United Nations

April 9, 2004 12:47 PM

Is the United Nations merely a guide for other nations to follow, or is their an innate burden of power within its charter?
posted by the fire you left me to law & government (23 comments total)

The short answer is that the U.N. Charter is binding on all states that have signed it (and, via customary law, it's even binding on states that haven't). One of the main problems, though, is the lack of an enforcement mechanism: unless states actually deliver 'clout' (diplomatic, economic, military) alongside the law, the law won't be very effective. So, while states are legally bound to abide by the Charter, in practice, enforcement and compliance are frequently influenced by power and 'politics' (i.e., how strong are you? who are your friends? what do others have to gain or lose by enforcing the law at your expense?)
posted by stonerose at 1:18 PM on April 9, 2004

stonerose: (and, via customary law, it's even binding on states that haven't)

Customary law? Could you clarify?
posted by Gyan at 2:11 PM on April 9, 2004

In addition to being legally binding under the authority of the United Nations (which stonerose discussed), the UN charter is also a treaty, ratified by the US Government, which means that United States law considers it (technically) as important as the Constitution itself.

"The Constitution, together with laws passed according to its provisions and treaties entered into by the president and approved by the Senate, stands above all other laws, executive acts, and regulations."---from The Wikipedia Entry on the US Constitution.

Also interesting is the Wikipedia Entry on the UN Charter
posted by Eldritch at 2:22 PM on April 9, 2004

Article 103 of the UN Charter says

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

And in the US, the UN Charter is the "supreme law of the land", according to Article VI of the Constitution:

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; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

posted by kirkaracha at 2:26 PM on April 9, 2004

Which bit of it are you talking about? It's quite a broad church, the UN. The International Court of Justice, the International Criminal Court, the World Health Organisation and the High Commission for Refugees are all emanations of the UN.

As stonerose notes, many of the issues regarding UN law are ones of enforcement but a broad answer is that while UN law should be considered binding at law on signatory states there are inherent difficulties in enforcing decisions when the main mechanism of compulsion would be recourse to war.

As ever the master of the Realpolitik, President Bush's irreverent "international law? I'd better call my lawyer" comment summed up the problems with the enforcement of UN law.

On preview: Eldritch, interestingly there's precedent in supra-national law for the proposition that international law trumps national constitutions; the Intl. Handelgesellschaft case springs to mind. I suspect though that we're some way away from the judicial approach of the European Court of Justice re EC law being echoed in the International Court of Justice re UN law.
posted by dmt at 2:43 PM on April 9, 2004

Gyan, this touches on the subject of customary law, which is a huge and complex area.

It says: "Unlike treaty law (for ex: the four Geneva Conventions), customary international law is not written. A rule is customary if it reflects state pratice and when there exists a conviction in the international community that such practice is required as a matter of law. While treaties only bind those States which have ratified them, customary law norms are binding on all States."
posted by stonerose at 3:36 PM on April 9, 2004

So, basically, customary law is like the law of the jungle. Unless you can take them on or can get ignored, better follow it (Actually, all laws are like that, but never mind).
posted by Gyan at 4:41 PM on April 9, 2004

[T]he UN charter is also a treaty, ratified by the US Government, which means that United States law considers it (technically) as important as the Constitution itself.

That's not how I learned it. A treaty (from the US perspective) is essentially an act of Congress, and it can be changed or broken by an act of Congress. The Constitution takes precedence over treaties, the UN charter and customary international law. (IMHO.)
posted by Zonker at 4:49 PM on April 9, 2004

And while I believe that the Supreme Court hasn't squarely addressed the issue, I'm pretty sure that there are appellate cases holding that Congress cannot do by treaty something that it could not do through legislation. The clause that reads "anything in the Constitution or laws of any State to the contrary notwithstanding" means, in this view, that a treaty supersedes a state constitution, but not the Federal Constitution.
posted by Zonker at 4:59 PM on April 9, 2004

The short answer is that the U.N. Charter is binding on all states that have signed it (and, via customary law, it's even binding on states that haven't).

Hehe, slow down there stonerose. You have an implicit legal philosophy in there, and because that philosophy is not shared by everyone else, it has to be justified. You've just formulated a view of international law as you wish it were, but that's about it.

(That's a neat trick, politically speaking, because it frames the debate nicely for you, but it's still dirty pool).

To give you my (terribly obvious and uncontroversial) view: The UN Charter is, at bottom, a multilateral treaty. If you wish to turn to international law for guidance in interpreting it, you should look at the Law of Treaties. That's all.
posted by gd779 at 5:33 PM on April 9, 2004

Zonker is right. The supremacy clause people are citing means that a federal law or a treaty trumps a state law or even a state constitution, not that treaties are somehow on the same legal level as the US Constitution.. Treaties are at the same level as federal statutes. And there can't be a treaty that violates the US Constitution -- the Constitution forbids a monarchy, and we can't get around that by signing a treaty with a foreign power to institute a monarchy.

It might be binding on those nations that have signed it, but only for so long as they agree to be bound by it. Any nation can abrogate any treaty it has signed at any time, subject only to the constraints of its own enlightened self-interest (ie, what other nations will do to it as a consequence of its abrogation).
posted by ROU_Xenophobe at 5:38 PM on April 9, 2004

Personally, I find it amusing that legal positivism and moral relativism (concepts frequently associated with the political "left"1 in the United States2) have undermined the philosophical underpinnings of traditional international law (by traditional, I mean Grotius and natural law theory). This is amusing because the political "left" in the US wants to import ethics into international law, and so the unintended consequences of their own efforts to demolish domestic "natural law" theories has them squirming in a straitjacket internationally.3 At least it looks that way to me.

1. I know, I know, "left" and "right" are overbroad generalizations.

2. Of course, the left has no monopoly on these concepts. Moral relativism no doubt encourages political realism, which is often associated with the political "right" in the US.

3. In a way, then, the neoconservative movement is the bastard child of the political "left" mixed with a heavy dose of political realism. Which makes sense, of course, since most of the neocon leaders are ex-leftists.
posted by gd779 at 5:57 PM on April 9, 2004

ROU_Xenophobe and Zonker, I can't claim to be any sort of expert (and if anyone is, by all means please correct me), but Article VI of the Constituion pretty unambiguously states that

"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 ..."

ROU_Xenophobe: "Treaties are at the same level as federal statutes. And there can't be a treaty that violates the US Constitution "

It was my understanding that was exactly what happened in Missouri v. Holland: the federal government, through the effect of a treaty, did something that otherwise would have violated the Tenth Amendment.
posted by Eldritch at 6:09 PM on April 9, 2004

Treaties as Binding International Obligation
posted by stonerose at 6:15 PM on April 9, 2004

Of course, this is the exact reason that many treaties have explicit conditions that the US doesn't assume any responsibilities that would violate the US Constitution.

Now, that doesn't mean that congress can't modify or repeal treaties. In that way, treaties are at the same level as a federal statute. But it is my understanding that treaties really are binding at the same "Supreme Law of the Land" level that the constitution is.
posted by Eldritch at 6:15 PM on April 9, 2004

Stonerose, your link justifies international law through recourse to international law. This is typical of the formalist conception of international law, which rests on an appeal to rules and believes that international law has normative validity without regard to its consequences. But the validity of these rules must be acknowledged before they can be used in making judgements. And, again, your view is merely one of several competing views of international law. It's not even the most popular view, not by a long shot.

it is my understanding that treaties really are binding at the same "Supreme Law of the Land" level that the constitution is.

"Can a treaty override an individual right protected under the Constitution? In its 1957 decision in Reid v. Covert, the Supreme Court held that the "obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." There is perhaps no element of the foreign relations law canon more universally held than the proposition that constitutional rights prevail as against inconsistent international agreements; a consensus of commentators, courts, and other constitutional actors has long held that, in this respect, the Constitution stands supreme."

Source: Peter J. Spiro, TREATIES, INTERNATIONAL LAW, AND CONSTITUTIONAL RIGHTS, 55 Stanford Law Review 1999 (2003).

On Missouri v. Holland, the same article later says this:

"Instruments such as the United Nations Declaration on Human Rights and negotiating drafts of what would become the International Covenant on Civil and Political Rights set forth rights that were for the most part consistent with parallel constitutional protections, but which deviated in various respects. Detractors highlighted the treaty power as the weak constitutional link through which allegedly lower international rights standards could overcome domestic constitutional ones. Among other provisions, all versions of the Bricker Amendment would have supplied express supremacy for constitutional rights as against inconsistent treaties.

There was little formal historical support for the proposition that treaties could trump constitutional rights. Bricker proponents grounded their argument in Justice Holmes's treatment of the ambiguous Supremacy Clause in Missouri v. Holland, which suggested (when taken out of context) that the treaty power lacked constitutional boundaries. Voluminous evidence to the contrary, Brickerites raised the specter of rights abrogated by the mechanism of the treaty power. During the 1952 presidential campaign, soon-to-be Secretary of State John Foster Dulles asserted that the treaty power could overcome individual rights and should be amended accordingly. The American Bar Association lent its institutional heft to this view.

As in the nineteenth century, this aspect of the amendment campaign was mostly a sideshow to more debatable questions relating to federalism. It did have the effect, however, of entrenching the norm of constitutional hegemony. By putting the contrary proposition on the table, the Brickerites extracted statements of constitutional faith all around. Policymakers and commentators were almost forced to assent to the primacy of constitutional rights. Opposition to the supremacy provision was based exclusively on the ground that it was unnecessary; no respectable voice was heard to argue that constitutional rights should, in any instance, fall to a conflicting treaty regime. The treatymakers fully assimilated the position and refused to act on the international rights regimes."
posted by gd779 at 6:50 PM on April 9, 2004

Eldritch: you need to finish the sentence. The US Constitution, federal law, and treaties are the supreme law of the land \emph{anything in the Constitution or laws of any State to the contrary notwithstanding}.

It's the latter that's what the sentence is really about. It's an emphatic statement that if there's a conflict between state law and federal law, federal law wins -- they had to be very direct, clear, and emphatic about this because it was a 180 degree reversal from the previous relations between state and national government.

Only the Constitution is binding at the level of the Constitution. If there is a conflict between anything else and the US Constitution, it goes in favor of the US Constitution. This is right there all the way back in Marbury.

And your reading of \emph{Holland} is wrong to my eye. It does say that you'd treat treaties more generously than you would federal statutes, but they also note that the treaty doesn't actually violate any clear statement of the Constitution, only a vague claim of lemme-alone from the 10th Amendment that the Court itself never examined. That is, the Court was saying that there was no clear conflict between the treaty and the Constitution.

AFAIK, if there's a conflict between a treaty and a federal statute, whichever is newer wins.
posted by ROU_Xenophobe at 7:01 PM on April 9, 2004

Well, it certainly seems that I'm out of my depth here. =) So, in deference to my more well-informed colleagues, I'll try and learn some more about the issue:

All of the discussion brings up an interesting (to my mind) issue, which is this: The Spiro quotation and the discussion of Missouri v. Holland both hinge on whether Treaties can supercede constitutional law; whether a treaty can confer a power that is free from the restraints of the constitution; in effect, whether treaties can be more binding than the constitution. What, therefore, is the status of a treaty? Common sense (and my layman's understanding of the constitution) would suggest that a international treaty that signed by the president and ratified by congress would need to be held as legally binding at a very high level in order to have any meaningful effect.

It doesn't seem that anyone is arguing that treaties aren't legally binding, only how much so they are. gd779 and ROU_Xenophobe's comments make a strong case for treaties not trumping or superceding constitutional law. Are treaties not, as Article VI suggest, however, binding at a quasi-constitutional level? How important are treaties, actually?
posted by Eldritch at 7:26 PM on April 9, 2004

Are treaties not, as Article VI suggest, however, binding at a quasi-constitutional level? How important are treaties, actually?

I finally figured out what was bugging me about the section of the constitution you've quoted. Two things. First, in order to make treaties quasi-constitutional, you also have to make federal statutes quasi-constitutional. ("laws... which shall be made in Pursuance thereof"). That is clearly wrong, so your interpretation of the power of treaties must also be wrong. Further, you omitted the end, which makes the clause make more sense. Here is how the full thing reads:

"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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

So we see that the supremacy Clause establishes the supremacy of the US Constitution and of federal law and of treaties established by the US over the States. (As, I think, Rou_xenophobe pointed out earlier). It does nothing to establish the standing of treaties with respect to federal law.

To the best of my knowledge, the only time this has been adjudicated by a US court was in 1988, when Congress passed an act closing P.L.O. offices in the US, which violated a treaty we had signed with the UN. The court chose to construe the statute narrowly so as not to conflict with the treaty, and the State Department convinced the President not to appeal for diplomatic reasons. So 1) it's not clear that this is how the case would ultimately have been decided and 2) if a treaty and a federal statute ever came into direct conflict, it's not clear which way a court would go. Probably it wouldn't be an issue - the Congress would formally withdraw from a treaty if they wanted to pass a contradictory law.

Further, if I recall correctly, it has always been held that the US can enter into treaties in the "international law" sense without entering into treaties in the "US Constitution" sense. I don't remember exactly what that means.
posted by gd779 at 8:31 PM on April 9, 2004

First, in order to make treaties quasi-constitutional, you also have to make federal statutes quasi-constitutional.

No, that's wrong. You'd only have to make constitutional federal statutes quasi-constitutional. The supremacy clause does establish the supremacy of the Constitution to unconstitutional federal statutes.
posted by gd779 at 8:39 PM on April 9, 2004

Well, gd779, my head is spinning from the legalese, but it's a fascinating topic. I suppose the other side to the question is how do treaties interact with not just legislation, but executive action. The forced removal of indians during President Jackson's term ("John Marshall has made his decision; now let's see him enforce it.") springs to mind, as does the Iraq invasion. How much are US Presidents bound to follow the edicts of treaties the US has ratified and not repealed? And what to do with them if they fly in the face of those treaties... I imagine it's another undecided legal grey area... Interesting nonetheless.
posted by Eldritch at 10:51 PM on April 9, 2004

it has always been held that the US can enter into treaties in the "international law" sense without entering into treaties in the "US Constitution" sense

You're probably thinking of stuff like executive agreements. EA's have the force of law, and internationally have, AFAIK, the same limited effects as treaties, but don't need to be submitted to the Senate for ratification.

But Presidents can't make an executive agreement about just anything. EA's are a special type of executive order. The President has the power to order the Navy to steer clear of some particular patch of water, right? So the President can agree with the leader of some filthy foreign nation to keep the Navy out of some patch of water they care about. Presidents can only make EA's in subject areas where they can issue legally binding executive orders.
posted by ROU_Xenophobe at 11:16 PM on April 9, 2004

How much are US Presidents bound to follow the edicts of treaties the US has ratified and not repealed?

Not in the slightest, AFAIK. Likewise, Congress is in no way actually bound to obey the strictures of any treaties the US has signed (the same would be true of the UK's Crown and Parliament, and of the government of any other state).

Doing something contrary to an established treaty merely breaks the treaty, usually rendering it void. Nations are bound by treaties only to the extent that they agree to be bound, and only for as long as they agree to be bound.

What stops nations from breaking treaties willy-nilly is merely knowledge of consequences. If you break a treaty, other nations will be less willing to deal with you favorably in the future, since your word is no good. If you break a treaty with a great power (US/UK/France/China/FSU/etc), or with one of your neighbors that you generally don't get on well with, you run the risk that it will be peeved enough to make war on you. Nations obey treaties to the extent that it's in their interest to do so, and to the extent that other nations make it in their interest to do so. Here, of course, "in their interest" can also include some statement of morality; it might be in a nation's moral interest to abide by a treaty it doesn't like.
posted by ROU_Xenophobe at 11:29 PM on April 9, 2004