Politics & Policy

Borderline Insanity

Will the Senate allow the U.N. to control U.S. immigration law?

Attention, senators: your vote to pass the new immigration bill (S.1639) is a vote to impose United Nation’s agreements you have never ratified upon American immigration law.

S.1639 states on pages 388 -389:

(B) RULE OF CONSTRUCTION- Nothing in this Act shall be construed to

(i) supersede obligations under any treaty or other international agreement to which the United States is a party, including –

(I) the Convention on the Civil Aspects of International Child Abduction, done at The Hague, October 25, 1980 (TIAS 11670);

(II) the Vienna Declaration and Program of Action, adopted at Vienna, June 25, 1993; and

(III) the Declaration of the Rights of the Child, adopted at New York, November 20, 1959; or

(ii) limit any right or remedy under such international agreements.

The United States is “a party” to a good many international agreements. These agreements are all too often “wish lists” unconstrained by economic reality or fallen human nature.


‐ The International Covenant on Economic, Social and Cultural Rights guarantees “continuous improvement of living conditions” as well as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

‐ The Convention on the Elimination of All Forms of Discrimination against Women includes a demand for “complete disarmament, in particular nuclear disarmament under strict and effective international control.”

Congress can transform any treaty into American law

Some people, Thomas Geoghegan of the American Prospect among them, actually think we should junk our Constitution’s treaty-ratification process:

Let’s just ignore the Treaty Clause (Article II, section 2, clause 2) of the U.S. Constitution. … [W]e just pass a simple law. “Yes we will comply with Kyoto.” Or: “We’re in the ICC.” It’s a straight up or down vote in the House. Then it’s 50 votes plus the veep in the Senate, if we get rid of the filibuster under special fast-track-type rules.

I asked Matthew Spalding, director of the Heritage Foundation’s B. Kenneth Simon Center for American Studies, about the legal impact of the Senate passing any legislation which includes references to unratified treaties. Spalding said:

The Senate can’t ratify treaties that have not been presented to them by the executive. They can only provide advice and consent after the president exercises the power “to make” the treaty.

Nevertheless, they can incorporate the provisions of the treaty as law, and commit us as law (but not international treaty commitment). There have been other cases in which we agree to abide by something not ratified.


Both the Vienna Declaration of 1993 and the Declaration on the Rights of the Child of 1959 have dreadful implications for any American concerned about mandatory multilingualism, a reasonable border control policy or abuse of public benefits by immigrants.

The 1993 Vienna Declaration and Program of Action guarantees the right of linguistic minorities to “use their own language in private and in public, freely and without interference or any form of discrimination” and insists upon “the elimination of all forms of discrimination against” migrant workers as well as “the rights of everyone to a standard of living adequate for their health and well-being, including food and medical care, housing and the necessary social services.”

Note that there are no distinctions made between legal and illegal residents of a nation. All are to receive “necessary social services” and have those services provided in their own language.

The Declaration on the Rights of the Child (1959) cited by the Senate immigration bill is a U.N. resolution. The Convention on the Rights of the Child (1989) is a formal international agreement signed in 1995 by the Clinton administration, but never ratified by the United States Senate.

The 1989 Convention, not the 1959 Declaration, was cited by Justice Anthony Kennedy’s controversial Supreme Court ruling in Roper v. Simmons in 2005.

Because of the Kennedy opinion, the 1989 Convention is “radioactive” in a way that the 1959 Declaration is not. Still, the rights granted by the 1959 Declaration are spectacularly sweeping:

Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family. … The child shall have the right to adequate nutrition, housing, recreation and medical services. … [A] child of tender years shall not, save in exceptional circumstances, be separated from his mother.

Given the creativity of immigration lawyers and the willingness of federal judges to rewrite legislation according to their personal beliefs, chances are good that these endorsements of U.N. resolutions will be strictly enforced.

The Senate has a choice: (A) pass a 21stt-century version of the Bricker amendment making our Constitution superior to any and all international agreements or (B) continue to oppose limiting debate (cloture) on the immigration bill. Given this is but one of many problems with the legislation, “B” seems like the right vote.


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