David Micah Stark (United States Air Force Academy) has posted On Self-Executing Treaties: Collective Self Defense and U.S. National Autonomy on SSRN. Here is the abstract:
This paper explores the nexus between U.S. domestic law and international legal obligations, particularly regarding the duties of collective defense. Examining both U.S. legal precedent and international treaties to determine the classification of a treaty and its subsequent requirements, this paper outlines the primary duties enshrined in treaty law. Of these duties, the two critical types of treaties, self-executing and non-self-executing, both hold independent obligations for the U.S. domestic legal system, one binding U.S. law and the other requiring additional enforcement, respectively. This paper will then examine the text of the North Atlantic Treaty, with particular attention paid to Article 5. It will ascertain whether the treaty constitutes a self-executing or non-self-executing treaty, answering the question of whether the Article 5 obligations for collective self-defense binds the U.S. government. In addition, this paper will explore the role of constitutional authority in the declaration of war and whether collective defence overrides the preset constitutional process for such a declaration. Ultimately determining that under the current test, Article 5 does bind the U.S. as a self-executing treaty, this paper critiques the existing test for determining self-executing treaties and proposes an alternative that better conforms to the spirit of international law, subsequently evaluating Article 5. Thus, this paper ultimately determines that despite domestic claims, the U.S. must defend NATO members in the face of attacks vis a vis the current and newly proposed test, which more readily complies with the spirit of international law.
Highly recommended.
