Comment on "Treaties as Binding International Obligation" Authors
December 1997
Editor
The Wall Street Journal
Editorial and Publication Headquarters
200 Liberty Street
New York, NY 10281
Dear Mr. Bartley:
Mr. Bolton writes that "treaties have no special or higher status than other acts of Congress or, for that matter, than the U.S. Constitution." This is correct, as a matter of U.S. law. But what is lawful under U.S. law may not be lawful under international law. This is not because international law is "higher" than U.S. law, but because it imposes a separate set of obligations voluntarily undertaken and owed from one or more countries to other countries.
Mr. Bolton writes that "treaties are 'law' only for U.S. domestic purposes." "In their international operation, treaties are simply 'political' obligations," thus suggesting that treaty obligations may be set aside as mere matters of political discretion. This is a misconception. Contrary to Mr. Bolton's assertion, it is clear that treaties are legally binding in their international operation.
The United States government has demonstrated that it regards treaties as binding in their international operation. For example, when France and the Soviet Union refused in the early 1960s to pay their assessments for UN peacekeeping operations, the United States Department of State relied on the UN Charter, a treaty to which the United States is a party, when it challenged the legality of the French and Soviet withholdings. Article 17(2) of the UN Charter says that: "The expenses of the Organizations shall be borne by the Members as apportioned by the General Assembly." Citing this provision, the U.S. State Department asserted that "the [UN] General Assembly's adoption and apportionment of the Organization's expenses create a binding international legal obligation on the part of States Members to pay their assessed shares." (1979 Digest of United States Practice in International Law, p.226). The State Department did not inquire whether French or Soviet domestic law excused the nonpayment of assessments. Nor did the International Court of Justice, which ruled (Advisory Opinion on Certain Expenses of the United Nations, 1962) that all members of the United Nations are legally bound by the Charter to pay their assessments.
Mr. Bolton also argues that "treaty obligations can be unilaterally modified or terminated by Congressional action." This is true only in the limited sense that a party to a contract retains the power to breach his contract and accept the legal consequences of his illegal act. Although international treaty law recognizes certain grounds for modifying or terminating treaty obligations, unilateral acts of domestic legislative bodies are not recognized, in themselves, as such.
We appreciate the opportunity to correct any misunderstanding which Mr. Bolton's piece may have created.
Created by an Act of Congress in 1931, the Legal Adviser of the U.S. Department of State with rank equivalent to that of Assistant Secretary, is the principal legal officer of the Department. The Legal Adviser provides legal advice on all problems (domestic and international) arising in the course of the Department's activities.Abram Chayes
Leonard Meeker
Monroe Leigh
Herbert Hansell
Roberts Owen
Davis Robinson
Abraham Sofaer
Conrad Harper
ASIL Insights may be found on the ASIL Web Site.
Educational copying is permitted with due acknowledgement.