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

by Tobias Thienel

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.

http://opiniojuris.org/2008/01/24/self-executing-treaties-the-senate-and-a-bit-of-german-law/

8 Responses

  1. I’d suggest that your executing/self-executing distinction is not entirely correct.

    While some decisions (especially older ones) focus on whether a treaty requires further legislation to implement the treaty, current judicial decisions focus on whether the treaty in question creates a private cause of action that is intended to be judicially enforceable by our courts. This understanding more accurately accords with Senate statements on whether the treaty is intended (by the Senate) to be judicially enforceable.

  2. The constituional doctrine on self-executing treaties was established by Chief Justice Marshall in Foster v. Neilson, 27 U.S. 253 (1829); overuled on other grounds, United States v. Percheman, 32 U.S. 51 (1833).

  3. “But as a point of pure law, is there not an argument that Article 6 – 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?”

    Mr Thienal,

    Your question, if I understand it correctly, appropriately highlights the somewhat circular and oftentimes confusing nature of the self-executing/non-self-executing doctrine in American jurisprudence. On its face, Article VI by itself may seem to indicate that international law-making processes can in fact shape domestic law. However, looking at Art. VI in context it seems such can only occur with a subsequent domestic blessing. The principle of self-execution (per Foster) seems to have been developed so as to prevent this “door in the (dualists’) wall” from being opened too wide. Thus, as I’m sure you know, the doctrine acts to ensure that the domestic democratic process is not circumvented, and regardless of any label given to it. Ie, such int’l law-making processes will only ‘shape’ municipal law if we (the US) allow it.

    On another note, you are quite correct in analogizing the German/EU concept of direct applicability with self-execution, as the two are substantially the same. You also noted the numerous constitutional similarities between the US and Germany, but I was wondering if Article 24 of Germany’s constitution (allowing the transfer of legislative powers to international organizations) further contributes to a discrepancy between how the doctrines are applied? Does a lack of such a provision in the US Constitution play a role in your query (you would know better than I)?

  4. Your preference for self-executing treaties. As you said, “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 suggest that you share your opinion in this area as well.

  5. Thank you all for your comments. I apologise for this late reply. Time zones…

    First off, Charles Gittings: true, I didn’t mention that Foster has been overruled in Percheman, but as you say, that was very much ‘on other grounds’. If anything, Percheman applied the doctrine from Foster that I have quoted, but departed from it on the interpretation of the particular treaty relevant to both cases.

    Humble Law Student:

    I would suggest that your question of whether a treaty creates a private cause of action is relevant to the overall concept of self-executing treaties, but also that it is opposed neither to the test I have mentioned, nor to my argument on the role of Senate declarations.

    The DC Circuit has said in Committee of US Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 937 (1988) that:


    Treaty clauses must confer such rights in order for individuals to assert a claim “arising under” them. See U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1331 (1982). Whether a treaty clause does create such enforcement rights is often described as part of the larger question of whether that clause is “self-executing.” See, e.g., Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win At Any Price?,74 Am.J.Int’l L. 892, 896-97 (1980) (question whether a particular treaty requires implementing legislation is different from the international law question of whether treaty “aims at the immediate creation of rights and duties of private individuals which are enforceable,” but both questions are part of the “concept of self-executing treaties”); cf.Restatement (Third) of Foreign Relations Law § 111 comment h (1987) (question of treaty’s self-executing nature is “distinct from whether the treaty creates private rights or remedies”).

    That clearly has logic on its side. A treaty may well be specific enough not to require implementing legislation, and yet create no private cause of action. Both elements are critical to a claim if plaintiff relies on a treaty as a basis of the cause of action. The case may be dismissed on either ground if plaintiff fails on both, and the two tests may, in that sense, be lumped together as elements of the larger, unifying ‘self-executing treaty’ test.

    It seems to me, however, that the ‘private cause of action’ test is not necessarily dispositive. Suppose, for instance, that a treaty (that does not require implementing measures, and in that sense is self-executing) is relied on not as giving a cause of action, but as affording a defense. Surely you wouldn’t say this is impossible, i.e. that a treaty can only apply in one way as ‘the law of the land’, namely in creating causes of action?

    I would just note that my formulation of the test was whether the treaty had any ‘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.’ Also, your preferred formulation spoke of ‘a private cause of action that is intended to be judicially enforceable by our courts.’ It seems to me that we don’t actually disagree all that much. We both seem to mention (apologies if I misread your statement) a) the need for the treaty to be capable of direct application, without implementation (your ”intended to be judicially enforceable by our courts’), and b) the need for the treaty to actually have a material effect on domestic law. The only real difference seems to be that I would allow for any effect on private rights and duties, whereas you concentrate on the creation of private rights. Leaving aside the matter of duties in criminal law (The Over the Top, cited above), do you conceive of this as an actual limitation on what treaties can do?

    Finally, a few words on Senate declarations in the light of your comment: let us suppose that the creation of a private cause of action was the critical point. Alternatively, let’s suppose any effect in domestic law would do. Wouldn’t that still be exclusively a reference to the content of the treaty, as a result of the international law-making process? How could the Senate have any larger role in declaring that no cause of action derived from a treaty than in saying that the treaty was not specific enough and needed implementing legislation?

    Frankie Masterson:

    Thank you, first of all, for putting me right on the Roman, rather than Arabic, numeral for the article.

    As I may have foreshadowed in my reply to the Humble Law Student, I’m not sure I agree with your interpretation of Foster. I don’t think Foster really went as far as to put the self-executing effect of a treaty at the mercy, or (to put it more kindly) under the control of the United States treaty-making bodies (specifically for our purposes, the Senate).

    As I read it, Foster makes a very simple point, one that has survived until today in the basic definition of the ‘self-executing’ treaty. The point is that a treaty that is exclusively a compact between nations cannot possibly be applied by the courts. How would you domestically apply a treaty obligation on the United States to put in place legislation for some purpose or other? How does a court apply a treaty that merely expresses an agenda for future action, in exhortatory or aspirational terms? The answer of Foster is: it does not. If a treaty needs implementing legislation, it does not provide ‘judicially discoverable standards’ for adjudication; it does not make law for the judges, or in the terms of Foster is not ‘a rule for the Court.’

    But that is still a question relating to what the treaty says and does. The answer does not depend on whether any organ of the US wants the treaty to operate in one way or the other. There is a choice on whether to ratify the treaty at all or not. But the Constitution pre-empts the choice of whether to have a treaty apply as ‘the supreme law of the land': treaties do apply in this manner, except where they cannot take on any such meaning.

    Nor do I think there is any real concern as to the democratic process being circumvented. Firstly, that process is a product of the Constitution; if that decides that only the President and Senate shall make the ‘supreme law of the land’ in the shape of international treaties, then there can be no criticism (in law) of that. [The reason, incidentally, for this choice seems to have been that it was envisaged that the Senate would play a role already in the negotiation of treaties, and that the smaller Chamber would be better suited to preserve the necessary secrecy: McLaughlin, The Scope of the Treaty Power in the United States, 42 Minn. L. Rev. 709, 736-739 (1958)] Secondly, the House of Representatives doesn’t get a word in as regards the Senate declarations excluding self-executing effect, either. That doesn’t help to dispel worries about democratic control over the law of the land, does it? After all, the House just might want a treaty to be self-executing.

    Thank you also for your point about German law. As regards your question concerning Article 24 of the Basic Law, I’m not sure I really am more knowledgeable than you are. Anyway, I feel I should first set out the article, for the benefit of other readers:


    (1) The Federation may by a law transfer sovereign powers to international

    organizations.

    (1a) Insofar as the Länder are competent to exercise state powers and to

    perform state functions, they may, with the consent of the Federal Government,

    transfer sovereign powers to transfrontier institutions in neighboring

    regions.

    (2) With a view to maintaining peace, the Federation may enter into a system of mutual collective security; in doing so it shall consent to such limitations upon its sovereign powers as will bring about and secure a lasting peace in Europe and among the nations of the world.

    (3) For the settlement of disputes between states, the Federation shall accede to agreements providing for general, comprehensive, and compulsory international arbitration.

    I will do some research on your question a bit later, but here’s my first two cents: firstly, Article 24 obviously only applies to a limited class of treaties (notably the UN Charter). It therefore cannot change the law relating to direct application as regards any other treaties. Secondly, I don’t think it changes such law even for the treaties to which it does apply: Article 24 refers back to Article 59(2) in some respects, including, I would have thought, the question of direct applicability.

    Article 24 has a slightly more remote function, too, as evidence of the friendly attitude that the Basic Law takes vis-à-vis public international law. That idea has been given a number of applications (for instance, it provides the basis for the German ‘Charming Betsy‘ rule of statutory interpretation), but I don’t think it has any immediate application in the context of our present debate.

  6. Bipin Adhikari,

    yes, I suppose my reading of the law is in harmony with my political preferences. Whether it is colored by the latter I obviously cannot really say, but I have certainly tried not to give too much weight to such subjective matters.

  7. I now have some more thoughts on Article 24 of the Basic Law. First, a clarification of an earlier statement of mine: paragraph 2 of Article 24 applies to the UN Charter. Paragraph 1 does not.

    Secondly, I stand by my assertion that Article 24 can say nothing about the direct application of treaties to which it does not apply. I also still don’t think the constitution’s ‘friendliness towards international law’, which finds expression not least in Article 24, has any bearing on the question of the direct application of treaties. The general standards of German law on that, as outlined in the post, are pretty generous anyway, as are the comparable standards under Art. VI of the US Constitution.

    I am less certain of the direct applicability of treaties to which Article 24 does apply. Article 24(1), at any rate, has been said to mean that the acts of any such organization would have domestic effect (remember, that does not include action by the UN – UNSC resolutions are not directly applicable). But then, I can’t see how any treaty or measure taken under a treaty could be directly applicable / self-executing if it failed the usual standard applied under Article 59(2), i.e. if it was too unclear to carry its own immediate legal consequences, or if it called for further legislative action. That would seem to support my original idea that the test for direct applicability under Art. 24 should be the same as under Art. 59(2), possibly by implied reference to the latter provision. But I’m by no means sure of this.

    [With thanks to Prof. Andreas Zimmermann for discussions today and yesterday.]

  8. This was, like your other posts, extremely interesting and valuable. Thanks particularly for the comparative point — it’s the kind of information and perspective that good blogging can really contribute.

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