Treaty Making Process In United States And Self-Defense Under The United Nations Charter

Overview of Treaty Making Process in United States

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A treaty is a type of agreement under international law. Such an agreement is entered into by the actors in international law. The parties of an international agreement are either the sovereign states or the international organizations. It is a form of the agreement entered into by states that are legally binding on such states. A treaty may be bilateral when it is entered into between two parties and may also be between more than two parties and in such a case it is known as the multilateral treaty.

In the United States, the treaty-making process may be put under the following heads;

• Negotiations are authorised by the Secretary of State
• Negotiations are undertaken by the United States representatives
• Signing of treaty is authorized by the Secretary of State
• Then the agreement comes into effect
• The agreement is transmitted to the Congress by the President

The Secretary of State authorizes negotiations for the treaty, and the executive branch does negotiations. After the negotiations are concluded, the representatives of the parties concerned sign the agreement. After the parties have signed the agreement, the agreement is said to have been concluded. Once the agreement has been concluded, the President sends the same to the Senate accompanied by;

• Letter of transmittal
• Letter of Submittal issued by the Secretary of State
• Letter from Secretary of State outlining the background of the negotiations and a detailed explanation of the provisions of the agreement.

In case it is approved, the same is sent to the Senate Foreign Relations Committee for hearing and in case of approval Senate Executive Report is sent along with advisory recommendations and consent. This report includes the following;

• Explanatory material

When the said report receives the approval of full Senate, i.e., two-third votes, the same is sent back to the President. When the report is sent back to the President, it is accompanied with the resolution of consent and advice. The same is then sent by the President to the Secretary of State. After receipt of the above the Secretary of State prepares the instrument of ratification. The instrument of ratification is then sent back to the President, who signs the same, and the treaty is proclaimed. After the proclamation, the treaty is deposited with the nominated depository.

After the completion of the above steps, it may be said that a treaty has come into existence, and the United States is a party to the said treaty. The treaty may be said to have come into force.

The United Nations primarily aims to prohibit the members from using force. The United Nations Charter under Article 2(4) has laid down that the member states must refrain from using force or threatening to use force against political sovereignty or territorial veracity of any state or owing to such purposes that are inconsistent with the purposes of the United Nations. The said provision restricts the use of armed forces. The Charter does not lay down the level or the amount of force that is forbidden, thus even the trivial violation of limitations is forbidden.

Rules Governing Use of Force under the United Nations Charter

Article 51 only allows the usage of force for the purpose of  self-defence, in cases of  armed attacks unless appropriate measures have been taken by the Council. Certain requirements have been set out in the case of Caroline, which must be met as regards an attack. The foremost requirement is that the threat of attack must be imminent. Thus, as per this rule, usage of force in self-defence is permitted only when such usage is necessary, and also the extent of force to be used for self-defence ought to be proportionate.

Use of force is permitted only in connection with an armed attack whether ongoing or imminent. The intrinsic right to self-defence as recognised under Article 51 of the Charter forms an exclusion to the general rule laid down under Article2(4). The armed attack requires that the attacker must intend to attack. The case of Oil Platform may be cited in this regard. The ICJ laid down the necessity of this requirement while determining whether the actions of Iran were particularly intended towards the United States or whether Iran specifically intended to harm the vessels of the United States. This view of the ICJ is criticized as being against the rules of international law. An armed attack s actually an attack aimed by one State directed towards another. While rendering advisory opinion regarding eth legal consequences of constructing a wall in the occupied territory of Palestine the ICJ made observations to the effect that the right to self-defence arises only in cases of attack from an outside territory towards the defending state under Article 51 of the Charter.

Again as per the provisions of Article 51, force is permitted to be used for self defence only in case such force is necessary to end an attack. Thus, force may only be used when all available peaceful means of ending the attack have been exhausted, or none of such measures is available. The requirement of necessity is intrinsic to the law of self-defence.

A state is permitted to employ force in respect of self-defence only when the attack is imminent. The term imminent means, there is no choice of means or overwhelming. There must be a situation of irretrievable emergency.

The right to self-defence must be exercised to the extent it is proportional to the threat of imminent danger. Thus, only such amount of force must be used as is necessary to end the threat.

Requirements for Self-Defense

The General Assembly has also adopted various resolutions so as to foster the prevention of the use of force. These resolutions include the following;

• The Manila Declaration on the Peaceful Settlement of Disputes
• The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from Threat or Use of Force in International Relations
• The Declaration on the Prevention and Removal of Disputes and Situations which may Threaten International Peace and Security on the Role of the United Nations in this field

The Trans-Pacific Partnership Agreement (also referred to as the TPP) is an intended regional free trade agreement amongst certain countries of the Pacific Rim regarding various matters concerning economic policy. The participating countries are; United States, Chile, New Zealand, Brunei, Australia, Singapore, Malaysia, Peru, Vietnam, Japan, Mexico and Canada. The TPP is an extension of the Trans-Pacific Strategic Economic Partnership Agreement (also referred to as the TPSEP). Till date 19 rounds of negotiations regarding the TPP has been held. The provisions of the agreement have been kept secret; however, few provisions have been leaked. The TPP negotiations were initiated by the United States. The TPP aims the following;

• Removal of tariffs on services and goods
• It covers a wide range of services and goods, like telecommunication services, financial services and also food safety services.

• The TPP intends to boost economic growth as well as well as exports. This aspect would be beneficial for the participating countries as it would give rise to new jobs and prosperity. It is estimated that the agreement has the potential to add up to $223 billion per year to the income of the workers in the participating countries.
   
• The TPP provisions also intend to address the non-tariff barriers to international trade, like requirements for import licensing, etc.
   
• The TPP country would enable the service providers and suppliers of goods to supply services and products without establishing offices in all the participating countries.
   
• The TPP would ensure that the participating countries strictly follow labour laws and also discouragement of such products and services that are produced by forced labour.
   
• The TPP provisions intend to tackle the issues concerning illegal logging, illegal practices adopted regarding fishing, illegal logging, etc.
   
• The TPP seeks to implement rules that ensure fairness of procedure as regards enforcement of completion law.

• As far as the pharmaceutical industry is concerned, the TPP would cause great harm. It is expected that the agreement would reduce the accessibility of the member countries to generic medicines. It would provide an advantage to the large pharmaceutical companies. The costs of life-saving drugs would increase manifold as a consequence of the said trade agreement.
   
• It is expected that the TPP might succeed financial regulations.
   
• The TPP rules provide that all issues arising between the participating countries would be dealt with by an international authority known as investor-state dispute settlement process. No higher court would have any jurisdiction to such issues. The TPP would make it impossible to enforce local and national regulations.
   
• It is also feared that the TPP would lead to income inequality. It is aimed to only serve the interests of the wealthy.

References

Choi Cheol-young, ‘THE LEGISLATIVE PARTICIPATION IN TREATY-MAKING PROCESS: KOREA AND THE UNITED STATES’ (2009) 21 sungkyunkwanlawreview

Klabbers J, ‘Admission To The United Nations: Charter Article 4 And The Rise Of Universal Organization’ (2010) 7 International Organizations Law Review

Kunz J, ‘Individual And Collective Self-Defense In Article 51 Of The Charter Of The United Nations’ (1947) 41 The American Journal of International Law

Lim C, Elms D and Low P, The Trans-Pacific Partnership (Cambridge University Press 2012)

Nelson R, ‘Legislative Participation In The Treaty And Agreement Making Process’ (1960) 13 Political Research Quarterly

Peters K, ‘International Law And The Use Of Force’ (2004) 4 QUT Law Review

Petri P, Plummer M and Zhai F, The Trans-Pacific Partnership And Asia-Pacific Integration (Peterson Institute for International Economics 2012)

Solís M, ‘The Trans-Pacific Partnership: Can The United States Lead The Way In Asia-Pacific Integration?’ (2012) 27 Pacific Focus

‘The Use Of Nonviolent Coercion: A Study In Legality Under Article 2(4) Of The Charter Of The United Nations’ (1974) 122 University of Pennsylvania Law Review

Trachtman J, ‘Development Aspects Of A Trans-Pacific Partnership’ SSRN Electronic Journal

Wheeler E, ‘The Treaty-Making Power Of The Government Of The United States In Its International Aspect’ (1908) 17 The Yale Law Journal

Choi Cheol-young, ‘THE LEGISLATIVE PARTICIPATION IN TREATY-MAKING PROCESS: KOREA AND THE UNITED STATES’ (2009) 21 sungkyunkwanlawreview.

Everett P. Wheeler, ‘The Treaty-Making Power Of The Government Of The United States In Its International Aspect’ (1908) 17 The Yale Law Journal.

R. H. Nelson, ‘Legislative Participation In The Treaty And Agreement Making Process’ (1960) 13 Political Research Quarterly.

Jan Klabbers, ‘Admission To The United Nations: Charter Article 4 And The Rise Of Universal Organization’ (2010) 7 International Organizations Law Review.

Josef L. Kunz, ‘Individual And Collective Self-Defense In Article 51 Of The Charter Of The United Nations’ (1947) 41 The American Journal of International Law.

Everett P. Wheeler, ‘The Treaty-Making Power Of The Government Of The United States In Its International Aspect’ (1908) 17 The Yale Law Journal.

Katie Peters, ‘International Law And The Use Of Force’ (2004) 4 QUT Law Review.

Joel P. Trachtman, ‘Development Aspects Of A Trans-Pacific Partnership’ SSRN Electronic Journal.

C. L Lim, Deborah Kay Elms and Patrick Low, The Trans-Pacific Partnership (Cambridge University Press 2012).

Peter A Petri, Michael G Plummer and Fan Zhai, The Trans-Pacific Partnership And Asia-Pacific Integration (Peterson Institute for International Economics 2012).

Mireya Solís, ‘The Trans-Pacific Partnership: Can The United States Lead The Way In Asia-Pacific Integration?’ (2012) 27 Pacific Focus.