Unlike International Agreements Treaties Must Be

A treaty is an international agreement established in writing and by international law between two or more sovereign states, whether inscribed in a single instrument or in two or more related acts. Treaties have many names: conventions, agreements, pacts, pacts, charters and statutes, among others. The choice of name has no legal value. Contracts can generally be categorized into one of two main categories: bilateral (between two countries) and multilateral (between three or more countries). With so-called congressional executive agreements, Congress has sometimes passed laws authorizing agreements with other nations. For example, trade agreements such as the North American Free Trade Agreement (NAFTA) have often been passed by law. On the other hand, the Senate vigorously opposed when President Jimmy Carter intended to obtain approval of the legislation rather than obtain Senate approval (which would have required a two-thirds majority) for the Strategic Arms Limitations II (SALT II) treaty. Sometimes, for the essential interchangeability of treaties with so-called congressional executive agreements, it is argued that Congress has listed powers that touch on foreign policy issues, such as the power to regulate trade with foreign nations. But unlike legislation, international agreements conclude binding agreements with foreign nations that could create tangles that simple legislation does not create.

Although an ICJ decision has a binding force between the governments of two nations, it is not necessarily applicable to the individuals concerned. If, for example, the ICJ finds that the United States has violated the international law of a particular defendant and that such a decision ”constitutes an international obligation of the United States,” it does not necessarily constitute ”a binding federal law applicable in U.S. courts. Contracts may include international obligations . . . they are not national laws, unless Congress has either adopted enforcement statutes or the Treaty itself intends to organize itself and be ratified under these conditions. 314 A memorandum from the President of the United States, in which it is said that the United States would respect ”its international obligations” in a decision of the International Court of Justice in which a non-enforcement agreement ”in making the decision effective by the state courts” is not sufficient to make the decision mandatory for state courts, unless the President`s action is approved by Congress.315 The controversy over Holmes` language appears to have been Black J. to Reid.

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