Every so often, a piece of academic writing fulminating against the perceived threat of liberal internationalism to core (read: unique) American values, ideas and institutions gets published. During the second George W. Bush presidential term (2004-8), it became academic vogue to discredit the internationalization of rules and norms that has become currency in our globalized era as an undemocratic encroachment on deep-seated U.S. constitutional and legal traditions. Certain themes tend to recur in these narratives – from references to The Federalist papers and other hallowed foundational American scriptures, to oblique or overt assertions of American exceptionalism, and even the salutary nod to politically conservative academics such as John Yoo and Robert Kagan. Nonetheless, despite their defensive tone, such articles are good -even welcome- as they balance the discourse, keep the liberal internationalists constantly on their intellectual toes and remind us not to take the post-Cold War logic of globalization for granted. But that doesn’t mean they are always right: in fact, while these articles make some very salient points, their underlying premise is often flawed.
Kyl, Fieth and Fonte’s (KFF) article, “The War of Law: How New International Law Undermines Democratic Sovereignty”, carried by this month’s Foreign Affairs, adds to this literature.
KFF make a forceful case for subordinating globalization to (national) constitutionalism:
There is a way for the United States to deal with globalization and international law realistically and in accordance with American principles of democratic lawmaking and national sovereignty. This of course reflects the conviction that the U.S. Constitution is up to the challenges of the twenty-first century, that the country’s foundational concepts – the separation of powers, federalism, and representative democracy – remain sound. Globalization does not require the United States to set aside those ideas in favor of new, ostensibly more progressive notions of how to legislate.
This sets the tone for their principal argument:
The United States has an interest in promoting respect for international law that strengthens, rather than undermines, its constitutional system… But U.S. officials should adopt such rules, as they do with domestic legislation, through democratic processes. New rules should not be imposed by the executive branch through extraconstitutional machinations, and they should not be decreed by activist judges exploiting the democracy-unfriendly theories of the transnational legal movement.
KFF don’t waste their time debating the merits and depredations of globalization, and there is certainly no need to: globalization has become a contemporary and irreversible reality, irrespective of what we may think about it. It is the intellectual engine of the U.S.-led international trade, economic and ideological order, having defeated the Soviet Union and ended the Cold War, enabled the American “unipolar moment” of the nineties and it continues to sustain U.S. hegemony even in the face of profound challenges such as the rise of China, cross-border terrorism and the normative undermining of the U.S.-led international financial compact. To deny globalization would in effect be to cheaply dismiss U.S. preeminence along with the many international public goods that American hegemony provides. KFF wisely do not venture down that murky path, or at least they don’t say they are.
So KFF, by implication, recognize globalization’s value, or at least its inevitability: “some (U.S.) officials have favored a hands-off, “Fortress America” approach…(,) as if globalization could be wished away. But isolationism has never been a serious option for protecting the country’s security and prosperity”. They argue though that America’s globalization should be done solely on America’s own terms, in strict comformity with American process: “if officials are going to make rules for Americans…(,) those officials should be Americans, democratically accountable to voters“. While this legalistic argument sits well in a static and linear constitutional context, its logic begins to fray when we try to plug it to the more contradictory and dynamic needs of international politics. By packaging any international rule created without U.S. legislative input as an “interference” or as “meddling” with the U.S. democratic process, KFF appear to condition every instance of U.S. participation in the international rules-based system on a prior authorization by the U.S. Congress. Given the sheer onerousness of meeting this threshold of democratic-ness, this amounts to a gross trivialization of globalization and raises the question: are globalization and democracy even compatible concepts?
Yes. A broad democratic frawework is good, even necessary, for globalization. Democracy is grounded in ideas, principles and laws that transcend the material and transient interests of elites and powerful constituencies. A democracy will be confident enough in the resilience and dynamism of its own institutions to engage in a global discourse, and its interlocutors benefit from knowing that its commitments are credible and will bind successive governments. A democracy will feel sufficiently secure to pool its sovereignty in collectively identifying and addressing common challenges, enter into binding agreements with other states and bind itself with additional layers of multilateral rules and institutions that, while may not strictly adhere to classical democratic standards of accountability and representativeness, reflect the ideational spirit (the rule of law provided by international judicial tribunals, universal human rights safeguards provided by ratification of international legal instruments) that underpins democracy. In addition, international rule-making has the capacity to transcend nationally-drawn partisan battle lines, circumvent the political contests of the moment and offer long-term protections to minorities.
No. Or at least when we try to import the manifold procedural constraints into the practice of international rule-making, we find that democracy in fact obstructs globalization. Globalization is essentially a cosmopolitan process, and the absence of a “world government” means that international rule-making is done between governments through a process of compromise and mutual exchange of commitments that take place largely outside the orbit of national legislative oversight. Many mature democracies place rigid controls on governments’ foreign policymaking capacities, and while these controls prevent embarrassing abuses and costly foreign policy adventurism, they can deprive policymakers of the flexibility to engage in international rule-making where it is necessary in the national interest (from a realist perspective) or to maintain international security (from a liberal perspective). Policymakers’ need to be able to appear accountable to the public also means that complex international problems have to be simplified and diluted into digestible bytes, in a way that potentially distorts available policy choices and inhibits effective troubleshooting – as Gideon Rachman argues.
Moreover, a rigid insistence on holding international rule-making to national standards of democratic governance ignores the reality that national-level institutions are individually ill-equipped to address global contemporary problems that did not exist when many classical democratic tenets were conceived: climate change, cross-border terrorism and crime, risks posed by integrated financial systems and famine and other types of human insecurity. With varying degrees of success, the United States has often led the provision of international public goods, and it is in spite of, rather than because of, a rigid application of constitutional controls that this has in the majority of cases been to the general betterment of both the United States and the international community. Of course, the most desirable scenario would be one where a democratic machinery is built into the international rule-making system, so that decisions made at the cross-national level are harmonious with national systems and can be automatically transposed into national laws. But as any political scientist will tell you, we are nowhere near that ideal.
KKF also ignore the post-1945 Hamiltonian reality that American democracy and the earnest pursuit of national interest are often conceptually, ideologically and logically divorced. Securing U.S. interests may require recourse to methods and politics that . Most of the time, unlike the Bay of Pigs or Iraq, may be benign . As Richard McGregor wrote in the Financial Times, “the U.S. acts autonomously in its national interest (irrespective of whether) you’re friend or foe” . Whether or not moral .
It is an irony that many are calling for the reform of international institutions to give emerging developing powers a greater say to make the system more “democratic”, when the governments of many of these emerging powers are themselves not democracies, and are often not accountable to their .