I’ve often mentioned international law on this blog, but I want to spend a little more time discussing some of its finer points. This article will be rather long, somewhat tedious (unless you enjoy this stuff, in which case I say, more power to you), and very dry. But it is important to fully understand the threats facing parental rights today.
International agreements and treaties threaten to tell us as Americans how we should rule our country. While many see treaties as harmless documents purporting altruism and goodwill, the truth is that with each treaty comes an obligation to enforce it in our nation. Dr. Michael P. Farris, who holds a J.D. from Gonzaga University, and is pursuing an LLM in international law from the University of London, writes that “under the most basic rule of international law, every nation that becomes a party to a treaty is obligated to perform the duties that it assumes under the terms of the treaty. Moreover, under the Vienna Convention on the Law of Treaties, every treaty is superior to all internal law—including the nation’s constitution—with one important exception.” We will address the exception in a moment. But first, there is a critical element of international law which must be understood in order to aptly understand this exception.
When America supports a treaty, we are noting supporting a fixed document. When we sign a treaty, we agree to uphold not only the text and meaning of the treaty when we signed it, but also any additional amendments and new meanings which may follow. Treaties today are not strict documents agreed to by other nations, but conventions—groups of individuals who determine the meaning and extent of the treaty—which routinely expand in their scope and demands over the course of time.
While international agreements have a role—and an important role—in our world, this should not include taking away the ability of state lawmakers to make decisions on family law. When we sign a treaty, we give a portion of our legislative power to a group of foreigners who have probably never studied our constitutional law, possibly never visited our shores, and most certainly have not studied our state child protection laws. The child protection laws on the books in the fifty states are exceptional at providing protection for children. Signing a treaty, rightly understood, is a huge concession of state legislative power to a foreign entity.
So what is the exception? A nation may sign a treaty with any number of Reservations, Understandings, or Declarations (RUDs), which may exempt, clarify the interpretation of the article from the perspective of the signatory state, and affirm important principles which may apply to the treaty in question. The difficulty with RUDs, however, is twofold.
First, nations are consistently pressured to remove RUDs at the expense of local legislators. Once the treaty is signed, a 2/3 majority of a legislative body is not required to approve of a rescinding order for an RUD; all that is required is the executive’s signature. Thus, the ability to make laws transfers from the legislative to the executive.
The second dilemma is that RUDs are not always recognized in international law. The International Court of Justice is not required to honor an RUD. According to Article 19 of the Vienna Convention on the Law of Treaties, “A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless . . . the reservation is incompatible with the object and purpose of the treaty.” Prof. Louis Henkin, in the American Journal of International Law, notes that since all reservations are designed as opt-out statements for specific clauses of a treaty, all reservations, at least to some extent, are “incompatible with the object and purpose of the treaty,” since “the object and purpose of the human rights conventions, it would seem, are to promote respect for human rights by having countries—mutually—assume legal obligations to respect and ensure recognized rights in accordance with international standards” (Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, The American Journal of International Law, Vol 89 No 2, 343-344 (Apr. 1995)). While we certainly should respect and ensure recognized rights, an international agreement which can change from year to year without legislative approval is not the way to accomplish this aim. That is the role of our elected representatives.
So what is the solution? How do we both respect the rights of states to set child protection laws, while meeting the domestic threats to parental rights? The answer is an amendment to the US Constitution. According to the Supremacy Clause of the Constitution, the Constitution stands on equal footing with treaties. In the realm of international law, however, a provision in the Constitution which expressly touches on a subject of customary international law is considered to be overriding and preeminent. In effect, the Amendment would serve as the ultimate reservation on any treaty regarding parental rights.