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.

A similar story is likely to unfold in the human rights context. The United States stands increasingly isolated, at least among Western nations, in its continued use of the death penalty. It is also one of very few countries that still allows its application against juvenile offenders and the mentally retarded. On the one hand, no one expects Washington to sign on to international accords limiting capital punishment. On the other, international actors are now moving against the U.S. states that continue the practice. Executions in the United States consistently make headlines in Europe, where state-level responsibility for the death penalty is widely understood. As a result, European and other foreign leaders are bypassing Washington to make direct protests to states with frequent or controversial executions, such as Texas, Virginia, and Georgia. Where economic pressure and shaming campaigns might not work against the United States, they can prove effective on the state level. Foreign actors, including corporations, may well start to take human rights practices into account in making investment and purchasing decisions. For example, the chairman of the European Parliament's delegation for U.S. relations warned George W. Bush in 1998 that European companies -- which hold $38 billion in investments in Texas -- were under pressure from shareholders and public opinion to consider cutting back investments in states that apply the death penalty. It will take only so many lost auto plants, business conventions, and tourist dollars to make the death penalty look dramatically less attractive to state politicians. In the medium term, states will almost certainly eliminate the more internationally offensive uses of the death penalty, and over the long run they will likely end it altogether. Again, the United States will end up complying with an international norm even if it does not take formal steps to accept it. The New Sovereigntists may win high-profile battles on Capitol Hill, but they will lose the war on the more important fronts.

For now, however, the New Sovereigntist grip over Washington imposes significant costs by retarding the advance of international law. The United States may be increasingly vulnerable to international pressure, but it is still the biggest kid on the block. Persistent American rejection will hurt the progress of even well-established international regimes by giving cover to other nonparticipants, and incipient norms will lose the boost that would otherwise come with American acceptance. And U.S. noncompliance with international accords saps its authority to press other nations to respect the rule of international law.

Above all, the United States compromises its own interests by formally refusing to adopt widely accepted international regimes. Treaty committees and other international institutions usually extend participation rights only to member states. America thereby forfeits any right to help shape those regimes that it rejects. It has no voice in shaping international norms at a critical stage of their development, even as its ability to resist their imposition diminishes. It plays the part of the complaining, unregistered voter on the international stage, refusing to participate in processes that nevertheless bind him. Sure to lose in the long run, New Sovereigntism also hurts America in the here and now.