Classifying International Agreements Under U.S. Law:The Beijing Platform as a Case Study

I. INTRODUCTION The 1995 United Nations Fourth World Conference on Women held in Beijing, China culminated in the creation of the Beijing Platform for Action, a document containing 361 paragraphs on the physical, political, sexual, and economic rights of women.l Under the auspices of the Beijing Platform for Action, the Clinton Administration announced that "[t)he United States committed to action in seven major areas" of broad domestic policy.2 Because the Beijing Platform's recommendations are not considered binding and since the Platform has never been ratified by the U.S. Senate, it is not an Article II treaty.3 These facts raise questions about what kind of legal force this declaration and others like it may exert on the U.S. government and where they fall in the hierarchy of federal law. This situation rekindles the debate on the limits of presidential power in foreign affairs that has waxed and waned throughout the twentieth century. Although this debate is not likely to be resolved in the foreseeable future, the reality is that new international agreements continue to appear on the scene of American law4-yet their potency is often questionable and their terms vague. The status and interpretation of such agreements are important questions facing courts and policymakers. This Comment will discuss how courts and policymakers should evaluate and classify international agreements, with special consideration given to international agreements sponsored by the United Nations. As a case study, this Comment will subject the Beijing Platform to an analytical process that measures it against each of five classifications recognized by prevailing constitutional doctrines. The goal of this process will be to see whether the Beijing Platform fits within one or more of the five classifications or whether it fits within none of them. It is hoped that this analytical process can be used as a yardstick by which other international agreements can be clearly evaluated under U.S. law. Part II of this Comment defines and explains five distinct categories under constitutional law whereby international agreements may be analytically classified. Part III examines the threshold question of what power the President possesses to negotiate international agreements. Part IV examines the Beijing Platform under the five classifications in an effort to determine what legal classification the Beijing Platform most closely resembles. This exercise is intended to show how other international agreements can be similarly analyzed under this process, thus clarifying the legal status of each agreement. Part V questions the impact of the Case Act5 on international agreements in general and on the Beijing Platform in particular. Part VI concludes by highlighting the need to more seriously consider the legal status of new types of international agreements like the Beijing Platform. II. FIVE CATEGORIES OF INTERNATIONAL AGREEMENTS RECOGNIZED UNDER CONSTITUTIONAL LAW Under the Constitution, the President of the United States is charged with representing the government of the United States in international affairs.6 One of the President's chief responsibilities is negotiating and entering into international agreements with foreign states. With respect to international agreements, early U.S. presidents were faced with a rather simple choice: whether or not to enter into any given treaty with a foreign state. However, as international law increased in sheer volume and complexity, international agreements evolved beyond the "treaty" category.' New types of international agreements were conceived to perform functions dictated by the rapidly changing face of international relations.8 With the birth of the United Nations, a new system of international relations developed that began to produce innovations in the system of international law.9 Despite these changes in the international system, the American legal system usually classifies international agreements in only five different ways: (a) self-executing international agreements, (b) non-self-executing international agreements, (c) Article II treaties, (d) congressional-executive agreements, and (e) sole executive agreements. …