National Security Strategy

As you may already be aware, the Obama administration released a new version of the National Security Strategy on May 26, 2010. The National Security Strategy is a document that is periodically released by the President to Congress. The purpose of this document is to identify major threats to our national security and outline how the administration plans to deal with them.


The new National Security Strategy, hereinafter NSS, has been described as a significant departure from the previous administration, and as one that emphasizes the strengthening of international institutions and the enforcement of international norms.

This emphasis on international law sparked my interest and implored me to investigate further. What I found was shocking! It is, therefore, my intention to outline for you some of the most repulsive ideas that are expressed in the NSS.

I. A New International Order

By far the most frightening section of the NSS is the one entitled “International Order.” Yes that’s right, there is a section devoted to the creation of a new international order. In fact the term “international order” appears almost 30 times throughout this document. Despite this fact, there are those who naively believe that the NSS only reflects an intention to strengthen existing international institutions; however, a close examination of the document reveals that the Obama administration wishes to replace existing international institutions.

Evidence that the Obama administration wishes to significantly alter existing international institutions can be found by examining one of the many themes that are prevalent throughout the NSS; that the world is heading into a new era. This theme manifests itself in language that speaks of the dawning of a new century. The NSS begins with an overview that opens by saying:

At the dawn of the 21st century the United States of America faces a broad and complex array of challenges to our national security. Just as America helped to determine the course of the 20th century, we must now build the sources of American strength and influence, and shape an international order capable of overcoming the challenges of the 21st century.

This sort of language would have been appropriate ten years ago but seems out of place today. The reference to the dawn of the 21st century struck me as especially strange considering we are nearly ten years into it. The true meaning of these references to the 20th and 21st centuries becomes clear upon further reading of the document. A few lines down there is another reference to the 20th century, this time saying that “the international architecture of the 20th century is buckling under the weight of new threats.” Now the meaning becomes clearer. This statement, taken in conjunction with the opening paragraph, lays bare this administration’s agenda for a new international order. The meaning of these two statements boils down to this: our existing international institutions are old 20th century solutions to what this administration believes is a 21st century problem. The inference here is that if we want to address these new problems then we must create a new solution; a new international order.

A. Invasion of State Sovereignty

If this administration thinks it is necessary to create a new international order, then what might that new international order look like? President Obama believes that his new international order should be based on rights and responsibilities. This may sound completely normal and acceptable to some people, but consider this; sovereign nations do not depend on anyone else for their rights and they do not owe any responsibilities to anyone. That is the nature of state sovereignty. Any international order that grants rights or imposes responsibilities is an infringement on state sovereignty. In addition to this, one must ask: to whom are these responsibilities owed? Will a member nation have a responsibility to other member nations, or will a state owe its allegiance directly to the new international order?

It is true that a state may choose to enter into an agreement or join an international organization that limits that state’s ability to exercise its sovereign rights, but this in itself is an exercise of state sovereignty. If a state did not wish to limit its sovereign rights it could refrain from entering into any such agreement or joining any such organization. That is not the case with President Obama’s new international order. According to the NSS “if nations challenge or undermine an international order that is based upon rights and responsibilities, they must find themselves isolated.” What does this mean? It means that if you do not support the new international order you will be punished!

President Obama seems to view his new international order as some sort of supper government that is capable of imposing rules and responsibilities on sovereign nations. Obama’s new international order would be able isolate anyone who refused to join, and punish any member who did not follow the rules. According to President Obama “Rules of the road must be followed, and there must be consequences for those nations that break the rules.” Who is going to make these rules? Who is going to enforce these rules? What benefit is there to Americans?

B. New International Order As An End In Its Own Right

Any legitimate international organization will seek to advance the interests of its member states, and the government of any free state will seek to advance the interest of its citizens. Therefore, the government of a truly free state will not seek to create or join an international organization unless membership in that organization provides some benefit to the citizens of that state. If America is a free state, and wishes to remain free, there must be some expected benefit to Americans in order to justify Obama’s new international order. The question therefore becomes ‘what benefit is this new international organization to America.’ According to the NSS “This international order will support our interests, but it is also an end that we seek in its own right.” First, let me say that I am not at all convinced by the statement “this international order will support our interest, but…” To me this sounds more like the new international order will NOT support American interests but the Obama administration doesn’t care. Second, the statement that this new order is an end in its own right reveals a lot about President Obama. He sees government not as a means to an end, but as an end in itself. The founders of our country had a very different view, which was that people have certain unalienable rights and “that to secure these rights, Governments are instituted among Men.” Declaration of Independence. Government, whether national or international, exists to serve those who are governed not to serve those who govern. To create a new international order that is an end in its own right, is to create a government that serves only those who govern.

II. Enforcement Of International Norms

The next affront to our nation’s sovereignty that is proposed by the NSS is its call for tougher enforcement of international norms. Before it is possible to understand the threat that international norms pose to our sovereignty, it is necessary to understand what an international norm is and how one is created.

A. What Is An International Norm

The first step in defining an international norm is to learn the appropriate terminology. The term that is used throughout the NSS is “international norm.” This is incorrect and misleading. The appropriate term is “peremptory norm.” I suspect the reason for the use of incorrect terminology was to mislead the American people. The term “international norm” would likely be understood by most people as a form of social norm, like holding the door. A peremptory norm on the other hand, is much different.

According to the Restatement (Third) of The Foreign Relations Law of The United States, a peremptory norm is a rule of international law that is recognized by the international community of states as peremptory, permitting no derogation. “These rules prevail over and invalidate international agreements and other rules of international law in conflict with them.” § 102 (1986).

What does all of this mean? Most importantly, a peremptory norm is mandatory! No one, not even a state that disagrees with a peremptory norm, is permitted to violate it. Even if a state wishes to exercise its sovereign authority and enter into a treaty with another state, if that treaty violates a peremptory norm, it is void. This is reflected in article 53 of the Vienna Convention on the Law of Treaties, which says: “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm.” Also, if a treaty is already in existence and a new peremptory norm emerges, the treaty becomes void. Vienna Convention on the Law of Treaties, art. 64.

What is more frightening about the concept of peremptory norms is that under current international law, peremptory norms apply to individuals as well as states. This is different than most other forms of international law because normally, only states are subject to international law. Only states can enter into treaties, only states can be members of the UN, only states can sue or be sued in the International Court of Justice. Peremptory norms on the other hand, apply to individuals, and individuals can be prosecuted for violating a peremptory norm.

Not only can an individual be prosecuted for violating a peremptory norm, but any state has jurisdiction to punish violations of a peremptory norm as long as that state has personal jurisdiction over the actor. What this means is that if you violate a peremptory norm here in the United States, even if U.S. law REQUIRED you to, and you later travel outside the U.S. you could be prosecuted in any country you happen to be found in.

B. Creation of Peremptory Norms

The next step in the process of understanding the significant role international law is expected to play in shaping Obama’s new international order, is to learn how peremptory norms are created. This is where the lines begin to blur and the dangers of non-governmental organizations becomes apparent. As you will recall, the Restatement defines a peremptory norm as one that is recognized by the international community of states as peremptory. Herein lies the problem, how do we know when something has been recognized by the international community of states? Is a vote required? Must a multilateral treaty be signed? Is there some other way in which the international community may express its assent thereto?

One of the ways in which an international norm can be created is through the use of nongovernmental organizations, like the SEIU or Greenpeace. Here is how the process works: first, an international conference is organized and packed with members of various NGOs who “represent” numerous countries around the world. Next, the conference issues a resolution. This resolution is non-binding and is not law at the time that it is issued; however, when a case comes before the International Court of Justice, the ICJ will look at the resolution as evidence that the norm has been generally accepted by the international community. Viola, a universal mandatory rule of international law has been created without any governmental involvement whatsoever. Would the Obama administration really do such a thing? According to the NSS “In the 21st century, the ability of individuals and nongovernment actors to play a positive role in shaping the international environment represents a distinct opportunity for the United States.” (emphasis added).

C. The Threat of Peremptory Norms

Now that we understand what a peremptory norm is and how one is created, we can more easily understand why peremptory norms pose such a great threat to our national sovereignty and our individual liberty.

As I already discussed, peremptory norms are binding on individuals and can be created solely by nongovernmental organizations. As a result, representative governments can be completely excluded from the creation of peremptory norms. This makes it possible to ignore the will of the people and create rules of international law that only benefit those who make them. But why use international law to do all of this? The answer is that using international law makes it much easier to get around the Constitution. As you will recall, peremptory norms apply to individuals, and violations can be punished by any country, regardless of the law of the country in which the violation occurred. For example: if a peremptory norm is created that prohibits civilians from owning guns, any American gun owner who travels outside the united states can be punished regardless of what the second amendment says. Even if guns are not banned in the United States, this would have a deterrent effect on anyone who ever wishes to leave the country.

Conclusion

It is true that the 2010 National Security Strategy represents a significant departure from the previous administration. It is also true that it represents a significant departure from state sovereignty, individual liberty, and our own national security. This National Security Strategy is one like we have never seen before and reveals the danger that this administration poses to the American people.



Note:

The 2010 National Security Strategy contains more threats to our liberty and to the continued existence of our country than I could possibly discuss here. Believe it or not I have tried to keep this brief by talking about only those things that needed the most explanation. I highly recommend that everyone read the NSS for themselves, or at least the overview.