Status of Treaties in Domestic Legal Systems: A Policy Analysis | American Journal of International Law | Cambridge Core (original) (raw)

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1 The terms may not always be used identically, but “self-executing” is very similar to “direct application.” “Direct application” will be the preferred term here, since it seems more effectively to express the notion that the international treaty will be a part of the domestic legal system, very similar to a “statute." As used here, direct application expresses the notion that the international treaty instrument has a “direct” statutelike role in the domestic legal system, but it is not meant to differentiate between different kinds of such direct roles. Thus, the term “direct application” will not be limited to situations in which private parties can sue on the basis of the treaty norm, but will also cover situations in which governments, or different levels of government, might utilize the treaty norm as part of domestic jurisprudence. It is therefore quite likely that the term “direct application,” as used in the European Community's jurisprudence, is not the same in all respects as “direct application” in this article. Furthermore, this usage by the Community is probably not identical to the U.S. use of the term “self-executing.” Nevertheless, for most purposes, these differences should not prove troublesome, and the term “direct application” seems better to express the notions explored in this article. The reader should notice the distinction made below between “direct application” and “invocability.” See text infra at note 36.

2 International law practitioners and scholars often speak of “municipal law” in referring to the domestic laws of a particular nation-state and contrasting them with international law. In this article, the terms “municipal law,” “national law” and “domestic law” will be used interchangeably.

3 When an international treaty is not directly applicable in the domestic law system but requires the provision of domestic rules to be carried out, such rules can often be provided by an “act of transfor mation.” See text infra at note 20; see also supra note 1. The phrase “act of transformation” is not precisely defined. In some cases, a statute may simply “implement” a treaty norm, such as by appropriating money for an award under a treaty. Such “implementation” probably can be distinguished from “transformation.” Thus, “transformation” seems to be a term that is reserved for placing a general treaty norm into the domestic jurisprudence. In some cases, the treaty language would be altered by the act of transformation, and at some point the alteration will be so great as no longer to be transformation but, instead, implementation. Some scholars and practitioners also use terms such as “incorporation,” “reception” and “adoption.” See M. HILF, RIGHTS, INSTITUTIONS AND IMPACT OF INTERNATIONAL LAW ACCORDING TO THE GERMAN BASIC LAW 177 (C. Starck ed. 1987); van Dijk, Domestic Status of Human-Rights Treaties and the Attitude of the Judiciary_—_The Dutch Case,FESTSCHRIFT FUR FELIX ERMACORA 631 (1988); Seidl-Hohenveldern, Transformation or Adoption of International Law into Municipal Law, 12 INT'L & CoMP. L.Q. 88 (1963). It is not entirely clear how these terms are distinguished among themselves, or from “transformation.” Presumably, they refer to the transfer of the treaty language into domestic jurisprudence largely without alteration, or at least much alteration. There is also a concept of “publication,” which would apply even in the case of direct application. Thus, it can be argued that even though a treaty has direct application, it will not be “received” in the domestic jurisprudence until “published,” in the same manner as for other laws.

4 The importance of this relationship is recognized (although with substantial differences in opinion) in such works as M. S. MCDOUGAL & W. M. REISMAN, INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE: THE PUBLIC ORDER OF THE WORLD COMMUNITY: CASES AND MATERIALS (1981); McDougal, The Impact of International Law upon National Law: A Policy-Oriented Perspective, 4 S.D.L. REV. 25 (1959); L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION (1972) [hereinafter FOR EIGN AFFAIRS]; idem.,CONSTITUTIONALISM, DEMOCRACY AND FOREIGN AFFAIRS (1990) [hereinafter CONSTITUTIONALISM]; L. HENKIN, R. PUGH, O. SCHACHTER & H. SMIT, INTERNATIONAL LAW CASES AND MATERIALS, ch. 3 (2d ed. 1987); J. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS (1989); E.-U. PETERSMANN, CONSTITUTIONAL FUNCTIONS AND CONSTITUTIONAL PROBLEMS OF INTERNATIONAL ECONOMIC LAW (1991); Trim ble, International Law, World Order, and Critical Legal Studies, 42 STAN. L. REV. 811, 812 (1990). With respect to regime theory, see, e.g., R. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY (1984).

5 See, e.g., 1. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (4th ed. 1990); Sasse, The Common Market: Between International and Municipal Law, 75 YALE L.J. 695 (1966); 7 UNITED KING DOM NATIONAL COMMITTEE OF COMPARATIVE LAW, THE EFFECT OF TREATIES IN DOMESTIC LAW (Francis G. Jacobs & Shelley Roberts eds. 1987) [hereinafter Jacobs & Roberts].

6 Jacobs & Roberts, supra note 5, is the most recent broad survey. See also M. WAELBROECK, TRAITES INTERNATIONALES ET JURIDICTIONS INTERNES DANS LES PAYS DU MARCHE COM- MUN (1969); K. HOLLOWAY, MODERN TRENDS IN TREATY LAW (1967); H. SCHERMERS & D. WAELBROECK, JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES (4th ed. 1987). For discussion of several special treaty types, which, however, has relevance to other treaties, see, e.g., on the ILO, V. LEARY, INTERNATIONAL LABOUR CONVENTIONS AND NATIONAL LAW: THE EFFECTIVENESS OF THE AUTOMATIC INCORPORATION OF TREATIES IN NATIONAL LEGAL SYSTEMS (1982); on the Genocide Convention in U.S. law, see E. POTTER, FREEDOM OF ASSOCIATION, THE RIGHT TO ORGANIZE AND COLLECTIVE BARGAINING—THE IMPACT ON U.S. LAW AND PRACTICE OF RATIFICATION OF ILO CONVENTIONS NO. 87 AND NO. 98 (1984); on the European Convention on Human Rights, see HUMAN RIGHTS IN NATIONAL AND INTERNATIONAL LAW (Proceedings of the Second International Conference on the European Convention on Human Rights, 1965, A. H. Robertson ed. 1968) [hereinafter Robertson].

7 See the interesting account of ILO Conventions in V. LEARY, supra note 6, particularly at 154-55, noting (inter alia) that “governments themselves may erroneously report their national constitutional law, or the constitutional law may change.” See also Robertson, supra note 6.

8 See works cited in notes 4, 5, 6, 7 supra.

9 Among the works that discuss policy issues are McDougal, supra note 4; Sasse, supra note 5; V. LEARY, supra note 6; Robertson, supra note 6.

10 For a recent discussion of some of these questions in the European context, see Symposium, Approaching Democracy: A New Legal Order for Eastern Europe, 58 CHI. L. REV. 439 (1991).

11 Prominent among these actual, or potential, regional groupings are the U.S.-Canada Free Trade Agreement of 1988, and the negotiations that began in 1991 toward a broader “North American Free Trade Agreement” including the United States, Canada, and Mexico.

12 Although some feel that the legal situation in the European Community has now been established by decisions of the Court of Justice, others note that while the Court has considered the matter, its actual decisions have not definitively ruled on some matters such as higher status for directly applica ble treaties. See Stein, External Relations of the European Community: Structure and Process, in COURSE OF THE ACADEMY OF EUROPEAN LAW 13(1991); Hilf, The Single European Act and 1992: Legal Implications for Third Countries, 1 EUR. J. INT'L L. 89, esp. at 94 &n. 17 (1990); and infra note 124. The application of some of these rules in other countries such as Japan reveals considerable ambiguity. See text infra at note 121. There is even some debate in the United States, as well as a recent court opinion (see infra note 118), that raises some interesting questions. Bodies that could influence the issue other than courts might include legislatures (which might specify their intent or control) or certain administrative bodies. See Reisman, An International Farce: The Sad Case ofthe PLO Mission, 14 YALE J. INT'L L. 412 (1989); and text infra at notes 137-38.

14 Obviously, the approach of this article is pragmatic, policy oriented and empirical rather than "theoretical,” and thus is possibly controversial to those who are otherwise inclined, including those who argiie that there is a “trend” toward direct application of treaties or that there is an international obligation to apply treaties directly. In addition, this article is not premised on the a priori superiority of international law, conventional or otherwise, but suggests that experience and observations about international norms by policy makers will count heavily in their weighing of the relevant arguments in particular contexts. Clearly, these are issues that theorists or holders of contrary opinions should tackle.

15 See, on that subject, L. HENKIN, FOREIGN AFFAIRS, supra note 4, esp. ch. VIII; Henkin, Interna tional Law as Law in the United States, 82 MICH. L. REV. 1555 (1984); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, ch. 2 (1987) [hereinafter RESTATEMENT]; Henkin, Lexical Priority or “Political Question": A Response, 101 HARV. L. REV. 524 (1987) [hereinafter Lexical Priority].

16 The terms “treaty” and “international agreement” are used here in the manner defined and described in the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 2, 1155 UNTS Ml, reprinted in 8 ILM 697 (1969) (entered into force Jan. 27, 1980) [hereinafter Vienna Convention]. We will have occasion below to cite this Convention as a convenient reference on the rules of international law, or those governing treaties, even though various nations are not bound (not parties, such as the United States) and the Vienna Convention technically does not apply to some treaties (e.g., those which preceded the Convention).

17 For example, the General Agreement on Tariffs and Trade (GATT), Article III; and many treaties of friendship, commerce and navigation. J. JACKSON & W. DAVEY, LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS, ch. 8, and 266 (2d ed. 1986).

18 See text at and note 5 supra. The author is aware that some writers tend to play down this terminology, or feel that it is unnecessary. See, e.g., the descriptions of such views in McDougal, supra note 4, at 28, 31. Nevertheless, as a matter of empirical observation, court opinions, national officials and authors do use this terminology, at least in some jurisdictions. See, e.g., I. BROWNLIE, supra note 5, ch. II; M. HILF, supra note 3.

19 It is assumed in this article that aliens or citizens of the relevant foreign nation have access to the courts of a domestic legal system.

20 See I. BROWNLIE, supra note 5, references supra note 6, and description supra note 3.

21 In many cases, the statute that operates as the act of transformation also authorizes the appro priate government officials to “accept” or ratify the treaty itself. For example, see the U.S. Trade Agreements Act of 1979, Pub. L. No. 96-39, 93 Stat. 144, especially §3, Relationship of Trade Agreements to United States Law, and relevant legislative history. _See]._JACKSON, supra note 4, at 76; Frowein, Federal Republic of Germany, in Jacobs & Roberts, supra note 5, at 63, 66.

22 E.g.,RESTATEMENT, supra note 15, §114 (which reads, “Where fairly possible, a United States statute is to be construed so as not to conflict with international law, or with an international agree ment of the United States"). See also J. JACKSON, supra note 4, at 75; J. JACKSON, J.-V. Louis & M. MATSUSHITA, IMPLEMENTING THE TOKYO ROUND: NATIONAL CONSTITUTIONS AND INTERNA TIONAL ECONOMIC RULES 167 (1984). See generally Jacobs & Roberts, supra note 5.

23 For example (although probably rare), a court might be delegated authority to issue a device that would apply a treaty, perhaps on a petition for mandamus. This situation is to be distinguished from a court's deciding that a treaty is directly applicable in a particular case.

25 See K. HOLLOWAY, supra note 6, at 193 et seq.; Sawyer, Australian Constitutional Law in Relation to International Relations and International Law, in INTERNATIONAL LAW IN AUSTRALIA 35, esp. at 47 et seq. (K. W. Ryan ed. 1984). Sawyer notes that “owing to the dominant position of Parliament in systems of British origin this corollary [that international agreements should be part of domestic law] is not accepted.” Id. at 48.

26 See Higgins, United Kingdom, in Jacobs & Roberts, supra note 5, at 123; and Frowein, supra note 21.

27 See Vienna Convention, supra note 16, Arts. 9, 10.

28 Jackson, United States of America, in Jacobs & Roberts, supra note 5, at 141.

30 The power to negotiate refers to the power of a nation's representatives to negotiate with a view to forming a treaty. National systems differ in the extent to which this power is implied or always rests in an executive. The U.S. President has this power under the Constitution, but in some other systems there must be a preliminary “mandate” or “direction” adopted by a lawmaking process before repre sentatives are authorized (at least formally) to open discussions that might lead to a treaty. See, e.g., Stein, Towards a European Foreign Policy? The European Foreign Affairs System from the Perspective of the United States Constitution, in 1 INTEGRATION THROUGH LAW, bk. 3, at 3 (Cappelletti, Seccombe & Weilereds. 1986).

31 The power to “sign” refers to the concept in the Vienna Convention of signing to authenticate a treaty draft. Generally today, this will not be the same as “acceptance.” Signing is often ad referen dum. See Vienna Convention, supra note 16, Art. 10.

33 Regarding U.S. law, see L. HENKIN, FOREIGN AFFAIRS, supra note 4; idem.,CONSTITUTIONAL ISM, supra note 4; Jackson, supra note 28.

34 Vienna Convention, supra note 16, Art. 46; Henkin, Lexical Priority, supra note 15.

35 See Jackson, supra note 28. And note the case of United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), as discussed in J. JACKSON & W. DAVEY, supra note 17, at 88.

36 Jackson, supra note 28; Riesenfeld, International Agreements, 14 YALEJ. INT'L L. 455, 462 (1989). Riesenfeld is surely correct when (referring to Jackson's work, id.) he notes that the concept of “invoc ability” embraces several ideas, perhaps intertwined. However, “invocability” can be a useful generic term to embrace a small inventory of means of judicial control over the use in a particular lawsuit of the direct applicability of a treaty. See text at and note 134 infra.

37 See text at note 38 infra.

38 See also note 39 infra, and text at and note 96 infra. The author also wishes to acknowledge the thinking of Professor Lauwaars (the Netherlands) on this issue. Sometimes the terminology “horizon tal application” and “vertical application” is used, the former to describe a case between private parties, the latter a case between a private party and a government entity.

39 See generally Robertson, supra note 6. In chapter I of this book, Max Serensen, in his Report, at 11, 22, presents an interesting analysis of four general types of treaties with differing relevance to domes tic law. Roughly paraphrased, these are: (1) treaties with purpose and substance outside the sphere of national law, such as alliances, peaceful settlement of international disputes; (2) treaties affecting the administrative sphere of rights and duties of various public authorities, and not relating to individuals; (3) treaties relevant to relations between public authorities and individuals; and (4) treaties concerned with relations between individuals or other subjects of private law.

40 Courts and other institutions will often try hard to avoid the inconsistency of norms by reconciling the different legal instruments when feasible. See, e.g., Higgins, supra note 26, at 137; Jackson, supra note 28, at 160; RESTATEMENT, supra note 15, §114.

41 See, e.g., Jackson, supra note 28; RESTATEMENT, supra note 15, §115.

42 Jackson, supra note 28, at 169.

43 See references in notes 5, 6 supra. See also Henkin, Lexical Priority, supra note 15; Westen, The Place of Foreign Treaties in the Courts of the United States: A Reply to Louis Henkin, 101 HARV. L. REV. 511 (1987).

44 See, e.g., I. BROWNLIE, supra note 5, ch. II; Ganshof van der Meersch, Report, in Robertson, supra note 6, at 97; RESTATEMENT, supra note 15, ch. 2; see also infra note 62; Robertson, supra note 6, at 101-02.

45 _See_RESTATEMENT, supra note 15, §115; L. HENKIN, CONSTITUTIONALISM, supra note 4, ch. II; Henkin, Litigating the President's Power to Terminate Treaties, 73 AJIL 647 (1979).

46 There is considerable literature on this controversy, but the short reference in L. HENKIN, CON STITUTIONALISM, supra note 4, at 56, is a good starting point for the interested reader.

47 See supra note 44, and particularly RESTATEMENT, supra note 15, §114.

48 Jacobs & Roberts, supra note 5.

49 See other references in notes 5, 6 supra, and see infra notes 52, 54.

50 See V. LEARY, supra note 6.

51 See Robertson, supra note 6.

52 See Higgins, supra note 26.

53 F. A. MANN, FOREIGN AFFAIRS IN ENGLISH COURTS, ch. 5 (1986); Higgins, supra note 26.

54 See K. HOLLOWAY, supra note 6, at 193 et seq.; Sawyer, supra note 25, esp. at 47.

55 European Communities Act of the United Kingdom 1972, ch. 68. Section 2 states that rights, powers, etc., provided under the treaties “as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom” and “shall be recognised and available in law, and be enforced, allowed and followed accordingly.” See also Maresceau, The Effect of Community Agreements in the U.K., 28 INT'L & COMP. L.Q. 241 (1979). See generally L. COLLINS, EURO PEAN COMMUNITY LAW IN THE UNITED KINGDOM(3d ed. 1984).

56 Frowein, supra note 21; Gaja, Italy, in Jacobs & Roberts, supra note 5, at 87.

57 Schermers, Netherlands, in Jacobs & Roberts, supra note 5, at 109; H. ScHERMERS & D. WAELBROECK, supra note 6, at 109; van Dijk, supra note 3; Schermers, Some Recent Cases Delaying the Direct Effect of International Treaties in Dutch Law, 10 MICH. J. INT'L L. 266 (1989) [hereinafter Recent Cases].

58 De la Rochere, France, in Jacobs & Roberts, supra note 5, at 39. Article 55 of the 1958 French Constitution establishes a higher status for treaties than for even later-in-time legislation, subject, however, “for each separate agreement or treaty, to reciprocal application by the other party.” Id. at 42. This reciprocity provision introduces a considerable amount of ambiguity, but also provides some measure of remedy for the asymmetry problem discussed in the text at note 89 infra.

59 On Belgium and Switzerland, see Jacobs & Roberts, supra note 5. On Japan, see Matsushita,/a/>an and the Implementation of the Tokyo Round Results, in J. JACKSON, J.-V. LOUIS & M. MATSUSHITA, supra note 22, ch. 3, at 77.

60 RESTATEMENT, supra note 15, §111(4); Jackson, supra note 28; L. HENKIN, CONSTITUTIONAL ISM, supra note 4, at 62. In an interesting and stimulating article, Professor Jordan Paust argues against the well-established approach of courts and the Restatement of distinguishing self-executing and non-self-executing treaties, and apparently (not too clearly) urges that all treaties be the “supreme law of the land.” Paust, Self-Executing Treaties, 82 AJIL 760 (1988).

61 RESTATEMENT, supra note 15, §115; Jackson, supra note 28.

62 Several GATT dispute panel reports have concluded that the implementation of U.S. statutes enacted later than GATT caused the United States to be in contravention of its GATT treaty obliga tions. See, e.g., United States Manufacturing Clause, GATT, BASIC INSTRUMENTS AND SELECTED DOCUMENTS, 31st Supp. 74 (1985) (regarding copyright); U.S. Section 337 of the Tariff Act of 1930, id., 36th Supp. 345(1988).

63 Pescatore, Treaty-making by the European Communities, in Jacobs & Roberts, supra note 5, at 171; H. SCHERMERS & D. WAELBROECK, supra note 6; THE EXTERNAL RELATIONS OF THE EUROPEAN COM MUNITY, IN PARTICULAR EC-US RELATIONS(J. Schwarze ed. 1989); Stein, supra note 12; Hilf, supra note 12; and E. L. M. VOLKER &J. STEENBERGEN, LEADING CASES AND MATERIALS ON THE EXTER NAL RELATIONS LAW OF THE EUROPEAN COMMUNITY, ch. 2 (1985).

64 See text supra at note 16.

65 The concept of “judicial notice” in U.S. and other countries'jurisprudence generally refers to a court's acceptance of the probity of documents and legal instruments, such as statutes, constitutions or calendars, which it may do on its own motion and without requiring proof. This is contrasted with use of elements that need proof at a trial, such as most facts of a case and foreign law. See, e.g.,RESTATE MENT, supra note 15, §113.

66 Jackson, supra note 28.

67 Pescatore, Conclusion, in Jacobs & Roberts, supra note 5, at 273; discussion and description by Sasse, supra note 5, and McDougal, supra note 4.

68 See generally Jacobs & Roberts, supra note 5; I. BROWNLIE, supra note 5, ch. II; L. HENKIN, CONSTITUTIONALISM, supra note 6, at 63; McDougal, supra note 4.

69 See, e.g., L. HENKIN, CONSTITUTIONALISM, supra note 6, at 63; RESTATEMENT, supra note 15, § 111; see also H. SCHERMERS & D. WAELBROECK, supra note 6; Henkin, Lexical Priority, supra note 15.

70 See, e.g., Henkin, Lexical Priority, supra note 15; and idem., The Constitution and United States Sover eignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, 886 (1987). An interesting conversation in mid-1991 with a Latin American lawyer-diplomat tends to support the statement in the text. He noted that the question of direct application did not come up often in his national jurisprudence (even though it was possible), because lawyers were not used to searching for or finding treaties as part of their cases. In fact, he commented that many of his country's treaties were negotiated by the Ministry of Foreign Affairs, and when approved (by the parliament) were “locked in a cabinet and almost never looked at thereafter."

71 See text supra at note 69. See also Pescatore, supra note 67, at 275, where he appears to argue that the good faith requirement to implement treaties implies direct application, that is, “incorporation" without an act of transformation. He concludes: Incorporation procedures and methods based on “transformation” are therefore by their very essence incompatible with good faith in international relations. By ratification a state promises unqualified implementation of a treaty . . . , while by using the “transformation” method for incorporation the same state retains the possibility of not implementing a treaty at all, or of implementing only part of it, or of altering its effect unilaterally .... Id. at 282. See Vienna Convention, supra note 16, Art. 26 ("good faith"); see also W. BISHOP, JR., INTERNATIONAL LAW: CASES AND MATERIALS 80 (3d ed. 1971) (quoting Sprout, International Law in the Federal Courts of the United States, 26 AJIL 280 (1932)), and mentioned in Sasse, supra note 5, at 712 ("Only a few outsiders maintain . . . ,” etc.).

72 See text at and notes 52-54 supra; Jacobs & Roberts, supra note 5.

74 See counterargument in text infra at note 81.

75 See supra text at and note 69; and Pescatore, supra note 67.

76 Sasse, supra note 5, at 712-13, outlines these theories and some of their proponents, writers at the turn of the century (such as Triepel (1899), Anzilotti (1905) and Kelsen (1920)). This part of Sasse's text is quoted in L. HENKIN, R. PUGH, O. SCHACHTER & H. SMIT, supra note 4, at 141.

77 L. HENKIN, CONSTITUTIONALISM, supra note 4, at 62: There is, then, a binding obligation on the parties to a treaty to carry out their undertakings, but how a state does so is ordinarily not a concern of international law; the status of treaties in the domestic law of any country is a constitutional, not an international, question. All states have incorporated international law into their legal system to some extent in some ways, but states differ both as to extent and as to ways. States differ also as to what-—if anything—is necessary to make a treaty part of national law and what are the jurisprudential consequences.

78 See text at and note 3 supra and text at note 24 supra.

79 See sources cited in notes 5, 6 supra. Apart from formal and explicit governmental structures (such as the power of the Crown to enter into treaties), a “foreign policy establishment” can be found in certain governments and the criticism has been made that such elites are not in tune with the political will of the nation. The reader will have to appraise these arguments on the basis of his or her own country's experience. An articulate, but perhaps somewhat extreme, manifestation of the concern about international policy elites was recently expressed in a popular journal. The author criticizes the small, privileged caste of government officials, former government officials, professors, think-tank denizens, and journalists whose dreamy agenda has long dominated foreign-policy decisionmaking in America. For surely American foreign policy has been conducted with utter disregard for the home front largely because it has been made by people whose lives and needs have almost nothing in common with those of the mass of their countrymen. Tonelson, What Is the National Interest?, ATLANTIC, July 1991, at 35, 37.

80 A prime example can be found in the U.S. Trade Agreements Act of 1979, in which Congress made it abundantly clear that the Tokyo Round agreements would not be self-executing, and then incorporated into this Act its version of the international agreements to be applied domestically. See J. JACKSON, J.-V. Louis & M. MATSUSHITA, supra note 22, at 169; S. REP. No. 249, 96th Cong., 1st Sess. 36 (1979). The Senate Report stated: The relationship between the trade agreements and United States law is among the most sensitive issues in the bill. As stated in the statement of proposed administrative action, the trade agreements are not self-executing. Implementation of obligations for the United States under the agreements can only be achieved as is provided in the Trade Act of 1974. Id. The 1974 Act provided for statutory enactment, pursuant to a “fast track” procedure. For a similar approach to the U.S.-Canada Free Trade Agreement, see Communication from the President of the United States Transmitting the U.S.-Canada Free Trade Agreement (July 26, 1988), H.R. DOC. NO. 216, 100th Cong., 2d Sess. 167 (1988) (Statement of Administrative Action). The statement said: Section 102(a) provides that a provision of the FTA will not be given effect as a matter of domestic law to the extent such provision is in conflict with federal law. . . . [T]he section reflects the Congressional view that necessary changes in federal statutes should be specifically enacted rather than provided for in a blanket preemption of federal statutes by the trade agreement. Quoted in J. JACKSON, supra note 4, at 75. The word “legislatures” in this sentence of the text can be understood broadly to include other kinds of lawmakers as well. It is frequently very difficult to achieve precision in multilateral treaties, since so many countries—often with different legal cultures —must agree, and there is a tendency for language to express the lowest common denominator of the negotiating approaches. At the same time, multilateral treaties are becoming more common and more important.

81 Friedlander, Should the U.S. Constitution's Treaty-Making Power Be Used as the Basis for Enactment of Domestic Legislation? Implications of the Senate-Approved Genocide Convention, 18 CASE W. RES. J. INT'L L. 267,268(1986).

82 Vienna Convention, supra note 16, Art. 31 (when the subsequent practice “establishes the agree ment of the parties regarding” interpretation).

83 One example of this is Power Auth. of N.Y. v. Federal Power Comm'n, 247 F.2d 538 (D.C. Cir. 1957), which interpreted a “reservation” attached by the United States to a treaty with Canada to have only domestic concern, and therefore no domestic law effect as part of the treaty. _See J._JACKSON & W. DAVEY, supra note 17, at 125; L. HENKIN, R. PUGH, O. SCHACHTER & H. SMIT, supra note 4, ai 183; see also infra note 84.

84 See problem VIII, on the International Coffee Agreement, in A. CHAYES, T. EHRLICH & A. LOWENFELD, INTERNATIONAL LEGAL PROCESS: MATERIALS FOR AN INTRODUCTORY COURSE 588(1968); on the Panama Treaty, see Bell & Foy, The President, the Congress, and the Panama Canal: An Essay on the Powers of the Executive and Legislative Branches in the Field of Foreign Affairs, 16 GA. J. INT'L & COMP. L. 607, 641 (1986) (executive branch pushed for a self-executing treaty).

85 See Robertson, supra note 6, and works cited in note 5; see also Ress, The European Convention on Human Rights and State Parties: The Legal Effect of the Judgements of the European Court of Human Rights on the Internal Law and before Domestic Courts of the Contracting States, in PROTECTION OF HUMAN RIGHTS IN EUROPE 209, 227 (I. Maier ed. 1982).

86 Hudec, Thinking about the New Section 301: Beyond Good and Evil, in AGGRESSIVE UNILATERALISM: AMERICA'S 301 TRADE POLICY AND THE WORLD TRADING SYSTEM 113 (J. Bhagwati & H. T. Patrick eds. 1990).

87 Under some constitutions, the directly applied and higher-status treaty may be quite difficult to breach. Obviously, for some this is an argument in favor of this approach. See infra text in part III.

88 Schermers, Recent Cases, supra note 57.

89 The statement by Ehlermann could be interpreted to include this nuance. Ehlermann, Application ofGATT Rules in the European Community, in M. HILF, F. JACOBS & E.-U. PETERSMANN, THE EURO PEAN COMMUNITY AND GATT 127, 127 (4 Studies in Transnational Economic Law, 1986), reporting conferences held toward the end of 1984. See also discussion by Petersmann, infra note 120, at 424-25.

90 The French constitutional provision, quoted and discussed in note 58 supra, is an example.

92 See end of part III infra. The argument can be made that this consideration has restrained the United States from entering into ILO Conventions and some human rights conventions. In the United States a solution is possible; namely, the clear, expressed intent by the relevant authority (Congress usually) that the treaty not be self-executing. See supra notes 80, 81. See also The United States and the International Labor Organization: Hearing Before the Senate Comm. on Labor and Human Resources, 99th Cong., 1st Sess. (1985); Message of the President Transmitting Four Treaties Pertaining to Human Rights, S. EXEC. DOCS. C, D, E & F, 95th Cong., 2d Sess. (1978).

93 L. HENKIN, CONSTITUTIONALISM, supra note 4, at 63. The cases are not clear or possibly not candid. There has been considerable debate about the relevance of the GATT and other dispute settlement reports to U.S. courts’ interpretation of domestic statutes implementing treaties. The cases discussed at the end of part III infra also “psychologically support” this suspicion.

94 See Schermers, supra note 57.

95 See K. HOLLOWAY, supra note 6, sections on Japan, at 198, and Mexico, at 231.

96 See end of part III infra; see also H. SCHERMERS & D. WAELBROECK, supra note 6; van Dijk, supra note 3.

97 The “specific and precise” requirement can be used in two different modes of analysis: as an absolute “requirement” for direct applicability, part of a threshold examination whether a particular treaty is to be directly applicable; or as part of the “invocability” concept explained above in this text (see text at and notes 36, 38 supra). It is this author's view that the second approach is analytically superior.

98 See text supra, under part I, “Issues of Treaty Application.” See supra note 38 on “horizontal direct effect” and “vertical direct effect."

99 In the United States, for example, there is a fairly extensive jurisprudence of the courts. See, e.g., Jackson, supra note 28 (and footnoted references therein); see also RESTATEMENT, supra note 15, § 111 and notes. Alternatives are conceivable and have been observed. For example, arguments between branches of a government about allocation of power, or policies to apply in relation to the treaty, are not unknown. In some cases, depending on whom the treaty addresses (and the question of invocability), the issue of direct application may only arise when a certain body of government decides to act as if the treaty were, or were not, directly applied.

100 See Jackson, supra note 28; L. HENKIN, CONSTITUTIONALISM, supra note 4, at 63; Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 VA. J. INT'L L. 627 (1986). Jurisdiction of the Courts of Danzig, 1928 PCIJ (ser. B) No. 15 (Advisory Opinion of Mar. 3), is sometimes cited to support the view that direct application is an international law question, not one of domestic law. However, there is considerable practice to the contrary.

101 I. BROWNLIE, supra note 5, at 446.

102 There are some exceptions. See generally L. HENKIN, FOREIGN AFFAIRS, supra note 4; Jackson, supra note 28.

103 Examples include the Trade Agreements Act of 1979, and implementation of the Canada-U.S. FTA. See supra note 80. The contrary is argued in Dearborn, The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self-Executing, 57 TEX. L. REV. 233 (1979).

104 See text supra at notes 41-43.

105 See text supra at notes 16-17.

106 Lecture by Walter Van Gerven, Free University of Brussels (February 1990).

107 The burden of taking an initiative may be significant. Those who can rely on the status quo may have a considerable advantage.

108 See discussion at end of part III infra.

109 E.g., GATT, the International Monetary Fund, the Organisation for Economic Co-operation and Development, the International Civil Aviation Organization, the Food and Agriculture Organiza tion, the ILO. On “elites,” see supra note 79.

110 It is often very difficult to amend a multilateral treaty “charter” with broad membership; for example, GATT, which requires a two-thirds vote of acceptance. See J. JACKSON, WORLD TRADE AND THELAWOFGATT 73 (1969); idem., supra note 4, at 51.

111 See text at and notes 89 and 84 supra, and text infra.

112 Of course, in some cases, the DAHS principle is simply older, adopted at a time before some of these policies were perceived, perhaps for the more theoretical reasons mentioned in the discussion above.

113 Analogously, see the Constitution (Grundgesetz) of the Federal Republic of Germany, Article 25 (regarding customary international law). See also E.-U. PETERSMANN, supra note 4, at 220.

114 Some constitutions seem to be easily and frequently amended, and require only a referendum or a national legislative act for the purpose. See Constitutions of Switzerland (Art. 121) and Mexico. Within the United States, the Constitution of California (Art. 18) might be noted in this regard.

117 Jackson, supra note 28, at 162 n.88.

118 In a 1988 case of the U.S. Federal District Court in New York, United States v. Palestine Liberation Organization, 695 F.Supp. 1456 (S.D.N.Y. 1988), the court held that a U.S. statute requir ing the closing of all offices of terrorist organizations, including the PLO, did not clearly enough indicate an intent to contravene U.S. international obligations under the United Nations Head quarters Agreement. Consequently, the court ruled that the PLO office housing its UN Mission was not required by that statute to close. The case was not appealed, possibly because the U.S. executive branch had not favored the statute in the first place. The statutory language and legislative history seemed rather strongly to suggest an intent to close PLO offices, even the one at the United Nations; the court's requirement of explicit congressional intent to act inconsistently with U.S. international obligations is therefore interesting and controversial. See, e.g., Reisman, supra note 12.

119 See H. SCHERMERS & D. WAELBROECK, supra note 6, §746; Pescatore, supra note 63.

120 Petersmann, Application of GATT by the Court of Justice of the European Communities, 20 COMMON MKT. L. REV. 397, 424 et seq.(1983).

121 The so-called Necktie case, decided by the Kyoto District Court in 1984, affirmed by the Osaka High Court (1987) and by the Japanese Supreme Court in 1990 (with an extremely brief and unin- formative opinion). Discussions with Professor Mitsuo Matsushita of Tokyo University (based on forthcoming article). Also discussed by Professor Yuji Iwasawa in Implementation of International Trade Agreements in Japan (paper delivered at Third Bielefeld Conference, September 1990).

122 See generally H. SCHERMERS & D. WAELBROECK, supra note 6; van Dijk, supra note 3.

123 See text above, plus notes 97-101 supra, and works therein cited; also de la Rochere, supra note 58.

124 Stein, supra note 12, at 71, notes that in practice the EC Court of Justice has never invalidated a Community law as contrary to a Community agreement with a third state. See also Hilf, supra note 12.

125 Discussions with negotiators (1991); and Agreement between the European Economic Commu nity and the Swiss Confederation on direct insurance other than life assurance, Oct. 10, 1989, Arts. 39, 40, 34 O.J. EUR. COMM.(No. L 205) 3, 12-13 (1991).

126 Such as in the United States. See Jackson, supra note 28.

127 Compare, for example, the two principal UN Covenants on Human Rights: International Cove nant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171; and International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3.

128 Possibly a North American Free Trade Area (NAFTA).

129 Amendment of an older constitution could do the same.

130 What is a “human rights” treaty? Is it an economic, social, right to work or family law treaty? Austria is arguably an example of a nation that has applied only certain international treaties as directly applicable with “constitutional status,” by amending the Constitution. See A. DRZEMCZEWSKI, EUROPEAN HUMAN RIGHTS CONVENTION IN DOMESTIC LAW: A COMPARATIVE STUDY 93-95 (1983).

131 For example, that of Switzerland.

132 The situations of Switzerland, Eastern Europe and even the European Community (Treaty of Rome amendments) come to mind.

133 In an analogy to the European Community, the treaty would be more like a “directive” than a "regulation."

134 See L. TRIBE, AMERICAN CONSTITUTIONAL LAW, ch. 3, §§ 10-17 (1978); see also supra note 36.

135 Again, Eastern Europe comes to mind, and this may also (arguably) be the case for the Com munity.

139 This could occur when the President alone enters into an agreement (without the participation of Congress), or even when Congress has participated but has not explicitly, or implicitly, stated its intent with regard to self-execution. Although it is not entirely clear how U.S. courts respond to this type of intent language, there certainly are hints that they would follow an intent so expressed, and there are no cases to the contrary. A more difficult case might arise if Congress participated in the treaty making and expressed its intent that the treaty be (or not be) self-executing, while the President expressed a contrary intent. In some such cases, it can be argued that the President would not have the authority to ratify the agreement if the ratification meant that he would implement the agreement contrary to the congressional intent. By congressional intent, I mean to include Senate intent when the treaty-making process relies solely on the Senate. See also L. HENKIN, CONSTITUTIONALISM, supra note 4, at 71, 77.

140 Although decided only by a lower federal court, the PLO case, supra note 118, might be interpreted as emphasizing court control of this issue.

141 See note 80 supra; see generally Jacobs & Roberts, supra note 5.

142 See particularly the end of part III supra.

143 See, e.g., R. AXELROD, THE EVOLUTION OF COOPERATION(1984).

144 See Henriques, In World Markets, Loose Regulation, N.Y. Times, July 23, 1991, at Dl, col. 3. (mid-West ed.).

145 The traditional doctrines, such as rebus sic stantibus(Vienna Convention, supra note 16, Art. 62), do not begin to accommodate the type of evolution, innovation and step-by-step change of circum stances that must be addressed by both national and international “legislation." * University Professor Emeritus, Honorary Professor of Law, University of Alberta.