Signed, Sealed, Delivered, and ?: The Correlation between Policy Areas, Signing, and Legal Ratification of Organization of American States' Treaties by Member States
Alexandra R. Harrington
Global Institute for Health and Human Rights; Albany Law School
November 11, 2008
Richmond Journal of Global Law & Business, Vol. 6, No. 1, 2006
Like any organization, the Organization of American States' ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS's goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member states, these treaties are merely aspirational unless they are ratified by the federal legislatures of the member states. Although it could be assumed that a member state's signing of an OAS treaty is indicative of the member state administration's policy goals - and hence the policy goals of the member state as a whole - there is often a counter-intuitive negative correlation between the number and type of treaties signed by member states and those treaties which are ultimately ratified by the member state's federal legislature and adopted as binding law on the state. Even in the event of ratification, many member states feature federal constitutional provisions which subsume the primacy of treaty law to domestic law, regardless of when the law was promulgated or the policy choices behind it. Given the disconnect between OAS policy goals and member states' federal legislative choices, it can easily seem that there is little political or legal force behind treaties promulgated by the OAS. Examining OAS treaties promulgated during the period from post-World War II to the present, however, sheds light on the incidents of positive and negative signing to ratification correlations. This article conducts such an examination, focusing on several themes of treaty promulgation and signing to ratification correlation. One area of focus is the legal requirements for treaty signing and ratification under the OAS Charter, as well as the individual constitutional requirements for individual member states under their federal constitutions. A second area of focus is the basic signature to ratification correlations, including a discussion of those member states which elect to become treaty signatories, or indeed to ratify treaties, with express reservations made to some or most of the treaty terms. The author extrapolates that reservations are often used as a way to help ensure domestic ratification of treaty provisions, and points to the effectiveness of this political/legal strategy. A third area of focus is the type of treaty policy areas used and their past and future uses as indicators of treaty success within the OAS and the federal legislatures of the member states. The conclusion of this article uses the legal, political, and statistical information offered in the previous parts to go beyond a historical summary of OAS treaty policy and the actions of member states and to predict policy areas which will be maximally or minimally accepted by member states as areas in which domestic legal primacy will or will not be ceded to OAS community ideas and goals. This article argues that, however laudable many of the OAS policy goals, as expressed by treaty, have been, the OAS and its member states should consider focusing their calls for cooperation and treaty law ratification on several policy areas with proven records of signing to ratification correlative success.
Number of Pages in PDF File: 30
JEL Classification: K33
Date posted: November 12, 2008 ; Last revised: November 18, 2008
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