My way or no way: the American reluctance for trans-territorial public law.

• Author: Funk, William

1. INTRODUCTION

   One of the topics for this symposium is "trans-territorial administrative law." It is said that public law is in the process of de-territorialization; that many of the phenomena discussed in the current context of modern administrative law (e.g., agency-networks, governance, privatization, globalization) have led to a lessening of the principle of territoriality in public law; and that, indeed, in a digital age, the principle of territoriality seems much less important to an increasing sector of regulation of activities (e.g., media, telecommunications, banking, insurance, internet, crime prevention, etc.). De-territorialization is probably most evident in trade law, where the World Trade Organization (WTO) (1) has become the de facto ruling body regarding national barriers to international trade. Nevertheless, de-territorialization is hardly limited to trade, as the International Criminal Court (ICC) (2) reflects. While the United States has been a leader with regard to some aspects of this globalization of public law, such as in the formation of the WTO, it has also failed to participate in other aspects, such as in the creation of the ICC. What explains this American ambivalence?

2. THE UNITED STATES' VIEWS ON DE-TERRITORIALIZATION

   The history of the United States, from George Washington's farewell address (3) to at least the beginning of World War II, reflects a nation distancing itself from attachments with foreign nations. The failure of the United States to ratify the League of Nations and participate in its activities is the paradigm of that isolationism. The Allies' victory in World War II, on the other hand, and the supremacy of the United States among the Allies, assuaged Americans' historic fears of becoming involved in international affairs in light of the imagined benefits of international organizations--hence, the United Nations, the North Atlantic Treaty Organization, and the General Agreement on Tariffs and Trade. (4)

   The United States' leadership in the creation of these organizations, however, was aligned with the United States' perceived ability to both dominate these entities and to be their primary beneficiary. As the leader of the "Free World" and the unchallenged economic master of the world, the United States stood to gain the most by creating global organizations that reflected its view of the world. However, despite the fact that the United States is now the undisputed predominant military power in the world, enabling it to project military power to every continent, it has seen its leadership of the "Free World" in many respects decline with the rise of the European Union (EU) as a political entity of its own. Moreover, with the EU surpassing the United States in Gross Domestic Product and China closing in, (5) the economic supremacy of the United States can no longer be taken for granted. Thus, it should be no surprise that the United States' enthusiasm for undertaking new international obligations--when it would not be the unchallenged leader would lessen.

   Indeed, as its influence waned, the United States even began to cut its financial support of the United Nations. (6) In 1985, the United States withdrew from the general jurisdiction of the International Court of Justice (ICJ), (7) and in 2005, it withdrew from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. (8)

   The United States' efforts now to avoid involvement with international obligations or organizations are further evidenced by the number of international conventions the United States has failed to ratify in recent years: The Convention on the Rights of the Child, (9) the Convention on the Elimination of All Forms of Discrimination against Women, (10) the International Covenant on Economic, Social and Cultural Rights, (11) The Convention on the Prohibition, Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, (12) The Kyoto Protocol, (13) The International Criminal Court, (14) and the Convention on the Law of the Sea. (15) Even when the United States has ratified a convention, it has often established reservations, understandings, or declarations that fundamentally undermine the convention. For example, when the United States ratified the International Covenant on Civil and Political Rights, (16) it declared that the treaty was not self-executing and therefore had no domestic legal effect. (17) This declaration led the Human Rights Committee of the UN in 2006 to criticize the United States for material non-compliance. (18) While the United States does not always explicitly explain the reasons for not ratifying (or fully adopting) these conventions, a continuing concern has been that ratification would be inconsistent with the sovereignty and constitutional structure of the United States. (19) That is, there is a belief that the international bodies that implement and interpret these conventions should not be empowered to define the rights of Americans or to alter the social and economic priorities established by their elected representatives. For example, the Human Rights Committee of the Covenant on Civil and Political Rights found that, among other faults, the United States failed to provide adequate political rights to the citizens of the District of Columbia, failed to provide adequate civil rights to those imprisoned in maximum security prisons, and failed to eliminate de facto segregation in schools. (20) Clearly, decisions as to whether citizens of the District of Columbia should be able to be represented by Senators and Congressman, what civil rights hard core criminals should have in prison in the United States, and how the public schools in the United States should be organized and funded should be made through the American political and legal process, not dictated by an international organization made up of representatives from foreign nations.

   It is undeniable that "conservatives" in the United States have a greater antipathy to foreign organizations and their ability to influence policy in the United States, much less their ability to dictate law in the United States. At the present, the nation is split between the liberal/social political views generally held by Democrats, which are not generally at odds with the political and social views of other economically developed nations, and the individualistic/religious-moral views generally held by Republicans, which are uniquely American. This uniquely American...