Sovereignty Handout by P2THssc

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									        Sovereignty Handout                        the American Constitution and American
                                                   laws.
A. “A Defense of Sovereignty,” Interview
with Jeremy Rabkin, National Review                NRO: Is the sovereignty advocated by the
Online, March 10, 2005                             Founders eroding in America?
http://www.nationalreview.com/comment/rabkin2005
03100742.asp                                       Rabkin: Perhaps "eroding" is too strong a
                                                   term. But we are not as alert to dangers as
From the war in Iraq to the controversy over       we once were. For example, the Supreme
the International Criminal Court, the concept      Court has recently invoked foreign legal
of sovereignty lies at the heart of the debate     decisions as a guide to interpreting the U.S.
on whether the United States can act without       Constitution — on the apparent assumption
the consent of international organizations. In     that our own constitution ought to be
The Case for Sovereignty, Cornell                  consistent with what the Court has called the
government-professor Jeremy Rabkin argues          opinions of "the world community." The
that sovereignty undergirds America's right        premise is that the world is evolving toward
to protect itself and to behave differently,       consensus and the United States must be
even when other countries disagree.                part of that. The purpose of sovereignty is to
                                                   safeguard our right to be different —
National Review Online: What is                    because we have no good reason to think
sovereignty?                                       others know better than Americans how our
                                                   nation should be governed or that Americans
Jeremy Rabkin: Only a few decades ago,             will be more attached to world law than our
writers on international law used                  own law.
sovereignty as a synonym for independence.
That's still a good place to start.                What concerns me is the general idea that
International law is binding on the United         America is offending other nations by
States only to the extent that it is endorsed      holding to its own constitutional scheme.
and enforced, within the United States, by         We shouldn't be apologetic about that. We
our own government. Our own law has                have good moral claims to hold to our own
priority. That's why we are still sovereign.       traditional governing scheme. Sovereignty
                                                   may be out of fashion in Europe but it still
NRO: How did the Founding Fathers view             has lots of appeal to most countries in most
sovereignty?                                       other parts of the world.

Rabkin: The Constitution makes federal law         NRO: What are the key differences between
(and the federal Constitution) "supreme law        how the United States and certain European
of the land." States don't even have the last      countries, like France and Germany, view
word on their own constitutions (or when           sovereignty?
they can adhere to their own constitutions).
All of the Founders would have been                Rabkin: All members of the EU have now
appalled at the thought that the federal           bound themselves to a scheme in which the
government, in turn, would be subordinate          European Court of Justice treats mere
to some supranational or international entity,     treaties as superior to national constitutions
which could claim priority in this way over        — and national courts give priority to the
                                                   rulings of this European Court, even against
their own parliaments and their own national     NRO: In your book, you call for the United
constitutions. This is way, way, way, beyond     States to consider withdrawing from the
anything we could accept in America. To          U.N. altogether. The Bush administration,
find an analogy, you must imagine that           however, has insisted that the United States
NAFTA officials in Montreal claim the            is not out to destroy the U.N. but merely
authority to override the U.S. Congress and      wants to make it more effective. Do you
the U.S. Supreme Court — and federal             think the administration's stance is unwise?
judges in America agree that the NAFTA
policy must take priority.                       Rabkin: The point of my book was to
                                                 emphasize the difference between a
What makes the European scheme                   sovereign state and an international
particularly bizarre — at least from our         organization. The U.N. is merely an
point of view — is that Europeans aren't         international organization. At its best, the
really prepared to pursue their "Union" to its   U.N. is simply a forum for negotiations. But
logical conclusion. They don't trust the EU      negotiations don't always succeed. When the
to have an army or police or even criminal       U.N is paralyzed — as it usually is — we
courts of its own. So Europeans are              need to think about alternate forums or
entrusting supremacy to a government they        specialized coalitions to pursue our aims.
don't really trust — at least not enough to      That's what we did throughout the Cold
entrust with traditional attributes of           War. That's what we did in Iraq in 2003.
sovereignty.                                     That's what we'll have to do in the future.

In the long run, the American scheme is          I don't think it is contradictory for the U.S.
bound to be more respectful of individual        to demand, on the one hand, that the U.N.
rights and personal liberty, because we start    address serious challenges, while warning,
from the recognition that people can             on the other hand, that we may ultimately
disagree whereas the EU is always                leave the organization, if it does not. The
presuming some consensus that will —             main reason to talk about leaving the U.N.,
supposedly — be discovered by bureaucrats        however, is to remind ourselves what we are
and judges. In the long run, the American        seeking at the U.N. — not a world
scheme is bound to be more alert to security     government, but simply a tool for our
threats, because we start from the               diplomacy.
recognition that outsiders may well mean us
harm, so we have agreed to work together         NRO: Should states enjoy the protection of
— in this country, under our own scheme of       sovereignty even when they are committing
government — for our "common defense."           genocide?
The EU scheme always suggests that people
can be protected by negotiations, since          Rabkin: The question isn't whether
Europeans have ceded supreme power to a          intervention against genocide is or isn't
"construction" that doesn't have an army.        justified. The question is whether anyone in
Doing what bureaucrats do — which is all         the outside world is prepared to commit
that the EU can do — is supposed to be           troops to a purely humanitarian venture.
enough. If it isn't, Europeans are in a lot of   Intervention in Rwanda [when genocide was
trouble. So the structure of the EU              raging in 1994] would have been justified.
encourages Europeans to continually              The reason the U.N. allowed nearly a
disregard actual threats to their security.      million people to be slaughtered wasn't that
there was disagreement over the legal basis     How can we demand that North Korea or
for intervention, but that no outside power     Iran go without nuclear weapons while we
was prepared to risk its own troops to do       and other countries still claim the right to
anything about this horror.                     hold such weapons? We trust ourselves not
                                                to use these weapons recklessly but we don't
The rare cases where we might contemplate       trust these countries to do the same, given
serious intervention to halt a humanitarian     their recent conduct — particularly, their
catastrophe should accordingly be treated as    recent involvement with terrorist groups.
what they are — rare cases that require
extraordinary consideration. Even in these      Much of the world may see things
cases, if you leave the question to the UN,     differently. That's a challenge for our
you almost guarantee that nothing will          diplomacy. If the alternative is suffering a
happen — as we see now in Sudan.                nuclear attack on New York or even on
                                                Cleveland, it won't be much consolation that
What the U.N does is to invoke the specter      at least we respected a world consensus on
of genocide as a rhetorical club against        sovereignty.
sovereignty — then to ignore actual
genocide and busy itself with such things as    NRO: What should American policymakers
feminist social policy.                         remember about sovereignty as they
                                                undertake the potentially unpopular exercise
NRO: Both remaining members of the Axis         of defending it?
of Evil, Iran and North Korea, have claimed
that they have the sovereign right to pursue    Rabkin: The reason to talk about sovereignty
weapons of mass destruction. Do they?           is not to establish a simple formula that
                                                dictates the correct foreign policy in every
Rabkin: This is a difficult question but it     situation. It is rather to remind ourselves that
shouldn't paralyze our minds. The worst         we do have to make serious choices, because
thing about U.N.-think is that it encourages    international law can't settle very much for
magical thinking — the fantasy that a           us. We don't really want to live in a world
problem has been fixed when the Security        where international lawyers or some other
Council adopts a resolution on it. I don't at   guild of self-appointed global managers can
all want to encourage the idea that             supply all the answers to all the big
sovereignty is the white magic that will cure   questions. In the end, very few countries
all problems if we recite that word with        would want to live in such a world. But we
enough fervor.                                  are in the best position right now to defy the
                                                pretensions of international lawyers.
There are exceptions to sovereignty.            Whether others acknowledge it or not, we
Preemptive action implies that some actions     are doing the world a service when we hold
by other countries are so threatening that      international authorities within limits. As
they will justify military action before the    our own Declaration of Independence says,
threat has been realized. It is not at all      only God is above sovereign states. If we
whimsical or idiosyncratic to say that          don't want national governments to play
acquisition of weapons of mass destruction      God, we have even less reason to trust
would justify preemptive action.                divine authority to international monitors.
                                                That's what independence means.
1. Describe Rabkin’s notion of sovereignty and the effect of international law on the actions of
the United States.
2. Rabkin contrasts the U.S. and EU views of sovereignty. Explain why he is troubled by the EU
system of making national constitutions inferior to international agreements.
3. Critics have suggested that the notion of state sovereignty could be used as a shield to justify
domestic violence, such as genocide. What is the sovereignty-based argument against foreign
intervention in cases of genocide? Does Rabkin sufficiently address this problem? (Hint:
carefully review the National Review question and Rabkin’s answer related to genocide.)

								
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