Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties by David Sloss

[ David Sloss, Professor of Law and Director of the Center for Global Law and Policy, Santa Clara University School of Law, describes his recently published article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.

Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create.

To provide a cogent answer to domestic implementation questions, courts must analyze domestic constitutional and statutory provisions to determine which government officials have the domestic legal authority and/or duty to implement the treaty. The inquiry necessarily begins with treaty interpretation: courts cannot properly resolve domestic implementation issues without first ascertaining the nature and scope of the international obligation. Having determined the content of the international obligation, though, the treaty interpretation inquiry is complete. The second step of the analysis necessarily moves beyond treaty interpretation to consider domestic laws delineating the powers and duties of various government officials and institutions. This two-step approach provides the best explanation of Marshall’s opinion in Foster.

The intent-based doctrine is founded on the mistaken view that self-execution is a single question to be answered by treaty interpretation analysis. In contrast, the two-step approach recognizes that the question whether a treaty is self-executing is actually two very different questions masquerading as a single question.The two-step approach directs courts to address domestic treaty implementation issues by abandoning their quest for a fictitious intent of the treaty makers, and considering a variety of domestic constitutional and statutory provisions that actually address the allocation of domestic authority over treaty implementation.