David Sloss Responds to Carlos Vázquez

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

I appreciate Professor Vázquez’s thoughtful response to my article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. Professor Vázquez is a brilliant scholar whose many writings on self-executing treaties have made a valuable and enduring contribution to the literature. As he acknowledges, he and I agree on many issues related to the self-execution debate. In this brief reply, I will focus on one area of disagreement: the correct interpretation of Chief Justice Marshall’s opinion in Foster v. Neilson, decided in 1829.

Marshall stated clearly in Foster that Article 8 of the 1819 treaty with Spain (the “Florida treaty”) required legislative implementation. What was the rationale supporting that conclusion? Professor Vázquez contends that Marshall applied the “intent-based approach” in Foster. Under that approach, the distinction between self-executing and non-self-executing treaties turns entirely on a treaty interpretation analysis. In contrast, I contend that Marshall applied the “two-step approach” in Foster. Marshall’s conclusion rested partly on a treaty interpretation analysis (step one), and partly on an unarticulated assumption about the constitutional allocation of authority to dispose of property belonging to the United States (step two).

Professor Vázquez is surely correct to note that Chief Justice Marshall engaged in a treaty interpretation analysis in Foster. However, contrary to Professor Vázquez’s claim, Marshall’s treaty interpretation analysis focused on the nineteenth century distinction between executory and executed treaties, not the twentieth century distinction between self-executing and non-self-executing treaties. In nineteenth century parlance, an executed treaty accomplishes the goal to be accomplished: no further implementing measures are necessary. In contrast, an executory treaty obligates States to take additional affirmative steps to accomplish the goals specified in the treaty. Article 8 of the Florida treaty obligated the United States to “ratify and confirm” land grants made by Spanish authorities when Spain exercised dominion over Florida. In Foster, Marshall said that Article 8 was executory: additional affirmative steps were needed to “ratify and confirm” the Spanish land grants.

Marshall supported this conclusion by distinguishing between a hypothetical treaty stating that land grants “are hereby confirmed” and the actual treaty language stating that land grants “shall be ratified and confirmed.” Professor Vázquez contends that, in Marshall’s thinking, “shall be ratified” implies legislative implementation (non-self-executing), but “hereby confirmed” implies judicial implementation (self-executing). With all due respect for Professor Vázquez, this strikes me a strained attempt to shoehorn nineteenth century thinking into twentieth century categories. On its face, the distinction between “hereby confirmed” and “shall be ratified” has no apparent connection to the distribution of power between the legislative and judicial branches. However, that distinction corresponds precisely to the nineteenth century distinction between executory and executed treaties. Treaty language specifying that land grants “are hereby confirmed” does not require further implementation because the treaty itself accomplishes the goal to be accomplished. Treaty language specifying that land grants “shall be ratified” requires additional affirmative steps to accomplish the treaty’s objectives.

My proposed interpretation of Foster is supported by the views of Marshall’s contemporaries. For example, in his argument to the Court in United States v. Percheman, 32 U.S. 51 (1833), Joseph White (Percheman’s attorney) relied expressly on the distinction between executory and executed treaties. See id. at 69. Moreover, Marshall’s opinion in Percheman closely followed White’s rationale, although Marshall himself did not use the terms “executory” and “executed.” See id. at 88-89 (Marshall’s opinion); id. at 68-70 (White’s argument). Less than a decade after Foster, the Supreme Court stated that Foster “recognized the distinction between an executory treaty . . . and an executed treaty.” Rhode Island v. Massachusetts, 37 U.S. 657, 746 (1838). In sum, Marshall’s contemporaries understood that Marshall’s treaty interpretation analysis in Foster focused on the nineteenth century distinction between executory and executed treaties, not the twentieth century distinction between self-executing and non-self-executing treaties.

Next, consider the state of self-execution scholarship a century after Foster. In 1919, Professor Quincy Wright, the leading foreign affairs scholar of his generation, wrote: “all treaties might be called “self-executing” in the sense that their formal conclusion imposes an immediate responsibility upon every governmental authority whose action may be necessary to give it complete effect.” Quincy Wright, The Constitutionality of Treaties, 13 Am. J. Int’l L. 242, 263-64 (1919). Wright’s view reflected the conventional wisdom that prevailed from the Founding until World War I: all treaties that impose binding obligations on the United States under international law also impose binding domestic legal obligations on all judicial and executive officers at the federal, state and local levels, insofar as domestic law grants them authority to perform actions necessary to fulfill U.S. treaty obligations. Wright’s analysis is entirely consistent with the two-step approach that I advocate. In contrast, Professor Vázquez’s intent-based approach is inconsistent with Wright’s analysis.

In 1926, Professor Edwin Dickinson authored the first law review article that endorsed the intent-based approach to self-execution. See Edwin D. Dickinson, Are the Liquor Treaties Self-Executing?, 20 Am. J. Int’l L. 444 (1926). Dickinson persuaded the authors of the Restatement (Second) of Foreign Relations Law to incorporate his intent-based approach into the Restatement. Only after publication of the Restatement (Second) in 1965 did the intent-based approach become accepted judicial doctrine. To make a persuasive case in support of his view that Marshall applied the intent-based approach in Foster, Professor Vázquez would have to explain why no one advanced that interpretation of Foster until almost a century after Marshall’s death.

Professor Vázquez concedes that the intent-based approach to self-execution is “highly problematic.” When courts apply the intent-based approach and conclude that a treaty is non-self-executing, he says, “they are almost certainly misreading the treaty [and] attributing to the parties a nonexistent intent.” Nevertheless, he claims, we are stuck with the intent-based approach because Marshall adopted that approach in Foster. In contrast, I contend that Marshall applied the two-step approach in Foster. Professor Vázquez apparently agrees that the two-step approach is analytically superior to the intent-based approach because courts applying the two-step approach base their decisions on rational analysis, instead of basing their decisions on a fictitious, judicially created intent. Given two possible interpretations of Foster – one which induces courts to decide cases on the basis of a fictitious intent, and another which encourages courts to decide cases on the basis of rational analysis – shouldn’t we prefer the latter interpretation?