Self-executing vs. Non-self-executing Treaties

[Scarberry, Mark]

Here is an excerpt from a short piece by Rick Kirgis (Washington & Lee Univ.
School of Law) on the ASIL (American Society of International Law) web site:

 

Provisions in treaties and other international agreements are given effect
as law in domestic courts of the United States only if they are
"self-executing" or if they have been implemented by an act (such as an act
of Congress) having the effect of federal law. Courts in this country have
been reluctant to find such provisions self-executing, but on several
occasions they have found them so--sometimes simply by giving direct effect
to the provisions without expressly saying that they are self-executing.
There are varying formulations as to what tends to make a treaty provision
self-executing or non-self-executing, but within constitutional constraints
(such as the requirement that appropriations of money originate in the House
of Representatives) the primary consideration is the intent--or lack
thereof--that the provision become effective as judicially-enforceable
domestic law without implementing legislation. For the most part, the more
specific the provision is and the more it reads like an act of Congress, the
more likely it is to be treated as self-executing. A provision in an
international agreement may be self-executing in U. S. law even though it
would not be so in the law of the other party or parties to the agreement.
Moreover, some provisions in an agreement might be self-executing while
others in the same agreement are not.  

 All treaties are the law of the land, but only a self-executing treaty
would prevail in a domestic court over a prior, inconsistent act of
Congress. A non-self-executing treaty could not supersede a prior
inconsistent act of Congress in a U. S. court. A non-self-executing treaty
nevertheless would be the supreme law of the land in the sense that--as long
as the treaty is consistent with the Bill of Rights--the President could not
constitutionally ignore or contravene it.  

 Even if a treaty or other international agreement is non-self-executing, it
may have an indirect effect in U. S. courts. The courts' practice, mentioned
above, of interpreting acts of Congress as consistent with earlier
international agreements applies to earlier non-self-executing agreements as
well as to self-executing ones, since in either case the agreement is
binding internationally and courts are slow to place the United States in
breach of its international obligations. In addition, if state or local law
is inconsistent with an international agreement of the United States, the
courts will not allow the law to stand. The reason, if the international
agreement is a self-executing treaty, is that such a treaty has the same
effect in domestic courts as an act of Congress and therefore directly
supersedes any inconsistent state or local law. If the international
agreement is a non-self-executing treaty, it would not supersede
inconsistent state or local law in the same way a federal statute would, but
the courts nevertheless would not permit a state of the union to force the
United States to breach its international obligation to other countries
under the agreement. The state or local law would be struck down as an
interference with the federal government's power over foreign affairs.  

>From International Agreements and U.S. Law,
<http://www.asil.org/insights/insigh10.htm>
http://www.asil.org/insights/insigh10.htm , May 1997

 

Mark S. Scarberry

Pepperdine University School of Law

 

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
Sent: Wednesday, August 31, 2005 11:41 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Declaration of war

 

    Maybe I'm missing, but isn't the point of a non-self-executing treaty
that violation of the treaty is not itself illegal?  Congress could make
such a violation illegal, even if the question would be hard to litigate.
But my sense of the law related to non-self-executing treaties is that
federal officials do not have a domestic legal obligation to comply with
them or enforce them (which is why courts don't enforce them in cases that
come before them, even though courts are bound by the Supremacy Clause).  Am
I mistaken?

 

    Eugene

 

-----Original Message-----
From: Jonathan Miller [mailto:jmiller at swlaw.edu] 
Sent: Monday, August 29, 2005 4:35 PM
To: Volokh, Eugene
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Declaration of war

I have missed portions of this chain, but I think you are missing the fact
that a treaty may change the range of conduct that the President is free to
engage in just as a law can.  You might wish to keep the following in mind
from an international/constitutional law perspective:

1) The United States is bound by various treaties, including the UN Charter
and the Kellogg-Briand Pact of 1928, not to wage a war of aggression.
(Which I will leave undefined.)  And there is little doubt that
assassination of a foreign head of state is an act of war.

 2) While it is possible that the President has the constitutional authority
to denounce a treaty, I think a strong argument could be made that
deliberate violation of a treaty by the President without denouncing it
would be a violation of U.S. law.

If you accept these arguments, then there are circumstances where
assassination of a foreign leader violates U.S. law.  Sovereign immunity may
bar a lawsuit and the issue may be barred by political question doctrine,
but the obligation under the supremacy clause remains.  I don't think a
self-executing v. non-self-executing distinction is useful here, because
while portions of the UN Charter are self-executing, the issue of the
legality of a war of aggression is almost impossible to litigate anyway.  In
the assassination/war of aggression context, self-executing v.
non-self-executing does not tell you anything about the President's
authority vis a vis Congress. 

Presumably when the Senate consents to a treaty barring the President from
engaging in particular conduct, the President is no longer free to engage in
that conduct so long as the treaty is in force.  Whether the issue is
justiciable does not change the illegality of the conduct, and since the
self-executing/non-self-executing distinction is directed at the courts, and
not at the legal authority of the President vis a vis Congress, I don't
think that calling a treaty non-self-executing makes any difference to the
issue of the President's authority.       

Jonathan Miller



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