First of all, I want to thank Chris, Peggy, Julian and Roger for letting me spend some time here at Opinio Juris. As an avid reader, I’m looking forward to the opportunity to exchange ideas with other Opinio Juris readers.
To that end, I want to start off with a question about judicial treatment of non-self-executing treaties. U.S. courts have certainly devoted considerable (albeit often inconsistent) attention to the question of when to enforce a U.S. treaty by declaring it “self-executing” or “non-self-executing.” But the inquiry always seems to end once a court decides the treaty in question is “non-self-executing.” Having made that determination, U.S. courts generally view such treaties as irrelevant to the case at hand.
What I am wondering is why courts don’t proceed to apply the Charming Betsy canon—i.e., “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” 6 U.S. (2 Cranch) 64, 118 (1804). After all, U.S. treaty practice is not to join a treaty unless the necessary domestic steps have been taken for the United States to be able to comply with the treaty. Sometimes this will require new legislation (e.g., the Senate gave advice and consent to the Basel Convention in 1992, but the United States has not ratified it pending the enactment of existing legislation). But other times the United States goes ahead and joins the treaty under the assumption that existing legislation meets the treaty’s requirements. This was the case, for example, with U.S. adherence to human rights treaties such as the ICCPR where, subject to the U.S. reservations and understandings, the Executive Branch (with Senate concurrence) took the position that existing law generally satisfied U.S. obligations under the treaty. If that’s true (and certainly we could debate the U.S. interpretation of what the treaty required), why don’t courts who decide a treaty is non-self-executing look at whatever law the United States indicated was the basis for U.S. adherence and analyze it with an eye to the treaty itself? Why not apply the Charming Betsy canon to non-self-executing treaties?
Let me be clear — I’m not suggesting direct judicial enforcement of such treaties, although I suspect some might view a Charming Betsy analysis as a back-door way of doing so. Rather, I am suggesting that courts that decide not to enforce a treaty directly could still utilize the treaty as an interpretative tool with regard to whatever law(s) the Executive Branch indicated was the basis for U.S. adherence to a treaty in the first place. I wonder whether such an approach could bridge the gap between those who object to giving treaties direct legal effect and those who want to ensure treaties receive recognition as the supreme Law of the Land under Article VI? I’d be interested in whether people are aware of any courts taking the approach I am suggesting (I think some WTO caselaw might lean this way but wonder whether the Uruguay Round Agreements Act makes it a case sui generis)? If there’s no existing precedent on this front, do people think it would be a feasible or appropriate thing for U.S. courts to do?