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Lawyers without Borders

by Jeremy Rabkin
Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others? by John Fonte (Encounter, 369 pp., $25.95)

In the early 1950s, serious conservatives warned of an impending world government. In proposed U.N. human-rights treaties, they saw a device for supplanting the American Constitution and gradually imposing socialism throughout the world. But the U.N. turned out to be paralyzed by real-world divisions. Under Eisenhower and Kennedy, U.S. foreign policy paid little heed to the U.N. By the early 1960s, warnings about world government stirred little interest outside the fevered precincts of the John Birch Society.

But the end of the Cold War kindled hopes that international law could safeguard human rights, forestall environmental threats, and ensure peace and good will. In Europe, the modest Common Market of the 1950s was remodeled into the European Union. It was launched in 1992 with an ambitious regulatory agenda and plans to extend its reach to the borders of Russia, uniting some two dozen historic nations with a common currency and a common foreign policy. And somehow it was all to be done without armies or police, by the mere legal force of international agreements. The International Criminal Court (ICC), launched by a U.N. conference in 1998, embodied the global ambition of this new vision — and, in the United States, provoked a new round of conservative alarms about threats to sovereignty.

John Fonte’s new book is an alert and encompassing survey of the ensuing debate. Fonte, a senior fellow at the Hudson Institute, has been monitoring this debate for some time (as readers of these pages will recall). His book does not set out to expose dark conspiracies or secret aims. For the most part he simply reports what advocates of global government actually say — in law journals, in opinion columns, and in international forums.

These advocates, including former Yale Law dean Harold Koh (now legal adviser for the State Department), have been quite open about their aims, though not always explicit about their more uncomfortable implications. They embrace global norms, covering human rights and many other concerns, to which national constitutions must be subordinated — through a process Koh has described as “domesticating international law into U.S. law” by “constru[ing] our Constitution in light of foreign and international law.”

Fonte readily concedes that proponents of this vision do not see themselves as hostile to democracy or anti-American. But their globalist vision aims to transcend past political divisions in the world and within each nation. Their vision — what Fonte calls “transnational progressivism” — is, as he says, “post-sovereigntist” and therefore “post-national.” Necessarily, therefore, such views are also “post-American” and “post-democratic.” Underneath soothing assurances and artful ambiguities, the point is to deny the right of the American people to embrace standards different from those endorsed by the global consensus, as it is seen by enthusiasts of global governance.

Perhaps the most disturbing implication of this new outlook, as Fonte shows, is that independent states can’t go very far in defending themselves. His book includes an excellent chapter on changing understandings of the law of armed conflict. A Geneva conference in the mid-1970s sought to ensure legal protections for guerrilla fighters, while simultaneously constraining Western air power and insisting (for the first time) that violations by one side do not absolve its opponents from observing previously agreed restraints. Additional Protocol I to the Geneva Conventions (the treaty setting out these rules) was eventually embraced by all NATO nations except the United States and Turkey. Its provisions were then folded in to the treaty for the ICC.

As Fonte reports, a Pentagon war game in the 1980s convinced top American commanders that if a state adhered to these restraints against an enemy that did not, the enemy would prevail in an actual conflict. Even amidst the optimism of the 1990s, then, the Clinton administration refrained from embracing AP I, let alone the ICC.

Of course, the Bush administration was still denounced throughout Europe and by many homegrown critics for “defying the Geneva conventions” — though its policies were quite consistent with the 1949 Geneva conventions actually ratified by the U.S. Senate. In the 1980s, Fonte points out, both the New York Times and the Washington Post had voiced editorial support for the decision of the Reagan administration to reject the newer standards as providing legal succor for terrorist groups. But somehow, in the succeeding decades, the new standards came to be seen as “global norms,” already binding on the U.S. without the formality of Senate ratification.

The Obama administration has somehow managed to escape international opprobrium while ignoring U.N. criticism of its drone strikes in Pakistan. Israel has not been so fortunate. Fonte includes a whole chapter on the international campaign against Israel, titled “Will Israel Be Allowed to Defend Itself?” If states are bound by international standards — even those they haven’t consented to, even those defied by their enemies — then Israeli defense measures will constantly appear to be violating “international law.” The Goldstone Report of the U.N. Human Rights Council, denouncing Israel’s tactics in the 2009 Gaza conflict, could have been written without any serious investigation of facts on the ground. As in fact it was.

If we live in a world where the mere say-so of U.N. majorities counts as “law,” then Israel can’t be defended, since much of the world finds Israel’s continued existence a threat to peace. Elsewhere in his book, Fonte also notes the echoes of a deeper animus. In 2008, Strobe Talbott — friend of Bill Clinton, senior State Department counselor in the 1990s, subsequent president of the Brookings Institution — published a remarkably candid vision of the world’s progress in what he called “The Quest for a Global Nation.”

Talbott frets there about the ethno-religious exclusivism in the Hebrew Bible. He defends “Babylonian kings and Egyptian pharaohs” as “in important respects, just and tolerant rulers and pioneers of the novel idea that peace was preferable to war in relations among god-kings.” The lessons of the Tower of Babel do not impress the scholars of Brookings; nor does the admonition against rendering unto Caesar (or lesser god-kings) what is owed to God.

While Fonte alludes to such timeless debates — going back to the Biblical prophets and the defenders of independent Greek cities — he keeps his focus on contemporary policy disputes. The same vision that casts doubt on the moral claims of self-defense ultimately challenges the claim of nations to define themselves against outsiders. In the name of equality and inclusiveness, critics denounce any serious effort to enforce restrictions on immigration or to teach a common national history in schools. Majorities of Americans (as indeed of people in every European country) want local laws to protect at least some aspects of national culture and distinctiveness. But advocates of global governance are not much impressed by national majorities.

It is not at all clear where this multifaceted debate is headed. Fonte may give too much credit to professors, intellectuals, and visionary political advocates. His concluding chapter, echoing the “submission” in his title, suggests that the future may bring some global version of the EU. That seems unlikely. Even within Europe, the EU now seems to be staggering under its own outsized ambitions, as German taxpayers refuse to foot the bill for free-spending smaller states. And wrestling China and India and the Muslim world into a global regulatory scheme would be quite a bit more ambitious than beating down Ireland and Greece.

So eroding traditional notions of sovereignty is not likely to bring us a global tyranny. The more likely result is a world of mounting chaos. But that’s threat enough. You may, in a similar way, worry about Islamist terror networks without believing that the jihadis have much prospect of establishing a global caliphate.

I have a similar reservation about Fonte’s main argument, that global governance is a threat to democracy. It’s certainly true that ambitious schemes of global governance threaten the principle of government by consent. (To that extent, it’s quite appropriate that Fonte ends his book celebrating the moral claims of what he calls “Philadelphian sovereignty” or “democratic sovereignty.”) But the constitutional system bequeathed to us by the Philadelphia Convention — with federalism and separation of powers, fixed terms and staggered elections for the Senate — is not simply democracy. If you celebrate “democracy” alone, you might feel bound to concede that whenever the current majority agrees to cede essential powers to some supranational entity, it is entitled to do so.

The founders did not celebrate “democracy” as such, but they did emphasize the importance of “sovereignty,” in no uncertain terms. They hoped the Constitution would restrain reckless abdications of it, and they understood that, in some circumstances, defending your own is not just a right but (as the Declaration of Independence asserts) a “duty.”

Sovereignty is a complex notion, hard to explain or defend in a few words. But it serves a concern that is not hard to grasp. Fonte ends his book with the last public pronouncement of John Adams. As a co-author of the Declaration of Independence, the aged and ailing Adams was asked, in late June of 1826, to provide a toast for the impending celebration of the Declaration’s 50th anniversary. He offered, “Independence forever.” Asked whether he wanted to add anything, Adams replied, “Not a word.”

Those who hope to preserve that spirit should fortify themselves with John Fonte’s book. It is a comprehensive survey of the intellectual trends and policy nostrums now undermining commitment to national independence.

– Mr. Rabkin is a professor of law at George Mason University.

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