31 July 2017

The sovereignty delusion


National sovereignty is an article of faith among most conservatives in the English-speaking world. “Should Americans continue to govern themselves?” my colleague at AEI John Bolton asks in his endorsement of John Fonte’s 2011 book, Sovereignty or Submission, which makes a strong case for the repatriation of decision-making authority from supranational institutions, which often lack transparency and democratic accountability.

Bringing sovereignty – in the sense of ultimate legal authority – from Brussels to Westminster was perhaps the most compelling among the arguments put forward by those who advocated the UK’s departure from the EU ahead of the June 2016 referendum. “Restore the primacy of national constitutions, and much follows,” promised one of the intellectual leaders of the Brexit campaign, Daniel Hannan.

Yet this focus on who has the ultimate power – domestic politicians or bureaucrats in supranational bodies – is largely misplaced. It distracts from the far more important questions of the institutional specifics of how, and under what constraints, that power is exercised. Most worryingly, a preoccupation with sovereignty has led some conservatives to embrace agendas and political leaders directly inimical to free markets and limited government.

Of course, it does matter whether we are governed by politicians whom we have elected and can vote out of office, or by faceless international bureaucrats sitting in a distant place. But it is not the only – or even the most important – thing that matters. Neither is sovereignty an either-or question. After all, modern democracies delegate many decisions to unelected officials and bodies – central banks or utilities regulators are just two examples among many.

Champions of sovereignty, however, argue that supranational institutions, such as the EU, are different in nature. The legal authority enjoyed by national bureaucracies can be always taken back by elected representatives of the people. The EU, in contrast, is the source of a new layer of rules, which can potentially trump those existing in its constituent states. Through the European Court of Justice, the EU is also in a position to enforce its decisions, reducing nation-states into mere provinces of a European superstate. Conservatives have directed similar criticism  at many other supranational judicial bodies, including the International Criminal Court (ICC), identified by Mr. Fonte as “systemically adversarial to American interests and values”.

But how much power do institutions like the ICC really have? Ultimately they depend on the compliance of individual states. And, notwithstanding its sometimes byzantine powers, the EU is a paper tiger too, with no means of enforcing its decisions other than the voluntary cooperation of member states. When Central European countries such as Hungary, Poland, and Slovakia refused to implement the agreed-upon refugee relocation scheme, nothing happened. Even the more egregious attacks on the rule of law in Poland prompted no effective response beyond a rhetorical slap down from Brussels The EU is not a jail of nations – if a country does not like the rules, it is free to leave.

As the recent kerfuffle over a prospective US-UK trade agreement and rules over chlorinated chicken demonstrates, the idea of full sovereign control of a country’s laws by a legislature is a chimera. The real choice, unless you are North Korea, is always between different forms of international entanglements: joint rules, mutual recognition and so on, each of them limiting the discretion of democratically elected representatives in different ways.

Of course, upon leaving the EU, the UK can liberate itself from myriad European regulations, including its food safety rules. But if it rushes to conclude a trade agreement with the US to make up for the losses involved in leaving the single market, it will likely acquiesce to sanitary and phytosanitary rules written by US regulators – and not voted on by MPs in Westminster.

There is no escaping the rules that shape globalised markets without ever being voted on in national parliaments. Take transnational private regulation – the standards set by bodies such as International Organisation for Standardisation (ISO) and International Electrotechnical Commission. Such rules have come to dominate the world not by edict but on their own merits and because of the benefits common standards they entail. But if one is to take the sovereignty argument seriously, don’t these rules infringe on the primacy of national political institutions too? Why aren’t conservative railing against them?

Or consider NATO. Under Article 5, member countries are committed to come to the defence of any of their allies, no questions asked, sacrificing lives if necessary. As Margaret Thatcher put it, the alliance thus imposed obligations that were “at least as far reaching as those under The Treaty of Rome,” adding that “almost every major nation has been obliged…to pool significant areas of sovereignty so as to create more effective political units”.

One root of the excessive focus of US and British conservatives on national sovereignty has to do with the distinct histories of English-speaking peoples and continental Europeans. The experience of America, a continental empire, or Britain, not invaded since 1066 and centralised to a degree unmatched anywhere else in Europe until 19th century, are both outliers within the Western world.

Hardly any other country had the luxury of being an island unto itself in a similar way. Since the fall of the Roman Empire, continental Europe has been shaped by efforts to create a workable form of political “unity in diversity.” In its long history, the notion of a sovereign nation-state of the late 19th and early 20th century appears like a fleeting episode – and one that furthermore led to very bad outcomes, with two world wars and the fallout of the Great Depression.

Historic experience thus suggests that the obsession with national sovereignty is not only wrong but also dangerous. Recently some conservatives have come to the defence of the authoritarian governments of Hungary and Poland – largely because they saw them as standing up to Brussels. But that is a grave, categorical mistake. The real threat to free societies in Central Europe is not from EU bureaucrats but from their own political leaders, busy dismantling checks and balances, suppressing free media, civil society organisations, and private universities, and renationalising large swathes of the economy.

Both in the US and the UK, the desire to “take back control” has also led many conservatives to advocate policies that will diminish the global influence that the two leading free societies have in the world.

None of this is to suggest a Panglossian view of “global governance”. There is indeed a lot that has gone wrong with the EU, and with the United Nations and its alphabet soup of agencies populated by overpaid international civil servants. Conservatives are right to scrutinise how such bodies use the power given to them, the international rules by which governments have agreed to abide and the frequent mission creep of organisations that have outlived their original purpose.

However, one needs to be careful not throw the baby out with the bathwater. The efforts to restore control in the name of national sovereignty are a fool’s errand. The seeming entanglements between national and international rules and various forms of multilateral cooperation often exist for good reasons.

Worse, when the efforts to restore sovereignty and scrap the fabric that holds liberal democracies together come from the two countries that are meant to underwrite the institutional structures behind globalisation and the peaceful international system that the West has enjoyed since 1945, they risk doing lasting damage to the future of limited government, free markets, and free societies across the world.

Dalibor Rohac is a research fellow at the American Enterprise Institute in Washington DC.