Chicago Journal of International Law


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. 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. [CONT]