Welcome to Part II of the “Human Rights Informational Series.” Last week, I posted the five essential things I think everyone should know about human rights. This week, I’ve included the five essentials to understanding treaties , which may be particularly useful information for budding human rights activists or those who simply want to build a stronger foundation in human rights.
Part II – The Five Essentials to Understanding Treaties
1. Treaties are…
According to the The Vienna Convention, a treaty is a written, international agreement between states (countries) that is governed by international law. In order for a state to be bound to the treaty and its obligations, the treaty must be ratified by the state and entered into force. States that sign a treaty, but do not ratify, are not bound to it by international law. Likewise, a treaty that has been ratified but not entered into force is not binding. For example, the 1989 Convention on the Rights of the Child (CRC) was signed by the United States, but never ratified. Thus, when the CRC was entered into force, the US was not bound to it.
Once entered into force, all states that ratified the treaty must perform the treaty’s obligations in good faith, or pacta sunt servanda, which is Latin for “agreements must be kept.” If a state does not perform the treaty in good faith, a case may be brought against the state in the International Court of Justice (ICJ).
2. Treaty disputes are settled by the International Court of Justice.
The ICJ is the primary international court of the United Nations, located at the Peace Palace in The Hague, Netherlands. The ICJ has a panel of 15 elected judges who resolve treaty disputes between nations. However, in order for the ICJ to preside over a state, the state must have accepted the ICJ’s jurisdiction. This can be accomplished in three ways, but most commonly, a state agrees to the ICJ’s jurisdiction through a clause in the treaty, or jurisdictional clause, giving the ICJ authority to resolve potential disputes.
3. States can’t agree to just anything. Restrictions do apply.
According to The Vienna Convention, a treaty that derogates from peremptory norms is void. Peremptory norms of international law, or jus cogens, are certain standards accepted by the international community, which cannot be violated by any state and thereby provide limits to international treaties. An actual list of limitations does not exist; rather, case law precedence, social customs and political standards set the peremptory norms. Thus, treaties that allow for genocide, slavery, certain war crimes, crimes against humanity, etc., are automatically void ab initio because they conflict with peremptory norms.
4. What does the United States Constitution say about treaties?
Article 6 of the US Constitution states that the Constitution, the laws of the United States, and all treaties made under the authority of the United States shall be the supreme law of the land. Article 2, which is also known as the Treaty Clause, explains that the President has the power to make treaties by and with the advice and consent (two-thirds) of the Senate.
As “Chief Diplomat” of the United States, the President also has constitutional authority to enter into Executive Agreements – accords with other nations without the advice and consent of the Senate. Such agreements are usually made for political, foreign-policy reasons and are typically used in limited capacity.
5. Even though treaties are the supreme law of the land, not all treaties prevail over US law.
Treaties are either self-executing or non-self-executing. A self-executing treaty does not require federal legislation in order for the treaty to have the effect of law. Simply put, once the United States ratifies a self-executing treaty, the US must automatically abide by the treaty’s obligations. A non-self-executing treaty, on the other hand, requires that additional federal legislation, called “implementing legislation” be enacted to essentially write the treaty into law.
It is particularly important to know and understand that human rights treaties that are ratified by the United States are always non-self-executing. Again, before a human rights treaty becomes the supreme law of the land in the United States, Congress must first pass implementing legislation. (Incidentally, it is for this reason that I happen to find the United States’ failure to ratify the Convention on the Rights of the Child exceedingly perplexing, since ratification alone would not cause the CRC’s obligations to trump US law.)
For more reading about treaties, please take a look at the link below:
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