The founding fathers took international law very seriously. In the U.S. Constitution, treaties, along with federal laws, are declared to be “the supreme Law of the Land.” In addition, the Judiciary Act of 1789 provided that foreigners could bring suit in U.S. district courts for torts committed “in violation of treaties and the laws of nations.” As the fledgling United States assumed membership in the community of nations, this was a nod by the founders toward standards of international legality.
For nearly two centuries, the alien torts provision remained a dead letter. Then in 1979, the parents of 17-year-old Joel Filartiga took civil action in a U.S. federal court against the Paraguayan police chief responsible for the youth’s death under torture. The U.S. Court of Appeals for the Second Circuit, in New York, ruled that state-sponsored torture contravened international law and so supplied grounds for a civil suit under U.S. law.
In May 2003 the Justice Department submitted a “friend-of-the-court” brief in a suit against the petroleum company Unocal for its role in rights violations in Burma. The department asked the Ninth Circuit Court of Appeals, in San Francisco, to reverse the 1980 Filartiga decision, on the grounds that the alien tort law does not encompass human rights enforcement. A decision on the Unocal case is pending, as the Supreme Court decides an unrelated alien tort case involving Humberto álvarez-Machain, a Mexican national who brought suit against the U.S. Drug Enforcement Agency for false arrest in a 1985 case that went awry. A Supreme Court ruling in the case will be one more test of the fraying ties that bind the United States to the international legal system.
In three short years, the president and his administration have set a course contemptuous of international law. The Justice Department brief in the Unocal case is the latest in a string of attempts either to extricate the United States from international constraints or to bend the law to fit American interests. Among these actions are the refusal to sign on to the Kyoto Protocols, abandonment of the Anti-Ballistic Missile treaty, resulting in an empty nuclear disarmament treaty that Russia, and withdrawal of the U.S. signature on the Rome Treaty, which established the International Criminal Court. When the French recently threatened to sue the United States for unfair trade practices, President Bush scoffed, “Send me an international lawyer.”
In contrast, Pope John Paul II, in this year’s message for the World Day of Peace (Jan. 1), Teaching Peace, warned against ignoring international law. In particular, he pleaded for the honoring of treaties, citing the ancient legal maxim Pacta sunt servanda (“Treaties must be observed”). This general principle, the pope reminds us, is “prior to and superior to the internal law of states.” Without such a principle, international order is reduced to the law of the jungle.
So-called Christian realists often regard the idea that international law is a condition of peace as a subversion of Augustinian political theology, with its emphasis on sinful human nature. The Second Vatican Council’s “Pastoral Constitution on the Church in the Modern World” and Thomist political theology take a more optimistic view: that law can contribute to peace and the common good. In Teaching Peace, as in his encyclical Centesimus Annus of a dozen years ago, John Paul II repudiates “realism” in international politics as a reversion to the rule of the strongest. Even in a time of terrorism, he writes, “the use of force against terrorists cannot justify a renunciation of the rule of law.”
International order is a field in which Catholic social teaching and U.S. policy are increasingly in tension. The blame does not fall entirely on the Bush administration. During the cold war and afterwards, successive administrations used the veto in the Security Council to block the majority will and opposed any but budgetary and bureaucratic reforms of the U.N. system. The U.S. Senate has been reluctant to support new international agreements, and, except in the area of trade, President Clinton was hesitant to spend political capital to win Senate approval for unratified treaties or to contribute to an updated system of collective security.
It is not, then, the policies of the Bush administration alone that need correcting, but the conventional wisdom among American politicians and citizens in general that needs reformation, in order to prevent the world from sliding into a spiraling conflict of ungoverned power. The difficulty of winning the peace in Iraq and in Afghanistan has demonstrated that U.S. power is insufficient to secure the peace and that there is need for a new structure of collective security under international law. The United States should be at the forefront of that effort, not at the tail holding it back.