The Treaty Supremacy Rule: Is a Partial Revival Possible?

by David Sloss

I would like to thank Opinio Juris for hosting this symposium. Additionally, I would like to thank the distinguished contributors for their thoughtful and provocative posts. In this final post of the symposium, I offer a few brief responses to the contributors.

Carmen Gonzalez hopes that activists will deploy the treaty supremacy rule in conjunction with the Convention on Elimination of Racial Discrimination (CERD) to promote the cause of environmental justice. I share her concern about the disparate impact of environmental damage on Latinos and African Americans. However, I am skeptical whether the treaty supremacy rule provides a useful tool for promoting environmental justice in the near term.

The essays by Paul Dubinsky and John Coyle help explain my skepticism. Professor Dubinsky argues that the transformation of the treaty supremacy rule proceeded in parallel with changes in the judicial approach to treaty interpretation. His analysis suggests that changes in treaty interpretation may impose an additional hurdle for environmental justice plaintiffs who attempt to bring claims based on CERD. Professor Coyle notes that transformation of the treaty supremacy rule is part of a larger trend in which U.S. courts have become increasingly reluctant to apply treaties. I largely agree with Professor Coyle, but with one caveat. As I have explained in prior work, U.S. courts are reluctant to apply treaties to resolve public law disputes, but they are usually quite content to apply treaties to resolve private law disputes.

John Parry challenges my historical account of self-execution doctrine. In fact, I owe a significant intellectual debt to Professor Parry because I relied heavily on his historical scholarship to inform my research, especially for the period before 1830. Although we do not agree on everything, I think we agree on much of the early history. Regardless, his post invites me to comment on modern controversies—an invitation I accept by responding to some of the other commentators in the remainder of this post.

David Stewart acknowledges that the modern treaty supremacy rule has strayed far from the original understanding, but defends the modern rule as a reasonable adaptation to changes in the nature of treaties. As a descriptive matter, I agree that changes in the nature of treaty making help explain the transformation of the treaty supremacy rule. From a normative perspective, though, I have three primary concerns. First, modern self-execution doctrine encourages courts to apply a “fictitious intent” test to resolve treaty-related disputes. Under this approach, judges simply invent a fictitious “intent of the treaty makers” that has no basis in the actual intentions of the people who drafted and negotiated the treaty. Then courts apply this fictitious intent as the controlling rule of decision in the case. Such a doctrine is impossible to defend on any principled basis.

Second, from the perspective of constitutional design, the Founders were wise to create a system in which state governments could not violate the nation’s international treaty obligations without authorization from Congress. Insofar as the modern treaty supremacy rule permits state governments to breach U.S. treaty obligations, contrary to the wishes of the federal political branches, it is at odds with basic principles of constitutional design. Granted, a person who is deeply committed to states’ rights and indifferent to the goal of preserving order in international affairs might prefer such a constitutional design. However, Professor Stewart is certainly not in that camp, nor were the Founders.

Third, one modern permutation of self-execution doctrine—the “no judicial enforcement” doctrine—allows state governments to impose sanctions on a criminal defendant in violation of supreme federal (treaty) law, without addressing the merits of defendant’s treaty-based defense. The Fourteenth Amendment Due Process Clause guarantees every state criminal defendant an opportunity to be heard on the merits of a federal defense to state criminal charges. Therefore, as I contend in Chapter 14, the “no judicial enforcement” version of self-execution doctrine is probably unconstitutional because, in some cases, it denies due process of law to criminal defendants.

Tom Lee contends that the “ship has sailed too far” to permit a revival of the treaty supremacy rule in its original form. I agree with Professor Lee up to a point, but I think a partial revival may be possible. In particular, one could imagine a modern version of the treaty supremacy rule that differs markedly from the original understanding, but that minimizes the three problems highlighted above: the fictitious intent test, unauthorized treaty violations by the states, and denial of the due process rights of criminal defendants. The American Law Institute’s Restatement (Fourth) of Foreign Relations Law may partially alleviate the problem of unauthorized treaty violations by the states. Unfortunately, though, the most recent draft of the Restatement perpetuates the fictitious intent test and exacerbates the tension between self-execution doctrine and the Due Process Clause.

Finally, and perhaps most provocatively, Peggy McGuinness contends that the transformation of the treaty supremacy rule may have facilitated U.S. engagement with the international human rights regime. If I understand correctly, her argument proceeds in two steps. First, strict application of the traditional treaty supremacy rule could have given Senator Bricker the support he needed to drive home a constitutional amendment. Second, the Bricker Amendment would have barred U.S. participation in the then-emerging international human rights regime.

Arguments based on “what if” scenarios are necessarily speculative. Even so, successful passage of the Bricker Amendment might have facilitated U.S. engagement with the international human rights regime. As I explain in Chapters 10 and 11, several people introduced different versions of the proposed Bricker Amendment. One version would have converted the United States into a strict dualist system—like Canada or the United Kingdom—where all treaties are constitutionally non-self-executing. Despite their dualist constitutions, Canada and the U.K. are both more human rights friendly than the United States. Several factors contribute to their human rights friendliness. However, the fact that political leaders know that courts will not apply human rights treaties as self-executing domestic law may be one factor that supports their willingness to join human rights treaties that the U.S. refuses to ratify. Thus, paradoxically, successful passage of the Bricker Amendment might have eased the path to ratification of human rights treaties by eliminating what Bricker’s supporters called the “Trojan horse” element of treaty ratification—i.e., the threat that courts might apply treaties in unexpected ways as self-executing federal law.

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