The National Catholic Review
The Editors

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.

Comments

thomas r. jackson | 1/22/2004 - 10:53am
In your unsigned editorial of the January 19th, Respecting International Law, you wrote that the Bush administration had “set a course contemptuous of international law”. Yet your examples do not support such an assertion. You cited the “refusal to sign” the Kyoto protocols. But that wasn’t contempt for law. It was a disagreement over the proposed law. You also cited the withdrawal from the SALT I ABM treaty. However, that was also done legally, well within the provisions of the treaty. Further it was a Cold War treaty between two superpowers, one of which no longer exists, and it was the legal expression of the MAD (Mutually Assured Destruction) nuclear policy of an older age. I find it surprising that a Catholic journal would mourn the passing of such a disturbing policy, codified into law. The third example was the withdrawal of the US signature from the world criminal court treaty. However, once again, this treaty was not US law, as it had not been ratified by the US. There are serious concerns over the court. It is inherently undemocratic and political, and reduces the legal protections of US citizens. Likewise, it is hard to see how calling for a lawyer when threatened with a law suit represents “contempt” for law. Isn’t that exactly what the law seeks to accomplish? You also seem to be casting Security Council vetoes into the category of “contempt” for law. But isn’t that the actual legal structure which nations have bound themselves? Was France’s declaration that it would veto a further Security Council resolution authorizing war in Iraq also “contemptuous” of international law?

All of your examples represented legal policy decisions by the Bush administration. Even if one disagrees with their judgment, the examples hardly demonstrate contemptuous actions. Respect for international law does not demand that a nation bind itself to laws to which it disagrees or are not in its best interest. It is precisely because international treaties become, as you note, “the supreme law of the land”, law which can even supercede constitutional protections of human rights, that a nation must take the responsibility of entering treaties very seriously. This is respect for law, not contempt.

I expect better from America than to cast out gratuitous charges against those with whom you disagree. Respect for international law should not be confused with acquiescence to any demand made by other nations. That is not to say that international cooperation is not an important value. However, building an international consensus for law should not be confused with respect for the law itself. I agree that the US should be involved in this effort, however, not at the cost of sacrificing our basic principles or self interests.

Robert E. McNulty | 1/17/2004 - 10:47pm
You are entitled to your editorial opinions. All I have asked is that they be based on facts. Your Respecting Internal Law editorial (AMERICA January19-26) once again fails this test.

You fault the administration for failing to sign on to the Kyoto Protocols. In 1995 the US Senate voted 95-0 against them. When Bush took office there was no change in the Senate's position.

On the ABM treaty Bush negotiated the first real reduction in nuclear weapons. You don't hear the Russians complaining do you?

On the International Criminal Court,do you know of any US Senator who supports it? If so, please publish the name.

William J. Somers. M.D. | 2/9/2007 - 9:25am
Your editorial in the Jan. 19 issue, like your other editorials, is biased and not balanced. The Kyoto Protocols did not require multinational controls on pollution. Only the United States was required to submit to tighter environmental guidelines. China, one of the worst environmental offenders, was let off the hook.

The Anti-Ballistic Missile treaty was not signed by China, North Korea or Pakistan. Would you have those countries in control of nuclear weapons while the United States, France and England are forced to relinquish theirs?

I always heard that journalism should be fair and balanced. Obviously you never went to journalism school. If I practiced medicine the way you practice journalism, I’d have a trail of dead bodies a mile long.

thomas r. jackson | 1/22/2004 - 10:53am
In your unsigned editorial of the January 19th, Respecting International Law, you wrote that the Bush administration had “set a course contemptuous of international law”. Yet your examples do not support such an assertion. You cited the “refusal to sign” the Kyoto protocols. But that wasn’t contempt for law. It was a disagreement over the proposed law. You also cited the withdrawal from the SALT I ABM treaty. However, that was also done legally, well within the provisions of the treaty. Further it was a Cold War treaty between two superpowers, one of which no longer exists, and it was the legal expression of the MAD (Mutually Assured Destruction) nuclear policy of an older age. I find it surprising that a Catholic journal would mourn the passing of such a disturbing policy, codified into law. The third example was the withdrawal of the US signature from the world criminal court treaty. However, once again, this treaty was not US law, as it had not been ratified by the US. There are serious concerns over the court. It is inherently undemocratic and political, and reduces the legal protections of US citizens. Likewise, it is hard to see how calling for a lawyer when threatened with a law suit represents “contempt” for law. Isn’t that exactly what the law seeks to accomplish? You also seem to be casting Security Council vetoes into the category of “contempt” for law. But isn’t that the actual legal structure which nations have bound themselves? Was France’s declaration that it would veto a further Security Council resolution authorizing war in Iraq also “contemptuous” of international law?

All of your examples represented legal policy decisions by the Bush administration. Even if one disagrees with their judgment, the examples hardly demonstrate contemptuous actions. Respect for international law does not demand that a nation bind itself to laws to which it disagrees or are not in its best interest. It is precisely because international treaties become, as you note, “the supreme law of the land”, law which can even supercede constitutional protections of human rights, that a nation must take the responsibility of entering treaties very seriously. This is respect for law, not contempt.

I expect better from America than to cast out gratuitous charges against those with whom you disagree. Respect for international law should not be confused with acquiescence to any demand made by other nations. That is not to say that international cooperation is not an important value. However, building an international consensus for law should not be confused with respect for the law itself. I agree that the US should be involved in this effort, however, not at the cost of sacrificing our basic principles or self interests.

Robert E. McNulty | 1/17/2004 - 10:47pm
You are entitled to your editorial opinions. All I have asked is that they be based on facts. Your Respecting Internal Law editorial (AMERICA January19-26) once again fails this test.

You fault the administration for failing to sign on to the Kyoto Protocols. In 1995 the US Senate voted 95-0 against them. When Bush took office there was no change in the Senate's position.

On the ABM treaty Bush negotiated the first real reduction in nuclear weapons. You don't hear the Russians complaining do you?

On the International Criminal Court,do you know of any US Senator who supports it? If so, please publish the name.

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