Articles 20-23 detail the rules regarding reservations, including, respectively, states’ acceptance of and objection to reservations, the legal effect of reservations, withdrawals of reservations and objections thereto, and procedural requirements in making or accepting reservations, including that they be in writing. A state decides whether it deems the reserving party a party to Convention. In essence, these details emphasize that contracting states want to keep alive the “basics” of the Convention. With bilateral agreements, for instance, a reservation is the equivalent of a counteroffer to a contract in U.S. domestic law. While going into further detail on reservations is outside the scope of this chapter, it is important to note that the processes of making reservations and of objecting to or accepting reservations leads to complicated analyses about what states are bound by what terms of a treaty. The complexity is underscored when parties to multilateral instruments make multiple reservations.
Part III of the Vienna Convention focuses on the “Observance, Application, and Interpretation” processes. Article 26 sets out a basic principle of international law: pacta sunt servanda, which means that parties are bound by treaties and have an obligation to perform their terms in good faith. Parties cannot invoke internal law as grounds to fail to comply with a treaty obligation (art. 27). Treaties are not retroactive (art. 28), are binding on parties within their entire territory (art. 29), and their terms are to be interpreted in good faith in accordance with “the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose” (art. 31(1)). Article 32 allows use of the travaux preparatoires—preparatory works—developed during negotiations to assist in the interpretation of treaties. Significantly, the allowance of the use of travaux preparatoires might be a disadvantage to states that did not participate in negotiation of the treaty but became signatories later, as their voices are absent from the travaux.
Two other parts round out the substantive provisions of the Vienna Convention: Part IV addresses “Amendment and Modification of Treaties” and Part V focuses on the “Invalidity, Termination, and Suspension of the Operation of Treaties.” Part V specifically articulates error (art. 48), fraud (art. 49), corruption of a state representative (art. 50), coercion of a representative of a state (art. 51), and coercion of a state by threat of use of force (art. 52) as grounds for invalidating a treaty.
Part V also contains two articles that are important for purposes of this work. One is Article 53, which provides that if, at the time that it is concluded, a treaty conflicts with a peremptory norm of general international law—a norm from which no derogation is permitted—the treaty is void. Related to Article 53 is Article 64, which provides that if a new peremptory norm emerges, “any existing treaty which is in conflict with that norm becomes void and terminates.”
The jus cogens principle is particularly relevant to this volume as it is a concept of critical importance in human rights law. A rule of jus cogens can be derived from custom and treaties but not from other sources. In early international law this principle was articulated by writers saying that a treaty would be void if it was contrary to morality or to basic principles of international law: a treaty could not override natural law. Jus cogens, thus, prohibits states from contracting out of peremptory norms that are deemed binding customary norms. The concept has been adopted in several human rights contexts internationally and domestically alike.
Significantly, the Vienna Convention does not itself identify any such norms, and scholars are not in full agreement regarding precisely what norms are peremptory. As noted above, however, it is generally accepted that, for example, the prohibitions against genocide; slavery; murder or causing the disappearance of persons; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and consistent patterns of gross violations of recognized human rights norms are all deemed be peremptory norms against which no state may derogate. Thus, a treaty to commit genocide, or a treaty to legalize any form of a slave trade, would be void as in contravention of jus cogens. This signifies that although a trade agreement might not directly address human rights issues, all such agreements are, by necessity, concluded in a context of universal acceptance that they cannot derogate from peremptory norms and a general agreement as to what some such norms are.
1.4 International Law as U.S. Law
The following overview of international law-making and its relation to domestic law (using the United States as an example) is intended to familiarize the reader with general international law-making, as all the themes that we will engage in this volume are “binding law” by virtue of both international norms—be they conventional or customary—and domestic norms. The trade agreements, bodies, and processes that will be introduced in chapter 2 and the human rights agreements, bodies, and processes that are introduced in chapter 3 all are either custom- or treaty-based.
With the international rules in mind, it is instructive to review U.S. domestic law on treaties. As briefly noted above, the U.S. Constitution requires the president to make treaties and then obtain the advice and consent of a two-thirds majority of the Senate. Thus, in the United States, the treaty-making power is one of executive-congressional codetermination. It is noteworthy that, contrary to popular usage, the Senate’s role is not one of ratification—rather, the Senate’s role is to give advice and consent. Ratification takes place when the parties formally exchange ratification instruments. We often witness the exchange of ratification instruments in Rose Garden ceremonies when the president signs the instrument after obtaining the requisite senatorial advice and consent. It is always a plenipotentiary who signs the instrument’s ratification.
Although treaty power is one of executive-congressional codetermination, in recent years it effectively has moved, at least outside the trade regime, toward becoming a presidential monopoly by executive use of other types of agreements that have been considered the functional equivalent of treaties. The most notable of the alternatives is the sole executive agreement. The other is the executive agreement pursuant to legislation or joint resolution. Both of these alternatives satisfy the Vienna Convention definition of “treaty,” although they fall short of U.S. constitutional requirements because they lack the advice and consent of two-thirds of the Senate. It is undisputable that before and after adoption of the Constitution, however, the president signed international agreements that were binding without the Senate’s advice and consent.
Effectively, the president utilizes the sole executive agreement to bypass the Senate. There is constitutional authority for such agreements, however, if they are based on express presidential powers such as commander in chief, authority to receive ambassadors, or implied powers to conduct foreign relations. It thus becomes simply an undeclared treaty that seeks to avoid paying constitutional dues by changing its name. It is an agreement between the president or his or her subordinates and a foreign counterpart; this agreement, because it is not submitted to the Senate for its advice and consent, cannot be a treaty for constitutional purposes.
In the early days pure executive agreements were rare, and when they existed they were limited in scope. For instance, there might be an executive agreement for the exchange of prisoners of war. But they became much more frequently used in the 20th century. The high-water mark for such agreements came with President Franklin Delano Roosevelt’s recognition of the communist regime in Moscow and the transfer of title to Russian properties in the United States to compensate U.S. citizens who had lost on investments in Russia. The U.S. Supreme Court held that the executive agreement recognizing Russia and effecting the transfer of property was constitutional because it constituted the exercise of president plenary power to recognize foreign governments.14
One problem with this sole executive agreement approach is that it avoids constitutional checks and balances. The country cannot be sure about what obligations are being assumed and foreign nations cannot be certain what obligations Congress will consider binding. A unilateral executive approach also has the potential for causing difficulties for the executive in carrying out the agreement’s obligations should any funds be needed, as it is Congress that