Treaties as Binding International Obligation

Frederic L. Kirgis
May 14, 1997
On April 9, 1997, John R. Bolton, a former Assistant Secretary of State for International Organization Affairs in the Bush Administration, testified before the House International Relations Committee. In his written statement he asserted, "Treaties are 'law' only for U.S. domestic purposes. In their international operation, treaties are simply 'political,' and not legally binding." In support of this assertion, he relied on several old Supreme Court cases dealing with with the effect of treaties in U.S. law or with reasons a government might put forward for declining to execute a treaty.
Contrary to Mr. Bolton's assertion, it is clear that treaties are legally binding in their internal operation. The members of the United Nations, including the United States, have said as much when they established the U.N.'s principal judicial organ, the International Court of Justice. They have agreed to the Court's Statute, which provides in article 38, "The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply [among other sources] international conventions [i.e. treaties], whether general or particular, establishing rules expressly recognized by the contesting states."
The Vienna Convention on the Law of Treaties, article 2(1)(a), defines a treaty as "an international agreement concluded between States in written form and governed by international law...." This provision defines "treaty" for international law purposes, except that-- as the U.S. Restatement Third of Foreign Relations Law says--"under customary international law oral agreements are no less binding although their terms may not be readily susceptible of proof." Restatement Third, § 301, Comment b. The point is that by any widely accepted definition, treaties are binding internationally.
The definition of treaty for international law purposes is broader than one finds in the U.S. Constitution, where treaties are defined in domestic law as international agreements entered into with the advice and consent of two-thirds of the Senate. It is widely accepted that the United States may enter into some international agreements that are treaties in the international sense but not in the U.S. constitutional sense. Some of those agreements are entered into by the Executive Branch on its own authority and some by the Executive with the concurrence of both Houses of Congress.
The Vienna Convention is in force for 81 nation-states, not including the United States. The reason it is not in force for the United States is that a stalemate exists between Congress and the Executive Branch over the allocation of authority between the two branches to enter into and terminate international agreements (treaties in the international sense) on behalf of the United States. The stalemate would not exist if such agreements were not regarded as binding on the United States internationally. It is precisely because they are regarded as binding that so much is at stake between the two branches of government.
 The United States government has frequently demonstrated that it regards treaties (including treaties for U.S. constitutional purposes as well as other international agreements) as binding instruments under international law. For example, when France breached the 1946 Air Service Agreement between itself and the United States, our government asserted a breach of an international obligation and applied counter-measures to induce France to rectify its breach. The U.S. counter-measures were upheld by an international arbitral tribunal. 54 Int'l Law Reports 304 (Award of Dec.9, 1979).
Many of Mr. Bolton's assertions have to do with the effect of treaties in domestic (U.S.) law. As a matter of U.S. law, Congress does have the power to override a pre-existing treaty obligation that is binding upon the United States under international law. The effect would be that courts and other decision-makers within the United States would follow the Congressional directive, but the United States would be in violation of its international obligation to its other treaty partner(s) unless there is some valid reason under international treaty law to excuse U.S. performance.
The valid reasons are much like those recognized in American contract law relating to agreements between private parties, including (in international law) such things as unforeseen, fundamentally changed circumstances or material breach by the other party to the treaty. The fact that there may valid excuses for nonperformance does not mean that treaties are not binding under international law, any more than valid excuses for nonperformance of contracts means that they are not binding under domestic law.
One of Mr. Bolton's assertions is that "even if the players could agree on a baseline of what 'international law' was, there is no accepted way of adjudicating disputes arising under that law." In fact, however, the United States is a party to many treaties containing compromissory clauses that provide for submission of disputes over interpretation or application of the treaties to the International Court of Justice or to some other third-party international dispute-settlement mechanism.
 In the context of the obligation to pay U.N. dues stemming from article 19 of the U.N. Charter, Mr. Bolton says that "no purpose is served by pounding on the idea that the U.S. is acting 'illegally' by not paying the assessments decided by the General Assembly or other governing bodies." He then asserts that Bruno Simma, an eminent treatise writer on the U.N. Charter, concedes that "[in] principle, a right to refuse payment of assessed contributions should be recognized within certain limits." Professor Simma was not actually the author of that statement, but in any case Mr. Bolton has taken it out of context. In context, it refers to a specific situation: whether member states are required to contribute to the financing of activities that may be inconsistent with the U.N. Charter. See Christian Tomuschat, Article 19, in The Charter of the United Nations: A Commentary 327, 329 (Bruno Simma, editor, 1994). Those in Congress who support partial withholding do not argue that the withholding is limited to amounts that otherwise would go toward financing activities that are inconsistent with the Charter.
Treaties, including the United Nations Charter, are binding instruments under international law, subject to limited grounds much like those in domestic contract law for invalidating or terminating them. 
Frederic L. Kirgis
Law School Association Alumni Professor 
Washington and Lee University School of Law; 
Chair, ASIL Insight Committee