Conservatives and International Law

Last week, a U.N. committee adopted a resolution recommending the General Assembly adopt a declaration against human cloning. The resolution grew out of an earlier proposal by Italy (supported by the Bush Administration) for an international convention to ban human cloning. I don’t have anymore to say about the merits of banning human cloning by international treaty than I do about the merits of reducing global warming. But I do think this kind of conservative activism on the international scene reveals a tension in the modern American conservative movement over that movement’s attitude toward international law and institutions.

A number of conservative pro-life NGOs, using tactics pioneered by their liberal counterparts, worked hard to get the U.N. to support a ban, and although there is apparently little prospect of an international treaty, such a treaty was the logical and avowed goal of the NGOs’ advocacy at the UN. Contrary to Bradford Short’s implication, even a declaration of the U.N. General Assembly that human cloning should be prohibited could constitute evidence (maybe even strong evidence) of customary international law. So here is an example of conservatives trying to harness the international law and institutions for their particular policy goals.

The conservative NGOs’ activism sparked an interesting exchange at the Corner between those who takes the traditional, “we should not legitimize the U.N.” view, and those who take the “why not get the U.N. to do something right for a change” view And this reveals an important question for conservatives:

Should conservatives oppose all expansion of international law and institutions on principle (say because they threaten U.S. sovereignty) or should they simply oppose those particular international laws and institutions that they believe represent bad public or moral policy?

In other words, should conservatives adopt the flip side of the kneejerk “internationalism for internationalism’s” sake view that I criticized here? In my view, kneejerk “sovereignty for sovereignty’s sake” is no more persuasive than kneejerk internationalism. Conservatives might have some predispositions against certain international institutions, sort of in the way they might have suspicion of the federal government vs. the states. But even conservatives need to take international law and international institutions seriously and to consider endorsing particular international mechanisms on a case by case basis. This might mean yes to the WTO, but no to Kyoto. But it cannot mean “no” for no other reason than it involves joining an international institution or complying with international law.

The conservative movement’s recent mobilization against ratification of the Law of the Sea Treaty is beginning to show signs of this kneejerk sovereigntism. While I do think there are plausible policy arguments against the Law of the Sea, I do not believe “losing sovereignty” is one of them. This type of argument is Pat Buchananesque, and I would be disappointed if conservative publications like NR head down this same path.