How the Idea of National Sovereignty Is—and Isn't—Changing

A new book furthers the trend of worried "new sovereigntists," but global institutions are hardly the threat to U.S. democracy that they claim

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People sign a huge copy of U.S. Constitution at an "Occupation of Washington" march camp in Washington / Reuters

In a July 4 post, I predicted that the debate over U.S. sovereignty could become the most contentious and momentous debate in 21st century U.S. foreign policy. On cue, John Fonte, a senior fellow at the conservative Hudson Institute, fired an opening salvo.

His new book, Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others?, is required reading for anybody seeking insight into the thinking of the "new sovereigntists." That's the catchy label Peter Spiro has coined for a group of Federalist Society affiliated scholars who are convinced that trends in "global governance" pose a potentially lethal threat to U.S. constitutionalism and democratic sovereignty. Given the urgency with which Fonte writes, it's probably no accident that his book's title has the acronym, "SOS."

Fonte's thought provoking if ultimately overheated argument runs like this: The basis of legitimate political authority in the United States--and by extension globally--is the consent of the governed, making the liberal democratic nation-state superior to all other forms of political organization. The American founders, building on the philosophy of John Locke, established a governing system in which the Constitution recognizes no superior political or legal authority. It is thus the antithesis of efforts to create a world-empire, which date back to classical antiquity, or more recent schemes of "global governance."

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Unfortunately, Fonte argues, defenders of "democratic sovereignty" are under siege by a coalition of "global governancers," composed of Western legal scholars, human rights activists, nongovernmental organizations (NGOs), global corporations, international organizations (don't forget their furtive bureaucrats), liberal U.S. foundations, transnational networks of like-minded government officials, and "post-modern" national governments, particularly in Europe. This so-called "party of global governance" is using a variety of means to constrain and ultimately enmesh the United States in a latticework of new institutions and law. Fonte observes several machinations at play:

  • Liberal legal scholars are trying to dramatically expand the boundaries of "customary" international law well beyond the established principles of state consent and practice;
  • Transnational networks of judges and lawyers are promoting concepts of "universal jurisdiction," through institutions like the International Criminal Court;
  • Global alliances of progressive jurists are seeking to subordinate national legal systems to a growing body of "transnational" law;
  • U.S.-based NGOs, activists and foundations, unable to achieve their objectives nationally, are making an end-run around U.S. democracy, mobilizing "global civil society" at UN conferences to advance different left-wing goals.

Most important is his distinction between multilateral cooperation that is fundamentally international--that is, reflecting the negotiation of rules, norms and institutions among sovereign states--versus that which is either transnational--reflecting agreement among networks of judges, jurists, and lawyers, and as such un-tethered from national political processes--or indeed supranational--that is, reflecting the zero-sum delegation of political authority from the nation-state to a superior regional or global entity.

But SOS paints with too broad a brush and vastly overstates the dangers it purports to identify. To begin with, there is no coherent "party of global governance". Yes, we occasionally see common cause among human rights lawyers, NGOs, Western universities, private corporations, foundations, the EU, and post-modern states. But by no means do they present a consistent, unified front, and evidence of their commandeering U.S. foreign policy preferences and international outcomes remains scant. And even when some groups make common cause, as at UN mega-conferences, Fonte's book repeatedly shows how the United States has rebuffed their aims or rejected their claims. This is true even of Fonte's centerpiece example, the 2001 Durban Conference on the Elimination of All Forms of Racism and Discrimination. Faced with an unacceptable text, the Bush administration delegation simply walked out--just as the Obama administration chose not to participate in the follow-on conferences in 2009 and 2011.

Presented by

Stewart M. Patrick is a senior fellow at the Council on Foreign Relations (where he writes the blog  The Internationalist) and Director of the Program on International Institutions and Global Governance.

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