LECTURE 21 - International law and domestic courts Flashcards
Basic ideas
Ratification processes…
* Canada and US as two key models
Putnam’s Two-Level game
International law without a
treaty?
Ratification:
The
Canadian
Model
- No formal constitutional provision granting treaty negotiating
authority/ratification power to Government
* Constitutional convention is that it has devolved to Government - When a final text is set, GAC and issue-specific department submit a
Memorandum to Cabinet recommending who will have authority to
sign the treaty for Canada - Generally ratification involves Cabinet preparing an order in council
authorizing the Minister of Foreign Affairs to sign an Instrument of
Ratification or Accession
* Full Parliamentary approval is the exception, not the rule
* Parliamentary input into treaty comes through commissions and consultations during
the negotiation process to provide advice to Government - Process wholly controlled by Executive Branch
* Makes sense if you realize that the Executive Branch is formed by the largest
party/coalition in the House of Commons
2008/2020
Modernization of the
Canadian
model
- All treaties negotiated are to be tabled in House of
Commons prior to ratification - Accompanied by detailed memorandum listing:
- Primary issues at stake
- Material on the subject matter
- Primary obligations that will be created
- National interest and policy considerations at play
- Federal-Provincial/Territorial considerations
- Potential implementation issues
- Descriptions of any intended reservations or declarations
- A description of consultations undertaken
- The House of Commons has 21 days to consider the
treaty before Executive ratifies it - Debate can be held in the House of Commons
- House of Commons can pass motions recommending action,
including ratification or rejection - Votes on the treaty by the House of Commons on the proposed
have no legal force and final decision rests with the Executive - Canada follows a dualist legal model
- Signed treaties still requires incorporation through domestic
law to be enforceable at the national level
The US
Model: President
Negotiates, Senate
Ratifies
- President in effect has a monopoly on negotiating treaties, but cannot
sign them unilaterally - Article 2, Section II, of the US Constitution:
- He [the President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of
the Senators present concur…” - Consistent with the idea of division of powers and checks and balances
- NY Senator Rufus King in 1818 (member of Constitutional Convention):
- “In these concerns the Senate are the Constitutional and the only
responsible counselors of the President. And in this capacity the
Senate may, and ought to, look into and watch over every branch
of the foreign affairs of the nation; they may, therefore, at any
time call for full and exact information respecting the foreign
affairs, and express their opinion and advice to the President
respecting the same, when, and under whatever other
circumstances, they may think such advice expedient.” - The Senate has three options when presented with a treaty text:
1. Approve treaty with no revision
2. Approve a revised version of the treaty (this terrifies
negotiating partners)
3. Reject the treaty
US Model:
Fast Track
Negotiating
Authority
- A resolution to the approval dilemma
with the Senate - Senate commits to vote on a treaty as a
whole - Referred to as an ‘up/down’ vote
- Trade off is Executive commits to
enhanced and ongoing consultation with
Senate during negotiating process - Crucial for negotiation of trade treaties
- i.e., Chile in 1996 refused to
negotiate with President Clinton
because he lacked Fast Track
authority
US Model:
The
Presidential
Role
- Negotiates the treaty
* Involves international and national negotiations - Implementation of treaty provisions
* Monist model in US – means when ratified it is law of land
* Changes to regulatory structures
* New policy guidance to line ministries
* Presentation of legislation to integrate treaty into national law - Enforcement of treaty provisions
* Ensure state agencies apply and monitor treaty requirements - Embed treaty in national cultural psyche
* ‘Sell’ the treaty to the public
* Provide public information of how treaty works into daily life
Putnam’s Two-
Level Game
Two stage process
* Game 1:
* Bargaining between the negotiators,
leading to a tentative agreement
* Game 2:
* Domestic negotiation to achieve
ratification
In negotiations, both sides must ratify same text
Importance of the
Win-Set
The benefits each side is
gaining from deal
Larger the win-set, the more
likely a deal
Relative size of win-set can
matter
Determinates of Win-
Set: The Domestic
angle
Game 1 linked to game 2
At the domestic ratification table
* Relative power and preferences
* Cost of no agreement to constituents
* Isolationists v internationalists
* Is there sympathy for the other game
1 actor?
Determinates of Win-
Set:
structures
Nature of domestic political
institutions
* Ratification rules in legislature
* Level of political and policy engagement
Level of autonomy of central
decision-makers
* Autonomy strengthens domestically
* Autonomy can weaken internationally
Determinates of Win Set:
Negotiator Strategy
Does the negotiator want to maximize
win set?
* Maximize oppositions, agreement more likely
* But could also make domestic agreement more
difficult
* Maximize your win set, agreement more difficult
Side payments
* Issue linkage works internationally and nationally
Putnam’s Two-Level Game:
Strategy to outcome
- Interconnected, iterative game can help negotiators
- Gives reason to limit what will accede internationally
- Have to sell the deal at home
- Gives reason to limit what will accede domestically
- Have to keep other side at the table
- Offers an avenue for influencing counterparts
approach to issues and negotiations - Nothing to stop lobbying of other sides domestic voices
- The reason there are so many lobbyists in Washington,
DC - The reason there are such strong rules and regulations on
lobbying, representing foreign interests and governments - Even Carleton faculty have to register and comply with rules for
some activity - Excellent studies on this in Tom Long (2015). Latin
America confronts the United States: asymmetry and
influence. (Cambridge University Press). - See especially chapters on NAFTA and Panama Canal treaties
Self-Executing
Nature of
Treaties?
Sometimes,
but not
always
- Treaties are often loose on detail
* Left to national courts of signatory countries to interpret in
local context
* Signals from executive branch of government guide courts, i.e.,
regulations, policy clarifications, technical guidance, etc - Private enforcement of treaties often not possible
due to lack of detail in texts
* Mechanisms for private enforcement is through laws passed by
legislature/executive implementing treaties - If a treaty is sufficiently detailed it may be de facto
self-executing
* Argument to be made before courts
* Can see this most easily in trade and investment treaties - All treaties are subject to constitutional limits
International Law
Without a
Treaty
- Not all law happens through treaties
- Remember, protocols, agreements,
conventions, MOUs - Agreements on technical question can have
profound legal implications - Agreements on intellectual property rights
- Cooperation agreements on particulate
matter - All spells normative ‘creep’ or diffusion
- Makes engagement with international affairs
and arcana rules and regulations of minor
matter far more significant politically - Creates drift into the extra-territorialization
of law… next lecture
