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Treaty FAIL
Posted by Prof | Filed under What They Really Mean Is..., What They're Not Telling You
Ok, this one is pretty easy. When the United States enters into a treaty with a foreign power, it becomes PART OF OUR CONSTITUTION. Period. According to Article Six of the US Constitution:
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
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 Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
(emphasis mine)
This is important because it means that when the US signs a treaty, we are then committed to fully and completely honoring it with the full force of law from the Federal level all the way down to your local sheriff.
Consider for a minute the Kyoto Protocol. If the US signed onto it, it would mean that the UN suddenly has the right to limit American ingenuty, technology, industry, advancement, prosperity, and sovereignty. It is a way of imposing taxes on industrial countries, paid to an un-elected world body with no enforcement powers, for the dubious cause of promoting second and third world dictators and despots with our cash. All based on a pseudo-science of global warming that more scientists daily are speaking out AGAINST.
And if we signed it, we’d be on the hook.
Now take the Law of the Sea Treaty. This Treaty has been bouncing around the UN since the Fifties and again, the US has refused to sign it. And for good reasons too:
- It vested control over seabed mining in countries that do not possess the necessary technology.
- Its governing structure guaranteed a permanent majority to the less developed countries of the G-77.
- It burdened companies who would be interested in mining with unusual costs and obligations and provided various permanent advantages to their competition. Private companies would bear the expense of developing technology, of prospecting, of paying taxes. The Authority would bear none of these. Moreover, the private company would be required to sell its technology to buyers and at prices determined by the Authority. The duration and extent of the mining rights would be determined by the Authority.
- These regulatory powers would protect markets and prices from the competition of seabed mining.
In plain English, it means that yet again, a UN council will be able to tell industrialized countries or what private companies within those countries CAN’T do, under law, within their own territorial waters, where ships of commerce or war can or cannot travel, and imposes fines (again paid to an unelected body with no enforcement power that supports dictators and despots) for violations. See this article for more detailed reasons the LOS treaty is a very bad idea. Just a taste:
“One of the concerns raised by critics of the Law of the Sea Treaty is that it could be used to sharply limit U.S. military operations. Among the examples they cite is Article 20, which stipulates: “In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.”
That pretty much sounds like someone else telling us, the United States, how we can deploy our own defense structure. Answer the question of why anyone would want to force that issue and you have your answer about the real meaning of and reason for the proposed treaty.
Which brings me to the inspiration for this piece: It seems that a treaty we signed is having some negative ramifications right here and now. These folks seem to be in the right, constitutionally speaking. Morally, I find it repugnant. What I find more repugnant, however, is that the same administration that signed the Convention on the Rights of the Child sued these two towns in California who took advantage of it…and the current administration has done nothing to stop the lawsuit from pressing forward.
Washington DC, listen up. You can’t have it both ways. It could be that this is just another case of our legislature not reading the damn bill or upon reading it didn’t understand its ramifications. Once signed and ratified, however, it is the law of the land. If you want to break the treaty, fine. If you wanted exemptions to the treaty, you should have done so before it was signed and ratified. Take this as a learning moment and consider carefully the next time you have to, you know, actually THINK about something before you do it.
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April 26th, 2009
Are you actually arguing that the United States should allow Russian, Chinese and Cuban submarines to operate submerged with our territorial sea, something that has been forbidden since the 1958 Geneva Convention on the Territorial Sea? We have been operating under the terms of the 1958 Geneva Convention for over 50 years, and we have been able to conduct all the operations we have needed to undertake and to restrict submerged foreign submarines in our own waters, so why are you using that as an argument against the 1982 LOS Convention (which has virtually the same provisions on the territorial sea as does the 1958 convention?
It appears that you didn’t realize that the Seabed Authority only has charge over the minerals (and only minerals) found _beyond_ the limits of national jurisdiction, not just the 200 nautical mile exclusive economic zone but also beyond the continental margin when it extends beyond the EEZ (as our does on the Atlantic and Arctic coasts and around our islands in the west pacific. We have full control over mineral resources inside the EEZ and on or under the continental margin.
Beyond the EEZ and the continental margin, mineral resources, and _only_ mineral resources, fall under the International Seabed Authority. Contrary to your concerns, all of the most important decisions in the Seabed Authority will be (once we join) subject to a US veto – that includes all regulations affecting seabed mining, regulations governing the administration of the Authority, any amendments to the seabed provisions of the Convention, and any plan for distribution of funds. Also, as a permanent member of the Finance Committee of the Authority we have a veto over the budget as well.
Regarding the terms under which a US firm would operate, you might note that all the foreign partners and potential investors in US seabed mining firms pulled out when the US didn’t join the convention in 1994. Since then 8 foreign operations , including companies and consortia from Germany, France, Japan, Russia, China, Korea, India and a group of eastern european companies have found the terms acceptable and have obtained exclusive access to mine sites under the Seabed Authority. Two US consortia dissolved and another has none nothing in years. Without foreign partners, capital and technology the US will never complete President Reagan’s hope for a US industry that would provide strategic materials from the deep seabed.
The LOS Convention is a complicated document that balances our interests as both a coastal state and a maritime state with both military and economic uses of the seas. While you don’t need to agree with them, you should give serious consideration to the endorsements by all living Chiefs of Naval Operations and Commandants of the Coast Guard (past and present), by the energy, shipping, fishing and telecommunications industries, and by both President George W. Bush and President Clinton.
There _are_ treaties and conventions that are in the US interest, and the 1982 Law of the Sea Convention together with the 1994 Agreement on Implementation is one of them.
April 27th, 2009
Im kinda torn on this one.
The libertarian in me says good on them, but the military man in me asks if they know how recruitment works.
Recruitment under the age of 18 requires parental consent (before anything is signed).
I never understood the dont recruit kids coalition, but thats just me. However, i do respect the fact they used our laws and constitution to defend themselves in an intelligent way. The precedent set here may help us later, so im not going to be one shouting down their actions, however misguided i may think they are.
April 27th, 2009
I think the towns have misread the treaty. The relavent language is in the section on optional protocals in your Wiki site.
The language sited is this; “are not recruited compulsorily into their armed forces… ‘
The word compusorily is the key. Essentially, we agreed not to draft anyone under the age of 18. We already don’t do that.
The parts of the treaty that are not optional protocals are not laws in effect since they have not been ratified.
That said, I take your post to be a cautionary tale on the singing of treaties. I hope the current administration would hear that caution but I doubt it.
April 27th, 2009
In view of your distaste for the LOS treaty, it is amusing that you include the link to the Wikopedia article, which for the most part states the facts and fairly represents the “debate” and its participants. You might profit by reading some of it.
Like other reflexive opponents of the treaty, you insist on misstating its provisions or at least failing to understand them. Like your thing on submarines: you fail to recognize that this provision on “innocent passage” has been in force since 1958 anyway, and does not apply to subs in their own flag state’s territorial sea. Besides, if the provision were otherwise, we would have no standing to complain about submerged foreign subs in the US territorial sea.
BTW, the UN has NO substantive powers under the treaty. None.
April 27th, 2009
I thought your explanations on the treaties and our new CinC’s view to ratify all of the UN treaties previous administrations avoided like the plague was the finest I have read. Most commentators try to bash the treaties without any explanation of how it would violate our national sovereignty and the repercussions that binding us to the government of the elect instead of the elected would be the end of America and nothing less than surrender.
You mentioned the UN convention on the rights of the child. I have printed 100’s of copies of the document highlighted with crucial passages and given them to parents. Most people will not believe he said/she said as gospel. If they read it for themselves they might. Keep up the good fight.
April 29th, 2009
Not to mention the CIFTA treaty: http://www.campaignforliberty.com/article.php?view=61
April 29th, 2009
To nit-pick a little on the submarine issue. The difference between the LOS treaty and the 1958 Convention on the Territorial Sea is that the LOS states that submarines shall operate on the surface flying the State flag, whereas the 1958 CTS states that failure to do so puts the sub outside of Right of Innocent Passage. The latter just means the state whose territorial waters are breached may attempt to expell the submarine, while the former essentially names it an act of aggression.
I think the troublesome aspect about the 1982 LOS is the technology transfer, essentially dealing a blow to intellectual property rights.
Another thing about it that bothers me is the “geographically disadvantaged States” rights. This part wouldn’t affect the US, but stating that states have equal access to sea lanes, as the 1958 conventions state, is completely separate from stating they should have equal access to the use of another state’s sovereign waters.
April 29th, 2009
The area in which technology transfer had been an issue was in the provisions of Article 5, Annex III where in the event a developing country or the enterprise could not purchase technology on the open market, commercial developers would have to sell such technology on fair and reasonable commercial terms and conditions. We never liked that and had an alternative written by intellectual property lawyers, but couldn’t get in in the 1982 convention. The solution in 1994 was to eliminate that article. The more general encouragement for technology transfer never mandated mandatory transfer or third party price setting. And from the Commerce Department perspective, we saw this as giving a better shot at overseas sales in regular commercial deals, either of marine technology or marine services, for our own industry.
In both the 1958 and 1982 Conventions, the article dealing with submarines does not mention innocent passage, but each article is included in the sections that govern innocent passage (Section 3: Innocent Passage in the Territorial Sea, Articles 17-26 in the 1982 Convention and Section III: Right of Innocent Passage in the 1958 Convention). The fact that innocent passage is not mentioned in the title of Article 20 is meaningless since it is part of the section that defines rules applicable to all ships regarding innocent passage. There is a point where parsing text becomes counter-productive, and when the parsing detaches one article from its context it does no good. Certainly it doesn’t change the right of the coastal state to take action to direct a submerged foreign sub to surface or leave the territorial sea. It is the act of not surfacing or not departing after being told to do so that could be an act of aggression and that holds under both conventions.
The land locked and geographically disadvantaged states work to the satisfaction of the states involved who viewed that as part of a package deal that would get near-universal membership that would provide long term stability. It might not seem appropriate to you, but it did to the states that were seeing the convention as a package deal. It doesn’t affect the US and other states are fee to make up their own minds on that point.
April 30th, 2009
The reason I played semantic word games is becuase that’s what a tribunal would do. Any submarine found submerged would be assumed to be violating Article 19 of the 1982 LOS, most specifically one of the following:
“(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;”
The fact that the assumption would probably be correct notwithstanding, that would still qualify a submerged vessel as in an act of aggression. Compared to merely breaching Innocent Passage under 1958 (I say this because Article 14 defines which actions are protected under RoIP,) the 1982 LOS could, if the offended state wished to play the same semantic games, classify it as a reason to declare war.
April 30th, 2009
This is why we started this site…discussion! I see from the nerve endings hit on both sides that I have made my point.
The point of course is this: if the LOS, OR ANY OTHER TREATY UNDER CONSIDERATION can engender discussion on fine points within a single societal demographic, let alone be interpreted differently by our allies or enemies, perhaps the language of the proposed treaty is too vague, too restrictive of our own sovereignty, too encompassing, or just too damn one sided.
Any treaty that is one or all of these is probably bad law, and doesn’t need to be incorporated into our Constitution.
Bad treaties with bad treaty partners were part of the reason Archduke Ferdinand wasn’t just another shooting rather than the spark of a global conflict.
April 30th, 2009
History will continue to repeat until men learn from it.
April 30th, 2009
“Incorporated into our constitution”? What are you talking about? I’m talking about a convention that will be defined by the senate in the resolution of advice and consent as being almost entirely non-self executing so some of it won’t even have effect in the US code until enabling legislation is adopted. In any case, a ratified treaty has the status of law – it won’t affect the US Constitution one iota.
Vague? That might be the case if we didn’t have 50 years of experience with the related provisions of the 1958 conventions, 25 years of watching how the EEZs are managed around the world, 15 years of observing the international seabed authority in operation and more than a decade watching the ITLOS. International law, like domestic law, builds on precedent and there is a lot on which to judge that the convention is favorable to our interests, not just our military security interests but our commercial interests as well.
That a comment thread for a blog post about a major convention results in some general criticisms is hardly a measure of the worth of the convention. Given the continuing costs to both military and commercial parties with significant stakes in the rule of law on the seas of being outside the convention (who are quite aware of the details of the convention and the status of being outside that convention), it is clear to those parties that we will be better off in the Convention where we can take advantage of its provisions and guide its implementation.
On the other hand, I understand the desire to stay free of international entanglements to preserve freedom of action. Unfortunately, staying outside won’t achieve that goal as in practical terms some of our freedoms are made moot by staying outside the convention.
April 30th, 2009
Perludicus, if a foreign submarine is discovered by a foreign state in its territorial sea, it may signal that submarine to leave its waters and if it doesn’t do so it may take action to enforce its request. The relevant provision is article 25, para 1 “The coastal state may take the necessary steps in its territorial sea to prevent passage that is not innocent.” That is a verbatim repetition of the 1958 Geneva Convention, article 16, para 1. Those times where US submarines might have operated submerged in foreign territorial seas have always been under the threat of coastal state action, just as were Russian subs in Swedish waters and North Korean subs in South Korean waters. The 1982 Convention doesn’t change that.
Arguing that the 1982 Convention, which provides a closed list of conditions on innocent passage, is somehow less advantageous than the 1958 Convention, which is a textbook example of “vague” as suggested by ‘Prof’, is flawed. Certainly you won’t consider this paragraph from the 1958 convention as a clear and limited statement:”Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law.” That vagueness of the 1958 Convention regarding the definition of innocent passage is one of the areas that the US Navy as well as commercial shippers want to firm up by joining the 1982 convention.
May 1st, 2009
Caitlyna, surprising as it may be, I tend to agree with you. However, I prefer to see treaties that leave wiggle room. I am well aware that it makes international law a mess, but it also means less interference into a country’s raison d’État. The reason I say this is because if, at some point, the implementation of a treaty (any, not just the ones at issue here) comes into conflict with our national interest, I would prefer to see a treaty vague enough that we can twist out of the implementation of it rather than being put into the position of withdrawing from or breaking it.
Kind of like how a vague enough mutual defense treaty would allow us to let an ally twist in the wind if helping them were not in our best interest.
May 20th, 2009
So, this is what my NRA friends are on about. If we make a treaty with the UN or someone banning handguns, we can thereby abrogate the 2nd amendment. Or something.
If true, this is a great thing. Next time we get a pro-life President plus 50+ pro-life Senators, we can enter into a treaty with, Ireland or Poland or best of all The Vatican City saying neither of our countries will allow abortions, period.
Proposing mischief like THIS should put a stake in the heart of folks contemplating mischief like THAT.
May 20th, 2009
Treaties and laws have equal standing in the law. Neither overrides the Constitution.
Also, treaties require a two-thirds majority, not 50+1.
May 20th, 2009
“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;”
A treaty which disagrees with our Constitution would have to be approved by a two thirds majority correct? Just like any other treaty, right? Do you honestly think that this current crop of hirelings, that have historically not been listening to us about damn near anything, would have any problem with violating our Constitution to forward whatever agenda they had on their plates? Treaties with foreign countries can be a sideways tool to change our Constitution without having to actually have the States go to all that pesky trouble of holding an election on the issue, getting 3/4ths of the States to agree, and writing into our CONSTITUTION an Amendment.
BECAUSE A TREATY HAS EQUAL FOOTING WITH THE CONSTITUTION, ACCORDING TO ARTICLE SIX OF THE CONSTITUTION.
It is not on equal footing to any other law on the books, it is part of the Constitution. It doesn’t override the Constitution because it is a PART of it. If the treaty itself violates the Constitution, but is approved by 2/3rd of our hirelings anyway, the Supreme Court has jurisdiction over implementation. Do we really want national security issues decided by the jackasses who believe that foreign laws have any place whatsoever in OUR country and have made such grievous calls in the arena of personal liberty and limited government?
May 20th, 2009
In Article VI, supreme law of the land means that the US Constitution, Laws and Treaties have precedence over the constitutions and laws of the individual states.. It does not mean that treaties become part of the constitution. You lose that understanding when you excerpt only part of the full sentence as you did in your comment.
As I said before, the Constitution is at the top and both laws and treaties must be consistent with the Constitution. Neither law nor treaty can change the constitution. When a law and a treaty are in conflict the courts may judge the expressed intent of congress for a law to supersede a treaty in force but otherwise will likely go with whichever is adopted later in time.
I do want the supreme court to be able to judge whether laws and treaties are consistent with the constitution – I certainly don’t want one branch of government – neither congress nor the president – operating without oversight by another branch. If the president wants to do something that appears to violate the constitution, then he can defend the action in court or seek an amendment to the constitution.
May 20th, 2009
@Caitlyna
Maybe I didn’t make clear my last statement:
I don’t TRUST that the current legislature would NOT enter into a treaty that violated the Constitution, simply because their agenda dictated they had to try an end-run around the American Voters I do not TRUST that the Supreme Court would uphold United States Constitutional law over foreign law. I do not TRUST that Harold Koh would NOT let himself be influenced by foreign interests if he gains the position of State Department Legal Adviser.
I DON’T trust this government (this administration or the last) to actually do work on the behalf of America’s citizens. Or to protect our Nation’s sovereignty.
May 21st, 2009
One addition to what Prof said… If the administration and Congress decide on a course of action that the courts determine to be Unconstitutional, do we trust that course of action would actually stop? Or do you think that those currently in places of power would learn a lesson from at least one former president who said, “John Marshall has made his decision, now let him enforce it!”
May 21st, 2009
If you don’t have an example more recent that Andrew Jackson and John Marshall from the early 19th century, then there is a pretty substantial case that our society has developed a respect for the rule of law that is stronger than the will of a president.
Of course, if the President, Congress and the public all desire to violate the constitution in spite of a ruling by the supreme court, then there wouldn’t be much that could be done. Whether that would be good or bad in that specific case would depend upon the case and the decision, but after nearly two centuries of respect for decisions of the supreme court, outright dismissal of its decision would be the mark of an executive tyrant.
May 21st, 2009
Ok, his was simply the most obvious.
How about FDR, to whom the current President is already being compared?
Much of the New Deal has no Constitutional basis, and the Court struck down several of the proposed laws. The SC’s opposition led to FDR requesting judges to be added so that he could appoint ones beholden to him and his ideas. The request was eventually denied, but his point came across.
What about Jimmy Carter’s Department of Education?
How does that fit in with the 10th Amendment? Since education is not delegated to the federal government, it is reserved only to the states and the people, making the Dept. of Ed. illegal… But still with us.
I’m sure that if I actually take some time to do some research, I can pick up a few more.
May 21st, 2009
Or, how about McCain-Feingold, a direct violation of the First Amendment: passed by the Legislature, signed by a President who actually said it was probably unconstitutional, and supported by a Court who didn’t have a bloody problem with it.
June 7th, 2009
That clause of the Constitution is very interesting. The thing is that it equates treaties and Congressional acts to the Constitution – but the courts are allowed to strike laws down if they conflict with the Constitution.
If Congress approves a treaty which violates the civil rights of American citizens, could that treaty ratification itself be declared unconstitutional by the Supreme Court under the same reasoning that any other act of Congress could be?
Granted, the history of McCain-Feingold doesn’t leave me too sanguine that -this- court would venture out on that limb, but still…
November 22nd, 2009
I’ve been involved in taxes for lengthier then I care to acknowledge, both on the personal side (all my employed lifetime!!) and from a legal standpoint since passing the bar and pursuing tax law. I’ve rendered a lot of advice and corrected a lot of wrongs, and I must say that what you’ve posted makes perfect sense. Please continue the good work – the more people know the better they’ll be armed to deal with the tax man, and that’s what it’s all about.