The Enforcement Of International Treaties In The United States

As the international exchange and cooperation become increasingly frequent, international treaties are playing a more and more vital role in the international community. However, most treaties can have their actual effect only through the enforcement by the contracting states, and then the domestic judicial enforcement of the treaties turns out to be a serious problem that confronts the states all over the world. International law only requires that the parties comply with and perform the treaties in good faith, but does not inquire their approaches to compliance and performance, therefore, it is up to the parties themselves to decide how to enforce treaties domestically subject to their own constitutions, legal traditions, historical precedents and political institutions. It may be said that neither of the states has completely the same legislation and practice in this respect.The American situation seems very complicated: apart from the turmoil and confusion on some concepts, the contradictory between legislation and practice as well as the interpretation, conciliation and development by the courts creates a particular judicial system of the treaties enforcement. In the United States, international treaties present at least four distinctive forms, and Article VI, section II of the US Constitution adopts them wholesale as the supreme law of the land; nevertheless, since 1829 the courts have come to distinguish the self-executing and non-self-executing treaties, but a large volume of cases and commentaries have controversy and confusion on the differential criteria, which has fallen into four categories in this article: Intent, Constitutionality, Justiciability and Private Right of Action. The courts try to apply the canon of the consistent interpretation to avoid the conflicts between the treaties and the domestic law. When the conflicts cannot be reconciled, they will have to ascertain the hierarchy of the self-executing treaties and the contradictory norms. On the other hand, although non-self-executing treaties cannot be directly applied, the courts shall also pay great attention to their various indirect national legal effects. In the event, the United States has to afford the correspondent international responsibility resulted from any court action in violation of the treaties due to its domestic system of the judicial enforcement.The above typical American modality has had much influence on many nations of the world, so from the perspective of international and comparative law, this article makes every effort to discuss the issue on the enforcement of the international treaties in the United States. The devoted research seeks to provide some enlightenment, experience and reference for the extremely intractable but significantly meaningful problem of the treaties domestic enforcement, and at the same time expects to supply the necessary information for more effective protection of the related private interests of our country involved in the treaties of the United States. Accordingly, the article is divided into four chapters. Chapter I at first explicitly interprets and defines Treaty, Judicial Enforcement and the other relevant important basic concepts in the title. Chapter II puts forward the fundamental international law principles of Pacta Sunt Servanda and National Sovereignty that are closely connected with the domestic enforcement of the international treaties and also the prerequisites for further specific study on the legislation and practice of the United States. Chapter III is the key of this article, and it at lengths introduces, analyses and comments the related regulation in the United States Constitution as well as the courts' judicial practice in particular. Based on the forgoing three detailed parts of discussion, Chapter IV draws the final conclusions in several respects with possibly concise language.