Pacta sunt servanda

Volume II: April 1, 2021

Written by Nicholas Rice

The US signs the UN Charter. Edward Reilly Stettinius, Jr., Secretary of State, Chairman of the delegation from the United States, signing the UN Charter at a ceremony held at the Veterans' War Memorial Building on 26 June 1945. At left is President Harry S. Truman (UN Photo Archive).

Introduction

The U.S. is frequently criticised1 for its refusal to be party to many United Nations (U.N.) treaties relating to the protection of human rights and the establishment of international tribunals. Given that most members of the Western European and Others Group (W.E.O.G.)2 - a Regional Group of U.N. member states with many of which the U.S. shares important historical experiences and politico-legal values - are party to the majority of such treaties, the reason the U.S. has declined either to sign3 or ratify4 them may be constitutional.

Foreign policy concerns were a guiding influence in the writing of the Constitution5; indeed, it was intended to address the failure of the Articles of Confederation (the Articles) to guarantee the geostrategic security of the Confederation (Amar 305). The relationship between the new American nation and the international community was therefore central to the constitutional project. This is apparent in how foreign policy concerns have shaped each branch of federal government: the Supreme Court has jurisdiction over “all Cases” relating to “Treaties made” by the U.S. (art. III, § 2, cl. 1)6; the President has unilateral power to sign, terminate, and withdraw from treaties (art. II, § 2, cl. 1) (Amar 561-3); and while the Senate alone must advise on and consent to treaties (art. II, § 2, cl. 1), the support of the House is required to enact those treaties in statute (art. I, § 8, cl. 1-18).

Proceeding from a textual analysis of the relevant constitutional provisions7, a structural analysis of the Constitution as a whole, a historical analysis of international law in the late 18th century and since 1945, and a comparative analysis of constitutions in other W.E.O.G. nations, this essay will advance three constitutional explanations of why the post-1945 U.S. has been comparatively unwilling to be party to much of the corpus juris of international law as it relates to human rights law and the establishment of international tribunals. Part I will discuss how the Constitution, in both its framing and amending, sought to guarantee on a national scale many of the rights international law only later came to guarantee, meaning the U.S. was not constitutionally predisposed to ratify many human rights treaties post-1945. In Part II we will analyse how the antithetical relationship of the understandings of nationalism, democracy, sovereignty, and constitutional legitimacy promulgated by the U.N. to those enshrined in the Constitution has contributed to the increasingly unilateral rejection by the U.S. of the jurisdiction of the International Court of Justice (I.C.J.) and the International Criminal Court (I.C.C.). Finally, Part III will offer a historical explanation of the significant textual and structural barriers to the ratification and legislative enactment of international treaties embedded in the Constitution,8 drawing on the distinction between self-executing and non-self-executing agreements and the increasing use of executive agreements as examples of these barriers. The vanishing point of these three analyses is that American opposition to participation in international law is not a passing political inclination but a permanent constitutional disposition.

Part I: The Constitution as International Law before International Law

If the Constitution was an act of ‘doing’ as well as ‘saying’ (Amar 5) then the first act of ‘doing’ in the ordaining and establishing of the Constitution was the rejection of the Articles. The Articles were essentially a failed multilateral treaty (Amar 25-8), binding sovereign states together in a Confederation intended to prevent European intervention. A fundamental principle of the Constitution, enacted as it was as a rejection of the Articles, was therefore that a national constitution based on democratic popular sovereignty was a better guarantor of citizens’ rights than an international treaty between sovereign states.9 The logical extension of this principle is the belief that the Constitution, as “supreme Law of the Land” (art. VI, cl. 2), will always be the original and optimal guarantor of the rights of American citizens.

Viewed in this historical context as the world’s first written national constitution10, it is understandable that the Constitution would aspire to provide for the rights of American citizens in their entirety. It could rely on no international law to do so; indeed, it could expect interfering foreign powers to actively undermine its attempts to do so. Thus, the Constitution was framed and amended to serve the same purpose that much of international human rights law now serves11. In addition to this similarity in purpose, there are a number of other similarities between American constitutional law and later international law - referred to collectively as ‘public law’ (Levinson & Goldsmith 1799) - as external manifestations of state sovereignty (Levinson & Goldsmith 1868)12. These similarities concern their origin, uncertainty, means of enforcement, and relationship to sovereignty: first, both lay claim to  ordainment by sovereign consent prior to enforcement, through national ratification in the case of the Constitution and piecemeal ratification by U.N. member states in the case of international law (Levinson & Goldsmith 1783 s.f.); second, both are subject to partially unclear rules of recognition, amendment, interpretation, and adjudication (Levinson & Goldsmith 1801-22); third, both are unable to appeal to centralised methods of enforcement, in the absence of a non-political state actor in the case of constitutional law and an international sovereign in the case of international law (Levinson & Goldsmith 1822-42)13; and fourth, both suffer from the paradox of having to reconcile supreme sovereignty with the auto-limitation of that sovereignty (Levinson & Goldsmith 1840-62)14. In addition to their fundamental similarity of purpose as rights regimes, these four similarities emphasise that constitutional law in America was, from 1787, already fulfilling domestically many of the functions that international law would only begin attempting to fulfill from 1945.

The Constitution was designed to guarantee on the scale of a nation governed by democratic popular sovereignty many of the rights we now recognise as protected by modern international law: while the Bill of Rights (1791) guaranteed these rights against the federal government, the Reconstruction Amendments - i.e. the 13th (1865), 14th (1868), and 15th Amendments (1870) - incorporated these rights and thus guaranteed them against the states too. Given this unique constitutional position, the refusal of the U.S. to be party to many of the human rights treaties made under the aegis of the U.N. can be understood in light of a prior commitment to the Constitution as the original and optimal guarantor of the rights of American citizens.

Despite this American belief in the Constitution as the original and optimal guarantor of the rights of American citizens, the U.S. still chose to champion the two great internationalising initiatives of the 20th century: the League of Nations (1920-1946) and the U.N. (1945 -). Why has the U.S. retreated so far from its post-1945 internationalism? Though the answer is in part contextual15, it has two constitutional dimensions: first, the understandings of nationalism, democracy, and popular sovereignty enacted in the U.N. are fundamentally at odds with those of the Constitution; and second, while the Constitution takes as its legitimating agent the democratically expressed consent of the people whom it governs, international law claims legitimacy from the universal normative domain beyond the reach of amendment by democratic processes. These two constitutional factors have informed a shift to American unilateralism embodied in America’s rejection of the jurisdiction of the I.C.J. and the I.C.C.

For the European Allied powers, victory in World War II (WW2) symbolised the defeat of uncurbed nationalism and unchecked democracy, evinced in the rise to power of Hitler in Germany and Mussolini in Italy16. In America, however, victory in WW2 symbolised the triumph of a uniquely American politico-legal vision: as saviour of Europe, its understanding of nationalism, democracy, and popular sovereignty as the hallmarks of a successful state was apparently vindicated. In vowing to establish in the U.N. an international world order that would prevent the re-occurrence of global violence on the scale of WW2, the American and European powers were thus imagining vastly different systems: while the European powers sought to construct an order restraining the excesses of nationalism and unmoderated popular sovereignty, the U.S. imagined one that would protect nationalism and the expression of popular sovereignty through republican democracy17. Since, to the American understanding, the new international legal order of the U.N. would extend the conceptions of national, democratic, and popular sovereignty expressed in the Constitution, there was little reason not to champion it; conflict between international law and the Constitution was thus a logical impossibility: what the world was to gain in international law America already had in constitutional law (Rubenfeld 25). As the original conceptual differences in the U.N.’s founding led international law to diverge increasingly from these American understandings, however, decisions on the part of the U.S. not to be party to U.N. treaties would be justified on constitutional grounds: the U.S. would comply with international law only insofar as it aligned with the Constitution as the national and democratic expression of American popular sovereignty. This divergence in American and European understandings - international law constraining the sovereignty of democratic nations in the European view and facilitating the existence of that sovereignty in the American view - would over time reveal the Constitution-deep American belief in national democratic sovereignty to be increasingly incompatible with the U.N. system the U.S. had helped create.

However, it was not just on the topics of nationalism, democracy, and popular sovereignty that the U.S. and the European powers differed in assembling the post-1945 world order: the American understanding of the legitimating source of sovereignty was fundamentally different to that advanced by the U.N. (Kumm 910). The Constitution is an enactment of popular sovereignty: it is a self-given law, clarified by judicial interpretation, amended by special legislative action, and protected by powers of review exercised by every branch of federal government. In Europe, however, from the French Constitution of the Year I (1793) onwards, constitutional law has been understood to express universal laws, derived from a normative domain beyond modification by a ny democratically constituted national sovereign.18 This European view is naturally more tolerant of constraints on national popular sovereignty: if constitutions are not unique expressions of self-given politico-legal commitments - as is the case in the U.S - but rather national instantiations19 of universal laws, it is reasonable that they be constrained by human rights treaties and adjudicated by international tribunals in accordance with international law (Rubenfeld 28-9)20.

The relationship of the U.S. with the I.C.J. is most illustrative of the unilateral position it has increasingly adopted post-1945 as a result of these different understandings of nationalism, democracy, popular sovereignty, and the legitimating source of constitutions. The international jurisdiction of the I.C.J. is naturally more palatable in countries with non-American notions of constitutionalism, where supra-national universal principles rather than democratic mandates animate constitutions. In America, the status of the Constitution as the highest authority - outranking the “Laws of the United States, and Treaties made … under their Authority” (art. III, § 2, cl. 1) - to which the Supreme Court21 can refer firmly anchors all judicial matters in domestic law. The U.S. compromised on this principle in its immediate post-1945 burst of internationalism, however, by submitting a declaration in 1946 granting the I.C.J. compulsory jurisdiction over matters outlined in art. 36 § 2 of the Statute of the International Court of Justice (1946)22, which the U.S. had ratified in 1945. This internationalist act of faith was undone in favour of a reassertion of judicial sovereignty when that declaration was withdrawn in 1985 in objection to the I.C.J.’s accepting jurisdiction over the matter that led to Nicaragua v. United States of America (1984-1991). Since this withdrawal the U.S. has continued to object to the Court’s jurisdiction.23 The most recent of these objections came in 2018 when the U.S. announced its intent to withdraw from the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes - which grants the I.C.J. compulsory jurisdiction over disputes related to the Convention – in response to new cases brought against the U.S. by Palestine and Iran (Rampton et al. n.p.). While America often objects to the jurisdiction of the I.C.J., it categorically refuses I.C.C. jurisdiction. Although the U.S. signed the Rome Statute of the I.C.C. (the Rome Statute) in 2000, it retracted this signature in 2002 (United Nations n.d.) and took active legislative measures to oppose it domestically by passing the American Servicemembers’ Protection Act (2002) (ASPA)24 and internationally by negotiating agreements – specifically, U.N.S.C. Resolution 1422 (2002), U.N.S.C. Resolution 1497 (2003) (Elsea 24), and various bilateral agreements invoking art. 98 of the Rome Statute25 (Elsea 26) - that partially exempted its citizens from I.C.C. jurisdiction. Underwriting the various objections of the U.S. to the I.C.C. is a fundamental concern that its extensive powers compromise the legal sovereignty of the “Constitution” and the “Laws of the United States … made in Pursuance thereof” (art. VI, cl. 2).

According to the American understanding of the interaction of the concepts described in this Part, both the post-1985 resistance of the U.S. to the jurisdiction of the I.C.J. and its post-2002 rejection of the jurisdiction of the I.C.C. are justified. As the Constitution is the “supreme Law of the Land,” (art. VI, cl. 2) then both the U.S. as a sovereign state – subject to I.C.J. jurisdiction – and its citizens as constituents of that sovereign state – subject to I.C.C. jurisdiction – are subject to the domestic rights and obligations of the Constitution before and above the international rights and obligations imposed by either judicial body. The American retreat from internationalism is thus grounded in fundamental differences in the understandings of nationalism, democracy, popular sovereignty, and the legitimating sources of constitutions advanced by the Constitution and by post-1945 international law.

Part III: The Historicity of Textual and Structural Barriers in the Constitution

Here, finally, we turn to the concrete historical, textual, and structural explanations the Constitution offers as to the disinclination of the U.S. to ratify treaties affirming human rights or granting jurisdiction to international tribunals. We will look first at the comparative historical significance of the treaty ratification process in the Constitution; second, at how the distinction between self-executing and non-self-executing treaties demonstrates a desire to preserve the legislative supremacy of Congress; and third, at what the increasing use of non-treaty forms of international agreements – particularly executive agreements – reveals about the stringency of the ratification tests the Constitution applies to treaties in the interest of protecting American politico-legal sovereignty.

In establishing a far stronger federal government than did the Articles, the framers designed the Constitution to include protections of American national sovereignty from rebellious states, overreaching federal administrations, and meddling foreign powers. This third threat is most important for our purposes. The Constitution, more than those of other W.E.O.G. nations, makes treaty ratification comparatively difficult in a textual and structural sense26. In light of this, the post-1945 increase in the reluctance of the U.S. to ratify and enact international treaties may be by design. This temporal qualification is significant: if the framers intended the demanding nature of the treaty ratification process to protect the sovereignty of the U.S., it is logical that this skepticism towards international law should scale to its potential to encroach on sovereignty; though international law under the U.N. still suffers from enforcement problems (Martin passim), the birth of the U.N. in 1945 initiated a radical increase in the scope and enforceability of international law (Kumm 909-17). The willingness of the U.S. to engage unilaterally in uses of force not permitted under ch. VII arts. 39 or 51 of the U.N. Charter (1945)27 illustrates this constitutional inclination towards sovereignty over deference to foreign powers. In undertaking unilateral military action in Grenada (1983) (Doswald-Beck 368-374), Panama (1989) (Quigley 284-7), Sudan and Afghanistan (1998) (Lobel 547-555), Kosovo (1999) (Wippman 131-137), and Iraq (2003) (Simpson 4-12), the U.S. engaged in uses of force illegal under international law but justified with reference to self-defence. Though they are unsanctioned by international law – a system which, “while pretending to be a legal system, isn’t really a legal system” (Rubenfeld 32) – these uses of force are sanctioned by a higher authority in the form of the democratic popular sovereignty mobilised in the Constitution; specifically, by the “executive Power” of the government that Constitution vests in the “President” as “Commander in Chief” (art. II, § 2, cl. 1) charged with ensuring the “domestic Tranquillity” and “common defence” (pmbl.) of the U.S.. Instances of the illegal and unilateral uses of force by the U.S. illustrate the national security concerns foregrounded in the Introduction as guiding the textual and structural design of the treaty ratification process.

Although the Constitution vests in the President a residuum of “executive Power” (art II, § 1, cl. 1) to conduct foreign affairs (Amar 190), they may only ratify treaties with the “advice and consent of the Senate” (art. II, § 2, cl. 2) expressed in the form of a supermajority of its members. This structure diverged from common practice in late 18th century international law, according to which the signature of an executive sovereign was sufficient for their nation to become party to a treaty, with no involvement from a constitutional body being necessary. In denying the President the ability to unilaterally sign and ratify treaties, the framers sought to make the ratification of treaties more difficult (Harley 390-2) than was conventionally the case in the late 18th century. The Senate – intended to be comprised of long-serving legislators with considerable experience in foreign affairs (Amar 144-5) – was supposed to restrain the exercise of executive power in two ways: first, in accordance with the principle of the separation of powers by acting as a check on the President; and second, in a federalist sense by guaranteeing the representation of the individual states (United States Senate n.p.).28

Since 1787, most nations have not followed this rigorous American model of treaty ratification (Harley 395 s.f.), as is revealed by a comparison with the models of other W.E.O.G. nations29, 30. In the U.K., from the birth of parliamentary sovereignty with the Bill of Rights (1689) until the reformation of its powers in the Constitutional Reform and Governance Act (2010) (the Act), Parliament could not approve, reject, or amend treaties; the Government had prerogative power to sign and ratify them, meaning Parliament was only involved insofar as their enactment demanded domestic legislative change. While the Act gave the House of Commons the ability to oppose through indefinite postponements of 21 days the ratification of a treaty, Parliament still could not categorically refuse to ratify a treaty; moreover, the Act exempts many treaties from this postponement power and grants Parliament no new ability to propose amendments to treaties (House of Commons n.p.). The treaty ratification processes in E.U. member states are also comparatively less stringent than that of the U.S. In some E.U. member states, a ‘definitive signature’ can be given by the executive that makes the state party to a treaty without any legislative involvement. When a ‘signature subject to ratification’ is issued instead, the legislature must ratify the treaty; even then, 16 states require the consent of only one legislative chamber, while only 10 require the consent of both (Grosek & Sabbati n.p.). The high bar the Constitution demands of treaties in the ratification process is mirrored by the low bar it sets for terminating or withdrawing from them, furthering the textual and structural intent of the Constitution to preserve American politico-legal sovereignty: the President has unilateral power to terminate or withdraw from treaties, (Amar 191, 473) even as they lack unilateral power to ratify them.

The distinction between self-executing and non-self-executing treaties offers another example of a textual and structural barrier to treaty implementation. A self-executing treaty is “a treaty that may be enforced in the courts without prior legislation by Congress,” while “a non-self-executing treaty [is] a treaty that may not be enforced in the courts without prior legislative implementation” (Vasquez 695). Although the Supreme Court has not settled on a doctrine determining the executing status of a treaty (Vasquez 722-3),31 Amar is persuasive in arguing that any treaty that authorises a new expenditure, imposes a new internal tax, creates a new federal crime, raises a new army, or declares a war, should not be considered self-executing owing to its encroachment on congressional power (Amar 304). The distinction between these two categories of treaty is intended to preserve the power of Congress as the legislative vehicle of popular sovereignty by maximising the supremacy of federal statutes over ratified treaties. Treaties imposing significant obligations on the U.S. aren’t self-executing, meaning the judiciary can’t enforce compliance with the treaty by private individuals, state and federal executive officials, or state legislatures until they have been legislatively enacted by Congress. Although treaties not imposing such significant obligations on the U.S. may be self-executing, they are still superseded by more recent federal statute according to the ‘last in time’32 rule (Vasquez 696); or, should we agree with Amar’s more forceful reading of congressional legislative sovereignty, by federal statutes in general, even if they predate the ratified treaty.33

Finally, the textual and structural difficulties the Constitution poses to treaty ratification are apparent in the rise of non-treaty international agreements engaged in by the U.S. post-1945. Since 1945 presidents have chosen to use executive agreements instead of treaties as methods of entering into international agreements34. The ability to enter into executive agreements is “vested” in the President as part of the residuum of non-enumerated (art II, § 2) “executive power” given to the “Office” (art II, § 1, cl. 1). If the agreement implicates the President’s constitutional powers, it can be made by the President alone without congressional approval; if this is the case, it will only have the force of an executive order and can be unilaterally revoked by a future President35.. If the agreement draws on Congress’ powers, however, it becomes a congressional-executive agreement that must be passed as statute by Congress. Both executive and executive-congressional agreements are treated internationally as treaties; the distinction has only domestic significance (United States Senate n.p.). The post-1945 increase in the use of executive agreements – motivated by a desire to skirt the demanding process of treaty ratification - is apparent in the fact that in 1952, President Truman signed 291 executive agreements, more than the total number of executive agreements made in the period 1789 – 1889; in the same year the U.S. signed only 14 treaties (United States Senate n.p.).

Significant textual and structural barriers to treaty ratification in the Constitution – evidenced by the distinction between self-executing and non-self-executing treaties and the increasing use of executive agreements – vindicate the historical analysis presented in the opening to Part III. The Constitution was framed in the late 18th century with the intent to preserve sovereignty and severely restrict the ability of the executive – an executive that in the autocratic regimes of contemporary Europe engaged in international law unilaterally as embodied sovereigns – to unilaterally ratify treaties, regardless of whether their enactment would require later congressional legislation.

Conclusion

Why has the U.S. refused to ratify so much of the corpus juris of U.N. treaty law establishing human rights and granting jurisdiction to international tribunals? We have advanced a tripartite constitutional answer to this question. In Part I we established that the Constitution pre-1945 already played the role international law came to assume only post-1945, predisposing the U.S. to resist full participation in it. In Part II, we extended on this idea by examining how the legal order promulgated by the U.N. enacted European rather than American notions of democracy, nationalism, popular sovereignty, and constitutional legitimacy, leading the U.S. to adopt an increasingly unilateral opposition to international law. Finally, we investigated in Part III the historical significance of the textual and structural barriers the Constitution mounts to the ratification and enactment of treaties, as demonstrated by the distinction between self-executing and non-self-executing treaties and the popularisation of executive agreements as a mode of international agreement. The convergent thesis of these Parts is that the contemporary American reluctance36 to ratify treaties relating to both human rights and international tribunals is not a passing political inclination but an entrenched constitutional disposition.

Bibliography

Books

Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House, 2005.

Book Chapters

Posner, Eric, and Sykes, Alan. “Treaties.” Economic Foundations of International Law, 63-78. Cambridge, Massachusetts: Harvard University Press, 2013.

Government Documents

European Union, European Parliament. Ratification of International Agreements by E.U. Member States. Kristina Grosek and Giulio Sabbati. PE 593.513. European Union: European Parliamentary Research Service, 2016.

United Nations, Charter of the United Nations, 1945.

United Nations, Statute of the International Court of Justice, 1946.

United Nations, Rome Statute of the International Criminal Court, 1998.

Journal Articles

Carrington, Dorothy. “The Corsican Constitution of Pasquale Paoli (1755-1769).” The English Historical Review vol. 88, no. 348 (1973). 481-503.

Doswald-Beck, Louise. “The Legality of the United States Intervention in Grenada.” Netherlands International Law Review vol. 31, no. 3 (1984). 355–377.

Harley, John Eugene. “The Obligation to Ratify Treaties.” The American Journal of International Law vol. 13 no. 3 (1919). 389-405.

Umm, Mattias. “The Legitimacy of International Law: A Constitutionalist Framework of Analysis.” The European Journal of International Law vol. 15 no. 5 (2004). 907-931.

Levinson, Daryl, and Goldsmith, Jack. “Law for States: International Law, Constitutional Law, Public Law.” Harvard Law Review vol. 122, no. 7 (2009). 1792-1862.

Lobel, Jules. “The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan.” The Yale Journal of International Law vol. 24 no. 537 (1999). 537-555.

Martin, Richard A. “Problems in International Law Enforcement.” Fordham International Law Journal vol. 14 no. 3 (1990). 519-539.

Quigley, John. “The Legality of the United States Invasion of Panama.” The Yale Journal of International Law vol. 15 no. 276 (1990). 276-315.

Rubenfeld, Jed. “The Two World Orders.” Wilson Quarterly vol. 27, no. 2 (2003). 22-36.

Vasquez, Carlos Manuel. “Four Doctrines of Self-Executing Treaties.” American Journal of International Law vol. 89 (1995). 695-723.

Simpson, Gerry. “The War in Iraq and International Law.” Melbourne Journal of International Law vol. 6 (2005). 1-22.

Western, Shaina, Lockhart, Sarah, and Money, Jeanette. “Does anyone care about migrant rights? An analysis of why countries enter the convention on the rights of migrant workers and their families.” The International Journal of Human Rights vol. 23, no. 8 (2019): 1276-1299.

Wippman, David. “Kosovo and the Limits of International Law.” Fordham International Law Journal vol. 25 no. 1 (2001). 129-150.

Reports

United States Library of Congress, Congressional Research Service, The United States and the ‘World Court’, by Stephen P. Mulligan. LSB10206. 2018.

United States Library of Congress, Congressional Research Service, U.S. Policy Regarding the International Criminal Court, by Jennifer K. Elsea. RL31495. 2006.

Newspaper Articles

Keating, Joshua. May 17, 2012. “America the Exception.” Foreign Policy.

Rampton, Roberta, Wroughton, Lesley, and Van den Berg, Stephanie. October 4, 2018. “U.S. Withdraws from International Accords, says U.N. World Court ‘Politicised’.” Reuters.

Cyndee Todgham Cherniak. October 30, 2016. “What are the Steps Canada Follows to Ratify and Implement a Treaty?” Canada-U.S. Blog.

Websites

“Australia’s Treaty-Making Process.” Australian Government Department of Foreign Affairs and Trade. n.d.

“List of All Cases” International Court of Justice. n.d.

“Parliament’s Role in Ratifying Treaties.” House of Commons Library. February 17, 2017.

“Policy on Tabling of Treaties in Parliament.” Global Affairs Canada. March 3, 2014.

“Ratification of ILO Conventions.” International Labour Organisation. n.d.

“United Nations Treaty Collection.” United Nations. n.d.

“United States Ratification of International Human Rights Treaties.” Human Rights Watch. July 24, 2009.

“Treaties: A Historical Overview.” United States Senate. n.d.


Endnotes

1.  This essay is not written with the intent to criticise the U.S. on the basis that it has not ratified a substantial number of human rights treaties or refused to accept the jurisdiction of significant international tribunals; rather, it seeks only to analyse the degree to which the Constitution helps explain this phenomenon.

2.  The W.E.O.G. is one of the five U.N. Regional Groups of member states. It is comprised of 28 member states from Western Europe, North America, Oceania, and Western Asia. For the purposes of this essay, comparisons to other W.E.O.G. states are most productive, as comparisons with other states - i.e. members of the African Group, Asia-Pacific Group, Eastern European Group, and Latin American and Caribbean Group - would demand the discussion of a host of other social, political, legal, historical, economic, and cultural factors that sit beyond our analytic scope. Though the U.S. is not a member of the W.E.O.G., it attends its meetings as an observer and is considered a member for electoral purposes.

3.  The U.S. has not signed a number of major multilateral treaties, particularly relating to the protection of human rights: the Convention Relating to the Status of Refugees (effective 1954), the First Optional Protocol to the International Covenant on Civil and Political Rights (effective 1976), the Second Optional Protocol to the International Covenant on Civil and Political Rights (effective 1991), the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (effective 1999), the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (effective 2000), the Rome Statute of the International Criminal Court (effective 2002), the Optional Protocol to the Convention against Torture (effective 2006), the Optional Protocol to the Convention against Torture (effective 2006), the Convention on Cluster Munitions (effective 2010), and the International Convention for the Protection of All Persons from Enforced Disappearance (effective 2010) (United Nations n.p.).

4.  The U.S. has not signed but not ratified a number of major multilateral treaties, particularly relating to the protection of human rights: the International Covenant on Economic, Social, and Cultural Rights (effective 1976, signed  1979);  66 Conventions of the International Labour Organisation (effective 1930 – 1981); the First Additional Protocol to the Geneva Convention (effective 1977, signed 1977); the Second Additional Protocol to the Geneva Convention (effective 1978, signed 1977); the Vienna Convention on the Law of Treaties (effective 1980, signed 1970); the American Convention on Human Rights (effective 1978, signed 1977); the Convention on the Elimination of All Forms of Discrimination Against Women (effective 1981, signed 1980); the Convention on the Rights of the Child (effective 1990, signed 1995); and the Convention on the Rights of Persons with Disabilities (effective 2008; signed 2009) (United Nations n.p.).

5.  Slavery and democracy are the other two guiding principles at work in the Constitution (Amar 471-7). The ratification of the Reconstruction amendments – i.e. the 13th (1865), 14th (1868), and 15th Amendments (1870) – was an attempt to excise slavery from these guiding principles. Although the denial of civil and political rights to black and First Nations peoples is vital to an understanding of the Constitution, these topics – like comparisons with non-W.E.O.G. nations – sit beyond our analytical scope in this essay.

6.  Amar argues that there in fact exist two implied tiers of matters dealt with by the “judicial Power” (art. III, § 1, cl. 1) of the U.S. (Amar 227-8). According to his reading, “controversies to which the U.S. shall be a Party” are not the exclusive prerogative of the Supreme Court and can be handled by any federal court, placing them in the second tier of federal judicial matters.

7.  We will focus textually on art. I, § 10, cl. 1 (treaties); art. II, § 2, cl. 1-3 (foreign policy powers); art. III, § 2, cl. 1 (international matters); and art. VI, cl. 2 (supremacy).

8.  Although Parts I and III in particular have implications for the relationship of the U.S. to international law pre-1945, the focus of this essay will be on the relevance of the Constitution to America’s relationship to international law as it has existed under the aegis of the U.N. post-1945.

9.  I do not mean to suggest here that the Articles offered the same rights to and imposed the same obligations on citizens as did the Constitution; rather, I am suggesting that the framers could have preserved the Articles as a multilateral treaty between sovereign states, strengthening the powers of the Continental Congress as an effectively international body instead of creating a new national federation.

10.  I am excepting here the short-lived Corsican Constitution of Pasquale Paoli (1755-1769) (Carrington passim), in addition to the constitutions of the various American states extant prior to 1787.

11.  The belief that the Constitution already guarantees important rights granted under international law is especially the case of four human rights treaties the U.S. is most often criticised for not having ratified (Keating 2012):

12.  An illustrative example of the similarities between international law and constitutional law is the integrationist regionalism of the European Union (E.U.), which demonstrates that “the line between a thick, institutionalized treaty arrangement among sovereign states and the emergence of a new federal state [is becoming] vanishingly thin” (Levinson & Goldsmith 1864).

13.  Both constitutional and international law lack their own external enforcement mechanisms: “Lacking the kind of external enforcement mechanism that states provide for ordinary domestic law, public law regimes must be internally self-enforcing through some combination of rationally self-interested and normative, internalized, or role-based motivations” (Levinson & Goldsmith 1840).

14.  Amar frames this paradox in terms of the “mathematical idea of infinity and the theological idea of omnipotence,” analogising the question of whether a sovereign can limit itself to the question of whether God can create an object too heavy for him to move (Amar 292).

15.  The Cold War (1947-1991) divided the universalising post-1945 internationalist project into a sharp binary between the Eastern and Western blocs; similarly, the War on Terror (2001 -) has created a less distinct binary between those states that collaborate with the U.S. in its attempts to enact its vision of global security and those that oppose it.

16.  Rubenfeld also takes care to note that European nations in the 19th century - with the potential exception of the French Third Republic (1875-1940) - were already hostile to the idea of unchecked democracy: European nations, “with their monarchical histories, their lingering aristocratic cultures, and their tendency to favour centralized, bureaucratic governance, have always been considerably less democratic than the American democracy” (Rubenfeld 30).

17.  This constitutions of Germany and Japan - i.e. the Basic Law for the Federal Republic of Germany (1949) and the Constitution of Japan (1947) - and the organisational forerunners of the contemporary E.U. - i.e. the European Coal and Steel Community (1952) and the Council of Europe (1949) - bear the hallmarks of American attempts to enshrine the principles - if not the structures - of the Constitution in the nascent international world order post-1945 (Rubenfeld 25).

18.  Insofar as the Enlightenment ideas of the Declaration of Independence (1776) were furthered in and operationalised by the Constitution (1787), it could be argued that the Constitution - like its European analogues - lays claim to deontological foundations. There is an important distinction to be made, however: though the Enlightenment undoubtedly animates the spirit of the Constitution, it derives its politico-legal legitimacy as a document not from the innate truth of these Enlightenment ideas but from the endorsement of these ideas by the American people. Normative constitutional foundations in Europe are thereby distinguished from popular ones in America.

19.  This abstract difference is made concrete in comparing the French Declarations of the Rights of Man and of the Citizen (1789, 1793) with the American Bill of Rights (1791). The former declarations speak of universal natural rights located in a normative domain above law; the latter tell of essentially self-given rights, granted by a sovereign people to a federal government deriving its legitimacy from their popular sovereign consent. The fundamental difference between these declarations and the first ten amendments to the Constitution is whether they derive their authority from claims of universal law or from popular mandate.

20.  Rubenfeld illustrates this distinction between universal and democratic legitimacy in the cases of European and American understandings of the relationship between international and constitutional law with reference to ideas of consensus. In the European view, consensus on a perspective in international law is important among the international community in order to establish its legitimacy; to the American view, however, each nation may legitimately enact - by virtue of its popular sovereignty - its own understanding, regardless of the consensus perspective. The American conception of international law is thus more tolerant of the legitimacy of different approaches to topics in international law, so long as these approaches do not abrogate fundamental of democracy, nationalism, and popular sovereignty (Rubenfeld 30).

21.  The Constitution implies two tiers of federal judicial matters: it gives the Supreme Court sole jurisdiction over “all” cases of the first tier (art. III, § 2, cl. 1-3) while extending to other federal courts the ability to adjudicate matters of the second tier (art. III, § 2, cl. 4-7). This means there is not necessarily a right of appeal to the Supreme Court in matters of the second tier (Amar 228).

22.  The section reads:

23.  Since Nicaragua v. The United States (1984-1991), the U.S. has objected to the jurisdiction of the I.C.J. on the following occasions:

24.  The ASPA actively opposes the I.C.C. by (Elsea n.p.):

25.  The U.S. has sought to make bilateral agreements – particularly with the E.U. (Elsea 27) – drawing on art. 98 of the Rome Statute in order to secure agreements from states affirming that they will not remand U.S. citizens to the custody of the I.C.C. The text of the relevant article reads:

26.  In their analysis of why many U.N. member states have refused to ratify the Convention on the Rights of Migrant Workers and Members of their Families (C.R.M.W.) (effective 2003), Western et al. offer a more contemporary explanation of the same cautious calculus that may have informed the framers in making treaty ratification comparatively difficult in the U.S.. Western et al. note three factors that reduce the likelihood states will ratify multilateral treaties: first, the imposition by the treaty of meaningful sovereignty costs; second, the absence from the treaty of readily-invokable escape clauses; and third, the existence in the state of domestic institutions that may increase the likelihood of domestic treaty enforcement (Western et al. 1280).

27.  Ch. VII art. 39 empowers the U.N. Security Council (U.N.S.C.) to take action with respect to threats to the peace, breaches of the peace, and acts of aggression:

28.  The importance of senatorial support in treaty ratification is apparent in the fact that historically, treaties emerging from negotiations in which senators have comprised some portion of the negotiating delegation were ratified more easily those resulting from negotiations conducted purely at the direction of the executive. For instance, senators were included in the negotiation of the Treaty of Ghent (1812), the Treaty of Paris (1898), and the Charter of the U.N. (1945), all of which were later ratified; in contrast, the Wilson administration negotiated the Treaty of Versailles (1918) without senatorial involvement, potentially contributing to its not being ratified (United States Senate n.p.).

29.  In Australia, any federal minister may seek a mandate from the Cabinet to begin treaty negotiations. Once negotiated, the treaty must be approved by ministers with portfolios relevant to the substance of the treaty. The treaty is then considered in both the House of Representatives and Senate by the Joint Standing Committee on Treaties. After legislative changes necessary for the treaty to enter into force have been made, the instrument of ratification may be deposited (Australian Government Department of Foreign Affairs and Trade n.p.). This process not only omits the extra senatorial ratification vote demanded by the Constitution but also, given the integration of the executive and legislative branches in the Westminster system, ensures the support of much of the legislature during the negotiation process.

30.  In Canada, any federal agency or department may, with the consent of the Treaty Section of the Department of Foreign Affairs, enter into treaty negotiations with another State. Treaties must be tabled for 21 days in the House of Commons (the Commons) before the Government may ratify it. There is no need for a majority vote in the Commons for a treaty to be ratified and the Senate is not involved at all; rather, it is the prerogative of the executive - with the Governor-in-Council preparing an Order-in-Council allowing the Minister for Foreign Affairs to deposit the instrument of ratification – to both sign and ratify treaties. Parliament is only involved in the enactment of implementing legislation after ratification (Cherniak n.p.).

31.  Vasquez describes four tests previously applied by the Supreme Court in determining whether a treaty is non-self-executing: first, if the parties to the treaty intended that it be enacted by legislation; second, if the norm the treaty establishes is addressed in constitutional terms to the legislature rather than the judiciary; third, if the treaty purports to accomplish what, under the Constitution, may only be accomplished by statute; and fourth, if no existing statute confers a right of action on a plaintiff seeking to enforce the treaty (Vasquez passim).

32.  The ‘last in time’ rule in the context of statutory interpretation refers to the principle that where statutes - or, for our purposes, a statute and a ratified self-executing treaty - conflict, the subsequent law should prevail and repeal the earlier one to the extent of the inconsistency. It is often referred to by its Latin title: leges posteriores priores contrarias abrogant.

33.  Amar argues that art. VI, cl. 2 of the Constitution implies the supremacy of federal statutes over ratified treaties (Amar 303) by referring to the “Laws of the United States” before “all Treaties made.”

34.  Although executive agreements are the most relevant example here, there are four other ways in which the U.S. has sought to skirt the constitutional difficulty of treaty ratification post-1945:

35.  An interesting example of an organisation formed entirely through executive agreements is the Organisation for Security and Cooperation in Europe (O.S.C.E.). The Helsinki Final Act (1975), which formed the O.S.C.E., is not a treaty but a resolution formed by executive agreement.

36.  The Trump administration has radically accelerated this post-1945 retreat from treaty ratification; moreover, it has diverged from the general trend of resistance to treaties affirming human rights or establishing international tribunals by withdrawing the U.S. from a number of important international bodies unrelated to these topics. In the period 2017-2020, President Trump announced the: