The U.S. Supreme Court’s decision in Bond v. United StatesFootnote 1 refocused attention on the challenges of effectively implementing international treaties in U.S. law. At issue in that case was the validity of a criminal prosecution brought under federal legislation implementing the Chemical Weapons Convention.Footnote 2 How the Court chose to dispose of the issue – by deciding that the implementing statute, unlike the treaty itself, must be read “consistent with principles of federalism inherent in our constitutional structure”Footnote 3 – illustrates one of the constraints the United States faces in giving domestic effect to detailed multilateral treaties.
More broadly, the decision highlighted several other trends in contemporary treaty practice: the increasing complexity of multilateral treaties generated in the international community, the resulting challenges to effective domestic compliance in the United States, and – most significantly for purposes of this volume – a growing reliance on implementing legislation by the United States to give effect to its international obligations.
The Court’s earlier holding in Medellin v. TexasFootnote 4 reflected a strong doctrinal inclination towards a “dualist” approach to treaties (as well as decisions of international courts), placing it squarely at odds with the unmistakable support for self-execution reflected in the Restatement (Third) Foreign Relations Law, as Professor Wuerth demonstrates in Chapter 4. This chapter surveys U.S. treaty practice since the publication of the Third Restatement in 1986 to determine whether the Executive and legislative Congressional branches today share the Restatement’s monist inclinations. It is clear that they do not.
In recent U.S. practice, very few treaties have been “self-executing” in the sense of being directly applicable as (or displacing existing) U.S. law. Nearly all have been legislatively implemented. It is difficult, however, to discern consistent patterns of legislative implementation.
I. The Issue of Implementation
The topic of legislative implementation has been largely overlooked (or at least under-explored) in the continuing academic debates over when treaties are (or are not) “self-executing” and whether the treaty power can effectively expand Congress’ authority to enact statutes.Footnote 5 That should not surprise. Over the course of its history, the United States has become party to a vast number of treaties (estimated to exceed 10,000), and yet, in the absence of a comprehensive database, there is no simple way to determine which treaties have been implemented legislatively and which have not. Each treaty needs to be researched individually.Footnote 6
This chapter aims to contribute to the discussion by reviewing: (i) when implementing legislation has been deemed to be required, (ii) what kind of legislation has been enacted, and (iii) what trends can be identified in the practice of legislative implementation. Adopting the topical approach of the authors of the Third Restatement, the chapter focuses on a selection of treaties by categories, rather than an exhaustive survey. In other words, rather than simply asking whether Congressional implementation of treaties has increased since the 1980s, the chapter inquires what the specific practice has been in a number of substantive categories in order to discover whether any variations in approach can be identified.
Two notes of caution. First, this chapter does not address whether, in implementing a treaty, Congress can exercise greater legislative authority than it would be able to do in the absence of a treaty. This much-debated issue, familiar to all who have pondered the meaning of the Supreme Court’s 1920 decision in Missouri v. Holland,Footnote 7 was deftly avoided in Bond but is discussed by Professor McGuiness in Chapter 5 of this volume.
Second, this chapter does not engage in the debate over whether some treaties are, by their very nature, “self-executing” while others are not.Footnote 8 Treaties in the former category are sometimes said intrinsically to be directly applicable in U.S. courts as federal law without need of legislative implementation, while those in the latter category must always be implemented legislatively.Footnote 9 In my view, this a priori approach is at best uninformative and confusing, and more importantly inconsistent with actual practice. As Professor Wuerth observes, a treaty is generally described as self-executing if it is deemed not to require implementing legislation and as non-self-executing if it does.Footnote 10 The term itself thus offers no guidance about when a particular treaty does or should fall into one category or the other. Rather, the distinction is a law-making one, properly made by the political branches.
In recent U.S. practice, the determination whether to implement a given treaty by legislation has generally been made when the president transmits the treaty to the Senate for advice and consent to ratification. If the Executive branch considers that a given treaty must (or should) be given effect in domestic law by implementing legislation, it will so indicate to the Senate and will frequently send a proposed bill at the same time the treaty is considered.Footnote 11 In such cases, ratification is normally deferred until the necessary legislation has been enacted in order to ensure that the United States has the ability to comply with its international obligations when the treaty comes into force for it.
Historically, however, the president and the Senate (the constitutional “treaty-makers”) have not always followed this practice. As a result, the matter has occasionally had to be decided by the judiciary after ratification— – in litigation, for example, when one party challenges the direct application of the treaty in the absence of implementing legislation or, when legislation has been enacted, the interpretation or constitutionality of that legislation.Footnote 12 Since the U.S. Supreme Court’s decision in Medellin, however, both the Executive branch and the Senate Foreign Relations Committee have taken pains to specify, at the “advice and consent” stage, whether or not the treaty requires new implementing legislation.Footnote 13
For present purposes, we can therefore leave aside the largely theoretical debate about whether some (or all) treaties are (or should be) presumptively self-executing.Footnote 14 Instead, this chapter aims to survey recent instances when implementing legislation has in fact been considered necessary (or not), to discern possible patterns of practice, and to suggest overall trends and reasons for those trends.Footnote 15
What the current investigation demonstrates is that, for the United States, legislative implementation of multilateral treaties has clearly become the predominant practice. In fact, since the publication of the Third Restatement on the Foreign Relations Law of the United States, very few multilateral treaties can accurately be described as self-executing. Almost all treaties denominated “self-executing” have been bilateral but have actually rested on, and been effectively implemented by, existing legislation. Genuinely self-executing treaties (i.e., those that stand by themselves as directly applicable federal law and are not otherwise legislatively implemented) are unquestionably the rare exceptions.
At the same time, almost no treaties (whether bilateral or multilateral) are purely non-self-executing in the sense that they are not given effect by some aspect of U.S. law.Footnote 16 In short, almost all treaties (bilateral or multilateral) are in fact substantively implemented by positive legislative enactment of one type or another.
In consequence, the traditional distinction between treaties that are self-executing and those that are not appears outmoded and to a degree misleading. One might more accurately speak of several distinct categories:
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(i) treaties that are not themselves directly effective as U.S. law (“non-self-executing”), which include those
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(a) that have no effect in domestic law (such as some disarmament and military cooperation agreements),
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(b) for which an adequate legislative basis already exists in U.S. law (sometimes described as “pre-implemented”), and
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(c) for which new legislation is required prior to ratification in order to assure U.S. compliance;
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(ii) treaties that connect to existing legislation by making technical (often country-specific) adjustments to that legislation (such as bilateral tax and extradition treaties); and
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(iii) a relatively small number of treaties that operate alone as U.S. law without regard to any implementing legislation.
Although treaties in the second and third categories are often combined for descriptive purposes, they operate quite differently; and only those in the last group can truly be considered “self-executing” in the sense the term is used in the Third Restatement and by the U.S. Supreme Court.
Regarding types of legislative implementation, it is difficult to discern any clear patterns in U.S. practice. Determining the form and content of that legislation appears to be ad hoc, reflecting the specific treaty requirements, the nature and content of existing legislation and relevant decisional law, and the prevailing practices in the relevant substantive area. Some representative approaches, however, are identified below, as are some suggestions for greater institutionalization of how these issues are handled within the Executive branch.
What might explain the strong current preference of the political branches for legislative implementation of treaties? One might ascribe it in part to a protective (even parochial) view of the national legislature, in order to maintain “democratic” control of domestic law-making (meaning, for some, a clear disinclination to change the law solely through the treaty power). A more discerning assumption could be that modern multilateral treaties, by virtue of their complexity and level of detail, pose more difficult problems than bilateral agreements for U.S. implementation, especially in view of the contemporary concepts of limited federal authority and the impact of the Tenth Amendment (or, to use the Court’s formulation in Bond, “‘principles of federalism”’Footnote 17). A third perspective, for which there appears to be substantial supporting evidence, is that treaties today rarely write on a domestic tabula rasa but almost always address issues on which domestic law and legislation already exists, so that implementation entails adjustment and adaptation, rather than de novo enactment.
II. Trends in U.S. Treaty- Making
In the decades after the United States was founded, treaties were comparatively rare, almost always bilateral, and far more limited in purpose and scope than today.Footnote 18 As Paul Dubinsky shows in Chapter 3, for much of the nineteenth19th century, treaties were reciprocal undertakings between two states, and many aspects of treaty law were treated as a subset of the private law of contracts. Most treaties served to end wars, settle boundaries, resolve international claims, establish friendly relations, secure trade relations, and establish obligations under which one government undertook, within its borders, to protect the citizens and interests of the other country.Footnote 19 In the absence of international organizations or regional structures, such agreements were of course a staple component of foreign relations. Not surprisingly, most did not require domestic implementation.Footnote 20
As the world grew more complicated and the role of United States in the world matured, the pace of treaty-making increased, especially following World War II. In the fifty years between 1889 and 1939, the United States concluded only 524 Article II treatiesFootnote 21 (or on average, about 11 per year between 1930 and 1945).Footnote 22 By comparison, during the 53 years between 1947 and 2000, the U.S. Senate gave its advice and consent to 796 treatiesFootnote 23 (averaging, 16.5 treaties per year between the years 1946 and 2001).Footnote 24
A defining characteristic of post–World War II international law has been an extraordinary growth in the number, scope, and detail of multilateral conventions. The cause is no mystery. It is largely a function of the creation of international organizations created and empowered to address a wide array of issues (from criminal law, transportation, communications and culture, to environment, trade, health, labor law, and human rights) in the interests of the global community. The extent to which conventional international law today effectively “legislates” would simply astonish the Founding Fathers.
Based on information from the Library of Congress’ Treaty Documents webpage, over the past forty years, the number of multilateral treaties under consideration by the Senate Foreign Relations Committee has significantly exceeded the number of bilaterals.Footnote 25 Virtually all of the bilaterals have been denominated “self-executing,” while the vast majority of the multilaterals have been “non-self-executing” and resting on existing or proposed legislation.Footnote 26
Recently, the overall pace of U.S. treaty-making has decreased sharply. According to data available on the Library of Congress’ website, the Senate approved 182 resolutions of advice and consent during the 99th through the 106th Congresses (1985–2000) or about 11.4 per year, and 108 resolutions of advice and consent during the 107th to the 110th Congresses (2001–2008), or about 15.5 per year. By comparison, in the 111th through 114th Congresses (2009–2015), the number of approvals had fallen to 13 (2.2 per year).Footnote 27 The last group (2009–2015) included six multilaterals; the first (1985–2000) more than fifty. The Senate, of course, does not itself set the pace of treaty submissions; the Administrations of George W. Bush and Barack Obama have submitted far fewer treaties to the Senate than previous presidents.Footnote 28
III. The Approach of the Restatement (THIRD)
The effort to articulate objective criteria regarding the various modes of U.S. treaty implementation has been undertaken before, resting largely on existing precedent.Footnote 29 Perhaps the most authoritative statement to date was set out by the authors of the Third Restatement based on their review of historical practice over the previous 200 years.Footnote 30
The Third Restatement leaned unmistakably in favor of self-execution. Reporters’ Note 5 to section 111 confidently affirmed that:
Self-executing treaties were contemplated by the Constitution and have been common. They avoid delay in carrying out the obligations of the United States. They eliminate the need for participation by the House of Representatives (which the Framers of the Constitution had excluded from the treaty process), and for going to the Senate a second time for implementing legislation after the Senate had already consented to the treaty by two-thirds vote.Footnote 31
While the Reporters were staunch “internationalists” of monist inclinations, the approach they adopted in fact reflected a functionally and textually oriented view. Reporters’ Note 5 took the position that treaties are self-executing, so that no implementing legislation is required or customarily enacted, when they “can be readily given effect by executive or judicial bodies, federal or State, without further legislation… unless a contrary intention is manifest.”Footnote 32 Thus, “[o]bligations not to act, or to act only subject to limitations, are generally self-executing.”Footnote 33 Finally, in the view of Third Restatement, treaties are presumptively self-executing when they confer “rights on foreign nationals, especially in matters ordinarily governed by State law,” for example in provisions in treaties of friendship, commerce, and navigation.Footnote 34
This view likely reflected the fact that historically, most U.S. treaties had in fact been self-executing, and that practice may well have been consistent with the Founders’ expectations. No doubt it was also faithful to the Reporters’ belief that self-execution offers a simpler, faster, and more reliable method of ensuring U.S. compliance with treaty obligations.
At the same time, the Reporters did recognize the possibility that some treaties might not be adopted on that basis. Thus, section 111(3) characterized non-self-executing treaties as an “exception” to the general rule that “[c]ourts in the United States are bound to give effect to international law and to international agreements of the United States.”Footnote 35 More to the current point, section 111(4) (taken together with the associated Comments and Reporters’ Notes) suggested that U.S. practice reflects several principles for determining when implementing legislation is or may be required. In particular, it implied that legislative execution is mandatory: (1) when by its terms the agreement itself so specifies;Footnote 36 (2) when the Senate or the Congress so provides;Footnote 37 and (3) when the Constitution so requires.Footnote 38 These conclusions bear careful analysis.
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(1) In fact, the first situation (treaty specification) has seldom arisen in U.S. practice, before or after enactment of the Third Restatement.Footnote 39 At the international level, the ordinary practice, of course, is to leave the modalities of implementation to each state party in accordance with its own internal law. Given the wide variations in practice around the world, it would be very difficult (and likely objectionable in the multilateral context) for the treaty negotiators to specify a particular mode of implementation for all states party to the treaty. In some domestic legal systems, all treaties are directly enforceable; in others, none are; in still others – like the United States – it depends.Footnote 40 In consequence, the treaties themselves almost never address the issue.
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(2) The second case (decision by domestic treaty-makers) is surely the most common in U.S. practice and actually reflects prevailing contemporary practice. It is entirely proper for either the president or the Senate to propose that implementation of a particular treaty should be accomplished by way of legislation. When and why they make that determination, of course, is the open question.
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(3) The third circumstance (constitutional requirement) has been the subject of differing interpretations over a long expanse of time and actually generated conflicting points of view within the text of the Third Restatement itself. The clearest statement is found in Comment (i) to Section 111, which asserts that “[a]n international agreement cannot take effect as domestic law without implementation by Congress if the agreement would achieve what lies within the exclusive law-making power of Congress under the Constitution.”Footnote 41 The difficulty has been in knowing which treaties fall into this category.
Today it appears to be accepted, as a prudential matter if not as a clear constitutional imperative, that no international agreement requiring the expenditure of money by the U.S. Government should be concluded without prior Congressional approval.Footnote 42 Constitutionally, of course, appropriations are made by legislation originating in the House of Representatives.Footnote 43 Whether or not the treaty power might also be a basis for authorizing if not appropriating funds (as the Third Restatement seems to suggestFootnote 44), there is a very strong and entirely understandable reluctance on the part of the Executive branch to assume international obligations for which the necessary legislative authority might not be forthcoming.Footnote 45
Perhaps as a result of the debate over the Jay Treaty, the rule against authorization-by-treaty appears to have become the accepted view in the early years of the Republic.Footnote 46 In 1803, for example, president Jefferson consulted with the House prior to opening the negotiations with France (which ultimately led to the “Louisiana Purchase”) and negotiations with Spain (for the purchase of Florida).Footnote 47 This view is not without its critics, however. In his 1902 survey, Samuel Crandall sided against such a large role for the House of Representatives exercised through the medium of implementing legislation:
To admit the necessity of the concurrence of the House in all such treaties [those requiring an appropriation] is to admit that body to an agency in the making of a large proportion of treaties concluded, and deny the efficacy of the treaty-making power as organized in the Constitution… If the concurrence of the House is necessary to the validity of the stipulation, its action should precede the final ratification; for the execution of a treaty cannot be with safety begun on our part, or requested by the other contracting power, if its validity is still dependent upon the action of an independent legislative body.Footnote 48
Whether this proposition can be generalized to a principle that some treaties (or treaty provisions) are “constitutionally” non-self-executing (meaning that in all cases they require implementing legislation) is open to significant question. It is certainly unclear which subjects, beyond appropriations, might fall within that category. The Third Restatement did offer some possible examples: bringing the United States “into a state of war,” creating an international crime (e.g., genocide), requiring punishment of certain actions (e.g., hijacking), or imposing a new tax or a new tariff (since under Article I, Section 7, “all bills for raising Revenue shall originate in the House of Representatives”).Footnote 49 Yet Reporters’ Note 6 unmistakably retreated from this position, stating explicitly that “[t]here is no definitive authority for the rule set forth in Comment i that agreements on some subjects cannot be self-executing … That a subject is within the legislative power of Congress does not preclude a treaty on the same subject … No particular clause of the Constitution conferring power on the Congress states or clearly implies that the power can be exercised only by Congress and not by treaty” (meaning, of course, a self-executing treaty).Footnote 50
Reporters’ Note 5 suggested a fourth category when it referred (without detailed discussion) to judicial decisions holding treaties to be non-self-executing when they concern industrial property and conveyance of land to Indian nations. Still another category seems to be identified when Reporters’ Note 5 states that agreements are more likely to be found non-self-executing when they affect an area in which “Congress has already regulated extensively.”Footnote 51
The main difficulty with the approach of the Third Restatement is that it assumes all treaties (and therefore any particular treaty) must be either self-executing or else implemented by legislation or, turned around, that treaties not affirmatively implemented legislatively are therefore self-executing. Appealing as this binary approach might be, the Reporters in fact recognized an intermediate category: treaties that are neither self-executing nor legislatively implemented at the time of ratification but with which existing law is compliant. Comment h to section 111 noted that “[t]here can, of course, be instances in which the United States Constitution, or previously enacted legislation, will be fully adequate to give effect to an apparently non-self-executing international agreement, thus obviating the need of adopting new legislation to implement it.”Footnote 52 In current parlance, these would be denominated “preimplemented” treaties.
In point of fact, even before Medellin, it seems clear that the pro-self-executing Restatement view had not found much support in the judiciary. While references to Comment h have not been uncommon (typically for explication of the self-execution/non-self-execution distinction),Footnote 53 the preference for self-execution expressed in Reporters’ Note 5 has seldom been cited by any court.Footnote 54 In practice, this seems to have led to a preference against self-execution, as courts, relying on The Head Money Cases,Footnote 55 moved toward a strong presumption against such private rights (sometimes even demanding express language to overcome it).Footnote 56 This presumption is sometimes grounded in a citation to Third Restatement § 907, comment a, which states “[i]nternational agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private cause of action in domestic courts …”Footnote 57
In practice, of course, not all treaties are either legislatively implemented or self-executing, and in fact some have fallen into the intermediate (“neither/nor”) group contemplated by the Third Restatement. A recent example is the 2014 UN Convention on Transparency in Treaty-Based Investor-State Arbitration, which was transmitted to the Senate on the basis that it would not be self-executing and would not require any implementing legislation.Footnote 58
IV Treaties by Category
In the debate over self-execution vs. non-self-execution, the discussion often proceeds on the basis that certain categories of treaties have traditionally not required implementing legislation of any kind. Treaties in some substantive areas of the law are often said to be presumptively self-executing, including criminal law treaties (in particular those relating to extradition and mutual legal assistance), tax treaties, treaties of amity or friendship, commerce, and navigation (FCN), civil judicial assistance treaties (such as the Hague Service and Evidence Conventions), and commercial law treaties.Footnote 59
To test that proposition, this chapter looks at recent U.S. practice in these and some other substantive areas in an effort to identify patterns of execution and to identify particular types of implementing legislation. This necessarily limited sampling (organized by topic category) suggests some overall contours of the field.
A Extradition and Mutual Legal Assistance Treaties
Extradition and mutual legal assistance are procedural mechanisms for the transfer of individuals and evidence across national borders for purposes of criminal prosecution. Most extradition and mutual legal assistance treaties are bilateral, and they are among the most numerous to be considered by the Senate Foreign Relations Committee in recent decades. Moreover, they are routinely denominated as “self-executing.”Footnote 60
Upon closer consideration, however, it becomes apparent that in fact these treaties do not function as self-contained stand-alone instruments but instead rely directly on existing federal statutory and decisional law developed over many decades. Indeed, the primary purpose of these treaties is to make the necessary technical adjustments so that the foreign legal system in question can connect to and function effectively with the existing U.S. legislative structure. In effect, these treaties serve as “connectors” or “adapter plugs” enabling a workable bilateral relationship between the United States and various foreign legal systems while obviating the need for a significant number of country-specific statutory amendments.
As the Senate Foreign Relations Committee noted a few years ago in giving advice and consent to ratification of the extradition treaty with the European Union as well as twenty-seven related bilateral extradition treaties:
The legal procedures for extradition are governed by both federal statute and self-executing treaties. Subject to a contrary treaty provision, existing federal law implements aspects of these treaties. See 18 U.S.C. §§ 3181 to 3196. No additional legislation is needed for the United States to fulfill its obligations under these treaties.Footnote 61
Similar statements are also made with respect to mutual legal assistance treaties. The Senate Foreign Relations Committee said, for example, regarding the mutual legal assistance treaties with the European Union and its member states: “These treaties, which are self-executing, will be implemented by the United States in conjunction with applicable federal statutes, including 18 [sic] U.S.C. § 1782. No additional legislation is needed for the United States to fulfill its obligations under these treaties.”Footnote 62
Again, the reason is simple: national criminal justice systems around the world often differ significantly in the details of their procedural operation and substantive content. The point of bilateral extradition and mutual legal assistance treaties is to establish functional arrangements for bilateral cooperation by overcoming specific obstacles and inconsistencies on the basis of negotiated arrangements. No single formula can possibly fit every situation. At the same time, it is impractical to adopt separate legislative provisions for each bilateral arrangement. Hence, the “self-executing” aspect of the treaties allows them to establish a functional bridge between the general legislation and the particular circumstances of the negotiated bilateral arrangement. The treaties rest on, and provide supplemental provisions for, existing legislation; without such legislation, they could not function.Footnote 63
B Criminal Law
By distinction, in U.S. practice, international treaties adopting substantive criminal law provisions are typically not self-executing but have instead been implemented by the adoption of new legislation. In fact, such treaties themselves generally require states party to take whatever domestic steps are necessary in order to be able to prosecute the specific crimes articulated in the treaties. For example, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which defines the crime of genocide, also directs the contracting parties to adopt “necessary legislation to give effect to the provisions of the Convention and, in particular, to provide effective penalties for persons guilty of genocide.”Footnote 64 Similar provisions can be found in many international criminal law conventions.
It is generally accepted today that in U.S. law, criminal offenses must be affirmatively enacted.Footnote 65 For federal purposes, the Congress possesses the exclusive power to define federal crimes. In the case of the Genocide Convention, therefore, the federal criminal code was amended to include the crime of genocide in accordance with the Convention definition.Footnote 66 Section 1091 of Title 18 incorporates the Convention’s definition of genocide (as well as incitement, attempt, and conspiracy to commit genocide) and establishes the jurisdictional basis for federal prosecutions of those crimes (inter alia, when the offense is committed, in whole or in part, in the United States, or when committed by a U.S. national or permanent resident).
As reflected in Bond, federalism can be an important consideration in this area. In the U.S. system, the general “police power” rests with the individual states of the Union, and the ability of the federal legislature to adopt criminal law is limited (at least in theory) by its enumerated powers under the Constitution. Where existing state law is adequate to the treaty’s requirements, there will be reluctance to adopt new federal law or procedures to implement the treaty. In the case of the Genocide Convention, this sensitivity was reflected in 18 U.S.C. § 1092, which provides that nothing in the implementing legislation for the Convention “shall be construed as precluding the application of State or local laws to the conduct proscribed by this chapter, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding.”
On occasion, federal interests will take precedence. For example, the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, which requires states parties inter alia to criminalize any “murder, kidnapping or other attack upon the person or liberty of an internationally protected person, or any violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty.”Footnote 67 In almost all instances, such crimes would violate applicable state or local law. Because of the importance of these issues to the national government, however, federal law was amended to make it a federal crime to assault, strike, wound, imprison, or “offer violence to” a foreign official, official guest, or internationally protected person covered by the Convention.Footnote 68
Implementing statutory enactments may also be found for the 1979 Convention Against the Taking of Hostages,Footnote 69 the 1997 U.N. Convention for the Suppression of Terrorist Bombings,Footnote 70 and the 1999 U.N. Convention for the Suppression of the Financing of Terrorism.Footnote 71 The 1992 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction (the treaty at issue in Bond)Footnote 72 was implemented through the Chemical Weapons Convention Implementation Act of 1998,Footnote 73 a long and detailed statute. Section 201 of that Act specifies the civil and criminal penalties for violation of the treaty’s requirements. The criminal provisions were codified at 18 U.S.C. §§ 229–229(f). The specific provision at issue in Mrs. Bond’s case, 18 U.S.C. § 229(a)(1), makes it unlawful for any person knowingly to “possess, or use … any chemical weapon.”Footnote 74
Not every substantive criminal law treaty to which the United States is a party has been directly implemented through the adoption of a new federal statute. For example, the 2003 U.N. Convention against Corruption was the first multilateral treaty to target corruption on a global basis.Footnote 75 Among its many provisions are those obligating states party to criminalize certain forms of corruption-related misconduct: bribery of national public officials, bribery of foreign public officials or officials of public international organizations, embezzlement by public officials, and certain offenses related to money laundering and obstruction of justice. It also obligates parties to adopt measures to enable confiscation of proceeds of (or property of equivalent value to the proceeds) used in or destined for use in offenses established under the Convention.
Because the second Administration of President George W. Bush regarded the Convention’s provisions (taking into account its proposed reservations) as consonant with existing U.S. law, it determined that no implementing legislation was necessary, and accordingly the treaty as a whole was considered non-self-executing.Footnote 76 However, giving full effect to the provisions in articles 44 and 46 regarding extradition and mutual legal assistance required them to be “self-executing” in order to connect them effectively to existing law. For this reason, U.S. ratification was subject to the following declaration:
The United States declares that the provisions of the Convention (with the exception of Articles 44 and 46) are non-self-executing. None of the provisions of the Convention creates a private right of action. Article 44 and Article 46 of the Convention contain detailed provisions on extradition and legal assistance that would be considered self-executing in the context of normal bilateral extradition practice. It is therefore appropriate to except those provisions from the general understanding that the provisions of the Convention are non-self-executing.Footnote 77
The same approach was proposed by the Executive branch in connection with the 2000 U.N. Convention against Transnational Organized Crime.Footnote 78 Because the requirements of that treaty could be carried out on the basis of existing legislation, the president proposed to declare the provisions of the Convention (with the exception of Articles 16 and 18) to be non-self-executing. Those two articles contain detailed provisions on extradition and legal assistance and, in a bilateral context, would normally be considered self-executing; the president therefore considered it appropriate to except those provisions from the general understanding that the provisions of the Convention are non-self-executing.
The Senate concurred in this view, noting that articles 16 and 18 would be self-executing and “implemented by the United States in conjunction with applicable federal statutes.”Footnote 79 It further stated that “[a]n existing body of federal and state law will suffice” to implement the Convention. Accordingly, it gave advice and consent to ratification subject, inter alia, to a declaration that stated in part that “current United States law … fulfills the obligations of the Convention for the United States” and accordingly that the U.S. “does not intend to enact new legislation” to fulfill those obligations.Footnote 80
Another variant is offered by the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,Footnote 81 article 2(1) of which requires each state party to take “effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” When the treaty was submitted for advice and consent, the Reagan Administration did not consider implementing legislation necessary since existing federal and state law already provided grounds for prosecuting anyone accused of committing an act within the scope of the term “torture” as defined by the Convention. When the Senate gave advice and consent in 1994, it agreed, declaring that “the provisions of Articles 1 through 16 of the Convention are not self-executing” but were in fact implemented by existing federal and state law. To this extent, the Torture Convention was in effect “preimplemented.”Footnote 82
At the same time, article 8 requires Convention offences to be extraditable for purposes of any extradition treaty existing between states parties. Article 5 further requires each state party to “take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8.” Because existing law would not have permitted U.S. prosecution of a non-U.S. offender alleged to have committed a covered offense abroad, a new provision was added to the federal criminal code to permit the United States to comply with its article 8 obligations. That provision made it a federal crime for anyone, acting outside the United States, to commit (or attempt to commit) torture as defined by the Convention.Footnote 83 The federal statute may be applied whenever the alleged offender is a national of the United States acting anywhere in the world and present anywhere or is an alien physically present in the United States.Footnote 84
While perhaps not strictly considered a criminal law treaty, the 2005 UNESCO Convention Against Doping in SportFootnote 85 offers yet another example of a treaty resting for its implementation on preexisting U.S. law. In recommending that the Senate give its advice and consent to ratification, the Senate Foreign Relations Committee said (without specifying whether the treaty was self-executing or not) that:
U.S. ratification of the Convention would not require any changes to U.S. law, because the Convention’s provisions are consistent with current U.S. law and practice, including the Controlled Substances Act, the Dietary Health Education Act of 1994, and the Federal Food, Drug, and Cosmetic Act. As a result, no additional implementing legislation will be necessary, should the United States become a party to the Convention.Footnote 86
Overall, the practice in this area is clear: when a treaty requires the United States to prosecute a given offense not already criminalized by existing federal or state law, the adoption of new legislation has been considered necessary prior to ratification. When existing criminal law (state or federal) is adequate to the treaty’s requirements, no new legislation is adopted, yet the treaty is nonetheless considered non-self-executing. Thus, the Genocide Convention required new federal legislation because of the specific substantive elements set forth in the treaty, while by distinction, existing federal and state law was considered adequate to meet the requirements of the Torture Convention. Clearly, while considerations of federalism form part of the analysis, the overriding issue is to assure U.S. compliance with its treaty obligations.
C Commercial and Securities Law
The United States is party to a comparatively small number of treaties (other than FCN’s) dealing with commercial and securities law. Here, a predilection for self-execution – dating back to the time of the Third Restatement – is evident. Yet even within this limited set, the practice has varied.
For example, the 1980 U.N. Convention on the International Sale of Goods (CISG)Footnote 87 was ratified by the United States on December 11, 1986 and became effective on January 1, 1988. This convention aims to provide a modern, uniform and fair regime for the formation of contracts for the international sale of goods and to promote certainty in cross-border business-to-business dealings. Even though the treaty had broad support in the U.S. business community, its ratification proved controversial for several reasons, inter alia because of inconsistencies with the relevant parts of the Uniform Commercial Code and reluctance to “federalize” commercial law.Footnote 88 Nonetheless, it was ratified on a self-executing basis and, to the extent it applies in a given commercial context, therefore overrides inconsistent state law, including UCC Article 2.
In 2004, the United States ratified the Convention on International Interests in Mobile Equipment (known as the “Cape Town Convention”) and its associated Protocol on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment.Footnote 89 Together, the Convention and Protocol establish an international legal framework for the creation, priority, and enforcement of security and leasing interests in the creation of a worldwide International Registry where interests covered by the Convention can be registered.Footnote 90 The Convention adopts “asset-based financing” rules already in place in the United States, enhancing the availability of capital market financing for air carriers at lower cost.
Because the finance provisions of the Convention and Protocol were deemed consistent with UCC Article 9, no implementing legislation was required, except for technical amendments to certain authorities relating to the filing of interests in registries through the Federal Aviation Administration. Otherwise, the UCC continues to apply, and no changes to it were required. The necessary technical amendments were adopted in the Cape Town Treaty Implementation Act of 2004Footnote 91 to make conforming changes to provisions of domestic law governing the registration of aircraft and the recordation of instruments.
By contrast, the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary (2006) was recently ratified on a self-executing basis. It addresses the choice-of-law problem that often arises when interests in securities rapidly move electronically through intermediaries in high volume, across national borders, and through different legal systems. As the president’s Transmittal indicated, “existing U.S. laws, including the Securities and Exchange Act of 1934, already provide to U.S. Government regulatory and supervisory authorities … [the necessary] authority to act in areas covered by the Convention.”Footnote 92
The recent transmittals of three other conventions in this area illustrate the diversity of approaches necessary to implement U.S. treaty obligations effectively and with due regard to the federal structure. The U.N. Convention on the Use of Electronic Communications in International Contracts sets forth uniform rules to facilitate electronic communications in international business by enhancing legal certainty and commercial predictability.Footnote 93 In the United States, those rules are codified in both federal and state law.Footnote 94 Although the treaty’s provisions are substantially similar to existing U.S. law, the Obama Administration stated its intent to propose separate implementing legislation.Footnote 95 Similarly, that Administration considered that implementing legislation would be required for the U.N. Convention on Independent Guarantees and Stand-by Letters of Credit,Footnote 96 which is substantively similar to (but not exactly the same as) the analogous provisions of the Uniform Commercial Code.Footnote 97 By contrast, the U.N. Convention on the Assignment of Receivables in International Trade,Footnote 98 which contains uniform rules to facilitate modern receivables financing practices, was proposed for ratification on a self-executing basis since its provisions “do not differ in any significant respect from those contained in existing U.S. law” (meaning article 9 of the Uniform Commercial Code).Footnote 99
Somewhat paradoxically, the limited role of the federal government in the broad field of transactional commercial law appears to push in favor of self-execution (despite federalism concerns) because of the likely challenges of getting Congress to adopt legislation. At the same time, in the securities field, where federal authority is clear (but not exclusive), there is an apparent disinclination to intrude into areas considered state purviews.
D. Intellectual Property
In the United States, the intellectual property field is legislatively regulated, primarily by federal statutes but also by state trade secret laws. It is hardly surprising, therefore, that (as the Third Restatement recognized) the implementation of international treaties in the areas of patents, trademarks, and copyright has taken place through federal statutory enactments.
In 2013, the United States ratified the 2000 Patent Law Treaty (promulgated by the World Intellectual Property Organizations or WIPO). In recommending that advice and consent be given to this convention, the Senate Foreign Relations Committee stated clearly:
Implementing legislation is required for this Treaty. It is expected, therefore, that the United States will not deposit its instrument of ratification until this legislative process is complete, so as to ensure that the United States is capable of complying with its obligations under the Treaty. Specifically, Title 35 of the United States Code must be amended in order to comply with the Patent Law Treaty. Implementing legislation will focus mainly on amendments relating to the patent application filing date; relief in respect of time limits and reinstatement of rights due to an unintentional abandonment or delay; and restoration of priority rights due to an unintentionally delayed filing of a subsequent application. The Department of Commerce has submitted a draft bill to Congress entitled the “Patent Law Treaty Implementation Act” and it is currently under consideration by the Committees on the Judiciary of the House and Senate.Footnote 100
The necessary legislation was adopted as the Patent Law Treaties Implementation Act of 2012 (PLTIA).Footnote 101
The 1994 WIPO Trademark Law Treaty, which the United States ratified in 1998, was given effect by the Trademark Law Treaty Implementation Act.Footnote 102 That statute amended various provisions of the Trademark Act of 1946, to bring U.S. law into conformity with the treaty.Footnote 103
Adherence by the United States to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 (the “Madrid Protocol”) was deemed not to require any substantive changes to U.S. trademark laws, but legislation was required to make necessary modifications in procedure.Footnote 104 The 1996 WIPO Copyright Treaty and the 1996 WIPO Performances and Phonograms TreatyFootnote 105 required legislation for certain provisions. The necessary provisions were adopted as part of the 1998 Digital Millennium Copyright Act.Footnote 106 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is also non-self-executing, implemented by the Uruguay Round Agreements Act.Footnote 107
Two more recent examples may be cited to the same effect: the 2012 Beijing Treaty on Audiovisual PerformancesFootnote 108 and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.Footnote 109
E Family Law
In recent years, the United States has become party to several important treaties regarding parental rights in respect of children and is considering ratification of several others. Unsurprisingly, ratification of these treaties has generated federalism concerns, because most issues of family law in the United States remain a matter of state law. In addition, to the extent they contemplate the judicial resolution of transnational family disputes (in state and federal court), these treaties require legislative implementation (addressing both jurisdictional and substantive aspects).
For example, the 1980 Hague Convention on the Civil Aspects of International Child Abduction provides an internationally agreed upon and effective method for returning a child who has been abducted by a parent from one member country to another.Footnote 110 The United States ratified the treaty in 1988.Footnote 111 The Senate Foreign Relations Committee Report (and the resolution of advice and consent to ratification) did not explicitly specify whether the treaty should be considered non-self-executing, but it was implemented by the 1988 International Child Abduction Remedies Act (“ICARA”).Footnote 112 That statute gives “[t]he courts of the States and the United States district courts … concurrent original jurisdiction of actions arising under the Convention” and authorizes a person who seeks a child’s return to file a petition in state or federal court and instructs that the court “shall decide the case in accordance with the Convention.”Footnote 113 If the child in question has been “wrongfully removed or retained within the meaning of the Convention,” the child shall be “promptly returned,” unless an exception is applicable.Footnote 114
The 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption was ratified by the United States in 1998Footnote 115 on a non-self-executing basisFootnote 116 and implemented by the Intercountry Adoption Act of 2000.Footnote 117 That statute established an accreditation regime for persons in the United States who offer or provide adoption services in connection with a Convention adoption. Additional provisions are found in the Intercountry Adoption Universal Accreditation Act of 2012.Footnote 118 Federal regulations regarding the accreditation of agencies and approval of persons have also been adopted.Footnote 119
In 2007, the United States signed the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance,Footnote 120 and the Senate Foreign Relations Committee reported the treaty favorably in 2010Footnote 121 on the basis that it would not be self-executing. This treaty addresses issues of domestic enforcement of foreign orders of support, and its obligations are accordingly addressed to governmental agencies as well as the courts. Although the Convention is considered largely consistent with current U.S. federal and state law and practice, implementation is being effected by adoption of an amended version of the Uniform Interstate Family Support Act (UIFSA)Footnote 122 by the individual states and other relevant jurisdictions, as well as through conforming amendments to Title IV of the Social Security Act, through which federal funding is supplied to state adoption agencies.Footnote 123
F Arbitration/Dispute Settlement
A somewhat different mode of implementation was employed for one of the most important treaties from the perspective of private practitioners involved in transnational litigation and commercial dispute settlement, namely, the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, commonly referred to as the “New York Convention.”Footnote 124 In this instance, implementation was accomplished neither by self-execution nor the adoption of detailed legislation but rather through a hybrid mechanism: the Convention was itself enacted into federal law as Chapter Two of the Federal Arbitration Act.Footnote 125
Ratification of this convention proved controversial from a federalism perspective, despite the fact that long-standing federal law (adopted in 1925) had endorsed arbitration as a method of dispute settlement and granted federal courts jurisdiction to enforce domestic arbitral agreements and awards. Because the federal courts had experience in this field, and the terms of the Convention were straightforward, direct incorporation of the treaty was both practicable and a way of diminishing the federalism issues (in comparison to self-execution).
Similarly, Chapter 3 of the Federal Arbitration Act incorporated the 1975 Inter-American Convention on International Commercial Arbitration (the so-called “Panama Convention”), providing for its direct enforcement in U.S. courts in accordance with that chapter.Footnote 126
This mode of direct legislative incorporation has not been repeated in other areas. Even in the field of arbitration, direct legislative incorporation was not followed in the case of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the so-called “Washington Convention”), to which the United States became a party in 1966.Footnote 127 The overall purpose of the International Center for the Settlement of Investment Disputes (ICSID) is “to provide facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States in accordance with the provisions of [the] Convention.”Footnote 128 ICSID’s jurisdiction “extend[s] to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre.”Footnote 129 Pursuant to Article 54(1) of the Convention, “[e]ach Contracting State shall recognize an award rendered pursuant to th[e] Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.”
For purposes of U.S. law, the ICSID Convention was deemed non-self-executing. Accordingly, a new section was added to the U.S. Code providing that an award of an ICSID tribunal “shall create a right arising under a treaty of the United States” and the “pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.”Footnote 130
As noted above, still a different approach was followed in respect of the 2014 UN Convention on Transparency in Treaty-Based Investor-State Arbitration, for which ratification was proposed on the basis that it would neither be self-executing nor require implementing legislation.Footnote 131
G Arms Control and Defense Cooperation
The situation with respect to arms control and defense cooperation treaties is mixed. Many have not required any implementation in domestic law. For example, the 1991 START Treaty on the reduction and limitation of strategic offensive arms (START I) was ratified in 1994 without implementing legislation or even mention of its non-self-executing status.Footnote 132 The same was true of the START II Treaty in 1993Footnote 133 as well as the Treaty between the United States of America and the Russian Federation on Strategic Offensive Reductions, signed at Moscow on May 24, 2002 (the “Moscow Treaty”),Footnote 134 neither of which was implemented legislatively. As the Third Restatement recognized, when compliance with a treaty does not rest on or entail enforcement at the domestic level, no need exists for implementation (direct or otherwise).
More recently, the 2013 Arms Trade Treaty was transmitted to the Senate in December 2016 on a non-self-executing basis because the relevant “U.S. national control systems and procedures … already met or exceed the requirements of the Treaty” and accordingly “no additional legislation or regulation is required to comply” with its provisions.Footnote 135
On the other hand, the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (“Biological Weapons Convention”), which the United States ratified in 1975, did require domestic action. It was implemented by the Biological Weapons Anti-Terrorism Act of 1989.Footnote 136 That statute made it a federal crime knowingly to develop, produce, stockpile, transfer, acquire, retain, or possess any biological agent, toxin, or delivery system for use as a weapon, or knowingly to assist a foreign state or any organization to do so. It also authorized the Attorney General, inter alia, to seek warrants authorizing the seizure of any biological agent, toxin, or delivery system that “exists by reason of” such prohibited conduct.
The 1980 Convention on the Physical Protection of Nuclear Material, to which the United States became a party in 1982,Footnote 137 requires each state party to take “appropriate steps within the framework of its national law and consistent with international law” to ensure the protection of nuclear material within its territory, on board ships and aircraft subject to its jurisdiction, and otherwise “within its territory.” It also requires states party, inter alia, to criminalize “[t]he intentional commission” of acts constituting the “receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property.” The Convention also requires states party to criminalize theft or robbery of nuclear material, embezzlement or fraudulent obtaining of nuclear material, an act constituting a demand for nuclear material by threat or use of force or by any other form of intimidation, or a threat to use nuclear material to cause death or serious injury to any person or substantial property damage.Footnote 138 For the United States, the Convention was implemented by a statute establishing the required criminal provisions and penalties.Footnote 139
The 1990 Treaty on Conventional Armed Forces in Europe (CFE), involving sixteen NATO members as well as the six Warsaw Pact states, was one of the most far-reaching and complex arms control treaties ever negotiated.Footnote 140 Among other things, it set agreed-upon troop and equipment ceilings, required the destruction of certain categories of equipment, and established mechanisms for information exchange, monitoring and oversight.Footnote 141 The United States became a party in 1991 and implemented the Convention through amendments to relevant federal law (specifically, the Arms Export Control Act and related authorities) to enable the president to transfer certain treaty-limited equipment to NATO member states.Footnote 142 Section 2 of the statute stated that “the authorities provided in this chapter shall be exercised consistent with the obligations incurred by the United States in connection with the CFE Treaty.”Footnote 143
Recently, the question of self-execution arose in connection with the bilateral Defense Trade Cooperation Treaties with the United Kingdom and Australia.Footnote 144 These agreements aimed to provide protections for U.S. defense articles and services exported to treaty partners under the Treaty through application of foreign law rather than through revisions to the U.S. export control regime. In an effort to circumvent certain provisions of the Arms Export Control Act and related ITAR regulations, both treaties included preambular “understandings” that they would be “self-executing in the United States.” The Foreign Relations Committee objected, finding this statement to be “unprecedented in U.S. treaties,” “problematic,” and “substantively suspect in that it purported to rule out the use of legislation to make clear the federal government’s authority to impose criminal or civil penalties for violations of the treaties, their implementing arrangements, and regulations issued to implement the treaties.”Footnote 145 In response, the Senate’s resolutions of advice and consent contained contrary declarations, making clear that the treaties are “not self-executing in the United States, notwithstanding the statement in the preamble to the contrary.”Footnote 146
H Human Rights Treaties
Over the past twenty-five years, the United States has ratified a number of international human rights treaties (beginning with the Genocide and Torture Conventions, discussed above by reason of their criminal provisions). Because existing law has been considered adequate to the requirements of the treaties (as accepted by the United States), they have generally been denominated as non-self-executing and, at the same time, as requiring no new legislation.Footnote 147
For example, in 1992, the United States became a party to the International Covenant on Civil and Political Rights.Footnote 148 In giving advice and consent to ratification, the Senate Foreign Relations Committee agreed with the Administration’s proposal that the substantive provisions of the Covenant should be considered “non-self-executing.”Footnote 149 As the Administration explained, no implementing legislation was necessary since existing U.S. law “generally complies with the Covenant.”Footnote 150 The “non-self-executing” declaration (virtually identical to the one taken with respect to the Torture Convention) was in part intended to signify that the Covenant would not create a cause of action in U.S. courts.Footnote 151
Similarly, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination was ratified in 2002 on a non-self-executing basis for the same reason.Footnote 152
In giving advice and consent to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,Footnote 153 the Senate Foreign Relations Committee noted that “the United States is already in a position to fulfill nearly all of the obligations of the Protocol, with one exception” (relating to jurisdiction over certain offenses committed in its territory or on board a ship or aircraft registered in the United States).Footnote 154 Accordingly, it proposed (and the Senate accepted) a declaration to the effect that the Protocol would not be self-executing (except for the provisions in Article 5, which concerned extradition for offences covered by Article 3(1)). Because “current law, including the laws of the states, adequately fulfills the obligations of the Protocol,” no new legislation would be required to fulfill the U.S. obligations except for a minor change to federal law to satisfy its jurisdictional obligations regarding offenses on board U.S. ships and aircraft.Footnote 155
Regarding the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,Footnote 156 the Senate Foreign Relations Committee did not explicitly declare the treaty non-self-executing but merely observed that compliance with the treaty would not require significant changes in U.S. practice. Accordingly, no implementing legislation was proposed.Footnote 157
In favorably reporting on the 2006 Convention on the Rights of Persons with Disabilities,Footnote 158 the Senate Foreign Relations Committee noted that the Convention is not considered self-executing and therefore its provisions “cannot be directly enforced by U.S. courts or give rise to individually enforceable rights in the United States.”Footnote 159 However, given the “comprehensive network of existing federal and state disability laws and enforcement mechanisms … [i]n the large majority of cases, existing federal and state law meets or exceeds the requirements of the Convention.”Footnote 160 Taking into account the reservations recommended in its resolution of advice and consent to address issues related to federalism and private conduct (in order to avoid altering the balance of power between the federal government and the states), no additional implementing legislation was deemed necessary with respect to the Convention.
Still another example of the preference for legislative implementation in this area is provided by the 1951 U.N. Convention on the Status of Refugees,Footnote 161 and more particularly by the 1958 Protocol to the Convention,Footnote 162 to which the United States became a party in 1980. The obligations assumed thereunder (in particular to grant asylum to an alien who meets the Convention’s definition of a “refugee”) were implemented by an appropriate amendment to the Immigration and Nationality Act.Footnote 163
I Consular Conventions
Historically, bilateral consular conventions, which generally concern the prerogatives and functions of consulates and the protection of citizens of one state party in the territory of the other, have been self-executing in U.S. practice.Footnote 164 From the earliest days of the Republic, these treaties were intended to operate directly (which is to say preemptively) at the state and local (as well as federal) levels and to ensure equal (or non-discriminatory) treatment by governmental authorities.Footnote 165 Some sixty bilateral consular conventions still remain in force for the United States. For the most part, they appear to have operated as intended even though they are generally not considered a source of rights that can be directly invoked by individuals in U.S. courts.
Following this practice, the 1963 Vienna Convention on Consular Relations was also ratified on a self-executing basis.Footnote 166 However, on several occasions over the past several years, U.S. compliance with the Convention has been challenged, in particular regarding the “consular notification and access” provisions of Article 36. Indeed, the United States has been found in breach of these obligations by the International Court of Justice because of its failure to provide consular notification rights to various foreign nationals who were subsequently convicted of murder and sentenced to death.Footnote 167
That the Treaty has often been observed in the breach by the U.S. law enforcement community, despite the fact that it is self-executing, raises significant doubt about the Third Restatement rationale for favoring direct application. Lack of compliance has not resulted from lack of attention or commitment on the part of the federal government; in fact, the Executive branch has over the years made vigorous efforts to educate law enforcement authorities at all levels about its requirements. Neither can blame be attributed mainly to the lack of a “cause of action,” since a judicial remedy would come only after a violation has occurred. More plausibly, the cause is simpler: absence of a clear and unambiguous direction to law enforcement authorities to provide the necessary notification at the time of arrest (perhaps at the same time as the Miranda warning). The remedy, therefore, could also be simple: enactment of straightforward federal (or uniform state) legislation. However, despite several efforts along these lines, no such legislation seems likely in the short run.Footnote 168
J FCN Treaties/Treaties of Amity/Bilateral Investment Treaties
Like consular conventions, bilateral treaties of amity (also called treaties of friendship, commerce, and navigation, or “FCNs” for short) generally have been considered self-executing. As the Supreme Court observed in Medellin:
Indeed, we have held that a number of the “Friendship, Commerce, and Navigation” Treaties … are self-executing – based on “the language of the[se] Treat[ies].” [Citing Sumitomo Shoji America, Inc., 457 U.S. 176 (1982); Kolovrat v. Oregon, 366 U. S. 187 (1961); and Clark v. Allen, 331 U.S. 503 (1947)] … [N]either our approach nor our cases require that a treaty provide for self-execution in so many talismanic words … Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.Footnote 169
Thus, in approving of the 2001 Protocol to the 1951 Treaty of Friendship, Commerce and Navigation with Denmark, the Senate stated: “No further implementing legislation is required for the Protocol. Current law, specifically section 101(a)(15)(E)(ii) of the Immigration and Nationality Act, suffices to implement the Protocol.”Footnote 170
The many bilateral investment treaties (“BITs”) which have replaced the Treaties of Amity appear to follow the same pattern. For example, in transmitting the 1995 Treaty between the Government of the United States of America and the Government of the Republic of Latvia Concerning the Encouragement and Reciprocal Protection of Investment (with Annex and Protocol), the president’s message did not mention either the mode of implementation or the need for implementing legislation.Footnote 171
However, in its proposed resolution of advice and consent to ratification of the Rwanda BIT, the Senate Foreign Relations Committee followed a bifurcated approach by declaring that specific articles would be considered self-executing, while the remainder of the treaty would not. It also declared that “[n]one of the provisions in this Treaty confers a private right of action.”Footnote 172
In so doing, the Committee expressed concern over whether, and how, the United States would ensure compliance with the non-self-executing provisions should it be found in breach by an arbitral panel.Footnote 173 Two of the treaty’s most important provisions are among those declared non-self-executing. The first allows investors of one party to the Treaty to bring to binding arbitration claims that the government of the other party has breached specified provisions of the Treaty.Footnote 174 The other allows the two states party to submit disputes regarding the interpretation or application of the treaty to binding arbitration.Footnote 175 Noting that, apart from the New York and Washington (ICSID) Conventions, no existing treaty or statutory scheme governs the implementation in the United States of state-to-state arbitration awards, the Committee “urge[d] the executive branch to review its approach to ensuring compliance with adverse arbitral awards arising from non-self-executing treaties (including as it relates to compliance with the ICJ judgment in the Avena case) and to identify effective means to facilitate U.S. compliance with its treaty obligations.”Footnote 176
It is noteworthy that the Committee’s concerns were not generated by the prospect of domestic litigation or an adverse decision by a U.S. court (it was careful to say, as the Administration did, that no provisions of the treaty would give rise to a private right of action) but rather the possibility that the United States might be found in violation of its treaty obligations by an international arbitral tribunal.
K International Organizations
Membership in public international organizations normally occurs by multilateral treaty and typically imposes both financial and substantive obligations on member states. When the organization will be based in the United States, specific arrangements are needed regarding the establishment and presence of the organization’s headquarters and the missions representing other member states. Such treaties are not considered self-executing, and authorization for U.S. participation, including payment of financial contributions, is given by enactment of federal statutes.
For example, the U.N. Charter was one of the first multilateral treaties entered into by the United States following World War II. It is neither self-executing nor implemented by statute. However, U.S. involvement is authorized and regulated inter alia by the U.N. Participation Act,Footnote 177 the United Nations Headquarters Agreement,Footnote 178 and the International Organizations Immunities Act (“IOIA”).Footnote 179 Similarly, the Charter of the Organization of American States is a non-self-executing treaty which has not been directly implemented by statute.Footnote 180 The Headquarters Agreement between the United States and OAS was legislatively implemented through the International Organizations Immunities Act.Footnote 181
Where existing law does not provide a sufficient basis for participation in a specific international organization, special legislation may be needed. For example, in 1954, Congress authorized U.S. participation in the North Atlantic Treaty Organization (NATO) by statute.Footnote 182 Congress also authorized the appropriation of “such amounts as may be necessary from time to time for the payment by the United States of its share of the expenses of the Organization and all necessary salaries and expenses of the United States permanent representative to the Organization” as well as for persons appointed to represent the United States in NATO’s subsidiary bodies or any multilateral organization that participates in achieving the aims of the North Atlantic Treaty.Footnote 183 It provides that the United States’ permanent representative to the North Atlantic Treaty Organization shall be appointed by the president by and with the advice and consent of the Senate and that such representative shall have the rank and status of ambassador extraordinary and plenipotentiary.Footnote 184
L Environment/Conservation/Wildlife and Fisheries
Treaties in these various categories, which have been frequently considered in the past thirty years, have been treated differently, depending on their specific provisions.
Many have required legislative implementation. One of the most significant recent instruments for achieving sustainable fisheries around the globe is the U.N. “Straddling Fish Stocks Agreement,” concluded in 1995.Footnote 185 As a management regime, it sets out new principles for the conservation of straddling and highly migratory fish stocks, including the precautionary approach, vessel monitoring systems, compatibility of conservation and management measures, transparency of activities within subregional and regional fishery management organizations, compliance of nonmember states with fishery management organizations’ measures, high seas boarding and inspection, port state measures, and data collection and sharing standards. The agreement was implemented for the United States by the Fisheries Act of 1995.Footnote 186
Similarly, the 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean,Footnote 187 designed to protect certain migratory species, was implemented through new legislation that, inter alia, established federal enforcement authority, created a process for the appointment of U.S. commissioners, and repealed a preexisting statute that had governed the subject matter domestically.Footnote 188 While the Convention simply allocates three commission seats (and one vote) to each member country, the implementing legislation adds the requirement that two commissioners be citizens of particular states (Alaska and Washington), presumably due to the regional interest in the regulated fisheries.
Other conservation and environmental protection treaties have been implemented on the basis of existing legislative authority. For example, the 1989 Montreal Protocol on Substances that Deplete the Ozone Layer,Footnote 189 designed to phase out the use of chlorofluorocarbons (CFCs) and other compounds, followed on roughly a decade of U.S. domestic statutory law in the area of ozone depletion. In submitting the treaty, the Clinton Administration deemed that preexisting Clean Air Act authority regarding ozone protection (section 157 of the 1977 amendments) provided a sufficient basis for the EPA to promulgate the regulations necessary for implementation.Footnote 190 Similarly, the 1992 U.N. Framework Convention on Climate ChangeFootnote 191 was implemented on the basis of existing statutory authority without any additional legislation.Footnote 192
By contrast, many other treaties in this category have not been implemented legislatively. For example, when the 1916 bilateral treaty with Canada on protection of migratory birds (the treaty at issue in Missouri v. Holland) was amended in 1995,Footnote 193 no new legislation was required in light of the existing provisions of the Fish and Wildlife Improvement Act of 1978.Footnote 194 The 1994 U.N. Convention to Combat Desertification,Footnote 195 intended to combat land degradation and mitigate the effects of drought on arid, semi-arid, and dry sub-humid lands particularly in Africa, is aimed primarily at governmental policy and (from the U.S. perspective) at the goals and objectives of foreign assistance programs. Accordingly, it was adopted without any implementing legislation.Footnote 196
Three wildlife and fisheries treaties were recently approved by the Senate on a non-self-executing basis (with an explicit statement that implementing legislation would be needed): the 2009 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, which established the South Pacific Regional Fisheries Management Organization (SPRFMO) to promote cooperation in conservation and management of high seas fishery resources in the South Pacific Ocean;Footnote 197 the 2012 Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, which established the North Pacific Fisheries Commission empowered to adopt and implement conservation and management measures for unregulated fish stocks in the high seas of the North Pacific Ocean;Footnote 198 and a 2007 Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries.Footnote 199
Several other conservation treaties have received advice and consent with the express understanding that implementing legislation would be required: these included an Agreement with the Russian Federation on Management of the Alaska-Chukotka Polar Bear Population;Footnote 200 an Agreement with Canada relating to Albacore Tuna Vessels;Footnote 201 and a treaty on Fisheries with Certain Pacific Island States.Footnote 202
M Tax Treaties
Bilateral tax treaties are among the most common treaties in U.S. practice. Together with extradition, mutual legal assistance, and bilateral investment treaties, they have made up nearly half of the treaties considered by the Senate in recent years. Tax treaties are typically described as “self-executing.”Footnote 203 In point of fact, however, they rest upon and are implemented through relevant provisions of existing legislation (in this case, the Internal Revenue Code).
The principal aim of these bilateral treaties is to address issues of double taxation. Because the situations in question necessarily vary from country to country, as do the particular negotiated solutions, the arrangements embodied in the treaties must be directly effective. Amending the federal tax statutes for each bilateral arrangement would not be a plausible alternative. In operation then, bilateral tax treaties function as supplements to otherwise applicable tax code provisions and regulations. For this reason, the Senate Foreign Relations Committee typically notes, in recommending advice and consent to ratification, that no legislation is necessary to implement these agreements since they build upon changes to U.S. income tax law made by the Tax Reform Act of 1986.Footnote 204
Technically, it is accurate to say, as the Senate Foreign Relations Committee did (for example) when approving the bilateral Treaty (and accompanying Protocol) with Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, that “[a]s is the case generally with income tax treaties, the Protocol is self-executing and thus does not require implementing legislation for the United States.”Footnote 205 The meaning is clear: because the Tax Code specifically recognizes the direct effect of such treaties,Footnote 206 no new legislation was required. But the bilateral treaty would not, in and of itself, provide a complete basis for resolving the issues.Footnote 207 Again, the “adapter plug” analogy is an apt description.
N Judicial Assistance Treaties
Another category of self-executing treaties are those multilateral agreements intended to assist parties in litigation with transnational elements. Although the United States (unlike many foreign countries) has no bilateral treaties regarding judicial assistance, it has long been a party to the two most important multilateral judicial assistance treaties: the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial MattersFootnote 208 and the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.Footnote 209 Both are denominated “self-executing” but build on, and supplement, existing domestic law in order to provide workable internationally agreed mechanisms of cooperation.
The Service Convention provides internationally agreed channels for transmitting requests for service of process of judicial documents from one “central authority” to another. For domestic purposes, it builds on existing rules regarding service, in particular Fed. R. Civ. P. Rule 4(f) (and the laws of individual states) and 28 U.S.C. § 1608. Like the Service Convention, the Evidence Convention establishes a Central Authority responsible for accepting and processing Letters of Request from other contracting States that seek various kinds of assistance, including the production of evidence. In specific cases, it rests on other provisions of federal law, including Fed. R. Civ. P. 28(b) and 28 U.S.C. §§ 1782–84, both of which predated the Convention.
V Types of Implementation
As this review demonstrates, the often-used binary distinction between self-executing and non-self-executing treaties offers an inadequate, even misleading, description. The majority of treaties denominated “self-executing” actually rest upon, and are effectively implemented by, existing legislation. This is true, for example, of extradition, mutual legal assistance, and tax treaties, which together constitute the vast majority of bilateral treaties denominated “self-executing.” Only a few multilateral treaties actually stand alone as directly applicable federal law in the United States (among the main examples are the Vienna Convention on Consular Relations and the CISG).Footnote 210
At the same time, it is difficult to identify treaties labeled “non-self-executing” that lack any domestic implementing basis. Very few treaties are purely non-self-executing in the sense that they are not given effect by some aspect of U.S. law. In most instances, treaties have been substantively implemented by positive legislative enactment of one type or another. In a not-insignificant number of cases, no new legislative enactments have been needed since the treaty has rested on existing legislation deemed sufficient to satisfy the treaty requirements (which I have denominated the “preimplementation” category). In other cases, the necessary implementing provisions have been adopted before the treaty was ratified.
For these reasons, the self-executing/non-self-executing distinction has become strained and incomplete and may actually be confusing. Current U.S. practice is clearly marbled. A more accurate taxonomy would distinguish between five different modes of implementation. Treaties which are labeled “non-self-executing” include three subsets:
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(i) those for which no domestic implementation is contemplated or required (for example, arms control agreements or conventions which only address matters of policy);
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(ii) those for which an adequate basis already exists in U.S. law (thus, the treaties can be termed “preimplemented,” for example human rights treaties); and
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(iii) those for which new legislation is required prior to ratification in order to assure U.S. compliance.
Treaties denominated “self-executing” likewise include two variants:
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(iv) those which connect preexisting legislation by making country-specific adjustments to that legislation (such as bilateral tax and extradition treaties) and
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(v) the relatively few that can be considered truly self-executing in that they operate by themselves as domestic law without regard to any implementing legislation (such as the CISG and the VCCR).
The vast majority of treaties ratified by the United States over the past three decades fall into the first three categories. In early periods of U.S. treaty history, a considerable number of treaties fell into Category v.Footnote 211
Adopting this more precise typology will allow a more accurate evaluation of the relative frequency with which treaties are in fact adopted and implemented on one basis or another, and perhaps create a better picture of the relative merits and success of the different approaches to implementation.
With regard to the types and characteristics of implementing legislation, the descriptive task becomes far more difficult. Nothing in the Third Restatement spoke to this issue, nor does there seem to be any overall guidance from either the Executive or Congressional branches. While some patterns can be discerned regarding categories of treaties that generally are (or are not) legislatively implemented, as indicated in the previous section, decisions about the form and context of legislation appear to be ad hoc, reflecting the specific requirements of the treaty, the nature and content of any preexisting legislation, and the prevailing practices in the given substantive area. There is no standard form and no central coordinating mechanism.Footnote 212
One can, however, identify a number of representative approaches that have frequently been used.
Direct Legislative Incorporation. At one end of the spectrum is the direct or “short form” implementation, involving legislative incorporation of the treaty in its entirety. As indicated above, the main example is provided by the New York Convention, which was incorporated directly into federal law with a simple statement in 9 U.S.C. § 201: “The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter.” To be sure, subsequent provisions of Chapter 2 of the Federal Arbitration Act did supplement that statement by addressing a number of specific issues necessary to guide the courts in applying the Convention in specific cases (for example, by specifying when an agreement or award falls under the Convention, addressing issues of jurisdiction and venue, orders to compel, etc.) but the effect of the chapter was to make the treaty itself part of federal law.Footnote 213
This approach may work well for treaties primarily intended for judicial interpretation and application, when (like the New York Convention) the text is relatively short and comparatively simple. It is not appropriate, however, in other situations, for example the 2005 Convention on Choice of Court Agreements, a longer and more complicated instrument which uses terminology not entirely consonant with U.S. practice and which (because it would apply to state courts) would likely raise difficult federalism concerns.Footnote 214
Comprehensive Enactment. At the other end of the spectrum are instances in which the treaty’s provisions have been legislatively “translated,” supplemented and implemented in much greater detail than can actually be found in the treaty text itself. For example, the Chemical Weapons Convention Implementation Act of 1998,Footnote 215 a part of which was at issue in the Bond case, covered a significant range of subjects, including various required definitions, the establishment of a U.S. National Authority with a broad range of specific powers and duties including, for example, the conduct of inspections and submission of reports. It also provided for the imposition of criminal and civil penalties (including possible forfeiture) on violators, the imposition of sanctions on foreign companies and governments, and designated the Federal Court of Claims to hear cases involving claims of civil and criminal liability.Footnote 216
Limited (Operational) Implementation. Between these two ends of the spectrum lie many examples of limited or tailored legislation designed to give effect only to those aspects of a treaty for which specific authority is required to ensure U.S. compliance.
For example, in giving effect to the Cape Town Convention on International Interests in Mobile Equipment, as modified by the Aircraft Equipment Protocol, the United States had to create the necessary domestic mechanisms to permit U.S. participation in the treaty scheme for registration of security interests in the equipment covered by the Protocol. The Cape Town Treaty Implementation ActFootnote 217 thus designated the Federal Aviation Administration’s Civil Aviation Registry as the United States’ “Entry Point to the International Registry” relating to civil aircraft of the United States (as well as aircraft for which a United States identification number has been assigned with regard to interests in aircraft engines). It required the FAA Administrator to establish a system for filing notices of prospective assignments and prospective international interests in, and prospective sales of, aircraft or aircraft engines under the Protocol.Footnote 218 Other provisions in the treaty did not require domestic implementation.
Obviously, the extent of required legislative implementation varies both with respect to the provisions of the treaty in question and the scope of existing law and governmental structures relevant to those provisions. Contrast the following examples.
The 1948 U.N. Genocide Convention reflected an international consensus, following the post–World War II war crimes trials, to establish a clear – and broadly accepted – obligation among states to prosecute and punish individuals who commit a carefully defined category of the most heinous acts directed against members of national, ethnic, racial, or religious groups.Footnote 219 After the United States finally ratified the Convention (more than forty years after it had been submitted to the Senate), a new federal crime had to be enacted in order to meet U.S. obligations under the Convention. The Genocide Convention Implementation Act of 1987Footnote 220 created a new federal criminal offense of genocide based on the definitional and jurisdictional requirements of the treaty. The statute provides for the punishment of anyone who, whether in time of peace or in time of war, commits genocide as defined in the treaty, if the offense is committed within the United States or (wherever the offense is committed) if the offender is a U.S. national.Footnote 221 No other domestic legislation was required to satisfy U.S. undertakings.
Like the Genocide Convention Implementation Act, the Antarctic Conservation Act of 1978,Footnote 222 which implemented the Agreed Measures for the Conservation of Antarctic Fauna and Flora, consistent with the 1959 Antarctic Treaty,Footnote 223 also created a new federal offense (making it unlawful for U.S. citizens to tamper in certain ways with animals and plant life in Antarctica).Footnote 224 But this treaty required more, because it obligated the U.S. to regulate activities related to Antarctic fauna and flora. The statute thus broadly prohibited any U.S. citizen wherever located (and any foreign person within the United States) to possess, sell, transport, import, or export any native mammal or native bird taken in Antarctica or any native plant collected in any specially protected area. It also created a scheme for the National Science Foundation to license otherwise prohibited acts in the United States, and for the Secretary of State to regulate the relevant activities of U.S. citizens regarding expeditions to, and within, Antarctica.
Which method of legislative implementation is preferable? The Third Restatement did not speak to this question. From the international perspective, the answer is surely simple: the one that provides the most straightforward and faithful compliance with the obligations of the United States under the specific treaty in question. As a domestic matter, however, some would prioritize other desiderata, such as confining assertions of federal authority to those aspects of the treaty regime that clearly require affirmative enactment (new administrative structures or authorities, for example, or criminal or regulatory provisions). Courts, on the other hand, are most likely to appreciate clear statements of the rules to be applied in cases brought before them.
VI Conclusions and Future Trends
The foregoing indicates that the unmistakable leaning of the Third Restatement in favor of self-execution has not prevailed in U.S. treaty practice over the past thirty years. In fact, in the decades since the Third Restatement was published, the pendulum has swung decidedly in favor of legislative implementation. In the post–Third Restatement era, neither the courts nor the political branches have embraced the Third Restatement monist inclinations.
How is one to evaluate this evolution? Is legislative implementation (in any form) less likely than self-execution to ensure fidelity in the domestic application of treaty obligations? Put differently, what empirical support is there for the assertion in the Third Restatement that self-execution is the simpler, faster, and more reliable approach to ensuring U.S. compliance? The answer appears to be “not much at all.”
While not having to wait for legislation to be drafted and enacted might seem “faster” and “simpler,” self-execution alone does not necessarily mean more rapid Senate advice and consent. Moreover, as a matter of practice, treaties requiring implementing legislation are ratified (and enter into force) only after the necessary legislation has been adopted. As a result, there is in fact no difference in the rapidity with which the United States comes into compliance with its accepted obligations under the treaty in question. Much more importantly, recent practice fails to demonstrate that direct implementation of treaties (through “self-execution”) is more likely to increase the prospects of U.S. compliance with treaty obligations. Neither guarantees compliance, and shortcomings are evident in both modes.
Some self-executing treaties do appear to work well from the perspective of compliance. Among the multilaterals, one can certainly point to the success of the 1999 Montreal Convention,Footnote 225 which, like its predecessor Warsaw Convention,Footnote 226 is directly applicable in U.S. courts without the aid of any legislation and has long been applied in U.S. litigation without generating much discernible judicial angst, much less international controversy or claims of breach.Footnote 227 Others, such as the CISG, have a less positive track record;Footnote 228 the Vienna Convention on Consular Relations has proved dysfunctional in significant respects.Footnote 229 Courts continue to struggle with The Hague Service and Evidence Conventions, particularly in the ways they connect to and interact with existing domestic law.Footnote 230
By contrast, legislatively implemented multilaterals seem to have fared better, judging by the absence of international challenge or criticism. Here, one might look in particular to treaties in the fields of criminal law, intellectual property, family law, and conservation, and fish and wildlife fields. Even the New York Convention, incorporated directly into the Federal Arbitration Act, is generally viewed as working well.Footnote 231 As indicated above, the bulk of “self-executing” bilateral treaties (extradition, mutual legal assistance, and tax treaties in particular) are in fact dependent on existing legislative structures for their operational effect. Here again, the lack of international challenges to U.S. compliance suggests that they are perceived as working reasonably well in the technical areas involved.
In the human rights area, criticism of the U.S. record is constant, of course, both because of alleged failures to accept all the obligations of the major multilateral treaties (by virtue of reservations) and because of alleged shortcomings in carrying out the obligations that have been accepted. Because human rights treaties are, at their core, aspirational and aimed at producing constant improvement, that criticism would likely continue no matter how the treaties were implemented.Footnote 232
It may seem logical to expect that direct incorporation of treaty texts themselves, whether by legislation (as in the case of the New York Convention) or through self-execution (as in the case of the Vienna Convention on Consular Relations), is more likely to lead to compliance because it puts the precise obligations (as adopted by the international community) squarely in front of the domestic implementer (government official or court). That assumption, however, rests largely on faith in the ability of officials and judges to discern the meaning and intent of (often opaque) treaty language.
In some cases, where harmonizing the interpretation and application of treaty terms is important (as it is, for example, in the family law treaties), the assumption also depends on willingness (especially in the judiciary) to take into account relevant decisions by the courts of other states parties. When, as in the case of the Consular Relations Convention, the obligations are not codified in any form, the relevant domestic decision-maker may not always be aware that the United States has in fact undertaken the obligation in question.
Frequently, however, the language of the treaty is less than clear or precise, especially in the multilateral context when it has had to garner the acceptance of negotiators from many different countries and legal systems, not infrequently through compromise. Translating intensely negotiated formulations into language and concepts that are familiar to domestic authorities and consonant with U.S. legal concepts and constraints, while difficult, can clarify the judges’ task. Leaving the task to courts on a case-by-case basis can risk inconsistent interpretations and possible noncompliance in the eyes of other states parties.
This concern would seem particularly important in light of the growing complexity of treaties (especially multilateral treaties) and the fact that they increasingly address issues on which U.S. law already exists. Treaties, in particular multilateral treaties, regularly deal with topics which, in earlier years, would have been considered in the United States to be exclusively matters of domestic (internal) competence and regulation. Indeed, it is challenging today to identify any major multilateral treaty that does not, to one degree or another, address issues on which a substantial body of U.S. domestic law already exists.Footnote 233 One of the main purposes of contemporary multilateral treaty-making is in fact to promote international standardization and harmonization in the way in which states parties address matters in their internal law. This makes negotiating treaties more challenging, since determining what content would be acceptable is not simply a matter of national policy but also a question of what domestic law already exists and whether (and how) it might need to be changed (or could not realistically be changed). The more detailed the treaty, the more difficult it is to find common ground among the negotiating states, especially those with differing legal cultures and traditions.
At the same time, contemporary multilateral treaty-making also poses growing challenges for U.S. implementation. Because domestic law almost always bears on the substantive provisions of the treaty, the “self-executing or not” question essentially becomes a decision whether to change the law directly through the treaty power (directly overriding duly enacted legislation and/or judicial decisions) or to utilize the normal legislative process (or, in rare cases, some combination of the two). That decision is also complicated by questions of federalism (for example, in the field of human rights and family law treaties, where many of the obligations touch on matters within state or local, not federal, purview). Concerns about issues of federalism inevitably form part of the Senate’s evaluation but do not seem to focus in particular on the questions of implementation, leaving those issues to substantive experts in the area concerned.
The political branches clearly prefer to rely on the legislative process to change the law to conform to treaty obligations, rather than leaving the issue of compliance to the courts. In this regard, it is not enough simply to point to the number of treaties which have in recent years been denominated “self-executing” since most of them have in fact been legislatively implemented. The pertinent set includes those which have been approved as directly applicable in U.S. law without the aid of any legislation, and that number is comparatively small. Put differently, while it remains constitutionally permissible to do so, the political branches today do not favor use of the treaty power directly to effect changes in U.S. law.Footnote 234
If there is no apparent reason to expect that future multilateral treaties will become less detailed or intrusive, neither is there any evident basis for anticipating that the domestic treaty makers will grow less inclined toward legislative implementation and more favorable to self-execution. The most obvious and compelling argument for such a change would be grounded in compelling evidence that self-execution enhances compliance with international obligations. Although such a claim is often put forward, the empirical case in support of it has yet to be made.
Finally, the search for consistency in the form and content of implementing legislation appears unavailing. In U.S. practice, before a treaty is submitted to the president for transmittal to the Senate, the treaty’s substantive provisions are analyzed individually and in light of existing federal (sometimes state and local) law. For better or worse, this task is done on a piecemeal basis. Within the Executive branch, no central coordinating mechanism exists for the preparation or review of treaty-implementing legislation. When new statutory provisions are deemed necessary, they are drafted by the relevant Executive branch experts in light of existing law, coordinated by OMB, reviewed by the treaty experts in the Department of State’s Office of the Legal Adviser, and considered by the appropriate congressional committees.
In terms of consistency, or lack thereof, often overlooked is the fact that proposed implementing legislation follows a different path toward becoming law than do the treaties that will require such implementation. Proposed legislation is considered by the relevant House and Senate committees, and (except in unusual cases) not by the Senate Foreign Relations Committee. In consequence, draft legislation is likely to follow the form and practices set by prior precedent in the particular field in question (environment, criminal, tax, etc.). In contrast, all proposed Article II treaties are subjected to review by the Foreign Relations Committee, which has its own practices and precedent.
To conclude with a recommendation, one useful step for the future might well be for the Executive branch to create a more vigorous interagency coordinating mechanism aimed at bringing greater consistency to the question of implementation. The Executive branch could also provide a needed means of postratification compliance monitoring. In an increasingly multilateral world, treaty compliance is an ongoing task, not a “one and done” undertaking that ends at ratification. If the United States truly desires to improve its record, then it must engage (to some degree) in continuous monitoring and assessment of treaty obligations with a view to improvement.
