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Nancy Salvato, Senior Editor
The Right to Defend Sovereignty
January 19, 2009
It is
written in the Declaration of Independence that “all men are created
equal and that they are endowed by their Creator with certain
unalienable rights.” 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 –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 “free and independent states,” the Declaration
concludes, the United States can now claim “full 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 “great-grandmother” of domestic law.
(pgs. 74-76)
According to Emmerich de Vattel (1757), “It 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 “preserving” a
European “balance of power.” (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 “projects for universal peace” to be folly, that
independent republics cannot trust to others to determine their rights,
without forfeiting their independence. (pg. 89)
Foreign Entanglements
"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 “nothing” in its provisions “shall
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 Charter”. 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 “matters which are essentially within
the jurisdiction of the United States, as determined by the United
States.” (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.
Deterrence
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)
Containment
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 “To
Make War” 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 –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, “governments are
instituted among men, driving their just powers from the consent of the
governed.” (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.
“The 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.” (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
“Friends of the Earth” 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 “the language of global society is international law.”
(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 “insists 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.” (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 –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.
Sources:
Rabkin, Jeremy Law Without Nations? Why Constitutional
Government Requires Sovereign States Princeton University Press.
2005
Declaration of War by the United States
http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States
Intergovernmental Panel on Climate Change
http://www.ipcc.ch/
Non-governmental Organization
http://en.wikipedia.org/wiki/Non-governmental_organization
NGO Global Network
http://www.ngo.org/index2.htm
Professor denies global warming theory
http://www.dailyprincetonian.com/2009/01/12/22506/
The American Form of Government
http://www.wimp.com/thegovernment
The Week That Was **Special Earth Day Issue**
http://www.sepp.org/Archive/weekwas/2001/April21.htm
About Nancy Salvato
Nancy Salvato is the President and Director of Education and the
Constitutional Literacy Program for
BasicsProject.org, 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 a Senior Editor for The New Media Journal.
She received her BA in history from Loyola University and her
M.Ed. in Early Childhood Education from National-Louis
University. She is certified to teach in grades K-9 and 6-12
and as a teacher has worked with students in preschool, 1st,
5th, 6th, 7th, 8th,
9th, 11th, and 12th grades. She
has also worked as an adjunct instructor at the graduate school
level. She continues to augment her education and areas of
expertise by taking college courses and participating in a
variety of workshops.
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