Self-executing Treaties Research Articles

Treaty Override

This Article explores the conditions under which a U.S. statute overrides an earlier self-executing treaty. Focusing on the often blurred distinction between three types of statute-treaty relationships—reconcilableinconsistencies, textual repugnancies, and conflicts—the Article concludes that, contrary to a common view, there is no contradiction between the 1888 Supreme Court decision in Whitney v. Robertson, stating that in the event of a conflict between a statute and a treaty the later-in-time provision always controls, and the Court’s 1933 decision in Cook v. United States, holding that a later-in-time statute does not override an earlier treaty without a clear expression of congressional intent to override. The Article explains that Cook merely finds no conflict to which Whitney’s later-in-time rule might apply: Together, the two decisions harmoniously stand for the proposition that while typically a later-in-time treaty overrides an earlier repugnant statute, a later-in-time statute overrides an earlier repugnant treaty only if Congress has clearly expressed its intent to override or if not overriding the treaty would render the statute a nullity. Though the Court did not say as much, Cook’s approach is an application of the canon of construction favoring a specific provision over a general one. Reconceptualized this way, Cook cannot be said to give general primacy to treaties over statutes.

Precontractual Damages as a Result of an Irrevocable Offer – A Resolution Within the CISG

This paper is in response to by Anne Rossen, Maria Pedersen and Thomas Neuman titled – How far does the dynamic doctrine go? Looking for the basis of pre-contractual liability in the CISG? On the backdrop of this paper, it is worth noting that the United Nations Convention on Contracts for the International Sale of Goods (CISG) is one of the most successful international commercial law treaties ever devised. It has been ratified by most of the world's important trading countries and become a template for the manner in which commercial law treaties are drafted. The CISG is considered a self-executing treaty. The CISG creates a private right of action in federal court under federal law. It provides the default set of rules that govern contracts for the sale of goods between parties located in different Contracting States, and, in some cases, where only one of the parties is located in a Contracting State. This article argues that the CISG can accommodate breaches of pre-contractual conditions by using the same procedure as for breaches of contract. It is a controversial issue but nevertheless it is arguable that the CISG can cover the internal gap via general principles embedded within the four corners of the CISG. For this reason, this article will look at Article 16(2). In particular, the following issues will be relevant, the revoking an irrevocable offer; the effects of Article 4; and the effects of Articles 71-77. More importantly, this article argues that he CISG is able to resolve a breach of article 16(2) within its four corners.

Treaty Override: The False Conflict Between Whitney and Cook

This paper explores the conditions under which a U.S. statute overrides an earlier self-executing treaty. Focusing on the often blurred distinction between three types of statute-treaty relationships – reconcilable inconsistencies, textual repugnancies, and conflicts – the paper concludes that, contrary to a common view, there is no contradiction between the 1888 Supreme Court decision in Whitney v. Robertson, stating that in the event of a conflict between a statute and a treaty the later-in-time provision always controls, and the Court’s 1933 decision in Cook v. United States, holding that a later-in-time statute does not override an earlier treaty without a clear expression of congressional intent to override. The paper explains that Cook merely finds no conflict to which Whitney’s later-in-time rule might apply: Together, the two decisions harmoniously stand for the proposition that while typically a later-in-time treaty overrides an earlier repugnant statute, a later-in-time statute overrides an earlier repugnant treaty only if Congress has clearly expressed its intent to override or if not overriding the treaty would render the statute a nullity. Though the Court did not say as much, Cook’s approach is an application of the canon of construction favoring a specific provision over a general one. Reconceptualized this way, Cook cannot be said to give general primacy to treaties over statutes.

UNDER FEDERAL LAW AND THE “LAST-IN-TIME RULE” CAN A SELF-EXECUTING TREATY WHICH CONFLICTS WITH AN EARLIER FEDERAL STATUTE SUPERSEDE THAT STATUTE?

UNDER FEDERAL LAW AND THE “LAST-IN-TIME RULE” CAN A SELF-EXECUTING TREATY WHICH CONFLICTS WITH AN EARLIER FEDERAL STATUTE SUPERSEDE THAT STATUTE?

The New York Convention: A Self-Executing Treaty

The thesis of this Article is that uncertainty regarding the Convention’s status as a self-executing treaty of the United States is unwarranted and unfortunate. Instead, both the Convention’s provisions for recognition and enforcement of arbitration agreements (in Article II) and of arbitral awards (in Articles III, IV, V, and VI) should be regarded as self-executing and directly applicable in U.S. (and other national) courts. As discussed in detail below, this is because Article II establishes mandatory, complete, and comprehensive substantive rules, directed specifically to national courts, for the recognition and enforcement of international arbitration agreements. Likewise, the history and purposes of the Convention, the language and legislative history of Chapter 2 of the Federal Arbitration Act (the “FAA” or “Act”), and the practices of other Contracting States support the conclusion that Article II is directly applicable in American courts.

State Administrations Affairs in the Field of Conclusion and Implementation of International Treaties // Poslovi državne uprave u oblasti zaključivanja i izvršavanja međunarodnih ugovora

The purpose of this article is to analyze the state administration activities in the administrative area of foreign affairs which are related to the conclusion and implementation of international treaties. After analyzing those activities in comparative law, the legal aspects of the participation of state administration bodies in Bosnia and Herzegovina in initiating of the process of conclusion of international agreements, negotiations for their conclusion, preparation of necessary documents, including instruments of ratification, publication of the text, entry into force, and termination of international treaties, as well as of their implementation in the case of self-executing treaties are presented. The conclusion is that, according to their legal nature, those activities can not be considered as extralegal activities of the state bodies that are directly derived from state sovereignty, but rather and only as the activities which are provided and arranged by law and which are in line with general administrative affairs of the state administration. However, such conclusion isn’t in contradiction to the fact that, in certain cases, those activities fall within the scope of executive powers discretion.

Myths and Realities in ‘Self-Executing Treaties’

There appears to be very few doctrines in contemporary international law that are in such a problematic state as the doctrine of self-executing treaties. It would appear that its usefulness is more in the debate it engenders than in its actual relevance to understanding the interface between international law and municipal legal systems. This is so because the term is variously applied to different circumstances and ascribed with varied meanings. One of the many meanings ascribed to self-executing treaties is that they are treaties that apply in the municipal realm on their own force, discoverable from the intent of the makers as expressed in the language of the treaty. This article queries that understanding and argues that, other than by municipal law, there is no mystical authority by which treaties are imposed on municipal legal systems and indeed municipal courts. We argue that any search for the authority of treaties in the municipal realm, ultimately leads to municipal law as the first point of focus.Key termsSelf-executing, treaties, non-self-executing, constitution, municipal law, international law, monism, dualism.

Self-executing Treaties and International Covenants on Human Rights

Self-executing Treaties and International Covenants on Human Rights

The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law

This Article is about two things: law in United States and Chief Justice John Roberts’s judicial philosophy. How do two relate? Quite nicely, actually. First, Chief Justice Roberts has penned majority opinions in landmark cases directly addressing important law issues. Second, cases involving law serve as an excellent window into a Justice’s judicial philosophy. Consider Chief Justice Roberts’s concluding paragraph in Medellin v. Texas, a watershed case in which Court held that judgments of International Court of Justice (ICJ) are generally not enforceable in United States courts: In sum, while ICJ’s judgment in Avena creates an law obligation on part of United States, it does not of its own force constitute binding federal law that pre-empts state restrictions... Nothing in text, background, negotiating and drafting history, or practice among signatory nations suggests that President or Senate intended improbable result of giving judgments of an tribunal a higher status than that enjoyed by many of our most fundamental constitutional protections. Federalism, separation of powers, treaty interpretation, U.S. sovereignty — all issues touched on in just two sentences. Moreover, as law expands from governing only relations between States to touching every area within jurisdiction of several states, status of law in United States has come under increasing scrutiny. No longer is it uncontroversial to say that international law is part of our Indeed, liberal and conservative justices routinely split over cases involving law. Part Two of this Article will provide an overview of five law issues in United States ((1) presumption against extraterritoriality; (2) human rights litigation in United States federal courts; (3) doctrine of self-executing treaties; (4) scope of treaty power; and (5) customary law as federal common law) and then provide an update on current status of these issues under Chief Justice Roberts. Part Three draws conclusions about Chief Justice Roberts’s judicial philosophy based on cases discussed and ultimately concludes that Chief Justice is a prudentialist, a judge who holds fast to the conviction that federal judges must cultivate virtues of modesty and humility, staying true to their constitutional duty to interpret law while fending off whenever possible temptation to intrude upon proper provinces of other public and private institutions.

The CISG Applies When it Says it Does, Even If Nobody Argues It: Why the CISG Should Be Applied Ex Officio in the United States and a Proposed Framework for Judges

Ho Myung Moolsan, Co. Ltd. v. Manitou Mineral Water, Inc. is an example of a common scenario. Moreover, this common scenario is likely underreported. In the United States, knowledge of the CISG is rare among both Judges and lawyers. Thus, in cases such as the above, it is quite possible for both lawyers to miss the fact that the circumstances are such that local law is displaced by the CISG. Whether one side argues the issue quite late in the process, or whether the Judge determines the law applicable on her own, Judges have little guidance as to how best to proceed in this scenario. It is this author’s contention that the CISG, as a self-executing international treaty in the United States with the preemptive force of Federal law, applies to cases where by its own terms it is applicable. This is so regardless of any local New York State rules that determine a certain length of delay in invoking the CISG amounts to a “tacit waiver.” Thus, when it has rules on point, the CISG displaces local law, even procedural law. In other words, the CISG applies ex officio. Moreover, because the CISG applies, only an effective exclusion of the CISG, as defined by the CISG, gets the parties back out of the CISG. Because the CISG covers agreements to exclude and a post-contractual agreement to exclude is governed by Article 6 on exclusion, Articles 11, 14-24 on formation, and Article 29 on modification, in order to determine that a lawyer’s conduct amounts to a “tacit waiver,” or an agreement to exclude the CISG, the Judge should analyze the conduct under the standards set forth in those articles. It is submitted that under these standards it will be exceptionally rare to fairly conclude that the litigants had either the incentive, or the requisite awareness of the CISG’s existence, to come to an agreement to exclude it in favor of local sales law.Thus, regardless of the stage in the process it is realized or argued, the CISG should prevail over local sales law when by its terms it is applicable. In a circumstance such as Ho Myung Moolsan, I argue that the Judge should either request additional briefs or decide the case under the CISG sua sponte.

Federalism and the Treaty Power: Breaking the 'Bond(s)' Between Nations: The Treaty Power and Status of Forces Agreements

Federalism principles have long impacted the balance between state and federal authority, but today these principles are impacting the nation’s implementation of treaties regulating armed conflict. In 1920, the Supreme Court decided Missouri v. Holland, 252 U.S. 416 (1920). That seminal decision held that the nation’s treaty power was not limited by the federalism constraints of the Tenth amendment. Few treaties subsequently ratified by the nation symbolize the consequence of this decision more than the NATO Status of Forces Agreement (SOFA), a treaty that operates to divest states of their traditional authority to prosecute violations of their criminal law. Ratified as a self-executing treaty while the Senate debated, and then ultimately defeated, Senator Bricker’s attempts to amend the Constitution to overrule Missouri v. Holland and limit the domestic applicability of treaties, the NATO SOFA represents the importance of the treaty power in realizing critical national policy goals. The jurisprudential foundation for this longstanding supremacy of treaty law over state law is, however, wobbling under the weight of the Supreme Court’s recent decision in Bond v. United States, 134 S. Ct. 2077 (2014). Although that decision in no way considered the impact of SOFAs, it did create a demanding standard for assessing when a treaty preempts traditional state law making authority. This article will explore the debate over the scope of the Constitution’s treaty power seen in the Third Circuit’s and Supreme Court’s consideration of the Bond case, and place the NATO SOFA treaty in its historical context. After evaluating the Bond case itself and its clear indication rule, the article next explores its implications for the NATO SOFA treaty, and consequently, the nation’s treaty commitments. The first Bond decision, Bond v. United States, 131 S.Ct. 2355 (2011), demonstrates that individual citizens will have standing to contest the validity of treaty-implementing legislation (and perhaps self-executing treaties) that circumscribes their behavior in areas traditionally reserved to the states. As a result of Bond, federal courts are now routinely hearing federalism challenges to federal prosecutions, even for violations of statutes grounded in the commerce clause or other enumerated powers far removed from the treaty power. The Supreme Court’s failure to clarify either the continued validity of Missouri v. Holland, or the scope of the constitutional treaty power in Bond, only postpones resolution of this important question. The NATO SOFA, because of its ratification amidst the Bricker Amendments attempts of the 1950s, is an important affirmation by the two political branches of the breadth and critical importance of a robust treaty power. The NATO SOFA, like many SOFAs implicates fundamental foreign policy, war powers, and national security interests of the nation, but also directly intrudes upon areas of traditional state responsibility in our federal system — criminal accountability. Failure to comply with the reciprocal treaty obligations central to the NATO SOFA would leave US military members and their families exposed to retaliatory prosecution overseas, and could affect the integrity of the NATO alliance itself. These treaties potentially represent a direct conflict between a core federal and state function, and will ultimately demand answers to the questions deferred by Bond — when in conflict, which will prevail in our federal system? Given the central concern of the Founders during the drafting of the Constitution over the states’ interference with the fulfillment of national treaty obligations, it is particularly ironic that federalism may still have an impact on such an important function of the federal government in the 21st Century. This article builds on my prior article (with Prof. Geoffrey Corn), Viewing Treaties through a Military Lens: Testing the Limits, and explains how Bond has substantially muddied the waters in relation to self-executing treaties, using the NATO SOFA as an illustration of the risk of an overbroad interpretation of Bond’s adjustment to the Missouri v. Holland precedent.

SELF EXECUTING AND NON SELF EXECUTING TREATIES WHAT DOES IT MEAN?

This article examines the concepts of self executing treaties and non-self executing treaties. These two concepts are inadvertently related to the dualist and monist theory of international law. They also relate to the question of direct applicability and municipal validity of treaties. This article will show that non-self executing treaties are not always analogous with the concept of dualism under international law. Likewise, treaties might presumably be self executing even in dualist states. It is therefore imperative to acquire an understanding of these two concepts by discerning and analysing them. Such understanding will provide clarity to the question of dualist transformation theory in regards to the municipal validity of treaties. berita politik nasional terkini aims to explore these two concepts, in particular their main ideas, how they relate and attempt to affect the theoretical problem of monism versus dualism with regards to treaties. This article traces the origins of the concept of self-executing treaties by examining it under American law and the European Union legal order as well as relevant decisions by international courts. This Article will then move to examine various scholars suggestion to establish criteria for non-self executing treaties

Implementation of International Law in India: Role of Judiciary

The effects of international law on the domestic legal order on various countries of the World are manifold. In countries which follow ‘monist’ school, international treaties can be invoked before or applied by the judiciary. These are so-called self-executing treaties. On the other hand, countries like India follow the ‘dualist’ school of law in respect of implementation of international law at domestic level. Therefore, in India, International treaties do not automatically form part of national law. They must, where appropriate, be incorporated into the legal system by a legislation made by the Parliament. Indian Judiciary, though not empowered to make legislations, is free to interpret India’s obligations under international law into the municipal laws of the country in pronouncing its decision in a case concerning issues of international law. In this respect, the Indian judiciary has played a proactive role in implementing India’s international obligations under International treaties, especially in the field of human rights and environmental law. This paper examines the role of Indian judiciary in the implementation of International law in India in the context of relevant constitutional provisions.

Judicial Immunity, Compensation for Unlawful Detention and the Elusive Self-Executing Treaty Provision: Claassen v Minister of Justice and Constitutional Development 2010 (6) SA 399 (WCC)

The issue in Claassen v Minister of Justice and Constitutional Development, was 'whether a remedy in damages should be extended in a case in which a person is detained unlawfully as a consequence of the negligently made order by a magistrate acting outside the authority of the law'. The Court noted that the Constitutional Court in Zealand had held the minister vicariously liable for the inaction of a court registrar causing the detention of Mr Zealand 'as a sentenced prisoner for some years'. According to the High Court the Claassen case should be distinguished from Zealand in that the magistrate had judicial immunity. The Court held that the common law doctrine of judicial immunity was not contrary to the Bill of Rights.

US Supreme Court, Medellín v. Texas: More than an Assiduous Building Inspector?

AbstractThe US Supreme Court case of José Ernesto Medellín, Petitioner v. Texas, decided on 25 March 2008, has generally been seen as a US refusal to follow unambiguous treaty provisions. There has not been such a strong reaction to US behaviour relative to specific treaty obligations since the 1992 Alvarez-Machain case. The Supreme Court majority (six votes to three) held that ‘neither Avena nor the President's Memorandum constitutes directly enforceable federal law’. The uncomfortable – and to many illogical – conclusion reached by the Court was that even though Avena is an ‘international law obligation on the part of the United States’, it is not binding law within the United States even in the light of an explicit presidential order. While the result may be disappointing, the case should be understood in the context of a legal system that (i) makes treaties part of ‘the supreme Law of the Land’; (ii) has developed a complicated concept of self-executing treaties; and (iii) can be hesitant to direct states (sub-national units) to follow presidential directives even on matters of foreign policy.

United States Concludes Self-Executing Treaties Intended to Ease Statutory Controls on Military Trade with Close Allies

United States Concludes Self-Executing Treaties Intended to Ease Statutory Controls on Military Trade with Close Allies

United States Concludes Self-Executing Treaties Intended to Ease Statutory Controls on Military Trade with Close Allies

United States Concludes Self-Executing Treaties Intended to Ease Statutory Controls on Military Trade with Close Allies

Self-Executing Treaties and Domestic Judicial Remedies

Self-Executing Treaties and Domestic Judicial Remedies

Federal Common Law in an Age of Treaties

In this article Professor Van Alstine explores the interaction between the limitations on the doctrine of federal common law and the power of federal courts to interpret the law within the scope of treaties. The article first reviews the constitutional foundation for the operation of treaties as directly applicable (self-executing) federal law. It then explains that, notwithstanding the Erie doctrine, federal courts may obtain lawmaking powers from either a delegation by Congress or in certain areas of uniquely federal interest. Professor Van Alstine then argues that the judicial relationship with self-executing treaty law in principle proceeds from the same source of authority as that for Article I legislation. No less than in the statutory context, therefore, a deliberate and circumscribed delegation of lawmaking powers by treaty does not run afoul of federalism or separation of powers limitations on federal common law. Even beyond such an express authorization, the special constitutional nature of treaties also profoundly affects the analysis of the lawmaking powers of federal courts in this context. As a formal expression both of national foreign affairs policy and of the international law obligations of the United States, treaty law operates at the intersection of the two most prominent fields of uniquely federal interest. As a result, Professor Van Alstine concludes that the decisive interests of national uniformity which arise in the context of formal treaty obligations - and which animate the two noted fields of established federal common law - mandate a different, and ultimately more accommodating, calculus for the interstitial lawmaking powers of federal courts within the scope of self-executing treaties.

The Judicial Power and Treaty Delegation

In this essay, Professor Van Alstine addresses the power of federal courts to develop the law within the scope of a treaty. In response to an earlier essay by Professor John Yoo in this Review, Professor Van Alstine first challenges the assertion that the President has the sole constitutional power to interpret all treaties. He argues that for those treaties that create directly enforceable domestic law, the Supremacy Clause and the judicial power of Article III of the Constitution allocate final authority over interpretation and application to the federal courts. Professor Van Alstine contends that the closest formal and functional analog for such self-executing treaties is Article I legislation. As a result, in parallel with established law with regard to statutory delegations, there is no constitutional infirmity in a deliberate and circumscribed delegation of common law powers by the constitutional treaty-lawmakers (the President with a supermajority of the Senate). Respect for the important role of the executive branch in the conduct of foreign affairs may justify calibrated deference to the reasonable interpretive views of the President. Professor Van Alstine nonetheless explains that this respect does not displace the core judicial responsibility to interpret those treaties that create domestically enforceable rights nor invalidate a properly circumscribed delegation of an authority to develop the law within their scope.