1. Chapter 7 - The Domestic Effect of International Law

2. 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.

3. Enforcing Treaties
What is the international law significance of a treaty?
What happens if a country does not honor a treaty?
How are international trade rules enforced?
Is there an international law enforcement system for other treaties?
What mechanisms can be used, short of war, for multilateral treaties such as the those deal with atomic energy?
What is going on with Iran in this regard?
India?

4. Judicial Enforcement of Treaties
The treaty must provide the court with sufficient detail to allow the court to determine whether the enforcement action taken by the executive is supported
The intelligible principle from adlaw
Private enforcement is determined by the same standards as private enforcement of statutes

5. 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.

6. 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.

7. How do we decide what a treaty means?
What did the president want to use to justify reinterpreting the ABM treaty?
What is Biden's complaint?
How is amending a treaty different from terminating it?
Are the (unratified) amendments legally enforceable - assuming any of the treaty is?
Do the amendments just become executive agreements?

8. Relevance of Senate Ratification History to Treaty Interpretation (April 9, 1987)
What is Biden addressing in this report?
If these deliberations were intended to be a binding part of the treaty, what could the Senate do to make them binding?
Whose representations should count in construing a treaty?
What can the senators do if they believe that a provision in the treaty is ambiguous?
What does this report say should happen if the president wants to use secret side deals to change the meaning of the treaty?

9. 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?

10. 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?

11. Koplow's Factors to Evaluate Reinterpretations of Treaties
(a) what the Senate said in providing its advice and consent;
(b) what was said to the Senate prior to its consent;
(c) the attitude of the treaty partner(s) toward competing treaty interpretations;
(d) support in the treaty text and record for competing interpretations;
(e) the record of ‘‘subsequent practice’’ by the treaty parties;
(f) how different the new interpretation is from the old;
(g) whether the new interpretation purports to create new obligations or to release old ones; and
(h) whether there are changed circumstances that affect the treaty.

12. 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?

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

14. 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.

15. Made in USA Foundation v. US, 242 F3d 1300 (2000)
This is a fight over what can be the subject of a treaty versus an executive agreement
Does the constitution give any guidance?
Was the court able to find any bright line?
What issues arise if the court tries to decide this?

16. Case-Zablocki Act: Congressional limits on agreements
The Case-Zablocki Act requires reporting agreements to Congress
What if the president does not comply?
Calls them arrangements, rather than agreements?
Does not tell anyone other than Putin?
Does that make the agreements void?
Has congress successfully limited the president's ability to make secret deals?

17. Review of congressional limits
Does making an agreement give the president the power to carry it out if congress disagrees?
What can he do without congressional support?
How can congress stop enforcement if they do not have sufficient votes to override a veto of a specific law overruling the agreement?

18. Do Treaties supersede the Constitution. - Reid v
Do Treaties supersede the Constitution? - Reid v. Covert, 354 US 1 (1957)
What are the facts?
Were defendants US citizens?
Where did the crimes take place?
Why are they being tried by military courts?
Is the defendant active duty military?
What constitutional provision do the defendants say was violated?

19. The Treaty What does the treaty provide?
May treaties override the constitution?
What did the court say about a subsequent statute overriding a treaty?
Must the statute obey the constitution?
What did the court decide about trying these women in military courts?
Why can soldiers be tried in military courts?

20. The “Charming Betsy” Rule of Avoiding Conflict with International Law
“an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.…” Murray v. The Schooner Charming Betsy
“Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.” Restatement
Are these binding law?

21. 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)

22. Flipside of Charming Betsy: The Presumption Against Extraterritoriality.
“When a statute gives no clear indication of an extraterritorial application, it has none.” Morrison v. Nat’l Austr. Bank, Ltd., 561 U.S. 247, 255 (2010).
The Supreme Court has said that this is “a presumption that United States law governs domestically but does not rule the world.” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007).

23. Committee of US Citizens living in Nicaragua v
Committee of US Citizens living in Nicaragua v. Reagan, 859 F2d 929 (1988)
In 1986, the International Court of Justice (ICJ) ruled that U.S. support for paramilitary activities against the government of Nicaragua violated both an international treaty and customary international law.
What did the US do to avoid this judgment?
What did Congress do in violation of the judgment?
What are the plaintiffs seeking?

24. What is the Domestic Effect of International Law?
The first issue is whether Congress may override a treaty by statute
Since this is a subsequent statute, it overrides.
Is this one answer to the question of where the constitution provided a way to end treaties?
What does it imply about the President's views?
What about its violation of international law?
Can the US escape the consequences of violating a treaty by abrogating the treaty?

25. What do treaties depend on for enforcement?
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)

26. 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?

27. Who has Standing in the International Court of Justice?
Who can be a party in the International court of Justice?
Could plaintiffs have brought their action in the ICJ?
Why is this a problem with their asserting rights under the ICJ judgment in US courts?
What did the US agree to when it was bound by the ICJ?

28. 5th Amendment Claim: Is Rejecting the ICJ Arbitrary?
(1) Nicaragua had not itself consented to, and therefore could not invoke, ICJ jurisdiction;
(2) the dispute with Nicaragua was one involving ‘‘armed conflict,’’ collective self-defense and preservation of regional stability, and thus fell outside the ICJ’s jurisdiction as set forth in the U.N. Charter and in the ICJ’s own precedents; and
(3) the United States itself had never consented to jurisdiction over this type of conflict since, by reservation, it had expressly excluded ‘‘disputes arising under multilateral treaty’’ from the scope of its consent.

29. Executive Agreements and Statutes - United States v. Pink, 315 U. S
the Supreme Court declared that a treaty is the law of the land, and that ‘‘international compacts and agreements have a similar dignity.’’ While the case law suggests that congressional-executive agreements and agreements made pursuant to treaties have the same legal effect as constitutional treaties, it is unclear about the effect of sole executive agreements on prior statutory or treaty law.
What does this mean?
Can an executive agreement override a statute?
Does it matter whether it is a foreign national security matter?

30. 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?

31. 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 reimposing 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.

32. 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.

33. 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.

34. 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?

35. 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.