Destroying the Constitution

International treaties come in a wide variety of sizes and shapes, with varying powers to erode national sovereignty. Few people are aware of the extent to which our domestic policies result from international treaties. Many, if not most, erode our national sovereignty to some extent.

There are bilateral treaties, between two nations, multilateral treaties, among several nations, and then there are U.N. treaties – the most dangerous to national sovereignty. Most U.N. treaties are called “conventions,” as in the U.N. Convention on Biological Diversity, or “covenants,” as in the U.N. Covenant on Civil and Political Rights.

A “convention” is an agreement reached by the delegates to an assembly; a “covenant” differs only in that it is supposed to be a “solemn agreement” reached by the delegates to an assembly.

All treaties specify the time and conditions required to “enter into force,” or, in other words, to become international law. They also specify the time and conditions under which a “party” may withdraw from the treaty. Many U.N. treaties also create what is called a “conference of the parties,” to administer and/or enforce the treaty.

A treaty begins life, officially, when the U.N. General Assembly, or a special conference or commission created by the General Assembly, adopts the final draft of a proposed treaty. The draft is then available for “signatures.” Official delegates from participating nations “sign” the document, indicating the nation’s intention to “ratify” the treaty.

The signature alone, does not bind the nation to the terms of the treaty, but it does obligate the nation to “take no action contrary to the treaty,” according to Michael Zammit Cutajar, executive secretary of the U.N. Framework Convention on Climate Change. A treaty becomes binding upon the United States only when it has been ratified by “two-thirds of the senators present.”

Until 1992, the Senate often ratified treaties with “reservations” and/or “understandings,” attached. The ratification resolution would specify which portion of the treaty would not be agreed to, or how a particular clause is interpreted by the Senate. The U.S. ratification of the Covenant on Civil and Political Rights has such reservations attached.

Since the 1992 U.N. Framework Convention on Climate Change and the Convention on Biological Diversity, U.N. treaties contain a clause which prohibits reservations.

Is a U.N. treaty the supreme law of the land? The U.S. Constitution says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land …

This statement does little to answer the question. Legal arguments have flourished on both sides of this question. Ultimately, the U.S. Supreme Court has to decide specific questions relating to specific treaties. (For detailed discussion on this issue, see the “Annotated Constitution of the United States,” then enter the word “treaties.”)

Of more practical importance, is how U.N. treaties are implemented in the United States, whether or not they have been ratified.

The Endangered Species Act of 1973, was enacted “pursuant to” six international treaties which are listed by name. The World Trade Organization actually requires that member nations “conform” their laws to the decisions of the WTO, or face fines and other penalties stipulated by the WTO. These are only two of many examples.

When U.S. law is drafted to conform to requirements of a U.N. treaty, or when any international organization has the power to levy fines and penalties against the United States, the sovereignty of the international organization is superior to the sovereignty of the United States.

To many people, this situation appears to be unconstitutional, if not treasonous. The fact is, that it becomes unconstitutional only when the U.S. Supreme Court declares it so. So far, the Supreme Court has been silent.

U.N. treaties rarely require specific action. Instead, they are written with broad, generalized objectives in language that is warm, fuzzy and deliberately ambiguous.

For example, the U.N. Convention on Biological Diversity is only 18 pages. It contains a provision (Article 8) that says all parties “shall create … a system of protected areas.” The instruction book for implementing the treaty, the Global Biodiversity Assessment, is 1,140 pages – about 300 of which describe in great detail that the system of protected areas should be designed like the “Wildlands Project,” published in the U.S. in 1992 by Reed Noss, which requires that “at least half of the land area” be encompassed in “core reserves” off-limits to most human activity.

This treaty was not signed by the United States until Bill Clinton took office. The Senate did not ratify this treaty. But since the Clinton administration wanted the treaty implemented, Al Gore, through his “re-invention of government” program, restructured the resource management agencies of the federal government to implement the goals of the treaty through an administrative policy called “Ecosystem Management.”

In this instance, national sovereignty was eroded by the influence of an unratified treaty because the executive branch agreed with the treaty’s objectives, and chose to implement them without specific congressional authorization.

Many of the members of the Clinton administration were former executives of environmental organizations who had actually participated in the development of the treaty before they became the government officials responsible for implementing it.

In the United States, public policy should be made only by elected officials. This is the method our founders devised to ensure that government would remain under the control of the people. Should elected officials enact laws to which the people do not consent, elected officials can be replaced on election day.

But U.N. treaties are not made by elected officials. When public policy is enacted to satisfy the requirements of U.N. treaties, not only is our national sovereignty eroded, but there is no one accountable who can be replaced on election day.

Earlier, we saw that U.N. treaties begin their official life with the U.N. General Assembly. They are conceived, however, many months before they are born, and often under circumstances that are less than public.

Environmental treaties, for example, most often are conceived by the International Union for the Conservation of Nature. This is a highly specialized non-government organization. That’s right, an NGO is writing U.N. treaties that are implemented in the United States as public policy with the force of law.

Membership in the IUCN is limited to other NGOs, such as The Nature Conservancy, the Audubon Society, World Wildlife Fund and other environmental organizations, and agencies of national governments. Six agencies of the federal government are members of the IUCN.

Dozens of Clinton-era administrators came from environmental organizations that are members of the IUCN. Jay Hair, once president of the National Wildlife Federation, became president of the IUCN, and was also a member of the President’s Council on Sustainable Development.

As members of the IUCN, they participated in the drafting of several treaties, including the U.N. Framework Convention on Climate Change and the Convention on Biological Diversity. The environmental organizations from which these administrators came provided enormous public-relations support and lobbying expertise to get their treaties ratified. And as government officials in the Clinton administration, they found ways to implement policies to achieve treaty objectives – whether or not the treaty was ratified.

Treaty ratification is only the beginning. The U.N. Framework Convention on Climate Change was ratified in 1992, with little opposition. While broad objectives were established – to reduce carbon dioxide emissions to 1990 levels by the year 2000 – compliance was voluntary.

Like most, this treaty created a Conference Of the Parties, which is a separate assembly of delegates responsible for implementing and enforcing this particular treaty. The treaty also authorizes the creation of a “Secretariat,” which is the bureaucracy necessary to conduct the meetings and do all the work. The Secretariat consists of employees of the United Nations.

At the COP, each nation may have as many delegates as it can afford to send, but each nation gets only one vote, if ever a vote is taken. At the U.N., decisions are reached by consensus.

At the first meeting of the UNFCCC COP, in Berlin in 1995, it was no surprise when the delegates decided to amend the treaty with a “Protocol” that would make the treaty legally binding and set specific emissions limits for certain nations. At this first COP, and every other meeting since 1995, NGOs have been accredited by the Secretariat to attend and lobby the delegates to enact the rules of implementation that the NGOs specify.

The same procedure was used to convert the Vienna Convention on Ozone Depleting Substances from a voluntary agreement to a legally binding treaty. The same NGOs use the same procedure to promote their policies through virtually all environmental treaties.

These same NGOs promote their policies to the public, and to Congress, and with increasing frequency, fund this activity with government, or U.N. grants to “raise public awareness.” Some NGOs get grants to implement programs required by the treaties that they create.

The poor voter who elects representatives to enact public policy has no chance to hold his representatives accountable. Elected officials are often the last to know that policies implemented by the executive branch are designed to meet some “international obligation,” required by a U.N. treaty.

Every treaty that authorizes employees of the United Nations to preside over a COP, requires the surrender of some measure of national sovereignty. Hundreds of these treaties are already in place, and at least a dozen more are near implementation. The World Trade Organization in 1994, the Kyoto Protocol in 1997, followed by the International Criminal Court in 1998 – each represent an increasing consolidation of power by the United Nations. The ICC claims the power to enforce its provision in every nation on earth – even those that do not ratify the ICC Charter.

Visualize our national sovereignty as a truck, moving through history, carrying an egg for every law that has been enacted since our founding. Every U.N. treaty is a brick thrown into the truck. Eventually, our truck will be carrying a load of bricks – until the weight of the load crushes the eggs and the truck.