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The Death of Treaty Supremacy: An Invisible Constitutional Change. By David L. Sloss. New York, New York: Oxford University Press, 2016. Pp. xiv, 437. Index.
Published online by Cambridge University Press: 17 October 2018
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1 Thus, Articles 26 and 27 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, state that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” and “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” See also id. Art. 46(1) (“A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”).
2 Medellín v. Texas, 552 U.S. 491, 504 (2008).
3 “[A] ‘non-self-executing’ treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.” Id. at 505 n. 2. The point of a such a treaty, the Court said, is that it “addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.” Id. at 516 (quoting Foster v. Neilson, 2 Pet. 253, 307, 314 (1829); Whitney v. Robertson, 124 U.S. 190, 195 (1888)).
4 552 U.S. at 527.
5 Id. at 497.
6 See, e.g., Ramsey, Michael, Juris, Opinio Symposium on “The Death of Treaty Supremacy” by David Sloss, Originalism Blog (Feb. 20, 2017)Google Scholar, at http://originalismblog.typepad.com/the-originalism-blog/2017/02/symposium-on-the-death-of-treaty-supremacy-by-david-slossmichael-ramsey.html.
7 Sei Fujii v. State, 217 P.2d 481 (Cal. App. 2d 1950).
8 Fujii v. State, 242 P.2d 617, 620 (Cal. 1952).
9 Section 141 of the Restatement (Second), Foreign Relations Law of the United States (1965) [hereinafter Restatement (Second), Foreign Relations Law] stated that a non-self-executing treaty does not supersede inconsistent state law.
10 Citing Foster v. Neilson, 27 U.S. 253 (1829).
11 “The merger of self-execution and treaty supremacy served the political objectives of Bricker's opponents” (p. 254).
12 Referring in part to Carlos Vásquez, The Four Doctrines of Self-Executing Treaties, 89 AJIL 695 (1995).
13 Edwin Dickinson, Are the Liquor Treaties Self-Executing?, 20 AJIL 444 (1926).
14 This view was adopted by the U.S. Senate in its consideration of the International Covenant on Civil and Political Rights. See, e.g., Sen. Ex. Rept. 102-23, at 19 (Mar. 24, 1992), explaining that the “non-self-executing” declaration was intended to “clarify that the Covenant will not create a private cause of action in U.S. courts.” The Supreme Court referred to lower court decisions adopting this interpretation in Medellín, 552 U.S. at 506 n. 3.
15 552 U.S. at 505 n. 2.
16 Id. at 525. “When the President asserts the power to ‘enforce’ a non-self-executing treaty by unilaterally creating domestic law, he acts in conflict with the implicit understanding of the ratifying Senate.” Id. at 527.
17 “[T]he terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress… .” Id. at 526.
18 Restatement (Second), Foreign Relations Law, supra note 9, sec. 141(a)(1)–(2).
19 Restatement (Third), Foreign Relations Law, sec. 111 (1987).
20 Restatement (Fourth), Foreign Relations Law, sec. 310(1)–(2) (2018).
21 By contrast, Section 311(1) distinguishes the issue of private right of action from the question of self-execution, noting that “[a] treaty provision, even if it is self-executing, does not by virtue of that fact alone establish a private right of action or confer a right to seek particular remedies such as damages.” Id., sec. 311(1).
22 Reporters’ Note 13.
23 The debate itself was as much about isolationism, concern over post-war foreign entanglements, and congressional control of growing executive power in foreign affairs, as it was about using treaties to force changes in state law. See, e.g., Duane Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower's Political Leadership (1988); Dean, Arthur H., The Bricker Amendment and Authority over Foreign Affairs, 32 For. Aff. 1 (Oct. 1953)Google Scholar.
24 Indeed, one “Brickerite” criticism (sometimes heard even today) claims that changing the law through the treaty-power is itself “undemocratic” since it excludes the House of Representatives from the process.
25 Consider, for instance, the Senate debates over the UN Convention on the Rights of Persons with Disabilities. Convention on the Rights of Persons with Disabilities: Hearing Before U.S. Senate Committee on Foreign Relations, 113th Cong. (2013), at https://www.foreign.senate.gov/hearings/convention-on-the-rights-of-persons-with-disabilities.
26 Ware v. Hylton, 3 Dall. 199, 3 U.S. 199 (1796).
27 Foster, 27 U.S. 253.
28 On the question of democratic legitimacy, see Flaherty, Martin S., But Maybe Everything that Dies Someday Comes Back, 33 Const. Comment. 9 (2018)Google Scholar.
29 A point made in Abebe, Daniel & Posner, Eric, The Flaws of Foreign Affairs Legalism, 51 Va. J. Int'l L. 507, 543–44 (2011)Google Scholar.
30 See Convention on the Rights of the Child, Arts. 27, 29, 31, Nov. 20, 1989, 1577 UNTS 3.
31 One can only speculate whether the founders, if presented with such treaty language, would have welcomed it as directly “self-executing” in the fullest sense.
32 In this technical respect, at least, little reason exists to support the proposition that “if it's agreed to by the world community, it is by definition better than domestic law.”
33 Missouri v. Holland, 252 U.S. 416 (1920). Cf. Unites States v. Reed, 2017 WL 3208458, *13–14, 18 (D.D.C. July 27, 2017) (finding “no persuasive answer as to why Congress can criminalize quintessentially local conduct that occurs abroad when it lacks authority to criminalize that exact same conduct at home”; Congress cannot rely on the Necessary and Proper Clause to enact legislation absent a supporting enumerated power and which the treaty does not demand or authorize Congress to reach); cf. United States v. Park, 297 F. Supp. 3d 170, 181–82 (D.D.C. 2018) (rejecting the argument that a treaty could be interpreted to reach “a matter of domestic concern—the purely local, non-commercial sexual abuse of a minor—which is a topic on which the President arguably lacks authority to negotiate”).
34 See, e.g., Bond v. United States, 134 S. Ct. 2077 (2014).
35 Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, 2242 UNTS 350 (entered into force for the United States Nov. 4, 2003).
36 1963 Vienna Convention on Consular Relations, Apr. 24, 1963, 596 UNTS 261, 21 UST 77 (entered into force for the United States Nov. 4, 1969); Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, 1489 UNTS 3 (entered in force for the United States Jan. 1, 1988). Although Article 7 of the latter requires courts to provide an “autonomous interpretation” of the convention (i.e., with due regard to its international character and how foreign courts have interpreted a given provision), U.S. courts are often accused of reverting to more familiar domestic case law on a given point. See, e.g., Flechtner, Harry M. & Lookofsky, Joseph, Nominating Manfred Forberich: The Worst CISG Decision in 25 Years?, 9 Vindobona J. Int'l Com. L. & Arb. 199, 202 (2005)Google Scholar.
37 For more on this topic see Stewart, David P., Recent Trends in U.S. Treaty Implementation, in Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the Legal System of the United States 228 (Fox, Greg, Roth, Brad & Dubinsky, Paul eds., 2017)Google Scholar.
38 Cf. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín, 552 U.S. 491. Several multilaterals have recently been ratified on a self-executing basis, including the UN Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, Treaty Doc. 112-6 (May 17, 2012), S. Exec. Rpt. 114-15 (Sept. 14, 2016). See also the UN Convention on the Law Applicable to the Assignment of Receivables in International Trade, Treaty Doc. 114-7 (Feb. 10, 2016), favorably reported by the Senate Foreign Relations Committee on March 20, 2018. In both cases, however, existing law was deemed largely adequate to compliance, and the changes effected by “self-execution” were relatively minor.
39 This situation pointedly illustrates the wisdom of Sloss's concerns about the “not judicially enforceable” (NJE) version of the NSE doctrine (pp. 298–99).
40 For instance, the United States signed the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal in 1990 and the Senate gave its advice and consent to ratification in 1992 (Treaty Doc. 102-5), but to date the required implementing legislation has not been adopted. See U.S. Dept. of State, Basel Convention on Hazardous Wastes (Archive), at https://2001-2009.state.gov/g/oes/env/c18124.htm.
41 In fact, following Medellín, the Senate Foreign Relations Committee has incorporated the following statement by reference in their Committee reports addressing whether the treaty at issue is self-executing: “The committee believes it is of great importance that the United States complies with the treaty obligations it undertakes. In accordance with the Constitution, all treaties—whether self-executing or not—are the supreme law of the land, and the President shall take care that they be faithfully executed. In general, the committee does not recommend that the Senate give advice and consent to treaties unless it is satisfied that the United States will be able to implement them, either through implementing legislation, the exercise of relevant constitutional authorities, or through the direct application of the treaty itself in U.S. law. While situations may arise that were not contemplated when the treaty was concluded and ratified that raise questions about the authority of the United States to comply, the committee expects that such cases will be rare. Accordingly, in the committee's view, a strong presumption should exist against the conclusion in any particular case that the United States lacks the necessary authority in U.S. law to implement obligations it has assumed under treaties that have received the advice and consent of the Senate.” See, e.g., Sen. Exec. Rept. 110-12, Extradition Treaties with the European Union, at 10 (Sept. 11, 2008).
42 For one thing, the self-executing doctrine is not necessarily “all or nothing” in the sense that it is possible to designate some articles, or even parts of articles, as self-executing or not.
43 E.g., for the 1966 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, see Sen. Exec. Rpt. 102-23 (Mar. 24, 1992); for the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 UNTS 195, see Sen. Exec. Rpt. 103-29 (June 2, 1994).
44 Compare, for instance, the legislation at issue in Bond (the 1998 Chemical Weapons Convention Implementation Act of 1998, 112 Stat. 2681–856, giving effect to the International Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, opened for signature Jan. 13, 1993, 1974 UNTS 317, S. Treaty Doc. No. 103–21) with the International Child Abduction Remedies Act (ICARA), 42 U.S.C § 11601 note, implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, TIAS No. 11,670, 1343 UNTS 89.
45 See, for example, chapters 2 and 3 of the Federal Arbitration Act, 9 U.S.C. §§ 201–08 and 301–07, providing for direct enforcement in U.S. courts of the UN (New York) Convention on the Recognition and Enforcement of Arbitral Awards and the Inter-American (Panama) Convention on International Commercial Arbitration.
46 For example, the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance was implemented in part by provisions of the 2014 Preventing Sex Trafficking and Strengthening Families Act, Title III of Pub. L. 113-183, 128 Stat. 1919 (Sept. 29, 2014), but ratification was deferred until 2016, after all states had adopted conforming amendments to the 2008 Uniform Interstate Family Support Act (UIFSA), available at http://www.uniformlaws.org/Act.aspx?title=Interstate%20Family%20Support%20Act%20Amendments%20%282008%29.
47 See 22 U.S.C. § 9003, enacted as part of the statute implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Pub. L 113-150, Aug. 2, 2014, 128 Stat. 1809; that act also created a joint oversight mechanism by the executive branch and the Congress.