United States and The International Criminal Court - Particular U.S. Ratification Contingencies

Particular U.S. Ratification Contingencies

A treaty becomes part of the municipal law of a nation only when the treaty has been ratified. In the US, the constitution gives the President power to negotiate treaties under Article II. The President must then submit a treaty to the Senate for advice and consent for ratification. The Senate must approve the treaty by a two-thirds majority before it can take effect. The Senate may submit amendments, reservations, or explanations to the President regarding the treaty. Once ratified, treaties are generally self-executing—at least from the perspective of other nations—as the ratifying state fully binds itself to the treaty as a matter of the public international law and of national honor and good faith. In the US, however, a treaty does not immediately become effective as US domestic law upon entry into force, which occurs only if the treaty is self-executing. In Foster v. Neilson 27 U.S. 253 (1829), the US Supreme Court explained that treaties are self-executing if accompanying legislation is not necessary for implementation. A treaty requiring additional action is not self-executing; it would create an international obligation for the US, but would have no effect on domestic law. (Id. 314-315).

However, entrenched provisions of municipal law—such as the constitution of a state party or other fundamental laws—may cause the treaty not to be fully executable in municipal law if it conflicts with those entrenched provisions. Article VI of the US Constitution contains the supremacy clause, which gives all treaties ratified in accordance with the constitution the effect of federal law. In the US, if a treaty is found to be self-executing it will preempt inconsistent state law and previous legislation. This issue was addressed by the US Supreme Court in Ware v. Hylton 3 U.S. 199 (1796), where it found that the treaty at issue was self-executing and struck down an inconsistent state law. (Id. 284). However, a treaty cannot preempt the Constitution itself (as held in the 1957 US Supreme Court case, Reid v. Covert). Thus, in order for a treaty to be executable within the United States, it might be necessary for the Constitution to be amended. Otherwise, treaty provisions could potentially be found unconstitutional and consequently struck down by the courts. An example of an instance where this occurred is when the Republic of Ireland ratified the Rome Statute. The Irish government's response was to hold a national referendum on the issue in 2001, after which the government amended their Constitution to bring it into effect. The question of whether the Rome Statute would require amendments to the US Constitution to be brought into effect is a matter of debate within the United States. However, many scholars and experts believe that the Rome Statute is compatible with the US Constitution.