240,098 research outputs found

    Treaty-Based Rights and Remedies of Individuals

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    Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the supreme Law of the Land and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. As Chief Justice Marshall long ago observed, [t]he province of the court is, solely, to decide on the rights of individuals .... Accordingly, it is frequently said that treaties are enforceable by individuals in our courts only when they confer rights on individuals. Yet it is widely held that treaties, as international instruments, establish legal obligations and correlative legal rights only of the nations that are parties to them, not of individuals

    Mechanisms of conflict and dispute resolution in Ancient Near Eastern Treaties

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    The paper focuses on the problems of a juridical classification and evaluation of Ancient Near Eastern treaties with regard to the question if there existed an Ancient Near Eastern International Law or not. Alternatively treaties and their content are looked at uncommitted as mechanisms of conflict and dispute resolution. Main aspects are preliminary and prophylactic conflict resolution in treaties and the procedural context and efficiency of treaties

    Determining hierarchy between conflicting treaties: are there vertical rules in the horizontal system?

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    Treaties are contractual instruments that may provide special rules of priority in case they conflict with other treaties. When a treaty does not provide such rules, however, priority is determined by the rules of the Vienna Convention on the Law of Treaties (VCLT) and/or general principles of law. This article argues that both the VCLT and general principles of law do not provide an adequate solution to treaty conflicts. It suggests that the solution to treaty conflicts rests in a value-oriented reading of international law and the norms incorporated in treaties. Norms represent values and values represent interests or benefits for which international society requires protection. Conflicts of treaty norms are, therefore, conflicts of values that courts and dispute settlement bodies resolve by ordering a hierarchy of competing interests and protecting the most important interests in a given context

    Alliances and treaties: co-operation in war and peace

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    This article explores how the use of alliances and treaties changed along with the developments in the European international order in the modern era. Fundamentally, European international relations remained based on an "anarchic" system of competing sovereign states. Yet the evolution of concepts of international law from the Renaissance onwards and the impact of cultural, political, and social developments has encouraged a use of treaties and alliances that has moved European politics fitfully towards a "constitutional" solution, while never fully embracing such a model

    Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty

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    !e United States justi ably prides itself on its devotion to “the rule of law.” We take legal instruments seriously; when we assume a binding legal obligation at home, we mean it, and we expect all parties to the agreement to demonstrate comparable fealty. !is commitment to the law also extends to international agreements. Treaties are the coin of the international realm, and the United States leads the world both in making treaties and in publicly and pointedly holding others accountable when they fall short of full compliance. What happens, then, when the United States contravenes a binding international legal obligation in a manner so obvious and unarguable that it can o#er no defense to the charge of breach? It happens more often than one might think and to more important treaties than one would hope, including treaties for which the United States continues to depend upon fastidious performance by other countries. Here, I present three illustrative cases studies of blatant U.S. violations of binding international legal obligations: the 1993 Chemical Weapons Convention, the 1963 Vienna Convention on Consular Relations, and the obligation to pay annual dues under the Charter of the United Nations. I explain the causes of these breaches and examine their adverse consequences for the United States and for the international rule of law

    Exiting Congressional-Executive Agreements

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    Commentators have argued that, even if the president has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the president lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This Article challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this Article contends, there is no persuasive reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice. For example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents cannot unilaterally terminate statutes, congressional-executive agreements are not mere statutes. They are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to those contained in Article II treaties, which presidents have long invoked unilaterally, and Congress has never indicated that presidents have less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally

    Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

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    Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause—federal statutes and the Constitution itself. The sole exception to this rule is for treaties that are non-self-executing in the sense contemplated by the Court in Foster v. Neilson. The concept of a non-self-executing treaty fits uneasily with the Supremacy Clause, as reflected in the common but untenable view that non-self-executing treaties lack the force of domestic law. According to Foster, a non-self-executing treaty is not enforceable in the courts because it is addressed to the political branches. But determining which treaties are so addressed has been challenging. Treaties generally leave the question of domestic implementation to the domestic laws of the states-parties, and our domestic law (the Supremacy Clause) directs judges to give them effect. The author argues that the Supremacy Clause establishes a default rule that treaties are directly enforceable in the courts like other laws, rebuttable only by a clear statement that the obligations imposed by the treaty are subject to legislative implementation. If the stipulation had to appear in the text of the treaty, the clear statement rule would present problems for U.S. treaty makers seeking to control the domestic consequences of multilateral treaties. To address this problem, the treaty makers have developed a new form of clear statement, the “declaration” of non-self-execution. However, scholars have questioned the compatibility of such declarations with the Supremacy Clause. The author concludes that the treaty makers have the power to limit the domestic effects of treaties through declarations of non-self-execution. On the other hand, if the Constitution were understood to establish a default rule of non-self-execution, declarations of self-execution would stand on more tenuous ground. Thus, a default rule of self-execution is not only more consistent with the constitutional text and structure and with Supreme Court precedent, it is also normatively attractive because it leaves the treaty makers with the power to control the domestic consequences of the treaties they conclude

    Customary International Law: An Instrument Choice Perspective

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    Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law

    Endogenous Minimum Participation in International Environmental Treaties

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    Many international treaties come into force only after a minimum number of countries have signed and ratified the treaty. Why do countries agree to introduce a minimum participation constraint among the rules characterising an international treaty? This question is particularly relevant in the case of environmental treaties dealing with global commons, where free-riding incentives are strong. Is a minimum participation rule a way to offset these free-riding incentives? Why do countries that know they have an incentive to free-ride accept to “tie their hands” through the introduction of a minimum participation constraint? This paper addresses the above questions by analysing a three-stage non-cooperative coalition formation game. In the first stage, countries set the minimum coalition size that is necessary for the treaty to come into force. In the second stage, countries decide whether to sign the treaty. In the third stage, the equilibrium values of the decision variables are set. At the equilibrium, both the minimum participation constraint and the number of signatories – the coalition size – are determined. This paper shows that a non-trivial partial coalition, sustained by a binding minimum participation constraint, forms at the equilibrium. This paper thus explains why in international negotiations all countries often agree on a minimum participation rule even when some of them do not intend to sign the treaty. The paper also analyses the optimal size of the minimum participation constraint.Agreements, Climate, Negotiations, Policy, Incentives
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