Volume 43 | Number 1 Fall 2007
Page 3 of 6
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II. The Status of Treaties as Domestic Law
In judicial decisions related to the war on terror, several district courts have held expressly that the Geneva Conventions are self-executing treaties.8 In contrast, one federal appellate court has held expressly that the POW Convention9 is not self-executing.10 Courts reach different conclusions on the self-execution question for two reasons. First, courts apply different definitions of the term “self-executing.” Second, they utilize different criteria to determine whether a treaty is self-executing.
Consider, first, the definitional problem. The Supreme Court has stated that, if a treaty is self-executing, “no domestic legislation is required to give [it] the force of law in the United States.”11 This statement reflects a primary law concept of self-execution: a self-executing treaty has the status of primary law within the U.S. legal system; a non-self-executing treaty lacks that status (in the absence of implementing legislation). In contrast, numerous courts have employed a remedial law concept of self-execution. Under this version of the doctrine, a non-self-executing treaty has the status of primary law, but individuals cannot obtain judicial remedies for violations of non-self-executing treaties unless Congress has enacted implementing legislation.12
For the sake of clarity, this essay will define the term “self-executing” to mean that a treaty has the status of primary law within the U.S. legal system. The term “non-self-executing” means that a treaty lacks the status of primary law in the absence of implementing legislation. If a treaty has the status of primary law, then it is the “Law of the Land” under the Supremacy Clause. However, the conclusion that a treaty is self-executing, in this sense, does not necessarily mean that an individual can obtain judicial remedies for treaty violations. Questions about judicial remedies are addressed separately in Part IV below.
Having defined the term “self-executing” to mean that a treaty has the status of law in the absence of implementing legislation, it is necessary to ask what criteria courts apply to decide whether a treaty is self-executing. Nationalists and transnationalists disagree about the appropriate criteria for determining whether a treaty is self-executing.
Transnationalists maintain that the question whether a treaty has the status of law in the absence of implementing legislation is a question of constitutional law. Transnationalists recognize that a treaty provision has no domestic legal effect in the absence of implementing legislation if it purports to accomplish something that, under our constitutional system, requires legislation approved by both Houses of Congress.13 The Supremacy Clause specifies that “all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.”14 However, if implementing legislation is constitutionally required to effectuate a treaty provision, that provision is not the “Law of the Land” because it is not made “under the Authority of the United States” within the meaning of the Supremacy Clause. On the other hand, transnationalists contend, if a treaty is duly ratified by the United States,15 and implementing legislation is not constitutionally required, the treaty has the status of law in the U.S. legal system because the Supremacy Clause says so.16
Nationalists claim that a treaty is not self-executing “if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation.”17 The authors of this language understood the phrase “effective as domestic law” to refer to the status of a treaty as primary law, not the availability of judicial remedies.”18 Thus, under the nationalist view, even if implementing legislation is not constitutionally required to effectuate a particular treaty provision, the treaty makers (i.e., the President and Senate, acting together under Article II) can preclude a treaty from having domestic legal status in the absence of implementing legislation by manifesting their intention to do so. Since a treaty that lacks domestic legal status cannot be considered the “supreme Law of the Land,” it is evident that the nationalist model is based on an unstated premise: the treaty makers have the constitutional power to opt out of the Supremacy Clause by “manifesting an intention” that a particular treaty “shall not become effective as domestic law.”19
This author has argued elsewhere that the unstated premise underlying the nationalist position is incorrect.20 It would be superfluous to repeat that argument here. Nevertheless, two points bear emphasis. First, courts routinely cite the Supreme Court decision in Foster v. Neilson21 as authority for the nationalist version of the self-execution doctrine. As this author has demonstrated previously, Foster provides no support whatsoever for the claim that the treaty makers have the constitutional power to opt out of the Supremacy Clause.22 Second, prior to 1965, when the American Law Institute published the Restatement (Second) of Foreign Relations Law,23 there was only one published lower court decision that provided doctrinal support for the nationalist version of non-self-execution doctrine.24 Since 1965, numerous lower courts have endorsed the nationalist version.25 However, the Supreme Court has never endorsed the proposition that the treaty makers have the constitutional power to opt out of the Supremacy Clause.26
In sum, transnationalists contend that the Constitution determines whether a treaty is self-executing. Under the transnationalist model, all duly ratified treaties have the status of primary law in the domestic legal system—with or without implementing legislation—except in cases where implementing legislation is constitutionally required. In contrast, nationalists maintain that the treaty makers have the constitutional power to opt out of the Supremacy Clause on a case-by-case basis. Under the nationalist model, a duly ratified treaty will not have any domestic legal effect in the absence of implementing legislation—even in cases where such legislation is not constitutionally required—if the treaty makers manifest an intention that the treaty shall not become effective as domestic law.