Treaties Are Not Special Here

Treaties are no more sure to be right than statutes. A democracy needs to have laws that suit the people, so being able to get out of treaties is what the Founders had in mind when they put treaties on a par with statutes.

But treaties are confusing — a thicket. Some countries’ internal laws do make treaties superior, so their hands are tied. But ours aren’t. This infuriates countries like the Netherlands, France, Switzerland, Japan, and Belgium, which are utterly stuck., p.320.

[UPDATE April 2016: That was a bad link. Here is a better one:

“There is also significant variation among monist states concerning the hierarchical rank of treaties within the domestic legal order. In Austria, Egypt, Germany, and the United States, treaties are equivalent to statutes; they rank lower than the Constitution.79 In South Africa, treaties rank lower than statutes.80 In China, France, Japan, Mexico, and Poland, (at least some) treaties rank higher than statutes but lower than the Constitution.81 In the Netherlands, some treaties rank higher than the Constitution.82 In Chile, Russia and Switzerland, the hierarchical rank of treaties is contested, but it is undisputed that at least some treaties rank higher than statutes,83 and there is some authority for the proposition that some treaties have constitutional rank.84”]

So it irritates them when we use the Founders’ rule. Understandably.

Here is an article looking way back to the Founders, and pointing out that in recent years, “the United States has drawn international criticism for overriding bilateral tax treaty obligations through changes to its tax laws.”

So as not to rub it in, Congress uses the word “override” when the time comes.  Not violate, not breach, not abrogate.   See  Tax Treaty Overrides: A Qualified Defense of US Practice.




Author: patoglesby

From 1982 to 1990, I worked in tax policy for Committees of the United States Congress. In recent years, I was Adjunct Lecturer at UNC-Chapel Hill's Business School and then Adjunct Professor at its Law School.

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