Does the UN trump the inherent rights of its members?

[smiling_bandit]

I used to have this naive, lofty idea that the reasoning behing the UN was the compromise and harmonization of the interests of its members, and by extension, the whole international community.

No. It is to keep them from killing each other. Their interests are usually by definition opposed.

If the US constitution is fundamentally at odds, in letter or spirit, with the UN charter, then the US should not be a member, and should not have helped found the organization. If this is the case, then signing the charter at San Francisco was an affront to American values, and the UN permanent mission in New York is an insult to the government and people of the US.

The UN was never intended to be a world government, but rather a neutral ground and meeting place. It is you who is missing the point here.

Would it be all right then, hypothetically speaking, that another country invades the US if it decides that is “paramount to the safety of it’s citizens”?

If they can convince the rest of the world they’re right… and win the ensuing battle (impossible, we’d nuke them till they glowed first).

[Saen]

*Originally posted by wolfstu *
** And what makes the US Constitution so grand that it can’t be subordinated to the UN Charter? **

Bacause the people said so. There are no laws of mathematics, or physics to get a scientific answer to make it so. Unless, of course, you want to count the number of people that say so as opposed to those who don’t.

Where do the two disagree?

It doen’t matter if the two coincide or not. Afghanistan’s new government can change their countries name to the Unisted States of America, and adopt our constitution to the punctuaions. That does not automatically necessitate that the two countries should consider themselves the same.

In fact, this constitution seems to be mostly about who gets what powers and how the government shall be organized.

Bingo! So where is the confusion?

Read the constituiton if you want to get an in-depth understanding of what makes the Constituiton subordinate to none except the people. Not even the government. The key issue here is in the first line. “We the People of the United States”.
sailor & Urban Ranger

There is a difference between having the right and it being allright. Look up the two terms in the dictionary. The truth is, they have every right to do what they want, whether it is allright depends on who you ask. The two do not necessarily coincide.

[Saen]

[QUOTE]
*Originally posted by greco_loco *
Well, I said I would weigh in here if Saen presented a lucid OP, so here I am.

Oh joy, my post is lucid. :rolleyes:

To the OP: is this really the question we want to ask? Why should the UN “trump” the rights of nation states?

If it wasn’t I would not have asked it, now would I?

That was not its charter or purpose; it was designed by those selfsame nation states to provide a quasi-governmental framework in which all of the nations in the world could participate. Period.

Well, at least we finally agree on something. Pray tell, why do you assert that the US does not have the right to invade another country without the UN’s consent?

Now, on to some other comments in the thread: I see a definite tendency by Saen to deny that there is some sort of global community . Do you really live in a cave? ** There are many ideas of a global community**; though there is no global governance, per se, there is no denying that what one nation does affects the others.

Well then, where do you come off that because my idea of a global community differs from yours, I am somehow denying it?

If a member of the global community makes a unilateral move that in some way affects its neighbor or another state,…

No Social Studies lessons are required thank you.

The UN was created as a realization that a world body needed to exist, to reduce the amount of unilateral actions that had lead to WWII (and even WWI, as the League of Nations was found to be extremely wanting in this regard).

Reduce, yes. There is no mandate that we have signed that stated it must stop. Again, where does it state that the United States has no right to invade another country, unilaterally or otherwise??

[quote]
The UN is there to provide a framework when one sovereign state deals with another, or when a dispute between nation states arises; in other words, in the international, not the national, arena.

[quote]

Not a mandatory framework.

Obviously, Saen sees neither a reason for the existence of the UN, nor for any need for sovereign nations to respect the rights of other sovereign nations;

I never said there was never any need for them. But that need is justified by the individual nations themselves. Not some world embodiment. Does a nation that does not see the need for the UN have that right?

And please ask me before you start putting words in my mouth. If you insist on ignoring what I said was acceptable in the other thread, this the last time I will be polite about it.

for, at heart, this is what the conversation is about. No one can dispute that sovereignty gives a nation the right to do what it pleases within its own boundaries;

What gives the sovereignty to other entities the right to say what the nation can do outside its own boundaries?

though you may feel that historically it is still might makes right, there have been two world bodies created (the LoN, and the UN) to dispel that idea, and to allow the smaller and developing nation states to grow and prosper.

A) The UN does not drive away that right. Even in it’s own resolutions and charter it acknowledges that right.

B) It is not an idea, but a fact. What do you think gives the UN the power to fulfill it’s resolutions? Happy thoughts? No, the might of it’s members.

The rest, Greco, is ideological bullshit. Bullshit we should all strive for, but it does not make it factual unless you can enforce it.

And to put into perspective I am going to use a little poetic license of my own.

"The UN has the might to do whatever it chooses, and damn the consequences; where is it their “sovereign” right to trample the sovereign rights of other nation states? Who are they to determine whether one sovereign country has the right to retain its sovereignty, its identity? "
And that is not hypocritical how?

[Saen]

I also ran across this little morsel that pretty much says what I did, even though it concernsthe unpaid funds the US owes to the UN.

http://www.globalpolicy.org/finance/docs/bolton.htm

[UDS]

The UN derives its powers and functions from its member states, not the other way around.

However states are expected to abide by the agreements into which they have solemnly entered, and this includes the US abiding by the UN Charter.

The UN Charter does not forbid all resort to force by states without the approval of the UN itself; on the contrary, it explicitly recognised that states have a right of self-defence, both individually and collectively, and it recognises the role of “regional security organisations” (e.g. NATO, the former Warsaw Pact) which seek to regulate the use of force by their own members.

Even the administration’s wildest enthusiasts for the use of military force against Iraq do not suggest that the US has an uncontrolled right to resort to the use of force without regard to what the UN Charter says. They argue instead that the use of force is justified within the terms of the UN Charter as an exercise of the right of self-defence (or they advance other arguments to reconcile resort to force in these circumstances with the Charter). That is one of the reasons – perhaps the main reason – why the administration is so keen to characterise any intervention in Iraq as “pre-emptive self-defence”.

Whether an attack on Iraq would be a legitimate exercise of the right of self-defence is a matter for debate; what is not in doubt, however, is that the US has adhered to and ratified the UN Charter and is bound to abide by it, and this excludes any argument that the US has a unilateral right to resort to force whenever it chooses.

(This did not start with the UN Charter, which only dates from 1946. One of the charges prosecuted by the US and others at the Nuremburg and Tokyo tribunals was that of “conspiracy to wage aggressive war”, a charge which makes no sense if a state has an unfettered right to resort to force. For many decades (if not indeed since the establishment of the US) the official position of the US (and many other countries) is that no country has a right to resort to force whenever it likes. The arguments have always been over exactly what limits are placed on that right, and whether any particular use of force falls within or outside those limits.)

[Tee]

*Originally posted by greco_loco *
**Unfortunately, it seems that even in this day and age there are those that want us to be imperial and colonial, just because we have the might to do so; only now the justification is for defense of our sovereign rights. Sorry to be vulgar, but this is, simply put, bullshit: we, as the world’s champion of freedom, have no inherent right to push our form of governance off on any other nation state. **

I see the terms “imperial” and “colonial” thrown around a lot lately and they are inapplicable to any situtation in the Middle East. That only works if we claim the land. The last place we were involved in ‘pushing governance’ was Afghanistan, and it’s true we had no inherent right to go in and mess with it…neither did the Taliban, who were essentially squatters and were recognized as such by the very same UN. Afghanistan is not our 51st state at this time; we were interested in restoring a previous self-determined government, and that’s how things stand. Not perfect, but not colonized.

[Saen]

*Originally posted by UDS *
**

However states are expected to abide by the agreements into which they have solemnly entered, and this includes the US abiding by the UN Charter.**

Expected to, and not having the right to are not synonymous. Unless you suggest rights are solely driven by expectations. Then that too would be false.

Whether an attack on Iraq would be a legitimate exercise of the right of self-defence is a matter for debate; what is not in doubt, however, is that the US has adhered to and ratified the UN Charter and is bound to abide by it, and this excludes any argument that the US has a unilateral right to resort to force whenever it chooses.

I am assuming you did not check my link. And since others may not I will quote some items I think are pertinant to the discussion.

As for the US being bound by the charter;

…the Supreme Court revisited the issue in 1957 in Reid v. Covert. It ruled that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” It stressed that “this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.” Whatever the legal impact of a treaty, that impact must be determined consistently with the Constitution and subordinate American law.

…

…treaties are “law” only for U.S. domestic purposes. In their international operation, treaties are simply “political” obligations.

The Supreme Court recognized this distinction as far back as 1884, holding that a treaty “is a law of the land as an Act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.” As for the international aspects, the court held clearly that a treaty “depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it.” And if they don’t work? “If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war.”

There may be good and sufficient reasons to abide by the provisions of a treaty: in most cases one would expect to do so because of benefits treaties provide not because the U.S. is “legally” obligated to do so. As the Supreme Court stressed in 1889 in Chae Chan Ping v. U.S.: “whilst it would always be a matter of the utmost gravity and delicacy to refuse to execute a treaty, the power to do so was prerogative, of which no nation could be deprived without deeply affecting its independence.”

It goes on to talk more about what a treaty can do in effects to the aouthorites and powers provided by the Constitution.

Specifically;

As it said in 1871 in The Cherokee Tobacco, “an act of Congress may supersede a prior treaty.”

Taking that into account, it would also come to reason that the Presidential powers in regards to the armed forces supercede a treaty. So even if Congress did not act to nullify the “obligation” to the UN, the President is no more obligated to the UN than Congress.

The arguments have always been over exactly what limits are placed on that right, and whether any particular use of force falls within or outside those limits.)

From my link, the courts seem to recognize the rights of other nations of use of force as well. I will quote it again.

“If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war.”

To sum it up, the courts state that the Constitution is not bound by international law. And any action that may be deemed illegal by a treaty is not necessarily recognized by the Constitution.

[Saen]

in my first sentence I meant not having the right not to.

[UDS]

Hi Saen

My ealier post was written before I’d seen yours linking to the article by Bolton.

I think he and I are discussing two separate issues. I’m talking about public international law, the law which regulates relations between states; he, I think, is talking about US law, the law which regulates relations among US citizens and residents, and between them and the US government. (For these purposes when I talk about US domestic law I’m making no distinction between the states and the Union, or between state and federal law.)

When the US complains that, say, Afghanistan is harbouring terrorists who are attacking US territory, to the extent that that is a legal complaint, it is a complaint under public international law. (It must be, since the government and people of Afghanistan are not subject to US domestic law.) Similarly, when the US says it has a right to resort to the use of force in this situation, it must mean that it has such a right under public international law, for the same reason.

When Bolton argues that the US is not “legally obliged” to pay money to the UN, he means that there is no obligation under US domestic law to do so. He shows this by, for instance, his constant reference to the US Supreme Court. The US Supreme Court has no jurisdiction over the UN or over other countries, and does not claim to have. So what the Supreme Court says in relation to treaties, if I read Bolton correctly, is that the parties with whom the US enters into international relations are not subject to US law or the US courts, so that the international relations of the US are not addressed by US law, and that the international treaty obligations of the US are not enforceable through the US courts as a matter of US domestic law.

It is also correct to say that, as a matter of US domestic law, the constitution takes precedence over treaties, even those which have been explicitly incorporated into US domestic law (as, for example, the Convention on Genocide has been).

The position at the level of public international law is entirely different. If the UN and the US were to refer to the International Court of Justice their dispute about the payment of contributions by the US to the UN, as a matter of public international law the ICJ might well hold that the US did have an obligation to pay the sums claimed. (I stress that I say “might”; I know nothing about the merits of the claim.) The US Supreme Court does not say that international treaties have no legal force; merely that they cannot be enforced through the US legal system with which it deals.

So, when I said that states were “expected to” abide by their treaty obligations, I agree that my terminology was slack; what I meant was that, as a matter of public international law, they are bound by their treaty obligations. If they act in breach of their treaty obligations they are acting unlawfully; they do not therefore have a right to act in breach of their treaty obligations. (They may have the power to do so, of course, if their military/political/economic position is strong enough, but that doesn’t mean they have the right to do so.)

The consistent position of the US government (and indeed of all states who do not want to be international pariahs) is that international treaties do have legal force, and the US regularly brings legal complaints about breach of treaty obligations by other states before international courts and arbitral tribunals. The US has also been brought before international tribunals for breach of treaty obligations itself; its defence has usually been that the acts complained of did not constitute a breach, and/or tha the tribunal in question has no jurisdiction to try the particular dispute. But it has never adopted the position that its treaty obligations are not legally binding on it.

[Saen]

Hello UDS

I do not think he was talking about Private International Law . As a matter of fact, if a destinction were to be made it would seem to me to be Public.

Whatever the legal impact of a treaty, that impact must be determined consistently with the Constitution and subordinate American law.

As a matter of fact i beleive he stated the destinction here:

treaties are “law” only for U.S. domestic purposes. In their international operation, treaties are simply “political” obligations.

“The Supreme Court recognized this distinction as far back as 1884, holding that a treaty is a law of the land as an Act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.” As for the international aspects, the court held clearly that a treaty “depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it.”

Meaning that, as long as it is Constitutional, a treaty is “law of the land” domestically, while in international matters it is only considered a political obligation, or a show of faith but not binding.
And here:

“whilst it would always be a matter of the utmost gravity and delicacy to refuse to execute a treaty, the power to do so was prerogative, of which no nation could be deprived without deeply affecting its independence.”

Here He seems to argue against the legal bonds of Public I’tnl Law all together.

In short, treaties are “law” to the extent that they constitutionally adjust private-private and private-public relationships within the United States. They are “political,” and not legally binding, to the extent that they purport to affect relations among national governments.

YMMV, and since I can’t ask him personally I can’t say for sure.

My case is that the “rights” of a nation are given by the nations themselves. In our case the Constitution. If you concede that Constituiton is the origin of those rights, it does not matter how the government choses to see it. I think that with the rulings Bolton referenced shows that the government has the right to not feel obligated or consider treaties legally binding. Not that they must.

The Constitution is not a world document, in the effect that the rest of the world must adhere to it. They can consider our actions illegal, and our only obligation is to face whatever consequences that illegal action might incur.

Our rights are not expected to be accepted by others.

For instance, if we made it legal to enslave a race (ahem), it is still the rights of this soveriegn nation. Inherent rights should not be confused with what is right or wrong. Iraq and North Korea can consider it their inherent right to delvelope WMD. We do not refute that. Instead, we consider it an inherent right to take action against them for it. Not because we think it is right, but because we think it is the wrong thing to do.

[UDS]

Hi Saen

If Bolton means that treaty obligations are not legally binding at any level, then I simply disagree with him and, I think, so does practically everybody else (including the Unites States government). Besides, it would be pointless to argue that treaties have no legal force at any level, resting your argument solely on the domestic judgments of the US courts.

My case is that the “rights” of a nation are given by the nations themselves . . .

If you mean that each state can unilaterally decide what its own rights are, I disagree with you. The whole point about rights is that others are under an obligation to respect them, and (for instance) Iraq cannot unilaterally decide to annexe Kuwait and argue that other states - including Kuwait - must respect this. In what sense would such a decision give Iraq a “right” to annexe Kuwait?

*For instance, if we made it legal to enslave a race (ahem), it is still the rights of this soveriegn nation. Inherent rights should not be confused with what is right or wrong. Iraq and North Korea can consider it their inherent right to delvelope WMD. We do not refute that. Instead, we consider it an inherent right to take action against them for it. Not because we think it is right, but because we think it is the wrong thing to do. *

Interesting point. Up to this century, if the US made it legal to enslave a race - oh, say, blacks - within its own territory, that was a right recognised by public international law, in the sense that no other state was authorised to invade the US to free the slaves, or adopt other sanctions to free the slaves. But if the US had sought to enslave blacks in Canada, that would not have been a right recognised by public international law, and no amount of insisting by the US that it was a right would have made it a right.

Nowadays the US is party to international conventions outlawing slavery and, were it to practice slavery within its own territory, it would be in breach of those conventions. Other states could take action against it (which might not be military action but could, for instance, take the form of economic sanctions, boycotts and the like). There is, therefore, no sense in which the US has a “right” to practice slavery although it might have the power to do so.

I think it comes down to what you mean by “right”. What do you understand by the term, and is it any different from “power”?

[Saen]

Hey UDS

I think Bolton is saying that treaty obligations are not legally binding on the Constitutional level. Therefore the rights determined by the state is not bound by said treaty.

The US respects Taiwan’s inherent right to self govern. The Chinese do not. Their right is not at the mercy of the “other China”.

It is possible that my view of inherent rights, and rights accepted by others could be two different things. Inherent rights are rights that come from within, power is a part of that. But so does what you feel is right or wrong. I do not feel I have an inherent right to kill someone just because I have a gun. I do feel like I have that right for self defense. Even if the law does not agree with me.

[UDS]

Well, yes, but I still theink there is a difference between a self-declared “right” which even the person declaring it agrees that others have no obligation to respect (which I think is not a right at all in the ordinary understanding of the word) and a right which is, or ought to be, recognised by others.

When you say that you have a “right” to self-defence you mean, I suggest, that if the law does not allow you to use force in certain circumstances, it ought to - i.e. you should not be punished for using force in self-defence; it would in some sense be wrong to punish you for this. And, in making that statement, you are appealing to moral or ethical principles which you want or expect others to share. In other words, your “right” doesn’t stem from your own arbitrary decision to behave in a certain way, but from principles which (you hope) are shared by others.

[Saen]

It being shared by others is not a requirement in what I think my inherent rights are. If I think it is the inherent right of women to have abortions in Saudi Arabia, the government, law, and everyone else in the world does not have to agree with me. And if they all came and told me they disagreed with me, it would not change what I thaught their rights are.

Sure I would hope, appeal my case, and think it should be legal. But if those fail, it would not change my inherent right. If I shot someone, wich I thaught was self defense but the jury didn’t, I would think it my inherent right to do it again in the same situation. Although others may believe differently. It would be considered illegal, and I would be obligated to face the consequences of my actions by those that disagreed with me. But that doesn’t change the facts.

[Latro]

So, what are ‘inherent rights’ based on then?
Is there really such a thing at all?

[Saen]

My view of inherent rights are based on what one thinks is the right thing to do. Sure there is such a thing. We make laws based upon what many believe are inherent rights. An obvious one that has been discussed here is a right to self defense. Even if the facts do not merrit it, if you can convince a jury that you acted in what you, yourself, truely believed was self defense, they would be required to exhonerate you in most circumstances. From law and what they may believe your inherent right was.

Like that cop that shot that dog the other day. I do not believe he had the right to do that, although he claims self defense. If I truely believed he thaught he was in danger I would say differently.

But liek I was telling UDS, it is not a requiremnt for others to agree with me. Like the abbortion issue. Some think it is an inherent right to chose abortion just because you want to. Others do not. If you where to totally convince a jury that you truely had teh abortion because you wanted to, and that jury was against it, you would not be exhonerated. Legally maybe, depends on where you are. But not from within the jurers themselves.

[UDS]

*Originally posted by Saen *
**It being shared by others is not a requirement in what I think my inherent rights are. If I think it is the inherent right of women to have abortions in Saudi Arabia, the government, law, and everyone else in the world does not have to agree with me. And if they all came and told me they disagreed with me, it would not change what I thaught their rights are. **

But then shouldn’t your OP be titled “Does the UN trump what its members think their inherent rights are?”

To which the answer is, in one sense, obviously it does not; the UN cannot tell any state what to think.

In another sense, the answer is obviously that it does; it may decide to ignore what a state thinks, and act anyway. The UN is a mechanism by which the community of states decides how an individual state is to be allowed to behave and if it decides, say, to stop Iraq from annexing Kuwait or to stop North Korea from annexing South Korea, the fact that Iraq and North Korea think that they have “inherent rights” to do these things is not really going to affect the position; the UN will stop them anyway.

[Saen]

Actually, I think the title would be more appropriate as “Does the UN trump its members rights to self determine.”

After all, that is what the US, and pretty much all nations, was founded upon.

Sovereignty gives them that right. Therefore they are not bound by the international laws, in the since that it must be their self determined duty to follow those laws, or treatise. Of course the UN and other countries do not have to agree with them. Those other countries can make the self determined decision to take action against it. At least, that is what i think Bolton was trying to say the Constitution says.

[UDS]

Ah, but the foundation of international law is the consent of states. That is, the binding norms of international law become binding norms because states consent to be bound by them. So, for example, the provisions of a treaty are not binding on State A unless State A signs and ratifies the treaty. In taking that action, State A is exercising its sovereign right of self-determination; nobody other state can tell them to take that action, and no other state can stop them from taking that action.

Acceding to a treaty is not the only way in which a state can signify its acceptance of a rule of international law; state practice can also evidence acceptance. So if, for instance, State A invariably condemns incursions of its borders by neighbouring states B, C, D and E and denounces them as illegal, it is seen to have accepted a rule of international law that neighbouring states must not infringe one anothers borders. And so forth.

In other words, precisely because a state is sovereign and has a right of self-determination, it can consent to be bound by the norms of international law. If it could not do this, it would not be sovereign and it would lack the right of self-determination.

Hence the notion that states are sovereign and have a right of self-determination is not inconsistent with the notion that international law has binding force; the one is a corollary of the other.

If states could not limit their sovereignty and their right of self determination, then the US constitution, which on its own terms only has force because it was ratified by the separate states, cannot be a legally binding document. If that is so, the whole of Bolton’s argument, or of any argument which rests on the provisions of the US Constitution, must fall.

Finally, if there is no binding international law, what is the foundation for the statement that states have sovereignty, and the right of self-determination? These are legal concepts, explicitly recognised by international law, and they are the basis upon which other states (including the US) are proposing to take action against Iraq. The allegation not simply that Iraq possesses weapons of mass destruction – so does the US – but that it is likely to use them to infringe the sovereignty and self-determination of other states. But, if international law has no force, Iraq is under no obligation to respect the sovereignty and self-determination of other states, so what is the basis for objecting to Iraq’s conduct?