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Intent, Presumptions, and Non-Self-Executing Treaties

Published online by Cambridge University Press:  27 February 2017

Curtis A. Bradley
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Extract

Ever since the Supreme Court’s 1829 decision in Foster v. Neilson, it has been settled that some treaties ratified by the United States are “non-self-executing” and thus are not enforceable in U.S. courts unless implemented by Congress. Despite its pedigree, both the theory behind the self-execution doctrine and its mechanics have long befuddled courts and commentators. There is significant uncertainty, for example, concerning the materials that are relevant to the self-execution analysis, whose intent should count in determining self-executing status, the proper presumption that should be applied with respect to self-execution, and the domestic legal status of a non-self-executing treaty.

Type
Agora: Medellín
Information
American Journal of International Law , Volume 102 , Issue 3 , July 2008 , pp. 540 - 551
Copyright
Copyright © American Society of International Law 2008 

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Footnotes

*

Thanks to Sue Biniaz, Jack Goldsmith, Duncan Hollis, Nick Rosenkranz, David Sloss, Paul Stephan, Mark Weisburd, Ingrid Wuerth, and Ernie Young for helpful comments.

References

1 27 U.S. 253 (1829).

2 128 S.Ct. 1346 (2008).

3 27 U.S. at 315.

4 Id. at 314.

5 See United States v. Percheman, 32 U.S. 51, 88–89 (1833).

6 128 S.Ct. at 1358.

7 Id. The Court should have said that the Senate “gave its advice and consent” to the UN Charter, since the president, not the Senate, ratifies treaties for the United States.

8 Id. at 1359.

9 See, e.g., Robertson v. Gen. Elec. Co., 32 F.2d 495, 500 (4th Cir. 1929) (citing “language of futurity” as evidence of non-self-execution); Sei Fujii v. California, 242 P.2d 617,622 (Cal. 1952) (finding UN Charter provisions to be non-self-executing because, among other things, they were “framed as a promise of future action by the member nations”).

10 128 S.Ct. at 1373 (Stevens, J., concurring).

11 See, e.g., Frolovav. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985); United States v. Postal, 589 F.2d 862, 877 (5th Cir. 1979); People of Saipan v. U.S. Dep’t of Interior, 502 F.2d 90, 97 (9th Cir. 1974).

12 Postal, 589 F.2d at 877 (quoting Saipan, 502 F.2d at 97).

13 128 S.Ct. at 1382 (Breyer, J., dissenting).

14 Id. at 1363.

15 Id. at 1362.

16 Cf. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 168–69 (2004) (rejecting case-by-case approach to determining whether comity factors supported the application of U.S. antitrust law to independent foreign injury).

17 128 S.Ct. at 1356 (quoting Igartua-De la Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005)).

18 See, e.g., Postal, 589 F.2d at 876; Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976); Carlos Manuel Vázquez, The Separation of Powers as a Safeguard of Nationalism, 83 Notre Dame L. Rev. 1601 (2008).

19 Many of the self-execution factors that have been applied by the lower courts, however, have had little to do with the intent of the parties, and courts applying these factors have often looked heavily to indicia of U.S. intent. See David, H. Moore, An Emerging Uniformity for International Law , 75 Geo. Wash. L. Rev. 1, 12–14 (2006)Google Scholar.

20 Manuel, Carlos Vázquez, The Four Doctrines of Self-Executing Treaties , 89 AJIL 695, 708 (1995)Google Scholar; see also, e.g., Stefan, A. Riesenfeld, The Doctrine of Self Executing Treaties and U.S. v. Postal: Win at Any Price? 74 AJIL 892, 900–01 (1980)Google Scholar (“A treaty provision which by its terms and purpose is meant to stipulate the immediate and not merely progressive creation of rights, privileges, duties, and immunities cognizable in domestic courts and is capable of being applied by the courts without further concretization is self-executing by virtue of the constitutional mandate of Article VI of the U.S. Constitution.”). It is far from clear, however, that the Supremacy Clause’s reference to treaties, which was designed to increase the national government’s control over foreign affairs, should be construed as restricting the national government’s flexibility with respect to treaty enforcement. See Curtis, A. Bradley & L., Jack Goldsmith, Treaties, Human Rights, and Conditional Consent , 149 U. Pa. L. Rev. 399, 448–49 (2000).Google Scholar

21 Restatement (Third) of the Foreign Relations Law of the United States §111 cmt. h (1987).

22 See Duncan, B. Hollis, A Comparative Approach to Treaty Law and Practice , in National Treaty Law and Practice 1, 40–47 (2005).Google Scholar

23 128 S.Ct. at 1366 (emphasis added).

24 Id at 1364 (emphasis added).

25 Id. at 1367 (emphasis added) (quoting Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2687 (2006)).

26 See id. at 1361 n.9.

27 Id. at 1362.

28 Id. at 1369.

29 Even if the Senate thought that ICJ decisions would not have direct effect in U.S. courts, or that the United States would have the ability to use its veto to block Security Council enforcement of ICJ decisions, see id. at 1359 – 60, that would not necessarily mean that the Senate wanted to preclude the president from being able to give effect to ICJ decisions when he or she wished to do so.

30 Accord Vázquez, supra note 18.

31 128 S.Ct. at 1365. As it had done in Sanchez-Llamas v. Oregon, the Court also assumed for the sake of argument that the underlying treaty obligation at issue in the ICJ’s Avena decision—Article 36 of the Vienna Convention on Consular Relations—is self-executing. See id. at 1357 n.4; see also Vienna Convention on Consular Relations, Art. 36, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.

32 See, e.g., Igartua-De la Rosa v. United States, 417 F.3d 145,150 (1st Cir. 2005); Guaylupo-Moya v. Gonzales, 423 F.3d 121, 137 (2d Cir. 2005); Auguste v. Ridge, 395 F.3d 123, 132 & n.7 (3d Cir. 2005).

33 Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).

34 For an argument to this effect, see, for example, Manuel, Carlos Vázquez, Laughing at Treaties , 99 Colum. L. Rev. 2154, 2186–88 (1999).Google Scholar

35 See, e.g., Restatement (Third), supra note 21, §111 reporters’ n.5; Louis Henkin, Foreign Affairs and the United States Constitution 201 (2d ed. 1996); Vázquez, supra note 34.

36 U.S. Const. Art. VI, cl. 2 (emphasis added).

37 John, C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding , 99 Colum. L. Rev. 1955 (1999)Google Scholar; John, C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution , 99 Colum. L. Rev. 2218 (1999)Google Scholar [hereinafter Treaties and Public Lawmaking].

38 Yoo, Treaties and Public Lawmaking, supra note 37, at 2240.

39 See, e.g., Oona, A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States , 117 Yale L.J. 1236 (2008).Google Scholar

40 See Yoo, Treaties and Public Lawmaking, supra note 37, at 2254–57. Yoo argues on originalist grounds that all treaties that overlap with Congress’s Article I powers should be deemed non-self-executing. Recognizing, however, that this claim is inconsistent with judicial practice, Yoo argues in the alternative that there should at least be a presumption against self-execution.

41 128 S.Q. at 1366.

42 Id. at 1357 (quoting Head Money Cases, 112 U.S. 580, 598 (1884)).

43 Id. at 1366. Although not applied in the decision, the Court did state in a footnote that there is a presumption that “‘international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.’” Id. at 1357 n.3 (quoting Restatement (Third), supra note 21, §907 cmt. a).

44 Id. at 1365.

45 Id. at 1364.

46 See id. at 1361 (“The Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law.”) (emphasis added). The desirability of the Court’s treaty-by-treaty approach depends on considerations beyond the scope of this essay. If it were possible to generalize about the preferences of the Senate and the president with respect to self-execution, it might make sense for the Court to adopt a default rule generally consistent with those preferences, either in favor of or against self-execution. Even if it were not possible to make this generalization, it might make sense for the Court to adopt a default rule designed to prompt the Senate and the president to provide more information about their preferences when they approve treaties (in declarations of self-execution or non-self-execution, for example), although that would depend on the level of costs that such a rule would generate. For a discussion of the conditions under which courts should adopt such default rules in the context of statutes, see Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (2008).

47 128 S.Ct. at 1363–64.

48 Cf. Medellín, id. at 1364 (expressing concern that, under the petitioner’s interpretation of the relevant treaties, “there is nothing to prevent the ICJ from ordering state courts to annul criminal convictions and sentences, for any reason deemed sufficient by the ICJ”); Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2684 (2006) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)) (“If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution.”). The Court in Medellín made clear, however, that it was “not suggesting] that treaties can never afford binding domestic effect to international tribunal judgments.” 128 S.Ct. at 1364–65.

49 128 S.Ct. at 1388 (Breyer, J., dissenting).

50 See id. at 1363 (majority opinion) (observing that “neither Medellín nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts”); see also Mark, A. Weisburd, International Courts and American Courts , 21 Mich. J. Int’l L. 877, 886–87 (2000)Google Scholar (finding little support in other countries for giving ICJ decisions binding force in domestic courts).

51 See Coram, of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 937–38 (D.C. Cir. 1988).

52 See, e.g., David, Sloss, Ex parte Young and Federal Remedies for Human Rights Treaty Violations , 75 Wash. L. Rev. 1103 (2000)Google Scholar. There is currently a conflict in the circuits over whether section 1983 confers a cause of action for breaches of Article 36 of the Vienna Convention on Consular Relations, supra note 31. Compare Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) (allowing the cause of action), with De Los Santos Mora v. New York, 524 F.3d 183 (2d Cir. 2008) (not allowing the cause of action), and Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007) (same).

53 128 S.Ct. at 1356 n.2.

54 Id. at n.3.

55 See, e.g., id. at 1356 (“This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law.”) (emphasis added); id. at 1356 n.2 (“What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a ‘non-self-executing’ treaty does not by itself give rise to domestically enforceable federal law.”); id. at 1365 (“[T] he particular treaty obligations on which Medellín relies do not of their own force create domestic law.”).

56 See, e.g., id. at 1356 (“[N]ot all international law obligations automatically constitute binding federal law enforceable in United States courts.”) (emphasis added); id. (“The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.”) (emphasis at end added); id. at 1361 (“The pertinent international agreements, therefore, do not provide for implementation of ICJ judgments through direct enforcement in domestic courts. … “ ) (emphasis added).

57 See id. at 1358 (stating that Article 94 of the UN Charter is not self-executing because it is not such a directive).

58 See, e.g., Brief for Respondent, Medellín v. Texas at 14, 128 S.Ct. 1346 (2008) (No. 06-984) (footnote omitted), available at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-984_Respondent.pdf (“Accordingly, where a treaty does not ‘by its own force’ create law cognizable in domestic courts, the President and the Senate have made a decision that the treaty remains unenforceable in the courts without further congressional action. Thus, unless the text of the treaty reflects an agreement between the President and the Senate to create domestic law, no such law is made.”).

59 See Ted Cruz, Remarks, Federalist Society Online Debate, Medellín v. Texas, Part I: Self-Execution (Mar. 28, 2008), at <http://www.fed-soc.org/debates/dbtid.17/default.asp> (“Of course, all three treaties at issue (including Article 94 of the UN Charter) are ‘federal law,’ because all treaties are ‘federal law.’ That wasn’t the question before the Court. The question was whether the treaties were ‘self-executing,’ by which the Court meant judicially enforceable in U.S. courts.”).

60 See, e.g., Derek, Jinks & David, Sloss, Is the President Bound by the Geneva Conventions? 90 Cornell L. Rev. 97, 158 (2004)Google Scholar (arguing that “the President’s duty under the Take Care Clause includes a duty to execute treaties that are the law of the land”). The Take Care Clause of the Constitution provides that the president is obligated to take care that the “Laws” are faithfully executed. The government did not rely on that clause as a source of authority in Medellín, and the Court briefly dismissed the clause’s relevance at the end of its opinion, on the ground that the clause “allows the President to execute the laws, not make them,” and that “the Avena judgment is not domestic law.” 128 S.Ct. at 1372. The Court did not say there that non-self-executing treaties do not constitute “Laws” for purposes of the Take Care Clause.

61 See, e.g., Breard v. Greene, 523 U.S. 371, 376 (1998).

62 See Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872,880 (D.C. Cir. 2006) (Kavanaugh, J., concurring) (arguing that this canon should not apply to non-self-executing treaties, “which have no force as a matter of domestic law”). On the other hand, if the canon is designed to avoid unintended violations of international law, that purpose would apply as long as a treaty was binding on the United States under international law, regardless of whether it had domestic law status. For a discussion of the canon and its possible rationales, see A., Curtis Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law , 86 Geo. L.J. 479 (1998).Google Scholar

63 2004 ICJ Rep. 12 (Mar. 31), reprinted in 43 ILM 581 (2004).

64 Contrary to the dissent’s argument in Medellín, it is not possible to circumvent the issue of whether Article 94 of the UN Charter and related treaty provisions are self-executing by relying directly on the treaty obligation interpreted by the ICJ in Avena—that is, Article 36 of the Vienna Convention on Consular Relations, supra note 31. According to the dissent, the provisions of Article 36 could be construed “as if (between the parties and in respect to the 51 individuals at issue [in Avena]) they contain words that encapsulate the ICJ’s decision.” 128 S.Ct. at 1386 (Breyer, J., dissenting). However, even if Article 36 is self-executing (an issue left open by the Court, which assumed without deciding that Article 36 was self-executing and created an individually enforceable right, see id. at 1357 n.4), there would still need to be a rule that mandated acceptance of the ICJ’s interpretation of that article over the Supreme Court’s own interpretation (which, as we know from Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006), is contrary to the ICJ’s with respect to the issue of procedural default). To the extent that there is such a rule, it is in the treaty provisions that the Court found to be non-self-executing.

65 For an articulation of this view, see the postings by Nick Rosenkranz in the Federalist Society Online Debate, supra note 59. See also Restatement (Second) of the Foreign Relations Law of the United States §141 cmt. at (1965)Google Scholar (asserting that “a treaty has immediate domestic effect as the supreme law of the land under Article VI, Clause 2 of the Constitution only if it is self-executing”).

66 If an international instrument is not intended to create obligations under international law, it is not a “treaty,” see Anthony, Aust, Modern Treaty Law and Practice 20–21 (2d ed. 2007)Google Scholar, and thus would not constitute supreme law of the land under the Supremacy Clause. The more difficult question is whether, in light of the Supremacy Clause, a treaty that is intended to create international legal obligations can be ratified by the United States without having any domestic legal status.

67 128 S.Ct. at 1371 (emphasis added); see also id. at 1367 n.13 (suggesting that there might be situations in which the president could set aside state law to implement a non-self-executing treaty). A president might have the authority, for example, to implement non-self-executing treaties within the executive branch as long as such implemention does not violate any federal statute. Cf. Implementation of Human Rights Treaties, Exec. Order No. 13,107, 63 Fed. Reg. 68,991, 68, 991, 68, 993 (Dec. 15, 1998) (ordering executive departments to perform their functions “so as to respect and implement” obligations in non-self-executing human rights treaties, but also making clear that the order “does not supersede Federal statutes and does not impose any justiciable obligations on the executive branch”).

68 27 U.S. at 314; see also Henkin, supra note 35, at 203 (“Whether [a treaty] is self-executing or not, it is supreme law of the land. If it is not self-executing, Marshall said [in Foster], it is not ‘a rule for the Court’; he did not suggest that it is not law for the President or for Congress.”).

69 See Curtis, A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution , 55 Stan. L. Rev. 1557, 1588 n.147 (2003)Google Scholar (collecting cases).