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Patchel Memo - Private Law Treaties 1 (September 28, 2007)

handle is hein.nccusl/nccpub01068 and id is 1 raw text is: Date: September 28, 2007 To: Participants in October 7, 2007 Informational Meeting Regarding Treaty Implementation From: Kathleen Patchel Re: Implementation of Private Law Treaties I. Introduction This document provides an overview of issues related to implementation of private law treaties. Part II summarizes principles of U.S. treaty law relevant to consideration of different implementation methods. Part III summarizes various possible implementation methods, and lists advantages and disadvantages of each technique. For a more detailed discussion of some of these topics, see Kathleen Patchel, Report: State Law Implementation of Private International Law Treaties. Another useful discussion of this topic is found in Curtis R. Reitz, Globalization, International Legal Developments, and Uniform State Laws, 51 Loy. L. Rev. 301 (2005). Further discussion of relevant treaty law principles can be found in David J. Bederman, Chapter 15, International Agreements in U.S. Law, in International Law Frameworks (2nd ed. 2006) and John M. Rogers, Chapter 6, Treaties as the Law of the Land, in International Law and United States Law. II. Relevant Principles of U.S. Treaty Law The treaty power is shared by the President and the Senate. Treaties are made by the President with the advice and consent of 2/3rds of the Senators present. Once ratified, a treaty becomes an international obligation of the United States. In most instances, the treaty also, either itself or through its implementing legislation, becomes a part of U.S. domestic law. Internationally, once the U.S. has entered a treaty, it is bound by the treaty's terms and undertakes to carry out those terms in good faith. The impact of the treaty on domestic law depends upon the way in which it is implemented. If the treaty is self-executing, then the treaty itself becomes federal law. If the treaty is not self-executing, then the treaty itself does not become part of U.S. domestic law. Instead, it is the legislation passed to implement the treaty that becomes part of U.S. domestic law. Under the Supremacy Clause, both self-executing treaties and federal implementing legislation for non-self-executing treaties preempt inconsistent state law. Preemption of state law can occur not only when the terms of the state law actually conflict with the terms of the federal law, but also when the state law is found to be inconsistent with accomplishment and execution of the full purposes and objectives of Congress. In some instances, preemption doctrine may void any state law in the area regulated by federal law because the federal law is viewed as occupying the field. Preemption is a matter of the intent of the federal lawmaker. The intent

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