The best way to do so, as John McGinnis and I (and also Eugene) contend, is for both courts and legislators to emphasize that international law is not binding on the United States unless it has been incorporated into domestic through standard legislative processes - such as enactment in a congressional statute or treaty ratification by a 2/3 majority of the Senate. International law norms that conflict with the Constitution can only bind us if they have been enacted through a constitutional amendment. Other democracies should pursue a similar approach....Debaters looking for ways that human rights and national sovereignty clash might want to read all four posts.
Over the last several decades, the US has successfully resisted the domestic imposition of numerous international law norms, including "hate speech" laws, the 1977 Third Protocol to the Geneva Convention, the New World Information Order (mentioned in my last post), the Law of the Sea Treaty (which was eventually revamped as a result of US objections and the Reagan Administration's refusal to sign and follow the original version) and others.
Furthermore, Spiro's examples conflate two very different modes of incorporation of international law into domestic law: what John McGinnis and I call "raw international law" and the domestic incorporation of international law through ordinary domestic legislative processes. Raw international law consists of international law norms (e.g. - customary international law) that we have not ratified through congressional or state legislation or through the treaty ratification process. It is this kind of international law that McGinnis and I argue is likely to be systematically inferior to domestic law. By contrast, international law that has passed through the domestic lawmaking process is likely to be no worse, on average, than other domestic legislation. It is only the domestic incorporation of raw international law that should be categorically rejected. There is as yet no reason to believe that we can't resist successfully, and indeed we have done so on numerous past occasions.
Feb 7, 2007
a contemporary example of the March / April LD topic
While we're examining the UN's obligations to human rights vs. national sovereignty, over at the Volokh Conspiracy, two bloggers are taking a hard look at a right that seems to have appeared de novo on the international scene: the right to freedom from "defamation of religions." A sample of Ilya Somin's arguments: