Veritas News – Treaties as Law

 

Veritas News Service Report

By Todd Stevens

03/25/12

Treaties as Law

Article VI Clause 2: 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, anything in the Constitution or Laws of any State to the Contrary notwithstanding.

There is an assumption that treaties signed by a representative of this nation are immediately permitted as Supreme domestic law running top down to all of the states within this country. I happen to have encountered this first hand, debating law students from San Diego State, the University of Connecticut, and the local Ventura Law School (which is the worst of the three). In such discussions it has become apparent that there is a schism from actualized knowledge by the individual and acceptance of preconceived knowledge.

Federalist Interpretations and Ideas on Treaties.

Our basic concept of the simple terms and ideas of the Constitution derive from the interpretations by the founders in the Articles of Confederation and the Federalist Papers as many will well be aware. To understand the basics is to understand the founding, or as others put it the first principal position.

John Jay’s interpretation sees fit to enumerate the specific purpose of such treaties as he writes “The power to make treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions that it will afford the highest security.”[i]

John Jay again expounds upon the ideas of a treaty within the whole set of the domestic law, giving a clear and concise warning with regards to the validity of said laws when writing:

Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist and profess to believe, that treaties like acts of assembly, should be repealible at pleasure. This idea seems to be new and peculiar to this country, but new errors as well as new truths often appear. These gentleman would do well to reflect that a treaty is only another name for a bargain; and that I would be impossible to find a nation who would make any bargain with us, which should be bi9nding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. …but still let us not forget that treaties are made not by only one of the contracting parties, but by both, and consequently that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them…They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.”[ii]

Thus far outlining the continuation of the premise of treaties and as continued by Alexander Hamilton in writing that,

“It is indeed evident, on the most superficial view, that there is no object, either as it respects the interest of trade or finance that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers; and has given occasions of dissatisfaction between the States.”[iii]

With such discretion and aptitude for history and possibly foresight to the future he further writes in favor of treaties that “-the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States to have any force at all must be considered as part of the law of the land.”[iv] As a discretionary note it should be remembered that John Jay had already stated that treaties are meant for “…war, commerce, and peace…” The thought that an International body would be in place dictating the affairs of sovereign nations regarding their own domestic affairs is another thing entirely. Such treaties would fall under the realm of the political not the legislative.  This will be expounded upon within the cases to follow in this article. Such as Elam, Foster v. Neilson and the more recent Medellin v. Texas Supreme Court case.

This is laying out the groundwork that treaties are necessary and vital to the betterment of the union as a whole. The war had been gone through with the Monarchy of Britain. The country faced debt and there was still uncertainty with regards to the Union status of the states. Treaties regarding peace, war, and commerce were and are vital to the states. However, what is not being proposed is any type of international embodiment of law at the time. This idea may not have even been conceived of at the time but protections against misuse were laid out.

John Jay speaks of protection against wars and troubles brought upon the states in writing “At present I mean only to consider it as it respect security for the preservation of peace and tranquility, as well against dangers from foreign arms and influence…a corial Union under an efficient nation Government, affords them the best security that can be devised against hostilities from abroad.”[v]

On page 143 in Federalist No. 22 Hamilton outlines the dangers of not having treaties, as well as, the usage of monarchies to buy up properties and areas not protected. Quoted at length in his writing that:

In republics, persons elevated from the masses of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in common stock…Hence it is that history furnishes us with so many mortifying examples of the prevalence of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances been purchased by the emissaries of the neighboring kingdoms.”

With such discretion and aptitude for history and possibly foresight to the future he further writes in favor of treaties that “-the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States to have any force at all must be considered as part of the law of the land.”[vi] As a discretionary note it should be remembered that John Jay had already stated that treaties are meant for “…war, commerce, and peace…” The thought that an International body would be in place dictating the affairs of sovereign nations regarding their own domestic affairs is another thing entirely. Such treaties would fall under the realm of the political not the legislative.  This will be expounded upon within the cases to follow in this article.

In Federalist No. 64 it is also stated by John Jay what is to be thought of corruption with regards to treaties

“As to corruption, the case is not supposable, he must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the president and two-thirds of the senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the laws of nations.[vii] (And states thereof)[viii]

Another treaty of past that comes forth and proclaims itself prevalent within modern context is Foster and Elam v, Neilson. In this case the Crown of Spain had ceded the land of Iberville and the Perdido to France in the Treaty of St. Ildefonso, made on the 1st of October, 1800. France then ceded the land to the United States in the Treaty of Paris sign April 30, 1803. In dispute was the territory now claimed by the Spanish through the prior treaty but not executed legislatively within the U.S. treaty. The case reads that

“…the declaration of France, made after parting with the province, cannot be admitted as conclusive. In questions of this character, political considerations have too much influence over the conduct of nations to permit their declarations to decide the course of an independent government in a matter vitally interesting to itself.”[1]

Further stating that,

“…the acts of sovereign power over the territory in dispute which have been exercised by the Legislature and Government of the United States asserting the American construction of the Treaty by which the Government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations.”[2]

In examination of what would be the final ruling by Supreme Court Chief Justice Marshal it would set precedent for what would hereafter be called the ‘self-executing treaty doctrine’. As expounded upon in her book The Multinational Enterprise and Legal Control, by Cynthia Day Wallace she concedes that treaties remain supreme laws of the land “This principle has been confirmed in the case law since such early decisions as Ware v. Hylton (1976) and Chirac v. Lessee of Chirac (1817). A minor qualification was added in 1829 by the landmark decision in Foster & Elam v. Neilson.”[ix] Now although the base principle she sights would seem correct the wording that is in usage seems to be a bit misleading; particularly the distinction that ‘the self-executing doctrine’ is a “minor qualification.” For a better understanding of the implications I turn to the actual wording put forth in the decision by Chief Justice Marshal:

“Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engaged to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.”[x]

Minor indeed. The specific portion that should be noticed is that treaties set to perform a particular act address the political, not the judicial department and the domestic legislature is supreme until it is legislatively executed by the congress. This is why Agenda 21, the International Court of Justice, Hate Speech, International Children’s Rights et cetera are not superseding in domestic judicial courts and takes the subterfuge and malfeasance of local leaders to make them such. Hence, Travel Management, Local Hate Speech laws, and so on and so forth.

Another testing of this premise was put forth before the courts in 2004 by good ole George W. Bush in a case involving his home state of Texas and the International Court of Justice upon domestic law, in the case of Medellin v. Texas. Now some may be well aware of this case but for those who aren’t a brief synopsis is in order. The case involved a Mexican national Medellin who had been charged with murder in Texas and applied for a petition for a writ of habeas corpus due to the fact that he was a foreign national and his rights under the International Court of Justice had been violated and following the Vienna Convention rights. In the lower courts this was denied despite the International Courts crying that his rights and others had been violated. The case was then taken to the Supreme Court. This is where it got interesting. Bush wrote a memorandum to the court that although Medellin had not right to apply for the International Court of Justices previsions the United States should however follow the World Courts decision, ‘discharging its international obligations’ and reexamine his and other Mexican nationals cases based on international treaties. In full the Supreme Court would follow its original interpretation laid forth by Chief Justice Marshal regarding ‘self-executing doctrine’ and the obligations that sovereign nations hold to obligate international treaties in ruling that

(a) 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. See, e.g., Foster v. Neilson, 2 Pet. 253, 314. The Avena judgment creates an international law obligation on the part of the United States, but it is not automatically binding domestic law because none of the relevant treaty sources—the Optional Protocol, the U. N. Charter, or the ICJ Statute—creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted.

The most natural reading of the Optional Protocol is that it is a bare grant of jurisdiction. The Protocol says nothing about the effect of an ICJ decision, does not commit signatories to comply therewith, and is silent as to any enforcement mechanism. The obligation to comply with ICJ judgments is derived from Article 94 of the U. N. Charter, which provides that “[e]ach … Member … undertakes to comply with the [ICJ’s] decision … in any case to which it is a party.” The phrase “undertakes to comply” is simply a commitment by member states to take future action through their political branches. That language does not indicate that the Senate, in ratifying the Optional Protocol, intended to vest ICJ decisions with immediate legal effect in domestic courts.[3]

It is fortunate that the courts upheld their duties and ruled against such an egregious attack on domestic law. Two other points that are great in precedent regarding this case is that it upheld that U.N. Charter provisions do not indicate immediate legal effect in domestic courts and that it only precludes that action be taken through political branches, leaving it singularly upon the local electorate to pass laws furthering international treaties. The sole issue that gives hope is that the local electorate must appease the local constituency within municipalities, communities, provinces, states, and city governance. All hope is not lost even when faced with daunting opposition when it is known that the road to international tyranny and despotism must pass through the backyards of each individual’s homes. This is where the true fights remain and it should not ever be forgotten.


[i] Federalist Papers No. 64 pg 432 Para. 2

[ii] Federalist Papers No. 64 pg 436-437

[iii] Federalist Papers No. 22 pg 136

[iv] Federalist Papers No. 22 pg 143

[v] Federalist Papers No. 3 pg 14

[vi] Federalist Papers No. 22 pg 143

[vii] Federalist Papers No. 64 pg 438

[viii] Author’s emphasis and addition. As all states are sovereign within them and are due full authority of land, laws, and regulations of legislation due to misconduct of treaties passed with ill intent or, as put, invidious or gross intent unworthy of conduct.

[ix] Wallace, Cynthia Day. The Multinational Enterprise and Legal Control: Host State Sovereignty in an Era of Globalization. Norwell, MA: Kluwar Law International, 2002. Print.

[x] Ibid.

Original article:
http://www.hourofthetime.com/wordpresstest/?p=8305

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