Informed Citizens. Accountable Power.

“The [U.S.] Constitution is a charter of power granted by liberty,” not, as in Europe, “a charter of liberty…granted by power.”

— James Madison, writing in the National Gazette in 1792

Central Question: 

Is American democracy exceptional, at least in some respects? In what ways would these unique features of the legal system and its jurisprudence cause resistance from the US in the international sphere? What are realistic solutions to these problems?

Key Terminology: 

Definition of a Treaty under International Law: 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. (Source)

Definition of a Treaty under the US Constitution: “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. Not all international agreements negotiated by the United States are submitted to the Senate for its consent. Sometimes the Executive Branch negotiates an agreement that is intended to be binding only if sent to the Senate, but the President for political reasons decides not to seek its consent. (Source)

“Congressional-Executive agreements”: Often, however, the Executive Branch negotiates agreements that are intended to be binding—without the consent of two-thirds of the Senate. Sometimes these agreements are entered into with the concurrence of a simple majority of both houses of Congress; in these cases the concurrence may be given either before or after the Executive Branch negotiates the agreement. Although some Senators have at times taken the position that certain important international agreements must be submitted as treaties for the Senate’s advice and consent, the prevailing view is that a Congressional-Executive agreement may be used whenever a treaty could be. (Source)

“Presidential,” or “Sole Executive” agreement: The President simply enters into an agreement without the intended or actual participation of either house of Congress (a “Presidential,” or “Sole Executive” agreement). The extent of the President’s authority to enter into Sole Executive agreements is controversial. Certain agreements incidental to the operation of foreign embassies in the United States could be done as Sole Executive Agreements. The agreement-making scope of these two sources of Presidential authority is nevertheless somewhat vague. (Source)

Constitutional Dualism: An approach to the relationship between international and national law that emphasize the difference between the two, and requires International law has to be national law as well, or it is no law at all. Without this translation, international law does not exist as law.

Dualism is described in opposition to monism, which holds that the internal and international legal systems form a unity. 

Because the US is a dualist system, 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. Treaties and other international agreements are subject to the Bill of Rights. All treaties are the law of the land, but only a self-executing treaty would prevail in a domestic court over a prior, inconsistent act of Congress. A non-self-executing treaty could not supersede a prior inconsistent act of Congress in a U. S. court. A non-self-executing treaty nevertheless would be the supreme law of the land in the sense that–as long as the treaty is consistent with the Bill of Rights–the President could not constitutionally ignore or contravene it. (Source)

Self-Executing Provisions/Treaties: A treaty or treaty provision that is effective immediately without the need for ancillary legislation. A treaty is ordinarily considered self–executing if it provides adequate rules by which given rights may be enjoyed or imposed duties may be enforced. (Source)

Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are “self-executing” or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so–sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent–or lack thereof–that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not. 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. (Source)

Charming Betsy Canon: A principle of interpretation applied in interpreting national statutes, and general acts of congress derived from the holding in Murray v. Schooner Charming Betsy 6 U.S.64, 2 L.Ed.208 (1804). According to this canon, national statutes should be interpreted in such a way that the interpretation does not conflict with international laws.

As a matter of domestic law within the United States, Congress may override a pre-existing treaty or Congressional-Executive agreement of the United States. To do so, however, would place the United States in breach of the obligation owed under international law to its treaty partner(s) to honor the treaty or agreement in good faith. Consequently, based upon the Charming Betsy Canon, courts in the United States are disinclined to find that Congress has actually intended to override a treaty or other internationally binding obligation. Instead, they struggle to interpret the Congressional act and/or the international instrument in such a way as to reconcile the two. 

Interesting Case:

• Murray v. Schooner Charming Betsy 6 U.S.64, 2 L.Ed.208 (1804)