Multilateral treaties preserve I-law while extraterritoriality decks it—solves democratic norm setting, hegemony, and promotes international cooperation

C. WHAT IS TO BE DONE? So how should Sovereigntists and modern Internationalists respond to the threat of extraterritoriality? A complete description of how to reclaim international law is beyond the scope of this article. But some modest observations are appropriate. Good reasons exist to embrace traditional international law. State-centered international law, tempered by strong human rights enforcement, is designed to prevent jealousies between states and excessive nationalism. Indeed, the widely held view of international law, until recently, was one of a system that would “triumph over narrow nationalism and, in so doing, . . . promote the peaceful settlement of disputes and a common, cooperative approach to the resolution of global issues.”269 And it has worked reasonably well. Under classic international law doctrine, respect for territorial integrity through nonintervention in other states’ domestic affairs promoted peace and stability.270 This is the core of the concept of sovereign equality and the ban on nonintervention.271 But extraterritorial application of law threatens to compromise that very principle,272 and with it the stability the world has seen over the past fifty years. The United States should encourage the development of international norms and procedures, because by doing so it protects its position in the world, and it avoids the difficulties with extraterritoriality. States enter into multilateral agreements specifically to obtain political, military, and economic security. Once created, multilateral laws and their institutions are less vulnerable to later shifts in power—thus protecting the interests of hegemons, like the United States, and projecting their influence even after hegemony has ended.273 Nico Krisch has described it well, explaining how international law can lead to stability and the embedding of the values of dominant states: [I]nternational law is also extremely useful as an instrument of stabilization: it allows dominant states to project their visions of world order into the future, since once they are transformed into law, the backward-looking character of international law makes them reference points for future policies. And oftentimes, concepts strongly rooted in international legal norms create a new normality: over time, they modify the conceptions of legitimacy of international society, which makes later changes all the more difficult.274 Some evidence also exists that, unlike extraterritorial laws, international lawmaking is democracy-enhancing,275 and particularly useful to aid other states transition to democratic government.276 A common response is to agree with these benefits, but to suggest that extraterritorial national laws are a necessary impetus to obtain international agreement.277 The idea is enticing and appears logical: conflict between states will spur negotiations and provide incentives to cooperate multilaterally.278 But ultimately, the idea flounders and does not lead to the cooperation expected. First, little empirical support exists to suggest that extraterritorial laws lead to greater cooperation.279 The United States, for example, began applying its antitrust laws extraterritorially in the 1940s.280 Yet not until 1999 did the United States enter its first bilateral antitrust agreement.281 And despite fierce foreign opposition to extraterritorial U.S. antitrust laws and the ensuing friction—which, in theory, should have spurred international lawmaking—cooperation in the form of a multilateral competition treaty seems still far out of reach.282 Second, historically it has been the United States—not other countries—that has needed encouragement to enter into multilateral treaties, even those that serve long term American interests.283 Extraterritorial American laws have not only taken the pressure off the United States to join multilateral agreements, but have provided it an incentive to derail them.284 More importantly, those who argue for extraterritorial laws as a means of advancing international cooperation again assume that the extraterritorial laws will be only American laws (i.e. that the pressure will only be placed on other countries). But in an age of global extraterritoriality, it is far from clear why the United States should welcome pressure, through extraterritorial laws, compelling it to negotiate international agreements from a position of weakness rather than power.285 Using extraterritorial laws then as a way to achieve international agreement seems a particularly misguided strategy. To be sure, there may be short-term costs of turning to international treaties and multilateral agreements as a way to solve transboundary challenges. In reclaiming international law—embracing multilateralism—the United States would need to give up its claims to American exceptionalism. As a nation, we would have to be content to find that at times our international obligations would run counter to immediate American interest. But we could also be comforted by the knowledge that overall, in the longer term, our interests would be protected to a greater extent. Indeed, in the past, “as long as [the United States has] limited itself to the promotion of its own interests (which is the essence of international negotiations), the United States has experienced an appreciable success in shaping international law through treaties.”286 Only when it “pretends to be entitled to some kind of exceptional treatment” has the United States met with opposition and become isolated.287 Before concluding, two things that this article does not advocate are worth emphasizing. First, the United States has the right—indeed, the duty—to refuse to sign and ratify an international treaty with which it disagrees. But the refusal should come from disagreement with the details of the treaty itself, not from a generalized philosophical objection to international law solely because it is international. Nor should the objection to treaties come from a perceived moral imperative to vindicate U.S. democratic sovereignty, given the democratic problems that the extraterritorial alternative implicates. Neither should international treaties be set aside merely because they lack the expediency of domestic actions. Difficult compromises and hard work are to be expected and are beneficial to ensure good law. It is much better for the United States to take these steps now, while it remains in a position of global power, than to wait until its power ends, and the ability to negotiate beneficial, albeit self-serving, treaties is circumscribed. Second, this article does not criticize those activists who bring extraterritorial claims. They are acting as lawyers for their clients. They have not been hired to worry over the longterm policy implications of extraterritorial lawsuits. But academics and policymakers have no such excuse. They should be much more sensitive to the long-term implications of turning toward extraterritorial domestic law. For the activists, in the current atmosphere where international law is particularly weak, litigation may make sense. Certainly, litigation may provide interim relief until more comprehensive solutions are found.288 And private party litigation can serve the important function of focusing attention upon the problem. In fact, the public attention generated may be the only real benefit of these kind of transnational extraterritorial suits.289 But in the long run, extraterritoriality is not a sustainable way to solve global challenges.