Monday, July 20, 2009

Debunking the Issue: International Law in American Courts


Judge Jack Weinstein, a federal district court judge from New York, used the UN Convention on the Rights of the Child (UNCRC) in a decision regarding parental rights. As a reminder, the US has not ratified the UNCRC; this is critical to the decision made and language used by Judge Weinstein.

Judge Weinstein admits that "a treaty has been sometimes said to have force of law only if ratified" (Beharry v. Reno, 183 F.Supp. 2d 584 (E.D.N.Y. 2002), at 593). He adds that "courts, however, often use non-ratified treaties as aids in statutory construction" (Beharry v. Reno, at 593). His intent here is to justify his use of a non-ratified treaty as an "aid" in statutory construction.

The problem arises, however, in his neglect of jurisprudence and precedent, which ought to be his primary statutory construction tool. Instead of an aid, he uses the UNCRC as his primary tool, casting aside the precedent which came before him. Under the guise of "customary international law," Weinstein declares that "United States courts may not ignore the precepts of customary international law" - a clever way to integrate the UNCRC even though it is a non-ratified treaty (Beharry v. Reno, at 597). This becomes exacerbated later in the decision, when he writes, "United States courts should interpret legislation in harmony with international law and norms wherever possible" (Beharry v. Reno, at 598).

But where does he get the idea that the UNCRC in particular is part of customary international law? To an extent, he doesn't - he writes that "the CRC has been adopted by every organized government in the world except the United States. This overwhelming acceptance is strong reason to hold that some CRC provisions have attained the status of customary international law" (Beharry v. Reno, at 600). Yet the only portions which he quotes in this and the following section which can be considered traditional (instead of novel) are portions protecting the rights of the family from arbitrary invasion. If any part of the UNCRC is considered "customary international law," it is not the portions which are used today to remove children from their homes, restrict home education, or restrict religious instruction.

This case, which was decided on January 8, 2002, has been overturned, but the threat still remains: international law is attempting to gain jurisdiction in our country. The only solution to this problem is passing an amendment to the Constitution specifically enshrining the rights of parents to direct the upbringing of their children in the supreme law of the land. The Parental Rights Amendment would provide such protection, and give Americans the solid ground needed to stand amid the swell of international law. Visit today to sign up and support the passage of the Parental Rights Amendment.

Watching the stars,

"The time is right." -- Glenstorm

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