The Domestic Legal Effect of Treaties and Agreements
do.teen Reflective Response: The Domestic Legal Effect of Treaties and Agreements
Read
Article VI of the U.S. Constitution provides, in part,
“…This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be 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 thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding…”
This clause, often referred to as the Supremacy Clause, demonstrates that treaties are elevated to a status over that of state laws. While not done as clearly, courts have also given executive agreements that same elevated status. However, while treaties and executive agreements are supreme over state law, they are not necessarily equal to one another. Moreover, not all treaties are enforceable in domestic courts.
How and where treaties are enforceable has been a fluid concept in America’s history, and it remains so to this day. The article linked below examines the history of the enforcement of treaties in U.S. courts and where we stand today on the issue. The article also makes suggestions of how to better allow for direct enforcement of treaties.
Read the article critically, gauging your response to its conclusions.
Write
Based on the journal article, consider the following questions:
- What factors are involved in determining whether an international treaty is “binding” or enforceable in U.S. courts? Is this list sufficient? Should other factors be involved? If so, what and why?
- What are a litigant’s options if the treaty is not enforceable domestically? Do you think “indirect enforcement” is truly a viable option?
- Should the process make access to domestic courts for enforcement, or private rights of action, more or less difficult? What reasoning supports your position?
APA format and in-text citations with reference page
Answer preview
The Constitution of the United States of America elevates treaties above the municipal law. All treaties negotiated and ratified by the executive are binding (Constitution of United States of America, Article VI (2). Despite the Supremacy Clause in the U.S. Constitution above, courts have gone ahead and distinguished such treaties into those that have the same status as statutes of the Congress and those that Congress should execute. Those that should be executed by Congress cannot be enforced by our courts unless implemented by Congress. This has led to several situations in which a treaty contemplated by the constitution to be binding is rendered either enforceable or unenforceable…
(600 words)