Should International Law Take Precedence Over U.S. Sovereignty?

Should International Law Take Precedence Over U.S. Sovereignty?

It appears that forces of international law are moving on the U.S. as they recently did in Britain.

Like it or not, we are entering an age when international law and international court rulings will have a growing effect on domestic law, alarming those who see a threat to national sovereignty. First Britain, and now the United States. Across the water, the United Kingdom suffered a major setback in the war against terror Thursday when the nation's highest court in the House of Lords ruled 8-1 that the darling of the Blair government -- the Anti-terrorism, Crime and Security Act of 2001 -- violated the larger European human-rights laws.

The antiterrorism law was enacted in the wake of the Sept. 11, 2001, terror attacks in the United States, which the Law Lords called "atrocities on an unprecedented scale." British authorities used the law to detain foreign terror suspects indefinitely without trial. This was much like the Bush administration's policy before Supreme Court rulings last June said foreign terror suspects had the right to have their cases reviewed by U.S. courts. The British policy violated a domestic law, the Human Rights Act of 1998, which was enacted by Parliament to implement the European Convention on Human Rights, the Law Lords said. One of the articles of the British act says, "Everyone has the right to liberty and security of person."

The Law Lords said "everyone" in that context means "everyone within their jurisdiction." Since indefinite detention was applied only to foreign terror suspects and could not be applied to British nationals, it was discriminatory. Therefore, foreign nationals could be held without trial only so long as it takes to process them for deportation, the lords said. British officials, like their U.S. counterparts, do not want open trials of foreign terror suspects because much of the evidence against them consists of sensitive intelligence. Such intelligence is usually solid, but because of the way in which it is gathered it might not stand up under court scrutiny. The Blair government has said it will not release the detainees until Parliament has a chance to amend the law.

The U.S. Supreme Court is getting ready to deal with the consequences of international law, in particular with its effects on the executions of foreign nationals who have committed brutal slayings in this country.

The justices have agreed to hear argument this spring on whether an order by the International Court of Justice at The Hague -- "the principal judicial organ of the United Nations" -- is binding on U.S. courts. The United States was an avid proponent of the Vienna Convention when it was formulated in 1963, mainly because it wanted to protect U.S. nationals overseas. Article 36 of the convention allows consuls in foreign countries to protect the interests of their nationals who are detained in those countries. U.S. diplomats signed the convention in April 1963 -- diplomats from 165 other nations did the same -- and President Richard Nixon sent it to the Senate, where it was finally and unanimously approved in 1969.

Moreover, the convention has been more than an idle stack of papers. The United States itself has brought 10 cases before the International Court of Justice to enforce its protections. …

There are a series of cases involving Mexican nationals that have committed serious crimes in the U.S. Suits allege that they were not advised of the right of counselor consultation that could have helped them at the time of their arrests. The pending executions have been halted for review in U.S. courts.

Consular review has been instrumental in assisting U.S. citizens that have arrested abroad.

The justices have agreed to hear argument this spring on whether an order by the International Court of Justice at The Hague -- "the principal judicial organ of the United Nations" -- is binding on U.S. courts. The United States was an avid proponent of the Vienna Convention when it was formulated in 1963, mainly because it wanted to protect U.S. nationals overseas. Article 36 of the convention allows consuls in foreign countries to protect the interests of their nationals who are detained in those countries. U.S. diplomats signed the convention in April 1963 -- diplomats from 165 other nations did the same -- and President Richard Nixon sent it to the Senate, where it was finally and unanimously approved in 1969.

Moreover, the convention has been more than an idle stack of papers. The United States itself has brought 10 cases before the International Court of Justice to enforce its protections.

The result of the case in question will have a profound effect, as once the law is ratified by the Senate it will have the weight of law under the Constitution.

It's too early to predict the outcome of the case, though at least one member of the Supreme Court, Justice Stephen Breyer, has publicly said that the high court eventually must come to terms with the impact of international law. Breyer might reasonably be expected to lead those members of the Supreme Court who feel the Vienna Convention means what it says.

Is this a threat to U.S. sovereignty? We will know the outcome from the members of Congress and from the White House before the summer recess in June 2005.