The fast-paced changes in the global economy and the consequent
influence on the law of international trade, particularly after the conclusion
of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in
1994, have made anachronisms of commerce-related national law in several countries.
Such laws were the results of predominant GATT-inconsistent attitudes of a largely
protectionist character in a different era. As with old habits, old laws die
hard. Thus, throughout the world, adjustments to the new international legal
reality have become a necessary and painstaking process.

I would like to thank the University of Miami Inter-American
Law Review for allowing me to choose this topic for today´s presentation. I
have done so with the sole purpose of highlighting the magnitude of the obstacles
to be encountered in the legal framework of different relevant national laws
before a Free Trade Area of the Americas (FTAA) may be founded, as it must,
on the rule of law.

The disproportionate size of the U.S. economy in the
projected FTAA, as well as its history of political isolation and economic unilateralism
warrant an indepth study of the internal structure of U.S. law and their relation
to international law. .My presentation today will focus on the following: the
kinds of international agreements under U.S. law, the formation and implementation
of treaties under U.S. law, the Vienna Convention on the Law of Treaties (Convention)
[1] and U.S. law, and the U.S. trade legislation and Section 301 of the Trade
and Tariff Act. [2]

Under U.S. law, a distinction is made between treaties
and other international agreements. In contrast, both treaties and “executive
agreements” are considered treaties as that term is used in international law.
This distinction bears significant legal differences and makes relevant certain
practical consequences deriving domestically in the United States.

The United States makes the following classifications
of international agreements under U.S. law: 1) treaties; 2) congressional executive
agreements; and 3) presidential executive agreements. Pursuant to the U.S. Constitution,
treaties must be procured through the advice and consent of the Senate. The
second kind of international agreement is the congressional executive agreement.
These fall into two subcategorise: “previously” and “subsequently” authorized.
In previously authorized executive agreements, Congress enacts legislation delegating
to the President the authority to enter into such agreements [3]. In subsequently
authorized executive agreements, the President seeks authority from Congress
to accept his previously made agreement as a binding international commitment
of the United States. [4] The final kind, the presidential executive agreement,
requires that the President accept an agreement as binding on the United States
by virtue of his inherent power under the Constitution without any congressional
approval. [5]

Federal statutes and treaties are deemed to be of equal
rank: Thus, if a treaty and federal statute conflict with each other, courts
tend to construe as operative law the one made last in time. Both treaties and
federal statutes prevail over executive agreements in case of conflict. Additionally,
treaties prevail over state law. The U.S. Supreme Court in Missouri u. Holland
[6] held that valid treaties prevail over state law, even if a U.S. federal
statute on the same subject might be considered an unconstitutional interference
with state power in the absence of the treaty.

The President has the “[p)power, by and with the [a]advice
and [c]onsent of the Senate, to make [reaties, provided two-thirds of the Senators
present concur .. . [7] The treaty power is thus divided between the executive
branch and the legislative branch of the U.S. government. The Senate´s role
is to advise and to consent to a treaty; the President´s role is to make and
to ratify or accede to a treaty. The Senate can condition its consent on they,
requirement that the President amend the treat or that the President enter certain
reservations. The President may ratify accede to the treaty only with the Senate´s

The Senate Committee on Foreign Relations (Committee)
has exclusive jurisdiction over treaties and executive agreements. The Committee
prepares the resolution that gives the Senate´s consent to the ratification
of the treaty. The Senate may base its approval on conditions set forth in the
resolution. Conditions can be amendments, reservations, understandings, declarations,
and statements (or provisos). They may be offered at any time during the Committee´s
deliberations or during consideration in the full Senate prior to the vote on
the resolution.

A majority vote is required in the Committee and in the
Senate to incorporate a condition into the resolution. Adoption of the resolution
then requires a two-thirds vote in the Senate. The Senate has several options.
It can amend, make a reservation, issue a Senate “understanding” or “declaration”
regarding the general issue, or make “statements regarding related issues of
United States law.” [8]

After the Senate consents to a treaty, the President
is free to ratify it. Ratification is the formal process of declaring the willingness
of the state to be bound by a treaty. Ratification is usually confirmed in a
formal document called an “instrument of ratification.” The President must give
effect to all conditions imposed by the Senate for its consent. If the President
decides that, under international law, the treaty cannot be interpreted as the
Senate has required, he has no authority to ratify the treaty unless the instrument
of ratification is accompanied by express language conforming to the Senate´s
understanding. The instrument of ratification includes the title of the treaty,
the date of signature, the countries involved, and the languages used. The President
can also attach a statement of understanding or a declaration regarding the
Senate´s understanding of a treaty, even if the Senate did not offer a formal
reservation or understanding.

To be bound internationally, a country must exchange
or deposit its instrument of ratification. This international act of exchange
or deposit, specifically, allows the formal entry into force of a treaty which
usually occurs at a later specified date. Generally, bilateral treaties are
exchanged, while multilateral treaties are deposited. If treaties are to be
deposited, they usually state where and with whom.

When the necessary exchange or deposit has been completed
and the treaty has entered into force, the President issues a presidential proclamation
that the agreement is in force. The proclamation of a treaty is a national act
by which the text of a ratified treaty is publicised. After signing, the President
returns the proclamation with his signature to the Secretary of State, who will
publish it with the treaty text in United States Treaties and Other International
Agreements and register it with the United Nations Secretariat pursuant to the
United Nations Charter Article 102. Under Article 102, no party can invoke a
treaty agreement before any organ of the United Nations until it is registered
with the United Nations. [9]

The U.S. Constitution, Article VI, Clause 2, also known
as the Supremacy Clause, states:

This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary notwithstanding. [10]

Article III of the Constitution provides that cases arising
under treaties are within the judicial power of the United States [11]. The
framers of the U.S. Constitution adopted this language to minimize treaty violations
attributable to the United States: a goal which they hoped to advance through
empowering the courts to enforce treaties at the behest of affected individuals
without awaiting authorization from state or federal legislatures.

While the Supremacy Clause appears to be dispositive
of the effect that treaties are to have on domestic law, judicial decisions
since the signing of the Constitution have given the clause a myriad of interpretations.
Furthermore, although the Constitution mandates that treaties are to be regarded
as “law,” and therefore enforceable by the courts without prior domestic legislation,
this does not mean that treaties may be enforced by anyone at any time. The
principal controversy in interpreting the Supremacy Clause-and the extent to
which a treaty or certain treaty provisions may be operative under domestic
law-arises from the distinction made between “self executing” and “non-self
executing” treaties [12] despite the fact that the Clause itself makes no distinction
between treaties as such.

Whether or not a treaty or executive agreement is self
executing-sometimes referred to as “directly applicable”-is a matter of constant
interpretation in the American judicial system. In theory, the issue was decided
in 1829 in the case of Foster v. Neilson where Chief Justice John Marshall,
addressing the issue of a treaty´s domestic law effect, stated:

Our Constitution declared a treaty to be the law of the
land. It is, consequently, to be regarded in the courts of justice as equivalent
to an act of the legislature, whenever it operates of itself, without the aid
of any legislative provision. But when the terms of the stipulation import a
contract, when either of the parties engages to perform a particular act, the
treaty addressee itself to the political, not to the judicial department, and
the legislature must execute the contract before it can become a rule for the
court. [13]

Foster was an ejectment action in which the plaintiffs
claimed title to a tract of land in West Florida on the basis of a grant from
Spain. The treaty, by which sovereignty over the territory that included the
disputed land, was transferred to the United States, and provided in the English
text that the Spanish grants “shall be ratified and confirmed to the persons
in possession … ” [14]. The plaintiffs argued that the treaty confirmed their
title to the property and that the Court was, therefore, required to recognize
their title to the land. [15] The Supreme Court, however, held that it could
not recognize their title to the land until Congress enacted legislation confirming
the grants. [16]

The Court in Foster regarded the question of whether
the treaty operated of itself as a matter of treaty construction. The Court
focused on the treaty´s language, stating that had the treaty provided that
the grants were “hereby” confirmed, it would have confirmed the grants. [17]
However, the Court interpreted the English text of the treaty stating “shall
be ratified and confirmed” as contemplating a future act of ratification by
the United States. [18] As “shall be ratified and confirmed” was executory in
nature, the provision had to be executed before the Court would recognize the
grants. [19]

Thus, Foster created the first of many distinctions concerning
the enforcement and applicability of treaties domestically, even after the precepts
of the Supremacy Clause were accepted. Foster stands for the proposition that
the general rule established by the Supremacy Clause, under which treaties are
enforceable in the courts without prior legislation, is narrower than previously
thought in that there is a presumption that treaties are not necessarily self-executing
if they may be altered by the parties to the treaty itself. Specifically, a
treaty which otherwise might be self-executing pursuant to the Supremacy Clause,
may not be self-executing where the parties to the treaty–or, perhaps, even
the U.S. treaty negotiators alone-intended that the treaty´s objective be accomplished
through intervening acts of legislation.

Interestingly, United States v. Percheman [20], a subsequent
case stemming from the same treaty discussed in Foster, appeared at the time
to have reversed the Foster decision by interpreting the Supremacy Clause to
include a presumption that treaties are self-executing. In Percheman, the Supreme
Court was given a Spanish text of the treaty which provided, in pertinent part,
that grants “shall remain ratified and confirmed…” [21] The Percheman Court
held that the language did not “stipulate for some future legislative act,”
[22] and thus it could enforce the land grants without waiting for legislation
to provide for such. However, some 150 years after the Foster and Percheman
cases, Judge Bork in his concurring opinion in Tel-Oren u. Libyan Arab Republic
cited Foster for the proposition that “[t]reaties of the United States … do
not generally create rights that are privately enforceable in courts.” [23]
Lower federal courts have subsequently held that Foster may be interpreted to
create a presumption that U.S. treaties are not self executing, notwithstanding
the Percheman decision. [24]

The Restatement (Third) of the Foreign Relations Law
of the United States (Restatement) [25] summarizes very well the implications
and repercussions of international law and international agreements as law of
the United States:

1. International law and international agreements of the United
States are law of the United States and supreme over the law of the several
2. Cases arising under international law or international agreements of the
United States are within the judicial power of the United States and, subject
to Constitutional and statutory limitations and requirements of jurisdiction,
and are within the jurisdiction of the federal courts.
3. Courts in the United States are bound to give effect to international law
and to international agreements of the United States, except that a “non-self
executing” agreement will not be given effect as law in the absence of necessary
4. An international agreement of the United States is “non-self-executing”:

a. if the agreement manifests an intention that it shall not
become effective as domestic law without the enactment of implementing legislation;
b. if the Senate in giving consent to a treaty, or Congress by resolution, requires
implementing legislation; or
c. if implementing legislation is constitutionally required. [26]

As will be discussed in Part IV, intent of the parties
is one of the crucial factors considered by a U.S. court when determining whether
a treaty may be deemed self-executing, such that it may be enforced in a U.S.
court. Recent court decisions, however, have expanded upon the notion of “the
parties´ intent” to include one party´s intent as a basis for analysis of the
treaty. In an effort to obviate any doubt about a treaty´s status of being self
executing, U.S. treaty negotiators have recently added clauses to treaties through
“declarations” which have expressed their intent that the treaty is not self-executing
[27], and lower courts have even given conclusive weight to the aforementioned
unilateral American declarations of non-self-execution. [28] Other sources of
determination of “intent” accepted by American courts, in addition to the intent
of both parties to the international agreement, have included the intent of
the U.S. treaty negotiators, the President in transmitting it to the Senate
for its advice and consent, and even the intent of the Senate in giving its
advice and consent. [29]

The Restatement apparently accepts the practice discussed
above, stating:

In the absence of a special agreement, it is ordinarily
for the United States to decide how it will carry out its international obligations.
Accordingly, the intention of the United States determines whether an agreement
is to be self-executing in the United States or should await implementation
by legislation or appropriate executive or administrative action. If the international
agreement is silent as to its self–executing character and the intention of
the United States is unclear, account must be taken of any statement by the
President in concluding the agreement or in submitting it to the Senate for
consent or to the Congress as a whole for approval, and of any expression by
the Senate or by Congress in dealing with the agreement. [30]

In addition to distorting the principle established in
the Supremacy Clause to focus on the unilateral intent of the United States,
some lower federal courts have construed the “intent” issue to ask not whose
intent, but rather the intent about what. Accordingly, recent decisions have
interpreted Foster and Percheman in a manner which establishes that, in the
absence of evidence of an intent on the part of the drafters of the treaties
to make them enforceable in courts of law, they are thus non-self executing
and will not be enforceable in the courts without prior legislative implementation.

Regardless of the fact that it is entirely possible for
some provisions of a treaty to be self-executing while others are not, [32]
many courts have taken an all or nothing approach in determining whether a treaty
is self executing and, thus, judicially enforceable in the United States without
prior legislative implementation. For example, the U.S. Court of Appeals for
the Third Circuit found the treaty language, “[e]very country party to this
Convention undertakes to adopt, in accordance with its constitution,”the measures
necessary to insure the application of this Convention,” to reflect the parties´
intent that the treaty was not to be considered as self executing. [33]

In addition to questioning the “intent” of the parties
in determining whether or not a treaty is self executing, many courts have examined
other factors. These additional factors create a second hurdle that must be
overcome to enforce a treaty provision in the United States, even once it is
established that the treaty is self-executing or the necessary legislation has
in fact been implemented to give it effect domestically. Other factors which
courts will consider include whether the claim is “justifiable,” whether the
litigant has standing, and whether the litigant has a “right of action.” In
an attempt to simplify their analysis of these additional issues, many courts
have converted the issues into a formula composed of factors which they will
consider in determining whether a treaty is self-executing. These factors include
the following: the language of the agreement; [34] the circumstances surrounding
the execution of the agreement; [35] the class of the agreement (addressing
the group in which constitutional treaties are classified) [36]; the subject
matter of the agreement [37]; the history of the agreement [38]; the historical
purpose of the agreement [39]; and the parties´ own “practical construction”
of the treaty (i.e., their course of dealing) [40].

An example of the kind of issue related to justifiability
for which courts often will apply these factors is whether treaty provisions,
are meant to be obligatory on the parties or merely “precatory in nature, more
similar to recommended or wistful thoughts or wishes than direct commands. American
jurisprudence has taken great pains to demonstrate that courts will not oversee
actions for which there is no obligation to be imposed on the defendant. In
the context of treaties, U.S. courts, by applying justifiability analyses, [41]
are further expanding the concepts of non-self-execution first brought forth
in Foster. It should be noted that the determination of what is and is not considered
precatory language [42] and, thus, what constitutes a self-executing and judicially
enforceable treaty is generally considered to be a matter of U.S. municipal
constitutional law. [43]

A final issue which American courts will consider in
determining what effect to give treaties under U.S. law is whether private parties
may pursue an action in court to enforce a treat provision. This issue is often
linked to the issue of whether a party has standing to sue. Standing issues
under U.S. law, as applicable to treaties, have yet to be fully enunciated by
the courts. However, it is clear that there is no American doctrine which mandates
that private parties may only enforce treat provisions in court if the treaty
itself provides for a private right of action. [44] Currently, in bilateral
as well as plurilateral international trade agreements, there is the robust
tendency to allow private right of action. Such a development is due to the
lack of significant enforcement measures in international law and to the fact
that it is often through national courts that international law is enforced:
This is explicitly allowed by both the North American Free Trade Agreement (NAFTA)
as well as by the Common Market of the South (MERCOSUL). [45]

The Convention [46] attempts to codify international law
regarding treaties as well as, on a minor scale, to promote progressive developments
in the area, focusing on such issues as conclusion, entry into force, observance
and application, reservations, interpretation as well as invalidity, termination,
and suspension of the operation of treaties.

The provisions of the Convention are binding only upon
the parties to it. [47] Further, the provisions are applicable only to treaties
entered into subsequent to the Convention´s entry into force. However, as many
of its covenants were customary international law [48], or have become such,
they are applicable to all treaties, even if the states concerned are not parties
to the Convention. Indeed, those provisions of the Convention which are not
declaratory of customary international law may constitute presumptive evidence
of emerging rules of international law.

Even those areas that were inserted in the Convention
for progressive development rather than codification have, to a great extent,
passed into the general corpus of international law because of the sheer weight
of their incorporation in the Convention. The most striking of these is the
law on reservations, contained in Articles 19-23, which did not represent universal
practice at the time of its adoption. [49] The articles on modification, Articles
40-41, some of the articles on invalidity and termination, and the rules on
jus cogens are similar in this regard. [50] Article 26 of the Convention establishes
the rule pacta sunt servanda in the law of treaties and the principle of good
faith in international agreements [51]. Article 27 determines that a sovereign
state cannot invoke its internal law as an international legal justification
for failing to perform its obligations under a treaty. [52] This rule is to
be interpreted in conjunction with Article 46, which disallows a state from
claiming that its consent to be bound by a treaty has been expressed in violation
of its internal law unless that violation was manifest and concerned a rule
of its internal law of fundamental importance.

The United States, though a participant in and signatory
of the Convention, has not ratified the Convention. On November 21, 1971, the
President of the United States transmitted the treaty to the Senate for its
consent to ratification, but thus far the Senate has not acted upon it. In considering
whether to give their consent to the Convention, the Senate Foreign Relations
Committee sought to equate “treaties” as used in the Convention with “treaties”
as used in the U.S. Constitution. The Senate declared that every agreement that
is a “treaty” under the convention can be concluded as such by the United States
only by the process prescribed for “treaties´ under the Constitution. [53] The
Senate´s position was rejected by the executive branch. The Senate attempted
to uphold and reserve current American law which conflicts with many Articles
of the Convention. [54] Notably, the exception available under Article 46 would
not be applicable to the United States, as it is restricted to the manifest
violations objectively evident to any state conducting itself in the matter
in accordance with normal practice and in good faith.

Consequently, U.S. municipal law displays numerous areas
of inconsistency with international law concerning the domestic enforcement
of international agreements, an area which is of great relevance in today´s
world, particularly in connection with bilateral or plurilateral trade and investment
agreements. As a result of such inconsistencies, “the possibility arises that
a U.S. court could come to a conclusion contrary to that of international law,
and that such court decision would cause a breach of United States international
obligations.” [55] This situation of obstinate refusal to limitations on its
sovereignty by international law puts the United States in a singularly unique
position in the international community. In contrast, the United Kingdom, for
example, is a party to the Convention and, by the European Communities Act 1972,
has incorporated the European Communities treaties into its national law, both
of which represent an infringement of Parliament´s sovereignty. [56]

A. General Legal Background

Section 301 of the Trade and Tariff Act of 1974 [57]
authorizes the, U.S. Trade Representative (USTR) to investigate and sanction
countries whose trade practices are deemed “unfair” to U.S. interests. [58]
It contains both mandatory and discretionary provisions and specific timetables
for USTR action. This Section originated as a revision to Section 252 of the
Trade Expansion Act of 1962, [59] which allowed the President to restrict imports
from countries that “unjustifiably” or “unreasonably” restricted U.S. exports.
Section 301 also expanded the President´s authority to impose tariff and non
tariff import restrictions. [60]

A series of amendments to Section 301 have been concluded
with the intention of expanding its scope as well as creating an :arsenal of
retaliatory actions with a view to ensuring the respective removal of offending
foreign trade practices. Thus, the Trade Agreements Act of 1979 [61] amendments
to Section 301 set forth specific time frames for investigations and their final
resolution. The Trade Act of 1984 [62] provided further amendments, such as
requiring the preparation of an annual national trade estimate as well as providing
for self-initiation of Section 301 investigations by the USTR.

The most recent amendments, contained in the Omnibus
Trade and Competitiveness Act of 1988 [63], transfer final decision making authority
in Section 301 cases from the President to the USTR. Most significantly, the
1988 amendments require mandatory action when a foreign government´s policy
is deemed “inconsistent” with its obligations under a trade agreement with the
United States or is otherwise “unjustifiable.” “Unreasonable” and “discriminatory”
practices on the part of a foreign government warrant retaliatory action on
the part of the USTR. [64] The arsenal for action in the Trade Act of 1988 came
with the expansion of Section 301 to comprise three new categories: “Super 301,”
“Special 301,” and “Telecommunications 301,” all of which allowed the executive
office to make sanctions in respect of the provisions therein.

“Super 301” was intended to be a temporary measure in
1989 and 1990, but since became integrated into the pre-existing U.S. law, under
which the USTR was required to prepare, on schedule, a list of foreign trade
barriers, a priority list of countries and their alleged “unreasonable” practices,
a timetable for their removal, and in case of failure, a schedule for sanctions
on the part of the United States. “Special 301” is very much similar to “Super
301” in its methodology, but addressees specifically the field of intellectual
property. “Telecommunications 301,” similar to the other categories, is designed
to combat the “closed” nature of foreign telecommunications markets.

Among the sanctions available under Section 301 are the
abilities to “suspend, withdraw, or prevent the application of, or refrain from
proclaiming, benefits of trade agreement concessions” [65] and to impose duties
or other import restrictions on the goods or impose “fees or restrictions on
the services of such foreign country” for such time as the USTR shall deem appropriate.
[66] Broad discretionary powers are conferred upon the USTR not only for imposing
sanctions, but also to enter into “binding” agreements that commit such foreign
countries to: “a) eliminate or phase out, the act, policy, or practice; b) eliminate
any burden or restriction; or c) provide the United States with compensatory
trade benefits.” [67]

B. The Legality of Section 301 Under International Law

There are few doubts that the development of aggressive
unilateralism in the United States in the early sixties, evident in the enactment
of the Trade Expansion Act of 1962, is intimately linked to the declining competitiveness
of the U.S. economy on a global scale. The share of U.S. products in world exports
fell from seventeen percent in 1950 to eleven percent in 1980 [68]. According
to Jagdish Bhagwati, “the concerns with fairness of trade and with opening foreign
markets arose in the early 1980s and must be traced, in subtle ways … , to
the acceleration of import protectionism during the first term of the Reagan
Administration.” [69] Helen Milner noted that, in 1985: as a result of concern
over the huge U.S. trade deficits and mounting protectionist pressures, Congress
began action on a new trade bill… . Many in Congress felt that strong action
needed to be taken to reduce the trade deficit… . Responding to dogmatic pressures,
the administration announced its support for “fair trade,” not just free trade.

Subsequently, the U.S. administration compromised and
co-operated with Congress in writing a new bill that would become the Trade
Act of 1988.

Similarly, there is almost universal consensus that unilateral
action taken based on “Super 301” violates, in at least three different ways,
basic norms of the GATT. In the first place, any retaliation based on the imposition
of ad valorem tariffs applied selectively will violate the principle of the
Most Favored Nation (MFN) clause enshrined in Article 1 of the GATT. Second,
as a result, such tariffs would be established at a level higher than that set
in the Uruguay Round of the GATT, and thus, there would also be a violation
of Article 2. Third, the fact- that the United States would at the same time
be the self appointed prosecutor and jury of a foreign state in a tribunal not
sanctioned by international law would represent a violation of a vast array
of different norms.

During the Uruguay Round, actions under the “Super 301”
were often justified with the argument that the multilateral system of the GATT
did not allow for an efficient system of dispute resolution. [71] This view
also substantiated U.S. initiatives during the Uruguay Round to modify dispute
resolution within the GATT, which were endorsed by the international community,
in the hope that the increasingly juridical nature of the system would enhance
the rule of law in international trade [72]. As a matter of fact, the increased
respect for the rule of law in the Uruguay Round treaties was hailed by the
then Director-General of the GATT as one of the respective three major achievements.

Even with the upgraded dispute resolution system resulting
from the Uruguay Round in place under the World Trade Organization (WTO) modeled
very much along U.S. suggestions, the United States has not ceased to resort
to unilateral practices illegal under international law. According to a study
prepared by the U.S. National Association of Manufacturers, in just a four year
period (1993-1996), sixty-one U.S. laws and executive actions, targeting thirty-five
countries, were enacted authorizing , unilateral economic sanctions for foreign
policy purposes [74]. In addition, the United States continues to have a poor
record implementing adverse GATT-WTO dispute resolution decisions. [75]

In the United States, there are two thresholds to consider
when analyzing the legal status of international agreements and the respective
enforcement thereof under domestic law. The first threshold is whether the international
agreement is considered a “treaty´ or a “presidential executive agreement.”
Treaties are deemed to have the same hierarchy of federal laws, overruling the
previous ones and being overruled by subsequent ones. Presidential executive
agreements are subordinated to federal law. Both treaties and presidential executive
agreements are deemed to be of higher rank than state laws. The second threshold
is whether the international agreement is “self-executing” or “non-self executing.”
U.S. courts will not recognize “non-self-executing” international agreements
as local law and will deny the respective enforceability thereof In the absence
of very specific language as to the self-executing nature of an international
agreement, any reference to “words of futurity” may be construed to signify
that the treaty in question is not to be considered self-executing.

U.S. legislators, diplomats, and trade negotiators always
have present in mind the basic thresholds referred to above during the negotiation,
execution, and ratification of any international agreement. This attitude derives
from an ingrained reluctance to place international law over municipal law and
may be found even in the case of treaties that, under domestic law, would revoke
previous conflicting federal laws. This same reluctance has consistently been
shared by members of the American judiciary. An example of this situation pertains
to the U.S. internal legislation with respect to the implementation of the treaties
of the Uruguay Round, which establishes in Section 102(a) that “no provision
of any of the Uruguay Round Agreements, nor the application of any such provision
to any person or circumstance, that is inconsistent with any law of the United
States shall have effect.” [76] In addition, nothing in the legislation is to
be constructed as limiting any authority conferred under, an law of the United
States including Section 301 of the Trade Act of 1974. Similarly, in connection
with NAFTA, the apposite United States implementing legislation Section 102(a)[77]
reads that “no provision of the Agreement nor the application of any such provision
to any person or circunstance which is inconsistent with any law of the United
States shall have effect. [78] These examples partly explain why the U.S. Senate
never ratified the Convention, as it establishes in Article 27 that a sovereign
state may not invoke the provisional of its internal law as justification for
its failure to perform a treaty. Such covenants inserted in the United States,
NAFTA, Uruguay Round implementing legislation are flagrantly contrary to international
law in general and specifically to numerous provisions of the Convention, including
Article 26 which establishes that “every treaty in force is binding upon the
parties to it and must be performed by them in good faith.” [78] This situation
compromises the position of the United States a bona fide party to any international
agreement and is further aggravated by the attempts of the United States to
enforce its domestic laws abroad [79] while eschewing acceptance of international
law. Accordingly, recent recent reports by the WTO Secretariat on the United
States for purpose of the trade policy review mechanism, indicated that the
U.S. multi-track approach-multilateral, bilateral, and unilateral-to international
trade policy can be a source of tension within the multilateral system. [80]

In today´s world, there is a trenchant tendency in international
law to allow private rights of action in bilateral as well as in plurilateral
trade and investment agreements. In such cases, domestic implementation of international
law is essential for the enforcement of basic rights and assurance of fair competition.
In a free trade area, business cannot operate efficiently in an environment
that does not permit such enforcement. Therefore, the discussed expedient, albeit
illegal, attitude of the United States allows nationals of that country to enforce
such international agreements abroad while preventing nationals of other countries
from enforcing the same in U.S. courts against U.S. nationals.

The current legislative and judicial profile of the United
States domestic legal implementation of international law and international
agreements substantially compromises not only the country´s credibility as a
responsible member of the international community, but also the prospects of
having it as a bona fide trade partner. For business in general, as outlined
by the National Association of Manufacturers [81], “foreign companies and governments
are understandably reluctant to enter into any long-term commercial relationship
with U.S. companies if the threat of sanctions looms.” From 1993 to 1996, all
countries representing the major economies of the Americas, including Brazil,
Canada, and Mexico among others, have been subject to U.S. unilateral economic
sanctions inconsistent with the GATT, in spite of the new dispute resolution
mechanism of the WTO and a similar credible system within NAFTA. Historically,
Brazil, in particular, has been, together with Japan and India, a favorite target
of such unilateral measures, even with respect to the notorious balance of payment
crisis of the 1980s, as well as a victim of United States non-compliance with
adverse panel decisions. Thus, it should be hardly surprising that public opinion
in Brazil as well as the government itself are wary of a continued unilateral
regime of the United States which is inconsistent with international law within
the proposed FTAA.