In preparation for the United Nations' High-Level Dialogue on International Migration and Development, which the General assembly is scheduled to hold this September,
UN Secretary General Kofi annan submitted a lengthy report to the General assembly which set out to internationalize the immigration issue. annan paid lip service to a country's need to control its own borders, but with a big loophole for UN intervention and standard-setting in this area of vital concern to our national sovereignty. "States have the sovereign right to decide who enters and stays in their territory, subject to treaty obligations and obligations deriving from customary international law", his report said (emphasis added). He referred to "customary international law" several times in his report without defining precisely what it was. Yet we are supposed to subject our own laws on immigration to this amorphous mass of international law.
In UN-speak there is no such thing as illegal immigration. Instead, a person entering a country without permission is referred to as an "irregular" migrant who has rights that the destination country must recognize. United Nations migration specialists, with the backing of many developing countries that want to dump their economic problems on more economically prosperous countries, have gone even further than annan's report. They have favored an international open borders policy that recognizes the right of people to migrate anywhere of their choosing and receive benefits from the destination country as a fundamental human right.
although this is yet another attempt by the UN establishment to put its nose where it does not belong, we would have no reason to be especially concerned but for our own courts. For example, in a truly bizarre decision by a federal district court judge in New York, whose reasoning on the impact of international law might become a model for judicial opinions by other like-minded globalist jurists, the judge opined that "customary international law" could override the statutes passed by our duly elected representatives. He ordered the Immigration and Naturalization Service to grant a deportation hearing to an alien convicted of robbery, who was not entitled to such a hearing under the Immigration and Naturalization act because he was deemed an "aggravated felon." (Beharry v. Reno, 183 F. Supp. 2d 584, 586 (E.D.N.Y. 2002), rev'd on other grounds, 329 F.3d 51 (2d Cir. 2003) (finding no subject matter jurisdiction over habeas petition where petitioner failed to exhaust administrative remedies)).
The judge claimed that international norms, not the Constitution, are the source of Congress' authority over immigration matters. Therefore, he reasoned, if international norms shift in a more liberal direction, so must our own laws since "customary international law is not static". and how does this run-away judge define ‘customary international law'? While admitting that "customs are not always well-defined", he goes on to say that "(I)nternational law based upon custom can be said to be influenced by breadth and period of acceptance, as well as by opinions of scholars, judges and others." He also referred specifically to the influence of the United Nations on customary international law, including declarations by the General assembly. Even if our elected representatives exercised their Constitutional prerogative to reject a particular treaty like they did with respect to the Convention on the Rights of the Child, the judge declared that many of its provisions would be binding law anyway. Since the rest of the world accepted the Convention's provisions, he declared, they have "attained the status of customary international law." Thus, one federal court judge arrogated to himself the power to ignore the Senate's duly authorized decision to reject this treaty and effectively ratified it himself on behalf of the american people.
While this particular district court decision was reversed by the U.S. Second Circuit Court of appeals on other procedural grounds, its underlying reasoning may well come back to haunt us in other immigration cases as well as in cases dealing with controversial issues as diverse as gun control, treatment of enemy combatants, the death penalty, the environment, abortion and welfare entitlements. The United Nations and other international forums have put their two cents into all these areas, and this particular district court judge is certainly not alone in his willingness to expand the reach of international norms and customary international law through judicial decisions. He cited a statement by a former Chief Judge of the Second Circuit Court of appeals that "(O)nce this country says there is a U.N. Charter, there are treaties…and we subscribe to them, in effect, havin (sic) something of an international supremacy clause…" and if present trends continue at the Supreme Court where international norms have been increasingly incorporated into the Justices' interpretations of our Constitution, the floodgates will open to more judicial assertions of "international supremacy" over our own Constitutional scheme of self-government.
Here is what the Constitution actually says about the supreme law governing our nation: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." There is nothing in the Constitution about an international supremacy clause that supersedes the authority of the United States as a sovereign nation to make its own laws and enforce them. and certainly nothing in the Constitution confers any legally binding status to ‘customary international law' that can override the will of the american people as expressed through their elected representatives. Yet judges who are willing to decree from the bench the overriding authority of ‘international norms' or ‘customary international law' on our daily lives are handing the United Nations and other unaccountable international forums a powerful means to impose their policy views and thereby undermine our national sovereignty. Immigration is just the tip of the iceberg.
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