Anthony Aust. Handbook of International Law
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105. Sidhu v. British Airways [1997] 1 All ER 193, at pp. 201–12.
106. See section 3 of the European Communities Act 1972.
107. See p. 478 below.
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‘remarkably complex’.
108
Any non-American lawyer who has to deal with the effect of a treaty in
US law would be well advised to consult a good American law firm. Under Article , Section 2(2),
of the Constitution, the President may ratify a ‘Treaty’ only with the ‘Advice and Consent’ of the
Senate signified by the affirmative vote of two-thirds of the members present. This is sometimes
referred to, misleadingly, as ‘ratification’, since only the President can do that act. Although the
Constitution mentions only one type of international agreement (a ‘Treaty’), from the earliest days
an alternative form has been employed by the US Government in order to avoid the problems
inherent in obtaining Senate approval. These so-called ‘executive agreements’ are nevertheless
regarded by both the US Government and other governments as treaties in international law. Under a
federal statute, known as the ‘Case Act’,
109
all executive agreements have to be notified to Congress
within sixty days of entry into force and published annually. (Unless otherwise indicated, a reference
in the following paragraphs to a ‘treaty’ includes an executive agreement; and a reference to a
‘Treaty’ is to a treaty that needs Senate approval.)
Most treaties entered into by the United States have been, and still are, executive agreements.
They can be broken down into four categories:
those authorised by a prior Act of Congress;1.
those subsequently approved by Act of Congress;2.
those entered into by the President in exercise of his executive power (a controversial and ill-
defined area); and
3.
those authorised by a previous Treaty or executive agreement.4.
‘Self-executing’ treaties
Under Article , Section 2, of the Constitution, all Treaties are the ‘supreme law of the land’, and
the Supreme Court has interpreted this as applying also to executive agreements. The provision is
often, and misleadingly, described as making treaties ‘self-executing’. By this is meant that the
treaty, once it has entered into force, is directly applicable as if it were an Act of Congress. But,
contrary to what is sometimes asserted, whether it is self-executing does not depend on whether it is
a Treaty or
108. J. Jackson, in Jacobs and Roberts (eds.), The Effect of Treaties in Domestic Law, London, 1987, vol.
7, pp. 141–69. For a critical commentary on compliance by the United States with treaties, see D. Vogts,
‘Taking Treaties Less Seriously’ (1998) AJIL 458–62. Unfortunately, the article on US law in National
Treaty Law and Practice, n. 97 above, is disappointing.
109. Public Law 92-403, as amended by USC 112b; ILM (1972) 1117 and ILM (1979) 82.
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an executive agreement. The self-executing concept has led inevitably to considerable confusion and
uncertainty, since there is no sure method for determining in advance whether a treaty will be self-
executing. The matter may ultimately have to be decided by the US courts. There is now
considerable jurisprudence, but it is not easy even for American lawyers to advise whether a
particular treaty, or part of it, is self-executing. The crucial factor is the intention of the parties. It is
usually necessary to consider various factors such as language and purpose, the specific
circumstances, the nature of the obligations and the implications of permitting a private right of
action without the need for legislation. However, a treaty will not be self-executing if it clearly
envisages implementing legislation. In some cases, the non-US party to the treaty may have to
intervene in legal proceedings in the United States to protect its position.
Hierarchy of norms
If a treaty is self-executing, it may come into conflict with US domestic law. Whenever possible, the
courts will seek to reconcile the two, but that is not always possible. When this happens, the general
residuary rules are:
treaties prevail over common law;
treaties prevail over state law;
the Constitution prevails over all treaties; this rule may, in part, have led in recent years to the
Senate requiring the President to attach a reservation when ratifying certain human rights
treaties;
110
in the case of a conflict between a Treaty and an Act of Congress, the later in time prevails.
However, there is still considerable uncertainty as to whether a later executive agreement
prevails. The judicial decisions do not give a clear guide, although it is probably fair to say that
generally an executive agreement concluded in exercise only of the executive power of the
President will not prevail over a prior Act of Congress.
Interpretation of treaties by US courts
US courts tend to have regard less to the text and more to the intention of the parties and the object
and purpose. Where there is more than one reasonable interpretation, the one which is more
favourable to private rights will be adopted. The courts do not follow the formal scheme of Articles
31 and 32 of the Convention (to which the United States is anyway not yet a party). The court will
give weight to an interpretation given by
110. See, for example, p. 75 above.
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the Government in amicus curiae
111
briefs and, when applicable, to any understanding expressed by
the Senate when giving Advice and Consent.
Implementation by federal states
The performance of treaties by federal states can give rise to problems. Although Article 29 provides
that, unless there is a different intention, a treaty is binding upon each party in respect of its entire
territory,
112
it may be difficult for a federal government to ensure that a treaty is fully implemented
in all the constituent units. Under a federal constitution, certain powers, such as taxation and
criminal justice, may be shared with the constituent units, so that if the latter have to legislate there
could be delays or even obstruction. When powers have to be exercised in performance of a treaty
obligation, the federal constitution may then provide for such matters to be vested exclusively in the
federal government, or, under a monist-type constitution, a treaty once ratified may override
inconsistent state law. Although, in principle, in the United States executive agreements also
override state law, in practice it is not always easy for the federal government to convince state
governments and legislatures that they are obliged to comply with them. This happens most
frequently with provisions for exemption from taxes.
Territorial application
Some treaties, such as the Outer Space Treaty 1967,
113
apply to the activities of a party or its
nationals outside its territory. But all treaties will require some action within the territory of the
parties, although not always legislation. Territory comprises the metropolitan territory of a state and
its overseas territories.
114
Unless it appears otherwise from the treaty, references to territory include
the territorial sea, but not the continental shelf or an exclusive economic zone or a fisheries zone.
115
In most cases a treaty will be silent as to its territorial scope. This is not usually a problem unless
a party has overseas territories and the content of the treaty is capable of applying to them. Because
of their very nature, treaties like the Charter of the United Nations have to apply to all the
111. In the United States, a written statement filed with the court by someone who is not a party to the
case but has an interest in the outcome and wishes to influence the court.
112. See p. 33 above.
113. See p. 367 below.
114. See p. 29 above.
115. See p. 33 above.
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territory of the parties. Article 29 lays down merely a residual rule: a treaty is binding upon each
party in respect of its entire territory unless a different intention appears from the treaty or is
otherwise established. A different intention can be established in various ways.
Territorial extension clauses
Bilateral treaties
Some bilateral treaties have a provision that they may be extended to such territories for whose
international relations the Government of is responsible, as may be agreed between the parties in
an exchange of notes.
116
Multilateral treaties
Before the era of de-colonisation, it was common to include a similar provision in multilateral
treaties.
117
But, from the 1960s, ‘colonial clauses’ fell out of favour. Other means were therefore
established by which states could extend treaties to their overseas territories (see below). The clauses
are now more likely to be found in treaties on matters such as customs and extradition.
Declaration on signature or ratification of a multilateral treaty
When a multilateral treaty does not by its nature clearly apply to all the territory of a party, yet is
silent as to its territorial scope and lacks a territorial clause, there is a well-established practice by
which a state can decide to which, if any, of its overseas territories the treaty will extend. At the time
of signature or ratification, the state declares either that the treaty extends only to the metropolitan
territory, or that it extends (and may later be extended further) to an overseas territory or territories.
The UN Secretary-General views this constant practice of states, and acquiescence by other states, as
having established a different intention for the purposes of Article 29.
118
The practice is based on
the premise that, unless the treaty has to apply to all overseas territories in order to be effective, it
does not
116. See the South Africa–United Kingdom Investment Promotion and Protection Agreement 1994,
UKTS (1998) 35.
117. See Article of the Genocide Convention 1948, 878 UNTS 277 (No. 1021); UKTS (1970) 58.
118. UN Depositary Practice, paras. 273–85.
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apply to them unless specifically extended to them. Today, many territories are small (some very
small), but most have internal self-government. Given their circumstances, they do not necessarily
need or want every multilateral treaty to apply to them.
Political sub-divisions of metropolitan territory
Many states, such as federations, have constitutions that divide the metropolitan territory into
political sub-divisions. Even when it is only the federation that can be party to treaties, their
implementation may require action by the governments and legislatures of the sub-divisions, yet the
federation remains responsible in international law for the due performance of all treaties.
119
There
are certain methods by which these problems can be reduced: territorial clauses, federal clauses, and
federal reservations.
120
Successive treaties
A particularly difficult problem is posed when a treaty is followed by another one or more treaties
that are wholly or partly on the same subject matter. When the treaty is bilateral, or all the parties to
two or more multilateral treaties are the same, there should be no particular problem. But the parties
to multilateral treaties are seldom all the same, and the issue is growing in importance with the
increasing number and complexity of multilateral treaties. The problems (which are related to the
rules on amendment of treaties) can be alleviated by an express ‘conflict clause’; otherwise the
residual rules in Article 30 apply. For examples of such clauses and a discussion of Article 30, see
Aust, pp. 173–83.
Interpretation
Treaties represent negotiated compromises reconciling often wide differences. The greater the
number of negotiating states, the greater the need for imaginative and subtle drafting to bridge the
gap between opposing interests. Inevitably this sometimes produces texts that are unclear or
ambiguous. There is no treaty that cannot raise some question
119. See p. 57 above. See generally B. Opeskin, ‘Federal States in the International Legal Order’ (1996)
NILR 353–386. See Paraguay v. US (Breard), ICJ Reports (1998), p. 248; ILM (1998) 810 (ICJ); ILM
(1998) 824 (US Supreme Court); 118 ILR 1.
120. See Aust, pp. 169–72.