Federalism and Treaties

In the United States of America, sovereignty is vested in the people and delegated through charters of delegation, called constitutions, to its agents on separate State and federal levels. The States retain certain delegated "reserved powers" not entrusted to the federal government.

Treaties were traditionally held as international agreements on matters of comity in the exchange of an extension of privileges to foreign citizens; agreements upon territorial boundaries / conditions of cession of territory; and matters of foreign trade. They were agreements on external matters of relationships between nations and did not, otherwise, alter internal laws governing the citizenry in purely domestic matters - reserved, generally, to the States.

During the past century, there has been an increasing tendancy for international "treaties," "conventions," "protocols," etc. to intrude upon internal domestic matters in a manner that may be viewed as usurpation of the sovereignty of the American people. These "treaties," in effect, displace the locus of  the sovereignty of the United States from the people by presuming the executive as "sovereign" in an international arena that forges mutual agreements and pledges bearing on internal, domestic policy, regulation of private property, reserved powers of the States and management of public trust resources of the parties. This, in effect, overrides the "bottom-up" authority delegated through organic constitutional institutions - relying, instead, on third-party agreement. The question arises as to the constitutional capacity and delegated authority of the executive and Congress to enter into these types of international agreements and the propriety of American participation in any international agreement that creates or drives internal policy on domestic matters. 

The International Community has coped (with some irritation) with the problem of the United States and similar federated states, such as Australia, by ignoring their internal structures and constitutional republican limitations.

The following are excerpts, helpful in grasping the issues, from a Report of the Australian Senate - Legal and Constitutional References Committee entitled   "Commonwealth Power to Make and Implement Treaties."

Chapter 3 - Introduction to International Law

'International personality' exists where there is general international recognition that a country, body or organisation has the legal capacity to enter into international relations.  Apart from nation states, some international organisations such as the United Nations have been recognised as having international personality. In some cases, if the Constitution of a country allows it, the sub-State components of a country (such as provinces or cantons) may enter into international relations, and therefore have a limited form of international personality.

[A contract between a State granting concessions to a private company, for example, is not a treaty: Anglo-Iranian Oil Case, ICJ Reports (1952) 111.]

What is a treaty?

3.1 Professor D.P. O'Connell has described the difficulty in defining a treaty as follows [D. P. O'Connell, International Law, Vol. 1, 2nd ed., Stevens and Sons, London, 1970: p 205.]:

"There is no general touchstone for determining what is a treaty. Everything depends upon analysis of the instrument in question, whether its contemplated goal is juridically significant, whether the language used is indicative of juridical intent, and whether the signatories acted in a manner consistent with the view that they intended to enter into binding engagement as distinct from merely assenting to an ad hoc political aim."

3.2 International law concerning treaties has been partially codified in the Vienna Convention on the Law of Treaties. The treaty was drafted in two sessions in 1968 and 1969 and came into force internationally on 27 January 1980. Australia acceded to this treaty on 13 June 1974. The Convention sets out international agreement on the procedure and consequences of entering into treaties, reservations to treaties, interpretation of treaties, termination of treaties and withdrawal from treaties.

3.3 Article 2(1)(a) of the Vienna Convention on the Law of Treaties defines a treaty as 'an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its designation.' Like contracts in domestic legal systems, treaties are binding in accordance with their terms.

3.4 The major distinguishing characteristic of a treaty is that it is concluded between sovereign nation states with full international personality. Individuals, or groups without international personality, cannot be parties to a treaty.

3.5 Under international law, a treaty becomes binding on any nation state which enters into it. A treaty can, therefore, only be signed or ratified by an official representative of the nation state. The Vienna Convention on the Law of Treaties recognises Heads of State, Heads of Government and Ministers for Foreign Affairs as having the capacity to enter into treaties on behalf of their nations. In certain cases diplomats or official representatives to an international conference are also recognised as having such capacity. Otherwise, a document authorising the person to enter into the treaty must be provided by the 'competent authority' of the nation.

3.6 The term 'treaty' is a general one which covers a range of international instruments, including charters, conventions, covenants, protocols, agreements, pacts and exchanges of notes.  

When do treaties come into force for a country?

3.7 Bilateral treaties usually come into force upon signature, or at an agreed date in the future.

3.8 Multilateral treaties, on the other hand, do not usually come into force upon signature. A second step of 'ratification' or 'accession', by which parties commit themselves to fulfilling the terms of the treaty, is required. Even then, a treaty does  not usually come into force at an international level until a certain number of ratifications have been deposited, depending on the terms of the treaty. Treaties may also stipulate that any  ratification or accession deposited after the treaty has come  into force, will not take effect until a certain period has elapsed.

3.9 An example is article 49 of the International Covenant on Civil and Political Rights. It provides that the Covenant shall enter into force three months after the date of the deposit of  the thirty-fifth instrument of ratification or accession. It further provides that if a country ratifies or accedes to the Covenant after that date, then it shall enter into force in respect of that country three months after the date of the deposit of its instrument of ratification or accession.

What is the effect of a treaty being signed on behalf of a country?

3.10 'Signature' is the formal term used to show that a party agrees with the content of an agreement. It does not necessarily signify an intention to be bound. Its significance, in part, is historical and harks back to the time when absolute monarchies were the norm, transport and communications awkward and representatives of states were given 'full powers' meaning the power to bind their sovereign.

3.11 Whether signature is effective in bringing the treaty into operation will depend on the intention of the parties. If the parties intend that they will only be bound by the treaty once they commit the further act of ratifying the treaty, then signature itself will not bind the parties.

3.12 Where a treaty has been signed on behalf of a country, but not yet ratified, there is an obligation on the part of the signatory country to proceed to ratification in good faith. ...

3.13 Signature also gives rise to a duty to refrain from acts which would defeat the object and purpose of a treaty, until such time as a signatory makes it clear that it is no longer intending to become a party to the treaty.

Ratification

3.14 Ratification literally means 'confirmation' and in the days of absolute monarchies the Monarch would 'confirm' his agent's signature. In a formal sense the act was fairly meaningless and only really added solemnity to the process. The reverse is the situation in modern treaty making practice.

3.15 Today ratification denotes two distinct acts in the treaty making process. It has domestic meaning denoting the procedures peculiar to the country for that country to bind itself...

3.16 The second sense of ratification is the international act whereby the country expresses its consent to be bound. In modern treaty practice this is often a deposit of an instrument of ratification.

3.17 Ratification is only necessary if the treaty or the parties require it. In other cases, the treaty will enter into force upon signature.

Accession

3.18 Accession describes the situation where a country was not originally a signatory to the treaty but subsequently accepts its provisions. 'Acceptance' and 'approval' also describe the same process. Generally how a country accedes to a treaty will depend on the treaty itself. Typically it may involve the deposit of an instrument of accession.

What does it mean when a country enters a reservation to a treaty?

3.19 Article 2 of the Vienna Convention on the Law of Treaties describes a reservation as:

"[A] unilateral statement, however phrased or named, made by a country, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State."

3.20 Article 19 of the Vienna Convention on the Law of Treaties provides that a nation state may not make a reservation if the reservation is prohibited by the treaty, or if it does not fall within the type of reservations that the treaty allows, or if  the reservation is incompatible with the object and purpose of the treaty. Many major multilateral treaties have specific provisions dealing with the type of reservations which are permissible, and those which are not.

When can a country withdraw from or denounce a treaty?

3.21 Under customary international law, treaties are legal agreements which must be obeyed. This is summed up by the Latin maxim: pacta sunt servanda. A treaty is evidence of the consent of all the parties to be bound by its provisions. This consent can usually be withdrawn and this process is generally termed 'denunciation'.

3.22 A treaty may stipulate the terms on which a party can withdraw from, or denounce, the treaty. For example, the Convention on the Elimination of All Forms of Racial Discrimination provides that a party may denounce the Convention by written notification to the Secretary-General of the United Nations. Denunciation is to take effect one year after the date of receipt of the notification by the Secretary-General.

3.23 In some cases denunciation is subject to very strict conditions. For example, the ILO Convention Concerning Discrimination in Respect of Employment and Occupation 1958 (No. 111) provides in Article 9 that a party to the Convention may denounce it after the expiration of ten years from the date on which it first came into force, or at intervals of 10 years thereafter, and that denunciation will take effect from the date one year after the denunciation is registered.

3.24 If a treaty does not provide for denunciation or withdrawal, article 56 of the Vienna Convention on the Law of Treaties provides that denunciation or withdrawal is not allowed unless it is established that the parties intended to allow for denunciation or a right of denunciation or withdrawal may be implied by the nature of the treaty.

3.25 A party may also denounce a treaty if it has the consent of all the other parties to the treaty. Unilateral denunciation is a fact of treaty practice although some theoreticians argue that it can only be done where the treaty has been substantially breached by the other party.

What are the consequences of a breach of a treaty?

3.26 A breach of international law has different consequences as compared to a breach of domestic law. There is no international court that can compel parties to appear before it. This is in contrast to the consequences of a breach of domestic law where domestic courts can compel parties to appear before them. In international law disputes, such as the breach of a treaty, political pressure and diplomatic negotiations are relied upon as important ways to resolve disputes and encourage compliance with treaty obligations.

3.27 The International Court of Justice in the Hague adjudicates disputes between countries on international law matters. All members of the United Nations are members of the Statute of the International Court of Justice and there is also provision in the Statute for other countries to become parties to it.

3.28 However, the International Court of Justice only has jurisdiction over a matter if parties consent to its jurisdiction. Under art.36 of the Statute of the International Court of Justice, countries can declare that they recognise the jurisdiction of the Court. Australia has made an unconditional declaration under art.36 of the Statute of the International Court of Justice. Indonesia has not made such a declaration. Accordingly, in the East Timor dispute, Portugal took action in the International Court of Justice against Australia, rather than Indonesia, because the Court did not have any jurisdiction to bind Indonesia.

3.29 Article 94 of the United Nations Charter provides that in cases where the International Court of Justice has jurisdiction, the decision of the Court is binding on the parties to the case. However, it has been the case that defendant countries have boycotted the Court's proceedings or not complied with judgments of the Court. Article 94(2) of the United Nations Charter provides that in cases where judgments of the Court are breached, the other party may seek the assistance of the United Nations Security Council to enforce the Court's judgment. For example, the Council may recommend the implementation of economic sanctions against the nation in breach of the Court's judgment.

3.30 Some treaties provide their own enforcement procedures. For example, an arbitration mechanism was included in the bilateral Australia/United States Air Transport Agreement. In 1993, Australia triggered this arbitration mechanism in relation to the dispute concerning the US airline, Northwest Airlines. Although the dispute was settled, it has been argued that 'the triggering of arbitration was a motivating force in reaching settlement.'

Customary international law

3.31 Customary international law consists of international custom as evidenced by a general practice accepted as law. For a practice to be accepted as an international customary law, the particular practice must be observed by the great majority of nation states and there must also be evidence that the practice is accepted as a matter of legal right or obligation.

3.32 Provisions in a treaty may become customary international law and therefore become binding even on nations which are not parties to the treaty. This may happen where customary international law develops to embrace the new norm included in a treaty, that is, where the great majority of states enter the treaty and abide by the provisions. Of course where a treaty merely codifies existing customary international law the provisions may already be binding on states not party to the treaty.

Treaties and the federal system

3.34 Whether internal limitations on a country's treaty making capacity will actually affect that country's treaty making capacity on the international plane is uncertain. Some contend that constitutional limitations will limit treaty making capacity on the international sphere whereas the alternate view is that a country is bound irrespective of its internal limitations so long as the consent was given by an agent properly authorised by international law.

3.35 The problem most commonly arises in federations, with treaties which demand that parties legislate in a certain way, when the federal government of the particular country is not constitutionally competent to fulfil the obligation.

[Article 12 of the Vienna Convention on the Law of Treaties states that the consent of a party to be bound is expressed by signature when the treaty provides that signature shall have that effect. Likewise article 14 states that ratification will express consent when the treaty so provides.]

[Article 26 of the Vienna Convention on the Law of Treaties provides that: 'Every treaty in force is binding upon the parties to it and must be performed by them in good faith'.]

3.36 Article 27 of the Vienna Convention on the Law of Treaties   provides that: 'A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. An exception is provided for in article 46 which states:

"1 ) A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as  invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance."

"2 ) A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith."

3.37 The problems arising from federal systems are sometimes dealt with explicitly in treaties in the form of a federal clause. An example is the following clause from article 34 of the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage:

"The following provisions shall apply to those State Parties to this Convention which have a federal or non-unitary constitutional system:

"(a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States;"

"(b) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces, or cantons of the said provisions, with its recommendation for their adoption."

3.38 Federal clauses have become less popular in the last two decades. Many non-federal countries see them as mere excuses for avoiding treaty obligations. Accordingly, it is more difficult to get other countries to agree to insert a federal clause in a multilateral treaty. The only option for a federation, then, is to express its federal limitations by way of reservation.

3.39 An example of the difficulties involved in achieving federal clauses in treaties is the case of the International Covenant on Civil and Political Rights. During the course of the Covenant's  negotiation, the United States, Australia and India recommended  that a federal clause be included. Other countries objected 'on the grounds that it gave the federal authority a wide discretion  to avoid responsibility and left non-federal states in doubt as to the legal obligations of federal states under the treaty.'

The Soviet Union proposed the insertion of a clause stating that  the Covenant shall apply to all parts of federal states, regardless of their internal divisions of power. This proposal was accepted and became article 50 of the Covenant, which provides:

"The provisions of the present Covenant shall extend to all parts of federal States without any limitation or exception."

3.40 When Australia ratified the International Covenant on Civil and Political Rights in 1980, it included a reservation which explained the federal system of government in Australia, and stated:

"...the implementation of those provisions of the Covenant over whose subject matter the federal authorities exercise legislative executive and judicial jurisdiction will be a matter for those authorities; and the implementation of those provisions of the Covenant over whose subject matter the authorities of the constituent states exercise legislative, executive and judicial jurisdiction will be a matter for those authorities; and where a provision has both federal and state aspects, its implementation will accordingly be a matter for the respective constitutionally appropriate authorities..."

3.41 This reservation was controversial and drew international criticism. The reservation was withdrawn by the Commonwealth Government in 1984, and replaced by a 'federal statement'.

3.42 The United States of America also issued an 'understanding' at the time that it ratified the International Covenant on Civil and Political Rights. This 'understanding' has also been the  subject of some criticism. The understanding provides: That the United States understands that this Covenant shall be implemented by the Federal government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfilment of the Covenant. ST/LEGLSER.E/13 p 126.

See discussion in: D.P. Stewart, 'United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations' (1993) 42 DePaul Law Review 1183, at 1201-2.

The United Nations

3.44 International organisations play an important role in international law. They are established by treaties between countries and have independent legal personality. Many such organisations exist today. Two major international organisations are the United Nations and the International Labour Organisation.

3.45 The United Nations is made up of six principal organs, the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Secretariat and the International Court of Justice. There are also a range of other United Nations organs, such as the United Nations High Commission for Refugees and the World Food Council.

3.46 The United Nations system also comprises a number of specialised agencies and other autonomous organisations, including the International Telecommunications Union and the World Intellectual Property Organization.

3.47 The Charter of the United Nations was signed on 26 June 1945 at the San Francisco Conference on International Organisation and came into force on 24 October 1945. The United Nations General Assembly is the main representative body of the United Nations. It consists of all Member States, each of which has one vote.The regular session of United Nations General Assembly begins each year on the third Tuesday of September and usually continues until mid-December.

3.48 The fundamental objective of the United Nations Charter is the goal of ensuring international peace and security - 'saving succeeding generations from the scourge of war' as stated in the Preamble.

3.49 Human rights were also recognised as important under the Charter of the United Nations. Article 13 of the United Nations Charter provides that one of the functions of the General Assembly is to initiate studies and make recommendations for the purpose of:

"[P]romoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."

3.50 The United Nations Security Council has primary responsibility for the maintenance of international peace and security, a function which encompasses the peaceful settlement of disputes and responses to acts threatening international peace and security. It is important to note that the Security Council has wide-ranging enforcement powers, including the power to authorise sanctions, embargoes and all other necessary means (including the use of force) for the purpose of maintaining or restoring international peace and security.

3.51 The United Nations has a number of functional bodies. Under Article 62 of the United Nations Charter, the Economic and Social Council may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. It may also prepare draft conventions for submission to the General Assembly and call international conferences on human rights matters.

3.52 The United Nations Commission on Human Rights was established by the Economic and Social Council in 1946. It meets annually in Geneva and may also be convened in order to consider urgent situations. It is the main body dealing with human rights and has a wide mandate to deal with any matter relating to human rights including the consideration of country situations and also standard setting activities, including the preparation of draft treaties on human rights...

Chapter 10 ---United States of America

10.107 The United States of America is a federal republic with a bicameral parliament. The Congress consists of an upper house, the Senate, which comprises two members elected from each State, and a House of Representatives, which is directly elected according to population. The Executive is made up of the President and the Cabinet, which is appointed by the President. 

Who has the power to enter into treaties?

10.108 Clause 2 of Article II, section 2 of the United States Constitution provides that the President shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur.

Do the States have power to enter into treaties in their own right?

10.109 Clause 1 of Article I, section 10 provides that no State shall enter into any treaty, alliance or confederation. Clause 3 provides that no State shall, without the consent of Congress, enter into any agreement or compact with a foreign power.

Is Congressional approval necessary for some types of treaty?

10.110 Article II, section 2, clause 2 of the Constitution requires approval by two-thirds of the Senate, before the President can ratify a treaty. There is no requirement to consult the House of Representatives.

10.111 In practice, a treaty is negotiated by the Executive, and is only sent to the Senate for approval once it is finalised. President Washington once consulted the Senate during the negotiation phase of a treaty, and no President has undertaken this course since.

10.112 Nevertheless, members of the Senate are often personally consulted during the negotiation stage, and sometimes act as advisers to the negotiation delegations of the Government.

10.113 Once a treaty is sent to the Senate for its consideration, it is usually referred to the Foreign Relations Committee. The Committee conducts an inquiry, holds public hearings, and recommends whether the Senate should approve the treaty, conditionally approve it or reject it. The treaty is then referred back to the Senate, where the Committee of the Whole may consider it, article by article. Votes are taken on the treaty and any proposed amendments or conditions to ratification. These votes can be passed by an ordinary majority. It is only the final vote on the treaty which requires a two-thirds majority before the President may ratify the treaty. 

10.114 The Article II procedure is not the exclusive means of entering into treaties. The President also has power, under the general executive power, to enter into 'executive agreements' without the consent of the Senate. Such agreements usually relate to foreign relations or military matters, and do not tend to directly affect the rights and obligations of citizens.

10.115 A third means of entering into treaties is through the Congressional-Executive agreement process. Under this process the Congress passes a joint resolution of both Houses, or passes legislation, authorising or approving the conclusion of an international agreement by the President. The main difference with the Article II procedure is that there is no requirement to obtain two-thirds approval of the Senate. There need only be a simple majority in approval in each House in order to authorise the ratification of the treaty. This process is often used for trade agreements, as the Congress has constitutional authority to regulate commerce with foreign nations under Article I of the Constitution.

10.116 Between 1932 and 1982, 608 treaties were ratified after getting the consent of a two-thirds majority of the Senate, and 9,548 Executive Agreements were entered into, either by way of sole Presidential action, or by agreement with the Congress.

Are treaties self-executing, or is legislation necessary?

10.117 Article VI, section 2 of the Constitution provides that all treaties made under the authority of the United States shall be the supreme law of the land, and the judges in every State shall be bound by them, notwithstanding anything to the contrary in the Constitution or laws of any State.

10.118 Nevertheless, there is still debate over when a treaty is capable of being self-executing, and when legislation is necessary to fulfil the principles set out in a treaty. In some cases the Senate will qualify its consent to the ratification of a treaty with a declaration that the treaty shall not be self-executing.

Can the Congress require reservations to be attached to ratification?

10.119 The Senate cannot compel the President to modify a treaty, but it can give its consent subject to conditions which require the making of reservations at the time of ratification.

10.120 The Senate may also give its consent subject to an 'understanding' or 'declaration' as to the interpretation of certain treaty provisions, or subject to a proviso concerning the internal implementation of the treaty.

Do treaties override future legislation?

10.121 Article VI of the Constitution provides that treaties shall form part of the supreme law of the land. Hence a treaty is superior to inconsistent State laws and State Constitutions. It also prevails over prior inconsistent federal laws. The more difficult question is whether a treaty prevails over subsequent inconsistent federal laws. The Supreme Court has developed the 'last-in-time' doctrine, which means that federal legislation can override treaty obligations, if the legislation comes into effect after the treaty obligation comes into effect.

Is Congress needed to denounce treaties?

10.122 The Constitution does not state whether Congress must be involved in the denunciation of a treaty. However, it is generally accepted that the power to denounce a treaty is held by the President, as part of his or her power in relation to foreign affairs, and that Congressional or Senate approval is not required.

Consultation of Congress and involvement of congressional committees

10.123 Where Senate approval is necessary for the ratification of a treaty, as a matter of practice, both the Senate Foreign Relations Committee and individual senators are frequently consulted during the negotiation process.

10.124 As discussed above, the Foreign Relations Committee usually conducts an inquiry into a treaty, and then recommends to the Senate whether the treaty should be approved or rejected, or approved subject to conditions.

The role of the States in the treaty making process

10.125 Apart from a very limited power to enter into international agreements, with the approval of the Congress, the only involvement of the States in the treaty making process is through State representatives in the Senate.

10.126 There have been, however, recent proposals raised by inter-governmental relations bodies, to increase State and local government involvement in the treaty making process.