1

Chapter 7 - The Domestic Effect of International Law

2

What Makes a Treaty?

(1) the states intend the agreement to be legally binding under international law;

(2) the agreement deals with significant matters; (3) it clearly describes the obligations of the

parties; and (4) it takes a form consistent with the intent that it

be legally binding.

3

Enforcing Treaties

What is the international law significance of a treaty? What happens if a country does not honor a treaty? How are international trade rules enforced? Is there an international law enforcement system for

other treaties? What mechanisms can be used, short of war, for

multilateral treaties such as the those deal with atomic energy? What is going on with Iran in this regard? India?

4

Judicial Enforcement of Treaties

The treaty must provide the court with sufficient detail to allow the court to determine whether the enforcement action taken by the executive is supported The intelligible principle from adlaw

Private enforcement is determined by the same standards as private enforcement of statutes

5

Self-Executing Treaties

Presidential enforcement requires less detail in treaties because the courts will defer to executive interpretation of the treaty Like Chevron

Most treaties do not contain enough specific detail to allow private enforcement This requires Congress to pass legislation to enable

the treaty Treaties with enough detail on their face for enforcement

are called self-executing treaties Can treaties raise taxes? Other limits?

6

Senate Ratification

What is the legal effect of ratification? What does advice and consent mean? Was the senate meant to participate in drafting treaties?

What is the downside to senate participation? What if the senate will not ratify without changes?

Does this undermine the president's constitutional right to negotiate treaties?

Fast track - the Senate promises to not mess with the treaty, only to vote it up or down.

7

How do we decide that a treaty means?

What did the president want to use to justify reinterpreting the ABM treaty?

What is Biden's complaint? How is amending a treaty different from

terminating it? Are the (unratified) amendments legally

enforceable - assuming any of the treaty is? Do the amendments just become executive

agreements?

8

Relevance of Senate Ratification History to Treaty Interpretation (April 9, 1987) - 159

What is Biden addressing in this report? If these deliberations were intended to be a binding part

of the treaty, what could the Senate do to make them binding?

Whose representations should count in construing a treaty?

What can the senators do if they believe that a provision in the treaty is ambiguous?

What does this report say should happen if the president wants to use secret side deals to change the meaning of the treaty?

9

The President's Role

What are the president's dual roles in treaties? Negotiates the treaty Enforces the treaty

Why is the enforcement role critical? Why is the president's role more important in

international law?

10

What Type of Legal Relationship does a Treaty Create?

What type of legal document does this report say a treaty is? What does this imply about enforcing the rights and

duties under the treaty? Is this really the right legal classification of a treaty?

Biden says the executive or the courts should: ‘‘...give the specific words of the treaty a meaning

consistent with the shared expectations of the contracting parties

What is the best evidence of the meaning of the treaty?

11

Abrogating Treaties - Goldwater v. Carter, 617 F.2d 697 (1979)

Vacated by United States Supreme Court as non-justiciable

What happens if conditions change, say an ally goes communist? Who evaluates these changes? Why not go to the senate to get the treaty modified? When do modifications amount to abrogating the

treaty? Who has final authority to send in troops when there is a

mutual defense treaty?

12

Koplow's Factors to Evaluate Reinterpretations of Treaties

(a) what the Senate said in providing its advice and consent; (b) what was said to the Senate prior to its consent; (c) the attitude of the treaty partner(s) toward competing treaty

interpretations; (d) support in the treaty text and record for competing

interpretations; (e) the record of ‘‘subsequent practice’’ by the treaty parties; (f) how different the new interpretation is from the old; (g) whether the new interpretation purports to create new

obligations or to release old ones; and (h) whether there are changed circumstances that affect the treaty.

13

Legislative Enabling of the Treaty

What if Congress has passed legislation to enable the treaty?

Does the president's abrogation of the underlying treaty change this legislation? How must the legislation be changed?

While the president might refuse to enforce the legislation, will the courts be bound to respect this decision as regards private enforcement?

Does this legislation have any international significance?

14

Executive and Other Agreements

Turns out that we sign very few treaties, preferring to do everything with executive agreements

15

Types of Executive agreements

Congressional-executive agreements Congress either approves them or delegates

approval to the president Agreements made pursuant to treaty

Probably implicitly authorized by the treaty Pure executive agreements, such as the Iran

hostage settlement

16

Made in USA Foundation v. US, 242 F3d 1300 (2000)

This is a fight over what can be the subject of a treaty versus an executive agreement

Does the constitution give any guidance? Was the court able to find any bright line? What issues arise if the court tries to decide this?

17

Note 6 - 172 - Case-Zablocki Act: Congressional limits on agreements

What does the Case-Zablocki Act require? What if the president does not comply? Does that make the agreements void? Has congress successfully limited the president's

ability to make secret deals?

18

Review of congressional limits

Does making an agreement give the president the power to carry it out if congress disagrees?

What can he do without congressional support? How can congress stop enforcement if they do

not have sufficient votes to override a veto of a specific law overruling the agreement?

19

Do Treaties supersede the Constitution? - Reid v. Covert, 354 US 1 (1957)

What are the facts? Were defendants US citizens?

Where did the crimes take place? Why are they being tried by military courts? Is the defendant active duty military? What constitutional provision do the defendants

say was violated? We will see this issue in the detainee cases

20

The Treaty

What does the treaty provide? May treaties override the constitution? What did the court say about a subsequent

statute overriding a treaty? Must the statute obey the constitution? What did the court decide about trying these

women in military courts? Why can soldiers be tried in military courts?

21

Committee of US Citizens living in Nicaragua v. Reagan, 859 F2d 929 (1988)

What did the International Court of Justice find? What did the US do to avoid this judgment? What did Congress do in violation of the

judgment? What are the plaintiffs seeking?

22

What is the Domestic Effect of International Law?

The first issue is whether Congress may override a treaty by statute

Since this is a subsequent statute, it overrides. Is this one answer to the question of where the

constitution provided a way to end treaties? What does it imply about the President's views?

What about its violation of international law? Can the US escape the consequences of violating a treaty

by abrogating the treaty?

23

Head Money Cases, 112 U.S. 580 (1884)

What do treaties depend on for enforcement? As the Supreme Court said in the Head Money

Cases, a treaty ‘‘depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations . . . [but] with all this the judicial courts have nothing to do and can give no redress.’’

24

Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972)

The UN Security Council required an economic boycott of Rhodesia What does that tell us about the US president's

position at the time on the resolution? Senator Byrd amended a statute to block the boycott

Why an amendment, not a separate law? Did the court find that this abrogated our treaty

obligations? Are we still part of the UN?

25

Who has Standing in the International Court of Justice?

Who can be a party in the International court of Justice? Could plaintiffs have brought their action in the

ICJ? Why is this a problem with their asserting rights

under the ICJ judgment in US courts? What did the US agree to when it was bound by

the ICJ?

26

5th Amendment Claim: Is Rejecting the ICJ Arbitrary?

(1) Nicaragua had not itself consented to, and therefore could not invoke, ICJ jurisdiction;

(2) the dispute with Nicaragua was one involving ‘‘armed conflict,’’ collective self-defense and preservation of regional stability, and thus fell outside the ICJ’s jurisdiction as set forth in the U.N. Charter and in the ICJ’s own precedents; and

(3) the United States itself had never consented to jurisdiction over this type of conflict since, by reservation, it had expressly excluded ‘‘disputes arising under multilateral treaty’’ from the scope of its consent.

27

Executive Agreements and Statutes - United States v. Pink, 315 U.S. 203, 230 (1942)

the Supreme Court declared that a treaty is the law of the land, and that ‘‘international compacts and agreements . . . have a similar dignity.’’ While the case law suggests that congressional-executive agreements and agreements made pursuant to treaties have the same legal effect as constitutional treaties, it is unclear about the effect of sole executive agreements on prior statutory or treaty law.

What does this mean? Can an executive agreement override a statute? Does it matter whether it is a foreign national security

matter?

28

The Domestic Legal Effect of Customary International Law and Jus Cogens

Remember, this is about the domestic enforcement of customary international law and jus cogens Can a plaintiff get a US court to issue an order

enforcing these agreements, absent any authorization in the form of a statute, i.e., if they have not been executed by Congress?

There may very effective international enforcement and still no domestic enforcement