The United States and The United Nations Declaration on Human Rights in addition to International Covenant on Economic, Social and Cultural Rights: See Foster v. Neilson. A violation of the treaty and covenant is a violation of US law. These treaties are not worded as Contracts and address themselves to the Judicial.
Foster v. Neilson, 27 U.S. 253, 314-15 (1829) U.S. Supreme Court, Chief Justice Marshall writing: "Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the legislature must execute the contract before it can become a rule for the Court." at 314, cited in Martin International Human Rights and Humanitarian Law et al.
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2013 Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty David A. Koplow Georgetown University Law Center, koplow@law.georgetown.edu
!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.1 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. David A. Koplow is Professor of Law and Director of the Center for Applied Legal Studies at Georgetown University Law Center. He was Special Counsel for Arms Control to the General Counsel, U.S. Department of Defense, Washington, DC, from 2009 to 2011. the fletcher forum of world affairs vol.37:1 winter 2013 54 TWO STREAMS OF LAW First, however, a bit of background about the two independent and somewhat-competing streams of legal authority governing treaties. On the one hand, under Article VI of the U.S. Constitution, a treaty, as a matter of domestic law, is the “supreme Law of the Land.” Only the Constitution is superior to a treaty and the latter has the equivalent legal dignity of a statute. Article II of the Constitution further states that the President of the United States has the obligation to “take Care that the Laws be faithfully executed.” Juxtaposing these texts, it is “black letter law” that a treaty must be enforced unless it runs afoul of a provision of the Constitution (noting that a treaty may be invalidated as “unconstitutional” in the same sense as a statute) or if it is superseded by a directly contrary stipulation in a subsequently enacted statute. On the other hand, international law presents a somewhat di#erent hierarchy of legal rules. From the perspective of international jurisprudence, the foundational prescription is pacta sunt servanda; treaties are to be respected and international obligations must be obeyed. Treaties and other forms of international law, therefore, occupy the apex of the legal pyramid and all domestic authorities of any particular country—whether denominated as rules of its national constitution, ordinary legislation, or in any other manner—are subsidiary. A country may not, under this system, interpose domestic law as a justi"cation for its failure to meet treaty requirements. If it could, there would not be much point in concluding such agreements. !e President of the United States may therefore occasionally be handcu#ed by this amalgamation of distinct legal authorities. If a valid treaty imposes an obligation, international law will demand adherence to it. However, if the same treaty violates the Constitution or if a subsequent domestic statute were to contain a contradictory obligation, the President’s ability to ful"ll international obligations would be constrained. !e United States must then adhere to domestic law and violate the treaty, or develop a creative mechanism to reconcile the contradictory requirements of the treaty and the statute. U.S. institutions have demonstrated great zeal in attempting to "nd or invent such harmonization, but it is not always possible.
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2902&context=facpub
____________________
2013 Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty David A. Koplow Georgetown University Law Center, koplow@law.georgetown.edu
!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.1 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. David A. Koplow is Professor of Law and Director of the Center for Applied Legal Studies at Georgetown University Law Center. He was Special Counsel for Arms Control to the General Counsel, U.S. Department of Defense, Washington, DC, from 2009 to 2011. the fletcher forum of world affairs vol.37:1 winter 2013 54 TWO STREAMS OF LAW First, however, a bit of background about the two independent and somewhat-competing streams of legal authority governing treaties. On the one hand, under Article VI of the U.S. Constitution, a treaty, as a matter of domestic law, is the “supreme Law of the Land.” Only the Constitution is superior to a treaty and the latter has the equivalent legal dignity of a statute. Article II of the Constitution further states that the President of the United States has the obligation to “take Care that the Laws be faithfully executed.” Juxtaposing these texts, it is “black letter law” that a treaty must be enforced unless it runs afoul of a provision of the Constitution (noting that a treaty may be invalidated as “unconstitutional” in the same sense as a statute) or if it is superseded by a directly contrary stipulation in a subsequently enacted statute. On the other hand, international law presents a somewhat di#erent hierarchy of legal rules. From the perspective of international jurisprudence, the foundational prescription is pacta sunt servanda; treaties are to be respected and international obligations must be obeyed. Treaties and other forms of international law, therefore, occupy the apex of the legal pyramid and all domestic authorities of any particular country—whether denominated as rules of its national constitution, ordinary legislation, or in any other manner—are subsidiary. A country may not, under this system, interpose domestic law as a justi"cation for its failure to meet treaty requirements. If it could, there would not be much point in concluding such agreements. !e President of the United States may therefore occasionally be handcu#ed by this amalgamation of distinct legal authorities. If a valid treaty imposes an obligation, international law will demand adherence to it. However, if the same treaty violates the Constitution or if a subsequent domestic statute were to contain a contradictory obligation, the President’s ability to ful"ll international obligations would be constrained. !e United States must then adhere to domestic law and violate the treaty, or develop a creative mechanism to reconcile the contradictory requirements of the treaty and the statute. U.S. institutions have demonstrated great zeal in attempting to "nd or invent such harmonization, but it is not always possible.
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2902&context=facpub
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