Republican platform rejects international law
Four years ago, the Republican Party platform included a plank that expressly stated the party’s support for principles of international law. “To be successful international leaders,” the 2008 GOP platform stated, “we must uphold international law, including the laws of war, and update them when necessary. Our moral standing requires that we respect what are essentially American principles of justice.”
While some might have questioned the sincerity of the Republicans’ actual commitment to international law after eight years of the Bush administration’s stated contempt for the Geneva Conventions and other international legal obligations of the United States, the party platform at least paid lip service to these principles and, significantly, described international law as reflecting American values.
This year, the term “international law” appears nowhere in the party’s platform. Neither do the terms “international norms,” “international obligations,” or “international commitments.” Instead, the 2012 GOP platform, adopted at the Republican National Convention yesterday, expresses disdain for the concept of “foreign law,” which it somewhat misleadingly equates with international law.
In a section called “American Sovereignty in U.S. Courts,” the 2012 platform states emphatically that “subjecting American citizens to foreign laws is inimical to the spirit of the Constitution.” The fear of “foreign law” is cited as “one reason we oppose U.S. participation in the International Criminal Court,” which the Republicans suspect could lead to “ideological prosecutions” of U.S. soldiers in The Hague.
“There must be no use of foreign law by U.S. courts in interpreting our Constitution and laws,” the platform states. “Nor should foreign sources of law be used in State courts’ adjudication of criminal or civil matters.”
The conflation of “international law” with “foreign law” has been well-established in Republican Party rhetoric for several years now, dating back at least to 2005 when the Supreme Court cited “the overwhelming weight of international opinion” in ruling that the death penalty for juvenile offenders was unconstitutional.
In reaction to that ruling, then-Attorney General Alberto Gonzales gave a speech at George Mason University Law School where he admonished the Supreme Court for its “use of foreign law in constitutional interpretation.”
“I am troubled by a growing tendency to rely on the laws and judicial decisions of foreign nations in interpreting the United States Constitution,” Gonzales said. “Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge’s opinion or a foreign legislature’s enactment, then that foreign judge or legislature binds us on key constitutional issues.”
Homeland Security Secretary Michael Chertoff also weighed in on the issue, calling the prospect of a United States government constrained by international law a “chilling vision” of the future.
“The fact is, whether we like it or not, international law is increasingly entering our domestic domain,” Chertoff said in a 2006 speech to the right-wing Federalist Society.
“The Supreme Court has begun to bring it through cases like Hamdan,” a reference to Hamdan v. Rumsfeld in which the high court cited the Geneva Conventions in ruling that hundreds of suspects being held without charges at Guantanamo Bay had legal rights.
Chertoff objected to the Supreme Court’s reference to the Geneva Conventions despite the fact that the U.S. Constitution states that treaties entered into by the U.S. government are the “supreme law of the land” and all four Geneva Conventions were long ago signed by the U.S. Executive and ratified by the U.S. Senate.
“International law is being used as a rhetorical weapon against us,” Chertoff said. “We are constantly portrayed as being on the losing end, and the negative end of international law developments.”
While Gonzales and Chertoff were speaking about different subjects – in one case objecting to the citing of international opinion in a Supreme Court decision and in the other objecting to citing international law as a binding obligation of the United States – the message of the two men were essentially the same: no “foreign” law, be it a legally binding treaty or an international norm based on “overwhelming international opinion” has any place in domestic jurisprudence.
At the time, the issue inspired spirited debate among policy wonks and legal scholars.
Frederic L. Kirgis, a law professor at Washington and Lee University, weighed in on the matter in an article for the American Society of International Law, in which he attempted to explain the difference between international law and foreign law.
“Foreign law is not the same as international law,” he wrote.
Foreign law is the law of an individual foreign country or, in some instances, of an identifiable group of foreign countries that have a common legal system or a common set of rules in a particular field of law. From the United States’ perspective, European Union law or the law of the European Convention for the Protection of Human Rights and Fundamental Freedoms would be in the latter category.
International law is the law in force between or among nation-states that have expressly or tacitly consented to be bound by it. Its primary sources are treaties to which specific countries are parties (binding upon those countries, but not upon other countries) and custom. Customary international law stems from the practice of international entities (primarily national governments) over some period of time that has hardened into a reasonably firm expectation that the practice will govern future conduct by all countries that have not clearly objected to the practice during its gestation.
Kirgis cited a Supreme Court decision from 1900, in which the justices wrote: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for determination.”
While the incorporation of international law into the domestic legal system of the United States was for a long time considered uncontroversial, the attack on the concept by Bush administration officials established a new paradigm in official Washington – that international norms have no place determining the policies and legal practices of the United States.
It was somewhat surprising then the GOP would make “uphold[ing] international law” an official plank of its party platform in 2008, even going so far as to equate international law with “American principles of justice” and stating that respecting these norms was essential for “our moral standing.”
Perhaps the Republicans that year recognized that after nearly a decade of systematically eroding principles of international law, the United States’ credibility was next to zero in the eyes of the world. Or perhaps the party felt threatened by the Obama campaign’s slogan of “hope and change,” which implicitly promised a return to the rule of law in the USA.
Whatever the reason for including the plank four years ago, it is clear that they do not feel beholden to international law anymore.
Not only does the 2012 platform rail against “foreign law,” but it also expresses its absolute opposition to “the adoption or ratification of international treaties that weaken or encroach upon American sovereignty.” These include several popular treaties that the rest of the world has eagerly adopted such as the UN Convention on Women’s Rights and the Convention on the Rights of the Child.
“Under our Constitution,” the 2012 GOP platform states, “treaties become the law of the land.”
So it is all the more important that the Congress—the Senate through its ratifying power and the House through its appropriating power—shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development.
To shield members of our Armed Forces and others in service to America from ideological prosecutions overseas, the Republican Party does not accept the jurisdiction of the International Criminal Court. We support statutory protection for U.S. personnel and officials as they act abroad to meet our global security requirements.
It’s interesting that in a political party platform devoted mostly to attacking the incumbent Democratic president on various issues ranging from health care to nuclear strategy, there are no criticisms in the 2012 GOP platform on undue U.S. adherence to international norms. Perhaps this is because a bipartisan consensus has been reached in Washington on matters of international law.
Despite widespread international criticism of U.S. drone warfare, for example, there is only one reference in the platform to drones, which simply criticized alleged leaks regarding secret drone assassinations from the White House “for political purposes.”
“Leaks by senior Administration officials,” the platform reads, regarding “the use of drones against Al Qaeda and its operatives, and the targeting of our enemies—unprecedented leaks that compromised key sources and methods and damaged our national security—served the single purpose of propping up the image of a weak President.”
There is no mention of torture, indefinite detention or the decade-old gulag of Guantanamo Bay in the 2012 Republican platform. The only criticism, in fact, of Obama’s prosecution of the “war on terror” is over the fact that the administration no longer uses that term in describing the endless war in which the U.S. is engaged.
In the White House’s National Security Strategy, laments the GOP, “the phrase ‘global war on terror’ does not appear at all, and has been purposely avoided and changed by his Administration to ‘overseas contingency operations.’”
What a crying shame.