US Supreme Court Declines to Weigh-in on U.N. Treaty

By Stefano Gennarini, J.D. | 2014

NEW YORK, June 6 (C-FAM) A U.S. senator says a Supreme Court ruling has cleared the way for another vote on the U.N. disabilities treaty “in the near future.” The senator’s views don’t jibe with what legal experts are saying.

A jilted wife who tried to hurt her husband’s lover with dangerous chemicals should not have been prosecuted under an international treaty against chemical weapons, the Supreme Court decided in the much-anticipated Bond ruling issued Monday.

Senator Robert Menendez immediately issued a press release saying the decision “removes any fears” that a U.N. treaty could be used to expand federal authority, undermine state sovereignty, or allow lawsuits in U.S. courts.

The case involved questions about the extent of the power of the President and the Senate to conduct foreign affairs. During hearings last November on the U.N. disabilities treaty, senators expressed the desire to learn the Supreme Court’s opinion before another vote on ratifying it. The senate rejected the treaty once before in 2012.

Menendez’s swift evaluation of the Supreme Court’s decision clashes with the legal commentary on the case, and several questions raised by Senators during the hearings remain unanswered.

Peter Spiro of Temple University wrote on the popular Opinio Juris blog that the court avoided any question about “the scope of the federal power to invade” areas reserved to states.

The President and Senate can expand the powers of Congress when they ratify a treaty according to the Supreme Court in the 1920 case of Missouri v. Holland. Senators wanted to know if the Supreme Court would overrule that precedent in the Bond case. But the Supreme Court did not address that issue. Prof. Spiro writes that Missouri v. Holland still stands.

Those who hoped for a far-reaching ruling were let down by the decision. As is often the case, the Supreme Court dodged the hard question and solved the case in the narrowest possible way.

Quite aside from Missouri v. Holland, other objections to ratifying the U.N. disabilities treaty need to be answered.

The Friday Fax previously reported that Senators and legal experts who testified at the hearings in 2013 were especially concerned with the arguments for ratification from the Obama administration.

The treaty “places no obligation” on the U.S. and “requires no change to U.S. law” Menendez said in the press statement Monday—repeating arguments made by the Obama administration at the senate hearings. Disabled Americans abroad will instead benefit from U.S. ratification because other countries would be bound to adopt certain laws, according to administration officials.

Prof. Jeremy Rabkin disagrees. “Ratifying this convention would commit the United States to obligations we cannot now foresee,” he testified. The George Mason University Professor warned the U.S. already has a public relations problem globally and that saying the treaty imposes obligations on other countries but not on the United States does not send the right message.

Susan Yoshihara of C-FAM, publisher of the Friday Fax was skeptical that the U.S. could prevent the development of an international norm about abortion through the treaty, regardless of the reservations the United States could make to the treaty. “I am not optimistic that we can be fully inoculated” from officials expanding the application of the vague language in the Disabilities Treaty. 

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