1. Introduction to Treaties and International Agreements

2. Key Principles of Sovereignty
A state may not be compelled to do anything it has not voluntarily agreed to do.

3. What Makes a Treaty?
(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.

4. The President's Role What are the president's dual roles in treaties?
Negotiates the treaty
Enforces the treaty
Why is the enforcement role critical?
Why is the president's role more important in international law?

5. Senate Ratification What is the legal effect of ratification?
What does advice and consent mean?
Was the senate meant to participate in drafting treaties?
What is the downside to senate participation?
What if the senate will not ratify without changes?
Does this undermine the president's constitutional right to negotiate treaties?
Fast track - the Senate promises to not mess with the treaty, only to vote it up or down.

6. International Enforcement of 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)

7. International Enforcement Systems
UN Security Council
Violations of another countries sovereignty.
Subject to veto by any security council member.
WTO
Agree to the dispute resolution system or leave the WTO and give up its protections.
International Trade Law
Follow it, or no one will trade with you

8. Abrogating Treaties - Goldwater v. Carter, 617 F.2d 697 (1979)
Vacated by United States Supreme Court as non-justiciable
What happens if conditions change, say an ally goes communist?
Who evaluates these changes?
Why not go to the senate to get the treaty modified?
When do modifications amount to abrogating the treaty?
Who has final authority to send in troops when there is a mutual defense treaty?

9. Executive and Other Agreements
Turns out that we sign very few treaties anymore, preferring to do everything with executive agreements

10. Types of Executive agreements
Congressional-executive agreements
Congress either approves them or delegates approval to the president
Agreements made pursuant to treaty
Probably implicitly authorized by the treaty
Pure executive agreements, such as the Iran hostage settlement and joining the Paris Climate Accord.

11. Legal Status of Executive Agreements
Legal authority derives from the president’s powers under the constitution and legislation.
They do not give him additional powers, but neither do treaties unless enabled by statutes
The Case-Zablocki Act requires reporting agreements to Congress
What if the president does not comply?
It does not make the agreement void.

12. Abrogating Multilateral Agreements
Trump abrogated the multinational agreement the Obama administration struck with Iran and other nations in 2015, the Joint Comprehensive Plan of Action (JCPOA), and reimposed U.S. sanctions on Iran. (Supplement p. 16)
This agreement was “recognized” by the UN Security Council.
Does the US abrogation of the agreement affect its legal status between the remaining signers?
What if the US tries to punish them for supporting the agreement?
The dollar problem.

13. Domestic Effect of International Law, Treaties, and Executive Agreements

14. Self-Executing Treaties
Presidential enforcement requires less detail in treaties because the courts will defer to executive interpretation of the treaty
Like Chevron
Most treaties do not contain enough specific detail to allow private enforcement
This requires Congress to pass legislation to enable the treaty
Treaties with enough detail on their face for enforcement are called self-executing treaties.
This is a judicial call, not a bright line.
All treaties are subject to constitutional limits.

15. Legislative Enabling of the Treaty
What if Congress has passed legislation to enable the treaty?
Does the president's abrogation of the underlying treaty change this legislation?
How must the legislation be changed?
While the president might refuse to enforce the legislation, will the courts be bound to respect this decision as regards private enforcement?
Does this legislation have any international significance?

16. Effect of Treaties and Executive Agreements on State Law
Which issues are reserved solely to the federal government?
What is the conflict if California decides to have its own foreign policy and passes laws that affect international affairs?
Will these be preempted by treaties?
What about executive agreements?
Does it matter whether the issue is one that the president controls intrinsically? American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003)

17. Can Congress abrogate specific international obligations?
The UN Security Council required an economic boycott of Rhodesia
What does that tell us about the US president's position at the time on the resolution?
Senator Byrd amended a statute to block the boycott
Did the court find that this abrogated our treaty obligations?
“Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it…[; thus] the complaint [states] no tenable claim in law.” Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972)
Did the UN kick us out?

18. Statutory Incorporation of International Law
Congress often incorporates international law as part of legislation necessary to comply with treaty obligations. (Al-Bihani v. Obama)
This may be by detailed statute, as criminalizing war crimes as part of the Geneva Convention obligations.
It may also be by incorporating general international law concepts into US law, and leaving the courts to figure out what they.
Is this any special about international law?

19. Can Congress Abrogate Customary International Law?
Can a plaintiff get a US court to issue an order based on the customary international law to enforcing judgments of the International Court of Justice, in the face of legislation rejecting jurisdiction of the court?
But even [so]…there is nothing in [a treaty] which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date.…In short, we are of the opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.

20. Jus Cogens vs Customary International Law
Customary international law, like international law defined by treaties and other international agreements, rests on the consent of states. A state that persistently objects to a norm of customary international law…is not bound.…
In contrast, jus cogens “embraces customary laws considered binding on all nations” and is “derived from values taken to be fundamental by the international community, rather than from the fortuitous or self-interested choices of nations”.…[T]he fundamental and universal norms constituting jus cogens transcend such consent, as exemplified by the theories underlying the judgments of the Nuremberg tribunals following World War II.

21. What are Examples of Jus Cogens?
Are these well defined terms that would pass a vagueness challenge if used as the basis for a criminal trial in the United States?
Congress has defined torture by statute as being what would violate the constitutional prohibition on cruel and unusual punishment.
Is that consistent with international norms?

22. Judge Kavanaugh on International Law Norms as US Law
“First, international-law norms are not domestic U.S. law in the absence of action by the political branches to codify those norms. Congress and the President can and often do incorporate international-law principles into domestic U.S. law by way of a statute (or executive regulations issued pursuant to statutory authority) or a self-executing treaty.” (Al-Bihani v. Obama)
They are not implicitly incorporated in statutes. Incorporation must be explicit.