When Treaties Supersede Statutes

by Roger Alford

Anyone familiar with foreign relations law hears the common refrain that treaties almost never supersede statutes under the last-in-time rule. Until recently, it was certainly my understanding that the ancient Supreme Court case of Cook v. United States was the only significant example in which a self-executing treaty trumped an earlier conflicting statute. But my recent research on the last-in-time rule indicates that there are several examples in which that rule has been applied to give effect to a self-executing treaty that conflicts with an earlier federal statute.

In particular, numerous mutual legal assistance treaties (MLATs) have been adopted to facilitate effective investigation and prosecution of criminal activities. These MLATs streamline the process of letters rogatory and guarantee that the United States will provide greater legal assistance with respect to discovery requests by foreign governments for use in criminal proceedings abroad. These treaties are self-executing and conflict with an earlier statute, 28 U.S.C. 1782, which grants courts significant discretion to deny discovery requests based on substantive protections relating to, inter alia, privileged evidence and foreign discoverability. In other words, pursuant to the MLATs, discovery requests are direct and automatic, not indirect and discretionary as required under Section 1782.

For example, in In re Premises Located at 840 140th Avenue NE, Bellevue Washington, the Ninth Circuit held that “a ratified self-executing treaty generally stands on the same footing as a federal statute, that is, a later in time self-executing treaty has the same effect on an existing federal statute as a later-in-time act of Congress.” Consequently, the Ninth Circuit held that, in light of the US-Russia MLAT, courts do not have the broad discretion conferred by Section 1782 to deny the Russian’s request for legal assistance in gathering evidence in the United States.

Similarly, in In re Commissioner’s Subpoenas, the Eleventh Circuit interpreted the US-Canada MLAT as a self-executing treaty that need not comply with the substantive obligations of Section 1782. “A treaty, when ratified, supersedes prior domestic law to the contrary, and is equivalent to an act of Congress…. [T]he Treaty substantively stands on its own as a law and therefore such MLAT requests need not comply with the substantive restrains associated with requests made solely under 28 U.S.C. 1782.” The foreign discoverability requirements recognized by Section 1782 did not apply and the MLAT required issuance of the subpoenas.

Finally, in In re Erato, an American mother had challenged a Dutch discovery request pursuant to Section 1782’s recognition of foreign privilege laws. If Section 1782 controlled the mother would not have to testify against her son because Dutch law recognizes parent-child privilege. The Second Circuit held that “existing law under Section 1782 does not control this case…. the [US-Netherlands MLAT] Treaty is self-executing and … will amend and supplement preexisting law in several aspects. We are bound to give effect to the Treaty because it is self-executing…. To the extent that the Treaty is inconsistent with a preexisting statutory provision, the Treaty supersedes that provision.” Consequently, the court prevented application of foreign testimonial privilege and required the mother to testify against her son.

These cases do not obviate the general point that the last-in-time rule typically results in the enforcement of subsequent statutes that conflict with earlier treaties. But they should at least put to rest the canard that the last-in-time rule never results in the enforcement of self-executing treaties over earlier federal statutes.


2 Responses

  1. important research
    recall that there are also S.Ct. recognized exceptions to the last in time rule that assure the primacy of prior treaties or portions thereof — http://ssrn.com/abstract=2447726
    I would be hesitant to state that “typically results in the enforcement of subsequent statutes”.

  2. I knew there would be a Jordan comment here.

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