by Charles Whitaker (1944-2021)
June 26, 2002
Law is our genius and our Achilles' Heel. If the trends of international law in the 1990s are allowed to mature into binding rules, international law may prove to be one of the most potent weapons ever deployed against the United States.1
—David B. Rivkin, Jr. and Lee A. Casey,
"The Rocky Shoals of International Law," The National Interest
Everyone knows that "melting pot" America lacks a nationwide religion or a common ethnicity. Substituting for those "common denominators" is a grass-roots respect for the rule of law, a respect visible in no nation so clearly as in America. The respect manifests itself in conviction and confidence: Conviction that everyone, including the government, is under the law; Confidence that breaches in relationships can be resolved—if not healed—by due legal processes. That respect includes all types of law, including the international variety.
Friends and foes alike recognize that Americans hold this deep respect for law. They also recognize that law—especially international law—can be a powerful tool for controlling the United States.
[I]nternational law constitutes a real and immediate threat to U.S. national interests. The impetus for extending the reach of international law stems from both our allies and our adversaries, who have chosen to use it as a means to check, or at least harness, American power. . . . [F]rom the perspective of both [our allies and adversaries], the great "problem" of international affairs in the post-Cold War world is the unchallenged military, diplomatic, economic and even cultural predominance of the United States. Our global antagonists, particularly China, would like to see the United States disengage from world affairs. For our allies, who continue to depend far too much on U.S. military might to wish for a new American isolationism, the great danger has become American "unilateralism"—an all-purpose term for U.S. action not sanctioned by the "international community." They do not want to prevent U.S. global engagement; they want to influence and control it. . . . Both our allies and our adversaries understand the value of international law in achieving their ends.2
Ironically, America's own thrust toward globalism, her desire to play a commanding role in leading the "global village," has given rise to a "renaissance" in international law. It
is now an important and necessary force in the context of globalization, governing the increasingly transnational elements of virtually every area of legal regulation, including such domestic issues as family, criminal, commercial, and bankruptcy law.3
The danger lies in Americans' ignorance of the major difference between domestic and international law. Failing to grasp that difference, Americans, regardless of their views toward globalization, might be inclined to empower international courts and organizations to adjudicate domestic matters through systems of international law. "If law is good," Americans may reason, "having served us so well for so long, what can be wrong with moving law to an international level? That way, everyone will enjoy its benefits."
American Domestic Policy
Nevertheless, there is indeed a huge difference between domestic and international law: In the American Republic, domestic law is created by popularly elected legislatures that are ultimately accountable to the electorate. However, there is currently no international governing body, accountable to the governed, which enacts international law.
International law has quite a different genesis from domestic law. Historically, international law, commonly called the "law of nations," grew up very slowly in the form of treaties, conventions, and compacts between nations. The laws often dealt with commercial matters, use of sea and land passages, treatment of prisoners of war, and the like. This body of law "had little, if anything, to do with the relationship between citizens and their own government."4 That being the case, it did not represent an attack on any nation's sovereignty.
Actually, the Constitution of the United States recognizes this "law of nations." Treaties, upon ratification by the Senate, become domestic law and, by an act of Congress, can be suspended at any time. Becoming signatory to a duly ratified treaty, therefore, does not ipso facto constitute an abrogation of American national sovereignty.
More recently, however, the advocates of a global "community of nations" have promulgated two new doctrines that, taken together, assault the constitutional guarantee that American public domestic policy be determined by the consent of the governed.
1. The first doctrine is that of "universal jurisdiction." This doctrine holds that any state can prosecute international humanitarian violations wherever they occur, whether or not that state's own citizens are involved—any state, or even a low-level foreign magistrate, can begin a prosecution against American military or civilian officials.5
Under this doctrine, states—even when not signatory to treaties—are subject to vague legal norms devised by the "international community." Emphatically, this community is not elected by the people it purports to serve, nor is it accountable to them. Even staunch internationalists admit that "accountability deficits in increasingly powerful international institutions do exist."6 Robert Bork feels this "deficit" is of pivotal importance: "There can be no authentic rule of law among nations until nations have a common political morality or are under a common sovereignty."7 That day has not yet come.
2. The second doctrine undermining democratic institutions is the development of "customary international law." This body of law is not enshrined in duly ratified treaties or conventions of any type. Rather, "customary laws" seem to be "spawned overnight through nothing more tangible than the convening of scholarly conferences or the publication of papers."8 Non-Governmental Organizations (NGOs), such as Amnesty International, generally do the convening and publishing and have developed such clout that they are "able to push around even the largest governments."9 These secular organizations, which have "begun to act as an independent international force,"10 vociferously claim to be the legitimate conscience of the world, able to represent its interests fairly. What the NGO gang is not so vocal about admitting is the fact that NGOs are private organizations, accountable only to their own boards of directors. NGOs are special interest groups not accountable to the people. Licensing these organizations to legislate through the courts is ultimately to abolish the concept of "due process."
"Customary international law," unlike its predecessor, "the law of nations," touches the daily lives of domestic constituencies. Combined with the doctrine of "universal jurisdiction," it will empower international bodies to decide American domestic policy regarding an unending host of issues: abortion, parent-child relationships, educational and medical standards, environmental depredation, and capital punishment, to name only a few. Moreover, these bodies would make their unilateral decisions based upon current NGO thinking, not the customs and mores (whether right or wrong) of local citizens.
A privately sponsored and extremely prestigious treatise published in 1987 indicates the reach of these two doctrines. Restatement of Foreign Relations Laws propounds that international obligations of the federal government require the federal court system to impose its rulings on lower courts "even where there is no direct treaty or statute on which to rely but simply a federal court's notion of evolving international law."11 So powerful is this evolving "customary international law" that the federal court's judgments are binding "even where the Senate has not ratified the relevant treaty or has attached particular exceptions by reservation."12
Today's internationalists will overturn anything and everything to build their own tower of Babel. To them, even the United States Constitution "will have to adapt to global requirements sooner or later. . . . [E]conomic globalization will inevitably bring the United States in line."13 To globalists, the Constitution represents part of "the established order of things," which globalism's "great tide" will ultimately wear away.14
American Foreign Policy
International law threatens more than America's right to determine her own domestic policy. It also can constrain America in the conduct of her foreign policy.
Many "globalists" (especially the human rights groups) have a deeply political agenda, and one of its central elements is the gauzy notion that force and power in international affairs can be easily replaced by "the rule of law" enforced through multilateral organizations. Although wildly naïve (and therefore dangerous), one unmistakable objective is the limitation of American power through a network of legal prohibitions applied initially to the likes of Pinochet, but applied later to American presidents and secretaries of state and defense.15
The anti-Americanists' strategy is clear. Kofi Annan, the United Nations secretary-general, asserts that "the United Nations Security Council is the 'sole source of legitimacy on the use of force' in the world."16 Further, the UN claims that "the actions of individual civilian and military officials of states fall under the purview of international criminal jurisdiction."17 Under the doctrine of "universal jurisdiction," the International Criminal Court's Office of the Prosecutor could investigate and try any American military or civilian official, at any level, for supposed breaches of "customary international law." This being the case,
[I]nternational judicial bodies and interested states will be able effectively to shape American policy. An American president would be far less likely to use force if there were a genuine possibility that U.S. soldiers or officials, including himself, would face future prosecution in a foreign court. Both our allies and our adversaries fully understand the importance of molding the new international law to fit their needs, and its power as an effective weapon against the United States.18
To the extent that international law allows supranational, or extra-national, institutions to determine whether the actions of the United States are lawful, ultimate authority will no longer be vested in the American people, but in these institutions. Thus, . . . the new international law is profoundly undemocratic at its core. . . . If the aspirations of today's international law proponents were ever to prevail, the resulting international systems would not remotely resemble a community of democratic nations.19
To Cede or Not to Cede
Whether America actually cedes a substantive part of her sovereignty to a gang of international thugs bent on her destruction remains to be seen. Severe economic difficulties or a military setback may give rise to a renewed isolationism that would cut the NGO gang off at the pass. In such a scenario, the synergy generated by states-rights advocates and (neo)conservatives may turn America inward.
At any rate, it is important to recognize the scope of the problem. Jesse Helms, as usual, cuts to the chase, seeing clearly the different roads America and the European Union are taking—and the possible end of those roads:
. . . [I]f [the United Nations, through the ICC] seeks to impose its presumed power and authority over nations-states, I guarantee that it will meet stiff resistance from the American people. . . . Today, while America's friends in Europe cede more and more power to supranational institutions like the European Union, Americans are heading in precisely the opposite direction. The United States is in a process of reducing centralized power by taking more and more authority that has been amassed by the federal government and delegating it to the individual states where it rightly belongs. . . . If the United Nations does not respect American sovereignty, if it seeks to impose its presumed authority over the American people without their consent, then it begs for confrontation and, more important, eventual U.S. withdrawal.20
Withdrawal from the United Nations would signal America's disengagement from world affairs, her return to isolationism, and her reassertion of her right to exist as a sovereign nation. Historical evidence points to that reassertion by modern-day Israel before her final destruction. Both the Kingdom of Israel and the Kingdom of Judah ended with a bang, not a whimper. Both went down to defeat strongly stating their sovereign rights as nations.
» The machinations of Israel's last kings—Zechariah, Shallum, Menahem, Pekahiah, Pekah, Hoshea—indicate their unwillingness to cede Israel's sovereignty to the Assyrians voluntarily (see II Kings 15). None wanted the slavery implicit in the loss of sovereignty.
» Later on, Hezekiah resisted the arrogant threats of the Assyrians, who had the gall to announce to the defenders of Jerusalem Assyria's strategy to "come and take you away to a land like your own land. . . " (Isaiah 36:17).
» Still later, the conspiracies and rebellions of Zedekiah and his immediate predecessors on the Davidic throne appear to be affirmations of Judah's sovereignty. Judah's kings were unwilling to cede sovereignty to the Babylonish world government of their day.
These historical examples argue that Israel might yet again attempt to reassert her national sovereignty.21 However, it may be a while before rich America, ensnared in the materialistic trap of globalization, comes to understand that the loss of sovereignty means the loss of independence. Sovereignty is the "special product" of nations, something they generally guard very carefully:
What is called the international community is, among other things, a trade association of governments. Each has an interest in preserving its own prerogatives, and so is disposed to protect the prerogatives of the others. To put it differently, the international community may be seen as a cartel, the members of which seek to ration, so as to preserve the value of, their common product: sovereignty.22
Will America guard her sovereignty? Not if the wrong-headed thinking of leaders like Madeleine Albright prevails. The former Secretary of State believes that "great nations . . . at various times cede various portions of [their sovereignty] in order to achieve some better good for their country."23 Rivaling Madeleine's madness is that of Robin Cook, Britain's Foreign Secretary: "It is no longer sufficient for states to claim that they have the sovereign right to decide what is going to be legal and what is going to be illegal. The international community can both determine and enforce that."24
The peaceful, uncoerced cession of sovereign power runs so against the grain of human nature—seems so suicidal—that one questions if it is even possible. Yet, history shows human nature to be irrational as often as not. That being the case, ceding national prerogatives is conceivable, even though it is evidently so averse to the biological drive for self-preservation. Israel, Manasseh included, may put on the "Golden Straitjacket," the term one analyst uses to define the restraints a nation places on its action to enrich itself in the global market.25 America may blindly cede much of her sovereignty to international organizations in the interests of reaping the economic benefits of leading a "global village."
Sovereignty at the End
God's Word gives us a picture of the shape of nations in the final days. That picture, emphatically, is not one of a single world government. Israel's dream of leading a unified world will become the nightmare of Jacob's Trouble. With the coming of that nightmare, Israel will be out of the picture as a "mover and shaker" of world affairs until the Millennium.
God's Word shows that even the European power structure, which overturns and then succeeds Israel's world hegemony, is unable to act unilaterally, that is, as a single world government. The Beast has at least one powerful rival. The book of Revelation tells us the last days will see at least two major coalitions of sovereign states.
One such coalition is Occidental. The angel explains the ten horns of the Beast to John:
And the ten horns which you saw are ten kings who have received no kingdom as yet, but they receive authority for one hour as kings with the beast. These are of one mind, and they will give their power and authority to the beast. These will make war with the Lamb. . . . (Revelation 17:12)
These ten kings receive authority for a short time with the Beast. Other translations use the terms along with the Beast or in company with the beast. The Beast appears unable to rule unilaterally. He makes common cause with other kings, collaborating with them to fight a mutual "enemy," Christ. Having one mind, they give their "power and authority" to the Beast. Since human nature seeks to preserve itself, it is clear that these kings plan to retrieve their prerogatives later. Their relinquishment of authority is in their minds temporary, only an expedient to achieve a common goal.
The other coalition, the Beast's rival, is apparently made up of Oriental nations: "Then the sixth angel poured out his bowl on the great river Euphrates, and its water was dried up, so that the way of the kings from the east might be prepared" (Revelation 16:12).
Unknown to many Americans, that coalition has been ongoing since at least 1644, the start of the Qing Dynasty. It was then that a small and obscure—but dedicated and ruthless—group of outsiders, the Manchus, successfully infiltrated Han China and, over two centuries, absorbed Manchuria, Xinjiang, Tibet, Mongolia, and Taiwan into their realm. From at least that time, China has not been a single ethnic bloc, but a pluralistic federation of peoples and religions, from the Turkic Muslims in the north to the Buddhists further south. To this day, the additions of the Qings basically define the borders of China, with the principal exceptions of Mongolia and, of course, Taiwan.26 This pluralism will define the China of our time.
More coalitions are pending. The reunification of the Koreas is foregone, a final—if delayed—conclusion to the Korean Conflict 50 years ago. Far more important, however, are the far-reaching plans for economic consolidation. In progress is the "world-shaking development" of an East Asian free trade area—Japheth's answer to NAFTA. It would ultimately include the Southeast Asian countries, along with Japan, China, and South Korea. "For the first time in history, [East Asia] is creating its own economic bloc, which could include preferential trade arrangements and an Asian Monetary Fund (AMF)." The AMF "would hold monetary reserves of almost $1 trillion—the largest in the world and far larger than those of the United States or the countries of the eurozone. . . . The AMF could clearly rival the International Monetary Fund."27
Clearly, China is not acting alone when she confronts the European power nexus.
Notice that the noun kings in Revelation 16:12 is plural, indicating that the parts of the coalition maintain a degree of autonomy. The plural form, kings, appears elsewhere near the end of Revelation, suggesting a number of states—the sovereignty cartel, ruled by a number of kings. No matter how hard man tries, he will fail to build a "one world government." Only Christ will do that.
» Revelation 16:14-16 tells of demonic spirits sent out "to the kings of the earth and of the whole world, to gather them to the battle of that great day of God Almighty. . . . And they gathered them together to the place called in Hebrew, Armageddon." The setting is clear: This is the battle of the last day, in which the kings and armies of all the world's nations take part.
» Revelation 19:19 tells the same story: "And I saw the beast, the kings of the earth, and their armies, gathered together to make war against Him who sat on the horse and against His army."
The Church as Bellwether
Some have observed that God does to national Israel what He has first done to His church. That is, that God's church trail-blazes, as it were; the church goes through what national Israel will later go through. This seems to be the case with the twin forces of globalism and tribalism now at work in our world.
» Globalism: Not long ago, we in the church lived through a period of globalism. From the early 1950s into the 1980s, God built a global church. Some nations stood out of it, but we still called this global phenomenon a worldwide church. God used His people in Joseph, most notably in Manasseh, to drive and fund this "globalization" effort.
The parallel with national Israel is unmistakable. Analysts view 1987—a year after Herbert Armstrong's death—as the year the current "push" for globalism began. Since about that time, God has used Manasseh, with its almost incalculable wealth and power, to "push" (Deuteronomy 33:17) globalism throughout the developed world. Like the church's experience during the decades before, some nations are standing out of the integration process, resisting it. We once called them "rogue nations"; now the term "axis of evil" is in vogue. In spite of this axis, the march toward globalism continues.
» Tribalism: Currently, however, we in the church are experiencing our own type of tribalism, as the once consolidated church breaks up into many small prices. The church's period of "globalization" seems over, at least for now. Relentless fragmentation seems to be the order of the day. We measure our "tribalism" with what we call "disunity."
Likewise, the globalization pushed by Manasseh today shows every sign of "backfiring" because of the growing opposition to a worldwide governance. The Islamist attack on Manasseh in late summer 2001 is an example of a subnational and disadvantaged group, al-Qaida, displaying its rejection of globalization by striking at the symbols of the international economic and military system, the World Trade Center and the Pentagon respectively. The trend toward a fragmenting tribalism continues unabated, as folk everywhere are increasingly identifying with local ethnic or religious groups. The result is disunity and fragmentation. Globalization seems, at some levels, to be retrenching. National Israel will experience the final, frightful culmination of tribalism soon enough, in national dissolution during Jacob's Trouble.
Globalization is here today, gone tomorrow. Likewise, tribalism.
Plans That Will Never Be
God directs Ezekiel 20, a blend of history and prophecy, to modern Israel, a people who in their collective mind aim to become "like the Gentiles, like the families in other countries, serving wood and stone" (verse 32). What better description of America today, pushing her ideologies (most notably, democracy and capitalism), culture, entertainment, and wares on the world, all the while falling willy-nilly for its false religions!
Anciently, God allowed the rebellion of Israel to go only so far before He "acted for [His] name's sake, that it should not be profaned in the sight of the Gentiles" (verse 22). This is the pattern God has established. He will yet perform His "oath to those in the wilderness," eventually scattering modern-day Israelites "among the Gentiles and dispers[ing] them throughout the countries" (verse 23). However, we may take comfort that He will intervene on behalf of His people, ultimately gathering a humbled remnant to serve Him as He furthers His plans for humanity's salvation.
Right now though, America is anything but humble. Hubris better describes her character, as evidenced by ordinary citizen and elite alike triumphing in her status as "the sole hegemon of the world," "the indispensable nation." The aim behind it all is a desire to lead a global "community of nations," a modern Babel of nations in rebellion against God. In verse 32, however, He utters the final word: "What you have in your mind shall never be."
1 David B. Rivkin, Jr. and Lee A. Casey, "The Rocky Shoals of International Law," The National Interest, Winter 2000/2001, p. 35.
3 Peter J. Spiro, "The New Sovereigntists: American Exceptionalism and Its False Prophets," Foreign Affairs, November/December 2000, p. 9 (emphasis added). Mr. Spiro is Professor of Law at Hofstra University. Foreign Affairs is the principal organ of the Council on Foreign Relations.
4 Rivkin and Casey, ibid., p. 36.
5 Ibid., p. 40.
6 Peter J. Spiro, ibid., p. 12.
7 Robert Bork, "The Limits of 'International Law'," The National Interest, Winter 1989/1900, p. 10.
8 Rivkin and Casey, ibid., p. 37.
9 Jessica Mathews, Foreign Affairs, January/February 1997, p. 53. Ms. Mathews is the president of the Carnegie Endowment for International Peace.
10 Richard Falk and Andrew Strauss, "Toward Global Parliament," Foreign Affairs, January/February 2001, p. 214. Richard Falk is Albert G. Milbank Professor of International Law and Practice at the Woodrow Wilson School of Public and International Affairs at Princeton University. Andrew Strauss is Professor of International Law at Widener University School of Law.
11 Jeremy Rabkin, "International Law vs. the American Constitution: Something's Got to Give," The National Interest, Spring 1999, p. 30 (emphasis added). Mr. Rabkin teaches international law and United States constitutional law at Cornell University. His most recent book is Why Sovereignty Matters.
12 Rabkin, ibid., p. 39.
13 Spiro, ibid., p. 13.
14 William Clinton, quoted by Lawrence F. Kaplan, "A Bridge Too Far," The National Interest, Fall 1999, p. 135.
15 John R. Bolton, "Bring Back the Laxalt Doctrine," Policy Review, August/September 2000, p. 3. Mr. Bolton, formerly a Senior Vice President of the American Enterprise Institute, is currently Under Secretary of State for Arms Control and International Security.
16 Jesse Helms, "American Sovereignty and the UN," The National Interest, Winter 2000/2001, p. 31 (emphasis added). Jesse Helms (R-NC) is a former chairman of the U.S. Senate Committee on Foreign Relations.
17 Rivkin and Casey, ibid., p. 37.
18 Ibid., p. 40.
19 Ibid., p. 38 (emphasis added).
20 Helms, ibid., p. 33-34 (emphasis added).
21 Of course, sovereignty does not mean success. Those last kings of Israel and Judah will attest to that in the future. In the long run, a nation gains and maintains its sovereignty through righteousness. See Helms, ibid., p. 32. The "principled projection of force is the only thing that will ensure peace and security on the international scene in the future" (emphasis added).
22 Michael Mandelbaum, "The Future of Nationalism," The National Interest, Fall 1999, p. 17.
23 Washington Post, February 23, 1999.
24 Quoted by Robin Harris, "Blair's 'Ethical' Policy," The National Interest, Spring 2001, p. 25 (emphasis added). Mr. Harris was director of the Conservative Research Department and a member of Prime Minister Margaret Thatcher's Downing Street Policy Unit.
25 Thomas Friedman uses the term in his best seller, The Lexus and the Olive Tree. Once in place, "two things tend to happen: your economy grows and your politics shrinks."
26 Charles Horner, "China and the Historians," The National Interest, Spring 2001, p. 86.
27 C. Fred Bergsten, "America's Two-Front Economic Conflict," Foreign Affairs, March/April 2001, p. 16. Mr. Bergsten is Director of the Institute for International Economics and former Assistant Secretary of the Treasury (1977-1981) and Assistant for International Economic Affairs to the National Security Council (1969-71).