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 1. A provision of a treaty which conflicts with
this Constitution shall not be of any force or effect.
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.
Section 4. The congress shall have the power to enforce this
article by appropriate legislation.
The Bricker Amendment began with 46 co-sponsors, but it soon
went down to defeat. Once moderate and liberal Republicans learned
that President Eisenhower was against it, they distanced themselves
from Senator Bricker and his proposal.
But, as the Avena case demonstrates, Congress should
dust off the Bricker Amendment and submit it to the states for
ratification. An international court should not be permitted to
overturn settled provisions of American criminal law. This will set
a precedent and lead to further intrusions into our domestic laws.
The right of self-government is simply too precious to turn over to
the likes of the ICJ.
