Defending the S-Word

Reviewed by Michla Pomerance

Law Without Nations? Why Constitutional Government Requires Sovereign States
by Jeremy A. Rabkin
Princeton University Press, 2005, 350 pages.

In this volume, Jeremy Rabkin of Cornell University provides a refreshing antidote to some of the more pernicious trends that have infected the field of international law and organization in recent decades. Galvanizing his vast knowledge of legal history, political philosophy, and international relations, he exposes the fallacies of scholars and practitioners who abhor the “S-word”—sovereignty—and salivate reflexively at the idea of “global governance.” Rabkin forthrightly and unapologetically hails the virtues of American constitutionalism and independence—and indeed of American “exceptionalism,” too—while highlighting the vacuity and dangers of over-commitment to multi-lateralism. Such over-commitment, he suggests, is currently dominant in Europe and among those in the United States who look to Europe for guidance. Where not too long ago Samuel Huntington could warn of a “clash of civilizations,” with the United States and Europe on the same side of the cultural divide, today, Rabkin notes, important rifts on issues of sovereignty have emerged within Western culture. He proceeds to delineate masterfully some of the most menacing of these fault lines, their nature, sources, and repercussions. Implicitly, he places the onus for healing the observed transatlantic breach squarely on the shoulders of the Europeans and their oft-misguided Euro-centric devotees. The would-be healers would surely benefit from paying heed to the evidence, furnished abundantly in this volume, of the untenability of so many currently romanticized notions associated with multi-lateralism and supra-nationalism.
Even the present lexicon, Rabkin notes, is portentous. Instead of the long-outdated concepts of “world government” and “world federalism” that had been in vogue in the immediate post-World War II period, it has become fashionable to speak of “global governance” and “subsidiarity.” “Governance,” unlike “government,” is charmingly ambiguous; it enhances the role of judges as lawmakers, and it does not necessitate the use of force. And “subsidiarity,” he states, is but “a very poor substitute for sovereignty.” Derived from Catholic Church practice, the term is used to characterize the process by which local authorities may be permitted, by the grace of the center, to decide their own affairs.
Underlying this lexicon are postulates that have a quasi-religious significance for their proponents and that bear vitally on issues of war and peace, human rights, and, increasingly, trade and the environment. A few examples can serve to illustrate the author’s critical approach to the most egregious tenets of the new dogma.
Is peace, based on respect for law, best secured by surrendering sovereignty to a supra-national authority, as is so commonly assumed, especially in Europe? Rabkin’s answer is a resounding “no.” By misdiagnosing the causes of their continent’s past blood-drenched conflicts, on the one hand, and extrapolating inappropriately from their still-continuing experiment in “supra-nationalism” and “subsidiarity” on the other, Europeans offer ineffectual and harmful remedies for the world’s ills. It is not sovereignty in general, Rabkin explains, that is minatory; it is sovereignty in the hands of those who entertain sinister ideologies that threatens the world with disaster. The goals of German Nazism and Soviet Communism, he reminds us, were to abolish existing sovereignties and to replace them with a new form of imperial, “supra-national,” authority. And the key to foiling these plots was found in the legitimate exercise of “sovereignty” and the inherent right of individual and collective self-defense. The identity of the plotters and of the most menacing ideology confronting the world may have changed, but the key to thwarting the evil designs remains the same.
Just as “sovereignty” in the abstract is not the culprit, and in the right hands is rather the savior, supra-national and multi-lateral institutions are not necessarily the salvation, and in the wrong hands represent a major part of the problem. Depending on their composition, agenda, and guiding philosophies, international organizations have frequently proven to be ineffectual at best, and too often greatly damaging to the cause of world peace and justice. There is certainly no need to elaborate on the composition and agenda of such bodies as the United Nations General Assembly or the late, unlamented UN Human Rights Commission (or its successor, the UN Human Rights Council, which has proven to be even worse than its forerunner). The General Assembly, Rabkin notes wryly, “is no strong argument for the wisdom and benevolence of the ‘international community.’” It, along with the UN human rights bodies, has notoriously devoted a major part of its time to censuring Israel for its acts of self-defense, while ignoring gross human rights violations in such countries as China, Libya, Saudi Arabia, and the former Soviet Union.
Nor is the Security Council’s record very encouraging. It failed to prevent bloodshed in the former Yugoslavia; and the slaughter of some eight thousand civilians in Srebrenica occurred as the Dutch contingent of the UN peacekeeping mission stood by passively. Most grievous was the inaction of the UN and its peacekeepers in Rwanda as the Hutu engaged in massacring almost a million of the Tutsi minority. “Instead of deploying force,” Rabkin writes, “the UN Security Council consoled itself by sending lawyers to these tormented places.” It created ICTY (the International Criminal Tribunal for the Former Yugoslavia) in 1993, and ICTR, the parallel tribunal for Rwanda, in 1994. Both tribunals, he concludes, “were not so much belated action as a substitute for action. Yet both stirred considerable excitement among human rights advocates.” That excitement was, in his view, totally unwarranted.
Indeed, he considers that the entire “human rights crusade”—the topic of a major chapter in the book, with special relevance for Israel—has been generating unwarranted excitement. The problems he cites are legion. They include the undue expansion of the term “rights,” with no indication of priorities: “Moral limits which were once thought to apply only to the most extreme outrages are now thought to apply to a vast range of ordinary policy.” Suffused with an aura of “surrogate piety,” the concept of the international protection of human rights has assumed the character of a new secular religion, problematic in its contours and application.
In the UN “wonderland of international human rights,” “talkfests” and the ratification of toothless treaties replace state action and foster the false and dangerous illusion that this represents real progress in the observance of human rights. “Saudi Arabia becomes a recognized adherent to the convention against sex discrimination,” and “China claims to be in full compliance with the Covenant on Civil and Political Rights.” In the real world, as a recent study cited by Rabkin demonstrates, “compliance with human rights standards commonly went down after states ratified human rights conventions.” The ratification process enabled states to “deflect criticism of their actual conduct”; and, “far from stigmatizing the worst offenders… the UN system helped to exonerate them, indeed to elevate them.”
Such skewed delusional thinking, Rabkin argues, is integrally connected with the current legalist-moralist-pacifist temper of Europe. As he observes:
[T]he priorities of human rights advocates… seem to reflect their eagerness to escape into a world in which evil is not a genuine challenge. If one imagines a world in which the policy lapses of Western governments are merely on a continuum with mass murder perpetrated by the worst tyrants, then the special capacities of human rights advocates—legal arguments, moral appeals, adverse publicity—ought to work against the latter as against the former. Then there would be no need for the military capacities that remain beyond the reach of human rights organizations.
This outlook is very seductive to many Europeans for much the same reason. If the issue is military action, then Europeans have very little to contribute. But if the world can be fixed by moral and legal appeals, Europeans can imagine that they have more skill with such tools than people anywhere else and certainly much more skill in this arena than government officials in the United States.
The UN/European outlook is also nourished by several questionable premises, including the belief that “almost all human beings are well-meaning, even to strangers”; that they “cooperate easily and naturally without much constraint”; and that they “have no very serious disagreements on fundamental matters.”

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