Treaty Confusion

In another forum there has been a discussion of the fantasy many on the left hold that any minute now President Bush and Vice president Cheney will be put on trial for “war crimes” and vaguely understood violations of “international law”. When it becomes clear that these concepts are simply too useless to hold much weight they fall back on the idea that treaties the US enter into become binding on our government beyond it’s own ability to avoid, change or mitigate. This post is a reworking of my response on that forum.

The idea of the person I am responding to is that since some in the UN seem to feel that the invasion of Iraq was against UN mandate and since UN mandates are binding by treaty (since we signed onto the UN charter) that thus all UN mandates are legally binding upon the leadership of the United States.

Posted on 01.03.2009 at around 14:30 EST.

The US is not bound to all UN declarations as if they were constitutionally sacrosanct. In short, the UN charter does not serve to raise each and every US mandate to the level of treaty provision, nor are treaties empowered above congress or the Presidency.

To believe that it is so is to, in effect, hand final control over US policy and security to the UN, and that is simply not the case in either theoretical or actual fact. Part of your misunderstanding of this stems from a simplistic and incomplete understanding of the issues at every single level.

You’ll have to pardon me – I really wasn’t aware till now of the depth to which you actually misunderstood this legal situation. Let’s start with your pet quotation…

“THE SUPREMACY CLAUSE Article. VI. 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.”

The language here is fairly clear, the treaties made by the federal government supersede state law and are the “law of the land”. That language means that treaties, being an act of congress, then become themselves an act of congress. They do not trump congress (who approved the invasion of Iraq and thus authorization for that invasion was also the “law of the land”) or the president in those circumstances where the Presidency is empowered to act without congressional approval.

This is an old and settled area of law by the way which is one of the reasons it took a while to sink in how entirely you misunderstand it.

“Can a treaty override an individual right protected under the Constitution? In its 1957 decision in Reid v. Covert, the Supreme Court held that the “obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” There is perhaps no element of the foreign relations law canon more universally held than the proposition that constitutional rights prevail as against inconsistent international agreements; a consensus of commentators, courts, and other constitutional actors has long held that, in this respect, the Constitution stands supreme.” – Source: Peter J. Spiro, TREATIES, INTERNATIONAL LAW, AND CONSTITUTIONAL RIGHTS, 55 Stanford Law Review 1999 (2003)

In short, the US Constitution is supreme over any treaty. That means, among other things, that we cannot give away by treaty the provisions in the Constitution that allow the president and congress to initiate military action.

Just for starters, you may want to begin your education on this topic with Reid v. Covert (1957). In short, it has been conclusively ruled by the Supreme Court that treaties do NOT supersede the Constitution. Since the Constitution grants the President and Congress the power to use military force (and since Bush did in fact follow constitutional law before the Iraq invasion) the issue of whether or not that might conflict with treaties (the UN) is moot.

Did you really think that the US constitution would demand that we place our ability to defend ourselves under the authority of a foreign power? Never mind answering – yes, you did.