Chapter 7 - The Domestic Effect of International Law

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?

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

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 agreeements?

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 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? • 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? • Is this really the right legal classification of a 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?