Treaties And Laws: Who Takes Precedence?

Treaties are binding agreements between nations that become part of international law. Treaties are given effect as law in domestic courts only if they are self-executing or implemented by an act of Congress. In the United States, treaties also have the force of federal legislation and are considered the supreme Law of the Land. While the US Constitution provides that the president can make treaties with the consent of the Senate, there is ambiguity about whether Congress may override a treaty. While Congress may technically override a treaty, courts are disinclined to find that they have intended to do so, as it would place the US in breach of its international obligations.

Can a treaty override a law?

Treaties as part of federal legislation

Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land". The US Constitution provides that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur" (Article II, section 2).

The meaning of treaties, as of statutes, is determined by the courts. Treaties may contain provisions that confer certain rights upon citizens or subjects of one of the nations residing in the territorial limits of the other, which are capable of enforcement as between private parties in the courts of the country. Treaties can thus be understood as contracts between nations, with the legislature being responsible for their execution.

In recent decades, US presidents have frequently entered into international agreements without the advice and consent of the Senate. These are called "executive agreements" and, although not brought before the Senate for approval, they are still binding on the parties under international law.

Treaty overrides by national statutory law are permissible under certain constitutions. For example, in Germany, the legislature retains the competence to override international treaties, which flows from the principle of democracy. However, the rule of law, interpreted in light of the principle of openness to international law, gives rise to limitations concerning the exercise of this competence. Even when an ICJ decision has binding force as between the governments of two nations, it is not necessarily enforceable by the individuals affected.

Treaties and the US Constitution

Treaties are binding agreements between nations and are part of international law. The United States Constitution, in Article II, Section 2, Clause 2, outlines the procedure for ratifying international agreements. It empowers the President to negotiate agreements with other countries and stipulates that a two-thirds supermajority vote of the Senate is required to make a treaty binding under federal law. This clause, known as the Treaty Clause, ensures that treaties are on par with federal statutes as the "supreme law of the land" according to the Supremacy Clause of the US Constitution.

The Treaty Clause addresses the shortcomings of the Articles of Confederation, the first governmental framework of the United States, which led to a weak central government and excessive autonomy for individual states. The inability of the national government to uphold its obligations to foreign powers under the Articles of Confederation was a key concern, prompting the drafting of a more robust governing document, the US Constitution.

The US Constitution grants the President the power to make treaties with the advice and consent of the Senate, provided that two-thirds of the Senators present concur. This process involves the Senate Foreign Relations Committee reviewing the treaty before the full Senate votes to approve or reject it. Treaties negotiated by the President become part of federal legislation and are considered "the supreme Law of the Land" under the Constitution.

It's important to note that while treaties are generally binding, there are instances where they can be overridden. For example, in the case of double taxation treaties, the German legislature can rescind or alter the Act of Assent to a treaty by passing laws that contravene the treaty's content, even if it remains internationally binding. This highlights the complex interplay between international treaties, national constitutions, and statutory laws.

Treaties vs. domestic law

Treaties are binding agreements between nations and are part of international law. However, the relationship between treaties and domestic law is complex and varies across jurisdictions. For example, in the United States, treaties are considered part of the "supreme Law of the Land" under the Constitution, and Congress may override a pre-existing treaty. However, this would place the US in breach of its international obligations, so courts are generally disinclined to interpret domestic laws as overriding treaties.

In Germany, the legislature retains the competence to override international treaties, but it must carefully weigh its decision against the principle of democracy and the rule of law interpreted in light of the principle of openness to international law. For example, in the case of double taxation treaties, the German Constitutional Court held that the legislature could override the treaty by passing laws that contravened its content, but this did not affect the continued international binding effect of the treaty.

The power to enter into treaties or other international agreements varies across different political systems. In some cases, the executive branch may have the authority to enter into sole executive agreements, particularly in matters of foreign affairs or military engagements. In other cases, the legislative branch may need to ratify or approve treaties through a vote. For example, in the US, the president can enter into treaties with the advice and consent of two-thirds of the Senate.

The enforcement of treaties and international agreements in domestic courts also depends on whether the provisions are self-executing or have been implemented by an act of legislation. Courts may be reluctant to find that treaty provisions are self-executing, but they have, on occasion, given direct effect to these provisions. Ultimately, the relationship between treaties and domestic law is complex and depends on the specific legal and political context of each jurisdiction.

Treaty overrides and national statutory law

Treaties are binding agreements between nations and are part of international law. However, the question of whether a treaty can override a law depends on the specific context, including the country or region in question and the nature of the treaty and the law in conflict.

In the United States, the Constitution provides that the president can make treaties with the "Advice and Consent of the Senate," provided that two-thirds of the Senators present concur (Article II, section 2). Treaties to which the US is a party have the force of federal legislation and are considered "the supreme Law of the Land" under the Constitution. While the US Senate does not ratify treaties, it can approve or reject a resolution of ratification. If a resolution passes, ratification occurs through the formal exchange of instruments between the US and the foreign power(s).

Despite the Senate's role, there have been instances where presidents have entered into international agreements without the Senate's advice or consent, known as "executive agreements." These executive agreements are still binding under international law but may not have the same force as treaties within the US legal system.

In the US, there has been doubt in the past about whether a treaty must comply with the Bill of Rights, and the Supreme Court has not ruled on this issue directly. However, it is generally accepted that Congress may override a pre-existing treaty or Congressional-Executive agreement. By doing so, the US would be in breach of its international obligations to honour the treaty in good faith. As a result, US courts are generally reluctant to conclude that Congress intends to override a treaty.

In Germany, the Bundesverfassungsgericht has addressed the issue of treaty overrides of national statutory law. It has been asserted that the German legal order is not unconditionally submitted to international law, nor does international law take absolute precedence over constitutional law. However, the legislature is bound only by the constitutional order and not by statutory law, meaning it can rescind or alter acts related to international treaties. For example, the DTT Turkey 1985 is an international treaty, and Germany could override it by passing laws that contravene the content of the double taxation treaty.

In summary, the ability of a treaty to override a law depends on the specific legal and political context of the country or region in question. While treaties are part of international law, their domestic legal effect can vary, and the relationship between treaties and national laws is complex and subject to interpretation by courts and legislative bodies.

Treaty provisions in domestic courts

The question of whether a treaty can override a law is a complex one, and the answer may vary depending on the specific jurisdiction and the nature of the treaty and law in question. In the United States, for example, the relationship between international agreements and domestic law is a source of confusion in the media and elsewhere. This confusion exists due to differing interpretations of the Treaty Clause in the Constitution, which does not expressly provide for an alternative to the Article II treaty procedure.

Under international law, a "treaty" refers to any international agreement between states or other entities with international personality, such as public international organizations. The Vienna Convention on the Law of Treaties sets out a comprehensive set of international law standards for treaties. In the US, the Supreme Court has recognized a distinction between self-executing and non-self-executing treaties since the 1820s. Self-executing treaties are those that operate as domestic law, while non-self-executing treaties are binding under international law but require implementing legislation to be enforceable in domestic courts. The Supreme Court has affirmed that both types of treaties are equally "the law of the land," but only self-executing treaties can supersede prior, inconsistent acts of Congress in US courts.

The determination of whether a treaty is self-executing or not depends on its specific provisions and how closely they resemble an act of Congress. Courts consider the intent of the treaty drafters and whether the provision reads like an act of Congress. Some scholars argue that the Medellin decision established a presumption of non-self-execution, requiring explicit treaty language to overcome this presumption. However, courts have been reluctant to find provisions self-executing, and on several occasions have simply given direct effect to the provisions without expressly stating that they are self-executing.

While the US Congress may supersede a prior inconsistent treaty as a matter of US law, it cannot do so as a matter of international law. Courts in the US try to interpret acts of Congress as consistent with earlier international agreements to avoid placing the country in violation of its international obligations. Additionally, the US Constitution prohibits any agreement with a foreign nation from conferring power on Congress or any other branch of government that is free from the restraints of the Constitution. Thus, a treaty that conflicts with the Constitution could be ruled unconstitutional and void under domestic law, although this has not yet occurred.

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