Medellín’s Influence on the Judicial Application of Treaties

It is a privilege to comment on the excellent article by Professor Hathaway and her co-authors entitled “International Law at Home: Enforcing Treaties in U.S. Courts” (“IL at Home”). The article makes several important contributions to the growing body of scholarship on the domestic application of treaties in US courts and I agree with many of the authors’ central claims. In this brief comment I will focus on one of the more important claims that, in my view, is not entirely persuasive. IL at Home asserts that a single sentence in the Supreme Court’s decision in Medellín v. Texas “has led to a significant shift in U.S. courts’ approach to Article II treaties.” IL at Home, at 70. The sentence at issue says there is a “background presumption . . . that [treaties] . . . do not create private rights or provide a private cause of action in domestic courts.” Medellín, at 506 n.3.

I believe that Medellín‘s presumption against private rights of action has had less influence — or perhaps a different type of influence — than the authors claim. To understand why, it is necessary to discuss judicial practice before Medellín. According to IL at Home, in the period from World War II to Medellín, “the lower federal courts developed a bifurcated approach to treaty enforcement.” Id. at 64. They “continued to infer a private right of action for treaties that involved economic or commercial relations. But they began taking a more skeptical approach toward treaties . . . regulating the relationship between the state and the individual.” Id. at 64-65.

This claim is mostly right, but the authors fail to specify the lines between the bifurcated categories with adequate precision. As I have written elsewhere, 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. See David Sloss, Treaty Enforcement in Domestic Courts: A Comparative Analysis, in THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY (Sloss ed., 2009). US courts never had a major role in enforcing horizontal treaty provisions. From the Founding until World War II, domestic courts played a significant role in enforcing both vertical and transnational treaty provisions. Since World War II — or at least since publication of the Restatement (Second) of Foreign Relations Law in 1965 — US courts have been hesitant to enforce vertical treaty provisions, but they have continued to enforce transnational treaty provisions quite vigorously. See David Sloss, United States, in THE ROLE OF DOMESTIC COURTS, supra.

IL at Home implies, using somewhat different terminology, that Medellín‘s presumption against private rights of action has weakened judicial enforcement of transnational treaty provisions. The available evidence casts doubt on this claim. I conducted some electronic searches to investigate recent judicial practice involving six key transnational treaties: the Hague Service Convention, the Hague Evidence Convention, the New York Convention, the International Child Abduction Convention, the Warsaw Convention, and the Convention on the International Sale of Goods (CISG). These six treaties are among the most heavily litigated transnational treaties in the United States today. For those who favor an active judicial role in enforcing transnational treaty provisions, the results of my electronic searches are encouraging.

Between January 1, 2011 and February 21, 2012, US federal courts cited the Hague Service Convention in 122 cases; they cited the Hague Evidence Convention in 65 cases; they cited the Child Abduction Convention in 55 cases; and they cited the CISG in 20 cases. None of those cases includes a citation to Medellín. During the same period, US federal courts cited the New York Convention in 66 cases and the Warsaw Convention in 37 cases. One of the New York Convention cases and two of the Warsaw Convention cases cite Medellín. See Lindo v. NCL (Bahamas), Ltd. (New York Convention); Chubb Ins. Co. v. Menlo Worldwide Forwarding, Inc. (Warsaw Convention); Lavergne v. ATIS Corp. (Warsaw Convention). However, none of those three cases cite Medellín for the proposition that there is a presumption against treaty-based private rights of action. In short, over the past fourteen months, US federal courts have cited transnational treaty provisions in more than 300 cases without ever invoking Medellín‘s presumption against private rights of action. While not dispositive, this evidence suggests that Medellín has probably had very little impact on the enforcement of transnational treaty provisions by US courts.

IL at Home points to two cases in support of the claim that, after Medellín, courts have begun applying the presumption against private rights of action not only to “public law treaties,” but also to “private law treaties.” See IL at Home, at 73-76. Here, the authors’ failure to define their categories with adequate precision is problematic. They cite McKesson Corp. v. Islamic Republic of Iran as evidence of Medellín‘s pernicious influence. However, McKesson involves a classic vertical treaty provision: a prohibition against expropriation of private property by the government. Thus, McKesson suggests that Medellín may have accelerated the prior trend involving judicial reluctance to enforce vertical treaty provisions. But McKesson says nothing about judicial application of transnational treaty provisions.

IL at Home also cites Gross v. German Foundation Industrial Initiative in support of the argument that courts have begun applying the presumption against private rights of action to “private law treaties.” Gross is a tough case to categorize because the treaty provisions at issue, the so-called Berlin Agreements, involve both vertical and transnational elements. The plaintiffs in Gross invoked one (transnational) provision of the Berlin Agreements that allegedly obligated defendants to make interest payments. In affirming dismissal of plaintiffs’ claims, the court relied in part on a different (vertical) provision that arguably required plaintiffs to file their claims in a special, non-judicial forum created by the Berlin Agreements. Thus, whereas IL at Home describes Gross as a case in which the court was reluctant to enforce a (transnational) treaty provision requiring interest payments, one could also legitimately describe Gross as a case in which the court vigorously enforced a treaty provision requiring dismissal and transfer to a non-judicial forum. In the final analysis, Gross is a sufficiently anomalous case that it probably tells us very little about Medellín‘s likely influence on the future application of treaties in US courts.

In sum, it appears that very little has changed since Medellín. Before Medellín, US courts vigorously enforced transnational treaty provisions, but they were hesitant to enforce vertical treaty provisions. After Medellín, US courts are arguably more reluctant to enforce vertical treaty provisions, but their enthusiastic enforcement of transnational treaty provisions continues unabated.