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Institute for Workplace Studies-----------------Professor Samuel B. Bacharach

School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies

Cornell University

16 East 34th Street, 4th floor--------------------Stuart Basefsky

New York, NY 10016 -------------------------------Director, IWS News Bureau

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NOTE: Funding for this service ends on 31 March 2015. Postings will end on this date as well.

 

Congressional Research Service (CRS)

 

International Law and Agreements: Their Effect upon U.S. Law

Michael John Garcia, Legislative Attorney

February 18, 2015

https://fas.org/sgp/crs/misc/RL32528.pdf

[full-text, 28 pages]

 

Summary

This report provides an introduction to the roles that international law and agreements play in the

United States. International law is derived from two primary sources—international agreements

and customary practice. Under the U.S. legal system, international agreements can be entered into

by means of a treaty or an executive agreement. The Constitution allocates primary responsibility

for entering into such agreements to the executive branch, but Congress also plays an essential

role. First, in order for a treaty (but not an executive agreement) to become binding upon the

United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds

majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many

treaties and executive agreements are not self-executing, meaning that implementing legislation is

required to provide U.S. bodies with the domestic legal authority necessary to enforce and

comply with an international agreement’s provisions.

 

The status of an international agreement within the United States depends on a variety of factors.

Self-executing treaties have a status equal to federal statute, superior to U.S. state law, and

inferior to the Constitution. Depending upon the nature of executive agreements, they may or may

not have a status equal to federal statute. In any case, self-executing executive agreements have a

status that is superior to U.S. state law and inferior to the Constitution. Treaties or executive

agreements that are not self-executing generally have been understood by the courts to have

limited status domestically; rather, the legislation or regulations implementing these agreements

are controlling.

 

The effects of the second source of international law, customary international practice, upon the

United States are more ambiguous and controversial. While there is some Supreme Court

jurisprudence finding that customary international law is part of U.S. law, U.S. statutes that

conflict with customary rules remain controlling. Customary international law is perhaps most

clearly recognized under U.S. law via the Alien Tort Statute (ATS), which establishes federal

court jurisdiction over tort claims brought by aliens for violations of “the law of nations.”

 

Recently, there has been some controversy concerning references made by U.S. courts to foreign

laws or jurisprudence when interpreting domestic statutes or constitutional requirements.

Historically, U.S. courts have on occasion looked to foreign jurisprudence for persuasive value,

particularly when the interpretation of an international agreement is at issue, but foreign

jurisprudence never appears to have been treated as binding. Though U.S. courts will likely

continue to refer to foreign jurisprudence, where, when, and how significantly they will rely upon

it is difficult to predict.

 

Contents

Introduction ...................................................................................................................................... 1

Forms of International Agreements ................................................................................................. 2

Treaties ...................................................................................................................................... 2

Executive Agreements ............................................................................................................... 4

Choosing Between a Treaty and an Executive Agreement ........................................................ 6

Nonlegal Agreements .............................................................................................................. 10

Effects of International Agreements on U.S. Law ......................................................................... 12

Self-Executing vs. Non-Self-Executing Agreements .............................................................. 12

Conflict with Existing Laws .................................................................................................... 14

Customary International Law ........................................................................................................ 16

The Alien Tort Statute (ATS) ................................................................................................... 17

Reference to Foreign Law by U.S. Courts ..................................................................................... 19

 

Figures

Figure A-1. Steps in the Making of a Treaty .................................................................................. 22

Figure A-2. Steps in the Making of an Executive Agreement ....................................................... 24

 

Appendixes

Appendix. Steps in the Making of a Treaty and in the Making of an Executive Agreement ......... 22

 

Contacts

Author Contact Information........................................................................................................... 25

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