Commentary Magazine

International Law v. United States

On the American legal landscape, where all roads lead to Roe v. Wade, the death last summer of Chief Justice William Rehnquist gave rise to a fever of handicapping. Whom would the President nominate for the new vacancy on the Supreme Court, and what would be the impact on our decades-long debate over abortion? Going forward, who would dictate the momentous outcome of this debate: judges, or the people themselves through their elected representatives?

Elsewhere, though, a very different discussion was under way. In Mexico, Amnesty International, the world's most prominent nongovernmental organization (NGO) devoted to human rights, was holding a meeting of its international council. Among the principal items on the agenda was Amnesty's long-held concern that “there is no generally accepted right to abortion in international human-rights law.” That being the case, the organization is considering a radical new proposal: the declaration of a fundamental human right to abortion (cast euphemistically as “reproductive freedom”). If the change takes hold, countries denying or interfering with access to abortion would be branded international rogues.

On what authority? The authority of international law, as seen through the prism of Amnesty's own very considerable prestige. But what is international law? It is getting more difficult to say.


The concept of legal norms governing relations between members of different national political communities has a pedigree tracing to antiquity. An international law of sorts, the jus gentium, was developed in ancient Rome, to be applied in cases involving those non-Romans to whom the empire did not extend the privileges of citizenship. In the early 17th century, the Dutch jurist Hugo Grotius systematized these ancient principles into a framework for governing relations among sovereigns. The Swiss philosopher Emmerich de Vattel, a Grotius disciple and a contemporary of the American founders, made considerable headway on the project with his influential treatise, The Law of Nations.

But the framers of the U.S. Constitution were captivated by a somewhat different idea: self-determination, and representative government. Indeed, so fundamental were these to the American experiment that the new nation first tried to make a go of it as a federation of thirteen sovereign states. Freedom, however, could not thrive in such circumstances. Nations, John Jay observed in The Federalist No. 4, “will make war whenever they have a prospect of getting anything by it,” and the nations confronting early America left the country existentially vulnerable. The Articles of Confederation were a failure because they did not trade enough individual liberty for the assurance of collective security, which only a capable central government could provide.

Still, the framers held firm to the imperatives of self-determination and limited interference. The Constitution prescribed a system of enumerated powers, sufficient to secure the nation and promote commerce but respectful of individual choice and local sovereignty. Any authority not expressly assigned to one of the three federal branches was reserved to the states and the people. If new law was needed or if current law required mending, the divisions of authority were reasonably clear: matters of immediate, parochial concern were to be taken up by representatives and courts at the state and local level; the federal government—a sliver of the present-day behemoth—was reserved for those relatively few issues that transcended state boundaries.

If early Americans were suspicious of the aggrandizing potentials of a central government, dictation from abroad was downright unthinkable—indeed, it had been the very catalyst of the Revolution. Not surprisingly, therefore, pains were taken to ensure that the Constitution was supreme and to limit the duties owed by Americans to the rest of the world. Essentially, two sources of authority could impose such duties, and both were subject to narrowing by Congress.

The first was the “law of nations.” In a very useful recent book,

1 Jeremy Rabkin explains that this term of art, culled from Blackstone's Commentaries, related specifically to piracy and mercantile shipping (both of which lay outside the jurisdiction of any nation) as well as to the need to provide safe harbor for lawful foreign nationals, including diplomats. And, finite as this was, the framers constrained it still further. Under Article I of the Constitution, the law of nations was to have domestic application only if Congress chose to define and punish offenses against it—and regardless of what other nations might regard as a violation.

The second source of authority governing America's relationship with the rest of the world was treaties. These are the principal font of what is properly thought of as “international law,” a concept undeniably more expansive than the law of nations but still rooted in the mutuality of obligations among consenting sovereigns—and, as Rabkin observes, then having little or nothing to do with their internal affairs.

The Constitution empowers the President to enter treaties. Such agreements, however, govern in the U.S. only after the Senate weighs and consents to them by a supermajority of two-thirds. Article VI makes ratified treaties the “supreme law of the land,” and in Article III the federal courts are empowered to decide cases arising under them as well as in other international contexts (such as civil suits between Americans and foreign persons or entities). The Eleventh Amendment, ratified in 1795, clarifies that the states, like the federal government, enjoy sovereign immunity from suits by foreign countries and their nationals.

Over time, it has become our government's custom to circumvent the treaty clause, but in a way that is actually more democratic and accountable—namely, by means of regular legislation. The 1994 North Atlantic Free Trade Agreement (NAFTA), for example, is not a treaty but an act of Congress, creating by law what is essentially a commercial confederation among the U.S. and its neighbors. Legislation, moreover, frequently works in tandem with treaty-making. To take an instance lately much in the news, the United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment (UNCAT), ratified in 1994, obliges signatories to enact domestic anti-torture law, which Congress subsequently did.

Whether we are speaking of the “law of nations” or of treaties, however, the overriding thrust is plain. Irrespective of how they are perceived by foreign countries, or by transnational and subnational entities, duties derived from international legal principles may not be imposed on the United States as a whole, or on Americans individually, except insofar as they comply with domestic law-making procedures. The Constitution is a fortress shielding Americans from the whims and excesses of the so-called international community.


But that fortress has been under profound attack for some time. Although the challenge is diffuse, its steady growth and its recent intensification are now beginning to erase the premise that law is determined from within by equal citizens rather than imposed from without by remote, unaccountable elites. As this happens, the very character of what it means to be a sovereign nation is undergoing alteration, and not for the better.

The movement toward a “global civil society,” as it adherents call it, is led by what the analyst John Fonte describes as “transnational progressives.” These are “complementary and interlocking networks” of primarily Western elites, including especially nongovernmental organizations (NGO's) like Amnesty International; officials of the UN and other international organizations; lawyers, judges, and professors specializing in international law; multinational corporations; and ideologically compatible officials and bureaucrats operating within nation-states, most definitely including our own.

Of these, easily the most potent—because they are the most energetic and competent—are the NGO's. Their toehold in the international order began with official recognition in the 1948 UN Charter. Though slow to develop, the number of NGO's began mushrooming in the 1980's, to the point where hundreds are now registered with the UN and well over a thousand exist. At the UN's 1992 “Earth Summit” in Rio de Janeiro, no fewer than 1,400 NGO's were in attendance.

Several NGO's stand at the head of the class, with Amnesty International, and especially its American subsidiary, at the very top. Others include Amnesty International's frequent collaborator, the U.S.-based Human Rights Watch, which was founded in 1978 as Helsinki Watch and now boasts global reach; Greenpeace, which married the largely anti-American “peace movement” that engulfed Western Europe at the end of the cold war to new obsessions with environmental and anti-industrial causes; the Center for Constitutional Rights, a U.S.-based “legal and educational organization” founded by the late radical attorneys William Kunstler and Arthur Kinoy, whose once predominantly pro-Communist energies have shifted to a pro-terrorist agenda; and the International Committee of the Red Cross, a Geneva-based organization founded in the 19th century and dedicated to the care of victims and prisoners of war, a role the ICRC once performed with rigorous neutrality but now performs as an interested party in the war on terror.

Stretching the concept of natural law beyond recognition, these groups, and others like them, are dedicated to the proposition that a transcendent body of “international human-rights law” supersedes any contrary provisions enacted by self-determining nations. And in the transnational progressives' scheme of things, determining what the principle of human rights demands in any given circumstance is the province not of any self-governing people but of, well, themselves.


There are, nonetheless, some overarching themes, expertly identified by Fonte.
2 Basically, the international-law movement paints a world in which national narratives and national identities will give way to what Shimon Peres, a movement icon, has called an “ultranationalist identity.” In this vision, “particularist nationalism” will be supplanted by the idea of a “citizen of the world” living in a “regional community of nations”—a world, in short, very much resembling the self-image of today's European Union.

Given that the capacity to project force is the signal aspect of sovereign power, and thus antithetical to this whole project, it is no accident that the movement sports an instinctive hostility to things military. The spirit is crystallized in the UN Charter itself, whose hortatory opening words condemn indiscriminately the “scourge of war,” blaming it (rather than the totalitarian evil defeated by war) for the “untold sorrow to mankind” wrought by the two great struggles of the first half of the 20th century. It is also movement dogma that a prerequisite to legitimate military action is UN approval—which theoretically puts free and functional peoples, regardless of their security interests or sovereign procedures, at the whim of the world's more numerous dysfunctional societies. Indeed, progressive transnationalists have taken to condemning even passive defense measures, like the security fence by which Israel has drastically reduced Palestinian terrorist attacks.

That is hardly all. As liberal democracy has become a dominant desideratum in the post-cold-war era, the international-law movement has striven to redefine its essence—to transform self-contained and self-governing bodies of equal citizens into power-sharing arrangements among ethnic groups, including non-citizens. Here, as elsewhere, the consistent target is the United States, which is tirelessly portrayed in the literature of the movement as racist and cruel because it permits the death penalty; defends its interests militarily; draws lines between the rights of citizens and non-citizens; promotes immigrant assimilation rather than multiculturalism; eschews “hate speech” legislation; resists (at least, on occasion) affirmative action; abjures statist economic policies; incarcerates criminals without regard to whether the ethnic composition of the resulting prison population is reflective of the population at large; and so on.

In line with this animus, the NGO's issue reports depicting the U.S. as a consistent human-rights violator. Human Rights Watch has led others in urging African nations to demand reparations for slavery from the U.S. (but not, tellingly, from African and Islamic countries). Both Human Rights Watch and Amnesty International tout the Soviet-inspired “right” to an “adequate standard of living” as set forth in the Universal Declaration of Human Rights. At the 2001 UN Conference Against Racism in Durban, both organizations joined other prominent NGO's (including the American Civil Liberties Union, the National Council of Churches, the Mexican-American Legal Defense and Education Fund, the Arab-American Institute, and the NAACP) in demanding that the UN Human Rights Commission take action against the U.S. to address its endemic racism and other supposed human-rights violations.

In the effort against radical Islam and Saddam Hussein's regime, the NGO's have denigrated the notion that we are at war, instead defining 9/11 as a serious crime to be addressed not on the battlefield but in the courts—including, of course, international courts. They have targeted American war-fighting operations as human-rights violations. The ICRC broke its traditions of neutrality and confidentiality to accuse the United States publicly of conduct “tantamount to torture” with respect to war-on-terror detainees. And in the midst of active hostilities, the Center for Constitutional Rights—as noted, an American NGO—went to Germany to file a complaint against Defense Secretary Donald Rumsfeld, former CIA Director George Tenet, and several other top military and civilian officials for purported crimes against humanity and human-rights violations committed at the Abu Ghraib prison in Iraq.


As menacing as all of this is, it would not constitute a threat to democratic self-determination were it not for the fact that it is built on the ostensible edifice of entrenched legal principles. Two of them, fittingly, are the law of nations and the law of treaties.

Although recognized by Chief Justice John Marshall in 1815 as a core part of American law, the law of nations was, at the time, of little consequence as a means of imposing extra-national ideas. That is because the first Congress, rather than opening the floodgates to policy-making forays on the part of the judiciary, passed laws criminalizing the very acts that Blackstone had identified as universally condemnable: robbery and murder on the high seas, and assaults against foreign ambassadors. To support these narrow sanctions, Congress added the Alien Tort Statute (ATS), giving federal courts the jurisdiction to entertain civil suits brought by aliens pursuant to claimed violations of the law of nations and treaties alike.

Although ATS was a product of a (happily) bygone era when federal courts were at liberty to invent new protections under the guise of “discovering” a common law, it lay all but dormant for nearly two centuries after its 1789 enactment. Then, in 1980, the Second Circuit federal-appeals court, in a case with no connection to the United States, resorted to the Alien Tort Statute in granting money damages to the estates of Paraguayan torture victims murdered in Paraguay by a Paraguayan official. The three-judge panel reached this breathtaking result by concluding that the law of nations had somehow been expanded to embrace prohibitions on torture—although neither the U.S. nor Paraguay had ratified any torture treaties at the time.

That was not the worst of it. After all, torture—as our recent national debate illustrates—is broadly reviled and relatively rare. If the courts had only revived a moribund concept for the purpose of imposing international sentiments on something so aberrant and universally condemned, that would be bad practice—usurping a task of legislators—but not a bad result. The appeals court, however, did not leave matters at that. Going well beyond the law of nations, one concurring judge said that, in the future, the Alien Tort Statute could be applied by American courts to extra-national conduct, no matter how remote from American national interests—if, in the view of the federal judges, such conduct transgressed “definable, universal, and obligatory norms.”

As surely as night follows day, courts have leaped on this subjective test of their own creation to do subjective “justice.” In 1995, for example, the Second Circuit forged a civil action for damages under the ATS for victims of genocide—even though, by then, the political branches had implemented an international convention against genocide with legislation expressly stating that no ground for private, civil action was being created. In the meantime, the Ninth Circuit in California discovered a “clear and universally recognized norm prohibiting arbitrary arrest and detention.” Although the U.S. Supreme Court reversed this decision in a 2004 case, Sosa v. Alvarez-Machain, it simultaneously endorsed the amorphous “definable, universal, and obligatory” test that had caused the erroneous ruling in the first place.

This was a giant step in a highly dangerous direction. As Justice Scalia cautioned in his separate opinion:

The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign's treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates. . . . The framers would, I am confident, be appalled by the proposition that, for example, the American peoples' democratic adoption of the death penalty . . . could be judicially nullified because of the disapproving views of foreigners. [Emphasis in the original.]

But that, and more, is exactly what the international-law movement is banking on.


Just as it has with the law of nations, the movement is making progress with treaties.

From the perspective of sovereign choice, treaties are the most legitimate form of international law because they are positive agreements rather than derivations from airy general principles. This is the case whether they are formal treaties (requiring ratification by two-thirds of the Senate), congressional-executive agreements (calling for passage in the manner of ordinary legislation), or solely executive agreements (the most controversial since they are based on the President's powers as commander-in-chief with no input from Congress).

When treaties involve two or just a few parties, their meaning is generally certain enough, and the United States regularly stipulates that treaties to which it is a party have binding effect only to the extent consistent with the Constitution. The Supreme Court, furthermore, has held since the 19th century that a “treaty is primarily a compact between independent nations,” and “depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it.” Any allegation that treaty rights have been denied is consequently the business of diplomatic negotiations between sovereigns, not lawsuits brought by affected individuals.

Hence, one might assume that treaties pose little harm to our constitutional order and the security it safeguards. As usual, though, the matter is more complicated. Significant treaties now tend to be extensive, multilateral affairs, involving scores of nations. That would be all right if everyone were agreeing at the same time to the same words. But everyone is not.

First, American Presidents have signed treaties in a spirit of good relations or political correctness with no real expectation that they would ever be ratified (or even, as in President Clinton's handling of the Kyoto global-warming accord, submitted for ratification). But according to a treaty on treaties that the U.S. has ratified, mere signing is a solemn act—obligating a nation to refrain from anything that might defeat the treaty's aims until it makes a decision on ratification, which can often take years. Thus, a presidential signature alone, coupled with the lack of formal rejection, increases the cachet of the agreement for purposes of “customary international law” (on which see below). Indeed, signing but not ratifying a bad treaty can be much worse than ratifying a bad treaty with caveats, since caveats at least register objection to offensive provisions.

Second, caveats themselves create problems. With multiple countries lodging multiple reservations, it becomes very difficult to discern exactly what everyone agreed to. Furthermore, the fanfare that made the treaty politically expedient for a President to sign can make reservations to it unpopular. In addition, international-law commentators (and some treaties themselves) hold that caveats are invalid if they are deemed inconsistent with the main objectives of the treaty. The result is that the international-law movement and its advocates—who have generally written the treaties in the first place—are in a very advantageous position when they argue that the treaties are binding as originally written.


These problems are exacerbated geometrically by the now-evolved doctrine of customary international law. In 1900, the Supreme Court described this concept in a case called The Paquete Habana:

[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

The world, of course, has drastically changed since The Paquete Habana. In particular, there has been an explosion of multilateral treaty-writing that has contributed to ever greater uncertainty in the law. Indeed, already in 1899 the Hague Convention II had in its preamble a clause (the so-called “Martens Clause”) proclaiming that, on top of everything laid out in the convention itself, “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” This vaporous clause (or variations of it) has been reiterated in numerous treaties, including the 1949 Geneva Conventions.

The same conception was reaffirmed by the Supreme Court just two years ago in Sosa and has been buttressed by an abundance of executive acts (including treaties signed and not ratified), legislative acts (treaties and other forms of international agreement implemented by Congress), and judicial decisions claiming an authority to impose alleged universal norms. Nor are today's “jurists and commentators” of the stature of Grotius, Vattel, and Blackstone. They are NGO's, activist law professors, international courts, UN bureaucrats, the European Commission, and judges everywhere on earth to whom a majority of the Supreme Court has seen fit to look for guidance even in interpreting the American Constitution.

The way the game works is this. There is a written law and an unspoken, customary law. But if the written law is accepted widely over a period of years, it, too, is said to be subsumed in the customary law—meaning that countries that refuse to sign treaties, or that sign but later opt out, or whose signature was conditioned on serious reservations, may find themselves facing international condemnation for failing to comply with that to which they never consented to begin with, on the theory that the unqualified treaty language has somehow transmogrified into binding customary status.

As for what binding customary law means, that, at any moment in time, is informed by more than these broad agreements. Taken into account are, among other things: (a) the diplomatic, political, and military behavior of states (including their official statements, court decisions, legislation, and administrative decrees); (b) the decisions of international tribunals like the United Nations International Court of Justice (ICJ), the International Criminal Court (ICC), and such ad-hoc tribunals as those established at Nuremburg and Tokyo after World War II and after the genocides in Rwanda and Yugoslavia in the mid-1990's; (c) writings by international-law experts interpreting treaties and customs; (d) military manuals; (e) the proceedings of the United Nations and its various components; and (f) interpretive publications and conventions produced by influential NGO's.



With such inputs in the machinery, the outputs are all but predictable. For example, UN Secretary General Kofi Annan has asserted without qualification that the U.S. invasion of Iraq in March 2003 was a violation of international law (notwithstanding over a dozen Security Council resolutions on Iraq). Given the widespread global opposition to the war, this assessment has seeped into the customary calculus and helped turn a policy dispute into an alleged legal wrong. So, in mid-October 2005, in a natural evolution, a Spanish judge issued international arrest warrants for three U.S. soldiers arising out of a tank-fire incident in Baghdad that resulted in the collateral deaths of two journalists. The warrant is based on the same claim of transnational jurisdiction once used by American courts to interfere with Paraguay's internal affairs and invoked by Spain to prosecute General Augusto Pinochet for his actions as dictator of Chile. It is also based on a construction of the legal doctrine of proportional use of force that Europeans adhere to but the U.S. does not accept. In essence, the European court is asserting that its interpretation is now “customary.”

The 1949 Geneva Conventions and UNCAT were ratified by the United States only with significant reservations. In the case of the former, the U.S. also expressly declined to join a 1977 protocol seeking to extend some prisoner-of-war privileges to insurgents and terrorist groups, as well as to burden military operations with constraints that perversely encourage terrorists to use civilian centers as a shield. But that protocol has been so widely agreed to that many have suggested it is now binding customary law in spite of U.S. protestations. (The U.S. has not helped the situation by signaling ambiguity about the protocol in its military guidelines and State Department comments.) This has made us vulnerable to various international claims, including that our treatment of certain detainees now constitutes a war crime. It has also enormously complicated joint military operations with NATO and other allies in Iraq and the Balkans.

With respect to UNCAT, the U.S. agreed to the torture provisions but with the express caveat that the treaty's entirely separate measures, prohibiting so-called “cruel, inhuman, and degrading treatment” (CID), imposed no greater obligations than already existed under our Constitution—which does not grant rights to alien combatants captured outside the territorial U.S. during wartime.

5 Nevertheless, in the wake of the Abu Ghraib scandal and the controversy over detainees held without trial at Guantanamo Bay, prominent members of the international community, including the ICRC, have protested that U.S. interrogation and detention practices violate international law. Their theory? UNCAT as a whole has won such broad acceptance that its CID provisions are now binding customary law whether America agrees with them or not.

In December 2005, this relentless portrayal of the United States as an international rogue resulted in Congress's passage of the “McCain Amendment.” Under the auspices of prohibiting torture (already quite illegal), the legislation sponsored by Senator John McCain adopted the vague “cruel, inhuman, and degrading” standard effectively to prohibit all forms of coercive interrogation—including those that are not torturous and whose employment has yielded vital intelligence about al Qaeda's operations. Worse, McCain incorporated wholesale into his definition of “cruel, inhuman, and degrading” the protections of the Fifth, Eighth, and Fourteenth Amendments, which the Supreme Court has long held not to have overseas application—much less to extend to the protection of terrorists in wartime. One awaits the further fruits of this ill-conceived maneuver as the international-law movement continues to insist on still other protections for wartime enemies of the sort required by the Supreme Court for criminal defendants in the starkly different realm of domestic policing.


What is glibly referred to as the “international community” by utopian globalists and those who parrot them is, in point of fact, not a community in any real sense, and most emphatically not in any political sense. That is why the American framers drew a distinct line between appropriate restraints on government power at home and the “federative” powers that had to be available to confront foreign sovereigns and that could not responsibly be hamstrung because the world is a dangerous place.

Customary law is a stealth danger because it encroaches on those powers—and because it erodes the concept of consent that undergirds international legal arrangements. But it is not the only stealth danger. Another major one brings us back to the NGO's. This is the chimera known as the “international law of human rights,” which takes aim at nothing less than the pillar of sovereignty itself.

This burgeoning corpus actually traces its roots back to the late 1940's, when international humanitarian law, in the form of the Geneva Conventions, came into being. Even more saliently, it was the era when the nascent UN General Assembly, still reeling from the barbarities of World War II, issued the Universal Declaration of Human Rights. This document proclaimed that we are all one human family, all born free and inalienably entitled to life, liberty, personal security, freedom from torture and slavery, equality before the law, and so on.

The soaring rhetoric never became a binding treaty. Indeed, its best-known proponent, Eleanor Roosevelt, acknowledged that it was merely “a statement of principles . . . setting up a common standard of achievement for all peoples and all nations” and “not a treaty or international agreement . . . impos[ing] legal obligations.” It did, however, spawn several compacts, two of which effectively split the Universal Declaration along the cold-war divide.

The first, the International Covenant on Civil and Political Rights (ICCPR), forbids such things as degrading treatment, hate speech, advocacy of war, and unequal burden-sharing in the rearing of children. (A protocol was later tacked on abolishing the death penalty.) The second, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), is a leftist wish-list: government-underwritten economic sectors, universal health care, comparable-worth compensation, a mandate to end hunger, and the like.

Protocols to both covenants purport to create mechanisms for citizens to seek enforcement against their own governments—in effect, creating the NGO dream of supranational tribunals that will supersede national court systems. These, in typical transnational fashion, are placed under the auspices of the UN High Commission for Human Rights, whose members include such humanitarian stalwarts as Libya, Syria, Sudan, Sierra Leone, and Uganda. Subsets of the commission monitor a host of other human-rights conventions as well: the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the Convention on the Rights of All Migrant Workers and Members of their Families, and the aforementioned UNCAT.


These high-minded agreements are chockablock with soft-socialist, big-government, pro-illegal-immigration, anti-assimilationist, anti-capital-punishment, and global-village tropes. Some of them are patently unconstitutional, and much in them would not have a prayer of being proposed in plain English by any American politician who wanted to remain viable. But several were indeed signed by President Jimmy Carter. Although only those on civil rights and racial discrimination were ultimately ratified—with significant caveats—ratification was not explicitly rejected in the case of the others; it was simply not proposed.

Therefore, those treaties stand, solemnly executed by this country without critique. In the meantime, the Clinton era also saw the ratification of UNCAT (again with significant reservations, as noted earlier) and the signing of the treaty on children's rights—which, aside from outlawing the juvenile death penalty, has been interpreted as requiring multicultural education and native-language instruction.

Here we see a potentially cataclysmic development: the obligations set forth in these human-rights treaties are claimed by their champions to run to the direct benefit of individuals. They are not conceived of as traditional sovereign-to-sovereign agreements. Rabkin puts the issue well:

Earlier generations were certainly familiar with claims under international law by which one state might protest the mistreatment of its own citizens when they traveled into the territory of another state. But human-rights law purports to apply to human beings, as such. It purports to protect individuals, even in dealing with their own government. There is nothing international about such a claim.

But there is something international about it now—and the deluge has begun. While American soldiers face a potential war-crimes trial in Spain and American officials confront the same in Germany, our own Supreme Court in just the last two years has invited alien enemy terrorists captured and held by the military overseas to sue the United States—in the middle of a shooting war—to challenge their detention. Relying in part on the unratified treaty on the rights of the child and the decisions of European governments to ban capital punishment, it has ruled as unconstitutional the same democratically enacted juvenile death-penalty statutes that it upheld as constitutional only a few years earlier. And relying in part on the conceit that a claimed right has “been accepted as an integral part of human freedom in many other countries,” it has also ruled as unconstitutional the same democratically enacted laws against homosexual sodomy that it upheld as constitutional only a few years earlier.

Tellingly, in the sodomy case, Justice Stephen Breyer expressed the NGO argument for supplanting democratic choice: “There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent” than in other nations that have traveled a presumably more progressive path. As the legal scholar Mary Ann Glendon sagely countered in the Wall Street Journal:

The remarkable implication [of Breyer's ruling] is that it is up to our legislatures to justify a different view of human rights from that accepted elsewhere. This gives short shrift to the fundamental right of Americans to have a say in setting the conditions under which they live—the right that is at the very heart of our unique democratic experiment.

That unique democratic experiment remains vibrant, but it is now threatened on several fronts. Hanging in the balance is not only whether we will emerge as a free, self-determining, sovereign people, but whether we will remain capable of defending ourselves from tyrants and savages who, despite the campaigning of NGO's and other self-appointed international do-gooders, remain quite undeterred by any laws at all.



1 The Case for Sovereignty (AEI, 2004).

2 “Liberal Democracy vs. Transnational Progressivism: The Future of the Ideological Civil War Within the West,” Orbis, Summer 2002.

3 See my “The End of the Right of Self-Defense?—Israel, the World Court, and the War on Terror,” COMMENTARY, November 2004.

4 See Adam Roberts & Richard Guelff, Documents on the Laws of War (3rd ed., 2000).

5 For an extended discussion, see my “Torture: Thinking About the Unthinkable,” COMMENTARY, July-August 2004.


About the Author

Andrew C. McCarthy directs the center for law and counterterrorism at the Foundation for Defense of Democracies. In somewhat different form, this article will appear in his book, Willful Blindness: A Memoir of the Jihad, soon to be released by Encounter Books. Copyright 2008 by Andrew C. McCarthy.

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