Self-Executing Treaties, the Senate, and a Bit of German Law

For my last post here at Opinio Juris, I propose to tap into what knowledge I have of my home jurisdiction, Germany, on an issue common to US and German law. (No apologies here for the use of comparative material in constitutional interpretation.)

That issue is in the context of the domestic effect of international treaties, and more particularly in the definition of a ‘self-executing’ treaty. In terms of US law, the question is this: can the Senate preclude a treaty from having ‘self-executing’ effect? Can it, in declaring (or in having the President declare internationally on ratification) that the treaty shall not be self-executing, answer that question once and for all for the courts, no matter what the actual content of the treaty might be?

The basic points behind this question are too well-known to bear exhaustive repetition; I would just briefly mention them: Article VI, cl. 2 of the US Constitution, the Supremacy Clause, provides that ‘[Acts of Congress] and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.’ The Supreme Court in Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829), therefore explained the position as to treaties as follows (at 314):

Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

If I understand correctly, later cases have refined the position as follows: a treaty is self-executing if it has no need for implementing legislation at any level in order to achieve its aim of creating or otherwise affecting the rights and duties of private persons (or corporations) in domestic law (I take this from Whitney v. Robertson, 124 U.S. 190, 194; Asakura v. City of Seattle, 265 U.S. 332, 341 (1924); TWA v. Franklin Mint Corp., 466 U.S. 243, 252 (1984), and other cases). If a treaty is not self-executing, it falls outside Article VI, cl. 2, and thus is not a part of domestic law (Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985)).

So our question is really whether a declaration by the Senate to the effect that a treaty is not self-executing pre-empts this analysis of the terms of the treaty. The problem is not fanciful: such declarations by the Senate exist, for instance, in respect of the ICCPR and of the Convention against Torture (CAT). Neither treaty can actually be said to require implementing legislation in respect of all of its provisions; some of the provisions do, in that they in terms require legislation to be put in place (e.g. Article 4 CAT). But others do not; they may employ somewhat open-textured language, but that is not because any tighter definitions in domestic law were envisaged; quite the contrary: they are meant to be broad, not unclear.
Nonetheless, it seems to me that US courts have faithfully followed the declarations by the Senate in holding the ICCPR and CAT to be non-self-executing (see e.g. Flores v. Southern Peru Copper Corp., 414 F.3d 233, 257-58, n. 35 (2003); Castellano-Chacon v. I.N.S., 341 F.3d 533, 551 (6th Cir. 2003)).

The problem exists in much the same form in Germany. Germany, too, has attached declarations to some declarations of its consent to be bound to the effect that the convention in question would not operate as ‘self-executing’ in domestic law; it has done so, for instance, with respect to the CAT and the UN Convention on the Rights of the Child.
The constitutional context is remarkably similar to that in the United States, even though the matter is put somewhat differently in the constitution: Article 59(2) of the Basic Law provides that

Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. [My emphasis]

The Federal Parliament must therefore consent to the conclusion of a treaty by means of an act of parliament. That act authorizes the President to signify Germany’s consent to be bound internationally, and introduces the treaty, at the rank of a federal statute, into domestic law. Indeed, the modern view is that this act does nothing more than give the order in domestic law that the treaty shall be applied as it exists in international law, even as international law. But not every treaty falls to be applied by the domestic courts and authorities: treaties that are not ‘directly applicable’ (which very nearly means ‘self-executing’) cannot be so applied. It will appear that the definition of ‘direct applicability’ fairly exactly equates that of ‘self-executing’ treaties: a treaty fails this test if it depends on implementing domestic legislation.

The declarations seeking to exclude ‘direct applicability’ a priori are widely recognized as problematic, for what seems to be a fairly simple reason: the Basic Law orders that international treaties take domestic effect and be applied just like federal statutes, provided they are capable of being so applied (in that they do not require implementing action). Parliament then cannot frustrate this constitutional command by preventing a treaty from being applied as if it was a federal statute.

Now, no-one is suggesting that this view reflects a rule of international law. International treaties usually do not demand that their terms be made effective in domestic law. States have to abide by their treaty obligations in the result, and Article 2(3) ICCPR establishes a right to an effective remedy for acts violating of the Covenant. All of this clearly works best if the treaty can be applied as such by the domestic courts, but there is no duty to allow for that (compare McCann and Others v. United Kingdom, para. 153).

The point here is exclusively one of constitutional law, in this instance with some comparative overtones. I can claim no expertise here, and therefore prefer not to draw any firm conclusions. But could it not be argued that the Constitution itself prevents the Senate at least from pre-empting the ‘self-executing’ analysis on the standard test (which obviously falls to be applied by the courts, although they might reasonably attach great weight to the views of the Senate)? Article VI itself refers to all treaties of the United States without distinction. To be sure, the distinction drawn in Foster v. Neilson between self-executing and non-self-executing treaties is inevitable: a treaty that depends on implementation by Congress cannot be applied as the supreme law of the land. There is nothing to apply there. But where does the further concept of Senate-approved or –disapproved self-executing treaties come from?

There could be an argument that the Senate has full authority over the self-executing nature of a treaty because it has undoubted authority not to give its advice and consent at all. As a political argument, I can see some force in that: better a non-self-executing treaty than no treaty at all (in international law – with all the effectiveness problems that entails). But as a point of pure law, is there not an argument that Article VI – completely voluntarily – opens a door in the (dualists’) wall between domestic and international law, and in so doing allows international law-making processes to shape municipal law? If so, I would have thought it at least arguable that the choice on the self-executing effect of a treaty would depend on the choice of the international law-makers as to the content of the treaty – and, generally speaking, on nothing more. [There would, of course, remain the possibility of constitutional obstacles (cf. De Geofroy v. Riggs, 133 U.S. 258, 267 (1890)), so no treaty might ever be capable of creating new criminal law: see The Over the Top, 5 F.2d 838, 845 (D. Conn. 1925)]

As an international lawyer, I confess to having a certain preference for self-executing treaties. They are likely to be more effective than if they did not have such effect, seeing as the very considerable powers of the domestic judicial branch become available to someone holding rights under such a treaty. But this post was not about legal policy, but about pure law (if such a thing exists).
I would very much welcome any corrections or comments.