The Secretary of Homeland Security, Michael Chertoff gave an excellent speech to the Federalist Society on how international law is eroding American sovereignty:
So 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 principles: separation of power, respect for the Senate’s ability to ratify treaties, and the Senate’s ability to reject treaties, and respect for federalism and the importance of letting the state courts set their own rules to govern what they do.
So where is all this leading?
Well, I’m going to quote from the same international human rights lawyer who gives us his vision of where we’re going with international law. He says in a recent book called Lawless World, “to claim that states are as sovereign today as they were 50 years ago is to ignore reality. The extent of inter-dependence caused by the avalanche of international laws means that states are constrained by international obligations over an increasingly wide range of actions, and the rules, once adopted, take on a logic and a life of their own. They do not stay within the neat boundaries that states thought they were creating when they were negotiating.”
Now, I’m quite sure that is meant to be a happy statement of the way we’re operating now. But I actually view it as a chilling vision of where we could go, given the current developments in international and transnational law. So what do we do about it?
The problem with this encroachment of international law is that the international institutions that create it are profoundly undemocratic. There’s a reason why the European Union has been known for having a deficit of democracy. The encroachment of international law on American sovereignty is troubling because American sovereignty is predicated on the popular will. Each new restriction places new limits on the freedoms that Americans are entitled to under the Bill of Rights. For example, the Treaty of Rome, which creates the International Criminal Court is utterly incompatible with the American system of criminal justice. It does not allow for a trial of one’s peers, and it does not meet the protections that are guaranteed in the Bill of Rights. To throw an American into one of those tribunals would be to deprive them of their basic constitutional liberties.
Secretary Chertoff is right that the encroachment of foreign law into American jurisprudence is extremely troubling. National sovereignty exists for a reason, and to discard the protections of the rule of law in this country for some post-national vision is incompatible with American democracy.