176 pages AEI Press  (Washington) Publication Date: January 1999 Paperback ISBN: 0844771171

January 1999
Why Sovereignty Matters
By Jeremy Rabkin

Sovereign nations now readily submit their domestic policies to international agreements and supranational institutions. Jeremy Rabkin warns that international regulation, such as the Kyoto Protocol’s ambitious scheme to combat global warming, will seriously distort the American constitutional system, threatening federalism, separation of powers, and property rights. Why Sovereignty Matters argues for reviving the traditional American view on the proper form and reach of international agreements. This book is one in a series of new AEI studies related to the globalization of environmental policy.

Jeremy Rabkin is a professor in the Department of Government at Cornell University, where he teaches American constitutional law, international law, and the history of political thought.

For the first time in decades, U.S. international commitments have begun to stir warnings—from both the left and the right—about threats to our "sovereignty." It is easy to dismiss such warnings, if one takes them to imply that the United Nations or some other international authority will force the United States to do something its own government is resolved not to do.

But "force" is not the real issue. The United Nations will never send out black helicopter patrols to work its will on the United States. But international commitments do threaten to distort or derange the normal workings of our own system so that it becomes less able to resolve policy disputes in ways acceptable to the American people.

At bottom, what makes a state sovereign is that, at least in its treatment of its own people in its own territory, it need answer to no outside authority. For the United States, sovereignty means the primacy of our own Constitution. The people of the United States, by their own sovereign authority, have made the Constitution supreme over the government, and no outside agreement can challenge that supremacy.

The point is not simply a matter of national vanity or legal formalities. The Constitution includes an elaborate series of checks and balances, designed to limit the reach of government. Policymakers have somewhat relaxed this scheme since the 1930s to give federal authorities more power to regulate at the expense of the states and to give federal administrative agencies more power to operate with broad delegations of authority from Congress. Yet the Supreme Court has begun to reemphasize both federalism and the separation of powers in the past decade. And the resilience of our traditional constitutional scheme is reflected in actual governing patterns. Even in comparison with the democratic states of Western Europe, the United States has a less regulated economy and a less centralized governing power.

It is true, of course, that the Constitution also provides authority for the federal government to make treaties the "supreme law of the land" (Art. VI). The Constitution also seems to acknowledge a general obligation to support international law by giving Congress power to "punish . . . offences against the law of nations." At the Founding and throughout the nineteenth century, leading statesmen, commentators, and Supreme Court justices insisted that treaties could not interfere with the normal workings of the Constitution at home. But they did not have to elaborate the precise constitutional limitations on the treaty power, because no international venture of that era seemed remotely to threaten the domestic authority of the Constitution.

Can the United States Follow Europe’s Example?

But now the United States can no longer avoid the old issues. In Europe, the Common Market of the 1950s and 1960s has expanded in size and ambition to emerge as something like a federal superstate, celebrating its political unity by calling itself the European Union. The European Union has undertaken not only to remove tariff barriers among the member states but to standardize products and services, to ensure common protections for labor and the environment, and to reallocate wealth from richer to poorer regions. In total, such "integration" is far more ambitious than the aggregate of policies undertaken by the federal government in the United States. Meanwhile, the European Court of Justice claims and exercises the authority to invalidate statutory enactments of parliaments in the member states, often at the behest of private firms or private advocates suing their own governments over their own internal policies.

The EU has done all that without its member states’ formally renouncing their sovereignty or formally adopting a new, supranational constitution. Officially, those changes were made pursuant to a succession of treaties—that is, international agreements—among the member states. But no one seriously pretends that the member states of the EU are still sovereign in the way they once were.

The United States has not yet embarked on anything remotely so ambitious in its dealings with foreign countries. But it has begun to participate in environmental agreements, human rights agreements, trade agreements, and agreements in other areas that do raise inescapable questions about American sovereignty. Does the Constitution permit anything at all to go into effect as an international obligation? If it does, then Washington is free to transfer power and responsibility from our own system—with its elaborate checks and balances—to the back corridors of international negotiations in foreign capitals.

Apart from safeguards imposed by our constitutional structure, administrative action in the United States is normally subject to a whole series of checks and controls—from the due process requirements of the Administrative Procedure Act, backed by judicial review, to the publicity norms of the Freedom of Information Act and the political sensitivities of budget reviews by congressional committees. None of those checks or controls applies to international agencies or international negotiations. Even where the implementation of international standards is left to U.S. agencies, then, the actual content of the relevant standards may escape the normal elements of accountability in our system.

Shifting policy initiative from our own constitutional scheme to international forums means more than shifting from controlled and accountable channels to open-ended bargaining sessions in distant capitals. The political background changes along with the legal setting. European nations generally compose their differences beforehand and speak with one voice through the European Union. And the EU tends to favor international regulation to ensure that other countries carry burdens of social regulation and welfare spending comparable to those with which European economies now struggle. Less-developed countries—what used to be called the Third World—are likely to follow the lead of a few big countries, like India or China, and they often favor international controls as a down payment on a larger scheme of international redistribution.

Meanwhile, the past decade has witnessed a remarkable growth in the international activity of nongovernmental organizations (NGOs) based in the United States or in Western Europe. With strong backing from international agencies, they seek to achieve in international negotiations something like the influence attained by public-interest advocacy groups in U.S. administrative policymaking during the 1970s. In fact, NGOs—which are private and unaccountable—now play an increasingly influential role in many negotiations, particularly when it comes to international environmental agreements.

Constitutional Limits on the Treaty Power

The ambitions of "global governance"—to borrow the enthusiastic term of a recent UN report on the subject—should not be allowed to override traditional limits on the constitutional authority of the U.S. government. From the scattered comments of earlier authorities and the evident logic of the Constitution, we can still insist on two sets of limitations on international commitments to safeguard U.S. sovereignty.

First, there are limitations on the method of implementing international agreements. Most important among them is the insistence that an international treaty cannot reallocate powers the Constitution conferred on organs of the U.S. government. Congress is responsible for making law; it cannot delegate its lawmaking powers to international authorities. The president and the Senate are responsible for making treaties; they cannot delegate this power to international authorities by ratifying a vague "framework convention" and then leaving it to international authorities to fill in the details. U.S. courts enforce and interpret U.S. law and cannot be subservient to the promptings or directives of foreign tribunals.

There are also limitations on the subject matter of international agreements. The Supreme Court has recently reemphasized that Congress can exercise its power to regulate interstate commerce only when the subject matter involves something that actually crosses state lines and something that actually is related to "commerce" in some fairly direct way. By similar reasoning, we can insist that international agreements be truly "international"—in the sense that they cover matters that actually cross international boundaries. And they must be genuine "agreements" in the sense that something is exchanged between the signatories that can be withheld or withdrawn if another party’s compliance is inadequate.

The United States does have a stake in maintaining respect for international law. And some of the most visible projects of international negotiations are not hard to square with traditional constitutional limitations. This is so, most notably, for the program of mutual reduction of trade barriers, negotiated in successive rounds of the General Agreement on Tariffs and Trade and now supervised by the World Trade Organization. The WTO’s dispute-settling machinery—a set of ad hoc arbitration panels—is open only to member states (rather than to private firms), and rulings cannot be implemented without the separate action of U.S. authorities within the United States.

There is more reason to worry about elements of the North American Free Trade Agreement. NAFTA allows private firms to appeal certain U.S. import duties to a supranational panel, the rulings of which are directly binding on U.S. courts, as if made by an American court. That is a small feature of the NAFTA scheme but a worrisome precedent. Equally worrisome, at least as precedents for future negotiations, are the side accords on environmental protection and labor conditions. Here again, the practical significance may be slight, given the very limited reach of the side accords (which purport to govern only the levels of enforcement of each country’s existing regulations, rather than set out common regulatory standards for all three NAFTA nations). But the side accords do purport to control the way the United States regulates its own citizens on its own territory. Taken as a precedent, the side accords would suggest that there are no limits on the extent to which the United States can bargain away its own internal regulatory authority (or the authority reserved to American states and localities) for the sake of reaching trade agreements with foreign nations.

Customary Law and the Global Environment

Taking that logic to a further extreme, many eminent legal commentators insist that a "customary international law of human rights" has now become binding on state and local officials in the United States. The relevant standards of that law are supposed to extend beyond the actual terms of actual treaties—and to transcend the restrictive reservations that the Senate has heretofore attached to the few human rights conventions the United States has actually ratified. Rather, it is said, that law takes its bearings by an "international consensus" registered in nonbinding reports at international conferences and in articles by leading commentators in various international law journals.

So far, federal courts have invoked the "law" only in tort actions against perpetrators of human rights abuses in other countries (though courts have included within that category American companies whose overseas business practices are supposed to have violated "customary" international standards on environmental protection and labor conditions). If allowed to develop unchecked, such new "law" will represent a wholesale delegation of U.S. policymaking to federal judges—or to international conference participants and American legal scholars. And the "law" would subject U.S. localities to an "international consensus" developed in a process in which nothing crosses a border and nothing is exchanged in any sort of reciprocal undertaking by the U.S. government.

Environmental agreements also threaten to efface any recognizable limitations on the permissible scope of U.S. international commitments. The Kyoto Protocol seeks to reduce emissions of so-called greenhouse gases (produced by the burning of fossil fuels) that are thought to threaten adverse climate change over the next century. To that end, the protocol would commit the United States to reducing energy consumption by specified amounts over the next decade. The protocol delegates to international authorities a whole series of very costly and significant policies on how emission reductions are to be measured, how the benefits of gas-absorbing forest lands might be set off against direct reductions in emissions, and how one country might take credit for fostering emission reductions in other countries. In ratifying that treaty, the Senate would seem to be ratifying in advance a whole series of future policies that may never return to the Senate for its consent.

Meanwhile, the content of the treaty is hard to square with traditional limitations on the subject matter of legitimate treaties. The treaty assumes that the actions of motorists in Kansas or home owners in Minnesota can be related to "international" concerns—although nothing done in one country can have any direct or even directly traceable effect on another. If aggregated, speculative, highly remote future impact is enough to make a matter "international," then anything at all can be the subject of a treaty—from population trends to cultural norms to basic consumption patterns within the United States (all of which are thought, by some advocates, to have possible effects on earth’s future "carrying capacity"). At the same time, the Kyoto Protocol launches a series of commitments that have no element of reciprocity. The treaty provides no enforcement measures, and the United States has no way to withdraw its emission-reduction efforts in regard to particular cheaters—in a world where the majority of emissions will soon be traceable to countries that have not even signed on to initial emission-reduction commitments.

Safeguarding U.S. Sovereignty

If the Kyoto Protocol is viewed as an acceptable exercise of the treaty power, then the treaty power means vastly mo re than we have been accustomed to think. Every aspect of American policy would seem open to international negotiations and to subsequent policy determination in a process that evades almost all the checks and balances of the American constitutional order.

Thomas Jefferson put the underlying challenge very well:

Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution.

Congress should consider new protective legislation against international bureaucratic mandates. Congress should also consider a formal amendment to the Constitution to clarify and reinforce traditional limitations. Congress could accomplish a great deal simply by reasserting traditional norms in debate on the ratification of the Kyoto Protocol or another such questionable international treaty. But one way or another, Congress must come to grips with the threatened erosion of U.S. sovereignty in the very near future.