Page 157 - Law of Peace, Volume ,

Pam 27-161-1

U.N. Secretariat. 86 If an agreement is not so registered, or abrogated by an act of equal authority, i.e., an interna-
no party to the agreement may invoke it before any organ tional act. The Constitution also recognizes the superior
of the U.N. Article 80 of the Convention simply reaffi authority of treaties over conflicting legislation, prior or
the obligation on the part of states party to a treaty to subsequent. 91 Another section makes the superiority of a
transmit it to the U.N. Secretariat for registration and treaty dependent on its application by the other party,
publication. however, thus importing an element of reciprocity into
8-18. International Agreements in Internal the incorporation process.
Law. a. Approaches toward the status of treaties under 8-19. Agreement-Making Power in the United
internal law. Although the Vienna Convention provides States. a. Generally.
that ". . . a treaty enters into force as soon as consent to be UNITED STATES CONSTITUTION
bound by the treaty has been established for all the Article I. Section 10
negotiating states," a treaty may not necessarily possess No State shall enter into any Treaty, Alliance or Confederations. . . .
legal effect under a state's own municipal law. States take No State shall, without the Consent of the Congress, . . . enter into
different approaches regarding the status of treaties under any Agreement or Compact with another State, or with a foreign Power.
internal law. The two principal positions are incorporation
(or adoption), an approach holding that treaties automat- Article II, Section 2
ically become part of internal law without a s@~c act of He [the President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two-thirds of the
acceptance, and "transformation," a theory maintaining Senators present concur. . . .
that treaties are only part of internal law insofar as they are
Article VI
accepted by specific acts of the legislature and/or courts. 87 This Constitution, and the Laws of the United States which shall be
The approach taken may have an impact upon the likeli- made in Pursuance thereof; and all Treaties made, or which shall be
hood of compliance with and implementation of a treaty. made, under the Authority of the United States, shall be the supreme
Moreover, it may also affect a state's interpretation of Law of the Land; and the Judges in every State shall be bound thereby,
treaties, as states adhering to the transformation theory anything in the Constitution or Laws of any State to the Contrary not-
tend to maintain that once a treaty has been transformed withstanding.
into municipal law, its interpretation and application rest "Ratification" of treaties is not mentioned in the Con-
with municipal courts. 88 stitution. In practice, treaties are ratified by the President
b. The "transformation" approach followed in the after the Senate has given its advice and consent. It is in-
United Kingdom makes a functional distinction between correct, therefore, to refer to the action of the Senate as
treaties and customary international jurisprudence. It has "ratification." The President is under no duty to proceed
long been held in Great Britain that customary interna- with the ratification, or exchange of ratifications, of a
tional law is part of its internal law, as stated in the 1905 treaty after the Senate has given its advice and consent,
case of West Rand Mining Co. v. The King: since the latter is not a binding directive. As noted above,
whatever has received the common consent of civilized nations must Article VI, paragraph 2 of the Constitution provides that
have received that assent of our country, and that to which we have treaties made under the authority of the U.S., together
assented along with other nations in general may properly be called in- with the Constitution and laws of the U.S. made in pur-
ternational law, and as such will be acknowledged and applied by our suance thereof, ". . . shall be the supreme Law of the
municipal tribunals to decide questions to which doctrines of interna-
Land." Thus, treaties are automatically a part of Ameri-
tional law may be relevant. 89
can municipal law. No acts of "transformation" by the
However, the making of treaties is a prerogative power of courts or Congress are necessary. Notwithstanding this
the Executive in England, to be exercised without the fact, however, there exist several basic questions regard-
concurrence of Parliament (in contrast to the U.S. where ing the agreement-making power in the United States.
the President must obtain the advice and consent of the b. What is the status of a treaty that conflicts with a pro-
Senate). In order to prevent executive tyranny, treaties vision of the Constitution? In the leading case in which
are not self-executing and do not become part of munici- this issue was raised, the Supreme Court gave recognition
pal law until enabling legislation is passed by Parlia- to a very broad treaty making power.
ment. 90
MISSOURI v. HOLLAND
c. Incorporation. By contrast, the French Constitution Supreme Court of the United States, 1920
calls for the direct "incorporation" of treaties into French 252 U.S. 416,40S.Ct. 382, 64 L.Ed.641
municipal law and provides that they can only be modified On December 8, 1916, a treaty between the United States and Great
Britain was proclaimed by the President. It recited that many species of
86. See Brandon, Ana&sis of the Terms 'Treaw' and 'International birds in their annual migrations traversed many parts of the United
Agreemenu'for Purposes of Registration Under Article I02 of the United States and of Canada, that they were of great value as a source of food
Nations Charter, 47 Am J. Int'l L. 49 (1953). and in destroying insects injurious to vegetation, but were in danger of
87. See I. Brownlie, supra, note 63 at 106. extermination through lack of adequate protection. It therefore provided
88. See J.Brieriy, supra, note 21 at 91-93. for specXed closed seasons and protection in other forms, and agreed
69. [I9051 2 K.B. 391.
90. J. Brier&, supra, note 21 at 89-90. 91. K.Hollonuy, Modern Trends in Treaw Law 255 (1967).