State parties to a treaty are first and second parties.<
Signature of a treaty creates legal rights and duties between states as a matter of *international* law.
(horizontal effect)
U.S.A. ———— Germany
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U.S. Citizen German Citizen / National
(third parties)
There are several related separate questions, namely:
I. Is the treaty/constitution directly effective in national law?
A. If the treaty/constitution is directly effective in national law:
1) Does the treaty create rights between the state and the citizen? (Vertical direct effect)
2) Does the treaty create rights between citizens? (Horizontal direct effect)
If the treaty does not create directly effective rights and duties in national law,
or if the treaty does not create directly enforceable righs of private persons,
the treaty may nonetheless have indirect effect as a persuasive evidence of other positively binding rights. (Indirect effect)
Notice that whether it is a treaty or a constitution we are asking the same question! Does the public law instrument create binding rules? If it does, may individuals invoke the public law document to secure their private rights?
I.e. “Does Marbury have a right?” “If he has a right, can he enforce it?”
Dear Students,
I do expect you to read the entire U.S. constitution, on your own. It is not even ten pages, much briefer than the Grundgesetz.
Here are relevant excerpts for what we are doing.
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Article I, Section 8
The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common Defence
and general Welfare of the United States; but all Duties, Imposts and
Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
…
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
…
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
…
To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof.
Article II,
Section. 2.
The President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the several
States, when called into the actual Service of the United States…
He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur
Article VI
…
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
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Notice how it says the Constitution is supreme law? Which implies: international law is not superior to U.S. law, in the domestic U.S. legal system. In that sense the U.S. is dualist, though ratified treaties are directly effective and customary international law is also directly effective and with respect to those issues it is monist. Most countries are a mix of monism and dualism depending on the relevant international law.