Bolstering American
Sovereignty with Treaties
by Roger Alford MAY 6, 2012
In response to: Debating
Sovereignty: Globalization, International Law, and the United States
Constitution
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.
