Position of NAGWA Treaty over US State Law

Under ‘North American Guest Worker Agreement’ (NAGWA) Treaty, United Stated commits to Mexico that none of its nationals admitted to the United States under the Guest Visa Program will be subject to capital punishment and the maximum sentence that can be given is ‘life in prison’. The consideration under question is whether the US domestic laws have power to override the provisions of the International Treaties entered in to and ratified by the Congress. The position in this respect is as under:

Under International Law a ‘Treaty’ is any international agreement that had been entered into by parties having international personality. However the agreement should have an international legal effect. ‘Treaty’ has a very restricted meaning under the US Constitutional law. In order to be legally effective the agreement should receive the ‘advice and consent’ of two thirds of the Senate and ratified by the president. Though there are different opinions about the President’s authority to do so, the President can enter in to a ‘Presidential’ or ‘Sole Executive’ agreement.

As per the position taken in the American Law Institute's Restatement Third of Foreign Relations Law of the United States, § 303, Comment e, Congressional Executive agreement may be used whenever a treaty could be and also a treaty may be used whenever a Congressional-Executive agreement could be. Provisions in treaties or other international agreements are given effect to as law in US domestic courts only when such agreements or treaties are self-executing or if they have been implemented by an Act having the effect of Federal Law. .

The primary consideration for determining whether an agreement or a treaty is self-executing is the intent or lack of the intent that the provisions of the treaty or agreement can be made effective as judicially-enforceable domestic law without implementing legislation. “A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not” Frederic L. Kirgis (1997)

If either the State law or Local law is inconsistent with an international agreement of the US, the courts will not allow the local law to supersede the provisions of the agreement or treaty. This is the case whether the agreement is a self-executing one or a non-self executing one. In the case of a self-executing treaty the position is such that the treaty is to be treated to have the same effect as that of a Congressional Act and therefore supersedes the inconstant domestic law. In the case of a non-self executing treaty it may not have the power to directly supersede the domestic laws.

But the courts would not give rise to a situation where such inconsistency in the domestic law makes United States to breach its international obligation to the other country under the treaty. The courts will rule to strike down the domestic law as interference to the exercise of the Federal Government’s authority in the matter of its foreign policies. From the above discussion on the position of the Treaties and US domestic laws the following position emerges in respect of the sentencing of the two accused criminals.

All the above discussions apply to the treaty entered into between United Sates and Mexico and the treaty becomes enforceable once the President signs it using his executive power and the treaty is passed as a Congressional-Executive Agreement officially committing the stand of the United States in respect of the capital punishment to the guest workers. Irrespective of whether the treaty entered into with Mexico is a self-executing one or not since the agreement is signed by the President as a Congressional-Executive agreement it gets the authority to supersede the domestic laws in either instances of whether it is self-executing or not.

Since the implementation part of the treaty is silent it may be argued that it is a non-self-executing agreement. Nevertheless since the treaty has got the assent of the President it represents the commitment of United States to Mexico that the guest workers will not be subjected to capital punishment and hence the courts will not permit the death sentences to the defendants.

Sarah from Law Aspect

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