Or would the United States finally agree to cooperate if its own
citizens were called to account? Human rights advocates insist that
the United States has nothing to fear because the ICC Statute
acknowledges the right of home countries to conduct their own trials.
But it also provides that if the trial result is judged to be
inadequate or unsatisfactory, then the international prosecutor
retains the authority to demand a new trial before the ICC. Then the
United States would have to decide whether it would or would not go
along if one of its own citizens were sought for a trial by the ICC.

Could the United States hand over an American citizen to an
international tribunal, even for trial on the basis of acts committed
while in the service of the U.S. government and even within the
boundaries of the United States? A host of legal authorities have
insisted that there is no constitutional objection to the U.S.
government doing so. No one disputes that international tribunals
violate guarantees in the U.S. Bill of Rights--such as the guarantee
of trial by jury, which follows an English common law tradition that
means nothing to international authorities. The argument is simply
that if the United States can extradite its citizens to other
countries for crimes committed in those countries, it can also
extradite to international authorities for international crimes. But
if it could do so for "war crimes", why not for other crimes? In that
case, why not hand over drug dealers to an international drug
court?--another venture that has received serious discussion. But
then what do the guarantees in the Bill of Rights mean if they can be
side-stepped any time our government finds it more convenient to have
Americans tried by foreign authorities? We would then have a
Constitution that can be amended without the bother of persuading
three-quarters of the states to adopt a formal amendment.

Perhaps it will not come to that. But it is remarkable that we no
longer feel the need for a constitutional boundary. Do we rely on
public sentiment to stiffen the resolve of our government? If so, we
may be misguided, for the new trend in international affairs is for
transnational coalitions of advocacy groups to play on public
sentiment in order to bolster the authority of international
institutions.

Global Civil Society vs. Australia

That is just what happened in Australia at the same time the Pinochet
case was proceeding through the British courts.

On November 30, 1998 the World Heritage Committee of UNESCO voted to
condemn the government of Australia for allowing a uranium mine to
operate in close proximity to an Australian national park that had
been designated as a World Heritage site. The committee agreed that
the government of Australia should be given six months to defend the
mine against findings of an international inspection team that the
mine would endanger the scenic values of the Kakadu Park and its
cultural significance for aboriginal people nearby. If Australia
could not by then satisfy the committee, the park would be placed on
the list of sites "in danger."

What made this episode remarkable was, in the first place, the
willingness of this UN forum to enter into a confrontational dispute
with a participating government. The World Heritage Convention
essentially establishes a registry of sites in participating
countries that are judged to be of special significance for the whole
world. Essentially, it is the UN equivalent of a landmark registry,
which has come to include such sites as India's Taj Mahal, America's
Yellowstone National Park and France's Louvre Museum. A committee of
representatives from twenty-one states, elected from all the states
party to the convention, oversees the list. The committee not only
decides which sites may qualify but purports to monitor their
continuing safekeeping. Its only sanction for such purposes is to
list a deteriorating site on a separate list of sites "in danger" and
ultimately, if the dangers are not addressed, to de-list the site. No
site has ever been de-listed.

Indeed, no site has ever been put on the "in danger" list except at
the request of the home state. Some states have requested such
listing as a way of dramatizing problems and seeking international
financial assistance for corrective actions. But states that fear
embarrassment have often resisted listing on the "in danger" list.
Ecuador, for example, asked the World Heritage Committee to organize
international assistance for what it admitted were serious problems
in its management of its World Heritage site in the Galapagos
Islands. But it specifically requested that the site not be listed as
"in danger"--and it was not. The obvious reason to avoid such listing
is that the whole scheme--such as it is--depends on the cooperation
of the affected governments; a government that does not want to
cooperate can simply walk away.

But the committee in this case took a very hard line because of
another difference: within Australia itself, political opponents of
the current conservative government were prepared to support--indeed,
even invite--international intervention. The environmental spokesman
for the opposition Labor Party actually wrote to the World Heritage
Committee to urge it to take a tough stand. The networking skills of
domestic opponents were altogether remarkable. Environment-alists,
who seem to have opposed the mine in large part due to general
opposition to nuclear power, managed to draw attention to the handful
of aboriginal people who did oppose the mine, obscuring the majority
view of local aborigines who stood to gain substantial payments from
the mining company. Australian environmentalists have organized a
separate Green Party, but with only two seats in the Australian
parliament it is in itself a negligible threat to the government. But
an Australian Green leader managed to make his case to important
Green ministers in the governments of Western Europe and, in this
way, secured a vote of the European Parliament urging Australia to
shut down the mine. The same sort of back-channel mobilization has
been credited with persuading the French government to take a tough
stand against the mine through the French representative on the
current World Heritage Committee.

The ultimate result is still uncertain but the pattern is clear. An
international institution with no real authority has gained special
leverage by acting as a bridge between opposition factions in one
country and allies in other countries--over a matter that has no real
connection to those other countries.

And this is not an isolated case. In its 1995 report, the UN
Commission on Global Governance hailed the emergence of what it
called "global civil society", which it saw as "best expressed in the
global non-governmental movement." It did not mean business firms,
churches or sports clubs--all of which are also "non-governmental."
It meant advocacy groups. It noted that NGOs have proliferated at a
remarkable rate over the past decade and praised their "vital
assistance to the UN in the conduct of its work." Such organizations

often provide independent monitoring, early-warning and information
gathering services that can be especially useful in preventive
diplomacy. They can serve as unofficial or alternative channels of
communication and can help establish relationships that create the
trust necessary to bridge political gaps.

Also, though the report does not quite note the fact, NGOs never have
to face voters or bear any sort of accountability. It is not clear,
in any case, who would be entitled to demand accountability from
them, since they so often claim to speak for "humanity" or "the
earth", constituencies that are not well equipped to demand any sort
of direct accounting.

"Global civil society" is, in the older understanding, virtually an
oxymoron. What makes a society "civil", in the classical liberal
view, is a common government, able to enact and enforce common rules.
The United Nations is not a government. What UN agencies seek is an
authority that is somehow above government, without the
accountability that actual governments have toward particular
electorates or defined citizen bodies. Actual governments can be
awkward for UN agencies. It is usually much easier to deal with
constituencies that do not themselves have to pay UN bills or submit
to UN directives. NGOs--a sort of phantom citizenry--are the perfect
partners for the phantom authority exercised by UN agencies. So the
UN and other international institutions have become great sponsors of
NGOs, which figure prominently at UN conferences on global concerns.
The World Bank, eager to deflect NGO criticism, has actually poured
over a third of a billion dollars into NGO coffers in recent years.
(And, not coincidentally, the European Commission in Brussels funds
European NGOs on an even more lavish scale.)

Past Australian governments have cheerfully cooperated with NGOs
working through international forums on other issues. Now the current
government is finding it hard to ignore the World Heritage Committee,
as local advocates demand adherence to the Committee's direction in
the name of "international law."

Thinking Globally, Acting Locally

On December 12, 1998 the U.S. Supreme Court issued a stay of execution for Joseph Stanley Faulder less than thirty minutes before he was scheduled to die by lethal injection in Texas. The state of Texas was hardly acting with undue haste: Faulder had been on death row for twenty-one years. It was, in other words, the classic sort of death penalty appeal in America's endless litigation over capital punishment.