Among the types of cases heard in federal courts are those involving treaties with foreign nations, that is, international agreements made by the president and ratified by the Senate in accordance with Article II, clause 2 of the U.S. Constitution. Treaties are one of three types of law named in the Constitution’s Supremacy Clause as “the supreme Law of the Land.” Cases involving treaties are less common than those involving the Constitution and federal statutes (the other two types) and are less widely understood. This essay highlights some of the contexts in which treaties have arisen in federal court cases from the Early Republic to modern times and provides a brief overview of the most significant legal questions the courts have been called upon to address.
While the role of foreign treaties in domestic law is complex, most treaty cases boil down to just one question, namely, whether a private party can sue in federal court to enforce a right allegedly created by a treaty. Three legal issues bear on this inquiry. First, what law should a court apply when the relevant treaty provision appears to conflict with a state or federal statute? Second, is a treaty provision “self-executing,” so that it is directly enforceable in court without an implementing statute enacted by Congress? And third, does a treaty provide a plaintiff not only with the substantive right they seek to enforce but also with the right to sue in federal court?
In adjudicating these issues, federal courts have always recognized that the president and Congress, rather than the courts, are responsible for making and carrying out American foreign policy. Courts have declined to answer some questions, such as whether the United States has breached a treaty obligation to a foreign nation, on the grounds that such matters should be resolved by the other branches. Even when the courts have deemed treaty questions appropriate for judicial resolution, they have been sensitive to the separation of powers and have attempted to avoid undue intrusion on the executive and legislative foreign policy domains.
Conflicts Between Treaties and Statutes
Where a relevant treaty provision has appeared to conflict with a state or federal statute, courts have avoided potential conflicts by construing the treaty and the statute as operating simultaneously, so that neither supersedes the other. When courts have found conflicts unavoidable, they have typically held later-in-time statutes, as the most recent expression of congressional intent, to supersede treaties. In some instances, courts have held treaties to be unenforceable for other reasons, thereby sidestepping a conflict and leaving the statute in place as the law governing the case.
Conflicts between treaties and state laws date to the nation’s early history. The Articles of Confederation (operative 1781–1789) provided no means of enforcing foreign treaties against conflicting state laws. Wishing to prevent states from undermining U.S. foreign policy by putting the nation in breach of its international obligations, the Constitution’s framers included treaties in the Supremacy Clause to ensure their enforcement. The fear that state courts would not enforce treaties against state legislatures likewise motivated the First Congress to create lower federal courts in the Judiciary Act of 1789.
The Treaty of Paris ending the Revolutionary War in 1783 was the main catalyst to including “all treaties made, or which shall be made,” in the Supremacy Clause. During the war, several states had passed “sequestration” laws extinguishing the rights of British creditors and providing that debts owed to them could be discharged by paying the state treasury instead. The fourth article of the Treaty of Paris provided, however, that “creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.”
A 1777 Virginia sequestration law was put to the test in Ware v. Hylton (1793). When British creditors sued for repayment in the U.S. Circuit Court for the District of Virginia, the debtors relied on the state law as a defense. Justice James Iredell heard the case while riding circuit and ruled for the defendants (believing that the creditors should probably recover from the state instead), but the Supreme Court reversed, enforcing the debt guarantee of the Treaty of Paris. The Supremacy Clause dictated that the treaty, as federal law, took precedence over the Virginia law, making the latter unavailable as a defense to the suit. Justice Samuel Chase’s opinion pointed out that a treaty “cannot be the supreme law of the land ... if any act of a State Legislature can stand in its way.” The Ware ruling—one of five in favor of British creditors under the debt clause—was the first to articulate the principle that a treaty overrides contrary state or local law.
Once established, federal court enforcement of treaties against state and local governments remained consistent into the twentieth century. Asakura v. City of Seattle (1924) is a case in point. In Asakura, the Supreme Court heard a challenge to a city ordinance prohibiting non-citizens from obtaining a pawnbroker license. The ordinance was alleged to violate a 1911 treaty with Japan providing that citizens or subjects of each nation would be permitted to carry on a trade in the other country under the same terms as native citizens or subjects. Citing the Supremacy Clause, the Court invalidated the ordinance, holding that the treaty’s terms “[could not] be rendered nugatory in any part of the United States by municipal ordinances or state laws.” During the nineteenth and twentieth centuries, the Court also held treaties to preempt state statutes on subjects such as land inheritance, land ownership, taxation, business incorporation, and tort law.
Potential conflicts between treaties and federal statutes have proven to be more complicated. The Supremacy Clause does not govern such cases because the clause does not assign relative priority to federal laws and treaties. Likewise, while holding the Constitution to be the highest form of law in Marbury v. Madison (1803), the Supreme Court made no distinction between statutes and treaties. In Murray v. Schooner Charming Betsy (1804), the Court set forth the enduring doctrine that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” In accordance with this principle, federal courts have interpreted federal statutes as operating in harmony with prior treaties whenever possible, while generally enforcing later-in-time statutes over treaties where conflicts cannot be avoided. While nonenforcement of a treaty provision could put the United States in breach of an international obligation, courts have consistently characterized whether the nation has breached a treaty as a nonjusticiable question directed to the political branches.
Justice Benjamin Curtis was the first to apply the later-in-time rule explicitly when hearing Taylor v. Morton (1855) in the U.S. Circuit Court for the District of Massachusetts. That case posed a conflict between an 1832 treaty providing that Russian products would not face duties higher than like products from other nations, and an 1842 statute setting the tariff for raw hemp from India at a lower rate than that from all other nations. Importers of Russian hemp sued the collector of customs on the grounds that the treaty entitled them to the lower rate. Justice Curtis denied the plaintiffs’ claim, holding that the tariff statute controlled the case because it was the most recent expression of congressional intent.
Justice Curtis explained that Congress had the power to make laws inconsistent with existing treaties. To hold otherwise would be to deny Congress the ability to act on subjects within its legislative authority without the consent of a foreign nation. Whether the United States had violated the 1832 treaty, however, was a political question properly directed to the legislative and executive branches, not the judiciary. Justice Samuel Miller made a similar decision in The Clinton Bridge (1867) while riding circuit in Iowa. Evaluating a claim that a law declaring a bridge to be a lawful structure was invalid because the bridge obstructed navigation of the Mississippi River in violation of several treaties, Miller ruled that courts had no power to invalidate a congressional statute on the grounds that it might violate an earlier treaty. “Questions of this class,” he wrote, “are international questions, and are to be settled between the foreign nations interested in the treaties and the political department of our government.”
The Supreme Court cited the circuit court opinions in both Taylor and Clinton Bridge when it decided the Head-Money Cases (1884). In those combined suits, the Court upheld a statute requiring shipmasters to pay fifty cents for every non-U.S. citizen they brought to American shores. While the statute was alleged to contradict several foreign immigration treaties, the Court noted—in language quoted by courts frequently thereafter—that a treaty “depends for the enforcement of its provisions on the interest and the honor of the governments which are party to it. If these fail, its infraction becomes the subject of international negotiations and reclamations ... which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.”
At the same time The Head-Money Cases were decided, congressional efforts to restrict the immigration of Chinese laborers presented the federal courts with weighty issues of treaty-statute conflict. An 1880 treaty permitted the United States to restrict the entry of Chinese laborers while providing that those already in the United States were free to come and go as they pleased. An 1882 statute prohibited Chinese laborers from entering the country for ten years but specified that those already present could obtain “return certificates” to prove their right to reenter the United States should they depart. In 1884, Congress tightened the law by declaring that a return certificate was the only permissible evidence of a laborer’s right of reentry.
Chew Heong v. United States (1884) involved a Chinese laborer who departed the United States after the 1880 treaty took effect but before return certificates became available. In keeping with the longstanding principle that statutes should be interpreted as consistent with existing treaties whenever possible, the Supreme Court held that Chew Heong could not be required to produce a return certificate that would have been impossible for him to obtain. Ruling that the 1884 statute did not apply to someone in Chew Heong’s position, the Court granted him a writ of habeas corpus and he was permitted to reenter and remain in the United States.
Justice Stephen Field dissented on the grounds that the 1884 act should prevail over any treaty provision with which it was in conflict. A few years later, circumstances brought the Court’s majority into line with Justice Field’s view. In 1888, Congress passed a new Chinese exclusion law that explicitly rejected the 1880 treaty and canceled all return certificates. When presented with a habeas corpus petition from a laborer who had been issued a return certificate and attempted to come back to the United States—and thus faced with a clearly irreconcilable treaty-statute conflict—the Court followed the later-in-time rule in The Chinese Exclusion Case (1889), holding that the statute must control.
The Court described the later-in-time rule as reciprocal in The Cherokee Tobacco (1871), stating that “[a] treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.” In practice, however, courts have rarely held later-in-time treaties to supersede statutes. While the doctrinal reasons for this result have varied from case to case, scholars have suggested that deference to Congress lies at the center of the trend, particularly because the Article I legislative power involves both houses of Congress, while the Article II treaty power includes only the Senate. In only one case has the Supreme Court held a later-in-time treaty to supersede a statute. In Cook v. United States (1933), the U.S. Coast Guard seized a British ship, the owner of which was fined for failing to list liquor on the ship’s manifest. While the seizure was conducted under authority conferred by the Tariff Act of 1922, it violated a 1924 treaty with Britain restricting the Coast Guard from seizing ships more than one hour’s traveling time from shore. The Court ruled that the treaty superseded the 1922 act and that the charges should be dismissed. Notably, however, the U.S. solicitor general had asked the Court to rule as it did because in seizing the ship the Coast Guard had acted contrary to the instructions of the Department of Justice to obey the treaty. In this case, therefore, deference to Congress may have been replaced by deference to the executive branch.
A more typical result for a later-in-time treaty occurred in United States v. Lee Yen Tai (1902), in which a Chinese citizen subject to an order of deportation asserted that a treaty of 1894 between the United States and China superseded previous Chinese exclusion statutes. Because the treaty provided no method of deportation, Lee Yen Tai argued, the U.S. commissioner who had ordered him deported was without jurisdiction to do so. While acknowledging that it was possible for a treaty to supersede a statute, the Court noted that congressional intent to abrogate any law or treaty by another “must not be lightly assumed, but must appear clearly and distinctly from the words used in the statute or in the treaty.” The Court noted that both nations had expressed in the treaty a desire to prevent the immigration of Chinese laborers to the United States and that Lee Yen Tai’s interpretation of the treaty would frustrate that purpose. Because of their common aim, the Court found that the treaty and the statutes did not conflict and should operate simultaneously.
Self-Executing and Non-Self-Executing Treaties
Although the Supremacy Clause classifies “all treaties” as “the law of the land,” not every treaty provision is directly enforceable in court. While the terms “self-executing” and “non-self-executing” did not come into use until the late nineteenth century, the Supreme Court has since the 1820s recognized a distinction between treaties that operate of their own force as domestic law and treaties that—while equally binding on the United States in the realm of international law—are not enforceable in domestic courts without an implementing statute enacted by Congress. In the latter case, it is the implementing law and not the treaty that is judicially enforceable.
Some commentators have expressed the view that the self-execution doctrine violates the Supremacy Clause because it denies some treaties their constitutionally prescribed status as the law of the land. Others, however, believe that even non-self-executing treaties are still the law of the land but are of a type directed to the other branches of government, rather than the courts, for enforcement. While the self-execution doctrine can produce significant consequences regarding the domestic effect of a treaty and has been the subject of considerable scholarly attention, the Supreme Court has ruled a treaty to be non-self-executing on only a handful of occasions.
The self-execution inquiry is primarily a matter of interpreting the language of a treaty to discern the intent of its makers, as is illustrated by the first two cases in which the Supreme Court addressed the issue. In Foster v. Neilson (1829), Chief Justice John Marshall’s opinion explained for the first time that some treaties were “equivalent to an act of the legislature” and were thus equally enforceable in court, while other treaties were said to “import a contract” to perform a future act which “the legislature must execute” for the treaty to become judicially enforceable.
The plaintiff in Foster claimed land under an 1804 grant from Spain. The land in question was in a disputed area—Spain claimed it as part of Florida, which it then possessed, while the United States believed it had belonged to France and was therefore included in the Louisiana Purchase of 1803. Noting that a boundary dispute was a political question, the Court held itself obligated to abide by the congressional position that the land had become part of the United States before 1804, making the Spanish grant void. The Court then inquired whether the plaintiff could nevertheless establish title under the Adams-Onis Treaty of 1819 by which Spain ceded Florida to the United States, which promised to protect individuals who had received land grants from Spain. The majority of the Court believed that the treaty had no application outside of Florida, but Chief Justice Marshall and one other justice disagreed.
Writing the opinion for the Court, Marshall explained the majority holding and then put forth his alternative holding, for which the case came to be known. The treaty provided that certain grants made by Spain “shall be ratified and confirmed to the persons in possession.” Marshall read this provision as, in essence, a commitment to perform a future act, making the treaty one that was directed to the legislature for execution before it could become enforceable in court. Congress had, of course, taken no action to confirm the grant at issue in the case. Marshall therefore agreed with the majority that the treaty did not entitle the plaintiff to relief, but on the alternative grounds that the applicable treaty provision was non-self-executing and thus unenforceable.
In an unusual turn of events, the Court was soon called upon to interpret the same clause of the Adams-Onis treaty again, and Marshall, once more writing the opinion, construed the clause differently than he had previously. When the Court decided Foster, it relied on an English version of the treaty prepared simultaneously with the Spanish one. By the time United States v. Percheman (1833) (a case involving an 1815 Spanish grant of land in East Florida) came before the Court, the Spanish version had been translated, and the clause in the English version providing that Spanish land grants “shall be ratified and confirmed” was now understood to read “shall remain ratified and confirmed” (emphasis added) in the Spanish version. The English and Spanish versions did not necessarily conflict, Marshall noted, because the words “shall be ratified and confirmed” could be taken to mean that land grants would be formalized by the treaty itself. A construction of the English version that would bring it into harmony with the Spanish version was preferable in Marshall’s view.
Marshall also found a construction of the clause harmonizing the two versions to be the more logical one, as it was consistent with a longstanding norm of international law, namely that a change in sovereignty does not affect existing private property rights. Having granted land to a private party, a sovereign no longer possesses that land and cannot cede to another sovereign that which it does not possess. Under the construction suggested by the terms of the Spanish version, the clause operated of its own force to confirm the grant at issue, making it self-executing and thus directly enforceable. Had the difference in language between the two versions of the treaty been known at the time, Marshall wrote, he likely would have applied the same construction to the clause in Foster.
While Foster and Percheman focused on treaty language, the nature of the obligation a treaty imposes—and whether that obligation is one that logically can be enforced by courts—can also be relevant to the self-execution inquiry. For example, while the Supreme Court had yet to articulate the concept of self-execution when it decided Ware in 1793, the Court noted that the debt provision of the Treaty of Paris was directed to the judiciary and not the other branches. The treaty provision was likely to arise only in a lawsuit in which a debtor interposed a “lawful impediment” to collection as a defense. These circumstances meant that only the judiciary could enforce the provision effectively and that no action of another branch was required for the provision to operate as an enforceable law of the land under the Supremacy Clause. On the other side of the coin, treaties that require the appropriation of funds are deemed non-self-executing because that is a function the Constitution delegates exclusively to Congress and is therefore not an obligation the courts are capable of enforcing.
Whitney v. Robertson (1888) marked the first occasion on which the Court explicitly defined the term “self-executing” with respect to a treaty. In holding that an 1870 tariff statute superseded inconsistent provisions of an 1867 treaty with the Dominican Republic, the Court reaffirmed the later-in-time rule, noting that treaties and statutes are “placed on the same footing ... and [that] no superior efficacy is given to one over the other.... [B]ut if the two are inconsistent, the last one in date will control the other.” The Court specified, however, that the later-in-time rule applied only if the treaty provisions in question were “self-executing, that is, require no legislation to make them operative.”
While lower courts have at times found treaties to be unenforceable exclusively on non-self-execution grounds, the Supreme Court has done so only twice in the nearly two centuries since Foster. In Cameron Septic Tank Co. v. City of Knoxville (1913), the Court held the Treaty of Brussels of 1900 to be non-self-executing when the plaintiff claimed the treaty extended the life of a patent beyond that provided by statute. In support of its ruling, the Court examined the record of negotiations in concluding that the sense of the conference at which the treaty was adopted was that the treaty was non-self-executing. The Court also took note of the post-adoption behavior of other signatories, several of which enacted legislation to implement the treaty.
Congress also believed the treaty to be non-self-executing, the Court reasoned, because it had enacted legislation in 1903 to effectuate some of its provisions (while not covering the claim at issue). The ruling in Cameron Septic Tank is consistent with other cases in which the Court deferred to Congress by declining to find a later-in-time treaty to supersede a statute and illustrates that when a treaty-statute conflict appears unavoidable, interpreting a treaty to be non-self-executing presents a possible resolution of the dilemma. Such a ruling leaves it up to Congress to decide whether to pass legislation to implement the provision in question and thereby override an existing statute.
As is addressed in more detail in the section below, it became more difficult over the second half of the twentieth century for private plaintiffs to bring federal-court lawsuits to enforce treaty-based rights. Contributing to this trend was the likelihood of lower federal courts during this period to find treaties unenforceable on non-self-execution grounds. Beginning in the 1970s, this tendency was bolstered by frequent declarations of non-self-execution in Senate resolutions approving treaties. At the turn of the twenty-first century, some scholars asserted that the courts appeared to be in the process of turning a de facto presumption in favor of self-execution into a presumption against it, even though the Supreme Court had not endorsed either presumption.
The trend against finding treaties directly enforceable provides background for the significant scholarly attention generated by the Court’s ruling in Medellin v. Texas (2008), the first time since Cameron Septic Tank the Court denied relief on non-self-execution grounds. In that case, the Court held that a judgment of the International Court of Justice (ICJ) was not directly enforceable in an American court to preempt state rules of criminal procedure. One of the most significant factors in the Court’s decision was that Article 94 of the United Nations Charter provided that a party to the Charter “undertakes to comply” with ICJ judgments. The Court contrasted this language with absent terms like “shall” and “must” in reasoning that it contemplated further action rather than automatic enforceability. The Court also noted that Article 94 provided an aggrieved party with a diplomatic remedy—referral to the U.N. Security Council—and not a judicial one.
The Court disavowed any intent to depart from precedent, characterizing its previous decisions as standing for “the unremarkable proposition that some international agreements are self-executing and some are not.” In searching the relevant treaty text for language regarding self-execution, the Court cited the “time-honored textual approach” of Foster and Percheman. The Restatement (4th) of the Foreign Relations Law of the United States (2019) (the American Law Institute prepares Restatements, intended to be clear formulations of the current state of the law on various subjects, primarily for the reference of courts) took the position that Medellin did not necessarily portend any change in the law; a comment pointed out that the case involved unusual circumstances, making it “difficult to derive from that decision any clear test for determining when treaty provisions should or should not be regarded as self-executing.”
Nevertheless, some scholars asserted that the Medellin opinion implicitly established a presumption of non-self-execution that only explicit treaty language could overcome, in part because of the majority’s statement that if ICJ judgments had been meant to preempt state procedural rules, “one would expect the ratifying parties to the relevant treaties to have clearly stated their intent to give those judgments domestic effect.” Justice Stephen Breyer argued in dissent that treaty provisions the Court had found to be self-executing in previous decisions “cannot be reconciled with the majority’s demand for textual clarity.” Scholars have not all agreed that Medellin has created a presumption against self-execution, however; some have asserted that the case was limited to its particular facts and that the Court intended that each treaty be evaluated on an individual basis. In sum, the future of the self-execution doctrine is uncertain.
Private Rights of Action to Enforce Treaty-Based Rights
Individuals, while without standing to enforce treaties in the international arena, are sometimes entitled to enforcement in domestic courts, if the treaty is one meant to benefit private individuals. Judicial enforcement requires first that the court interpret a treaty to find that its makers intended to create the substantive private right (or “primary right”) the plaintiff seeks to enforce (such as the right under the Convention on the Civil Aspects of International Child Abduction to the return of a child wrongfully removed from their country of residence). Some scholars have compared this inquiry to the question of whether an individual has standing to sue as a third-party beneficiary of a contract. Second, the court must find that the plaintiff has a private right of action, that is, the right to sue in federal court (a “secondary” or “remedial” right) to enforce the substantive right in question. The fact that a treaty is self-executing does not necessarily mean that it creates either a primary or a remedial right. For example, a self-executing treaty addressing an issue solely between nations, such as nuclear disarmament, may not be privately enforceable in a U.S. court.
From the early republic period to the mid-twentieth century, federal courts did not draw sharp distinctions between whether a treaty was self-executing, created a private right, or provided a private right of action. Many treaties were deemed to create rights that traditionally were judicially enforceable at common law—such as rights relating to contract, property, habeas corpus, and the carrying on of a trade—and courts generally viewed these treaties implicitly as self-executing and carrying a private right of action.
The environment surrounding the judicial enforcement of treaty-based private rights changed significantly after World War II as courts became less likely to find certain types of treaties privately enforceable. Generally, courts less frequently found treaties implicitly to create primary and remedial rights and more often looked for clear evidence that the treaties' makers had intended to establish such rights. As treaty jurisprudence in the federal courts changed, courts began to draw greater distinctions between the concepts of self-execution, private rights, and private rights of action, noting that even a self-executing treaty that benefited private individuals did not necessarily create a private right of action.
Scholars have traced the decline in the private enforcement of treaties to several historical factors. These include the emergence of new types of treaties in the post-World War II period, the backlash to the American Civil Rights Movement, changes to the process by which the United States entered into international agreements, and courts’ increasing tendency to defer to executive branch treaty interpretations. This section focuses on explaining these factors, and their effects on treaty enforcement, in greater detail.
The post-World War II period saw the establishment of the United Nations and the onset of a global human-rights revolution, which resulted in new types of international treaties. Agreements regarding the treatment of individuals by nation-states proliferated. Some civil rights activists saw in human-rights treaties a potential path to eliminating racially discriminatory laws in the United States, such as those providing for segregation. The possibility that international agreements would bring about domestic social and legal changes that many opposed and believed to be unconstitutional contributed to a backlash against their enforcement in U.S. courts. Political developments in the 1950s created an atmosphere in which federal courts were highly attuned to the domestic legal consequences of treaty enforcement.
A decades-old Supreme Court decision, Missouri v. Holland (1920), fueled post-World War II fears that treaties would be used to circumvent the Constitution and helped to spur the backlash against their domestic enforcement. In that case, the state of Missouri objected to a treaty for the protection of migratory birds on the grounds that it intruded upon powers reserved to the states under the Tenth Amendment. The Court upheld the treaty, finding that it did not exceed constitutional boundaries. In doing so, the Court noted that, according to the Supremacy Clause, statutes had to be made in pursuance of the Constitution, while treaties were made “under the authority of the United States.” As a separate power independent of the legislative power, the treaty power could in theory be used to effectuate policies that would be unconstitutional if Congress enacted them in the absence of a treaty. As the United States began to negotiate human-rights treaties in the postwar era, memories of the Holland opinion led some to believe that such treaties would infringe on the individual constitutional rights of Americans.
The backlash to the treaty power was best exemplified by the Bricker Amendment (championed by Senator John Bricker of Ohio), a series of proposed constitutional amendments in the 1950s that would have in effect demoted treaties from their position as supreme law of the land by making them subordinate to statutory law. Put another way, the Bricker Amendment would have made every future treaty non-self-executing—and therefore not enforceable in court by private parties—by default. While several different versions were considered, the gist of the amendment was that treaties could not contravene any enumerated constitutional power, abridge the rights of U.S. citizens, or alter domestic law without the passage of implementing legislation. One version of the amendment failed by a single vote in the Senate in 1954. The fears underlying the Bricker Amendment were calmed, however, by Reid v. Covert (1957), in which a plurality of the Supreme Court stated that treaties were in no way exempt from constitutional limitations. The reason for the differing language of the Supremacy Clause regarding statutes and treaties, the plurality asserted, was to ensure that treaties made under the Articles of Confederation would remain valid under the Constitution. While Reid made clear that there are constitutional limits on the treaty power, no court has held a treaty to exceed those limits.
Although the Bricker Amendment never became law, several post-World War II trends helped to advance its aims. As discussed above, lower federal courts became less likely to find treaties self-executing. Even when courts deemed treaties to be self-executing, they more often ruled that those treaties were not intended to create privately enforceable rights. Treaties regulating private commercial law—sometimes referred to as “friendship, commerce, and navigation” treaties—were generally excepted from this trend, however, as most of them in the postwar era contained express language providing for a private right of action.
Furthermore, the United States made many fewer Article II treaties, instead relying increasingly on executive-congressional agreements, which are negotiated by the president and approved by the full Congress. In this process, Congress gives its views on the domestic effect of international agreements explicitly, reducing the judicial role in interpretation and enforcement. The tendency of the Senate, beginning in the late twentieth century, to attach declarations of non-self-execution or other conditions to its ratification of treaties has further limited judicial discretion in some cases.
Also circumscribing the judicial role has been the courts’ increasing tendency to defer to executive branch interpretations of treaties. For the first century under the Constitution, federal courts typically interpreted treaties without deferring to the views of executive officials or departments. In the late nineteenth and early twentieth centuries, however, the Supreme Court began to issue decisions that either took account of officials’ post-ratification behavior as evidence of their intent in making a treaty or explicitly gave deference to executive branch views. In Factor v. Laubenheimer (1933), the Court moved away from the former practice, stating what became its modern principle of deference: “the construction of a treaty by the political department of the government, while not conclusive upon courts called upon to construe it, is nevertheless of weight.” The Court added in Kolovrat v. Oregon (1961) that the interpretations of governmental departments charged with negotiating and enforcing treaties were entitled to “great weight.” While the Court has rejected the contention that executive branch interpretations of treaties are beyond the scope of judicial review, it has increased its deference to the executive branch throughout the twentieth century consistent with an overall trend toward greater discretion for the executive in foreign affairs generally. Scholars have characterized the justification for deference in treaty interpretation as not entirely clear, but some have posited that such deference stems largely from the president’s role in representing the United States in the international arena and the national interest in speaking with one voice in foreign affairs.
Judicial deference to executive treaty interpretation has tended to narrow the scope of individual rights protected by treaties, as the executive branch—which is often a defendant in such suits—has most frequently taken the position that treaties were not meant to benefit private individuals or alternatively are not privately enforceable in court. This scenario has occurred, for example, when criminal defendants have attempted to assert rights under extradition treaties. Scholars have pointed to United States v. Alvarez-Machain (1992) as a strong example of deference to the executive branch, particularly because the government’s position had changed over time, a factor that had weighed against deference in earlier cases. There, a criminal defendant asserted that his abduction from Mexico by U.S. officials violated a longstanding extradition treaty, and Mexican officials agreed. The Court ruled in favor of the executive branch position that the treaty did not bar such abductions despite an 1881 statement by the secretary of state to the contrary.
Examples of civil cases in which judicial deference to the executive branch resulted in rulings against private plaintiffs are Eastern Airlines v. Floyd (1991) and Sale v. Haitian Centers Council (1993). In Floyd, the Court found in favor of the executive branch position that the Warsaw Convention—which governs international airlines’ liability for injuries to passengers—did not allow damages solely for mental distress. In Sale, the executive’s interpretation prevailed when the Court held that Article 33 of the United Nations Convention Relating to the Status of Refugees did not limit the president’s power to intercept and repatriate Haitian nationals found at sea.
In the 1970s and 1980s, several U.S. courts of appeals began to apply a presumption against the private enforcement of treaties, using analogies to Supreme Court decisions regarding implied rights of action under federal statutes. The Restatement (3d) of the Foreign Relations Law of the United States (1986) took note of the decline in private enforcement, commenting, “International agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” In a footnote to its 2008 Medellin opinion, the Supreme Court quoted this statement with citations to several appeals court decisions, characterizing it as a “background presumption.” Although the footnote was dicta, that is, material not bearing directly on the Court’s holding, it has been widely cited by lower courts. Because the existence of a private right of action is a matter of treaty interpretation, any such presumption can be overcome by evidence that the treaty was meant to be privately enforceable. Scholars have noted, however, that most treaties protecting individual rights do not explicitly create a private right of action.
While fewer treaties over time have been deemed to create private rights of action, self-executing treaties may be enforceable by other means. A treaty provision may be the basis for a defense in court if a defendant argues that it has displaced the law under which a prosecution is brought. In other cases, a federal law apart from a treaty may provide a means of enforcing rights claimed under a treaty. For example, some circuits have held that 42 U.S.C. § 1983—which allows an individual to sue for the deprivation of federal rights by one acting under color of state law—permits an action to enforce the Vienna Convention on Consular Relations. While other circuits have disagreed, the Supreme Court has not ruled on the issue. Finally, an individual may be able to assert rights derived from a treaty in a habeas corpus petition, as Chew Heong did in 1884.
Since the earliest years of the American republic, treaties have presented the federal courts with a range of complex legal issues to navigate in determining their domestic effects. In doing so, courts have addressed the resolution of conflicts between treaty provisions and statutory law, the determination of whether treaties are self-executing and therefore directly enforceable in court, and when treaties permit private parties to sue to enforce treaty-based rights. Because the president and Congress are responsible for setting American foreign policy, courts have been sensitive to separation of powers concerns in adjudicating these issues.
Further Reading
American Law Institute. Restatement of the Law Fourth: The Foreign Relations Law of the United States, Part III: Status of Treaties in U.S. Law (2019).
Bederman, David J. “Deference or Deception: Treaty Rights as Political Questions.” University of Colorado Law Review 70, no. 4 (Fall 1999): 1439–1490.
Bradley, Curtis A. “Chevron Deference and Foreign Affairs.” Virginia Law Review 86, no. 4 (May 2000): 649–726.
Chesney, Robert M. “Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations.” Iowa Law Review 92, no. 5 (July 2007): 1723–1782.
Gruber, Aya. “Sending the Self-Execution Doctrine to the Executioner.” FIU Law Review 3, no. 1 (Fall 2007): 57–96.
Hathaway, Oona A., Sabria McElroy, and Sara Aronchick Solow. “International Law at Home: Enforcing Treaties in U.S. Courts.” Yale Journal of International Law 37, no. 1 (Winter 2012): 51–106.
Henkin, Louis. “The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny.” Harvard Law Review 100, no. 4 (February 1987): 853–886.
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