27 Feb Hathaway, McElroy, and Solow Respond to Comments on International Law at Home
Our thanks to everyone who has participated in this symposium—John Bellinger, David Sloss, Chimene Keitner, and Steve Vladeck—as well as to Matt Christiansen, who has coordinated the symposium for YJIL. It’s been such a pleasure to see the thoughtful and varied reactions to our Article. Here we take the opportunity to offer a few brief words in response to round out the symposium.
First, we very much appreciate John Bellinger’s generous and kind response. We know that John labored long and hard to bring the Medellin case to a different conclusion. As he rightly points out, the Court’s decision creates both backward-looking and forward-looking problems—backward-looking because there is new uncertainty about the validity of treaties long considered self-executing, and forward-looking because it is difficult to convince treaty partners to include statements of self-execution that speak almost exclusively to our own, largely idiosyncratic, legal debates. He is absolutely right that comprehensive legislation to try to address these problems by allowing private rights of action under a wide range of treaties is highly unlikely. A question for further debate is whether there is a class of treaties—such as, perhaps, Friendship, Commerce, and Navigation treaties—for which such legislation might be both desirable and feasible. Finally, we agree wholeheartedly that efforts to educate members of Congress and state officials is going to be an important part of the long-term solution to the problems we identify in the piece.
Second, we are so grateful to have David Sloss, who is a leading scholar on this topic, join the symposium. For those interested in a comprehensive comparative treatment of these issues, his book offers a great resource. His observation that treaties regulate three types of relationships—horizontal relations between states, vertical relations between states and private parties, and transnational relations between private parties that cross national boundaries—is extremely illuminating and offers an important part of the picture. We think that it does not contradict our argument here. Many (not all, but many) treaties could be interpreted by a court in different ways. The Vienna Convention on Consular Relations, for example, might be regarded as a treaty that creates horizontal relations between states or as one that addresses vertical relations between states and private parties. The same is true of, for example, the 1783 Treaty of Peace between the United States and Great Britain that was famously the subject of the seminal case Ware v. Hylton, in which the Court upheld the right of individual British creditors to recover debts from Americans. In Medellin, the Court treated the Vienna Convention as exclusively creating horizontal relations and in Ware, it treated the Treaty of Peace as addressing vertical relations between states and private parties. That difference, we contend, is not dictated by the content or nature of the two treaties but is instead best explained by the different presumptions the Court applied in the two cases—a presumption in favor of inferring private rights and private rights of action from ambiguous treaty language in Ware and an explicit presumption against doing so in Medellin.
Third, Chimene Kietner’s response is clarifying. She is absolutely right that our exclusive focus in the piece is on treaty enforcement. We bury the caveat in footnote 14 (“This Article focuses exclusively on Article II treaties. When it uses the term ‘international law,’ it is referring only to such treaties.”). The article thus does not address even in passing the other major source of international law—customary international law—nor does it address the use of foreign and international sources in U.S. constitutional interpretation. As noted in the opening post, the article began as an attempt to understand the likely impact of Medellin on international law enforcement in U.S. courts. That proved a fruitful topic and one that deserved article-length treatment. The focus of the article thus does not reflect a “deeper reason”—indeed, one of us (Oona Hathaway) is counsel of record in a brief in Kiobel (to be argued before the Supreme Court on February 28) arguing that the Alien Tort Statute and Torture Victims Protection Act provide for civil liability for corporations for violations of specific prohibitory norms of international law.
Fourth, and finally, Steve Vladeck’s response is fascinating. His comments place the shift that we identify in treaty law enforcement into broader context. His observation that it has become far more difficult for courts to infer direct causes of action into federal statutes that fail expressly to so provide raises the prospect that the flipped presumption we identify is just one example of a much broader and more significant transition in the courts. We are persuaded that there may be comprehensive and worrisome parallels between the Supreme Court’s shifting approach to domestic enforcement of treaty obligations and its shifting approach to the availability of private enforcement of implied federal rights in other contexts. If that were true, it might suggest a slightly different causal story than the one we identify—one perhaps less focused on the Bricker Amendment controversy and the efforts to prevent the use of international treaties to challenge Jim Crow and more focused on the shift in the role of the courts in protecting individual rights more generally.
Our thanks again to all the participants for a fascinating discussion and to Opinio Juris for hosting it!