Treaties and The Self-Execution Doctrine
This week was a rare one for the Supreme Court as it heard two major cases having to do with international law. As the week began, I was hopeful that the court might use one or both of these cases to resolve the questions around the doctrine of self-execution. Julien Ku at Opinio Juris noted the possibility at the beginning of the week, but thought it less likely. After reading about the oral arguments in both these cases, it does seem unlikely – however Justice Kennedy’s speech at the ASIL convention seems to have engendered renewed hope. On a sidenote, SCOTUSblog has been great recently — just go there and scroll for several great analyses.
For those that don’t know, the doctrine in a (very simplistic) nutshell is that if the Senate as it ratifies a treaty declares it non self-executing, it is not enforceable by the judiciary as federal law. Nonetheless, the United States is obligated to follow the treaty as international law. My issue with this is that it seems, on its face, to violate the Supremacy Clause, whereby any valid treaty becomes the law of the land. (for the extended counterargument, see John Yoo – 99 Colum. L. Rev. 2218)
I do not dispute this doctrine where to hold a treaty valid would interfere with the separation of powers (tariffs, appropriations, criminalization of behavior). Nor do I want to argue now for treaties creating a private right of action. But where a treaty does grant individual rights and a separate right of action exists – habeas or ATCA for example – isn’t the court required to uphold the treaty and interpret any prior statutes in light of the United States’ obligation under the treaty? On this note, see the United States’ first report to the U.N. Human Rights Committee after ratifying the ICCPR but declaring it non self-executing, wherein we said, “The US does not believe it necessary to adopt implementing legislation when domestic law already makes adequate provision for the requirements of the treaty … The basic rights and fundamental freedoms guaranteed by the CCPR … have long been protected as a matter of federal constitutional and statutory law.”
March 31st, 2006 at 1:59 pm
I had to write a paper on this to get out of law school, and I came to the same conclusion you have. The odd thing is that conservatives like Yoo have come up with horrible reasoning for the validity of non self execution, despite the supremacy clause, while liberals like Vasquez have argued for the “plain meaning” of the clause itself. The simple answer is for the president to put non self execution language into any treaty that he does not want to be self executing. However, simple is rarely easy in the law.
March 31st, 2006 at 5:12 pm
When I learned about this, I was greatly relieved. Treaties are generally written in very general language. For instance, the Supreme Court posted the Hamdan oral arguments, and quite a bit of that turned on the meaning of very general terms (’regularly constituted’ and ‘tribunal’ come to mind).
Since a treaty is nothing more than an agreement, it makes sense that Congress ought to write up the necessary laws to implement whatever was agreed to.
March 31st, 2006 at 8:56 pm
Much of Supreme Court jurisprudence involves interpreting ambiguous statutes passed by Congress. What would be the difference here? “If the structure of our government requires that executive action may sometimes be subject to the interpretations our judiciary makes of the treaty, then a court is required to honor the treaty, not the executive branch.” (Akbar, 89 Iowa L.R. 195)
But that is an aside to my main point. If a treaty has crystal clear language but is non self-executing — arent courts still obligated to still follow the treaty rule if an executive action collaterally challenged?
April 1st, 2006 at 2:23 am
wco — Im dorky enough to want to read that paper if youd be ok with it. My email is available on the top of the post if you would be amenable.