Good afternoon to all. It is a pleasure and honor to be here and to have accepted your invitation to speak at this gathering on a subject of my choosing. It is not often that anyone volunteers to hear what I have to say, so your invitation was immediately accepted.

Introduction

The subject that I have chosen to comment upon — the current dogma of the U.S. Courts regarding the domestic enforcement, and in many cases what can be more accurately described as the non-enforcement, of treaties entered into by the United States — is one that has occupied me professionally and personally for some time, and which has been a central issue in some of the most interesting and important cases that I have participated in during my almost 38 years on the federal bench. Therefore, the views that I will be expressing at this time are not intended as the revelation of something new, as much of what I will say I have already stated before during the course of my official judicial endeavors. I have chosen to speak about this subject in the present forum because I believe that a discussion of the so-called doctrine of self-execution of treaties, outside of a litigious setting, and focusing only on that issue, rather than analyzing it within the context of a complex case, may be useful if only as an academic exercise, which is how I see my appearance here today.

Of course, it goes without saying that nothing that I say here in any way represents anyone else’s views except my own. In fact, I can probably safely say that, if anything, judging from my Court’s various opinions, my colleagues are probably in disagreement with most of what I will say today. I also disclose to you what may become obvious before the evenings ends, and that is that much of what I say tonight is not original thinking on my part, but rather a collation of views that I have gathered over time from more erudite sources.

The Relevant Constitutional Provisions

Getting to the subject at hand, the starting point in dealing with treaties and treaty law is, of course, the various provisions of the Constitution that deal with this subject. I apologize if I am somewhat pedantic in my simplistic exposition of what I am certain are elementary principles to this audience, but I hope before I finish you will understand why I am going back to basics.

As we know, the treaty process involves all three branches of government. It is commenced by the Executive branch, who negotiates and provisionally binds the word of the United States, subject to approval of the treaty by the legislative branch represented by the Senate. Thus, pursuant to Article II, Section 2, it is stipulated that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . .” Although these first two steps are independent of, and precede, the third branch’s involvement into the treaty process, they are not irrelevant to the judiciary’s participation thereafter in its role as interpreter and the enforcer of the treaty.

The judicial branch’s role is established in Section 1 of Article VI, the so-called Supremacy Clause, whose full text states that “[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under authority of the

United States, shall be the supreme law of the land, and the Judges of every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary not withstanding.”^[1] The Judicial Function in the Treaty Process

As is clearly apparent from a reading of the Supremacy Clause, because a treaty becomes part of the municipal law of the United States once it is negotiated and ratified following the constitutional process established in Article II, its interpretation and enforcement should be up to the Courts, and only the Courts. Said otherwise, the function of the courts as regards a ratified treaty should be no different than what it is in the case of any normal statute (that is, any non-treaty enactment) passed by Congress. It is certainly not my intention, if stating such an elementary principle before this learned audience appears to be a sign of condescension on my part, but I am required to point out even the obvious, to emphasize what I believe to be a recent deleterious trend by the Courts of the United States in failing to faithfully adhere to what I believe is a fundamental tenet of our Constitutional duty as judges.

What I have just said regarding the judicial role in passing upon the meaning and enforcement of treaties, is hardly a novel concept. Over 100 years ago the Supreme Court in Paquete Habana, instructed us that “[i]nternational law is part of our law, and must be ascertained by the courts of justice. . .“^[2] Unfortunately, this is a constitutional mandate that in recent times has been subtly, but importantly, eroded by the very branch that is constitutionally charged with upholding its vitality. I am, of course, referring to the relatively new jurisprudential trend regarding the rules for determining the domestic incorporation of treaties into the municipal law of the United States, and the role of the Courts in said endeavor, and most importantly, the presumption that has crept into our case law against the automatic incorporation of treaties.. This is what is generally referred to as the issue of self-execution of treaties.

Before we go further, perhaps it is appropriate that I discus what is generally meant by a selfexecuting treaty. Professor Carlos Manuel Vázquez, the Georgetown professor who is generally acknowledged as the leading authority on this subject, defines a “self-executing treaty” in the context of American constitutional law, as “a treaty that may be enforced in the courts without prior legislation by Congress.”^[3] Conversely, he defines a “non-self-executing treaty,” as “a treaty that may not be enforced in the courts without prior legislative “implementation.”^[4] In accord, I believe, with the principle of judicial interpretation and enforcement of treaties by the courts that I have just discussed, Prof. Vazquez tells us that “where the line is drawn between ‘precatory’ (hence judicially unenforceable) and ‘obligatory’ (hence judicially enforceable) treaty provisions is a matter of domestic constitutional law,” that is, for the courts to decide. In recent times, the view most often cited for determining whether a treaty is “self-executing,” and hence judicially enforceable, is the one that requires the treaty to establish a private cause of action.^[5] Under that view, if the treaty does not clearly establish an individual cause of action, enabling municipal legislation is required before the rights established therein can be claimed in the Courts of the United States by private parties.

David N. Cinotti, in a note in the Georgetown Law Journal, aptly entitled The New Isolationism:

Non-Self-Execution Declarations and Treaties as the Supreme Law of the Land^[6] defines a non-self executing treaty as a treaty that (a) covers matters that are non-justiciable, (b) does not establish a private cause of action, or (c) does not require Congress to enact implementing legislation.^[7]

Although perhaps this is a somewhat premature anticipation of a more in depth discussion of this subject, I cannot help but to raise what to me is an interesting conundrum, the kind that law students like to discuss. If Marbury v. Madison tells us that, “[t]he province of the court[s] is, solely, to decide on the rights of individuals,“^[8] and if under the Supremacy Clause’s disposition, judicial intervention in the interpretation and enforcement of treaties is the mandatory forum, how can it be argued that treaties are entitled to be enforced in the courts only by sovereign states and their officials, unless an individual cause of action is explicitly established in the treaty? What is missing in the analysis of the whole issue of the automatic self-execution issue, as established in the most recent cases on his subject, is the acknowledgement that under the American constitutional system in contrast to that of other systems, a treaty not only is a law, but it is the law. It is not a draft or a proposal of legislation. Once it follows the Article II process the treaty is the law, and as such it is the Supreme Law of the Land. It, in capital letters “IT,” is entitled to be treated like any other law, and as such it needs no further implementation, only enforcement.

The Self-Execution of Treaties: Historical Background

To properly understand this issue within the context of the Supremacy Clause, we are required, as in the case of most constitutional interpretations, to inquire into the historical setting which led to the enactment of the provision in question. This inquiry begins with a look at the English constitutional history that predated our enactment of the Supremacy Clause, as it sheds light on the meaning of this provision.

The idea that treaties entered into by the executive branch and ratified by the Senate are not self-executing is a throwback to the English rule on the internal application of treaties in Great Britain. This rule has no place in our constitutional order because the irrefutable history of our own Supremacy Clause, and the initial Supreme Court jurisprudence which relied on this immediate background, unequivocally rejected its application to our own Constitutional establishment. The reason for this outcome is quite clear. In Great Britain, the Crown negotiates and concludes treaties without any intervention or participation by Parliament before or after the treaty is signed by the Crown’s representative. Thus, enabling legislation is required before the treaty is incorporated into Great Britain’s municipal law,^[9] for were it otherwise, the Crown would in effect be unilaterally legislating rather than Parliament and without any intervention by that body in the making of a law.

The Supremacy Clause was written against this background, and to correct the problems that arose during the period when the Articles of Confederation were in effect and a semi-anarchical situation existed, particularly with regards to the refusal by individual States to abide by the international commitments of the then-young United States.

During the Constitutional Convention, an attempt to incorporate the British Rule into our constitutional system was made. This proposal, to the effect that treaties be sanctioned by the legislature before they “had the operation of law,” was specifically rejected.^[10] An alternative proposal, which was also rejected, would have established two types of treaties: one requiring only action by the President and the Senate, and the second requiring additional action by the House of Representatives before they became the law of the land.^[11] In a similar vein, the Committee on Style removed from the final version of the Supremacy Clause language that would have given the national government the power to “enforce treaties.” The Committee struck this provision because it was considered redundant in view of the clear language of the Supremacy Clause requiring the courts to enforce treaties.^[12] It is thus appropriate to conclude that the language of the Supremacy Clause was chosen after due deliberation, and deliberately, to mean what it says: that “all treaties made, and which shall be made shall be the supreme law of the land.”^[13] This language does not distinguish between self-executing and non-self-executing treaties, all treaties are the supreme law of the land and must be enforced by the courts.

The expectation that treaties would become operative as domestic law upon ratification by the Senate is also expressed in the Federalist Papers, and in some of the debates that took place in the various States, before the Constitution came into force. In Federalist No. 22, for example, Alexander Hamilton explained that “[t]he treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.”^[14] Similarly, at the North Carolina ratifying convention, one of the advocates in favor of the ratification of the Constitution explained:

It was necessary that treaties should operate as laws on individuals. They ought to be binding upon us from the moment they are made. They involve in their nature not only our own rights, but those of foreigners [and should be protected by our judiciary].^[15]

Even those opposing ratification of the Constitution shared this view of the import of the Supremacy Clause vis-à-vis the automatic incorporation of treaties into our municipal law: “Brutus,” in criticizing the contents of Article III dealing with the Judiciary, stated that he could “readily comprehend what is meant by deciding a case under a treaty. For treaties will be the law of the land, every person who has rights or privileges secured by a treaty, will have of courts . . . in recovering them.”^[16]

American Case Law Interpreting the Judicial Role in the Enforcement Process

If there is any doubt that this cardinal provision of our Fundamental Law meant what it said, in 1796, while the ink in the recently enacted Constitution was still wet, the Supreme Court decided the case of Ware v. Hylton.^[17] This case involved a British creditor who sought payment of a Revolutionary War debt from a citizen of the new Republic after the war had ended. The debtor argued that he did not have to pay the British plaintiff because he had paid the amount owed to him into a Virginia state fund established pursuant to a Virginia state statute passed during the War that required that all debts owed to British creditors be paid into said fund. The British creditor claimed that this state-sanctioned payment was inoperative because it contravened the provisions of the 1793 Paris Peace Treaty between Great Britain and the United States which established that “the creditors of either side should meet with no lawful impediment to recovery of the full value . . . of all bona fide debts, therefore contracted.”^[18] The Court agreed with the British creditor, and held the Virginia statute invalid, concluding that the American debtor remained liable for the debt.

A key fact of Ware, as Justice Breyer observed in his dissent in Medellin v. Texas,^[19] is that Congress had not enacted a specific statute enforcing the treaty provision at issue. That is, the British creditor sued solely on the basis of the quoted treaty language.   Nor does this language, I would add, purport to establish a specific right to sue to enforce the individual rights recognized by it, in contradistinction to the modern day self-execution dogma which requires the treaty to contain specific language creating an individual cause of action as a sine qua non of conceding selfexecuting status to a treaty.

Although in Ware, all the Justices wrote separate opinions agreeing to the outcome, it is Justice Iredell’s views that are of particular interest to me on the subject under discussion because he had been a member of North Carolina’s Ratifying Convention, the debates to which I have previously alluded. Justice Iredell makes specific reference to the distinction between the British and American systems, post the adoption of the Constitution. He states that before ratification, all the provisions of the treaty in question would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law.^[20] But after the Constitution’s adoption, while further parliamentary action still remained necessary for the terms of a treaty to apply domestically in Great Britain, additional legislative action with respect to the treaty’s debt collection provision was deemed by the Court as no longer necessary in the United States.^[21] The ratification of the Constitution with its Supremacy Clause meant that treaty provisions that bind the United States also entered domestic law without further congressional action, and automatically bound the States and the courts.^[22] Justice Iredell concludes his remarkable opinion by telling us that, “[u]nder this Constitution, so far as a treaty obligation is binding, upon principles of moral obligation, it is also by the vigor of its own authority to be executed in fact. It would not otherwise be the supreme law in the new sense provided for.”^[23]

Thirty years after Ware the Court revisited the “self-execution” question in Foster v. Nielson,^[24] an opinion written by Chief Justice Marshall. Writing for the Court, he noted that although as a general matter, one would expect a signatory nation to a treaty, through a formal exercise of its domestic legislative authority, to indicate the incorporation of the treaty into the law of that nation, a different principle applied in the United States.^[25] The Supremacy Clause means, Marshall stated, that in the United States a treaty “is the law of the land . . . to be regarded in Courts of justice as the equivalent to an act of the legislature” and “operates of itself without the aid of any legislative provision,” unless it specifically contemplates execution by the legislature.^[26] That is, the presumption is that the statute is self-executory unless it specifically requires the political branches, be it the Executive branch or Congress, to take some action, which could be to enact legislation, before the treaty becomes the municipal law of the United States. Although the Court concluded that the language of the treaty under consideration required legislative action before it went into effect, only four years later, in United States v. Percheman,^[27] it revisited the language of the treaty, this time in its original Spanish rather than the English translation used in Foster, and reversed the holding in the earlier case concluding that the treaty in question was self-executing and did not need any action by Congress for its terms to be applied as municipal law of the United States.

By 1840, instances in which treaty provisions automatically became part of domestic law were so common that at least one Justice in commenting about what was by then settled constitutional law, wrote in Lessee of Pollard’s Heir v. Kibbe, that “it would be a bold proposition” to assert “that an act of Congress must first be passed” in order to give a treaty effect as “a supreme law of the land.”^[28]

Thereafter, and until fairly recent times, the Supreme Court has almost without fault held or assumed treaties under consideration to be self-executing, and automatically binding without more being required in the United States for application of the treaty as the Law of the Land. Appendix A of Justice Breyer’s dissent in Medellin list twenty nine such cases at the Supreme Court level alone, commencing in 1794 and as late as 2004, and involving a gamut of federal subject matter issues, including air carrier liability, the international discovery rules, employment practices, property rights and inheritance, trademarks, taxation, trade and commerce law, travel trade and access to the courts, extradition, criminal jurisdiction, land ownership, and monetary debts, in which the automatic incorporation rule was applied.^[29] It is worth noting that in 12 of those cases, the automatic application of the treaty resulted in the invalidation of state or territorial laws.

Nevertheless, it is worth noting that throughout this history of constitutional and treaty law interpretation, which spans more than 200 years, not a single one of the treaties considered by the Supreme Court involved what we would today label “human rights” issues. It is in the recent consideration of this category of treaties that the Supreme Court, and the lower courts, have interject what I deem to be an unsupported variation to treaty enforcement law.

The Foster rule, with a twist

The actual Foster rule, that is, the rule of the Foster case, is, that the issue of whether a treaty is self-executing or not depends on what the parties to the treaty intended. This rule is not in any way remarkable or obnoxious to the Supremacy Clause, if properly applied. Treaties are contracts between sovereign nations, and like contracts between individuals, should be interpreted in like manner to give effect to the intent of the signatories.^[30] Thus when put in its proper perspective, the Foster rule simply requires courts to examine the treaty language in question to determine from the text (or, when not apparent from its text, from the negotiating and drafting history of the treaty prior to its agreement by the contracting parties ), for the purpose of determining whether the parties intended the treaty to automatically become part of the law of the land or whether intervening action by the political branches of the country was contemplated by the negotiating parties.

Notwithstanding the princip;e of interpreting treaties as stated by the Court in Abbot v. Abbott in 2010, that “[t]he interpretation of a treaty . . . begins with its text,”^[31] and in Medellin, that “explicit textual expression” is the focus of the self-execution analysis,^[32] the courts, including the very majority that decided Medellin, have been rather coy in applying these rules when human rights treaties are under consideration. Rather than applying the established presumption under the Supremacy Clause that a treaty automatically becomes the municipal law of the United States, those cases now require individuals to overcome, by explicit text to the contrary, a countervailing presumption that the contracting parties intended the treaty to be self-executory.^[33] Although it is difficult to pinpoint the reason for this change, it is my opinion that this outcome is at least in part the result of interpretations that go beyond the text of the treaties in question. They seem to be based on subjective opposition to the contents of the treaties themselves, perhaps because of an underlying philosophical disapproval to the incorporation of the treaty imposed rights into United States law. In the end they result in the failure of the United States to honor our international commitments in the area of human rights.

This recent trend has has not remained unnoticed in the academic literature.^[35]  The Supreme Court’s decision in Medellin in particular has fostered broad rulings in the lower courts regarding non-self-execution where, even though their analysis of self-execution was limited to the language of a treaty (supplemented by a review of the treaty’s history), they have presumed a treaty to be nonself-executing unless the treaty language explicitly indicates that it is self-executing.^[34] However, Medellin may be interpreted in at least two distinct ways with respect to the unenforceability of treaties by the courts: (1) non-self-execution as called for by the treaty language itself; and (2) nonself-execution because of nonjusticiability.^[35] While the former may encourage a presumption of non-self-execution where a treaty fails to explicitly state the states parties’ intent regarding selfexecution,^[36] the latter leaves room for the opposite conclusion: that when courts find no express language in a treaty regarding self-execution, the treaty may be presumed to be self-executing and enforceable by the courts unless the treaty or certain of its provisions are non-justiciable. This distinction is important because of the scope of discretion the respective approaches allow the courts. Under the first approach, a court’s role in treaty enforcement ends with an examination of the language of the treaty and an assessment of the negotiating and drafting history, neither of which are likely to offer an indication of domestic enforceability since such enforceability is a question of domestic law.³⁹   The main support for this approach, which rejects treaty incorporation, has been reliance upon declarations and reservations made during the ratification process of human right treaties. Under the second approach, a presumption of self-execution is preserved if the treaty language says nothing about judicial enforceability, and the only limitations placed on the court in its interpretation of the treaty, aside from ordinary principles of contract interpretation, are domestic constitutional constraints regarding doctrines of non-justiciability and the separation of powers. Under this approach, the language of the treaty and any declarations would not be dispositive with respect to presumptions of unenforceability by the courts, and it is this approach that I urge today. Because understanding the ratification process in some detail, particularly the actions of the Senate in issuing reservations, declarations and understanding, have had a decisive influence in the recent cases involving the issue of self-execution, I am required to digress briefly in explaining this process.

The ratification process of a treaty in the United States and the legal import of reservations, declarations and understandings made as part of that process

Once a treaty is negotiated and signed by representatives of the United States, the President is committed to seeking ratification. The treaty, of course, does not become law under the Supremacy Clause until the full ratification process is completed. The problem is that some treaties take years to negotiate, and thus may be subjected to different administrations with their varied policy concerns and political philosophies, which means that by the time the actual ratification process commences and is completed, there may be less than enthusiastic support for the contents of the treaty in question in the current White House and/or the Senate. This, of course, may lead to ambivalent conduct regarding the subject matter of the treaty by the various components in the process.

Once the treaty is signed by a representative of the United States–usually the Secretary of State–the usual process is for the State Department to send the treaty to the Senate, more specifically to the Committee on Foreign Affairs, for its consideration. The treaty will usually be accompanied by documents which contain an analysis of the policy benefits and potential risks to the United States from the ratification of the treaty, an assessment of any significant regulatory or environmental impact, and a statement of the views of the Executive branch regarding issues surrounding the treaty’s implementation. The latter includes whether the Executive branch considers the treaty to be self-executing or whether it needs to be followed by implementing domestic legislation or regulations in order for the United States to comply with the stipulations contained in the treaty. In addition, the State Department may at this point interject what are labeled “reservations,” “declarations,” and/or “understandings” regarding the treaty. Although I will presently discuss these in more detail, let me anticipate those comments by saying that, in my opinion, it is the failure of the courts to properly understand, or perhaps accept, the legal distinction between these terms which has led to most of the problems relating to the question of self-execution of treaties.

As we know, if the Foreign Affairs Committee opts for sending the treaty to the full Senate, an affirmative vote of two thirds of the Senators present is required for the “advice and consent” to be effective. This advice and consent can include the Senate’s own reservations, declarations and/or understandings of the treaty. Depending on the outcome of the Senate process, the treaty is then returned to the President, informing him of either the rejection, or of its consent to the same. If consent is the outcome, the President is thus authorized to ratify the treaty on behalf of the United States, in which case the process is completed by the submission of documents of ratification by the United States, together with any reservations that may have been entered as part of the ratification process. This is done by presenting the submission documents before the institution indicated in the treaty as the depository of the ratification documents. The deposit of the instruments of ratification establishes the consent of the United States to be bound by the treaty, except that where reservations are made, given the nature of the same, further negotiations and consent by the contracting nations may be required. There is no question that the Senate may hinge its consent to ratify a treaty on a reservation.^[37]

As you may well be aware, the terms “reservations,” “declarations,” and “understandings” are terms of art with specific meanings in treaty law and interpretation. As established in the Vienna Convention on the Law of Treaties, a “reservation” is a “unilateral statement . . . whereby . . . [a State] purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State.” As I will presently explain, in contradistinction to a “declaration”, a reservation has an actual substantive/procedural effect on the terms of the treaty, including, as previously stated, the need to further negotiate with the other contracting nation(s) before it becomes part of the treaty. The reservation may vitiate the Senate’s consent if its terms are not incorporated into the treaty.⁴¹ A “declaration,”on the other hand, is a statement made during the confirmation process, usually by the Senate but sometimes by the President, indicating their understanding as to the meaning of the treaty under consideration, but which does not in anyway alter the terms of the treaty or operate as a condition to the Senate’s consent in the ratification process.⁴² As cogently stated by two leading authorities on the treaty law of the United States in discussing the specific issue of the legal effect of declarations of non-self-execution by the Senate:

The Senate lacks the constitutional authority to declare the non-self-executing character with binding effect on the U.S. courts. The Senate has the unicameral power only to consent to the ratification of treaties, not to pass domestic legislation. A declaration is not part of a treaty in the sense of modifying the legal obligations created by it. A declaration is merely an expression of an interpretation or of a policy or position. U.S. courts are . . . not bound to apply expressions of opinion adopted by the Senate (and concurred in by the President). The courts must undertake their own examination of the terms and context of each provision in a treaty to which the United States is a party and decide whether it is self-executing. The treaty is the law. The Senate’s declaration is not law. The Senate does not have the power to make law outside the treaty instrument.^[38]

Stated otherwise, the Senate’s advice and consent power under Article II extends only to the making of reservations, which require the President to seek acquiescence to the same by the other contracting party(ies), before the Senate’s consent it valid municipal law. Conversely, a declaration, is not part of the treaty and is thus not the law of the land. Otherwise considered, a declaration would effectively constitute a unicameral exercise of internal legislative power, a power that is not granted to the Senate under Article II, and if interpreted otherwise, would constitute a direct violation of the principle of separation of powers whereby legislation can only be enacted with the concurrence of both Houses and the acquiescence of the President. Not only is there virtual academic unanimity on this point,^[39] but the only case squarely deciding this issue is in agreement, although a reading of the case clearly shows that the court mixed up the terminology, transposing and using the terms “reservation” and “declaration” interchangeably.

Thus, in Power Authority of New York v. Federal Power Commission,⁴⁵ the District of Columbia Circuit held that a reservation by the Senate in considering a bilateral treaty with Canada was ineffective as an integral part of the treaty. The court held, that for a reservation to be part of the treaty and binding on the judiciary, it had to constitute an actual amendment to the treaty consented to by the parties to the same, thus getting the ultimate principle correct but in the process showing its confusion with the terms “reservation” and “declaration”. The court ruled:⁴⁶

A true reservation which becomes part of a treaty is one which alters “the effect of the treaty in so far as it may apply in the relations of [the] State with the other State or States which may be parties to the treaty.” It creates “a different relationship between” the parties and varies “the obligations of the parties proposing it”.

Because the court concluded that this “reservation” was merely an expression of the Senate’s view of domestic policy (ergo more accurately a “declaration”), it was not a part of the treaty and thus did not become domestic law under the Supremacy Clause, thereby binding the courts, but only part of its legislative history.^[40]

This should hardly be a startling revelation. As far back as 1898, when the Supreme Court was still adhering to the original interpretation of the Supremacy Clause, the Court said, with reference to the legal consequences of a Senate declaration to a treaty that was before it for advice and consent:

The power to make treaties is vested by the Constitution in the president and senate, and, while this proviso was adopted by the senate, there is no evidence that it ever received the sanction or approval of the president. It cannot be considered as a legislative act, since the power to legislate is vested in the president, senate and house of representatives. There is something, too, which shocks the conscience in the idea that a treaty can be put forth as embodying the terms of an agreement with a foreign power or an Indian Tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigencies of a particular case may demand.^[41]

I suppose the cynics will say that having a conscience is no longer a part of our ethics as regards our international commitments, but I would hope that our judiciary would think otherwise.

The changed role of the courts today in fulfilling their obligation under the Supremacy Clause to enforce treaties as the Law of the Land

Although there is some ambiguity in the pattern, it is probably fair to say that the Supreme Court has raised the bar for the incorporation of a treaty into the municipal law of the United States, at least as regards treaties that involve human rights issues. Many of the lower federal courts have not only followed suit, as they must, but in fact have at times anticipated the Court’s actions, eagerly requiring specific language in the treaties before they allow individual actors to claim the benefit of these international human rights agreements. An integral and powerful judicial stratagem to accomplish this end has been the inverting of the original constitutional presumption established in Ware, Forester and their progeny, cases which have never been outright reversed, with a new presumption to the effect that treaties are not self-executing unless these judicially created hurdles are met by the individual litigants.^[42] A companion to this new dogma is the rule whereby the Senate’s declarations to the effect that these treaties are not self-executing, is accepted as conclusive on its face,^[43] without the independent scrutiny that is required of the courts by the explicit language of the Supremacy Clause and the long line of cases interpreting it. I believe this is a mistaken point of view, both constitutionally and as a matter of judicial policy.

In support of this bias it has become the practice of the courts to look beyond the plain language of the treaty to “discover the intent of the Treaty parties.” This technique was a highly criticized by the concurring justices in United States v. Stuart,^[44] Justices Scalia, O’Connor and Kennedy,^[45] who rebuked the majority’s reliance on the Senate Committee’s Report and similar extra-treaty material, for interpretation of the unambiguous text of a treaty under consideration in that case. Justice Scalia’s concurrence is particularly apropos, starting with a quote from Maximov v. United States^[46] in which he states:

[I]t is particularly inappropriate for a court to sanction a deviation from the clear import of a solemn treaty . . . [W]hen, as here, there is no indication that application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.^[47]

As Justice Scalia further states, “t]he import of the highlighted adverb is, of course that it would be inappropriate to sanction a deviation from clear text even if there were indications to the contrary”. Expounding on what I believe should have been the rule applied in Medellin, Justice Scalia futher stated in his concurrence in Stuart:

[O]ur traditional rule of treaty construction is that an agreement’s language is the best evidence of its purpose and the parties’ intent . . . . Only when a treaty provision is ambiguous have we found it appropriate to give authoritative effect to extratextual materials.

Most importantly, Justice Scalia goes on to point out that:

Even where the terms of the treaty are ambiguous, and resort to preratification materials is therefore appropriate, I have been unable to discover a single case in which this Court has consulted Senate debate, committee hearings, or committee reports . . . Using preratification Senate materials, it may be said, is rather like determining the meaning of a bilateral contract between two corporations on the basis of what the board of directors of one of them thought it meant when authorizing the chief executive officer to conclude it. The question before us in a treaty case is what the two or more sovereigns agreed to, rather than what a single one of them, or the legislature of a single one of them, thought they agreed to. And the answer to that question accurately, it can reasonably be said, whatever extratextual materials are consulted must be materials that reflect the mutual agreement (for example, the negotiating history) rather than a unilateral understanding. Thus, we have declined to give effect, not only to Senate debates and committee reports, but even to an explicit condition of ratification when the President failed to include that in his ratification.^[48]

The disputed breadth of Medellin’s analysis of the self-executory status of treaties has created significant confusion among the lower courts, and it is clear that guidance is necessary not only with respect to how courts should treat extra-treaty materials, but also with respect to what, if any, presumptions apply regarding self-execution when a treaty is ambiguous regarding domestic enforcement. In looking to the signatories’ mutual agreement, ambiguities should be resolved in favor of presumptive enforcement in accordance with the constitutional mandate imposed on the courts by the language of the Supremacy Clause.

Thank you again for inviting me to be with you and for your attention.

[1] Emphasis added.

[2] 175 U.S. 677, 700 (1900) (emphasis added).

[3] Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 AM. J. IN’T L. 695 (1995).

[4] Id.

[5] Id.

[6] 91 GEO. L. J. 1277, 1279-80 (2003).

[7] Cf. Columbia Marine Services, Inc. v. Reffet Ltd., 861 F.2d 18, 21 (2d Cir. 1988) (defining a “self executing” treaty a one prescribing rules for determining private rights.).

[8] 5 U.S. (1 Cranch) 137, 170 (1803) (emphasis added).

[9] Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

[10] See JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, 597 (1840) (W.W. Norton 1987).

[11] See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 538 (Max Farrand ed. rev. ed. 1966).

[12] Id. at 389-90.

[13] Emphasis added.

[14] THE FEDERALIST NO.22, 150 (Alexander Hamilton)(Clinton Rossier ed. 1961).

[15] Jordan J. Paust, Self-Executing Treaties, 82 AM. J. INT’L L. 760, 762 (1988) (quoting from 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 27 (J. Elliot ed. 1941) (1830) (documenting the statements of William Davie, a North Carolina delegate to the Constitutional Convention).

[16] See 12 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 172 (John O. Kaminiski & Gapare J. Saladino eds., 1986).

[17] 3 U.S. (3 Dall.) 199, 1 L. Ed. 568 (1796).

[18] Ware, 3 U.S. (3 Dall.) at 204.

[19] 552 U.S. 491, 542 (2008) (Breyer, J., dissenting).

[20] Ware, 3 U.S. (3 Dall.) at 274-277.

[21] Id. at 276-277.

[22] Id. at 277.

[23] Id. (emphasis added).

[24] 27 U.S. (2 Pet.) 253 (1829).

[25] Id. at 314.

[26] Id.

[27] 7 U.S. (7 Pet.) 51,88-89 (1833).

[28] 14 U.S. (14 Pet.) 353, 388 (1840) (Baldwin, J., concurring).

[29] Medellin, 552 U.S. at 568.

[30] Sea Hunt v. Unidentified Shipwrecked Vessel, 221 F.3d 634, 646 (4th Cir. 2000).

[31] 130 S. Ct. 1983, 1990 (2010).

[32] Medellin, 552 U.S. at 562.

[33] See, generally, Igartúa v. United States, 626 F.3d 592 (1^st Cir. 2010); Medellin, 552 U.S. 491.

[34] See, e.g., Gandara v. Bennett, 528 F.3d 823, 829-39 (11^th Cir. 2008)(Rogers, J., concurring)(noting in a lengthy concurrence on the effect of Medellin that, “for a treaty to be self-executing such status must be obvious from the treaty’s terms” and requiring “some indication that the signatory States intended the agreements to have domestic effect upon ratification.”); Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, 543 F.3d 744, 749 (5^th Cir. 2008)(looking to the text of an arbitration treaty to provide an affirmative grant of selfexecution in holding that an express statement in said treaty that courts “shall” refer parties to arbitration favored a finding of self-execution).

[35] Carlos Manuel Vazquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599, 629 (2008).

[36] It is important to note that the Court in Medellin did not explicitly create a presumption in either direction, stating: “Neither our approach nor our cases require that a treaty provide for self-execution in so many talismanic words; that is a caricature of the Court’s opinion. Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the

[37] See Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1896); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 314 cmt. d (1986) (noting that when the United States accedes to a treaty with reservations, this statement has domestic legal effects, whereas other indications that the President or Senate assigned a distinct meaning to a treaty, such as declarations, are only pertinent to treaty interpretation in “the same way that legislative

[38] Stefan A. Riesenfeld & Frederick M. Abbott, Foreword: Symposium on Parliamentary Participation in the Making and Operation of Treaties, 67 Chi.-Kent L. Rev. 293, 291-97 (1991).

[39] Henkin, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 201(2d ed. 1996) (“A tendency in the Executive branch and in the courts to interpret treaties and treaty provisions as non-self-executing runs counter to the language, and spirit, and history of Article IV of the Constitution.”); Henkin, 89 AM. J. INT’L L. at 209 (describing the Senate’s practice of declaring treaties non-self-executing as “anti-constitutional” in spirit); David N. Cinotti, Note, The New Isolationism: Non-Self-Executing Declarations and Treaties as the Supreme Law of the Land, 91 GEO. L.J. 1277, 1291 (2003) (contending that “the President and the Senate do not have constitutional authority to make a non-self execution declaration legally binding.”); Jordan J. Paust, Avoiding “Fraudulent” Executive Policy: Analysis of Non-Self-Execution of the Covenant on Civil and Political Rights, 42 DE PAUL L. REV. 1257, 1265 (1993) (quoting with approval the International Law Association’s statement that “it may well be that a non-self-executing declaration . . . does not bind the judicial branch.”); John Quigley, The International Covenant on Civil and Political Tights and the Supremacy Clause, 42 DE PAUL L. REV.1287, 1298 (1993) (arguing that courts, rather than the Senate, should determine whether or not a treaty is non-self executing); Charles H. Dearborn III, Note, The Domestic legal Effect of Declarations that Treaty Provisions Are Non- Self-Executing. 57 TEX. L. REV. 233, 251 (1979) (arguing that declarations might be “an invalid attempt by the Senate to enact domestic legislation without the concurrence of the House”).

[40] Id. at 543.

[41] N.Y. Indians v. United States, 170 U.S. 1, 23 (1898).

[42] See Igartúa v. United States, 417 F.3d 145, 149 (1st Cir. 2005) (en banc) (Lynch, C.J.) (“Treaties are made between states (in the international law usage of that term) and citizens do not automatically have a right to sue upon them.”); see id. at 149 n.3 (citing United States v. Li, 206 F. 3d 56, 60-61 (1st Cir. 2000) (en banc) (indicating that “treaties do not generally create rights that are privately enforceable in federal courts” and there exists a “presumption against private rights of action under international treaties”).

[43] See Igartúa v. United States, 626 F.3d 592, 605 (1st Cir. 2010) (Lynch, C.J.) (“Medellín adds further weight to this court’s deference to the political branches in construing treaties like the [International Covenant on Civil and Political Rights]. Medellín emphasizes that the courts may not supplant the constitutional role of the political branches in making and approving treaties . . . It gave deference to the executive branch’s interpretation of whether the treaty at issue in that case was domestically enforceable.” (citations omitted)).

[44] 489 U.S. 353 (1989).

[45] Id. at 370-75.

[46] 373 U.S. 49, 54 (1963).

[47] Id. (emphasis added).

[48] Stuart, 489 U.S. at 372-375.