Self-executing vs. Non-self-executing Treaties

[Jonathan Miller]

For our purposes, the key sentence is the last one of the second 
paragraph, "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."  Just as a law may be 
judicially unenforceable (as a political question, no private right of 
action, or lack of a possible litigant with standing), but may bind the 
Executive, a non-self-executing treaty can as well.

Jonathan Miller

Scarberry, Mark wrote:

> 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 , 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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-- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784

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