Introduction
II. The Charter of the United Nations is Illegitimate, Having
Never Been
Lawfully Ratified
III. The Charter of the United Nations Unlawfully Delegates
Congressional
and Presidential War Powers
IV. The United Nations General Assembly Has no Lawful Power
to
Require the United States to Pay Dues to the United
Nations
V. The Charter of the United Nations Unconstitutionally Usurps Power
Reserved to the States by the Tenth Amendment
VI. Conclusion:
H.R. 1146 – The American Sovereignty Restoration
Act of 2001 is the Only Viable Solution to the Continued
Abuses
of the United Nations
I.
Introduction
Over 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 power
(Article II, Section 2) of the Constitution of the United
States of America (Constitution), the president of
the United States signed and the United States Senate
ratified the Charter of the United Nations.
Yet, as Edwin S. Corwin’s classic study of The
President: Office
and Powers, has observed, “the debate in government
circles over the United Nations’ charter scarcely
touched on the question of the constitutional power of the
United States to enter such an arrangement....” E.
Corwin, The President 248 (5th Rev. ed.
1984) 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 Nations
was ratified, the president of the United States would act independently of Congress pursuant to
his executive prerogative to conduct the foreign affairs
of the nation. Others
insisted, however, that Congress play the major role of
defining U.S. foreign policy, especially because that
policy implicated the power to declare war, a subject expressly reserved to
Congress by Article I, Section 8 of the Constitution of
the United States of America.
At first, it appeared that
Congress would take control of America’s participation
in the United Nations. By
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.”
As Corwin has pointed out “the controlling
theory of the act is that American participation in United
Nations shall rest on the principle of department
collaboration, and not on an exclusive presidential
prerogative in the diplomatic field.”
Id., at 251
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 Clinton have again and
again presented Congress with military faits accomplis,
thereby forcing Congress’ hand to support United
States
troops or risk the accusation of having put the nation’s
servicemen and servicewomen in unnecessary danger.
Instead of seeking congressional approval of the
use of 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 erosion of
congressional power, and hence United States sovereignty, has not
been accidental. The seeds were planted from the beginning, both in the text
of the Charter of the United Nations and in the vision of its most ardent
supporters. Article
24 of the Charter of the United Nations proclaimed that, as necessary
prerequisite for “prompt and effective action,” the
members of the United Nations “confer [red] on the Security
Council primary responsibility for the maintenance of
international peace and security,” agreeing “that in
carrying out its duties under this responsibility the
Security Council acts on their behalf.”
With such expansive language as this, it is not
surprising that, even before the charter was ratified,
President Franklin Delano Roosevelt expressed hope that
some day “the lion’s share” of “the direction of
American foreign policy” would pass gradually to the
United Nations Security Council.
Id., at 249-50
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 United Nations 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
policies, 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 Charter specifies (Art. 2, Para. 7) 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 UN intrusions.
J. Rabkin, Why Sovereignty
Matters 31 (AEI Press, Washington, D.C.: 1998).
The release in July
2000 of the United Nations Human Development Report 2000 provides
unmistakable evidence of the universality of the United
Nation's jurisdictional claims. Boldly proclaiming that
“[g]lobal 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
internationalization of domestic policy-making, United
Nations Secretary General Kofi Annan wrote:
At
the dawn of the 21st century the United Nations has
become
more central to the lives of more people than ever....
Above all...
we have committed ourselves to the idea that no
individual...shall
have his or her human rights abused or ignored.
This 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...that
must and will take precedence over concerns of state
sovereignty. UN
Human Development Report 2000 31
(July 2000) [Emphasis added.]
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.
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 Nation's 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 very
existence, the Charter of the United Nations of which - from the beginning
- was designed to displace the national charter of
the United States of America - the
Declaration of Independence and her national covenant -
the Constitution of the United States of America.
The American people have not, however, ever
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 United States,” as required
by Article VI of the Constitution of the United States of
America.
II. The Charter of the United Nations is Illegitimate, Having
Never Been Lawfully Ratified
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 as 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.
4 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 war...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 defence, 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 United
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.
Even considering the Charter
of the United Nations as a treaty does not save it.
The Charter of the United Nations would still be constitutionally
illegitimate and void, because it transgresses the Constitution
of the United States of America in three major respects:
(1)
It unconstitutionally delegates the legislative power
of
Congress to initiate war and the executive power of the
president to conduct war to the United Nations, a foreign
entity;
(2) It unconstitutionally transfers the exclusive
power to
originate revenue-raising measures from the United
States
House of Representatives to the
United Nations General
Assembly; and,
(3) It unconstitutionally robs the states of powers
reserved
to
them by the Tenth Amendment of the Constitution of the
United States of America.
III.
The Charter of the United Nations Unlawfully Delegates Congressional
and Presidential War Powers
Article 43 of the Charter
of the United Nations requires “[a]ll Members..., in order to
contribute to the maintenance of international peace and
security, undertake to make available to the Security
Council, on its call and in accordance with s special
agreement or agreements, armed forces, assistance and
facilities...necessary for the purpose of maintaining
international peace and security.”
To make sure that the president did not act
unilaterally to place United States armed forces under
United Nations command
“to maintain or restore international peace and
security,” the United States Congress passed the United Nations
Participation Act of 1945.
That act provides that no United States armed forces may be
employed in a United Nations peacekeeping operation without the
specific approval of the terms of agreement by Congress. 22
U.S.C. Section 287(d)
At present, Congress has never entered into an
Article 43 agreement;
yet, presidents from Truman through Clinton have deployed
U.S. troops in service to the United Nations
How can this be explained?
It began with the Korean War when President Truman
“committed American forces to war on U.S. authorization
but without a Congressional declaration”:
A
State Department memorandum claimed that as
Commander in Chief the
President had full control over
U.S. forces and could employ
them without Congressional
approval to `protect “the
broad interests of American
foreign policy.”
Tuomala, “Just Cause: The Thread that Runs
so
True,” 13 Dick. J. Int’l. Law 1, 38 (1994)
So ingrained has this
claim of presidential prerogative become that President
George Bush remarked to the Texas State Republican
Convention in Dallas, Texas on June 29, 1992, that he
“‘didn’t have to get permission from some old goat
in the United States Congress to kick Saddam Hussein out
of Kuwait.’” 28 “Weekly Comp. Pres. Doc.” 1119
(June 29, 1992) Although President Bush had only contempt
for the U.S. Congress in his decision to wage war on Iraq,
he assiduously courted the United Nations Security Council for
support – and for good reason.
Not only did President Bush need the political
support of the world community, but also he sought
legitimacy for his actions under the Charter of the United
Nations.
According to Article 2(4)
of the Charter of the United Nations, members are required to “refrain in
their international relations from the threat or use of
force against the territorial integrity or political
independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations”
[Emphasis added.]
According to Article 39 of the Charter of the
United Nations, “the
Security Council,” not individual states or collections
of states, “determine[s] the existence of any threat to
the peace, breach of the peace or act of aggression” by
any state and the United Nations Security Council, not any individual
states or collections of states, alone “decide[s] what
measures shall be taken,” including the use of force,
“to maintain or restore international peace and
security.” Article
51 of the Charter of the United Nations allows for only one exception:
national self-defense “if an armed attack” has
occurred against a member, and even then, the member state
must defer to the United Nations Security Council once it steps in
with “measures necessary to maintain international peace
and security.” In
short, the national interests of a member state must
always be subordinate to the collective interests of the
members, as determined by the United Nations Security Council.
Without question this
subordination of America’s national interests to those
of the world community as determined by the United Nations
Security
Council is an unconstitutional delegation of the
legislative power to declare war and the executive power
to conduct war.
As Cornell University government professor Jeremy
Rabkin observed in 1998, “the Constitution presumes
American sovereignty.”
Rabkin, Why Sovereignty Matters, supra,
at 12 As
Joseph Story wrote over one hundred years earlier: “A
treaty to change the organization of the government, or
annihilate its sovereignty, to overturn its republican
form, or deprive it of its constitutional powers, would be
void; because it would destroy, what it was designed
merely to fulfill, the will of the people.”
II J. Story, Commentaries on the Constitution,
Section 1508 (5th ed. 1891) Such views follow logically
from the text of Article VI which states that, while the
Constitution of the United States of America is per se the supreme law of the
land, only treaties “made...under the authority of the
United States” may be the supreme law.
As Henry St. George Tucker wrote at the turn of the
twentieth century:
The
supremacy herein declared of the Constitution forbids the
treaty-making power to annul any of its provisions.
Its supremacy
would not permit the treaty power to
abrogate or annul other
powers granted to any branch of
the Federal Government.
The
long list of enumerated powers granted by this
instrument to
the Congress cannot be absorbed or
annihilated by the
treaty-making power because these
powers, being parts of the
Constitution, are supreme under
Article VI. H.
St. G. Tucker,
Limitations on the Treaty-Making Power
Under the Constitution
of the United States Section 70
(Little, Brown, Boston: 1915)
According to Article I,
Section 8 of the Constitution of the United States of
America, it is Congress, not the president - and certainly not the
United Nations Security Council - that has been granted the power to initiate
the use of armed force in pursuance of American
foreign policy. The
president may only use such armed force in response
to an imminent threat of invasion (See generally,
Tuomala, “Just War,” supra, at 30-35, 41-45),
for Congress alone has the power:
(1)
to define and punish Piracies and Felonies
committed
on
the high Seas, and Offenses against the Law of Nations;
(2)
to declare war, grant letters of Marque and Reprisal, and
make Rules Concerning Captures of Land and Water;
(3)
to raise and support Armies;
(4)
to provide and maintain a Navy;
(5)
to make Rules for the Government and Regulations of the
land and naval forces; and,
(6)
to make all Laws which shall be necessary and proper
for
carrying into Execution the foregoing Powers....
This amalgamation of
congressional powers designed to initiate the use of armed
force - whether it be a little or a lot - in the service
of America’s national interests in foreign affairs
cannot be delegated by treaty to any foreign government or
entity. Yet
that is exactly what the United States Senate did in 1945 when it
ratified the Charter of the United Nations and that is exactly what the
Congress did when, subsequent thereto, it enacted the
United Nations Participation Act.
In the United States Senate debate
over both the Charter of the United Nations and the enabling act, a
minority of senators contended that Chapter VII of the
Charter of the United Nations constituted an unconstitutional delegation of
congressional war powers because the articles contained in
Chapter VII generally conferred upon the United Nations Security
Council authority to initiate armed force to maintain the
international peace and security, and because Article 43
specifically obligated the United States of America to participate in such
armed- force initiatives.
See Stromseth, “Rethinking War Powers:
Congress, the President, and the United Nations,”
81 Georgetown L. J. 597, 601-03, 614-18 (1993).
In response, a bipartisan United States Senate majority contended
that the only authority conferred upon the United Nations Security
Council was the limited used of force in the form of a
“police action,” not full-scale mobilizations
constituting a “war.”
Id., 81 Georgetown L. J. at 607-12
Pursuant to this
distinction between “police action", on the one hand, and
“war,” on the other, Congress enacted the United
Nations Participation Act of 1945 authorizing the president to
negotiate an agreement with the United Nations Security Council,
making a limited number of American armed forces, after
approval by Congress, available for the United Nations Security Council to use as it sees fit under
Article 42 of
the Charter of the United Nations. Id.
at 614-18 Only
a handful of senators dissented. Senator Burton Wheeler of
Montana warned his colleagues that “[w]e are fooling
ourselves and fooling the people of the country when we
say that we will give to the President power to put down
aggression with a small force, and not at the same time
delegate to him the full power to declare war at any
time.” 91
CONG. REC. 11,393 (1945)
Senator Wheeler’s warning
soon proved prophetic.
Within five years after enactment of the United
Nations Participation Act, without the approval of
Congress, President Truman launched a full-scale war in
Korea, under the aegis of the United Nations Security Council.
To justify his end run around Congress, the
president called the Korean War a “police action.”
Had there been no Charter of the United Nations or any
United Nations Security
Council, President Truman would have had no
political or legal ground on which to stand.
As Ohio Senator Robert Taft proclaimed, “the
Korean situation is changed by the obligations into which
we have entered under the Charter of the United
Nations.” 96
CONG. REC. 9323 (1950)
Indeed, the very idea that the employment of armed
force in the name of the United Nations could be called a “police
action” is was totally dependent upon the premise that
the Charter of the United Nations created a new world-wide government
entity with jurisdiction to use armed force, governed by
the same rules that apply to a single nation’s domestic
police force.
As international legal
scholar, Jeffrey Tuomala, has written, however, “there
is no constitutional basis for distinguishing between
police actions and war.” Tuomala, “Just War,” supra, 13 Dick. J.
Int’l. Law at 38 It is, therefore, constitutionally
impossible for Congress to retain its various war power
initiatives and concur with Article 42 of the Charter of
the United Nations, even if the United Nations Participation Act is
complied with, because Article 42, by design and effect,
confers congressional power to initiate war upon the
United Nations Security Council.
Not only is such a
conferral an unconstitutional delegation of legislative
power to initiate war, but it is an unconstitutional
delegation of the president’s exclusive power to act as
the commander in chief of the armed forces of the United
States of America and
to appoint officers, with the advice and consent of the
United States Senate, to exercise the executive power of the United
States of America.
On May 3, 1994, President
William Clinton signed Presidential Decision Directive 25
(PDD-25), a policy directive outlining the
administration’s position on reforming multilateral
peace operations. One
of the purposes of PDD-25 is to clarify United States’
policy regarding command and control of United States’
military personnel participating in multilateral
peacekeeping operations, including those under Chapters VI
and VII of the Charter of the United States.
In order to preserve the president’s role as
commander in chief, and at the same time to permit the
placing of American armed forces under United Nations' command,
PDD-25 attempts to distinguish between “command” -
defined as “the authority to issue orders covering every
aspect of military operations and administration,” and
“operational control” - defined as a “subset of
command” limited to “the authority to assign tasks to
United States units led by United States officers,” but excluding the
authority to alter the composition of units, discipline
personnel, confer promotions, redistribute supplies,
separate units or to “change the mission or deploy U.S.
forces outside the area of responsibility.”
In making this distinction between “command”
and “operational control,” the Clinton administration
hoped to avoid the claim that by placing United States military
personnel under the command of a foreign government
military officer, the president would no longer be the
commander in chief of the United States military personnel so
assigned.
The office of commander in
chief, however, requires the president to be both in
command and in operational control.
The office contemplates that the president could
“take actual command over troops in the field,” as
well as “to direct the movements of the armed forces,
even to the extent of ordering them to deploy outside the
United States in time of peace.”
Thus, “all phases and aspects [of] control over
U.S. forces is vested [by the Constitution of the United
States of America] in the
President.” J.
Snyder, “‘Command’ versus ‘Operational Control’:
A Critical Review of PDD-25," p. 6)
Therefore, the president may delegate
“operational control” only to officers who are
accountable and responsible solely to the
president. That
can be assured only if the officer in “operational
control” of troops in the field has sworn an oath to
uphold the Constitution of the United States of America, not one to uphold the
Charter of the United Nations, as is the case of United
Nations commanders in the field
who are, after all, ultimately accountable to the United
Nations' secretary general. “Operational
control,” then is not “merely a ‘subset of
command,’ but an inseparable component of it which
cannot be relinquished because of the break in the chain
of accountability.”
Id.
Such a break in the chain
of command not only results from “the command structure
employed in traditional peacekeeping operations” of the
United Nations, but from the “collective security scheme
envisioned by Article 43 and Article 47" of the
Charter of the United Nations:
Once
called by the Security Council for service in an
enforcement
action, forces pledged under an Article 43 agreement would
come
under the political and strategic control of the Security
Council,
which would then be responsible for the strategic and
political
decisions regarding the use of those forces.
Although PDD-25 attempts to
put a wedge between the United Nations Security Council and the
president by authorizing the United States officer commanding the
unit of United States military personnel to submit a request to the
president to countermand a United Nations commanders’ order,
nonetheless such authority is tantamount only to a veto of
that order. The
president cannot - under the PDD-25 policy or under the Charter
of the United Nations - act affirmatively, having relinquished that
authority to the United Nations secretary general and the
United Nations Security Council.
Hence, deployment of United States armed forces - even under
the PDD-25 directive - fails to preserve the full
constitutional powers of the president as commander in
chief. For as
the United States Supreme Court observed in Fleming v.
Page, 50 U.S. [9 How.] 603, 615 (1850), the president
as commander in chief is “authorized to direct
the movements of the naval and military forces placed in
his command, and to employ them in the manner that he
may deem most effectual....” [Emphasis added.]
It is true that, as
commander in chief, the president need not personally
exercise all of the powers conferred upon him.
But he may only delegate those powers to executive
officers appointed in accordance with the procedures
prescribed in Article II, Section 2 of the Constitution of
the United States of America that requires military officers be
appointed with the advice and consent of the United States
Senate.
Weiss v. United States, 510 U.S. 163 (1994)
Such a constitutional requirement is designed to
ensure that the military be operated in such a manner as
to be politically accountable to the American people
through their elected representatives.
Just as the Constitution of the United States of
America does not permit Congress “to shift burdens and responsibilities of
federal programs on the states,” it does not permit the
president to shift his burdens and responsibilities on
foreign entities, including the United Nations and its officials. Otherwise, presidential accountability is diminished, thereby
undermining the constitutional principle of vesting all of
the executive power in a single executive officer.
Printz v. United States, 521 U.S. 898,
936-37 (1997); J. Rabkin, Why Sovereignty Matters, supra, at
18-20.
IV. The United Nations General Assembly Has no Lawful Power
to Require the United States to Pay Dues to the United
Nations
Since the mid-1980's, the Congress
of the United States of America has sometimes refused, and
only reluctantly
paid, its dues and other mandatory obligations to the
United Nations. During this period, the
United States grew increasingly
weary of paying 25% of the United Nations' regular budget, not to
speak of the additional monies spent on United Nations peacekeeping
operations, while at the same time it had only one vote in
the United Nations General Assembly, the body responsible for
developing the United Nations' budget.
Finally, having extracted promises of cost
reductions and other budget reforms, including the
formulation of the regular budget by consensus instead of
a two-thirds vote, Congress appropriated nearly a
billion dollars to pay its arrears and current
obligations. Even
if these promised reforms and budget cutbacks are
affected, they will not cure the constitutional defect in
the process by which the dues and other mandatory
obligations of the United States to the United
Nations are determined.
According to Article 17(1)
of the Charter of the United Nations, the United Nations General Assembly has the
final authority to “approve the budget of the
Organization.” According
to Article 17(2) of the Charter of the United Nations, the
United Nations General
Assembly also determines the assessment upon each United
Nations member to meet the expenses of the organization.
Finally, according to Article 19 of the Charter of
the United Nations any member state “which is in arrears in the
payment of its financial contributions to the Organization
shall have no vote in the General Assembly if the
amount of its arrears equals or exceeds the amount of the
contributions due from it for preceding two full
years, unless the General Assembly is “satisfied that
the failure to pay is due to conditions beyond its
control.” [Emphasis
added.] The
“basic fiscal law of the Organization,” then, is that,
under Article 17, the United Nations General Assembly makes the dues
assessment obliging each nation to pay a certain amount in
dues, and noncompliance with that assessment automatically
triggers the penalty set forth in Article 19.
The U.N. Charter Commentary, supra, at
295, 305-13, 327-39
Currently, the United
Nations General
Assembly calculates the assessment to be exacted upon a
member state according to that member’s “capacity to
pay,” subject to a cap of 25% of the United Nations' regular
budget. Id.,
at 309-10 To
determine that “capacity,” the United Nations General Assembly
takes into account “the aggregate of national income,
that is, the totality of the national production of goods
and services....”
To “prevent anomalies in the assessment resulting
from statistics,” however, the United Nations General Assembly
considers a number of other factors, including
“comparative per-head income,” “ability of members
states to secure foreign currency,” comparative level of
economic development and “state indebtedness.”
Id., at 309
In essence, the United
Nations' assessment system is comparable to a graduated national
income tax, with deductions authorized for certain
national expenditures and outstanding obligations.
And while this tax does not fall individually upon
the citizens of each member state, it is measured, in
part, by “the comparative per-head income” of the
citizens of each member states, resulting in a higher
assessment imposed upon states whose citizens have a
relatively high personal income, other factors of national
indebtedness and state of economic development
notwithstanding. In
other words, the assessment by the United Nations General Assembly
constitutes an indirect tax upon the people of each member
state, not just upon the state itself.
As a “revenue raising”
mechanism, the current United Nations' mandatory dues assessment
process violates Article I, Section 7, Clause 1 of the Constitution
of the United States of America which provides that “All Bills
for raising Revenue shall originate in the House of
Representatives....”
What this means is that it is the United States House, and
only the United States House, which is authorized to make the
initial decision to raise revenue to support the
programs and operations of the United States government.
Article 17 of the Charter of the United Nations, by design and
effect, transfers that initiative power from the United
States House to the United Nations General Assembly insofar as revenues are
to be raised to support America’s participation in the
programs and operations of the United Nations.
This unconstitutional transfer of the power to
originate revenue-raising bills to support the
United States involvement in the United Nations has had significant legal and
political consequences.
Legally, although Congress
may refuse to appropriate funds in the amount of the
“tax” determined by the United Nations General Assembly, it
would do so at the risk of losing United States voting rights in
the United Nations General Assembly.
According to Article 19 of the Charter of the
United Nations, such
voting rights are automatically lost upon noncompliance
with its terms. This
automatic penalty was placed in the charter
specifically to remedy a serious shortcoming of the League
of Nations, “considerable arrears [having]
accumulated” for nonpayment of the member obligations
which could only be enforced by “diplomatic ways and
means.” Id.,
at 295, 328; see generally, Galey, “Reforming the
Regime for Financing the United Nations,” 31 Howard
L. J. 543 (1988)
Congress
politically risks moral disapprobation if it fails to pay
its “debts” to the United Nations.
This moral risk has proved sufficient to persuade
many members of Congress and the American people that the
United States must pay its “U.N. debt arrearage, notwithstanding
lingering doubts about the prospects of a “reformed”
United Nations. In
contrast, Congress or the president may suspend
with comparative ease the United States “voluntary
contributions” to United Nations programs funded outside the
regular budget established by the United Nations General Assembly.
For example, the Reagan administration, with
relative impunity, unilaterally discontinued United States
voluntary contributions to U.N.I.C.E.F. on grounds that its
activities did not conform to the foreign policy goals and
objectives of the United States.
There is, however, more at
stake than just the potential legal and political fallout
stemming from United States resistance to United Nations monetary
importunities. By
permitting the United Nations General Assembly to decide how much
the United States owes, the Charter of the United Nations undermines a bedrock
principle of the American republic - “no taxation
without representation.”
In the beginning, America’s founders resisted the
imposition of a tax upon the American people imposed by
the English Parliament because Parliament was
not composed of any representative elected by the people
of the English colonies in the New World.
Resting upon the Magna Carta, then over 560 years
old, America declared her independence as a sovereign
nation because King George III and the English Parliament
insisted on taxing the American people without their
consent.
Today, like the 18th
century English Parliament, officials that are not elected
by the American people form the United Nations General Assembly.
Yet, like that English Parliament, the United Nations General
Assembly insists that is has the right to impose upon the
American people tax assessments to support policies
adopted by that assembly.
It is time to return the power to tax the American
people for support of the United Nations to the
United States House of
Representatives and United States Senate that, alone, are composed of
the elected representatives of the American people.
In light of Article 17 of the Charter of the United
Nations, there
appears to be only one way to accomplish this objective:
complete withdrawal from the United Nation by the
United States of America.
V.
The Charter of the United Nations Unconstitutionally Usurps Power
Reserved to the States by the Tenth Amendment
From the outset, the Charter
of the United Nations has embraced goals and objectives that, if
implemented, transfer powers reserved to the states by the
Tenth Amendment of the Constitution of the United States
of America.
The charter’s preamble, for example, does not
limit the “ends” of the charter to the maintenance of
international peace and security among the nations of the
world, but extends the reach of the U.N. to the
“employ[ment] [of] international machinery for the
promotion of economic and social advancement of all
peoples.” To
that end, the Charter of the United Nations contains an entire chapter
(Chapter IX) of articles providing for the establishment
of international agencies to promote worldwide economic,
social, health, cultural, and educational policies.
See Articles 55-60.
Chapter X of the Charter of the United Nations additionally provides
for the creation of the Economic and Social Council within
the United Nations organization similarly to promote a worldwide
agenda of economic, social, health, cultural and
educational policies.
See Articles 61-72.
In response, the United
States government over the years has voluntarily cooperated in
these international efforts, notwithstanding their adverse
impact upon the exercise of traditional powers exercised
by the state and local governments.
Congress, for example, has appropriated
hundreds of millions of dollars to support the United
Nations Environment Fund, has authorized United States membership in the
United Nations Educational, Scientific, and Cultural Organization,
and the World Health Organization without consideration of
the constitutional limitations upon congressional powers
in these subject matter areas. Such wholesale delegation of power to influence domestic
health, welfare and safety policy cannot be justified
under the treaty power set forth in Article II, Section 2
of the Constitution of the United States of America. As Joseph Story observed in his Commentaries on the
Constitution:
...[T]hough
the [treaty] power is...general and unrestricted, it
is
not to be so construed as to destroy the fundamental
laws
of
the State. A
power given by the Constitution cannot
be so construed to authorize a destruction of
powers given in
the
same instrument.... A
treaty to change the organization of
government, or annihilate its sovereignty, to overturn
its
republican form, or deprive it of its constitutional
powers, would
be
void; because it
would destroy, what it was designed
merely to fulfill, the will of the people.
II J. Story, Commentaries
on the Constitution Section 1508 (5th ed. 1891); Accord,
H.
St. G. Tucker,
Limitations on the
Treaty-Making Power,
supra, at Sections 85-87
Twice recently, the United
States Supreme Court has addressed the question of
constitutionally reserved state powers in response to
congressional legislation pursuant to grant of power over
interstate commerce contained in Article I, Section 8 of
the Constitution of the United States of America. On
the second occasion, in United States v. Morrison,
--- U.S. ---, 146 L Ed 2d 658 (2000), the high court ruled
that Congress could not, under the guise of
regulating interstate commerce, usurp traditional state
power to prohibit rape when such conduct is not, by
nature, “economic.”
Otherwise, Chief Justice William J. Rehnquist
contended, “Congress might use the Commerce Clause to
completely obliterate the Constitution’s distinction
between national and local authority....” Id.,
146 L Ed 2d at 674
If Congress cannot
constitutionally draw on its power to regulate interstate
commerce to enact laws against rape, may it rely upon the Charter
of the United Nations to do so?
After all, freedom from rape has now been
designated in the United Nations Human Development Report 2000
as necessary to ensure the internationally recognized
human right of “Freedom from fear - with no threats to
personal security.”
Indeed, according to the July 2000 United Nations' report,
“security from physical violence” is the most
“vital” security condition necessary to realize all
other human freedoms.
UN Human Development Report 2000, supra, at
4
Surely, if Congress may not
use the commerce clause to completely obliterate the
constitution’s distinction between national and local
authority, the president and the United States Senate ought not be
able to use the treaty power to completely obliterate the
Constitution of the United States of America's distinction between international and
local authority. Yet,
that is precisely what the president and United States Senate did
in 1948 by negotiating and ratifying the Charter of the
United Nations; the
purpose of which - if honored - would obliterate all
distinctions between international and domestic matters.
Congress did precisely that when it
authorized United States' membership in the United Nations
Educational,
Scientific and Cultural Organization which purports to
exercise jurisdiction over “the minds of men” to the
end that they might be “constructed” in such a way as
to bring about international peace and security.
See 22 U.S.C. Section 287m and preamble to
the constitution of the United Nations Educational,
Scientific, and Cultural Organization.
Although it may be true
that international peace and security depends upon the
minds of men, as the constitution of the United Nations Educational,
Scientific, and Cultural Organization states, there is no
more foundational constitutional liberty protected by the
First Amendment of the Constitution of the United States
of America than the
following: no government has jurisdiction over the
minds of individual human beings.
That is the legacy of Thomas Jefferson and James
Madison; the latter the chief architect of the Bill of
Rights. As
Jefferson put it in his 1786 “Statute Establishing
Religious Freedom”:
Almighty
God hath created the mind free...[but] that the impious
presumption of...rulers, civil
as well as ecclesiastical, who, being
themselves but fallible and
uninspired men, have...set...up their
own
modes of thinking as the only true and infallible, and as
such
endeavor[ed] to impose them on others, [thereby]
establish[ing]
and
maintain[ing] false religions over the greater part of the
world
and
through all time.
It is time for this Congress to return to these time-honored American
principles of liberty; not to put their hope in the
promise of some international organization like the United
Nations which would replace the Constitution of the United
States of America with its Universal Declaration of Human
Rights,
thereby compromising American liberties in favor of
government-imposed programs designed to enhance the
economic and social well-being of peoples all around the
world. See
generally UN Human Development Report 2000.
VI.
Conclusion: H.R. 1146 – The American Sovereignty Restoration
Act of 2001 is the Only Viable Solution to the Continual
Abuses by the United Nations
By repealing (1) the United
Nations Participation Act of 1945; (2) the United Nations
Headquarters Act; (3) the United Nations Educational,
Scientific, and Cultural Organization Act;
(4) the United Nations Environment Program
Participation Act of 1973; and, (5) the World Health
Organization Act, the Congress of the United States of
America will remedy its
earlier unconstitutional action embracing the Charter of
the United Nations.
By terminating any further
appropriations of funds to pay for (1) assessed or
voluntary contributions to the U.N.;
(2) contributions to any United Nations military operation;
(3) contributions to any United Nations peacekeeping or peace
enforcing operation; (4) contributions to support any
United States armed forces or other personnel serving under the command
of or auspices of the United Nations and the use of any
United States facility or property by the United Nations, Congress will
remedy its earlier unconstitutional authorizations of
disproportionate spending of the American people’s money
to support governments whose national interests are
diametrically opposed to the United States of America.