Bradley Book Symposium: David Moore comments on Treaties

[David Moore is Professor of Law at BYU Law]

Curtis Bradley’s “International Law in the U.S. Legal System” is a welcome and significant contribution to U.S. Foreign Relations Law.  Like Louis Henkin’s “Foreign Affairs and the United States Constitution,” it will be a resource that scholars will want to consult and cite as well as recommend to their students and have on reserve.

The portion of the book on treaties addresses a wide-range of topics from treaty creation to non-self-execution to termination.  In addition to providing a clear overview of these topics and the sometimes unsettled questions they present, the discussion reveals an unspoken theme only partially captured by the book’s title.  Given its focus, the book is appropriately titled “International Law in the U.S. Legal System,” but the treatment of international law in U.S. law reveals that the interaction between U.S. and international law is not unidirectional.  International law affects U.S. law, even U.S. constitutional law, but U.S. law also affects international law.

On the incoming side of the relationship, international law produces a range of effects on the domestic legal order.  Most passively, international law presents questions that domestic law must answer.  For example, Bradley notes that the international law of treaties recognizes that state parties may terminate their agreements under certain circumstances, such as material breach of a bilateral agreement.  The international law option to terminate raises the question of who within the domestic order can exercise that option.   Moreover, international law might go further and influence the answer to that question as the nature of international law may functionally favor a particular actor as the one best suited to exercise the termination power.  This sort of effect has arguably occurred in the context of determining the subject matter scope of the treaty power.  Bradley notes repeated historical suggestions that treaty-making might extend only to certain types of treaties or at least to matters of international concern.  International law, however, defines “treaty” very broadly by reference to the nature of the contracting parties and the obligations assumed, largely without reference to subject matter restraints.  Consistent with this approach, treaty-making has spanned a vast range of issues.  The breadth of international treaty-making is almost certainly a contributing factor to the current sense that the Constitution does not impose subject matter limitations on the treaty power.  With the Supreme Court positioned to address subject matter limitations on the treaty-making power next term in Bond v. United States, the link between international law and domestic definition of the treaty power may be broken.  At this point, however, the connection is apparent.

Just as international law influences domestic law, U.S. law affects international law.  The U.S., Bradley notes, appears to have introduced the practice of consenting to treaties subject to reservations.  This practice derives, in part, from the constitutional assignment of treaty-making power to the President and Senate who must come to a meeting of the minds before the U.S. may ratify.  The practice has also been motivated by the Constitution’s federalist structure.  The practice is now well accepted in international law.  Indeed, the Vienna Convention on the Law of Treaties devotes an entire section—section 2–to reservations.

Similarly, international law’s recognition of signature subject to ratification as a method of consenting to treaties derived in substantial part from U.S. practice.  U.S. practice was motivated by the fact that the President required Senate consent before the United States could ratify.  Interestingly, not only did U.S. law affect international law on this point, but this may be an area where international law leads to changes in U.S. practice.  As Bradley notes, modern international law prohibits a state that signs a treaty subject to later ratification from engaging in “acts which would defeat the [treaty’s] object and purpose” until the state ratifies or makes clear that it does not intend to ratify.  Although Bradley does not raise the issue, I have argued elsewhere that the Constitution largely prohibits presidential assumption of interim treaty obligations prior to Senate consent.  As a result, international law’s evolution to impose interim obligations upon signature may force the United States to consent through means other than signature subject to ratification.  This could, in turn, lead to an international law default that favors a different method of consent.  Again, the larger point is that Bradley’s discussion of international law in domestic law reveals a bilateral relationship in which each affects the other.

This, of course, is subtext.  Bradley’s focus is on the role of international law in municipal law.  On that front, he provides a helpful overview of a broad range of issues.  It would exceed the scope and undermine some of the effectiveness of Bradley’s project to highlight every issue or perspective.  When it comes to treaties and non-self-execution, however, the book might have emphasized two points.  First, the book might have emphasized the constitutional dimension of the debate over treaty self-execution.  Bradley discusses scenarios in which the constitutional separation of powers renders treaties non-self-executing.  But at the core of the debate over non-self-execution are differing perspectives on the meaning of the Supremacy Clause.  As I have discussed elsewhere, those who favor self-execution point first to the Supremacy Clause in support of their position.  Those who see more room for non-self-execution do not find the Supremacy Clause dispositive.  The majority in Medellín v. Texas took the latter position, endorsing a broad notion of non-self-execution.  The dissent, reling heavily on the Supremacy Clause, favored more circumscribed non-self-execution.  While Medellín thus tips the balance in favor of a less dispositive reading of the Supremacy Clause, the majority opinion raises questions that the Supremacy Clause will continue to inform and the Clause’s prominent position might have been stressed.

Second, and relatedly, in suggesting what Medellín means going forward, Bradley asserts that the Medellín Court rejected the multifactored approach to identifying when a treaty is non-self-executing.  This assertion, while accurate on multiple levels, might give the wrong impression.  It is true that the Court did not rubber stamp the multifactored approach suggested by lower courts and rejected the multifactored approach proposed by Justice Breyer in dissent.  Under Justice Breyer’s approach, the judiciary would play a prominent role in deciding self-execution and might even find the same treaty self-executing in some contexts and not in others.  As I have previously argued, the Medellín majority eschewed such a role for the judiciary, but it did not limit itself to evidence of the treaty makers’ actual intent in determining self-execution.  Instead, the majority engaged a variety of considerations—for example, whether other states parties viewed the treaty’s obligations as self-executing and the practical consequences of finding a treaty self-executing—that bear on constructive intent.  Thus, while the touchstone of self-execution post-Medellín appears to be the intent of the treaty makers, that touchstone permits a multifactored analysis that tries to construct intent, at least when actual intent is uncertain.

These are relatively minor points.  While other points that might have been included or emphasized in the book could be identified, that fact should not detract from the accomplishment and contribution that is “International Law in the U.S. Legal System.”  The work unquestionably advances U.S. Foreign Relations Law scholarship and understanding; it is a welcome addition to the field.