In this book, George Downs and I explored the challenges that the turn to international institutions poses to the ideals of democracy and the equitable allocation of benefits and burdens among states and communities. We sought to explain why these institutions, while part of the solution to global coordination and cooperation problems, also created a host of new problems. We identified courts–both national and international–as potentially offering institutional responses to resolve these new problems. Much at the insistence of these courts, what was initially a legal environment that allowed executives of a handful of powerful states almost unfettered freedom of action to operate through international organizations has incrementally shifted to a more disciplined environment of accountability. Our analysis has shown that, as traditionally has been the case in domestic settings, much of the law is being built incrementally from the bottom up, in particular, by judges in national courts. Through such actors and due to a growing “culture of accountability,” norms, standards, and expectations that have crystallized in democratic domestic legal systems are migrating to the global sphere and beginning to frame perceptions about the legitimacy of global bodies. While this process of migration creates pressure for convergence, there remains considerable variation among norms and institutions. But we also explored initial countervailing responses to such demands. We were not naïve about the countervailing efforts to shield power from accountability and inclusion. And the story will continue to unfold.
George and I collaborated intensively over the course of a dozen years. We came from different disciplines but were curious about each other’s work, and together curious about the changing political and legal global landscape. We set out to try to make sense of the ways in which international organizations function and to parse out the implications for individual rights and equality. When the host of a colloquium introduced us some years ago, he described us as Lewis and Clark exploring the evolving sphere of global governance.
In retrospect, I think that what inspired George to embark on this expedition was more than curiosity. He sought to explore how human rights and equality can be secured even in an anarchic world of self-interested rational actors whose primary motivation is power. And he was especially fascinated with the story of the emergence of human rights, in particular, from the early days of the movement for the abolition of the slave trade.
Together we sought clues that would identify institutions that could uphold the achievements of the human rights revolution of the late twentieth century in the face of the shift of power to international organizations. Our first articles focused on a number of concerns both specific and general: the growing influence of pharmaceutical companies whose rights, protected by international treaties, limited access to lifesaving drugs in the developing world and, more broadly, on the mechanisms that enabled powerful state actors to shape international law and institutions with little resistance.
But soon enough we found our heroes–judges of national and regional courts whose decisions restrained at least somewhat the excesses of power of foreign and global actors. The pattern that we identified–of judges cooperating with one another to curb, even if unwittingly, state executives and international bureaucrats–was initially criticized as holding out a false promise: The cases we relied upon were regarded as “rare” and “outliers.” But we were confident in our findings because we understood the rationale behind them, namely, the motivation of judicial institutions to preserve their own power in the face of global challenges. Our expedition ended on a positive note, which pleased even so careful and critical a scholar as George.
