Treaties in Peace and Conflict in the United States - Term Paper Example

Running head: Treaties in Peace and Conflict Treaties in Peace and Conflict [The name of the writer appears here] [The name of institution appears here] Introduction The rise of the United States of America into a most prominent place in world affairs has been naturally attended by an increasing number of agreements with other countries. As their number increases, more attention becomes focused upon them. This attention is not due primarily to the importance of these agreements as they affect relations with other countries. To the typical American the state of foreign affairs is not closely known, the ripe time and conditions for commencing negotiations for agreements are highly problematical, and the intricacies and niceties of negotiations and international law are a complete maze. Much confusion is felt in this regard, but it is a confusion little lamented. This is not because there is indifference to the nation's course in foreign affairs, but because there is no overriding, direct personal concern; any individual will fare in these matters very much the same as all other individuals fare (Davis, & Meyer, 1998). In many respects, however, these agreements become domestic law and are enforceable in the domestic courts. Cases in the courts are matters of conflict between juristic persons, and consequently an individual may have occasion to become very much directly concerned personally. Where the foreign operations and effects of agreements may be shrouded in acceptable confusion, a like confusion may become well nigh intolerable in the realm of domestic law. Resulting from this confusion has been a most pressing controversy in recent history over the question of whether or not there are any limitations on the federal government's treaty power; a question which, in view of the climate of opinion regarding United States traditional governmental theory, presents something of a paradox. This problem has been compounded by the various types of international agreements in United States law, along with the varying procedures by which they are consummated or become legally binding within the framework of domestic governmental machinery. There is confusion, for example, over whether there is any difference as to scope between treaties and executive agreements. The results can become frightening when extremities are joined in a sort of syllogism: treaties are unlimited; treaties and executive agreements are interchangeable; ergo, the power of the President or some appointed underling is wholly without legal limit. This terrifying conclusion is used principally in political campaigns, and is not to be found so baldly stated in authoritative and responsible works on the subject, but since the beginning of U. S. constitutional history there has existed a latent source of confusion, not only in the Constitution itself but in the writings of its Founders, in Supreme Court opinions, and consequently in the texts of commentators on the matter. There have been, therefore, rational and legal bases for a limited amount of the confusion. This confusion has reached and thoroughly penetrated the scholarly world. Although statements on the subject of limitations on the treaty power treat it variously, there appears not to be a modern text on American Government which professes to reveal the limitations on the treaty power or which will state an overall rule on the difference between treaties and executive agreements as to the extremities of subject matter with which they can deal. In the same vein, many respected professors have often admitted inability to point to the outer limits of the treaty power, and on the various instruments have thrown up their hands with the allowance that the difference between treaties and executive agreements is that treaties are called treaties and executive agreements are called executive agreements. The treaties in many disputes do not conform to one general pattern, and only in some instances is it possible to find a number of treaties which copy closely a basic model. In most cases, one discovers the influence of several basic types of treaties, which have been combined in a new and different pattern. The obligations undertaken in the treaties of the period under consideration run the whole gamut from vague generalities to detailed arrangements in which various procedures have been interlaced by skilful draughtsmanship. Whereas material obligations are sometimes accepted through simple formulae, undertakings of relative minor importance are, in several instances, contained in a series of long and complicated provisions. Quite often a narrow jurisdictional clause may prove to be much stronger than a seemingly broad one, if the latter is accompanied by sweeping reservations hidden in another part of the treaty. Most treaties of the period provide simultaneously for conciliation, arbitration and judicial settlement, but there is a large group of treaties which provides for only one or two of these procedures. Although in a large majority of treaties the parties agree to settle all disputes, in certain other instances the obligation to settle disputes extends only to legal disputes or to disputes concerning treaties. Only a few treaties provide for direct resort to the Court in all disputes. Clauses to that effect are inserted in two treaties dealing principally with other subjects: the Siamese-Swiss Treaty of 28 May 1931 and the Colombian-Peruvian Treaty of 24 May 1934. Certain treaties provide for conciliation of all disputes, to be followed, in case of failure, by resort to the Court. Some of them adhere to the example set by the Italo-Swiss Treaty of 20 September 1924, but several other patterns are also represented in this group. The generality of the obligation is limited in a few cases by broad reservations, but even in these instances the scope of the submission to judicial settlement goes beyond the field of disputes as to rights. In consequence, most treaties in this group grant to the Court power to settle the matter ex aequo et bono, if in its opinion the dispute is not of a judicial nature. A group of Icelandic treaties provide for reference of legal disputes to the Court and of all other disputes to an arbitral tribunal. Three of these treaties envisage resort to a special conciliation commission in case of a non-legal dispute, provided both parties agree on the details of such a reference within six months after a proposal to resort to the procedure of conciliation has been made. The Danish-Icelandic Treaty provides in a less precise manner that, before submitting a non-legal dispute to arbitration, "the Parties, after having referred the matter to the Dano-Icelandic Commission, shall have recourse to the procedure of enquiry and conciliation by a conciliation body or by a mediator appointed for the purpose." None of the four treaties contains any particulars of the conciliation procedure to be followed in case of an agreement to attempt to reach a settlement by this method (Davis, & Meyer, 1998). Another large group of treaties, while still providing for reference to the Court of legal disputes, limits the settlement of non-legal disputes to conciliation proceedings. If one of the parties refuses to accept the proposals of the conciliation commission, no further steps can be taken under treaties of this type. Conciliation may be resorted to also in legal disputes, if both parties agree thereto, but in case of failure, either of them may refer the dispute to the Court. Several treaties to which Latin-American or Arab States are parties provide that all disputes be submitted to arbitration. Most of them limit the generality of this obligation by important reservations. Some difficulties may also be encountered when the provisions for the establishment of the arbitral tribunal, are put to test in a case where one of the parties is reluctant to submit, the dispute, to arbitration. A series of treaties concluded by the United States provides for submission to conciliation of all disputes and provides, in most cases by a separate treaty concluded on the same date, for reference to the Permanent Court of Arbitration of legal disputes not adjusted by conciliation. As a special agreement is required in each case of arbitration, the application of the treaty to an actual dispute will depend in each case on the willingness of the parties to fulfil in good faith the obligations assumed by them. In certain instances, treaties of friendship (or amity), of friendship and commerce or of friendship and non-aggression contain general clauses on the pacific settlement of disputes. Sometimes these clauses establish procedures for settling all or some disputes between the parties. In several cases, however, these clauses do not go beyond a few generalities. Some speak vaguely of submission of disputes to "procedures of pacific settlement", others specify the methods to be employed--conciliation, arbitration or both. Some contain, in addition, a proviso that the parties shall decide in each case, by special agreement, which procedure is the most suitable for the dispute at hand. Only Ethiopia and Italy have supplemented their treaty by an exchange of notes establishing at least the composition of the arbitral tribunal, while the Treaty between Bolivia and Peru contains a provision on the establishment of a conciliation commission to deal with border disputes. Almost every one of the treaties of the period under consideration starts with a general provision, in which the parties undertake to settle all disputes arising between them by peaceful means or, more explicitly, in accordance with certain prescribed methods. Several of the treaties adopt, with various modifications, the negative phraseology of the Treaty for the Renunciation of War, which sets forth the agreement of nearly all States of the world that "the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means." In another group of treaties, the parties adopt the more positive formula to settle their disputes "by pacific means", "by pacific methods" or "in an amicable manner". Some treaties belonging to this group, and several other treaties provide that all disputes should be settled "in accordance with the methods contemplated in the present Treaty". A large group of treaties contains a more detailed undertaking to settle disputes "by means of conciliation or judicial procedure or arbitration" or "by judicial means or arbitration, preceded, according to circumstances, as a compulsory or optional measure, by recourse to the procedure of conciliation". In a variant of this formula, the parties undertake to submit all disputes "to the decision of the Permanent Court of International Justice or of a special arbitral tribunal, or to a procedure of conciliation" (Jenkins, 1995). Several treaties put the emphasis in the initial statement on the undertaking to submit all disputes "to a procedure of conciliation", "to conciliation procedure, and, if necessary, to arbitration procedure", "to a conciliation procedure and, if necessary, to a procedure of judicial or arbitral settlement" or "before any resort is made to procedure before the Court or to arbitral procedure . . . . to a permanent conciliation commission". Similarly, a few treaties limit the primary obligation to arbitration, others to judicial settlement and others to judicial settlement and arbitration. While most treaties deal only whith "disputes", some speak of "questions", "differences", "disputes and conflicts", "disputes or conflicts" or "differences or disputes". The obligation usually extends to "all" or "any" disputes, differences or questions. Among the other definitions used, the following may be noted: "disputes of every kind", "disputes of any nature whatsoever" and "disputes, of whatever nature they shall be". In isolated instances, other phrases have appeared, such as "questions whatsoever" or "disputes of any character". One treaty, while submitting to conciliation "disputes of every kind", adds "more particularly differences of opinion arising out of the interpretation ofbilateral treaties existing between the two Contracting Parties or of agreements concluded or to be concluded for the interpretation and execution of the said treaties" (Jenkins, 1995). The undertaking contained in treaties for pacific settlement is ordinarily limited to disputes "which may arise between the High Contracting Parties" or to questions "on which they may differ". In a few instances, treaties employ the phrase "which may for any reason arise between them". In some cases, a reservation is made excluding "disputes which had arisen prior to the coming into force of the present Treaty". Two treaties not only state that the main undertaking shall not apply to "disputes which arose prior to the conclusion of the present Convention", but also provide for reference to the Permanent Court of International Justice of the preliminary question whether a particular dispute comes under that exception. Several treaties state the starting point of the limitation more precisely, by providing for the settlement of only those disputes "which may arise after the entry into force of the present Treaty". In addition, some treaties restrict the temporal applicability of their provisions by a special reservation excluding disputes arising out of events prior to the particular treaty and belonging to the past. Another basic restriction, common to almost all treaties under review, is contained in the requirement that the dispute must be one "which it has not been possible to settle by diplomacy", "by the normal methods of diplomacy", "through the diplomatic channel", "by direct negotiations through the usual diplomatic channels" or simply "by direct negotiation". Some treaties add "within a reasonable period" or "in a reasonable time". A group of treaties to which the United States of America is a Party, provides that disputes shall be submitted to conciliation "when ordinary diplomatic proceedings have failed", and another group of these treaties follows the general pattern of excepting from arbitration those differences "which it has not been possible to adjust by diplomacy". A German-Soviet treaty envisages submission to conciliation of disputes "if difficulties are encountered in settling through the diplomatic channel." A question may arise how to determine the moment when diplomatic negotiations have failed, or when settlement by diplomacy has become impossible. If a party decides to raise an objection based on the insufficiency of prior diplomatic negotiations, the body generally empowered to interpret the treaty and to decide jurisdictional questions will also have the power to decide this preliminary question. Two treaties solve the problem by providing specifically that "it shall be for each of the Contracting Parties to decide at what moment the procedure of conciliation may be replaced by diplomatic negotiations" (Jenkins, 1995). Some treaties give as examples of disputes which are solely within the domestic jurisdiction disputes concerning "municipal law" or "the exercise of sovereign rights". In one case, the exclusion extends to disputes "which may compromise the independence or sovereignty of the two nations, or exercise thereof in domestic concerns". Other treaties speak of "questions which, in virtue of treaties in force between the two High Contracting Parties, come within the competence of one of them", or "within the jurisdiction of either of them". In this group of treaties, concluded principally by Turkey, this reservation is coupled ordinarily with a reservation excluding also "questions relating to sovereign rights", "questions relating to the right of sovereignty" or "questions which, according to international law, relate to the right of sovereignty". Some of these treaties increase the danger of this exclusion by providing that the general undertaking shall not apply to "disputes which in the opinion of either Party, relate to its sovereign rights or of which the subject falls within such Party's exclusive jurisdiction" or to "disputes concerning questions which, in the opinion of one of the Parties, are, according to the principles of international law, exclusively within its sovereignty, or, according to the Treaties in force between the Parties, within its exclusive jurisdiction". Sometimes this clause reserving the right of unilateral determination does not apply to domestic questions but only to questions relating to sovereign rights. In these cases, it is usually provided that "each of the Parties shall have the right to determine, by means of a written declaration, whether a question relates to sovereign fights or not". In some cases, such a declaration precludes any further resort to the methods of settlement provided for by the treaty, and some of the treaties contain an express statement to that effect. In other cases, however, a remedy has been found against unilateral decisions which are too arbitrary. If one of the parties disagrees with a declaration labelling a dispute as one relating to domestic questions or sovereign rights, it "may apply to the permanent Court of International Justice to decide this preliminary question", or it "may have recourse to arbitration in order to establish whether the question relates to sovereign fights or not". Similarly, the Pact of Bogotá provides that "if the parties are not in agreement whether the controversy concerns a matter of domestic jurisdiction, this preliminary question shall be submitted to decision by the International Court of Justice, at the request of any of the parties" (Davis, & Meyer, 1998). It has been noted that some treaties leave no room for an impartial determination of the scope of the reservations. The final decision depends on the opinion, sometimes embodied in an official, written declaration of one of the parties that the dispute comes under the exception of one of the provisos. On the other hand, some treaties give to the other Party the right to challenge this unilateral determination by referring this preliminary question to arbitration or to the Court. While this procedure is applicable in these cases only to some of the reservations, in several treaties a list of exceptions is followed by a provision that, if a difference should arise between the Parties as to whether a particular dispute comes under one of these exceptions, "this preliminary question shall at the request of either Party be submitted to the Permanent Court of International Justice for its decision, without prejudice to the substance of the dispute". While resort to special international procedure will ordinarily prevent submission of the dispute to the procedures envisaged in a general treaty for the pacific settlement of disputes, reference to a national tribunal has in almost all cases only a delaying effect. According to the most common formula, settlement by international procedures has to be delayed "until a decision with final effect has been pronounced, within a reasonable time, by the competent national authority". The prerequisite in each case is that the dispute (or the "occasion of the dispute") should, according to the municipal law of one of the parties, fall "within the competence (jurisdiction) of its judicial or administrative authorities" (Jenkins, 1995). In most cases, equal treatment is given to proceedings before administrative and judicial authorities, but in several treaties no reference is made to administrative authorities. In a few isolated instances, the differentiation goes further: disputes which fall within the competence of judicial authorities are excepted from submission to any international proceedings, and the submission of disputes which fall within the competence of administrative authorities is delayed until a final decision of the competent authority. The party, within the competence of the authorities of which the matter falls, "may require that the dispute be not submitted to the procedures laid down in the present Treaty"; or it may "object to the matter in dispute being submitted for settlement by the different methods laid down in the present Treaty"; Or it may "oppose the submission of the dispute" to the various procedures provided for by the Treaty. In several cases, however, a more general clause is employed: the dispute (or "the matter in dispute") "shall not be submitted to the procedure laid down in the present Treaty" until a final judgment has been pronounced. While most treaties give the right to make the objection explicitly to the "defendant Party", if the matter comes within the jurisdiction of that Party's authorities, some treaties, on the other hand, introduce reciprocity by providing that if the dispute, "according to the laws of one of the Parties, falls within the jurisdiction of a judicial authority, either Party may require that the dispute shall not be submitted" to the various international procedures. Similarly, in some cases the defendant party is allowed to raise the objection if the dispute falls within the competence of national courts "under municipal law of one of the Contracting Parties", even if such an objection has to be based on the law of the other Party. Some treaties limit the exception by allowing the submission of the dispute to international procedures without waiting for a final decision "in the case of a denial of justice". In one case, consent of the parties for submission to international procedures seems to be required in all cases, even after a final judgment, "save in cases where there has clearly been a denial of justice" (Davis, & Meyer, 1998). Some treaties set a time-limit within which "the party which desires to resort to the procedures laid down in the present Convention must notify the other Party of its intention", or within which "the dispute must be submitted" to international procedures. The period is usually "one year from the date of the decision of the national authority", though in some cases the dispute may not be submitted to international procedures "until at least six months, and not more than three years, after a final judgment". Some of the treaties which establish a special method for the settlement of legal disputes provide for the submission of these disputes to the Court, specifying in most cases that these disputes shall be submitted to the Court "for settlement", "for decision" or "for judgment". Some treaties provide explicitly that such reference shall be made "at the request of either of the Parties". A large group of treaties provides that disputes as to rights shall be submitted for decision "either to the Permanent Court of International Justice or to an arbitral tribunal". Another large group places more emphasis on the Court by providing that disputes as to rights shall be submitted to it "unless the parties agree... to have resort to an arbitral tribunal". In either of these treaty types, no reference is ordinarily made to the method by which such submission shall be effected, but it is often assumed that either Party may submit the case to the Court by simple application, unless it is explicitly provided that a special agreement is necessary. Such special agreement is required ill several treaties. Several treaties provide that disputes as to rights shall be submitted to the Court "or, if either Party so requests, to an arbitral tribunal" or--according to another formula--to "the Permanent Court of Arbitration", i.e., to a panel of that court to be selected in each particular case. According to some treaties, a request for submission to arbitration instead of to the Permanent Court of International Justice may be made only "in exceptional cases and for special reasons" (Jenkins, 1995). A dispute shall be referred to arbitration in all those cases in which the parties have decided by common agreement to substitute reference to arbitration for reference to the Court. In addition, some thirty treaties, most of them concluded by the United States, submit disputes as to rights "to arbitration" or "to the Permanent Court of Arbitration" (Jenkins, 1995). Some treaties provide separate treatment for legal and non-legal disputes by prescribing judicial settlement for legal disputes and arbitration for non-legal ones. In consequence, they contain not only provisions for submission of legal disputes to the Court, but also a clause conferring jurisdiction over non-legal disputes on an arbitral tribunal. Reference: Davis, S. and Meyer, C. (eds) (1998) Blur. Oxford: Capstone Jenkins, S. (1995) Accountable to None. London: Hamish Hamilton. Read More