Chicago Journal of International Law

Volume 1 Number 2 Article 2

9-1-2000

Should We Take Global Governance Seriously?

John R. Bolton

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Recommended Citation
Bolton, John R. (2000) "Should We Take Global Governance Seriously?," Chicago Journal of International
Law: Vol. 1: No. 2, Article 2.
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 Should We Take Global Governance Seriously.
John R. Bolton*

I. INTRODUCTION

Even the apparently simple act of entitling a conference "Trends in Global

Governance: Do They Threaten American Sovereignty ' is likely to expose the vast
disparities which exist between two quite different factions within the United States.
One party, small but highly educated, voluble and tireless, knows instinctively (and
often emotionally) what global governance is and why it is desirable. Consisting of
academics (largely, but not exclusively, law and international relations professors) and
media professionals; members of self-styled human rights, environmental and
humanitarian groups; rarified circles within the "permanent government," and at
present even in the White House; and a diverse collection of people generally uneasy
with the dominance of capitalism as an economic philosophy and individualism as a
political philosophy, these "Globalists" find allies all around the world. Their agenda is
unambiguously statist, but typically on a worldwide rather than a national level.
The other faction, consisting silently of virtually everyone else in the United
States, has no clue whatever that "global governance" is even an issue worth discussing,
since, among other things, it has formed no part of any political campaign in recent
memory. This large party cannot define global governance, does not think about it,
and-when it is explained-typically rejects it unhesitatingly. Although
overwhelmingly predominant numerically, these Americans (who are comfortable
with individualism and capitalism) are little recognized abroad, lost from view beneath
the prolific production of academic papers, endless international conferences, and
international media appearances of the diverse and often contradictory views of those
whose primary urge, if not their ultimate objective, enrolls them in the party of global
governance. Accordingly, when the "Americanists" speak out, foreigners often assume
that they are simply the knee-jerk voice of reaction, the great unlettered and

* Senior Vice President, American Enterprise Institute for Public Policy Research.
 Cticagojournafoflnternationa(Law

unwashed, whom the cultured and educated Globalists simply have not yet gotten
under proper control. Europeans in particular will instantly recognize the disjunction
between elite and mass political opinions that has characterized their societies for
almost their entire democratic experience, and they will empathize, needless to say,
with their elite, Globalist counterparts.
In both the Globalist and Americanist parties, for purposes of this analysis, we
are considering attitudes and opinions about people in their public capacities, issues of
politics and government. Although "globalism" as a buzz word can be made to cover
almost anything, we are -less concerned here with what people do in their private
capacities, in the fields of business and commerce, religion and culture. Certainly,
there are significant areas of overlap, but we are assessing "global governance," which
we can perhaps all agree has a narrower scope than the more often invoked
"globalization."
By this point, some readers will doubtless have cried out that the categories of
Globalists and Americanists are oversimplified, and they are of course correct, to an
extent. Analytically, however, this philosophical divide is real, and marks an important
fault line in the United States that is duplicated in few other countries (the United
Kingdom being a notable exception). It is certainly true that the party of
"Americanists" has generally not taken "global governance" seriously as a phenomenon,
has ignored or derided its huge body of academic and polemical literature, and has
allowed "Globalist' theories and organizations to develop with little or no scrutiny,
debate or opposition.
My thesis, as a convinced Americanist, is that these happy days are over. Like it
or not, the Globalists have seized more readily the opportunities provided by the end
of the Cold War to advance their agenda, building on an iceberg-like mass produced
by years of writing, conference-going, resolution-passing and networking. In
substantive field after field-human rights, labor, health, the environment, political-
military affairs, and international organizations-the Globalists have been advancing
while the Americanists have slept. Recent clashes in and around the United States
Senate indicate that the Americanist party has awakened, and that the harm and costs
to the United States of belittling our popular sovereignty and constitutionalism, and
restricting both our domestic and our international policy flexibility and power are
finally receiving attention. Nonetheless, Americanists find themselves surrounded by
small armies of Globalists, each tightly clutching a favorite new treaty or
multilateralist proposal.

II. THE GLOBAL GOVERNISTS DEFINE GLOBAL GOVERNANCE

Fortunately, the Globalists have a manifesto identifying many of their priorities

and objectives, frequently cited approvingly in their writings and speeches.

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Shoukfd'ZQe Take glo6a(governance Seriousft Bolton
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Charmingly entitled Our GlobalNeighborhood, the Commission on Global Governance'

report runs to nearly 400 pages, although its Co-Chairmen's 2 "Foreword" contains the
essence of its approach. This eight-page distillation says, for example: "The
development of global governance is part of the evolution of human efforts to organize
life on the planet, and that process will always be going on." The Co-Chairmen
modestly observe "[w]e do not presume to offer a blueprint for all time." They stress
"[a]s this report makes clear, global governance is not global government." Instead,
they say: "The challenge is to strike the balance in such a way that the management of
global affairs is responsive to the interests of all people in a sustainable future, that it is
guided by basic human values, and that it makes global organization conform to the
reality of global diversity."3
Although disclaiming a crusade for global government, the Co-Chairmen's
phrases have a distinctly statist tilt: "organize life on the planet," "management of
global affairs," and "global organization" are not phrases generally used in libertarian
circles. Moreover, the Co-Chairmen not only make no effort to hide what they think
is really necessary, they proudly emphasize it as "a pre-eminent strand in the thinking
of the Commission: the world's need for enlightened leadership that can inspire people to
acknowledge their responsibilities to each other, and to future generations."4 If this
assertion sounds chilling, it may be that you are edging toward the Americanist camp.
Although two Americans were members of the Commission,5 the report's anti-
American tone is unmistakable, a fact we can .and should legitimately consider in
assessing the Globalist agenda. The Co-Chairmen say, for example, in abjuring "global
government" that they seek to avoid a world that is "more accommodating to power
[and] more hospitable to hegemonic ambition. ' At a time when "hegemony," whether
used in Beijing, Moscow or Paris (or even by well-meaning Americans) is a code word
for the United States,7 the animus is clear. The Co-Chairmen pose as alternatives: (1)
"go [ing] forward to a new era of security that responds to law and collective will and
common responsibility"; or (2) "go[ing] backward to the spirit and methods of what
one of our members described as the 'sheriffs posse'-dressed up to masquerade as
global action."8 Leaving aside apparently trivial problems such as how to measure the
international "common will," the Co-Chairmen have taken direct aim at what the

a. Commision on Global Governance, Our Global Neighborhood: The Report of the Commission on Global
Governance (Oxford 1995).
2. The Co-Chairmen were Ingvar Carlsson of Sweden and Shridath Ramphal of Guyana.
3. Ingvar Carlsson and Shridath Ramphal, Our GlobalNeigbborbood at xvi-xvii (cited in note 1).
4. Id at xvii (emphasis added).
S. Barber Conable and Adele Simmons.
6. Carlsson and Ramphal, Our GlobalNeigbborbood at xvi (cited in note 1).
7. See, for example, William Kristol and Robert Kagan, Toward a Neo-Reaganite Foreign Policy, 75
Foreign Aff 18 (July/Aug 1996).
8. Carlsson and Ramphal, Our GlobalNeighborhood at xix (cited in note 1).

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 Chicagojournalof7nternationa(fLaw

United States did in the 1991-92 Persian Gulf War,9 and at what was broadly
believed by many Americans to be an accurate description of America's role in the
post-Cold War world."

III. EVOLVING GLOBAL GOVERNANCE-SOME SPECIFICS

Much of this conference will consist of more detailed examinations of various
aspects of global governance, but some initial generalizations may be helpful. This
categorization is by no means exhaustive, but it provides an introduction to the fuller
scope of Globalist activities. In one sense, therefore, what follows is also a topography
of where the battle between Americanists and Globalists has already been joined,
although the outcome is still far from certain.
A. The Use of Force: Legitimacy and Authority. To make "Our Global
Neighborhood" hospitable, an important predicate is to restrain the use of force, not
in the old-fashioned, balance-of-power way among nation states, but by constraining
and limiting the nation-states themselves. Since decisions to use military force are the
most important that any nation-state faces, limiting their decisions or transferring
them to another source of authority is ultimately central to the diminution of
sovereignty and the advance of global governance. Here is where the Americanist-
Globalist divide is the deepest.
Nowhere has this issue been more graphically raised than the by recent
comments of Kofl Annan, Secretary General of the United Nations. During a visit to
Macedonia at the height of the NATO air campaign over former Yugoslavia in 1999
(a military action not authorized by the UN Security Council), the Secretary General
said explicitly: "Unless the Security Council is restored to its preeminent position as
the sole source of legitimacy on the use of force, we are on a dangerous path to
anarchy"" Repeated in other contexts, the Secretary General said a few months later
in his annual report to the UN membership that actions such as Kosovo, undertaken
without Council authorization, constitute threats to the "very core of the international
security2 system.... Only the Charter provides a universally legal basis for the use of
1
force."

9. In that crisis, the United States did in fact assemble a "sheriffs posse" of like-minded nations,
obtained Security Council authorization for the use of force-but no UN supervision or control-
and expelled Iraq from Kuwait. That the Globalists consider this example of America's international
role to be in contrast to "law and collective will" tells us much about their prejudices.
lo.See, for example, Richard N. Haass, Intervention: The Use of American Military Force in the Post-Cold
War World 144 (Carnegie 1994).
11.Reuters, Annan Visits Macedonia To Discuss Refugees, Intl Herald Trib (Hong Kong) 4 (May 20,
1999).
12. Kofi Annan, Report of the Secretary-General on the Work of the Organization,
<http://www.un.org/docs/SG/Report99/introl.htm> (visited Sept 16, 2000).

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Sbould('.Q.e Take gfo ba(governance Serious (y? Toton
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Both of these statements are flatly incorrect. They are unsupported either by the
language and background of the UN Charter, or by over fifty years of experience with
the Charter's operation, and they represent the most sweeping assertion of power by
any United Nations official in its entire history. Nonetheless, substantial segments of
the Globalist party believe the Secretary General to be entirely correct, even if they
struggle to disagree with the conclusion that inevitably follows from acceptance of his
remarks, that NATO's Kosovo campaign was illegal. 3 Inevitably in the years ahead,
we will see other conflicts where the United States must decide whether and when to
act, unilaterally or in concert with a few other countries, without first obtaining
"approval" by the Council. Thus, America's pattern of behavior will likely determine
whether the Secretary General proves correct, or whether we maintain the capability
for independent (and, where necessary, unilateral) military or other action.
I presented this argument in testimony before the first field hearing of the Senate
Foreign Relations Committee, held in New York City on January 21, 2000, the day
after Committee Chairman Senator Jesse Helms had addressed the Security Council.
The prepared testimony urged the Committee, and indeed the full Senate, to debate
the Secretary General's remarks, because of their enormous implications for US
foreign policy. While it was no surprise that Senator Helms, then and previously, had
rejected the Secretary General's analysis, Globalists must certainly have been shocked
and surprised by the response to the testimony of Senator Joseph Biden, the
Committee's ranking Democrat, and, in effect, the senior Democratic spokesman in
the Senate on foreign policy matters. Senator Biden's analysis is worth quoting at
length:
I do not think you have to worry about there being any debate on the Secretary
General's statement about the sole source of [legitimacy] is the Security Council.
Nobody in the Senate agrees with that. Nobody in the Senate agrees with that.
There is nothing to debate. He is dead, flat, unequivocally wrong, and... I cannot
even figure how one gets that interpretation from the [UN Charter] ....It is a
statement that an overexuberant politician like I am might make on another matter,
but I hope he did not mean it if he did. I love him, but he is flat-out wrong. There is
nothing to debate. We totally agree on that. 4
Not even the most accomplished linguist could find ambiguity in these
spontaneous remarks by Senator Biden, which reinforce the view that the Americanist
position is comprehensively shared among our citizenry, and therefore strikingly
reflected by its elected representatives, on a broadly bipartisan basis.
B. The Use of Force: Two Case Studies. The Globalists' progress in the politico-
military field, however, extends far beyond mere rhetoric by international civil

13. My own view is that the NATO air campaign was bad policy, but that it was emphatically
legitimate under "international law." See John Bolton, Clinton Meets "InternationalLaw" in Kosovo,
Wall StJ A23 (Apr 5,1999).
14. US Senate Committee on Foreign Relations, Field Hearing on Implementation of United Nations
Reform 69 (Jan 21, 2000) (Stenographic transcript).

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 Cbicagojourna[of7nternationa(Law

servants. In recent years, they have achieved two substantial victories: the signing of
the International Land Mines Convention in Ottawa in December 1997, and the July
1998 signing of the Rome Statute creating the International Criminal Court ("ICC").
The Land Mines Convention, although limited by its terms to the subject of banning
anti-personnel mines, represents (for its signatories) a significant limitation on
conventional weapons, those other than what are commonly called "weapons of mass
destruction" (nuclear, chemical and biological). As such, it may form an important
precedent for future efforts to limit other conventional weapons systems, substantial
consequences of which will inevitably be felt by the United States.
On its face, the 1998 Rome Statute is a much broader Globalist advance, creating
a potentially powerful new international institution, with the authority to override
national judicial systems, and with a jurisdiction far more sweeping even than the
existing International Court of Justice ("ICJ").15 Even though it appears to create
institutions and procedures for trying named individual defendants, there seems to be
little doubt that its ultimate aim is to control the behavior of states."6 One little
noticed effect of this development has been to impair severely the concept of "the
sovereign equality of states," much beloved by third-world governments in defending
the one-nation-one-vote principle of the UN General Assembly. It was, of course, at
best only a useful fiction for their purposes in any event, but is now also conceptually
in disarray.
Even before Secretary General Annan's comments about the legitimacy of the
use of force, other senior UN officials were setting the stage for possible prosecutions
of NATO members for the Yugoslav air campaign. Mary Robinson, UN High
Commissioner for Human Rights, said for example:
It surely must be right for the Security Council of the United Nations to have a say
in whether a prolonged bombing campaign in which the bombers choose their
targets
TT
at will is17consistent with the principle of legality under the Charter of the
La" *-
United Nations.
Indeed, complaints alleging that NATO in fact committed the crime of aggression
have been submitted to the Prosecutor of one of the ICC's predecessor courts.
Although the Prosecutor, in response to news reports, subsequently denied that she
was conducting a "formal inquiry" into NATO's actions, her carefully worded
statement only raised more questions about what she was actually doing. 8 Even her

g5. For a debate on the merits of the ICC proposal, see Council on Foreign Relations, Toward an
International Criminal Court? (Council on Foreign Relations 1999).
16. Madeline Morris, High Crimes and Misconceptions: The ICC and Non-party States, 63 L & Contemp
Probs (forthcoming 2000).
17. Mary Robinson, Commission on Human Rights: The Human Rights Situation Involving Kosovo, UN Doc
OHCHR/99/04/30/A (1999).
18. See, for example, Charles Trueheart, War Crimes Court Is Looking at NATO, Wash Post A20 (Dec
28, 1999); Steven Lee Myers, Kosovo Inquiry Confirms US Fears of War Crimes Court, NY Times A6
(an 3,2000).

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Sboufd'"We Take goba governance Seriousfyn Bofton

subsequent refusal to indict NATO officials does not finally resolve the matter.19
NGOs hoping to change Pentagon behavior as much as the international "rules"
themselves, through the threat of prosecution, hope to constrain military operations,
and thus lower the potential effectiveness of such actions, or raise the costs to
successively more unacceptable levels by increasing the legal risks and liabilities
perceived by top civilian and military planners of the United States and its allies
undertaking military action.
Negotiation of both of these measures had commenced with the strong support
of President Clinton, whose Administration has c6nsistently been the most Globalist
of this century.' ° Ironically, however, the Clinton Administration has not yet signed
either of the two treaties, perhaps reflecting why President Clinton has also been one
of the most successful American politicians of this century. On land mines,
determined objections by the Pentagon rested on the importance which anti-
personnel landmine technology still plays in protecting anti-tank landmines (not
limited by the treaty) and in critical defensive positions, such as along the
Demilitarized Zone in Korea. On the ICC, there were much more emphatic
philosophical differences going to the essence of the ICC concept, strongly supported
by Pentagon fears about the consequences of the proposal for future American
military deployments. All of these concerns would certainly have been reflected and
magnified in any Senate debate over the two proposals, and most observers believed
that defeat in the Senate was nearly certain for both. Accordingly, even so Globalist an
Administration as this one backed down to avoid potentially embarrassing defeats by
energized Americanists in the Senate.
C. The Use of Force: A Globalist Success in Washington. Despite its reticence on
landmines and the ICC, the Clinton Administration showed no such hesitation in its
advocacy of American ratification of the Comprehensive Test Ban Treaty ("CTBT"),
which would have banned all nuclear testing. Nonetheless, to its considerable dismay
and to the dismay of arms-control theologians around the world, the Senate crushed
the treaty on October 13, 1999, by a vote of 51-48. This outright defeat of the
CTBT-the first major treaty expressly rejected in the Senate since the Treaty of
Versailles after World War I-brought ominous predictions of reduced American
influence around the world,2' none of which has yet to materialize.
Nonetheless, Globalists could have only rejoiced at the Clinton Administration's
reaction to this humiliating rejection of a centerpiece of the President's personal

19. Charles Truehart, UN TribunalRejects Callsfor Probeof NATO, Wash Post, A9 (June 3,2000).
20. Philip Shenon, Clinton Still Firmly Against Land Mine Treaty, NY Times A6 (Oct 11, 1997); DavidJ.
Scheffer, InternationalJudicialIntervention, Foreign Pol 48, 51 (Spring 1996). ('The ultimate weapon
of international judicial intervention would be a permanent international criminal court.... In the
civilized world's box of foreign policy tools, this will be a shiny new hammer to swing in the years
ahead.")
21. Steven Mufson, For US, FalloutWill Be FadingInfluence, Wash Post Al (Oct 11, 1999).

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 CbicagoJournafof7nternationa(fLaw

'legacy campaign." Immediately after the Senate vote, the Administration announced
that it would continue its unilateral policy against nuclear testing. Instead of relying
on the President's acknowledged constitutional power to do so under the commander-
in-chief clause, however, the Administration chose to rely on a provision of an
unratified international agreement, the Vienna Convention. Article 18 of the
Convention provides that a signatory may not take actions that would frustrate the
intent of the treaty prior to its expected ratification, which is in fact a provision more
suited for a parliamentary system of government than one of separated powers, but
which in any case the United States has never adopted. Even so, Secretary of State
Madeleine Albright asserted in letters to her foreign counterparts that the United
States still intended to ratify the CTBT. Characterizing the Senate defeat as a "delay
in US ratification," she went on to say "as more states ratify... I believe that this will
positively influence future Senate deliberations.""
No one could seriously have questioned the President's constitutional authority
to continue a US freeze on nuclear testing, but his Administration's zeal to find
authority in an unratified international convention must surely be the high-watermark
of Globalist achievements in the United States, truly snatching a victory out of the
CTBT's ashes. The unrepentant Americanists in the Senate, however, did take due
note of the President's preference for the Vienna Convention over the Constitution.
D. Limiting the United States Under "Human Rights" Cover. Virtually all Americans
celebrate their own individual freedoms, and are at least well-wishers for others
around the world to enjoy the same freedoms, thus making human rights issues
seemingly unexceptional items on the national agenda. But more is at work here, for
the "human rights" rubric has been stretched in a variety of dimensions to become an
important component of Globalists' effort to constrain and embarrass the
independent exercise of both judicial and political authority by nation-states.
There appear to be two broad approaches. The first is to create a network of
international agreements and customary international law that effectively take critical
political and legal decisions out of the hands of nation-states by operationally
overriding their own internal decision-making processes. Employing this strategy goes
well beyond the concept of norm-setting embodied in the 1948 Universal Declaration
of Human Rights, which by its terms does not purport to create any binding
obligations. Instead, the Globalists' very conscious policy is to judicialize key
decisions, thus removing them from common political processes, and, in effect to
supersede national constitutional standards with international ones. The recent

22. Bill Gertz, Albrigbt Says US Bound By Nuke Pact, Wash Times Al (Nov 2, 1999). The Secretary's
spokesman went even further, stating "Webelieve that so long as the [P]resident ...expresses his
intention to seek advice and consent pending whatever time frame he chooses, customary
international law applies." The spokesman clarified that "other countries actually care about
international law,even if some in the United States do not."

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SI;oufdZQe Take g(oI~a(governanceSeriousfy? "JBofon
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example of efforts to extradite General Augusto Pinochet from the United Kingdom
to Spain typifies this approach, which is being actively promoted, and at times
followed, in other cases as well.
Critical to this effort is the concept of universal jurisdiction, which has been
stretched beyond recognition from its distant origins. Not even found in Black's Law
Dictionary as recently as 1990-and thus an example of the unchecked, undemocratic
speed with which global governance theories flourish-universal jurisdiction as
currently articulated provides a basis for politically sympathetic nation-states to "do
the right thing" when the more conventional jurisdiction is unwilling or unable to take
action, as in the case of General Augusto Pinochet. Chile might or might not have
made the correct decision not to prosecute Pinochet (a decision, which in any event is
unresolved in Chilean courts), but there are compelling arguments, grounded in
elementary democratic theory, that the decision is for the Chileans themselves to
make.
Impatient with democratic inefficiency and what are perceived to be faulty
decisions, human rights groups seek to use universal jurisdiction and related concepts
to advance their own value preferences. Although the anticipated birth of the ICC will
in several respects preempt important substantive areas, the Rome Statute's covered
offenses are not unlimited, and therefore universal jurisdiction will remain an
important cutting-edge weapon against nation-states unless and until the ICC's
jurisdiction is expanded (campaigns to do so are already underway). Thus, economic
"offenses" by "the common enemies of mankind" that do not readily fit within even
the
Rome Statute's sinuous language will still be subject to the creative interpretations
available under universal jurisdiction theories, whether slow-witted national legislators
ever vote on them or not.
The Globalists' second approach is specifically targeted against the United
States, in an effort to bend our system into something more compatible with human
rights and other standards more generally accepted elsewhere. This conscious effort at
limiting "American exceptionalism" is consistent with the larger effort to constrain
national autonomy because the United States as a whole is the most important skeptic
of these efforts. Every time America is forced to bend its knee to international
pressure, it sets a significant, and detrimental, precedent for all of the others.
Although there are a wide variety of examples, perhaps the most appropriate to
consider is the American penchant for the death penalty for murder and certain other
serious offenses. Through democratic decision-making processes, over long periods of
time, American electorates have expressed broad, although certainly not universal,
support for the death penalty. Under intense constitutional assault on the death
penalty, both on substantive and procedural grounds, the general public in recent
years has had to consciously confront the objections and inadequacies described in a
range of Supreme Court decisions, and not simply adhere to the death penalty
because of tradition or long-standing use. Americans in the last several decades have

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 CbicagoJournaloflnternationa(Law

soberly examined the death penalty, and by and large reaffirmed it in a textbook
demonstration of popular sovereignty at work.
This result enrages the 'Globalists. Peter Spiro, a Hofstra University law
professor, argues that US enforcement of the death penalty "is the area where
American law 'most clearly is trespassing on crystallizing international norms. ' In
response, they have launched a multifaceted campaign-entirely consistent with their
larger effort to create binding worldwide human rights standards-to internationalize
whether and to what extent the United States will be able to employ the death
penalty. For example, in the 1998 matter of whether Virginia could legitimately
execute the convicted murderer Angel Breard, human rights groups rushed to the
assistance of Breard and his native Paraguay, arguing that Virginia's failure to observe
a provision of the Vienna Convention on Consular Relations in effect vitiated the
conviction. 24 Secretary Albright endorsed the human rights view, and urged Virginia
Governor James Gilmore to stay Breard's execution; her views were rejected. The
Supreme Court also declined to issue a stay in litigation challenging the conviction,
despite an admonition by the ICJ not to proceed while it considered the applicability
of the Vienna Convention.
The Supreme Court said expressly that even had "Breard's Vienna Convention
claim [been] properly raised and proven, it is extremely doubtful that the violation
should result in the overturning of a final judgment of conviction without some
showing that the violation had an effect on the trial.... In this case no such showing
could even arguably be made."2 The Convention itself says that its subject is "consular
relations privileges and immunities," and that its purpose "is not to benefit individuals but
to ensure the efficient performance of functions by consular posts."2 But, needless to
say, Breard is not the final word, and litigation challenging various death penalty
decisions, relying increasingly on international law arguments, continues in American
courts.
In addition, international pressure is being applied through mechanisms such as
the UN Human Rights Commission, through whose offices, for example, rapporteurs
have recently investigated the United States on issues such as religious persecution,
violence against women, and, of course, the death penalty. Although one might
wonder why these rapporteurs might not find more work to do in any number of
other countries, we can predict with some confidence that the United States will be

- 23. Quoted in Lyle Denniston, States' Legal Role Grows Globally, Balt Sun A2 (June 1, 1998). Professor
Spiro speculates that other nations may retaliate against the death penalty through World Trade
Organization mechanisms.
24. Vienna Convention on Consular Relations, 21 UST 77, TIAS No 6820 (1970). Also, see generally
David Cole and Richard J. Wilson, Defining World Law in the Angel Breard Case, Legal Times (April
27, 1998) andJohn R. Bolton, We Gave Angel BreardJustice,Legal Times 27 (May 4, 1998).
25. Breard v Greene, 523 US 371, 377 (1998).
26. Vienna Convention on Consular Relations (cted in note 24) (emphasis added).

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welcoming more and more such visitors. The mandate of the Senegalese death penalty
rapporteur was supposedly limited to "extrajudicial, summary or arbitrary
executions"-which constitute, in the United States, the paradigm definition of a null
cell-but the vigilant rapporteur was not deterred.
His forty-page, single-spaced, heavily-footnoted report, moreover, disdains to
conceal its basic objective: "The United Nations has gradually shifted from the
position of a neutral observer... to a position favouring the eventual abolition of the
death penalty." To advance that position, the helpful rapporteur recommended that
our government "include a human rights component in training programs for
members of thejudiciary," a recommendation that someone, I trust, brought swiftly to
the attention of ChiefJustice William Rehnquist. The rapporteur also recommended,
in light of his findings, that "the Special rapporteur on the independence ofjudges and
lawyers" make a visit to the United States, and that our police receive "training on
international standards on law enforcement and human rights."
Most Americans will wonder how the UN arrived at such a position, so
fundamentally different from our dearly-expressed democratic choice, without our
knowing about it. They will also wonder how and when the United Nations ever
came to believe it had ,the authority to make such judgments in the first place. The
real agenda of the rapporteur and his allies, of course, is to leverage the stature and
legal authority of the United Nations (such as they are), into our domestic debate, an
effort most Americans would find fundamentally illegitimate. Yet this is precisely a
case where the Globalist-Americanist debate is most vividly expressed.
E. NGOs on Parade. Finding national governments, especially the United States,
unresponsive to their priorities, and democracy increasingly inconvenient, many non-
governmental organizations ("NGOs") find it more amenable to increase the role of
civil society in international affairs. In the words of the Commission on Global
Governance, civil society covers "a multitude of institutions, voluntary associations,
and networks-women's groups, trade unions, chambers of commerce, farming or
housing co-operatives, neighborhood watch associations, religion-based organizations,
and so on."' Although business groups are at least nominally included as part of "civil
society," in practice they are decidedly unwelcome, and indeed the Commission warns
darkly that "[s]ome NGOs serve narrow interests, and this pattern may intensify as
the sector is seen to take on greater political importance." This caution goes hand in

27. Bacre Waly Ndiaye, United Nations Commission on Human Rights, Question of the Violation of
Human Rights and FundamentalFreedoms in Any Partof the World, with ParticularReference to Colonialand
Other Dependent Countries and Territories, Report of the Special Rapporteur Submitted Pursuant to
Commission on Human Rights Resolution 1997/6, UN Doc E/CN4/1998/68/Add3, paras 1,15, 15 6 (g),
15(i), and 159(b) Uan22,1998).
28. Commission, Our Global Neighborhoodat 32 (cited in note 1).

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hand with the lament that trade unions "have declined somewhat" with "trends
toward free market ideologies in labour relations."
It is no exaggeration to say that, in United Nations circles, the demands of civil
society to participate in decision-making on a level functionally equivalent to national
governments are all but conceded. °The UN's millennium web page, for example says
"[o]rganizations of the United Nations system, civil society organizations and other
institutions are arranging a number of millennium-related events." 31 In May 2000, the
"Millennium Forum" of NGOs convened at UN headquarters in New York "to
present a comprehensive and coherent opinion to world leaders" when the 2000
General Assembly convened." This Forum is the result of yet another suggestion by
the Commission on Global Governance, pending the acceptance of its
recommendation to establish a "world assembly through direct election by the people,"
for the United Nations to convene an annual "Forum of Civil Society." Such a Forum
consisted of "300-600 organs of global civil society," and identifying those chosen "is a
matter that civil society itself should canvass." The Commission asserts that "[i]t
would be both functionally and symbolically desirable for the Forum to meet in the
Plenary Hall of the General Assembly in :the run-up to the Assembly's annual
session." Although saying modestly that the Forum "could not take decisions for the
Assembly, but it can help the Assembly to decide-by informing its discussions and
influencing its conclusions," the Commission's real target is that "[t]he Forum process
will also strengthen the capacity of civil society to influence the governments of member-states of
the UN on issues on the Assembly's agenda-and those off it" 33
The effort to enhance the extranational clout of NGOs is very much a
complement to efforts by human rights groups to judicialize, on an international basis,
various issues, thus removing them from the purview of national politics. Civil society
also sees itself as beyond national politics, which is one of the reasons its recent
successes have such profoundly anti-democratic implications. Unless "civil society"
simply means all groups and individuals with opinions and interests on public policy
(a completely circular and singularly unenlightening definition), which it almost
certainly does not, the term is intended to convey an alternative to national
governments as vehicles for decision-making. Ironically, for Americans, such rhetoric

29. Id at 32-33.
30. AEI will publish a major study on the role of NGOs later this year, the first such comprehensive
study ever taken. See Marguerite Peeters, Hijacking Democracy: The Power Shift to the Unelected (AEI
Press 2000) (forthcoming).
31. United Nations Millennium Assembly Website, <http://www.un.org/
millennium/> (visited Apr 28,2000).
32. Techeste Ahderom, What is the Next Step For Nongovernmental Organizationsto Take, Earth Times 27
(Feb 25,1999). Ahderom is Co-Chair of the Millennium Forum.
33. Commission, Our GlobalNeighborhood at 259-60 (emphasis added) (cited in note 1).

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S~oufdrWe Takie g1o~a(governanceSeriouslyco~a Bofton

seems to appeal to the libertarian and conservative sides of the political spectrum, with
its anti-statist resonance. To say the least, however, this appeal is false and misleading.
Yet it is precisely the detachment from governments that makes international
civil society so troubling, at least for democracies. Within each democratic nation-
state, political interests compete for governmental power-in other words, the
legitimate authority that flows from victory to implement their preferred policies. In
the international context, that includes the authority to negotiate on behalf of the
entire nation, including opposing political forces that were defeated in democratic
elections. Civil society, by contrast, provides a second opportunity for intrastate
advocates to reargue their positions, thus advantaging them over their opponents who
are either unwilling or unable to reargue their cases in international fora. It also
provides them at least the possibility of external lobbying leverage, to force domestic
policy results they could not have otherwise achieved.
Even the geography of international conferences reinforces the point, as NGOs
increasingly crowd the meeting halls, participating as functional equals to nation-
states. In this parallel universe, governments see political factions that are obscure
minorities within their own countries emerging as powerful actors in complex global
negotiations. Close observers and advocates of civil society often cite the Landmines
Convention as an important turning point in the international role of NGOs. "The
International Campaign to Ban Landmines 'broke all the rules on how international
diplomacy is practiced,' said Jessica Mathews, president of the Carnegie Endowment
for International Peace. It will be remembered 'as a landmark undertaking,' she said." : '
Jody Williams, the acknowledged leader of the Campaign, and co-winner of the
Nobel Peace prize for her work, was a typical NGO participant, originally "a
Washington-based activist against US policies in Central America in the 1980s."3 '
Civil society's "second bite at the apple" raises profoundly troubling questions of
democratic theory that its advocates have almost entirely elided. Some assert, for
example in the environmental area, that businesses troubled by the outcome of the
Kyoto Conference on Climate Change should mobilize themselves to participate in
"civil society" the same way NGOs currently do, and that business is also entitled to
have a "second bite" While almost certainly highly predictive of precisely what
commercial entities will do to protect their interests, this response only raises new
problems, not the least of which is the further undermining of national decision-
making systems based on constitutionalism and popular sovereignty, such as exists in
the United States.

34. Dana Priest, US Activist Receives Nobel Peace Prizefor Land Mine Campaign, Wash Post Al (Oct 11,
1997).
35. Id. Williams was subsequently fired from her job at the Vietnam Veterans of America Foundation
on March 1998, in a dispute regarding her role in the anti-landmine effort. See Carlyle Murphy, The
Nobel Prize Fight,Wash Post F1 (Mar 22, 1998).

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Indeed, the civil society idea actually suggests a "corporativist' approach to

international decision-making that is dramatically troubling for democratic theory
because it posits "interests" (whether NGOs or businesses) as legitimate actors along
with popularly elected governments. The corporativist model already exists in the
International Labor Organization ("ILO"), with its separate memberships for
governments, business associations and trade unions. At the national level, Mussolini
was the principal theoretician advocating the replacement of a messy structure of
political parties with interest group governance. As the British historian Denis Mack
Smith wrote, Mussolini called corporativism "the single most essential component in
fascism."6 Mussolini would smile on the Forum of Civil Society. Americanists do not.
F. Limitless Globalist Vistas of Substantive Policy. In the 1960s, 1970s, and 1980s,
acolytes of what became known as the New International Economic Order
("NIEO") 7 and the New World Information and Communication Order
("NWICO")"' proposed vast multilateral redistributionist and regulatory schemes
that would have dramatically transformed both the world economy and global
governance. Consistent with their often Marxist philosophical inclinations, and
stemming in no small measure from active Soviet measures, "Third World"
governments eagerly embraced the "North-South" conflict, with its promise of
increased flows of concessional assistance, the free transfer of technology from
developed countries, and "codes of conduct" for international businesses. The UN's
Conference on Trade and Development ("UNCTAD") was an especially fertile
source for these proposed regulations, as was the UN Educational, Cultural and
Social Organization ("UNESCO") on NWICO matters.
"Codes of conduce were a particular focus of third-world activity, because they
were seen as shortcuts to the direct transfer of resources and know-how from
multinational corporations to the governments of less developed countries.39 These
regulations ranged from the Andean Foreign Investment Code,' the UNCTAD
Code of Conduct on Liner Conferences, 4 UNCTAD's proposed Code of Conduct

36. Denis Mack Smith, Modern Italy: A PoliticalHistory 342 (Michigan 1997).
37. See UN GA Res 3201(S-VI) (1974). A companion Resolution, 3281 (XXIX) (1974), was entitled
the "Charter of Economic Rights and Duties of States."
38. See, for example, International Commission for the Study of Communications Problems, Many
Voices, One World: Toward a More Just and More Efficient World Information and Communication Order
(UNESCO 1980).
39. See generally Raymond J. Waldmann, Regulating International Business through Codes of Conduct (AEI
Press 1980); and Carol C. Adelman, ed, InternationalRegulation: New Rules in a Changing World Order
(ICS 1988).
40. Andean Common Market Commission, Common Regime of Treatment of Foreign Capital and of
Trademarks, Patents,Licenses and Royalties, Decision 24 (Dec 31, 1970).
41. United Nations Conference on Trade and Development, The Regulation of Liner Conferences: A
Code of Conduct for the Linear Conference System, TD/104/Revl (1972).

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on the Transfer of Technology,42 the proposed Code of Conduct for Transnational

Corporations,43 the Convention on the Law of the Sea,' and many others.
Although negotiations on many of these proposals dragged on endlessly, the
undeterred regulators pressed on. Although nearly two decades passed before the
Convention on the Law of the Sea entered into force, its underlying theory that the
seabed was a part of "the common heritage of mankind," became fixed in the Globalist
mindset, and spread to many other fields. For example, the ever-creative Group of 77
decided that "technology" was "part of the universal human heritage," thus ensuring
that all nations "have the right of access" to it.45 In 1981, the World Health
Organization ("WHO") adopted a Code on the Marketing of Breast Milk Substitutes
by a vote of 118-1, the Reagan Administration casting the sole dissenting vote.
Regulations of pharmaceuticals and various chemical products were much discussed
well into the 1980s.
Although some regulatory schemes were adopted and some were not, the "code
of conduct" approach largely failed in its broader objectives because the developed
world, and the Reagan Administration in the United States in particular, simply
refused to play the game. As a consequence, international regulatory efforts faded in
the 1980s and 1990s, largely because they had failed to produce the expected bonanza
of "free" resources and technology that the third world had been expecting. However,
the underlying statist, regulatory impulse itself has not only not disappeared, but it
has seized the opportunity to resurrect itself as part of the larger impulse toward
global governance that emerged during the 20th century's last decade.
Although space constraints permit only brief mention of a few contemporary
issues, there should be no doubt that, bagpipe-like, the field of substantive
international regulatory policy is simply waiting for the breath of Globalist inspiration
to expand again. Ever since the 1992 Conference on Environment and Development
(the "Rio Summit"), the environment has seen the largest increment of regulatory
initiatives, including the 1997 Kyoto Protocol on Global Warming. But others are
also hard at work. The WHO, for example, has progressed from breast-milk
substitutes, and is currently considering adopting a Framework Convention on

42. Originally endorsed in UNGA Res 3202 (S-VI) (1974), in connection with the General Assembly/s
endorsement of the NIEO in Resolution 3201.
43. See United Nations Commission on Transnational Corporations, Draft United Nations Code of
Conduct on Transnational Corporations, UN Doc E/C10/1983/S/5 (June 1983), and Waldmann,
RegulatingInternationalBusiness App C (cited in note 39).
44. United Nations, Conference on the Law of the Sea, Convention on the Law of the Sea, UN Doc
A/CONF62/122 (October 1982).
45. LawrenceJuda, UNCLOS III and tbc New InternationalEconomic Order,7 Ocean Devp & Intl LJ 221,
248 (1979).
46. Jeremy Rabkin, Wby Sovereignty Matters80-92 (AEI Press 1998).

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Tobacco Control.47 The ILO is still negotiating conventions on labor standards, and
the Clinton Administration has been hard at work attempting to persuade the Senate
to ratify the extensive legislative backlog of existing conventions, several of which have
been pending for decades. In short, for virtually every area of public policy, there is a
Globalist proposal, consistent with the overall objective of reducing individual nation-
state autonomy, particularly that of the United States.
Even in the field of international trade, traditionally the domain of classic
international agreements such as the General Agreement on Tariffs and Trade
("GATT"), replaced in 1995 by the World Trade Organization ("WTO"), the
Globalists have not been quiet. Indeed, as most recently demonstrated by the "Battle
in Seattle" at the WTO ministerial meeting, and earlier exemplified in the labor and
environment "side agreements" to the North American Free Trade Agreement
("NAFTA"), NGOs have begun to crowd into the trade field. Attracted by the
success, growth and stability of the international trade process (although it is hardly
free from its own difficulties), the NGOs will undoubtedly seek to interject their
various priorities into trade negotiations for the foreseeable future.
Other substantial international institutions are also the subject of new
reexamination, although in some cases the Globalists appear to be in intellectual
disarray. The recently released report of the Meltzer Commission, s for example,
which considered the roles and responsibilities of the International Monetary Fund,
the World Bank Group and its regional development bank partners, and the Bank for
International Settlements, takes a decidedly more limited view of their appropriate
international functions. The surprising breadth of the majority endorsing the Meltzer
Commission recommendations perhaps indicates that in more mature pastures of
international organization, a greater measure of realism is beginning to prevail. Even
here, however, it is certain that the Globalists will not suffer the Meltzer Commission
proposals gladly.
In many respects, the European Union of the 1990s and the next decade has
replaced the Developing World (and its NIEO and NWICO) as the leading source
of substantive Globalist policy. Faced with sweeping international economic change,
European Globalists have found that the international power of their states is too
insignificant, their currencies too weak, and their social-democratic welfare systems
too expensive to withstand. The European reaction, especially on the left, has been to
aggregate state power through the EU mechanism, precisely the opposite of the

47. For background on CTC, see the WHO Tobacco Free Initiative website at
<http://tobacco.who.int/en/fctc/> (visited Sept 16,2000). The Department of Health and Human
Services recently issued a notice of comment period and public meeting on the FCTC; see 65 Fed
Reg 10094 (2000).
48. Report of the International Financial Institution Advisory Commission, submitted to the US
Congress and the US Department of the Treasury (March 8, 2000), http://phantom-
x.gsia.cmu.edu/IFIAC/USMRPTDV.html/ (visted Sept 16,2000).

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ShoudWQe Take gfo6 agovernanceSeriously? Boton

instinctive Americanist inclination. For the Europeans, there is also a strong economic
logic to an integrated continental market, as they have observed in the United States,
but these compelling, indeed powerful, business reasons are also tinged with a
discernable anti-Americanism, a desire to have a state strong enough to be a separate
pillar in the world.
As political elites in Europe grow increasingly comfortable in ceding large areas
of national competencies to EU mechanisms in Brussels, they have also felt more
comfortable in propounding worldwide solutions consistent with the direction of EU
policy. Thus, not content alone with transferring their own national sovereignty to
Brussels, they have also decided, in effect, to transfer some of ours to worldwide
institutions and norms, thus making the European Union a miniature precursor to
global governance.

IV. CONCLUSION

Globalism, in effect, represents a kind of worldwide cartelization of governments

and interest groups. Even though its proponents purportedly abjure global
government as such (at least rhetorically, and only for now), the consequence is, for all
practical purposes, the same.
Should we, therefore, take global governance "seriously?" Sadly, the answer is yes,
not only today but far into the foreseeable future. It is well past the point when the
unrestrained and uncritical acceptance of Globalist slogans ("global solutions for
global problems") can be allowed to proceed. The costs to the United States-
reduced constitutional autonomy, impaired popular sovereignty, reduction of our
international power, and limitations on our domestic and foreign policy options and
solutions-are far too great, and the current understanding of these costs far too
limited to be acceptable.
Whether we are ready or not, the debate over global governance, fought out at
the confluence of constitutional theory and foreign policy, is the decisive issue facing
the United States internationally.

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