Is There Such a Thing as Good Sovereigntism?
Judith Resnik gave an interesting talk on local foreign policymaking at Peggy McGuinness’ terrific Missouri v. Holland symposium week before last, based an article she has forthcoming in the Emory Law Journal (proofs here). She catalogues all the (mostly good) ways in which localities are emerging as international actors. Some of the themes echo others’ work (see for example Catherine Powell’s 2001 piece on dialogic federalism in which localities become a key agent on human rights treaty regimes), although Resnik does hone in on “translocal” organizations such as the National League of Cities in a new way, and the packaging is helpful. On the preemption issue, she calls for a clear statement requirement under which local foreign policy measures would presumed constitutional unless Congress says otherwise. I wouldn’t argue with that (and in some postures, the Supreme Court wouldn’t, either).
As a frame here and elsewhere Resnik deploys the term sovereigntism in a way different than I and others have used the term. She distinguishes exclusive and inclusive versions of the tendency. Exclusive sovereigntism looks familiar, in the “efforts to buffer the United States from ‘foreign’ influences.” But one also finds an “inclusive” variant where (as exemplified by the constitution of South Africa) “one’s national identity is predicated on exchanges from abroad.”
I see the point. Exercises of the national will – in other words, exercises of national sovereignty – can work to incorporate international law. Leaving aside the question of whether “exclusive” sovereigntists actually do privilege the national government when it comes to foreign relations (as Mike Ramsay noted in the Q&A; see here and here for two among many examples to the contrary), I wonder if “inclusive” sovereigntism really captures meaningful possibilities, at least when it comes to the United States.
That’s because acts of the national will which selectively incorporate international law are all premised on the ultimate power to resist international law. Sovereigntists aren’t isolationists, but they like their IL a la carte. In other words, all exclusive sovereigntists are also inclusive sovereigntists, up to a point. If on the other hand someone qualifies as an inclusive sovereigntist only if he accepts IL wholescale and trumping, well, then, not even the South Africans appear to qualify (their constitution accepts CIL as binding, but only where it doesn’t conflict with a statute or other provisions of the constitution — Paquete Habana, anyone?).
At the same time, the local foreign policymaking which Resnik describes can’t itself qualify as sovereigntism of any kind, because it doesn’t represent acts of the national sovereign will. In fact, the dramatic rise in local activity gives the lie to sovereigntism, proving that foreign relations is now beyond the control of national capitals; in other words, that IL will insinuate itself into the national fabric regardless of what Washington thinks it can do. Resnik’s paper establishes that in a highly persuasive way, and the piece is worth a close read.