Don’t Fence Me In
The Use of Force, Arms Control, and U.S. National Security
Senator John Kerry (D.-Mass.) stood stiffly, but his condemnation of President George W. Bush was forthright. It was not simply that the Iraq invasion had been based on a false premise—that Saddam Hussein possessed weapons of mass destruction. It was that Bush had rushed to war without securing international support. Yes, there were times when a “preemptive strike” might be warranted, Kerry told Jim Lehrer, who was moderating the first presidential debate in Coral Gables, Florida, on September 30, 2004. “But if and when you do it, Jim, you have to do it in a way that passes the test, that passes the global test … and you can prove to the world that you did it for legitimate reasons.”1
Kerry’s choice of words would haunt him for the remainder of the campaign. Bush spotted the gaffe immediately. “I’m not exactly sure what you mean, ‘passes the global test,’ you take preemptive action if you pass a global test,” he wondered aloud. “My attitude is you take preemptive action in order to protect the American people, that you act in order to make this country secure.” Under his watch, the president implied, the United States would never ask for a permission slip from the United Nations to defend its vital national interests.2
Kerry walked back his answer in the ensuing days. “I will never cede America’s security to any institution or any other country,” Kerry reassured a New Hampshire audience. “No one gets a veto over our security. No one.” But the damage was done. Kerry had played into the Republican narrative that Democrats were squishy on national security—handing the Bush campaign a cudgel with which to beat him. Conservative media outlets pilloried Kerry as an out-of-touch internationalist willing to subordinate sovereign decisions to international bodies unaccountable to U.S. citizens and at odds with American interests and values.3
Bush pressed the attack at their second, town hall–style debate at Washington University in St. Louis, on October 8. “My opponent said that America must pass a global test before we use force to protect ourselves,” he observed incredulously. “That’s the kind of mindset that said, ‘Let’s keep it at the United Nations and hope things go well.’ ”4 Bush’s assault distracted attention from other issues on which Kerry had hoped the public would focus—namely, the manipulation of intelligence about Iraqi WMD, the chaotic aftermath of the intervention, and the weakened U.S. diplomatic position. Within a month Bush had won reelection.
Nearly eleven years later, in the summer of 2015, another U.S. president, Barack Obama, perceived that a deal was within reach to dismantle Iran’s nuclear weapons program. After years of negotiations, the permanent members of the UN Security Council (UNSC), along with the European Union and Germany, had secured the Islamic Republic’s agreement to a Joint Comprehensive Plan of Action (JCPOA). The president’s biggest headache was no longer in Tehran but in Washington, where skeptical legislators hoped to block the deal. To thwart them, Obama went international, engineering the UNSC’s passage of Resolution 2231, which endorsed the JCPOA just a week after the agreement was struck.
The president’s move outraged conservatives. “The President has maneuvered to box [U.S. legislators] in by having the United Nations approve it first,” the editors of the Wall Street Journal seethed. “Mr. Obama deliberately structured his Iran negotiations to make Congress a secondary party to the UN.”5 The president had already sidestepped the Senate’s advice and consent by fashioning the JCPOA as an executive agreement. Now he could depict any congressional obstruction as pitting the United States against the world.
But what really offended the Journal was Obama’s riding roughshod over U.S. sovereignty. “The bigger issue here is self-government. The U.S. Constitution gives presidents enormous clout on foreign policy.… But Mr. Obama doesn’t have authority to let the United Nations dictate to America’s elected representatives.” Over at Investor’s Business Daily, the editorial verdict was the same. “Sovereignty: Few constitutional scholars thought it possible for a president to give away unilaterally American representative government to an international body. The United Nations’ Iran vote just did.”6
At the root of both controversies—Kerry’s “global test” and Obama’s UN resolution—was the idea that a U.S. president would turn to an international body to legitimate, shape, or even determine vital U.S. national security decisions. The very notion that the United States might place its faith in collective security, elevate international over domestic authorities, or allow itself to be constrained by outside forces contradicted traditional U.S. conceptions of self-reliance, constitutional independence, and freedom of action.
Such concerns are hardly new, of course. During the fight over the League of Nations, William Jennings Bryan, Wilson’s former secretary of state, worried that the Covenant might portend “the surrender of the right of each League nation to control its own military and naval policy.” Bryan declared that “no nation, however small, could for a moment consider such an abandonment of sovereignty.”7 For the past century Americans have debated how much sovereign autonomy—or even authority—to exchange for the potential gains of multilateral security cooperation. This dilemma becomes ever more acute as American security and that of other nations grow increasingly interdependent.
Early in its history, the republic could try to quarantine itself from global “bads,” confident that what happened in the world outside would stay there—as they now say of Las Vegas.8 No longer. Revolutions in telecommunications, trade, and transport connect distant lands more closely every day. New networks of malevolent nonstate actors, with potential access to technologies of mass destruction, accentuate global risks. Today, terrorists bent on violent jihad can board commercial airliners. Tomorrow, smugglers might conceal a radiological or even nuclear device in a shipping container bound for a U.S. port. The contemporary world looks less like Vegas, in other words, and the United States now seems more like Rome, to which all roads lead.
Navigating and securing this interconnected world raises quandaries for the United States, accentuating long-standing dilemmas about how to prioritize among U.S. sovereignty-as-authority, sovereignty-as-autonomy, and sovereignty-as-influence. For as much as Americans might yearn for all three simultaneously, the current global threat environment does not always permit it.
On the one hand, the rising number and growing severity of transnational threats creates incentives for the United States to cooperate with others in negotiating new rules of the road and standards of behavior, as well as mechanisms to coordinate action. In a world of security interdependence, purely unilateral and even bilateral efforts are often inadequate, as well as unsustainable. To exert its sovereignty-as-influence—in this case, to advance its national security—the United States must be more open to multilateralism.
On the other hand, the United States retains an obvious interest, when it comes to such pivotal security choices, in preserving both its sovereignty-as-authority and its sovereignty-as-autonomy: It wants to be the final judge and jury in these grave decisions, and it wants to keep as much freedom of action as it can, particularly given its many global responsibilities.
This quandary is front and center in several ongoing U.S. policy debates, which are the subject of this chapter. To begin with, what authority should the United States grant the UNSC when it comes to legitimating America’s use of force? Second, should the United States be prepared to act alone to put an end to rogue regimes that sponsor terrorism, pursue WMD, or commit atrocities? Third, under what circumstances, if any, should the United States allow its soldiers to serve under UN command in peace operations? Fourth, should the United States support intrusive international arms control regimes, even if those include stringent provisions for monitoring and verification of U.S. policies, capabilities, and facilities? Fifth, what multilateral commitments and constraints should the United States accept to secure the “global commons”—including the oceans, outer space, and cyberspace? Finally, when it does pursue multilateral security cooperation, what balance should the United States strike between formal collective security (via the UN), collective defense (especially through NATO), and ad hoc coalitions of the willing?
A long-standing justification for defending U.S. sovereign prerogatives in national security affairs is that world politics is ultimately a self-help system. When the chips are down, no country can count on international law or international organizations, much less an illusory “international community,” to come to its defense.9 The only reliable protection lies in amassing lots of power and pursuing national interests ruthlessly, while retaining complete sovereign authority over U.S. capabilities and maximum freedom of action (or sovereign autonomy) in using them.
As a presidential candidate, Donald J. Trump embraced his own hypersovereigntist logic, enunciating a U.S. national security vision that not only dismissed the United Nations but also belittled the transatlantic alliance and other U.S. defense pacts. Trump derided NATO as “obsolete” and depicted European and Asian allies as freeloaders on U.S. security guarantees and military might. He suggested that unless allies ponied up money and troops, the United States should be prepared to walk away, reneging on its treaty commitments. Trump’s transactional approach—which continued after his election—reduced alliances to a protection racket, implying that the U.S. goal was to secure the best possible bilateral deal with each ally.10
For a professional dealmaker like Trump, such a hardboiled approach has an obvious appeal. But in its most dogmatic guise, the self-help doctrine is hardly realistic, for it fails to see the world as it is or U.S. options as they are. Today’s transnational threats—whether terrorism, nuclear proliferation, or pandemic disease—seldom lend themselves to purely unilateral solutions. Self-reliance may sound noble, but it is often futile, posing an unenviable choice of doing everything oneself, at exorbitant cost and with uncertain results, or doing nothing at all. The image of Uncle Sam as Lone Ranger also ignores just how much the United States already relies on others to promote its own security.
Consider the “global war on terrorism” since 9/11. Yes, the initial, dramatic U.S. successes in Afghanistan, including toppling the Taliban and ejecting al Qaeda, were accomplished primarily through U.S. force of arms, as the United States insisted on complete liberty of action. But that phase was short-lived. The subsequent U.S. counterterror campaign was overwhelmingly multilateral, involving scores of governments and international institutions working to clamp down on illicit financing, expose terror cells, interdict foreign fighters, lock down WMD, and combat violent extremism. Drone strikes and commando raids may generate headlines, but as Bruce Jentleson notes, it is on “lower-profile fronts such as intelligence sharing, border security, economic sanctions, and law enforcement” that the struggle will be won or lost. In these endeavors, “The freedom of action given up by acting multilaterally tends to be outweighed by the capacity to achieve shared objectives.”11
As interdependence deepens, incentives for multilateral security cooperation will only grow. In terms of the “sovereignty triangle,” the United States will need to move from autonomy toward influence, exchanging some (notional) freedom of action for increased sway over outcomes that enhance its security. Before choosing to trade freedom of action for influence, of course, U.S. officials must be confident that the anticipated benefits—for example, increased burden sharing, reciprocal obligations, and greater legitimacy for U.S. purposes—will outweigh any sacrifices, including constraints on U.S. behavior.
At the same time, the United States cannot afford to place all of its trust in collective security through the UN. While the UN can ameliorate many threats—and retains unparalleled international legitimacy—it has never lived up to the 1945 dreams of its architects and remains a fragile and incomplete foundation for world order. Meanwhile the United States, for all its own challenges, remains the single most important determinant of international peace and regional stability. The task for U.S. elected leaders and policymakers is to reconcile these two parallel security orders: the world of formal multilateral organizations, grounded in the UN Charter, and the U.S.-centered framework of alliances and less formal partnerships, based on American power and shared interests and ideals.12
Today, the most relevant national security debate is not over going it alone or with others but over the merits of alternative forms of multilateralism. Here there is room for creative thinking. The United States needs to balance its reliance on standing, formal international organizations like the United Nations, narrower alliances like NATO, and flexible, purpose-built “minilateral” coalitions of the capable, interested, and like-minded.13
PASSING THE “GLOBAL TEST”? THE UN CHARTER AND THE USE OF FORCE
As Senator Kerry learned to his dismay in 2004, few sovereignty debates are as sensitive as those pertaining to military force, where the potential collision between international authority and national authority is real. The central question is: Should the United States be required to obtain Security Council approval before resorting to armed force? As a legal matter, the answer is yes. With the sole exception of self-defense (Article 51), UN member states may employ such coercion only if the Council authorizes it under Chapter 7 of the UN Charter. Otherwise, military action is illegal, regardless of whether its defenders argue that it is “legitimate” (as many did in the Kosovo intervention).
Those, at any rate, are the formal rules. Other than chastity vows, it is hard to think of another injunction so commonly flouted. The United States, certainly, has never accepted these Charter constraints as the final word. Since World War II, the United States has used significant military force on at least twenty occasions, not including covert action (for example, in Guatemala and Nicaragua) or material support to friendly governments (such as El Salvador) or rebel forces (such as Angola’s). In fewer than half of those cases did the United States obtain prior, explicit UNSC authorization. The most prominent case of nonauthorization is the decade-long U.S. involvement in the Vietnam War.14
Since the end of the Cold War, Republican and Democratic presidents alike have ordered major military action both with and without UNSC approval. George H. W. Bush and Barack Obama obtained such authorization before the 1991 Gulf War and the 2011 intervention in Libya, respectively, while Bill Clinton and George W. Bush proceeded without it in, respectively, the 1999 NATO bombing campaign in Kosovo and the 2003 invasion of Iraq. In April 2017 Donald Trump unilaterally ordered a barrage of fifty-nine cruise missiles against Syrian air installations in response to the government of Bashar al-Assad’s use of chemical weapons against civilians in rebel-held areas.15 All U.S. presidents, moreover, insist that their constitutional authority to defend the American people trumps the UN Charter in legitimating the U.S. use of force.
Given this track record, cynics might well dismiss the Charter as a fig leaf to conceal Thucydides’ dirty secret that the powerful do what they want (and the weak what they must). And yet one cannot but be impressed by America’s “willingness to incur significant costs in terms of time, policy compromise, and side-payments, simply to obtain the stamp of approval from the UN Security Council,” as Eric Voeten writes.16 This suggests at a minimum that U.S. officials believe that securing a multilateral endorsement carries value. Also noteworthy is the energy the United States puts into justifying military actions not authorized by the UNSC as being consistent with Charter principles such as the preservation of democracy, protection of human rights, and right to self-determination.
American leaders have practical international and domestic reasons to seek UNSC endorsement, as well as to justify American unilateralism when they fail to secure it. Most UN member states consider the Security Council the only entity competent to authorize military intervention, and their ultimate diplomatic support may be contingent on whether the United States at least tries the UN route. Likewise, a majority of American citizens believe that the UNSC has unique legitimacy to authorize military intervention. (By contrast, Americans overwhelmingly oppose using U.S. military force without a UNSC mandate, except in self-defense or to protect vital U.S. interests.)17
Still, hard-core sovereigntists argue that seeking UN authorization is unwise, unrealistic, and unnecessary. It is imprudent because collective security is a mirage, based on a fantasy that independent states will perceive threats identically and assume similar risks and burdens to combat them. It is impractical because it ignores the unparalleled freedom of action the United States requires as the ultimate custodian of world order. And it is extraneous because the only authorities needed to legitimate the U.S. use of military force are the elected representatives of the American people, who require no global by-your-leave. As John Bolton puts it, “The Constitution trumps international law.”18
Despite these sovereigntist admonitions, U.S. presidents typically seek and welcome the UN’s imprimatur for major military action, seeing it as political asset in securing diplomatic and material support for U.S.-led interventions—as well as a way to bring on board some skeptical members of Congress. In their joint memoir, George H. W. Bush and his national security adviser Brent Scowcroft recount the lengths they went to in 1990–91 to obtain Security Council authorization to reverse Iraq’s invasion of Kuwait. “We … believed that the United States should not go it alone, that a multilateral approach was better,” they explain. “Building an international response led us immediately to the United Nations, which could provide a cloak of acceptability to our efforts and mobilize world opinion behind the principles we wished to project.”19
Like Father, Like Son?
What an apparent contrast, at least at first glance, with George W. Bush’s own decision twelve years later to invade Iraq without an explicit UNSC mandate. White House spokesman Ari Fleischer explained the forty-third president’s thinking in response to a skeptical question from the press at a news conference on March 10, 2003, nine days before the United States launched Operation Iraqi Freedom. “You seem to be equating an ad hoc coalition that the United States has been able to form around one issue and one task with permanent bodies like the UN and NATO, which have charters formed by treaties,” a reporter noted. “Does the President believe that international affairs can be conducted entirely through ad hoc bodies like the one he’s putting [together]?” To which Fleischer responded, “The point I’m making here is that there are many ways to form international coalitions. The United Nations Security Council is but one of them.”20
And yet one should not overstate the divergence between the two Bushes, since the father was also prepared to bypass the United Nations. “We would ask the Council to act only if we knew in advance we had the backing of most of the Arab bloc and we were fairly certain we had the necessary votes,” the elder Bush and Scowcroft recall. “If at any point it became clear we could not succeed, we would back away from a UN effort and cobble together an independent multinational effort built on friendly Arab and allied participation.”21 In other words, as Clinton would later do in Kosovo and Bush’s son in Iraq, George H. W. Bush would assemble a purpose-built grouping that might lack the UNSC’s legal authority but still lend a surrogate multilateral legitimacy to the undertaking.
Going forward, the United States should work assiduously to secure explicit UN Security Council authorization, especially for major military action. Beyond being preferred by the American people, the UN route promises greater international legitimacy as well as diplomatic and material support. At the same time, as former deputy national security adviser James B. Steinberg explains, the United States should resist making the UNSC the “final arbiter” of the U.S. use of force.22 The hard reality is that America will sometimes perceive threats, assume obligations, and define interests very differently from the other permanent members of the Security Council, not least China and Russia. There may be occasions when its use of force is legitimate and warranted, even if international lawyers deem it illegal.
But if the United States must retain the sovereign right to act in its own interests, it should employ this prerogative sparingly, to avoid setting precedents that others can easily exploit—with the result that the exception eventually becomes the rule. In addition, while privileging U.S. sovereign authority can maximize U.S. autonomy, it may also leave the United States in a weaker position to garner burden sharing, as well as legitimacy, for its purposes, resulting in less U.S. influence over long-term outcomes.
Beyond the matter of UNSC authorization, American policymakers should consider how broad they want the corresponding intervening coalition to be, as well as what influence they want to give partners in shaping and implementing its war strategy. Since the Cold War’s end, the U.S. interventions pursuant to UNSC authorization have sometimes involved many other states (see the Gulf War in 1991), but at other times elicited only token contributions (for example, Somalia, 1992–93). The United States has also led interventions without UNSC authorization, both on its own (as in Panama, 1990) and alongside others, whether through NATO (Kosovo, 1999) or a “minilateral” coalition (Iraq, 2003).23
The case for America intervening through a narrow coalition is stronger when the threat is urgent, leaving little time for protracted multilateral diplomacy; when the situation requires military firepower that only the United States and a handful of others possess; or when the intervention requires like-mindedness. By contrast, the scholar Sarah Kreps writes, intervening with a greater number of participants can make more sense if the time horizon is long, resource requirements are high, and diplomatic (or local) sensitivities require it.24 Finally, the United States may wish to preserve maximum autonomy during early, heavy war-fighting phases, as in the first weeks of the post–9/11 Afghanistan campaign, before transitioning to less-intensive but protracted stabilization operations.
Contingent Sovereignty—for Others
Whereas the United States vigorously defends its own sovereign right to use force when its national interests warrant, it is far from circumspect about violating the sovereignty of other nations that it perceives as threats to U.S. national interests or regional order. While this has long been true—not least in hemispheric relations—recent U.S. interventionism rests on new justifications. Since the 1990s the United States has contributed by word and deed to a nascent doctrine of “contingent sovereignty.” This holds that a state jeopardizes its expectation of nonintervention in two situations: first, when it fails to meet fundamental obligations to its own citizens, notably by committing mass atrocities against them; and second, when it fails to discharge baseline obligations to other countries, for instance by sponsoring (or harboring) terrorists or pursuing WMD in contravention of treaty commitments.25
The first impulse behind contingent sovereignty is an ethical one, namely revulsion over mass atrocity crimes. Although the nonintervention and human rights thrusts of the UN Charter have long been in tension, these frictions ignited during the 1990s, as murderous regimes or their proxies slaughtered civilians in Rwanda, Bosnia, Kosovo, and East Timor. In 1999, UN secretary general Kofi Annan spoke for many when he declared that state sovereignty could not constitute a license to commit mass murder. Subsequently, a Canadian-sponsored International Commission on Intervention and State Sovereignty helped crystallize a new international norm, the “Responsibility to Protect” (R2P). It holds that each UN member state has an unconditional obligation to protect its citizens from genocide, war crimes, crimes against humanity, and ethnic cleansing. And when any state fails to protect (or makes war on) its citizens, this responsibility devolves to the international community, which may take corrective actions—including military intervention.26 The R2P concept helped shift global conversations away from fruitless debates over a “right to intervention” and toward an affirmative doctrine of “sovereignty as responsibility.” UN member states unanimously endorsed R2P at the World Summit in September 2005.
The second, prudential impulse behind contingent sovereignty is the threat to global security posed by catastrophic terrorism. The nightmare scenario of a “nuclear 9/11” convinced George W. Bush, and Barack Obama after him, that sovereignty cannot be a shield behind which terrorists operate with impunity. Where possible, the United States would cooperate with vulnerable governments to eliminate terrorist threats. But where states had ceased to exist (as in Somalia), lacked control over “ungoverned spaces” (as in Yemen), or played a double game (as in Pakistan), the United States would take direct action to eliminate terrorists—including, most famously, al Qaeda leader Osama bin Laden in 2011.
Exploiting advances in drone technology, the Bush administration began launching “targeted killings” of suspected terrorists, beginning (according to news reports) in Yemen in November 2002. President Obama dramatically accelerated drone strikes, launching an estimated 500 through January 2016—ten times the number his predecessor authorized.27 For U.S. national security officials, drones were irresistible. They permitted the United States to pierce the shell of sovereignty in target countries, but without incurring the high political costs of inserting visible U.S. troops. The strikes were surgical enough to deny plausibly (at least for a time), and they carried no immediate risk of U.S. casualties. At the same time, their champions overlooked the ethical and legal quandaries of remote-control assassination, mounting evidence that such strikes often killed innocent victims, and the likelihood that they would prove a powerful recruiting tool for violent jihadists.
Together, the resurgence of atrocity crimes and the rise of mass-casualty terrorism strained long-standing UN rules on nonintervention. And yet the notion of contingent sovereignty also raised difficult practical and normative questions about threshold criteria, right authority, and the responsibilities of interveners. What severity must be reached before atrocity crimes or terrorist activities warrant intervention? What entity should determine when that line is crossed? What limits must intervening nations observe?
These questions have no easy answers. Under the Charter, the Security Council alone has the legal standing to authorize external intervention against a recalcitrant state. But the United Nations has no independent intelligence capacity to help inform UNSC decisions, no explicit oversight mechanism to ensure that intervening powers stick to UN mandates, and only limited capability to restore order in postconflict countries.
All of these dilemmas—concerning trigger mechanisms, right authority, follow-through, and accountability—came to the fore in the NATO-led intervention in Libya in 2011. Within the Security Council, members debated the scale and trajectory of violence, ultimately agreeing with Hillary Clinton that, “left unchecked, [Libyan leader Moammar] Qaddafi will commit unspeakable atrocities.” The resulting UNSC Resolution 1973 authorized a “no-fly zone” and “all necessary means” to protect civilians. But as the intervention proceeded, Russia, China, the African Union, and others accused the West of hijacking the R2P norm to pursue regime change. Moscow and Beijing later cited this bitter experience when they blocked a vigorous Security Council’s response to the slaughter that unfolded in Syria over the next several years.28
MULTILATERAL PEACE OPERATIONS AND AMERICAN SOVEREIGNTY
Tensions between U.S. sovereignty and collective security have also arisen in the context of UN multilateral peace operations. These often messy contingencies raise tricky choices that touch on both U.S. sovereignty-as-authority and U.S. sovereignty-as-autonomy. Practical questions include: What military capabilities should the United States—and other UN members—place at the UN’s disposal when the UNSC authorizes peace enforcement or peacekeeping missions? What command and control arrangements should govern the deployment of such assets? What limits should the United States place on its own involvement?
Late in World War II, U.S., British, and Soviet negotiators at Dumbarton Oaks had wrestled with how to provide the United Nations—an assemblage of sovereign states—with sufficient military force to maintain international security. In lieu of creating a standing UN army, the conferees agreed that member states should designate standby forces and make them available on request to the United Nations. The Charter (Article 47) also anticipated that the UNSC’s permanent members would establish a joint Military Staff Committee to command and control these forces. As events transpired, they never created this body.29
Although it is tempting to blame this failure on Cold War divisions, the American decision not to revisit this option after the Berlin Wall fell suggests deeper U.S. misgivings about placing control in the hands of the United Nations. During the Gulf War, Washington insisted that U.S. military officers command the UN-authorized coalition, just as they had in the Korean War (1950–1953). “We opposed allowing the UN to organize and run a war,” Bush and Scowcroft explain. “It was important to reach out to the rest of the world, but even more to keep the strings of control tightly in our hands.”30
The question of whether U.S. troops should ever be placed under foreign command remains politically explosive at home, despite a clear historical record of U.S. flexibility in practice. In the Revolutionary War, General George Washington placed 2,000 American militiamen under a French general, the Marquis de Lafayette. During the twentieth century, U.S. soldiers reported to foreign commanders no fewer than seventeen times, including during both world wars, Operation Desert Storm, and NATO’s Kosovo Force. At the same time, as the Congressional Research Service notes, “U.S. soldiers serving in multinational commands always retain their ultimate allegiance to the United States of America: they wear their national uniforms and insignia; and no oaths are given to other powers or organizations.” Even while under the operational command of foreign officers, U.S. soldiers remain bound to defend the U.S. Constitution and still subject to the National Command Authority that flows from the president.31
Despite these safeguards, American nationalists rebel at the notion that U.S. soldiers might temporarily report to commanders operating under a flag other than the Stars and Stripes. Some of these objections reflect prudential concerns. Skeptics doubt that the United States ought to entrust the lives of its soldiers to foreign officers who might lack adequate judgment or training. Others fear that a U.S. presence could make UN contingents tempting targets for terrorists or other adversaries. But the high passion the topic arouses hints at deeper worries, notably “concerns about whether the United States cedes any degree of sovereignty when it participates in collective security mechanisms.”32
The issue erupted during the 1990s, when the United States increased its involvement in post–Cold War multidimensional UN peace operations. In October 1993 a team of U.S. Army Rangers supporting the second phase of the UN-led peace operation in Somalia (UNOSOM II) was ambushed in Mogadishu, with eighteen killed and several soldiers’ corpses dragged through the streets in what became known as the “Black Hawk Down” episode. Although the soldiers were operating under U.S. command, Republicans blamed the UN for the disaster and the Clinton administration also scapegoated the world body, fostering the impression that UN commanders were at fault.
In the debacle’s aftermath, the White House formulated a more restrictive doctrine for peace operations. It insisted, “The President retains and will never relinquish command authority over U.S. forces.” Henceforth, “Any large scale participation of U.S. forces in a major peace enforcement mission that is likely to involve combat should ordinarily be conducted under U.S. command and operational control or through competent regional organizations such as NATO or ad hoc coalitions.”33
Such reassurances fell on deaf ears on Capitol Hill. Six weeks before the 1994 midterm elections, Minority Leader Newt Gingrich (R.-Ga.), hoping to deliver the House of Representatives to the GOP for the first time in forty years, persuaded Republican colleagues to sign a “Contract with America.” It included a pledge to pass legislation mandating “no U.S. troops under UN command.”34 In 1995 President Clinton vetoed a defense authorization bill containing similar language.
That same year Michael G. New, a U.S. Army Specialist serving in the UN Preventive Deployment (UNPREDEP) mission in Macedonia, made headlines when he refused an order from his operational commander, a Finnish general, to wear the designated blue beret and UN patch on his uniform. Spec. New “argued that he owes allegiance to the United States, not to the U.N., that the insignia are not authorized, that the chain of command was not constitutional, and that the operation was not legal.” New’s case quickly became a cause célèbre in conservative circles. House Majority Leader Tom Delay (R-Tex.) quickly drafted a bill, cosponsored by one hundred colleagues, to “prevent the president from forcing American soldiers to wear the uniform of the United Nations.”35 Despite these efforts, New was court-martialed and convicted.
Still, resistance to placing U.S. soldiers under foreign command has endured. In 2015, Representative Mike Rogers (R-Ala.) introduced the latest version of the American Sovereignty Restoration Act (H.R. 1205)—the first having been introduced by Representative Ron Paul (R-Tex.) in 2001. Beyond terminating U.S. membership in the UN, it would prohibit participation by any U.S. service member in—as well as U.S. funding for—any UN peacekeeping operation.36 Such sovereignty anxieties help explain the paltry U.S. participation in UN peace operations. In April 2016, Americans accounted for only 74 out of 104,000 soldiers, military experts, and police deployed in UN missions worldwide, a figure that left the United States tied with Namibia as the seventy-fifth largest contributor.
Such a low profile can be defended, given the broader U.S. role in providing global security, as well as the risk that U.S. involvement would be controversial or create tempting targets. Still, U.S. troop contributions are trifling alongside those of China, which by 2016 was the eighth largest contributor to UN missions, with 3,042 personnel deployed.37
ARMS CONTROL AND AMERICAN SOVEREIGNTY
As chapter 4 argued, the voluntary U.S. decision to enter into a treaty is an exercise rather than abdication of sovereign authority. This is true even though treaties by design constrain national freedom of action. Arms control and disarmament agreements, for instance, limit U.S. sovereignty-as-autonomy as part of a sovereignty bargain. The United States agrees to forgo certain military options (related to weaponry, force structure, and defense posture, for example) in exchange for limiting other nations’ ability to threaten America, thus gaining more sovereignty-as-influence. This is what Jeffrey Lewis of the Center for Nonproliferation Studies implies when he writes, “States that submit themselves to international norms and law have more sovereignty, not less.”38
This is particularly true in the nuclear realm, where cooperation is the alternative to Armageddon. Six weeks before his assassination, President John F. Kennedy delivered a sober message to the UN General Assembly. “The science of weapons and war has made us all … one world and one human race, with one common destiny,” the president explained. “In such a world, absolute sovereignty no longer assures us of absolute security. The conventions of peace must pull abreast of the inventions of war.”39
Fortunately, modern arms control and disarmament treaties typically include three features designed to safeguard state sovereignty. The first is the principle of state consent, which preserves sovereignty-as-authority. Each party must agree voluntarily to accept not only the treaty’s initial terms but also any new obligations that the secretariat subsequently elaborates. “This requirement of concrete consent for any new rule,” Mika Nishimura explains, “hinders the dynamic development of a multilateral framework, which would in return place a greater constraint on sovereignty,” by usurping a state’s authority to determine its own commitments.40
Second, arms control treaties preserve a measure of sovereignty-as-autonomy because they are founded on reciprocity. That is, treaty obligations are interdependent, or contingent on acceptable performance by other parties. When one party fails to comply, whether through cheating or incapacity, others have the right to restore balance. They can do so by imposing sanctions or otherwise punishing the offending state until it changes its behavior or, alternatively, by suspending or withdrawing from the treaty.
Finally, traditional arms control and disarmament conventions recognize each party’s sovereign right to interpret its treaty obligations and to assess whether others are complying, rather than accept the judgments of an independent mechanism. Both the Partial Test Ban Treaty (PTBT) and the Nuclear Non-Proliferation Treaty (NPT) contain an explicit “auto-interpretation” clause, which reads: “Each State Party shall, in exercising its national sovereignty, have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.” Testifying to the Senate in 1963, Secretary of State Dean Rusk explained the significance of this clause: “Under this treaty we alone will decide whether extraordinary events have occurred and whether they jeopardize our supreme national interests. We need answer to no tribunal and to no authority other than our own consciences and requirements.”41
Since 1945 the United States has become party to several major multilateral (as well as bilateral) arms control agreements, from the NPT to the BWC to the CWC (see table 5-1). Each required difficult sovereignty bargains, including accepting constraints on U.S. behavior in return for greater strategic stability, predictability, and reassurance.
To complement these formal conventions, the United States has also sponsored multiple informal, “minilateral” arrangements, ranging from the Proliferation Security Initiative (PSI) to the Nuclear Suppliers Group (see table 5-1). These frameworks entail specific commitments, but unlike treaties are not legally binding and permit significant flexibility. As such, they not only protect U.S. sovereignty-as-authority but also preserve greater U.S. sovereignty-as-autonomy—while still promising some sovereignty-as-influence over international outcomes. While they cannot replace formal treaties, of course, they represent a useful complement to them. And being more attentive to sovereign prerogatives, they tend to raise fewer domestic hackles.
A dyed-in-the-wool “sovereigntist” might well dismiss this tangle of commitments as a surrender of American independence, reflecting naive faith in parchment promises. But enlightened self-interest offers a more persuasive explanation for U.S. conduct. Successive U.S. administrations (and the Senate in the case of treaties) have calculated that a measured, voluntary, and reciprocal delegation of sovereign autonomy is the best—and perhaps only—way to address the relevant threat.
Consider the NPT, which came into effect in 1970 and remains the cornerstone of efforts to control the spread of nuclear weapons. It rests on three pillars: nonacquisition of nuclear weapons by states that did not have them in 1970; access for all countries to nuclear energy for peaceful uses; and eventual disarmament by nuclear weapons states (NWS). In the early Cold War years U.S. officials feared the number of NWS would rise to dozens. The NPT helped prevent this. Today there are just nine nuclear weapons states, and only one party to the treaty—North Korea—has acquired a weapon since 1970. The United States, meanwhile, has reduced its own nuclear stockpile from more than 26,000 weapons to approximately 4,600 in 2015.42
Informal frameworks, too, can include reciprocal commitments in U.S. interests. The Container Security Initiative (CSI) is one such arrangement. Created under President George W. Bush, CSI is a partnership among some thirty trading nations designed to prevent terrorists and other illicit actors from exploiting shipping containers loaded and unloaded at the world’s busiest seaports. According to U.S. Customs and Border Protection (CBP), “CBP’s 58 operational CSI ports now prescreen over 80 percent of all maritime containerized cargo destined to the United States.”43 In public documents CBP lauds CSI for extending the U.S. border outward, allowing U.S. officials to protect U.S. citizens by walking docks from Singapore to Rotterdam. More fascinating, from a U.S. sovereignty perspective, is the (less publicized) fact that partner countries enjoy the same privilege in the United States. As the State Department explained in 2004, “A reciprocal program, CSI also authorizes participating countries to station their customs officers at U.S. seaports to screen cargo that is exported to their countries via ocean-going containers.” Accordingly, “Japanese customs officers are working at the port of Los Angeles/Long Beach,” even as “Canada has customs personnel stationed at the ports of Newark and Seattle.”44
The most dramatic instance of the United States trading sovereign autonomy (and even a measure of sovereign authority) for effective arms control may be the 1997 Chemical Weapons Convention (CWC). The first international treaty to outlaw the possession, stockpiling, and use of an entire category of weapons, the CWC requires all states parties (189 as of 2016) to declare their chemical weapons holdings and production facilities and to submit and carry out plans to destroy both. The Organization for the Prohibition of Chemical Weapons (OPCW), a permanent implementing body based in The Hague, ensures that states actually fulfill these obligations. Indeed, the OPCW’s Technical Secretariat is authorized to conduct highly intrusive, short-notice challenge inspections of any country’s facilities, “anytime, anywhere,” with no right of refusal by a state party.45
The effort to control chemical weapons is daunting, given the so-called dual-use dilemma. That is, many subcomponents of chemical weapons, as well as the machines that fabricate and deliver them, have legitimate industrial applications. Globally, there are tens, perhaps hundreds, of thousands of facilities where precursor and toxic chemicals could be diverted into illicit weapons programs.
To get a handle on this complex challenge, CWC parties have accepted treaty provisions that remove or at least qualify the three (aforementioned) sovereignty protections typical of arms control agreements: interdependent obligations, auto-interpretation, and concrete consent.46 First, any state that challenges another for breaching the CWC is not permitted to suspend its own participation. Instead, it must allow the OPCW to respond. Second, states must accept the OPCW’s interpretations and evaluations. Indeed, the Technical Secretariat’s decisions “are not reviewable by any domestic governmental body.”47 Third, the OPCW includes provisions for majority voting within the Conference of the States Parties, which can in principle make binding rules without explicit consent of all members. To be sure, the CWC includes as an ultimate safeguard the right to withdraw. Still, it clearly intrudes on parties’ sovereign authority (not just autonomy), as well as their territorial control, since OPCW inspectors can (in theory) walk into any suspect facility.
Despite these provisions, the United States Senate—with a Republican majority, no less—approved the treaty in 1997, by a 74–26 vote.48 Supporters understood that voluntarily ceding some U.S. sovereignty was required to get others to do the same and thus restrict the spread of dangerous, inhumane weapons. Such is the price of global security in a world of potentially catastrophic cross-border threats.
In a 2003 speech, State Department policy planning chief Richard N. Haass explained the rationale for U.S. accession: “Having already foresworn chemical weapons, we have little to lose from inspections. And we have a great deal to gain from a CWC that helps us to verify compliance by 140 other signatories and ostracize governments—like Saddam Hussein’s—that continue to resist the abolition of these horrific weapons.”49
The CWC proved its worth in 2012, after Syrian President Bashar al-Assad used chemical weapons on civilians in areas held by rebels seeking to overthrow him. For its subsequent work to remove chemical arms from Syria, the OPCW earned the Nobel Peace Prize.50
Reasons for Opposition to Arms Control
American sovereigntists offer several generic objections to arms control treaties. One is that they limit America’s freedom to defend its national security. “Long-term limits on arms, by requiring far-reaching constraints on building and deploying weapons systems, strike at the very core of national sovereignty: the ability to defend ourselves,” write Yoo and Bolton. As a case in point, they allege that the CTBT would prevent modernization of the U.S. nuclear arsenal, casting doubt on its reliability and undermining deterrence. Second, sovereigntists worry that America, which respects laws, will fulfill its obligations whereas cheaters like Russia, which has “violated many of its arms-control treaty commitments,” will play the United States for a sucker.51
Third, sovereigntists worry that arms control treaties will expand White House authorities at the expense of Congress, allowing progressive-minded U.S. administrations to interpret treaty ambiguities expansively, in a manner that conservatives consider reckless. Along these lines, the Heritage Foundation’s Theodore Bromund warned in 2012 that the proposed Arms Trade Treaty (ATT) would jeopardize “the sovereignty of the United States” by handing Obama administration officials “a blank check” in interpreting the treaty.52
Fourth, critics allege that some arms control treaties endanger U.S. constitutional liberties. In October 2013, 181 members of the House sent a letter to President Obama objecting that one provision of the ATT, which allowed it to be amended by just three-quarters of its member states, would “steadily subject the U.S. to the influence of internationally-defined norms, a process that would impinge on our national sovereignty.” Such a prospect would “violate the right of the American people, under the Constitution, to freely govern themselves,” including by exercising their Second Amendment rights to bear arms. As National Rifle Association president Wayne LaPierre told Fox News, Americans “just don’t want the UN to be acting as a global nanny with a global permission slip stating whether they can own a gun or not. It cheapens our rights as American citizens, and weakens our sovereignty.”53
These generic sovereigntist objections are unpersuasive. The first—that such treaties inordinately impinge on U.S. freedom of action—ignores the reciprocal nature of the obligations and the sovereignty safeguards the United States retains if it discovers parties to be cheating—something that the United States possesses the technical means to do. Likewise, specific complaints that the CTBT would hinder the reliability of the U.S. nuclear stockpile are unconvincing. What the CTBT would do is strengthen the international taboo against nuclear testing—an important step in preventing the further spread of nuclear weapons—as well as bolstering the world’s capacity to monitor nuclear tests by rogue states like North Korea. The fear of an executive branch power grab is also not credible. Given legislative powers of oversight of U.S. treaty commitments, as well as powers of the purse over their implementation, Congress has instruments at its disposal to prevent mission creep.
What really worries conservatives is that a progressive president might pursue his or her foreign policy preferences rather than theirs. But the shoe is often on the other foot when it comes to partisan control of branches of the U.S. government, and the electorate has regular opportunities to weigh in on the country’s direction. None of this is to argue that all potential multilateral arms control agreements deserve to be ratified—or that they offer a panacea to the problem they purport to address. It is merely to conclude that most common sovereignty-based objections do not withstand scrutiny.
Reconciling Sovereignty and Arms Control
Most important, arms control skeptics ignore that the spread of technologies of mass destruction requires changes in how Americans conceive of—and defend—their national sovereignty. Among the most common justification for rejecting multilateral agreements is that they tie America’s hands. But such arguments are persuasive only if the proposed agreement is unlikely to achieve its objectives—or if the United States can better ensure its own security by retaining complete freedom of action. If not, sacrificing some sovereignty-as-autonomy may be a price worth paying if it engenders restraint as well as encourages cooperation from others in containing the world’s most dangerous threats.54
Preserving U.S. and global security in an age of WMD will require unprecedented levels of international cooperation—and an acknowledgment by sovereign states that their mutual vulnerability implies mutual obligations. All national governments retain the inherent authority—even duty—to preserve their internal (“homeland”) security. But “responsible sovereignty [also] requires all states to be accountable for their actions that have impacts beyond their borders,” as Bruce Jones, Carlos Pascual, and Stephen Stedman write.55 These state obligations include opening themselves up to external scrutiny in the form of monitoring schemes to verify their compliance with commitments, as well as containing injurious “spillovers” that might otherwise emanate from their territories.56
To be compatible with sovereignty-as-authority, international regimes to control WMD must be based on the principle of consent. That is, states must agree voluntarily to be bound by any new rules and standards of behavior. At the same time, as former secretary of homeland security Michael Chertoff insists, states must be held accountable for actions that injure other nations, in a global extension of “the legal principle of nuisance.”57
AMERICAN SOVEREIGNTY AND THE GLOBAL COMMONS
Much like they can enhance the U.S. ability to combat transnational threats, sovereignty bargains can also help the United States secure the “global commons.” This fancy term denotes those physical (as well as virtual) spaces upon which all countries depend for their security and prosperity, but which are not under the exclusive jurisdiction of any single state. Three of the most important are the oceans, outer space, and cyberspace. These collectively constitute the sinews of globalization, facilitating the integration of the world economy. In each domain America has long called the shots. But as its relative dominance fades, the United States must contemplate new trade-offs between autonomy and influence, sacrificing some freedom of action for more robust international agreement on the boundaries of legitimate state conduct. Failure by the United States to lead on these issues could encourage rising powers to offer alternative ordering principles and assert their own exclusive sovereign rights over parts of the global commons.58
At Sea
The United States has been an ardent defender of the freedom of the seas, which cover 71 percent of Earth’s surface, from the very origins of the republic. And since 1945 the U.S. Navy has guaranteed an open ocean commons, in the process serving as the handmaiden of globalization. Today, 90 percent of global exports are carried on the world’s container ships, and 40 percent of humanity lives within 100 kilometers of a coast. However, this historically open domain is now at risk as new maritime powers seek blue-water capabilities, try to deny others access to regional waters, and make controversial territorial claims.
In East Asia, China is embroiled in maritime disputes with multiple neighbors, including in the South China Sea, through which more than $5 trillion of commerce passes each year. China claims sovereignty over more than 80 percent of those waters. To back up these assertions, it has harassed the vessels of rival claimants, occupied and reclaimed multiple islets and reefs, and insisted that foreign warships obtain permission to transit those waters. Such actions risk precipitating a Sino-American confrontation, either in the form of a direct naval clash or as a result of reckless actions by a formal U.S. treaty ally (for example, the Philippines) or an emerging partner (for example, Vietnam).59
Meanwhile, geopolitical and economic competition has heated up in the warming Arctic, as littoral nations argue over extended continental shelves, the control of new sea routes, the definition of territorial waters, and rights to exploit undersea mineral and fossil fuel deposits. Russia has staked assertive claims to the Arctic Ocean seabed that extend under the North Pole. Such geopolitical maneuvering has raised fears of a regional arms race pitting Russia against the United States and its NATO allies.60
The single most important step the United States could take to strengthen a stable and open maritime commons is to strike a sovereignty bargain and finally accede to the UN Convention on the Law of the Sea (UNCLOS), the legal bedrock of contemporary ocean governance since it came into force in 1994. Among other provisions, UNCLOS recognizes national jurisdiction over “territorial seas” within twelve nautical miles from shore; establishes “exclusive economic zones” (EEZs) extending 200 miles from shore; and clarifies rules for transit through “international straits.” It also provides a forum for resolving ocean-related disputes. To date, 162 countries (and the EU) have ratified UNCLOS. Unfortunately, the United States is not among them, despite staunch support for the treaty from the last five U.S. presidents, all living secretaries of state and defense, senior U.S. military leaders, the American business community, and environmental groups. The diehard opposition of sovereigntist senators and their allies outside Congress continues to block ratification. (As of August 2017, the Trump administration had not announced its position on UNCLOS.)
The U.S. failure to join not only reduces the effectiveness of UNCLOS but also undermines American national interests and global leadership.61 Because it is absent—ironically due to sovereignty objections—the United States cannot take part in the last great partitioning of sovereign space on the planet. Neither can the United States serve on the International Seabed Authority, where (thanks to assertive U.S. diplomacy during treaty negotiations) it would enjoy an effective veto. The U.S. stance also undermines the credibility of U.S. commitments to a rules-based international order, while emboldening revisionist powers seeking to throw their regional weight around. In this case, a misguided defense of U.S. sovereignty-as-authority and sovereignty-as-autonomy is weakening U.S. sovereignty-as-influence, empowering potential adversaries to make sovereignty claims of their own in the world’s oceans, while weakening the U.S. diplomatic hand in opposing them.
Lost in Space
Outer space is another domain that the United States has long dominated but where a “sovereignty bargain” is warranted. Like freedom of the seas, guaranteed access to outer space is a cornerstone of U.S. security and global prosperity. Space-based systems and satellites facilitate communications, commerce, and finance; enable navigation, transportation, and meteorological and scientific observations; and support intelligence gathering and military operations. American corporations and citizens use satellites and the global positioning system (GPS) to transfer money, ship goods, enjoy smartphone service, and map current locations and travel destinations.
Like the oceans, the outer space commons are becoming more “congested, contested, and competitive,” in the words of former deputy secretary of defense William Lynn. The United States confronts renewed geopolitical competition from Russia and China, as well as new “space-faring nations” like India and Brazil. Assured access to space is endangered by the rapid accumulation of space junk and, more worrisome, by looming space weaponization. Unfortunately, the 1967 Outer Space Treaty has failed to keep pace with either technological developments or geopolitical trends. It lacks a dispute resolution mechanism, says nothing about space debris or congestion, and does not address interference with other countries’ space assets. To avoid a “Wild West” scenario, the world needs agreement on new rules of the road that ensure secure access, promote responsible conduct, and prevent arms races in space. To achieve this result, all nations—including the United States—must accept some constraints on their freedom of action.62
To this end, the Obama administration promoted the goal of a nonbinding international code of conduct for outer space activities, designed to mitigate space debris, minimize collisions, and prohibit intentional interference with another country’s orbiting space objects. But the prospect of even an informal agreement raised sovereigntist hackles. In February 2011, thirty-seven Republican senators declared themselves “deeply concerned” that the envisioned code would both constrain U.S. national security and infringe on congressional prerogatives. “Taken literally,” Bolton and Yoo subsequently wrote in the New York Times, “it could limit freedom of action in space,” including the development of space-based antiballistic missiles, the testing of antisatellite weapons, and the gathering of intelligence. “But the more far-reaching danger is that Mr. Obama is eroding American sovereignty on the sly” by seeking to bind the United States to an international arms control agreement without bothering with Senate approval. “American security must not be sacrificed for the false promise of global governance,” they insisted.63
These concerns were overwrought. According to the Pentagon, nothing in the draft code would hinder either U.S. intelligence collection or missile defense. Moreover, most defense experts regarded a ban on space-based and antisatellite weapons as a reasonable concession to prevent an unpredictable arms race in outer space. Also, Bolton and Yoo’s constitutional concerns were unwarranted, since voluntary adherence to a code of conduct is fully within the prerogative of the executive branch, and it could easily be reversed by a democratically elected successor. In sum, Bolton and Yoo played the sovereignty card both selectively and unpersuasively. Beyond their specious suggestion that a code would undermine U.S. sovereignty-as-authority, they ignored that its modest constraints on U.S. sovereignty-as-autonomy would advance U.S. sovereignty-as-influence by helping to stabilize an open outer space commons.
TECHNOLOGICAL CHANGE, SOVEREIGNTY, AND THE FUTURE OF VIOLENCE
In the decades to come, preserving national and global security will likely require the United States to cut even more sovereignty bargains. The primary driving forces will be the furious pace of technological change and the increasingly distributed nature of global threats.
Advances in technology have long driven global rule making. As new breakthroughs occur, governments naturally seek common standards to mitigate the risks of novel forms of interdependence.64 But two things complicate the picture today. First, rapid technological change is leaving national governments and international organizations scrambling to regulate innovations with profound implications for global security, in areas from cyberspace to drones, robotics, nanotechnology, artificial intelligence, and synthetic biology. In each case, protecting American and international security will require the United States to cede some freedom of action for the promise of greater safety through international cooperation. Sovereignty-as-influence must trump sovereignty-as-autonomy. Second, contemporary global threats are distributed, emerging not just from the world’s 200-odd sovereign states but increasingly from legions of nonstate actors able to acquire and exploit disruptive and potentially lethal technologies with or without the knowledge of government authorities. This trend raises profound challenges for the United States, among them how to hold private actors (as well as states) accountable for the cross-border consequences of actions they commit within foreign territorial jurisdictions.65
Cyberia
It may be in cyberspace where the need for and dilemmas of multilateral security cooperation are most acute. Because cyberspace transcends national jurisdictions and is (in principle) accessible to all, it is often grouped as one of the global commons. But unlike the maritime and outer space domains, it is of course a purely human construction—a digital world composed of interlocking information technology networks and infrastructures that permit massive data transmission through the Internet, telecommunications systems, computers, and mobile devices. In addition, its actual physical infrastructure (exchanges, servers, routers, etc.) is located primarily on sovereign territory and is owned by governments, corporations, or individuals. This leaves cyberspace especially susceptible to interference and fragmentation, even as it becomes ever more indispensable to global security, prosperity, and social interaction.66 The dangers that an ungoverned cyberspace could pose to U.S. sovereignty were dramatically illustrated in 2016, when Russia orchestrated a massive effort to hack and influence the outcome of that year’s U.S. presidential election.67
The United States, where the digital age began, remains the leading champion of an open, decentralized, and secure cyberdomain that remains largely in private hands. That vision is now under threat, however, as despotic regimes seek to restrict citizen use of the Internet, national governments prepare for cyberwars, criminals run rampant in the “dark web,” and both public and private actors seek to distort truth to advance nefarious political agendas. Preserving an open, decentralized, and secure digital world will require enhanced multilateral agreement on rules to govern the Internet, mitigate cyberconflict, and crack down on cybercrime. It will also demand new norms to curtail outside interference in the electoral processes of sovereign countries, as well as standards for retaliation.
For decades, the primary regulatory institution “governing” cyberspace has been the Internet Corporation for Assigned Names and Numbers (ICANN), an independent nonprofit corporation licensed and loosely supervised, until September 30, 2016, by the U.S. Department of Commerce. The widespread perception of U.S. (and broader Western) “control” over the Internet has been a sore point for authoritarian and developing countries that would prefer to bring the Internet under intergovernmental purview.68 Hoping to defuse global tensions in the wake of the 2013 revelations of America’s massive, bulk surveillance of private global communications, President Obama announced in March 2014 that the United States would gradually relinquish U.S. stewardship of the Internet Assigned Numbers Authority (IANA), transferring responsibility for regulating the web’s domain name system to the Internet’s multistakeholder community. In taking this decision the administration was ceding symbolic sovereign autonomy to preserve the substance of an open global Internet.69
These steps outraged Republican lawmakers, who accused the Obama administration of “giv[ing] the Internet away to foreign governments,” in the words of Senators Ted Cruz (Tex.), Mike Lee (Utah), and James Lankford (Okla.), and Representative Sean Duffy (Wisc.). The president, they said, had no right to unilaterally transfer (alleged) U.S. control of cyberspace to a murky, unaccountable organization. “I will continue to fight President Obama’s irresponsible plan to surrender U.S. sovereignty of the Internet to the world’s worst actors and to protect our Constitutional right to free speech,” Duffy declared.70 Of course, such statements ignored that the United States never actually “owned” the Internet. What the Obama administration did in engineering the IANA transfer was to enter into a sovereignty bargain: The United States ceded ICANN supervision to a body perceived as more neutral, so that it could preserve an invaluable international regime that retained a multistakeholder character, rather than risk the emergence of a heavy-handed, intergovernmental arrangement.
The United States confronts similar sovereignty trade-offs in its efforts to prevent cyberwarfare. In recent years dozens of governments, as well as the would-be Islamic State, have developed capabilities to infiltrate, disrupt, and even destroy critical digital infrastructure. Some governments, including Russia and North Korea, have launched or tacitly endorsed proxy attacks on adversaries. Such attacks are not easily deterred or punished, however, since it is often difficult to identify the perpetrators. And even when the attacker is known it may be unclear whether a state adversary orchestrated the attack—in which case it could be treated as an act of aggression—or it was the work of a private individual—and should be treated as a criminal act.
Beyond this attribution problem, the normative and legal framework governing cyberconflict has lagged. There is no global consensus on what constitutes a cyberattack, or on what targets are legitimate or responses permissible, including against ostensibly private entities operating in foreign jurisdictions. Countries continue to disagree over whether to extend existing laws of war to cover cyberwarfare, or how rules of cyberengagement should address the often fuzzy line between military and civilian targets. Should state-directed cyberinterference into another nation’s electoral system and process, for example, be regarded as an act of war?
Mitigating cyberthreats requires greater multilateral cooperation—and innovative approaches to navigating cybersovereignty. High on the U.S. agenda must be negotiating new norms of state responsibility for offensive cyberoperations and cybercrime attacks launched from sovereign territory—as well as criteria for retaliation. States must build confidence by committing themselves to share information and manage crises jointly. They must also agree to preserve humanitarian fundamentals, for instance by not attacking the Internet’s “root” servers or to conducting denial-of-service (DOS) attacks during cyberconflicts.71
Establishing new cyberspace rules is even more complicated when the threat emanates from malevolent nonstate actors operating from within the borders of other states. “As technologies of mass empowerment enable terrorism, cyberattacks, and other harmful acts from faraway lands,” the legal scholars Benjamin Wittes and Gabriella Blum observe, “states’ interests in reaching across their borders are becoming more, not less, pronounced.”72 The United States, for example, has a strong interest in going after foreign perpetrators of cybercrime and cyberterrorism. But there is no agreement on what responsibility “host” nations have to prevent attacks, or what jurisdictional right an aggrieved nation has to respond to them. Generally speaking, the international legal system remains skeptical of endorsing the unilateral, extraterritorial enforcement of one nation’s laws in another country, without the consent of that second country. Moreover, purely punitive approaches ignore that even well-intentioned countries may lack the practical capacity to prevent their territory from being used as a base for cyberattacks.
Given these realities, U.S. and international efforts to combat cybercrime must include both incentives for national governments to take responsibility for policing their sovereign territory and capacity-building assistance to permit them to do so. One promising starting point might be to begin with informal arrangements, which are inherently less threatening from a sovereignty perspective, before moving on to treaty-based arrangements. For example, one might start with a multilateral body similar to the Financial Action Task Force, an informal, intergovernmental body created in 1989 to combat money laundering (and now terrorist financing). Under such an initiative, U.S. officials would start with like-minded governments, seeking to negotiate common national standards, regulations, and enforcement procedures regarding cybercrime. Ideally, the group would agree on a system of peer review and institute a process to “name and shame” noncooperating jurisdictions that fail to meet baseline commitments. Such a body could facilitate law enforcement cooperation in deterring and prosecuting cross-border cybercrime.73
Droning On
In other instances the United States has found itself at the cutting edge of the technological revolution in warfare, but must consider whether the weapons it is using (or developing) will ultimately undermine its own security, as other states and actors get ahold of them. Consider drones, which have become a preferred U.S. weapon in the battle against transnational terrorists in others’ sovereign territories. The United States clearly values this freedom of action. But it has struggled to develop a legal rationale for what are in essence assassinations by remotely controlled, pilotless aircraft. In the process, it has generated accusations that it is not only violating international humanitarian law and the laws of war but also courting international anarchy, as others will assuredly gain access to the same technology.74 The solution is negotiating international norms, and eventually legal rules, even if these constrain some U.S. sovereign autonomy.
The rise of “killer robots,” or fully autonomous lethal weapons, poses a similar predicament. While such systems may afford freedom of action, the inevitable diffusion of militarized robot technology to state and nonstate groups may well make the world, and Americans, less safe in the long run by lowering even more the threshold for violence. “Out of self-interest, then,” as Denise Garcia argues, “the United States should want other countries to agree to preventively ban such weapons now.”75
Finally, rapid advances in biotechnology could create catastrophic threats, by placing in the hands of private actors the capability to create new biological systems through the manipulation of existing—and the insertion of novel—genetic material. While the advent of synthetic biology brings enormous potential benefits for public health, it could also undermine global biosecurity by allowing rogue states and scientists to fabricate pathogens like smallpox. To mitigate these risks, the United States and other sovereign governments must work quickly to update the current patchwork of national and international regulations, including negotiating international codes of conduct.76
CONCLUSION
Today’s complex global security environment challenges the long-standing U.S. desire to maximize its freedom of action in national security policy. The United States confronts a greater number of threats that are transnational in nature, requiring by definition multilateral responses that may constrain America’s notional room for maneuver. To gain the benefits of cooperative security, the United States will need on occasion to accept some diminished sovereignty-as-autonomy (and, much more rarely, sovereign authority). At the same time, prudence requires that the United States retain certain sovereign prerogatives. The reality is that traditional geopolitical rivalries and regional dangers persist, and the United Nations, given its structural weaknesses, will not always protect vital U.S. national interests. Given its role as the guarantor of world order, the United States must retain the option of going it alone, or acting in narrow coalition, when its fundamental interests dictate.
This is especially true in matters involving the use of force. While the United States should work to win UN Security Council endorsement whenever possible, it should never make UNSC assent an absolute prerequisite for action. At the same time, the United States should beware of lowering the threshold for “preemptive” (actually “preventive”) action.
When it comes to arms control and nonproliferation, the United States should remain open to making reasonable sovereignty bargains, where U.S. officials perceive that the anticipated gains of multilateral cooperation outweigh potential autonomy losses. Likewise, it should seek to expand cooperative security efforts in managing the global commons, and in new spheres of violent conflict in which the pace of technological change has outstripped the development of shared rules of the road. Finally, the United States ought to redouble its support for UN peacekeeping—an indispensable, if often flawed, instrument for mitigating violence in the world’s most wretched places.