Lawyers propose international environmental court

When Thomas Jefferson wrote the Declaration of Independence in 1776, he acknowledged the responsibility of the American colonies to justify their rebellion against the British crown to "the decent opinion of mankind."

Woodrow Wilson dreamed of a world in which war and international conflict would be replaced by international law. While he couldn't make the sale to the U.S. Senate, and the League of Nations ultimately failed, his dream was revived in the aftermath of World War II with the establishment of the United Nations Organization. Nor did the victorious powers hesitate invoke the principle of international law to try the leaders of Nazi Germany and Imperial Japan for "crimes against humanity-" not withstanding the cogent arguments of people like Sen. Robert Taft that prosecuting, hanging, and imprisoning people for violating ex post facto laws- laws which retroactively made things illegal which were not illegal when they were done- were forbidden by the American Constitution.

The United States has signed treaty after treaty obligating us to observe international law. Jefferson's notion that nations should be accountable to the collective conscience of the human race has never been alien to us. But where we have generally (though not always) drawn the line has been at giving international agencies and courts enforcement authority to which the United States and its citizens could be held subject.

That line is the line we crossed in supporting the Nuremberg Trials. Bob Taft objected that "victor's justice" violated the Constitution- and there's the rub, where international tribunals and international law are concerned: such tribunals and laws are by their very nature not subject to the U.S. Constitution, and American citizens tried by them and under them are deprived of guarantees the Founders believed should be absolute.

While somehow conservatives have evolved the odd viewpoint that the Bill of Rights- representing values never intended by the Founders to be restricted to American citizens- need not be applied to foreign nationals, a more thoughtful application of their principles to the subject of international law would find the lack of their protection even to foreign nationals tried in international courts to be a violation of our national values, and provide a powerful philosophical argument against American support of the concept of a punitive international law even where American citizens were not involved. Yet laws that are not enforced are not laws at all, but only sentiments; sympathy with the concept of international law has warred with alarm at its implications in the American breast from the beginning. Thus, we have found ourselves in the awkward position of supporting the International Court of Justice at The Hague in principle, while in practice declining to recognize its authority as transcending American law in general or the American Constitution in particular.

Now, a body of international lawyers are calling for the establishment of an international environmental court similar to the International Court of Justice, holding authority to summon nations to the bar and to issue fines in cases relating to the environment. Prime Minister Gordon Brown and many influential people in the UK support the concept.

But it would subordinate American law- including the American Constitution- to international authority.

British and other European politicians, having entered into the European Union, are no longer as scandalized by the compromise of national sovereignty as they once might have been. American politicians such as Sen. John Kerry (D- Mass), the 2004 Democratic presidential nominee, have vocally supported the idea that American policy ought in principle to be accountable to international opinion, and the refusal of the outgoing Bush administration to submit to it has earned America a reputation as a kind of rogue state in the international community.

Doubtless one of the good things about the election of Barack Obama is that we are likely to return to a policy of carrying out our foreign policy in greater concert with our allies, and with greater regard for world opinion (a practical concern even where it is not necessarily a moral one). One of the things to be feared from the new administration is the possibility that, in its desire to break from the precedent of the past eight years, it might be open to compromising our national sovereignty in just such ways as subjecting American individuals and companies to judicial processes in which the guarantees of our Constitution do not apply.

More than that, whatever the willingness of the leaders of Europe to regard the concept of national sovereignty as passe, that's a concept which does not resonate in the United States the way it does in, for example, Europe. If anything, the fear of such a possiblity gives rise to absurdities like the paranoid dread of some on the far right of the wholly mythological North American Union- an imaginary supranational body supposedly already "in the works" whereby the sovereignty of the United States would be largely surrendered to an EU- style arrangement involving Canada and Mexico.

The silliness and paranoia of these fears aside, we aren't ready in this country to treat national sovereignty as a matter of indifference. Nor are we able to trivialize elements of American constitutional law like freedom of speech and of religion, which are not uniformly respected even in the jurisprudence of our most democratic allies (Canada, where political correctness has effectively been given the force of law, is a prime example).

These rights, it's true, are not directly at issue in the debate over the proposed international envirnomental court. Yet they underscore the degree to which the United States and its new president would be well advised to treat proposals for new international judicial entities with coercive powers that transcend the guarantees of American law with great discretion.

HT: Drudge