Treaty Violation: Lawbreaking Or Legal Loophole?

Treaties are formal, legally binding written agreements between sovereign states in international law. They are binding under international law, and while they are roughly analogous to contracts, they are not the same. Treaties are considered primary sources of international law and have established most international legal principles since the early 20th century. In the US, treaties are considered the supreme law of the land and are incorporated into the body of federal law. However, the US Supreme Court has not ruled on whether the President has the power to break a treaty without congressional approval. This raises the question: is breaking a treaty breaking the law?

Treaties as law of the land

Treaties are a complex area of international law. While they are often likened to contracts, they are not the same. Treaties are a "key source of law in the international legal system", and as such, carry more weight than a contract.

In the US, the Constitution declares a treaty to be the "law of the land", and this is also backed up by the Supremacy Clause. This means that treaties are to be regarded in courts of justice as equivalent to an act of the legislature. However, this does not mean that all treaties are self-executing. Some treaties require "legislative execution", or "convey an intention that [they are] 'self-executing' and are ratified on these terms".

The US Supreme Court has stated that a treaty is:

> "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."

Therefore, if a treaty is broken, it depends on the nature of the treaty as to whether it is unlawful. If the treaty is self-executing, then breaking it would be unlawful. If it is not self-executing, then it may not be unlawful, but it would still carry serious ramifications and likely result in international sanctions.

Treaties and the US Constitution

Treaties are a key source of law in the international legal system and are considered to be the "supreme law of the land" in the US Constitution. The Treaty Clause of the US Constitution (Article II, Section 2, Clause 2) outlines the procedure for ratifying international agreements, empowering the President as the primary negotiator. The advice and consent of a two-thirds supermajority of the Senate are required to make a treaty binding with the force of federal law.

The US Constitution grants the President the power to make treaties, but the precise delineation of treaty-making authority between the President and the Senate remains contested. While the President independently negotiates and signs treaties, the Senate's authority is limited to approving or disapproving the treaty, with the power to attach conditions or reservations.

Treaties can be self-executing, meaning they do not require additional legislative action to take effect, or non-self-executing, which must be implemented by an act of the legislature. The Supreme Court has consistently recognised the legally binding nature of treaties, and they are generally considered to be as binding as federal law.

The US Constitution prohibits states from concluding treaties and limits their role in international relations. The weakness of the Articles of Confederation with regard to foreign affairs, particularly the inability of the national government to uphold its obligations, led to the inclusion of the Treaty Clause in the US Constitution.

While the US Constitution does not provide an explicit alternative to the Article II treaty procedure, it distinguishes between "treaties" and "agreements," suggesting that a class of less important international agreements may exist that do not require the Treaty Clause procedure. Executive agreements, which are entered into unilaterally by the President, and congressional-executive agreements, which require simple majorities in the Senate and House of Representatives, are two such alternatives.

In conclusion, treaties are an essential tool of international relations and play a significant role in US foreign policy. The US Constitution outlines the procedure for ratifying treaties, with the President and the Senate sharing the power to make treaties, and the Supreme Court interpreting and reviewing their legality.

Consequences of breaking a treaty

Breaking a treaty has serious consequences and is considered unlawful under international law. While the exact consequences depend on the specific treaty and the nature of the violation, there are some general principles and categories of consequences that typically apply.

Firstly, according to the principle of "state responsibility," a state that violates its international obligations by breaking a treaty must be held accountable for its actions. This means that the violating state must immediately stop its illegal conduct, provide assurances that it will not repeat the breach, and make reparations to any injured parties, including both material and moral damages.

Secondly, international law also outlines the obligations of third states when another state breaks a treaty. Third states must not aid or assist in violations of international law and must cooperate to bring an end to the violation. This is especially important in the case of serious violations of peremptory norms, which are accepted by the international community as non-derogable and modifiable only by subsequent norms of the same character.

Thirdly, in addition to state responsibility, certain violations of international law can result in individual criminal responsibility. Individuals who aid, abet, order, supervise, or jointly perpetrate international crimes, such as war crimes, crimes against humanity, or genocide, can be held individually responsible under international criminal law.

Finally, beyond the legal consequences, there may also be political, economic, and diplomatic repercussions for a state that breaks a treaty. These could include damage to the state's reputation, loss of trust and cooperation from other states, and potential economic sanctions or other retaliatory measures.

In conclusion, breaking a treaty is a serious matter with far-reaching consequences. States and individuals involved in such violations are likely to face legal, political, and economic repercussions, and it is crucial that all parties respect their international obligations to maintain a stable and orderly global society.

Treaties vs. customary international law

Treaties and customary international law are two distinct concepts in international law, each with its own unique characteristics and implications. While both contribute to the formation and enforcement of international obligations, there are significant differences between the two.

Treaties are formal written agreements between sovereign states, typically involving a more structured and explicit commitment to adhere to specific terms and conditions. They are often the result of negotiations and are usually ratified by the signatory states. Treaties are a crucial aspect of international law, providing a framework for cooperation, peace, and the regulation of various matters such as trade, security, and human rights. Breaking a treaty would mean breaking this formal written agreement, which could indeed have legal consequences.

On the other hand, customary international law arises from established or usual international practices and the principle of custom. It is less formal and often unwritten, reflecting expectations of behaviour that are widely recognised by the international community. Customary international law is not based on explicit agreements but rather on consistent patterns of behaviour and a sense of legal obligation among states. Examples of customary international law include the doctrine of non-refoulement and the granting of immunity to visiting foreign heads of state.

The International Court of Justice (ICJ), the primary judicial organ of the United Nations, considers both treaties and customary international law to be primary sources of international law. According to the ICJ Statute, customary international law is defined as "a general practice accepted as law". This means that for a rule to become customary international law, it must meet two requirements: widespread state practice and opinio juris, or the belief that the practice is legally binding.

While treaties are typically binding on the states that ratify them, customary international law can bind even those states that have not expressly consented to it, as long as they have not objected to the law in question. This is based on the principle of "silence implies consent", where silence or lack of objection by a state is interpreted as implicit acceptance of the customary law. However, this principle has its limitations, particularly when dealing with nations that do not acknowledge the existence of customary international law.

In conclusion, while both treaties and customary international law contribute to the framework of international law, they differ in their formality, creation, and enforcement. Treaties are formal written agreements between states, while customary international law arises from established practices and customs. Treaties typically require explicit ratification, while customary international law can bind states through widespread acceptance and a sense of legal obligation. Understanding the distinction between these two concepts is crucial for interpreting and enforcing international obligations.

Treaties and indigenous peoples

Treaties are negotiated agreements that define the rights, responsibilities, and relationships between Indigenous groups and federal and provincial governments. In Canada, treaties are constitutionally recognized agreements between the Crown and Indigenous peoples. Most of these agreements describe exchanges where Indigenous nations agree to share their interests in their ancestral lands in return for various payments and promises.

The Numbered Treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the First Nations and the reigning Canadian monarch from 1871 to 1921. These treaties allowed the Canadian government to pursue settlement and resource extraction in the affected regions, resulting in the displacement of Indigenous populations. The Constitution Act of 1982 gave protection to First Nations and treaty rights under Section 35, which states: "Aboriginal and treaty rights are hereby recognized and affirmed."

The process of treaty-making in Canada can be traced back to the Covenant Chain, an elaborate diplomatic relationship between the Dutch and Indigenous peoples in the early 17th century. This tradition was later adopted by the English, who negotiated with various Indigenous nations in northeastern North America. The Royal Proclamation of 1763, issued by King George III, established the constitutional foundations of Canada and set out guidelines for treaty-making with Indigenous peoples. It recognized the sovereignty of Indigenous nations over their lands and established the Crown as the only authoritative government that could purchase land from them.

The interpretation and implementation of treaties have had a significant impact on the relationship between the Canadian government and Indigenous peoples. While the government often viewed treaties as legal instruments that surrendered Indigenous rights, Indigenous communities saw them as instruments of relationships that confirmed their rights and capacity for self-governance. This differing perspective has posed a challenge in reconciling the two views and addressing the grievances of Indigenous peoples.

The effects of the Numbered Treaties on Indigenous communities have been mixed. While some Indigenous groups saw the treaties as a way to secure much-needed assistance, others experienced negative consequences due to unfulfilled promises and the loss of autonomy. The Canadian government's focus on expansion and resource extraction often took precedence over the well-being of Indigenous peoples, leading to feelings of oppression and colonization.

In conclusion, treaties between Indigenous peoples and the Crown have had a significant impact on the history and development of Canada. While they facilitated the expansion and settlement of the country, they also led to the displacement and marginalization of Indigenous communities. The ongoing reconciliation process aims to address these injustices and work towards a more equitable future for all Canadians.

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