Antioch Law Journal


Jay Rosenthal


On December 11, 1948, the United States officially signed the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the Convention).1 The Convention was sent to the Senate as part of the ratification process for the advice and consent of two-thirds of the Senators present and voting. 2 But the Senate declined to give advice and consent to the Convention, and has maintained that position for over thirty-six years. Ninety-six countries have now deposited their instruments of ratification with the United Nations, making them parties to the Convention. The United States is not a party. Opponents to ratification have consistently argued that the Convention is unconstitutional and that the Senate should not give its advice and consent. 3 Proponents of ratification, however, have refuted, point-by-point, the constitutional objections raised by the Convention's opponents.4 This effort, however, has had no effect on the Senate. The purpose of this article is to show that the constitutional arguments raised by the Convention's opponents are specious and, to an extent, self-serving. The arguments raised by the Convention's opponents do not resolve constitutional questions, but rather tend to promote an anti-globalist philosophy. They are, in fact, worried about the extent to which the United States is willing to take part in an integrating process toward a unified global legal system. They are opposed in principle to any treaty which might lead to a unified world government under the aegis of an international judicial body. The Convention's effects are viewed as promoting that end. Some of the Convention's opponents are also troubled by the apparent ineffectiveness of the Convention's enforcement mechanisms and the ongoing geopolitical conflict with the Soviet Union, another party to the Convention. In essence, this globalist 5/anti-globalist 6 conflict, in all its various manifestations, is the main impediment to ratification. This Comment begins with a short history of the Genocide Convention, which will provide a reference for examining the subsequent constitutional arguments for and against ratification. The second part of the article analyzes the main constitutional arguments and counterarguments raised by the Convention's opponents and proponents, respectively. The weakness of the constitutional argument against ratification will be of particular concern. The last section of the article introduces a revisionist theory defining the three main doctrinal rationales embraced,either in whole or in part, by the Convention's opponents: anti-global-ism, anti-Sovietism, and neo-positivism. In conclusion, it will be shown that the Senate's fear of promoting globalism, rather than the fear of violating constitutional norms, continues to be the main motivation behind opposition to ratification of the Convention.