Since his arrival in office, President Trump has been making essentially the same speech to the United Nations General Assembly every year. “If you want democracy, hold on to your sovereignty,” he urged the world’s leaders this September. “The future does not belong to globalists. The future belongs to patriots. The future belongs to sovereign and independent nations who protect their citizens, respect their neighbors and honor the differences that make each country special and unique,” he added.
Last year, he pledged: “We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.” His 2017 address mentioned sovereignty 22 times, promising to “[renew] this founding principle.”
Through his frequent invocations of sovereignty, Trump has elevated a staple of U.S. and British conservative thought to a new prominence. For decades, figures such as the former advisor to Margaret Thatcher (today, a vocal defender of Hungary’s strongman Viktor Orbán) John O’Sullivan, claimed that “global governance” “seeks to take ultimate political power (sovereignty) from democratic parliaments and congresses accountable to national electorates in sovereign states and vest it in courts, bureaucratic agencies, NGOs and transnational bodies that are accountable only to themselves or to other transnational bodies.”
“Leading Brexiteers saw the UK’s EU membership as incompatible with parliamentary sovereignty. The goal of Brexit, according to Dan Hannan, a former Tory MEP, is thus simply “a recovery of parliamentary supremacy.”
Conservative legal scholars in the United States, such as Jeremy Rabkin and John Yoo, have written at length about the tensions existing between the U.S. constitutional order and America’s international commitments through formal institutions. But whereas Yoo believes that “the demands of globalization can be accommodated while still honoring the fundamental principles of popular sovereignty,” many other critics of international organizations do not shy away from hyperbole, depicting international institutions as nefarious, autocratic plots against free nations of the world. The title of John Fonte’s 2011 book, Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others?, suggests the existence of a simple binary choice. The Acton Institute’s Todd Huizinga, a retired U.S. diplomat, claims that the EU is essentially a totalitarian body.
Although sovereignty-based critiques of multilateralism and international institutions spark strong emotions, they raise more questions than they address. Most fundamentally, what do critics mean by sovereignty, and what does restoring it looks like?
One common understanding of the concept is that of an international institution, treating states as autonomous equals. As such, it is sometimes misnamed “Westphalian sovereignty,” in connection with the 1648 treaties of Osnabrück and Münster. Yet, contrary to conventional wisdom, those did not usher in the era of fully autonomous nation-states. Rather, they provided a new constitutional settlement to the Holy Roman Empire, a federation spanning over a large part of Europe for more than a millennium.
More importantly, challenges to “Westphalian” sovereignty rarely come from international organizations or treaties that governments willingly join (and are free to leave), but rather from acts of aggression and intimidation such as Russia’s occupation of Abkhazia and South Ossetia, its annexation of Crimea, or its creation of the Donetsk and Luhansk “People’s Republics.” Previously, the Soviet Union justified its interference in the internal affairs of other countries—most famously the 1968 invasion of Czechoslovakia—with what became known as the Brezhnev Doctrine. “[W]hen . . . forces hostile to socialism try to turn the development of a given socialist country in the direction of restoration of the capitalist system,” Brezhnev said, “this is no longer merely a problem for that country’s people, but a common problem, the concern of all socialist countries.”
Paradoxically, it is regimes such as Russia that invoke sovereignty to deflect criticisms of their domestic practices and human rights records. But “Westphalian” sovereignty is not a universal trump card. Instead, it is conditional on jus cogens, overriding principles of basic human rights and protection against genocide and crimes against humanity. As the late Republican Senator Jesse Helms, hardly a proponent of globalism, put it, “nations derive their sovereignty—their legitimacy—from the consent of the governed. Thus, Slobodan Milosevic can hardly claim sovereignty over Kosovo when he has murdered Kosovars and piled their bodies into mass graves. Nor can Fidel Castro or Saddam Hussein hide behind phony claims of sovereignty while they oppress their peoples.”
To be fair, conservative critics of international institutions have a different meaning of the term in mind: the ability of society to govern itself and the control that voters and their elected representatives have over laws and policies.
At their most thoughtful, such critics point to technical challenges in constitutional law that international cooperation raises in the U.S. context. Examples include the question of self-execution of treaties: conditions under which international treaties become U.S. law, without any supporting legislation. The legality of delegating decision-making authority to international bodies is another point of contention, as is the status of customary international law and foreign legal influences more generally in the U.S. legal system, such as in Roper v. Simmonswhere the Supreme Court ruled against imposing the death penalty on individuals who committed crimes as minors by pointing to “the evolving standards of decency that mark the progress of a maturing society,” much to the ire of Justice Scalia.
But even when taken at face value, such criticisms are not really indictments of international cooperation as something inherently pathological. Rather, they are indicative of a deeper tension between America’s constitutional design and its day-to-day governance. The United States today is a vastly different country than it was at its Founding.
The role of states and of the federal government has changed dramatically as the role of the executive has expanded since 1789. In many ways, America has become more inclusive and its government effective and flexible. But, as Karen Orren and Stephen Skowronek show, that has come at the price of stretching the original constitutional set-up to its limits. Not only did the Founding Fathers not foresee the emergence of UN human rights conventions, much more importantly, they did not anticipate the emergence of the “regulatory state,” federal welfare programs, the expansion of suffrage, and the role played by the federal government in ending the unequal treatment of African Americans.
Short of a new constitutional convention, it is far from obvious how the mismatch between America’s founding document and everyday political practice can be addressed. Perhaps it is conceivable to disentangle the United States from the plethora of its international commitments (though not without massive unintended consequences). Yet, seeking to return the U.S. federal government to the role it played in the late 18th-century seems positively utopian—and, in that sense, distinctly un-conservative.
Similar arguments about popular sovereignty, understood mostly in terms of crude majoritarianism, are invoked in countries where constitutional law has taken a far more accommodative approach to the demands of international cooperation (particularly of the European project), and where stresses on constitutional architecture have been far less severe than in the Anglosphere. Constitutions of most continental countries—most prominently Germany’s Basic Law in 1954, 1993, or 1994—were simply amended multiple times to make them compatible with adopted European treaties.
The strength of the current sovereignty animus thus reflects something more basic than the nuances of U.S. constitutional law or concerns about nation states as the basic actors in international affairs. Rather, it reflects a desire for control and for a simpler world. “Sovereign nations,” President Trump told the UN in 2017, “let their people take ownership of the future and control their own destiny.” Yet, in the complex world that we inhabit, such control exercised by nation-states is simply not on the menu.
Economic policy is just one example among many, including the perhaps overhyped but pressing issue of climate change. The world’s economy is no longer populated by corporate “boxes,” limited to the confines of individual countries, but by much flatter and decentralized structures spanning across many countries (the supply and assembly of Apple products occurs in 30 countries while the production of Boeing’s Dreamliner relies on a network of some 1,000 suppliers). In such an environment, rules and regulations adopted in one country necessarily impact others. That strengthens the case for policy coordination between countries, as in the case of climate change. At other times, however, it can be problematic. As we learned in 2008, a global regulatory monoculture in finance can also make the global economy more vulnerable to unseen sources of systemic risk.
As the UK is learning the hard way, “retaking control” involves trade-offs. Brexit will entail either a disruption of businesses accustomed to operating within a common regulatory environment or giving up any say in the content of rules that will continue to affect the British economy after Brexit. “Retaking control” can easily mean less effective control, over both relevant rules and outcomes. In the British case, this is not a result of the EU’s intransigence but simply of the fact that Europe’s economic and political integration generates benefits primarily for the members of the club.
There is an even more fundamental reason for why populist promises of control are illusory. As the Scottish moral philosopher Adam Ferguson famously observed, “[e]very step and every movement of the multitude, even in what are termed enlightened ages, are made with equal blindness to the future; and nations stumble upon establishments, which are indeed the result of human action, but not the execution of any human design.”
Conservatives used to have a deep appreciation for the fundamental complexity of advanced human societies and the need for incremental, adaptive responses to the challenges such complexity brings. Alas, with the current fetishization of national sovereignty, that appreciation has been pushed to the side in favor of an outlook that is simultaneously nostalgic and revolutionary—and bound to not survive its first contact with reality of a globalized world.