International Governance and American Democracy

26 Pages Posted: 24 May 2000

See all articles by Paul B. Stephan

Paul B. Stephan

University of Virginia School of Law

Date Written: May 2000


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

Suggested Citation

Stephan, Paul B., International Governance and American Democracy (May 2000). UVA School of Law, Public Law Working Paper No. 00-9. Available at SSRN: or

Paul B. Stephan (Contact Author)

University of Virginia School of Law ( email )

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