Part 1: Treaties - a primer.
Please bear in mind that this primer is in many ways overly simplistic and takes much for granted. The very establishment of the legal framework
of international law is a rich collection of material; most of which is shunned by politicans who deal mostly in the tools of theater and public
opinion; it is also shunned by the public media who caters to motives of profit and the expedience of delivering their product, not it's comprehension
or application. So as this thread develops, assuming their is an interest... much unfamiliar material may surface in unexpected ways.
What I offer here is a layman's attempt to begin a primer to a topic that is the cornerstone of international relations, and ironically, the prime
tool to 'globalize' the governance of the planet.
I start by pointing out the "irony" because there is something strange afoot in the world of those who strive to drive sovereign nations of the world
into a "new world order," as was lauded so prominently by former President George H. Bush in a State of the Union address that has garnered global
First, I would like to borrow the words of Frederic L. Kirgis who in 1997 wrote for the American Society of International law:
There is confusion in the media and elsewhere about United States law as it relates to international agreements, including treaties. The confusion
exists with respect to such matters as whether "treaty" has the same meaning in international law and in the domestic law of the United States, how
treaties are ratified, how the power to enter into international agreements is allocated among the Executive Branch, the Senate and the whole
Congress, whether Congress may override an existing treaty, and the extent to which international agreements are enforceable in United States courts.
Under international law a "treaty" is any international agreement concluded between states or other entities with international personality (such
as public international organizations), if the agreement is intended to have international legal effect. The Vienna Convention on the Law of Treaties
sets out an elaborate set of international law standards for treaties, broadly defined.
Confusion indeed, Mr. Kirgis. In order for two or more nations to enter into a treaty they must first have the mandate of those they respectively
govern to represent them and their well-being... which is to say, they must be representatives of a "sovereign" people. Applying the terms of a
treaty to the detriment of one of the groups of people represented would be ostensibly contrary to the intent of the people represented. Yet, how
often is the treaty even an element of public disucssion? How many actual citizens (not including business associations, industrial combines, and
financial cartels) actually 'advise' the adoption of an international treaty?
And what of this "treaty of treaties"
which one could reasonably assume contains the provisions and stipulations which protect those subject to
It is called Vienna Convention on the Law of Treaties
a formal document which many nations have ratified... although perhaps surprisingly, not all.
As one might expect, this particular 'treaty' is overtly straightforward... and the key provisions in it's initial declarations are noteworthy:
.... ever-increasing importance of treaties as a source of international law and as a means of developing peaceful cooperation among nations,
whatever their constitutional and social systems,
.... the principles of free consent and of good faith and the pacta sunt servanda (((Latin for "agreements must be kept"))) rule are
.... disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of
justice and international law,
.... the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from
treaties can be maintained,
.... the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and
self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the
prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all,
.... the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the
maintenance of international peace and security, the development of friendly relations and the achievement of cooperation among nations...
Note the explicit acceptance by those bound by the treaty of ... developing peaceful cooperation among nations, whatever their constitutional and
social systems; the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States; of
non-interference in the domestic affairs of States; of the prohibition of the threat or use of force
; and of universal respect for, and
observance of, human rights and fundamental freedoms for all.
It all sounds perfectly resonable doesn't it?
This treaty has 'rules' which say that it pertains only to treaties between states and implies that international organizations are exempt from such
For reasons which I have not found articulated anywhere, the above treaty (the VCLT) the United States is one of the 45 signatories of the treaty...
but is among the 15 states that have not "ratified" it.
Again, from Mr. Kirgis:
"Treaty" has a much more restricted meaning under the constitutional law of the United States. It is an international agreement that has received
the "advice and consent" (in practice, just the consent) of two-thirds of the Senate and that has been ratified by the President. The Senate does
not ratify treaties. When the Senate gives its consent, the President--acting as the chief diplomat of the United States--has discretion
whether or not to ratify the instrument. Through the course of U. S. history, several instruments that have received the Senate's consent have
nonetheless remained unratified. Those instruments are not in force for the United States, despite the Senate's consent to them.
(((bold is mine)))
So those of you who thought our Congress or Senate was the final arbiter of international treaty accession need to reconsider. This is not without
contention however, because legislators have long tried to curb the vague power of the Executive to make binding agreements for the United States
based solely on his (or her) authority.
I find it somewhat naive - in this day and age - to accept another of Mr. Kirgis' statements:
At one time there was some doubt whether a treaty (adopted with the consent of two-thirds of the Senate) must comply with the Bill of Rights, and
the Supreme Court has yet to hold a treaty unconstitutional. Nevertheless, there is very little doubt that the Court would do so today if a
treaty clearly violated the Bill of Rights. Even more certainly, it would hold unconstitutional a Congressional-Executive agreement or a Sole
Executive agreement that is inconsistent with the Bill of Rights.
Perhaps my cynism, after the decades of the decline of rights in America, makes me jaded and unwilling to beleive this. But as of now, I can't see
any Court of our land overriding the commerical-political expedience of certain "Acts" and "Laws," especially when they are driven by the
super-citizens of corporate America... or the supranational cartels that infest the innards of our current political rulers.
Mr. Kirgis' summary is nonetheless accurate and worth recalling:
To summarize: the Senate does not ratify treaties; the President does. Treaties, in the U. S. sense, are not the only type of binding
international agreement. Congressional-Executive agreements and Sole Executive agreements may also be binding. It is generally understood that
treaties and Congressional-Executive agreements are interchangeable; Sole Executive agreements occupy a more limited space constitutionally and are
linked primarily if not exclusively to the President's powers as commander in chief and head diplomat. Treaties and other international agreements are
subject to the Bill of Rights. Congress may supersede a prior inconsistent treaty or Congressional-Executive agreement as a matter of U. S. law, but
not as a matter of international law. Courts in the United States use their powers of interpretation to try not to let Congress place the United
States in violation of its international law obligations. A self-executing treaty provision is the supreme law of the land in the same sense as a
federal statute that is judicially enforceable by private parties. Even a non-self-executing provision of an international agreement represents an
international obligation that courts are very much inclined to protect against encroachment by local, state or federal law.
Another useful read for the truly interested can be found here: digitalcommons.law.yale.edu...
and here untreaty.un.org...
edit on 22-5-2012 by Maxmars because: (no reason given)