minty:
The question is an interesting one, and I realize that I’m pushing a particular interpretation here. (The Find Law reference begins by noting the ambiguity in the wording of the Article – “questions arise where the Constitution lodges this power and where it lodges the power to interpret the contractual provisions of treaties” – which happened to be something I was wondering about myself [and which I think is pretty cool, since I’m not even a lawyer].)
Regardless of how one answers the question of who has the right to abrogate a treaty, however, the fact remains that the US has not abrogated its relationship to the UN. We’re still a member in good standing. As far as I can see, that should mean that the UN Charter has the same weight of law as the Constitution, technically. I’m aware that praxis is quite different of course. It would be political suicide to try to promote this argument domestically, and no sitting president would allow the Charter to place constraints on his actions which might get in the way of what he believed to be in the best interest of his nation.
Still, as far as I can see, the US is a member of the UN, it has signed the Charter, and that means it is constitutionally bound by it. As it so happens in this case, there’s no court to adjudicate breaches of the agreement; therefore it seems wrong to use the word “illegal” to refer to US actions abroad. That’s why I chose the word “unconstitutional” instead, but as a non-specialist I freely admit I might be splitting hairs on that point.
Apparently, Carter chose to interpret Article 2 of the Constitution as granting the executive branch the right to terminate treaties without approval from Congress or the Senate. Once he did so, however, the treaty was abrogated, and no longer had force. This involves a technical question about who has the right to break treaties – Congress, the Senate-President, or the President alone – but the difference here is that the treaty was broken, and afterwards no longer recognized by either the US or Taiwan.
This isn’t the case with the UN. Bush has not sought to formally abrogate our Charter commitments in any legal sense or leave the UN as a body. Rather, he seems to want to have it both ways. He claims the right of preemptive strike, even though the Charter, also the “supreme law of the land” there in the US, specifically forbids such an act. That has to make the policy Bush enunciates in his National Security Strategy unconstitutional, even if there’s no one to adjudicate it, really. It also has to make the attack on Iraq, an application of that strategy, unconstitutional as well.
If Bush had abrogated the UN Charter, or withdrawn from the UN, before initiating hostilities, the situation would be different. As is, he seems to want to have his cake and eat it too.
Or am I just completely scrambled on this point?