The bicentennial of the 1787 Constitutional Convention in Philadelphia was met with much fanfare. Historians penned suitably reverential retrospectives, Independence Hall allowed its visitors to sign (virtually) the constitutional text themselves, and media outlets everywhere used the opportunity to revisit the founding and evolution of the document. Some observers, however, were not so buoyant in their reactions. In a typically iconoclastic piece, Thurgood Marshall (1987: 5) suggested that Americans were less indebted to the framers than “to those present who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality.’” Despite Marshall's dissent, the majority opinion seems to amount to a vindication of Madison's call for the preservation of the Philadelphia bargain. But, after 200 years of constitutional births and deaths around the world, we are in a position to address some intriguing counterfactuals. Would the United States (and any other country) be better off had it wholly replaced the Constitution with an upgraded document? Would the country have been as prosperous, as democratic, as stable? Would our higher law “fit” the norms and customs of today's citizens better? Would the substituted document have the same degree of sanctity and inviolability as higher law? What would be the implications for national identity or the economic and political institutions that have grown around the older document? In this chapter, we revisit the original arguments of Jefferson and Madison, as well as those of like-minded theorists, and evaluate the various claims against the historical record.

This book presents a comparative analysis of the role of domestic courts in treaty application. In evaluating the role of domestic courts, it is helpful to distinguish among three types of treaty provisions. Horizontal treaty provisions regulate relations between states; vertical provisions regulate relations between states and private parties; and transnational provisions regulate relations among private parties that cut across national boundaries. Domestic courts are rarely invited to apply horizontal treaty provisions. However, private parties frequently seek access to domestic courts to vindicate rights that arise from vertical and/or transnational treaty provisions.

The use of treaties to regulate vertical and transnational relationships is not a new phenomenon. Two centuries ago, Chief Justice Marshall, writing for the U.S. Supreme Court, declared: “Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states; and whoever may have this right, it is to be protected.” Although states have used treaties to regulate transnational and vertical relationships for centuries, there has been an exponential growth in treaty making in this area over the past few decades.

STATUS OF TREATIES IN THE DOMESTIC LEGAL SYSTEM

Introduction

Early History, 1921–1952. Until 1997, constitutional regulation of the position of international law in the Polish domestic legal order was rather scarce. The Constitution of March 17, 1921 (adopted after Poland had regained its independence in 1918) provided that international treaties are concluded (i.e., ratified) by the president of the republic. However, ratification of certain categories of treaties required a prior authorization of the parliament; in practice, this authorization was given in the form of a statute. A similar framework was adopted in the Constitution of April 23, 1935 – Article 52, Section 1, clearly established that parliamentary authorization had to be given in the form of a statute.

This system was understood – in both the legal commentary and judicial case law – as based on the concept of transformation: the presidential ratification and the official publication of a treaty in the Journal of Laws transformed its provisions into provisions of domestic law. As indicated by the Supreme Court, “a treaty, when ratified and duly published…becomes a statutory instrument and gains a binding force in the domestic legal relations.” Thus, the date of publication determined the date from which a treaty entered into the domestic legal system. Because ratification required a prior parliamentary authorization and because that authorization took the form of a statute, such treaties were considered to have a statutory rank within the domestic legal order.

To a degree absolutely without precedent in a millennium of Russian history, international treaties are being used by the Russian state as a means of integrating with the world political, economic, and cultural order. Multilateral and bilateral treaties to which the Russian Federation is a party number in the thousands and regulate all areas of transnational life and activity. Few areas of the law are untouched by treaties. Of those areas regulated by treaty, fewer still have not been affected by treaty enforcement in the Russian judicial and arbitral systems. One may state unequivocally that Russia is among those states that use their legal system to advantage in order to enforce treaties.

The role of Russian domestic courts has been veritably revolutionary in this respect during the past fifteen years. Individuals and juridical persons may invoke treaty rights directly in Russian courts pursuant to Article 15(4) of the Russian Constitution. Judges are encouraged as part of their training to draw on international legal acts when appropriate (and are not necessarily dependent on counsel directing their attention to them).

Treaties occupy a central place in the legal system of the Russian Federation even more so than was the case in the former Soviet Union. The reason is to be found in Article 15(4) of the 1993 Russian Constitution, which provides: “Generally-recognized principles and norms of international law and international treaties of the Russian Federation shall be an integral part of its legal system.

INTRODUCTION

Walter Murphy, one of the most distinguished scholars of constitutional law, is fond of interrupting conversations about “constitutions” with the pointed interjection, “you mean the text, right?” To pre-empt this valuable intervention, we reiterate that we do indeed mean the text, specifically the written constitutional charter of independent countries. Ours is the (wo)man-on-the-street's idea of the constitution and very close to S. E. Finer's (1979: 15) canonical definition of constitutions as “codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and offices of government, and define the relationship between these and the public.” Nonetheless, it is a delicate step to refer to such texts as the constitution in a particular country. We do so only partly for convenience, for we believe that the written text – although in some cases incomplete or even misleading – often forms the core of the formal constitution for most states. A focus on the formal constitution has its limits, as we will be the first to attest. Certainly, not all that is constitutional is written, and not all that is written is constitutional. However, a focus on the text pays extraordinary dividends both in terms of analytic leverage and in understanding change in the broader constitutional order. In this chapter we evaluate these potential dividends against what may appear to be substantial costs.

It is worthwhile at the outset to clarify the relevant criteria by which to evaluate our choice of concepts.

INTRODUCTION

The legal world at the dawn of the twenty-first century finds itself in a period of profound, and for some, unsettling, transition. It is of course a truism that one of the most enduring features of the law – as a system designed to regulate constantly inventive and adaptive human systems – is change. But certain transformations are of a more seismic nature. As international law continues to expand in both depth and breadth, the consequent friction over its penetration into domestic law portends one such fundamental shift in the modern legal world. Perhaps no better fact highlights the significance of this tension than the existence of more than fifty-five thousand formal treaties worldwide (and nearly triple that number of derivative acts of international law significance).

The foundation (or significant expansion) of any autonomous system of laws inevitably creates tension with the legal orders that abut or precede it. In this sense, the increasing friction between international and municipal law is not a novel phenomenon. For example, as new nation-states coalesced in nineteenth-century Europe and South America, of necessity the drafters of the new civil codes had to address the continued vitality of the preexisting statutory and customary norms. The issue was perhaps even more immediate for twentieth-century legal architects in newly reconstituted, yet broadly multicultural states such as Russia and China. But similar challenges in resolving the friction between new and old arose as well for the numerous postcolonial legal orders founded throughout the twentieth century.

INTRODUCTION

When it comes to treaties, the United Kingdom is very much a dualist state. A proper understanding of how treaties are (or are not) implemented and enforced in the English legal system requires a reasonably detailed description of this form of dualism. It is also important because most of the other fifty-two Commonwealth States are former British overseas territories that inherited the same, or very similar, constitutional principles about the place of treaties in domestic law. This will be followed by a description of how the English courts approach the matter of interpretation of treaties, which is central to an understanding of how private rights can (or cannot) be enforced. (We are not concerned with so-called collective rights, such as those set out in the International Covenant on Economic, Social and Cultural Rights 1966.) Then, the question of the extent to which English courts recognize and enforce rights conferred on private parties under treaties will be discussed. Finally, there will be a concise description of the remedies that may be available for the enforcement of private rights.

Only the position in English law is dealt with here. The legal system in Scotland – and, to some extent, in Northern Ireland – is slightly different (it is a foolhardy Englishman who ventures onto Scottish or Irish turf), though the constitutional place of treaties is the same throughout the United Kingdom and its remaining overseas territories.

THE STATUS OF TREATIES IN THE DOMESTIC LEGAL SYSTEM

The Nature of the State

India is a Union of States. The Constitution of India, which was adopted by a constituent assembly in 1949, defines the distribution of power in the Union List, a State List and a Concurrent List. Parliament (i.e., the President and the two Houses, known as the Council of States and the House of the People) may make laws for the whole or any part of the territory of India, while a state legislature may make laws for the whole or any part of that state. Parliament alone has exclusive power to make laws with respect to any of the matters enumerated in the Union List. Among these is “[e]ntering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” The executive power of the Union is vested in the President and is exercised by the President either directly or through officers subordinate to him or her. This power extends to “the matters with respect to which Parliament has power to make laws, and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.” In the exercise of functions, the President acts on the advice of the Council of Ministers, headed by the Prime Minister. Treaties are entered into in the exercise of the executive power of the Union.

Thomas Jefferson's argument about the optimal endurance of constitutions turned out to be uncannily prescient: his proposed expiration date of nineteen years matches the predicted life expectancy for national constitutions since 1789. Since Jefferson's debate with Madison, constitutional endurance has been presumed and celebrated, but, with few exceptions (Hammons 1999; Niskanen 1990; Ordeshook 1992; Sutter 1997), rarely analyzed. This volume has sought to understand the phenomenon of constitutional endurance. Our analysis suggests that in too many cases in the real world, constitutional lives have been “nasty, brutish, and short,” as Hobbes would put it. In Chapter Two, we provided some suggestive evidence to the effect that the lives of people living with frequent constitutional turnover may have a Hobbesian quality as well, in the sense that constitutional endurance is associated with other goods such as wealth and levels of democracy. That conclusion is decidedly qualified, as we have also uncovered suggestive evidence of some real benefits of periodic constitutional replacement.

Like those of human beings, constitutional life spans are the product of the interaction of many different factors. Some of these we have characterized as environmental and, thus outside the control of constitutional actors. Others, however, depend on decisions taken by those subject to the constitution in the course of constitutional design and thereafter. Our account thus emphasizes the role of politics in constitutional formation and maintenance. We focus on particular features, namely flexibility, specificity, and inclusion, which can facilitate constitutional endurance.

THE STATUS OF INTERNATIONAL LAW IN THE DOMESTIC LEGAL SYSTEM

Introduction: The Constitutional and Legal System of Israel

It is impossible to discuss the role of international law in the jurisprudence of Israel's courts without some understanding of the country's constitutional and legal system. This introduction will be devoted to a short description of that system.

Israel's Declaration of Independence of 14 May 1948, stated that the new state, established as the state of the Jewish people, would have a formal constitution to be drawn up by an elected constituent assembly. This reflected the demands of the international community, which in UN General Assembly Resolution 181 on the partition of Palestine and the establishment there of two states – a Jewish state and an Arab state – had demanded that the states each have a formal constitution that would protect the rights of minorities. It did not, however, reflect a real commitment of the dominant political parties at the time of independence. A constituent assembly was indeed elected, but it transformed itself into the Knesset, Israel's Parliament, and the adoption of a formal constitution was postponed.

Under a Knesset resolution adopted in 1950, the formal constitution was to be drawn up in a piecemeal fashion. A series of Basic Laws were to be adopted, and when these were complete, they would become the country's formal constitution.

In a series of exchanges with James Madison, Thomas Jefferson argued that constitutions should be rewritten every generation, declaring famously that the “dead should not govern the living.” Jefferson derided those who “look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched.” He even proposed an expiration date – one of nineteen years, a figure he came to from studying a set of actuarial tables. Madison, having only recently shepherded the U.S. document through a sometimes contentious deliberation and ratification process, saw more merit in constitutional longevity. The two carried out their lively debate by mail in two very different contexts: revolutionary France, where Jefferson served as the inaugural U.S. ambassador, and the United States, where Madison was busy putting the new American charter into effect. Although those two countries seemed to be headed in a similar institutional direction as beacons of democracy in the late eighteenth century, their constitutional trajectory would be markedly different. Why is it that the inaugural constitution drafted in Philadelphia in 1789 has survived for 220 years and counting, whereas the French Constitution of 1791 lasted a little more than a year, to be followed in French history by fourteen more constitutions? Indeed, an old joke has it that a man goes into a library and asks for a copy of the French constitution, only to be turned away with the explanation that the library does not stock periodicals.

INTRODUCTION

In its decisions in the LaGrand and Avena cases, the International Court of Justice (hereinafter, ICJ or the Court) determined that Article 36 of the Vienna Convention on Consular Relations (VCCR) creates “individual rights” (as opposed to just rights of states) and that the United States has an obligation to provide an individual with meaningful access to U.S. courts to vindicate those rights. On the basis of those determinations, it might be thought that international law generally obligates a state to open its courts for private persons to vindicate rights or benefits that a treaty accords to them, whether or not the treaty expressly provides for such a remedy. Such a proposition, however, is overbroad and does not follow from a close reading of the ICJ's decisions or from a more general assessment of the international legal system. This chapter seeks to provide a more nuanced assessment of whether international law generally obligates states to open their national courts to persons in such situations.

Because of the equal sovereign status of states, it is generally accepted in international law that a state cannot and should not sue another state in national courts to vindicate a treaty right. Instead, states normally address the matter through resort to international negotiation or dispute settlement. By contrast, the invocation of treaties in national courts usually arises in the context of actions by or against nonstate actors or private parties (i.e., persons or companies).

If asked whether Canadian courts enforce treaties binding on the state at international law, most Canadian judges and lawyers would say no. Some might hesitate a little or qualify their answers. Many would not. They would explain that treaties are not part of Canadian law unless given domestic effect by legislation, and even then a court interpreting or applying such legislation is not, in fact, enforcing the treaty but simply giving effect to domestic law. There is much truth in this depiction of the Canadian approach. But there is also some generalization, even some simplification. While the orthodox account of the place of treaties in Canadian law retains much of its force today, it was elaborated at a time when Canada's engagement with international law and international law's engagement with the domestic laws of Canada and other states were more narrowly circumscribed. An accurate account of treaty enforcement in Canadian courts today must pay due regard to received doctrines while also considering the contemporary practices of Canada's judicial, legislative, and executive branches of government. Seen in this light, Canadian courts play an increasingly important role in enforcing the state's treaty obligations, though largely through such indirect means as interpretive presumptions and implementing legislation.

THE STATUS OF TREATIES IN CANADIAN LAW

The status of international treaties in Canadian law is complicated by Canada's constitutional structure, which blends written constitutional provisions with unwritten doctrines and interpretive practices.

INTRODUCTION

Officially, heart disease and cancer together accounted for roughly 50 percent of deaths in the United States in 2006. These attributions are physiological explanations of death in that they focus on the most proximate set of causes, such as the failure of a crucial bodily organ. But, physiology alone does not provide much guidance to those seeking to live healthier lives. Doctors and patients would prefer additional information about what behaviors or characteristics led to the disease. Relevant questions about these more remote causes might include: are individuals genetically predisposed to the disease? Do certain activities or environments lead to increased incidence of disease? What can one do to treat the disease? These questions move us beyond physiology and into the realm of epidemiology, and to theory that connects the immediate cause of death with observable aspects of life. That too is our progression as we move from physiology (Chapter 4) to epidemiology (this chapter).

Chapter Four developed a theory of constitutional bargaining, which describes the mechanics by which constitutions enter periods of crisis in which they are under threat of renegotiation and, potentially, replacement. Here, we specify the empirical implications of the theory and identify the observable factors that affect the risk of constitutional death. The motive is the same as that of the epidemiologist who seeks to test assumptions about the physiology of disease by positing and then testing hypotheses about which kinds of individuals are more or less at risk.