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
power to sue in court to enforce a treaty provision. Another option is Vide section 1983 where the court also held that individuals can sue and successfully recover damages for breach of the right to consular notification. They have held that the above section serves as an enabling statute to enable the enforcement of such actions. The last option is Habeas Corpus; a habeas corpus petition based on the violation of a treaty provision can be enforced by American courts even though that treaty does not confer the right to bring such an appeal. Under the United States of America habeas corpus, it was held that the private right to bear such applications is actionable (the United States v. Rauscher, 1886). Indirect enforcement is a viable option since it is within the power of Congress to create private rights vide enabling legislation.
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