Wednesday, August 16, 2006

International Blah

There’s been a lot of reliance on International Law from both sides of the political spectrum. Liberals as an overriding sourcebook for our morality and conduct primarily overseas, and increasingly at home. That our foreign affairs should be governed by this international framework. Conservatives have been using it as yet another rally-the-base incitement against French people.

Conservatives are retarded, as usual. They only hate International Law in foreign affairs now because it’s getting in Bush’s way. Clearly there’s an argument against using it in American jurisprudence.. as Justices Kennedy and Breyer have hinted at doing. But even there, it’s mostly just being used as a helpful moral reference point to ponder.. and all American common law is taken wholesale from the English, after all.

All that being said, I’m going to critique Liberals who use it now, because I fundamentally care about what they think, whereas I think Republicans are retarded.

1. It’s not very Democratic

Treaties – the major source of International Law – are only weakly Democratic at the best of times. They are negotiated and agreed to by the Executive branch, and usually rubber-stamped by Congress. They reflect – not Domestic political concerns – but the give and take of international negotiations. Take, for example, the League of Nations. It reflects not a democratic mandate to Wilson, but protracted international struggles. In addition, nations that ratify these laws often don’t require much in the way of democratic approval, thus robbing the agreements of much of their ‘Morality of the World’ argument.

For example, the same process that led to the WTO and IMF – widely reviled among Liberals – also lead to the Geneva Conventions. The trend is clearly towards centralization and non-democratic agreements.

The same process that led the US to sign the Geneva Convention could just as easily get rid of it. The President takes us out of it, and the Republican-led Congress approves. That’s as Democratic as it gets with these things. Does that deprive it of moral weight?

2. They barely make sense

Some Conventions are genuinely widespread, like the first Geneva Conventions. But the rest of ‘International Law’ is patchwork.. confused.. old. The International Criminal Court, for example, has only 14 signatories, pretty much all of them EU. Does it hold any authority over the US? Should it? How about the Treaties against Mines? Almost everyone has signed that one, excepting the US and a few evil nations. Does it hold any moral weight? Or legal weight to be considered?

3. It gives up too much in Sovereignity

There are some Liberals who seem to want to use International Law as a trump card over US objectives overseas and at home. That’s a dangerous road to walk. The International Criminal Court, for example, would give a lot of power to people completely unaccountable to our democratic processes… same as with other international institutions. That’s not something to enter into lightly. Personally, I don’t trust Europeans – or any other Nation – more then I trust the US. What will I get out of it ceding moral and legal authority to them as a group?


Thinker said...

Kevin, the argument against using international law in our jurisprudence would appear to violate Article VI of the US Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Tommaso Sciortino said...

I think you should read Kevin's post again, thinker. He's making a normative argument, not a prescriptive one. And even then I don't think he's arguing that we should shun all international law, but rather that we should appreciate the limits of it.

Far too many people on both sides of the specturm argue "the UN says" without following it up with "and in this case we should heed them becuase...". Granted, in most cases "and in this case we should heed them becuase it in the constitution" is all the argument we need but in the case of - for example - the ICC the US isn't a signatory and we have no constitutional obligation. So Kevin's argument is very relavant.

Personally the procedural argument seems a bit thin to me. The US should enter into treaties that are good and avoid ones which are bad. Also, we should keep in mind that though the undemocratic nature of these treaties prevent them from being too useful, they can do a good job of providing a basic groundwork of order even if it is only to solidify the existing global power structure.

Thinker said...

Tommaso, all I was attempting to say was that for treaties into which we have entered (negotiated by the Executive and ratified by the Senate), the Constitution obligates all levels of Government to treat them as equal in force to statue and Constitution. Clearly treaties which have not been ratified do not count.

In its recent Hamdan decision, the Supreme Court of the US recognized again that the US was obligated to abide by International Law that we have ratified, in this case the Geneva Conventions.

I responded to take issue with Kevin's statement:

Clearly there’s an argument against using it in American jurisprudence.. as Justices Kennedy and Breyer have hinted at doing. But even there, it’s mostly just being used as a helpful moral reference point to ponder.. and all American common law is taken wholesale from the English, after all.

My point was that according to the Constitution, in cases where we have ratified international treaty obligations, there can be no argument "against using it in American jurisprudence". The Constitution (Article VI) requires us to do so in crystal clear language.

By the way, we do not live under a democracy. We live in a representative federal republic. Kevin's arguments about the loss of sovereignty under and the undemocratic nature of international law sound quite a bit like the arguments made by the Anti-Federalists in the debate over the adoption of the Constitution in 1788. The benefits of the centralized government provided by our constitution are clear when one looks at US history; and, as the world becomes ever more entertwined economically and socially, the benefits of a similar international structure will become evident if we as a species allow it. On the other hand, if we do not, the US experience from 1783-88 under the Articles of Confederation is more relevant.

Does this mean that all international law is good? Of course not, no more than all US law or Constitutional amendment is good. However, the structure that allows for such laws to be made is.

Paul said...

I agree with Kevin about the general mistrust of government and there probalby not being much to gain by ceding authority to one governmental instead of another. I'll second Tom's objection to the undemocratic argument.

First, I think it sort of blurs the distinction between decentralization and democratization. Certainly, international law involves, practically by definition, centralization. There's no necessary correlation with democracy there, though.

Second, it seems to me that the President has a democratic mandate, and that the scope of that mandate includes the negotiation of treaties as much as it does to any other Presidential duty. So I'd say that such negotiations are less democratic than they would be if we put the negotiations and proposals on a national ballot, but they're not obviously less democratic than anything else the President does.

Paul said...

Ah, Thinker beat me to some of the points.

Tommaso Sciortino said...

I'm confused. Outside the whitehouse is there any real debate over whether duly enacted treaties are enforcable in the supreme court? I thought they were as a matter of course. If Kevin is suggesting the supreme court not do so then I can't agree with that.

Paul said...

I interpreted Kevin as meaning that there's an argument against using just any international law to settle US Supreme Court cases, and also that liberals should probably be more cautious in their use of the laws of other counties as moral guideposts. I gathered he'd still allow that agreements the US had signed onto were enforceable by the courts.

Kevin said...

Of course Treaties are enforceable... it's right in the Constitution. Although there's a lot of murkiness in there that we should be aware of. What about quasi-Treaty Executive Agreements? Decisions by the WTO/IMF? Rulings by the ICC? These things get very tricky really fast. Lets say that the Prez signs an agreement with France to protect certain migratory birds that nest in the US during the summer. Does he need Congressional authorization? Does it fall under one of his express/implied powers? Questionable.

The Breyer/Kennedy stuff that has caused so much comment is not routine treaty enforcement. It's using international norms and legal standards -- even if not applicable to the US -- as evidence of a moral trend that the US should follow. Conservatives have far overblown its importance, but it's worth thinking about.

Tommaso Sciortino said...

Ok, yeah. That's what I thought you were saying originally.

What's the deal with executive agreements? How are they enforecable? I mean, what's to stop congress from passing a law that hurts those migratory french birds?