Others have argued that modern customary law is more likely today to represent a popular consensus--because NGOs are taking a greater role in framing and interpreting it. But permitting NGOs, rather than increasingly democratic nation-states, to shape international law in fact makes it more likely that international law will represent the views of a particular set of factions rather than the consensus of citizens of nation-states. NGOs are interest groups often extremely unrepresentative of the average citizen. Greenpeace, for instance, no doubt cares passionately about the environment and would like to press for the precautionary principle, but Greenpeace is a predominantly Western organization whose views are unrepresentative even of many citizens in the West.

To be sure, unrepresentative factions also often have disproportionate power in domestic polities as well. But the problems are worse at the international level. First, the cost of organizing an international faction is higher, and this higher expense screens out many groups who can counterbalance narrow interests. Even more fundamentally, domestic mechanisms, like the separation of powers and bicameralism, make it harder for unrepresentative factions to control policy. Finally, because of elections, democratic states take into account the preferences of citizens even when not tied to any faction. For all these reasons, NGOs' influence on the content of international law often undermines rather than enhances the likelihood that it will represent popular consensus.

Enforcement of World Order

THE ENFORCEMENT of international agreements also should respect the sovereignty of nation-states both to preserve government accountability and to limit the power of international elites. First, the agreements must be enforced in accordance with their terms. It might be thought this would go without saying, but many scholars now espouse using the mechanisms designed to enforce a specific agreement, like the WTO, as a vehicle for enforcing more general international law principles, including customary international law. But new rules of customary international law are not likely to be as beneficent as treaty provisions and thus certainly have a weaker claim to enforcement. Moreover, even if nations have tacitly consented to some principle of customary international law, they have not consented to its enforcement by a mechanism established for enforcing a completely different set of obligations. Thus, to maintain accountability, an international enforcement regime should enforce obligations only under its own regime.

Second, decisions of international judicial bodies interpreting international law should not generally be given "direct effect." Direct effect is a term of art in international law that means that the decision of the international tribunal is binding as a matter of a nation's domestic law and is thus implemented directly without any intervening action of a domestic legal authority. The problem with direct effect is that it weakens the accountability of government for its decisions and thus over time will make those decisions less likely to be good ones. Judges on domestic tribunals like the United States Supreme Court are generally appointed or elected. Thus, representatives of the people or the people themselves are at least indirectly accountable for their decisions. In contrast, the representatives and people of a nation affected by an international law decision will not be accountable for the majority, if any, of the judges on international tribunals.

Moreover, citizens in nation-states cannot easily control international bureaucracies and thus international tribunals may exceed their authority. One way of keeping such a tribunals on a short leash is to prevent their decisions from taking automatic effect and requiring that they be implemented by affected nation-states. The tribunals will then be more cautious in their interpretation, holding nations to account only when they are in manifest violation of their international agreements.

Indirect enforcement can nevertheless be effective. For instance, if a nation does not comply with a WTO tribunal ruling, the WTO now authorizes the offended nations to withdraw trade concessions from the offending nation. As Mark Movsesian of Hofstra University has shown, the withdrawal of concessions in turn can mobilize the exporters who are harmed by the withdrawal to lobby their government to comply. For example, when the WTO tribunal held that President Bush's imposition of additional tariffs on steel was illegal, Europeans were authorized to withdraw concessions that would have harmed exporters in states key to the President's re-election chances. President Bush complied with the decision and rescinded the tariffs.

This indirect enforcement makes use of the decentralized economic order of a nation rather than centralized power to promote compliance with international law. It has the additional virtue of providing a check on the potential overreaching of those charged with interpreting international law. Thus, like the substantive structures of international trade and the procedural processes of treaty ratification, this kind of international enforcement helps assure accountability under international law.

New technologies have so radically lowered the costs of information and transportation that globalization of some form is inevitable. But the issues of political structure that globalization raises are not novel, because new technology has not changed human nature. Thus, there is no need for a radically new philosophy of international governance--just the adaptation to the international order of principles that previously succeeded domestically.

Globalization can create both economic prosperity and better governance by sovereign states. But we can succeed in that goal only by creating international structures and organizations with the accountability, checks and balances, and decentralized rule-making that have marked the progress of liberty and prosperity in the domestic sphere. Otherwise globalization may usher in an era where global governance is a mask for uncontrolled power that will inevitably contract the scope of human freedom.

John O. McGinnis is professor of constitutional and international law at Northwestern University. This article is based upon a paper given at a conference in Rome this June sponsored by The National Interest, the Federalist Society, the Ave Maria Law School, the Culture of Life Foundation, and the Catholic Family and Human Rights Institute.

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