Modern economic globalization has revived the legal tradition of universal jurisdiction, which declined in the West after the enactment of the Treaty of Westphalia, when the principle of sovereignty gained currency. Today, nations face this reality when making policy choices. During the first panel of an AEI event on Monday, Peter Spiro of Temple Law School highlighted how transnational organizations use international law to pursue policies on both sides of the political spectrum. John Fonte of the Hudson Institute then argued against the legitimacy of the International Criminal Court and articulated the challenge global governance poses to liberal democracy.
The second panel explored how the U.S. Constitution responds to international law — John Yoo of AEI compared the legal response to international law with conservatives' legal response to the New Deal in the 1930s. Jeremy Rabkin of the George Mason School of Law examined the history of international conventions on war, and elaborated on how their true purpose has been distorted over time. Michael Glennon of Tufts University’s Fletcher School of Law and Diplomacy argued for the primacy of U.S. Congress — not the United Nations Security Council — in American decisions on war and peace.
In his keynote address, Sen. Jon Kyl emphasized the foundational principles upon which U.S. government was founded: sovereignty for the people and the value of the democratic process in lawmaking. Kyl noted the opportunity for the American "Madisonian" approach to government — as opposed to the European "Westphalian" approach — to strengthen treaties serving American interests, including key elements of the Law of the Sea Treaty.
Papers from the conference will be published in the Berkeley Journal of International Law.
Globalization is provoking deep changes in the international order, with significant effects on the American constitutional and political system. The case of Medellin vs. Texas brought this issue into the spotlight as U.S. Supreme Court justices grappled with the question of whether international courts can order an American state to abolish the death penalty. Furthermore, in this term and the next, the Supreme Court must wrestle with whether U.S. courts should adjudicate violations of international law by multinational corporations, brought to light during the Kiobel vs. Royal Dutch Petroleum case.
Is global governance fundamentally different from earlier forms of international cooperation? Is it a necessary response to the effects of globalization? Does the U.S. Constitution limit the ways the United States can engage in global governance? The AEI Project on Sovereignty will explore the effects of globalization on international law, institutions and the Constitution.
Senator Jon Kyl (R-Ariz.) will conclude the conference with a keynote address.