Chapter 6 - The Domestic Effect of International

Transcript:Chapter 6 - The Domestic Effect of International:
Chapter 6 - The Domestic Effect of International Law 1 The Importance of Treaties and International Agreements Treaties and international non-treaty agreements (usually executive agreements) are critical in the foreign policy world. Treaties such as the WTO treaty contain their own enforcement mechanisms, which are as effective as the signatories allow them to be. The signatories to the NATO treaty promise mutual defense and military cooperation. These are not legally enforceable promises but depend on the signatory governments to honor them. Other treaties and agreements create the framework for international trade and transportation. These also depend on the voluntary cooperation of the signatory governments, but this is usually forthcoming because of the aggregate benefit to all of keeping the system working and the individual benefit to the trading nations. What Makes a Treaty? 3 International Law (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. In practical terms, a treaty is anything that the signatories call a treaty. Under US law A treaty is anything that the president submits to the Senate for advice and consent as a treaty. The rest of the world calls the Paris Climate Agreement a treaty, but Presidents Obama, Trump, and Biden called it an executive agreement. The Courts defer to the President’s classification of the agreement. It will not review an agreement to determine if it is a treaty that must be submitted to the Senate. At least as to judicial enforcement, it may not matter whether it is a treaty or an executive agreement. Enforcing Treaties 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.’’ Head Money Cases, 112 U.S. 580 (1884) 6 The President's Role What are the president's roles in treaties? Negotiates the treaty Enforces the treaty Can abrogate the treaty. The enforcement role is critical because there is usually no recourse to judicial enforcement. Unless enabled by statute, most treaties