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Stewart Patrick on sovereignty and the United States

Over at the Council on Foreign Relations, Stewart Patrick reflects on the United States and questions of sovereignty. He writes:

As the nation celebrates its 235th birthday, The Internationalist takes a break from beer and barbecuing to reflect on American sovereignty. This is a controversial topic, to say the least. John Bolton, former UN ambassador and potential GOP presidential candidate, warns of “The Coming War on Sovereignty,” (Commentary), with President Obama in the vanguard. The American Enterprise Institute, Bolton’s institutional home, host an impressive web site, “Global Governance Watch.” It’s dedicated to exposing the machinations of rogue international bodies, unaccountable NGOS, and progressive international lawyers—and documenting their alleged assaults on the U.S.  Constitution, democracy, and freedom of action.

Exploring the further reaches of cyberspace—where such anxieties become extreme, even paranoid—I’m often reminded of Brigadier General Jack Ripper. He’s the unhinged Air Force officer in Stanley Kubrick’s Dr. Strangelove, who detects an “international Communist conspiracy to sap and impurify all of our precious bodily fluids.”

As director of CFR’s own International Institutions and Global Governance program, I get my share of colorful emails, a few suggesting my work is “treasonous.” Some of these missives are informed by Scripture, at least superficially. My personal favorite: “Beelzebub tried Global Governance at the Tower of Babel and it didn’t work for him. It won’t work for you either.”

Given the overheated rhetoric, one might be tempted to dismiss all sovereignty concerns as the ravings of flat-earth cranks, John Birchers, or devotees of the Rapture. But the reality is more complex. The sovereignty of all nations is being challenged by a combination of forces, including deepening global integration, rising security interdependence, and developing international law. Multilateral cooperation does pose dilemmas for traditional concepts of U.S. sovereignty. It’s important to think clearly about the implications of these trends, about what U.S. prerogatives must be protected, and about what circumstances might warrant adjustments in U.S. psychology and policy.

The place to begin is by getting clarity on what’s at stake. The sovereignty debate actually encompasses several categories of concern:

For some, the basic problem is a loss of U.S. freedom of action. As the nation becomes enmeshed in multilateral institutions or treaties, it may well find its room for maneuver constrained, whether the issue is the use of force (governed by the UN Security Council) or trade policy (where the US has accepted a binding WTO dispute resolution mechanism). The U.S. rejection of the Comprehensive Test Ban Treaty (CTBT) as well as the Ottawa Convention banning anti-personnel land mines were efforts to retain flexibility in U.S. national security policy. The growing U.S. predilection for “minilateral” groupings, from the G20 to the Proliferation Security Initiative (Foreign Affairs), reflects a desire to maximize U.S. freedom of action, something harder to achieve in universal, treaty-based bodies.

For other critics, the principal worry is that the United States sacrifices domestic policy autonomy, as new international rules compel it to adjust its regulatory frameworks (by accepting new global financial standards, for instance) or to abide by intrusive global inspection regimes (as under the Chemical Weapons Convention). And yet even some conservatives recognize that deepening security interdependence, including the proliferation of Weapons of Mass Destruction (WMD), require adjustments. A case in point is Michael Chertoff, former Secretary of Homeland Security, who has sought to reframe national sovereignty for an age of catastrophic threats.

In principle, protecting U.S. national sovereignty should be easy. After all, the President and Congress can simply weigh the costs and benefits of proposed organizations, treaties, or arrangements, rejecting those that impose too great a cost. The US did just that in rejecting the Kyoto Protocol and the Rome Statute of the ICC. So obviously, the United States retains the power to stand apart, rejecting the chains that Lilliputians would use to bind Gulliver. So what’s the big deal?

The problem, according to Bolton, Jeremy Rabkin, and fellow “new sovereigntists,” (Foreign Affairs) is that global legal trends and international organizations are challenging the supremacy of the U.S. Constitution and eroding the foundations of American “exceptionalism”. This argument rests on several claims.

To begin with, as John Fonte of the Hudson Institute contends, progressive activists and their NGOs allies are seeking to create new legal “norms” at the global level, in fields ranging from human rights to the environment. Unable to prevail domestically, left-wing political actors are essentially making an end-run around U.S. democracy, using UN conferences and “global civil society” to establish new international norms on issues ranging from small arms to the death penalty.

Second, conservatives are agitated by what they consider misguided trends in “international law” (a phrase they surround with skeptical quotation marks), which they believe threaten the supremacy of the U.S. Constitution. One bone of contention is whether foreign law should be cited by the U.S. Supreme Court (New York Times). The moderate Justice Anthony Kennedy has endorsed such an approach, in writing the majority opinion in the 2005 Roper vs. Simmons case (which struck down the death penalty for juveniles). Justice Antonin Scalia, taking the Federalist Society line, has offered a scathing riposte: “The basic premise of the court’s argument –that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.”

Third, conservatives (as well as some liberals) are convinced that international organizations, not least the United Nations, are inherently undemocratic. Within such bastions of cronyism and corruption, unaccountable elites pursue their own agendas, often at odds with the interests and desires of the American people. Having fought British tyranny two centuries ago, the United States confronts a more insidious, faceless bureaucratic foe. For sovereignty-minded conservatives, the European Union is something of a bête noire, an unnatural supranational agglomeration in which once-proud nation-states have sacrificed their independence in a misguided desire to “pool sovereignty.” Their nightmare scenario is an eventual system of “global governance” based on an expanded EU model.

Finally, and most fundamentally, conservative critics fear that trends in global governance will increasingly erode the foundations of American exceptionalism—the conviction, embedded in U.S. political culture since the earliest days of the Republic, that the United States is a beacon among nations, a “city on a hill” (in John Winthrop’s phrase), a righteous country founded on inviolable political principles of eternal truth and guided by a special providence to act abroad in furtherance of those values. What such critics overlook, of course, is that the doctrine of American exceptionalism has been invoked not only by conservative icons like Ronald Reagan but indeed by nearly every U.S. president, including liberal internationalists like Woodrow Wilson, FDR, and Truman, who used it to justify  U.S. leadership in building the core multilateral institutions of world order (an argument I make in The Best Laid Plans) . (Foreign Affairs)

What drives conservatives batty about Barack Obama, among other things, is his apparent diffidence in asserting the uniqueness and superiority of the American experiment. As the President declared in his first trip to Europe, “Yes, I believe in American exceptionalism , just as the Brits believe in British exceptionalism and the Greeks believed in Greek exceptionalism.” For Bolton, such sentiments are enough to make Obama “the first post-American president”.

No doubt, the debate over American sovereignty will be one of the most contentious in U.S. foreign policy in the coming decades. Like the Fourth of July, it should generate a lot of fireworks. At the end of the day, I suspect that my boss at the Council, Richard Haass, has it right: seizing the “opportunity” of global integration will require accepting “a little less sovereignty.” But how much less—and under what terms—are matters we have only begun to debate as a nation.

Food for thought!

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.