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"But You Said You Would!", Said the People to Their Government

 

Background

Children are taught from a young age to keep their promises. Businesspeople are bound to the terms of the contracts into which they enter. Minute Maid is bound by their promise to reimburse grocers for accepting their store coupons for fifty cents off their 12-ounce frozen orange juice. Governments are obligated to fulfill their statutory responsibilities, and they can be sued in court for a failure to do so. Why is it, then, that there is one major exception in the US to the principle of being bound by one's word? How can the Federal government disregard its obligations under international treaties?

Treaties have traditionally been viewed by U.S. courts as documents that establish obligations between nations, not between a nation and its own people. It does not matter whether the obligation between nations stems from a treaty, an international convention, a presidential Executive Agreement, a United Nations resolution, the "general law of nations", or some other form of document or commitment. Even though they may address environmental, immigration, trade, or other issues, or even confer personal rights or responsibilities, their enforcement is limited from carrying the full force of domestic law.

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The irony of limiting the effect of international agreements to the dealings between different countries is that enforcement between nations is often implausible. Even today, with the United Nations, International Court of Justice, and other institutions, the remedies they offer are usually reserved for the more egregious violations of international law, and their decisions are, in large part, subject to the willingness of the participating nations to be bound. In prior centuries, a failure of a country to live up to a treaty obligation carried even fewer consequences. If a country considered the violation to be a truly serious affront, they could always declare war. But, there were not a lot of other options.

The courts in the United States have developed numerous principles by which to prevent private citizens from suing the Federal government to enforce its international agreements. For example, the courts differentiate between some agreements that are "self-executing" and others that are not. A self-executing treaty does not need additional Federal legislation to be enforceable by private citizens, whereas non-self-executing treaties (technically called "executory treaties") do need legislation. But, Federal legislation, in absence of a treaty, would have created such rights anyway. So what advantage does a treaty offer if the courts can simply deem it to be non-self-executing and, in so doing, say that American citizens cannot rely on their government to comply with it?

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Even when an international agreement, by its subject matter or its terms, would have no value other than to provide rights to U.S. citizens, courts have still invoked the "non-self-executing" rationale. Since there are no rights where there is no recourse to enforce those rights, international agreements in these cases are rendered meaningless.

Other courts in the U.S. have prevented suits by citizens to enforce international agreements by citing "the political question doctrine". In effect, that means that the issue is too political for the courts to handle. Governmental immunity and executive immunity are cited in other cases. Some cases are rejected on the grounds that the individual litigant has no standing to sue, or, in other words, that the individual who brought the suit was not significantly harmed in a manner that is distinct from how the population as a whole was harmed. Does this make sense? Because one million -- or 300 million -- Americans were harmed in a similar manner by our government's violation of an international agreement, should that result in not even one of them being permitted to challenge that violation?

Ideas / Solutions

The idea that our government should be bound to its commitments is not new. But the Idea that this basic principle should extend to international agreements, and routinely be enforceable by individuals, would be new.

Article VI, clause 2 of the United States Constitution makes it clear that treaties are a part of the law of the land. Court cases have clarified that international agreements are analogous to contracts, and, as such, are binding on the government as well as its citizens. Thus, it should be concluded that a violation of a treaty by a governmental agency or officer is an infringement against the Constitution.

Congress should take action to clarify that if the U.S. government has entered into an international agreement, and if it engages in an action that violates that agreement, any American can bring a suit to enforce that agreement. Similarly, no government money should be allowed to be spent toward a purpose or activity that violates an international agreement.

It simply does not make sense that a U.S. citizen cannot enforce this category of the law of the land. Relegating that duty exclusively to other countries means that many rights are only empty promises, as there may be political and diplomatic reasons for other countries not to challenge U.S. executive or administrative determinations. Government actions in conflict with an international agreement must not be insulated from external review, without any deterrent against even willful violations of these obligations.

For a democracy where the citizens can rely on their government's words and actions, the distinction between "self-executing" and "non-self-executing" international agreements must be wholly discarded. In addition, other barriers to enforcement should also be dismantled.

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If there is concern about the potential liability exposure of the U.S. from such a legal change, then it may be necessary to "grandfather", or exempt, actions relating to a treaty or other international agreement that was entered into fifty (or, some other number of years) or more years ago. But the right of citizens to enforce international agreements should be the norm, not the exception..

In some instances, a lawsuit brought by an American citizen against the Federal government in response to the US's violation of an international agreement might only be able to result in a couple of remedies. The court could either issue a "cease and desist" order against certain actions being continued, or an injunction against Federal funds being spent in a manner which conflicts with the intent of the agreement, even if funds have already been appropriated. But that may be all that an aggrieved party seeks, as financial remuneration is often a lesser concern to a plaintiff.

The right of individuals to sue in these situations is entirely consistent -- and even necessitated -- by our concept of democracy, and by the Constitution itself.

 
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