Treaties, Risks and Minimal Media Attention
By Marion Edwyn Harrison (07/06/07)
The incumbent Legal Advisor, Department of State, holding that office for the past two years, by any criterion is one of the brighter and better educated lawyers in government or elsewhere. To what extent, if any, his vigorous and outspoken promotion of extensive American participation in international agreements reflects his own view, although apparently it does, is irrelevant inasmuch as the policy is that of President George W. Bush.
Curious it is, however, that there is relatively little media attention to this expansive American internationalist approach.
The Bush Administration has been seeking Senatorial ratification of thirty-five different “treaty packages” - to use a somewhat novel phrase now variously in vogue. Probably the most conspicuous among them is the treaty formally styled the United Nations Convention on the Law of the Sea, dubbed by supporters and theoreticians as UNCLOS, by detractors and realists as LOST. LOST for some time has been a goal of those who seek more American entanglement in the formalities of international law. These advocates now seek such involvement as more and more countries which economically are dependent upon American taxpayers’ assistance or otherwise scarcely exist as viable sovereignties are calling, or influencing, the shots. No wonder that President Ronald W. Reagan was among those who opposed United States ratification of LOST or any bundle of commitments substantially similar.
The media could have reported extensively, but did not, upon a June 6, 2007 address by the State Department Legal Advisor in The Hague. By more than coincidence, The Hague is the situs of, among other grasping international entities, the United Nations Court of Justice and the International Criminal Court. Membership of the former includes one Judge each from: the United Kingdom (who is its President and the source of some controversial statements), Jordan (its Vice President), and, in alphabetical order, China, France, Germany, Japan, Madagascar, Mexico, Morocco, New Zealand, Russia, Sierra Leone, Slovakia, USA, Venezuela. Thus, three of its Judges are from insignificant sovereignties (Madagascar, Sierra Leone, Slovakia); one is from a small but friendly sovereignty, Jordan; all but two are from sovereignties with wholly different systems of justice than our system.
There often is risk in excerpting quotations from extensive speeches. Those who speak should bear that in mind before they speak. In any event, the following brief excerpt appears reflective of the overall tenor of the Legal Advisor’s theme:
“. . . [O]ur Constitution expressly recognizes treaties as the law of the land. It also authorizes Congress to define and punish offenses against the law of nations. Our Constitution does not prescribe isolationism. To the contrary, it promotes our active participation in the development and enforcement of international law . . .”
The phrase “international law” does not appear in the Constitution. Article I, § 8, only pertinently says that “The Congress shall have Power . . . To regulate Commerce with foreign Nations . . . To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations . . .” Article II, § 2, merely grants the President “ . . . Power, by and with the Advice and Consent of the Senate, to make Treaties . . .”
International or multinational courts did not exist, and were not envisioned, at the Founding or for generations thereafter. International law (with the limited and irrelevant exception of admiralty law) is a creature of the 20th Century, definitely post- World War I, principally post-World War II, more especially the later 20th Century. Likewise, international and multinational courts are of more recent reckoning.
Perhaps when there is finality in our judicial system with respect to a case in which the International Court of Justice, then presided over by a Chinese Communist Judge, voting 14 - 1, ruled in favor of Mexico and against the United States, the media will pay attention.
Meanwhile, and thereafter, there should be more publicity about the numerous ongoing efforts to subject rights, privileges and opportunities of American citizens and businesses - and, in the case of LOST, of our Armed Forces! - to the consent of various foreign bodies frequently dominated by nations of little or no substance, and often as bad or worse, by nations antagonistic to our country.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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