Courtesy Reuters

MY PREROGATIVE

By Curtis A. Bradley And Jack L. Goldsmith

To the Editor:

Peter Spiro cites us as examples of his article's title villains, "The New Sovereigntists" (November/December 2000). He defines this awkward term (which is his, not ours) as those who believe "the United States can pick and choose the international conventions and laws that serve its purpose and reject those that do not."

But the idea that a nation can decide which international laws to embrace is not new and should not be controversial. In a world of diverse cultures, political systems, and power relationships, international law derives its legitimacy and efficacy from national consent. And the power to give consent naturally implies the power to withhold it.

Spiro describes our position as "anti-internationalist." It is not a rejection of international law, however, to examine whether treaties or customary international rules are consistent with U.S. interests and constitutional standards, or to consider how these international norms should best be implemented within the U.S. system. The United States has long supported the development of an international rule of law. It has also insisted, however, that its international commitments have the support of its people through elected representatives, and that these commitments respect basic constitutional principles such as the separation of powers, federalism, and individual liberties.

Spiro dismisses these domestic democratic and constitutional concerns. For him, more international law, regardless of its content, is always better and should always trump domestic standards. Thus, he claims that the "New Sovereigntism" is "retarding the advance of international law." As for the possibility that some of this "advancing" international law might actually contravene U.S. constitutional values, Spiro simply asserts that "the Constitution will have to adapt." Fortunately, our elected officials have been more sensitive to the domestic costs of international regimes than Spiro has.

Ironically, it is Spiro's unalloyed internationalism, not the New Sovereigntism, that is likely to foster U.S. rejection of international law. Washington often pulls back from international commitments and institutions when such obligations no longer respond to American needs and values. The more advocates such as Spiro justify international law as an end in itself without regard to national consent, the more likely it is that they will fuel the very anti-internationalism they decry.

CURTIS A. BRADLEY

Professor, University of Virginia Law School

JACK L. GOLDSMITH

Professor, University of Chicago Law School

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