Treaties

A. The Rules of Treaty Interpretation

The rules of treaty interpretation are set forth in the Vienna Convention on the Law of Treaties (the so-called Treaty on Treaties), which came into force in 1980.5
Although the United States has not yet ratified the Vienna Convention, the U.S. Department of State recognizes the Vienna Convention as "the authoritative guide
to current treaty law and practice."6
There is an important difference between signing a treaty and ratifying a treaty. The former constitutes authentication of a treaty's text and the intention to submit
the treaty to the domestic process necessary to approve it. After the treaty has been approved domestically, the party can bring it into force (ratify it) by exchanging
instruments of ratification (if it is a bilateral treaty) or depositing its instrument of ratification with the designated depositary (if it is a multilateral treaty). In the United
States an international agreement must be approved either by two-thirds of the Senate or by a majority of the House and Senate unless it concerns an area within
the President's exclusive constitutional province (such as a Status of Forces Agreement concluded pursuant to the President's Commander and Chief Powers).
When a State has signed a treaty and is awaiting the domestic process necessary for ratification, the Vienna Convention provides that the State "is obliged to
refrain from acts which would defeat the object and purpose of the treaty."7
When ratifying a treaty, a State may often express reservations, which purport to exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State. According to the Vienna Convention, reservations are acceptable unless specifically prohibited by the treaty or "incompatible with the
object and purpose of the treaty."8 In the United States, the Senate often attaches reservations (as well as nonbinding "understandings" and "declarations) when
giving advice and consent to ratification.
The general rule of the Vienna Convention is that a "treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in light of its object and purpose."9 The "context" referred to in the Vienna Convention constitutes the treaty's preamble and annexes and
any reservations expressed in the instrument of ratification.10
The Vienna Convention and the practice of the International Court of Justice give comparatively less emphasis to the negotiating record and legislative history in
interpreting a treaty than is common in domestic interpretation of legislative enactments. Under the Vienna Convention, such "supplementary means of
interpretation" are to be used only where the primary means of interpretation yield an ambiguous or obscure meaning or a result which is manifestly absurd or
unreasonable. However, U.S. courts tend to resort more freely to the negotiating record and legislative history in interpreting treaties, frequently citing the
Executive Report and the Report of the Senate Foreign Relations Committee. In addition, U.S. courts pay great judicial deference to the interpretations asserted
by the Executive Branch, often in the form of State Department Affidavits.11
Once a State becomes party to a treaty, it must comply with the treaty's provisions unless or until: (a) there are grounds for objecting to the treaty's validity,12 (b)
the party has withdrawn from the treaty in conformity with its provisions or with the consent of all of the other Parties,13 (c) there has been a fundamental change
of circumstances (rebus sic stantibus),14 or (d) there has been a material breach by the other party.15
Under the Vienna Convention, the grounds for objecting to the validity of a treaty include: error relating to a fact or situation forming an essential basis of a State's
consent to be bound16; the fraudulent conduct of another negotiating State17; corruption or coercion of a State's representative by another negotiating State18;
the threat or use of force in violation of the United Nations Charter; and conflict with a peremptory norm of international law (jus cogens).
A material breach of a treaty, giving rise to the right to the other Party to terminate the treaty or suspend its operation, consists of a "violation of a provision
essential to the accomplishment of the object or purpose of the treaty."19 In the United States, the power to suspend or terminate a treaty is vested in the
President.

B. The Effect of Treaties in the Law of the United States

In the United States, international agreements are characterized as either treaties or executive agreements. This is to be contrasted with the international practice
to refer to all binding international agreements as treaties. In the United States, "treaties" are ratified only after receiving the advice and consent of two thirds of the
Senate pursuant to Article II(2) of the Constitution. Only 6 percent of international agreements made by the United States have been submitted to the Senate as
treaties. Eight percent of the United States' international agreements are sole executive agreements, that is compacts concluded by the President under his
constitutional authority without any congressional participation.20 The vast majority (over 86 percent) of the United States' international agreements have been
congressional-executive agreements. Such agreements are ratified pursuant to ordinary legislation, that is, statutes passed by a majority of both the House of
Representatives and the Senate. So-called "implementing legislation" may authorize the President to enter into an international agreement in advance of its
negotiation or approve such an agreement after it has been signed by the parties. There are no hard and fast rules about what route the Executive Branch must
follow in obtaining domestic approval of an agreement.
The way in which international agreements are given domestic legal effect depends on whether a State has adopted a "dualist" or a "monist" approach to treaty
incorporation. Dualist States, such as the United Kingdom, require a legislative enactment before any treaty becomes the law of the land. In monist States, such as
France and Germany, a treaty is given domestic legal effect as soon as it is ratified without the need for any implementing legislation.
The United States practice reflects a hybrid of the dualist and monist approaches, resting on the distinction between "self-executing" and "non-self-executing"
international agreements. Consistent with the dualist approach, non-self-executing agreements/treaties are given no domestic legal effect until Congress enacts

implementing legislation (in which case it is the statute and not the agreement which is given effect). But consistent with the monist approach, a self-executing
agreement/treaty will be applied in a case by U.S. courts without any legislative act.
By virtue of Article VI of the U.S. Constitution, self-executing agreements/treaties are made "law of the land." Self-executing agreements/treaties are considered to
be equivalent to federal statutory law; where the two are in conflict, the one that is latter in time will prevail.21 Before applying this rule in the case of a latter in time
statute in conflict with an earlier agreement/treaty, U.S. courts will first try to reconcile the apparently conflicting provisions if at all possible.22 This reflects
recognition of the fundamental rule of international law that a party may not invoke the provisions of its domestic law as justification for its failure to perform an
international obligation.23
Like federal statutory law, self-executing agreements/treaties are given supremacy over state and municipal law. And like federal statutory law, self-executing
agreements/treaties are subject to the constitutional limitations contained in the Bill of Right.24
A treaty or executive agreement is deemed to be self-executing if its provisions are aimed directly at the courts and not at the Congress requiring legislative action.
The Restatement (Third) of Foreign Relations law suggests the following formula for determining whether an agreement/treaty should not be deemed selfexecuting:

1.

If the agreement manifests an intention that it shall not become effective as domestic law without enactment of implementing legislation

2.

If the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation

3.

If implementing legislation is constitutionally required.25

With respect to human rights treaties, the Senate has recently adopted the practice of declaring at the time of giving advice and consent to ratification that the
treaty is non-self-executing. Normally, the President will not deposit the instrument of ratification of a non-self-executing agreement/treaty until the necessary
implementing legislation has been enacted.
It may be that the President has the power, when acting within his constitutional authority, to disregard or violate an executive agreement or treaty. To do so,
however, would potentially subject the United States to liability for breach of its international legal obligations. Thus, in Goldwater v. Carter, the Supreme Court
refused to enjoin President Carter from unilaterally terminating treaties with Taiwan on the ground that it was a nonjusticiable political question.