A Head-Spinning Self-Execution Story

by Duncan Hollis

This is a wild tale of self-execution (which, I’m fairly sure, is the first time anyone has used the adjective “wild” to describe the self-execution concept). 

For years, the Bush Administration sought to get the U.S. Congress to amend the Arms Export Control Act (AECA) to ease licensing restrictions on arms exports to two of the United States’ closest allies — the United Kingdom and Australia.  Federal officials were unsuccessful in this effort.  So, instead, in 2007, they negotiated bilateral treaties with both countries (see here and here).  The treaties include U.S. commitments to exempt certain exports to the U.K. and Australia from the AECA’s restrictions and requirements.  For our purposes, the most interesting part of those treaties is preambular language, which reflected the parties’ “Understanding that the provisions of this Treaty are self-executing in the United States.”  In other words, in both contexts, the parties anticipated that these treaties would operate as U.S. law on ratification, and, thus, supersede the more onerous provisions of the AECA under the later-in-time rule.  This was a remarkable and (so far as I know) unprecedented move within a treaty text (made all the more interesting since it came from an Administration that in other contexts was openly hostile to self-executing treaties, not to mention that the other countries involved do not permit self-execution within their respective domestic systems). 

Fast forward to this fall, when the U.S. Senate considered giving advice and consent to these treaties.  Unlike the federal government, however, the Senate was less sanguine about the prospect of a self-executing treaty trumping the AECA. As a result, the Senate conditioned U.S. ratification on the following declaration: “This Treaty is not self-executing in the United States, notwithstanding the statement in the preamble to the contrary.”  Why on earth did they include that declaration?  Well, on further questioning, the federal government did an about-face and informed the Senate Foreign Relations Committee (SFRC) that ‘‘Notwithstanding the statement in the preamble of these Treaties, the Treaties are not self-executing. They will be implemented through legislation and regulations thereunder.’’ As such, Congress would have to pass the desired amendments to the AECA to satisfy the U.S. treaty obligations, rather than having the treaty itself effect such amendments.

The Senate gave its advice and consent to the two treaties on Sept. 29, 2010.  Congress has also apparently crafted the necessary statutory amendments, meaning that–even if the treaties are non-self-executing–U.S. law should comport with U.S. obligations under each treaty when they enter into force.

But even if compliance seems not to be at issue, my own head is still spinning from this course of events. I’ve got four outstanding questions.

First, are these treaties so clearly non-self-executing given the Senate declaration?  Normally, I’d think the Senate’s declaration would be definitive (although others, like Carlos Vazquez and David Sloss, have worried whether the Senate and the President have such a power).  But, recall Medellin, where the majority said the first place to look to identify a treaty as self-executing (or not) is the treaty text.  I’m on record saying that this is a red herring (a point with which Justice Breyer agreed).  My experience has been that negotiating parties rarely focus on (or care about) how an individual member state will meet its obligations as a matter of its domestic law since there is such variation in how domestic legal systems approach treaty implementation. These treaties, however, represent a clear counter-example to my claim; the U.K., Australia and the United States all expressly recorded their mutual understanding of how the United States would regard these treaties as a matter of domestic law.  And it seems pretty ironic that the one case where there is a textual indication favoring self-execution for the United States, involves a situation where I’d bet a large sum that the Supreme Court would discount any such a reference (rather, I suspect they’d prioritize the Senate declaration as reflecting a shared understanding of the President and the Senate even if, reading Medellin, that comes across as a secondary source for the self-execution question). 

Moreover, notwithstanding Medellin, the SFRC went out of its way to ask the Executive not to repeat the practice of addressing self-execution in treaty texts: 

The committee notes that the inclusion in a treaty of a statement on the purported self-executing nature of the treaty is highly unusual—perhaps unprecedented—and is contrary to the longstanding practice that such matters are determined through the shared understanding of the Senate and the executive branch. The committee strongly discourages the executive branch from including such provisions in future treaties.

My second question is how does the preambular self-executing provision impact U.S. obligations under the treaty?  The Senate clearly thought that the preambular language had no effect, thus allowing it to make its own declaration of non-self-execution. Here’s what the SFRC report says:

If the assertion of self-execution had been contained in the body of these treaties, the committee would have recommended that they be amended to delete that language. The assertion is made only in each treaty’s preamble, however, and such language is not legally binding on the parties. It has not been the Senate’s practice to amend preambular language in treaties, precisely because such language imposes no obligation on the United States. The committee recommends instead, therefore, that each resolution of advice and consent to ratification contain the following declaration: ‘‘This Treaty is not self-executing in the United States, notwithstanding the statement in the preamble to the contrary.’’

I agree with the SFRC here to a certain extent — preambular language does not give rise to legal rights or obligations for the parties.  On the other hand, the SFRC ignored the fact that preambular language can have legal significance when it comes to interpreting obligations that the parties do assume.  Indeed, VCLT Article 31(2) explicitly defines the context of a treaty to include its preamble.  I’m not sure whether this matters here since the interpretive value of the preambular language would go, I believe, to a U.S. domestic legal issue, not any obligations imposed by the treaty texts themselves.  Still, I think it’s worth noting the more nuanced understanding of preambular language lest the SFRC Report be invoked to support the idea that preambular language has no legal value whatsoever.

Third, why would the Senate push the Executive to flip its position (which is what the record suggests happened here)?  In essence, the Senate declaration conceded an important role to the House at the expense of the Senate’s own prerogative to make federal law with the President under the Treaty Power.  I don’t have a firm answer.  But there were some interesting constitutional questions raised about the prospects of applying these treaties directly to U.K. and Australian exports.  The AECA has a law enforcement function, such that one could read these treaties to involve criminalization (or, more precisely, de-criminalization through listed exemptions), which might trespass on powers allocated exclusively to the Congress.  Interestingly, the Justice Department did not see the prospect of self-executing treaties as constitutionally problematic; they responded to Senate questions on this point with the following:

It is the view of the Department of Justice that the exemptions to the enforcement regime of the Arms Export Control Act that would be established by the United Kingdom and Australia treaties and the regulations promulgated thereunder would be constitutionally permissible. Although a treaty generally cannot itself establish a Federal criminal offense, see, e.g., Hopson v. Krebs, 622 F.2d 1375, 1380 (9th Cir. 1980) (‘‘Treaty regulations that penalize individuals are generally considered to require domestic legislation before they are given any effect’’); The Over the Top, F.2d 838, 845 (D. Conn. 1925), we are not aware of any authority for the view that treaties may not exempt certain actors from, or have the practical effect of narrowing the scope of, criminal culpability under other Federal law. The United Kingdom and Australia treaties, and the regulations to be promulgated thereunder, would not prescribe any additional criminal offenses; rather, they would merely exempt certain conduct, undertaken in conformity with the treaties and the implementing regulations, from the AECA’s enforcement regime.

My fourth question, therefore, is whether the Senate’s declaration denying these treaties self-executing status somehow sets a new precedent for U.S. treaty practice?  For example, does this mean where a treaty has any exemptions from existing federal law (i.e. promises of sovereign immunity, diplomatic immunity, etc.) it will always require implementing legislation?  I’m not sure.  The Senate clearly signaled it disagreed with the Executive Branch approach and asserted a legislative prerogative to dictate the domestic legal status of U.S. treaties.  On the other hand, in accepting the Senate’s position that these treaties were not self-executing, the Executive does not appear to have capitulated in any general way. I can’t find anything in the record that suggests it took the position that these treaties could never have been self-executing (assuming the Senate acquiesced to the Executive’s original position).

And, this is only a small sample of the issues raised by these two treaties.  Indeed, there’s an entirely separate question about the treaty’s failure to accommodate ATF regulations that produced a strange Senate understanding, which, to my eyes, looks more like an amendment.  There are also nine conditions to the Senate’s advice and consent that the Executive must comply with before it can ratify either instrument.  There’s just a tremendous number of treaty issues buried in these exchanges.  And, for me, there are as many outstanding questions as answers.

Hat Tip: Ron Bettauer, for calling the SFRC report to my attention (I’ve yet to find a copy on the web; if anyone has it, please post a link in the comments below).

http://opiniojuris.org/2010/11/11/a-head-spinning-self-execution-story/

6 Responses

  1. Very, very interesting — thanks to you and Ron.  (If you’d only linked your discussion to the Compact Clause, we’d have the potential for a complete geek-fest here.)  I haven’t seen the report, but one possible point regarding the precedent-setting effect . . . Here what was sought was differentiated self-execution, given the UK and Australia, so that the preambular language took the form of “self-executing for me but not for thee.”  I think that’s more problematic in terms of the treaty-maker’s entitlement to dictate self-execution in the treaty text; consider the potential contrast to a bilateral between the US and a monist state that had an undifferentiated preambular declaration, or a multilateral that provided for self-execution save where it was constitutionally impermissible.

  2. I would suggest the declaration in the preamble isn’t really all that unequal (Edward Swaine’s ‘differentiated self-execution’ point). The question of self-executing arises only in U.S. law, but not in the UK. In the UK, treaties are made under the royal prerogative, that is to say by the Crown (the government) alone. The Crown, however, has no authority to change domestic law, so no treaty ever takes any effect in domestic law (unless an Act of Parliament is passed to make it so). There is no question of self-executing effect; there is no effect at all.

    In a way, therefore, this treaty is a bit like Edward Swaine’s hypothetical ‘multilateral that provided for self-execution save where it was constitutionally impermissible’ (except in that it’s a bilateral treaty). Self-execution isn’t only constitutionally impermissible in the UK, it’s unknown. The only way that there could have been an equal obligation on the UK (if there was any obligation on the U.S.), I suppose, would have been if there had been an obligation on the UK to transpose the treaty into domestic law (to execute it, as it were).

    (But then, I wonder if any implementing domestic legislation was ever needed in the UK for this particular treaty; I guess not.)

    On the issues of U.S. law, I suppose this episode proves (once again) that Article VI of the Constitution does not, on its own and with binding force for the Senate and the President, command that all treaties capable of domestic effect shall have such effect. As I have attempted to show when I was a guest blogger here, German law takes the opposite view, against a very similar constitutional background. There, the federal treaty-making organs are not entitled to withhold self-executing effect from a treaty that, on its own terms, is capable of applying much like a domestic statute.

  3. Tobias, I agree with you.  The point of the hypotheticals was to establish instances in which the US was not taking upon itself a singular burden by virtue of preambular language.  It will, necessarily, do so by virtue of its constitutional system and by the substantive terms of the treaty (under Medellin).  But I can see particular pushback when it comes to the less intrinsic assumption of self-execution via a mechanism of this kind, which looks more like the Senate and President are employing a vehicle for domestic purposes and imposing no comparable burden — even in theory — on another state.

  4. Is the question of whether or not a treaty is self-executing one that is to be left to a judiciary?  If Congress were to create an act and include the declaratory statement – “this law is not unconstitutional” – would it be so?
    I am a current law student, and we just went over the Medellin case in my international law class.  My impression was that a self-executing treaty confers rights that are to be enforced as domestic law in the countries party to the treaty – although it is unclear what remedy there would be for a violation of those rights.  I am concerned in the AECA context that the executive would use this concept simply to trump existing treaty law, and confused as to how that is possible.

    Also, if Congress were to give its advice and consent to these new bilateral treaties (and the self-executing statement was not included in the preamble) would the later-in-time rule not still apply and the AECA still trumped?

    Please help a struggling law student. Thank you for your post on this issue.

  5. The question of whether a treaty is or is not self-executing is one that is, for the most part, the province of only one judiciary – that of the United States.  As pointed out above self-execution is, by definition, impossible under dualist constitutions (including the UK, the constitution with which I am most familiar) but is, again by definition, presupposed under monist constitutions.  For all of the reasons indicated, the United States presents an unusual mix, combining a monist inspired text with a well established, judicial practice of presuming dualism, save where text and/or intent clearly require domestic application (I share the suspicion that the Medellin majority’s stated preference for textual analysis lose out to Senate/Executive intent were a dispute ever to make it that far).

    In answer to one of the other issues raised in the previous post, the domestic remedy for a violation of a right derived from a self-executing treaty right would be the same as the remedy for violation of a right established by federal statute – ie. relief through an Article III court.  When the complaint is brought by a treaty party and concerns the deficient domestic application of a treaty (self-executing or not) by another party, the remedies available vary by treaty. A complaint may lie with the ICJ (as was the case in Avena/Medellin), or the remedy might be something as mundane as suspension of the relevant provision between affected parties.  Such is the way of a legal system where the subjects of the system (ie. states) shoulder the primary responsibility of adjudication and enforcement.

    I am not sure what your concern related to the AECA is – by using this route, the executive may have effectively cut the House of Representatives out of the revision process, but this route to legislative revision would be dead on arrival without the advice and consent of the other half of the legislative branch, the Senate.  The President could have entered an executive agreement (which would, as a matter of international law, bind the United States) but doing so would have no effect domestically as the provision the agreement would seek to alter is statutory – and executive agreements cannot trump statutes.  An advice and consent treaty is capable of creating domestic law equivalent to that created by ordinary act of Congress.  Thus advice and consent treaties can, just like statutes, trump provisions of other statute (or indeed of other treaties), primarily through application of the later in time rule –

    Hope some of that helped..

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