Opinio Juris Symposium: Are Non-Self-Executing Treaties Unconstitutional?

by Julian Ku

I would like to push the conversation about Mike Ramsey’s new book to a slightly different topic. What does the Constitution’s text tell us about the status of treaties in the domestic U.S. legal system? As many of our readers know, Article VI of the U.S. Constitution makes treaties the “supreme law of the land,” but conventional wisdom has been that the text has not resolved a variety of questions over the proper status of treaties. I think Professor Ramsey successfully defeats this conventional wisdom, but I am not sure he has completely resolved lingering questions about the status of treaties?

For instance, does Article VI mean that all treaties are “self-executing” in the sense that they bind the President and the executive branch and create enforceable judicial remedies enforceable by private actions in U.S. courts? Does Article VI also mean that treaties bind Congress so that Congress cannot pass legislation in violation of an Article II treaty? Does Article VI also tell us whether a treaty can trump the U.S. Constitution?

Staying true to his method, Professor Ramsey finds a textual answer to all of these questions. Article VI’s reference to treaties as “supreme law”, he suggests, should be understood to give treaties the same domestic legal status as federal statutes. For this reason, treaties are self-executing, at least in the same sense as federal statutes are self-executing. Congress can override treaties with subsequent legislation (e.g. the last in time rule). Moreover, treaties that are inconsistent with the Constitution are, like federal statutes, unconstitutional and unenforceable. And the President is bound by treaties, at least as much as he is bound by federal statutes.

All of these answers are consistent with existing doctrine and they provide a wonderfully clear and straightforward textual basis in favor of existing doctrine. But there is one area in which Professor Ramsey has departed somewhat from conventional doctrine.

http://opiniojuris.org/2007/08/02/opinio-juris-symposium-are-non-self-executing-treaties-unconstitutional/

7 Responses

  1. Might I suggest that the constitutionality of these non-self-executing treaties is possibly the wrong place to be looking. Might we say that the United States takes on its treaty obligation. Might we say that the United States like each other state is free to choose the mechanism internally to bring itself in compliance with that obligation. If compliance can be done without making the treaty self-executing fine. If it can not, we may be in breach of the treaty obligation.

    Congress or the President can do acts that violate the treaty and internally someone may declare that the treaty violates the Constitution, but unless this is absolutely manifest to the other treaty parties in the Vienna Convention Law of Treaties sense, the treaty remains an obligation of the United States. If our courts declare the treaty unconstitutional and the US is not to comply with its obligations then it would seem the natural response is that the other states that are parties to the treaty would examine whether the US is breaching the treaty.

    If someone tried to assert in the US courts that the illegal Presidential act or Congressional act violated our treaty obligations, the Court has to determine how to respond to this argument on treaty obligation. It may wish to run through a broad non-self-execution doctrine to avoid the defense or take a narrower view of non-self-execution and deal with the assertion of this aspect of the Supreme Law of the Land. Like the UN Headquarters agreement case and the PLO the Courts would probably Charming Betsey there way around the conflict if they could. But, if they could not, then we would be in breach of our treaty obligation.

    Whether the President and Senate are authorized to make a treaty self-executing appears to me not the precise way to look at it. The treaty language itself as interpreted by the Supreme Court would determine whether the treaty is self-executing. Obviously attention to what the President and Senate said would be relevant for that decision, but I think the Supreme Court could reach the case and find that the treaty is self-executing notwithstanding President and Senate language. Whether the Supreme Court as the Judicial Power would be willing to exercise that power in that way is another issue.

    Best,

    Ben

  2. If our courts declare the treaty unconstitutional and the US is not to comply with its obligations then it would seem the natural response is that the other states that are parties to the treaty would examine whether the US is breaching the treaty.

    Wouldn’t the US then be obligated to withdraw from any treaty (even signed and ratified) that had been ruled unconstitutional? Who would be in charge of doing so, and how would we go about doing it?

  3. The US would not be obligated to withdraw – I could imagine a President maintaining our signature of the treaty for foreign policy reasons while the treaty has been found unconstitutional. Maybe someone would argue for suspension for example.

    For withdrawal, 20th century practice would typically leave that to the President and pretty much has been done in myriad ways (I remember a post by Arthur Rovine on the ASILForum saying a study done had shown a whole variety of ways the President has terminated treaties). One issue that would arise would be whether the manner of withdrawal was consistent with the treaty language on withdrawal. If not consistent, that would be a further breach. I think we ran into this with the Russians on the ABM treaty.

    In the absence of treaty language on withdrawal then we would look to the Vienna Convention on the Law of Treaties language as authoritative on this and I believe a one year notice is required. Otherwise, one might argue for reasonable notice and then get into debates about what is reasonable. I remember such a case on the Egypt-WHO Headqauarters Agreement at the ICJ back in 1979 or 1980 getting into those types of issues.

    Best,

    Ben

  4. To clarify my view, in saying the treaty would be unconstitutional, I acknowledge that it would remain an international obligation of the United States (since domestic invalidity is rarely a defense to a treaty violation). I had not thought about this before, but I think Matthew Gross is right that the U.S. would have a (constitutional) obligation to withdraw (or else take action to make the treaty constitutional). As the book makes clear, I think the President would have the constitutional power to do this (exercising the executive power). But, as Ben Davis says, it’s not necessarily the case that the President could simply withdraw, because (as an international law matter) the treaty might not allow it. So I would say: the President has a constitutional obligation to withdraw from an unconstitutional treaty, as soon as the President is able to.

    –Mike Ramsey

  5. Prof. Ku wrote: “My own view is that the President and Senate are authorized under Article II and Article VI to choose whether or not to make a treaty self-executing and that the courts should defer to this decision.”

    I would love to know exactly where in Article II or Article VI it says anything about the President’s or the Senate’s authority to declare a treaty non-self-executing, or for that matter where it says anywhere in the Constitution about non-self-execution. Indeed, Prof. Ku appears to be misconceptualizing the issue of non-self-execution. A treaty provision is non-self-executing only as a factual matter, namely, a political branch has not performed some overt act to implement a treaty duty requiring the performance of an overt act. Declaring a treaty provision, which requires a party to not perform some overt act, to be non-self-executing is non-sensical. Therefore, when the President or Senate makes a declaration that, e.g., the prohibition of torture under the ICCPR is non-self-executing, this declaration makes no sense because the prohibition does not require the commission of an overt act.

    The non-self-execution doctrine as Prof. Ku characterizes it only makes sense in the context of Parliamentary Supremacy in which a democratically accountable Parliament must make implementing domestic legislation when a democratically unaccountable Crown makes a treaty. However, our Constitution does not make Congress supreme. The Constitution ensures democratic accountability by giving a democratically accountable President with the consent of a democratically accountable Senate the authority to make treaties. Mercer and Mason during the Constitutional Convention tried to incorporate Congressional Supremacy into the treaty making process, but their efforts (including others at the Pennyslvania convention) were defeated, and they (including those at the Penn convention) subsequently did not vote for the adoption or ratification of the Constitution, which thereby undercuts any constitutional interpretive authority that their statements purportedly could have had.

    If the political branches fail to comply with a treaty duty that requires performance, this political fact does not prevent federal courts giving effect to the treaty provision — albeit the effect may not provide full satisfaction to the party in the case before the court. Although a federal court cannot, e.g., order Congress to make implementing legislation, it can provide legal and equitable relief short of ordering the making of legislation. What a federal court cannot do is use the fact that the political branches have failed to comply with their constitutional duties to execute a treaty provision, as a justification for not exercising their Article III judicial power to apply “all Treaties”.

    Francisco Forrest Martin

  6. Prof. Ku wrote: “Staying true to his method, Professor Ramsey finds a textual answer to all of these questions. Article VI’s reference to treaties as “supreme law”, he suggests, should be understood to give treaties the same domestic legal status as federal statutes. . . . Congress can override treaties with subsequent legislation (e.g. the last in time rule).”

    If Prof. Ku has correctly characterized Prof. Ramsey’s arguments (I have not read his book), then I have to disagree that according to Constitution’s text federal statutes have the same domestic legal status as treaties and that federal statutes can trump earlier ratified treaties. The texts of Articles III and VI give different legal authority to federal statutes and treaties. According to Article VI, the laws of the United States are made only in pursuance of the Constitution. In other words, federal statutes only implement the Constitution. Not all U.S. treaties implement the Constitution because some treaties that are part of the supreme law of the land were made before the Constitution coming into effect, and therefore could not implement the Constitution. Furthermore, both Articles III and VI say that treaties are made under the authority of the United States, which pre-dates the Constitution (and Articles of Confederation). The legal authority of treaties relies not on the Constitution (the Constitution only tells us how post-Constitution treaties are to be made and what their authority are) but on the U.S. — like the Constitution. Federal statutes can be nullified because they violate the Constitution per se. Treaties cannot be nullified by the Constitution per se but only can be nullified because they violate a pre-existing treaty, namely, the Constitution. As treaties, the Constitution and treaties (both having the legal status of being made under the authority of the U.S.) exist on the same level of legal authority. The only difference is that Constitution sometimes can disable a subsequent treaty from being properly concluded because the subsequent treaty would violate the earlier treaty (i.e., the Constitution) and/or manifestly violate fundamental national law in violation of the law of treaties itself.

    As discussed in my earlier posting (above), those Framers who rejected the notion of Congressional Supremacy and, specifically, a last-in-time rule won the day. See statements by Hamilton, Jay, and Davie. Only subsequent Supreme Court rulings adopted the last-in-time rule, but these decisions are inconsistent with earlier and later decisions, conclusory, and sometimes racist. For more on this, see Martin, The Constitution as Treaty: The International Legal Constructionist Approach to the U.S.Constitution (Cambridge Univ. Press 2007), which should be available in the next couple of weeks.

    Francisco Forrest Martin

  7. I’ll leave Mr. Martin’s argument untouched, save the admission that I find it very strange that an equal-priority document (The Constitution) could directly mandate the status of other equal-priority documents (Foreign treaties.)

    So I would say: the President has a constitutional obligation to withdraw from an unconstitutional treaty, as soon as the President is able to.

    What of enforcement during that period? Are we to enforce an unconstitutional agreement that we entered into, because of another (apparently constitutional) treaty limitation?

    If we don’t enforce it, is the US liable for violations of that treaty (via international law, for the hypothetical, lets say via the ICC) for the period before it is actually revoked?

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