UN: International Law has “Absolute Authority” – by Joseph Klein


The United Nations Special Rapporteur on Torture, Manfred Nowak, told reporters at UN headquarters during his October 20th press briefing that criminal detainees are “vulnerable” people who need to be protected by a new UN treaty devoted just to the rights of detainees. He said that detainees deserved as much protection by the international community as children and the disabled do — which those groups already receive under the separate UN Conventions devoted just to them.

Presumably, terrorist suspect detainees would also be covered under this new treaty that Nowak is proposing. In fact, he reiterated his opinion – based, he said, on his experience as an international jurist – that the “victims” of rendition and detention are entitled to “adequate reparations”.

But that is not all. In response to my question whether the United Nations’ view of international law would trump a contrary decision by the highest court of a functioning democracy with an independent judiciary such as the United States, Nowak said that international law has “absolute priority.” His rationale was that a UN member state that voluntarily decides to sign and ratify a treaty is bound by the obligations of that treaty.

But what if a member state includes specific “reservations” or carve-outs from its treaty obligations as conditions to its ratification? For example, when the U.S. Senate ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994, the treaty which Nowak often cites in criticizing our treatment of alien enemy detainees, the Senate stated its understanding of torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” This also happens to be the definition of torture in the UN Convention itself. However, the Senate went on to define mental pain and suffering as “prolonged mental harm” resulting from such causes as “the intentional infliction or threatened infliction of severe physical pain or suffering or the threat of imminent death.” Nowak believes that psychological pressure exerted on a detainee that is well short of this definition should still qualify as torture.

The Senate also included the reservation that the U.S. would understand “cruel, inhuman, or degrading treatment or punishment” to mean “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States”.

Nowak declared that if the appropriate United Nations human rights organizations and monitoring committees found reservations like these to violate the purpose of the treaty, they would be illegal. In other words, he believes, along with much of the UN establishment, that neither the U.S. Senate nor our judiciary has the final say as to how the United States’ treaty obligations should be interpreted and administered if the United Nations has a different opinion!

What if, I asked Nowak, the U.S. Supreme Court were to decide that a coerced confession from a high-level al Qaeda suspect was admissible at trial because the coercion, while psychologically intense, did not amount to torture in the Court’s view and the suspect was not entitled to all of the constitutional protections afforded in ordinary criminal trials? His answer was that the UN’s “monitoring bodies have the power to decide whether a member state is in compliance.” Again, in his view, the Constitution as interpreted by the Supreme Court cannot be used to justify an action that is at variance with international law as interpreted by the relevant UN bodies.

Here is the problem. The United States cannot be forced into surrendering its own sovereignty to some global governance body unless we look the other way and let it happen. Even if our political leaders decided to enter into a treaty that started us down this slippery path, treaties can neither override nor amend the Constitution under the Constitution’s “Supremacy Clause.” As the Supreme Court concluded years ago, it would simply make no sense for a treaty, once in effect as a result of the exercise of the President’s and the Senate’s constitutional powers, to become the instrument for usurping the legal authority of the Constitution that established those powers in the first place.

Thus, the United States Constitution by definition trumps the United Nations Charter, and all other treaties we may enter into under the UN Charter or otherwise, as the governing instrument for the American people.

However, the danger to this constitutional protection for America’s self-governance lurks within our own judiciary. UN officials are filing so-called friend-of-court briefs with the Supreme Court on human rights issues and the Court is increasingly deferring to their views.

For example, when the Court decided that alien terrorist suspect detainees must be granted full habeas corpus rights to have the lawfulness of their detentions evaluated, and that the procedures established by the military trial law which Congress passed and President Bush signed were insufficient, it took the advice of Louise Arbour, who at the time was the United Nations’ High Commissioner for Human Rights. Her friend-of-court brief mentioned habeas corpus five times.

The former UN High Commissioner took it upon herself while in office to advise the Supreme Court that the United Nations International Covenant on Civil and Political Rights required the Court to reverse the decision of the Court of Appeals denying the detainees’ petition for habeas corpus and ensure a full habeas corpus proceeding:

“In exercise of the mandate entrusted to her by the international community, the High Commissioner calls on this Court to give full effect to the United States’s international obligations in adjudicating the questions presented… the obligation of the United States arising from Article 9(4) [of the UN Covenant] is neither fully defined by nor dependent on constitutional provisions or federal statutes affording access to habeas relief per se. Hence, in order to ensure compliance by the United States with its obligations under the Covenant, the judicial access afforded by the United States to persons it has detained must be assessed for compliance with each of the requirements set forth in Article 9(4)…If United States law were as construed by the Court of Appeals to preclude habeas corpus, however, the United States would be in breach of its obligations under the Covenant.”

The Supreme Court listened to the UN High Commissioner for Human Rights. It incorporated her notion of international law into its decision interpreting what was required under the United States Constitution, over the legislation supported by the two elected branches of our government.

With President Barack Obama expected to increase the number of Supreme Court justices who believe that international and foreign law should be reflected in their interpretations of the U.S. Constitution, Mr. Novak may get his way after all by default.

  • josephwiess

    The court needs to wake up and realize that our constitution is the template for the laws we pass, not some stupid UN mandate from the hague.

    I think it's time that we go back to the way things used to be, and that starts with our senators being chosen by the state legislature, instead of by popular vote. We already have representatives that are elected by the people, and the senators are supposed to represent the states.

    We also need to go back to the idea that any treaty that washington signs, has to be completely ratified by the states before it goes into effect.

    It's time for the people to take back control over the government.

  • lancebrownsteine

    To the extent that the U.S. ever accepts any judgments by any international body that includes the votes of a non-democratic member, the U.S. will by definition becomes less democratic. If we felt obliged to be controlled by a vote from a terror-supporting country, then by definition we become, indirectly, a supporter of terrorism. If our leadership makes any kind of written or hand-shake agreement with another country that is a violator of international law, as we define it, then we become a partner in undermining international law.

    To the extent that we financially or morally assist any terror-supporting, non-democratic, monarchistic, theocratic, or despotic nation, then by definition we become a partner in their philosophy of government. Basically, to whatever extent we surrender our own democratic philosophy to those who are against it, America surrenders democracy. When we make our enemies into our friends, then we self-destruct and disappear as a guiding light. By allowing other non-democratic nations to undermine the legitimacy of democratic allies, we undermine our own legitimacy.

    The Goldstone report is probably the clearest test yet, since the “Zionism is racism” vote and the Durban farce, of whether America remains intact or dissolves. The nations of the world who give few rights to individuals and all power to tyranny, are watching Obama closely.

  • sensible

    I totally agree, josephwiess — and I agree with the Founding Fathers on just about everything, with ONE key exception, about which I have a complaint with them: they provided no means by which to impeach Supreme Court Justices. That they are appointed for lifelong terms is itself ridiculous; that even the most egregious of them cannot possibly be removed [other than by natural causes or assassination] is beyond ludicrous.

  • brimp

    A treaty can not override the Constitution. To change the Constitution, you need to get the proposed change passed the house and senate, each with 2/3rds of those voting, and be ratified by 3/4 of the states before the president can sign it. A treaty only needs to get the president and a majority of the senators voting to ratify a treaty. The law of the land can not be changed by a treaty. Anything outside of the mechanism provide for in the Constitution for changing the constitution would violate the Constitution. America is hanging on to it's constitution by threads. Be on the lookout for a conference of the states. If this happens, a new constitutional convention could be called for.

  • diginess

    How about the United States just honor our treaties we make with other countries, namely the Geneva Conventions? Then we wouldn't have people like him saying we needed another treaty. It seems rather funny to me that they are talking about yet another treaty when they already have one. It just needs to be enforced, that's all.

  • diginess

    Name me a country whose government we've overthrown through the use of the CIA that wasn't afterward run by a dictator. How is that supporting democracy? How is that not undermining international law? How is that not financially assisting non-democratic, despotic nations? How are we not then a partner in their philosophy of government?
    How many dictators have we supported and do we support currently? Probably quite a few. Your argument that we defend democracy around the world doesn't make any sense.

  • stjames

    A UN treaty will be the way to circumvent the constitution and take away our right to own firearms. I think the UN is already on record as not wanting us to own fire arms. It will take a willing Congress and Supreme Court for this to happen, but stranger things have already happened.

    Josephwiess, I agree about choosing the senators by the state legislature.

  • truthywood

    Yes UN must have absolute authority so that tyrants in America do not go around the world and kill millions of innocent people.

  • doubtitall

    Yes, the UN must have absolute authority to prevent America from stopping lawless tyrants from killing and enslaving hundreds of millions of innocent people.

    What gives the UN any moral authority at all? Tyrants and other lowlife scum bribed by the tyrants agreeing to rules they will violate with impunity if the rules become inconvenient to them? That gives the UN moral authority?

    Without some kind of power of enforcement, morality is nothing but empty words. The only authority the UN has ever had has been that which comes from the barrel of a US weapon. It is long past time we stopped propping up UN “authority.”

  • sensible

    Oh yes — the UN has absolute moral authority: they formulate “Human Rights Commissions” which are populated AND chaired exclusively by the most murderous of totalitarian butchers [i.e., those who should be on trial themselves for crimes against humanity, rather than being granted power to judge others — e.g., Syria & Libya, to name a couple] who then presume to pass judgment over the rest of the world [i.e., those nations who DO go out of their way to respect and preserve human rights]. I haven't encountered such a level of blatant hypocrisy and outright idiocy since I read Animal Farm! Once again, Life imitates Art . . . but WE are the fools, for not first having ejected the UN from this country, and second, for not having stated outright and officially that the very same leaders of these hypocritical nations should be sitting in the prisoner's dock of the International Court, rather than at the conference tables of the UN Human Rights Commission — i.e., by discarding “diplomatic etiquette and protocol” and simply — for ONCE — “just telling it is — for REAL!” What a breath of fresh air THAT change in international honesty would be! I hope I live to see THAT day . . .

  • louis_wheeler

    All is not lost if Obama's treaties, which give up US sovereignty, get ratified and the bureaucracy, judiciary and legislature meekly go along with it.

    Just as the US Constitution trumps the UN or a “one world government,” so does the US electorate trump the judiciary, legislative and executive branches.

    There are a number of ways in which the role of the current Leftist government can be curbed through amending the US Constitution. One of those ways bypasses the Federal Government, altogether, and goes directly to the state legislatures. If 34 of the state legislatures call for a constitutional convention and 39 ratify the results of that convention, then those changes will become the supreme law of the land.


    This Constitutional Convention could not be done behind close doors; it would be televised. The meaning of each change will be publicly debated as will which of the current laws which would be invalidated.

    It seems obvious that Obama is trying to push America into an ever greater crisis which he will, then, offer only one solution — Social Democracy such as they have in Europe. He will bankrupt the US government and sabotage our economy and currency. He will attempt to gain control of the press, TV and the internet to suppress any opposition. He will depress world trade through protectionism and will offer the UN as a means to mediate that discord. He will attempt to confiscate weapons in the hands of the population. He will create Ex-Post-Facto laws to punish opposition. He will attempt to rig our elections through the 2010 Census and organizations such as A.C.O.R.N. He will create his own version of the “Hitler Youth” through the G.I.V.E. Act which demands community service and the participation in Obama's summer camps. He will reward youthful informants for turning in their parents and neighbors for participating in Anti- Obama acts or speech. He will continue to treat the US Constitution as a meaningless scrap of paper.

    The question is how he will respond to such a Constitutional Convention? He would certainly try to discount it and its results. But, will he try to nullify it, which is an impeachable offense — a high crime? Will he declare himself “above the Constitution?” Will he use the military to suppress any resulting protests? Will he nullify any election which throws him or his supporters out of power?

    We are a long way from such dire results, but this is the path down which Obama seems to be moving. This may come down to violence or even Civil War. Let us hope not.

    But, Conservatives should prepare mentally for that possibility.