Saturday, November 18, 2006
Homeland Security Secretary Blasts International Law
"Chertoff says U.S. threatened by international law," Reuters, 17 November 2006, http://www.alertnet.org/thenews/newsdesk/N17445714.htm (from Democratic Underground).
Secretary Chertoff has joined Supreme Court Chief Justice John Roberts in attacking "international law":
A top Bush administration official on Friday said the European Union, the United Nations and other international entities increasingly are using international law to challenge U.S. powers to reject treaties and protect itself from attack.
"International law is being used as a rhetorical weapon against us," Homeland Security Secretary Michael Chertoff, a former federal appellate judge, said in a speech to the Federalist Society, a conservative policy group.
Chertoff cited members of the European Parliament in particular as harboring an "increasingly activist, left-wing and even elitist philosophy of law" at odds with American practices and interests.
But he said the same pattern could be seen in the policies of the United Nations and other international bodies.
"What we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principals -- separation of powers, respect for the Senate's ability to ratify treaties and ... reject treaties," Chertoff said.
While it's bastard twin foreign law has been criticized by the Attorney General and Justice Scalia, it is good to see so-called "international law" attacked as well.
International Law and Foreign Law are both attempts by legalistic factions who cannot impose their will democratically, so they use legal-sounding words to try to get in through the back door. The world is better off without them.
I always get a kick when someone mentions international law and its violations. Technically, there is NO international law outside of treaties and the idea that a treaty can be held to apply to a non-signatory is still simply a dream of the elites of certain trans-national organizations. The closest thing I can come up with is the idea of Westphalian sovreignty, for what that is worth. Beyond that they idea of international law and war crimes for that matter is a chimera, either dictated by treaty (for ex. maritime law), might (Kosovo), or consent (Rwanda, Charles Taylor, Milosevic). The power that those who espouse "international law" are trying to exercise has not existed since the Catholic Church (or for that matter the Caliphate) had sway over transnational relations. It just does not exist and absent a means of enforcing it (yes, that's an Army, Europe) it will not come into being.
During lawschool, I took my international law course from a man who had help written a constitution and whose brother is current president of Malawi. All of the source material he tought showed no example of a true international law outside of treaties, yet when I suggested as much I was told I was wrong (ha!). Such was his devotion to the U.N. and transnational control from a self-appointed elite, mostly in an effort to tie down the collosus. A pox to it all.
Posted by: ElamBend | Saturday, November 18, 2006
Back when I was studying International Law, two major methods were described for creating it "silence is refusal" (as in treaties) and "silence is consent" (as in, customs & norms).  Another set I heard of as sources of international law are treaties, international court decisions, customs, and scholarship.
I agree with you on previous Catholic and Muslim international laws. The professors take when I suggested that was "no one who knows anything about international law could possibly say that." So we had similar experiences :-)
To me, this comes down to the nature of our Republic.
Every argument that international law has any effect comes from Article I Section I, granting Congress the power "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Thus while Congress is certainly free to "punish... Offenses against the Law of Nations"
this is in the context of the facts that
"All legislative Powers herein granted shall be vested in a Congress of the United States" ... "The executive Power shall be vested in a President of the United States of America." and "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
And, of course, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The "Law of Nations" cannot legislate, because only the Congress can legislate. The "Law of Nations" cannot execute, because only the Congress can execute. The "Law of Nations" cannot judge, because only the Supreme Court (and such inferior courts) can judge. And everything that those branches can't do can only be done by the States.
Posted by: Dan tdaxp | Sunday, November 19, 2006
Yes, that document drives many crazy who would impose their ideology upon us (from within and out).
As for professors of International Law, I assume that most got into the field not to study it so much as to promote it.
Posted by: ElamBend | Sunday, November 19, 2006
"Yes, that document drives many crazy who would impose their ideology upon us (from within and out)."
My favorite argument was that the Constitution is functionally just another treaty, and therefore deprecated by every subsequent treating signed. He criticized those who disagreed as "monists."
"As for professors of International Law, I assume that most got into the field not to study it so much as to promote it."
Posted by: Dan tdaxp | Monday, November 20, 2006