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When do American Judges Enforce Treaties?

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1562&context=facpub

Treaties’ Domains
(When do American Judges Enforce Treaties?)
Tim Wu1
Part I: The Self-Execution Problem and the Deference Model……………………….6
A. The Trouble with Treaties & Non-Self-Execution ………………………………6
B. The Deference Model of Treaty Enforcement……………………………………..8
A Contract Model………………………………………………………………………………….9
Summary of Findings ………………………………………………………………………….11
Part II: A History of Treaty Enforcement in the United States …………………….27
A. Establishing the Basic Principle of No Deference to States Who Breach,
1780-1865…………………………………………………………………………………………………28
The Flip Side………………………………………………………………………………………..32
B. Expanding the Basic Principle and Introducing Deference to Congress
as Breacher: Commercial Treaties, 1800-1860…………………………………………..34
The Flip Side: Tariffs—When Congress Breaches ………………………………..37
C. The Difference Between State and Congressional Breach: Immigration
& Chinese Exclusion, 1860-1945 ………………………………………………………………41
D. Enforcement Against the Executive: Extradition from the Founding to
the Present ………………………………………………………………………………………………47
Part III: The Twentieth Century and the Age of Multilateral Treaties …………54
A. Enforcement Against States Continuing into the Present: The Warsaw
Convention ……………………………………………………………………………………………..57
B. The Difference Between State and Congressional Breach Continues in
the 20th Century: International Intellectual Regimes ………………………………59
C. Human Rights Treaties …………………………………………………………………….61
D. Further Developments in Enforcement Against the Executive ………………….64
1 Professor, Columbia Law School. My thanks to Curtis Bradley, Rachel Brewster,
Bradford Clark, Lori Damrosch, William Dodge, Martin Flaherty, Jack Goldsmith, Oona
Hathaway, Duncan Hollis, Thomas Lee, Kal Ralstiala, Cass Sunstein, Ann Woolhander,
Ingrid Wuerth, Ernie Young, Paul Stephan for feedback on this and different drafts, and to
Katherine Gehring and particularly Pamela Bookman for research assistance. Thanks to
participants at the 2005 Harvard Foreign Relations Workshop, the Columbia Law School
“10-10” Faculty Workshop, the 2004 Virginia Birdwood Faculty Retreat, the George
Washington Law School Faculty Workshop, the 2004 Foreign Relations Interest Group
Conference at Georgetown Law School, and the University of Chicago Work-in-Progress
Workshop.
When do American Judges Enforce Treaties?
2
E. The Rise of the Congressional-Executive Agreement: Altering the
Balance of Deference ……………………………………………………………………………….66
Conclusion………………………………………………………………………………………………….69
When and why do American judges enforce treaties? The question,
always important, has become pressing in an age where the United States is
party to over 12,000 treaties.2 Article VI of the United States Constitution
declares “all treaties” the “supreme Law of the Land,” and American judges
have long had the potential power, under the Constitution, to enforce treaties
just like statutes. But judges don’t enforce treaties that way. Instead, judicial
treaty enforcement is widely seen as unpredictable, erratic, and confusing.
As a result, the question of treaty enforcement has become a leading question
in both American jurisprudence and the study of international law. In recent
years, given difficult questions surrounding the enforcement of the Vienna
and Geneva Conventions, treaty enforcement has also become a regular part
of the Supreme Court’s docket.
Today’s dominant theory of treaty enforcement is the doctrine of
“self-execution,” which suggests that judicial enforcement of treaties is
deduced from the nature of the treaties signed.3 Thought to have originated
in the early 19th century, the theory holds that some treaties are written so as
to be directly enforceable, just like a statute, with full domestic effects, while
other treaties are written so as to create duties only under international law.
Understandably, the distinction has provoked confusion for more than a
century.4 While academics have criticized the doctrine as perplexing and of
little predictive value, they have so far failed to come up with an alternative
description of judicial behavior.
2 Congressional Research Service, Treaties and Other International Agreements: The
Role of the United States Senate, S. Prt.106-71, 10th Cong. 2d Sess., 39 (2001).
3 See Restatement (Third) of Foreign Relations §111.
4 See, e.g., Curtis A. Bradley, International Delegations, The Structural Constitution,
and Non-Self-Execution, 55 Stan. L. Rev. 1557 (2003); John C. Yoo, Globalism and the
Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L.
Rev. 1955, 1955 (1999); Carlos Manuel Vázquez, Laughing at Treaties, 99 Colum. L. Rev. 2154
(1999); David Sloss, Non-Self-Executing Treaties: Exposing A Constitutional Fallacy, 36 U.C.
Davis L. Rev. 1, 4 (2002); Carlos Manuel Vázquez, The Four Doctrines of Self-Executing
Treaties, 89 Am. J. Int’l L. 695 (1995); Louis Henkin, U.S. Ratification of Human Rights
Conventions: The Ghost of Senator Bricker, 89 A.J.I.L. 341 (1995); Jordan Paust, Self-
Executing Treaties, 82 Am. J. Int’l L. 760, 760 (1988).
When do American Judges Enforce Treaties?
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This Article, based on the study of the history and record of treaty
enforcement, advances a new understanding of when treaties are actually
enforced in American courts. It finds that the main inquiries in treaty
enforcement are questions of deference. Stated otherwise, judicial treaty
enforcement turns mainly on who is accused of being the party in breach,
and the perceived competence of the judiciary to offer a remedy. A good
guide to treaty enforcement across the history of the United States is a
question of identity: whether the judiciary will defer to a breach of a treaty
by Congress, the Executive, or a State.
There is, perhaps unsurprisingly, a strong historical pattern of
enforcement of treaties against the States. Beginning in 1795 with the Great
British Debt Case, courts have consistently enforced treaties to prevent States
from placing the United States in breach.5 While the fact has not been
recognized before, direct treaty enforcement in U.S. courts consists mostly of
enforcement as against State breach of U.S. treaty obligations. There is,
moreover, an underlying constitutional logic to such enforcement: States are
granted no power under the constitutional design to breach treaties on behalf
of the United States. Judges have long enforced what can be called the
central dogma of judicial treaty enforcement—that “the peace of the whole
not be left at the disposal of a part.”6
A second clear finding is with respect to alleged Congressional breach
(or anticipatory repudiation) of U.S. treaty obligations. While Congress
sometimes arguably mis-implements a treaty, or passes inconsistent
legislation, courts in practice do not enforce treaties directly in the face of
such Congressional action. Instead, courts obey the legislation passed by
Congress, limiting themselves to indirect enforcement through interpretative
presumptions (most notably, the Charming Betsy canon).7 In other words, in
the Congressional domain, questions of treaty enforcement all turn on the
usage of rules like Charming Betsy to interpret legislation so as not to conflict
with treaty obligations.
5 Ware v. Hylton, 3 U.S. 199 (1796).
6 The Federalist No. 80 (Alexander Hamilton).
7 The Charming Betsy canon, in its original form, states that “An Act of Congress
ought never be construed to violate the law of nations, if any other possible construction
remains.” Murray v. The Charming Betsy, 6 U.S. 64, 118 (1804). The rule is also reflected in
the Restatement (Third) of Foreign Relations §115.
When do American Judges Enforce Treaties?
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While this article identifies fairly clear patterns for Congress and the
States, it makes somewhat less progress on perhaps the most vexing problem
in treaty enforcement: the patterns of enforcement against Executive breach.
In cases of alleged Executive breach, the judiciary faces a difficult question—
is an apparent breach an unwarranted violation of the law or the exercise of a
legitimate authority? What this Article shows is the rough development of a
system with some similarity to the statutory deference system that usually
goes by the name of Chevron deference.8 While it operates in a largely
unrecognized and not well understood fashion, we can detect a rough
equivalent to the statutory system for deciding when more or less deference
is due the Executive.9
The descriptive findings in this paper suggest rethinking the law of
treaty enforcement in the American legal system. To the extent that a legal
theory serves as a prediction of what judges will do, today’s doctrine of selfexecution
is not successful. As scholars have pointed out,10 the rule of selfexecution
has been stretched beyond recognition in the 20th century, into a
loose doctrine that blocks judicial enforcement of treaties on an ad hoc basis.
As this Article shows, the doctrine is widely used as a judicial device to
enforce political and structural policies related to the identity of the
breaching party.
The question of when a treaty is self-executing would be better
understood as a ruling that the Court considers itself competent to enforce
the treaty in question. That’s a question that may sometimes turn on the text
of the treaty– the original and narrowest meaning of the phrase “non-selfexecuting.”
But that’s relatively uncommon. In the history of treaty
enforcement, judicial enforcement has more often depends on different
matters: what branch of government is accused of breach, and what
deference to that entity’s acts the judiciary owes. As in statutory cases, that
question of deference often depends on what other branches of government
have done – whether it is passing implementing legislation, implementing
detailed regulations, or otherwise. These kind of signals from other branches
may make it clear to the judiciary that the treaty will be enforced by other
branches, and that the judiciary owes deference to that decision.
8 533 U.S. 218 (2001).
9 See infra Part II.B.
10 See infra n. 14.
When do American Judges Enforce Treaties?
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Understanding treaty enforcement this way uproots “self-execution”
as the central tool for understanding treaty enforcement. It confines it to the
narrower textual question above, and asks judges to explicitly consider
whether they are deferring to other branches of government, and if so, why.
That one change can do much to bring treaty enforcement in line with the
kind of questions judges routinely face in statutory interpretation and
administrative law.
Finally, this Article adds to the discussion of the development of
treaty enforcement in the 20th century. 11 Scholars almost uniformly agree
that judges have enforced treaties less vigorously in the 20th century,
particularly since World War II. 12 The usual theory is either that the rise of
multilateral treaties is the cause, or abuse of the doctrine of non-selfexecution.
As David Sloss writes, “the modern doctrine of non-self-executing
treaties, created by courts and commentators in the latter half of the
twentieth century, distorts [proper treaty enforcement].”13
While this Article agrees that the patterns of judicial enforcement in
the 20th century may have changed, it suggests a different explanation. The
change in treaty enforcement patterns may come in large part from a change
in the treaty-making process– the emerging prevalence of congressionalexecutive
agreements that have all but replaced Article II treaty-making.
Stated otherwise, the practice of making international agreements coupled
with simultaneous authorizing and implementing legislation has changed
treaty enforcement practice. By creating statutes that surround the treaties
signed by the United States, the practice of congressional-executive
agreements may have done much to displace direct judicial enforcement of
treaties.
To restate, this paper suggests that courts should understand the
problem of self-execution as a question of institutional deference. The basic
question is whether the alleged act of government breach justifies a judicial
remedy. For the judiciary, that’s a familiar question with familiar types of
answers. Judicial deference to Congressional action with respect to a treaty
11 On the changes in international law over the 20th century, see Paul B. Stephan, The
New International Law – Legitimacy, Accountability, Authority, and Freedom in the New
Global Order, 70 U. Colo. L. Rev. 1555, 1557 (1999).
12 See., e.g., G. John Ikenberry, America, World Order, and the Rule of Law (2003).
13 David Sloss, Non-Self-Executing Treaties: Exposing A Constitutional Fallacy, 36
U.C. Davis L. Rev. 1, 4 (2002).
When do American Judges Enforce Treaties?
6
is to be expected,14 while conversely, the judiciary will with confidence
continue to use treaty-law to prevent States from putting the United States in
violation of its international obligations. Finally, when it comes to the
Executive, the judiciary can begin to explain why, in terms of deference, it is
or is not choosing to enforce a treaty as against Executive breach.15
This paper takes no particular position on whether more or less
judicial enforcement of treaties might be desirable. The main point is
descriptive – to understand what judges have been doing in the first place.
Unfortunately, the relevant considerations are hidden behind the
unnecessary and counterproductive complexities of the doctrine of selfexecution.
Making the real questions central to the discussion of treaty
enforcement would represent a major step forward in the development of
treaty law in United States courts.
Part I introduces the deference theory of treaty enforcement. Part II
outlines the origins of the model in the 18th and 19th centuries, while Part III
discusses its application to the problems of the 20th century.
Part I: The Self-Execution Problem and the Deference Model
A. The Trouble with Treaties & Non-Self-Execution
A first-time reader of the United States Constitution might consider
the intended role of treaties in the American system fairly straightforward.
Article VI of the Constitution declares in one breath that valid treaties and
statutes are the “supreme Law of the Land.” The text suggests a rough
equivalence in the legal status of the two, and the simple equivalence view is
supported by much, particularly early, Supreme Court writing. According
to Chief Justice John Marshall, when a treaty “affects the rights of parties
litigating in court … [it is] as much to be regarded by the court as an Act of
Congress.”16 The equivalence view leads also to the “last-in-time rule,”
that treaties trump prior statutes and vice versa. As the Supreme Court has
14 See infra text accompanying notes __ to __ for a description of this tendency.
15 Medellin v. Dretke, Oral argument March 28, 2005.
16 United States v. The Schooner Peggy, 1 Cranch 103, 110. See also, Restatement
(Third) of Foreign Relations §115 comment a (1987) (“An act of Congress and a selfexecuting
treaty are of equal status in United States law, and inconsistency the later in time
prevails.”).
When do American Judges Enforce Treaties?
7
said, “A treaty may supersede a prior act of Congress, and an Act of
Congress may supersede a prior treaty.”17
This equivalence theory suggests that treaty language, when raised in
court, ought usually have effects no different from the exact same language
found in the United States Code. Yet it isn’t so. The full legal effects that
equivalence promises are blocked by a different doctrine: the doctrine
known as non-self-execution.
Self-execution is the primary tool used by judges and academics when
assessing judicial enforcement of treaties.18 The theory, usually but wrongly
said to have originated in the 1829 case Foster v. Neilson,19 divides all treaties
into two categories. “Self-executing treaties” become a domestic law of the
United States immediately upon ratification. “Non-self-executing treaties,”
in contrast, create no domestic law rules, and cannot be directly enforced in
American courts. American compliance with a non-self-executing treaty, the
theory goes, is a problem for entities other than the judiciary. 20
How can a court tell the difference between the two categories? Selfexecution
theory suggests that the intent of the treaty-drafters provides the
key. As the Third Restatement of Foreign Relations puts it, “An international
agreement of the United States is ‘non-self-executing’ … if the agreement
manifests an intention that it shall not become effective as domestic law
without the enactment of implementing legislation.”21 Yet discerning what a
treaty intended with respect to its domestic enforcement is often quixotic.
Treaties are an exchange of promises as between nations, and almost never
speak directly to their enforceability in U.S. courts. To exaggerate slightly,
looking for a treaty’s intent regarding judicial enforcement can be like asking
whether a sales contract takes a side on the merits of affirmative action. The
relevant intent usually just isn’t in the treaty.
As a consequence, courts have created multiple-part tests designed to
tell the difference between a treaty intended to be self-executing from its
17 The Schooner Peggy, 1 Cranch at 110.
18 See supra n. __ (papers discussing self-execution theory).
19 Foster & Elam v. Neilson, 27 U.S. 253 (1829). The theory was recognized by a state
court as early as Camp v. Lockwood, 1 U.S. 393 (1788), 40 years before Neilson.
20 See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th
Cir.1985); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir.1984)
21 Restatement (Third) of Foreign Relations §111.
When do American Judges Enforce Treaties?
8
non-self-executing brethren. An example from the Seventh Circuit reads as
follows:
[C]ourts consider several factors in discerning the intent of the parties
to the agreement: (1) the language and purposes of the agreement as a
whole; (2) the circumstances surrounding its execution; (3) the nature
of the obligations imposed by the agreement; (4) the availability and
feasibility of alternative enforcement mechanisms; (5) the implications
of permitting a private right of action; and (6) the capability of the
judiciary to resolve the dispute.22
As one might expect, using a multiple part test to interpret the “intent” of a
document that never addressed the question is a recipe for judicial anarchy.
Patterns of treaty enforcement, as scholars have noted, seem impossible to
square with the “intent” analysis.23 Consequently, self-execution problems
are universally regarded as confusing, confused, and chaotic.
The goal of the theory of enforcement advanced here is to provide a
new and better explanation for what drives judicial treaty enforcement. It is
worth noting that the deference model is certainly not the only theory that
might conceivably fit the evidence and provide a better explanation that the
“intent” theory. During the research of this paper, it became evident that
one could argue that judges enforce treaties differently according to subjectmatter,
yielding a theory that there lies an evolving domain of areas where
treaties will be enforced. One might also argue that the Court is motivated
by the likelihood of its orders actually being obeyed. However, I advance
the deference model as the best descriptive fit to the history and record of
treaty enforcement decisions. Its basic premise is that concern for domestic
government structure is the primary driver of treaty enforcement patterns.
Indeed we might go further and say that many of the familiar forces that
drive judicial enforcement of statutes are to be found in treaty enforcement
cases, albeit in distinctive (some might say mutated) forms that are driven by
the contractual nature of treaties and their connection to foreign affairs.
B. The Deference Model of Treaty Enforcement
How do American judges enforce treaties? To answer this question,
we must first make clear what we mean by the enforcement of a treaty, and
22 Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir.1985).
23 See, e.g., Valasquez, supra n. __, Sloss, supra n. __.
When do American Judges Enforce Treaties?
9
what it means for a party to be in breach. Subsequently we may summarize
the main findings of Part II, the study of treaty enforcement in U.S. courts.
A Contract Model
The deference model of treaty enforcement is centered on a familiar
yet crucial proposition: treaties are legal agreements as between nations.
They are, in other words, analogous to international contracts, containing an
exchange of promises between the United States and another country. Like
a contract, the promises can be vague, clear, conditional, and so on. The point
is that the creation of a treaty can be generally described as a bargained-for
exchange of promises as between nations that creates an obligation under
international law.
Where does a domestic judiciary enter the picture? In this model, just
as in a contract case, the judiciary’s role in a treaty case begins when some
party complains of breach. To make a claim under a treaty in court, a litigant
alleges that some government actor has or will put the United States in
violation of a promise made. In effect, a treaty litigant asks the court to take
the promise made as a matter of international law and translate it into a
domestic rule, providing a domestic remedy as against the international
treaty breach. If the United States promised X to Canada, a treaty plaintiff is
asking the court to order the United States to honor its promise.
This leads us to the first question: how, exactly, might government
actors put the United States in breach of a treaty? Basic contract theory can
help us understand what this means. As in contract law, there are two
general ways in which government actors can put the entire country in
breach. First, a state official or the Executive might act in a manner
inconsistent with what it promised to do in the treaty—creating the contractlaw
equivalent of a breach through nonperformance.24
For example, say that the United States and Britain agree by treaty to
eliminate visa requirements for citizens who want to enter either country. If
federal customs officials continue to demand a visa, a British tourist might
argue that the Executive branch has failed to live up to its promise.25
Conversely, lawmaking entities like a state legislature or Congress may pass
a law inconsistent with a promise made in a treaty. In so doing they
24 Cf. Allen Farnsworth, Contract §8.8 (2d ed. 1999) (on nonperformance as breach).
25 Cf. Taylor v. Morton, 23 F.Cas. 784 (Cir. C. Mass. 1855) affirmed 67 U.S. 481 (1862),
discussed infra Part II.
When do American Judges Enforce Treaties?
10
announce that the United States, or part of it, will henceforth act in a manner
inconsistent with a promise made in a treaty—the treaty-law equivalent of
anticipatory repudiation.26 If, for example, Congress or a state legislature
writes a law that places an explicit quota on the import of German
automobiles, we can say that the law announces an anticipatory breach of the
U.S. obligations under the General Agreement on Tariffs and Trade
(GATT).27
Given an allegation of breach, a judge is left with two necessary
questions. One is a question of interpretation: does the alleged behavior
actually constitute a breach of the treaty? The second and often more
difficult question is one of deference to institutional competence. Can the
court comfortably translate the international law rule into a domestic
remedy? Even if we assume breach of the treaty as an international law
matter, is it always appropriate for the judiciary to order a remedy?
There are two principal reasons a court might defer. First, the
defendant, as a government actor, may have some privilege to breach the
treaty in question, stemming from its power to terminate, for example. Or,
the government actor may claim an independent authority to translate the
treaty into domestic law rules, and create an implementation of the treaty to
which the court owes deference. For any combination of these reasons the
court may or may not enforce a treaty in a given case.
Unfortunately, these questions are rarely asked this may in judicial
opinions. Asking the questions this way helps us understand how, in fact,
courts have acted to remedy treaty breach over the last 200 years. Thanks,
perhaps to the persistence of the self-execution doctrine, the topic is
surprisingly under-researched. Yet it is crucial to informing what we might
think about the underlying normative questions.
26 Cf. Allen Farnsworth, Contracts §8.20-8.22 (“a repudiation is a manifestation by
one party to the other that the first cannot or will not perform at least some of its obligations
under the contract.”).
27 It might strike some readers as strange to speak of Congress breaching a treaty
through anticipatory repudiation. But notice that as a positive matter Congress’ passage of
the law will not usually nullify the international law duty of the United States to follow the
treaty—the GATT in our example. For unless by its nature the treaty allows unilateral
amendment, the international law duty survives the passage of an inconsistent law, though
as we will see, a domestic court is unlikely to enforce that duty directly.
When do American Judges Enforce Treaties?
11
Summary of Findings
For purposes of this study this Article identified 148 Supreme Court
cases that address the enforcement of treaties (when important, well-known
lower court decisions are also discussed).28 While a full statistical study of
the cases is beyond the scope of this paper, and no statistically causal claims
are presented, a simple survey of these 148 cases reveals interesting patterns.
First of all, by subject matter, the treaty cases break down as follows:
T r eaty Case Topics
T o r t
6 %
I P
1 % Tax
3%
Consular
3%
O t h e r
8 %
I m m i g r a t i o n
8%
D i sc r i m i m a t i o n
1 3 %
Criminal/Ex
14%
Trade
7%
Admiralty
6%
Property
31%
Second, the cases were examined to determine, as best as possible,
which government entity was accused of breach. That yields the following:
A l l e ged Treaty Breach
(148 Decisions)
State, 72, 50%
E x e c u t i v e , 25,
1 7 %
C o n g r e s s , 2 7 ,
1 9 %
Foreign, 1, 1%
Unclear, 19, 13%
Finally, in the study has made an effort to determine, as best as possible, how
many of the cases led to direct judicial enforcement of the treaty. That
yielded:
28 The database is available upon request.
When do American Judges Enforce Treaties?
12
At this broad a level, few conclusions can be offered. Since the theory
suggests different patterns of treaty enforcement for different actors, we now
look at each major actor in turn.
State Breach. Courts vigorously enforce treaties to remedy state
breach—enforcement against states is the primary and historically most
significant type of treaty enforcement in the United States, with more than 50
examples in the Supreme Court alone.29
29Some examples include: Georgia v. Brailsford, 3 U.S. 1, 4 (1794) (finding that even if an
act of the State of Georgia could be construed to confiscate a debt, it would invalid if in
opposition to the Treaty of Peace); Hopkirk v. Bell, 7 U.S. 454 (1806) (interpreting Treaty of
Peace to override conflicting state statute); Hannay v. Eve, 7 U.S. 242 (1806) (finding that
state contract law yields to treaty law); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304
(1807) (finding that treaty is relevant source of law for property dispute); Chirac v. Chirac, 15
U.S. (2 Wheat.) 259 (1817) (finding that State inheritance law was displaced by treaty with
France); Orr v. Hodgson, 17 U.S. (4 Wheat.) 453 (1819) (finding that Treaty with Britain
protects inheritance as against Virginia law); American Ins. Co. v. 356 Bales of Cotton, 26
U.S. (1 Pet.) 511, 542 (1828) (on treaty that ceded Florida from Spain, the “treaty is the law of
the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and
immunities, of the citizens of the United States”); United States v. Percheman, 7 Pet. 51
(1833) (Spanish-American treaty trumps state property law); Pollard’s Heirs v. Kibbe, 39
U.S. 353 (1840) (same); Haver v. Yanker, 76 U.S. 32. 34-35 (1869) (displacing Kentucky
inheritance law); Hauenstein v. Lynham, 100 U.S. 483 (1879); In re Ah Chong, 6 Sawyer 451
(1880) (State law prohibiting aliens from fishing in public waters void due to contravention
with Burlingame treaty); Chy Lung v. Freeman, 92 U.S. 275 (1875) (state ban on immigration
of lewd women violates Burlingame treaty); De Geofroy v. Riggs, 133 U.S. 258 (1890) (French
commerce treaty supercedes inconsistent D.C. law); Maiorano v. Baltimore & O. R. Co., 213
U.S. 268 (1909) (Treaty with Italy not inconsistent with Pennsylvania law); Asakura v. City of
Seattle, 265 U.S. 332 (1924) (Treaty with Japan trumps inconsistent Washington State law);
Jordan v. Tashiro 278 U. S. 123 (1928); Nielsen v. Johnson, 279 U.S. 47 (1929) (“Treaty
provisions prevail over inconsistent state enactments”); United States v. Belmont, 301 U.S.
Fi n dingsofBreach
(148 decisions)
Yes
No 50%
4 3 %
Other
7%
When do American Judges Enforce Treaties?
13
The foundational case of state enforcement is the 1796 Great British
Debt Case (also known as Ware v. Hylton), discussed in detail in Part II.30 In
Ware the Supreme Court enforced the 1783 Treaty of Peace to nullify
inconsistent State laws that released debtors from their pre-War British
creditors.31 The case created a model of treaty enforcement that has been
broadly followed across subject areas ranging from state inheritance law and
immigration law to anti-discrimination, trademark, and airline liability.32 In
the famous 1924 case of Asakura v. City of Seattle,33 the Supreme Court
enforced a Japanese-U.S. treaty to nullify a Seattle ordinance that
discriminated against aliens by allowing pawnbroker licenses to be issued
only to U.S. citizens. Asakura is a casebook favorite because of oddly
vigorous enforcement of the treaty and the total absence of any discussion of
the doctrine of non-self-execution. History and the deference model show
that Asakura is in fact no mystery at all, but rather a typical and even routine
case of treaty enforcement as against state breach.
In State cases the Court uses a rule of no deference: it makes no effort
to reconcile inconsistent state law, and pays no special attention to state
interpretation of a treaty. While always the practice, the court put the rule
clearly in Nielsen v. Johnson: “as the treaty-making power is independent of
and superior to the legislative power of the states, the meaning of treaty
provisions so construed is not restricted by any necessity of avoiding
possible conflict with state legislation and when so ascertained must prevail
over inconsistent state enactments.”34
324 (1937) (New York State policy no bar to operation of treaty law); Clark v. Allen, 331 U.S.
503 (1947) (Treaty with Germany trumps inconsistent California law); Trans World Airlines,
Inc. v. Franklin Mint Corp, 466 U.S. 243 (1984) (Warsaw Convention limiting liability of
airlines displaces inconsistent state law); Delchi Carrier v. Rotorex Corp., 71 F.3d 1024, 1027-
28 (2d Cir. 1995) (United Nations sales Convention preempts state law causes of action);
Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d, 1142, 1147-52 (2d Cir. 2001)
(same); Zicherman v. Korean Airlines Co., 516 U.S. 217 (1996)( interpreting Warsaw
Convention in state law personal injury suit); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,
525 U.S. 155 (1999) (same); Olympic Airways v. Husain, 124 S.Ct. 1221, 1224 (2004) (limiting
liability of Olympic Airways).
30 Ware v. Hylton, 3 U.S. 199 (1796).
31 Id.
32 See Part II & III for a history of the Ware rule in U.S. Courts.
33 265 U.S. 332 (1924).
34 279 U.S. 47, 52 (1929).
When do American Judges Enforce Treaties?
14
It is also worth mentioning that since 1908 courts have sometimes
used a different mechanism for enforcing certain kinds of international
agreements against states. In these cases, Executive Agreements (not
Treaties in the Article II sense, but international agreements made by the
President) are at issue. The court is asked, under the authority of Ex Parte
Young, 35 to issue an injunction that stops a state official from violating the
agreement in question or from violating the Supremacy Clause of the
Constitution.36 Most academics put these cases in a different category from
treaties altogether, but they may provide additional examples of enforcement
as against state breach of an international agreement. There are far fewer
examples of this type of treaty enforcement;37 the most dramatic was 2003’s
America Insurance Association v. Garamendi, 38 where the Supreme Court found
that a series of executive agreements preempted State law in the form of a
California insurance statute, preventing even potential inconsistency with an
international treaty regime. 39 At a minimum, cases enforcing executive
agreements may reflect the broader patterns of enforcement of international
agreements against the States.40
That the primary domain of treaty enforcement lies against States
should be no surprise. By enforcing treaties as against states, courts give
effect to the single clearest principle in treaty enforcement, in Madison’s
phrase, that “no part of a nation shall have it in its power to bring
[international complaints] on the whole.”41 The Supremacy Clause is an
obvious affirmation of that principle, arguably giving courts both the power
35 209 U.S. 123 (1908).
36 Some might argue that it is confusing to say preemption of state law by treaty is the
same thing as enforcing a treaty over inconsistent state action but I think it simpler to see
them as the same thing. Accord Curtis Bradley & Jack Goldsmith, Foreign Relations (2003)
(chapter on treaty preemption of state law).
37 Examples include America Insurance Association v. Garamendi, 539 U.S. 396 (2003);
Dames & Moore v. Regan, 453 U. S. 654 (1981); United States v. Pink, 315 U. S. 203 (1942);
United States v. Belmont, 301 U. S. 324 (1937); and for examples of lower court usage see
David Sloss, Ex Parte Young and Federal Remedies For Human Rights Treaty Violations, 75
Wash. L. Rev. 1103 (2000).
38 539 U.S. 396.
39 Id. at 400-403.
40 It is also certainly worth asking whether courts should be more deferential to state
breach of Executive Agreements as opposed to Senate or Congressionally approved treaties.
41 1 The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., rev. ed.
1937).
When do American Judges Enforce Treaties?
15
and the duty to prevent states from violating the treaty obligations of the
United States.
Over the course of American history and in recent years, various
writers have suggested that States should be granted more leeway to express
their own foreign policies.42 Whatever the future may hold, the history of
treaty enforcement against States has not given much support for such
arguments. Instead, courts show far more concern that allowing state breach
might create concerns of reciprocity that no actor other than the courts are in
a good position to remedy. As Justice Miller memorably wrote of a California
statute banning the immigration of foreign, or “lewd” women, “If (the
United States) should get into a difficulty which would lead to war, or to
suspension of intercourse, would California alone suffer, or all the Union?”43
Congressional Breach. Congressional breach poses more complicated
problems for the judiciary. Unlike with respect to the States, the courts do
not have a clear command from the Supremacy Clause to prevent
Congressional breach of treaties. Instead, the judiciary shares the job of treaty
enforcement with Congress (and also the President, as discussed in a
moment). In addition, Congress has the power, accepted since at least 1798,
to terminate, or repudiate, treaty obligations altogether.
When Congress inconsistently with a U.S. treaty obligation, the rule of
deference has been clear: the judiciary refuses to enforce the treaty
independently.44 Arguably, in the realm of treaty enforcement, Congress is
an alternative and perhaps predominant enforcement agency for American
treaties. That is not to say that Congress enforces treaties in the usual legal
sense of the term, but rather, Congress enforces through implementation. By
42 See, e.g., Ernest Young, The Rehnquist Court’s Two Federalisms, 83 Texas L. Rev. 1
(2004) (arguing for greater deference to states in matters of foreign relations).
43 Chy Lung v. Freeman, 92 U.S. 275, 279 (1875). See also Federalist No. 80 (Alexander
Hamilton) (“The peace of the whole ought not to be left at the disposal of a part. The Union
will undoubtedly be answerable to foreign powers for the conduct of its members.”).
44 Foster & Elam v. Neilson, 27 U.S. 253 (1829). These cases are less common, because
Congress usually implements treaties or passes later-in-time statutes that abrogate them.
The first reported case to find the obligation of a treaty an obligation of Congress is Camp v.
Lockwood, 1 US 393 (1788); others include Whitney v. Robertson, 124 U.S. 190, 194 (1888)
(tariff statute); Kelly v. Hedden, 124 U.S. 196 (1888); Rousseau v. Brown, 21 App. D.C. 73
(1903) (Failure to obey patent treaty fault of Congress); United Shoe Co. v. Duplessis Shoe
Co., 155 Fed. 842, 84 C.C.A. 76 (1st Cir. 1907). {Are there any more recent examples?}
When do American Judges Enforce Treaties?
16
passing implementing legislation, Congress can decide how it wants a
particular treaty to be enforced in the United States. The judiciary, in turn,
looks for signs that Congress has taken charge of treaty-enforcement in a
given area. That can be evidenced most clearly by the passage of
implementing legislation, but sometimes the passage of prior legislation in a
field can demonstrate that Congress has exerted its control over an area of
treaty enforcement (similar patterns are observed in the tariff cases, Chinese
exclusion, intellectual property, and human rights treaties).45 In either case
(more obviously the former), potential inconsistency with the treaty
represents a Congressional choice.
When Congress implements a treaty through a statute, the statutory
regime completely replaces the treaty as a basis for direct enforcement. That
is to say, judges do not return to the original text of the treaty as a law they
can enforce directly. The Supreme Court has said, “a court will not
undertake to construe a treaty in a manner inconsistent with a subsequent
federal statute.”46 It would be a mistake, however, to assume that the
judiciary does nothing when Congress’s implementation of a treaty or latertime-
legislation is at odds with the treaty. Courts instead may turn to the
Charming Betsy canon or other presumptions by which Congressional
ambiguity may be converted into treaty compliance.47 Nonetheless, where
Congress is absolutely clear in its intent to violate the treaty (through, most
obviously, passage of directly inconsistent legislation), the judiciary
abandons any effort to enforce the treaty in its original form.48
Several illustrative examples from the history of treaty enforcement
may help clarify these points. In the 19th century, Congress sometimes
arguably mis-implemented U.S. trade treaties with other nations.49 For
example, in 1832 the United States promised Russia Most Favored Nation
45 See Parts II.B, II.C, III.B. and III.C
46 Baker v. Carr, 369 U.S. 186, 212 (1962).
47 See, e.g., Cheung Sum Shee v. Nagle, 268 U.S. 336 (1925) (interpreting 1880 Treaty
with China as containing rights that survive passage of new immigration act: the ”act must
be construed with the view to preserve treaty rights unless clearly annulled”). Examples of
the use of the Charming Betsy canon to inform statutory interpretation based on treaties can
be found in Ralph G. Steinhardt, The Role Of International Law As a Canon Of Domestic
Statutory Construction, 43 Vand. L. Rev. 1103 (1990). See also Restatement (Third) of
Foreign Relations § 114.
48 See, e.g., Part II.C (The Chinese Exclusion cases).
49 See Part II.B (discussing 19th century treaty practice.)
When do American Judges Enforce Treaties?
17
status—the right to the best tariff rate given any other country. In its 1842
Tariff Act, however, Congress created special tariffs for British and Spanishgrown
hemp, in arguable breach of its treaty with Russia. Even if the courts
might have agreed with Russia that Congress owed it the best rate, the
Supreme Court was unwilling to set Congress straight. It deferred, instead,
to Congress’s implementation, relying on the judiciary’s relative lack of
information as to why Congress might have implemented the tariffs the way
it did.50
Similarly, the United States in 1988 joined the Berne Convention of
1886, which sets international, minimal standards of copyright protection,51
and Congress passed implementing legislation.52 Despite amendments to
the copyright code, the United States arguably still does not comply with the
some of the requirements of Berne,53 particularly the provisions demanding
protection of “moral rights.”54 Yet nonetheless courts have ignored that fact
in their decisions, and in fact have failed even to try to construe federal law
to be consistent with U.S. treaty obligations.55 These two examples reflect
broader patterns identified more clearly in Part II.
Executive Breach. The President, like Congress, has independent
powers that make review of his compliance with treaties challenging. The
Executive has the power to create executive agreements or treaties in
collaboration with Congress, and it assumes the authority to terminate
50 Taylor v. Morton, 23 F.Cas. 784 (Cir. C. Mass. 1855) affirmed 67 U.S. 481 (1862).
51 See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9,
1886, as last revised at Paris, July 24, 1971 (amended 1979), S. Treaty Doc. No. 27, 99th Cong.,
2d Sess. (1986), 828 U.N.T.S. 221.
52 See The Berne Convention Implementation Act of 1989, Pub. L. 100-568, 102 Stat.
2853 (1988).
53 See Ralph S. Brown, Adherence to the Berne Copyright Convention: The Moral
Right Issue, 35 J. Copyright Soc’y 196, 205 (1987-88); see also Jane Ginsburg, The Right to
Claim Authorship in U.S. Copyright and Trademarks Law, University of Houston Law
Review, 2004 (discussing right of attribution).
54 See Berne Convention, supra n. __, Art. 6bis (moral rights protections).
55 In fact Courts have not even used the Charming Betsy canon to avoid arguable
breach of Berne. For example, in Dastar Corp. v. Twentieth Century Fox Film Corp., 537 US
1099 (2003), the Supreme Court effectively eliminated a category of moral rights protection
without questioning whether this would put the United States in violation of its treaty
obligations.
When do American Judges Enforce Treaties?
18
treaties unilaterally.56 The Executive also engages in independent
interpretation of treaties, sometimes writing implementing regulations and
ordering its employees to obey the treaty as interpreted. As an example, U.S.
soldiers (with well-known exceptions) are regularly ordered to obey various
laws of war, including the Geneva Conventions, as the Executive has
interpreted them in its regulations.57
What then do courts do when facing a lawsuit alleging Executive
breach of a treaty? This turns out to be perhaps the hardest problem in the
study of treaty enforcement. The de facto rule of deference in Executive
breach cases is confusing. Courts will, on the one hand, enforce treaties
directly against the Executive (unless, to avoid enforcement, they ascribe
breach to Congress—more on that in a moment). But courts tend to do so
while also granting considerable deference to the Executive’s interpretation
of the treaty, and such deference, when strong, can sometimes look like not
independently enforcing the treaty.
We need to understand the problem of Executive breach as a cousin to
the similarly difficult problem of statutory deference to administrative
agencies’ interpretations of the statutes they administer which judges call
Chevron problems.58 Logic suggests that there must be a treaty-law system of
deference to the Executive in cases of alleged executive breach, but if so, it is
only vaguely referred to in the cases and certainly not well understood by
anyone. The comparison to statutory deference may therefore serve as
useful way to understand the problem of executive treaty deference, though
there are enough differences to make treaty deference its own creature.
The similarity between statutory and treaty deference analysis comes
from the fact that in both kinds of cases, courts encounter facts that justify
what the Court calls Skidmore deference—recognition of, but not necessarily
absolute deference to the Executive’s “specialized experience and broader
56 The exact amount of authority the President has to terminate treaties is debated.
See Louis Henkin, Foreign Affairs and the United States Constitution 211 (2d ed. 1996)
(“[T]he Constitution tells us only who can make treaties for the United States; it does not say
who can unmake them.”); see also Goldwater v. Carter, 444 U.S. 996 (1979) (finding validity
of Presidential termination of treaty a political or unripe question).
57 See U.S. Army Field Manual 27-10, The Law of Land Warfare (international law
rules for soliders).
58 See Curtis Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649 (2000)
(recommending Chevron model for deference in foreign affairs cases).
When do American Judges Enforce Treaties?
19
investigations and information.”59 Beyond expertise, to the degree that
statutory deference is premised on the greater political accountability of the
Executive as compared with the courts, accountability may similarly drive
deference to the Executive in treaty interpretation cases.60 If the Executive
has implemented a treaty and people don’t like the President’s approach,
courts may reason that voters can seek a democratic remedy. These common
factors—experience, information, and accountability—suggest a baseline
level of deference, and in some treaty cases courts grant something like
Skidmore deference. For example, in taxation treaty cases, while the courts
say they will give “great weight” to the Executive’s interpretation, they
nonetheless do not hesitate to find the Executive in breach in clear case.61
But beyond this Skidmore point the comparison with statutory
deference becomes complex. For readers unfamiliar with administrative law,
in the case Mead v. United States,62 the Supreme Court suggested that the
appropriate level of deference to the executive can vary. It depends, said the
Court, on evidence of Congressional delegation of legislative authority to the
Executive, most obviously textual delegation in the statute itself.63
That rule has proven complex for statutes,64 and what it might mean
in the treaty context is oblique. For one things, explicit delegations or other
evidence only rarely appear in treaties. Treaties, after all, are written to bind
two or more governments and therefore do not usually give precise
59 Mead, 533 U.S. at __.
60 Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 866 (1983). {Do you
want to cite an article here about accountability, like Scalia’s in 1989 Duke L.J. 511?}
61 In tax cases, treaties are usually enforced directly by courts without even discussion
of whether they are “self-executing.” See, e.g., Maximov v. United States, 373 U.S. 49 (1963);
Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982); United States v. Stuart,
489 U.S. 353 (1989); Kimball v. Commissioner, 1946 WL 269 (Tax Ct. 1946). An international
tax issue was also raised in Pelham G. Wodehouse, 1950 WL 8022, T.C.M. (P-H) P 50,161,
1950 PH TC Memo 50,161, Tax Ct., Jun 30, 1950.
62 United States v. Mead Corp., 533 U.S. 218 (2001).
63 Thomas Merrill and Kristin Hickman originally suggested that Chevron deference
should attach only in clear cases of delegation and actual agency rule-making. See Thomas
Merrill & Kristin Hickman, Chevron’s Domain, 89 Georgetown L. J. 833 (2001). However, in
practice courts have relied on all sorts of evidence. See Adrian Vermeule, Mead in the
Trenches, Chicago Public Law Working Paper No. 37 (2003).
64 See Adrian Vermeule, Mead in the Trenches, Chicago Public Law Working Paper
No. 37 (2003).
When do American Judges Enforce Treaties?
20
instructions to domestic actors.65 For another, the relevant intent of a treaty
often reflects a joint intent as between many treaty partners. Asking whether
Russia intended to delegate to the U.S. Secretary of Commerce power to
implement a given treaty is a strange question for an American judge to
answer. In the absence of implementing legislation, the search for a treaty’s
intent to delegate legislative power to the Executive often makes no sense.
Instead, in treaty cases a common different basis for deference cannot
be ignored: the President’s independent power not only to enforce treaties,
but also to set the foreign policy of the United States. This is the matter of
foreign affairs deference (itself sometimes called an offshoot of political
question deference) and scholars may have overlooked its effects in cases of
treaty enforcement.66
How can we explain how exactly foreign affairs deference affects
treaty cases in cases of alleged executive breach? One answer comes from
Louis Henkin, who in a famous article explained this foreign affairs
deference in a manner useful for our analysis here.67 He suggested that
foreign affairs deference is simply the consequence of the constitutional
delegation of a legislative power to the executive. When a court defers on
foreign affairs grounds, says Henkin, that may mean “that the President’s
decision was within his authority and therefore law for the courts.”68
Henkin’s approach suggests that perhaps the most relevant issue in treaty
deference cases is a search for a constitutional as opposed to statutory
delegation of legislative power to the Executive.
Based on Henkin’s work and the analogy to statutory deference we
might outline a rough framework for how courts think about the problem of
Executive breach. When the Executive is accused of breaching a U.S. treaty,
the question for the Court, as in a statutory case, is what deference to accord
65 The closest approximation is a promise to give the treaty domestic effect, as in this
language for the International Covenant on Civil and Political Rights (ICCPR): “Every State
Party to the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes … to give effect to the rights recognized in the present Covenant.”
66 Curtis Bradley describes foreign affairs deference as, in fact, comprising four
distinct types of deference, “Political Question,” “Executive Branch Lawmaking,”
“International Facts,” “Persausiveness” and “Chevron.” See Bradley, Chevron Deference,
supra n. __ at 61-77.
67 See Louis Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597, 610-
614 (1976).
68 Id. at 612.
When do American Judges Enforce Treaties?
21
the Executive’s interpretation of the treaty in question. First, based on
subject matter expertise, courts in treaty cases will accord the Executive
something like Skidmore deference as a matter of course. That’s what we see,
for example, in tax treaty cases. Yet in some cases, courts grant even greater
or total deference. Unlike in statutory cases, such deference rarely results
from the fact that a treaty explicitly delegates legislative authority to the
Executive (the path to deference that Mead and Thomas Merrill suggest).69
Instead, courts do so when the Constitution has delegated the relevant
power to the Executive branch, such as the power to announce a treaty has
been terminated.70 The result is a rough two-level system of deference to the
Executive in treaty cases that might explain why the judiciary defers when it
does.
It should be admitted, in closing, that this suggested model for
thinking about Executive breach is more aspirational than the rest of the
paper. Perhaps the most extreme model of judicial deference to the
Executive is the case United States v. Alvarez-Machain, yet as discussed in Part
III, there seems little special about that case that might particularly have
justified strong deference—unless the point was to suggest that the Executive
should always get complete deference in treaty cases.71 But that legal
conclusion seems implausible in light of the Court’s relative lack of deference
in other treaty cases. In short, the Court is already offering different levels
of deference to the Executive in different types of cases. What is suggested
here is simply a more principled way to do so.
Types of Breach – A Signaling Model. If we accept that the identity
of the breacher is crucial in cases of treaty enforcement, how can a court
distinguish instances of Executive, Congressional, and State Breach? The
answer to this question can make all the difference in an individual case. As
we’ve seen, characterizing a matter as Executive or State breach opens the
door to judicial enforcement, as compared with deciding that the fault lies
with Congress for failing to implement the treaty in the first place. The
question is important, for it provides courts with a means of avoiding the
enforcement of a treaty against the Executive or a State. Faced with what
69 See See Thomas Merrill & Kristin Hickman, Chevron’s Domain, 89 Georgetown L. J.
833 (2001).
70 Of course, looking to the constitution for powers reserved to the Executive might
also happen in a statutory case; it is just probably less likely.
71 504 U.S. 655 (1992).
When do American Judges Enforce Treaties?
22
looks like the breach of a treaty, the court can, instead, attribute the problem
to Congress by calling the treaty non-self-executing and awaiting
Congressional action.
The question is hard, and the contribution of Chief Justice Marshall’s
opinion in Foster v. Neilson was to suggest that this question might
sometimes be answerable by the text of the treaty. As he said, “when the
terms of the [treaty] stipulation import a contract, when either of the parties
engages to perform a particular act, the treaty addresses itself to the political,
not the Judicial, Department.”72 But despite Marshall’s intentions, the text of
the treaty is at best rarely used by courts to decide to whom the treaty is
“addressed.” It is true that in some cases, as Neilson suggested, the text may
be determinative, but such cases are rare.73 Instead, in most notable treaty
cases the language is indeterminative or just ignored. The history of treaty
enforcement shows that there is often little relationship between the
particular phrasing of a treaty’s language and the enforcement of a treaty. It
is littered with treaties bearing direct language that were nonetheless left
unenforced by the judiciary for want of Congressional action.74
Instead of focusing on text, courts search for other evidence. They
want to know whether the Court is meant to be the primary enforcer of the
treaty in question, and look for signals from Congress or the Executive that
might show who is meant to be in charge of enforcing a given treaty. One of
the clearest example, for instance, is where Congress passes implementing
legislation. But sometimes even previous Congressional activity has
convinced courts that judicial enforcement of an inconsistent treaty would be
unwelcome. Rightly or wrongly that’s the behavior of the courts hearing the
commercial and MFN treaties in the 19th Century,75 and the multinational
intellectual property treaties in the early 20th century,76 and the Human
72 27 U.S. at 314.
73 One example is one of the first reported treaty interpretation cases, Camp v.
Lockwood, 1 U.S. 393 (1788). The language in question said “Congress shall earnestly
recommend it to the legislatures of the respective states to provide for the restitution.” The
Definitive Treaty of Peace Article V. The Court had little difficulty finding this created an
obligation for Congress as opposed to the States.
74 Some examples include the 1958 Convention on the High Seas, the International
Convention on Civil and Political Rights, and the 19th century Commerce and Most Favored
Nation treaties.
75 See Part II.C.
76 See Part III.B.
When do American Judges Enforce Treaties?
23
Rights conventions of the late 20th century.77 In other words, courts have
taken the fact that Congress has passed prior legislation in the area as
evidence that the failure to implement a treaty is the fault of Congress.
A careful observer will notice that this latter practice contradicts the
last-in-time rule (the rule that statutes and treaties are of equal legal power,
and the latter law will prevail in cases of conflict.)78 That is correct. Since
non-self-execution or other doctrines of deference can be and are used to
prevent a later-in-time treaty from abrogating an earlier statute, the last-intime
rule is not a full or accurate portrayal of judicial practice.79
While this may seem a novel point, Professor Westel Woodbury
Willoughby made it in 1910. He wrote, “There have been few (the writer has
is not sure there has been any) instances in which a treaty inconsistent with a
prior Act of Congress has been given full force and effect as law in this
country. . . . Furthermore . . . Congress has specifically denied that a treaty
can operate to modify the arrangements which it, by statute, has provided,
and in actual practice, has in every instance succeeded in maintaining this
point.”80 In 1953, Edward Corwin pointed out that the case Cook v. United
States is the only important appellate case to have enforced a later treaty in
abrogation of an earlier statute.81
The reciprocal version of last-in-time as U.S. law, in other words,
stands on the authority of a single Supreme Court case, and Cook requires
further examination, for it is not entirely what it seems.82 During
prohibition, the Coast Guard used to raid British ships and seize intoxicating
liquors. The United States, after much diplomatic friction, had agreed via a
1924 Treaty to restrain the Coast Guard somewhat—it agreed not to
boarding ships outside of one hour’s steaming from the coast.83 In 1932, in
breach of that treaty (but in compliance with a federal statute), the Federal
Coast Guard seized Captain Cook’s ship and the Collector of Customs
77 See Part III.C.
78 For classic statements of the last in time rule, see, e.g., Reid v. Covert, 354 U.S. 1, 18
(1957); Whitney v. Robertson, 124 U.S. 190, 194 (1888).
79 But cf. Julian Ku, Treaties As Laws: A Defense of the Last in Time Rule, 80 Ind. L. J.
(forthcoming Spring 2005).
80 1 Westel Willoughby, On the Constitution of the United States §306 at 555 (1910).
81 The Constitution of the United States, Analysis and Interpretation 422 (Corwin, ed.
1953).
82 288 U.S. 102 (1933).
83 See 288 U.S. at 118.
When do American Judges Enforce Treaties?
24
charged him with various violations.84 The Supreme Court rejected the view
that the statute was controlling and enforced the treaty, dismissing the
violations.85
Cook is the only Supreme Court case to explicitly enforce a treaty in
face of an inconsistent federal statute.86 But a little noticed fact about Cook is
that the Supreme Court did not disregard the Executive Branch’s
interpretation of the treaty, but rather adopted it. The case was decided
against the United States at the request of the United States. In his brief to
the Court, Solicitor General Thomas D. Thacher asked for reversal, noting
that the Coast Guard had disobeyed Justice Department’s commands. “The
Commandant of the Coast Guard was advised in 1927 that all seizures of
British vessels … should be within the terms of the treaty.”87 In short, the
importance of Cook’s enforcement of a subsequent treaty must be tempered
by the fact that the Court may have enforced the treaty in deference to the
Executive’s interpretation of the treaty. 88 Overall, as Professor Willoughby
suggested, it might clearer and truer to treaty practice to say that a later-intime
treaty will override an earlier-in-time statute only when it explicitly
does so. This is not meant to diminish the role of treaties in the U.S. system,
but rather to reconcile judicial doctrine with long-standing judicial behavior.
Foreign Breach. The final and least well-documented cases are those
where a plaintiff asks the federal judiciary to remedy a foreign nation’s
breach of a United States treaty. There is a limited quantity of cases of this
type, most concerning suits for torture or other mistreatment.89 Of the 148
84 See 288 U.S. at 108. Frank Cook was fined $14,268.18 for failing to include liquor in
the manifest. See id.
85 See 288 U.S. at 120 (“As the Mazel Tov was seized without warrant of law, the libels
were properly dismissed.”).
86 The court in United States v. Schooner Peggy, 1 Cr. 103 (1801) also enforced a treaty
in face of a contradictory statute, but the conflict was not discussed. See, e.g., Edwin
Dickinson, Jurisdiction Following Seizure or Arrest in Violation of International Law, 28
Am. J. Int’l L. 231, 234-237 (1934); see also Louis Henkin, Foreign Affairs and the
Constitution 164 (1972).
87 Id. at 105.
88 Edward Corwin also contemplated that the decision and the Executive’s position
were “devised to avoid a diplomatic controversy that the low estate of Prohibition at that
date would not have been worthwhile.” The Constitution of the United States 422 (Corwin,
ed., 1953).
89 See, e.g. Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th
Cir.1985); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir.1984).
When do American Judges Enforce Treaties?
25
Supreme Court cases addressing the enforcement of treaties surveyed, only
one addressed foreign breach.90 For that reason, this article does not dwell
on foreign breach, but offers a brief analysis of how foreign breach fits into
the deference model and serves to elucidate and strengthen the model.
When is it appropriate to order a foreign sovereign to live up to its
obligations? The judiciary has usually, using the self-execution doctrine,
declined to directly enforce treaties against a foreign nation. 91 For example,
in Tel-Oren v. Libyan Arab Republic,92 survivors of a terrorist attack in Israel
sued Libya, the PLO and various other defendants. In a concurring opinion
on whether the 1907 Hague Conventions created a private cause of action,
Judge Robert Bork argued that they must be interpreted not to, because:
… the code of behavior the Conventions set out could create perhaps
hundreds of thousands or millions of lawsuits by the many
individuals, including prisoners of war, who might think their rights
under the Hague Conventions violated in the course of any large-scale
war. … [T]he prospect of innumerable private suits at the end of a
war might be an obstacle to the negotiation of peace and the
resumption of normal relations between nations.93
This is a rule of strong deference to the foreign sovereign. As Judge
Bork suggested, there are obvious reasons for reluctance to enforce a treaty
against another country, as doing so may too closely resemble the judicial
exercise of foreign policy. But should deference to foreign nations really be
achieved through the use of the non-self-execution doctrine? Deference
theory suggests that the U.S. judiciary may be overusing non-self-execution
as a rule of deference, and wrongly replacing Congressional or common-law
regimes of foreign sovereign immunity. The Foreign Sovereign Immunities
Act and the common-law immunities for foreign officials should arguably be
the rules for U.S. law and courts as against foreign nations, not non-selfexecution.
94
90 See Appendix, Chart A, Alleged Treaty Breach.
91 See, e.g., cases described supra n. ___.
92 726 F.2d 774.
93 Id. at 808.
94 See the Foreign Sovereign Immunities Act, 28 U.S.C. §§1330, 1602-11. On official
immunities, see generally Curtis & Goldsmith, Foreign Relations Law, supra n. __ at 635-55.
When do American Judges Enforce Treaties?
26
An example may make the point clear. Say that Britain, in violation
of treaties with the United States, refuses to grant one American citizen a visa
and refuses another navigation rights in the English Channel. Both
American citizens sue Britain under the treaty. To decline to enforce the
treaty through the doctrine of non-self-execution is to announce an empty
conclusion. Instead, the question should be whether the foreign sovereign
enjoys immunity under U.S. law, which it generally does for sovereign but
not commercial acts under the Foreign Sovereign Immunities Act.95 There is
little question that granting a visa is a sovereign act, but it might at least be
argued that breaking the treaty granting navigation rights, perhaps to protect
a British competitor, represents commercial behavior. As it allows such
questions to be asked, the Foreign Sovereign Immunities Act is both the
better calibrated and also the Congressionally designed instrument for these
problems. It is designed to allow some enforcement of U.S. law against
foreign powers, while providing immunity for sovereign acts. As regards
foreign nations, meanwhile, non-self-execution is simply a rule of overdeference.
* * *
The goal of this paper is to uproot the theory of self-execution as the
dominant mode for understanding treaty enforcement in the United States.
The deference theory of treaty enforcement teaches that cases of treaty
enforcement often have little to do with the nature of the treaty, as selfexecution
theory suggests. They are, instead, problems of deference. Courts
need to decide whether it would be appropriate or not correct an alleged
breach by the Executive, State, Congress, or a foreign government.
The deference theory, while a departure from present theory, is not a
deviation from present practice, but rather a better articulation of it. Yet its
goal should be clear: deference theory frames questions of treaty
enforcement instead of answering them. It is primarily a positive theory. In
this article I have not therefore attempted to address the much broader
normative question, namely, when exactly should the court owe more or less
deference to the State, Executive, or Congress, and for what reasons? Those
are questions that cannot be fully answered in a single paper. There are any
95 See 28 U.S.C. §1605(a)(2) (specifying the commercial exception to sovereign
immunity.)
When do American Judges Enforce Treaties?
27
number of arguments, for example, that enforcement of treaties against states
should be more or less aggressive, or that the courts should defer more or
less to the Executive’s breach of treaties.96 For too long the dominance of
self-execution theory has made it hard to even appreciate how treaty
enforcement decisions are made. In other words, the case for the deference
model does not depend on any normative view of when treaties should be
enforced. Rather, it depends on making clearer the institutional concerns that
drive treaty enforcement, helping us understand why and when judges
decline to enforce “the supreme Law of the Land.”
Part II: Early Treaty Enforcement in the United States
We have portrayed a judiciary in a partnership with Executive and
Congress in its enforcement of the treaties of the United States. In specific
cases, whether courts enforce treaties depends heavily on the party in breach:
whether it is a State, the Executive or Congress whom the court is asked to
discipline.
The paper now turns to a survey of the record of treaty enforcement in
the United States. The reason for the turning to history is that the patterns
discussed here are the best evidence of what the law of treaty enforcement
actually is. The method certainly carries certain risks, for taking on such a
lengthy period means oversimplification and inevitably overlooking
potentially important details. It should be stressed that what follows is not
meant as a contribution to the historical literature, but as a means of
understanding treaty enforcement better. And what the approach does
reveal is the larger and longer trends of treaty enforcement from over the last
200 years, in which the structural considerations affecting treaty enforcement
cannot be missed. It is from this standing record of how treaties are actually
enforced which the model in Part I is derived.
* * *
The study begin with treaty enforcement in the early Republic. Here,
the patterns of strong enforcement as against State breach, described in Part
I, were first established.
96 See, e.g., Bradley, supra n. __ (appropriate deference to Executive); Ernest Young,
The Rehnquist Court’s Two Federalisms, 83 Texas L. Rev. 1 (2004) (arguing for greater
deference to states in matters of foreign relations).
When do American Judges Enforce Treaties?
28
A. Establishing the Basic Principle of No Deference to States Who Breach,
1780-1865
“I have no notion of cheating any Body,”97 said John Adams in 1772,
to British negotiators. This single, “impulsive” remark might be said to have
laid the foundations of federal judicial treaty enforcement in the United
States, and in particular, the idea, discussed in Part I, that a primary duty of
the federal judiciary is remedying state breach. Adams’ comment must be
understood in context: it was made right after he joined Benjamin Franklin
and John Jay in Paris to negotiate the preliminary treaty of Peace with Great
Britain. At the time among the most important points in dispute were the
debts owed British creditors—debts in excess of £5 million at the beginning
of the revolution.98 Adams’ comment was a concession: it was a promise that
would bind the United States, a country, to guarantee the payment of debts,
whatever the individual states might think.
Implicit in Adams’ statement was an expansive view of national
power that would ultimately lead to expansive judicial enforcement of
treaties as against the States. As John Bassett Moore wrote in 1906, Adams’
concession was “remarkable not only as the embodiment of an enlightened
policy, but also as the strongest assertion in the acts of that time of the power
and authority of the national government.”99
This becomes clear when we see that the legal expression of Adams’
promise was Article 4 of the 1783 Treaty, which reads, “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.”100 Notice
something about the treaty provision just quoted. To a lawyer it is obvious
that enforcing such language will require some authority (a court or agency)
with the power to give effect to such language. The language creates an
individual right. It protects the “Creditor” who is granted the right to
recover debts notwithstanding “lawful Impediment.” And would
eventually become clear that it was the job of the new federal courts to give
legal life to Adam’s promise.
97 Richard Morris, The Peacemakers 361 (1965).
98 Richard Morris, The Durable Significance of the Treaty of 1783, in Peace and the
Peacemakers, 230, 239 (Ronald Hoffman and Peter Albert, eds. 1986).
99 John Bassett Moore, Principles of American Diplomacy (1906).
100 The Definitive Treaty of Peace, Signed at Paris, September 3, 1783 Art. IV.
When do American Judges Enforce Treaties?
29
Few courts existed in the 1780s to bring the Creditors’ rights in Article
4 to life. Instead, contradictory state law put the United States in substantial
violation of its stated obligation. Historians of the period may disagree over
much, but not over the record of State compliance with the Fourth Article of
the 1783 Treaty.101 Typical was the case of Virginia, the state holding the
largest share of debt (over £2.3 million, or about half the national debt). In
1777, Virginia passed a law allowing citizens to pay off their British debt by
making an equivalent payment in Virginia’s paper currency. As the Virginia
pound depreciated, the law became an easy way to discharge British debt,
and many did – even Thomas Jefferson and George Washington.102 A second
Virginia Act in 1782 simply declared that “no debt or demand whatsoever,
originally due a subject to Great Britain, shall be recoverable in any court in
this commonwealth.”103 No Virginia court would hear an action to recover
British debt, nullifying Adams’s promise to the British.
As historian Brinton Coxe wrote in 1893, “when the Framers met in
convention the violation of the treaty of the peace by certain of the states was
one of the most pressing anxieties of the political situation of the Union.”104
The history of the framing of the Supremacy Clause is complex and
contested, and this Article does not represent original research into its
meaning. Rather it highlights a fact over which there is little disagreement:
that the evidence shows a minimum view of when the framers believed
treaties were enforceable. It shows an intent to create a solution to the
problem of state violations of the 1783 Treaty of Peace, an intent to create
some mechanism for enforcing Adams’ promise to the British, and
preventing the States from inadvertently plunging the United States into an
unwanted war.105
101 See, e.g., Butler, Frederick W. Marks III, Independence on Trial: Foreign Affairs and
the Making of the Constitution 52-95 (1973) (highlighting Congress’s difficulty in eliminating
foreign trade barriers due to state sovereignty and its effect on the ability to enter into
commercial treaties).
102 See Jean Edward Smith, John Marshall, Definer of a Nation 153-154 (1996).
103 9 Hening’s Statutes at Large of Virginia 75-76.
104 Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation (1893).
105 Some of the strongest evidence include the comments of James Madison at the
convention, 1 The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., rev.
ed. 1937), and his writings in the Federalist No. 42, which stressed that the new treaty power
was “disembarrassed, by the plan of the convention, of an exception, under which treaties
might be substantially frustrated by regulations of the States.” Alexander Hamilton in
When do American Judges Enforce Treaties?
30
This view of the role of treaty enforcement was quickly confirmed by
the judiciary in the Great British Debt Case, 106 now usually called Ware v.
Hylton.107 The adoption of the Constitution and the opening of the federal
courts in 1790 brought a flurry of a particular type of lawsuits: British
creditors seeking their debts. In Virginia alone, more than 200 cases were
brought in the first year, comprising the vast majority of the federal
docket.108 Ware v. Hylton emerged as a test case. It was brought to present
exactly the facts that had created trouble during the 1780s: state refusal to
enforce the Treaty of Peace.
The facts were typical. Daniel L. Hylton was a well-off James River
merchant, who in 1774 borrowed £1500 from Jones & Farell, a leading British
creditor. During the war, Hylton discharged his debts using the Virginia
statute described above: he paid the Virginia treasury £953 in Virginia
pounds, worth £15 specie.109 In 1790, when the federal courts opened, Ware
on behalf of Jones sued under the Article IV of the Treaty of Peace to get the
money back. Despite a vigorous defense of Hylton by his lawyer John
Marshall, the Supreme Court upheld the rights of creditor Jones, and along
the way established the paradigmatic model of judicial treaty enforcement.
Justice Chase, writing the main and longest opinion, held treaties
enforceable by the judiciary, and supreme to state law. First, “The people of
America have been pleased to declare, that all treaties made before the
establishment of the National Constitution, or laws of any of the States,
contrary to a treaty, shall be disregarded.”110 Federal judges, he said, have a
“duty” to “determine any Constitution, or laws of any State, contrary to that
Fenderalist No. 22, moreover, wrote “The treaties of the United States, under the present
Constitution [the Articles of Confederation], are liable to the infractions of thirteen different
legislatures and as many courts of final disposition… the faith, the reputation, the peace of
the whole Union, are thus continually at the mercy of the prejudices, the passions, and
interests of every member of which it is composed. … [Treaties must be] submitted to one
SUPREME TRIBUNAL.”
106 See Leonard Baker, John Marshall, A Life in the Law 158 (1974).
107 Ware v. Hylton, 3 U.S. 199 (1796).
108 See Charles Hobson, “The Recovery of British Debts in the Federal Circuit Courts of
Virginia, 1790 to 1793,” 92 Virginia Magazine of History and Biography 189 (1984).
109 See Edwards, 576 n. 69 (detailing facts of Ware v. Hylton).
110 3 U.S. 199, 237.
When do American Judges Enforce Treaties?
31
treaty (or any other) made under the authority of the United States, null and
void.”111
Justice Irdell, in a separate opinion, wrote an emotional elegy to
treaties and the need for their enforcement by the judiciary:
None can reverence the obligation of treaties more than I do. The
peace of mankind, the honour of the human race, the welfare, perhaps
the being of future generations, must in no inconsiderable degree
depend on the sacred observance of national conventions.
The Definitive Treaty of Peace presented boundless views of future
happiness and greatness, which almost overpower the imagination
….Under this Constitution therefore, so far as a treaty constitutionally
is binding, upon principles of moral obligation, it is also by the vigour
of its own authority to be executed in fact. It would not otherwise be
the supreme law in the new sense provided for.112
Ware was therefore a bold statement of the role of the judiciary in
preventing state violations, and was celebrated by many as such.113
According to 19th century historian Hampton Carson, the Court found:
the Treaty of 1783 was the supreme law, equal to the Constitution
itself, in overruling all State laws upon the subject ….
Happy conclusion! A contrary result would have blackened our
character at the very outset of our career as a nation … and prostrated
the national sovereignty at the feet of Virginia.114
Unsurprisingly, those more sympathetic to stronger states’ rights have
often suggested that Ware’s significance is limited. Congressman and later
111 Id. Other Justices used similar language. Justice Paterson (“The act itself is a lawful
impediment, and therefore is repealed; the payment under the act is also a lawful
impediment, and therefore is made void.”);
112 3 U.S. 199, 271-272.
113 Importantly, Ware did not make it clear what role the House of Representatives
needed to play in the formation of a valid treaty, a question that emerged in the midst of a
ferocious debate over the necessity of full Congressional enactment of the Jay Treaty. See 1
Butler, The Treaty Making Power of the United States §§279-293 (1902) (discussing the Jay
Treaty debate). While an inconclusive battle, it showed the extent of disagreement over the
mechanics of the Treaty Power.
114 History of the celebration of the one hundredth anniversary of the promulgation of
the Constitution of the United States 170 (Hampton L. Carson, ed.).
When do American Judges Enforce Treaties?
32
law professor Henry St. George Tucker took the counterintuitive position
that Ware, despite its text, “did not decide that the definitive treaty of peace
annulled the Law of Virginia.” 115 The law, in his view, was already invalid
and could therefore not be nullified by the Supreme Court.116 Modern day
scholars, like John Yoo, have also downplayed Ware’s holding.117
From the vantage point of the 21st century, Ware can be seen as the
founding moment for judicial treaty enforcement against the states. The
Court would perhaps never feel on firmer ground enforcing treaties than
when enforcing the very treaty whose violation had led to the Constitution
Convention. The Supreme Court proceeded to decide more than 100 cases in
the image of Ware, and continues to do so today: its significance cannot be
overstated.118 But in no sense did Ware answer all of many treaty questions
that were to follow. Ware was like a “fat pitch.” Its facts were an easy target
for the Court to bring to life the core purpose of the federal treaty power,
negating violative State laws. But a fat pitch only tells you so much about a
batter’s potential, and similarly Ware left much undecided.
The Flip Side
There is an evident flip-side to Ware. John Adams’ comment – “I have
no notion of cheating anybody” – would lead to judicially enforceable rights
for British creditors, affirmed finally by the Supreme Court. But the same
cannot be said for the British and Loyalist property-owners who were, if
anything, greater victims of the Revolutionary War. The final language of
the definitive Treaty of Peace stated that, “Congress shall earnestly
recommend it to the legislatures of the respective states to provide for the
restitution of all estates, rights, and properties, which have been confiscated
belonging to real British subjects.”119 State legislatures, meanwhile, did
115 See Henry St. George Tucker, Limitations on the Treaty-Making Power §154-183
(1915).
116 See Henry St. George Tucker, Limitations on the Treaty-Making Power §154-183
(1915).
117 Compare Manuel Vasquez, Treaty-based Rights and Remedies of Individuals, 92
Colum. L. Rev. 1082, at 1113 (as a general rule, “individuals may enforce the [treaty]
obligation in court even though the treaty does not, as an international instrument, confer
rights directly on individuals of its own force.”); with John Yoo, Globalism and the
Constitution: Treaties, Non-Self-Execution, and the Original Understanding, supra n. __ at
2080 (“At best, then, Ware can stand for only a very limited form of self-execution.”).
118 See supra n. __ (collecting cases in the model of Ware).
119 The Definitive Treaty of Peace Article V.
When do American Judges Enforce Treaties?
33
roughly the opposite: rather than restoring estates and rights, they passed
punitive statutes that prevented loyalists from holding office, and denied
various rights of citizenship. 120
The creditor story leads to the first establishment of another
fundamental matter in treaty enforcement: that sometimes the text of the
treaty will make it clear that the judiciary is not meant to enforce it. That is
made clear by Camp v. Lockwood121 one of the first cases in the first volume of
the U.S. Reports. Lockwood featured a loyalist named Abiathar Camp, whose
estate was seized during the war. The Pennsylvania court of common pleas
said, “It is agreed, indeed, by the 5th article, that Congress shall recommend
it to the several Legislatures to provide for such a restitution;” however, “no
acts for those purposes have been passed by the Legislatures.”122 Absent an
act of the state legislature as recommended, no relief would be forthcoming;
the treaty on its own could not compel relief. The case is, in a sense, of
limited legal significance, as it was decided by a state court before the
adoption of the Constitution. But it already captures a crucial idea: that
some treaties will be implemented by Congress, and others enforced by the
Judiciary. In this sense, Camp v. Lockwood, while almost completely ignored
today, is the first coherent articulation of the idea that treaties sometimes
should not be enforced by the judiciary.
Lockwood relied on the clear text of the treaty to reach this conclusion,
and in is that sense the easy case for non-enforcement. In fact, in Camp v.
Lockwood we find the first – predating the more famous 1829 case Foster &
Elam v. Neilson123 text-based finding that a treaty is not written to be enforced
by the judiciary. The very same idea was also expressed in Ware. According
to Justice Chase: “No one can doubt that a treaty may stipulate, that certain
acts shall be done by the Legislature.”124 Justice Chase disagreed that Article
IV of the Treaty of Peace was such a stipulation; he instead saw it as a
contract binding on the judiciary: “I consider the fourth article in this light,
120 For example, in 1779 New York passed “An Act for the Forfeiture and Sale of
Estates of Persons who have adhered to the Enemies of this State, and for declaring the
Sovereignty of the People of this State, in respect to all Property within the Same.“120 And in
1783 it passed “An Act to preserve the freedom and independence of this state” which
prevented Tories from holding office. Id.
121 1 US 393 (1788).
122 1 U.S. 393 (1788).
12327 U.S. 253 (1829).
124 3 U.S. 199, at 244.
When do American Judges Enforce Treaties?
34
that it is not a stipulation that certain acts shall be done, and that it was
necessary for the legislatures of individual states, to do those acts; but that it
is an express agreement, that certain things shall not be permitted the
American courts of justice; and that it is a contract, on behalf of those courts,
that they will not allow such acts to be pleaded in bar, to prevent a recovery
of certain British debts.”125 In other words, the doctrine of textual non-selfexecution,
often said to have been enunciated 40 years later in Foster v.
Neilson,126 added only a little to what was already obvious in 1788 and 1795.
* * *
The next Part, covering the period 1800-1860, demonstrates two
points. First, it chronicles a “golden age” of judicial treaty enforcement,
where the model of treaty-enforcement born in Ware for creditor interests
was extended to a range of new commercial treaties. The judiciary in this
period very actively and aggressively enforced treaties as against State laws
that discriminated against foreigners.
Second, in this period the judiciary began to face a different problem:
Congressional failure to implement a treaty as written, or Congressional
breach. While the Court might in this period have chosen to offer remedies
for broken promises to other nations, it instead began to defer to even what
seemed like Congressional mistakes that put the United States in breach.
Born here is the policy of strong deference to Congressional implementation
of a treaty discussed in Part I.
B. Expanding the Basic Principle and Introducing Deference to Congress
as Breacher: Commercial Treaties, 1800-1860
According to John Quincy Adams, “As the Declaration of
Independence was the foundation of all our municipal institutions, the
preamble to the treaty with France [America’s first commercial treaty] laid
the corner-stone for all our subsequent transactions of intercourse with
foreign nations.”127 He said that “[t]he two instruments were parts of one
125 Id.
126 Foster & Elam v. Neilson, 27 U.S. 253 (1829).
127 John Quincy Adams, quoted in John Bassett Moore, Principles of American
Diplomacy (1906).
When do American Judges Enforce Treaties?
35
and the same system matured by long and anxious deliberation of the
founders of this Union in the ever memorable Congress of 1776.”128
The significance of the treaties modeled on the 1778 Treaty with
France did grow to great prominence. In this, the golden age of judiciallyenforced
treaty law, the federal judiciary did a brisk business using treaties
to protect the economic rights of aliens from state incursion. It had a ready
partner in the United States Department of State. After a slow start,
American diplomats went on something of a world-wide sales blitz, signing
dozens of commercial treaties with nearly every country of significance in a
determined effort to break a colonial trading system that excluded American
products. From this era date numerous treaties of “Amity and Commerce,”
or “Peace, Friendship and Navigation,” most of similar content.129
The original model for all of these 19th century commercial treaties, as
John Quincy Adams suggested, was the 1778 Treaty of Commerce with “His
Most Christian King” (the French Sovereign).130 The 1778 Treaty in fact
embodies a principle of equality and legal reciprocity innovative not only as
a principle of trade, but also for the judicial role contemplated. The
preamble reads:
His most Christian Majesty and the said United States … tak[e] for the
Basis of their Agreement the most perfect Equality and Reciprocity,
and by carefully avoiding all those burthensome Preferences, which
are usually Sources of Debate, Embarrassment and Discontent; by
leaving also each Party at Liberty to make, respecting Commerce and
Navigation, those interior Regulations which it shall find most
convenient to itself; and by founding the Advantage of Commerce
solely upon reciprocal Utility, and the just Rules of free Intercourse;
reserving withal to each Party the Liberty of admitting at its pleasure
other Nations to a Participation of the same Advantages.131
128 Id.
129 See, United States, Treaties and conventions concluded between the United States
of America and other powers, since July 4, 1776 (1873) (collection of all treaties signed by the
United States, most commercial).
130 In fact, much was taken from an early model commercial treaty that France would
not accept. See John Bassett Moore, Principles of American Democracy (1906).
131 Treaty of Amity and Commerce Between the United States and France, February 6,
1778, Preamble.
When do American Judges Enforce Treaties?
36
An important part of such “perfect Equality and Reciprocity” was a
provision guaranteeing the economic rights of French and U.S. citizens in
each others’ territories. Article XI declared that Americans in France were to
be accorded the economic rights of French citizens. 132 In exchange, French
citizens were to enjoy reciprocal economic rights on American territory.133
Similar provisions can be found in the many commercial treaties that
American diplomats managed to negotiate in the first half of the 19th
century. The United States promised the Austrian King in 1829 that Austrian
citizens “shall enjoy … the same security, protection and privileges as natives
of the country wherein they reside.”134 Using almost identical language, the
United States and King of Belgium agreed that, “the same security and
protection which is enjoyed by the citizens or subjects of each country shall
be guaranteed on both sides” in 1845.135
As the State Department signed commercial treaties with much of the
Europe, the federal judiciary enforced these treaty-based rights aggressively,
particularly as against discriminatory State legislation. Consider, for
example, the fairly startling case of Chirac v. Chirac.136 A Maryland land
statute, passed in 1780, created special inheritance rules for Frenchmen. It
gave them the right to own land and devise it to heirs, but also provided if a
Frenchman died without a will, all land would revert to the State unless his
legitimate relations were American residents.137 This affected Jean Baptiste
Chirac, a naturalized Frenchman. When he died, Monsieur Chirac left
behind heirs in France, a bastard son in Maryland, and no will to be found.
Maryland seized Chirac’s land and gave it to the American, and the French
heirs sued in U.S. court.
The Supreme Court enforced the treaty directly in an opinion that is
remarkable in many ways. First, despite the urgings of counsel, the Court
132 1778 Treaty, Art. XI. (“The Subjects and Inhabitants of the said United States, or any
one of them shall not be reputed Aubains [aliens] in France.”).
133 Id. (“The Subjects of the most Christian king [the French] shall enjoy on their Part,
in all the Dominions of the sd. States, an entire and perfect Reciprocity relative to the
Stipulations contained in the present Article.”).
134 Treaty of Commerce and Navigation between the United States of America and His
Majesty the Emperor of Austria, signed August 27, 1829, ratified February 10, 1831; Article I.
135 Belgian-American Treaty of Commerce and Navigation, November 10, 1845;
Article I.
136 15 U.S. (2 Wheat.) 259 (1817).
137 15 U.S. 259.
When do American Judges Enforce Treaties?
37
made no effort whatsoever to reconcile treaty and state statute, but instead
simply interpreted the treaty as the source of Chirac’s rights. This is an early
establishment of the rule of no deference to State law discussed in Part I.
Second, Chief Justice Marshall paid no attention to the fact that the treaty
may have intruded into an area of traditional State prerogative (land
ownership and escheat). The opinion gives an impression of a treaty power
not only preemptive of state law, and also insensitive to federalism limits. It
foreshadows the broad scope of the treaty power vis-à-vis states announced
in Missouri v. Holland.138 And finally, the Court enforced the treaty even
though it was abrogated before Chirac had died! Chief Justice Marshall
reasoned that since Chirac acquired the property when the treaty was in
force, he obtained it with all rights immediately vested, including rights of
assignment equivalent to a U.S. citizen. There were numerous ways in
which the Court could have favored the domestic defendant or softened the
effects of the treaty in deference to the State, but the court declined to do so.
Instead it treated the 1778 Treaty as a broad charter of protection for aliens
against discriminatory State law. Dozens of other inheritance cases
including the famous Fairfax’s Devisee v. Hunter’s Lease, were in the same
vein.139
The Flip Side: Tariffs—When Congress Breaches
These same treaties of Friendship & Commerce, while enforced
vigorously against the states, would also be used to first define how the
judiciary ought handle Congressional acts inconsistent with American treaty
obligations. The treaties of Friendship were trade treaties, and while they
commonly included provisions protecting aliens in the United States,
stipulations as to tariffs were (as with modern trade agreements) the sine qua
non. Some of the friendship and commerce treaties concluded in the first
half of the 19th century include an appendix listing the tariffs to be paid on
various articles.140 More common, however, are “most favored nation”
138 Missouri v. Holland, 252 U.S. 416 (1920).
139 See, e.g., Hauenstein v. Lynham, 100 U.S. 483 (1879); see also, supra n. __, (list of
cases enforcing treaties against the states).
140 See, e.g., Treaty with China, concluded July 3, 1844, ratified December 31, 1845,
appendix.
When do American Judges Enforce Treaties?
38
provisions, obligating the contracting parties to give each other the lowest
tariffs charged.141
But what legal status did such stipulations have in the United States?
Its important to notice some of the similarities between the tariff bindings
and the privilege and immunity (P&I) provisions seen in Chirac v. Chirac.
Unlike a clear case like Lockwood, the language of both was no more or less
obviously meant for judicial enforcement. Overcharging on imports could
surely create the same kind of international tension that the mistreatment of
aliens might. And so importers argued in court, many times and in many
different ways, that stipulated tariffs should be directly enforceable as the
“supreme Law of the Land.”
But they lost. Despite similar language and circumstances courts
nonetheless treated tariff stipulations differently from privilege and
immunity stipulations, or aliens differently from importers. The only clear
difference is who was alleged to have breached the stipulations. The tariffs
cases alleged, in essence, wrongful implementation by Congress, while the
P&I provisions were violated by the states.
The leading 19th century tariff case, Taylor v. Morton (1855), illustrates
this difference.142 In 1832, Russia and the United States signed one of the
many Friendship and Commerce treaties characteristic of the era. The U.S.
promised Russia Most Favored Nation (MFN) status—that it would charge
Russian goods the lowest tariff granted any other nations. Later, in the 1842
Tariff Act, Congress set a tariff of $40 per ton for all hemp, with an
advantageous tariff for Manilla and Bombay hemp, at $25 per ton. Since
Russian hemp, according to the plaintiffs, was the same, or “like” product as
Bombay hemp, the treaty suggested that importers of Russian hemp should
also be charged $25 per ton. They sued for the return of their money.
The Taylor case raises interesting questions. First, the treaty language
in question gives no clues as to whether it should be enforced by the
judiciary. It reads: “No higher or other duties shall be imposed on the
importation into the United States of any [Russian] article … than are or shall
141 Many of the most favored nation provisions during this ever, however, were
understood as “qualified” MFN provisions, meaning that countries did not automatically
get the benefits of negotiated deals without making some concession themselves. See
Jackson, Trade, qualified MFN explanation.
142 Taylor v. Morton, 23 F.Cas. 784 (Cir. C. Mass. 1855) affirmed 67 U.S. 481 (1862).
When do American Judges Enforce Treaties?
39
be payable on the like article, being the produce or manufacture of any other
foreign country.”143 This is not language, like in Lockwood, that says
‘Congress shall pass,’ or even, as in Foster v. Neilson, uses the future tense. It
stipulates that no tariffs “shall be imposed,” which sounds like a direct
command.
Second, the Tariff Act and the Russian treaty are not clearly in conflict,
nor is it obvious that the 1842 Act was intended to abrogate the treaty
stipulation. The plaintiffs argued, for example, that the meaning of
Congress’ distinction between Bombay and other forms of hemp should have
been read to give Russian hemp the benefit of the lowest tariff rate. This
seems to be a plausible position, particularly given the injunction of
Charming Betsy to choose the interpretation of a statute that, if at all possible,
does not conflict with a treaty. The Court, in other words, might have easily
sought to repair or remedy what looked like thoughtless Congressional
breach of an American promise, and declare the appropriate tariff $25.
Nonetheless, Justice Curtis, riding Circuit, found the treaty to have no
effect cognizable by a court—it was not “a rule of action” for “the courts of
justice.” He justified his decision using a matter crucial for informing the
model in Part I, for Justice Curtis relied not on treaty text or interpretation,
but institutional deference to Congress. Justice Curtis does not even quote
the language of the treaty in the opinion. Instead, he wrote “it is quite plain,
it cannot be competent for the court to go any further than a determination
that the case is within the treaty. If congress legislates in subordination to the
treaty, viewed as municipal law, it is not material what its reasons were…”144
Given Congress’s power to terminate treaties, and its ongoing role in setting
tariffs, he said, there might have been many reasons that Congress wanted to
violate the treaty with Russia. How can a judge ask, for example: “whether a
treaty with a foreign sovereign has been violated by him; whether the
consideration of a particular stipulation in a treaty, has been voluntarily
withdrawn by one party … [or] whether the views and acts of a foreign
sovereign … have given just occasion to the political departments of our
government to withhold the execution of a promise contained in a treaty, or
to act in direct contravention of such promise?”145
143 Treaty of December 18, 1832 with Russa, Art. [x].
144 23 F. Cas. 784, at 786.
145 23 F. Cas. 784, at 787.
When do American Judges Enforce Treaties?
40
Even if Congress had made a mistake (which may have been the case),
the judiciary was unwelcome in the interpretation of the Tariff laws’
standing vis-à-vis the treaty: “It is wholly immaterial to inquire whether
they [Congress] have, by the act in question, departed from the treaty or not
….” For “[i]f by the act in question they have not departed from the treaty,
the plaintiff has no case. “ On the other hand, “If they [Congress] have
[breached the treaty], their act is the municipal law of the country, and any
complaint, either by the citizen, or the foreigner, must be made to those, who
alone are empowered by the constitution, to judge of its grounds, and act as
may be suitable and just.”146
However, Morton did not give any sense of what should happen to a
tariff treaty adopted later than a tariff statute, a question first addressed in
the 1888 case Whitney v. Robertson.147 Whitney featured another MFN treaty
clause, in a treaty with the Dominican Republic, ratified in 1867. The tariff
statute was amended in 1870 to reflect the treaty. Then, in 1876, the United
States signed a treaty with Hawaii entitling Hawaii to export sugar to the
U.S. duty-free, but the tariff laws were not amended by Congress. This led
importers of Dominican sugar to argue that they too were entitled to dutyfree
imports because the Hawaiian treaty was the last-in-time law of the
United States. Read together with the 1867 treaty, it entitled the Dominican
Republic the same duty-free imports given Hawaii. 148
The Court rejected the argument. Again, there is no language in the
treaty suggesting that it ought not be enforced by the judiciary, or that there
is an obligation due solely to Congress. Furthermore, the Hawaiian treaty
was in fact the last “expressed will of the sovereign.” But the Court simply
decided that Dominican sugar was still governed by the 1870 statute.
Potential beneficiaries of the 1876 Hawaiian treaty, such as the Dominican
Republic, needed to await Congressional action. The court could have held
the later-in-time treaty supreme to the 1870 statute, and of immediate effect.
But it didn’t.
By this point some central principles of treaty enforcement had been
stated for the States and Congress. These principles were tested and
146 Id.
147 124 U.S. 190 (1888). See also Bartram v. Robertson 15 Rep. 212 (1888) (presenting
same facts but Danish treaty).
148 124 U.S. 190 (1888). See also Bartram v. Robertson 15 Rep. 212 (1888) (presenting
same facts but Danish treaty).
When do American Judges Enforce Treaties?
41
reaffirmed in the last major episode of comparative state and Congressional
breach of U.S. treaty obligations – the history of the Burlingame treaty and
Chinese immigration.
C. The Difference Between State and Congressional Breach: Immigration
& Chinese Exclusion, 1860-1945
In April 1867, the Chinese Empire’s first overseas diplomatic mission
arrived on the shores of San Francisco, marking China’s first effort to join the
modern diplomatic system.149 The Chinese, unusually, had appointed an
American to head the mission: Anson Burlingame, Envoy Extraordinary and
Minister Plenipotentiary. The trade treaty Burlingame would negotiate on
behalf of China would become central to more than two decades of judicial
treaty-enforcement controversy.
The story of the Burlingame Treaty and its fate in U.S. courts has
enormous relevance for the role of the federal judiciary in the enforcement of
treaties. It reestablished and solidified a basic dynamic described in Part I –
vigorous enforcement as against state breach, and a judicial recognition of
Congress’ power to breach and subvert a Treaty signed by the United States.
Yet it did so under difficult conditions – striking down highly popular, yet
discriminatory, State laws.
Anson Burlingame negotiated one of the most liberal of commerce
treaties the United States has ever signed. Among its provisions, the United
States agreed to a rule of unlimited and unrestricted immigration between
China and the United States. 150 The treaty recognized a natural right to
immigrate151 and “the mutual advantage of the free migration and
149 The story is recounted fully in Fredrick Wells Williams, Anson Burlingame and the
First Chinese Mission to Foreign Powers (1912); see also Jonathan Spence, the Making of
Modern China Ch. 9, 194-215 (1990)(detailing efforts to reform and modernize the Chinese
empire in the late 19th century).
150 As Secretary of State William Seward said at the time, “The essential element of …
commerce and trade” with China, is “the free emigration of the Chinese to the American
[continent].” Quoted in Henry Tsai, China and the Overseas Chinese 25 (1983).
151 Additional Articles to the Treaty Between the United States and Tsa Tsing Empire
of the 18th of June, 1858, Signed July 28, 1868, ratified November 23, 1869, Art. V
[hereinafter, Burlingame Treaty] (“The United States of America and the Emperor of China
cordially recognize the inherent and inalienable right of man to change his home and
allegiance.”).
When do American Judges Enforce Treaties?
42
emigration” of citizens “for purposes of curiosity, of trade, or as permanent
residents.”152
For Chinese residing in the United States, the Treaty guaranteed rights
similar to those placed in European commerce treaties. Chinese citizens, the
treaty proclaimed, “shall enjoy the same privileges, immunities or
exemptions in respect to travel or resident as may there be enjoyed by
citizens of the most favored nation,” and also “entire liberty of
conscience,”153 and exemption “from all disability or persecution on account
of their religious faith.”154 But unlike in the case of the European commerce
treaties, there was immense popular support for blocking Chinese
immigration and restricting Chinese economic rights.
The Western states largely ignored the Burlingame Treaties’ promises,
and by the 1870s had enacted multiple measures to block the immigration of
new Chinese workers and restrict the rights of those already in the United
States. The Chinese, as Burlingame’s comments show, while at first a
curiosity and source of labor. But by the 1870s the Chinese became a
scapegoat for the West Coast’s economic woes, seen as unwilling to
assimilate, and despised for their willingness to work harder for less money.
Examples of anti-Chinese signs of the era read “THE COOLIE LABOR
SYSTEM LEAVES US NO ALTERNATIVE” and “MARK THE MAN WHO
WOULD CRUSH US TO THE LEVEL OF THE MONGOLIAN SLAVE.”155
In 1879 the Californian Constitution was amended to deny Chinese
the right to vote in State elections, to permit placing Chinese in ghettos, and
most radically, to ban all employment of Chinese workers.156 It reflected the
influence of the California’s Workingman Party, whose slogan was “The
Chinese Must Go!”157 The new California Constitution now read: “No
corporation shall … employ, directly or indirectly, in any capacity, any
Chinese or Mongolians.”158
152 Id.
153 Burlingame Treaty Art. VI.
154 Burlingame Treaty Art. IV.
155 Roger Daniels, Asian America 38 (1988).
156 In re Tirburcio Parrott 6 Sawyer 349.
157 Sayler, Laws Harsh as Tigers (1995).
158 California Constitution of 1879, Article 19, §2.
When do American Judges Enforce Treaties?
43
But the Chinese immigrants were organized and regarded the federal
judiciary and the Burlingame Treaty as their protectors.159 They “turned to
the federal courts at San Francisco … and enjoyed remarkable success.”160
Following the model of Ware v. Hylton, the federal judiciary repeatedly
struck the discriminatory state provisions under the Burlingame Treaty. It
was a successful test of the founding principle of treaty supremacy as against
even highly popular state constitutional provisions.
In 1880, federal judges first struck down the California Constitution.
In In re Tiburcio Parrott,161 Judge Sawyer, relying on Ware and subsequent
law, struck down the California constitutional ban on the employment of
Chinese workers as a violation of the Burlingame Treaty.162 He asserted that
Burlingame had recognized a “natural right” to immigrate:
This absolute, fundamental and natural right [to immigrate] was
guaranteed by the national government to all Chinese…. It is one of
the ‘privileges and immunities’ which it was stipulated that they
should enjoy…. And any legislation or constitutional provision of the
state of California which limits or restricts that right to labor to any
extent, or in any manner, not applicable to citizens of other foreign
nations visiting or residing in California, is in conflict with this
provision of the treaty.163
In dozens of subsequent cases the federal judiciary struck numerous other
anti-Chinese statutes, including restrictions on fishing in public waters,164
immigration of “lewd” women, 165 operating businesses in San Francisco,166
159 See generally, Lucy E. Sayler, Laws Harsh as Tigers xv (1995) ( “leaders in the
Chinese community spoke with ease and familiarity about the rights owed them under
treaties and the Constitution”); Charles McClain, The Chinese Struggle for Civil Rights in
Nineteenth Century America: The First Phase, 1850-1870, 72 California L. Rev. 529 (1984)
(describing the organization of the Chinese community).
160 Sayler, Laws Harsh as Tigers xv.
161 1 F. 481 (1880).
162 In re Tiburcio Parrott, C.C., 1 F. 481 (1880).
163 Id.
164 In re Ah Chong, 6 Sawyer 451 (1880) (State law prohibiting aliens from fishing in
public waters void due to contravention with Burlingame treaty).
165 Chy Lung v. Freeman, 92 U.S. 275 (1875).
166 In re Lee Sing, 43 Fed. 359 (1890).
When do American Judges Enforce Treaties?
44
anti-Chinese covenants in deeds,167 and zoning rules for Chinese laundries.168
The rhetoric of Baker v. Portland,169 which invalidated Portland’s anti-Chinese
employment laws, was typical. Oregon District Judge Deady agreed with
the plaintiffs that the Burlingame Treaty was a promise to Chinese
immigrants to full privileges and immunities, preemptive of inconsistent
municipal regulations.170 “An honorable man,” he wrote, “keeps his word
under all circumstances, and an honorable nation abides by its treaty
obligations, even to its own disadvantage.”171 Upholding Deady’s opinion,
Justice Field, though known for his personal contempt for the Chinese race,
nonetheless wrote that “the anti-Chinese legislation of the Pacific coast is but
a poorly disguised attempt on the part of the state to evade and set aside the
treaty with China, and thereby nullify an act of the national government. . . .
Between this and ‘the firing on Fort Sumter,’ by South Carolina, there is the
difference of the direct and indirect—and nothing more.”172
A particularly bizarre case was that of an anti-Chinese ordinance in
San Francisco that mandated immediate haircuts for all jailed persons. At the
time, apparently, Chinese were filling the jail cells as a result of civil
disobedience.173 Since Chinese law and custom required that Chinese men to
keep their hair in a long queue, the law selectively punished the Chinese.
Justice Field struck the law, calling it “legislation unworthy of a brave and
manly people.”174
But even as the federal judiciary struck state anti-Chinese laws, the
national mood and the federal government inclined toward a change in
federal policy. As Justice Field (who had personally struck many of the state
laws) wrote: “The people of the coast saw great danger that at no distant day
167 Gandolfo v. Hartman, 49 Fed. 181 (1892) (striking down covenant not to covey or
lease to a Chinaman).
168 In re Quong Woo, 49 Fed. 181 (1892). On the other hand, Justice Field upheld a law
restricting the operating hours of laundries (requiring them to be closed between 10pm and
6am) as non-discriminatory. See Barbier v. Conolly, 113 U.S. 27 (1885).
169 2 F.Cas. 472, 475 (D. Oregon 1879)
170 Id.
171 Id.
172 Baker v. Portland, 2 F.Cas. 472, 475 (D. Oregon 1879).
173 See Charles McLain & Laurene Wu McClain, The Chinese Contribution to
American Law, in Entry Denied: Exclusion and the Chinese Community in America 1882-1943, 3,
9 (Sucheng Chan, ed.).
174 Ho Ah Kow v. Nunan, 5 Sawyer 552, 564 (1879).
When do American Judges Enforce Treaties?
45
that portion of our country would be overrun by [the Chinese], unless
prompt action was taken to restrict their immigration.”175 In his words, “So
urgent and constant were the prayers for relief against existing and
anticipated evils, both from the public authorities of the Pacific coast and
from private individuals, that congress was impelled to act on the subject.”176
After much agitation and petition, Congress in 1879 wrote its first
Chinese immigration restrictions, H.R. 2423, known as the “Fifteen Passenger
Bill.” The law would have restricted steamships to fifteen Chinese
passengers per voyage to the United States. But President Rutherford
Hayes, citing the Burlingame Treaty, vetoed the bill (“saving the nation’s
honor”), arguing that it was his legal obligation.177 Hayes was of the old
school: he believed in diplomatic treaty amendment, not Congressional
abrogation, and he promptly sent a commission to China to negotiate
changes to the Burlingame Treaty. The result was the 1880 Immigration
Treaty, which achieved some of what the exclusionists wanted. It stated that
the United States could “regulate, limit or suspend [immigration] … but not
absolutely prohibit it.”178 But it also provided rights for Chinese already in
the United States, mandating that Chinese residents “be allowed to go and
come of their own free will and accord, and … be accorded all the rights
privileges and immunities … of the most favored nation.”179
Despite the efforts of Presidents Hayes and later President Arthur to
veto direct Congressional abrogation, the United States would soon breach
even the renegotiated treaty. In 1882 the first Chinese Exclusion Act passed
Congress with the preamble “the coming of Chinese laborers to this country
endangers the good order of certain localities.”180 It was styled an enactment
of the 1880 treaty and suspended Chinese labor immigration for ten years (a
suspension later made permanent). In 1888 Congress enacted a clear breach
of its treaties with China with the Second Chinese Exclusion Act.181 The Act
made it illegal for Chinese residents who had left the United States to ever
175 The First Chinese Exclusion Case, 130 U.S. 581, 596 (1889).
176 Id.
177 Shirley Hune, Politics of Chinese Exclusion: Legislative-Executive Conflict 1876-
1882, 9 Amerasia 5, 15 (1982) (“As I see it, our treaty with China forbids me to give it my
approval.”).
178 Immigration Treaty of 1880, signed November 17, 1880, ratified July 19, 1881, Art. I.
179 Id. at Art. II.
180 Act of May 6, 1882, 47th Cong. 1st Sess.
181 Act of May 6, 1888, 25 U.S. Stat p. 504.
When do American Judges Enforce Treaties?
46
return.182 This time, no Presidential veto came. Instead, President Grover
Cleveland justified the exclusion, pronouncing the Chinese “ignorant of our
constitution and laws, impossible of assimilation with our people, and
dangerous to our peace and welfare.”183
Faced with conflict between the treaty and statute, the federal courts
in California and the Supreme Court decisively held that a later-in-time,
inconsistent statute abrogates an inconsistent treaty. Justice Stephan Field
was again the central player, writing both the important District Court and
Supreme Court decisions.
The first of the Chinese Exclusion Cases featured Chae Chan Ping, who
had lived in the United States since 1875. He had made a trip to China to see
his family after obtaining a prescribed certificate of reentry, but was stopped
at the border pursuant to the new treaty. He sued. Justice Field denied that
any right to return had vested, and upheld the statute in its entirety. He
conceded that “the act of 1888 is in contravention of express stipulations of
the treaty of 1868, and of the supplemental treaty of 1880,” but held that “it is
not on that account invalid, or to be restricted in its enforcement.”184 Other
cases were similar; including United States v. Lee Yen Tai, which refused to
find that a new, 1894 treaty had abrogated Congress’ 1882 exclusion statute,
and reinforced the suspicion that later-in-time treaties will only rarely be
enforced as against inconsistent prior statutes.185
The Burlingame era – an era that only really ended in the 1960s, with
normalization of Chinese immigration – teaches much about what the
American judiciary will and will not do with its power to enforce treaties. It
feels comfortable defending the rights of aliens against State encroachment.
The two San Francisco district court judges, Ogden Hoffman and Lorenzo
Steward, and Justice Field, in his appearances as Circuit Justice, were all
predisposed to enforce U.S. treaties on behalf of the alien to preempt
182 Act of May 6, 1888, 25 U.S. Stat p. 504 (“ “[It is] unlawful for any Chinese [resident]
laborer … who shall of departed … and not returned before the passage of this act, to return
to, or remain in, the United States.”).
183 Quoted in Michael Hunt, The Making of a Special Relationship: The United States
and China to 1914, 92 (1983).
184 The First Chinese Exclusion Case, 130 U.S. 583, 628 (1889).
185 See United States v. Lee Yen Tai, 185 U.S. 213, 220-223 (1902); See also 2 Butler, The
Treaty Making Power of the United States §§279-293 (1902) (describing the remainder of the
Chinese exclusion cases).
When do American Judges Enforce Treaties?
47
contrary state law, even in face of virulent popular opinion and their own
apparently low regard for the Chinese as a people.186 On the other hand, the
exact same judges deferred completely to Congress’ expressed desire to
break the Chinese treaties. While perhaps the distinction was predictable,
the difference made by the institution could not be clearer. The only
remaining question was this: what would happen if the Executive were sued
for failing to obey a treaty?
D. Enforcement Against the Executive: Extradition from the Founding to the
Present
By the late 19th Century, several of the principles of treaty
enforcement had been stated. Courts, on the model of Ware, Chirac, and the
State Chinese exclusion cases, would enforce treaties to prevent States from
putting the Union in breach of its obligations. Meanwhile, through the tariff
cases and federal Chinese exclusion cases, the Courts had began to respect a
separate domain of Congressional treaty implementation. Presented with
cases where Congress failed to implement a treaty, or passed statutes
inconsistent with treaty obligations, courts declined to offer a remedy. Chief
Justice Marshall’s rationale in Foster v. Neilson was often cited — that certain
treaties by their terms create duties for the legislature, not the courts. Yet the
actual cases rarely depended on the text of the treaties. They seem instead to
depend on the analysis of Taylor v. Moore: that Congress has the power to
terminate treaty obligations, and too such decisions, courts must defer, on
the notion that Congressional decisions might depend on information
inaccessible to the judiciary.
All of this left open the question of Executive breach. What would
courts do when faced with cases where the Executive branch had failed to
live up to its treaty obligations?
The small size of the Executive branch in the 18th and 19th centuries
meant few opportunities for the Executive to violate international treaties in
a judicially cognizable way. But while small, the Executive branch did
employ prosecutors. It was their alleged breaches of international law in
matters of extradition that first raised the question of whether the judiciary
would order the executive to obey treaties. While quite involved and
186 See Christian Fritz, A Nineteenth Century Habeas Corpus Mill: The Chinese Before
the Federal Courts in California, 32 American Journal of Legal History 347, 350-351 (1988)
(describing Field’s opinion of the Chinese people).
When do American Judges Enforce Treaties?
48
confusing, the history of the enforcement of extradition treaties gives the first
insights into the hardest question posed in Part I – when does the judiciary
enforce treaties against the Executive?
As Ruth Wedgwood writes, the history of extradition begins with a
“revolutionary martyrdom.”187 The first American extradition agreement
was in the controversial Jay Treaty of 1794, where in Article 27 the United
States promised to “deliver up to justice all persons who, being charged with
murder or forgery, committed within the jurisdiction of either, shall seek an
asylum within any of the countries of the other….”188 In 1798, the British
demanded the handover of a mutineer and murder suspect named Jonathan
Robbins. As Congress had passed no implementing legislation, the question
was whether the treaty alone gave courts enough power to extradite
Robbins. Robbins said “no,” claiming to be a loyal U.S. citizen, pressed into
British navy service, whose mutiny was patriotic. But Judge Thomas Bee,
with President Adams’ consent, handed over the suspect based solely on the
power of the treaty. Robbins was prompted tried and hanged.189
The Robbins affair ignited a political firestorm. Judge Bee, said the
Aurora newspaper, had held that “A TREATY made by an AGENT of the
PEOPLE was PARAMOUNT to the CONSTITUTION under which the agent
was chosen.” Members of Congress quickly proposed the censure or
impeachment of Adams for his perceived treachery.190 Adams managed to
survive censure (though not the election) thanks in part to an impassioned
defense by Congressman John Marshall.191 But so severe was the political
fallout that the United States refused to extradite anyone for any reason for
more than forty years.
In was not until 1842 that a new extradition treaty with Britain was
signed, and not until the late 1870s that the question of executive breach
arose. When it did, the question was linked closely to a familiar problem:
187 Ruth Wedgwood, The Revolutionary Martyrdom of Jonathan Robbins, 100 Yale L.J.
229 (1990).
188 Treaty of Amity, Commerce and Navigation Between His Britannic Majesty and the
United States of America, art. 27, Nov. 19, 1794, 8 Stat. 116, 129, T.S. 105.
189 United States v. Robbins, 27 F. Cas. 825, 827-33 (D.S.C. 1799) (No. 16,175). Two
detailed histories of the Robbins case are Ruth Wedgwood, The Revolutionary Martyrdom
of Jonathan Robbins, 100 Yale L.J. 229 (1990), and John T. Parry, The Lost History Of
International Extradition Litigation, 43 Va. J. Int’l L. 93 (2002).
190 See Wedgwood, supra n. __, at 323, 334.
191 See Wedgewood, supra n. __ at 325.
When do American Judges Enforce Treaties?
49
state misbehavior placing the Union in breach of its treaties. The issue was
“specialty.” That is the principle that it is unlawful to charge an extradited
subject with offenses other than the specific crime for which extradition is
requested and granted.
Anglo-American diplomatic tension brought specialty to the forefront.
In a manner that might be consider unusual today, the 1842 treaty’s
extradition language was drafted by Justice Story as a favor to Secretary of
State Daniel Webster. It enumerated seven specific offenses as grounds for
extradition: “murder, or assault … or piracy, or arson, or robbery, or forgery,
or the utterance of forged paper….”192 Story purposely excluded any political
offenses, as to not “hazard the ratification by our Senate from popular
clamour.”193 The treaty also contained no explicit specialty requirement, and
for several decades, extradition proceeded without regard to whether the
crime charged was the crime of extradition.
That changed as, in the late 1860s, specialty began to gain intellectual
favor in Britain. Following several studies in 1870 the British Parliament
passed a new Extradition Act.194 It required the British government to
respect the principle of only charging a suspect with the crime of extradition,
and to refuse extradition to nations that did not. That law would soon create
yet another Anglo-American showdown.
In 1876, the United States requested the extradition of Erza Winslow
for the offense of forgery, for which he was wanted in Massachusetts. Britain
captured and imprisoned Winslow, but following its new law, it refused to
surrender him unless the United States promised to try him for forgery
alone, and not to indict him for other offenses. On the advice of Secretary of
State Hamilton Fish, President Ulysses Grant refused. Winslow was let free
and never heard from again.
After Winslow’s release, an angry President Grant accused Britain of
breaching the 1842 treaty. “Her Majesty’s Government, instead of
192 Treaty of Aug. 9, 1842, to settle and define the boundaries between the territories of
the United States and the possessions of her Britannic Majesty in North America; for the
final suppression of the slave trade; and for the giving up of criminals, fugitive from justice,
in certain cases, 8 Stat. 572 art. 10.
193 Letter from Justice Joseph Story to Secretary of State Daniel Webster (Apr. 19, 1842),
in 1 The Papers of Daniel Webster: Diplomatic Papers, 1841-1843, at 537 (Kenneth E.
Shewmaker ed., 1983).
194 Extradition Act, 1870, 33 & 34 Vict., ch. 52 (Eng.).
When do American Judges Enforce Treaties?
50
surrendering the fugitive, demanded certain assurances or stipulations not
mentioned in the treaty, but foreign to its provisions. . . . The position thus
taken by the British Government, if adhered to, cannot but be regarded as the
abrogation and annulment of the article of the treaty of extradition.”195
Grant announced he was suspending U.S. performance of the treaty unless
Britain or Congress gave him reason to change his position.196
But the tension was short-lived: by the end of 1876 the Executive and
Britain had settled their differences. While making no formal legal
commitment, the United States dropped charges in a prominent case, de facto
observing the specialty principle.197 The Earl of Derby, British Foreign
Minister, told the House of Lords that U.S. objections to specialty were now
“purely theoretical.”198 Said Derby “We continued to maintain, and we
maintain now, that the construction we placed on the treaty was the correct
one.” 199 Meanwhile Britain quietly stopped demanding assurances that
specialty would be respected. Extradition under the treaty of 1842 resumed.
Was President Grant correct about the 1842 treaty? To a modern
reader, the lack of any explicit specialty clause combined with decades of
practice would suggest the answer is “yes.”200 But the international law
publicists of the late 19th Century jumped on the question and unanimously
pronounced the American position incorrect. Wrote John Bassett Moore in
1891, “The general opinion has been that [the United States] was wrong …
yet right in refusing to comply with the demand of the British
government.”201 Attacks on the U.S. position came from law professor and
Michigan Supreme Court Justice Thomas Cooley, Judge Lowell of the
195 Message from President Ulysses Grant to the Congress in Relation to the
Extradition Treaty with Great Britain (June 20, 1876), in 2 Francis Wharton, Digest of the
International of the United States 786, 787-88 (1886).
196 Id. at 789 (“Should the attitude of the British Government remain unchanged, I shall
not, without an expression of the wish of Congress that I do so, take any action either in
making or granting requisitions for the surrender of fugitive criminals under the Treaty of
1842.”).
197 See John Bassett Moore, 1 Treatise on Extradition and Interstate Rendition, §151
(1891).
198 See Lord Derby, British Foreign Secretary, Speech to the House of Lords (Feb. 13,
1877), reprinted in part in Moore, supra n. __ §151 (1891).
199 Id.
200 See Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Making
Sense of United States v. Rauscher, 34 Va. L. Rev. 71 (1993).
201 John Bassett Moore, 1 Treatise on Extradition and Interstate Rendition, §152 (1891).
When do American Judges Enforce Treaties?
51
District of Massachusetts, and most vigorously by William Beach Lawrence,
editor of Wheaton’s Elements of International Law.202 As Lawrence wrote,
Grant’s position “proposes to take away all safeguards, which we would
protect our own citizens, when extradited perhaps for the most trifling
offenses from being exposed in a foreign country, without friends, and
without counsel, to a trail for the most heinous crimes….”203
The settlement of the Winslow affairs did not, as Lord Derby had
promised, end the matter. For while the federal government had its de facto
policy, state prosecutors and rogue federal prosecutors continued to charge
beyond the indictment. A well known example was the Kentucky case of
Commonwealth v. Hawes, where, despite the complaints of the British
ambassador, an extradition for forgery was used to charge a suspect for
embezzlement.204 William Beach Lawrence returned to the Albany Law
Journal to warn that State extradition practice threatened “dangers in our
international relations,” and even “menaced hostilities.”205
It was with this background that the Supreme Court considered the
famous case of United States v. Rauscher in 1886. William Rauscher, second
mate of the U.S.S. J.F. Chapman, was extradited from Britain on charges of
murder. However, the federal prosecutor in the Southern District of New
York (apparently without permission from the Attorney General) charged
him with cruel and unusual punishment, a crime not enumerated in the 1842
extradition treaty. Justice Miller, joined by six Justices, brushed aside the
Government’s construction of the 1842 Treaty, and enforced the treaty
directly against the federal government. Quoting from Foster v. Neilson he
found the 1842 Treaty “the Supreme law of the land, which the courts are
bound to take judicial notice of, and to enforce in any appropriate
proceeding.”206
The 1842 Treaty contained no explicit specialty requirement.
Nonetheless Justice Miller relied on Story’s enumeration of seven offenses in
the treaty to support an argument that the indictment was illegitimate. “The
202 Judge Thomas Cooley, Extradition, 3 Int. Review 438 (1876); Extradition, 10 Amer.
Law Rev. 617 (1875-76) (anonymous, attributed to Judge Lowell), William Beach Lawrence,
The Extradition Treaty, 14 Alb. L. J. 85 (1876);
203 Lawrence, The Extradition Treaty, supra n. __ at __.
204 76 Ky. 697 (1878).
205 William B. Lawrence, Extradition, 16 Alb. L. J. 361, 364 (1877).
206 119 U.S. at 419.
When do American Judges Enforce Treaties?
52
enumeration of offenses … is so specific, and marked by such a clear line in
regard to the magnitude and importance of those offenses, that it is
impossible to give any other interpretation to it than that of the exclusion of
the right of extradition for any others.”207
What about President Grant’s message and the United States’
construction of the treaty? Did not the Supreme Court have some duty to
defer to the considered views of the Executive as to the treaty it had
negotiated? To a modern reader, the failure of the Solicitor General’s brief to
press this issue is quite surprising. Indeed there is a languid and
concessionary nature to the brief that may suggest the United States was not
particularly concerned about losing. In any case Justice Miller did note the
dispute over the meaning of the treaty, saying “the correspondence is an able
one on both sides,” yet instead of deferring, he said it “presents the question
we are now required to decide.”208
Justice Miller made far more of the views of the publicists who had
suggested that specialty was an established part of customary international
law. William Beach Lawrence was called “a very learned authority on
international law living in this country”; Justice Miller also favored the
“learned and careful work” of David Dudley Spears. In Miller’s view, their
examination of the matter was “so full and careful, that it leaves nothing to
be desired in the way of presentation of authorities.”209
In short, in Rauscher, the Court ignored the President’s interpretation
of a treaty, and arguably went beyond the text of the treaty to find the
executive branch in violation, and order the breach remedied. Hamilton Fish
called the decision “all wrong.”210 In a sense, Rauscher treated the Executive
branch rather like a state, entitled to no particular deference as to the
meanings of the treaties it had signed. What might explain this result?
One answer is simply that the Court believed that the Supremacy
clause means that the judiciary should interpret treaties de novo, without
particular regard to the views of the Executive. Another explanation comes
from Jacques Semmelman, an extradition expert who has studied the history
207 119 U.S. at 420.
208 119 U.S. at 416.
209 Id. at 417.
210 Letter from Hamilton Fish to J.C. Bancroft Davis (Dec. 7, 1887), reprinted in part in
Charles Fairman, Mr. Justice Miller and the Supreme Court 326 (1939).
When do American Judges Enforce Treaties?
53
of Rauscher extensively. Semmelman believes that the Court was motivated
primarily by concerns about state misbehavior and problems with Britain.211
As he writes:
A conclusion either that specialty was not implicit within the Treaty,
or that it was not enforceable by the courts, would have conferred
unfettered discretion upon the states to decide whether to prosecute
for crimes not included in the warrant of surrender. … [and] serious
international difficulties for the United States. …. Justice Miller
believed very firmly that the states should be insulated from any role
in international relations.212
One idea then, is even though the Court was facing a federal defendant, it
may have been motivated by the central dogma of treaty enforcement, the
prevention of state actions that create Union breach.
A third explanation builds on the analogy to statutory deference
discussed in Part I. Rauscher was a criminal case, with a treaty raised as a
defense. While the judiciary usually defers to Executive constructions in
treaty cases, judges have never granted great deference to the Executive in
the construction of criminal laws.213 As Justice Scalia put it in 1990, “The
Justice Department, of course, has a very specific responsibility to determine
for itself what [a criminal] statute means … but we have never thought that
the interpretation of those charged with prosecuting criminal statutes is
entitled to deference.”214 Just as judicial deference to the executive is at a
minimum in statutory criminal cases, so it is for criminal cases that touch on
treaties. Rauscher might on this reasoning stand for a different idea: unless
Congress signals otherwise, treaties establishing criminal defenses should be
enforced against any government, state, Executive, or even foreign.
In any case, with Rauscher the Supreme Court created the first domain
of treaty-law enforceable against the executive. While there is some
disagreement over whether foreign nations may waive the specialty defense
on behalf of their citizens, judges continue to enforce specialty clauses
211 See Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Making
Sense of United States v. Rauscher, 34 Va. L. Rev. 71 (1993).
212 Id. at 132-134.
213 But see Kahan, supra n. ___ (arguing that the Federal Government should get
Chevron deference in its interpretation of criminal laws).
214 Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring in the
judgment).
When do American Judges Enforce Treaties?
54
against State and Federal governments.215 Justice Miller’s opinion,
moreover, created a domain that has spread beyond extradition into
international criminal procedure generally. Today, in addition to
extradition, judges have directly enforced prisoner exchange216 and mutual
legal assistance treaties (MLAT).217
* * *
By the turn of the century the Supreme Court had established several
important matters in treaty enforcement practice. The central mission,
upheld in dozens of cases, was preventing States from putting the Union in
breach. But the Court in the tariff and Chinese Exclusion cases had also
wrestled with the tricky problem of Congressional inconsistency with
treaties, using the last-in-time rule and other means to defer to Congress’s
mistakes and decisions. And the Court in Rauscher established a beachhead
of strong treaty enforcement as against the executive.
Part III: The Twentieth Century and the Age of Multilateral Treaties
An important premise of the Part I model is that acts undertaken by
other branches can and will affect how the judiciary enforces treaties. If
that’s correct, then it stands to reason that changes in the treaty-relevant
practices of other branches may affect how the judiciary enforces treaties.
215 See, e.g., Valentine v. Neidecker, 299 U.S. 5 (1936); Alvarez-Machain, 504 U.S. 655,
667 (1992) (applying an extradition treaty as directly applicable federal law); Terlinden v.
Ames, 184, U.S. 270, 288 (1902) (“Treaties of extradition are executory in their character….”);
United States v. Thirion, 813 F.2d 146, 151 & n.5 (8th Cir. 1987); United States v. Najohn, 785
F.2d 1420, 1422 (9th Cir.), cert. denied, 479 U.S. 1009 (1986); United States v. Levy, 905 F.2d
326, 328 n.1 (10th Cir. 1990); United States v. Riviere, 924 F.2d 1289, 1300 – 01 (3d Cir. 1991);
United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995) (holding that the extradition
treaty between the United States and Uruguay could be enforced directly by the person
extradited); Cheung v. U.S. 213 F.3d 82, 95 (2d Cir. 2000) (“the Constitution not only allows,
but in fact requires, the courts to treat the Agreement as equal to the federal extradition
statue”).
216 See, e.g., Cannon v. United States Department of Justice, 973 F.2d 1190, 1192 (5th
Cir. 1992)(enforcing treaty on the execution of penal sentences between the United States
and Mexico as against United States parole commission.)
217 See In re Commissioner’s Subpoenas, 325 F.3d 1287, 1291 (11th Cir. 2003) (enforcing
MLAT with Canada); United Kingdom v. United States, 238 F.3d 1312, 1317 (11th Cir.
2001)(enforcing MLAT with the United Kingdom); In re Erato, 2 F.3d 11, 15 (2nd Cir.
1993) (enforcing MLAT with the Netherlands).
When do American Judges Enforce Treaties?
55
As this section argues, that’s exactly what has happened in the twentieth
century.
It is commonplace to say that in the 20th century, judges have
changed how they enforce treaties, or more precisely, slowed down.218 This
Article does not dispute that fact exactly, but provides a fundamentally
different explanation for it. The typical arguments suggest either that
multilateral treaties typical of the Post-World War II era have discouraged
judges from treaty enforcement, 219 or that judges have developed a kind of
contempt for treaty law, and refuse to enforce it even though the Supremacy
Clause suggests they should.220
The work in this part of the Article leads to two comments. First, it is
not clear that either the multilateral form or changes in non-self-execution
doctrine have fundamentally changed judicial treaty enforcement practice.
As the sections below demonstrate, the enforcement practices for multilateral
treaties are similar to those for bilateral treaties. Multilateral treaties which
displace state law have been enforced vigorously: most notably the Warsaw
Convention on aircraft liability and the United States Convention on the Sale
of Goods. These two conventions affect state tort and contract law
respectively. In contrast, where multilateral treaties might create duties
Congress, courts remain, as in the nineteenth century, reluctant to enforce
the treaty and more likely to defer to Executive construction or wait for
either Congressional implementing legislation. That can be seen, as
discussed below, in the case of the multilateral intellectual property regimes
and Human Rights treaties.
This section suggests that different phenomena have profoundly
altered judicial treaty enforcement. The main is the rise of the congressionalexecutive
agreement.221 The Article II treaty procedure (treaties approved by
two-thirds of the Senate) has been all but replaced by a different procedure,
218 On the changes in international law over the 20th century, see Paul B. Stephan, The
New International Law – Legitimacy, Accountability, Authority, and Freedom in the New
Global Order, 70 U. Colo. L. Rev. 1555, 1557 (1999).
219 See., e.g., G. John Ikenberry, America, World Order, and the Rule of Law (2003).
220 David Sloss, Non-Self-Executing Treaties: Exposing A Constitutional Fallacy, 36
U.C. Davis L. Rev. 1, 4 (2002).
221 Duncan Hollis made this suggestion first. See Duncan Hollis, Remarks, Foreign
Relations Internet Group Conference, Dec. 13, 2004.
When do American Judges Enforce Treaties?
56
known as the congressional-executive agreement. 222 In the congressionalexecutive
procedure, Congress enacts legislation with every treaty, changing
domestic law when it thinks it necessary. The result is a flip in the default
rule of treaty enforcement. Where Congress automatically gives its opinion
on the appropriate domestic meaning of a treaty, the judiciary’s role recedes.
The predictable result is a large shift in the respective sizes of the
Congressional and judicial domains of treaty enforcement.
The second is the practice, concurrent with statutory trends, of
granting more deference to Executive interpretations of treaties. That
development mirrors other trends in American law, most importantly the
rise of the Administrative state since the 1930s, which has brought greater
levels of Executive and Congressional control over the enforcement of
statutes and the common law.223 Scholars have portrayed the creation of
Congressional agencies as replacements for judicial enforcement schemes of
the 19th century.224 The rise of the Congressional-executive agreement is the
treaty version of the same phenomenon. It is perhaps not surprising that we
have seen more Congressional and Executive as opposed to judicial control
of treaty enforcement.
* * *
Returning to the history of treaty enforcement, we see how courts
dealt with the first two major multinational treaty regimes: the intellectual
property unions of the late 19th century,225 and the aircraft liability regime
established in 1929 (the Warsaw Convention). Afterward we consider how
courts have handled the challenge of multinational human rights treaties.
These regimes show the same tendency to regard the identity of the party in
alleged breach and deference to Congress and the Executive as the central
influences on treaty enforcement.
222 For an overview on the differences between Article II Treaties and congressionalexecutive
agreements, see Curtis Bradley & Jack Goldsmith, Foreign Relations Law, 409-421
(2003).
223 See generally Richard B. Stewart & Cass R. Sunstein, Public Programs and Private
Rights, 95 Harv. L. Rev. 1193, 1216-1219 (1982) (discussing the evolution of the control of
public remedies).
224 See Jerry Mashaw et al, Administrative Law 4-6 (3d ed. 1992) (discussing agencies
as replacement for failed judicial enforcement systems).
225 For example, the Paris Union, established in 1893 by the Convention for the
Protection of Industrial Property and the Berne Union, established in 1886 under the
Convention for the Protection of Literary and Artistic Work.
When do American Judges Enforce Treaties?
57
A. Enforcement Against States Continuing into the Present: The Warsaw
Convention
The Warsaw Convention226 is familiar to travelers from the fine print
on the back of airline tickets. It is the clearest example of a contemporary,
judicially enforced treaty regime in the traditional of Ware v. Hylton. It offers
important insight into what kind of treaties the judiciary will enforce
directly, and why.
The Warsaw Convention was the child of two international
conferences held in Paris in 1925 and Warsaw in 1929, and of the work done
by the interim Comité International Technique d’Experts Juridique Aériens
(CITEJA). The goal was to create a uniform legal framework to govern the
fledging airline industry. As the reporter for the Convention put it, “What
the engineers are doing for machines, we must do for the law.”227
The most important parts of that legal framework were the
standardized limits on carrier liability in domestic courts. Article 17 made
carriers liable for personal injury damages sustained during the course of a
flight, but the treaty limited that liability (in Article 22) to 125,000 “Poincaré
francs,” or about $8,300. Other portions limited liability for lost luggage
(Article 18), and flight delays (Article 19). The liability limits – particularly
for personal damages—were low even by 1929 standards. The point,
however, was to attract investment capital that might otherwise be scared off
by fears of plane crash liability.228
In the United States, the principal effect of the Warsaw convention is
to constrain the States. The Convention limits remedies that would
otherwise be available through state tort law. It is in this respect legally
similar to the 1780 Treaty of Peace and the many commercial treaties that
limit the course that State law might otherwise be inclined to take. And, like
these earlier treaties, the Warsaw Convention has been consistently enforced
directly by the judiciary as a self-executing treaty. The Warsaw Convention
is a pure example of a treaty within the judicial domain. There is no
implementing legislation or complementary regulation, yet it is the regime
226 137 L.N.T.S. 11 (1929).
227 Translation quoted in Andreas F. Lowenfeld & Allan I. Mendelsohn, The United
States and the Warsaw Convention, 80 Harv. L. Rev. 497, 498 (1967), original source 2
Conference International De Droit Prive Aerien, 4-12 Octobre 1929, Varsovie 17 (1930).
228 See Andreas F. Lowenfeld & Allan I. Mendelsohn, The United States and the
Warsaw Convention, 80 Harv. L. Rev. 497, 499-500 (1967).
When do American Judges Enforce Treaties?
58
under which most suits for damages occurring in the course of international
aviation must be brought.
The exact extent to which the Warsaw convention limits State causes
of action has long been a matter of some dispute. The Supreme Court’s most
recent pronouncements adopt a broad position of Treaty preemption. The
1999 case El Al v. Tsui Yang Tseng229 presents a particularly strong vision of
judicial preemption of State action. After a plane crash, Tsui Yang Tseng and
other plaintiffs sought damages for pain and suffering under New York tort
law. The question was whether plaintiffs could recover for injuries not
explicitly limited by the treaty—namely, emotional, as opposed to physical,
suffering. The Supreme Court said “no,” creating a sharp limit on State
regulation of international airline carriage.
Noting that the purpose of the Convention is to “achiev[e] uniformity
of rules governing claims arising from international air transportation,” the
Court agreed with El Al and the United States Government that the
Convention must be read as precluding all personal injury remedies
(namely, state remedies) other than those authorized through the
Convention itself. In the Court’s words: “Given the Convention’s
comprehensive scheme of liability rules and its textual emphasis on
uniformity, we would be hard put to conclude that the delegates at Warsaw
meant to subject air carriers to the distinct, nonuniform liability rules of the
individual signatory nations.”230
The Court assumed without discussion that the relevant portions of
the Warsaw Treaty were enforceable by the judiciary. This is a feature of
every Warsaw Convention case. It is not inevitable: the Court could have
held the Warsaw Convention of no effect without implementing legislation.
But its failure to do so, and indeed the extremely cursory analysis of the selfexecution
doctrine in El Al and other Warsaw Convention cases, suggests a
familiar dynamic. The court finds itself once again preventing state law from
disturbing an international regime, happily implementing the central dogma
of treaty enforcement.
229 El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 161 (1999).
230 525 U.S. 155, 169 (1999).
When do American Judges Enforce Treaties?
59
B. The Difference Between State and Congressional Breach Continues in
the 20th Century: International Intellectual Regimes
The first major multilateral treaties signed by the United States were
the Intellectual Property (IP) treaties of the late 19th century. Both the Berne
Convention on Copyright and the Paris Convention on Industrial Property
(trademark and patent) were ambitious efforts to create global protection for
the rights of authors and inventors, respectively. 231 But unlike the Warsaw
Convention, these conventions created federal duties, and the enforcement
results track these differences.
While the United States refused to sign the Berne Convention (it was
at the time, one of the world’s leading “pirates” of copyrighted works)232 the
ratification of the Paris Union prompted new questions for the judiciary. On
the one hand, the treaties did suggest protection for foreign inventors –
similar to some of the treaties that had come before. But the Paris Treaty
touched on areas where Congress was already active, having enacted and
reenacted federal patent laws. Once again, the sense that Congress was
“seized” with the problem of patents would lead the judiciary to leave
implementation of the Patent treaties to the legislature.
Article II of the Paris Convention guaranteed equal rights for
foreigners in the patent system of Union countries (a “national treatment”
provision):
The subjects or citizens of each of the contracting States shall enjoy, in
all the other States of the Union … the advantages that the respective
laws thereof … accord, to subjects or citizens.
The language suggests that a Swiss citizen should have the same
rights as an American in the U.S. system, trumping whatever pre-existing
discrimination existed in favor of the American. That’s exactly what Swiss
citizen Ferdinand Bourquin claimed in 1889. U.S. law at the time included
blatant favoritism in favor of the American filer: it allowed U.S. citizens
alone to file a “caveat,” or a kind of preliminary patent, prior to filing the full
231 The Paris Convention for the Protection of Industrial Property 1883 to 1983. Geneva:
WIPO, 1983.
232 See Gorman & Ginsburg, Copyright 9 (6th ed. 2003) (“During the republic’s first 100
years, the U.S. was a ‘pirate nation’ with respect to foreign works of authorship.”).
When do American Judges Enforce Treaties?
60
patent application.233 But despite having on his side a clear later-in-time
treaty, Bourquin and others like him lost.
Bourquin’s first appeal was to the Patent Office and consequently the
matter was considered first by the Executive. By request, Attorney General
Miller wrote an opinion, and he concluded the Paris Convention gave
Bourquin no rights beyond those in the Patent Act.234 His reasoning is not
particularly helpful: he argues that the treaty “is a reciprocal one; each party
to it covenants to grant in the future to the subjects and citizens of the other
parties certain special rights in consideration of the granting of like special
rights to its subjects or citizens.” 235 But of course all treaties are reciprocal:
what made the Paris Union special? It seems much easier to understand this
opinion, and the Court decisions, as adopting the rationale of the Tariff
decisions. In later cases Congress was accused of mis-implementing the
treaty: but courts held that any “mistakes” in the Patent Act were for
Congress to fix.236 As the First Circuit stated, “the courts would hesitate
before giving a treaty an interpretation differing from that solemnly given it
by the executive or by Congress, even if they would ever do it.”237
Are International IP treaties ever enforced directly? The answer is
yes, but only as against State breach. The leading case is Bacardi Corporation of
America v. Domenech, 238 where the Supreme Court struck down
discriminatory Puerto Rican trademark laws. Puerto Rico in 1936 passed a
set of laws subsidizing local liquor, and one made it illegal to sell spirits in
Puerto Rico under trademarks used outside of Puerto Rico.239 Bacardi
Corporation challenged the law as inconsistent with the General Inter-
American Convention for Trade Mark and Commercial Protection .240 The
Court struck the Puerto Rico statute with ease. It stated “this treaty on
ratification became a part of our law. No special legislation in the United
233 Except those in the process of obtaining U.S. citizenship. §4902 Revised Statutes,
1889.
234 19 U.S. Op. Atty. Gen. 273.
235 Id. at 278-279.
236 E.g., Rousseau v. Brown, 21 App.D.C. 73 (1903), United Shoe Machinery Co. v.
Duplessis Shoe Machinery Co., 155 F. 842 (1st Cir. 1907).
237 155 F. 842, 849.
238 311 U.S. 150 (1940).
239 Spirits and Alcoholic Beverages Act, No. 149 of May 15, 1937 §44(b).
240 General Inter-American Convention for Trade Mark and Commercial Protection,
signed February 20, 1929, ratified February 11, 1931, 46 Stat. 2907.
When do American Judges Enforce Treaties?
61
States was necessary to make it effective.”241 The Puerto Rican statute was
nullified on grounds “of repugnance to the treaty.”242
C. Human Rights Treaties
The trademark late-20th century treaty is the human rights
convention. The United States, after initial reluctance, has ratified several
including the International Convention on Civil and Political Rights (ICCPR),
the Convention on the Elimination of Discrimination Against Women, and
the Convention Against Torture.243 As we will see, however, direct domestic
enforcement of the treaties is scarce. Can deference theory explain that
outcome?
The kind of self-execution analysis called for by the Third
Restatement, based on the nature or language of treaty, provides little help.
Consider the ICCPR, ratified in 1992. The ICCPR looks like the U.S. Bill of
Rights: it provides a list of rights to which everyone is entitled. Article 7
states “No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”244 That’s not language different in
kind from the U.S. 8th Amendment, which states “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”245 As for enforcement, the ICCPR says “Where not already
provided for … each State Party to the present Covenant undertakes to take
the necessary steps, in accordance with its constitutional processes … to give
effect to the rights recognized in the present Covenant.”246 There is, in short,
little from the agreement that would seem to preclude judicial enforcement.
The lack of judicial enforcement of the ICCPR (and of human rights treaties
in general) is from textual analysis alone something of a mystery.
While raw political explanations of non-enforcement are common, the
results can also be explained using the deference model. The Senate alone,
Congress, or the Executive have signaled to the courts that either they
already have implemented, or will implement, the human rights treaties that
241 311 U.S. 150, 161.
242 311 U.S. 150, 167.
243 International Covenant on Civil and Political Rights (1961); International
Convention on the Elimination of All Forms of Racial Discrimination (1967); Convention on
the Elimination of All Forms of Discrimination Against Women (1975).
244 ICCPR Art. 7.
245 U.S. Constitution Amend. VIII.
246 ICCPR Art. 2.
When do American Judges Enforce Treaties?
62
the United States has signed. In short, Congress or the Senate have
instructed the judiciary that enforcement of human rights treaties is not their
business, and this instruction they have respected.
Several signals stand out. In some cases, Congress has passed
implementing legislation. The implementing legislation for the Genocide
and Torture Conventions specify how Congress thinks the treaty should be
enforced domestically.247 Less obvious (and more controversial) are the
Senate’s declarations and conditions in its consent to the human rights
treaties. In the case of the ICCPR, the Senate states “the United States
understands that this Covenant shall be implemented by the Federal
Government to the extent that it exercises legislative and judicial jurisdiction
over the matters covered herein.” 248 It adds that “the United States declares
that the provisions of Articles 1 through 27 of the Covenant are not selfexecuting.”
249 The Senate appears to be signaling that, in effect, the rights in
the ICCPR are already provided for.
Judges, in other words, treat the ICCPR exactly as they would a treaty
ratified with implementing legislation. That is, the courts treat the Bill of
Rights, 14th Amendment, and legislation like the Civil Rights Act of 1964250
as the implementing legislation of the ICCPR. That suggests independent
enforcement is inappropriate, even if Congress (or the courts) have deviated
from the text of the ICCPR in its “implementation.”
Of course, courts do not state these matters explicitly. But when they
address the enforcement of the ICCPR or other human rights treaties, courts
have justified non-enforcement based on the signals from the Senate and the
presence of adequate domestic remedies.251 For example, Chief Judge Young
247 18 U.S.C. §1091 (genocide); 18 U.S.C. §2340A (torture).
248 U.S. Reservations, Declarations and Understandings, International Covenant on
Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992).
249 U.S. Reservations, Declarations and Understandings, International Covenant on
Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992).
250 42 USC §2000e et seq.
251 See, e.g., Igartua De La Rosa v. United States, 32 F.3d 8, 10 n.1 (1st Cir. 1994) (right
to vote under Article 25 of ICCPR is not a privately enforceable right under U.S. law);
Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001); Domingues v. Nevada, 961 P.2d 1279 (Nev.
1998) (ICCPR no defense to juvenile execution); Heinrich v. Sweet, 49 F. Supp. 2d 27, 43 (D.
Mass. 1999) (plaintiffs have adequate domestic remedies for claims of “crimes against
humanity”); Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244, 1257 (C.D. Cal. 1999)
(holding that defendant’s civil rights claim under the ICCPR invalid); White v. Paulsen, 997
When do American Judges Enforce Treaties?
63
of the Massachusetts District Court explained his refusal to enforce the
ICCPR directly as follows: “[t]he United States Senate declined to pass
legislation (similar to the Torture Victim Protection Act of 1991) which
would have created a new private right of action enforcing the rights
recognized in the Covenant because ‘existing United States Law is adequate
to enforce those rights.’”252
While deference to implementing legislation (as with the Genocide
Convention) is standard, deference to such “pre-implementation” is novel, as
is deference to the Senate acting alone. Some academics have on these
grounds suggested that courts should ignore the signals in the reservations
and enforce Human Rights treaties directly. There is something to this, and
the deference model can predict conditions under which courts might in fact
consider enforcing a human rights agreement like the ICCPR.
The most likely scenario would be a case of egregious state breach.
Imagine, for example, that a State passed a series of laws neutral on their face
yet discriminatory in practice against the practice of Islam – like a facially
neutral ban on all broadcast calls to prayer. Under the federal constitution
and Employment Division v. Smith, the laws might be Constitutional.253 Yet in
this scenario, where the State threatens to put the Union into significant
tension with Islamic countries, a federal court might find it appropriate to
strike down the State law using Article 18 of the ICCPR, the guarantee to
religious freedom.254
We have seen now that the enforcement patterns for multi-lateral
treaties have been roughly the same as for bilateral treaties of similar
purposes. The paradigm created for bilateral treaties, targeting state breach,
has simply been translated, while human rights treaties have raised new
questions about how courts know whether to leave treaty implementation to
Congress.
F. Supp. 1380, 1386 (E.D. Wash. 1998) (“the United States Senate expressly declared that the
relevant provisions of the [Covenant] were not self-executing when it addressed this issue
providing advice and consent to the ratification”); In re Extradition of Cheung, 968 F. Supp.
791, 803 n.17 (D. Conn. 1997) (stating that the ICCPR cannot support extradition defense).
252 See 49 F. Supp. 2d at 43.
253 494 US 872 (1990) (holding facially neutral laws no violation of the establishment
clause).
254 Enforcement, moreover, need not be direct, but could come as Ex Parte Young suit.
See David Sloss, Ex Parte Young And Federal Remedies For Human Rights Treaty
Violations, 75 Wash. L. Rev. 1103 (2000).
When do American Judges Enforce Treaties?
64
D. Further Developments in Enforcement Against the Executive
Late in the 19th Century the Supreme Court showed a willingness to
enforce treaties against the Executive, and in the process show little
deference the Executive’s interpretations of the treaty’s language. Since that
time, while it will still consider cases against the Executive, the Supreme
Court has begun to grant more attention and deference to Executive branch
interpretation of treaties. David Bederman, for example, argues that the
deference given the executive is “the single best predictor of interpretative
outcomes in American treaty cases.”255
That trend has affected enforcement of treaties as against the
executive. That fact can be clearly seen by looking to the two important and
recurrent areas where judges are asked to enforce treaties against the
Executive branch: taxation, international criminal procedure, including
extradition.256
Perhaps the leading area of judicial treaty enforcement as against the
executive is taxation. The United States ratified its first bilateral double
taxation treaty with France in 1936,257 and what appears to be the first direct
enforcement of that treaty came in the 1946 Tax Court case Kimball v.
Commissioner.258 In that case, after reviewing the history of bilateral double
taxation conventions, the court proceeded to enforce the treaty directly
without discussion of whether the treaty was “self-executing” or whether it
owed deference to the executive.259 Later courts have explicitly stated that
tax treaties are directly enforceable in suits against the Commissioner of the
Internal Revenue Service.260 In tax cases the Supreme Court says
255 David Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. Rev.
953, 1015-1016 (1994)
256 See Part II.C.
257 Convention on Double Taxation Between the United States and The Republic of
France, signed April 27, 1932, ratified April 16, 1935, 49 Stat. 3145.
258 1946 WL 269 (Tax Ct. 1946). An international tax issue was also raised in Pelham
G. Wodehouse, 1950 WL 8022, T.C.M. (P-H) P 50,161, 1950 PH TC Memo 50,161, Tax Ct., Jun
30, 1950.
259 See id.
260 See, e.g., Samann v. C.I.R., 313 F.2d 461 (4th Cir. 1963) (exploring consitency
between Tax Treaty and IRS regulation); Lidas, Inc. v. United States, 238 F.3d 1076, 1080-81
(9th Cir. 2001) (holding information exchange provisions in the U.S.-France Double Taxation
Treaty valid basis for the issuance of an IRS summons). The Supreme Court has also
decided several tax treaty cases, see, e.g., Maximov v. U.S., 373 U.S. 49 (1963); O’Connor v.
United States, 479 U.S. 27 (1986); United States v. Stuart, 489 U.S. 353 (1989).
When do American Judges Enforce Treaties?
65
“[a]lthough not conclusive, the meaning attributed to treaty provisions by
the Government agencies charged with their negotiation and enforcement is
entitled to great weight.’“261
Yet in the latter parts of the twentieth century, the Court appears to
have increased its deference to the Executive’s interpretation of tax treaties.
An illustrative case is O’Connor v. United States.262 The case turned on an
treaty granting certain American workers in Panama an exemption from
payment of “any taxes.” As the language suggests, and as lower courts
concluded, the phrase “any taxes”might be thought to mean both United
States and Panamanian taxes. But Justice Scalia, writing for the Supreme
Court, went outside of the plain text of the tax treaty and instead deferred to
the Executive’s construction of the treaty, which was that “any taxes” does
not include U.S. taxes. While the record is not uniform, other tax cases have
featured deference. 263
Second, as discussed above, the 1886 case United States v. Rauscher
established a tradition of enforcement of treaties against the executive in
extradition and other criminal procedure cases, and there are cases that
follow its model.264 But since 1886, the lack of deference afforded the
Executive’s views of the treaty in Rauscher have changed.
The high water mark of judicial deference to the Executive’s
interpretation of extradition treaties is surely 1992’s United States v. Alvarez-
Machain.265 Here United States agents kidnapped a suspect residing in
Mexico, who promptly argued that his abduction violated the 1978
extradition treaty with Mexico. Alvarez-Machain made the straightforward
argument that the whole point of the extradition treaty was to preclude
kidnappings, and the Mexican authorities announced that his understanding
of the treaty was also their interpretation.266 The Executive, however,
advanced what seemed the rather extreme view that ignoring the procedures
261 United States v. Stuart, 489 U.S. 353, 369 (1989).
262 479 U.S. 27 (1986).
263 See, e.g., United States v. Stuart, 489 U.S. 353, 369 (1989); Sumitomo Shoji
America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194
(1961); Factor v. Laubenheimer, 290 U.S. 276, 295 (1933) (“of weight”).
264 See, e.g., Rice v. Ames, 180 U.S. 371 (1901); Terlinden v. Ames, 184 U.S. 270 (1902);
Grin v. Shine, 187 U.S. 181 (1902).
265 504 U.S. 655 (1992).
266 504 U.S. 655, 671 n. 1 (Stevens J., dissenting).
When do American Judges Enforce Treaties?
66
specified by the extradition treaty was not a violation of it. The Supreme
Court, though it did not claim to be deferring totally to the Executive,
nonetheless accepted the Executive’s interpretation of the treaty and held
Alvarez-Machain’s abduction no violation.
The degree of effective deference in Alvarez-Machain is high, yielding a
result that looks more like strong Chevron deference or arguably nonenforcement
of the treaty.267 One possible explanation is that the courts have
changed their approach since the Rauscher days and today believe that they
owe the United States’ interpretation of its treaty a far greater deference—
perhaps any reasonable interpretation need be deferred to. That may be true
– yet it is worth pointing out that, in contrast to Rauscher, the Court was
announcing a rule for the Executive alone, and therefore had no need to
formulate a rule that would prevent state breach. If Alvarez was a case where
California had seized a Japanese citizen in breach of a U.S.-Japan extradition
treaty the results may have been different.
A full study of treaty interpretation is beyond the scope of this paper.
However, one thing is for sure: the Rauscher Court’s indifference toward the
Executive’s interpretation of the treaty is today a rarity. That has, in turn
changed how the Court enforces cases that allege Executive breach. As
argued above, that trend, arguably, is part of something much larger –
namely, the rise of the administrative state and expert agencies, necessitating
a greater system of deference.
E. The Rise of the Congressional-Executive Agreement: Altering the
Balance of Deference
In the fifty years from 1789 to 1839, the United States entered into 87
international agreements, or less than two each year. Sixty or 69% were
enacted as Article II treaties,268 with the advice and consent of two thirds of
the Senate.269 From 1939 to 1989 the United States entered into 12,400
international agreements, or on average about 250 per year. Of those, 11,698
or 94% were not Article II treaties. Instead the great majority were
267 See also Bederman, Revivalist Canons and Treaty Interpretation, supra n. __ at
1014 (“Avlvarez Machain represents the ultimate repudiation of the canon of good faith and
liberal interpretation.”)
268 U.S. Const. Art. II §2 (“He shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators present concur.”).
269 Congressional Research Service, Treaties and Other International Agreements: The
Role of the United States Senate, S. Prt.106-71, 10th Cong. 2d Sess., 39 (2001).
When do American Judges Enforce Treaties?
67
“congressional-executive” agreements, or agreements that instead of
receiving a vote of two thirds of the Senate, were passed through both
houses of the Congress like normal legislation.270
The shift to congressional-executive agreements has attracted much
scholarly attention. A healthy debate exists over whether the congressionalexecutive
agreement is a constitutional or legitimate means of making an
international agreement.271 Political scientists are also interested in the
change of forms, and ask what might motivate the government to choose one
form over another.272 But while most observers have focused on the
constitutional significance of the use of congressional executive agreements,
few have appreciated the importance of the change for the judiciary’s role in
treaty enforcement.
When a treaty is entered into through the congressional-executive
process, the simultaneous passage of any necessary implementing legislation
is a natural consequence. When a treaty is simply approved, as in the
Article II treaty process, the treaty’s text, joined possibly by statements by the
Executive or the Senate, are the only relevant expressions of intent. But
when a treaty is both approved and implemented by Congress
simultaneously, a new document enters the picture: the enacting and
implementing legislation. In that legislation the full Congress has the
opportunity, if it wants, to specify how much or how little it wants a treaty to
be enforced. By making this determination, as the deference model predicts,
Congress will usually displace independent and direct judicial enforcement
of a treaty.
270 A study of the time period 1946 to 1972 found that 88.3% of the U.S. international
agreements made during that time were entered into as Congressional-Executive
agreements. See id. at 41.
271 See Lawrence Tribe, Taking Text and Structure Seriously, 108 Harv. L. Rev. 1221
(1995) (arguing that some congressional executive agreements are unconstitutional); Bruce
Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995) (arguing
that Congressional-Executive agreements can be used to pass laws beyond the reach of the
enumerated powers); Peter Spiro, Constitutional Method and the Great Treaty Debate, 79
Tex. L. Rev. 961 (2001); Joel R. Paul, The Geopolitical Constitution: Executive Expediency
and Executive Agreements, 86 Cal. L. Rev. 671 (1998).
272 See, e.g., Lisa L. Martin, The United States and International Commitments: Treaties
as Signaling Devices, Harvard University Department of Government Working Paper, Sept.
2003.
When do American Judges Enforce Treaties?
68
This dynamic can be seen in what are so far the most important
Congressional-Executive agreements: the treaties creating the World Trade
Organization in 1994. After the President signed the agreement, Congress
passed legislation, named the Uruguay Round Amendments Act of 1994,
which the President then signed.273 That bill did two things at once. It
approved the Uruguay Round agreement, making it binding on the United
States as a matter of international law.274 But it also enacted changes to U.S.
law that were required (or even suggested) by the treaty. Approval and
implementation were a single step, leaving the judiciary with a statute
containing the domestic substance of the treaty.
So what about judicial enforcement of the WTO agreements? The
WTO has its own dispute resolution system, and the implementing
legislation declares the WTO agreement itself non-self-executing.275 In
practice, no judge has directly enforced the agreement or decisions made
under it.276 As for areas where the agreements mandate changes in domestic
law, the existence of implementing legislation has in practice made that
legislation, and not the treaty, the center of judicial attention. For example,
The Uruguay round agreement on intellectual property (TRIPS, or Trade
Related Intellectual Property) suggested that members of the WTO create a
law against bootlegging, or unauthorized recording of music concerts.277
Congress took that suggestion seriously, and illegalized bootlegging in a new
chapter of the Copyright Code.278 The result are cases enforcing the new
law, which focus on the legislation and not the original agreement.279
As the studies above show, most treaty regimes are now implemented
via congressional-executive agreement. That doesn’t mean that there is no
room for independent judicial enforcement. It leaves older regimes, like the
273 Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809
274 Uruguay Round Agreements Act, Pub. L. No. 103-465, §103.
275 19 U.S.C.A. §3512(a)(1), (b)(2)(A).
276 See, e.g., Turtle Island Restoration Network v. Evans, 284 F.3d 1282, 1303 (Fed. Cir.
2002) (Newman, J., dissenting) (“no party asserts that WTO decisions have controlling status
as United States law”).
277 Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 14,
Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C,
LEGAL INSTRUMENTS — RESULTS OF THE URUGUAY ROUND, vol. 31, 33 I.L.M. 81
(1994).
278 See Uruguay Round Agreements Act Title III; see also 17 U.S.C. §1101 et seq.
279 See, e.g., United States v. Moghadam, 175 F.3d 1269, 1276-77 (11th Cir. 1999).
When do American Judges Enforce Treaties?
69
Warsaw Convention, along with older Article II treaties. But what this does
mean is that the relative size of Congressional as opposed to judicial
domains of treaty-enforcement has changed, with Congress’s domain now
much larger. That development, rather than changing standards of the
doctrine of non-self-execution, may explain the apparent decrease in the
judicial enforcement of treaties. Furthermore, as the ratio of Article II to
Congressional-Executive agreements continues to decrease, direct judicial
enforcement of treaties, as opposed to implementing legislation, may slowly
become a rarity.
Conclusion
A topic like the judicial enforcement of treaties is a difficult topic to cover
completely. Yet the prevailing doctrine of non-self-execution is so poorly
descriptive of judicial behavior that something must be done. The immodest
goal is to uproot or supplement the theory of self-execution as the dominant
mode for understanding treaty enforcement in the United States.
What scholars, judges and policy makers need to understand is that
questions of government structure has always and will always had a strong
influence on whether judges enforce treaties – far more than even the treaty
text. Yet current doctrine continues to pretend that judges are discerning
the “intent” of a document when they are doing something else entirely.
The result is an unpredictability and incoherency that makes treaty law far
more complicated than it need be.
Over coming years, problems of treaty enforcement will continue to be
raised, and the judiciary’s appropriate role will always be a question. We
might hope, at a minimum, that we can begin facing those problems by
asking the right questions. All we need to ask is this: In a treaty case, when
should a court owe more or less deference to the State, Executive, or
Congress, and for what reasons? Such questions are really those created by
the American system of divided government, and should play a starring role
in future considerations of treaty enforcement.when do judges Treaties_Enforced

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