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“We’re on the Air!” Michael Flynn, Sergey Kislyak and the Paradoxes of Diplomatic Immunities

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University. From 2002-2003 Dr. Helal was a member of the Cabinet of the Secretary-General of the Arab League, and from 2005-2009 he served on the Cabinet of the Minister of Foreign Affairs of Egypt, and served as the Legal Counsel to the Deputy Foreign Minister of Egypt during 2016.]

I’d like to start this blogpost with a story. Weeks into my diplomatic career, my turn came up to serve as the late-night duty officer. This is usually a junior diplomat who stays late into the evening to man-the-fort and to call the senior leadership if you’re the hapless sap misfortunate enough to have a crisis break out on your watch. Luckily, nothing of consequence happened that evening. I did, however, get a call from an Ambassador serving in an important Middle Eastern country. He wanted to know whether we at HQ had received an encrypted cable that his embassy had sent earlier that day. I had not seen the cable, so instead of asking him for its serial number to check if it had been received, I asked: “What’s the cable about?” The Ambassador chuckled and answered: “I can’t tell you that. We’re on the Air!”

It is an open secret that the movements, communications, and conversations of diplomats are monitored by the intelligence services of states to which they are accredited. This universally recognized truth came to glaring light when it was revealed that US intelligence agencies intercepted calls between Russia’s Ambassador to the US Sergey Kislyak and incoming National Security Advisor Lt. Gen. Michael Flynn. During their conversations, it appears that General Flynn assured Ambassador Kislyak that US sanctions against Russia would be relaxed after the inauguration of President Trump. The exposure of these contacts added to the steady drip, drip, drip of reports and rumors about Russia’s role in the 2016 US Presidential Election and the nature of relations between Moscow and the-then Trump campaign and the-now Trump Administration. Naturally, what is now called “The Russian Connection” has unleashed a political maelstrom in Washington. Democrats and the mainstream media are calling for investigations either by Congress or a special prosecutor, Republicans are demanding inquiries into the sources of these leaks, and, operating in his own Kafkaesque alt-reality, a petulant President has tweeted that the whole affair is just Fake News!

Legal and political commentary has evaluated virtually every aspect of this unfolding story. Reporters are asking Who Knew What, and When about Flynn’s conversations with his Russian interlocutor, concerns are being expressed about the competence and effectiveness of the White House Counsel, and even the possibility that General Flynn’s civil rights were violated because his calls were intercepted has been discussed. Conspicuously absent from the conversation, however, is international law. Virtually no one is considering whether tapping Ambassador Kislyak’s calls constituted an internationally wrongful act by the United States.

Spying on Diplomats … Legibus Solutus?

The absence of international law from the conversation is probably attributable to the assumption held by many scholars (here, here, here) that international law has nothing to say about intelligence operations. Spooks, spies, and intelligence agencies, in other words, are claimed to be legibus solutus – operating beyond the pale of international law. Accordingly, it is argued that international law does not prohibit spying on foreign diplomats (here, p. 312-323). While I can see the potential logic of claims that international law does not generally proscribe spying, I am less sympathetic to contentions that international law does not specifically prohibit spying on foreign diplomats by governments to which they are accredited.

This prohibition is enshrined in the Vienna Convention on Diplomatic Relations (VCDR). True, the VCDR does not explicitly prohibit spying on diplomats. It does not, for instance, say: “receiving states shall not to engage in acts of intelligence gathering or surveillance against the heads of missions or diplomatic agents of the sending states.” Nonetheless, the combined effect of Articles 22, 24, 27, and 30 of the VCDR is to prohibit intelligence gathering by receiving states against the diplomats of sending states, if these acts of intelligence gathering compromise the secrecy of diplomatic correspondences, impair the freedom of communication, or encroach on the inviolability of Embassies or diplomatic residences. (For a similar view, see: here, p.196-197).

Moreover, these protections accorded to diplomats are unequivocal. Like the blanket immunity of diplomats from the civil and criminal jurisdiction of receiving states, the VCDR does not admit any limitations or qualifiers on the inviolability of either official diplomatic communications or correspondences, and diplomatic premises. The policy purpose underlying these principles is that secrecy is essential to the conduct of diplomacy. Indeed, Article 3(1)(d) of the VCDR recognizes that one of the functions of diplomats is to report to their governments on the “conditions and developments in the receiving state.” Unless diplomatic agents are permitted to freely execute their functions, and to communicate secretly on these matters with each other and with their governments, diplomats will become nothing but slightly glamorous news reporters.

Has Diplomatic Immunity Against Spying Fallen into Desuetude?

A potential counter-argument is that my reading of the VCDR is merely tedious textualism that does not recognize the ubiquity of spying against diplomats. But that is exactly why I began this blogpost with a story. I, and anyone with experience in this field, understand that diplomats operate under the constant gaze of the intelligence agencies of receiving states. This reality might suggest that even if the VCDR prohibits spying on diplomats, that principle has fallen into desuetude because it is honored more in the breach than in the observance. (On desuetude, see here). This is essentially how the US Government convinced Congress to enact the 1978 Foreign Intelligence Surveillance Act (FISA) despite concerns that it might violate the VCDR (See here, p. 545).

While I recognize the merit of this line of argumentation, ultimately, I find it unconvincing. The notion that repeated violations of an established rule of international law could eventually lead to overturning that rule has been deployed, unsuccessfully, on numerous occasions. For instance, some scholars (here) claim that the prohibition on the use of force in Article 2(4) of the UN Charter has been invalidated due to repeated state practice that breaches that rule. This claim has been thoroughly refuted by the International Court of Justice (ICJ), which opined that what matters is not only whether state practice violates an established rule of international law, but whether states justify their practice on a rule or a right that contradicts the established rule (Nicaragua ¶ 207). In the case of Article 2(4) of the UN Charter, practice that justifies the use of force on the basis of previously existing exceptions to Article 2(4) serves to confirm, not overturn, the rule.

The same can be said about the inviolability of diplomatic correspondences and communications. First, with the possible exception of the position of the US Government during the 1978 debates on the FISA, states have rarely officially claimed a legal right to spy on diplomats. If anything, almost all states either deny allegations of conducting surveillance against foreign diplomats or refuse to comment on these allegations when they surface in news reports or in leaked documents. Second, the fact that states, including the United States and Russia, have vociferously objected whenever their own diplomats were spied on, or when the inviolability of their diplomatic missions was breached, or when their diplomatic communications were compromised confirms the continued validity of the VCDR rules. Third, international condemnation of espionage against United Nations officials and the Permanent Missions of UN member states further evidences widespread opinio juris in support of the prohibition of spying on diplomats. (See Eileen Denza’s authoritative commentary on the VCDR p. 178-188)

Even with the Digital Revolution, which has led many to declare the death of privacy and secrecy, states continue to invoke the protections enshrined in the VCDR. This is probably attributable to two reasons. First, despite the vast technological leaps in electronic surveillance, there are still lots of secrets, including not only raw information, but also analysis and future plans, that are inaccessible and that governments legitimately want to hide. The norms of diplomatic immunity contribute, even if only little compared to counter-intelligence techniques, to protecting these state secrets. Second, the VCDR is an expression of the most vaunted concept in international law: state sovereignty. Encroaching on diplomatic immunity does not only undermine the ability of diplomats to do their jobs, but also affronts the sovereignty and dignity of states. As the ICJ noted in its condemnation of the barbaric assault on the US Embassy in the Tehran Hostages Case: “There is no more fundamental prerequisite for the conduct of relations between States … than the inviolability of diplomatic envoys and embassies.” (¶ 91)

This all leads to the conclusion that intercepting the telephonic, electronic, encrypted, or other communications of the Russian Ambassador, or any other diplomatic agents, accredited to the United States by US intelligence constitutes an internationally wrongful act. Furthermore, as I’m sure Opinio Juris readers are well aware, domestic legislation or administrative orders, such as FISA and Executive Order 12333, which we are told (here) provide the statutory authorization for intelligence gathering against foreign diplomats, may not be invoked to justify a violation of international legal obligations.

Counter-Espionage and the Paradox of Diplomatic Immunity:

On 29 December 2016, in response to reports of Russian interference in the presidential election, President Obama expelled 35 Russian diplomats accredited to the United States on allegations of engaging in espionage. This aspect of the Trump-Russia saga demonstrates another one of those unspoken truths about diplomacy. Almost all countries, including the United States (see here and here), exploit the cover of diplomatic immunity to engage in intelligence gathering, either through HUMINT (Human Intelligence) by spies posing as diplomats, or through SIGINT (Signals Intelligence) by using embassies as listening posts.

It is unquestionable that international law recognizes the right of all states to protect themselves against spying by other states, including by acts of espionage by foreign diplomats. It is equally undisputed that the VCDR prohibits spying by diplomats, and allows receiving states to declare those diplomats who allegedly engage in espionage persona non grata.

Herein lays the paradox. To uncover espionage by foreign diplomats, receiving states will almost always have to subject those diplomats to some form of surveillance, potentially in violation of the VCDR. In other words, while the VCDR prohibits spying by diplomats and requires them to respect the domestic law of the receiving state, the VCDR fails to provide states with the adequate tools with which to enforce that prohibition and to protect against intelligence gathering by diplomats. This, I suspect, is part of the reason why states have tolerated the practice of surveillance of diplomats. States recognize and uphold the general principles of the inviolability and immunity of diplomatic agents, while expecting and tolerating a degree of encroachment on the confidentiality of diplomatic communications as a necessary antidote to the insatiable temptation to practice humanity’s second oldest profession: spying.

Conclusion:

As they have for centuries, diplomats will undoubtedly continue to execute their indispensible functions with the knowledge that their every move is being monitored by the ever-watchful eye of intelligence services. As former French Foreign Minister Bernard Kouchner, a colorful character who added flare to the sometimes drab business of diplomacy, said: “Everyone is listening to everyone else.”

Introducing the Second Multi-Blog Series on the Updated Geneva Conventions Commentaries

by Jessica Dorsey

Last March, the ICRC released an updated Commentary on the First Geneva Convention of 1949 (GCI), the first installment of six new Commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977 to the 21st century.

The updated Commentaries serve as an interpretive compass emerging from more than 60 years of application and interpretation of the Geneva Conventions. In order to bring to light the significance of the updated Commentary on the First Geneva Convention, several blogs are hosting a joint series focusing on particular GCI provisions. This blog series is co-hosted by Intercross, Humanitarian Law & Policy, and Opinio Juris.

The first episode was launched last summer and featured posts by Jean-Marie Henckaerts on Locating the Geneva Conventions Commentaries in the International Legal Landscape, Sean D. Murphy on The Role of the ICRC Commentaries in Understanding International Humanitarian Law and Kevin Jon Heller on First Thoughts from Academia on the Updated GCI Commentary

Recently, we launched the second episode, focusing on the arming of military medical personnel, units and transports. To what extent can military medical personnel, units and transports be armed? When permitted, can they be armed with weaponry heavier than the so-called “light” individual weapons? When would this constitute an “act harmful to the enemy”? Which implications does arming them have in terms of the entitlement to display the distinctive emblem of the Conventions?

To kick off the series, Heather Brandon, Advocacy Counsel of National Security for Human Rights First, posted first at Intercross discussing restricting medical personnel, units, and transports to ‘light individual weapons.’

Posts in this Series:

This page will be regularly updated with past and upcoming posts. 

Welcome to the Blogosphere, A Guy in the World!

by Kevin Jon Heller

The blog is a one-man show, and that man is Charles Blanchard — former General Counsel of both the Air Force and the United States Army, current partner at Arnold & Porter in DC. The blog will focus on national-security law, which Chuck “define[s] pretty broadly — to include topics such as climate change and immigration as well as defense policy.” Recent posts include an excellent primer on emoluments, a discussion of the practical difficulties of stopping North Korean aggression, and a debunking of the right-wing meme that the Ninth Circuit is reversed 80% of the time.

I don’t always agree with Chuck — which is not terribly surprising — but I always find his writing intelligent and insightful. I hope his blog has a long, happy life.

You can find A Guy in the World here.

The Treaty Supremacy Rule: Is a Partial Revival Possible?

by David Sloss

I would like to thank Opinio Juris for hosting this symposium. Additionally, I would like to thank the distinguished contributors for their thoughtful and provocative posts. In this final post of the symposium, I offer a few brief responses to the contributors.

Carmen Gonzalez hopes that activists will deploy the treaty supremacy rule in conjunction with the Convention on Elimination of Racial Discrimination (CERD) to promote the cause of environmental justice. I share her concern about the disparate impact of environmental damage on Latinos and African Americans. However, I am skeptical whether the treaty supremacy rule provides a useful tool for promoting environmental justice in the near term.

The essays by Paul Dubinsky and John Coyle help explain my skepticism. Professor Dubinsky argues that the transformation of the treaty supremacy rule proceeded in parallel with changes in the judicial approach to treaty interpretation. His analysis suggests that changes in treaty interpretation may impose an additional hurdle for environmental justice plaintiffs who attempt to bring claims based on CERD. Professor Coyle notes that transformation of the treaty supremacy rule is part of a larger trend in which U.S. courts have become increasingly reluctant to apply treaties. I largely agree with Professor Coyle, but with one caveat. As I have explained in prior work, U.S. courts are reluctant to apply treaties to resolve public law disputes, but they are usually quite content to apply treaties to resolve private law disputes.

John Parry challenges my historical account of self-execution doctrine. In fact, I owe a significant intellectual debt to Professor Parry because I relied heavily on his historical scholarship to inform my research, especially for the period before 1830. Although we do not agree on everything, I think we agree on much of the early history. Regardless, his post invites me to comment on modern controversies—an invitation I accept by responding to some of the other commentators in the remainder of this post.

David Stewart acknowledges that the modern treaty supremacy rule has strayed far from the original understanding, but defends the modern rule as a reasonable adaptation to changes in the nature of treaties. As a descriptive matter, I agree that changes in the nature of treaty making help explain the transformation of the treaty supremacy rule. From a normative perspective, though, I have three primary concerns. First, modern self-execution doctrine encourages courts to apply a “fictitious intent” test to resolve treaty-related disputes. Under this approach, judges simply invent a fictitious “intent of the treaty makers” that has no basis in the actual intentions of the people who drafted and negotiated the treaty. Then courts apply this fictitious intent as the controlling rule of decision in the case. Such a doctrine is impossible to defend on any principled basis.

Second, from the perspective of constitutional design, the Founders were wise to create a system in which state governments could not violate the nation’s international treaty obligations without authorization from Congress. Insofar as the modern treaty supremacy rule permits state governments to breach U.S. treaty obligations, contrary to the wishes of the federal political branches, it is at odds with basic principles of constitutional design. Granted, a person who is deeply committed to states’ rights and indifferent to the goal of preserving order in international affairs might prefer such a constitutional design. However, Professor Stewart is certainly not in that camp, nor were the Founders.

Third, one modern permutation of self-execution doctrine—the “no judicial enforcement” doctrine—allows state governments to impose sanctions on a criminal defendant in violation of supreme federal (treaty) law, without addressing the merits of defendant’s treaty-based defense. The Fourteenth Amendment Due Process Clause guarantees every state criminal defendant an opportunity to be heard on the merits of a federal defense to state criminal charges. Therefore, as I contend in Chapter 14, the “no judicial enforcement” version of self-execution doctrine is probably unconstitutional because, in some cases, it denies due process of law to criminal defendants.

Tom Lee contends that the “ship has sailed too far” to permit a revival of the treaty supremacy rule in its original form. I agree with Professor Lee up to a point, but I think a partial revival may be possible. In particular, one could imagine a modern version of the treaty supremacy rule that differs markedly from the original understanding, but that minimizes the three problems highlighted above: the fictitious intent test, unauthorized treaty violations by the states, and denial of the due process rights of criminal defendants. The American Law Institute’s Restatement (Fourth) of Foreign Relations Law may partially alleviate the problem of unauthorized treaty violations by the states. Unfortunately, though, the most recent draft of the Restatement perpetuates the fictitious intent test and exacerbates the tension between self-execution doctrine and the Due Process Clause.

Finally, and perhaps most provocatively, Peggy McGuinness contends that the transformation of the treaty supremacy rule may have facilitated U.S. engagement with the international human rights regime. If I understand correctly, her argument proceeds in two steps. First, strict application of the traditional treaty supremacy rule could have given Senator Bricker the support he needed to drive home a constitutional amendment. Second, the Bricker Amendment would have barred U.S. participation in the then-emerging international human rights regime.

Arguments based on “what if” scenarios are necessarily speculative. Even so, successful passage of the Bricker Amendment might have facilitated U.S. engagement with the international human rights regime. As I explain in Chapters 10 and 11, several people introduced different versions of the proposed Bricker Amendment. One version would have converted the United States into a strict dualist system—like Canada or the United Kingdom—where all treaties are constitutionally non-self-executing. Despite their dualist constitutions, Canada and the U.K. are both more human rights friendly than the United States. Several factors contribute to their human rights friendliness. However, the fact that political leaders know that courts will not apply human rights treaties as self-executing domestic law may be one factor that supports their willingness to join human rights treaties that the U.S. refuses to ratify. Thus, paradoxically, successful passage of the Bricker Amendment might have eased the path to ratification of human rights treaties by eliminating what Bricker’s supporters called the “Trojan horse” element of treaty ratification—i.e., the threat that courts might apply treaties in unexpected ways as self-executing federal law.

Dubinsky on The Death of Treaty Supremacy

by Paul Dubinsky

[Paul Dubinsky is an Associate Professor of Law at Wayne State University School of Law.This is the eighth post in our symposium this week on treaty supremacy.]

For those who have followed David Sloss’s work over the years, The Death of Treaty Supremacy is an eagerly anticipated arrival years in the making, and it does not disappoint. One finds in this volume, brought together, strands of his earlier work on judicial deference to executive branch treaty interpretation, the domestication of international human rights law, and “schizophrenic” treaty law. The book also contains David’s trademark close analysis of the treaty interpretation cases of the early Supreme Court. All is presented as part of a broad synthesis.

The book argues that the doctrine of treaty supremacy – the principle that all treaties enjoy a hierarchically superior position to state law – was a “bedrock principle” of U.S. constitutional law for much of U.S. history. As Carmen Gonzalez puts it: “from the earliest days of the Republic until World War II, all treaties ratified by the United States were understood to supersede conflicting state laws pursuant to the treaty supremacy rule.” From that launching point, the book’s main thesis is that the doctrine of treaty supremacy has died a quiet death in the years since World War II. There was no state funeral, just a meandering series of barely audible eulogies. The path from treaty supremacy to the “supremacy of some treaties” was cleared by key developments in international law generally and treaty law in particular: the birth of human rights law, the growth of multilateral treaties, the proliferation of international institutions, and the increasingly broad and deep scope of international law.

Others in this symposium have discussed the book’s value in terms of its historical analysis, constitutional interpretation, and its practical value to human rights litigators. As this on-line symposium draws to a close, it is important to note that the Death of Treaty Supremacy opens up new avenues for research. For example, David Stewart observes that “the story of our Constitution is largely one of judicial adaptation and reinterpretation in light of changed circumstances.” In response to the book’s “problem [] with the lack of political transparency” of the process of interring treaty supremacy, Stewart argues that “it is hard to see how a plebiscite or process of formal amendment with respect to the treaty power might actually work.”

David’s observation usefully puts the book’s main claim in perspective. Is The Death of Treaty Supremacy primarily a book about treaty law? About constitutional interpretation? About legal transformation more generally? When we read it a second time, should our frame of reference be Bruce Ackerman’s work on transformations? Or other slow processes of erosion and transformation that have taken place in U.S. treaty law?

If the latter of these, consider treaty interpretation. For approximately a century, it was a bedrock principle of American treaty interpretation that treaties were a kind of contract. The result was that for a long stretch of time, key principles and techniques of the private law of contracts were applied to the interpretation of treaties. Several of the opinions in Ware v. Hylton proceed on this assumption. Ware and its progeny thus established judicial independence in interpreting the nation’s treaties, and did so in part by employing common law contract adjudication as a point of reference. That judicial independence takes the form of the search for mutual intent in bilateral treaties, attention to non-English treaty texts, the emergence via Justice Story of “liberal interpretation,” and notable instances in which the Supreme Court rejected interpretations of treaties that were offered by the U.S. administration in power.

The late 19th century brought the gradual and quiet arrival of a different analogy for treaty interpretation: the treaty as statute. With methods of statutory construction finding their way into the interpretation of the nation’s international agreements came important changes: more deference to the Executive Branch, more reliance on unilateral sources such as U.S. legislative history, less attentiveness to the non-English text of the agreement, less of a willingness of U.S. courts to consider what other states party sought from the treaty, and fewer instances in which foreign claims of breach by the United States were vindicated in U.S. courts. In recent years, other versions of treaty interpretation (e.g., Chevron deference) ask us to go even further from the assumptions held by the Founding generation.

As with the death of treaty supremacy, the prolonged decline of a genuinely applied contract model of treaty interpretation has taken place largely without transparency or clearly articulated justification. Unlike treaty supremacy, the Founder’s assumptions and intentions were not recorded in an express textual provision in the Constitution, though there is abundant evidence that they saw treaties in contractual terms and, of course, they treated some of their assumptions as so natural and obvious as not to require express statement.

So then, if the death of treaty supremacy was a silent and invisible constitutional amendment, can the same be said about the changes in how generations of Americans interpret treaties? And if either one is cause from the perspective of transparency and legitimacy, what about when the two processes occur simultaneously?

For more on the transformation of U.S. treaty interpretation, see the soon-to-be-released co-authored volume, Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the Legal System of the United States, by Cambridge University Press, co-edited by Greg Fox, Brad Roth, and Paul Dubinsky.

Treaty Supremacy, International Legal Process, and the Origins of the International Human Rights System

by Peggy McGuinness

[This is the seventh post in our symposium this week on treaty supremacy.]

I share with the preceding commentators’ praise of David Sloss’s book, The Death of Treaty Supremacy, and agree with their assessment that it is an important work of legal history and of doctrinal clarity on the question of treaty supremacy as a feature of federalism and the doctrine of NSE as a feature of separation of powers.   I would even go so far as to argue that David’s book undermines his own sub-title, in that his careful archival research and close reading of the cases and commentary reveal that this change was not-so-invisible after all.

My comments focus on David’s retelling of the efforts to apply the UN Charter – the foundational instrument in the post-WW II international human rights system – as a legal source in civil rights cases in the U.S. David’s thorough research on the 1952 Fujii case is worth reading on its own, especially for those who teach or write about international human rights. Fujii was not only one of the first cases in U.S. law to attempt to draw on the newly birthed international human rights instruments (the Charter and the Universal Declaration of Human Rights, adopted as a non-binding Gen. Assembly resolution) as a source of law, it was one of the first cases anywhere in the world. His argument that the shift toward adoption of the NSE doctrine to shield states from treaty supremacy created a significant change in original constitutional understandings is a convincing one. And it is certainly true that the outcome in Fujii was pushed by some of the least admirable elements of the U.S. legal profession in the mid 20th Century, among them leaders of the ABA who stood as staunch supporters of Jim Crow. But I would argue that, from the perspective of interpretation and application of the UN Charter, as adopted and understood by the U.S. and the other founders of the UN, the case was not only correctly decided, but by refusing to read the Charter as creating self-executing and judicially enforceable rights, actually worked to allow the growth of a universal international human rights system that not only includes the U.S. (despite our sense of constitutional exceptionalism), but many other states that would be reluctant to join a system that had at its core a vertical system of supranational enforcement.

In his excellent history of the case, David points out that respected international law scholars served as advocates on each side of the case – those that would uphold the discriminatory California Land Act, and those that would strike it down as inconsistent with U.S. obligations under the UN Charter. Manley O. Hudson was on the states’ rights side of the argument, whereas Oscar Shachter (together with constitutional law scholar Quincy Wright) argued that conflicting state law had to yield to the human rights provisions of the Charter. Apart from the human rights purposes expressed in the preamble, the debate was over the effect to be given Art. 56, which states “All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Art. 55.”   Art. 55, states, in part, that the “United Nations shall promote….(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Manley’s view, articulated in a short commentary in AJIL in 1950, was that the term “promote” in Art. 55 “does not create any specific obligation for a Member of the Organization.” Further, the pledge of Art. 56 is one limited to “cooperation with the United Nations,” and the “extent and form of cooperation are to be determined by the government of each Member.” The best evidence that the drafters of the Charter did not intend to create direct rules enforceable in courts of the members states is what came after the Charter: (1) the creation of the UN HR Commission , which drafted the UDHR as a non-binding normative declaration; and (2) the process underway by 1950 to draft the Human Rights Covenant (which alter morphs into the ICCPR and ICESCR, which would flesh out in even more detail than the UDHR the content of the rights obligations, including mechanisms for enforcement at the international and, potentially, domestic level.

It is interesting to see how radical Shachter’s view – of direct judicial enforceability of Charter norms — seems today. The most recent Commentary on the Charter of the UN (3rd Edition, Simma, Khan, Nolte, Paulu) reflects 60-plus years of practice that, more or less, tracks Hudson’s view on the text. And, remarkably, the commentary to Art. 55 (c) is a recitation of the successes and failures of the UN human rights organs and the UN treaty-based human rights system.

From a pragmatic internationalist perspective the Fujii doctrine has, in David’s own words (p. 218), “helped mediate the tension between human rights and states’ rights” in ways that enabled the Eisenhower administration to hold back the Bricker Amendment, and in so doing help save the international human rights system at the time of its fragile birth. This constitutional change in treaty supremacy has, in fact, facilitated the ability of every U.S. administration that followed Eisenhower’s to participate in and influence the creation of mature international human rights system that we see today. This constitutional shift has permitted the ebb and flow of U.S. participation in the human rights system, on terms that have reflected the ongoing ambivalence the U.S. polity has toward the internationalization of rights. Keeping in mind that “hypocrisy is the tribute vice pays to virtue,” this ebb and flow has been disappointing to those who would wish to see fuller integration of international human rights law in U.S. law. But this flexibility seems to me to reflect, rather than diminish, democratic transparency and accountability for U.S. human rights policies abroad and practices at home. Perhaps more important, it allowed the U.S. to push forward as a leader within the complex process of creating and institutionalizing an international human rights system, one that contains two methods of claim enforcement: traditional interstate enforcement of norms and, where states consent, application of supranational rules by courts.

It’s quite possible that I am falling into the trap of 20/20 hindsight and reading the early history of IHR, despite its failed promise, as inevitable progress. But it might be worth conducting this thought experiment: What would have happened to US engagement with the UN and the burgeoning civil rights movement in the US, if the Fujii court had applied the UN Charter as the basis to invalidate the California Land Law? Perhaps it is better to serve as what Louis Henkin called a “flying buttress” to the cathedral of human rights, than to have abandoned the church altogether.

The Modern Doctrine(s) of Non-Self-Executing Treaties

by John F. Coyle

[John Coyle is an Associate Professor at the University of North Carolina School of Law. This is the sixth post in our symposium this week on treaty supremacy.]

In his wonderful new book, The Death of Treaty Supremacy, David Sloss provides a highly readable and immaculately researched account of treaty supremacy doctrine. Although the book offers original insights into a great many topics—including the process of invisible constitutional change—I found its detailed taxonomy of the various versions of the doctrine of non-self-executing treaties to be particularly compelling.

Whereas previous scholars have identified four doctrines of self-executing treaties, Sloss argues that there are, in fact, eight distinct versions of this doctrine: (1) the constitutional doctrine, (2) the condition precedent doctrine, (3) the justiciability doctrine, (4) the intent doctrine, (5) the Fujii doctrine, (6) the private right of action doctrine, (7) the no private enforcement doctrine, and (8) the no judicial enforcement doctrine. In this post, I first provide a brief overview of the four most recent iterations of this doctrine, which occupy the final four slots on the list above. I then consider the question of why these modern doctrines have managed to gain traction in U.S. courts over the past few decades.

The first modern version of non-self-execution doctrine that Sloss identifies is the Fujii doctrine, named after a case decided by the California Supreme Court in 1952. Its origins can be traced to the debate over the Bricker Amendment and whether international human rights treaties operated on their own force to preempt racially discriminatory U.S. state laws. This doctrine posits that the treaty-makers—the President and the Senate—have the power to approve a “non-self-executing” treaty that is binding on the United States internationally but that does not become the “Law of the Land” for purposes of the Supremacy Clause. Since these treaties are not the Law of the Land, they do not preempt inconsistent state laws.

The second modern version of the doctrine is the private right of action doctrine. Its origins can be traced to the 1970s and a series of Supreme Court cases establishing an interpretive presumption against reading a private right of action into federal statutes. The private right of action doctrine posits that the treaty-makers have the power to approve a “non-self-executing” treaty that does not create a private right of action in the courts of the United States. Since these treaties do not give rise to a right of action, they may not be invoked by plaintiffs in cases brought in U.S. courts.

The third modern version of the doctrine is the no private enforcement doctrine. Its origins can be traced to the implementing legislation for international trade agreements approved by the United States in the 1990s. This doctrine is essentially the same as the private right of action doctrine, but it also prohibits a private litigant from invoking a non-self-executing treaty as a defense.

The fourth and final modern version of the doctrine is the no judicial enforcement doctrine. Its origins can be traced to the Medellin decision rendered by the Supreme Court in 2008. This doctrine posits that non-self-executing treaties are the Law of the Land for purposes of the Supremacy Clause but that judges are powerless to enforce them irrespective of whether they are invoked by public or private actors.

Sloss convincingly argues that none of these four modern versions of non-self-execution doctrine can be fairly traced back to Chief Justice Marshall’s iconic decision in Foster v. Neilson. Instead, he argues that the creation of each of these doctrines constituted a novel innovation by the courts. He argues further that the cumulative effect of these doctrinal innovations was to rewrite the Supremacy Clause. This rewriting was difficult to detect, however, because it was portrayed as a straightforward continuation of a historical distinction dating to 1829. On all of these points, Sloss is extremely persuasive.

Although Sloss is scrupulously even-handed in his analysis, he is clearly somewhat skeptical of each of the four modern iterations of non-self-execution doctrine. The book is dedicated to “future generations in the hope that all nations will achieve the practical realization of the ideals embodied in the U.N. Charter and the Universal Declaration of Human Rights.” To the extent that modern non-self-execution doctrine severely limits the ability of private actors to rely on international human rights treaties as a source of rights, it also stands in the way of the full realization of the ideals set forth in the these treaties. While the book is a terrific history of the doctrine of non-self-execution, it is also an implicit critique of modern innovations in that doctrine that have caused it to become unmoored from its historical origins. Upon finishing the book, I came away with the impression that Sloss would like nothing more for the courts to cast aside each of the four modern iterations of self-execution doctrine. As noted above, however, Sloss never overplays his hand and—apart from the dedication—his own policy preferences take a backseat to telling an important (and original) tale of invisible constitutional change via the doctrine of non-self-executing treaties.

Sloss provides an exceptionally persuasive account as to why the Fujii doctrine was eventually adopted by courts and other federal actors—to head off the Bricker Amendment. He has less to say, however, about how and why the other three modern doctrines of non-self-execution rose to prominence. I have argued elsewhere that U.S. judges have become increasingly more reluctant to look directly to international treaties as a rule of decision in domestic cases over the past few decades. The creation of the other three modern doctrines of non-self-execution fit neatly into this pattern of retreat. The key question is precisely why contemporary U.S. judges so frequently shy away from international law. Are they responding to cues from actors in the political branches? Do they believe in the essential superiority of the U.S. legal system? Were they never taught about international law in law school? Or were they taught by law professors who were themselves skeptical of international law? All of these questions go well beyond the scope of Sloss’s excellent book. Should he ever consider writing a sequel, however, each would be a topic worthy of further exploration.

The Origins and Fall of Treaty Supremacy and Its Significance

by Thomas Lee

[Thomas Lee is the Leitner Family Professor of International Law and the Director of Graduate and International Studies at Fordham Law School. This is the fifth post in our symposium this week on treaty supremacy.]

Imagine Congress passes, and the President signs into law, a statute providing that the United States “undertakes to comply with the decision” of a bilateral US-China arbitral panel that the two countries establish to decide claims between the nationals of the two countries involved in cross-border investment disputes. The tribunal issues a judgment in a breach-of-contract case in favor of a Chinese national as against an American. The Chinese national seeks to enforce the decision against the US citizen in a Texas state court. The Texas state court refuses to honor the international tribunal’s decision, despite a letter from the US President to the Texas governor requesting that Texas comply in order to guarantee reciprocal treatment for US investors in China.

The Texas court in my hypothetical would be acting in violation of the Supremacy Clause of the US Constitution (Article VI, Section 2, Clause 2) which provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” I believe that most lawyers, judges, and legal academics would agree that a state court cannot refuse to apply a statute under these circumstances.

What if instead of a statute, the international tribunal was set up by a treaty of the United States, ratified by China and by the United States with Presidential approval and the advice and consent of two-thirds of the Senate? Under the plain terms of the Supremacy Clause, it shouldn’t matter: statutes and treaties are both the “Supreme law of the land” binding on State judges.

But that is not the current law of the land, as stated most recently by the U.S. Supreme Court in Medellin v. Texas (2008), upon which my hypothetical was based (the tribunal was the International Court of Justice, the key words were the same, and President George W. Bush did write a letter to Texas, but the dispute was over an alien’s right to consult with his consulate when charged with a crime). The Court in Medellin could have relied on the loose treaty words “undertakes to comply” to suggest that actual compliance was not required, given the nature of US federalism–that was Justice Stevens’ concurring-in-the-judgment view. However, the majority issued a broader ruling that the Texas courts did not have to respect the international tribunal’s ruling because the treaty provision (UN Charter Article 94) was “non-self-executing.” In other words, the treaty itself did not merit Supremacy Clause effect in the face of “Contrary” state law, but required an implementing federal statute to have such effect. How can this be squared with the plain language of the Supremacy Clause, which does not distinguish between treaties or statutes in ordaining what is the “supreme Law of the Land”?

David Sloss’s marvelous book The Death of Treaty Supremacy–An Invisible Constitutional Change demonstrates how this bald departure from the plain-language command of the Supremacy Clause came to pass. In a nutshell, the supremacy of treaties over state law was an unquestioned axiom of the founding. This is unsurprising given that the 1783 Treaty of Peace was the foundation stone of the new nation, and state violations of its terms, particularly with respect to treaty provisions requiring payment of prewar debts to British creditors in hard currency, were rampant and a serious threat to the peace. As Sloss describes, the unchallenged understanding of treaty supremacy over state law prevailed in American historical practice from the founding until after World War II. Even Chief Justice Marshall’s opinion in Foster v. Neilson (1829)–the presumptive font of non-self-executing treaty doctrine, involved conflicting federal–not state– statutes, relied on ambiguous treaty language, and was ultimately reversed in United States v. Percheman (1833). According to Sloss, the idea of “non-self-executing” originated in reference to treaties requiring some act of Congress for implementation (such as Foster’s initial interpretation of an 1819 Treaty with Spain regarding land grants), as opposed to those that became operative upon the executive action of the President.

What changed after World War II and the ratification of the United Nations Charter was the prospect that human rights treaty obligations (such as those implied by articles 55 and 56 of the UN Charter) might be invoked as rules of decision in US courts including state courts despite state law to the contrary. This was a special concern to members of Congress from segregated states, resulting in the Bricker Amendment which only barely failed to become law. Sloss shows how this concern that actually materialized in the 1950 holding of a California intermediate appellate court in the Fujii case invalidating a state alien land law on the basis of conflict with the UN Charter. The proverbial “deal with the devil” that ingenious elite lawyers crafted to head off this politically sensitive collision between human rights treaties and the ugly reality of American racial segregation was to dilute treaty supremacy by grafting onto it the “non-self-executing” rider, lifted from its original context of a treaty that required congressional implementation. The consequence, naturally, was the “invisible constitutional change” that Sloss flags in the title of his book–a subset of treaties, the non-self-executing ones, were stripped of Supremacy Clause effect. The apotheosis (or nadir) of this transformation was the Supreme Court’s 2008 decision in Medellin.

I want to make three points about Sloss’s argument.  First, he is absolutely correct that treaty supremacy is not what it used to be, and that this is a departure not only from historical practice but from the plain language of the Supremacy Clause of the Constitution. As David Stewart has pointed out, a large part of explaining WHY this happened has to do with the changing subject matter of treaties — most of the country’s early treaties were bilateral treaties dealing with trade, war, boundaries, and peace. Today’s multilateral treaties, drafted in loose language, typically encompass such things as human rights, family law, and criminal law, that are more likely to clash with state laws. But the paradigm founding-era treaty — the 1783 Treaty of Peace, also had a key provision, broadly drafted, that directly interfered with state laws: Article IV stated: “It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.” And no one doubted that Article IV could be raised directly as a rule of decision in state courts. However, truth be told, Article IV was more often honored in the breach, even after the ratification of the Constitution including the Supremacy Clause. I bring this up to point out both that the alleged changed nature of treaties is not an entirely satisfactory justification for diluting the Supremacy Clause’s treaty prong today, and also that treaty supremacy, even at a time when it was undiluted, was often simply ignored by the state courts. Ironically, part of the reason why Sloss’s “invisible constitutional change” happened was because state courts became much more serious about respecting the concept of treaty supremacy rather than blatantly flouting it, which made it useful to have an intermediate category of treaties that didn’t automatically have Supremacy Clause effect.

Second, however correct Sloss is about the transformation of the treaty supremacy rule, I wonder if the ship has sailed too far away for it to be recalled. The “problem” the presumption of non-self-executing treaties was introduced to address — a gap between the coverage of binding international human rights treaties the US has ratified and analogous state laws–has all but evaporated today. On the one hand, segregation is now constitutionally proscribed and state laws have advanced a great deal in the past several decades in the protection of civil rights. On the other hand, the United States has stopped joining multilateral human rights treaties, even those that seem modest and entirely consistent with preexisting US law like the disabilities convention; this trend is unlikely to change in the present Administration. But even if the United States were to join a treaty, and even if it were to do away with non-self-executing declarations, it would almost certainly take federalism reservations or consistent-with-existing domestic law understandings, both to eliminate any coverage gap and to preclude the possibility that a human-rights obligation might be invoked as a rule of decision in a state court case as against a countervailing state law.

Third, and finally, I want to challenge a bit Sloss’s framing of what happened as an “invisible constitutional change.” Such a framing implies that something exceptional and outrageous has happened–an important provision of the Constitution was covertly transformed, without broad public knowledge and outside of Article VII’s formal constitutional amendment rules. I am sympathetic to his assertion of a constitutional mutiny, in large part, because I am a constitutionalist who believes in trying to stay faithful to the words of the Constitution, its original meaning (when discernible, which is not often), and historical practice over a long period of time.

In fact, I see a lot of similarity between the structure of Sloss’s argument in his book and a 2004 article I wrote about the Eleventh Amendment to the Constitution, which was also about ensuring that the United States would keep its treaty obligations.  The Amendment provides that states cannot be sued by citizens of other states or foreign citizens or subjects. For 130 years, the Supreme Court and constitutional experts construed the Amendment to mean that foreign states, however, could sue states because, as a textual matter, Article III had originally provided for suits between states and foreign citizens, subjects, or states, and foreign “states” were excluded from the Eleventh Amendment’s prohibition. Foreign states also do not present the dignity problems of suits by individuals because they are sovereign too. I showed how the option of foreign states suing US states in the Supreme Court’s original jurisdiction was envisioned as a way to allow foreign states to seek redress for treaty violations. Nevertheless, the Supreme Court suddenly reversed course in 1934 and held that foreign states could not sue states. Why? Because states were burdened with sovereign debts and it would have been politically impossible to force them to pay by lawsuits in federal court.

When I wrote my article in 2004, like Sloss, I was outraged by the disconnect between this accommodation of present circumstances and the clear weight of text, original meaning, and historical practice to the contrary. But now, I wonder if this sort of accommodation is often a necessary balancing that all of us have to accept in interpreting an old and laconic Constitution in a rapidly changing world. The United States at founding was a militarily weak, poor, revolutionary new country–a tobacco republic. We needed a ironclad rule of treaty supremacy in the face of rebellious quasi-sovereign states, in order to maintain the treaty of peace and to be treated as an equal by the European powers. The United States is in a very different place in the world order today, and the dilution of treaty supremacy seems to me a natural (if troubling) consequence of this new reality.

ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary…

Treaties in Constitutional Time

by John Parry

[John Parry is the Associate Dean of Faculty and Edward Brunet Professor of Law at the Lewis & Clark Law School. This is the fourth post in our symposium this week on treaty supremacy.]

David Sloss’s fantastic new book restores order and sanity to the confusion that pervades constitutional doctrine on the status of treaties. The great achievement of this book is its insistence on clear thinking about treaties and their interaction with federalism (supreme law of the land or not?) and separation of powers (who implements a treaty?). Where many writers push these questions together, Sloss distinguishes strongly between federalism questions about treaty supremacy and separation of powers questions about self-execution and treaty implementation. Read this book, and you will never, ever carelessly put those concepts back together.

Having separated these issues, Sloss traces their development from the founding era until just about the present day, and he unearths 8 distinct – and often inconsistent – constitutional doctrines about the status of treaties. Each doctrine represents a different arrangement of constitutional forces that push the status of treaties in one direction or another. Most important for contemporary law, he demonstrates, are two related ideas: the assertion that the intent of the treaty makers, whether or not stated clearly, should control the decision on self-execution, and the claim that a ratified treaty might not be supreme federal law binding on the states, despite the language of the supremacy clause. Neither idea, he makes clear, can claim any historical legitimacy, and neither idea is desirable.

Although Sloss does not hide his doctrinal preferences, his overwhelming goal is to untangle and explain the strands of these doctrines. He deliberately does not push many of the normative claims about treaty doctrine that he has advanced in numerous articles over the past 15 or more years. For example, Sloss is a prominent critic of the claim that the intent of the treaty makers determines whether a treaty is self-executing. The Death of Treaty Supremacy details the origins of the intent theory in a 1920s law review article by Edwin Dickinson that was picked up by state department lawyers to serve the cause of executive discretion, and then was tucked by some of those same lawyers (scarred survivors of the Bricker debates) into the Second Restatement of Foreign Relations Law, apparently under the noses of most observers. Intent survived into the Third Restatement and emerged triumphant in the Supreme Court’s 2008 Medellín decision. Sloss does not conceal his justified dislike of the intent doctrine, and he points out that the one step intent approach collapses two distinct inquiries: (1) determining what the treaty requires of the Unites States (an international law question about obligation), and (2) asking who in the federal government can or should carry out that obligation (a domestic separation of powers question). At the same time, however, Sloss’s commitment to analytical clarity also leads him to develop an argument for the constitutionality of the very same intent doctrine that he sees as a betrayal both of original understanding and longstanding practice.

By and large, in short, Sloss successfully puts his descriptive and analytic goals – clear thinking about treaties and the reasons for and results of doctrinal change – above his normative claims about what the doctrines ought to be. The result is a book that demands and deserves broad attention.

Despite my general agreement with Sloss’s analysis and conclusions, I do not quite agree with his historical narrative, particularly on the significance of Chief Justice Marshall’s 1829 opinion in Foster v. Neilson decision for the development of self-execution doctrine. Most commentators identify Foster as the origin of American self-execution doctrine, with perhaps a brief nod to the Chase and Iredell opinions in the much earlier Ware v. Hylton decision (in which Marshall was involved as an attorney). Sloss devotes many pages to Foster, and he provides what I think is the best modern description of what was going on in that opinion and how to interpret Marshall’s relatively brief analysis.

Yet Sloss’s discussion of Foster comes out of turn. As a participant in the Virginia ratification debates, the Ware v. Hylton litigation, and the 1800 debate over the extradition of Jonathan Robbins, Marshall knew what was at stake in the controversy over the status of treaties. In particular, as Sloss makes clear, republican members of Congress asserted the institutional interest of the House of Representatives in a narrower self-execution doctrine that would preserve its legislative authority and give it the ability to participate in (and perhaps frustrate) treaty implementation.

But Foster did not follow immediately on the heels of these events. Instead, two things happened. First, in 1815-16, Congress debated the status of treaties and its own role in treaty implementation with respect to the post-War of 1812 commercial treaty with Great Britain. In that debate, moderate members of Congress worked out the contours of self-execution doctrine in terms remarkably similar to those that Marshall would later use in Foster. Their views represented a compromise between the hard line federalist and hard line republican positions that characterized earlier debates. They also linked self-execution doctrine to the last in time rule, as a way of preserving congressional power against the necessary effects of self-executing treaties. The opinion in Foster and the Court’s subsequent last-in-time opinions follow these positions. (Contrast the effort of the Third Restatement of Foreign Relations Law to weaken the last in time rule, based on an internationalist suspicion of parochial legislators – or so I would argue.)

Second, in the 1820s, federalist lawyers began to write treatises even as their party disintegrated around them. These treatises, including Chancellor Kent’s, advanced hard line federalist positions about the treaty power and usually mischaracterized the results of the earlier congressional debates. Marshall had been, of course, a federalist, but his opinion in Foster has little or no overlap with the claims of the treatise writers. To the contrary, as I already asserted, his tone was far closer to that of the moderate republicans in the 1815-16 debate. Familiarity with those debates, combined of course with his own long-past experiences, could have steeled Marshall to resist lingering federalist claims.

Putting events in this order highlights the importance of extra-judicial activity to the debate over treaty status. Sloss certainly appreciates the importance of extra-judicial activity, but I think the debate over the constitutional status of treaties that took place outside the courts is more significant than he might allow. In some contrast to Sloss, I would contend that the text and original understanding of the Constitution generated greater ambiguity than certainty about treaty status and implementation. In the founding era, the status of treaties as supreme federal law was clear, but the relative implementing roles of the federal branches was not. Conflicting and ambiguous statements abound in the historical materials and early debates. As a result, government officials across the branches had to work out their respective roles over time. Most of the action on these issues, therefore, has taken place outside the courts: in the halls of Congress, the White House, and the State Department, and it has reflected shifting policy judgments and political calculations. The Supreme Court has tended to ratify the results of those extra-judicial activities (and sometimes has resisted them). But it has never led.

Note, as well, that the constitutional vacuum responsible for generating these ongoing debates has led directly to the critical modern developments that Sloss portrays in his book: the use of changed circumstances (such as the rise of the United States to great power status and the contemporaneous explosion of international human rights discourse) to generate further changes in treaty doctrine and the surprising vulnerability of the doctrine that treaties are supreme federal law binding on the states, which became drawn into these debates when it became politically expedient to do so.

I also wonder about Sloss’s treatment of more recent history. He jumps from the drafting of the Second Restatement of Foreign Relations Law all the way to Medellín v. Texas. Medellín is, of course, a significant case and a critical part of Sloss’s story, for the Supreme Court simultaneously embraced the intent doctrine and undermined the supremacy of treaties, even as it also raised doubts about judicial deference treaty interpretation. Yet other events also deserve mention.

Sloss has little to say about the Third Restatement of Foreign Relations Law, which displays a confusing approach to self execution, in tension with the Second Restatement. Under the most plausible interpretation of the Third Restatement, all treaties are supreme and preemptive, but non-self-executing treaties are not enforceable in federal court, even if they create rights and remedies (which perhaps are enforceable in some other fashion). The Reporters Notes push back even more against the Second Restatement and in favor of self execution, probably representing an internationalist valorization of treaties as superior legally and normatively to the actions of national legislatures (and also accommodating the executive power necessary to international cooperation). What happens to these claims?

In addition, few commentators accept Medellín as the harbinger of a new, stable doctrine of treaties. To the contrary, the decision has been extremely controversial. The Senate responded, as Sloss notes, by making express self execution statements when ratifying certain treaties, and even supporters of the result in Medellín have had to work hard to justify it in ways that are more satisfying and coherent than the Court’s actual analysis. The issues of treaty supremacy and implementation that Medellín failed to settle are playing out now in the drafting of the Fourth Restatement of Foreign Relations Law. I’d like to read Sloss’s thoughts on these unfolding developments. He’s said a little in other venues, and hopefully he will return to the fray in future articles.

Finally, I want to suggest a slightly different frame of analysis for these ongoing debates about treaties. The different approaches to the status of treaties that have emerged over time reflect tensions – sometimes subtle but sometimes not – in the basics of American political theory. How should we balance international obligations with internal political structure, without a clearly correct constitutional approach and faced instead with a set of choices that represent different accommodations of the relevant actors: president, congress, courts, and states? These are foundational questions. Without underlying consensus on those issues, treaty law will never be stable, and the instability of treaty law itself provides insight into those underlying tensions.

The Status of Treaties in Domestic Law

by David Stewart

[David P. Stewart is Professor from Practice at Georgetown University Law Center.This is the third post in our symposium this week on treaty supremacy.]

How are we to explain the yawning gap between the Founding Fathers’ clearly “monist” ideas about the role of treaties in our domestic legal system and the much more circumscribed “dualist” concept reflected in the Supreme Court’s Medellin decision? That’s the task David Sloss set for himself in The Death of Treaty Supremacy, and he succeeds in leading us on a long and detailed explanatory journey from 1789 up through 2008.

There can be little doubt that the Founders meant for treaties entered into by the new United States not only to be federal law but also (and more importantly) to bind the states and directly to override contrary state law. As Sloss demonstrates, the very point of the Supremacy Clause was precisely to prevent state governments and courts from frustrating critical treaty obligations of the new nation. To that very end, in Ware v. Hylton (1796), Justice Chase explicitly equated treaties with the Constitution itself. This “treaty supremacy” rule, Sloss notes, survived essentially unchallenged until the period immediately following World War II.

However, early on, the federal courts adopted an interpretation of the Supremacy Clause according to which some treaties (denominated “non-self-executing”) were considered not to have effect unless legislatively implemented.   As Sloss notes, the “non-self-execution” doctrine dates back to Chief Justice Marshall’s opinion in Foster v. Neilson (1829). Properly understood, however, this doctrine spoke only to the allocation of authority to implement treaties at the federal level, between the legislature and the executive, and had no effect on the treaty supremacy rule.

It was not until the 1952 decision of the California Supreme Court in Sei Fujii that the non-self-execution doctrine was applied to limit the treaty supremacy doctrine, with the result that treaties denominated “non-self-executing” were no longer understood to supersede conflicting state law. Why the California court chose that path, and why its approach gained traction including most importantly in the Restatement (Second) Foreign Relations Law, lies at the heart of Sloss’s story of “invisible constitutional change.”

His explanation weaves together a variety of factors, among others the provisions of the United Nations Charter and its non-discrimination obligations, the constitutional inability of the federal government at the time to prohibit racial segregation in the states, early Cold War politics, the nascent human rights movement, and cognitive dissonance theory. It is, in his view, a tale of constitutional transformation through judicial interpretation, rather than through the ballot or the amendment process, and therefore largely “invisible.”

Sloss acknowledges that the so-called “Fuji doctrine” did serve crucial political purposes by helping to mediate the tension between human rights and states’ rights and thus to defeat the so-called Bricker Amendment. Substantively, he embraces the doctrine as a defensible interpretation of the Constitution, while rejecting some of its more recent transformations, including the “no private rights of action” and “non-judicially enforceable” interpretations. His problem is with the lack of political transparency in the process, which he considers perhaps less than fully consistent with principles of democratic legitimacy.

There is something to be said for this criticism, since in Foster (and subsequent decisions) the Court effectively inserted the word “some” before “treaties” in the Supremacy Clause. Yet the story of our Constitution is largely one of judicial adaptation and reinterpretation in light of changed circumstances. For a technical question like treaty supremacy, it is hard to see how a plebiscite or process of formal amendment with respect to the treaty power might actually work. The specific concerns that motivated the Bricker Amendment during the early 1950’s are no longer present, but the underlying federal-state tensions are still there, very real and very much alive. Listen to the recent debates about ratifying the Convention on the Rights of Disabled Persons, or the Convention on the Rights of the Child, or the Convention on the Elimination of All Forms of Discrimination Against Women, and you’ll hear sharp echoes of the principles at stake in the Bricker controversy. In fact, versions of the Bricker Amendment are still introduced in the House and Senate from time to time. The treaty supremacy issue was debated at the Constitutional Convention in 1787 and in the ensuing state ratification process, and it hasn’t gone away.

Sloss notes with some approval how the issue was dealt with in the Restatement (Second) Foreign Relations Law but he gives little attention to the Restatement (Third) in 1986. The Reporters for that edition had a clear preference for self-execution and supremacy. While they acknowledged, in sections 111(3) and (4), that as a matter of U.S. law “non-self-executing” agreements will not be given effect as law in the absence of necessary implementation, and that some categories of treaties may presumptively fall in that category, they emphasized (in RN 5) that treaties are generally binding on ratifying states whether or not they are self-executing. “The purpose of having a treaty self-executing is to make it easier for the United States to carry out its international undertakings.” In addition, they noted, “[s]elf-executing treaties were contemplated by the Constitution and have been common. They avoid delay in carrying out the obligations of the United States. They eliminate the need for participation by the House of Representatives (which the Framers of the Constitution had excluded from the treaty process), and for going to the Senate a second time for implementing legislation after the Senate had already consented to the treaty by two-thirds vote.”

But a careful study of treaty practice over the past 30 years demonstrates that this preference for self-execution has not been shared by either the executive or legislative branches. In point of fact, almost all treaties today (bilateral or multilateral) are legislatively implemented. Very few are actually self-executing in the sense that they are directly applicable as federal law and override inconsistent state law.

Several reasons for this resistance to self-execution can be suggested. Perhaps most important is the drastically changed nature of treaties today. At the time of the Founding, most treaties were bilateral and involved straightforward questions of bilateral relations like war and peace, boundaries and trade. These were clearly matters for which national governments were accountable and unable to tolerate non-compliance by their subordinate components (like provinces or states). Today, treaties (especially multilaterals) increasingly deal with internal or domestic matters (such as human rights, criminal matters, family law, tax, intellectual property, jurisdiction, etc.) and to do so in great detail. They are often matters on which substantial domestic law already exists. Moreover, for federal states, they can implicate sensitive questions about the allocation of authority between the national and subnational governments. When they are negotiated in international organizations whose members are drawn from every part of the world and thus have markedly different legal systems and approaches, the final wording of the treaty is frequently so unique that it simply cannot be directly incorporated into domestic law (at least in the United States). As a technical level, little reason exists to support the proposition sometimes heard that “if it’s agreed to by the world community, it has to be better than domestic law.”

A more direct way of describing these changes is to say that treaties increasingly perform law-making functions. When that’s the case, it’s hard to argue against a preference for legislative implementation — although the difficulty (or impossibility) of getting such legislation often motivates those who argue in favor of self-execution, as indicated by the Reporters’ Notes cited above.

Most do not read the Supreme Court’s decision in Medellin as reflecting a clear presumption against self-execution, but there’s little question that in rejecting the President’s argument that he could unilaterally convert a non-self-executing treaty into a self-executing one, the Court saw the difference as involving a law-making function that necessarily involves the Congress. On that point, one has to think that, if the Founders could appreciate the very different nature and role of treaties in the contemporary world, they would agree.

Bringing Human Rights Home: Reflections on the Treaty Supremacy Rule

by Carmen Gonzalez

[Carmen G. Gonzalez is a Professor of Law at Seattle University School of Law. This is the second post in our symposium this week on treaty supremacy.]

David Sloss’ eye-opening new book, The Death of Treaty Supremacy: An Invisible Constitutional Change (Oxford University Press, 2016) should be read by lawyers, judges, law students, policy-makers, and legal scholars for its valuable insights on constitutional law, international law, legal history, human rights, and the quest for racial justice. The book’s thesis is that federal courts have misinterpreted legal precedent and inverted fundamental constitutional principles by authorizing states to violate the treaty commitments of the United States.

The Framers of the U.S. Constitution were acutely aware that violations of international law by the states could disrupt trade, incite wars, and besmirch the reputation of the United States. Accordingly, the Supremacy Clause of the U.S. Constitution provides that “all treaties . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” [U.S. Constitution, Article VI, clause 2]

From the earliest days of the Republic until World War II, all treaties ratified by the United States were understood to supersede conflicting state laws pursuant to the treaty supremacy rule. When state laws contravened ratified treaties, federal courts were obligated to enforce U.S. treaty commitments. After World War II, opposition to the civil rights movement and to international human rights law sparked a subtle and pernicious re-interpretation of the treaty supremacy rule. A small but influential group of lawyers and policy-makers persuaded federal judges that non-self-executing treaties do not supersede conflicting state laws and are unenforceable in U.S. courts in the absence of implementing legislation. Because the U.S. Senate routinely attaches unilateral reservations to human rights treaties proclaiming these treaties non-self-executing, this re-interpretation of the treaty supremacy rule gives states carte blanche to violate international human rights law.

The Death of Treaty Supremacy explains that resistance to the struggle for racial justice triggered the transformation of the treaty supremacy rule. The U.N. Charter, which entered into force in 1945, expressly prohibits racial discrimination. Civil rights plaintiffs cited the Charter’s human rights provisions to challenge discriminatory state laws. In Fujii v. California, 217 P.2d 481 (Cal. App. 2d 1950), a California appellate court applied the treaty supremacy rule to strike down California’s Alien Land Law because it discriminated against Japanese nationals in violation of the U.N. Charter. The decision sparked controversy because it seemed to suggest that the United States had abrogated Jim Crow when it ratified the U.N. Charter.

Determined to maintain racially discriminatory state laws, conservative legislators (led by Republican Senator John Bricker of Ohio) proposed a Constitutional amendment that would require approval of implementing legislation by both houses of Congress before a human rights treaty could supersede conflicting state laws. Bricker’s opponents argued that the amendment was unnecessary because the treaty supremacy rule only applied to self-executing treaties. While the proposed amendment was ultimately defeated, this patently erroneous interpretation of the U.S. Constitution gradually gained acceptance. In 2008, the U.S. Supreme Court endorsed this interpretation of the treaty supremacy rule in Medellin v. Texas. That decision authorized the state of Texas to execute a Mexican national without the hearing required by the International Court of Justice’s Avena decision in violation of Article 94 of the U.N. Charter (which requires compliance with ICJ decisions).

The Death of Treaty Supremacy will be of particular interest to scholars whose work intersects with international human rights law. Environmental justice scholars, for example, have long grappled with the absence of legal remedies for the concentration of polluting industries and hazardous waste disposal facilities in neighborhoods populated by Latinos and African-Americans. U.S. anti-discrimination law has failed to curb the disparate siting of polluting facilities in communities of color by state and local governments because the U.S. Supreme Court has interpreted the Equal Protection Clause of the U.S. Constitution to require proof of discriminatory intent. Discriminatory purpose is extremely difficult to prove. Much discrimination is entirely unconscious. Many race-neutral policies have disparate impacts on communities of color despite the absence of discriminatory purpose because they reinforce pre-existing structural disadvantages caused by unequal access to education, housing, and employment. Title VI of the Civil Rights Act of 1964, which prohibits discrimination by programs receiving federal funds, has likewise been interpreted to require proof of intentional discrimination.

International human rights law provides more robust protection against environmental injustice than U.S. law. In 1994, the United States ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD treaty), which defines racial discrimination to encompass government actions with discriminatory purpose as well as government actions with discriminatory impacts. The objective of the treaty is not simply formal equality through racially neutral laws and policies, but the attainment of substantive equality.

The treaty supremacy clause, as interpreted prior to World War II, would enable plaintiffs in environmental justice cases to invoke the CERD treaty to challenge state laws and policies that have a disparate impact on communities of color, including laws relating to the siting of polluting facilities. As The Death of Treaty Supremacy points out, the disconnect between U.S. Constitutional law and the evolving norms of international human rights law explains, at least in part, the Supreme Court’s re-interpretation of the Equal Protection Clause in Brown v. Board of Education and related cases to prohibit state-sponsored racial segregation. Disparate impact litigation pursuant to the CERD treaty would obligate federal courts to grapple with the growing gap between the narrow interpretation of antidiscrimination norms adopted by the United States and the more expansive requirements of international human rights law.

The Death of Treaty Supremacy is meticulously researched, carefully argued, and highly compelling. The book reminds us that international law has always been part of U.S. law, and provides a warning about the dangers of surreptitious re-interpretation of foundational constitutional principles. Lawyers, judges, and legal scholars should read this book and consider its implications for the relationship between domestic law and the nation’s international human rights obligations.