Foreign Affairs: War of Law


The War of Law

How New International Law Undermines Democratic Sovereignty

By Jon Kyl, Douglas J. Feith, and John Fonte, July/August 2013.

Rarely does the U.S. Senate reject a treaty. But on December 4, 2012, it did just that, blocking ratification of the UN Convention on the Rights of Persons With Disabilities. President Barack Obama had argued that by joining, the United States would “reaffirm America’s position as the global leader on disability rights” and help inspire other countries to improve their treatment of the disabled. Skeptics asked why ratification would prove more inspirational than the U.S. domestic laws already on the books. When skeptics also warned of the effect on U.S. sovereignty, supporters stressed that the treaty imposed no burdensome requirements. That was a peculiar argument, for if the treaty lacks substance, then there is no point in ratifying it, and if it makes substantive demands on the parties, then the concerns about sovereignty are well founded.

What little news coverage the Senate vote did garner tended to describe the treaty’s supporters as sympathetic to the disabled and its opponents as insensitive. Little light was shed on why any senator would appear to subordinate the interests of the disabled to an ideological abstraction such as sovereignty. But what sank the treaty was not heartlessness, nor was it any abstract quibble. Rather, opponents were worried about something practical and fundamental: whether U.S. laws should be made by politicians held accountable to Americans through the ballot box or by unaccountable officials in multinational organizations. If the treaty has a practical effect, it will be due in large part to interpretations made by foreign government officials and judges and by nongovernmental organizations, none answerable to American voters.

This is not to say that international agreements should never become part of domestic law. After all, the U.S. Constitution specifies that treaties, together with the Constitution itself and federal statutes, are “the supreme law of the land.” But in some areas, the United States has no compelling interest in involving itself in other countries’ debates, nor would it welcome interference in its own. Policy toward the disabled falls into this category, because assistance often involves expenditures, such as for cutting sidewalks to accommodate wheelchairs. Although the United States has proudly and properly led the way in promoting greater accessibility for the disabled, a sovereign country has the right to consider the relevant tradeoffs and come up with its own budget. It should not make a vague international legal commitment to a certain standard of care for the disabled and then be subject to outside complaints that it did not take more money away from, say, programs for feeding hungry children.

Nothing should stop the president from encouraging other countries to follow the United States’ example on policy toward the disabled. But if he starts interpreting the disabilities convention as mandating what their laws should require as to wheelchair ramps and shower rails and how much they should spend on such items, then he is crossing the line into becoming an officious nuisance — and inviting others to meddle in U.S. affairs. If officials are going to make rules for Americans on such matters, those officials should be Americans, democratically accountable to voters. Given the recent history of international meddling of this kind, even when a treaty is non-self-executing (that is, its implementation requires the passage of a law), this is not merely a theoretical concern.

The debate about such treaties has heated up in the era of globalization as many policymakers have looked for international ways to solve problems traditionally addressed through domestic means. In the United States, some officials have favored a hands-off, “Fortress America” approach to such challenges, as if globalization could be wished away. But isolationism has never been a serious option for protecting the country’s security and prosperity.

Others have taken the opposite approach, embracing globalization in the name of transnationalism, the idea that growing interconnectedness should dissolve international boundaries. Like the isolationists, the transnationalists propound ideas at odds with the practical requirements of the real world and with basic American principles. National sovereignty, they contend, is growing increasingly problematic, impeding the achievement of multinational solutions to public policy problems. They argue that democratic and nondemocratic nations should share sovereignty and subordinate aspects of lawmaking to global legal regimes.

U.S. officials, however, can steer a course that avoids the shoals of neo-isolationism and the cataract of transnationalism. There is a way for the United States to deal with globalization and international law realistically and in accordance with American principles of democratic lawmaking and national sovereignty. This course reflects the conviction that the U.S. Constitution is up to the challenges of the twenty-first century, that the country’s foundational concepts — the separation of powers, federalism, and representative democracy — remain sound. Globalization does not require the United States to set aside those ideas in favor of new, ostensibly more progressive notions of how to legislate.

For complete article, see Jon Kyl, Douglas J. Feith, and John Fonte, The War of Law, Foreign Affairs, July/August 2013

(Emphasis added)