09 Apr What’s the Status of the US-Canada Boundary after Medellin?
It’s not often that an NPR show features treaties, but last week, Ira Glass of This American Life, had a fascinating story about the US-Canada International Boundary Commission (listen to Act 1). In short, he recounts a fight between a Bush-appointed commissioner Dennis Schornack and the Justice Department over the application of a series of treaties between the United States and Canada establishing the US-Canada boundary line and empowering two commissioners (one appointed by each side) to operate as an International Boundary Commission (IBC) with the charge of overseeing and maintaining the boundary. The current controversy combines questions of treaty interpretation, international organizations law, and constitutional law. It started as a treaty interpretation problem. Article 4 of the 1925 Boundary Demarcation Treaty provides:
The Contracting Parties, in order to provide for the maintenance of an effective boundary line between the Dominion of Canada and the United States . . . hereby agree that the Commissioners appointed under the provisions of the Treaty of April 11, 1908, are hereby jointly empowered and directed: to inspect the various sections of the boundary line . . . at such times as they shall deem necessary; to repair all damaged monuments and buoys; to relocate and rebuild monuments which have been destroyed; to keep the boundary vistas open . . . to maintain at all times an effective boundary line between the Dominion of Canada and the United States . . . as defined by the present Treaty and Treaties heretofore concluded, or hereafter to be concluded; and to determine the location of any point of the boundary line which may become necessary in the settlement of any question that may arise between the two Governments.
The Commission has evidently relied on the authority to “keep the boundary vistas open” in this treaty to maintain a 20 foot strip (ten feet on either side) free from any natural or man-made obstructions along the more than 5,000 mile boundary. For decades the two sides have stopped private property owners and others from building within the 20 foot strip to preserve this vista. And, until recently, no one had ever challenged their legal authority to do so. But when a Washington couple–Shirley-Ann and Herbert Leu–were asked by the IBC to stop building a small retaining wall less than 10 feet from the border, they sued the IBC in U.S. court and challenged its ability to interfere with their property rights. When the IBC’s American Commissioner, Dennis Schornack, sought the assistance of DOJ (the State Department having told him that he represented an independent international organization that they could not help), he was surprised to learn DOJ sided with the property owners (the story never gets specific on why the Justice Department took this position; I’m assuming DOJ might argue that there’s a 5th Amendement problem with maintaining the vista on private property and that under Reid v. Covert whatever the domestic legal status of U.S. treaties, they cannot contravene the Constitution). The Justice Deparment, moreover, informed Schornack that he was an agent of the Executive and could not take an independent position on the treaty’s meaning, but had to adopt that of the Executive. Schornack refused, arguing that although appointed by President Bush, the treaty made him into an “independent” commissioner of an international organization, one whom the President could neither fire nor control. The Administration proceeded to replace Schorack, a move recently upheld by the District Court for the Western District of Washington on the grounds that the President’s removal power was not limited by any of the US-Canada treaties setting up the IBC.
The story appears to have been put together pre-Medellin, and so I listened to it wondering what the effect of that decision would be on the domestic enforceability of the various boundary treaties, including U.S. authority to maintain the vista. For starters, I’m assuming that the Court would find the treaty text itself does not establish that it is self-executing, particularly where Canada follows the British practice of having no self-executing treaties (and, indeed, unlike the United States, Canada actually passed a law to implement the boundary, the IBC and its work). I haven’t looked at the treaties’ legislative histories, but given their dates of 1908 and 1925, I’d be very surprised if there’s any affirmative indication by the Executive or the Senate that these treaties were intended to be self-executing. And, if that’s true, under the logic of Medellin, we’d have to say the boundary treaties are not self-executing. And, if they’re not self-executing, according to the Court, it appears that they are not federal law. So far so good for DOJ in reinforcing its view that authority to maintain a vista can’t deprive private property owners of their right to build on their property. But, if it’s true that the boundary provisions are not federal law, then what’s the legal authority for enforcing the boundary line at all? Is there some statute out there that authorizes the Executive Branch to maintain the boundary line where it is and keep folks from crossing it, moving it, or building much larger obstructions than a 3 foot retaining wall? If not, could Medellin have the unintended consequence of wiping out our border with Canada until Congress legislates it?
Now, I’d assume that the courts would not go so far, even if that’s the direction Medellin clearly points. For example, I’d expect that, unlike the enforcement of ICJ decisions, one could find Congress has acquiesced in the U.S.-Canada boundary. My point though is that even as Medellin clarified the long-debated doctrinal questions of what it means for a treaty to be non-self-executing, and when to find a treaty qualifies as such, it has opened up whole new areas of confusion over the current domestic legal status of treaties that were otherwise silent on the self-executing question. I’d be interested to know if any of our readers have views on this case, or other instances, where you think Medellin may curtail the domestic legal status of U.S. treaties in unanticipated ways.
Duncan,
Perhaps this passage from the majority opinion in Medellin is relevant to your question about border enforcement?
“None of this is to say, however, that the combination of a non-self-executing treaty and the lack of implementing legislation precludes the President from acting to comply with an international treaty obligation. It is only to say that the Executive cannot unilaterally execute a non-self-executing treaty by giving it domestic effect. That is, the non-self-executing character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts. The President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution. But he may not rely upon a non-self-executing treaty to ‘establish binding rules of decision that preempt contrary state law.’”
Curt
Thanks Curt — The language you quote suggests that if the Executive has authorities that it can use without going to court, it can still use them to comply with our treaty commitments. But, I wonder, what happens when the case ends up in Court like the Leu’s complaint about restrictions on their property use? Now, in that case, maybe the Constitution trumps b/c of 5th Amendment concerns. Thus, we don’t get to the question of the President’s ability to act under the authority of a non-self-executing treaty since no treaty can authorize unconstitutional acts (i.e., an uncompensated taking). But, I’d think there’d be other things the IBC does that wouldn’t rise to a taking, and it’s those that I’m wondering about when/if they’re subjected to judicial challenge. I read Medellin to suggest acts authorized by a NSE treaty will not be judicially enforceable against private parties (or the states) b/c the treaty lacks “domestic effect.” More generally, the quoted langauge leaves open some (but not much) room for debate over what it means for a NSE treaty to lack “domestic effect.” One could, I suppose, read this paragraph to suggest that the Court is simply defining no domestic effect… Read more »
For starters, I’m assuming that the Court would find the treaty text itself does not establish that it is self-executing, particularly where Canada follows the British practice of having no self-executing treaties (and, indeed, unlike the United States, Canada actually passed a law to implement the boundary, the IBC and its work). I’m afraid I fail to follow you there. If Canada follows the British model, under which treaties are never part of domestic law in the absence of implementing legislation (and, strictly speaking, not even the presence of such a statute: see R. v. Lyons, para. 27; Re McKerr, paras. 26, 64-70), then the question of self-executing effect cannot arise. Neither the fact that the treaty as such isn’t domestic law nor the fact that there is implementing legislation therefore suggest that the US ought to think of the treaty as either self-executing or not. Nor do I think there’s a semi-political point to be drawn from this, at least in the sense of an argument against self-executing effect. Considerations of reciprocity might suggest that there isn’t a really good claim to self-executing effect if nothing of the sort exists in the other State party to the treaty. But… Read more »
Sorry, forgot to link to R. v. Lyons. Done.
Not all British treaties require implementing legislation. Peace and alliance treaties do not, according to Blackstone: “It is also the king’s prerogative to make treaties, leagues and alliances with foreign states and princes. . . . Whatever contracts he therefore engages in, no other power in the kingdom can legally delay, resist, or annul.” William Blackstone, 1 Commentaries on the Laws of England 257 (1769).
Francisco Forrest Martin
In Canada, while international instruments are non-self-executing, the Supreme Court of Canada has recently held that based upon the doctrine of adoption, “prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation.” (see R. v. Hape, 2007 SCC 26 at ¶ 39 per LeBel, J. (McLachlin C.J., Deschamps, Fish and Charron JJ. concurring) (S.C.C.)(June 7, 2007) available at:short description Nevertheless, international treaty obligations must be incorporated into domestic law through implementing legislation in order to be binding. As a federal state, Canada is comprised of 14 jurisdictions on 3 levels: one federal, ten provincial and 3 territorial governments. The treaty-making power resides in the executive branch derived from the Royal Prerogative. Accordingly, the Canadian federal government negotiates international obligations and ratifies, accepts, approves or accedes to international instruments. Based upon Canada’s constitutional division of powers, the subject-matter of the international instrument determines which level of government has legislative implementing power. If, under the Constitution Act, 1867, the subject-matter falls under provincial jurisdiction (typically private international law treaties or conventions), then each province is required to pass implementing legislation. Under Canadian law, the federal government is ultra vires in areas within the ambit… Read more »
However, I should add that Blackstone may have been not entirely correct. Some peace and alliance treaties also may impose domestic obligations that would require Parliament to enact legislation, according to the parliamentary supremacy principle. Only acts of Parliament represent “the supreme law of the land” — a phrase, as I recall, employed by Blackstone and later used by the Framers in the Supremacy Clause of the U.S. Constitution.
This is not the case in the U.S. ALL treaties (whether or not they impose domestic obligations) represent the supreme law of the land. The inclusion of the Supremacy Clause in the U.S. Constitution was to prohibit the states from using the parliamentary supremacy principle in justifying their refusal to comply with U.S. treaties that impose domestic obligations.
Francisco Forrest Martin
Duncan, this is a really interesting question — not a story I had been following closely, nor a connection I saw. Note the reference in the Court’s opinion to the Gulf of Maine boundary decision and its implementation by NOAA (fn. 14). I have not yet had a chance to look at the final rule to see whether there is a separate legislative authorization, but I imagine the Court would have mentioned that. I also don’t know what effect it purported to have, which is the open question here. I suppose the Court might readily concede that the President and administrative agencies have some such implementing authority — which might be likened to Canada’s legislative implementation of the IBC under its more inflexible dualism. The question remains, though, what legal effect does that have outside the executive branch? Perhaps the President may, by virtue of an international obligation that has been authoritatively construed, decide where U.S. officials stand, or where to build a checkpoint, etc. But it does seem peculiar to think that a private citizen would be immunized from any legal effect that those decisions might have. Think of all the juicy customs issues!
Francisco, I believe Blackstone only addressed the conclusion of treaties, not the manner of implementation of treaty law into domestic law. On that, he is quite correct: the conclusion of international treaties comes within the Royal Prerogative. This means that the government signs a treaty, submits it for Royal Assent (which, of course, the Queen invariably gives), and then declares British ratification of the treaty (in the international sense). Parliament does not come into it at this stage, except in that it is, according to a mere consitutional convention, informed before the Queen signifies her Assent. It certainly does not get a vote on the matter (not by law, anyway; politics may dictate a different course). If the treaty then requires that it be transposed to domestic law, then that is a matter of Parliament. It is, however, a quite separate matter. All treaties are concluded by the Crown only, and thus become fully binding on the UK in international law. If a treaty does require to be implemented by legislation, this does not mean that Parliament must approve its conclusion. It only means that, if the Government fails, subsequent to conclusion of the treaty, to secure implementing legislation in… Read more »