Academic journal article Vanderbilt Journal of Transnational Law

Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions

Academic journal article Vanderbilt Journal of Transnational Law

Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions

Article excerpt

In E.M. Forster's remarkable novel, A Passage to India, there is, if my memory serves me, a brief but memorable scene. A businessman presents his card, which states his name and then his degree as "B.A. Oxford (Failed)." Like the businessman in Forster's wonderful cameo, there is a fascinating tendency in modern international law to cite, as authoritative and even "binding," acts that have not been legally completed, despite the fact that the formalities of completion are explicit requisites for their legality. I am not speaking of the wide variety of essentially non-authoritative material that counsel and idealistic law students increasingly rummage through and then assemble as proof that, thanks to the sheer quantity they amass, a customary rule of law has formed. (1) I am speaking instead of the--to me equally curious--practice of international actors relying on acts that have manifestly and intentionally not been made legal and binding according to the procedures that have been prescribed for this purpose, as if they were, nonetheless, legal and binding. In short, I am speaking of the intentional use of, and the ascription of legal value to, a class of unperfected legal acts by international tribunals and the international constitutional implications of this practice.

Let me start with a non-judicial example that is still painful to Americans. At 10:30 A.M. on November 4, 1979, Iranian militants entered the Embassy and Consulate in Teheran and took the U.S. diplomatic personnel hostage. (2) The United States rediscovered, as it had many times before and since, that although it had the capacity to destroy utterly an adversary, it did not have the capacity to make it change its behavior. The U.S. Government quite simply could not secure the release of its diplomats.

On December 31, 1979, the Security Council, on a U.S. initiative, called on Iran to secure the release of the hostages, adding that it would reconvene on January 7, 1980, to review the situation and, in case of non-compliance, to "adopt effective measures under ... the Charter." (3) As the hostages had not been released, the United States submitted a draft resolution detailing a sanctions program. (4) Ten members voted for the Resolution, but the Soviet Union vetoed it. (5) S/13735, like other vetoed resolutions, was dead.

Or was it? On April 7, 1980, with the hostage crisis going into its fifth month, President Carter announced, among other actions against Iran, the imposition of economic sanctions. (6) Part of the basis of authority for his action was the vetoed resolution. The President said: "[T]he Secretary of the Treasury will put into effect official sanctions prohibiting exports from the United States to Iran, in accordance with the sanctions approved by 10 members of the United Nations Security Council on January 13 in the resolution which was vetoed by the Soviet Union." (7) The European Common Market Foreign Ministers followed suit. On April 22, 1980, they issued a dispatch that said, in relevant part,

   The Foreign Ministers of the Nine, deeply concerned that a continuation of 
   this situation may endanger international peace and security, have decided 
   to request their national Parliaments immediately to take any necessary 
   measures to impose sanctions against Iran in accordance with the Security 
   Council resolution on Iran of 10 January 1980, which was vetoed, and in 
   accordance with international law. (8) 

A legal act that was unperfected--according to the rules of decisionmaking in that forum--was being given a certain legal value.

Of course, the President's announcement and the communique of the Common Market Ministers were political statements that by their nature, try to maximize their authority by the use of whatever symbols seem to promise effectiveness. No one seriously expects a high degree of legal precision in such statements. …

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