in PARLIAMENTARY PARTICIPATION IN THE MAKING AND OPERATION OF TREATIES: A COMPARATIVE STUDY 261, S. Riesenfeld & F. Abbott eds., Martinus Nijhoff 1994, also published in 67 Chi.-Kent Law Review No. 571, 1991

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This article will briefly describe the basic allocation of the treaty power in the United States and the status of treaty law in the municipal legal system. These matters are the subject of a number of excellent studies by American and foreign scholars. Our main concern, however, is with a particular feature of the constitutional landscape-the role which the Senate plays in the treaty-making process through the attachment of qualifications to resolutions of ratification; namely amendments, reservations, understandings, declarations, and provisos. We are concerned with the effect these conditions are accorded by the President, United States courts, and the international community. We are concerned with whether a minority of the Senate will be enabled to effect an influence on the international and domestic legal process greatly in excess of the constituency it represents. We believe that the phenomenon of Senate conditions must be carefully examined in the light of developments in the international legal system, and particularly the growing acceptance of individuals and individual rights as proper subjects of international law.

The Constitution of the United States speaks very briefly to the treaty-making power. This is not remarkable as the Constitution is on the whole a terse instrument. The U.S. Supreme Court has spoken infrequently on the respective roles of the Executive and Legislative branches in the treaty-making process. The development of the separation of powers with respect to the respective roles of the Legislative and Executive branches in the United States treaty-making process has therefore come primarily from the organic and continuous process of interaction between these political branches. This process of evolution has proceeded from President Washington's often quoted declaration that having once gone directly to the Senate to discuss a prospective treaty, he would be damned if he would ever do so again; to the endorsement by Congress of, and acquiescence by the Supreme Court to, the last-in-time doctrine and its implicit adoption of a partially dualist constitutional system; to the growing role of Senate reservations, understandings, declarations and provisos in the treaty-making process; and most recently to the prominence of the Congressional-Executive agreement and the “fast track” procedure.

Certain fundamental issues concerning the allocation of power between the Executive, Legislative and Judicial branches of government in the United States deserve particular attention in light of the rules of international law which impact on the American constitutional process. A most serious constitutional issue is whether the Senate (or the Congress) has the power to attach reservations or understandings to treaties which are not valid and effective under international law, and yet cause them to have binding effect in United States courts. Of particular concern are recent attempts by the Senate to expressly reserve the supremacy of the internal law of the United States with respect to important international legal instruments and to determine by declaration the non-self-executing character of various treaties. Of perhaps equal concern is whether the Senate (or the Congress) has the power to control the interpretation of treaties in a manner inconsistent with their international interpretation, yet with binding domestic effect. Our concerns are by no means limited to the field of human rights, although it is in this area that the most troubling manifestations of misguided Senate effort have emerged. As the international legal system continues the trend toward developing and protecting the rights and interests of individuals-in the fields of the environment, trade, communications and so forth-questions relating to the conditions under which such rights may be invoked in national courts will become of increasing importance. It is therefore of the utmost urgency to consider who will determine the scope of these rights and under what rules.