A Defense of Sovereignty

National Review Online, March 10, 2005

From the war in Iraq to the controversy over the International Criminal Court, the concept of sovereignty lies at the heart of the debate on whether the United States can act without the consent of international organizations. In The Case for Sovereignty, Cornell government-professor Jeremy Rabkin argues that sovereignty undergirds America’s right to protect itself and to behave differently, even when other countries disagree.

Rabkin recently answered some questions about his new book from Stanford Law student Ying Ma.

National Review Online: What is sovereignty?

Jeremy Rabkin: Only a few decades ago, writers on international law used sovereignty as a synonym for independence. That’s still a good place to start. International law is binding on the United States only to the extent that it is endorsed and enforced, within the United States, by our own government. Our own law has priority. That’s why we are still sovereign.

NRO: How did the Founding Fathers view sovereignty?

Rabkin: The Constitution makes federal law (and the federal Constitution) “supreme law of the land.” States don’t even have the last word on their own constitutions (or when they can adhere to their own constitutions). All of the Founders would have been appalled at the thought that the federal government, in turn, would be subordinate to some supranational or international entity, which could claim priority in this way over the American Constitution and American laws.

NRO: Is the sovereignty advocated by the Founders eroding in America?

Rabkin: Perhaps “eroding” is too strong a term. But we are not as alert to dangers as we once were. For example, the Supreme Court has recently invoked foreign legal decisions as a guide to interpreting the U.S. Constitution — on the apparent assumption that our own constitution ought to be consistent with what the Court has called the opinions of “the world community.” The premise is that the world is evolving toward consensus and the United States must be part of that. The purpose of sovereignty is to safeguard our right to be different — because we have no good reason to think others know better than Americans how our nation should be governed or that Americans will be more attached to world law than our own law.

What concerns me is the general idea that America is offending other nations by holding to its own constitutional scheme. We shouldn’t be apologetic about that. We have good moral claims to hold to our own traditional governing scheme. Sovereignty may be out of fashion in Europe but it still has lots of appeal to most countries in most other parts of the world.

NRO: What are the key differences between how the United States and certain European countries, like France and Germany, view sovereignty?

Rabkin: All members of the EU have now bound themselves to a scheme in which the European Court of Justice treats mere treaties as superior to national constitutions — and national courts give priority to the rulings of this European Court, even against their own parliaments and their own national constitutions. This is way, way, way, beyond anything we could accept in America. To find an analogy, you must imagine that NAFTA officials in Montreal claim the authority to override the U.S. Congress and the U.S. Supreme Court — and federal judges in America agree that the NAFTA policy must take priority.

What makes the European scheme particularly bizarre — at least from our point of view — is that Europeans aren’t really prepared to pursue their “Union” to its logical conclusion. They don’t trust the EU to have an army or police or even criminal courts of its own. So Europeans are entrusting supremacy to a government they don’t really trust — at least not enough to entrust with traditional attributes of sovereignty.

In the long run, the American scheme is bound to be more respectful of individual rights and personal liberty, because we start from the recognition that people can disagree whereas the EU is always presuming some consensus that will — supposedly — be discovered by bureaucrats and judges. In the long run, the American scheme is bound to be more alert to security threats, because we start from the recognition that outsiders may well mean us harm, so we have agreed to work together — in this country, under our own scheme of government — for our “common defense.” The EU scheme always suggests that people can be protected by negotiations, since Europeans have ceded supreme power to a “construction” that doesn’t have an army. Doing what bureaucrats do — which is all that the EU can do — is supposed to be enough. If it isn’t, Europeans are in a lot of trouble. So the structure of the EU encourages Europeans to continually disregard actual threats to their security.

NRO: In your book, you call for the United States to consider withdrawing from the U.N. altogether. The Bush administration, however, has insisted that the United States is not out to destroy the U.N. but merely wants to make it more effective. Do you think the administration’s stance is unwise?

Rabkin: The point of my book was to emphasize the difference between a sovereign state and an international organization. The U.N. is merely an international organization. At its best, the U.N. is simply a forum for negotiations. But negotiations don’t always succeed. When the U.N is paralyzed — as it usually is — we need to think about alternate forums or specialized coalitions to pursue our aims. That’s what we did throughout the Cold War. That’s what we did in Iraq in 2003. That’s what we’ll have to do in the future.

I don’t think it is contradictory for the U.S. to demand, on the one hand, that the U.N. address serious challenges, while warning, on the other hand, that we may ultimately leave the organization, if it does not. The main reason to talk about leaving the U.N., however, is to remind ourselves what we are seeking at the U.N. — not a world government, but simply a tool for our diplomacy.

NRO: Should states enjoy the protection of sovereignty even when they are committing genocide?

Rabkin: The question isn’t whether intervention against genocide is or isn’t justified. The question is whether anyone in the outside world is prepared to commit troops to a purely humanitarian venture. Intervention in Rwanda [when genocide was raging in 1994] would have been justified. The reason the U.N. allowed nearly a million people to be slaughtered wasn’t that there was disagreement over the legal basis for intervention, but that no outside power was prepared to risk its own troops to do anything about this horror.

The rare cases where we might contemplate serious intervention to halt a humanitarian catastrophe should accordingly be treated as what they are — rare cases that require extraordinary consideration. Even in these cases, if you leave the question to the UN, you
almost guarantee that nothing will happen — as we see now in Sudan.

What the U.N does is to invoke the specter of genocide as a rhetorical club against sovereignty — then to ignore actual genocide and busy itself with such things as feminist social policy.

NRO: Both remaining members of the Axis of Evil, Iran and North Korea, have claimed that they have the sovereign right to pursue weapons of mass destruction. Do they?

Rabkin: This is a difficult question but it shouldn’t paralyze our minds. The worst thing about U.N.-think is that it encourages magical thinking — the fantasy that a problem has been fixed when the Security Council adopts a resolution on it. I don’t at all want to encourage the idea that sovereignty is the white magic that will cure all problems if we recite that word with enough fervor.

There are exceptions to sovereignty. Preemptive action implies that some actions by other countries are so threatening that they will justify military action before the threat has been realized. It is not at all whimsical or idiosyncratic to say that acquisition of weapons of mass destruction would justify preemptive action.

How can we demand that North Korea or Iran go without nuclear weapons while we and other countries still claim the right to hold such weapons? We trust ourselves not to use these weapons recklessly but we don’t trust these countries to do the same, given their recent conduct — particularly, their recent involvement with terrorist groups.

Much of the world may see things differently. That’s a challenge for our diplomacy. If the alternative is suffering a nuclear attack on New York or even on Cleveland, it won’t be much consolation that at least we respected a world consensus on sovereignty.

NRO: What should American policymakers remember about sovereignty as they undertake the potentially unpopular exercise of defending it?

Rabkin: The reason to talk about sovereignty is not to establish a simple formula that dictates the correct foreign policy in every situation. It is rather to remind ourselves that we do have to make serious choices, because international law can’t settle very much for us. We don’t really want to live in a world where international lawyers or some other guild of self-appointed global managers can supply all the answers to all the big questions. In the end, very few countries would want to live in such a world. But we are in the best position right now to defy the pretensions of international lawyers. Whether others acknowledge it or not, we are doing the world a service when we hold international authorities within limits. As our own Declaration of Independence says, only God is above sovereign states. If we don’t want national governments to play God, we have even less reason to trust divine authority to international monitors. That’s what independence means.

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