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society solely because of their status as members of a conquered nation, or on the basis of their religious or political beliefs, their ethnical or racial background, or their gender, or merely their general helplessness. Genocide, because it became so widely publicized by modern visual as well as aural communication, has been epitomized by the Nazis' calculated and cold blooded extermination of millions of members of the Jewish faith, not excluding hundreds of thousands of non-Jews who disagreed with this barbaric and uncivilized policy. It is on the heels of that extermination that the Genocide Convention was eventually acopted by the General Assembly of the United Nations in 1948, with the United States delegation in the forefront of the advocates for its adoption. The contemporaneous slaughter of the Polish Officer cadre at Katyn and the brutal repression and murder of millions of Russians by the Stalin regime undoubtedly also were a form of genocice. Unfortunately, we have had recurrent episodes of genocide up to this day often perpetrated by signatories of the Genocide Convention.
The problem with the ratification of the Genocide Convention is that while its aims are laudable, its de finition of genocide is broad and vague, and has been limited by design so as not to apply to offending governments and to members of political or economic groups. Its application and enforcement are left to the erratic goodwill of the member states. The fact that the majority of the members of the United Nations have signed or ratified the Convention does not mean that it has been or is being enforced, except maybe selectively: destruction of whole segments o: a population perceived to be political enemies of the State does not constitute genocide according to the Convention. Hence, Jews who are persecuted or destroyed because they are members of a political organization inimical to the dominant party in power, can be exterminated with impunity since they are not being destroyed as members of a religious or ethnic group "as such".
The problem is compounded insofar as the United States is concerned because of our unique legal system and the unquestioned supremacy our Constitution accords to treaties.
Should we ratify this Convention which, even is technically not self-executing, could take precedence ove: all of our existing laws, both federal and state? Would not ratification further elasticize current judicial interpretations of the United States Constitution given the seemingly limitless power of our judiciary to construe the "immutable" words of this cornerstone document? Once we face the fact that the constitution is subject to the vagaries of interpretation by an all-powerful federal and state judiciary, a situation without parallel in the rest of the World, we realize that what we are doing here is more than engaging in mere academic speculation.
28.g. The same treaty was held to be executory and self-executing by the Supreme Court: Foster V. Neilson, 27 N.S. (2 Pet.) 253 11829); United States v. Percheman, 32 U.S. 17. Pet.) 51 (1833); one state (California) court held that the UN Charter was self-executing; the California Supreme Court, affirming the result on the basis of the 14th Amendment, found that Article 55 of the UN Charter was "not self-executing." Sei Fujii v. State, 217 2.28 481 (1950); 242 P. 28 617 (1952)
My opposition to the ratification of the Genocide Convention stems from my view of the "sanctity" of treaties unier our system and what it can do to our establisi.ee system of law, and the fact that we appear willing to subject ourselves to this international burden without an appropriate quid pro quo from the other signatories to the Convention, mary of whom have places reservations or their ratification or accession, effectively nullifying this "treaty." I. SHOULD THE TREATY MAKING POWER BE USED AS THE BASIS FOR
ENACTMENT OF DOMESTIC LEGISLATION IN THE UNITED STATES?
It is a perversion of the treaty making power of the United States to use it to "legislate" in matters of municipal law.
we have, on the federal, state and even local levels, a plethora of legislation achieving all of the objectives of the Genocide Convention and designed to improve the quality of life of individuals in the United States. Why then ratify the Genocide Convention? All of the necessary legislation to outlaw genocide already exists in this country: these laws have been adopted and implemented pursuant to a process peculiar to American law and to American jurisprudence and are based on adherence to Constitutional tenets.
The Genocide Convention on the other hand is an amalgam of philosophical, political, and jurisprudential thinking which is not attuned to the thinking of ou: Founding Fathers when they spelled out the mechanism to guarantee individual rights afforaec American citizens under the United States Constitution or, for that matter, acknowledged specifically the rights reserved to the states or their people. The legal thinking behind the Convention does not even conform to the current understanding of international law by most knowledgeable Americans.
Back in 1952, Judge Florence E. Allen, judge of the United States Court of Appeals for the Sixth Circuit, wrote in the preface to THE TREATY AS AN INSTRUMENT OF LEGISLATION:
"The device of legislating throuch treaty has come
3Age Discrimination Act of 1975 with Amendments, 42 USC S 6101 et. seq.; Anti-Peonage Act (1867), 42 USC § 1994; Civil Rights Acts (generally), 42 U.S.C. $$ 1971 et. seq., 1975 et. seq., 1981 et. seq., 3601 et. sec.; Employment Security Act o. 1960, (Unemployment Security) 26 USC SS 3301 et. seq., 29 USC S 498, 42 USC SS501, 1101 et. seq., 1301, 1321-1324, 1361-1364, 1367, 1371, 1400; Unemployment Compensation Act 42 USC 501 et. sec.; Social Security Act 42 USC 301 et. seq.; Environmental Quality Improvement Act (1920), 42 USC 4371 et. seq.; National School Lunch Act 42 U.S.C. 1751 et. seg.; Old Age Benefits Act 42 USC 401 et. seg.; Public Health & Welfare Act 42 USC 201 et. seg.; Housing Act 42 USC 1437 et. seq.; Voting Rights Act (1965); 42 USC 1971, 1973 et. seq.; Fair Labor Standards Act 29 USC 201 et. seq.; Equal Employment Opportunity Act 42 USC 2000
escapes regulation by the treaties proposed. When
Since in the United States the treaty, when
Treaties which deal in matiers essentially
I apologize for this lengthy excerpt but, in my opinion, it is difficult to improve upon. Judge Allen's thoughts should be ever present in the collective mind and wisdom of the United States Senate when it is asked to ratify any treaty.
While the Genocide Convention may not be self-executing accorcing to current doctrine, it can be argued by some future lawyer that all of the existing legislation in the United States being in place there is no
need for additional legislation: that this treaty became law
Ratification of a treaty, such as the Genocide convention, puts us in an awkward position. A treaty becomes the supreme law of the United States; in most other countries a treaty to be enforceable must be specifically implemented by enabling leçis.ation: a treaty is ofte. worth the "piece of paper" in the immortal words of Chancellor Bismark. In the hands of some sovereigns a multilateral treaty, such as the Genocide Convention, becomes a tool for propaganda and manipulation 0: people in furtherance ca the state's byzantine and macchiavellian tactics to dominate the minds of the people othe worlá.
Even when words have the same meaning for people having a common philosophy, cultural differences may give a ċifferent content to such words; such. ¿ cichotomy is obviously more proncunced when those uitering them co not have the philosophical heritage that bincs the riations of the Free world. Much o: the rhetoric of Iron Curtain countries and even some nominally "Free verld" countries may have an emotionally true-ringing sound to the unwazy. The resort to "buzz" words that we know and cherish often have an entirely different meaning for members of other societies where the individual's rights are sharply curtailed. We tend to forget that in mary legal systems the individual is .0t at the center os the Law's concern, but rather "society" is at the center of the law's purpose and the individual's rights are viewed solely in the light of that society's welfare as perceived by its government.
A statute is adopted, under our system, by a freely elected legislature and purports to regulate the affairs of the citizens of the state. A treaty with another nation, classically, regulates the relations of the United States with another sovereign nation. It is, therefore, much more a matter of contract law than a matter of the will of the people to regulate their activities inter sese. The Framers of the Constitution had this understanċing of the purpose of treaties, yet subtle changes have been wrought in this concept.
The responsibility of the Senate in ratifying a treaty is spelled out in our constitution. The purposely general language was a compromise of differing views among the American Revolutionaries and offered a viable mechanism at that time. However, when treaties go beyond dealings between sovereigns and assume an internal or municipal impact within the contracting sovereigns' territory this constitutional provision is no longer viable. The Founding Father. felt that it would be next to impossible to get an unruly Fouse of Representatives to be as "statesmanlike" as the Senate in the Nation's dealings with other countries. Even admitting the valicity of that assumptior. it no lonçer holds true when treaties assume the character of domestic legislation.
To say that the nation. binds itse:? by contract, with a foreign power, indefinitely, or for a tern of years, ca.
see Filarteca v. Pena-Trala, 630 F.2d 876 (28 Cir. 1980) for an interesting example of jućicial reasoning concerning novel areas of international lan application to domestic u.s. law.
achieving a variety of objectives, inclui:r.g the acoption of appropriate comestic legislation, anċ the overrulinç o. its supremacy in domestic matters, is very different from stating that the Nation binds itself to achieve external objectives involving the relationship between sovereigns. Under our unique system the treaty becomes the law of the land: the fact is that the contract between sovereigns achieves the status of paramount legislation; from this premise one may argue that a treaty car abrogate legislation within a sovereign's domestic purview, particularly is it is found that there are no limitations to the treaty-making power.
To the extent that a treaty abrogates state law or federal law enacted theretofore we tread on very sensitive constitutional grounds. (The Migratory Birds case well illustrates this concern).
Pronouncements to the contrary notwithstanding the Constitution does not enable the Executive, or the Legislative, or the Judicial Branches to wield powers other than the ones specifically granted to them by the Constitution, all other powers being reserved by the states "or the people"; Concededly such "granted" powers have often been liberally construed by a Supreme Court eager to find an "implied" power to comfort a frustrated Executive.
Bear in mind, also, that there is a difference between "treaties” which are made on a bi-partite level and "conventions" which involve multilateral and diverse sovereign parties in this case members of the United Nations. Normal treaty negotiations are on a one-on-one basis with another nation; eventually a naturally satisfactory contractual arrangement is arrived at to settle differences or to agree to do certain positive things in cooperation with the other sovereign. This process of consensual bi-lateral agreement is much more difficult to achieve in the context of a convention where over a hundred nations participate in the "negotiations".
The United Nations is not a legislative body: it is an association of sovereigns who deal with each other in a sovereign capacity. The "participants" act along ideological or economic lines often without any regard to the substantive nature of a Convention: this greatly exacerbates the problem of definitions of terms. Two states, or even three and four, can substantially agree on a definition. When over one hundred nations adopt a vague compromise definition it becomes whatever it is in the eyes of the beholder: this is particularly true where historical background coupled with cultural differences, in addition to political or religious rhetoric, impose totally different meanings to identical words.
The close scrutiny and debate (at least its possibility) to which domestic legislation may be by and large subjected is absent where "legislation" is made on the Executive and Senatorial level, in derogation of Article I of the Constitution. Thus, the level at which the people through their elected representatives are made part of the "legislative process" is omitted.
A treaty which regulates the domestic affairs of a sovereign is, in fact, legislative in nature: if it cannot withstand the scrutiny of the domestic legislative process it should not be ratified, no matter how well intentioned the treaty may be.
Our system rests on the good faith and will of the Executive and the Senate, absent that, or even because of temporary aberration, treaties could be used to subvert domestic legislation: this leads me to conclude that the