American Sovereignty and Its Enemies

The George Zimmerman saga came to an end last weekend when a jury of six Florida women found the neighborhood-watch captain not guilty in the shooting death of Trayvon Martin. But even before the 15-month legal process had begun last year, the United Nations’ top human-rights official had rendered a guilty verdict—against Mr. Zimmerman and the entire U.S. judicial system.

“Justice must be done for the victim,” said U.N. High Commissioner for Human Rights Navi Pillay at an April 2012 press conference. “It’s not just this individual case. It calls into question the delivery of justice in all situations like this. . . . I will be awaiting an investigation and prosecution and trial and of course reparations for the victims concerned.”

Americans who ran across her statement may have dismissed Ms. Pillay as another U.N. busybody pestering the world’s leading democracy. But former Sen. Jon Kyl thinks there is something more pernicious at work: Such comments express the desire, and growing power, of a global progressive elite to pierce the shield of U.S. sovereignty and influence the outcomes of the country’s domestic debates.

Proponents call this movement “legal transnationalism,” and as Mr. Kyl writes in a recent Foreign Affairs magazine article (co-authored with Douglas Feith and John Fonte of the Hudson Institute), “the idea that a U.N. official can sit in judgment of the U.S.” is one of its main innovations. Transnationalists want to rewrite the laws of war, do away with the death penalty, restrict gun rights and much more—all without having to win popular majorities or heed American constitutional limits. And these advocates are making major strides under an Obama administration that is itself a hotbed of transnational legal thinking.

“Transnationalists are a group of people who are convinced they are right about important issues,” Mr. Kyl says as we sit down for a chat at the plush Washington office of the law firm Covington & Burling, where the 71-year-old Arizona Republican has served as an adviser since leaving the Senate in January. “But they are in too much of a hurry to mess with the difficulties of representative government to get their agenda adopted into law—or they know they can’t win democratically. So they look for a way around representative government.”

Mr. Kyl knows something about representative government. After a four-term stint in the House, he entered the Senate in 1995 and quickly emerged as a serious thinker on defense matters. In 1999, armed with his collegial, unassuming personality and substantive knowledge, he led Senate GOP opposition to the Comprehensive Test Ban Treaty. The treaty’s ultimate goal, he charged at the time, was “total nuclear disarmament,” an effort by U.S. adversaries and global arms-controllers to defang America’s nuclear deterrent.

Now he has taken it as his mission to defeat the transnationalist efforts to steer American law. And he finds himself once again contemplating treaties that don’t bode well for the U.S. A favorite transnationalist tactic is pushing the U.S. to ratify treaties like the three-decades-old U.N. Convention on the Elimination of all Forms of Discrimination Against Women, or Cedaw, and the more recent Convention on the Rights of Persons With Disabilities. Such treaties, Mr. Kyl says, “have a lot of loose language that in the hands of the wrong people can demand far more than was ever intended by the American people.”

Take Cedaw. If the Senate ever ratifies this piece of “1970s feminism preserved in diplomatic amber,” as one commentator described the treaty, the U.S. would become subject to oversight by a Geneva-based committee that requires signatory states to, among other things, “achieve a balance between men and women holding publicly elected positions”; “ensure that media respect women and promote respect for women”; and “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of . . . stereotyped roles for men and women.”

Would cooking TV shows hosted by female chefs survive Cedaw? How about Philip Roth novels?

Wiping out undesirable patterns of thought may be an easy proposition for illiberal regimes, but not for a constitutional republic. Says Mr. Kyl: “Once you have ceded authority to an external body to make decisions, our theory of government—accountability in officials, consent of the governed—is very difficult to uphold. So you want to give up sovereignty sparingly and only when there is a clear benefit to doing so. I’m not saying the Senate should never ratify a treaty on behalf of the people, but I’m saying it should take the responsibility very seriously.”

To be clear, transnationalism isn’t a conspiratorial enterprise. In the legal academy, its advocates have openly stated their aims and means. “International law now seeks to influence political outcomes within sovereign States,” Anne-Marie Slaughter, then dean of Princeton’s public-affairs school, wrote in an influential 2007 essay. International law, she went on, must expand to include “domestic choices previously left to the determination of national political processes” and be able to “alter domestic politics.”

The preferred entry point for importing foreign norms into American law is the U.S. court system. The Yale Law School scholar Howard Koh, a transnationalist advocate, has written that “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” Over the past two decades, activist judges have increasingly cited “evolving” international standards to overturn state laws, and Mr. Koh has suggested that foreign norms can be “downloaded” into American law in this manner.

Academic transnationalists insist that their work merely extends the customary law of nations that has governed relations between sovereign powers since Roman times. They note that the Declaration of Independence calls for “a decent respect for the opinions of mankind.” And they cite Chief Justice John Marshall’s 1815 holding that American courts are “bound by the law of nations which is part of the law of the land.”

But customary international law is nothing like transnational law. “It’s really in the last decade or two,” Mr. Kyl notes, “that the subject of a treaty hasn’t been an agreement between two sovereign states but rather between the people of one country and their own government.”

Another innovation has been the elevation of progressive norms, like Cedaw’s prohibition of gender stereotyping in the media, to the status of customary international law. Previously a widespread state practice—for example, the ancient prohibition against harming ambassadors—would take centuries to earn the status of customary international law.

“But transnational law says a rule doesn’t have to be in existence very long,” Mr. Kyl says. “And it doesn’t have to be demonstrated by countries through their actions. You simply have to have well-meaning people talking about it.”

Cedaw, it should be noted, has been ratified by China, Saudi Arabia and Egypt, among other regimes with abhorrent women’s-rights records. Yet transnationalists are fond of pointing out all of the areas where America supposedly lags the global gold standard: from the death penalty to state prohibitions on gay marriage.

“I wonder if we’re also the only country that has all of the rights embedded in the first 15 amendments to the U.S. Constitution,” Mr. Kyl says. “Does that also make those rights passé? I think not. We’re the only country in the world ever founded on an idea rather than an accident of geography or blood. So the fact that other nations haven’t gotten to our level . . . doesn’t mean we have to throw in with them.”

The transnationalists think otherwise, and President Obama has given them an opening to shape U.S. policy. Ms. Slaughter and Mr. Koh held top posts at the State Department during Mr. Obama’s first term, and their tenures coincided with an aggressive push to ratify or recognize as customary law Cedaw and a host of other progressive causes.

For proof that the transnationalist threat isn’t merely theoretical, look no further than the European Union. Says Mr. Kyl: “What they have now is a situation where their sovereignty has largely been supplanted by others who are not accountable to voters in individual European countries.”

It was in Europe where these ideas were first implemented, and it is to the EU that transnationalists look as a model. Today over half of the regulations that affect Europeans’ lives are made by administrators in Brussels, not by national legislatures.

These regulations include the EU’s ban, announced in May, on restaurants serving olive oil in traditional glass jugs or terracotta bowls (to protect the “image” of olive oil); the prohibition against insurers charging women drivers lower premiums (sexism); and Commission Regulation 2257/94, otherwise known as the “bendy banana” law, which until recently required farmers to discard irregularly shaped bananas (don’t ask).

American transnationalists look with admiration on Europe. “Once those laws are passed, EU institutions . . . look over national shoulders to ensure that they actually do what they commit to do,” Ms. Slaughter has written. “This European way of law is precisely the role that we postulate for international law generally around the world.”

Mr. Kyl is less sanguine. “When your society is regulated to that extent by someone who has no accountability to voters, something is very, very wrong,” he says. “The transnationalists should be the last ones lecturing anybody about what ought to be because what is is the U.S. Constitution, which recognizes sovereignty in the American people. That is embedded in everything about our country. It’s not outmoded—it’s who we are. And if you’re not willing to accept that, then you haven’t signed on to the most basic notion of what it is to believe about our country.”

Mr. Ahmari is an assistant books editor at the Journal.