September 18, 2000
AMERICA'S ROLE IN THE UNITED NATIONS
HON. RON PAUL
Mr. Speaker, over a half a century has transpired since the United States of America became a member of the United Nations. Purporting to act pursuant to the treaty powers of the Constitution, the President of the United States signed, and the United States Senate ratified, the charter of the United Nations. Yet, the debate in government circles over the United Nations' charter scarcely has touched on the question of the constitutional power of the United States to enter such an agreement. Instead, the only questions addressed concerned the respective roles that the President and Congress would assume upon the implementation of that charter.
On the one hand, some proposed that once the charter of the United States was ratified, the President of the United States would act independently of Congress pursuant to his executive prerogatives to conduct the foreign affairs of the Nation. Others insisted, however, that the Congress played a major role of defining foreign policy, especially because that policy implicated the power to declare war, a subject reserved strictly to Congress by Article I, Section 8 of the U.S. Constitution.
At first, it appeared that Congress would take control of America's participation in the United Nations. But in the enactment of the United Nations' participation act on December 20, 1945, Congress laid down several rules by which America's participation would be governed. Among those rules was the requirement that before the President of the United States could deploy United States Armed Forces in service of the United Nations, he was required to submit to Congress for its specific approval the numbers and types of Armed Forces, their degree of readiness and general location, and the nature of the facilities and assistance including rights of passage to be made available to the United Nations Security Council on its call for the purpose of maintaining international peace and security.
Since the passage of the United Nations Participation Act, however, congressional control of presidential foreign policy initiatives, in cooperation with the United Nations, has been more theoretical than real. Presidents from Truman to the current President have again and again presented Congress with already-begun military actions, thus forcing Congress's hand to support United States troops or risk the accusation of having put the Nation's servicemen and service women in unnecessary danger. Instead of seeking congressional approval of the use of the United States Armed Forces in service of the United Nations, presidents from Truman to Clinton have used the United Nations Security Council as a substitute for congressional authorization of the deployment of United States Armed Forces in that service.
This transfer of power from Congress to the United Nations has not, however, been limited to the power to make war. Increasingly, Presidents are using the U.N. not only to implement foreign policy in pursuit of international peace, but also domestic policy in pursuit of international, environmental, economic, education, social welfare and human rights policy, both in derogation of the legislative prerogatives of Congress and of the 50 State legislatures, and further in derogation of the rights of the American people to constitute their own civil order.
As Cornell University government professor Jeremy Rabkin has observed, although the U.N. charter specifies that none of its provisions `shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State,' nothing has ever been found so `essentially domestic' as to exclude U.N. intrusions.
The release in July 2000 of the U.N. Human Development Report provides unmistakable evidence of the universality of the United Nations' jurisdictional claims. Boldly proclaiming that global integration is eroding national borders, the report calls for the implementation and, if necessary, the imposition of global standards of economic and social justice by international agencies and tribunals. In a special contribution endorsing this call for the globalization of domestic policymaking, United Nations Secretary General Kofi Annan wrote, `Above all, we have committed ourselves to the idea that no individual shall have his or her human rights abused or ignored. The idea is enshrined in the charter of the United Nations. The United Nations' achievements in the area of human rights over the last 50 years are rooted in the universal acceptance of those rights enumerated in the Universal Declaration of Rights. Emerging slowly, but I believe, surely, is an international norm,' and this is Annan's words, `that must and will take precedence over concerns of State sovereignty.'
Although such a wholesale transfer of United States sovereignty to the United Nations as envisioned by Secretary General Annan has not yet come to pass, it will, unless Congress takes action.
Mr. Speaker, H.R. 1146, the American Sovereignty Restoration Act is my answer to this problem.
- To date, Congress has attempted to curb the abuse of power of the United Nations by urging the United Nations to reform itself, threatening the nonpayment of assessments and dues allegedly owed by the United States and thereby cutting off the United Nations' major source of funds. America's problems with the United Nations will not, however, be solved by such reform measures. The threat posed by the United Nations to the sovereignty of the United States and independence is not that the United Nations is currently plagued by a bloated and irresponsible international bureaucracy. Rather, the threat arises from the United Nation's Charter which--from the beginning--was a threat to sovereignty protections in the U.S. Constitution. The American people have not, however, approved of the Charter of the United Nations which, by its nature, cannot be the supreme law of the land for it was never `made under the Authority of the U.S.,' as required by Article VI.
- H.R. 1146--The American Sovereignty Restoration Act of 1999 is my solution to the continued abuses of the United Nations. The U.S. Congress can remedy its earlier unconstitutional action of embracing the Charter of the United Nations by enacting H.R. 1146. The U.S. Congress, by passing H.R. 1146, and the U.S. president, by signing H.R. 1146, will heed the wise counsel of our first president, George Washington, when he advised his countrymen to `steer clear of permanent alliances with any portion of the foreign world,' lest the nation's security and liberties be compromised by endless and overriding international commitments.
An excerpt from Herbert W. Titus' Constitutional Analysis of the United Nations
In considering the recent United Nations meetings and the United States' relation to that organization and its affront to U.S. sovereignty, we would all do well to read carefully Professor Herbert W. Titus' paper on the United Nations of which I have provided this excerpt:
It is commonly assumed that the Charter of the United Nations is a treaty. It is not. Instead, the Charter of the United Nations is a constitution. As such, it is illegitimate, having created a supranational government, deriving its powers not from the consent of the governed (the people of the United States of America and peoples of other member nations) but from the consent of the peoples' government officials who have no authority to bind either the American people nor any other nation's people to any terms of the Charter of the United Nations.
By definition, a treaty is a contract between or among independent and sovereign nations, obligatory on the signatories only when made by competent governing authorities in accordance with the powers constitutionally conferred upon them. I Kent, Commentaries on American Law 163 (1826); Burdick, The Law of the American Constitution section 34 (1922) Even the United Nations Treaty Collection states that a treaty is (1) a binding instrument creating legal rights and duties (2) concluded by states or international organizations with treaty-making power (3) governed by international law.
By contrast, a charter is a constitution creating a civil government for a unified nation or nations and establishing the authority of that government. Although the United Nations Treaty Collection defines a `charter' as a `constituent treaty,' leading international political authorities state that `[t]he use of the word `Charter' [in reference to the founding document of the United
Nations] . . . emphasizes the constitutional nature of this instrument.' Thus, the preamble to the Charter of the United Nations declares `that the Peoples of the United Nations have resolved to combine their efforts to accomplish certain aims by certain means.' The Charter of the United Nations: A Commentary 46 (B. Simma, ed.) (Oxford Univ. Press, NY: 1995) (Hereinafter U.N. Charter Commentary). Consistent with this view, leading international legal authorities declare that the law of the Charter of the United Nations which governs the authority of the United Nations General Assembly and the United Nations Security Council is `similar . . . to national constitutional law,' proclaiming that `because of its status as a constitution for the world community,' the Charter of the United Nations must be construed broadly, making way for `implied powers' to carry out the United Nations' `comprehensive scope of duties, especially the maintenance of international peace and security and its orientation towards international public welfare.' Id. at 27
The United Nations Treaty Collection confirms the appropriateness of this `constitutional interpretive' approach to the Charter of the United Nations with its statement that the charter may be traced `back to the Magna Carta (the Great Charter) of 1215,' a national constitutional document. As a constitutional document, the Magna Carta not only bound the original signatories, the English barons and the king, but all subsequent English rulers, including Parliament, conferring upon all Englishmen certain rights that five hundred years later were claimed and exercised by the English people who had colonized America.
A charter, then, is a covenant of the people and the civil rulers of a nation in perpetuity. Sources of Our Liberties 1-10 (R. Perry, ed.) (American Bar Foundation: 1978) As Article 1 of Magna Carta, puts it:
We have granted moreover to all free men of our kingdom for us and our heirs forever all liberties written below, to be had and holden by themselves and their heirs from us and our heirs.
In like manner, the Charter of the United Nations is considered to be a permanent `constitution for the universal society,' and consequently, to be construed in accordance with its broad and unchanging ends but in such a way as to meet changing times and changing relations among the nations and peoples of the world. U.N. Charter Commentary at 28-44.
According to the American political and legal tradition and the universal principles of constitution making, a perpetual civil covenant or constitution, obligatory on the people and their rulers throughout the generations, must, first, be proposed in the name of the people and, thereafter, ratified by the people's representatives elected and assembled for the sole purpose of passing on the terms of a proposed covenant. See 4 The Founders' Constitution 647-58 (P. Kurland and R. Lerner, eds.) (Univ. Chicago. Press: 1985). Thus, the preamble of the Constitution of the United States of America begins with `We the People of the United States' and Article VII provides for ratification by state conventions composed of representatives of the people elected solely for that purpose. Sources of Our Liberties 408, 416, 418-21 (R. Perry, ed.) (ABA Foundation, Chicago: 1978)
Taking advantage of the universal appeal of the American constitutional tradition, the preamble of the Charter of the United Nations opens with `We the peoples of the United Nations.' But, unlike the Constitution of the United States of America, the Charter of the United Nations does not call for ratification by conventions of the elected representatives of the people of the signatory nations. Rather, Article 110 of the Charter of the United Nations provides for ratification `by the signatory states in accordance with their respective constitutional processes.' Such a ratification process would have been politically and legally appropriate if the charter were
a mere treaty. But the Charter of the United Nations is not a treaty; it is a constitution.
First of all, Charter of the United Nations, executed as an agreement in the name of the people, legally and politically displaced previously binding agreements upon the signatory nations. Article 103 provides that `[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.' Because the 1787 Constitution of the United States of America would displace the previously adopted Articles of Confederation under which the United States was being governed, the drafters recognized that only if the elected representatives of the people at a constitutional convention ratified the proposed constitution, could it be lawfully adopted as a constitution. Otherwise, the Constitution of the United States of America would be, legally and politically, a treaty which could be altered by any state's legislature as it saw fit. The Founders' Constitution, supra, at 648-52.
Second, an agreement made in the name of the people creates a perpetual union, subject to dissolution only upon proof of breach of covenant by the governing authorities whereupon the people are entitled to reconstitute a new government on such terms and for such duration as the people see fit. By contrast, an agreement made in the name of nations creates only a contractual obligation, subject to change when any signatory nation decides that the obligation is no longer advantageous or suitable. Thus, a treaty may be altered by valid statute enacted by a signatory nation, but a constitution may be altered only by a special amendatory process provided for in that document. Id. at 652.
Article V of the Constitution of the United States of America spells out that amendment process, providing two methods for adopting constitutional changes, neither of which requires unanimous consent of the states of the Union. Had the Constitution of the United States of America been a treaty, such unanimous consent would have been required. Similarly, the Charter of the United Nations may be amended without the unanimous consent of its member states. According to Article 108 of the Charter of the United Nations, amendments may be proposed by a vote of two-thirds of the United Nations General Assembly and may become effective upon ratification by a vote of two-thirds of the members of the United Nations, including all the permanent members of the United Nations Security Council. According to Article 109 of the Charter of the United Nations, a special conference of members of the United Nations may be called `for the purpose of reviewing the present Charter' and any changes proposed by the conference may `take effect when ratified by two-thirds of the Members of the United Nations including all the permanent members of the Security Council.' Once an amendment to the Charter of the United Nations is adopted then that amendment `shall come into force for all Members of the United Nations,' even those nations who did not ratify the amendment, just as an amendment to the Constitution of the United States of America is effective in all of the states, even though the legislature of a state or a convention of a state refused to ratify. Such an amendment process is totally foreign to a treaty. See Id., at 575-84.
Third, the authority to enter into an agreement made in the name of the people cannot be politically or legally limited by any preexisting constitution, treaty, alliance, or instructions. An agreement made in the name of a nation, however, may not contradict the authority granted to the governing powers and, thus, is so limited. For example, the people ratified the Constitution of the United States of America notwithstanding the fact that the constitutional proposal had been made in disregard to specific instructions to amend the Articles of Confederation, not to displace
them. See Sources of Our Liberties 399-403 (R. Perry ed.) (American Bar Foundation: 1972). As George Mason observed at the Constitutional Convention in 1787, `Legislatures have no power to ratify' a plan changing the form of government, only `the people' have such power. 4 The Founders' Constitution, supra, at 651.
As a direct consequence of this original power of the people to constitute a new government, the Congress under the new constitution was authorized to admit new states to join the original 13 states without submitting the admission of each state to the 13 original states. In like manner, the Charter of the United Nations, forged in the name of the `peoples' of those nations, established a new international government with independent powers to admit to membership whichever nations the United Nations governing authorities chose without submitting such admissions to each individual member nation for ratification. See Charter of the United Nations, Article 4, Section 2. No treaty could legitimately confer upon the United Nations General Assembly such powers and remain within the legal and political definition of a treaty.
By invoking the name of the `peoples of the United Nations,' then, the Charter of the United Nations envisioned a new constitution creating a new civil order capable of not only imposing obligations upon the subscribing nations, but also imposing obligations directly upon the peoples of those nations. In his special contribution to the United Nations Human Development Report 2000, United Nations Secretary-General Annan made this claim crystal clear:
Even though we are an organization of Member States, the rights and ideals the United Nations exists to protect are those of the peoples. No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples. Human Development Report 2000 31 (July 2000) [Emphasis added.]
While no previous United Nations' secretary general has been so bold, Annan's proclamation of universal jurisdiction over `human rights and fundamental freedoms' simply reflects the preamble of the Charter of the United Nations which contemplated a future in which the United Nations operates in perpetuity `to save succeeding generations from the scourge of ware . . . to reaffirm faith in fundamental human rights . . . to establish conditions under which justice . . . can be maintained, and to promote social progress and between standards of life in larger freedom.' Such lofty goals and objectives are comparable to those found in the preamble to the Constitution of the United States of America: `to . . . establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the Blessings of liberty to ourselves and our posterity . . .'
There is, however, one difference that must not be overlooked. The Constitution of the United States of America is a legitimate constitution, having been submitted directly to the people for ratification by their representatives elected and assembled solely for the purpose of passing on the terms of that document. The Charter of the United Nations, on the other hand, is an illegitimate constitution, having only been submitted to the Untied States Senate for ratification as a treaty. Thus, the Charter of the United Nations, not being a treaty, cannot be made the supreme law of our land by compliance with Article II, Section 2 of Constitution of the United States of America. Therefore, the Charter of the United Nations is neither politically nor legally binding upon the United States of America or upon its people.