Treaties Under U.S. Law under International Law
1. What is a Treaty?
A treaty is a formal agreement between sovereign states or international organizations that is legally binding under international law.
2. Treaties Under International Law
Governed by:
Vienna Convention on the Law of Treaties (VCLT) 1969 – codifies customary international law regarding treaties.
Though the U.S. is not a party to the VCLT, it recognizes most of its provisions as customary international law.
Key Principles:
Pacta sunt servanda – treaties must be performed in good faith (Art. 26, VCLT).
Consent to be bound – a state is only bound if it consents (signature + ratification or accession).
Invalidity of treaties – due to coercion, fraud, or conflict with jus cogens norms (non-derogable principles).
Termination or Withdrawal:
Can occur by:
Agreement between parties
Material breach
Fundamental change of circumstances (rebus sic stantibus)
3. Treaties Under U.S. Law
Governed by:
U.S. Constitution, Article II, Section 2, Clause 2:
"[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."
Types of International Agreements in U.S. Law:
Treaties (in the constitutional sense)
Require 2/3 Senate approval.
Become supreme law of the land (Article VI).
Executive Agreements
Do not require Senate approval.
Types:
Congressional-executive agreements (authorized by Congress)
Sole executive agreements (based solely on the President’s authority)
Distinction in Terminology:
International Law: All binding agreements are “treaties”.
U.S. Law: Only those ratified under Article II are called “treaties”.
4. Domestic Application of Treaties
Self-Executing vs. Non-Self-Executing Treaties:
Self-executing: Directly enforceable in U.S. courts without additional legislation.
Non-self-executing: Require implementing legislation by Congress.
Case Law:
Foster v. Neilson (1829)
Chief Justice Marshall distinguished between self-executing and non-self-executing treaties.
Held that a treaty is “equivalent to an act of the legislature” when it operates of itself without legislative aid.
Medellín v. Texas (2008)
U.S. Supreme Court held that ICJ decisions under the Vienna Convention on Consular Relations were not directly enforceable because the treaty was non-self-executing.
Reinforced that not all treaties are binding in U.S. courts unless Congress implements them.
5. Treaty Supremacy and Federalism
Constitutional Provision:
Article VI – Supremacy Clause:
"This Constitution, and the Laws of the United States... and all Treaties... shall be the supreme Law of the Land."
Treaties are on par with federal statutes.
In case of conflict between a treaty and a federal statute, the “later-in-time” rule applies.
Case Law:
Missouri v. Holland (1920)
Upheld a treaty-based federal statute protecting migratory birds, despite state objections.
Established that treaties can expand Congress’s power over subjects otherwise reserved to states.
Reid v. Covert (1957)
Supreme Court held that treaties cannot override the U.S. Constitution.
A treaty allowing court-martial of civilians was unconstitutional.
6. Conflict Between Treaty and Federal Law
Last-in-time rule: If a treaty and a statute conflict, the later one prevails, regardless of which is international or domestic law.
Whitney v. Robertson (1888)
Treaties and federal statutes are of equal status; whichever is enacted later controls.
7. Withdrawal from Treaties
The U.S. Constitution is silent on who has the authority to terminate treaties.
Traditionally, Presidents have unilaterally withdrawn, though it's been contested.
Goldwater v. Carter (1979)
Supreme Court dismissed a challenge to President Carter’s unilateral termination of a treaty with Taiwan, citing a political question.
8. Summary Comparison Table
| Feature | Under U.S. Law | Under International Law |
|---|---|---|
| Governing Law | U.S. Constitution, Case Law | Vienna Convention on the Law of Treaties |
| Who Makes Treaties? | President + 2/3 Senate | States/International Organizations |
| Legal Status | Supreme Law of the Land (if self-executing) | Binding between states |
| Enforceability | Depends on self-execution | Binding once ratified |
| Termination | Unclear (President usually acts) | Allowed under specific VCLT grounds |
| Override by Domestic Law? | Yes (later statute can override) | No (pacta sunt servanda applies) |
| Constitutional Limits? | Yes (Reid v. Covert) | Limited to jus cogens norms |
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