Harvard currently faces a lawsuit alleging discrimination against Asian Americans, and the facts reveal the divisiveness of counting by race.
Concerns about sovereignty in an age of globalization are common, and often take a defensive posture that seeks to limit the reach of international law. But sovereignty and international law are not incompatible. Broadly understood, sovereignty may be defined as the advancement of the national interest, and the reality of globalization requires the United States to make decisions that further the national interest through international engagement.
In some cases global engagement finds expression by persuading other nations to take the path we have already chosen. One such example is the effort to combat bribery of foreign officials, which began as an American experiment with the Foreign Corrupt Practices Act, but now has garnered widespread adherence among the capital-exporting nations of the world with the OECD Anti-Bribery Convention. Another example is the expansive interpretations of prescriptive jurisdiction to combat terrorism, international drug-trafficking and other international crimes, with American legal norms quickly spreading to other countries. Successfully exporting our ideas abroad poses few risks to national sovereignty.
In other cases global engagement finds expression through cooperative efforts between executive branch officials and their counterparts in other countries. The Basel Committee on Banking Supervision coordinates banking and monetary policy worldwide through an informal network of information exchange. Antitrust authorities in the United States have signed antitrust cooperation agreements with other key countries to promote cooperation and convergence in international antitrust enforcement. Administrative agencies in the United States routinely coordinate with the administrative agencies in other countries, and this poses few problems for national sovereignty.
These are easy cases. Such soft commitments do not impose binding obligations on the United States, but simply afford opportunities for effective coordination with friends and allies. Globalization presumes regulatory coordination across borders, and the United States advances its national interests by engaging in such conduct.
Sovereignty concerns more commonly arise when the United States is subject to binding international commitments that require us to comply with judicial, executive or legislative decisions rendered by unaccountable, unelected international bureaucrats. These forms of international commitments are invariably established by treaty, and therefore treaties will be the focus of my discussion.
While there are legitimate concerns about a nascent global administrative state, one should recognize that treaties are rarely a threat to national sovereignty. Indeed, treaties should be seen as an expression of sovereign will to protect and advance our national interests.
Treaties are optional commitments, freely entered into by political actors in order to achieve mutually-beneficial results. Like contracts, the first principle of treaties is party autonomy.
Sovereign nations negotiate the terms of a treaty and ultimately decide whether or not to join a treaty. The United States, for example, was intimately involved in the drafting of the treaty establishing the International Criminal Court, but ultimately decided not to become a member because the final text included unacceptable terms. The same could be said of dozens of other treaties.
Sovereignty also is protected through treaty formation norms that limit the universe of political actors authorized to enter into treaties. Only sovereign nations and international organizations are authorized to enter into treaties. This reinforces our own constitutional commitment to federalism as reflected in the Compact Clause, which prohibits U.S. states from entering into international treaties with foreign powers in the absence of congressional consent. International law and constitutional law both encourage the United States to speak in international affairs with one voice.
Even after signing a treaty, sovereign nations attach reservations, understandings, and declarations (RUDs) that condition, interpret, and limit the impact of a treaty. The United States quite often will include a RUD stating that the treaty is not self-executing, or stating that the terms of a treaty are coterminous with our constitutional obligations.
When a nation does sign a treaty, its obligations are rarely permanent. Treaties frequently allow for member states to withdraw from a treaty, and almost always permit suspension of treaty obligations in the face of a breach by another member state.
All of these tools are designed to preserve sovereigns’ prerogative to protect the national interest. But it is not simply the formation and termination of treaties that are designed to protect sovereignty. The performance obligations of treaties also are drafted to protect national sovereignty.
Most human rights treaties, for example, include Optional Protocols that require a nation to affirmatively opt-in to international adjudication of domestic behavior. The same is true of the compulsory jurisdiction of the International Court of Justice. The WTO and many bilateral investment treaties have incorporated self-judging national security exceptions, essentially rendering key questions of national sovereignty non-justiciable political questions beyond the purview of international courts. The WTO also designed the dispute settlement process in a manner that anticipates the possibility that member states will rationally decide to engage in an efficient breach of their obligations.
Much of the concern about treaties relates to the risk of unanticipated consequences. For example, international courts may interpret the terms of a treaty quite differently from what the United States anticipated. This risk is mitigated in a number of ways.
First, the United States may choose whether to give those international decisions domestic effect in federal court. As the Supreme Court noted in Medellin v. Texas, the “judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress.” The domestic effect that international tribunal decisions have in federal courts falls along a continuum of deference according to the dictates of the political branches.
In some cases, such as the International Centre on the Settlement of Investment Disputes (ICSID), Congress has stipulated that an ICSID award “shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.” In other cases, such as WTO decisions, awards are given no direct effect in federal courts, and any decision to comply with an adverse WTO decision is left to the sound discretion of the political branches. In still other cases, such as awards rendered under the New York Convention, implementing legislation obligates federal courts to enforce foreign arbitral awards unless doing so would undermine our public policy. Such public policy exceptions are “sovereignty safety valves” that allow a treaty commitment to give way to the national interest.
Second, if an international tribunal interprets a treaty contrary to the shared understanding of member states, some treaties allow member states to issue a binding interpretative statement that will supersede the tribunal’s interpretation. This was done in the NAFTA context, when Canada, Mexico, and the United States issued a binding interpretive note in 2001 on the correct meaning of both substantive and procedural provisions of NAFTA.
Third, if the jurisprudence of an international tribunal is sufficiently objectionable, sovereign nations remain free to withdraw from the tribunal’s jurisdiction. In 2005 the United States withdrew from the Optional Protocol of the Vienna Convention on Consular Relations, which vested the ICJ with jurisdiction over disputes arising from the convention. In the late 1990s three Commonwealth Caribbean countries—Jamaica, Guyana, and Trinidad & Tobago—withdrew from the ICCPR’s Optional Protocol. In recent years, Venezuela, Ecuador and Bolivia have announced their withdrawal from ICSID.
Fourth, there is the unanticipated risk of indirect application of international law. Federal courts occasionally reference international tribunal decisions when interpreting domestic law. The Charming Betsy doctrine, for example, counsels courts to interpret statutes consistent with international law as interpreted by international courts. But in truth, this possibility advances rather than diminishes popular sovereignty. The Charming Betsy doctrine was designed with separation of powers in mind, limiting the instances in which the judicial branch will construe legislative enactments to encroach on executive authority in the foreign affairs arena. To the extent international law runs counter to the popular will, the Charming Betsy doctrine requires deference to the clearly expressed intent of Congress, regardless of what international law may require.
Finally, perhaps the greatest risk to popular sovereignty posed by international courts interpreting treaties is the possibility that federal courts will use these decisions as a device to interpret the U.S. Constitution. This was a serious threat in a handful cases a decade ago, but it created such a popular uproar that courts have retreated from this experiment. The very idea has become politically toxic, and every Supreme Court nominee now denounces the practice during confirmation proceedings.
In conclusion, we have little to fear from treaties. Treaties are hardwired to protect national sovereignty. The process of formation, performance and termination of treaties was designed to advance sovereign interests. Occasionally there are unanticipated consequences that flow from adherence to treaties, but these risks to sovereignty are manageable. Widespread adherence to treaties reflects a political calculus that the benefits of membership outweigh the costs.