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One-Sided: Treaties Bind the U.S., Not Always the World
Last month Senator John Kerry argued that U.S. ratification of a treaty would impact other nations but have no effect on us. He asserted that ratification of the Convention on the Rights of Persons with Disabilities (CRPD) would “give us a seat at the table” whereby we can pressure other nations to respect human rights – while requiring no changes to United States law.
Unfortunately, two cases in the news in the last week have proven that the opposite is true. Ratification of a treaty effectively binds the United States but not the rest of the world.
In the first case, Shawn Sullivan, who is wanted in Minnesota for raping a 14-year-old girl and molesting 2 boys nearly 20 years ago, will not be returned to the United States, although Great Britain had him in their custody. Sullivan, who was also accused of and has served a prison term for assaulting two girls in Ireland in 1997, was arrested in London in 2010.
But Lord Justice Moses of England’s High Court of Justice ruled in June, 2012, that to return Sullivan to the U.S. “would be a flagrant denial of [his] rights.” Moses believes Minnesota’s laws are “draconian” and that their sentencing is too strict.
Great Britain and the United States have an extradition treaty – an agreement to return wanted suspects to the nation where they are accused. We have agreed not to let their criminals find refuge here, and they have agreed to accord us the same respect.
But Lord Justice Moses has effectively nullified that treaty (which, by the way, governs a matter suitable for international treaties) and passed judgment on American law instead.
The second case, Bond v. United States, will go before the Supreme Court this spring. In this case, Carol Anne Bond was sentenced to six years under the provisions of a law passed by Congress to fulfill our obligations under a chemical weapons treaty. The case raises the question of whether Congress can use the treaty provision of the Constitution to take up powers usually reserved to the States under the Tenth Amendment.
But what is not in question is whether or not the United States is bound by its treaty obligations. Unlike Great Britain, the United States has a constitutional provision – Article VI – by which any ratified treaty becomes part of “the supreme law of the land, …the judges in every State [being] bound thereby….” So while one British judge can cast off that nation’s obligations on a whim, an American judge cannot.
When we ratify a treaty, we are bound by it. Other nations may not be bound in domestic law even by the treaties they ratify – and our ratification doesn’t impact them at all.
From these cases, two more things need to be said. First, Lord Justice Moses is not alone in his thinking that American law is too harsh. Many nations – especially in Europe – agree with him.
Yet both the CRPD and the Convention on the Rights of the Child (CRC) would establish a permanent oversight relationship whereby the United Nations can review and pass judgment on our laws and policies. We already know what they think of us; we do not need to give them any semblance of authority with which to back their opinions.
Second, the Bond case could have a major impact on parental rights in America. Should the Court reaffirm that “laws passed pursuant to treaties are not subject to 10th Amendment scrutiny,” the position first set forth inMissouri v. Holland (1920) (as paraphrased in the ABA Journal), it would validate our concern that the President and Senate could use the treaty power to override traditional parental rights.
Should the Court reverse that precedent, there will still be concerns with international law. We will still need the Parental Rights Amendment. But if they reaffirm their precedent, the need will be that much clearer.
In conclusion, treaties are serious business under U.S. law, and they must be treated as such. Despite Senator Kerry’s assurances, the CRPD and the CRC would bind American courts and lawmakers regarding family law. While other nations may handle treaties as suggestions, our Constitution venerates them as “the supreme law of the land.” Thus, the CRC and CRPD must be rejected as real and present threats to traditional American parental rights.
Director of Communications & Research