A major international law conference took place this June in Rome to assess the threat posed to national sovereignty and democratic decision-making by the ever-growing prominence of international law, especially what is called “customary” international law. The conference was convened by C-FAM and the Culture of Life Foundation, and was co-sponsored by the Federalist Society, Ave Maria Law School and the National Interest magazine.
In a paper delivered to the conference, John O. McGinnis, a professor at Northwestern University Law School, criticized the current practice of creating “customary” international law through the interpretations of vague language by multinational regulatory bodies. According to McGinnis, this process “moves the law away from the actual decisions of nations states,” since these regulatory bodies are free to make “inferences” about the content of the laws.
McGinnis is also concerned about the ability of elites, both within international judicial bodies and international nongovernmental organizations, to gain enormous power. McGinnis states that, “customary international law provides far less firm evidence of consensus [than treaty provisions], because professional and judicial elites rather than sovereign states have substantial influence in framing international law.Those who want to fashion rules outside of the treaty context – will necessarily appoint themselves the prophets of international virtue.”
McGinnis goes so far as to call such elites “the bane of modern
international law generation.”
In his paper, Fernand Keuleneer, a member of the Brussels Bar Council, discussed the European Constitution, warning that “the adoption of this Constitution could have far-reaching consequences, beyond the intentions of most of those in favor, in that it may lead to.a creeping transfer of powers to the European Union.
According to Keuleneer, “Any individual will be able to argue before a court that some national law violates his rights as a citizen of the [European] Union. It will then be the court’s decision whether indeed it is a binding norm of Union law which has been infringed upon.” Keuleneer fears that the emerging structure will ensure that “courts rather than elected-bodies are the engine of law-making and have the final say.”
The conference also featured a debate on the European Constitution between former Italian Prime Minister Giuliano Amato and leading British euroskeptic William Cash, who is a member of the European Parliament. Judge Robert Bork delivered the keynote address at a private dinner held at the official residence of Jim Nicholson, US Ambassador to the Holy See.
More than 50 American and European policy makers participated in the conference, including Italy’s Minister of Defense, Antonio Martino, David Bryant, senior advisor to US Attorney General John Ashcroft, and Silvia Cortes, a Spanish diplomat and advisor to former president Jose Maria Aznar.