A Head-Spinning Self-Execution Story

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).