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THE ATTITUDE OF THE UNITED STATES TOWARD INTERNATIONAL LAW
court rejected the petitioners’ request to overturn their conviction on the grounds
that the rule of procedural default in which a defendant could not raise as evidence
in post-conviction appeal an issue that was not raised during the trial in state court
was a violation of Article 36 of the Vienna Convention on Consular Relations. The
Supreme Court based its reasoning on paragraph two of the Convention, which
calls for state parties to implement the Convention
“in conformity with the laws and
regulations of the receiving State, subject to the proviso, however, that the said laws and
regulations must enable full effect to be given to the purposes for which the rights accorded
under this Article are intended.”
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The current Supreme Court is somewhat reluctant to take up cases involving
violations of international law for fear of being accused by Republicans of subordinating
the Constitution to foreign law. I believe much of that apprehension has to do with
a lack of understanding of the jurisdictional reach of international law and the
failure to embrace globalization and its impact on U.S. domestic and foreign policy.
Increasingly, more disputes are international or transitional in nature. The United
States global reach has made it more prone to international disputes than many other
nations. United States courts are also more accessible and sympathetic to foreign
victims of abuse than their own courts.The increase in transnational criminal activities,
including international terrorism and global financial transactions, is making it more
likely for the U.S. Supreme Court to be the forum of choice for litigating violations
of international law. Above all, many of these legal disputes are complicated by
the fact that their outcomes could have serious foreign policy ramifications for the
United States. The court must therefore balance between enforcing international law
and staying clear of political controversy that could damage the foreign policy of the
United States.
The United States Congress is a political body and much of what it does is
intended for domestic political consumption. Although the Constitution carved out
a role for Congress in foreign relations, and by default international law, Congressional
attitude toward international law is not encouraging. Congressional leaders do not
have to interact with world leaders, nor are they swayed by world public opinion,
as they do not have to be reelected by citizens of the world. By nature, members of
Congress are concerned about the opinions of the constituents and, hence, act to
satisfy their concerns.
Occasionally Congress passes laws that conflict with international law and U.S.
international legal obligations. However, the president or the Supreme Court has
interpreted these acts to indicate Congress did not intend to violate U.S. international
obligations. The Foreign Corrupt Practices Act (FCPA), the Libya-Iran Sanctions Act
of 1996, the Helms-Burton Act, the Anti-Terrorism and Effective Death Penalty Act,
the War Crimes Act, the Torture Victim Protection Act, the Dodd-Frank Act, the
Foreign Account Tax Compliance Act (FATCA), and most recently the
Magnitsky
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Vienna Convention on Consular Relations (1963), Article 36 (2).596 UNTS 261/21 UST 77/TIAS
6820.