International Law, a weapon for Federal Government against State's rights

Who is in charge of applying international treaties within a federal nation? The natural answer seems to be that it is the federal government. But that wasn't an issue when treaties covered only limited matters that were truly international in character, like navigation along rivers that stretch across many nations, etc. But what happens when federal governments sign treaties as a way to impose rules on matters that used to be reserved to the states?

When federal governments signed treaties meant to secure well defined fundamental human rights, nobody foresaw any possible clash with local states within each country's borders. But nowadays, international conventions bestow dozens of rights and entitlements upon everybody, from enjoyment of the environment, to the rights to a sustainable development, to participation in cultural activities. Does it mean that those international agreements transfer such matters to federal authorities?

That is what the Argentine federal Supreme Court seems to assume. Argentina is a federal nation composed of 23 provinces and one autonomous city, Buenos Aires, the federal capital. The arrangement resembles to that of the US to some extent, although the Argentine Constitution makes the federal Congress much more powerful than its US counterpart. In Argentina, the National Congress is in charge of enacting not only federal laws, but also “common” laws, that are uniform throughout the whole nation, covering criminal, civil, mining, labor, and pensions. Nevertheless, the federal Constitution says that cases arising on these matters will be tried in provincial courts which will have the final say on them (art. 75, section 12).

Today, that is no longer the case.

A power that already had few boundaries

Certainly, the Supreme Court has always been very generous in the interpretation of its own powers. Around the middle of the 20th century, the Court started to declare that the above mentioned rule has an unwritten exception. It decided that cases would't be settled by state courts, that on the contrary, the federal Supreme Court will have the last word whenever it finds that the local court's decision is not simply wrong, but arbitrary. That necessitated a difficult distinction between mere legal error and arbitrariness, a distinction that the court manages at its own discretion. Today, most of the cases decided by the federal Supreme Court -which includes the most significant ones- are of the kind that the federal Constitution reserves to state judges.

At the beginning there were a few timid warnings about this process of encroachment upon local autonomy. Unfortunately, most Argentines seldom show concern about matters of principle if the goal seems to lead to new and more generous entitlements and rights. Law scholars applauded every step forward taken by the federal Supreme Court, and cared little when it trampled on State's (“provincias”) rights.

With an awkward sense of humor that should have been reserved for lighter issues, the new broader powers that the Court claimed to possess have been grouped by law scholars under section four of Article 14 of the federal law that defines and limits the Court's powers (Law 48). Article 14 has only three sections.

A new weapon: international law

The previous powers of the federal Supreme Court -already almost unbounded- today seem small when compared with those that it receives from international conventions. The Court has established itself as the guardian of all the rights, guaranties, goals, entitlements, and pledges declared by international conventions. Of course, that means that the Court no longer needs to make use of old devices such as the “fourth” section of Article 14, and it can assert its reviewing jurisdiction citing solemn international declarations. Without completely abandoning the cherished imaginary clause that served the federal Court so well for such a long time, the Court now uses international law to impose its own interpretation of “common” statutes previously reserved to local courts. Nowadays the federal Court even reforms local rules of procedure.

The federal Argentine Constitution dates back to 1853, but Buenos Aires Province, by far the largest and most populated, joined the union in 1860. The federal system was adopted as a means to preserve local autonomy and put an end to civil wars. The Constitution declares that all powers not expressly delegated to the federal government are retained by the provinces (art. 121).

Without changing that arrangement, the federal Constitution was amended in 1994 by adding every progressive new right that the drafters managed to find in foreign constitutions and academic conferences. They made positive discrimination for elected positions mandatory, declared collective rights, provided that the federal Congress has to delegate powers to supranational entities, ordered cultural plurality, established consumer rights, and guaranteed a healthy environment to every inhabitant -among many other things.

Just in case they forgot a right or two, the members of the Constitutional Convention of year 1994 incorporated to the federal Constitution a number of international conventions on genocide, children's rights, women's rights, discrimination, economic, social, cultural rights, etc., and provided that Argentina could not get out of them unless a majority of 2/3 of all members of the federal Congress decided to do so (art. 75 section 22).

The federal Court set itself to the task of interpreting all these rules in the light provided by the Inter-American Court of Human Rights, but also of other international courts -even on recommendations of international councils and expert bodies. And it decided to impose its views on each one of the autonomous provinces that form the Argentine federation.

Amending criminal procedure

Apart from the its landmark decisions on criminal, civil, and social security issues (“common” law that still today is theoretically outside its reviewing powers according to the Constitution) the federal Court has established new principles that modify local rules of procedure, an area in which it seldom ventured before, as it is completely outside the power of federal authorities -be they judicial, legislative, or executive.

And yet, some years ago the Supreme Court started to require high provincial courts to review facts and evidence in appeals against criminal convictions. The Court imposed its new policy by invalidating sentences that didn't comply with the new standard (“Casal” case). That created havoc in those provinces that have public oral trials and laws that provide appeals limited to matters of law only. The new rules imposed by the federal Court forced many provinces to multiply the number of higher tribunals to cope with tasks for which they were unprepared. Still today, the provinces struggle to adapt the structure and number of their courts to the rules imposed on them.

Along the same lines, the federal Supreme Court has decided that judges that had ruled on controversies arising during the investigation of a crime (searches, detention, bail, etc.) could not decide on the final verdict of guilt or innocence (cases “Llerena” and “Fraticelli”). The Court argued that a judge that had authorized a search might afterwards be predisposed against the defendant, and find it difficult to admit that the person under investigation was innocent after all. However, in order to require provinces to provide different judges to such tasks -a matter that is clearly beyond the Court's or any other federal authority's powers- the Court had to base its decision on the fundamental right to be judged by impartial judges, which certainly is recognized by many international conventions. But in reality the Court never said that those judges that had decided about searches and bails were actually partial judges. It only claimed that a law system that provides different judges for such tasks and for the final decision about guilt or innocence is better at preventing the risk of having a partial judge. Nevertheless, all that the federal Court is allowed to decide is whether a judge has actually failed to his duty to be impartial -not whether a procedural scheme is better or worse at preventing such failure. In fact, the federal Court was redesigning local institutions.

Two problems

The wide range of issues that are covered by modern international conventions pose a challenge to federal states. Simply by signing treaties and conventions, the central government can encroach on the individual provinces (or states) that form the union. Federal authorities can always claim that all that they are doing is to fulfill the nation's new international obligations.

 But on top of that, there is a second problem when the advancing federal authority is the judiciary. While a legislature can plan its reforms so as to allow for adaptation, a court's decision is almost inevitably retroactive. While legislators enact the rules that will be applied in the future, judges decide whether rules have been violated in the past. Federal laws that invade local autonomies can at least be mindful of time and resources. But federal Court sentences that alter local rules, by their very nature, create havoc by demanding immediate compliance. They alter, not only the future, but also the present, and even the past.