The Right to Defend Sovereignty
By: Nancy Salvato
It is written in the Declaration of Independence that â€œall men are created equal and that they are endowed by their Creator with certain unalienable rights.â€ Each and every one of us has the right to life, liberty and the pursuit of happiness. A seemingly simple idea, it’s the definition of when a life begins or should end, when the liberty of one being is to be considered encroaching on the liberty of another, and on the meaning of personal happiness on which we disagree.
I imagine one would be hard pressed to find anyone who doesn’t want a peaceful existence which would allow us to go about our lives unencumbered by external threats. Again, it’s the method our country uses to achieve a relatively peaceful existence and at what cost –on which we currently disagree. While all of these topics are worthy of discussion and study, the question of our nation’s sovereignty begs examination at this moment in time because our present way of life is the direct result of our nation’s sovereign status in the world and so for many of us, it is worth preserving.
A Higher Law
In his book Law without Nations? Why Constitutional Government Requires Sovereign States, Jeremy Rabkin, a Professor of Law at George Mason University School of Law, notes that the Declaration of Independence (1776) begins and ends with an appeal to the Laws of Nature and of Nature’s God â€“a higher law- which transcends the law of any one state and entitles each nation to an equal station among the powers of the Earth. (pg. 71) This same law gives us our right to life, liberty, and the pursuit of happiness.
In joining the ranks of â€œfree and independent states,â€ the Declaration concludes, the United States can now claim â€œfull Power to levy War, conclude Peace, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do. (pg.72)
Where did such an idea come from? Why should we accept this to be the truth? Why shouldn’t we subvert the law of our land, the Constitution of the United States, to a higher authority such as the United Nations, whose charter charges it with promoting and maintaining the peace?
According to The Law of War and Peace by Grotius (1625), governments of independent states do not answer to any higher human authority. Natural rights can be justly advanced in the absence of any higher authority. They need no international legislator to promulgate these rights. Natural law is the â€œgreat-grandmotherâ€ of domestic law. (pgs. 74-76)
According to Emmerich de Vattel (1757), â€œIt is for each Nation to consider and determine what duties it can fulfill towards others without failing in its duty toward itself. (pg. 80) The decision to go to war is a national decision. (pg. 82)
David Hume (1742) defends a foreign policy aimed at â€œpreservingâ€ a European â€œbalance of power.â€ (pg. 85)
The Opposing View
Believing that sovereign nations left in a state of nature with each other would be tempted to use war to gain advantage, Immanuel Kant believed there needed to be a peacekeeping federation of states which has more force at its disposal than any one member and would outlaw war by guaranteeing members against invasion.
Such an idea falls under the category of utopian and it is unrealistic to believe that a federation would not interfere in the internal affairs of nations or be sufficient to maintain peace. (pg. 87)
James Madison believed â€œprojects for universal peaceâ€ to be folly, that independent republics cannot trust to others to determine their rights, without forfeiting their independence. (pg. 89)
“The great rule of conduct for us, in regard to foreign nations, is in extending our commercial relations to have as little political connection as possible…Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalships, interest, humor, or caprice?…It is our true policy to steer clear of permanent alliances with any portion of the foreign world.” — George Washington
The United States did not join the League of Nations because it promised to guarantee the territorial integrity of every member state, threatening to entangle all its members in the quarrels of any one of its members. (pg. 118)
On the other hand, the United States joined the United Nations because its charter stipulated that â€œnothingâ€ in its provisions â€œshall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charterâ€. When the UN Charter reestablished the League’s International Court of Justice, the US Senate’s Foreign Relations Committee recommended that the Senate accept compulsory jurisdiction, but with a reservation exempting â€œmatters which are essentially within the jurisdiction of the United States, as determined by the United States.â€ (pg. 123)
Treaties are not irreversible and they are not enforceable without an army. In Federalist #43 Madison writes that without a federal Constitution to establish a common force, the American states will have nothing more reliable to hold them together than a treaty, which is insufficient since it can be repudiated by any signatory. (pg. 89) So long as a treaty is in the best interests of the signatories, it will likely be adhered.
The bottom line is that American policy has always condoned international law or international relations which help to preserves our way of life. (pg. 99) To maintain our sovereignty, the United States has implemented different strategies throughout our existence in order to achieve this end.
Our country has sought to deter acts of aggression against us by building our military strength and our defensive capabilities. During the Cold War, the United States signed several mutual defense agreements, the first being the Rio Pact (1948) with Latin America (pg. 123) and, later, NATO (1949) with Canada and Western Europe. (pg. 124)
Another way our country has acted to deter acts of aggression against our way of life is to contain ideologies based on aggression. Sometimes the means has brought our sovereignty into question. For example, after a UN Security Council resolution authorized armed response to communist aggression in Korea –allegedly making it unnecessary to seek direct congressional approval (pg. 124) and in part because of their frustration with the armed intervention in Vietnam, Congress implemented the War Powers Act 1974, limiting presidential power â€œTo Make Warâ€ without explicit congressional endorsement so that the UN couldn’t replace formal consent to war measures by the US Congress. (pg. 124) It is important to note the difference between making war and declaring war, as delineated in the US Constitution. The Framers clearly intended “leaving to the Executive the power to repel sudden attacks” without the explicit approval of Congress.
During the Cold War, prominent legal scholars argued that International Commitments by joint legislative-executive resolution could serve as an alternative to treaties. (pg. 124) By 1975, Congress authorized presidential negotiations of trade agreements (seen as helpful to Cold War allies) in which Congress accepted or rejected the results in a single package, without attempting any amendments or reservations and secured by simple majorities. (pg. 126)
Not everyone agreed with this policy and had it been passed, the Bricker amendment would have required that no international agreement could take effect without separate congressional action and that Congress needed to already have the authority within their constitutional powers to enact legislation. (pg. 125)
Within 20 years of authorizing the joint legislative-executive resolution, Congress no longer sanctioned trade agreements specifying internal standards of conduct on labor relations and the environment. We didn’t want to entangle domestic regulatory issues in trade agreements. (pg. 126)
Sovereignty was taken into consideration when the Senate would not support President Carter’s Strategic Arms Limitation Treaty (SALT II) and rejected President Clinton’s Comprehensive Test Ban Treaty. Only the UN Convention on the Punishment of Genocide was fast tracked, ratified during the Reagan Administration with reservations, depriving ratification of all force. Since that time, very few human rights conventions have been ratified â€“all with reservations– depriving ratification of all force. (pg. 126)
The priority of maintaining our sovereignty was never questioned. Why, now, is there all this talk about globalism? Those trying to move our country in the direction of Global Governance make the argument that international human rights law trumps the sovereignty of governments. (pg. 158) Yet, this contradicts our country’s rule of law which rests on the idea that to secure our unalienable rights, â€œgovernments are instituted among men, driving their just powers from the consent of the governed.â€ (pg. 159)
Non Government Organizations (NGO’s) such as foundations and charities raise funds and lobby government about humanitarian issues, developmental aid and sustainable development. Many international NGOs have a consultative status with United Nations agencies relevant to their area of work.
â€œThe American Civil Liberties Union (ACLU) published pamphlets attacking human rights deficiencies in the policies of American state and local (and federal) governments; now the ACLU cited international conventions to advance its views, not merely American constitution precedents. Amnesty International threw itself into a campaign against capital punishment in the U.S., invoking various international treaties to show that executions in the United States were contrary to international law.â€ (pg. 176)
As a result of the lobbying efforts of such organizations, the US has ratified many human rights conventions (international agreements), such as CEDAW, the Convention on the Elimination of all forms of Sex Discrimination. (pg. 177) NGO’s definition of human rights has been expanded to include the right to environmental protection, adequate housing, and such.
Most recently, the United States has been pressured by groups like â€œFriends of the Earthâ€ and foreign politicians, for not buying into the Kyoto Protocol and for refusing to impose mandatory restrictions on the emission of carbon dioxide. The International Panel for Climate Change continues to sway public opinion toward reducing carbon emissions as much as 80 per cent -which could cripple western economies and lower living standards, despite evidence that global warming is based on fraudulent data. It’s especially interesting that the theory of global warming has quietly been replaced by climate change. The ability to market an idea and influence public opinion can have devastating consequences on our sovereignty.
Human rights, gender equality, and sustainable development became mutually supporting causes in the movement advocating global civil society. Former UN Secretary Generals Boutros-Ghali and Kofi Annan came to believe that international law trumped sovereignty. Boutros-Ghali said that the new world system undermined the exclusive claims of the state to jurisdiction over the lives of its citizens and Kofi Annan is quoted as saying â€œthe language of global society is international law.â€ (pg. 179) For all their talk about human rights, UN peacekeepers sent to protect citizens in warring countries such as Bosnia and Rwanda watched as 8000 civilians were massacred in Srebrenica by Serb militias and the Hutu government committed genocide on a million Tutsi’s, (pg. 180) all but verifying that an international body cannot protect the interests of a sovereign nation.
Just the same, the UN Security Council created tribunals to deliver justice in countries over which they had no authority. In Bosnia and Rwanda, the tribunals failed to bring adequate justice, yet the UN believed it had a mandate to create an international criminal court (ICC). (pg. 182) The resultant ICC statute â€œinsists that restraints in war are binding-whatever the opposing side may do. So it is a crime to interfere with ambulances-even if the other side uses ambulances to smuggle guns and fighters. It is a crime to attack churches and mosques-even if the other side uses them to shield its fighters. The ICC is a monument to a faith in world law.â€ (pg.190) Those who buy into the ICC believe that world law supersedes sovereignty. Should a US soldier face trial in a foreign court of law even if no law under the US Constitution has been broken? Should our soldiers be subject to the ICC statute?
Free Trade Agreements have also contributed to the chinks in the rule of law established by the US Constitution. By allowing authorized parties to appeal rulings of the US trade commission to a binational panel of arbitrators, the US has agreed to allow an international arbitration panel to determine internal American law. (pg. 213) Furthermore, the United States has been willing to comply with World Trade Organization (WTO) rulings. (pg. 228) This has been allowed to occur despite the fact that the US Constitution forbids â€“forbids- the United States to let itself be bound by laws to which it has not properly consented through the prescribed constitutional procedures. (pgs. 267-268)
Unless those charged with representing the citizens of this country are required to have a basic understanding of the US Constitution and of the underlying foundation on which this document rests, it is likely that the rule of law will be undermined by ideologically driven or opportunistic policy decisions. It is already happening when the judicial branch of our government make reference to foreign precedence. It is already happening when members of a presidential staff are vetted despite indiscretions such as failure to pay federal taxes. It is already happening when the Electoral College fails to determine whether the president meets the prerequisite constitutional conditions to run for office. It is already happening when the Speaker of the House urges the Congress to push through a resolution quickly instead of allowing our system of checks and balances slow down the decision making process so that emotion doesn’t affect our judgment in the immediate circumstances.
How can so many people believe that yielding our sovereignty to a world governing body, such as the UN, would be in the best interest of our country? Probably the biggest reason is that many of our citizens do not understand the rule of law that governs our country. As a matter of fact, many Americans believe we live in a Democracy, rule by many, not a Republic. Yet, the word Democracy doesn’t appear in the Declaration of Independence, the US Constitution, or in any of the 50 states’ Constitutions. The Founders gave us the rule of law in a Republic where the rights of the government aren’t subject to majority rule, but to the law. This is because the Founders and Framers understood that the flaw in Democracy is that the majority isn’t restrained. On the other hand, in a Republic, the government is limited by law, leaving the people alone. A fragile balance must be maintained between the power given to a government and the rights of the people it is designed to protect. When government power grows, freedom recedes.
Too many people have failed to take an active role in the governmental process. If through ignorance, our country yields the protection of our rights to an organization, such as the UN, we would be giving up the sovereignty which has maintained our freedoms for all these years. Sovereignty gives us the ability to protect our liberty, by force if necessary. It’s time to stop criticizing our country for not yielding our sovereignty to the various human rights conventions that have been put forth over the last 20 years. As Benjamin Franklin warned, it’s up to us whether or not we can keep our Republic.
Rabkin, Jeremy Law Without Nations? Why Constitutional Government Requires Sovereign States Princeton University Press. 2005
Declaration of War by the United States
Intergovernmental Panel on Climate Change
NGO Global Network
Professor denies global warming theory
The American Form of Government
The Week That Was **Special Earth Day Issue**
Nancy Salvato is the President and Director of Constitutional Literacy Program for Basics Project, a non-profit, non-partisan 501(c)(3) research and educational project whose mission is to re-introduce the American public to the basic elements of our constitutional heritage while providing non-partisan, fact-based information on relevant socio-political issues important to our country, specifically the threats of aggressive Islamofascism and the American Fifth Column. She serves as the Assistant Provost for the American College of Education and as a Senior Editor for The New Media Journal. She is also a staff writer, for the New Media Alliance, Inc., a non-profit (501c3) coalition of writers and grass-roots media outlets, and a frequent contributing writer to The World & I educational magazine.