is to clarify "consular relations privileges and immunities" and "is not to benefit individuals but to ensure the efficient performance of functions by consular posts." In a survey conducted through U.S. embassies around the world, the State Department was unable to find a single case in which another country had overturned a criminal conviction in its own courts solely because a foreign defendant had not been advised of his rights to consult consular officials from his own country. And there seems to be no reason at all to believe that Faulder's trial would have turned out any differently if he had sought and received the opportunity to consult with a Canadian consulate before his trial commenced.

But none of that may matter. The United States remains one of the few countries in the Western world that still maintain capital punishment. And by no coincidence the state with the largest number of capital sentences is Texas, followed in second place by Virginia. And once again the specific case turns out to be the flashpoint of a larger international campaign. At the beginning of 1998, a UN special reporter issued a report condemning the United States for racist and abusive applications of the death penalty - ignoring the repeated judgments of U.S. courts, up to and including the U.S. Supreme Court, to the contrary. The European Parliament was - for once - not dragged into this dispute. But Amnesty International, taking time out from its advocacy for the prosecution of Pinochet in Europe, took notice.

An Amnesty report on human rights abuses in the United States, issued in 1998, devotes an entire chapter to abuses of the death penalty, which it asserts to be contrary to international law. Yes, it acknowledges, the U.S. Senate specifically inserted a reservation into its ratification of the Covenant on Civil and Political Rights, stipulating that the Covenant's death penalty restrictions were not accepted by the United States. But this reservation, according to Amnesty, conflicts with a subsequent ruling of the UN's Human Rights Committee about evolving standards of customary international law that must now make the U.S. reservation on this point unlawful. And, of course, Amnesty lawyers in Canada helped to organize the Faulder appeal, as other human rights groups had mobilized to resist the earlier execution of Angel Breard.

What Next?

So we have free-floating, evolving standards of "law" defined by international bureaucrats. We have organized advocacy groups in transnational coalitions. And we may soon have U.S. courts applying this law at the behest of these groups. In other words, all the elements of EU-style governance are already in place. Is this kind of government really consistent with the U.S. Constitution?

In at least three ways, the most prominent commentators have already promulgated legal theories that prepare the way. First, the latest Restatement of Foreign Relations Law (1987), a privately sponsored treatise that holds special prestige in an area of law with very little case law, asserts that there is now a federal common law of foreign relations, by which federal courts are empowered to impose their rulings on states and localities, even where there is no direct treaty or statute on which to rely but simply a federal court's notion of evolving international law. In domestic law, the notion of a free-floating judge-made common law of this kind was firmly repudiated by the Supreme Court in the 1930s. The Restatement argues, however, that international obligations of the federal government require a different approach for cases with an international dimension. Thus it has an entire chapter on "customary international law of human rights", which is supposed to be drawn from the spirit of existing treaties but applicable to the United States even where the Senate has not ratified the relevant treaty or has attached particular exceptions by reservation. Already a number of lower federal courts have relied on this "law" to allow suits against U.S. corporations (pursued in U.S. courts by U.S.-based advocacy groups) for supposed human rights or environmental depredations by their corporate subsidiaries in Asia and South America.

Second, the historic constitutional doctrine was that even formal treaties - let alone customary law, adopted without treaties - could not reach entirely domestic affairs. The treaty power and other foreign affairs powers of the federal government could only reach genuinely inter-national matters. The latest Restatement insists that such restrictions can no longer be maintained. And understandably so. If human rights conventions and the World Heritage Convention are bona fide treaties, then it is reasonable to say that what the U.S. Park Service does in Yellowstone National Park and what Philadelphia police do to Americans in Philadelphia are properly subject to international inspection - as indeed they have been over the past decade, though the binding effect of international interventions in these cases is much in dispute.

Finally, it was once clear doctrine that the treaty power could not be delegated to foreign bodies - that Senate ratification could bind the United States to the terms of an agreement, but not to subsequent extensions or extrapolations of the agreement by an international authority. While the Restatement skirts the issue, Professor Louis Henkin, who was the chief reporter for the Restatement, published in 1996 a new edition of his own treatise, Foreign Affairs and the Constitution (Oxford University Press), which explicitly repudiates such a non-delegation doctrine. Thus what the UN Human Rights Committee or the World Heritage Committee of UNESCO pronounces to be the law may well be taken as binding law for the United States (which is the case even though the United States is no longer a member of UNESCO). At least in Henkin's view, the Constitution does not forbid the United States from submitting to an arrangement in which this would be so.

World Order in a Post-Liberal World

Does any of this really matter? Before dismissing the significance of recent episodes, one ought to step back and look at the larger picture. Along with human rights treaties, we have begun to spin out a network of far-reaching new environmental treaties, culminating in the stupifyingly ambitious project of the Kyoto Protocol, which envisions international authorities empowered to enforce dramatic reductions in energy use among the world's major economies. The U.S. Senate has balked at ratifying this treaty, but its champions - in the Clinton administration and in a host of environmental advocacy groups - insist that it is necessary to avert global warming. The necessity is disputed by many respectable scientists and policy analysts. But surely this undertaking is at least as "necessary" as international supervision of parks policy in Australia or criminal justice in Texas. The ideology of global governance already has considerable momentum.

Meanwhile, there is continuing pressure to extend the terms of international trade agreements, which up until now have largely focused on reciprocal lowering of barriers to imports, while scrupulously refraining from imposing any standards for how goods entering into international trade are actually produced in their home countries. But President Clinton has repeatedly urged that the World Trade Organization must begin to develop standards that would prevent countries with unfair labor practices or unacceptably lax environmental controls from unfairly flooding the markets of countries whose own producers must observe higher standards.

At Kyoto, it was decided that if poor countries are not now willing to participate in energy reduction schemes, then a select group of richer nations should set them an example by taking one-sided commitments on themselves. We might see the European Union seek to negotiate such an approach to labor and environmental standards, which would apply to the United States and other affluent countries, even if rejected by China and India. And it is not altogether inconceivable that the United States would participate in such a venture, since it has already made limited - but precedent setting - commitments about internal labor and environmental standards in the NAFTA accords with Canada and Mexico. Clinton himself limned the vision in his latest State of the Union address: we must strive to give international trade "a human face", as earlier in this century we supplied a "human face" to interstate commerce at home. In plainer language, the New Deal for the U.S. economy must now be followed up with a New Deal for the world economy, with the United States itself fully accepting the new international controls this will require.

If the Constitution sets no barrier to such projects, then we may see the United States drawn deeper into a style of governance that looks very much like what the EU countries are now experiencing. True, it would not necessarily involve such a systematic program of integration or such powerful central institutions. But we could, like the Europeans, start by forswearing any notion of a super-legislature and end up with more and more governance by courts and bureaucrats, answering only to advocacy groups that are themselves unaccountable.

On the other hand, it may turn out that the American political system will summon a deep resistance to any such serious foreign intrusions. The United States has been a holdout against many sorts of grand international ventures in this century - from the League of Nations to the Law of the Sea Treaty, from the Children's Rights Convention to the International Criminal Court. Perhaps the first time an international commitment imposes real cost or hardship in domestic affairs, without any direct U.S. legislative endorsement, Congress will rise up and sweep away all the grand visions of the law professors and the advocacy groups. In its domestic applications, international law may turn out to be the equivalent of those codes of proper political campaign tactics or proper journalistic practice, which are sponsored by well-meaning foundations, adumbrated by idealistic academics, endorsed by high-minded editorialists - and ignored by all real-world practitioners.

But the most likely development may not follow either of these alternatives. Lacking an international legislature or an international executive, champions of international law have maintained their credibility by learning to pick their spots - ducking out of sight when legal claims are strongly resisted, re-emerging in those settings where issue networks have prepared the way for success. It will, in other words, be a selective, inconsistent, bureaucratic sort of law, which has a lot of "give" along with its occasional "bite."

That is, after all, what should be expected from the demise of our founding constitutional traditions - a reversion to a pre-liberal world. Sovereignty was itself a concept of the Enlightenment and a part of the liberal vision of law and politics. There was certainly law of a kind in medieval Europe. As Enlightenment thinkers saw it in retrospect, the problem in the medieval world was not too little law but too much. There was the legal edict of the medieval emperors, battling with the opposing constitutional claims of the medieval church, and both in constant tension with a network of feudal relations with their own legal claims. It was also a world without distinct peoples - in the constitutional sense - and without legislatures, in the modern sense of lawmaking bodies. Above all the conflicting, often highly parochial legalistic claims, medieval Europe had a set of visionaries who conversed across borders in a common language unknown to ordinary people - Latin. And its most devoted visionaries talked endlessly about the unity of Christendom, a vision they sustained for centuries in the face of all evidence to the contrary.

This is not a world that any of the American Founders looked back on with nostalgia. But it seems to appeal very much to the champions of global civil society. It remains unclear whether the Constitution can still keep the United States from joining it.

Jeremy Rabkin teaches international law and U.S. constitutional law at Cornell University. His book, Why Sovereignty Matters, has just been published by AEI Press.