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

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 21^st 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.

It is also ironic to see Fonte continuing to depict the EU (European Union) as a likely blueprint for global governance. Beyond growing frustrations over the EU's "democracy deficit," which Fonte ably documents, the EU is currently experiencing a re-nationalization of politics. Growing populism is checking, and perhaps reversing, the centralization of political authority in Brussels. And regardless of what happens in Europe, the world outside the EU remains a society of states where governments jealously guard their sovereignty.

SOS also bemoans the role of UN special rapporteurs and monitoring committees who have the temerity to judge U.S. compliance with international human rights and other standards, while showing how U.S. administrations have repeatedly brushed aside their reports as biased. And when it comes to treaties, as Fonte himself observes, the United States has a venerable tradition both of rejecting treaties lacking necessary support in the U.S. Senate (such as the Convention on the Elimination of Discrimination against Women or the Comprehensive Test Ban Treaty)--as well as including in treaties it does ratify numerous reservations, understandings, and declarations that preserve the unadulterated supremacy of the U.S. Constitution.

It is thus hard to take seriously Fonte's conclusion that recent trends in global governance pose "an existential challenge to American democracy," on the order of militant Islam or China's geopolitical rise (or for that matter climate change or nuclear proliferation, topics he barely mentions). His alarmism overlooks the resilience of support for democratic sovereignty--and traditional international­­ governance--within not only the GOP but the Democratic Party, too.

To be sure, global integration, rising security interdependence, and the expansion of international law pose real challenges for all states when it comes to traditional concepts and practices of national sovereignty. Political leaders in the United States will need to calculate when circumstances warrant making compromises in their historical autonomy and freedom of action to address global security, economic, environmental, and universal human rights challenges.

Too often, U.S. exceptionalism has translated into an arrogant "exemptionalism." It is time the "new sovereigntists" acknowledge that in certain circumstances, the limited and voluntary delegation of sovereignty to new frameworks for international cooperation--whether in return for securing trade benefits, curbing the proliferation of weapons of mass destruction, or protecting states from major financial crises--is hardly a "existential threat" to U.S. democracy, but rather a fundamental safeguard.

This article originally appeared at CFR.org, an Atlantic partner site.