There is a general hostility in the U.S. towards international law, which can only be countered by a change in attitude amongst legislators, judges, and legal representatives to one where they recognize the importance of fulfilling the obligations that international treaties impose.
In the past year alone, several U.S. senators have attempted to introduce bills into their state legislatures as well as Congress to prohibit judges from using international law (including both treaty law and customary international law) in U.S. courts. In Oklahoma, a referendum was passed prohibiting the use of sharia and international law in state courts. Judges themselves have contributed to this sentiment, expressing an unwillingness to apply international treaties in their courts.
While customary international law has no legally binding force in the American court system, treaty law does. In order for the U.S. to fulfill its obligations under international law, it must sign and ratify treaties, particularly ones that are a reflection of the practice of most states, and thus are viewed as customary international law.
One example of a treaty whose provisions have attained the status of customary international law is the Law of the Sea Convention. While the U.S. was heavily involved in years of negotiations of the LOSC, it never ratified the treaty, arguing that some of its provisions were not in line with our economic and security interests — at issue in particular was Part XI, concerning deep sea mining. The implication of this is that the U.S. does not recognize an affirmative legal obligation to protect the marine environment, prevent pollution, and protect the free navigation of the seas.
However, ratification is not enough. In the U.S., many international treaties are ratified, but victims of treaty violations have no recourse in the judicial system — it is almost as if treaty provisions are a suggestion, as there are no repercussions when they are violated.
Under Article VI, Section 2 of the U.S. Constitution, known as the Supremacy Clause, treaties are the “supreme Law of the Land.”
According to the U.S. Supreme Court, the Supremacy Clause does not require all ratified treaties to be automatically implemented in U.S. courts, but rather only self-executing ones. Treaties are self-executing if their terms or the intent of parties indicate that the treaty needs no further legislative enactment.
For example, the International Covenant on Civil and Political Rights (ICCPR), an international treaty, was signed and ratified by the U.S. but done so with the express understanding that it would confer no rights on individuals or some sort of obligation on states to uphold the rights.
In accordance with Congress' instructions, the Supreme Court does not view this treaty as self-executing. Thus, victims of ICCPR violations cannot bring claims in US courts.
Another example can be found in Article 36 of the Vienna Convention on Consular Relations (VCCR), which guarantees arrested foreign nationals notice of the right to contact their consulate. In 2004, Mexico brought a case to the International Court of Justice against the United States on behalf of 51 Mexican nationals on death row who were denied this right.
The ICJ held that the U.S. violated its international obligations under the VCCR, and the named individuals were entitled to review and reconsideration of their state court convictions and sentences. The Supreme Court rejected this holding in Medellin v. Texas, finding that the ICJ decision and the UN charter requiring member states to abide by ICJ decisions had no legally binding value on the U.S. — Medellin was executed shortly after the decision.
We have also seen the implications of rejecting treaty law in the context of the treatment of POWs. The U.S. has signed and ratified all four Geneva Conventions, which safeguard the rights of victims of war and occupation, and set out rules for the humane treatment of prisoners of war.
In 2006, the Supreme Court, in Hamdan v. Rumsfeld, held that Hamdan could invoke the Geneva Conventions to challenge procedures used by the military commission in his trial because compliance with the laws of war is a condition upon which the courts-martial authority was granted. This was viewed as a major victory for international law in domestic courts, particularly because the Bush-era military courts had not applied the Geneva Conventions to “enemy combatants” since the start of the war on terror.
However, the victory was short-lived. The blow to the ruling came from Congress only three months later. Congress passed the Military Commissions Act of 2006, which contains a provision forbidding any individual from invoking the Geneva Conventions or any of its protocols in any habeas corpus or civil action proceeding to which the United States, or a current or former U.S. official is a party. While the current MCA of 2009 now allows for certain Geneva Convention claims to proceed, it still bars "persons subject to military commission proceedings from asserting the Conventions as the basis for an independent cause of action."
International treaties work to safeguard the rights of all and are particularly important when U.S. law does not protect these rights. The Supreme Court recognized this principle in Paquete Habana, when it declared “international law is part of our law.” The U.S. must move towards applying this principle in both the political and judicial spheres.
Photo Credit: Alkan de Beaumont Chaglar