he other party materially breaches the agreement.7
A nation may limit or modify its legal obligations under a treaty by
submitting reservations at the time of ratification. For example,
although the U.S. ratified the International Covenant on Civil and
Political Rights, it did so with a series of reservations. In one
reservation, the U.S. Senate declared that its approval of Article 20 of
the Convention (Article 20 contains limitations on certain forms of
speech) does not require legislation that would restrict free speech and
association rights protected under the First Amendment. Similarly, the
U.S. reserved the right to continue to apply capital punishment despite
Convention limitations of the practice.8
What is the effect of a nation submitting reservations? Again
contract law is helpful. For a bilateral treaty, a reservation acts as a
counteroffer. It is not effective unless the other side accepts.9 For a multilateral treaty, though, a reservation
is effective unless the treaty prohibits this reservation or
reservations in general, the reservation is contrary to the object and
purpose of the treaty, or another nation objects.10
There are thousands of treaties. Some of the most important are the
Charter of the United Nations, the International Covenant on Civil and
Political Rights, the North American Free Trade Agreement, and the
Charter of the European Union. There is even a treaty on how to
interpret treaties, the Vienna Convention on the Law of Treaties.
Lawyers' clients - especially those who sell products abroad - should
be aware of these treaties. Some clients already are. For instance,
human rights norms have begun to affect corporate behavior.
Multinational companies have begun to create "codes of conduct" as a
response to developments in human rights law.11
Status of Treaties Under U.S. Law. Treaties are the
law of the land and take precedence over state law. Article VI of the
U.S. Constitution states:
"This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law
of the Land."12
Federal courts have jurisdiction to enforce treaty obligations.
Article III states:
"The Judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;
There is one important exception to the enforcement of treaties in
federal courts. Some treaties, including many human rights treaties, are
considered "non-self-executing." A non-self-executing treaty is one not
intended to become effective as domestic law without the enactment of
further enabling legislation.14 It can be
difficult, however, to determine which treaties are self-executing and
which are not. The Restatement (Third) of Foreign Relations Law declares
an international agreement of the U.S. non-self-executing if: 1) the
agreement makes clear that domestic implementing legislation is needed;
2) the Senate (when consenting to the treaty) requires implementing
legislation; or 3) the Constitution requires implementing
Examples of non-self-executing treaties include any treaties that
require budget outlays.16 Constitutionally,
Congress must authorize budget expenditures. Expenditures cannot
automatically be authorized by ratification of a treaty. Similarly, any
treaty committing the U.S. to declare war under certain conditions is
non-self-executing. Why? A treaty can't require the U.S. to
automatically be at war. Constitutionally, Congress must declare
The U.S. tends to be a cautious treaty signer. It generally takes
very seriously its international obligations under treaties and is
extremely careful before undertaking such obligations. This is
especially true in the area of international human rights. The U.S.
practice has been to ratify relatively few human rights treaties. For
example, the U.S. and Somalia are the only United Nations-member
countries not to have ratified the Convention on the Rights of t