Constitutional Opinions: Australia's Real Moment

...The opposition Labor Party leader charged that Howard "has turned Australia from being a robust, exemplary nation in international affairs to a cringing, confused, small and hiding operation...

...Will any of this impress the Supreme Court, which has been reviving limits on federal authority and re-emphasizing the reserved powers of state governments...

...The system is farcical because the U.N...

...human rights monitors...

...convention that the Bush administration arranged for the U.S...

...The federal Human Rights Commission's chairman warned that the govermnent was taking Australia "on the path to totalitarianism...

...A previous government even relied on a rggz U.N...

...executions, he argued, "the application of international human rights standards to Western democracies has been a much more significant political issue in the United States than in Australia...

...To prove it was not a slave to British usage, the Australian Labor Party dropped the u in "labour," though Australians otherwise do spell the word with a u.) Finally, domestic advocacy groups (like the assortment of advocates for Aboriginal claims) have become adept at using international conventions and forums to attack their own government...

...human rights monitoring (and declined to interfere with state sentencing laws) has not questioned the authority of existing federal laws in these areas...

...In an editorial timed with the opening of the Olympics, it criticized the Australian government's new policy as "a horribly destructive example at a time when ethnic minorities in a number of less enlightened countries must increasingly rely on international vigilance to ensure their survival...

...By September, Prime Minister John Howard's conservative government decided this was one gold medal Australia could do without...

...Whether the Times considers the U.S...

...As it concluded: "IT]he conduct of this nation's foreign affairs cannot be effectively managed on behalf of all the nation's citizens if each of the many state and local governments pursues its own foreign policy...

...Successive federal governments have cited conventions Repressive regimes aren't troubled by U.N...

...All sides of a generally divided Court seem to recognize that there are large issues here, which are just as well left to a later day...

...B ut the position of the Australian government is not so different from that of the American government...

...The U.N.'s Human Rights Committee said the policy violated "due process" guarantees, while the Committee on the Elimination of Racial Discrimination said Australia wasn't living up to its obligations under the international convention against race discrimination...

...human rights bodies...

...Given this lack of proportion, the government declared it would no longer cooperate with U.N...

...For several decades now, legal scholars have been busily preparing the ground for expansive applications of this vague doctrine...

...the powers of the federal government in foreign affairs also seem to be broad, although their proper reach is unclear from the Constitution...

...offers a forum where a small country can strut on a larger stage, and Australian politicians have played a large role in U.N...

...JEREMY RABKIN is a professor of government at Comell University...

...Such straightforward reasoning reflected what many legal scholars have argued in recent decades: that the federal government has total and exclusive power to implement all international obligations of the U.S...

...I'd been invited to lecture on trends in international law...

...Its opinion rested on the narrower ground that Congress had already enacted sanctions against Burma and the state law here would undermine a specific federal policy...

...As recently as July Secretary General Kofi Annan had praised Australia as % model member state...

...human rights standards...

...One of the few exceptions, naturally, is the New York Times...

...In Crosby v. National Foreign Trade Council, a unanimous Court struck down a Massachusetts law that denied state contracts to any firm doing business with the military government of Burma...

...The United States need not follow Australia's example in using treaties to expand federal power...

...They were particularly censorious about the disproportionate number of Aborigines imprisoned under mandatory sentencing laws (the local equivalent of "three strikes and you're out...

...The same Howard government that has rejected U.N...

...I tried to explain to my hosts that the United States doesn't exactly worry about U.N...

...Every one of the U.N.'s major human 66 No v e m b e r ~ o o o " The American Spectator rights standards was negotiated before the collapse of Communism, and every one tries to avoid sharp distinctions that would have isolated Communist regimes...

...That's why they've signed so many of the U.N.'s human rights standards...

...is not organized to be serious...

...Like the U.S., Australia has a constitution that apportions power between the federal government and the states...

...That's why they've signed on to U.N...

...In all of this, Australia is different from the United States...

...reformed its human rights operations...

...to ratify in the early 199o's...

...provides them with alibis, as it carefully doles out even-handed criticism of democracies and dictatorships alike, like a kindergarten teacher trying to show that each child has room for improvement...

...Unlike Australia, the United States was born in a revolution against a foreign empire...

...Naturally, these groups are vexed when the government tries to defend itself...

...In the U.S...

...Iraq, of course, did not merely "try" but succeeded in "evadling I the scrutiny of U.N...

...Some commentators were even more confused...

...N The American Spectator ' November 2000 67...

...The Canberra Times decried the government's "willful politicking and populism" and clucked that its "xenophobic allusions to interference in Australia's internal affairs" echoed the "very cries of undemocratic regimes...

...Last June, in the midst of many dismaying rulings, it signaled it's not about to be stampeded on this issue...

...Partly, that's because the U.N...

...never wants to do, because it depends on consensual support from both nice countries and the not-so-nice, all of which get equal votes in the General Assembly and equal chances to send representatives to the human rights monitoring committees...

...It simply held that when Congress has acted in matters within its competence, its policy must exclude competing state policies...

...The Court was not willing to embrace the larger argument that everything to do with foreign affairs must be reserved for Congress...

...ruling on gay rights--read into an international convention that no one, when it was drafted four decades ago, thought had anything to do with sexual autonomy-as justification for a federal law overriding a traditional sexual morals law in the state of Tasmania...

...has criticized racial disproportions in U.S...

...Many Australians are quite attached to the U.N., however...

...Because the U.N...

...It seemed that half the country's politicians-and even more of the media-were outraged...

...In the 19ao's, the Supreme Court held that Congress has broader powers to implement international treaties than it does in domestic legislation...

...weapons inspectors"--according to the testimony of the chief of the U.N.'s inspection team, Australia's own Richard Butler...

...The federal government has responsibility for foreign affairs and over the years has invoked this constitutional authority in areas that would otherwise belong to the states...

...The newspapers weren't much more restrained...

...of the International Labour Organization to enact federal labor standards...

...When the Supreme Court in 1997 struck down the Religious Freedom Restoration Act, for example, Gerald Neuman, professor at Columbia University Law School, promptly published an article explaining that the law could be upheld if it were described as meeting U.S...

...one of the "tess enlightened" wasn't clear...

...criticism, if only because hardly anyone in America is aware of it...

...Suddenly my talks, including two at the Australian Parliament House in Canberra, were unusually topical...

...they've cited the Convention on the Elimination of Discrimination Against Women to back federal legislation on sex discrimination...

...It was eager to avoid larger constitutional issues...

...criticism than is the U.S...

...affairs from the beginning...

...By chance I was in Australia when the government made its announcement...

...obligations under the Covenant on Civil and Political Rights--a characteristically openended U.N...

...T wo weeks before Australia hosted the September Olympics, its government announced it would no longer play host to U.N...

...But acknowledging this fact would have detracted from the prenfise that Australia was undermining an international authority that would be doing serious work if not challenged by democratic politicians...

...One can also credit the anti-imperialism of the Australian left, which over the twentieth century moved from anti-British, to antiAmerican, to pro-U.N, enthusiasms...

...For a country with much larger and not altogether friendly neighbors, there is also a special eagerness to maintain ties with a wider community beyond the seas-now that the British Empire and the Royal Navy have passed into history...

...As a Canberra Times columnist put it, not only would "regimes such as Burma and North Korea...be able to hide behind the issues Australia has raised," but the government's action would also help shield "the cavalier implementation of the death penalty in Texas...

...investigations until the U.N...

...The Court did not specify limits on congressional power over foreign affairs, nor did it claim that this power was limitless...

...criticism...

...The Age (of Melbourne), which seems to model itself on the New York Times, sniffed that the Howard gox ernment's reaction was "a rhetorical echo of the sort of ridiculous shenanigans performed by Iraq as it tried to evade the scrutiny of U.N...

...Yet the Supreme Court in Crosby steered clear of such a sweeping constitutional claim...

...If anything, the U.N...

...The one way to apply pressure on the worst regimes is to identify and isolate them as such--and that is one thing the U.N...

...The Court of Appeals for the First Circuit had made short shrift of the law, saying it preempted exclusive federal power over foreign affairs...

...weapons inspectors...

...The Court seems to have sensed that disputes of this sort are heading its way...

...But that in itself is revealing...

...The Howard government protested that Australia had received more criticism from the committee on racial discrimination than Russia, China, Cuba, or Pakistan-all of which, unlike Australia, have representatives on the Geneva-based committee...

...The provocation was a series of negative reports by U.N...

...Though I tried to sound authoritative, I couldn't conceal my bewilderment at the hostile local reaction to the government's new policy...

...They charged that Australia was insufficiently willing to offer asylum to refugees...

...What is clear is that genuinely repressive regimes are even less troubled by U.N...