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Legal Currents

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Is Sovereignty the Issue?
Why America Turns its Back on International Law

(Illustration: Joseph David Fiedler)

Once upon a time, international law consisted of reciprocal country-tocountry agreements. Treaties were executed and signed by elected representatives of the American citizenry, working in their constituents’ best interests. Today, however, multilateral, freestanding bodies churn out international laws that are often contrary to American desires, says Alexander Aleinikoff, who gave the Owen M. Kupferschmid Holocaust/Human Rights Project (HHRP) lecture at BC Law last spring. He argues that the so-called “democracy deficit problem” offends the American sensibility because of citizens’ strong emotional beliefs in the primacy of state, sovereignty, and citizenship. But organizations such as the United Nations, World Trade Organization, and International Criminal Court (ICC) implicitly deny that the state is an independent actor; that sovereignty cannot be delegated outside the state; and that a country’s citizens, and they alone, control their own law-making process. The result, Aleinikoff concludes, “is a profound tension between citizenship and international law.”

The Sovereignty Theory
The Georgetown University law professor and senior associate at the Migration Policy Institute argued that this fundamental difference is at the root of America’s apparent hostility to international law and is the crux of his state/sovereignty/ citizenship theory. In recent years, the US has rejected the Kyoto accord, the formation of the ICC, and the United Nations refusal to endorse the invasion of Iraq. And beyond the high-profile cases are myriad other examples of the country’s unwillingness to comply domestically with elements of international law, whether they derive from WTO rules or the Convention on the Rights of the Child. For example, Judge A. Raymond Randolph of the US Court of Appeals for the District of Columbia recently denied the Afghani detainees at Guantanamo Bay access to US courts, even while he acknowledged that customary international law demanded it.

Legally, Aleinikoff argues, the Constitution recognizes modern-day international laws, regardless of sovereignty arguments. The Supreme Court ruled 100 years ago in Paquette Habana that common international law, even when not explicitly endorsed by the US, has the force of a federal statute. So certainly law propagated by law-making bodies in which the US participates has the same claim.

But legal intellectualizing won’t change the minds of most Americans when they feel their sovereignty is at stake, Aleinikoff warns. “When you delegate authority to a decision-making body, the rules might not be ones we would have agreed to.” Getting people to accept the rules against their wishes, “is a real problem. Internationalists can’t wish it away by saying ‘common international law applies.’”

In practice, Americans are accustomed to similar democratic deficiencies. Massachusetts’ Congressional delegates may all vote against a bill that nevertheless becomes federal law, applicable within the Bay State. The current President was elected despite losing the popular vote. But these are examples of Americans delegating their law-making rights to other Americans; the notion of the nation-state as the ultimate form of governmental authority prevents most Americans from viewing, say, the United Nations the same way.

But Aleinikoff believes that this view can change, and he exhorted the law community to get involved. First, he says, lawyers can seek institutional change. They can bring suits that ask judges to apply international law. Last year, controversial US District Court Judge Jack Weinstein ruled, in Beharry v. US, that the INS had to reconsider its decision to deport a convicted felon, this time taking into account the effect the deportation would have on the man’s child. In doing so, Weinstein wrote that customary international law—in this case, the Convention on the Rights of the Child—trumps Congressional law. His decision may yet be overturned, however. Another institutional challenge could come through new laws, perhaps emulating an English “compatibility” act that requires a review of all new laws to determine whether they violate international law.

The second method open to lawyers, Aleinikoff says, is discourse that educates the public to see international law as being in conjunction with US law, not in opposition to it. Such an initiative can and should start in law school, to familiarize students with legal systems beyond America’s borders.

BC Law Professor Daniel Kanstroom endorses the proposal. “Law students need to understand that international law is as important as taking a course in property or contract law,” he says. “It is one of the central pedagogical tasks of our time.”

The Power of Self-interest
But while Kanstroom is impressed with Aleinikoff’s sovereignty argument, he also suspects that much of the public discomfort with international law stems from simple self-interest. That is, Americans usually reject the legitimacy of laws made by international organizations because they don’t like the laws, not because they dispute the legitimacy of the law-making process.

Allen Ryan, who teaches “The Law of War” at BC Law, says Americans need to take a long-range view of the world and realize that they gain more from international law than they lose from it. He thinks self-interest may be a stronger argument than sovereignty in persuading people to change their views.

US citizens occasionally see the benefits of international ties, such as wartime alliances and fair treatment of POWs. They also see the damage to US interests when other countries won’t play ball, as when Turkey wouldn’t allow troops to pass through during the Iraqi invasion, or when countries refuse to extradite criminals America wants.

Ryan suggests that how countries perceive the US’s response to international law influences their own actions. For example, Secretary of State Colin Powell has warned that the Guantanamo Bay detentions have undermined US efforts to gain cooperation in the fight against terrorism.

Once Americans understand that, Ryan says, they will realize the potential reciprocal harm to the US of boycotting the ICC and like actions.

—David S. Bernstein

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