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.

The streets of Washington, D.C., and Seattle may have been controlled last spring and fall by a new breed of antiglobalization progressives, but the old-fashioned, conservative anti-internationalists continue to hold sway among American policymakers. Although the United States has accepted the North American Free Trade Agreement and participation in the World Trade Organization, it has spurned important multilateral regimes relating to arms control, the environment, war crimes, human rights, and other emerging global issues.

This brand of anti-internationalism runs deep in the American political tradition, as any casual student of history knows, and its persistence is to be expected. More surprising is the respectability that the movement is winning among academics and policy analysts. During the Cold War, it was too closely identified with crude conspiracy theories and the isolationist legacy of the Versailles Treaty to attract serious support among policy elites. That has now changed: anti-internationalism claims a growing intellectual following. This group of academics -- many of whom are highly credentialed and attached to prestigious institutions or conservative Washington think tanks -- has developed a coherent blueprint for defending American institutions against the alleged encroachment of international ones. This school does not oppose international engagement per se and thus cannot be classified simply as isolationist. Rather, it holds that the United States can pick and choose the international conventions and laws that serve its purpose and reject those that do not. Call it international law ? la carte.

At the center of their thinking stands the edifice of sovereignty. Sovereignty, in this conception, calls for America to resist the incorporation of international norms and drapes the power to do so in the mantle of constitutional legitimacy. "Because the United States is fully sovereign," claims Jeremy Rabkin, a professor of political science at Cornell University, "it can determine for itself what its Constitution will require. And the Constitution necessarily requires that sovereignty be safeguarded so that the Constitution itself can be secure."

This "New Sovereigntist" vision explains the continuing U.S. refusal to participate in a broad array of international regimes, some of them now nearly universally accepted by other nations. It drove the Senate's recent rejection of the Comprehensive Test Ban Treaty, the Clinton administration's refusal to sign on to the Land Mines Convention and the Rome Treaty establishing an international criminal court, and the U.S. failure to submit the Kyoto Protocol on global warming for Senate approval. It also explains Washington's persistent refusal to conform U.S. practices to international human rights regimes. The United States stands alone with Somalia in not acceding to the Convention on the Rights of the Child. Washington heavily qualified its acceptance of the International Covenant on Civil and Political Rights (ICCPR) and continues to defy that treaty's prohibition of the execution of juvenile offenders (along with Iran, Nigeria, Pakistan, and Saudi Arabia). Only the free-trade agreements -- provided they are limited to trade and do not include the environment, labor issues, or human rights -- pass muster under New Sovereigntism because they are thought to serve American interests.

The particular issues involved could be debated according to their policy merits alone. But New Sovereigntism avoids the policy debate and simply presents a respectable catchall defense of nonparticipation in international regimes. As a result, it limits America's future global involvement -- with attendant costs to the nation and the world. As international relations become increasingly tethered to such regimes and their institutional incarnations, nothing less than America's position of international leadership is at stake.

DOING IT MY WAY

New Sovereigntism delivers three flawed lines of attack. The first impugns the content of the emerging international legal order as vague and illegitimately intrusive on domestic affairs. The second condemns the international lawmaking process as unaccountable and its results as unenforceable. Finally, New Sovereigntism assumes that the United States can opt out of international regimes as a matter of power, legal right, and constitutional duty.

New Sovereigntists relentlessly characterize most international law standards as too amorphous to justify American agreement. A favorite whipping post is the broader provisions of human rights treaties. Jack Goldsmith, a law professor at the University of Chicago, asks "would the ICCPR's 'protection against discrimination on any ground,' including 'status,' extend to discrimination on the basis of homosexuality? Age? Weight? Beauty? Intelligence?" This reasoning warns, in effect, of the bait-and-switch possibilities in some international treaties: Washington should not sign on to innocuous generalities today that may become dangerously specific tomorrow.

New Sovereigntists further assert that some international regimes, notably those involving human rights, mark a sharp break from the historical practice of international law. The "new" international law, they argue, trespasses on nations' core domestic authorities, even on powers constitutionally reserved for U.S. state governments. And they lament how international law may now constrain the relationship between a government and its citizens. "For virtually every area of public policy," intones John Bolton of the American Enterprise Institute (AEI), "there is a globalist proposal, consistent with the overall objective of reducing individual nation-state autonomy, particularly that of the United States."

Neither argument stands up. Under a New Sovereigntist approach, one could have objected to unelaborated guarantees of the U.S. Constitution to due process and equal protection, which remained amorphous until subsequent Supreme Court opinions refined them. That vagueness did not stop the states from ratifying the Constitution -- and it should not stop the United States from joining human rights regimes. And although some provisions of international conventions are quite airy, many are already specific -- for example, the ICCPR prohibition on the execution of juvenile offenders. Meanwhile, broader undertakings are being refined in a growing body of decisions and reports from international bodies, including most notably the "treaty committees," which are charged with interpreting particular instruments.