FOUR

Do as I Say, Not as I Do

American Sovereignty and International Law

Antonin Scalia was beside himself. The U.S. Supreme Court had just ruled 5–4 in Roper v. Simmons (2005) that it was unconstitutional to impose the death penalty on individuals who had committed capital crimes as minors. But what most offended the associate justice was the majority’s invocation of international opinion to justify its decision. What possible relevance could the findings of foreign courts and jurists have for Supreme Court deliberations?, Scalia inquired. “I thought it was the Constitution of the United States that we were discussing.”1

The target of Scalia’s ire was Associate Justice Anthony Kennedy, the court’s frequent swing voter. Writing for the majority, Kennedy had argued that imposing capital punishment on juvenile offenders constituted “cruel and unusual punishment,” based on “evolving standards of decency”—a principle the court had endorsed in the 1965 case Trop v. Dulles. Noting “the overwhelming weight of international opinion against” putting minors to death, Kennedy observed: “The United States now stands alone in a world that has turned its face against the juvenile death penalty.”²

Scalia’s dissent, joined by Chief Justice William Rehnquist and Associate Justice Clarence Thomas, was withering. “What a mockery today’s opinion makes.… The court thus proclaims itself sole arbiter of our Nation’s moral standards—and in the course of discharging this awesome responsibility purports to take guidance from the views of foreign courts and legislatures.” In the minority’s view, “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.”3

This conservative determination to protect American legal sovereignty from international law is not limited to the judiciary. In early December 2012 the Senate debated U.S. accession to the UN Convention on the Rights of Persons with Disabilities (CRPD). Among those looking on was eighty-nine-year-old, wheelchair-bound Robert Dole. The former Senate majority leader and 1992 GOP standard-bearer, himself a disabled World War II veteran, had returned to support the treaty’s passage.

On the surface the CRPD was innocuous, already ratified by 126 other governments. It had been negotiated and signed under a Republican president, George W. Bush, and U.S. diplomats had drafted most of the text. The treaty was modeled closely on the Americans with Disabilities Act (ADA), which the president’s own father, George H. W. Bush, had championed and signed into law in 1990. It imposed no new legal burdens on the United States, while promising to universalize the basic rights that handicapped U.S. citizens already enjoyed at home. Beyond easing the lives of millions globally, it would facilitate travel for disabled Americans, including veterans like Dole. Nevertheless, the treaty encountered extraordinary hostility in the Senate, where it failed to secure the required two-thirds support for passage.⁴

Why? The CRPD’s detractors depicted it as a mortal threat to the freedom and sovereignty Americans enjoyed under the U.S. Constitution. “Experience shows,” critics alleged, that “once a UN treaty is ratified, a UN committee takes charge of interpretation … to impose the political agenda of the global hard left,” making common cause with Democratic administrations and activist U.S. judges to foist socialist policies on the American people.⁵

Senators Mike Lee (R-Utah), Rick Santorum (R-Pa.), and James Inhofe (R-Okla.) led the charge. “Our concerns with this convention … have everything to do with protecting U.S. sovereignty, protecting the interests of parents in the United States and the interests of families,” Lee declared. Santorum and Inhofe warned that the CRPD would allow UN officials to dictate U.S. social policy, prevent parents from home schooling their children, and force the United States to expand legal access to abortion. These were absurd allegations, but ones that resonated well beyond Congress. Not content with “surrender[ing] our nation’s sovereignty to unelected bureaucrats,” the Home School Legal Defense Association charged, “The CRPD would override existing state laws, seriously damaging states’ rights.”⁶

These concerns were groundless. The treaty explicitly protected the independent decisions of parents and required no changes in U.S. law. While the treaty would establish a UN committee to monitor country compliance with the CRPD, its reports would have no legal status in the United States. To underline this point, the Obama administration had included safeguards in the proposed instrument of ratification, declaring that the CRPD could not override inconsistent laws within the fifty U.S. states.

A handful of moderate Republicans sought to inject reason into the debate. Former attorney general Richard Thornburgh, point man for the ADA under George H. W. Bush, assured legislators that any recommendations emerging from treaty bodies would be purely advisory and create no new legal rights in federal or state courts. Dole himself denounced opponents’ “scare tactics.”7

In the end, hysteria carried the day. The final tally was 61–38 in favor, six votes short of passage, with Republican senators accounting for all the “no” votes. Even in triumph, Senator Orrin Hatch (R-Utah) warned his conservative colleagues to remain vigilant against any effort to revive the treaty. It was, he reminded them, a “threat to American sovereignty and self-government,” one that “would endorse an official ongoing role for the United Nations in evaluating virtually every aspect of American life.”⁸

These twin episodes—Roper v. Simmons and the CRPD—are part of a larger ongoing debate about the relationship between U.S. domestic law and international law. What makes this debate so volatile is that it impinges not simply on sovereignty-as-autonomy (that is, the potential loss of freedom of action though international cooperation) but also on sovereignty-as-authority (the potential subordination of the U.S. Constitution to outside authorities). The central question at stake is whether international legal trends—including evolving international rules, expanding multilateral treaties, and exposure to foreign jurisprudence—are compatible with U.S. sovereignty under the Constitution.

The answer is yes. A closer look shows that international law poses little threat to U.S. sovereign authorities, while expanding U.S. sovereignty-as-influence. The United States remains quite adept at resisting incursions on the supremacy of the Constitution—and in defending democratic self-government under it. More positively, the United States benefits both when it respects international law and when it takes active steps to shape the evolution of that law. There is no guarantee, of course, that America will always get its way in negotiations over international legal standards. (As transatlantic disputes with the EU over privacy law in the digital age illustrate, sometimes parties may simply agree to disagree.) But the overriding conclusion is clear: By influencing and upholding the rules by which all nations must play, the United States supports a stable and legitimate international system broadly consistent with U.S. interests and values.

This is not what one hears from conservative nationalists, whose “conception of sovereignty … focuses on minimizing ties to the community of nations, rather than seeking to lead that community.”9 Their stance is both misguided and shortsighted. First, it wrongly depicts the U.S. decision to ratify an international treaty or to join an international organization as a surrender of sovereignty; it is in fact its exercise. Second, it ignores the limits of legal isolationism in an age of globalization. The United States cannot hope to constrain other countries through international law while claiming special exemptions from those very same obligations. True sovereignty today implies the power to shape and support a rule-bound international order.

INTERNATIONAL LAW AND THE U.S. CONSTITUTION

To understand contemporary U.S. debates, it helps to define terms: International law refers to the body of rules and principles of action that are binding on states in their relations to one another, as well as toward other international actors, including individual human beings.¹⁰ It has two primary sources: formal agreements negotiated among states, and customary international law—or rules of behavior derived from established state practice. In the United States, international agreements can be further divided into actual treaties, which require the advice and consent of the U.S. Senate, and executive agreements, whereby the executive branch (in most instances with prior congressional authorization) reaches an accord with another government or other governments.

In comparison with domestic law, international law is inherently fragile. No supranational global authority, analogous to the government of an individual state, exists to impose its rules. The emergence, development, and enforcement of international law thus relies on consensus among independent states. That dependence is often its Achilles’ heel. As the famous political theorist Hans Morgenthau observed, “national sovereignty is the very source of [international law’s] decentralization, weakness, and ineffectiveness.”¹¹

That international law should raise hackles with respect to U.S. sovereignty is unsurprising, given America’s power and constitutional structure. On the one hand, the United States requires international cooperation—including in its legal form—to manage global integration. On the other, it has an obvious interest in retaining freedom of action (including action to defend itself), as well as preserving its system of government—not least the supreme political authority of the Constitution.

These countervailing impulses are mirrored in the two main U.S. schools of thought about the appropriate relationship between domestic and international law. The first, the “sovereigntist” view, is self-contained and inward-looking. It emphasizes that the Constitution—and the statutes enacted under it by elected representatives of the people—is the fundamental source of U.S. law. It is wary of both treaty commitments and international legal norms. The second, the cosmopolitan perspective, is outward-looking. It respects the Constitution but believes that “American law needs to be considered alongside international law and (legitimate) national legal traditions” in other countries.12

America’s Founders were well read in and supportive of international law.¹³ A stable world under law appealed to the U.S. revolutionary generation for expedient as well as principled reasons. It promised to temper “might” with “right,” helping their vulnerable nation resist great power bullying, assert its neutral rights, and insist on fair treatment for its commerce. In 1793 John Jay, first chief justice of the United States, opined that the “peace, prosperity and reputation of the United States, will always greatly depend on their fidelity to their engagements”—that is, on their respect for international legal obligations. A decade later Jay’s successor, John Marshall, established what became known as the Charming Betsy Doctrine (1804), arguing, “An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”¹⁴

In fact, the relationship between U.S. domestic and international law—the subject of the legal field known as “foreign relations law”—has been anything but straightforward.¹⁵ The Constitution provides only modest guidance about how the two should interact. Article VI, Section 2 designates treaties to which the United States is party as the “supreme Law of the Land,” alongside the Constitution and U.S. statutes enacted under it. The Constitution also delegates treaty-making power solely to the federal government, rather than to the fifty states (Art. I, Sec. 10), and establishes that this power is shared between the president, who leads negotiations, and the Senate, whose “advice and consent” (by a two-thirds majority) is required for ratification (Art. II, Sec. 2). In addition, the Constitution gives the judicial branch power to interpret treaties (Art. II, Sec. 2). Finally, the United States has insisted since its founding that it alone possesses the sovereign authority to interpret U.S. treaty commitments, as well as to renounce them in extreme cases.

Consistent with Washington and Jefferson’s admonitions against overseas entanglements, the United States accepted few international political or military obligations for most of its history. By 1900 it was party to some 456 treaties.16 But most were bilateral and focused on commerce and navigation.

This pattern changed in the twentieth century. The United States’ rise to world power status coincided with growth in the scope and reach of international law, which increasingly took a multilateral form and touched on new issues, from global health (covered by the International Sanitary Convention of 1903) to world peace (the topic of the Hague peace conferences of 1899 and 1907). Suddenly U.S. ambivalence toward international law took on global implications, since the republic could now shape—as well as seek to insulate itself from—the emerging international legal order. That ambivalence generated shocking results in 1918–19, when the United States first promoted and then failed to join an entirely new global body grounded in international law, the League of Nations.

A generation later, under Presidents Roosevelt and Truman, the United States once more promoted—and this time delivered on—a rule-bound international order. The most important of these foundational institutions, as noted in chapter 3, was the United Nations Organization (UNO), whose Charter became the bedrock of international law and the authoritative framework for global treaties. And yet even in those halcyon, world-order-building days, U.S. ambivalence toward international law was apparent. This was particularly true in Congress, where many legislators resisted legal obligations that might constrain the nation, challenge the Constitution, or infringe on states’ rights in the U.S. federal system.

Why So Two-Faced?

The Janus-like U.S. attitude reflects countervailing instincts. On the one hand, Americans appreciate that international law can make others’ actions more predictable, stabilize expectations, and legitimate rule enforcement, and they aspire to legislate international law that binds others. But many resist subjecting themselves to those same constraints, seeking to safeguard U.S. freedom of action and policy autonomy and to uphold the Constitution as the ultimate source of law.¹⁷ They confront a perceived trade-off, in other words, between their desire to preserve U.S. sovereignty-as-autonomy and sovereignty-as-authority, on the one hand, and their aspiration to advance U.S. sovereignty-as-influence on the other.

Three main factors underpin U.S. exceptionalism—or what some call “exemptionalism”—in international law: power, culture, and institutions. As the world’s dominant actor, the United States has more options than other countries, including wide latitude to choose among unilateral, bilateral, coalitional, and multilateral approaches to advance its policy objectives. And when the United States does make international commitments, it prefers that these be voluntary rather than legally binding.

Moreover, given its unique obligations and exposure as the ultimate guarantor of world order, a case can be made that America should not be hamstrung by rules that constrain lesser actors. In the late 1990s the United States invoked this custodial role in rejecting both the Mine Ban Treaty and the Rome Statute of the ICC, citing (respectively) its defense commitment to South Korea and its vulnerability to ICC prosecutions, given worldwide deployment of U.S. military forces. Indeed, U.S. policymakers and politicians often interpret foreign support for international law as a way to clip America’s wings and reduce its scope for unilateralism. (This is not an unreasonable assumption, since foreign governments often desire to rein in U.S. power and restrict U.S. freedom of action.)

Political culture, notably U.S. attachment to popular sovereignty, reinforces American exemptionalism. The United States won its independence and became the first modern democracy after revolting from its colonial master. This legacy makes Americans naturally suspicious of any outside authority that might undermine their Constitution as the ultimate source of U.S. law. At the same time, Americans insist that their country’s founding political and legal principles are inherently universal—and ought to be shared globally. The result is an odd (and to foreigners exasperating) amalgam of defensiveness and messianism. What distinguishes this from pure hypocrisy is the perception, widespread among Americans, that the United States is an inherently benevolent and disinterested global force.18

Finally, the constitutional separation of powers complicates U.S. attitudes toward international law by inviting competition between executive and legislative branches to determine the scope of U.S. global commitments. The cumbersome division of labor is most obvious in the case of treaties. The executive first negotiates and signs a treaty with a foreign government (or governments). The president then submits it to the Senate Foreign Relations Committee, which then reports the treaty to the full Senate by majority vote, often attaching reservations and amendments. Following floor debate, the Senate gives its consent by a two-thirds vote. Finally, the president formally “ratifies” the treaty by signing that legislation. (Complicating matters, some treaties, deemed “non-self-executing,” require subsequent congressional legislation to give U.S. bodies the domestic legal authority to comply and allow them to be judicially enforced.)¹⁹

The separation of powers makes treaty ratification far more onerous for the United States than for parliamentary democracies, since delay or failure can occur at any step. The highest hurdle is the two-thirds Senate supermajority, which allows motivated legislative minorities to block ratification of proposed conventions. Given these odds, many treaties are never brought to vote. In rare cases the Senate may reject a treaty outright, as it has done on twenty-four occasions since 1789, the most famous being the Versailles Treaty in 1919. (The two most recent cases are the Comprehensive Test Ban Treaty in 1999 and, as discussed earlier, the Convention on the Rights of Persons with Disabilities in 2012.) Treaties may also languish for years, as the Genocide Convention did for four decades before its ratification. Historically, treaty gridlock has been most common during periods of high partisanship, especially when Democrats control the White House, Republicans dominate the Senate, and a conservative chairs the Senate Foreign Relations Committee.

The Legacy of the Bricker Amendment

All three factors were at play in the early 1950s during debates over the Bricker Amendment. In 1951, Republican senator John Bricker of Ohio proposed amending the Constitution to limit the president’s treaty-making power and rein in the Truman administration’s support for international organizations. Under Bricker’s proposed scheme, U.S. accession to treaties would require not only a Senate supermajority but also separate congressional implementing legislation giving domestic effect to those commitments. Henceforth, all U.S. treaties would be “non-self-executing.” Even more onerous, any UN treaty would need to be approved by all of the (then) forty-eight U.S. state legislatures. Finally, the amendment would invalidate any treaty provision that conflicted with the Constitution.

Racial politics motivated the Bricker Amendment. Its most ardent champions worried that UN human rights treaties would empower civil rights activists to challenge segregationist policies. That said, supporters couched their objections in broader constitutional concerns that still resonate among conservatives. They argued that UN conventions would infringe on U.S. sovereign legal authorities, usurp Congress’s legislative functions, downgrade already-protected American rights, and empower the federal government to legislate in areas within the jurisdiction of individual U.S. states. UN treaties, they warned, were but the vanguard of “world government.”20

These fears were unwarranted, since any ratification of UN treaties would occur through constitutional processes, including the assent of Congress. Legislators would need to approve implementing legislation (if any), and there would be no external enforcement mechanism. Still, a diluted version of the Bricker Amendment came perilously close to passage in 1954. It fell just one vote shy of the two-thirds majority needed to override President Dwight D. Eisenhower’s veto—and only after the administration had reassured wavering senators that it would not seek approval for any other UN human rights treaty. The grueling episode helps explain why the Senate took until 1988 to approve the Genocide Convention (signed in 1948), nearly three decades (from 1966 until 1994) to approve the Convention on the Elimination of All Forms of Racial Discrimination, and a quarter century (from 1967 until 1992) to approve the International Covenant on Civil and Political Rights (ICCPR).

Although the amendment’s original racial motivation has faded, the “ghost of Senator Bricker” survives in resistance to treaties among conservatives skeptical of intergovernmental bureaucracies and determined to defend traditional values on issues like abortion, capital punishment, gun control, and the role of religion in society.21

Conservative Critiques and Liberal Defenses of International Law

Today the boldest U.S. criticisms of international law come from conservative legal scholars. Many deny that international law is really “law,” depicting it as a mere set of “political obligations.” In this view, states may conform to international law when it meets their situational needs. But they quickly cast it aside when it collides with expedient reasons of state, as the United States did in leading NATO’s 1999 air campaign over Kosovo and the 2003 invasion of Iraq.²² Placing faith in international law is thus naive, “encouraging states to sacrifice elements of their sovereignty, adopt multilateralism, and compromise their ability to act independently.”²³ In addition, many conservatives insist that international law becomes “real” law only if Congress, as the repository of the people’s democratic sovereignty, passes relevant implementing legislation to “domesticate” it. They also regard customary international law as inherently undemocratic, and they believe that all treaties should be “non-self-executing.”²⁴

Liberal scholars and jurists retort that international law is real law—and that it affects state behavior in tangible ways. Their point of departure is the observation of Louis Henkin, arguably the most prominent U.S. scholar of international law in the second half of the twentieth century, that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” International law exerts a “pull to compliance,” in this view, because it embodies a shared conception of what is legitimate and permissible, creates a web of obligations, and carries material and reputational costs for those who violate it.25 Liberals also believe that the United States should be open to integrating evolving international rules into domestic law, and to delegating regulatory powers to multilateral bodies, even if the relevant agencies and officials are not directly accountable to U.S. citizens. This equanimity reflects a conception of “sovereignty” that (in terms of the sovereignty triangle presented in chapter 1) emphasizes U.S. influence on international law (and international outcomes) above U.S. autonomy and even (for some) U.S. constitutional authority.²⁶

From a liberal perspective, “sovereigntist” efforts to keep the United States unfettered actually harm U.S. interests by depriving America of the credit it would otherwise get for advancing the global rule of law, and also by undermining the legitimacy of international rules. Sovereigntists, meanwhile, offer little guidance about how the United States can mitigate the downside of globalization, much less reduce its vulnerability to transnational threats, without global rules. They also do not explain how international cooperation would be possible were all 193 UN member states to mimic the maximalist sovereignty posture they endorse for the United States.²⁷

A Threat to U.S. Sovereignty?

The United States, then, has long been ambivalent about international law. It values the order and predictability law lends to global affairs, even as it chafes at perceived incursions on U.S. sovereignty-as-authority and sovereignty-as-autonomy. And for self-appointed defenders of U.S. sovereignty the stakes have never been higher: The United States, they argue, faces growing pressure to embrace dubious international standards emerging from global legal processes that lack democratic provenance. In the past, conservatives argue, sovereign states made law by consciously negotiating treaties and recognizing the slow accretion of state custom. But that traditional legal order is being upended, as new forms of “transnational” law penetrate sovereign borders and “supranational” law is imposed from above.²⁸

Sovereignty’s defenders cite several worrisome global legal trends threatening the U.S. political and legal system. These include a proliferation of intrusive and unwarranted multilateral treaties; an ever-expanding definition of “customary international law”; efforts by left-wing NGOs to hijack the agendas of UN treaty-making bodies; new “transnational law” emerging from freelancing global networks of judges and regulators; unwarranted activism by unaccountable international organizations; and growing references to foreign law and decisions in U.S. court rulings. This “new” international law, warn David Rivkin and Lee Casey, is “profoundly undemocratic at its core,” constituting nothing less than “a frontal assault on sovereignty as the organizing principle of the international system.”29 Slowly but surely, the U.S. Constitution will be subordinated to a global legal system, and the Supreme Court will be relegated to ensuring that domestic statutes conform to international law.

The main obstacle to this global governance project, U.S. sovereigntists claim, is the United States, which heroically clings to exceptionalism in its national identity, politics, and jurisprudence. This explains why, they say, legal progressives in the United States and abroad have taken aim at America, using “lawfare” in the hopes of bringing the United States “to heel” and entrapping it in a web of international obligations that limit its maneuvering room, trample its constitutional democracy, and impose alien values on its people.³⁰ In short, warns former senator John Kyl (R-Ariz.), they have launched “a campaign against American sovereignty.”

Multilateral treaties delegate power to new international bodies with little or no accountability, as transnationalists seek to subordinate the U.S. government and U.S. law to international norms. We have seen this movement in many levels, from laws of war to arms control to climate change, women’s rights, the death penalty. Advocates are bypassing the domestic political processes and going to the international level to accomplish their aims.³¹

In sum, the United States is in for a world of hurt.

Time to Take a Deep Breath

Such hyperventilating makes good copy. But the alleged risks that international legal trends pose to U.S. sovereignty—and particularly to sovereignty-as-authority—are overblown. The United States is fully capable of defending its constitutional system of government from international encroachments and managing the inevitable tensions between emerging international law and domestic principles about the legitimate uses of national power.

Globalization is placing unprecedented demands on sovereign governments. The swelling volume and quickening pace of cross-border flows makes it harder for states acting independently to defend their national security, manage their economies, and deliver social welfare. To exploit the upside and minimize the downside of global integration—that is, to exercise their sovereignty-as-influence—national governments need agreed rules of the road. Settling on these will require more extensive multilateral collaboration in negotiating new legal obligations, setting common standards, regulating international behavior, monitoring and verifying compliance with commitments, and resolving disputes among parties. It also implies deeper involvement by international organizations, institutions, and treaty bodies in policy arenas historically reserved for sovereign state authorities, to manage cross-border flows in fields as diverse as finance, trade, terrorism, pollution, disease, weapons of mass destruction, and crime.

Such new international legal rules could create tensions with domestic rules about the legitimate uses of governmental power. The pivotal questions are: Can the United States embrace international law without undermining its constitutional sovereignty? Can it protect democratic decisionmaking without stymieing multilateral cooperation?

The answer to both questions is yes. To begin with, the “sovereigntist” position grossly exaggerates the transfer of authority that occurs in the creation of international law and institutions. Nearly all the multilateral legal instruments to which the United States is party take an international rather than a supranational form. That is to say, they emerge through horizontal negotiation and agreement among sovereign governments, rather than vertical imposition by some higher, global political authority. Moreover, under most international agreements, it is states parties themselves (the sovereign states that are party to an agreement), rather than international bodies, that implement the relevant accord.

Second, the transnational legal trends to which “sovereigntists” most object—including the expanding scope of customary international law, the machinations of radical transnational NGOs, and the cross-border activities of networks of jurists, regulators, judges, and technocrats—are less extensive and worrisome than alarmists allege, as the following sections will demonstrate. The United States retains ample scope to determine which evolving norms it recognizes as customary international law. It is also fully capable of exploiting transgovernmental networks to grapple with shared challenges while improving their transparency and accountability to elected U.S. officials. Accordingly, the “suicide of liberal democracy,” of which John Fonte warns, is not in the cards.32

Third, to clarify a common misconception, a decision by the United States to sign, ratify, and accede to an international treaty or to join an international organization is not an abdication of democratic sovereignty but indeed its expression. The U.S. president only ratifies treaties after elected U.S. representatives, operating through domestic political processes and acting on the people’s behalf, calculate that the benefits of such collective arrangements outweigh the costs. The sovereigntist position thus fails on its own terms, since there is nothing in the Constitution that prevents the United States from voluntarily entering into international legal arrangements and organizations that affect U.S. citizens.

This is not to say that all proposed treaties or other multilateral institutional commitments warrant support, or that international organizations should not be reformed. When the president or Congress considers the costs of joining to be exorbitant, they can easily opt out of conventions—and have done so on numerous occasions. They have also conditioned treaty accession on explicit provisions that limit U.S. legal obligations, as well as requiring separate implementing legislation to allow certain treaties to take domestic legal effect. What is worthy of debate is how extensively the United States should use such caveats and preconditions.

Finally, the U.S. judiciary’s invocation of foreign and international law continues to remain limited and, if handled prudently, need not endanger the integrity of the U.S. constitutional system and the historical precedents on which U.S. jurisprudence rests. At the same time, exposure to the findings of foreign courts can teach U.S. judges how counterparts abroad have addressed similar legal questions, helping them discharge their responsibilities with greater wisdom. This is far from requiring that they copy the decisions of foreign courts.

The remainder of this chapter takes on these sovereigntist claims and disposes of them one by one.

THE SPECTER OF SUPRANATIONALISM

The first fear to dispense with is the specter of supranationalism—that is, that the United States risks subordinating its hallowed Constitution to a higher global legal authority.

The EU Bogeyman

For the past two decades, there has been no greater bogeyman for sovereigntists than the European Union. They regard it as an unnatural agglomeration of once-proud nation-states that have sacrificed their independence in a misguided desire to “pool sovereignty”—only to find themselves in thrall to a Brussels-based Leviathan staffed by officious and unaccountable Eurocrats intent on expanding their power and preserving an overly regulated welfare state, even as membership in the EU brings transnational challenges, from refugees to terrorists, to individual countries’ doorsteps. American sovereigntists have long described the EU as a harbinger of world government.33

Sovereigntists correctly point out that the EU’s twenty-eight members have ceded not only significant policy autonomy but also a measure of constitutional authority. The EU’s supranational features include a powerful European Commission that sets regulatory standards in multiple fields; a European Parliament composed of legislators elected from member states; and a European Court of Justice empowered to override incompatible domestic legislation and high court decisions in member states. The Treaty of Lisbon (2009) deepened EU integration by establishing a president of the European Council, a high representative for foreign affairs and security policy, and an External Action Service (analogous to a foreign ministry). It also expanded the EU’s authority in traditional national spheres of crime, justice, and homeland security. Finally, the nineteen EU members in the Eurozone have accepted sweeping infringements on national authority and autonomy, in adopting a common currency, a European Central Bank, and (in the aftermath of the Eurozone crisis) a banking union.

In sum, the EU is not simply an intergovernmental association of sovereign states bound by horizontal treaties. The “constitutionalization” of the EU has enmeshed national governments, as well as citizens and private corporations, in a set of “vertically integrated legal regimes conferring juridically enforceable rights and obligations.”³⁴ Bemoaning the EU’s fate, Kyl notes, “What they have now is a situation where their sovereignty has largely been supplanted by others who are not accountable to voters in included European countries.” Even worse, declares George Mason University law professor Jeremy Rabkin, “Euro-governance poses a direct challenge to American ideas of constitutional government and national sovereignty.”³⁵

The root of this anxiety is suspicion that the EU is not simply an isolated regional experiment but an alternative model for global order. Within such a future “Global Union,” Walter Russell Mead explains, national autonomy would be limited by “an increasingly dense framework of commonly agreed upon laws and norms, and an increasingly complex and effective web of global institutions would supplement and in many cases replace the authority of national governments.” American sovereigntists point forebodingly to the words of William W. Burke-White and Anne-Marie Slaughter, two leading transnational legal progressives: “Once those laws are passed [by European governments], EU institutions … look over national shoulders to ensure that they do what they actually commit to do,” they write. “This European way of law is precisely the role that we postulate for international law generally around the world.” The nightmare scenario for sovereigntists, write Julian Ku and John Yoo, is the emergence of “a full-blown European-style system of global governance.”36

Such anxieties are overwrought. The United States is in no danger of following the EU’s path. To begin, the European Union is a sui generis historical phenomenon, the product of political dynamics and cultural affinities among member states and (during its formative years) of superpower conflict. Moreover, whatever luster the EU once enjoyed is by now badly tarnished, thanks to years of economic malaise, the grinding Eurozone crisis, the EU’s flailing response to massive flows of migrants and refugees, and public disillusionment with democratic deficits at the heart of the “European project.” The most dramatic indication of this disenchantment was the shocking triumph on June 23, 2016, of the “Leave” campaign in the historic referendum on whether Great Britain should exit the European Union. The victory for “Brexit” (discussed more in chapter 8) was a massive repudiation of the elite-driven European project—at least within the United Kingdom. Centrifugal forces could well gain momentum in other member states, redirecting the EU away from the dream of a federal (and ultimately supranational) union, associated with its godfather, Jean Monnet, and toward Charles de Gaulle’s alternative vision of a looser, confederal, Europe des patries.³⁷

Drawing a Line: The ICC

But perhaps the clearest signal that the United States remains determined to preserve its own sovereignty-as-authority is the continuing U.S. decision not to accept the jurisdiction of the International Criminal Court. Although President Bill Clinton signed the Rome Statute in December 2000, toward the end of his administration, he chose not to submit it to the Senate for its advice and consent. Indeed, he recommended that his successor, George W. Bush, not do so until U.S. concerns were addressed. Even President Barack Obama chose not to seek U.S. accession, despite an increasingly close U.S. working relationship with the court.

The United States has indicated several concerns about the ICC. One is that the court could deprive accused U.S. citizens of rights of due process protected under the Constitution. Another is that it could reduce U.S. freedom of action in conducting military operations. But the fundamental source of U.S. skepticism is the ICC’s supranational character. Unlike other, ad hoc tribunals established to address war crimes issues, such as for Rwanda and the former Yugoslavia, the ICC possesses an institutional identity separate from the authority of the UN Security Council. It also has universal jurisdiction, including over the nationals of nonparty states, as well as an independent special prosecutor empowered to sit in judgment on the adequacy of domestic legal proceedings undertaken by member states.38

To be sure, the court has competence over only a narrow range of crimes (for the present, genocide, war crimes, and crimes against humanity) and is meant to operate only when a state party is incapable of or unwilling to conduct its own credible investigations and trials. However, those restrictions have not reassured critics, who retort—not unreasonably—that granting sweeping discretionary powers to an independent and unaccountable prosecutor and tribunal sacrifices the sovereign authority of ICC member states and creates a situation ripe for abuse, including the potential for politically motivated prosecutions.

Following the 2000 presidential election, the administration of George W. Bush quickly affirmed its opposition to the ICC. John Bolton, who “unsigned” the Rome Statute in May 2001 as undersecretary of state, declared that the ICC “runs contrary to fundamental American precepts and basic constitutional principles of popular sovereignty, checks and balances, and national independence.”³⁹

To protect U.S. civilian and military personnel from the court’s reach, the Bush administration subsequently negotiated more than 100 bilateral agreements under Article 98 of the Rome Statute to ensure that states parties would not transfer any U.S. citizens to the court “without U.S. consent.” To underscore the U.S. position, Congress passed and Bush signed into law the American Servicemembers’ Protection Act (2002). Its provisions prohibited any U.S. tax dollars from going to the ICC, as well as the sharing of any classified information with the court, restricted U.S. participation in UN peacekeeping operations unless U.S. troops were exempted from ICC jurisdiction, and prohibited any military aid to ICC parties that had not signed Article 98 agreements with the United States (though waivers could be granted on national security grounds). Finally, the law authorized the president to “take any action necessary” to free U.S. officials or soldiers held by the court (leading wags to dub it the “Hague Invasion Act”). In 2010 the House of Representatives reaffirmed U.S. opposition to ICC membership, declaring, “The Rome Statute undermines national sovereignty … conflicts with the principles of the United States Constitution … and hinders its ability to defend itself and its allies with military force.”⁴⁰

Based on the court’s record to date, the scenarios that most concern sovereigntists seem implausible (though certainly not impossible). For one thing, an ICC that pursued unfounded prosecutions against U.S. officials would be committing suicide. For another, the United States has developed a quiet, pragmatic working relationship with the court, which began in the Bush administration and expanded under Obama. This has included providing evidentiary and other support related to cases on the ICC’s docket, as well as supporting Security Council referrals to the ICC of certain atrocity situations (including those in Darfur in 2005 and Libya in 2011).41 By 2016 many international observers regarded the United States as a de facto member of the ICC—albeit one that remained outside its jurisdiction.

The broader lesson is that the United States has proven itself wholly capable of rejecting supranational challenges to its sovereign authority. In the case of the ICC, this involved negotiating side agreements to guarantee that other states that embraced such schemes did not employ those supranational arrangements to infringe on the supremacy of the U.S. Constitution.

THE “TRANSNATIONAL LEGAL PROCESS”

So much for the supranational threat to U.S. sovereignty-as-authority. What about the transnational threat? According to conservative legal scholars, U.S. sovereignty is increasingly besieged by an unholy alliance of progressive advocacy groups, left-wing jurists, liberal politicians, and unelected technocrats, all seeking to “smuggle” new international norms into domestic law while riding roughshod over representative democracy. As evidence for this proposition, American sovereigntists point to the role of NGOs in “hijacking” UN treaty negotiations, to the growing legal influence of cross-border networks of judges and regulators, and to the alacrity with which some U.S. lawyers declare the existence of “new” customary international law. Conservatives look on these trends with dismay, believing that they embody the new “transnational legal process” championed by the progressive legal scholar Harold Hongju Koh, who served as State Department legal adviser during President Obama’s first term. Back in 2006, writing in the Penn State International Review, Koh had heralded the emergence of a new era, in which evolving international norms could be “downloaded” into U.S. law.⁴²

NGOs Gone Wild

To self-styled defenders of U.S. sovereignty like John Fonte of the Hudson Institute, progressive civil society groups are the “shock troops” of global governance. Having failed to secure political and legal victories home—including in areas like gun control, capital punishment, abortion, gender policy, and racial discrimination—these American “globalists” have adopted an “indirect” approach, shifting their attention and resources to UN conferences, where they can get a second bite at the apple. Arriving en masse at multilateral negotiations, they distort international agreements in ways that constrain the United States, without having to deal with the difficult, messy requirements of American democracy. The resulting influence enjoyed by unaccountable nonstate advocacy groups, two Heritage Foundation scholars complain, “undermines responsible diplomacy and the sovereignty of the United States and other nation-states.”43

This “NGOs gone wild” thesis is overblown. To begin with, global civil society is more diverse ideologically than such alarums suggest. When conservatives critique the international agendas of NGOs, they mean progressive outfits like Greenpeace or Human Rights Watch, ignoring the long-standing global role of the Catholic Church and the growing international activism of the National Rifle Association. This is to say nothing of the massive influence and resources that private corporations bring to bear in influencing national negotiating positions and global deliberations, which dwarf NGO clout.

More important, multilateral negotiations remain firmly in the hands of sovereign state actors. Yes, civil society groups can mobilize, write “amicus briefs,” and advise national governments. But they are essentially lobbyists, whose advice may well be rejected. Fonte’s own book, Sovereignty or Submission, is telling in this regard. It presents no evidence that NGO advocacy groups have ever significantly altered the U.S. negotiating position at a major multilateral conference.⁴⁴ In practice, the U.S. government routinely ignores NGOs’ demands, just as it brushes aside the findings of UN special rapporteurs and monitoring committees who judge U.S. performance. On some occasions, as with the Mine Ban Treaty (1997), the Rome Statute (2000), and the Cluster Munitions Convention, grassroots movements have helped mobilize global political will for new conventions—at times making common cause with governments whose positions are at odds with those of the U.S. government. But the actual negotiations of these treaties, to say nothing of their ultimate signature and ratification, reflects the sovereign decisions of state authorities, who are—particularly in the case of the United States—capable of pushing back against provisions they find misguided and, in the final analysis, rejecting a treaty they deem ill-advised.

Unaccountable Transgovernmental Networks

Sovereigntists also worry that transnational networks of government officials, acting beyond legislative oversight, may unduly influence the content of international norms and rules. Here, there are modest grounds for concern. One way that national governments have adapted to global interdependence, as Slaughter notes, is by becoming “disaggregated.” That is, even as foreign, finance, and defense ministries continue to conduct traditional diplomacy, governments are also more frequently linked through informal cross-border networks of regulators, judges, and even parliamentarians, who may interact on a daily basis. Such transnational linkages can improve international cooperation by helping governments harmonize standards, share best practices, and improve compliance. And because networked cooperation tends to be faster than conventional negotiations within traditional intergovernmental organizations, it can help governments respond to and manage the shared challenges of interdependence quickly and flexibly. To the degree that sovereignty is about “influence” on a nation’s destiny, this type of cooperation has a lot going for it.45

But it does carry risks. Informal networks can undermine sovereignty-as-authority, particularly when their relevant activities lack accountability, transparency, and legislative oversight. Indeed, some conservatives suspect that transnational networks are “a deliberate device to make an end run around the formal constraints imposed on global governance … by traditional international organizations.” Slaughter herself feeds such worries when she writes: “The disaggregation of the state creates opportunities for domestic institutions, particularly courts, to make common cause with their supranational counterparts against their fellow branches of government.”⁴⁶

These risks should be acknowledged but not overstated, since they can be managed without jettisoning nimble networks. One logical approach would be for the U.S. Congress to mandate that the heads of relevant U.S. agencies provide and publish online annual reports on the scope of their transnational activities—and to require those agencies to appear more regularly before their relevant oversight committees. Congress could also authorize and require the U.S. State Department to report on the transnational activities of U.S. government agencies, including any ramifications for U.S. international legal obligations.

Customary International Law Run Amok

The greatest threat that legal transnationalism poses to sovereignty, according to conservative critics, is the unwarranted expansion of customary international law. For centuries, sovereign states have agreed to be bound not only by negotiated agreements but by norms and rules embodied in accumulated state practice. Traditionally, to qualify as “customary” an observed practice must be “general, consistent, and (typically) longstanding.” Moreover, parties must embrace the practice out of “a sense of legal obligation,” regardless of any explicit agreement. Some customary international law has become so universal and embedded in state practice that it is recognized as jus cogens, or “peremptory rules which permit no derogation.” The prohibition against slavery is one example. The U.S. Supreme Court recognized the validity of customary international law more than a century ago, in the Paquete Habana (1900) case, and—with caveats—considers it to be part of U.S. law. Despite this venerable history, the definition, status, and application of customary international law depend on subjective determinations.47

What incenses contemporary sovereigntists is their perception that today customary international law is being declared and recognized instantaneously. Rather than waiting for custom to accumulate gradually, through enduring state behavior, transnational “legal entrepreneurs” now declare new “norms” on the basis of what states and other actors say rather than do, and without any criteria or authoritative process to justify this elevation. As a case in point, conservatives cite the Additional Protocol I to the Geneva Conventions of 1949, which they complain “would grant prisoner-of-war privileges to terrorists” (under Article 75). Although the United States has not ratified the protocol, Secretary of State Hillary Clinton declared in March 2011 that America would henceforth accept the protocols’ “fundamental guarantees” for illegal combatants, “out of a sense of legal obligation.”⁴⁸

Conservatives also worry that activist U.S. judges may incorporate alleged new global “norms” into their domestic court rulings, rather than simply interpreting established U.S. law. To prevent this possibility, Curtis A. Bradley and Jack L. Goldsmith propose that the United States recognize customary international law only if Congress first “domesticates” it—namely, by passing legislation explicitly incorporating it into U.S. statute law.⁴⁹

Such a radical reform is unwarranted, since the alleged risks that custom poses to the U.S. Constitution are overblown. As John Ruggie observes, critics have failed to demonstrate “that any actual case has ever adversely skewed constitutional arrangements or practices as a result of a bad call by a court involving domestic incorporation of international norms.” Accordingly, the concern is “entirely hypothetical.”⁵⁰

Overall, conservative warnings about the “transnational legal process” are inflated. America is not about to lose its sovereign authorities to a nefarious alliance of progressive legal scholars, radical NGOs, and freelancing globalist bureaucrats. Customary international law poses little risk to the United States. Indeed, it frequently serves to promote U.S. values, interests, and norms on the global stage.

COMMITMENT PROBLEMS: SOVEREIGNTY OBJECTIONS TO MULTILATERAL TREATIES

If customary international law poses little danger to U.S. sovereignty, what about multilateral treaties, which critics liken to ropes restraining an American Gulliver? At its 2016 national convention in Cleveland, the Republican Party underscored its own wariness. “We … affirm the wisdom of President George Washington’s warning to avoid foreign entanglements and unnecessary alliances,” the party platform explained. “We therefore oppose the adoption or ratification of treaties that would weaken or encroach upon American sovereignty or that could be construed by courts to do so.”51

This suspicion of international ties that bind was apparent during Donald Trump’s first week as president, when his senior staff drafted an executive order declaring a moratorium on any new multilateral treaties. The draft order, leaked to the press, directed the creation of a “high level executive branch committee” to review not only any pending treaty negotiations but also “whether the United States should continue be a party to” existing treaties. “Recent decades,” the author(s) explained, had witnessed a “proliferation of multilateral treaties.” Such conventions had been “used to force countries to adhere to often radical domestic agendas that could not, themselves, otherwise be enacted in accordance with a country’s domestic laws.”⁵² The basic premise of the draft order was false: that the United States had become party to multiple treaties that were “not in our national interests” and involved “ceding sovereignty.”⁵³

To begin with an obvious point: the United States retains complete sovereign authority over whether to become party to any international treaty, and it does not suddenly lose that aspect of its sovereignty when it ratifies a multilateral convention. To be sure, the U.S. government has an obligation to citizens to weigh the costs and benefits of accession, and it may withhold U.S. consent to be bound by a treaty regardless of the opinions of other nations. But the decision to join a treaty is an exercise rather than a surrender of sovereign authority.

The frequent trade-off the United States does face in considering treaties is between sovereignty’s two other dimensions: sovereignty-as-autonomy and sovereignty-as-influence. How much policy freedom should America yield in return for enhanced cooperation on shared challenges? Such dilemmas have grown sharper and more common as nations confront more cross-border problems requiring collective responses. Sovereigntists tend to bemoan this trend as a license for outsiders to meddle in U.S. affairs.54 But they typically overstate the constraints such treaties place on U.S. autonomy, while failing to explain how the United States could possibly accomplish its aims unilaterally. They focus on sovereignty-as-autonomy, in other words, but ignore sovereignty-as-influence.

The United States has ratified hundreds of multilateral treaties since 1900, with the number rising dramatically since World War II (see figure 4-1). More than 600 such conventions are in force today, addressing matters ranging from defense cooperation to environmental protection, communications standards, peaceful uses of outer space, child abduction, response to pandemics, and trade preferences.⁵⁵ Each reduces U.S. sovereignty-as-autonomy, by obligating (or proscribing) certain conduct. At the same time, such treaties expand U.S. sovereignty-as-influence, helping the United States to achieve outcomes otherwise beyond its reach.

As former State Department legal adviser John Bellinger told the Washington Post in January 2017, the United States is party to “many hundreds of multilateral treaties that help Americans every day in concrete ways.” In their absence, “Americans could not have our letters delivered in foreign countries; could not fly over foreign countries or drive on foreign roads using our state driver’s licenses; could not have access to a foreign consular official if we are arrested abroad; could not have our children returned if abducted by a parent; and could not prevent foreign ships from polluting our waters.”⁵⁶

More than fifty years ago, in 1965, Secretary of State Dean Rusk explained this sovereignty trade-off in Senate testimony.

We are, every day, in one sense, accepting limitations upon our complete freedom of action.… We have more than 4,300 treaties and international agreements, two-thirds of which have been entered into in the past 25 years … each one of which limits our freedom of action. We exercise our sovereignty in going into these agreements.… Law is a process by which we increase our range of freedom.… We are constantly enlarging our own freedom by being able to predict what others are going to do.⁵⁷

The WTO Charter, for instance, obliges the United States to grant all parties “most favored nation” trade status and to seek resolution of trade disputes within the WTO’s Appellate Body. Similarly, the Chemical Weapons Convention requires the United States to destroy its entire stockpile of chemical weapons, to forswear their production, and (in principle) to open its domestic chemical facilities to short-notice challenge inspections. Likewise, the WHO’s strengthened International Health Regulations commit the United States to improving its infectious disease surveillance and response capacities, as well as to reporting to the WHO any major public health emergency.58 In each case the United States has voluntarily agreed to limit its notional policy options in order to reap promised benefits of collective action: respectively, preserving an open, nondiscriminatory global trading system; eliminating a heinous category of weapons of mass destruction; and preventing the rise and spread of pandemics.

FIGURE 4-1. Multilateral Treaties in Force in the United States

Source: Compiled from U.S. State Department data.

On several high-profile occasions, U.S. political leaders have calculated that the anticipated trade-offs are not worth it and have accordingly chosen not to sign or ratify major multilateral conventions endorsed by most UN member states, even ones that the United States led in championing, drafting, and negotiating. These include the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity, the Kyoto Protocol, the Comprehensive Test Ban Treaty (CTBT), and the Rome Statute. Table 4-1 identifies seventeen such treaties and the justifications policymakers and critics offered for remaining apart. The reasoning for opting out varied. In some instances U.S. officials were skeptical that the envisioned conventions would achieve their aims or worried they would complicate competing U.S. policy goals. In such circumstances U.S. political leaders concluded that it did not make sense to sacrifice U.S. autonomy for (questionable) influence. In other cases the principal objection was to (perceived) infringements on U.S. sovereignty-as-authority—including the exercise of popular sovereignty under the U.S. Constitution. As Republican senators Inhofe and James DeMint (S.C.) observe, “The debates about these treaties are not about the legalistic minutiae they contain but the sovereign citizenry they threaten.”⁵⁹

How distinctive is the U.S. attitude toward international treaties? In terms of the number of multilateral treaties to which it is a party, the United States falls in the middle of the pack in comparison with its most important European allies, including the United Kingdom, Germany, and France. Among other major powers, it is on a par with China, though lags behind both India and Russia. More striking than simple numbers is the fact that many of the conventions that the United States has chosen not to join (such as UNCLOS and CTBT) were actually the handiwork of U.S. administrations. Moreover, these treaties have generated extraordinary controversy in the United States.

Equally distinctive, in comparative perspective, is the long legislative delay that typically occurs between the initial U.S. signing of a treaty and its ultimate ratification. Of the thirty-two treaties deposited with the UN secretary general between 1945 and 1989, the United States ratified just eight in the decade in which they were concluded, and the average wait time for ratification was ten years. But treaties may languish far longer—four decades in the case of the Genocide Convention.

Treaty type also matters. Historically, the U.S. Senate has been more favorably disposed toward contract-like treaties that facilitate mutual exchange, such as those related to trade and investment or international legal assistance, than with treaties that establish laws constraining U.S. autonomy or empowering international authorities, particularly in the spheres of arms control and disarmament, environmental protection, and human rights.

Common U.S. objections to arms control treaties include the arguments that they limit U.S. defense options, undercut the U.S. military edge, fail to prevent cheating by adversaries, and expose the United States to unacceptably intrusive verification regimes. Such worries help explain the Senate’s long delay in ratifying the Limited Test Ban Treaty; the numerous conditions it attached when approving and ratifying the Intermediate-Range Nuclear Forces Treaty (INF), Strategic Arms Reduction Treaties (START) I and II, the Conventional Forces in Europe Treaty (CFE), and the Chemical Weapons Convention (CWC); and its outright rejection of both the CTBT and the Mine Ban Treaty. Sovereigntists also worry that vaguely worded treaty language could entrap the United States in open-ended obligations. Theodore Bromund of the Heritage Foundation objects that the UN Arms Trade Treaty includes fuzzy concepts like “international humanitarian law” and “international human rights law.” He predicts: “By signing the treaty, the United States has tied itself to a conveyor belt: It is no longer in control of where it is going.”⁶⁰

Table 4-1. Major Treaties to Which the United States Is Not a Party
A. Arms control treaties		Objections raised by opponents
Arms Trade Treaty		Would supersede the U.S. Constitution, allowing amendments to be approved by a three-quarters majority vote of parties, “circumvent[ing] the power and duty of the Senate” and “placing political and legal pressure on United States to comply in practice with amendments it was unwilling to accept.” Also, “the treaty could be used to justify the imposition of controls within the U.S. that would pose a threat to the Second Amendment.”a
Biological Weapons Convention Verification Protocol		The protocol’s invasive on-site inspection measures would jeopardize the security of U.S. biodefense programs, as well as proprietary commercial information, while still allowing determined proliferators to evade verification by “conceal[ing] efforts in legitimately undeclared facilities.”b
Cluster Munitions Convention		Would limit U.S. forces’ freedom of action and ability to protect U.S. interests by eliminating a category of weapons that “have demonstrated military utility” and that “often result in much less collateral damage” than other bombs or shells.c
Comprehensive Test Ban Treaty		Would bring no substantial benefits and instead limit the U.S. ability to maintain a safe and reliable nuclear weapons stockpile—and thus a credible nuclear deterrent—while not foreclosing cheating by other parties, including Russia and China.d
Mine Ban Treaty		Would limit U.S. freedom of action in national security and ability to protect U.S. interests, notably on the Korean Peninsula, by expanding the enemy’s freedom of maneuver, jeopardizing the safety of U.S. military personnel, and complicating the U.S. defense of South Korea.e
B. Environmental treaties
Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal		Would limit free trade and impose unnecessary burdens not only on the United States and other wealthy countries (by increasing disposal costs and health risks) but also on poorer countries (by depriving them of increased national income from accepting hazardous wastes).f
Convention on Biological Diversity		Would not adequately protect intellectual property of U.S. corporations, including biotechnology and pharmaceutical firms, and could subject the United States to the authority of a mandatory, international dispute resolution body.g
Kyoto Protocol		Would disadvantage the U.S. economy because it has no limits for developing countries. Would give international bureaucrats control over U.S. energy policy.h
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade		Would cede U.S. authority to set standards banning or limiting certain chemicals to the UN, an unelected, unaccountable body. Such a transfer of power from U.S. federal government to international agencies outside U.S. control would create “troubling and dangerous precedents … in American law.”i
Stockholm Convention on Persistent Organic Pollutants		Would cede to an unelected, unaccountable UN the authority to determine standards for the United States.
C. Human rights treaties
Additional Protocol I to the Geneva Conventions		Would alter and undermine the laws of war by granting combatant status and POW privileges to terrorists and irregular forces who hide among civilian populations. Giving concealed adversaries advantages over U.S. forces would hamper U.S. combat operations and limit the U.S ability to defend itself. j
Convention on the Elimination of All Forms of Discrimination against Women		Would erode core U.S. principles of democratic self-government and individual liberty by legitimating an intrusive role for unaccountable UN monitors in foisting alien values on American society, families, and individuals.k
Convention on the Rights of Persons with Disabilities		Would surrender parental rights, U.S. state laws, and national sovereignty to unelected and unaccountable UN bureaucrats, while authorizing a UN committee to implement the treaty, supervise compliance with it, and impose new recommendations on parties.l
Convention on the Rights of the Child		Would cede national sovereignty, state laws, and parental rights to unelected and unaccountable UN bureaucrats, including an international committee of experts authorized to issue interpretations of treaty commitments binding on U.S. courts and legislatures, as well as to “override” the U.S. Constitution.m
Optional Protocol to the Convention against Torture		Would impose “overly intrusive” inspections on the United States, conflict with constitutional law regarding searches and seizures, and infringe on the rights of individual U.S. states.n
Rome Statute of the International Criminal Court		Would leave the United States vulnerable to politically motivated prosecutions of its citizens and soldiers, limit its ability to defend itself and its allies, and subordinate the U.S. Constitution and domestic courts to an unaccountable tribunal and independent prosecutor.o
D. Global commons
UN Convention on the Law of the Sea		Would undermine “American sovereignty” by transferring “ownership” of the high seas to the UN, allowing global bureaucrats to veto U.S. naval operations, and require U.S. deep-sea mining companies to pay exorbitant royalties to an unaccountable International Seabed Authority.
a. Letter sent to President Obama by a bipartisan group of fifty senators opposed to the Arms Trade Treaty, October 15, 2013, http://kelly.house.gov/sites/kelly.house.gov/files/Kelly%20Member%20Letter%20to%20Obama%20on%20UN%20Arms%20Trade%20Treaty%20FINAL%2010-15-2013.pdf.
b. Rebecca Whitehair and Seth Brugger, “BWC Protocol Talks Collapse in Geneva Following U.S. Withdrawal,” September 1, 2001, Arms Control Association, www.armscontrol.org/act/2001_09/bwcs.
c. “Cluster Munitions,” U.S. Department of State, www.state.gov/t/pm/wra/c25930.htm.
d. America’s Strategic Posture: Final Report of the Congressional Commission on the Strategic Posture of the United States (2009), www.usip.org/strategic-posture-commission/view-the-report.
e. “U.S. Landmine Policy,” September 23, 2014, www.state.gov/r/pa/prs/ps/2014/09/231995.htm.
f. Jay Johnson, Gary Pecquet, and Leon Taylor, “Potential Gains from Trade in Dirty Industries,” Cato Journal 27, no. 3, https://object.cato.org/sites/cato.org/files/serials/files/cato-journal/2007/11/cj27n3-6.pdf; Robert F. Blomquist, “Ratification Resisted: Understanding America’s Response to the Convention on Biological Diversity, 1989–2002,” Golden Gate University Law Review 32, no. 4 (January 2002), http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1844&context=ggulrev.
g. Sense of the Senate Resolution, July 11, 1994, www.gpo.gov/fdsys/pkg/BILLS-103sres239pcs/html/BILLS-103sres239pcs.htm.
h. “S.RES.98—A Resolution Expressing the Sense of the Senate Regarding the Conditions for the United States Becoming a Signatory to Any International Agreement on Greenhouse Gas Emissions under the United Nations Framework Convention for Climate Change,” 105th Congress, July 25, 1997, www.congress.gov/bill/105th-congress/senate-resolution/98.
i. In 2006, Representative Ralph Hall (R-Tex.) expressed concern that the implementing legislation proposed for these conventions (H.R. 4800) would create “troubling and dangerous precedents to set in American law.” Hearing before the Subcommittee on Environment and Hazardous Materials, 109th Congress, March 2, 2006, p. 2, www.gpo.gov/fdsys/pkg/CHRG-109hhrg27145/pdf/CHRG-109hhrg27145.pdf.
j. Ronald Reagan, “Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions,” January 29, 1987, https://reaganlibrary.archives.gov/archives/speeches/1987/012987b.htm; R. Jeffrey Smith, “Bush White House Sought to Soften Treaty on ‘Enforced Disappearances,’” Washington Post, September 8, 2009.
k. John Fonte, congressional testimony on CEDAW before the U.S. Senate, November 18, 2010, www.hudson.org/content/researchattachments/attachment/845/cedaw-senate-testimony-fonte-john-11182010.pdf.
l. Testimony by Jeremy Rabkin on the CRPD, November 21, 2013, www.foreign.senate.gov/imo/media/doc/Rabkin_Testimony.pdf; “Inhofe Praises Senate Rejection of CRPD,” www.inhofe.senate.gov/newsroom/press-releases/inhofe-praises-senate-rejection-of-crpd.
m. Michael P. Farris, “Nannies in Blue Berets: Understanding the UN Convention on the Rights of the Child,” Home School Legal Defense Association, January 2009, www.hslda.org/docs/news/20091120.asp.
n. Human Rights Watch, “United States Ratification of International Human Rights Treaties,” July 24, 2009, www.hrw.org/news/2009/07/24/united-states-ratification-international-human-rights-treaties.
o. H. Concurrent Resolution 265 (2010), www.gpo.gov/fdsys/pkg/BILLS-111hconres265ih/html/BILLS-111hconres265ih.htm.

Environmental treaties also face tough sledding. Although the United States is party to narrow-scope treaties such as the Montreal Protocol on Ozone-Depleting Substances and the Straddling Fish Stocks Convention, it has remained outside more far-reaching arrangements, including the Kyoto Protocol, the Convention on Biological Diversity, the Stockholm Convention on Persistent Organic Pollutants, and the Basel Convention on Hazardous Wastes. In part, this reflects cost-benefit calculations: Kyoto, for instance, would have imposed heavy economic costs. More generally, the U.S. private sector often seeks to convince legislators that U.S. accession to environmental treaties will undercut U.S. business and economic competitiveness. In other cases, the relative strength of U.S. domestic environmental protections gave it fewer obvious incentives to join. But opponents have also argued that environmental treaties, by creating new international authorities to monitor compliance, could empower global bureaucrats to dictate rules for the United States.

The Human Rights Paradox

There is no bigger bugaboo for defenders of American sovereignty than international human rights treaties. This is ironic. Few countries match the U.S. record in protecting human rights at home, promoting them abroad, and shaping international rights conventions. The United States is home to the world’s most dynamic human rights advocacy organizations, and most U.S. sovereigntists are themselves committed to individual liberty and, where possible, the global expansion of human freedom. Historically, the United States helped launch the global human rights revolution in the 1940s—a period punctuated by FDR’s “Four Freedoms” speech (1940), the Atlantic Charter (1941), the UN Charter (1945), the Universal Declaration on Human Rights (1948), and the Genocide Convention (1948).

Thanks in large part to U.S. exertions, international law has come to encompass not simply the rights of states but the rights of individual human beings as possessors of inherent rights and dignity.61 And yet even during the early post–World War II era, Americans debated whether they should ratify formal human rights treaties, insist on voluntary agreements, or “simply oppose [human rights agreements] in their entirety as unacceptable intrusions into sovereign domestic space.” Even today, the United States stands apart from other mature democracies in resisting major human rights treaties. Expressions of American exemptionalism include failing to sign or ratify conventions despite spearheading relevant negotiations, acceding to such treaties only after protracted delays, and conditioning their ratification so heavily as to limit U.S. obligations (“Swiss cheese ratification”).⁶²

The United States is one of only two countries not to have ratified the UN Convention on the Rights of the Child (the other is Somalia) and one of only six not party to the Convention on the Elimination of Discrimination against Women (CEDAW). The United States refuses to accept the jurisdiction of international tribunals (including the ICC) or to allow its citizens to bring suit in either domestic courts or international tribunals for violations of rights codified in international conventions.

When the United States does ratify human rights conventions, it includes extensive, substantive reservations, understandings, and declarations (known as RUDs),⁶³ while also insisting such treaties are non-self-executing. Even so, the United States has often failed to cooperate with UN human rights rapporteurs and committees seeking to assess U.S. domestic conformity with UN standards.⁶⁴

Several factors underpin America’s ambiguous posture on human rights. One is the natural desire of a globally dominant power to avoid external constraints or supervision. The emergence of international human rights law is the most profound legal challenge to state sovereignty since 1945, implying that how governments treat citizens within their own borders is no longer a purely domestic matter. It is understandable that the world’s most powerful nation would resist such scrutiny. Moreover, the costs of human rights treaties are modest but real, requiring parties to adopt uniform domestic standards and open themselves to external scrutiny by treaty bodies. Given robust human rights protections at home, Americans see few obvious incentives to accept such domestic constraints.

Still, as the Princeton scholar Andrew Moravcsik notes, the intensity of U.S. debates over human rights treaties suggests other factors are also at play. They include a distinctive U.S. “rights culture,” America’s perceived national identity and global role, the durability of U.S. political and legal institutions, the many “veto” players in the U.S. political system, and the conservatism of America’s polity and elected leaders.65

First, America’s Founders were heirs to the Enlightenment, and the U.S. conception of human rights bears the imprint of that era. The U.S. Constitution, including the Bill of Rights, focuses on “negative rights,” or eliminating state and other restraints on individual liberties, including freedom of speech, assembly, and faith. This classically liberal approach persists, even as the global rights dialogue shifts toward asserting “positive rights” such as guaranteed access to food, employment, shelter, health, and education. This explains why the United States, although a signatory to the nonbinding Universal Declaration of Human Rights, has never ratified the UN Covenant on Economic, Social and Cultural Rights (CESCR).⁶⁶

Second, American exceptionalism is not easily squared with the diplomatic give-and-take inherent in multilateral negotiations over human rights. If the United States is indeed the world’s leading embodiment of human freedom, it clearly has a lot to teach the world about the appropriate content of international norms. But it has precious little to learn (or borrow) from others. As the CRPD debate reached its zenith, Senator James E. Risch (R-Idaho) explained the stakes: “I will not vote to hand our sovereignty and constitutional protections over to people who are not accountable to U.S. citizens and, in many instances, advance a liberal international agenda.”⁶⁷

American sovereigntists get incensed when international officials presume to sit in judgment of the U.S. legal and judicial system. In April 2012 Navi Pillay, who was then UN high commissioner for human rights, commented on the killing of Trayvon Martin, an unarmed African American teen, by neighborhood watch coordinator George Zimmerman. “Justice must be done for the victim,” Pillay declared. “I will be awaiting an investigation and prosecution and trial and of course reparations for the victims concerned.” To American conservatives like John Kyl, this statement transcended simple hubris from a UN busybody. “Such comments express the desire, and growing power, of a global progressive elite to pierce the shield of U.S. sovereignty and influence the outcomes of the country’s domestic debates.”⁶⁸ Human rights advocacy groups stoke such sovereigntist fears when they incorrectly suggest that the findings of Geneva-based groups of experts, who issue comments on compliance with UN human rights groups, are legally binding. The fact that dictatorial regimes that routinely abuse their citizens can obtain seats on the UN Human Rights Council and other global bodies merely reinforces this resistance to outside scrutiny.

Third, Americans view their political institutions, including domestic human rights standards, as having been vindicated historically. In contrast, democracies with troubled, authoritarian, or totalitarian pasts often try to bind themselves to global human rights regimes as a check against domestic backsliding. Such historical differences also help to explain why the United States protects freedom of speech absolutely, whereas other democracies restrict “hate speech” (or Holocaust denial) to ensure civility.69

Fourth, America’s decentralized system of federal lawmaking complicates U.S. accession to human rights treaties by empowering multiple players to veto new international obligations. Partisan dynamics influence ratification. Most successful human rights treaties have been signed and submitted by Democratic presidents, and no treaty has ever been approved (even with reservations) with fewer than fifty-five Democrats in the Senate.⁷⁰

This history hints at a fifth, ideological factor—namely, a powerful current of U.S. conservatism that regards international human rights treaties as embodying an alien, socialist agenda. Senator Bricker expressed this view in 1951 when he declared that the proposed UN International Covenant on Human Rights “would be more appropriately entitled as a Covenant on Human Slavery or subservience to government,” since it “repudiated the underlying theory of the Bill of Rights—freedom to be let alone.”⁷¹

Similar mistrust persists today among social conservatives who believe human rights treaties portend social engineering and threaten traditional “family values.” As the Republican Party explained in its 2016 platform, “Precisely because we take our country’s treaty obligations seriously, we oppose ratification of international agreements whose long-range implications are ominous or unclear.”⁷²

Taken at face value, this position seems eminently reasonable. Why would anybody support a convention with “ominous and unclear” implications”? What is unreasonable is the alarmist, unfounded rhetoric sovereigntists often use to discredit treaties. The Convention on the Rights of the Child (CRC) is a case in point. The document has few domestic implications. American children already enjoy significant legal protections; the treaty lacks enforcement provisions; and the Senate can include extensive RUDs in any instrument of ratification. Despite these facts and safeguards, a vocal coalition of opponents, including the Family Research Council and the National Center for Home Education, has mobilized to oppose it, describing it as a grave threat to “parental rights” that would permit minors to sue their parents in court, refuse to attend church, and obtain abortions without parental consultation. The CRC, critics allege, “overrides our own Constitution” by “effectively transfer[ring] ultimate authority” over American children to “a committee of 18 experts from other nations, sitting in Geneva,” whose “official interpretations of the treaty … are entitled to binding weight in American courts and legislatures.” None of these claims is true. And yet such statements carry political weight.73

Treaty Gridlock and Its Costs for the United States

The Senate has long been known as the “graveyard of treaties,” but that metaphor was especially apt during the Obama presidency, when the United States ratified only six multilateral treaties. The Senate either rejected or failed to approve six treaties the president personally signed. It also declined to move on the vast majority of the multilateral treaties signed by previous presidents that the White House had included on its “treaty priority list” in 2009, among them CTBT, UNCLOS, CEDAW, the Stockholm Convention on Persistent Organic Pollutants (POPs), the Rotterdam Convention, and conventions addressing labor rights and UN peacekeeping.⁷⁴ At the advent of the Trump administration, forty-four treaties were pending before the Senate.

Both ends of Pennsylvania Avenue have contributed to treaty logjams.⁷⁵ President Obama’s use of Article II treaty powers and his success rate lagged behind those of his post–World War II predecessors. Over eight years, Obama averaged only eight treaty transmittals to the Senate per congressional session, whereas the average for 1949–2008 was 31.6 treaties per session; and his batting average in securing ratification was far lower than that of other modern presidents. The Senate, meanwhile, consented to a smaller fraction of submitted treaties than average, thanks to partisan ideological divides. As Bellinger explained in the New York Times, “an increasing number of Republicans have come to view treaties in general (and especially multilateral ones) as liberal conspiracies to hand over American sovereignty to international authorities.”⁷⁶

American exemptionalism on treaties harms the United States by undercutting U.S. national interests and weakening America’s global stature. Consider UNCLOS. The United States signed the treaty in 1994 but at this writing in 2017 has never ratified it, despite its being endorsed by every living former president, secretary of state and defense, and chairman of the joint chiefs of staff, as well as major industry and environmental organizations. Senate conservatives blocked the treaty, claiming spuriously that it would subject the United States to a supranational legal authority and a massive international tax scheme. In a typically ill-informed statement, Senators James Inhofe and Jim DeMint declared, “This treaty would convey ownership of the oceans to a United Nations agency and give international bureaucrats veto over U.S. naval operations.”77 Both claims have no basis in fact.

What is clear is that remaining outside of the treaty deprives the United States of an effective instrument for extending its sovereignty. As an outsider, the nation cannot participate in the world’s last major territorial partition: namely, the allocation to states parties of hundreds of thousands of square miles in extended exclusive economic zones (EEEZs). It thus forfeits an opportunity to extend its own jurisdiction over vast areas along its Arctic, Atlantic, Gulf, and Pacific Coasts.⁷⁸ As chapter 5 explains in more detail, the UNCLOS experience provides a textbook example of how unfounded fears of sacrificing sovereignty-as-authority and sovereignty-as-autonomy through international law can undermine U.S. interests by diminishing American sovereignty-as-influence.

Second, failure to become party to a multilateral treaty endorsed by the vast majority of other UN member states carries reputational costs, undermining faith in the country’s dedication to the international rule of law and the credibility of its commitments. America’s inability to ratify UNCLOS, after spearheading its negotiation and shaping its provisions to reflect U.S. interests, weakens U.S. defense of an open maritime commons. It also reduces U.S. diplomatic leverage in countering China’s provocative territorial claims in the South China Sea,⁷⁹ as well as Russia’s own controversial claims in the Arctic Ocean. The American domestic debate over UNCLOS underscores the importance of clear thinking about sovereignty trade-offs. In this case, the United States would be wise to yield some absolute freedom of action to support and enforce a stable, open maritime order.

Finally, multilateral treaty gridlock prevents the United States from influencing the terms of major international conventions. In the not-so-distant past, U.S. negotiators often persuaded other countries that conceding to U.S.-desired treaty provisions was the price for Senate passage. As the Senate moves toward blanket rejection of multilateral treaties, such negotiating tactics may no longer work. Failure to ratify also prevents the United States from influencing committees typically established to interpret and monitor compliance with treaties, from the Convention on Biological Diversity to CEDAW. “Treaty-making … is an expression of sovereignty, not a threat to it,” the legal scholar David Kaye explains. But “by excluding itself from the process,” the United States becomes a mere bystander, forfeiting the chance “to influence global problem solving.”⁸⁰

The Rise of Treaty Workarounds

Faced with treaty gridlock, U.S. administrations have tried to achieve similar results through executive agreements. In the nation’s first half century, treaties outnumbered executive agreements 60 to 27. From 1939 to 2012, the nation concluded a total of 17,300 executive agreements but only 1,100 treaties (both bilateral and multilateral). While multilateral agreements are still more likely than bilateral ones to take the form of formal treaties, multilateral executive agreements now outnumber multilateral treaties. Although some legal academics applaud this trend as superior to the treaty clause route to international agreements, it has created consternation among sovereigntists.81

Sovereigntists contend that such arrangements run counter to the intentions of the Founders, allowing activist presidents to usurp the Senate’s treaty-making powers and make imprudent international commitments that would be beyond their reach under the two-thirds supermajority provision. The Founders understood, Bolton and Yoo write, that “America needs to maintain its sovereignty and autonomy, not to subordinate its policies, foreign or domestic, to international control.” Consistent with this position, Republicans declared in their 2016 party platform that any executive agreements reached during the Obama years “must be deemed null and void as mere expressions of the current president’s preferences.”⁸²

Beyond making greater use of executive agreements, recent U.S. administrations have resorted to “stealth multilateralism,” as Kaye terms it, relying on flexible and informal tools to achieve results consistent with unratified treaties. Thus although the Senate rejected the CTBT in 1999, Presidents George W. Bush and Barack Obama both quietly funded a global system of monitoring stations, envisioned in that treaty, to analyze evidence of nuclear tests.

More generally, treaty gridlock has accelerated America’s turn toward à la carte forms of cooperation. As the conclusion of this book discusses at greater length, this approach substitutes informal arrangements and “minilateral” coalitions for binding conventions and formal international organizations. While such ad hoc-ism introduces speed and flexibility, it also lacks the binding force of law, making it harder for the United States and others to make credible commitments, verify compliance, and punish violators.⁸³ Nevertheless, in some circumstances it can make sense, allowing the United States to strike the best balance among the three goals of protecting U.S. sovereign authorities, preserving sovereign autonomy, and exercising sovereign influence.

Strategies to Limit the Scope of Treaty Obligations

Although opting out of treaties is one way to protect sovereign rights, the preferred U.S. approach is to insist on special privileges and limit U.S. obligations. Examples of American prerogatives include the UN Charter, which grants the United States permanent membership and veto power within the Security Council; the NPT, which accords elevated status to the United States and other recognized nuclear weapons states; and the executive boards of the IMF and the World Bank, which employ a system of weighted voting that favors large countries, not least the United States.

A second strategy is for the United States to make treaty signature, ratification, and accession contingent on RUDs that limit U.S. obligations. In signing the Convention against Torture, for instance, the United States insisted that it would interpret the convention’s prohibition on “cruel and degrading treatment” according to the Fifth, Eighth, and Fourteenth Amendments to the Constitution. Other countries also insist on RUDs, of course. But the unmatched frequency and scope of U.S. caveats elicits frequent criticism from close U.S. allies and partners, including Portugal and Sweden, which complain that U.S. practice “undermines basic principles of international law.”84 To date, U.S. administrations have calculated that taking this reputational hit is an acceptable price for protecting U.S. sovereignty.

A third approach to protecting U.S. sovereignty is to expand the doctrine of non-self-execution. This means that international agreements produce no domestic legal effects without separate congressional implementing legislation giving U.S. agencies authority to meet international legal obligations, or allowing private parties to make them enforceable in court. Legal conservatives favor a “general presumption of non-self-execution,” arguing that it would reinforce U.S. popular sovereignty. Progressive legal scholars disagree, noting that the Supremacy Clause designates treaties (alongside the Constitution and Acts of Congress) as “the supreme law of the land.” They cite in their defense Alexander Hamilton, who wrote that a blanket doctrine of non-self-execution would render hollow the treaty power authorized in the Constitution.⁸⁵

In sum, the United States has a well-stocked arsenal of weapons to reduce the constraints that multilateral treaties place on U.S. sovereignty, whether conceived as constitutional authority or policy autonomy.

REFERENCES TO FOREIGN LAW BY U.S. COURTS

Among the most contentious issues in U.S. jurisprudence, as measured by the political attention it generates, is whether U.S. courts, including the Supreme Court, should consider international legal sources and foreign judicial opinions in interpreting the U.S. Constitution and U.S. domestic statutes. References to foreign law by U.S. courts are nothing new. As long ago as 1815 the Supreme Court noted that the “decisions of the Courts, of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect.” Historically, U.S. courts have periodically looked to foreign jurisprudence for “persuasive value,” including a better understanding of how foreign governments interpret international law and treaties. But foreign law has never been treated as binding precedent.86

More contentious is whether domestic U.S. courts should be free to refer more extensively to foreign jurisprudence in interpreting U.S. statutes and the U.S. Constitution. Conservatives usually oppose this practice, arguing that allowing judges to decide what international laws should be “domesticated to bind Americans at home” violates the separation of powers by allowing judges to appropriate an inherent lawmaking function. The Republican Party adopted this stance at its 2016 convention. “The legitimate powers of government are rooted in the consent of the American people,” the GOP platform declared. “Judicial activism that includes reliance on foreign law or unratified treaties undermines American sovereignty.”⁸⁷

Whether the Supreme Court should make use of foreign jurisprudence has divided justices themselves. The late Antonin Scalia, consistent with his “originalist” position, regarded foreign law as irrelevant in interpreting U.S. constitutional law, inasmuch as “we don’t have the same moral and legal framework as the rest of the world, and never have.” He also believed that progressive judges invoke foreign jurisprudence only “selectively”—namely, when they cannot cite existing American practice or statutes that conform to their own biases. The invocation of foreign materials thus “invites manipulation.”⁸⁸

Democratic sovereignty lies at the heart of this conservative critique. Even if one accepts the notion of an “evolving Constitution” (which Scalia did not), elite justices have no standing as arbiters of “what the moral values of America should be on all sorts of issues, such as penology, the death penalty, abortion, whatever.” If the American people change their positions on such matters, it is up to their representatives in Congress, not an unelected judiciary, to legislate those shifts.⁸⁹

In contrast to Scalia’s originalism, Associate Justice Stephen Breyer advocates a more flexible stance: “Law emerges from a complex interactive democratic process,” he observes, and it is impossible to insulate this “conversation” from global influences. Although “the decisions of foreign courts do not bind American courts,” U.S. judges can and should learn how their counterparts abroad apply their own legal texts to grapple with legal problems similar to those the United States confronts.90

Debates over citing foreign law revolve around two concerns.⁹¹ The first is about the relevance of international materials in U.S. judicial reasoning. Liberals argue that awareness of foreign jurisprudence makes for more informed U.S. judicial decisions. Conservatives retort that divergent legal traditions and sociopolitical contexts make it easy to misinterpret and misuse foreign opinions. Even worse, judges may cherry-pick among foreign sources to reinforce preferred positions.

The second, more profound debate is about how constitutional lawmaking should occur in a sovereign democracy. Conservatives worry that U.S. judges who cite opinions from other nations’ courts or from international tribunals create new U.S. law that lacks democratic provenance and accountability. In this view, the legitimacy of U.S. constitutional (and other domestic) law depends on whether it emerges from and remains embedded in the will of the American people, as expressed through their elected representatives. By using foreign law to interpret domestic law, the judicial branch gains unwarranted legislative power, allowing it to impose its own social and moral views on American society.⁹²

These debates expose divergent ideological preferences: Conservatives fear (while liberals hope) that comparative analysis will favor progressive interpretations of the U.S. Constitution on topics such as the death penalty, affirmative action, abortion, and gay rights. But the ferocity of conservative resistance suggests something even more fundamental is at stake. After all, no sitting liberal justice—or even prominent judge or legal scholar—has proposed subordinating U.S. constitutional traditions and their normative authority to a global legal consensus.⁹³ So why such antipathy to the suggestion that U.S. judges might learn from foreign peers about how to think about certain common legal situations—and the potential consequences of alternative decisions?

The source of conservative disquiet is worry that invoking foreign law will adulterate a coherent body of U.S. constitutional reasoning that has evolved since 1789. The assumption here is that there exists an unbroken, largely self-contained U.S. discourse on constitutional law. Introducing foreign legal materials into U.S. court cases would, in this view, threaten the integrity of America’s constitutional tradition and expose it to alien principles, norms, and values. It could undermine the Constitution’s critical role, within America’s heterogeneous society, of providing a neutral procedural framework in which to reach decisions on controversial matters.94

Such fears are understandable but alarmist. The U.S. constitutional tradition can retain its coherence and identity while opening itself to foreign influences. As a practical matter, U.S. judges are increasingly connected with counterparts abroad, as members of a common judicial enterprise. Some of the most pressing and complex legal challenges on today’s Supreme Court’s docket involve transnational issues, reflecting the globalization of commercial exchanges. Judges regularly confront cases (such as bankruptcies of multinational corporations) that cannot be decided without an understanding of foreign legal systems. Meanwhile, at a personal level, judges are now regularly exposed to international jurisprudence. These experiences and insights cannot but affect their thinking.

The wisest course is for judges to honestly acknowledge these influences, open themselves to comparative analysis, and give “weight” to any “visible international consensus.” Associate Justice Sandra Day O’Connor took this position in a celebrated 2002 address to the American Society of International Law. “Although international law and the law of other nations are rarely binding upon our decisions in US courts,” she reasoned, the “conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”⁹⁵

Determining the relationship between foreign law and U.S. constitutional jurisprudence is becoming more pressing as the dynamic center of international law shifts from the United States to other countries. During the twentieth century, the international flow of legal discourse tended to be one-way: from the United States to the rest of the world. Today the traffic flows in multiple directions, increasing opportunities for cross-fertilization or (in the view of purists) cross-contamination. Foreign judges and legal scholars look for guidance and insights not just from U.S. counterparts but from colleagues in Canada, South Africa, and elsewhere. Indeed, some countries’ constitutions, including those of Germany and South Africa, explicitly take international or foreign law into account. By contrast, the U.S. Constitution recognizes no legal authorities outside those of the United States itself.⁹⁶

The Supreme Court, once a historic guide to other nations, is gradually losing its pole position as the primary international influence on the high courts of foreign nations, and its reluctance to engage its foreign counterparts simply accelerates this trend. For as Associate Justice Ruth Bader Ginsburg asked in 2008, “If we don’t cite them, why should they look to us?”⁹⁷ The lesson here is straightforward and can be expressed in terms of the “sovereignty triangle” presented in chapter 1: Paying too much attention to sovereignty-as-authority can jeopardize U.S. sovereignty-as-influence—in this case, a capacity to shape the global framework of norms and rules in which all countries operate.

The challenge is thus for U.S. courts to open themselves to comparative legal analysis without jeopardizing the integrity of the U.S. constitutional system. This is not as implausible as it sounds. Rather than convergence, exposure to foreign law could even encourage “informed divergence”—a reassertion of U.S. legal traditions, based on distinctive historical, cultural, political, economic, social, religious, or other grounds.⁹⁸

Whether the Supreme Court should consider foreign materials is not a new debate. Six decades ago the court invoked international legal opinion in Trop v. Dulles (1958), ruling that it was cruel and unusual punishment to deprive an army deserter of American citizenship. Writing for the plurality, Chief Justice Earl Warren observed that “civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as a punishment for crime.”⁹⁹ Today most U.S. legal scholars agree that U.S. judges should be able to refer to foreign cases in their constitutional jurisprudence—for instance, to illustrate contrasts or make factual propositions. At the same time, scholars overwhelmingly reject allowing foreign cases to be “outcome determinative.” And they remain divided on whether judges may, as O’Connor suggested, cite foreign law as a “persuasive” basis for their decisions.¹⁰⁰

Conservatives have long argued that invoking foreign sources for more than banal purposes is an attack on U.S. constitutional sovereignty. In Stanford v. Kentucky (1989), for instance, Scalia dismissed as irrelevant Associate Justice William Brennan’s observation that the world “overwhelmingly disapproved” of the juvenile death penalty. “We emphasize,” Scalia rejoined, “that it is American conceptions of decency that are dispositive.” A decade later Associate Justice Clarence Thomas took to the parapet in Knight v. Florida (1999), launching volleys at Associate Justice Stephen Breyer for invoking foreign jurisprudence in arguing that a twenty-five-year delay in carrying out capital punishment constituted “cruel and unusual” punishment. Surely, Thomas wrote, Breyer would have no need to invoke support from “the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council,” had he been able to find support from either “the American Constitutional tradition” or “this Court’s precedent.”¹⁰¹

Four years later the court’s conservative and liberal wings clashed again in Lawrence v. Texas (2003), which struck down a Texas antisodomy law for violating the Fourteenth Amendment’s due process clause. That ruling overturned an earlier decision, Bowers v. Hardwick (1986), that had depicted sodomy as contrary to “Western” and “Judeo-Christian” civilization. Writing for the majority in Lawrence, Kennedy marshalled rulings from the European Court of Human Rights, as well as other foreign courts, to bolster his argument that consensual adult sexual relations were constitutionally protected. He added for good measure that “the evolution of other countries’ understanding of human freedom” could inform America’s own. Scalia disparaged these foreign materials as “meaningless dicta.” The relevant question was whether any such right was “deeply rooted in this Nation’s history and traditions.”102

The most full-throated battle over the place of foreign law in Supreme Court deliberations remains Roper v. Simmons (2005), the case introduced at the start of this chapter. Among the intriguing aspects of that case was O’Connor’s separate, dissenting opinion. Although she determined that a genuine national consensus against the death penalty did not yet exist, “Nevertheless, I disagree with Justice Scalia’s contention, that foreign and international law have no place in our Eighth Amendment jurisprudence.” O’Connor continued: “Obviously, American law is distinctive in many respects.… But this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.”¹⁰³

The question of whether U.S. judges should consider foreign jurisprudence in interpreting the Constitution has not been limited to dueling Supreme Court justices and legal scholars. On May 3, 2007, Representative Tom Feeney (R-Fla.) introduced a “Sense of the House” resolution cosponsored by forty-eight other representatives. “Whereas inappropriate reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States, the separation of powers and the President’s and the Senate’s treaty-making authority,” the legislators declared, no such materials should be employed by U.S. courts unless consistent with the “original meaning” of the Constitution.¹⁰⁴

The aftermath of Roper v. Simmons highlights one of the chief concerns of sovereignty-minded conservatives: the worry that once foreign law is cited in court decisions, it may continue exerting an influence in less obvious ways. In Roper, the court relied on the fact that most U.S. states did not put minors to death for capital crimes, using the practice of foreign nations only in a complementary manner, to help define “cruel and unusual.” But only five years later, in Graham v. Sullivan (2010), the court used foreign law in a more integral manner, to supplement the ruling where no national consensus existed regarding life sentences for minors. And by the time the court ruled in Miller v. Alabama (2012), foreign law was no longer cited, because precedents from the two previous rulings in Roper and Graham (both based in part on foreign law) provided sufficient justification. Such a progression demonstrates, for better or worse, how foreign law may continue to influence U.S. law, even when the connection no longer seems apparent.105

This is likely to be true only at the margins, however. As Associate Justice Breyer concludes his book The Court and the World, “Those who hold a negative view of cross-referencing at best overstate their concerns.” There is little danger that reference to “foreign legal concepts and values” will “corrupt” American legal traditions. At the same time, consideration of foreign law and practices is an indispensable dimension of the world that U.S. judges inhabit and the sort of legal questions that come before them—whether in interpreting treaty obligations, settling investment disputes, or considering the foreign reach of U.S. regulatory and other statutes. “At most, cross-referencing will speed the development of ‘clusters’ or ‘pockets’ of legally like-minded nations whose judges learn things from one another, either as a general matter or in particular areas of law, such as security, commerce, or the environment,” Breyer concludes. “But these groupings need not be formal, and their members can insist on the conformity of any legal rule with their own nation’s basic legal values.”¹⁰⁶ In short, the integrity of the U.S. constitutional tradition remains secure.

FEDERALISM UNDER ATTACK?

Finally, a special category of U.S. sovereignty concerns pertains to the impact of international law on the prerogatives reserved to the fifty U.S. states under the Constitution—as opposed to the authority of the United States as a union. The issue here is federalism. As Associate Justice O’Connor argued in New York v. the United States (1992), the Constitution “leaves to the several States a residual and inviolable sovereignty” (quoting Federalist 39). Defenders of states’ rights routinely depict international treaty obligations, in particular, as infringing on the Tenth Amendment, which declares that the powers not explicitly delegated to the federal government are reserved to the individual U.S. states and the American people.¹⁰⁷

As chapter 2 explained, the debate over the scope of states’ rights is as old as the Constitution. For the first several decades after its ratification, the former colonies constituting the new American “states-union” vied with the federal government for supremacy in many arenas. To the Frenchman Alexis de Tocqueville, writing in 1835, it appeared that “there are twenty-four small sovereign nations” that constituted the United States.¹⁰⁸ Although the Civil War tilted the balance strongly toward the federal government, state governments retain significant legal authorities in and jurisdiction over certain public spheres, from law enforcement to education, family law, and private commercial law. These prerogatives are under increasing strain, however, as globalization creates pressures to expand intergovernmental cooperation on behind-the-border issues, including in regulatory arenas traditionally under the purview of U.S. states.

The potential collision between states’ rights and U.S. treaty obligations was on display in Idaho in April 2015, when the Judiciary, Rules, and Administration Committee of the State Assembly rejected a state bill pertaining to child support. The bill’s offending provision, according to the committee’s Republican majority, was its link to an obscure multilateral treaty that requires all national parties to enforce child support decisions made in foreign courts. Under the terms of U.S. ratification, however, all fifty U.S. states had to approve the mechanism of the treaty for it to take effect, and Idaho was now opposing the measure.109

On the surface, the treaty was entirely unobjectionable. The product of five years of international negotiations, it was intended to track down delinquent parents around the world. The United States, under President George W. Bush, had been the first country to sign it in 2007, and the U.S. Senate had approved it unanimously. Moreover, Idaho’s failure to approve the bill jeopardized tens of millions of dollars in federal funds to support the state’s child welfare system. Still, GOP legislators balked, arguing without merit that the legislation could impose on Idaho decisions made by foreign tribunals, including those based on shariah, the Islamic legal code. As Republican state representative Kathleen Sims explained, “It’s a sovereignty issue.” She simply opposed “involving foreign nations in our laws.” The bill eventually passed, but only after Republican governor Butch Otter called grumpy legislators back for a special session.¹¹⁰

As global integration proceeds, international legal obligations are more likely to bump up against the Tenth Amendment. Among the trickiest questions that federalism raises is whether the executive branch and Congress may enact legislation implementing treaty obligations that infringe on areas of traditional state competence. For nearly a century the guiding precedent has been Missouri v. Holland (1920). That Supreme Court ruling upheld the constitutionality of the Migratory Bird Treaty (1918) between the United States and the United Kingdom, the enforcement of which Missouri had sought to block on Tenth Amendment grounds. Over time, Missouri has become increasingly controversial, with legal advocates for states’ rights under the U.S. Constitution arguing that it should be overturned.¹¹¹

The more recent case of Medellin v. Texas (2008) illuminates the complex relationship between federalism and international law. Medellin originated in an earlier complaint that Mexico had lodged against the United States before the International Court of Justice (ICJ). In that case, Avena (2005), Mexico accused the United States of violating the Optional Protocol to the Vienna Convention on Consular Relations (VCCR) by failing to inform fifty-one detained Mexican nationals of their right to communicate with their consulates. After the ICJ ruled in Mexico’s favor, President George W. Bush announced that the United States would “discharge its international obligations … by having State courts give effect to the decision.” However, when detainee José Medellin appealed to overturn his conviction in a capital murder case, the Court of Criminals Appeals in Texas, where he had been arrested, refused to hear the case because he had not raised his claim in a timely manner.112

The Supreme Court then heard Medellin to answer two questions: First, was the ICJ’s Avena decision directly enforceable as domestic law in state courts? Second, did the president’s memorandum require states to comply with Avena regardless of state procedural default rules? In a 6–3 decision, the Court answered “no” on both counts. It declared the Optional Protocol to the VCCR to be non-self-executing, meaning that it required separate congressional legislation to make ICJ judgments directly enforceable. And it ruled that the president had exceeded his exclusive constitutional powers. In sum, the Court conceded that Texas had violated international law, but also that the executive branch could not compel the state’s compliance with an international obligation. Having lost his appeal, Medellin was executed in Texas.

At the heart of the court’s decision was the issue of sovereignty-as-authority. As Noah Feldman explains: “By its own lights, the Supreme Court in the Medellin case was reading the Constitution to guarantee us control over our destiny. This meant turning away from international law in a systematic and profound sense. The cost to the United States might be real, but the court considered it justified by the preservation of our democratic sovereignty.”¹¹³ The State Department has tried to comply with Avena, but no relevant legislation has been passed.

More recently, the Tenth Amendment’s constraints on treaty-making emerged in Bond v. United States (2014). The case arose when Carol Anne Bond, who had tried to poison an acquaintance, was charged with violating the Chemical Weapons Act (CWA), a domestic statute implementing U.S. obligations under the CWC. As in Medellin, a core question in Bond was whether the president and Congress, in acceding to a treaty, had the authority to implement domestic legislation required to comply with it, when the sphere in question was one otherwise reserved for the fifty U.S. states. Bond’s counsel, meanwhile, argued that the defendant should have been charged with a criminal offense under state rather than federal law. All nine Supreme Court justices sided with the plaintiff, reasoning that Bond’s local poisoning did not fall within the CWA’s scope. Separately, Justices Samuel Alito, Scalia, and Thomas all agreed that the Holland precedent should be overturned.114

Together, Medellin and Bond caused a commotion in legal circles, since they indicated a presumption against self-executing treaties—potentially calling into question the enforceability of up to seventy existing conventions.¹¹⁵ Many conservatives depicted Medellin as a victory for the sovereignty of the fifty U.S. states over the federal government and international law. One was Senator Ted Cruz (R-Tex.), who as solicitor general of Texas had argued the Medellin case before the Supreme Court. Writing in the Harvard Law Review in 2014, Cruz concluded: “The President, even with Senate acquiescence, has no authority to make a treaty with a foreign nation that gives away any portion of the sovereignty reserved to the states.”¹¹⁶ Medellin demonstrates just how complicated it can be to implement international obligations in a federal system that reserves power to the states. And were Holland to be overturned, the United States would be even more limited in its ability to enforce treaties it has ratified, reducing its credibility as a treaty partner.

In their provocative book Taming Globalization, Julian Ku and John Yoo propose that individual U.S. state governments should be granted a greater role in “interpreting, incorporating, and implementing international legal norms.” The authors concede that this “radical proposal” could create inconsistency in the U.S. approach to international law. But it would be worse, they say, to override established principles of federalism. Their recommendation, however, is an invitation to legal anarchy, since it would allow separate U.S. states to determine whether they will implement U.S. treaty obligations. In their quest to defend principles of federalism, they offer a remedy that runs athwart of the popular sovereignty of the American people, conceived as a union, and the nation’s ability to make credible international commitments.¹¹⁷

CONCLUSION

As the preceding pages testify, the “sovereigntist” approach to international law seeks to protect the United States from threats that are largely imaginary and from dangers against which it is well insulated. Contrary to the warnings of conservative legal scholars, the United States is in little danger of subordinating its constitutional authorities to ambitious supranational bodies, to expanding customary law, to unaccountable networks and freelancing NGOs, to vaguely worded multilateral treaties, or to foreign jurisprudence.

Sovereigntist warnings also run counter to U.S. long-term interests. This is true in at least two senses. First, the sovereigntist approach reinforces a split personality—and to foreign eyes and ears, a hypocritical U.S. approach—toward international law, whereby the United States aspires to be both a rule maker and exempt from those same rules. Whatever its past value, America’s “exemptionalism” toward international law and treaties is no longer prudent or sustainable. Even if other states tolerate such exemptionalism, they are likely to begin emulating U.S. “cherry-picking” strategies themselves.

The second point is more fundamental. In an age of globalization, the test of sovereignty is no longer the power to be left alone, with pristine authority and unencumbered autonomy. Rather, as the international lawyers Abram and Antonia Chayes note, it is measured by the degree of “connection to the rest of the world and the political ability to be an actor within it,” capable of exercising influence over others and one’s destiny. In a world of interdependence and shared transnational challenges, true sovereignty resides not in the pursuit of absolute independence and freedom of action, but in the ability of states to operate within a “tightly woven fabric of international agreements, organizations, and institutions that shape their relations with one another and penetrate deeply into their international economics and politics.”118

The “sovereigntist” case suggests that the United States benefits from a hierarchical, often unilateral approach to international law. In truth, the United States is more likely to achieve its aims, control its fate, and legitimate its power and purposes by adopting a more egalitarian approach to the global legal order. As a sovereign people, of course, Americans have the inherent democratic right, should they so choose, of trying to seclude themselves from international legal trends. But both they and their elected representatives should do so with their eyes open, aware of the relative balance of costs and benefits in making this trade-off.