Faulder had been convicted for the brutal killing of a seventy-five year-old woman, leaving her to be found by her relatives "bludgeoned, bound with tape and Christmas wrapping paper, a knife protruding from her chest." Faulder never denied the charges. But years after his conviction he remembered that he was a Canadian citizen, something he had not mentioned to Texas officials at the time of his arrest, when he was found with a Colorado driver's license. So after many other failed appeals on other grounds, Faulder's lawyers launched the argument that his conviction violated the Vienna Convention on Consular Relations, which obligates signatory states, when they arrest a foreign citizen for a serious crime, to notify the nearest consulate of the defendant's home country. Texas officials, not knowing of Faulder's Canadian citizenship, did not notify Canadian officials until 1991 - when he was deep into his various procedural appeals on other grounds.

What made the Supreme Court's intervention so notable was that a very similar case had been presented earlier in the same year. In that case, lawyers for a Paraguayan national, Angel Breard, who were appealing his death sentence in Virginia, persuaded the government of Paraguay to file claims before the International Court of Justice in The Hague, based on Virginia's failure to notify Paraguayan officials at the time of the trial. The ICJ asked Virginia to postpone the execution while the matter was considered by international authorities, and Secretary of State Madeleine Albright pleaded for Virginia to do so out of respect for international law. But Virginia refused and a last-minute attempt to appeal to the U.S. Supreme Court was denied by the justices.

The Faulder case followed the same script - earnest diplomatic entreaties from the Canadian foreign minister, followed by earnest entreaties from Albright, followed by the rejection of these entreaties by state officials in Texas. Only this time, the U.S. Supreme Court ordered the execution postponed to give itself time to consider the issues.

The Court may yet decide that the execution can go forward. The preamble to the relevant Vienna Convention stipulates that its purpose is to clarify "consular relations privileges and immunities" and "is not to benefit individuals but to ensure the efficient performance of functions by consular posts." In a survey conducted through U.S. embassies around the world, the State Department was unable to find a single case in which another country had overturned a criminal conviction in its own courts solely because a foreign defendant had not been advised of his rights to consult consular officials from his own country. And there seems to be no reason at all to believe that Faulder's trial would have turned out any differently if he had sought and received the opportunity to consult with a Canadian consulate before his trial commenced.

But none of that may matter. The United States remains one of the few countries in the Western world that still maintain capital punishment. And by no coincidence the state with the largest number of capital sentences is Texas, followed in second place by Virginia. And once again the specific case turns out to be the flashpoint of a larger international campaign. At the beginning of 1998, a UN special reporter issued a report condemning the United States for racist and abusive applications of the death penalty - ignoring the repeated judgments of U.S. courts, up to and including the U.S. Supreme Court, to the contrary. The European Parliament was - for once - not dragged into this dispute. But Amnesty International, taking time out from its advocacy for the prosecution of Pinochet in Europe, took notice.

An Amnesty report on human rights abuses in the United States, issued in 1998, devotes an entire chapter to abuses of the death penalty, which it asserts to be contrary to international law. Yes, it acknowledges, the U.S. Senate specifically inserted a reservation into its ratification of the Covenant on Civil and Political Rights, stipulating that the Covenant's death penalty restrictions were not accepted by the United States. But this reservation, according to Amnesty, conflicts with a subsequent ruling of the UN's Human Rights Committee about evolving standards of customary international law that must now make the U.S. reservation on this point unlawful. And, of course, Amnesty lawyers in Canada helped to organize the Faulder appeal, as other human rights groups had mobilized to resist the earlier execution of Angel Breard.

What Next?

So we have free-floating, evolving standards of "law" defined by international bureaucrats. We have organized advocacy groups in transnational coalitions. And we may soon have U.S. courts applying this law at the behest of these groups. In other words, all the elements of EU-style governance are already in place. Is this kind of government really consistent with the U.S. Constitution?

In at least three ways, the most prominent commentators have already promulgated legal theories that prepare the way. First, the latest Restatement of Foreign Relations Law (1987), a privately sponsored treatise that holds special prestige in an area of law with very little case law, asserts that there is now a federal common law of foreign relations, by which federal courts are empowered to impose their rulings on states and localities, even where there is no direct treaty or statute on which to rely but simply a federal court's notion of evolving international law. In domestic law, the notion of a free-floating judge-made common law of this kind was firmly repudiated by the Supreme Court in the 1930s. The Restatement argues, however, that international obligations of the federal government require a different approach for cases with an international dimension. Thus it has an entire chapter on "customary international law of human rights", which is supposed to be drawn from the spirit of existing treaties but applicable to the United States even where the Senate has not ratified the relevant treaty or has attached particular exceptions by reservation. Already a number of lower federal courts have relied on this "law" to allow suits against U.S. corporations (pursued in U.S. courts by U.S.-based advocacy groups) for supposed human rights or environmental depredations by their corporate subsidiaries in Asia and South America.

Second, the historic constitutional doctrine was that even formal treaties - let alone customary law, adopted without treaties - could not reach entirely domestic affairs. The treaty power and other foreign affairs powers of the federal government could only reach genuinely inter-national matters. The latest Restatement insists that such restrictions can no longer be maintained. And understandably so. If human rights conventions and the World Heritage Convention are bona fide treaties, then it is reasonable to say that what the U.S. Park Service does in Yellowstone National Park and what Philadelphia police do to Americans in Philadelphia are properly subject to international inspection - as indeed they have been over the past decade, though the binding effect of international interventions in these cases is much in dispute.

Finally, it was once clear doctrine that the treaty power could not be delegated to foreign bodies - that Senate ratification could bind the United States to the terms of an agreement, but not to subsequent extensions or extrapolations of the agreement by an international authority. While the Restatement skirts the issue, Professor Louis Henkin, who was the chief reporter for the Restatement, published in 1996 a new edition of his own treatise, Foreign Affairs and the Constitution (Oxford University Press), which explicitly repudiates such a non-delegation doctrine. Thus what the UN Human Rights Committee or the World Heritage Committee of UNESCO pronounces to be the law may well be taken as binding law for the United States (which is the case even though the United States is no longer a member of UNESCO). At least in Henkin's view, the Constitution does not forbid the United States from submitting to an arrangement in which this would be so.

World Order in a Post-Liberal World

Does any of this really matter? Before dismissing the significance of recent episodes, one ought to step back and look at the larger picture. Along with human rights treaties, we have begun to spin out a network of far-reaching new environmental treaties, culminating in the stupifyingly ambitious project of the Kyoto Protocol, which envisions international authorities empowered to enforce dramatic reductions in energy use among the world's major economies. The U.S. Senate has balked at ratifying this treaty, but its champions - in the Clinton administration and in a host of environmental advocacy groups - insist that it is necessary to avert global warming. The necessity is disputed by many respectable scientists and policy analysts. But surely this undertaking is at least as "necessary" as international supervision of parks policy in Australia or criminal justice in Texas. The ideology of global governance already has considerable momentum.

Meanwhile, there is continuing pressure to extend the terms of international trade agreements, which up until now have largely focused on reciprocal lowering of barriers to imports, while scrupulously refraining from imposing any standards for how goods entering into international trade are actually produced in their home countries. But President Clinton has repeatedly urged that the World Trade Organization must begin to develop standards that would prevent countries with unfair labor practices or unacceptably lax environmental controls from unfairly flooding the markets of countries whose own producers must observe higher standards.

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