The United Nations’ International Court of Justice ( ICJ) recently issued a decision in Avena (Mexico v. United States). According to the ICJ, certain provisions of U.S. criminal law violate the Vienna Convention on Consular Relations and thus U.S. law must be revised to comply with the treaty. Although the changes demanded by the ICJ would only affect the prosecutions of foreign nationals, the impact on American sovereignty would be considerable. Compliance with Avena would be an acknowledgment that international treaties and courts trump our Constitution and judiciary.
The Avena case concerns the convictions of 52 Mexican nationals who are now on death row in various states and in the federal system. Mexico brought suit alleging that American authorities violated the Vienna Convention by failing to timely inform the Mexican detainees of their right to speak with Mexican officials and by failing to inform the appropriate consular post of the detentions. The ICJ found in Mexico’s favor and ordered the United States to review and reconsider the convictions.
In its opinion, the ICJ recognized that the review in some cases would conflict with the American “procedural default rule,” which provides that if a criminal defendant could have raised an error (e.g., notice under the Vienna Convention) in the trial court, he is barred from raising it in future proceedings such as an appeal or petition for a writ of habeas corpus. In effect, the ICJ has set aside an American rule of law in favor of its interpretation of treaty provisions.
To add further intrigue, the U.S. Supreme Court has held in Breard v. Greene (1998) that the American procedural default rule controls even when the Vienna Convention is implicated. In its opinion, the Court noted that after ratification of the Vienna Convention, Congress enacted a federal statute requiring habeas petitioners to fully develop the basis of a factual claim in the trial court before filing a petition. “[W]hen a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of the conflict renders the treaty null,” explained the Court.
WHILE BREARD PROVIDES authority for the ignoring of the ICJ’s Avena decision, Justice Stephen Breyer has suggested that the ICJ’s interpretation of treaty obligations should be binding on the federal and state governments. Moreover, as matters currently stand, the Supreme Court recognizes that the federal government may regulate matters via the treaty power even if it would otherwise have no power to legislate on the subject.
For example, in 1913 Congress passed a law prohibiting the killing of migratory birds. Federal courts struck down the legislation as beyond the reach of Congress’ delegated powers. The same prohibitions were later part of a treaty with Great Britain and were upheld by the Supreme Court in Missouri v. Holland (1920). It was enough for the Court that pursuant to Article VI, treaties made under the authority of the United States are the supreme law of the land.
OF COURSE, THE FRAMERS had no idea that treaty power would be used to render the Constitution’s enumeration of powers superfluous. They envisioned treaties covering only such external matters as war, peace, and foreign commerce — all three of which fall under Congress’s delegated powers.
Some opponents of the Constitution argued that the treaty power was broader than this, but the federalists quickly shot down these arguments. For example, in the Virginia ratifying convention, Edmond Randolph observed that “neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty.” George Nicholas was even clearer when he remarked that no treaty could be made “which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers.”
Further, while serving as vice president, Thomas Jefferson addressed the matter and opined that the treaty power could not violate “the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.”
Today, treaties seldom deal with peace, war, or foreign commerce, and instead are better characterized as “international legislation.” These modern treaties, often drafted under the auspices of the UN, typically deal with human rights issues. (For example, the United States has signed but not ratified the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination against Women.)
The current deference given to treaties coupled with the jurisprudence suggested by Justice Breyer could erode the remaining constitutional limitations on government power. And with international courts and bodies calling the shots, the American people — with whom ultimate sovereignty supposedly rests — could lose much control over their government.
THESE DANGERS ARE NOT new. In the 1950s, many Americans saw the implications of several UN-proposed treaties and rightly feared for American sovereignty. The last straw came when President Harry Truman seized the steel mills for the prosecution of the Korean War and three Supreme Court justices approved this action by citing to the UN Charter and the NATO treaty.
Supported by the American Bar Association, Senator John Bricker proposed a constitutional amendment to rein in the treaty power. The “Bricker Amendment” was straightforward:
Section 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.
Section 3. Congress shall have the power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.