Chapter 7 - The Domestic Effect of
International Law
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What Makes a Treaty?
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(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.
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Enforcing Treaties
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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?
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Judicial Enforcement of Treaties
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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
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Self-Executing Treaties
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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
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Senate Ratification
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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.
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How do we decide that a treaty means?
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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
agreeements?
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Relevance of Senate Ratification History to
Treaty Interpretation (April 9, 1987) - 159
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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?
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The President's Role
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What are the president's dual roles in treaties?
 Negotiates the treaty
 Enforces the treaty
Why is enforcement role critical?
Why is the president's role more important in
international law?
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What Type of Legal Relationship does a
Treaty Create?
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What type of legal document does this report say a treaty
is?
 What does this imply about enforcing the rights and
duties under the treaty?
Biden says the executive or the courts should:
‘‘...give the specific words of the treaty a meaning
consistent with the shared expectations of the
contracting parties
What is the best evidence of the meaning of the treaty?
Is this really the right legal classification of a treaty?
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Abrogating Treaties - Goldwater v. Carter,
617 F.2d 697 (1979)
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Vacated by United States Supreme Court as nonjusticiable
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?
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Koplow's Factors to Evaluate
Reinterpretations of Treaties
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(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.
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Legislative Enabling of the Treaty
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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?
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