The Modern Doctrine(s) of Non-Self-Executing Treaties
In his wonderful new book, The Death of Treaty Supremacy, David Sloss provides a highly readable and immaculately researched account of treaty supremacy doctrine. Although the book offers original insights into a great many topics—including the process of invisible constitutional change—I found its detailed taxonomy of the various versions of the doctrine of non-self-executing treaties to be particularly compelling.
Whereas previous scholars have identified four doctrines of self-executing treaties, Sloss argues that there are, in fact, eight distinct versions of this doctrine: (1) the constitutional doctrine, (2) the condition precedent doctrine, (3) the justiciability doctrine, (4) the intent doctrine, (5) the Fujii doctrine, (6) the private right of action doctrine, (7) the no private enforcement doctrine, and (8) the no judicial enforcement doctrine. In this post, I first provide a brief overview of the four most recent iterations of this doctrine, which occupy the final four slots on the list above. I then consider the question of why these modern doctrines have managed to gain traction in U.S. courts over the past few decades.
The first modern version of non-self-execution doctrine that Sloss identifies is the Fujii doctrine, named after a case decided by the California Supreme Court in 1952. Its origins can be traced to the debate over the Bricker Amendment and whether international human rights treaties operated on their own force to preempt racially discriminatory U.S. state laws. This doctrine posits that the treaty-makers—the President and the Senate—have the power to approve a “non-self-executing” treaty that is binding on the United States internationally but that does not become the “Law of the Land” for purposes of the Supremacy Clause. Since these treaties are not the Law of the Land, they do not preempt inconsistent state laws.
The second modern version of the doctrine is the private right of action doctrine. Its origins can be traced to the 1970s and a series of Supreme Court cases establishing an interpretive presumption against reading a private right of action into federal statutes. The private right of action doctrine posits that the treaty-makers have the power to approve a “non-self-executing” treaty that does not create a private right of action in the courts of the United States. Since these treaties do not give rise to a right of action, they may not be invoked by plaintiffs in cases brought in U.S. courts.
The third modern version of the doctrine is the no private enforcement doctrine. Its origins can be traced to the implementing legislation for international trade agreements approved by the United States in the 1990s. This doctrine is essentially the same as the private right of action doctrine, but it also prohibits a private litigant from invoking a non-self-executing treaty as a defense.
The fourth and final modern version of the doctrine is the no judicial enforcement doctrine. Its origins can be traced to the Medellin decision rendered by the Supreme Court in 2008. This doctrine posits that non-self-executing treaties are the Law of the Land for purposes of the Supremacy Clause but that judges are powerless to enforce them irrespective of whether they are invoked by public or private actors.
Sloss convincingly argues that none of these four modern versions of non-self-execution doctrine can be fairly traced back to Chief Justice Marshall’s iconic decision in Foster v. Neilson. Instead, he argues that the creation of each of these doctrines constituted a novel innovation by the courts. He argues further that the cumulative effect of these doctrinal innovations was to rewrite the Supremacy Clause. This rewriting was difficult to detect, however, because it was portrayed as a straightforward continuation of a historical distinction dating to 1829. On all of these points, Sloss is extremely persuasive.
Although Sloss is scrupulously even-handed in his analysis, he is clearly somewhat skeptical of each of the four modern iterations of non-self-execution doctrine. The book is dedicated to “future generations in the hope that all nations will achieve the practical realization of the ideals embodied in the U.N. Charter and the Universal Declaration of Human Rights.” To the extent that modern non-self-execution doctrine severely limits the ability of private actors to rely on international human rights treaties as a source of rights, it also stands in the way of the full realization of the ideals set forth in the these treaties. While the book is a terrific history of the doctrine of non-self-execution, it is also an implicit critique of modern innovations in that doctrine that have caused it to become unmoored from its historical origins. Upon finishing the book, I came away with the impression that Sloss would like nothing more for the courts to cast aside each of the four modern iterations of self-execution doctrine. As noted above, however, Sloss never overplays his hand and—apart from the dedication—his own policy preferences take a backseat to telling an important (and original) tale of invisible constitutional change via the doctrine of non-self-executing treaties.
Sloss provides an exceptionally persuasive account as to why the Fujii doctrine was eventually adopted by courts and other federal actors—to head off the Bricker Amendment. He has less to say, however, about how and why the other three modern doctrines of non-self-execution rose to prominence. I have argued elsewhere that U.S. judges have become increasingly more reluctant to look directly to international treaties as a rule of decision in domestic cases over the past few decades. The creation of the other three modern doctrines of non-self-execution fit neatly into this pattern of retreat. The key question is precisely why contemporary U.S. judges so frequently shy away from international law. Are they responding to cues from actors in the political branches? Do they believe in the essential superiority of the U.S. legal system? Were they never taught about international law in law school? Or were they taught by law professors who were themselves skeptical of international law? All of these questions go well beyond the scope of Sloss’s excellent book. Should he ever consider writing a sequel, however, each would be a topic worthy of further exploration.