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> The US signature was shaky to begin with (it was never really ratified through the proper channels) and I doubt they would've kept their signatures with the i

> The US signature was shaky to begin with (it was never really ratified through the proper channels) and I doubt they would've kept their signatures with the impending invasions following 9/11. What you are saying here is a bit confused. Under US domestic law, the President has the unilateral authority to sign whatever treaties the President wishes. Ratification comes after signature, the US never ratified the Statute. So there was nothing actually "shaky" about the signature. This is a topic which confuses a lot of people. Agreeing treaties under international law is a two-stage process – the first stage, "signature" is in-principle agreement but isn't actually legally binding (except for a limited obligation "not to defeat the object and purpose of the treaty", and it isn't very clear what that even means); "ratification" (sometimes also called "acceptance" or "approval") is fully binding agreement. For less important treaties, the two stages are sometimes collapsed into one ("signature without reservation as to ratification"), but for major treaties the distinction is generally preserved. Also, joining a multilateral treaty subsequent to its entry into force is often a single stage process ("accession"). However, the average person doesn't understand this two-stage process, and is used to everyday contexts where signing a contract is sufficient to make it legally binding. There are some particular reasons why Americans find this even more confusing than people of most countries do. Many Americans have the idea that the US Constitution requires treaties to be ratified by a two-thirds majority of the US Senate. However, strictly speaking, the President ratifies treaties, not the Senate; the Senate just gives the President permission to do so. Furthermore, US law distinguishes between "treaties" (whose ratification requires two-thirds Senate consent) and "international agreements" (whose ratification doesn't) – but as far as international law is concerned, both are treaties – whether some act of ratification requires consent by the US Senate is an internal American matter with which international law is largely unconcerned. Actually, US law distinguishes three types of "international agreements" (all of which are treaties as far as international law is concerned) – treaties (President ratifies with consent of two-thirds of Senate), congressional-executive agreements (President ratifies with consent of ordinary majority of both House and Senate), and sole executive agreements (President ratifies unilaterally). It is generally understood that "treaties" are used for foundational legal issues, military alliances, borders, human rights, etc; congressional-executive agreements are primarily used for trade; sole executive agreements are used for more minor matters of international cooperation. However, there is no precise legal rule regarding what type of agreement is to be used for which category–the Supreme Court views it as a "political question" which it expects the President and Congress to sort out between themselves, largely without its input. Under international law (Vienna Convention on the Law of Treaties article 47), if the President ratifies something, that ratification is still binding under international law on the US, even if US Congress (or even the Supreme Court!) decides the ratification to be illegal or unconstitutional – unless its illegality/unconstitutionality was "manifest" and "objectively evident" to the other states parties at the time the President made it.

qingcharles 2y ago
Is it not a three-stage process? I found that treaties seem to be unenforceable unless there is a legally mandatory statutory implementation of them, regardless of whether they are ratified. For instance, in Illinois there was until recently no punishment for a violation of the Vienna Convention by law enforcement, therefore the Convention was essentially worthless. (Illinois state law generally requires a punishment to be attached to make a law mandatory, otherwise the reading of "shall" is directory)
- skissane 2y ago
  > Is it not a three-stage process? I found that treaties seem to be unenforceable unless there is a legally mandatory statutory implementation of them, regardless of whether they are ratified. As far as international law is concerned, once a treaty has been ratified and entered into force, it is binding on the ratifying state, they have an international legal obligation to obey it, and they can be subject to consequences under international law if they violate it. The nature of those consequences vary greatly depending on the details of the treaty - often treaties have dispute resolution mechanisms to be invoked if one party claims another is violating it (such as the ICJ, arbitration, WTO dispute settlement, etc). Trade treaties often permit imposition of tariffs in cases of violation. In extreme cases, violating a treaty could even result in military action (e.g. what happens if you sign a peace treaty to end a war and then decide not to comply with it?) On the other hand, many treaties are rather toothless in that they fail to provide any real consequences for violations. Still, just because there might not be any real consequence for the violation, doesn’t negate the violation’s legal existence. Coming to your question about implementing legislation - different countries have different systems. In countries with a “monist” system, international law is considered part of domestic law, and so a treaty once ratified automatically becomes part of the law of the land. Conversely, in countries with a “dualist” system, international law and domestic law are viewed as two independent spheres, and the domestic legal system will not consider a treaty binding absent domestic implementing legislation. And “monist” and “dualist” are ideal types, and some national legal systems are actually hybrids that don’t neatly fit in either category, combining elements of both - they may be monist with respect to certain categories of treaties and dualist with respect to others. Even in a purely monist system, some treaties might be considered “non-self executing” - for example, some treaties require states to criminalise certain acts under their domestic law, but leave the detailed definition of those crimes up to each state party - even in a monist system, such a treaty will likely be viewed as domestically ineffective absent domestic implementing legislation, since the crimes it seeks to create are too vaguely defined to actually be prosecuted. Also, in some countries with a federal system, e.g. the US, implementing legislation may be required at both the federal and state levels; in others, the federal level has the power to impose treaties on the states, even in areas where it would not normally have legislative competence (e.g. the external affairs power under the Australian constitution) However, from an international law perspective, the question of whether domestic implementing legislation exists is irrelevant. If a state ratifies a treaty and it enters into force, they have an international legal obligation to obey it - and if they fail to do so because they haven’t enacted the necessary domestic legislation, international law does not consider that a valid excuse-they are guilty of violating it, and have to face the consequences of that violation, whatever those may be. You are talking about the Vienna Convention on Consular Relations. There was a 2001 ICJ case on that, the LaGrand case (Germany vs United States). The LaGrand brothers were born in Germany, moved to the United States, never became US citizens, stabbed a man to death in 1982 in Arizona in the course of a bungled bank robbery. Under the Convention, they had the right to German consular assistance, and US authorities had the duty to inform them of that right, but failed to do so. They were sentenced to death, and the state of Arizona executed them in 1999. Germany got an order from the ICJ that the execution not go ahead, but the US chose to defy the ICJ order and execute them anyway. In 2001, the ICJ found that the US had violated Germany’s rights under the Convention by so doing. However, given Germany did not make any request for damages, and the US decided to formally apologise to Germany, the ICJ did not impose any penalties on the US for the violation. The US argued that under the US constitution the federal government was powerless to compel the state of Arizona to comply with the Convention or the ICJ’s order. Germany even filed a case with the US Supreme Court seeking it to compel Arizona to comply, but it ruled that under the US constitution Arizona didn’t have to. However, international law doesn’t care about the US constitution. If the US constitution prevents the US from obeying international law, that’s an internal US problem of zero relevance to other countries or to international institutions such as the ICJ. Given there are over 190 sovereign states in the world, if national constitutions were an excuse for disobeying international law, international law would quickly turn into a dead letter. Also, while US law considers the federal government and state governments to be “separate sovereigns”, as far as international law is concerned, it is all one country, and the US (represented by the President and State Department) is internationally responsible for the acts of all its subdivisions, and if the federal government lacks the constitutional authority to make states obey international law, that’s its internal problem, with which other countries ought not need to be concerned

qingcharles 2y ago

Is it not a three-stage process? I found that treaties seem to be unenforceable unless there is a legally mandatory statutory implementation of them, regardless of whether they are ratified. For instance, in Illinois there was until recently no punishment for a violation of the Vienna Convention by law enforcement, therefore the Convention was essentially worthless. (Illinois state law generally requires a punishment to be attached to make a law mandatory, otherwise the reading of "shall" is directory)

skissane 2y ago
> Is it not a three-stage process? I found that treaties seem to be unenforceable unless there is a legally mandatory statutory implementation of them, regardless of whether they are ratified. As far as international law is concerned, once a treaty has been ratified and entered into force, it is binding on the ratifying state, they have an international legal obligation to obey it, and they can be subject to consequences under international law if they violate it. The nature of those consequences vary greatly depending on the details of the treaty - often treaties have dispute resolution mechanisms to be invoked if one party claims another is violating it (such as the ICJ, arbitration, WTO dispute settlement, etc). Trade treaties often permit imposition of tariffs in cases of violation. In extreme cases, violating a treaty could even result in military action (e.g. what happens if you sign a peace treaty to end a war and then decide not to comply with it?) On the other hand, many treaties are rather toothless in that they fail to provide any real consequences for violations. Still, just because there might not be any real consequence for the violation, doesn’t negate the violation’s legal existence. Coming to your question about implementing legislation - different countries have different systems. In countries with a “monist” system, international law is considered part of domestic law, and so a treaty once ratified automatically becomes part of the law of the land. Conversely, in countries with a “dualist” system, international law and domestic law are viewed as two independent spheres, and the domestic legal system will not consider a treaty binding absent domestic implementing legislation. And “monist” and “dualist” are ideal types, and some national legal systems are actually hybrids that don’t neatly fit in either category, combining elements of both - they may be monist with respect to certain categories of treaties and dualist with respect to others. Even in a purely monist system, some treaties might be considered “non-self executing” - for example, some treaties require states to criminalise certain acts under their domestic law, but leave the detailed definition of those crimes up to each state party - even in a monist system, such a treaty will likely be viewed as domestically ineffective absent domestic implementing legislation, since the crimes it seeks to create are too vaguely defined to actually be prosecuted. Also, in some countries with a federal system, e.g. the US, implementing legislation may be required at both the federal and state levels; in others, the federal level has the power to impose treaties on the states, even in areas where it would not normally have legislative competence (e.g. the external affairs power under the Australian constitution) However, from an international law perspective, the question of whether domestic implementing legislation exists is irrelevant. If a state ratifies a treaty and it enters into force, they have an international legal obligation to obey it - and if they fail to do so because they haven’t enacted the necessary domestic legislation, international law does not consider that a valid excuse-they are guilty of violating it, and have to face the consequences of that violation, whatever those may be. You are talking about the Vienna Convention on Consular Relations. There was a 2001 ICJ case on that, the LaGrand case (Germany vs United States). The LaGrand brothers were born in Germany, moved to the United States, never became US citizens, stabbed a man to death in 1982 in Arizona in the course of a bungled bank robbery. Under the Convention, they had the right to German consular assistance, and US authorities had the duty to inform them of that right, but failed to do so. They were sentenced to death, and the state of Arizona executed them in 1999. Germany got an order from the ICJ that the execution not go ahead, but the US chose to defy the ICJ order and execute them anyway. In 2001, the ICJ found that the US had violated Germany’s rights under the Convention by so doing. However, given Germany did not make any request for damages, and the US decided to formally apologise to Germany, the ICJ did not impose any penalties on the US for the violation. The US argued that under the US constitution the federal government was powerless to compel the state of Arizona to comply with the Convention or the ICJ’s order. Germany even filed a case with the US Supreme Court seeking it to compel Arizona to comply, but it ruled that under the US constitution Arizona didn’t have to. However, international law doesn’t care about the US constitution. If the US constitution prevents the US from obeying international law, that’s an internal US problem of zero relevance to other countries or to international institutions such as the ICJ. Given there are over 190 sovereign states in the world, if national constitutions were an excuse for disobeying international law, international law would quickly turn into a dead letter. Also, while US law considers the federal government and state governments to be “separate sovereigns”, as far as international law is concerned, it is all one country, and the US (represented by the President and State Department) is internationally responsible for the acts of all its subdivisions, and if the federal government lacks the constitutional authority to make states obey international law, that’s its internal problem, with which other countries ought not need to be concerned