BOOKS AND ARTS JUNE 27, 2005
Law Without Nations?: Why Constitutional Government Requires Sovereign States By Jeremy A. Rabkin (Princeton University Press, 350 pp., $29.95)
Jeremy A. Rabkin's book is a forceful defense of the virtues of national sovereignty, and of the claim that American constitutional government places strict limits on the reach and authority of international law. In part, Rabkin is responding to critics of the unilateralism of the Bush administration--its rejection of the Kyoto Treaty, its refusal to join the International Criminal Court, its invasion of Iraq without explicit U.N. Security Council authorization; but the interest of his book is much broader than that. It takes up one of the most important questions we face about the direction of the world, and it compares the merits of the internationalist answer to that question embodied in the ideals of the European Union, and the more nationalist answer represented by the conduct of the United States and (according to Rabkin) by its entire historical and constitutional tradition.
The sovereign nation-state has existed for only a few centuries, and some people think it is on its way out, but it has proved an exceptionally effective and conceptually transparent human creation. As the Dutch legal theorist Grotius explained in the seventeenth century, a sovereign power is one that has legal authority over a domain but is not subject to any higher human authority. And legal authority means, in this context, the authority to make law and to enforce it, by virtue of an actual monopoly of coercive power together with the general acceptance, by those governed, of the sovereign's exclusive right to employ it.
The consent of the governed may be given for many reasons, ranging from reverence or fear to the desire for security, freedom, and the pursuit of happiness, and it may be given to sovereigns of many forms, from monarchies and theocracies to democratic republics. In our case it attaches itself to a specific form of constitutional government. The liberal justification for sovereign power is still, in our own day, a form of social contract. We accept the authority and the coercive power of a procedurally constrained and substantively limited system of collective control because it is the best way for a large population to live together in peace, to prosper, and to further common interests and values, while retaining substantial freedom as individuals to pursue the many values that they do not share.
Constitutional sovereignty requires a national population whose interests and values are sufficiently compatible to permit common allegiance to a single legal authority for the settlement of their inevitable conflicts over what the rules should be to which everyone is subjected. This is a precious resource, difficult to achieve. It depends, as we know, on historical contingencies of various kinds. Rabkin believes that for the nations that are fortunate enough to have it, constitutional sovereign authority puts a natural upper bound on the sources of law. We cannot find its equivalent, he argues, at the international level, where there is not--and there cannot be--a comparable social contract.
This does not mean there can be no international law; but international law has to be very different from the law of a sovereign state. It must be agreed on and enforced by the separate sovereign powers themselves, and it will therefore be much more limited in its capacity to settle conflicts among them. Where a common rule will serve all their interests, as with rules governing trade, or the treatment of prisoners of war, independent sovereign states can enter into agreements that are enforceable by retaliation. The reason to abide by them is that if one state defects, others can do the same, and everyone, including the initial defector, will lose. By contrast, says Rabkin.
A sovereign state imposes law in a quite different way. It does not need anything like unanimous or general agreement--among its own citizens--before it proclaims its own law. And for most purposes, the state is the enforcer, not the citizens.... A sovereign has the right to make and enforce law and the citizens are obliged to obey, even if they dislike the law and even if they do not approve the way the law is implemented or enforced against others.
And Rabkin adds: "If international law could be enforced on dissenters, in the manner of domestic law, then the dissenting states would no longer be sovereign. Not many states (or their peoples) would consent to yield up their independence in this way to outside powers."
This makes it clear why there is no prospect of a world state. But it also leaves us with a further question: how much international law is it desirable and possible for a world of separate sovereign states to create, without creating a world state? For the reasons that Rabkin gives, it would have to be law whose enforcement was left in the hands of existing nation-states, even though its content was determined by some procedure whose authority they were all prepared to accept, presumably with the authorization of their citizens.
This is where opinions diverge. Rabkin believes that even in areas of undeniably common interest, such as protecting the environment or preserving peace, international conflicts of interest and of fundamental values are generally too great to permit the creation of such a procedure. Treaties, rather than anything resembling legislation, must remain the primary sources of international law. But why can't a treaty itself delegate authority to an international decision-making body, voluntarily diminishing the sovereign authority of its national parties without creating a super-sovereign?
This is what seems to have happened with the formation of the European Union. The EU is neither a true federation, with final sovereign power over the member states, nor a traditional treaty, with the members retaining their full sovereignty. The states have delegated some of their legal authority to its administrative and legal institutions, but enforcement rests in their own hands, and any state is free to withdraw from the Union.
Rabkin gives the EU a good deal of attention, because he thinks that it is a very bad model for world governance on a broader scale, and that it expresses the failure of European political opinion to appreciate the liberal conditions of legitimacy, which require that legal authority not float free of political accountability.
Perhaps the European Union has found a stable and constitutionally acceptable formula for imposing supranational law. There is, in fact, much reason to doubt that it will prove stable and it certainly does not conform to American ideas of constitutional government. But in any case, the European Union remains a very special sort of international institution. The international community at large has very little capacity to impose its will on individual states with the same reliability as the bureaucrats of Brussels.
If the EU succeeds, it will be because the attachment of Europeans to common interests and values is strong enough to contain the conflicts of interest that will inevitably remain--and without the benefit of a centralized monopoly of force. If it fails, and remains essentially a freetrade zone, it will be because of popular unwillingness to share sovereignty with two dozen other nations--a sentiment manifest in the recent French and Dutch rejections of the EU constitution.
On a global scale, the consensus required to sustain a legal system of this type is out of the question. There is only one area where the recognized strength of common interest has come reliably to outweigh the divisive effects of conflicts of interest: the promotion of free trade. Since economic interests are so powerful, the World Trade Organization has the potential to sustain a form of global governance that will limit the sovereignty of states. As Rabkin observes, "Unlike other international institutions, the WTO can condemn an American statute and get the United States government to change it." The reason is that, although its provisions are treaties entered into by unanimous agreement of the parties, their interpretation and application are not left to the discretion of the parties but are assigned to the organization itself.
The appellate body that has final authority in the disposition of complaints arising from WTO agreements has declared that its interpretations will make reference to "general principles of international law." This opens the way to using trade litigation as a lever to implement social, environmental, and human rights goals. As Rabkin remarks, "Once it is accepted that trade may be conditioned on compliance with domestic environmental or social norms, there is no obvious limit to what can be imposed"; and he invokes the example of the interstate commerce clause of the Constitution as a basis for Supreme Court approval of almost anything Congress decides to regulate. (The WTO may not go that far, but anyone who doubts the power of economic leverage should contemplate the remarkable spectacle of Turkey's abolishing the death penalty and passing laws against sexual harassment and marital rape in order to become a candidate for membership in the European Union.)
Rabkin's principle of legitimacy is strongly opposed to piggybacking a world legal order on economic globalization:
One may think the world needs a great deal of international regulation. It does not follow that the world is now organized to provide a constitutional framework for agreeing on the proper content and direction for such regulation....A world which has moved beyond sovereignty is a world which has moved beyond the premises of liberalism and beyond the premises of constitutional government, in any traditional understanding of that term.
He would rather that the most divisive international issues not be governed by law at all than that they be subject to a form of international law that lacks a sound foundation.
For this reason, Rabkin is opposed both to the International Criminal Court and to the presumption that military intervention requires U.N. authorization. The ICC pre-empts the right of a state to enact an amnesty, as so many have done, in the course of a transition from dictatorship to democracy. And the United Nations has been extremely reluctant to authorize military action to stop even the most horrible massacres. Decisions on such issues, he believes, are better left in the hands of sovereign states, acting individually or jointly. There will be bad decisions, but fewer, and some of them will be made by democratically accountable governments.
Those who want to argue for the legitimacy of much more international regulation than Rabkin favors must do two things. First, they must identify the sources of international law that can take us beyond self-enforcing treaties or conventions unanimously adopted by sovereign states. Second, they must describe the institutions and procedures by which these rules are to be identified, applied, and enforced--even against states that do not accept them.
If we look at the range of moral and political values that command allegiance in the world today, this seems an impossibly tall order. There are international conventions on human rights, but as Rabkin rightly observes, they do not mean much when China is a signatory to the Covenant on Civil and Political Rights and Saudi Arabia is a signatory to the Convention Against Torture, with the reservation that it does not cover bodily mutilation as a form of punishment, as demanded by sharia. Even if there is a developing convergence of enlightened opinion on certain norms, Rabkin is right to insist that such norms are not law.
The internationalist has to argue that legitimate and effective world standards will come into being only if we commit ourselves collectively to institutions with the authority to implement them. Only in this way will we give ourselves the incentive to hammer them out together and take them seriously. We have to take some risks, and accept the possibility of finding ourselves on the losing side of some arguments, in order to move ahead with the urgently needed increase in global regulation.
The International Criminal Court seems to me the best candidate for the role of a hopeful mutation of this sort. It will presumably be firmly in the hands of jurists committed to human rights and the rule of law, whose interpretive disagreements will stay within a range broadly acceptable to the Western democracies. It does not seem very risky to give such an institution the chance to develop an international form of common-law jurisprudence, based on existing conventions sharpened by moral and legal interpretation.
But many people believe that the United States should also show much more deference to the United Nations, because that is the only way the U.N. can hope to develop the authority it needs to make the world safer for everyone. On this view, invading Iraq without a second Security Council resolution would have been very wrong even if there had in fact been all those weapons of mass destruction and the United States had provided enough troops to pacify the country after the removal of Saddam Hussein.
There is a chicken-and-egg problem here. Authority exists only if it is accepted, but it will be accepted only if it is seen as legitimate, in virtue of the way it is exercised. It requires a leap of faith to accept the authority of the U.N. and then hope that it will earn this acceptance by its decisions. In matters of war, peace, and humanitarian intervention, the leap may be too large to be reasonable. Unlike Rabkin, I regret the unavailability of a sound basis for the significant transcendence of sovereignty by international law, but I must agree with him that in the most important cases that is the situation.
Law Without Nations? is readable and persuasive. It includes an instructive history of theories of sovereignty and international law from the sixteenth century onward, and much interesting material on the role of such ideas in the formation and subsequent history of the United States. (With all this erudition, it is incomprehensibly lazy that the index includes nothing from the seventy-three pages of notes, which contain all the references.) I was put off by the relentless tone of contempt for those who hold other views. Rabkin cannot forgive Europe for the Holocaust--why should he? But he brings it into the discussion repeatedly in ways that strain the sense of relevance. He sees in the present European appeal for peaceful conflict resolution a parallel with the acquiescence of German satellites in western Europe after 1940 to the New Order imposed by the Third Reich--no coincidence that Israel now, like the Jews then, is an object of hatred seen as an obstacle to harmony. He says Europeans who want Israel to dismantle its settlements in the West Bank should shrink from endorsing the notion that those territories must be "Judenrein." And of the failure of Dutch U.N. peacekeepers to prevent the massacre at Srebrenica in 1995, he remarks that "it should not have been very surprising. In 1940, the Dutch relied on international law for their protection and were overrun by Germany in a matter of hours. A Dutch resistance movement did not develop for several years--well after the Dutch allowed their Jewish fellow citizens to be rounded up for extermination." But the Serbs offered fierce partisan resistance to the Nazis. Does that have any bearing on what we should think about Serbs murdering their Muslim fellow citizens half a century later?
Rabkin demonstrates that in our world constitutional sovereignty provides the indispensable basis for both domestic and international law. Yet it is essential that this not be interpreted to license every untrammeled exercise of sovereign power and a disregard for the vital role of reciprocity in international affairs. Sovereign authority does not excuse the unilateralism of the Bush administration in trying to evade the requirements of the incontestably valid Geneva Conventions on treatment of prisoners of war, not to mention prohibitions against torture. Such rules do not impair the nation's sovereignty, and flouting them has done it great damage, as Noah Feldman recently showed in these pages. If only sovereign nations can create a decent world, then decency must begin at home.
Thomas Nagel is a professor of philosophy at New York University.