Introducing International Law at Home

by Oona Hathaway and Sabria McElroy and Sara Aronchick Solow

We would like to open with a word of thanks to Opinio Juris, to our editors at the Yale Journal of International Law, and to the commentators who have agreed to participate in this discussion, for making this symposium possible. We are so grateful to be a part of this community.

Our article, International Law at Home: Enforcing Treaties in U.S. Courts, aims to make sense of when and how international law can be used in U.S. courts and when it cannot. We began working on this article now nearly three years ago in the immediate aftermath of the U.S. Supreme Court’s decision in Medellín v. Texas. At the time, we aimed to understand the likely impact of Medellín on the enforcement of international law in U.S. courts and consider how the government might respond.

In the article that has since taken shape, we have three central aims. First, we seek to provide an account of the legal and historical context of Medellín—examining both the case law that led up to the decision and how the lower courts have since responded. Although we are far from the only ones to provide an historical account of the enforcement of international law in U.S. courts, we aim to point out some patterns that may have not been fully addressed. We show that between 1790 and 1947, the Supreme Court adopted a presumption both in favor of finding treaties self-executing and finding that they created a private right of action. Interestingly, these cases involved four areas of primary rights—contract, property and inheritance, habeas corpus, and the right to carry on a trade—that had always been treated as judicially enforceable under the common law. That strong presumption in favor of enforcement weakened but did not disappear in the period following World War II, a shift we argue can be traced at least in part to a backlash against the emerging human rights revolution and the threat some feared it posed to racial segregation and Jim Crow. Finally, we show that in the few years since Medellín, the lower federal courts appear to have interpreted Medellín to put in place a strong presumption against treating treaties as self-executing or as creating a private right or private right of action. Medellín has thus apparently succeeded in flipping the Founding-era presumption in favor of enforcement into a presumption against.

Second, we aim to place direct enforcement of international law through private rights of action into broader context in a second way—by looking at all the ways in which international law can be enforced in U.S. courts. The direct enforcement of treaties called into doubt in the wake of Medellín is only a part of the picture, we argue. Treaties are enforced in U.S. courts in several other ways as well—through what we term “indirect enforcement,” “defensive enforcement,” and “interpretive enforcement.” By examining this broader scope of treaty law enforcement, we hope to place the effect of Medellín into perspective. We hope, as well, that this fuller picture of treaty law enforcement will be useful to scholars and practitioners aiming to better understand how international law “comes home” in the United States.

Third, we consider steps that can be taken to increase the likelihood that treaties will continue to be enforced in U.S. courts in a post-Medellín world. We offer three proposals for how each of the branches of the federal government can strengthen the enforcement of international law. First, we argue, Congress could pass legislation providing for the judicial enforcement of certain subsets of Article II treaties. We suggest that this might be used not only to address the enforcement of individual treaties but could be used as a broader fix in particular areas of law—most notably to address new concerns about the enforceability of commercial treaties placed into doubt by Medellín. Recognizing that legislative fixes face difficult political obstacles in the short term, we offer two other proposals as well. Our second proposal is for a Clear Statement Rule: the President could submit treaties to the Senate for ratification with clear statements about whether they are self-executing, either in the treaty’s formal text or accompanying documents. Indeed, this is already becoming a part of existing practice post- Medellín. Third, we point out that the federal government can resort to a Public Right of Action through which it would bring lawsuits to enjoin state and local governments from activities that place the United States in violation of its international treaty obligations. We argue this approach should be used sparingly, however, as it places the federal government in an adversarial position vis-à-vis a state or local government. Together, our proposals acknowledge that the problem of international law enforcement is not simply one for the courts to solve. It is as much within the Congress and the President’s power and responsibility to address as it is within the courts’. The President and the Senate, after all, concluded the Article II treaties now called into doubt, and we argue that they must now work, together with the courts, to put the doubts to rest.

http://opiniojuris.org/2012/02/23/introducing-international-law-at-home/

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