Even paranoids have real enemies, as the poet Delmore Schwartz once remarked. To this famous maxim one might add: even demagogues can invoke real principles. But while real enemies can usually be recognized as such, real principles sometimes never recover from their abuse by demagogues. “States’ rights” was a perfectly serious and respectable cause for most of American history, until it came to be exclusively associated with the ugly rhetoric of Southern segregationists in the 1950’s. Opposition to Communist organizing efforts in the United States was a respectable cause among labor leaders and liberal political activists in the 1940’s, but could not survive its association with the wild charges of Senator Joseph McCarthy in the following decade.
It would be most unfortunate if the recent, highly charged debate over the North American Free Trade Agreement (NAFTA) should turn out to have a similar effect on appeals to safeguard American sovereignty. For American sovereignty is, in fact, threatened by a number of current trends, and NAFTA does reflect a number of these tendencies. Yet the inconsistency and bad faith of some of NAFTA’s critics did much to discredit criticism of the underlying trend.
Thus, on the Left, the Sierra Club warned of threats to “environmental sovereignty,” though this organization and its allies have insisted in other contexts that environmental concerns know no boundaries and have championed a range of international conventions on environmental matters. Thus, too, on the Right, Patrick J. Buchanan and Ross Perot, while depicting NAFTA as the culmination of decades of “one-sided trade treaties,” never acknowledged that we cannot get other countries to remove trade barriers without negotiating agreements which will inevitably limit our sovereignty as much as theirs.
It is all the more important, then, to rescue the issue of sovereignty from the overheated and hypocritical rhetoric of the NAFTA debate. Many nations in the European Community (EC) are having anguished second thoughts about submerging their own national sovereignties in an integrated Europe. The United States is still a long way from the condition of the European states. But in the area of human rights as well as in the field of trade, we are now beginning to move in that direction, and we ought to start seriously considering how far we really want to go.
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I
Anyone who is skeptical about international commitments today is apt to be dismissed as an isolationist crank or an enemy of international cooperation. But it is possible to question the implications of recent commitments without opposing the traditional precepts of international law or the elaborate web of interstate agreements that build on them.
The framers of the Constitution made specific provisions for legislation to uphold the “law of nations.” From George Washington onward, American Presidents have agreed to international arbitration to ensure peaceful settlement of particular disputes with other nations. Federal courts, from the earliest days, have applied international norms in cases involving claims by foreign governments or foreign nationals. And a whole array of very useful international conventions, on matters such as air traffic and mail delivery, are regarded as binding by the American government and routinely recognized by American courts.
But international law could be uncontroversial in earlier times—and remains so today in wide areas of practice—because it was bound by certain historic limitations. In the first place, the classic texts assumed that international law could not impose obligations without the consent of the affected nations—expressed through their own constitutional channels. Accordingly, the United States refused to join the League of Nations in 1919 for fear that membership would have committed the country to economic boycotts and military measures at the direction of the League’s Council, independently of any decision by the U.S. Congress.
On the other hand, following World War II, the United States did accept the United Nations Charter and a number of mutual-defense pacts, like the North Atlantic Treaty Organization (NATO), which did seem to commit this country to military action on the say-so of others. But reputable legal scholars continue to insist that these international agreements only express a moral obligation and cannot actually supersede the requirement of the U.S. Constitution for congressional authorizations of military actions on a case-by-case basis.
There was also a second historic limitation to the reach of international law. Conceived as a body of rules governing the relations among sovereign nations, international law was long assumed to be inapplicable to domestic affairs—that is, to the dealings of governments with their own citizens in their own national territories. But then, very soon after its formation, the UN adopted a Universal Declaration of Human Rights and proceeded to draft international conventions spelling out the full implications of this new commitment. By the late 1940’s, some legal scholars were proclaiming a new era for international law, which would now necessarily reach into the domestic affairs of nations to protect citizens from abusive treatment by their own governments.
Yet just as the United States balked at the new sort of international commitment implied by the League of Nations, there arose in the 1950’s a sustained campaign of opposition to U.S. adherence to the UN human-rights conventions. Even the Convention Against Genocide was denounced. Its prohibition against “causing serious bodily or mental harm” to “members” of any particular ethnic or religious group was depicted by critics as a license to arraign a whole range of state and local measures in the United States—including laws permitting freedom of speech—before the judgment of international tribunals. The U.S., it was feared, would thereby be defamed and its traditional system of government disrupted.
For more than three decades thereafter, most political leaders in the United States persisted in regarding the UN human-rights conventions as inapplicable to this country. But such qualms have markedly subsided in recent years. Even so staunch a conservative as Ronald Reagan agreed, during his second term, to endorse the genocide convention, which was finally ratified by the Senate (with a series of limiting reservations) in 1986. Following the victory in the Gulf war, hailed at the time as a dramatic vindication of international cooperation, President Bush successfully urged the Senate to ratify the UN Covenant on Civil and Political Rights. And in the spring of 1993, Secretary of State Warren Christopher promised that the Clinton administration would push for Senate ratification of four additional conventions.
There is, then, good reason to think that the United States will soon be deep into the system of UN human-rights guarantees. There is also good reason to think this a very serious mistake.
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II
In retrospect, the critics of the human-rights conventions in the 1950’s were ludicrously wide of the mark in contending that ratification by the United States would subject this country to “world government.” The genocide convention does, it is true, authorize the establishment of international tribunals, on the model of Nuremberg, to try individual perpetrators of genocide. But no such tribunals have ever been established. Iraq’s ratification of the convention did nothing at all to inhibit Saddam Hussein’s mass slaughter of Shiites in his country, just as ratification by Yugoslavia (to which the Serb government in Belgrade now claims to be the rightful heir) has done nothing whatsoever to inhibit mass slaughter in that country.
The subsequent UN conventions do not even pretend to threaten serious sanctions. The sole enforcement provisions are tongue-lashings by committees of UN delegates, and “hypocrisy” is much too soft a term for the usual conduct of these committees. So the Islamic Republic of Iran, while claiming to endorse the UN Covenant on Civil and Political Rights, honors the covenant’s guarantee of religious freedom by murderous repression of the Bahai faith. Castro’s Cuba and Assad’s Syria also have found that their endorsements of this covenant, with its guarantees of free speech, do not in the slightest hinder them from brutal repression of any and all voices of dissent within their borders. The practice of “female circumcision”—the painful and irreparable genital mutilation of young girls—is prevalent in a number of African nations; it makes no discernible difference that most of these countries have ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women.
The UN’s record of utterly ineffectual enforcement of its own human-rights guarantees thus seems to nullify one of the most fevered of the earlier arguments against American ratification. But the same fact gives more point to the central question of earlier critics: what reason is there for the United States to subject itself to these norms? After all, the UN conventions are compromise documents, reflecting not only traditional American views about due process and civil liberties but also competing views, advanced by Communist and third-world representives with very different notions about the meaning of “human rights.”
For instance, the Covenant on Economic and Social Rights affirms rights to various government welfare benefits but says nothing about the right to private property. The Covenant on Civil and Political Rights affirms the right to participate in elections but says nothing at all about the right to have competing parties or even competing candidates contesting those elections. The same convention endorses free speech but then turns around and requires governments to prohibit their citizens from expressing racial, ethnic, or religious bigotry, or engaging in “propaganda for war.”
The conventions are also filled with specific provisions that have been explicitly rejected in recent public-policy debates in the United States. Thus the convention on sex discrimination requires governments to assure “equal pay for work of equal value”—what feminist advocates over the past twenty years have demanded as “comparable worth” (and failed to get Congress or any state legislature to add to existing civil-rights laws). Other vast new regulatory or spending commitments are mandated by the open-ended language of other conventions.
In effect, each nation is invited by such language to interpret its obligations as expansively or ambitiously as it may wish. Or rather, the citizens of each nation are invited to demand fulfillment of internationally sanctioned rights in accord with their own hopes and ambitions. This is an invitation that will be eagerly accepted in the U.S. by well-organized and aroused constituencies.
One can hardly blame committed advocacy groups for pushing through any door that seems open to their pressures. But the underlying question, again, is: why should this door be opened for them? Why should Congress adopt in an internationally wrapped package what it probably would not enact in individual pieces of domestic legislation?
Thirty years ago it seemed obvious to many people that the United States had no compelling reason to offer its domestic policies to international direction. Now it no longer seems so obvious. Part of the reason is that concern about American sovereignty, so readily mobilized in the 1950’s, has dwindled steadily since then, as certain aspects of the NAFTA agreement reveal.
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III
Nafta is essentially an agreement to lower trade barriers among the U.S., Canada, and Mexico. There is nothing new or inherently disturbing about this in itself. But NAFTA has two innovations which should be disturbing, as becomes apparent when one compares them with the long-established structure of the General Agreement on Tariffs and Trade (GATT), the framework agreement for international trade liberalizations since 1947.
Gatt has always made provision for each nation to exclude imports that do not comply with its own domestic safety or health standards. But GATT has simultaneously always insisted that such limitations must deal with the characteristics of the product involved, rather than the way it was produced. In NAFTA, for the first time, a trade agreement addresses the conditions under which an item was produced within the borders of the exporting country.
Thus, in the main text of NAFTA, the signatories agree that it is “inappropriate” to lower environmental standards to attract investment, so that, in principle, the United States promises Canada and Mexico that it will not reduce its own regulatory measures to help business (though that would certainly be the most obvious and reasonable motive for reconsidering onerous regulations).
Side agreements on environmental and labor concerns—negotiated by the Clinton administration precisely to allay the concerns of American advocacy groups who feared that more open trade would put economic pressure on American regulatory standards—go even further. Under those agreements, the NAFTA countries promise one another that they will fully enforce their own domestic regulatory standards on a range of environmental and labor matters. Though anti-NAFTA union leaders and environmentalists complained that the side agreements were not stringent enough, they did seem to establish a new principle. How the United States enforces its own laws on American citizens and American firms within its own borders has now become the subject of an international trade agreement. In the future, we may find that we cannot further liberalize trade without simultaneously extending regulation.
This precedent becomes all the more worrisome when one considers another innovation in NAFTA, having to do with its enforcement mechanism. GATT imposes definite obligations on signatory nations, but the obligations concern the relations of sovereign nations with one another. If a French company, for example, believes that the United States has imposed trade restrictions on its exports to the U.S. that are contrary to American obligations under GATT, the company must persuade the French government to pursue the matter with Washington. Such disputes can be submitted to arbitration, but the United States government can refuse to implement the ruling of the GATT panel, and U.S. courts will follow the policy of their own government rather than the decisions of the GATT arbitrators in Geneva.
In NAFTA, by contrast, the United States government has undertaken to treat the rulings of such arbitration panels as final and as binding in our courts. In principle, even disputes between two American firms, if one protests that the other is importing improperly subsidized goods from Canada or Mexico, could be referred to a NAFTA panel instead of an American court. By the terms of NAFTA, moreover, no more than half the members of any such panel will be appointed by the United States.
When the Canadian Free Trade Agreement was presented to Congress by the Reagan administration in 1988, the Justice Department warned that relegating adjudications of American law to officers not appointed by the President would be unconstitutional. These constitutional objections were disregarded at the time and not reconsidered for NAFTA. In fact, the arrangement has been extended in the side accords.
If this sort of thing can be done for trade and then for environmental and labor disputes, why not finally for civil-liberties or civil-rights questions, where we look so often to our own courts?
This prospect is not at all far-fetched. Already, just such an arrangement exists in Europe, where the European Court of Human Rights in Strasbourg hands down judgments in complaints against the member-states—for example, it overturned Ireland’s traditional law against sodomy—and these judgments are accepted as binding, even if they conflict with the judgments of national courts.
Actually, the European Court of Human Rights has a Western hemisphere counterpart: a formal tribunal functioning in San José, Costa Rica, to enforce the InterAmerican Convention on Human Rights (known as the Pact of San José). Most countries in the Western hemisphere now subscribe to this convention, but the United States has never ratified it. So far, the court in San Jose has been far more modest and cautious than its European counterpart in Strasbourg, and the Latin American nations subscribing to this convention are more socially conservative in many ways than the nations of Western Europe. But the foundations for a more ambitious project are in place.
Indeed, some critics of NAFTA have already begun insisting on this. To ensure that Mexico does not use repressive measures to suppress wages or environmental advocacy, they have argued, the U.S. should insist on full Mexican compliance with the Pact of San José. And to do this, we should ratify the pact and play a full part in its interpretation and implementation. So there it is.
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IV
Sovereign nations are supposed to make their own decisions, in accord with their own constitutional standards. Hence traditional notions of sovereignty are as threatened when foreign courts (or binding-arbitration panels) are licensed to enforce American trade law as they are when American courts are obligated to enforce international norms on purely domestic matters. And now this trend toward diminishing American sovereignty has moved into foreign policy. For the United States, for the first time in its history, has begun to do what the opponents of the League of Nations most condemned—putting American troops at the disposal of international authorities.
What may appear to be precedents for such action were actually adornments of fundamentally American decisions. President Truman did claim a resolution of the UN Security Council as justification for sending American troops to repel the invasion of South Korea—but the troops were dispatched to Korea, and by the decision of Truman himself, before the Security Council voted its resolution on the matter. More recently, President Bush toyed with the notion that, having received authorization from the UN Security Council to take military measures against Iraq, he did not need a direct authorization from the Congress of the United States. In the end, Bush decided it would be safer to seek direct authority from Congress and did receive it.
It is true that American forces have been placed temporarily under foreign command at various times in the past. But these were generally situations where the larger strategic aim was clearly established and the tactical command of a foreign general was simply a minor incident in an agreed American effort (as when troops fighting their way into Germany were placed under the command of Britain’s Field Marshal Montgomery).
The situation is quite different when American troops are sent to a UN command. Last July, President Clinton did just that when he notified Congress that, pursuant to a resolution of the Security Council, he was dispatching 350 American troops to bolster the UN Protection Force (UNPROFOR) of some 700 soldiers from a “Nordic battalion” already serving in the former Yugoslav Republic of Macedonia.
These American troops, Clinton explained, will “serve under the operational control of UNPROFOR Macedonia and will conduct missions as directed by the UN commander.” In contrast to American action in the Gulf war—or for that matter, in the Korean war—we are in Macedonia not as the dominant power, with a UN mandate to lend moral force to our own strategic decisions, but as a minority participant in a truly multinational effort.
The UN troops in Macedonia are not engaged in “peacekeeping” in the usual sense, since there has been no actual fighting there. Their purpose is to deter Serbian aggression. But it remains unclear what these forces would do if the Serbs were to attack them. They are too small to defeat the Serbs. Would they even give battle if the Serbs attacked? Should they try to defend Macedonia if it came to that? Would an armed conflict involving American troops commit the United States to send larger forces to avenge the attack on our original token presence?
None of this seems to be worked out (or if it is, the President has not made any of the details public). It appears that American forces are hostage to the decisions of “Nordic” commanders operating under the very ambiguous mandate of the United Nations, and that the President of the United States is content to leave things in this posture. So are many other Americans, who think there is less taint of selfish action or of superpower bullying when the United States commits forces in this sort of truly multilateral operation.
Last summer, the Clinton administration was reported to be preparing a major new National Security Memorandum to justify more such undertakings in the future. Negative initial reaction—and the embarrassing reversals in Somalia and Haiti—forced the administration to rethink its “clarification.” Guidelines proposed to Congress in early February reflect a more cautious view, but still leave the door open for U.S. forces to take part in peacekeeping ventures under UN command. Meanwhile, American troops remain under “the operational control of UNPROFOR” in Macedonia.
One thing is certain: if any American troops are killed on a mission of this kind, it will be much harder for the American people to know whom to blame than it would be if the troops were fully accountable to the U.S. Commander-in-Chief. Perhaps that is part of the attraction of such arrangements. It is also what makes them so objectionable from a constitutional point of view.
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V
All these developments are straws in the wind. We are still a very, very long way from the nightmare of critics in the 1950’s that Americans might wake up one day to find themselves captive to a sinister world government directed through the UN. Nothing has yet been attempted, nothing has yet been seriously proposed, perhaps nothing has yet even been fully imagined for American international commitments that is not already being done by other countries, including such notably independent ones as France. But it is obvious that the United States is beginning to entangle itself in commitments of new kinds, commitments that previous generations of Americans would have resisted as threats to American sovereignty.
Sovereignty is not a matter of legal formalities. Nor is it a license to act in disregard of international commitments or accepted norms of international conduct. The central purpose of sovereignty is to clarify governing responsibility. The government of a sovereign nation is responsible for governing in ways that serve and satisfy that nation itself. The ultimate issue is accountability, and the gradual erosion of sovereignty entails a blurring of the lines of accountability.
These new kinds of international commitment thus threaten to become the counterpart of domestic judicial activism or a higher version of the same phenomenon. In the heyday of judicial activism under the Warren and Burger Courts, the Supreme Court pursued an agenda that even sympathetic politicians could not follow—in relation to school busing, abortion, the unloosing of pornography, the suppression of public support for religion, and so on and so on. Whatever one might say about the legal niceties, it was always within the power of Congress to force a halt to any or all of these judicial policy initiatives. Yet we have never had a sufficiently serious debate in Congress about quotas or busing or even about abortion, because politicians were able to hide behind the courts, insisting—often with feigned regret and always with expressions of high piety toward the Constitution—that “the rule of law” must be obeyed.
Change the focus to “international law,” and the same rationale can be invoked. But questionable as it may be to subject ourselves to the policy ambitions of American judges, it is even worse to subject ourselves to foreigners. Quite apart from other considerations, the internationalization of our domestic-policy disputes adds one more—and potentially much larger and more intricate—layer of technical confusion between public preferences and the excuses of politicians not to respond to them. It makes government that much more obscure, remote, and inaccessible to ordinary citizens.
It is indeed the case that other countries, most notably in Western Europe, have been willing to travel down this path, jettisoning traditional notions of sovereignty along the way. But there are several reasons why the United States should be more wary of such a tendency than the Europeans have been.
The first is that the United States is simply larger, richer, stronger than any other nation. From this it follows that we can afford to be more cautious, and also that we need to be. It is one thing for Pakistani troops to be humiliated in Somalia or for “Nordic” troops to be fired upon in Macedonia; the implications are quite different when American troops are the hapless victims of ill-considered commitments. The point is not that American lives are inherently more valuable, but that American power is inherently more significant. It cannot mean the same thing to the world when Norway retreats under fire as when the United States does.
Similarly, American trade policy—or the American stance toward international environmental norms—has a greater impact than the policies of Australia or even of France or Germany, if they act apart from the EC. Whether we like it or not, our greater wealth puts us in a different position in relation to international commitments.
But there are also other reasons why the same trends may have a very different significance for the United States than for other countries. A recent study reports that after the EC adopted a general directive on comparable-worth regulation, only Britain felt obliged to implement it in a systematic way, even though the substance of the policy was more distasteful to Prime Minister Thatcher’s government than to any other involved. France, Italy, and many other countries are notoriously adept at maneuvering around legal commitments they deem inconvenient. The United States will find it even harder than Britain to do so. For we have a system that is most ill-suited for evading or containing awkward policy commitments which come with some momentum of prestige—such as “law” or even “international law.”
Yes, there are notable exceptions (the Reagan administration successfully defied a ruling of the International Court of Justice in its policy toward Nicaragua). But it remains the case that American policy-makers are subject to scrutiny and pressure to an extent that their foreign counterparts generally are not. The separation of powers helps to assure this—congressional committees can investigate, publicize, and bully executive officials in ways that would be inconceivable in Europe or Canada. The traditions of an aggressive media culture help to assure this as well. Once a significant domestic constituency gets hold of a favorable ruling from a supranational authority, it will not be easily put off or sidetracked—certainly not by appeals to defer to the larger perspectives of executive officials.
Finally, there is the fact that America is less used to being directed by powerful state bureaucracies. This, no doubt, puts limits on how much anyone can expect to achieve by invoking supranational authorities, just as it has always put limits on how much could be achieved by appeals to even the most activist domestic court. But it also means that there is the potential for adding new layers of unmanageable mandates.
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VI
One of the most striking things about the United States today is the disproportion between issues that agitate the national government and problems that actually affect people in their daily lives. The national government has become preoccupied with ever more subtle definitions of “sexism” or “sexual harassment,” while illegitimacy rates have tripled in 30 years. The national government has become preoccupied with ever more obscure and minute health risks from ordinary foods, while the murder rate has likewise tripled. The national government has become preoccupied with ever more ambitious programs for multicultural recognition and bilingual education, while public schools can no longer assure that even native English-speakers will learn to read and write and do arithmetic at what were once grade-school levels.
Clearly these trends are related. A national government that has sucked more and more resources and regulatory power to the center has become prey to a wider and wider circle of special-interest advocacy groups which make it impossible to focus on the immediate priorities of ordinary citizens. What the centralization of policy at the federal level has done in recent decades, the internationalization of policy threatens to compound. It holds out the prospect of an ever more chaotic set of authorities, presiding over an ever more chaotic world, at a greater remove from the issues that most concern us here in the United States.
