Included in Article VI of the constitution is this direction regarding the enforcement power of treaties:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Up through the early 1900’s, this phrase was interpreted to mean that treaties would outline relationships between the US and another country but that the language of the treaty could not override the US or state constitutions. That interpretation changed in 1920 when a US Supreme Court case, Missouri V. Holland concluded that a treaty could override a State’s authority and in fact, become the “Supreme law of the land,” coequal with the constitution and supplanting state law.
One would think that well negotiated treaties, agreed to by the President and 2/3rds of the Senate would not be much of a concern. One would think wrong.
Twisting of international treaties has become the global warming fanatics latest front to enforce their world view. An example of this is the Law of the Sea Treaty (LOST).
At it’s face, LOST looks fairly innocuous as it purported to define rights and responsibilities for a nation’s use of the oceans. However, in the language of LOST are items like Article 194 which requires states parties to "take"¦all measures consistent with this Convention that are necessary to prevent, reduce, and control pollution of the marine environment from any source." Further, this provision requires that all means are addressed: "all sources of pollution of the marine environment"¦including those from land-based sources, from or through the atmosphere, or by dumping"¦."
It doesn’t take a very long leap, if a leap at all, to see how global warming fanatics will take their CO2 to ocean warming link and cry about that as pollution of the marine environment looking to use provisions of treaties like LOST to impose unintended responsibilities on the US.
With abuse like this, it appeared like our choice was coming down to either not signing any treaties and possibly cancelling some existing treaties that could be reinterpreted, or run the risk of have laws forced upon the US from outside sources.
last week the Supreme Court gave us a firewall.
Without going into all the details, in Medellin V. Texas a Mexico citizen was convicted of murder in Texas and sentenced to death. Medellin argued that his case should be thrown out because he was not specifically told he had a right to visit with a Mexican embassy consular. The International Court of Justice intervened on his behalf with the Bush administration and:
The case was heard by the Supreme Court with the specific question of whether a treaty trumped state law. Surprisingly, at least to me, the Supreme Court in a 6-3 decision (Stevens, Kennedy, Alito, Scalia, Roberts and Thomas voted for) decided that in fact, unless specifically legislated otherwise, state law trumps treaties. The specific language was:
While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be "self-executing" and is ratified on that basis.
What’s to learn from this?
Obviously, it’s necessary for the US to continue to negotiate, ratify and enforce treaties that serve our interest. However, Congress should NEVER but enabling language in the treaty i.e. language that makes the treaty law simply by the ratification of the treaty. By putting enabling language in a treaty, the treaty does become “Supreme law of the land” and language that is ambiguous, or open to interpretation has the potential to be used in ways to cause the US harm. Of course, we could always terminate a treaty that has become problematic but that isn’t always politically acceptable in an international sense. The safest course is for Congress to separately legislate laws that work to blend treaties with US law. By doing so, there would be research and debate that should cause more thoughtful consideration, by the House and the Senate, ultimately implanting within US law what Congress believed the intent of the treat was. Then, if something unexpected occurs, we have our Supreme Court with our Constitution and not some international court with their treaty, determining what the intent of our lawmakers and not international lawmakers might have been.
With their decision in Medellin V. Texas, the Supreme Court not only puts our constitution back in first place in the legal hierarchy, but they set a clear firewall from abuse by those who would use treaties in a perverted fashion. However, this firewall exists only if Congress is willing to do the work that the taxpayers are paying them for, determining the laws that apply to US citizens and not taking the easy route by simply “enabling” treaties
