Global Policy Forum

By Peter J. Spiro *

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 a 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.

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.

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 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.

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

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