As economies, societies, and cultures have become increasingly interconnected, the traditional conception of threats to security as stemming from identifiable sources in individual countries has become antiquated. Today, many threats are stateless in origin and transnational in scope. Terrorist groups such as Hezbollah and al Qaeda have cells in multiple countries, often operating without the active support of any government but still capable of committing attacks with global impact. Both 9/11 and the unsuccessful plot to blow up airliners over the Atlantic Ocean in 2006 were aimed at disrupting the global air-transportation network. Potentially crippling attacks on the power grid or financial institutions could come from a computer anywhere in the world.
Fighting elusive and transnational enemies that do not respect the traditional conventions of warfare requires international cooperation. Terrorists are unlike the United States' past enemies. Whereas the Soviet Union had a defined territory with infrastructure and resources that could be targeted in retaliation for any aggression committed against the United States, terrorist groups have no established boundaries. A strategy of deterrence through threats of retaliation would prove ineffective against terrorists, since so many are willing to die for their cause. Moreover, they often strike at global or transnational targets, seeking to exploit the seams between national jurisdictions, where enforcement may be shared, ambiguous, or inconsistent.
In light of these developments, the field of international law is taking on greater relevance. Since 9/11, it has been central to discussions about the "war on terror," on issues ranging from the treatment of enemy combatants to the standards of security that should apply to global trade and travel. Unfortunately, just as international law is becoming more relevant, its objectivity is becoming more questionable. Some in the international legal community see international law as a means for advancing political agendas against the United States rather than as a valuable tool for addressing increasingly global concerns. Employing the rhetoric of international law, critics of the United States have challenged everything from its foreign and homeland security policies to its enforcement of purely domestic laws. In recent years, international lawyers and scholars have sought to subordinate established U.S. laws and even U.S. constitutional provisions to international legal mandates and "customary" international law -- in which "custom" is not traditionally interpreted, as being based on the actual practices of states, but instead is dictated by the policy preferences of foreign judges or, worse yet, international scholars and academics.
The concept of a global legal order -- launched by sober-minded leaders such as Woodrow Wilson, Franklin Roosevelt, and Winston Churchill -- is often exploited by ideologues and antagonists of the United States who are bent on waging "lawfare" against U.S. interests. As a result, some critics have argued that the most prudent course for the United States is to opt out of international legal institutions whenever possible. Yet a wholesale rejection of international law would mean surrendering the field of intellectual combat to those who see international law mainly as an instrument to constrain the United States. And more important, it would risk sacrificing real opportunities to move international law in a direction that promotes the many interests that the United States shares with the rest of the world.
Building a better international legal regime is a task U.S. legal thinkers and policymakers should embrace. To do so, they must first define the proper scope of international law. This modern international legal order must be predicated on a new principle, under which individual states assume reciprocal obligations to contain transnational threats emerging from within their borders so as to prevent them from infringing on the peace and safety of fellow states around the world. This framework will be successful only if the sovereign consent of individual nations remains the bedrock of international law and only if it resists the trend within international legal circles to forcibly impose broad and abstract legal norms through nondemocratic means.
THE CENTRALITY OF CONSENT
The typical strategy of international legal activists today is to challenge the idea of national sovereignty. This is a revolutionary tactic, particularly because sovereignty has played an important role in the development of the international system for over three centuries. Under the Westphalian model of sovereignty -- which dates back to 1648 -- an independent state is not subject to external control over its internal affairs without its consent. For democratic nations in today's world, consent has added significance. Democracy is based on the principle that the people are sovereign and that only with their consent may a government rule with legitimacy. Democratic national sovereignty therefore reflects the ideal that citizens should be governed only by laws to which they have assented.
Imposing international legal mandates on a nation without its consent undermines this traditional concept of sovereignty and conflicts with the democratic will. For this reason, international law has often been based on the consent of nations by way of treaties, in which nations voluntarily agree to abide by certain rules, or through customary international law, which infers tacit consent through widespread state practice. To be sure, not all sources of international law are explicitly based on sovereign consent. So-called peremptory norms, or jus cogens norms, are rules -- such as those forbidding slavery or genocide -- considered to be so deeply embedded in international law that they bind all nations, even absent national consent.
An international legal framework founded on a consent-based model of sovereignty is advantageous for several reasons. By requiring the explicit or implicit consent of nations before a particular international standard binds them, this approach gains the legitimacy that democratic legal traditions and processes provide. Consent-based international law also allows states to protect their own critical interests by bargaining for or withholding consent from certain provisions of a treaty. Finally, grounding international law in consent acknowledges national differences in culture and legal philosophy by ensuring that international rules fit within an international consensus -- one shared by real governments, not merely endorsed by intellectual elites.
Academics, lawyers, and judges who challenge the continued relevance of consent in international law often treat "sovereignty" as a pejorative term or an antiquated concept. Many of these critics depart from the traditional view of international law as consisting primarily of reciprocal obligations among nations. For example, some have argued in particular cases that international agreements automatically confer legal rights on individuals that may be enforced directly without state support or even against the laws of the individuals' own countries. And some further argue that international law is not limited to what is agreed on by nations in treaties or accepted through widespread practice; they claim it also encompasses a set of standards based on highly general and "evolving" universal principles.
For example, the international legal scholar Philippe Sands argues that "to claim that states are as sovereign today as they were fifty years ago is to ignore reality." Sands describes international law as a set of obligations that "take on a logic and a life of their own" and that "do not stay within the neat boundaries that states thought they were creating when they were negotiated." The late Harvard Law School professor Louis Sohn went even further in unmooring international law from consent, positing, "States really never make international law on the subject of human rights. It is made by the people that care; the professors, the writers of textbooks and casebooks, and the authors of articles in leading international law journals." Even the conservative commentator Robert Kagan has called on U.S. policymakers to "welcome a world of pooled and diminished national sovereignty," arguing that the United States "has little to fear and much to gain in a world of expanding laws and norms based on liberal ideals and designed to protect them."
Of course, not all who seek to diminish the role of sovereignty in the development of international law are so explicit. International legal jurists and scholars often purport to recognize sovereign consent as the foundation of international obligations but then proceed to "identify" and apply norms or principles of customary international law that are not evidenced by actual state practice. For example, a court may proclaim that there is a rule that prohibits particular government actions without considering whether most nations indeed adhere to that rule. Alarmingly, some jurists rely for support on academics and commentators who do not merely catalog international law but rather seek to influence its development according to their own policy preferences. It makes no practical difference that these jurists may pay lip service to the importance of sovereignty; the effect of their efforts is to undermine nations' prerogative to choose their own laws.
Whether invoked explicitly or implicitly, the most common justifications for rejecting sovereign consent as the foundation of international law are flawed. One argument is that the growing global activity among nations creates the need for more comprehensive systems of international law to govern global conduct. This need, however, does not justify eliminating sovereign consent as the basis for imposing international obligations. Indeed, requiring the consent of nations has not prevented the international community from addressing a host of substantive issues, ranging from trade to arms control to endangered species protection. Moreover, individuals still principally identify themselves as part of a particular national community and resist decisions imposed on them by foreign actors and institutions without their consent. A visible case in point was the rejection of the European Constitution by voters in France and the Netherlands in 2005 and the more recent rejection of the Lisbon Treaty by voters in Ireland in 2008.
Another objection to sovereign consent holds that all humans possess certain fundamental rights that cannot be denied, even by the consent of the majority. But the recognition of fundamental human rights raises the harder and more particular question of how those rights should be defined and applied, and by whom. Bodies such as the United Nations include member states that often do not share a common position and whose values often clash with those of the United States and other democratic states. For example, the UN Human Rights Council has passed resolutions urging states to adopt laws combating the "defamation of religions," which would prohibit the type of open discussion about religious and political matters that is protected under the First Amendment to the U.S. Constitution. The UN has also held a conference to examine gun-control provisions, ones that would be at odds with the Second Amendment. And the UN recently passed a resolution calling for a moratorium on capital punishment with "a view to abolishing the death penalty," even though the U.S. Supreme Court has repeatedly upheld it. Ironically, many of the states supporting such initiatives have a poor record when it comes to respecting the rights of their own citizens.
In short, absent an express treaty or convention, giving international bodies the power to decide what are new and expanded fundamental rights would allow countries to advance nationalist or bloc political agendas under the guise of human rights. It would also empower an often self-perpetuating international legal establishment -- courts, advocates, academics, and activists -- to "discover" international human rights by relying selectively on transnational agreements that may express only regional consensus or by drawing on philosophical or academic texts that reflect particular intellectual fashions. Such amorphous sources provide questionable grounds for mandatory international obligations.
Nevertheless, international courts have been receptive to arguments based on abstract principles that serve to erode the consensual foundation of international rules. One such example is the 1986 decision of the International Court of Justice in the case Nicaragua v. United States. In that case, Nicaragua filed suit against the United States under several multilateral treaties. The United States, however, had explicitly limited its consent to ICJ jurisdiction to when all signatories that would be affected by the court's decision were parties to the case in question. It therefore asserted that the ICJ lacked jurisdiction over this case, in part because of the absence of other signatories. Although the ICJ recognized that it lacked jurisdiction to resolve the dispute under the relevant treaty provisions, it avoided these limitations entirely by finding that such obligations "retain a separate existence" as part of customary international law. The ICJ found the United States liable under these international norms.
Another example of the emerging tendency of international jurists to subordinate national sovereignty to subjective and sometimes ill-fitting principles of international law is the ICJ's 2004 advisory opinion that questioned the legality of a barrier constructed by Israel to prevent terrorists from entering its territory. In support of the barrier, Israel invoked Article 51 of the UN Charter, which allows countries to defend themselves against armed attacks. The ICJ, however, concluded that Article 51 recognizes an inherent right of self-defense only in the event of an attack "by one State against another State." Even though it recognized that "Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population," the ICJ relied on a narrow reading of the UN Charter to reject a fundamental attribute of state sovereignty -- a country's right to protect its citizens. September 11 and subsequent terrorist attacks make a narrow reading of Article 51 seem out of date.
Fortunately, the U.S. Supreme Court has been less receptive than the ICJ to the argument that international law creates enforceable legal obligations without consent. In recent cases, the Court has held that the United States' treaty obligations may not always take precedence over domestic legal rules and procedures and that international treaty obligations are diplomatic commitments that generally do not become binding domestic law without the explicit consent of Congress.
In the past, U.S. policymakers have reacted to the shift away from consent-based international law by limiting U.S. involvement in international legal institutions. Notably, the U.S. government responded to the establishment of the International Criminal Court by prohibiting military and financial aid to countries that recognized its jurisdiction. It did so out of concern that such recognition could subject U.S. military personnel to prosecution before international judges.
IN DEFENSE OF INTERNATIONAL LAW
Americans are understandably troubled when international law is misused as a tool to target the United States. But if the United States responds by withdrawing from international legal institutions in order to protect its national interests, everyone will lose. The international community will lose the cooperation of a global superpower, whose resources are often necessary for any meaningful enforcement of global standards, and the United States will lose the support of other nations. Moreover, if the United States responds to flawed international rulings by abandoning the idea of international law, it will undermine its efforts to project "soft power," an important tool of U.S. foreign policy.
Given that international law is an inescapable fixture in today's global political landscape, there is a better way to address modern legal activism. International law should be neither a political tool used to undermine the sovereignty of individual states nor an instrument used by those who seek shelter behind the sovereignty of one country to launch attacks against another.
A modern, consent-based system of international law will be most effective and widely accepted if it is predicated on a clear set of twenty-first-century containment principles that reflect modern obligations of reciprocal sovereignty. These principles would recognize that each state has the inherent autonomy to regulate its own internal security affairs. At the same time, each sovereign nation must respect the sovereignty of other nations, so that all nations are obliged to contain the external consequences of any security threats emerging from within their own borders. This is similar to the legal principle of nuisance: that a property owner has an obligation to stop any activity on his or her property that substantially infringes on the well-being of his or her neighbors. In particular, individual states must take reasonable measures to contain the potentially destructive consequences of these security threats to prevent them from spreading and interfering with other states' sovereign right to exclusive authority over their territories. And when countries fail to live up to this responsibility, international law should recognize -- and indeed authorize -- mechanisms that would allow protective action on the part of the world community and, if necessary, the injured or threatened states. Such a framework would reflect the libertarian notion that the prerogative of a state not to provide security extends only so far as its choices do not actively threaten the security of other states.
Implicit in this new reciprocal containment principle are three fundamental ideas. The first is that under long-applied Westphalian principles of sovereignty, the methods by which a nation chooses to protect its own citizens from internal, nonstate threats, such as terrorism or crime, are primarily a domestic matter that falls largely outside the purview of international law. This is so because governments -- and especially democratic governments -- are accountable and responsive to their own citizens, as opposed to the citizens or governments of other states.
Second, international law can play a central role in establishing mechanisms to secure global or transnational institutions and activities, such as international travel, finance, and trade. In these areas, national law lacks the jurisdictional reach to address threats to the integrity of global systems -- for example, piracy in international waters or attacks on international flights. Only international rules that synchronize enforcement efforts across nations can prevent terrorists from exploiting vulnerabilities in the seams between nations' legal systems.
Third, when one country harbors terrorists or other dangerous actors, international law must acknowledge that such a nation has an obligation to avoid becoming a platform for attacks on other sovereign nations. Today, the security of the international system is increasingly characterized by interdependence. On matters from nuclear terrorism to cybersecurity to bioterrorism, the failure to secure a single node of the global security network can threaten to undermine the entire system. Unlike during past eras, the most serious threats to sovereignty today do not necessarily come from the official acts of other states; rather, they come from other states' unwillingness or inability to act to contain deadly nonstate threats that develop within their borders. It would be misguided to view such decisions merely as exercises of inviolable "sovereign authority." Instead, they should be viewed as imperiling the sovereignty of those nations that find themselves at the receiving end of dangerous nonstate threats.
A new international legal framework that confronts modern threats is long overdue. Despite the novel legal challenges raised by the spread of terrorism, the tendency has been to debate global security issues within the confines of existing, and largely outdated, international legal frameworks. Implementing an international order that advances U.S. security interests will require difficult decisions and sustained work for at least a generation. To begin, the United States and its partners must ground the reciprocal responsibility to contain threats on three core principles: nonsubordination, collaborative security, and reciprocal sovereignty.
A NONSUBORDINATE DOMAIN
First and foremost, a containment framework for international law must avoid subordinating consent-based domestic security measures to foreign norms. The ability of a state to control its internal affairs, including its domestic laws, is a core aspect of national sovereignty. Nations' legal systems -- even those of established democracies -- differ markedly from one another in how they deal with domestic crime and terrorism. For example, the United States and European countries differ on the permissibility of the death penalty, the ability of prosecutors to seek plea bargains, the requirements for judicial authorization to conduct surveillance, and the use of an adversarial, as opposed to an inquisitorial, trial process. Because these features reflect the cultural and political attributes of particular countries on matters affecting individuals within their own sovereign territories, they are not appropriate subjects for international lawmaking. International law has no business interfering with the U.S. domestic system of justice; by the same token, the United States should respect fundamentally fair domestic systems of law that may yet differ from its own. Accordingly, the United States should be particularly averse to efforts that invoke vague or untested foreign principles to override measures adopted democratically by sovereign governments.
Indeed, abandoning consent-based domestic rules in favor of transnational norms is especially unjustified when the particular norm involved would imperil a state's ability to protect the security of its own citizens. Liberty-respecting democracies will inevitably strike different balances when they weigh important security objectives against competing considerations such as privacy or economic development. International law will undermine its own legitimacy if it forces individual countries to adopt risks that they have specifically sought to avoid through reasonable, democratically enacted policies.
Consider, for example, the invocation of jus cogens. Traditionally, such peremptory norms have prohibited only truly egregious domestic acts. But international activists and legal advocates are increasingly seeking the recognition of new peremptory norms that would invalidate domestic laws and policies. For example, lawyers have argued in past federal litigation that jus cogens norms forbid imposing the death penalty and that they limit immigration officials' authority to detain deportable criminal aliens whose home countries will not accept them. Several scholars have gone even further, concluding that peremptory norms should confer additional rights, including the "right to unionize." Although such rights may be worthy of protection and may even be recognized under U.S. law, invoking international law in this way is troubling because it circumvents democratic domestic laws, safeguards, and processes. And the more that courts and scholars recognize new peremptory norms that forbid merely debatable (but not egregious) domestic conduct, the less those norms will retain their legitimacy as measures reserved for exceptional cases.
COLLABORATE AND ACT
The United States and its partners should be less hesitant to employ international law when addressing genuinely transnational concerns and threats. Indeed, the formal instruments of international law must be updated to handle modern threats to state sovereignty. Over the long run, containing security threats will require drafting and updating reciprocal, consent-based legal instruments -- such as treaties, conventions, and charters -- to recognize modern threats to sovereignty that do not fall neatly into existing categories. Because of the stateless and transnational nature of terrorism, the United States must collaborate with its partners to construct an international regime that prevents nations from exporting their security risks.
Such a legal framework will apply most readily to activities that are inherently transnational and thus properly subject to the development of international standards. Take, for example, activities involving the transport of goods, people, or money from one country to another -- such as air travel, cargo transportation, and cross-border financial transactions. International law is particularly appropriate for regulating such activities due to their quintessentially international character. No single country has either the capacity or the jurisdictional reach to control all global threats.
In many cases, the United States will be best able to address these fundamentally transnational security issues through bilateral agreements that synchronize U.S. security policies with those of other nations -- as did the recent agreement between the European Union and the United States on sharing airline passengers' personal data. However, as more countries realize the security benefits of such bilateral arrangements, it may be appropriate to enlist all of the United States' international partners in drafting multilateral frameworks that more widely synchronize states' security practices. These agreements would create minimum baselines of acceptable security measures aimed at activities originating in one country but directly affecting others. A group of nations could agree, for instance, to add provisions to the Convention on International Civil Aviation requiring that governments collect and share basic information about passengers. Similarly, they could draft a convention that establishes minimum screening procedures for cargo transported internationally. The fundamental goal of these new agreements would be to achieve containment through reciprocity. By agreeing to screen for outgoing threats originating within their own borders, individual countries would gain assurance that similar measures would be taken against incoming threats originating outside their borders.
Under this revised framework, both domestic and international institutions would play an important role in advancing security objectives by enforcing new conventions on cargo security, transportation security, and other issues. International law would fill the legal gaps exploited by globally mobile terrorists and other such criminals.
To be sure, devising a truly collaborative and enforceable set of consent-based security obligations will take time. But there is reason for optimism. The international community has already begun tackling some classically transnational problems; recognition of the need for reciprocal security obligations is emerging in international criminal law. A UN convention adopted in 1988, for example, established a legal mechanism for delivering piracy offenders to signatory coastal nations and required that those nations prosecute or extradite such offenders. And in August 2006, the U.S. Senate approved the Convention on Cybercrime, which sets forth a comprehensive framework for international cooperation against computer crimes and requires member states to outlaw specific activities. These international agreements recognize that the unbounded nature of many illicit activities obliges individual states to cooperate to contain emerging threats and that the agreements themselves will only be successful if they are adopted with the consent of those states.
What should the international community do when global threats originate entirely within a state that does not consent to reciprocal international security obligations? This can occur when, for example, a nation fails to enact adequate domestic security measures or is simply unable to control terrorists or other criminals within a particular region. These situations present truly hard cases because they place the international community's security interests in conflict with a nation's right to control its internal matters. But states can no longer refuse to act by hiding behind seventeenth-century concepts of sovereignty in a world of twenty-first-century dangers. International law should not be powerless to prevent deadly nonstate threats from spreading from one state to others. If it is, the sovereignty of all nations will be sacrificed to preserve the sovereignty of one.
Therefore, international law must be updated to reflect the reciprocal nature of sovereignty in the modern era. As one example of the need for a new legal framework, consider the Charter of the UN, born from the experience of World War II. The charter does not contemplate complex threats to sovereignty posed by transnational terrorist organizations, providing only that "all Members shall refrain . . . from the threat or use of force against the territorial integrity or political independence of any state." And although Article 51 of the charter recognizes states' "inherent right of individual or collective self-defence" if attacked, some -- as did the ICJ in the Israeli barrier case -- narrowly interpret this self-defense exception to mean that a state can only exercise its right to self-defense if an imminent or actual attack on its territory comes from another nation-state, not a nonstate actor.
Such a narrow conception of self-defense misses the mark. As a practical matter, it ignores the increasing danger posed by nonstate actors, particularly in an age when they can obtain weapons of real destructive force. Moreover, it leaves nations helpless when an attack is threatened by a group that has created a haven within another state. Since the government of the host state is not itself launching an attack, Article 51 does not seem to come into play under the ICJ's and others' reading. Yet from the standpoint of the targeted state, there is no meaningful difference between an attack launched by a government and an attack launched by terrorists whom a government has failed to control. NATO recognized this very fact when, after 9/11, it invoked the collective defense provision of its charter for the first time in its history. There remains, however, considerable ambiguity and disagreement concerning whether that provision and other international self-defense provisions apply to terrorists, and in what circumstances. The interior ministers of the six most populous EU member states recently concluded that it is "important to explore the issue of self defence fighting against terrorist targets in order to determine to what extent further tools, procedures and international legal cooperation is required."
The reality of modern threats supports the need for an international legal framework that would require states to contain the negative global consequences of domestically originating security threats. The UN Security Council has only just begun the difficult work of constructing such a framework. In the immediate aftermath of 9/11, it passed Resolution 1373, which directed all member states to prevent and criminalize terrorism and to "refrain from providing any form of support, active or passive," to terrorists. As the resolution itself acknowledged, however, nations need to go further: to "cooperate . . . through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts." The development of such a new legal framework is still in its infancy. Indeed, it was despite the passage of Resolution 1373 that the ICJ later embraced its narrow interpretation of the self-defense exception.
It is not enough for a group of nations, such as the Security Council, to pass resolutions that prohibit states from supporting terrorists. If states fail to contain transnational threats, there must be an international legal regime that subjects them to potential sanctions or even, if necessary, military intervention aimed at neutralizing those threats. Far from signaling a retreat to unilateralism, this approach would require cooperation in building a new legal framework. The mechanisms and limits of such an international legal regime will require time and effort to construct; the alternative, however, is an ad hoc regime that either encourages a go-it-alone approach or results in international paralysis. Embracing this new framework would not amount to abandoning consent-based international law; rather, it would enhance it. By recognizing that modern technology, transport, and trade often propel the destructive consequences of one state's action or inaction far beyond its own territory, the new framework would help states defend their sovereignty against new security threats.
This is not to deny that there is a tension between the argument that international law should require states to implement reasonable measures to contain international security threats originating within their borders and the argument that international law should defer to domestic policies aimed at bolstering international security. The critical distinction here, however, is between fundamentally domestic security concerns affecting a single nation and truly global threats that affect other states and their citizens. Whether a nation is taking sufficient measures to contain international security threats originating within its borders is an international matter, but as long as a state is successful in containing such threats, how it chooses to do so is a domestic issue.
In recognition of this distinction, the new reciprocal containment principle would afford governments maximum discretion to implement domestic security policies, provided that they are consistent with that nation's obligations to respect the sovereignty of other nations. Of course, this discretion need not be absolute, even in purely domestic affairs. One can imagine situations that would demand the flexibility to confront truly draconian measures implemented by nondemocratic means -- situations involving, for example, violations of long-established jus cogens norms. But international law will be more widely accepted when it strives to preserve the autonomy and mutual consent of nations in achieving international goals. Conversely, those who seek to forcibly impose abstract concepts of universal values on purely domestic decisions are placing the legitimacy of international law at risk.
FOR THE MOMENT, CAUTION