The New Sovereigntists: American Exceptionalism and Its False Prophets

Peter J. Spiro

From Foreign Affairs, November/December 2000

Summary:  America's participation in international institutions faces a new and ominous threat: a vocal group of intellectuals seeking to guard U.S. sovereignty at all costs.

Peter J. Spiro is Professor of Law at Hofstra University.

As for the matter of intrusiveness, it is true that traditional international law bracketed a state's treatment of its own subjects. But it has always intruded on a state's treatment of foreigners -- and that translated into international limitations on laws regarding property, inheritance, and crime. Human rights norms have expanded these limitations to the treatment of citizens as well, but there is nothing new about international legal constraints on the exercise of domestic -- even local -- authority.

On the process side, New Sovereigntists assert the deficiency of international lawmaking by raising the specter of international bureaucrats who lack accountability within the American constitutional scheme. John Yoo, a law professor at the University of California at Berkeley, warns that "novel forms of international cooperation increasingly call for the transfer of rulemaking authority to international organizations that lack American openness and accountability." New Sovereigntists highlight the lack of direct elections at the international level to strike an unfavorable contrast with the selection of U.S. lawmakers. In the tradition of Cold War critiques of international law, they also question the enforceability and vitality of international law by underscoring the acceptance of human rights regimes by such brazen violators as Iraq, Serbia, and North Korea. This argument echoes historical campaigns against U.S. participation in international regimes: We live up to our word when no one else does, so if we agree to international obligations we are effectively tying one hand behind our back against an enemy who keeps both hands free. At bottom, the New Sovereigntists question whether international law is about anything more than international power.

Here again the arguments fall short. Accountability deficits in increasingly powerful international institutions do exist (the central point of the Seattle and Washington demonstrations), but international organizations are not free-floating entities with unconfined powers. In fact, they are kept on the usually tight leash of their nation-state members. But where mainstream environmentalists, human rights advocates, and labor interests could accept global governance (if it heard their voices), New Sovereigntists reject even the possibility that international institutions can be made accountable. Indeed, in a strange twist betraying their neoconservative tendencies, the New Sovereigntists paint the institutional influence of noNGOvernmental organizations (NGOs) as part of the accountability problem rather than part of its solution.

As for questions of enforceability, the dictum that most nations obey international law most of the time holds true today with greater force than at any other time during the last century. International law is enjoying a tremendous renaissance; it is now an important and necessary force in the context of globalization, governing the increasingly transnational elements of virtually every area of legal regulation, including such domestic issues as family, criminal, commercial, and bankruptcy law. Respect for human rights has significantly advanced over the last 20 years. There will, of course, always be violators, as there are in the application of any legal regime. But as long as laws are generally respected, one does not abandon them in the face of rogue actors. After all, homicide laws should not be repealed just because some people commit murder (and some even get away with it). Compared with the Cold War world, most countries actually live up to the obligations they enter into. Bad behavior by Iraq, Serbia, and North Korea affords no excuse for others to reject international regimes.

DON'T TREAD ON ME

The linchpin of New Sovereigntism is its premise that America has the power to opt out of international norms, even those universally accepted by other nations. "As the strongest and richest country in the world, the United States can afford to safeguard its sovereignty," argues Rabkin. "An America that stands aloof from various international undertakings will not find that it is thereby shut out from the rest of the world. On the contrary, we have every reason to expect that other nations, eager for access to American markets and eager for other cooperative arrangements with the United States, will often adapt themselves to American preferences."

This approach echoes the realist conception of international relations as a matter of might, not right -- a sticks-and-stones view of international law. At the same time, New Sovereigntists contend that, within the American domestic framework, the federal government lacks the constitutional power to participate in some international regimes. Curtis Bradley, a professor at the University of Virginia Law School, has argued that the unconditional adoption of international human rights conventions would violate federalism constraints. Yoo asserts that the Chemical Weapons Convention violates the Constitution's requirement that executive officers be appointed by the executive branch, not by international bodies; the AEI's Robert Bork has argued that the convention violates the Fourth Amendment's prohibition of unreasonable searches. In a 1997 Harvard Law Review article (the opening salvo in the New Sovereigntist crusade), Bradley and Goldsmith argued that federal courts have no place enforcing norms of international law, including established human rights. The bottom line: Not only does the United States have the power to reject international regimes, but in many instances the federal government has a constitutional duty to reject them. America does not have to play by the rules that everybody else plays by because nobody can make it play by them -- and besides, it has its own set of more important ones.

These arguments are grounded in highly formalistic readings of the Constitution and selective interpretations of its history. Some revive arguments already made and defeated at other times of critical change in America's relationship to the rest of the world. Most important, the New Sovereigntists forget that the Constitution -- hardly blind to the national interest -- has always adapted itself successfully to new exigencies of the international system. Such values as federalism, the separation of powers, and individual rights are not so brittle that they will shatter at the intersection with globalization.

Indeed, the Constitution will have to adapt to global requirements sooner or later, for the New Sovereigntist premise of American impermeability is flawed. During the twentieth century, the United States was able to defy various international norms only because other countries were unwilling to bear the costs of sanctioning America for its sins; at the same time, international organizations had little power to wield on their own. (For example, the United States took little heat for its 1984 mining of Nicaraguan harbors despite a strongly critical World Court ruling against it.) True, Washington will continue to maintain the fiction of an opt-out capability, and the international community cannot yet force formal participation in international regimes. But economic globalization will inevitably bring the United States in line.

Meanwhile, the international community can advance the rule of international law by working against key U.S. actors -- most notably corporations but also states -- in trade and investment decisions. That way, it can directly discipline U.S. entities, circumventing and constraining anti-internationalist federal policymakers in the process. Take the test-ban case: Washington is almost certain to respect the prohibition on nuclear weapons testing, notwithstanding the treaty's rejection last year by the Senate. If the United States did decide to undertake such tests in the future, however, the decision would be met not only with international condemnation but with concrete international action in the form of consumer activism. When France undertook nuclear tests in 1995, NGOs launched a campaign against French wine that helped force President Jacques Chirac to back down from future testing. Something similar would happen if America announced an intention to test. Boycotts might threaten certain powerful U.S. industries (e.g., fast-food chains) with lost sales, which would in turn press the federal government to respect the test ban.