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The U.S. Constitution is the supreme law of the United States. The Constitution also, however, allows for the nation to enter into international obligations. In addition, customary practice also binds our nation. It is in the confluence of factors that the actions of the U.S. must take place.

Since international obligations shape the actions of the United States, such obligations can, in turn, have an effect on domestic as well as international law. Different types of agreements each carry a different status within the United States; the extent to which international agreements effect the U.S. domestically is dependent upon the form of the agreement. Which type of agreement or custom is binding and whether domestic or international obligations are superior is not always clear. The article by Michael John Garcia differentiates between the different forms of international agreements, customary law, and their effects on U.S. law.

In looking at the Constitution, the wording specifically states that the President, by and with the advice and consent of the Senate, has the power to make treaties, provided that two-thirds of the Senators present concur. But what exactly does that mean? And once a treaty has been brought into force, who determines what the words of the treaty actually mean? Politics plays a central role in the negotiating and adoption of a treaty (or other agreement), but what happens when the same words mean different things to the different branches? The two branches may have at best different priorities and at worst different substantive objectives. How much “interpretation” is allowed before one branch has actually “amended” that to which the other branch believed it agreed?

Mr. Glennon’s article looks at how the executive and legislative branches’ actions can play upon how a treaty is interpreted and the implications of allowing one branch’s interpretation to take precedence over the other’s.

• International Law and Agreements: Their Effect upon U.S. Law by Michael John Garcia (Links to an external site.)Links to an external site.
• Interpreting “Interpretation”: The President, the Senate, and When Treaty Interpretation Becomes Treaty Making by Michael J. Glennon (Links to an external site.)Links to an external site. pages 821-828
• Law of Treaties Interpretation Treaty Conflict by Mr. Jan Klabbers (Audiovisual Library of International Law – 33:00) (Links to an external site.)Links to an external site.

Discuss

• Should the executive branch be required to submit its full record of negotiations of treaties to the Senate for its consideration?
• Should the Senate and/or its sub-committees considering proposed treaties hold their hearing in secret?
• What implications do your answers have for future interpretations of a treaty by the courts?
• How should the executive branch determine which form of international agreement to utilize in a given situation? Is this discretion to choose unlimited?

Explain your answers providing evidence/support from the article, video, and the law.

Post

After posting your response, review your classmates’ posts and make a thoughtful and substantive response to at least two others by the posted due date and follow the Discussion Guidelines.

Refer to the Discussion Rubric for detailed grading criteria.

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