Accountability, Indeed

Chris, Julian —

It looks like we are not immune from the general tendency of commentators to talk past each other on the question of UN reform and the value of international law and institutions to US interests. Let me try to unpack what we mean by accountability by refining what Chris referred to as the “ends/means” debate.

Implicit in my discussion of UN reform was the assumption that there is enduring value to an international institution that is open to universal membership and predicated on the idea that peace is preferable to war, cooperation is preferable to conflict and that all human beings are entitled to the protection of some basic rights. Those of us who believe that such an institution has served and will continue to serve the long-term interests of the United States (as well as the long-term interests of all actors in the international system) must work to ensure that the institution is capable of carrying out that mandate. That means paying attention to “little” things, such as fiscal corruption and incompetence within the bureaucracy, as well as to “large” things, such as institutional norms that undermine the central tenets of the institution. The former requires the relatively simple steps of adopting transparent systems of control with which most advanced democracies have experience. The latter is more difficult and may require, for example, reconsidering the rules governing membership on the Human Rights Commission, the structure of the Security Council, and, perhaps, the Charter provisions concerning how and when the collective security mechanisms are triggered. I will have more to say on this next week, but the difficulty of the Secretary General’s High-Level Panel to reach consensus on amendments to the language of the Charter does not leave me optimistic that we will see change anytime soon on these larger issues.

On that hardy perennial of whether the US does or should hold itself to the standards of international law, I find myself somewhere in the middle of both your positions. The notion of American exceptionalism, i.e., that international law is good for everyone else, but not for us, is generally based on three arguments: 1) our domestic legal order is adequate and perhaps superior to international norms in solving our problems; 2) the domestic legal order under our Constitution should be the last word on how “we the people” order our democracy and conduct ourselves internationally; and 3) notwithstanding the merits of #1 or #2, it would be detrimental to our economic and political security to subject ourselves to outside rule making. The reality of globalization has eclipsed the first argument, and is reflected in broad US leadership in the internationalization of all aspects of economic regulation. (Admittedly, it is a form regulation that reflects our particular brand of free market capitalism, but it is nonetheless regulation, and the US is more or less living up to its obligations in that sphere.) The second and third arguments — which seem to me implicit in Julian’s comments — are more challenging for those of us who support continuing US participation in the UN and other international institutions. Yes, Chris, the US ought to live up to the obligations it has undertaken. But what happens when the US changes its mind? What happens when those obligations no longer reflect the interests of the United States? Or when the international institutions no longer reflect their original purpose? What if populism resurges and Congress decides it does not like the rules of NAFTA of the WTO? What if, instead of Congress, its the President who changes his mind?

America’s complicated relationship with international law has been around since the founding of the Republic. Jed Rubenfeld has an interesting commentary in the most recent NYU Law Review that traces some of the history of US unilateralist tendencies and concludes that the US should make a distinction between international cooperation (good because necessary to address global problems and promote US interests) and international governance (bad because anti-democratic and potentially adverse to US interests). The failure to articulate this distinction adequately in public discourse only exacerbates the tensions between us and our European counterparts — whose acceptance of supranational governance is central to the European project — on questions of international law. But the EU system is not our system.

This explains, in part, why we and the Europeans have been talking past each other on the issue of prosecutorial independence at the ICC.

The challenge for American internationalists is to devise and support rules of cooperation that actually promote global welfare and human dignity but that also preserve diverse domestic forms of democratic governance and accountability.