Judicial Barriers to the Enforcement of Treaties

doi:10.1017/9781107588974.009

8 - Judicial Barriers to the Enforcement of Treaties

Published online by Cambridge University Press: 20 September 2017

Edited by

Paul R. Dubinsky and

Gregory H. Fox: Affiliation:
Wayne State University School of Law
Paul R. Dubinsky: Affiliation:
Wayne State University School of Law
Brad R. Roth: Affiliation:
Wayne State University School of Law

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Type: Chapter
Information: Supreme Law of the Land?
Debating the Contemporary Effects of Treaties within the United States Legal System
, pp. 282 - 332

DOI: https://doi.org/10.1017/9781107588974.009 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2017

8 Judicial Barriers to the Enforcement of Treaties

Treaties serve a variety of purposes. Some treaties order relations between States and assume enforcement through political and diplomatic channels. Such treaties are horizontal and operate primarily on the international plane. Examples include military alliances, peace treaties, weapons conventions, and mutual assistance agreements. Other treaties order relations between private parties. These treaties are horizontal but operate at the domestic level. Examples include treaties that limit liability in the airline industry, require enforcement of foreign arbitral awards, or regulate contracts involving the international sale of goods. Still other treaties order relations between States and the nationals of other States with the object of securing reciprocal benefits for those nationals. These treaties are diagonalFootnote ¹ and operate at both the domestic and international planes for the benefit of other States and their nationals. Examples include diplomatic and consular conventions, extradition treaties, bilateral investment treaties, dual taxation treaties, and treaties that coordinate transnational litigation. A fourth category of treaties coordinates relations between States and their own nationals. These treaties operate vertically by requiring the State to impose duties on individuals or legal persons or to guarantee individual rights. Such treaties typically operate at the domestic plane and often assume that the treaty will be brought into the domestic legal system through political processes and then enforced in individual cases by the judiciary. Examples include environmental, anti-corruption, and human rights treaties.

To the extent treaties operate at the domestic plane and assume judicial enforcement for their efficacy, one would expect the United States to empower the judiciary to enforce such international obligations. In many respects, the United States does this, particularly for transnational treaties that coordinate relations between private parties. In other respects, it is less inclined to do so, particularly when a treaty orders the United States to do something it already is doing. Often when the United States breaches its treaty obligations, courts in the United States will refrain from reaching the merits of a claim arising from the breach. This begs the question: why? The answer is that courts have developed a number of doctrines that render judicial review of the merits of a treaty claim less likely, especially when the target of the claim is behavior by the U.S. government .

This chapter addresses the judicial barriers to the enforcement of treaties. One could choose any number of issues as the focus for such an analysis in the United States. This chapter focuses on four that are especially salient: (1) standing and private rights of action; (2) the last-in-time rule; (3) the political question doctrine; and (4) reservations, understandings, and declarations.Footnote ² Each of these issues is addressed in the Restatement (Third) on Foreign Relations to one degree or another. Each undoubtedly will be addressed in the Restatement (Fourth) now underway.

Since the adoption of the Third Restatement in 1987, the United States either has continued to maintain judicial barriers then in place or has enhanced those barriers. In one sense this reflects a retreat from the internationalist agenda of many traditional foreign relations scholars. But it also reflects a rejection of the nationalist agenda of many revisionist scholars who call for still higher barriers.

I Standing and Private Rights of Action

In the international treaty context, the question of standing to assert a treaty claim elides with the question of whether a treaty creates a private right of action. Under traditional standing doctrine, a plaintiff must show an injury in fact, that is, “a concrete and particularized … actual or imminent” invasion of a legally protected interest.Footnote ³ The federal government can create standing by passing laws that establish a legally protected interest. Treaties that have been implemented by statute or that are self-executing and that create judicially cognizable interests create standing for particular parties injured by the treaty violation.

The Third Restatement does not have specific provisions that address standing for treaty violations. There are, however, comments and Reporters’ notes that allude to the issue.Footnote ⁴ The most important of these comments provides that “[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts, but there are exceptions with respect to both rights and remedies.”Footnote ⁵ Elsewhere the language is more positive toward the right of individuals to bring claims under international agreements. A Reporters’ note to section 111 states that “there is no reason to treat claims arising under international law any differently from those arising under other federal law … [h]owever, a case ‘arises under’ international law or an international agreement only if the law or agreement confers legal rights on the plaintiff.”Footnote ⁶ The key question is whether an agreement creates such rights, and the Reporters recognized that “[t]reaties and other international agreements sometimes confer rights that would support a cause of action by private parties …, but many agreements that may ultimately benefit individual interests do not give them justiciable legal rights.”Footnote ⁷

Prior to World War II, courts applied a presumption that treaties were self-executing and created private rights of action with respect to private law treaties that created traditional common law rights.Footnote ⁸ In the postwar period, a political backlash arose against public law treaties promoting international human rights, and that skepticism gave rise to treaty reservations and judicial interpretations limiting the domestic effect of public law treaties.Footnote ⁹ Consequently, before the Third Restatement, courts refused to recognize human rights treaties or other public law treaties as creating private rights of action.Footnote ¹⁰ But during this same time, courts granted standing and recognized private rights of action with respect to private law treaties, such as those affecting economic or commercial relations.Footnote ¹¹ This distinction was based on a recognition that certain types of treaties regulating private behavior generally were self-executing, while others regulating public behavior generally were not.Footnote ¹² This distinction – some treaties being deemed to be self-executing and some non-self-executing – was a source of controversy in drafting the Third Restatement, with Louis Henkin, the Chief Reporter, expressing the view that “lawmaking by treaty was to be an alternative to legislation by Congress” and that “the Framers intended that a treaty should become law ipso facto, when a treaty is made; it should not require legislative implementation to convert it into United States law.”Footnote ¹³ But Henkin’s personal views on this issue are not evident in the Restatement itself, which maintains the distinction between public law treaties and private law treaties.

In 2008 the Supreme Court in Medellin v. Texas articulated a general presumption against self-execution, finding that a treaty is not enforceable as domestic law unless there is implementing legislation or the “treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.”Footnote ¹⁴ In the aftermath of Medellin, “instead of presuming that treaties that create private rights necessarily also create private rights of action, courts now generally presume that they do not, regardless of the type of the treaty.”Footnote ¹⁵ This change in the presumption diminishes the possibility that courts will recognize treaties as creating private rights of action, or even that a private party may use such treaties defensively to challenge a claim against it. This variant of non-self-execution precludes a private party from invoking the treaty as a basis for a claim or defense in court.Footnote ¹⁶

A second development in party standing doctrine has also curtailed access to courts. In the non-treaty context, the standing doctrine has been an important limitation on public law litigation.Footnote ¹⁷ Public law litigation has focused on ill-defined cases or controversies and sought wide-ranging, prospective relief through judicial supervision over government policies.Footnote ¹⁸ Citizen standing was a key component of such litigation, allowing plaintiffs who suffered a legal wrong to challenge government action.Footnote ¹⁹ The Court in Lujan interpreted the standing doctrine to limit citizen suits, holding that courts cannot vindicate the public interest in the absence of individual harm to the plaintiffs.Footnote ²⁰ Vindicating “the undifferentiated public interest in executive officers’ compliance with the law” is, the Court concluded, “the function of Congress and the Chief Executive,” not the judiciary.Footnote ²¹

The international variant of citizen suits is transnational public law litigation under the Alien Tort Statute, a statute that has enabled suit for violations of either treaties or customary international law.Footnote ²² The Second Circuit’s landmark decision in Filartiga v. Pena-IralaFootnote ²³ interpreted the Alien Tort Statute broadly to empower aliens to sue for torts committed in violation of the law of nations or treaties. Such litigation became something of a cottage industry in the 1980s and 1990s, with over 150 cases alleging an ATS violation.Footnote ²⁴ For over two decades, interpretation of the Alien Tort Statute developed without the benefit of Supreme Court review.Footnote ²⁵ Finally in 2004, the U.S. Supreme Court in Sosa v. Alvarez-Machain limited the scope of the ATS, but left the door ajar to further litigation, “subject to vigilant doorkeeping.”Footnote ²⁶ In Sosa the Court disagreed with lower courts that had held that the ATS created a private right of action. Rather, the Court concluded, the ATS permitted plaintiffs to bring only common law causes of action for torts committed in violation of the “present-day law of nations,” provided those claims rested on accepted international norms and were defined with sufficient specificity.Footnote ²⁷

The Court in Sosa found that plaintiffs had statutory standing in that the ATS was a vehicle for pursuing a private right of action created elsewhere for international law violations arising from treaties or custom. But it avoided the question of whether the claimant had party standing in the Lujan sense of individualized harm.Footnote ²⁸ Since Sosa, lower courts have struggled with the applicable standard to apply in assessing individualized harm for international law violations, particularly when the victim is deceased.Footnote ²⁹ What they have not done is eschew the general standing requirements of individualized harm developed in the non-treaty context in favor of permitting citizen suits that seek redress for undifferentiated international public law violations.Footnote ³⁰ This heightened standing requirement to establish individualized harm raises the threshold for judicial resolution of alleged breaches of international treaty obligations.

Thus, since the Third Restatement, there have been two developments relating to standing that have limited plaintiffs’ access to courts. First, as Professor Wuerth explains in Chapter 4, the Court has rejected the presumption that treaties are self-executing without differentiating between public treaties and treaties regulating transnational activities of private parties. At the same time, courts have curtailed citizen suits by limiting party standing, thus requiring individualized harm for any legal violations, including treaty violations. The combined impact of these two trends has been to curtail access to judicial remedies for treaty violations .

II Last-in-Time Rule

Pursuant to the Supremacy Clause, treaties and statutes have equal status.Footnote ³¹ The Supreme Court has consistently interpreted that equality to include the principle of lex posterior derogat priori, such that in the case of conflict between a treaty and a federal statute, the last in time will control.Footnote ³² The Third Restatement incorporates this principle, stating that:

An act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear or if the act and the earlier rule or provision cannot be fairly reconciled.Footnote ³³

The Third Restatement also recognizes the converse situation, such that “[a] provision of a treaty of the United States that becomes effective as law of the United States supersedes as domestic law any inconsistent preexisting provision of a law or treaty of the United States.”Footnote ³⁴

At the time the Third Restatement was drafted, academic commentary favored modifications to the last-in-time rule to give greater domestic effect to treaties. In particular, internationalists favored dispensing with the last-in-time rule so that later federal statutes would not supersede earlier treaties.Footnote ³⁵ “Congress … has a constitutional obligation to implement the treaties which the President and Senate make,” wrote Louis Henkin, so “it is anomalous to accord [Congress] power to disregard a treaty obligation, compel its violation, and put the United States in default.”Footnote ³⁶ Influential scholarship also employed historical and textual arguments to argue in favor of a more treaty-friendly version of the last-in-time rule.Footnote ³⁷

The Third Restatement proposed modifications to the last-in-time rule consistent with these interpretations. For example, one Reporters’ note suggested that the last-in-time rule should not apply to “general international law established by a general multilateral treaty.”Footnote ³⁸ Nonetheless, the Third Restatement did not adopt that suggestion because such a distinction had not taken root in federal court jurisprudence.Footnote ³⁹

Since publication of the Third Restatement, there has been a fundamental change in academic commentary regarding the last-in-time rule. Prominent scholars have argued in favor of prioritizing federal statutes over treaties.Footnote ⁴⁰ They also have argued that the last-in-time rule presumes treating statutes and treaties as equal in other areas, such that the federalism limitations imposed on statutes should apply to treaties.Footnote ⁴¹ These scholars also have defended the last-in-time rule based on historical and textual arguments, challenging internationalists who argue that treaties should have primacy over statutes.Footnote ⁴² This trend toward a less internationalist perspective on the last-in-time rule reflects the broader currents of revisionist thinking on the place of international law in our federal system.

While academic support for the ability of treaties to take precedence over subsequent federal statutes has waned, the judiciary has not altered its commitment to the traditional last-in-time rule. In Breard v. Greene, the Supreme Court cited old precedents in reaffirming the last-in-time rule and refusing to give effect to a treaty provision in the face of a subsequently enacted federal statute.Footnote ⁴³ The consular rights conferred on Angel Breard pursuant to a treaty in effect since 1969 were subject to procedural limitations imposed by a federal statute enacted over twenty-five years after the treaty entered into force. The Court held that “an Act of Congress … is on full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.”Footnote ⁴⁴

The Supreme Court and lower courts consistently have enforced this commitment to the last-in-time rule, which frequently results in the enforcement of subsequent statutes over earlier treaties.Footnote ⁴⁵ With a few notable exceptions, the last-in-time rule is almost never applied to enforce a subsequent treaty over an earlier conflicting statute.Footnote ⁴⁶ Courts also are at pains to interpret a later-in-time treaty to avoid a conflict with an earlier statute.Footnote ⁴⁷ The practical effect of these post-Third Restatement developments is to diminish the domestic effect of self-executing treaties, some percentage of which are not enforceable within the United States because of subsequent acts of Congress. Thus, in theory, statutes and treaties are on an equal footing, but in practice statutes routinely limit treaties, while treaties rarely limit statutes.

A new iteration of this issue, one that has produced a division among lower courts, has been determining which sovereign act counts for purposes of the last-in-time rule when treaties and statutes are repealed, updated, amended, and interpreted. Courts are bound to “construe and give effect to the latest expression of the sovereign will.”Footnote ⁴⁸ In ruling on which sovereign act counts for purposes of the last-in-time rule in these circumstances, the trend has been for courts to side with statutes over treaties, a development contrary to the Third Restatement.

For example, in Kappus v. Commissioner of Internal Revenue,Footnote ⁴⁹ the D.C. Circuit held that protocols to the U.S.-Canada Tax Treaty enacted subsequent to a conflicting federal statute did not reflect the last expression of the sovereign will because the protocols were not the source of the conflict.Footnote ⁵⁰ The protocols amended provisions of the original treaty other than those in conflict with the statute. Under these circumstances, such protocols neither revived the original treaty nor impliedly repealed the conflicting statute. The federal statute enacted after the original treaty but before the protocols was the last expression of the sovereign will.Footnote ⁵¹

However, the Second Circuit has held that amendments to statutes are a different matter. In Empresa Cubana del Tobaco v. Culbro Corp.,Footnote ⁵² the court addressed whether a federal statute enforcing the embargo against Cuba superseded an earlier trademark treaty. The embargo against Cuba was enacted pursuant to federal regulations dating from 1963. The United States ratified the most recent iteration of the Paris Convention in 1970 and incorporated protections for famous marks in the Lanham Act. Subsequent events complicated the issue, as Congress reaffirmed and codified the Cuban embargo by federal statute in 1996 and also amended and updated the protections for famous marks under the Lanham Act in 1999. The Court held that the regulations imposing an embargo on Cuba were “reaffirmed and codified in 1996” by statute and that “any claim grounded in the Paris Convention that presented an irreconcilable conflict” with the embargo statute would be rendered null.Footnote ⁵³ The fact that the amendments to the Lanham Act implementing the treaty protections took place after 1996 did not result in the treaty’s being considered to be later in time than the embargo legislation .Footnote ⁵⁴

These cases suggest that amendments to treaties do not trump prior statutes unless those specific amendments are the source of the conflict. If the conflict does not stem specifically from the amendments, the treaty will not be deemed to be the last sovereign act. By contrast, statutory amendments often reaffirm and codify earlier statutes and are treated as the latest action for purposes of the last-in-time rule. In both cases, the result is the priority of statutes over treaties, a result contrary to the Reporters notes to Section 115 of the Third Restatement.

III Political Question Doctrine

International law is an area fraught with ambiguity regarding the application of the political question doctrine. That doctrine declares certain subjects to be political questions that are not justiciable in domestic courts. The Supreme Court’s articulation of the political question doctrine in Baker v. Carr, not a treaty case, recognized that “not every case or controversy which touches foreign relations lies beyond judicial cognizance,”Footnote ⁵⁵ but provided little guidance as to which type of controversy is non-justiciable. The Court’s plurality statement in Goldwater v. Carter amplified the confusion with a divided court in a denial of certiorari disagreeing as to the essential requirements of a political question and its applicability.Footnote ⁵⁶ In the absence of guidance from the Supreme Court since Goldwater, lower courts frequently have applied the political question doctrine to limit judicial review in the foreign affairs context.Footnote ⁵⁷

The Third Restatement gives insufficient attention to the political question doctrine. It is briefly addressed in a Reporters’ note to Section 1, but that note simply summarizes Baker v. Carr and Goldwater v. Carter and lists specific Executive actions courts typically treat as political questions.Footnote ⁵⁸ Beyond that Reporters’ note, the political question doctrine arises obliquely in a few instances but is otherwise omitted in sections where one would expect it to be included.

For example, there are several provisions in Part III of the Third Restatement dealing with international agreements where one would expect it to receive mention. Section 303 addresses Presidential authority to enter into Article II treaties, Congressional-Executive agreements, and sole Executive agreements. In each case, the Third Restatement concludes that the President has the authority to make such agreements subject to constitutional limitations. Justiciability is not expressly addressed with respect to the making of international agreements, but the implication is that the President’s choice as to the form of agreement lies within the political domain and cannot be challenged in court.

With respect to the interpretation of international agreements, the Third Restatement stipulates that the President has the authority to interpret treaties in U.S. relations with other countries, but that courts have “final authority to interpret an international agreement for purposes of applying it as law in the United States.”Footnote ⁵⁹ In so stating, the Restatement advanced what Curtis Bradley subsequently has called a “rule of law” conception of treaty disputes. A Reporters’ note to Section 326 states that treaty interpretation is not a political question.Footnote ⁶⁰

Finally, in discussing the termination of international agreements, the Third Restatement emphasizes that the President has the unilateral power to suspend or terminate international agreements.Footnote ⁶¹ A Reporters’ note to Section 339 mentions the historical practice with respect to the President’s authority to terminate Article II treaties and Congressional-Executive agreements, and discusses the Court’s decision in Goldwater, in which four justices refused to reach the question of presidential authority to terminate a treaty on the basis of the political question doctrine.Footnote ⁶² The note expresses no opinion as to whether the presidential authority to suspend or terminate is justiciable.

Since the Third Restatement was adopted, the Supreme Court has not clarified the contours of the political question doctrine as it applies to treaties. Two cases are illustrative.

In a decision rendered just as the Third Restatement was being adopted by the American Law Institute, the Supreme Court in Japan Whaling addressed a federal statute that required the imposition of sanctions on a nation engaged in certain whaling practices. The statute allegedly diminished the effectiveness of a sole-Executive agreement regulating whaling.Footnote ⁶³ In the agreement with Japan, the United States pledged not to apply sanctions against Japan despite the fact that Japan had exceeded its quota of whale capture. The Court concluded that, notwithstanding the political overtones of the case, the political question doctrine was not implicated; the Court was simply interpreting the President’s compliance with a statute. All nine justices concurred that whether the sole Executive agreement was consistent with the statute was a justiciable question.Footnote ⁶⁴

Over twenty years later, the Court in Boumediene v. Bush indicated that whether the United States had de jure sovereignty over Guantanamo Bay pursuant to a treaty between the United States and Cuba was a non-justiciable political question.Footnote ⁶⁵ But it resolved the case anyway, finding that the existence of de facto sovereignty was justiciable and was dispositive in resolving Boumediene’s habeas petition. The case did not “turn on the political question doctrine,” the Court concluded, because there was “scant support” for the “Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction.”Footnote ⁶⁶

Neither of these cases squarely addressed fundamental questions about the justiciability of treaty accession, interpretation, or termination . So decades after Goldwater, we are still left with the Baker v. Carr criteria and the Goldwater gloss that the Third Restatement reporters struggled to comprehend. Under Baker, of course, courts apply a multifactor test to determine whether a case or controversy raises a political question. Courts are admonished to refrain from resolving cases based on constitutional text, judicial competence, coordinate branch respect, the need for univocal pronouncements, and the fear of political embarrassment.Footnote ⁶⁷ Those factors are malleable enough to be invoked narrowly or broadly. Added to the mix is Baker’s famous foreign affairs declaration that:

… it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.Footnote ⁶⁸

In other words, justiciability determination requires the balancing of textual explicitness, historical practice, judicial competence, and political consequence.

The Goldwater gloss only highlights Baker’s ambiguity. Four justices found that terminating a treaty with Taiwan was a political question because it was a foreign affairs matter pertaining to the legislature’s power to negate presidential action, and there was no constitutional provision governing the termination of a treaty.Footnote ⁶⁹ Justice Brennan found such reasoning to “profoundly misapprehend” the political question doctrine, which in his view restrains courts from reviewing political judgments that are constitutionality committed to a coordinate political branch, not “when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decision-making power.”Footnote ⁷⁰ Courts must resolve that question as a matter of constitutional law, not political discretion.Footnote ⁷¹ Justice Powell shared Justice Brennan’s skepticism, finding that “the question presented to us concerns only the constitutional division of power between Congress and the President.”Footnote ⁷² Thus, the Court struggled to apply Baker in the treaty context and was deeply divided over the justiciability of the President’s power to terminate treaties.

In the years since the Third Restatement appeared, lower courts have tried to resolve some of Baker’s ambiguity, but they have done so inconsistently and unpredictably.Footnote ⁷³ Most notably, in 2001 the Eleventh Circuit in Made in the U.S.A. Foundation v. United States addressed whether NAFTA, a Congressional-Executive agreement with Canada and Mexico, was a treaty requiring Senate ratification. The Eleventh Circuit found that issue to be a non-justiciable political question.Footnote ⁷⁴ Applying Baker and Goldwater, the Eleventh Circuit found a variety of factors counseled against judicial resolution of the question: (1) the constitutional text is silent on key issues and confers vast power on both political branches in regulating foreign affairs; (2) the Supreme Court has recognized the constitutional validity of some international agreements that do not constitute full-fledged treaties; (3) the delineation of which agreements are significant enough to require Senate ratification is unsuitable for judicial determination; (4) a declaration invalidating NAFTA would have serious repercussions for our nation’s external relations and profound negative effects on its economy; and (5) judicial review of the process of negotiating international agreements would intrude upon the respect due to coordinate branches of government.Footnote ⁷⁵ Thus, the Eleventh Circuit refrained from entering the debate about the interchangeability of treaties and other international agreements and ruled that the political question doctrine stood as a barrier to judicial enforcement of the Article II process with respect to NAFTA within the U.S. legal system .Footnote ⁷⁶

By contrast, in Ntakirutimana v. Reno, the Fifth Circuit went ahead to adjudicate a constitutional question similar to that in U.S.A. Foundation – whether a Congressional-Executive agreement rather than a treaty could be used to extradite an individual who was not a U.S. citizen. The Court did not pause to consider whether the political question doctrine barred it from reaching that question. Ntakirutimana’s factual context was a request from the International Criminal Tribunal for Rwanda for the United States to extradite a génocidaire present in the United States.Footnote ⁷⁷ Although the political question doctrine had been discussed by the district courtFootnote ⁷⁸ and briefed by the parties, the Fifth Circuit did not mention it.Footnote ⁷⁹ Instead, citing a 1936 Supreme Court case recognizing the power to extradite by statute,Footnote ⁸⁰ the Court concluded that far from reading “the treaty-making power out of the Constitution,” Congressional-Executive agreements leave the treaty-making power “unaffected, because the President may still elect to submit a negotiated treaty to the Senate, instead of submitting legislation to Congress.”Footnote ⁸¹ Accordingly, the Court concluded that it was permissible to surrender Ntakirutimana to the ICTR pursuant to an Executive-Congressional Agreement.Footnote ⁸²

Made in the U.S.A. Foundation and Ntakirutimana present starkly different perspectives on the extent to which the contours of the treaty power are appropriate for judicial resolution. Although Ntakirutimana dealt with extradition and Made in the USA Foundation dealt with foreign commerce, both presented the fundamental question of the interchangeability between treaties and Congressional-Executive agreements and whether that issue was to be resolved through adjudication. Made in the USA Foundation found that every Baker factor counseled against justiciability, and the court therefore refused to reach the merits of the constitutional treaty question. Ntakirutimana ignored the political question threshold inquiry and found that treaties and Congressional-Executive agreements are interchangeable in the context of extradition.

The Supreme Court’s recent disposition of Zivotofsky v. Clinton may cast light on the conflict between the Ntakirutimana and Made in the USA approaches to the political question doctrine, though the dispute that gave rise to Zivotofsky took place outside the treaty context. The case concerned the constitutionality of a federal statute that required the Department of State, when registering the birth of a U.S. citizen born in Jerusalem, to identify the place of birth as Israel.Footnote ⁸³ The Court stated that a controversy “involves a political question where there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’”Footnote ⁸⁴ Noticeably absent from this new formulation were the prudential factors set forth in Baker and Goldwater.Footnote ⁸⁵

In applying the new formulation, the court in Zivotofsky found that all lined up in favor of justiciability. Regarding textual commitment of authority to the political branches, the Court said that the Judicial Branch properly exercises its authority in resolving the question of “whether Congress or the Executive is aggrandizing its power at the expense of another branch.”Footnote ⁸⁶ As for judicial manageability, the Court found that the arguments regarding the constitutionality of the statute “sound in familiar principles of constitutional interpretation” and that their analysis requires an examination of traditional canons of construction to assess whether the statute is constitutionally permissible.Footnote ⁸⁷

Zivotofsky suggests that the political question doctrine has been narrowed to two fundamental questions: constitutional text and judicial capacity. The prudential factors set forth in Baker of “expressing lack of the respect due coordinate branches of government,” or the “unusual need for unquestioning adherence” to political decisions, or “the potentiality of embarrassment” had no part in Zivotofsky’s delineation of the political question doctrine.Footnote ⁸⁸ The majority appears to have jettisoned the prudential factors, but it did not do so expressly.Footnote ⁸⁹ Only Justices Sotomayor and Breyer adhered to the view that these prudential factors “may counsel against a court’s resolution of an issue presented.”Footnote ⁹⁰ Sotomayor argued that the “inquiry required by the political question doctrine [is] more demanding than that suggested by the Court.”Footnote ⁹¹ The majority’s failure to respond to the dissenting justices left uncertain whether prudential standards still have a place in the political question doctrine.

Following Zivotofsky, one would expect the political question doctrine to have declining significance in litigation regarding treaties.Footnote ⁹² One would expect to see an increase in judicial resolution of treaty formation and termination questions.Footnote ⁹³ One also would expect the political question doctrine rarely to apply when adjudicating the balance of power between the political branches.Footnote ⁹⁴ Thus far, these predictions have not materialized. In some cases, lower courts are citing Baker’s multifactor test, but only applying the two Zivotofsky factors.Footnote ⁹⁵ In others cases, lower courts continue to reference and analyze the prudential standards.Footnote ⁹⁶ Most lower courts have yet to read Zivotofsky as fundamentally altering Baker.Footnote ⁹⁷

In sum, in the years since publication of the Third Restatement, lower courts have treated the multifactor test set forth in Baker and Goldwater as setting forth the framework for a political question analysis. This is an analysis that has presented threshold difficulties for adjudicating treaty claims. In contrast, Zivotofsky suggests that many questions pertaining to the competing authority of Congress and the President in the treaty realm can be resolved by typical separation-of-powers adjudication. To the extent Zivotofsky signals that Baker’s prudential concerns have now been excised from the political question doctrine, and to the extent that Zivotofsky can be extrapolated to the treaty context, then the balance of power between the political branches in future treaty disputes may result in judicial resolution, thereby lowering a procedural barrier to domestic enforcement of treaty norms, even in disputes that are politically charged. It remains to be seen, however, how Zivotofsky will be applied by lower courts.

IV Reservations, Understandings, and Declarations

The Third Restatement extensively addresses reservations but largely ignores understandings and declarations. Section 313 summarizes international law norms with respect to reservations, particularly the rule that reservations are permitted unless prohibited by the treaty or incompatible with the agreement’s object and purpose.Footnote ⁹⁸ Section 314 articulates post–World War II reservations practice in the United States, which requires the President to ratify a treaty subject to Senate reservations.Footnote ⁹⁹

The Restatement’s treatment of understandings and declarations is relegated to comments, which focus on whether understandings or declarations so exclude, limit, or modify legal obligations that they effectively are reservations.Footnote ¹⁰⁰ Section 314’s one exception in this regard recognizes the President’s obligation either to ratify a treaty subject to the Senate’s understanding or not ratify it at all.Footnote ¹⁰¹ The comments also recognize the Senate practice of non-self-executing declarations and concede that there is “no accepted doctrine indicating limits on the conditions the Senate may impose.”Footnote ¹⁰²

In the years after publication of the Third Restatement, the United States ratified several key human rights treaties with significant reservations, understandings, and declarations (RUDs) raising concerns of erecting obstacles to enforcement of the norms in these treaties.Footnote ¹⁰³ These RUDs limited the domestic impact of human rights treaties through substantive and procedural reservations,Footnote ¹⁰⁴ non-self-execution declarations, and federalism understandings. In a few cases, treaty ratification was accompanied by domestic legislation implementing the treaty.Footnote ¹⁰⁵ In other cases, the RUDs rendered the human rights treaty of no force in domestic courts, but the substantive rights embodied in the treaty nonetheless were mirrored in domestic constitutional or statutory law.Footnote ¹⁰⁶

Some scholars have sharply criticized this practice of relying on preexisting and different domestic law in lieu of enacting specific implementing legislation.Footnote ¹⁰⁷ Harold Koh has stated that:

“[i]n the cathedral of human rights, the United States is more like a flying buttress than a pillar—choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system.”Footnote ¹⁰⁸

Others strongly defend RUDs as a valid expression of the conditional nature of the United States’ consent.Footnote ¹⁰⁹ Jack Goldsmith, for example, writes that:

RUDs … reflect a sensible accommodation of competing domestic and international considerations … [by] help[ing] bridge the political divide between isolationists who want to preserve the United States’ sovereign prerogatives, and internationalists who want the United States to increase its involvement in international institutions .Footnote ¹¹⁰

This compromise position on RUDs was succinctly expressed by Professor Louis Sohn, who served as an associate reporter for the Third Restatement. In 1998, he observed with respect to American conditional acceptance of human rights treaties, that “half a loaf is better than none, especially if you are hungry.”Footnote ¹¹¹

The frequency of U.S. use of RUDs has grown since the 1980s. The typical effect of contemporary U.S. practice with respect to RUDs is to limit the judiciary’s flexibility in interpreting treaty protections. In the human rights context, some RUDs deprive American judges of the ability to interpret the unmodified treaty and therefore from adding to “the emerging body of international law on the subject.”Footnote ¹¹² RUDs also can stand in the way of American judges considering judicial interpretations from other states party that have ratified without any RUDs. To the extent existing U.S. domestic law does not mirror the treaty’s protections, RUDs deprive the victims of human rights violations of invoking judicial power to enforce international guarantees in the form in which they are enforced elsewhere.Footnote ¹¹³

The impact of RUDs varies depending on the type of human rights treaties. There are, for example, certain treaties that are rarely referred to as human rights treaties but nonetheless afford significant substantive and procedural guarantees to foreign nationals. These treaties typically operate diagonally, with States agreeing to confer mutually reciprocal benefits on other States and their nationals. For example, the United States ratified the Vienna Convention on Consular Relations in 1969 without reservations.Footnote ¹¹⁴ The treaty grants detained foreigners the fundamental right of consular notification and access,Footnote ¹¹⁵ and this right is routinely adjudicated in U.S. courts.Footnote ¹¹⁶ Likewise, the United States ratified the Optional Protocol to the United Nation Convention on the Status of RefugeesFootnote ¹¹⁷ and courts regularly adjudicate rights guaranteed in that treaty.Footnote ¹¹⁸ Such treaties implicate not only individual rights but also reciprocal protections that States afford to nationals of other signatory States . With respect to neither conferral of rights have RUDs been an obstacle to enforcement.

To the extent international treaties mirror domestic law, one should not overstate the importance of RUDs in impeding the enforcement of treaty rights. In the human rights context, RUDs often preclude the direct application of international law, but the United States nonetheless fulfills its international human rights obligations via domestic law.Footnote ¹¹⁹ “[W]hen a court issues an injunction … prohibiting race-based discrimination, … [it] is promoting compliance with U.S. treaty obligations … even if the court never considers a treaty-based argument.”Footnote ¹²⁰ Moreover, some human rights treaties are implemented by statute.Footnote ¹²¹ With respect to treaties designed to protect individuals from the state, U.S. courts indirectly enforce human rights obligations all the time, even if they rarely do so directly. In other words, even if RUDs typically do not prevent enforcement of treaty norms, they do channel courts toward indirect rather than direct enforcement, with the result that to judges it may seem that they are enforcing domestic law rather than treaty law.

In the private law context, involving horizontal treaties that operate at the domestic plane, treaties are routinely enforced in court without obstacle.Footnote ¹²² That is, courts frequently enforce transnational treaties involving private parties who act across national boundaries. Examples include the 1929 Warsaw Convention, the 1958 Territorial Sea Convention, the 1958 New York Convention, the 1965 Hague Service Convention, the 1970 Hague Evidence Convention, the 1980 Hague Convention on Child Abduction, and the 1999 Montreal Convention. These treaties serve a coordination function between private parties and presume judicial adjudication of transnational activities. In such cases “the judiciary plays a central role in promoting compliance with transnational treaty provisions.”Footnote ¹²³

Thus, whether U.S. courts confront procedural obstacles to treaty enforcement depends on the circumstances of each treaty. As a matter of international law, there is no general obligation of judicial enforcement of treaty guarantees.Footnote ¹²⁴ “So long as the state achieves the substantive objective set forth in the treaty, the mechanism by which that compliance occurs is left to the state.”Footnote ¹²⁵ Many RUDs simply signal the procedural means by which the United States will abide by its obligations.Footnote ¹²⁶ The role of RUDs typically depends on the nature of the treaty. With treaties involving horizontal relations between States, RUDs assign a significant role to the Executive Branch and a limited role for the Judiciary. With treaties that guarantee human rights, RUDs signal an indirect role for judicial enforcement through existing laws or treaty implementing legislation. But with treaties involving transnational relations between private parties, RUDs typically present few obstacles to either direct enforcement or indirect enforcement via implementing legislation.

V Conclusion

With developments in the law of standing, the push to enforce treaties through transnational public litigation via the Alien Tort Statute has waxed and now waned. The Court in Sosa recognized “statutory standing” arising from common law causes of action pursued through ATS human rights litigation. But the Supreme Court has been silent on party standing with respect to human rights litigation. Outside of the treaty context, lower courts have continued to require party standing based on traditional Lujan standards of individualized harm within the zone of interest intended for protection. There continues to be a dearth of cases applying Lujan in the context of allegations that U.S. behavior is inconsistent with treaty standards. If Lujan were applied in the treaty context, the result would be a substantial number of dismissals for lack of standing, thereby preventing courts from adjudicating the merits of the dispute.

With the last-in-time rule, courts typically apply that rule to negate the effect of international law obligations in the face of a later-in-time conflicting statute. Internationalist scholars have argued for a different last-in-time rule for multilateral treaties, one that accords primacy to treaties, but those efforts have been without success. The force of time, the frequency of legislative pronouncements, and the nature of statutory amendments all inure to the benefit of statutes and to the detriment of treaties.

Changes to the political question doctrine enunciated by Zivotofsky have the potential to expand the judicial role in adjudicating treaty disputes that previously would have been dismissed as political questions. It would seem that the Supreme Court, by ignoring (or rejecting) Baker’s prudential factors, envisions a greater role for courts in resolving disputes between the political branches over the negotiation, interpretation, and termination of treaties. However, lower courts thus far have not eschewed the prudential factors in Baker with the same ease as the Supreme Court. The result is a continuation of judicial abstention practices for many treaty questions.

With RUDs the change is not so much with respect to the law governing their application within the domestic legal system, but with the frequency with which RUDs are applied to canonical human rights treaties. With few exceptions, the United States has chosen to provide judicially enforceable protections for transnational treaties that regulate private party conduct but to rely on existing constitutional and statutory law to protect against the infringement of individual liberties. RUDs are the instrument to ensure that the level of protection is capped at domestic standards. To the extent RUDs limit rights enforcement in this manner, they undermine the efficacy and relevance of international human rights treaties within the U.S. legal system.

In the three decades since the Third Restatement appeared, on balance the trends in the United States – the narrowing of standing, the use of the last-in-time rule predominantly to give priority to statutes, and the proliferation of RUDs – has been toward curtailing the judicial enforcement of treaty rights. The combined effect of (1) applying a presumption in favor of non-self-execution, (2) finding that a treaty has been superseded by a subsequent statute, (3) finding that a claim presents non-justiciable political questions, or (4) holding that the presence of one or more RUDs renders the treaty simply not enforceable by U.S. courts tends, as a practical matter, to preclude many individuals from vindicating treaty rights in U.S. courts. As a result, many treaty wrongs are without judicial remedy.

A Fourth Restatement on Foreign Relations should distill international and foreign relations law of the United States existing at the time of the Third Restatement’s adoption. It should summarize the “rules than an impartial tribunal would apply if charged with deciding a controversy in accordance with international law.”Footnote ¹²⁷ In the quarter century since the Third Restatement was adopted, there have been numerous changes with respect to judicial enforcement of treaties. There also has been significant continuity. The current Reporters to the Fourth Restatement will no doubt wrestle with the question of whether to crystallize the changes or highlight the continuity.

Footnotes

¹ That is, they operate both horizontally and vertically.

² There are other procedural obstacles that are not dealt with in this chapter, such as the state secrets doctrine, the procedural default rule, and the act of state doctrine. Space limitations preclude a more comprehensive analysis of all the judicial barriers to the enforcement of treaty obligations.

³ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). After nearly twenty-five years, Lujan remains the leading Supreme Court case on standing. The case relates to standing to assert a statutory claim, not a treaty claim.

⁴ See, e.g., Restatement (Third) of Foreign Relations § 1, Reporter’s Note 4 (1987) (“The jurisprudence of adjudication – principles as to jurisdiction, standing, mootness, ripeness, etc. – applies to foreign relations cases as to others”).

⁵ Footnote Ibid. § 907, cmt. a (1987).

⁶ Footnote Ibid. § 111, Rptr. note 4.

⁷ Footnote Ibid.

⁸ See, e.g., De Geofroy v. Riggs, 133 U.S. 258 (1890); Chew Heong v. United States, 112 U.S. 536 (1884); United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833); Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829); Hopkirk v. Bell, 7 U.S. (3 Cranch) 454, 456–7 (1806); Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); see generally Oona A. Hathaway, Sabria McElroy & Sara Aronchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale J. Int’l L. 51, 57–63 (2012). See also Ingrid Wuerth, “Self-Execution,” Chapter 4 in this volume.

⁹ Among such treaties were the Convention on the Prevention and Punishment of the Crime of Genocide art. 1, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167; International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171. See generally Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 348–50 (1995).

¹⁰ See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373–4 (7th Cir. 1985); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979); Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir. 1976). See generally David Sloss, When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas, 45 Colum. J. Trans. L. 20, 106–10; Hathaway, et al., supra Footnote note 8, at 68–70.

¹¹ See, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161–3, 176 (1999); Zicherman v. Korean Air Lines Co., 516 U.S. 217, 221, 231 (1996); Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984); Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 181, 189–90 (1982); BP Oil Int’l, Ltd. v. Empresa Estatal Petoleos de Ecuador, 332 F.3d 333, 336 (5th Cir. 2003); Delchi Carrier v. Rotorex Corp., 71 F.3d 1024, 1027–28 (2d Cir. 1995); Choi v. Kim, 50 F.3d 244 (3d Cir. 1995); Vagenas v. Cont’l Gin Co., 988 F.2d 104, 106 (11th Cir. 1993); Irish Nat’l Ins. Co. v. Aer Lingus Teoranta, 739 F.2d 90 (2d Cir. 1984).

¹² Hathaway, et al, supra Footnote note 8, at 63–5 (arguing that after World War II, the Supreme Court and lower courts considered treaties affecting economic or commercial relations between individuals as self-executing and adopted a skeptical posture for treaties regulating relationships between the state and individuals); David L. Sloss, Michael D. Ramsey & William S. Dodge, “Continuity and Change Over Two Centuries,” in International law in the U.S. Supreme Court: Continuity and Change 589, 593 (David L. Sloss, Michael D. Ramsey & William S. Dodge, eds., 2011)10.1017/CBO9780511977121.031 (“During the late twentieth century, the lower courts rarely invoked non-self-execution doctrine or the presumption against individually enforceable rights in cases between private parties, but they often invoked those doctrines to justify their refusal to enforce treaties against government actors”).

¹³ Louis Henkin, supra Footnote note 9.

¹⁴ Medellin v. Texas, 552 U.S. 491, 505 (2008).

¹⁵ Hathaway et al., supra Footnote note 8, at 71 (discussing Mora v. New York, 524 F.3d 183 (2d Cir. 2008)); Gross v. German Foundation Industrial Initiative, 549 F.3d 605 (3d Cir. 2008); Gandara v. Bennett, 528 F.3d 823 (11th Cir. 2008); Toor v. Holder, 717 F. Supp. 2d 100 (D.D.C. 2010).

¹⁶ See Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599, 629–32 (2008).

¹⁷ See Abram Chayes, Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976) (discussing public law litigation).

¹⁸ Chayes, Public Law Litigation and the Burger Court, supra Footnote note 17, at 5.

¹⁹ See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Ass’n of Data Processing Orgs. v. Camp, 397 U.S. 150 (1970); 52 U.S.C. § 702.

²⁰ Lujan, supra Footnote note 3, at 574–8.

²¹ Footnote Ibid. at 576–7.

²² See generally Harold H. Koh, Transnational Public Law Litigation, 100 Yale L.J. 2347, 2362 (1991)10.2307/796897.

²³ Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). For a challenge to the suitability of applying the public law litigation model in the foreign affairs context, see Ann Woolhandler, Treaties, Self-Execution, and the Public Law Litigation Model, 42 Va. J. Int’l L. 757 (2002).

²⁴ See Jonathan C. Drimmer & Sarah R. Lamoree, Think Globally, Sue Locally: Trends and Out-of-Court Tactics in Transnational Tort Actions, 29 Berkeley J. Int’l L. 456, 460 (2011); Michael Goldhaber, The Life and Death of the Corporate Alien Tort, Law.com (Oct. 12, 2010), www.law.com/jsp/law/international/LawArticleIntl.jsp?id=1202473215797&slreturn=20140016104130.

²⁵ See, e.g., Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003); Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999); Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996); Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995); Siderman de Blake v. Republic of Arg., 965 F.2d 699 (9th Cir. 1992); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).

²⁶ Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004).

²⁷ Footnote Ibid. at 725. The Court stated that the modern-day international norms must be accepted by the civilized world and be defined with a specificity comparable to the features of the eighteenth century paradigms, namely violations of safe conduct, infringements of the rights of ambassadors, and piracy. See Footnote ibid. at 715 and 725.

²⁸ With the holding that the violations alleged in Sosa were not tied to international law norms sufficiently universal, it was unnecessary to consider the extent to which the alleged harm was individualized.

²⁹ See, e.g., Bowoto v. Chevron Corp., 621 F.3d 1116, 1122–3 (9th Cir. 2010); In re Estate of Marcos, 25 F.3d 1467, 1476 (9th Cir. 1994); Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1355–58 (S.D. Fla. 2011); Beanal v. Freeport-McMoran, 969 F. Supp. 362, 366–68 (E.D. La. 1997); Xuncax v. Gramajo, 886 F. Supp. 162, 169, 173 (D. Mass. 1995). See generally Alastair J. Agcaoili, Wrongful Death and Survival Actions for Torts in Violation of International Law, 50 San Diego L. Rev. 383 (2013).

³⁰ See Baloco ex rel. Tapia v. Drummond Co., Inc., 640 F.3d 1338, 1343–4 (11th Cir. 2011); Beanal, supra Footnote note 29, at 367–70.

³¹ U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”).

³² See, e.g., Moser v. United States, 341 U.S. 41 (1951); The Chinese Exclusion Case, 130 U.S. 581, 600–2 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Head Money Cases, 112 U.S. 580, 599 (1884); The Cherokee Tobacco, 78 U.S. (11 Wall) 616 (1870).

³³ Third Restatement § 115(1)(a). However, this rule does not “relieve the United States of its international obligations or the consequence of a violation of that obligation.” Footnote Ibid. at § 115(1)(b).

³⁴ Footnote Ibid. at § 115(2). See Cook v. United States, 288 U.S. 102 (1933).

³⁵ Louis Henkin, Treaties in a Constitutional Democracy, 10 Mich. J. Int’l L. 406, 425–6 (1989); Jordan J. Paust, Rediscovering the Relationship Between Congressional Power and International Law: Exceptions to the Last-in-time rule and the Primacy of Custom, 28 VA. J. INT’L L. 393, 398–414 (1988); Peter Westen, The Place of Foreign Treaties in the Courts of the United States: A Reply to Louis Henkin, 101 Harv. L. Rev. 511, 512, 516 (1987)10.2307/1341265; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 870–8, 853, 885–7 (1987)10.2307/1341097; Louis Henkin, Foreign Affairs and the Constitution, 163–4 (1972).

³⁶ Henkin, supra Footnote note 35, at 164.

³⁷ Jules Lobel, The Limits of Constitutional Power: Conflicts between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1096–1101 (1985).

³⁸ Third Restatement, at § 115, note 1 citing Louis Henkin, Foreign Affairs and the Constitution 163–4 (1972).

³⁹ Footnote Ibid. Another note suggested that the last-in-time rule should apply to customary international law but conceded that courts are unlikely to give a later customary international law rule domestic effect in the face of an earlier federal statute. Footnote Ibid. at § 115, note 4.

⁴⁰ Akhal Amar, America’s Constitution, 302–5 (2012); Vasan Kesavan, The Three Tiers of Federal Law, 100 Nw. U. L. Rev. 1479 (2006); John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 Mich. L. Rev. 757, 815–16 (2001); John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 Colum. L. Rev. 2218, 2243 (1999)10.2307/1123610.

⁴¹ See, e.g., Curtis A. Bradley, Federalism and the Treaty Power, 98 Amer. Soc. Int’l. Proc. 341, 342 (2001); Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1998)10.2307/1290290.

⁴² Julian G. Ku, Treaties as Laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes, 80 Ind. L.J. 319 (2005).

⁴³ Breard v. Greene, 523 U.S. 371, 376 (1998) (citing Reid v. Covert, 354 U.S. 1, 18 (1957)).

⁴⁴ Footnote Ibid. at 376 (quoting Reid v. Covert, 354 U.S. 1, 18 (1957)).

⁴⁵ See Breard, supra Footnote note 43; Rainey v. United States, 232 U.S. 310 (1914); Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1899); Head Money Case (Edye v. Robertson), 112 U.S. 580 (1884); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870); Jamieson v. C.I.R., 584 F.3d 1074, 1075–6 (D.C. Cir. 2009); Port Authority of New York and New Jersey v. Dep’t of Transp., 479 F.3d 21, 31 (D.C. Cir. 2007); Fund for Animals, Inc., v. Kempthorne, 472 F.3d 872, 874–77 (D.C. Cir. 2006); Kappus v. C.I.R., 337 F.3d 1053, 1057–60 (D.C. Cir. 2003); Havana Club Holding, S.A. v. Galleon, S.A., 203 F.3d 116, 124 (2d Cir. 2000); South African Airways v. Dole, 817 F.2d 119 (D.C. Cir. 1987). See generally Detlev Vagts, The United States and Its Treaties: Observance and Breach, 95 Amer. J. Int’l L. 313, 313–21 (2001).

⁴⁶ But see Cook v. United States, 288 U.S. 102, 118–20 (1933) (enforcing subsequent treaty); Greci v. Birknes, 527 F.2d 956, 959–61 (1st Cir. 1976) (same). Recently the United States has entered into numerous mutual legal assistance treaties (MLATs) to facilitate effective investigation and prosecution of criminal activities. These MLATs streamline the process of serving letters rogatory and guarantee that the United States will provide greater legal assistance with respect to discovery requests by foreign governments for use in criminal proceedings abroad. These treaties are self-executing and conflict with an earlier statute, 28 U.S.C. § 1782, which grants federal courts significant discretion to deny discovery requests based on substantive protections relating to, inter alia, privileged evidence and foreign discoverability. In other words, discovery pursuant to the MLATs is direct and automatic, not indirect and discretionary as required under Section 1782. For cases according precedence to MLATs over § 1782, see, e.g., In re Premises Located at 840 140th Avenue NE, Bellevue, Washington, 634 F.3d 557, 567–71 (9th Cir. 2011); In re Commissioner’s Subpoenas, 325 F.3d 1287, 1305–06 (11th Cir. 2003); In re Erato, 2 F.3d 11, 15–16 (2d Cir. 1993).

⁴⁷ See, e.g., Weber v. Finker, 554 F.3d 1379, 1383–84 (11th Cir. 2009); Blanco v. United States, 775 F.2d 53 (2d Cir. 1985); United States v. Trustees of Boston College, 831 F. Supp. 2d 435, 449 (D. Mass. 2011).

⁴⁸ Whitney v. Robertson, 124 U.S. 190, 195(1888).

⁴⁹ Kappus v. Commissioner of Internal Revenue, 337 F.3d 1053 (D.C. Cir. 2003).

⁵⁰ Footnote Ibid. at 1057–60.

⁵¹ Footnote Ibid.

⁵² Empresa Cubana del Tobaco v. Culbro Corp., 399 F.3d 462 (2d Cir. 2005).

⁵³ Footnote Ibid. at 481.

⁵⁴ Footnote Ibid.

⁵⁵ 369 U.S. 186, 211–12 (1962).

⁵⁶ 444 U.S. 996, 1002–3 (1979).

⁵⁷ See generally Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897, 1925 (2014); Michael D. Ramsey, The Constitution’s Text in Foreign Affairs, 322 (2007); K. Lee Boyd, Universal Jurisdiction and Structural Reasonableness, 40 Tex. Int’l L. J. 1, 12–16 (2004); K. Lee Boyd, Are Human Rights Political Questions, 53 Rutgers L. Rev. 277, 278–98 (2001); David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. Colo. L. Rev. 1439, 1446–87 (1999).

⁵⁸ Third Restatement § 1, Rptr. Note 4 (among the issues treated as political questions are the recognition of states, sovereignty over territory, and presidential engagement in hostilities without Congressional authorization).

⁵⁹ Footnote Ibid. at § 326.

⁶⁰ Footnote Ibid.

⁶¹ Footnote Ibid. at § 339.

⁶² Footnote Ibid. at § 339, Note 2.

⁶³ See Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221 (1986).

⁶⁴ Footnote Ibid. at 225–20. Four justices dissented with respect to the question of the Executive Branch’s compliance with the statute, implicitly concurring that the case was justiciable. Footnote Ibid. at 242–9.

⁶⁵ Boumediene v. Bush, 553 U.S. 723, 753–5 (2008).

⁶⁶ Footnote Ibid. at 755.

⁶⁷ See Baker v. Carr, 369 U.S. 210, 217 (1962) (“Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [4] or an unusual need for unquestioning adherence to a political decision already made; [5] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question”).

⁶⁸ Footnote Ibid. at 211–12.

⁶⁹ See Goldwater v. Carter, 444 U.S. 996, 1003–5 (1979) (Rehnquist, J., concurring).

⁷⁰ Footnote Ibid. at 1006 (Brennan, J., dissenting).

⁷¹ Footnote Ibid.

⁷² Footnote Ibid. at 999 (Powell, concurring).

⁷³ See, e.g., Beacon Products v. Reagan, 633 F. Supp. 1191, 1199 (D. Mass. 1986), aff’d on other grounds 814 F.2d 1 (1st Cir. 1987); Dole v. Carter, 569 F.2d 1109, 1110–12 (10th Cir. 1977).

⁷⁴ Made in the U.S.A. Foundation v. United States, 242 F.3d 1300 (11th Cir. 2001) cert. denied 534 U.S. 1039 (2001).

⁷⁵ Footnote Ibid. at 1312–8.

⁷⁶ See generally Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L. J. 1236 (2008)10.2307/20454683; Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev. 961 (2001); John C. Yoo, Laws as Treaties?: The Constitutionality of the Congressional-Executive Agreements, 99 Mich. L. Rev. 757, 766 (2001)10.2307/1290535; Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995)10.2307/1341856; Bruce Ackerman & David Golove, Is NAFTA Constitutional? 108 Harv. L. Rev. 799 (1995)10.2307/1341958.

⁷⁷ Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999).

⁷⁸ In re Ntakirutimana, 1998 WL 655708 (S.D. Tex. 1998).

⁷⁹ Footnote Ibid. at 424–7.

⁸⁰ Footnote Ibid. at 424–6 (discussing Valentine v. United States, 299 U.S. 5, 9, 18 (1936)).

⁸¹ Footnote Ibid. at 427.

⁸² Footnote Ibid.

⁸³ Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012).

⁸⁴ Footnote Ibid., quoting Nixon v. United States, 506 U.S. 224, 228 (1993).

⁸⁵ That is, the Court ignored the last three Baker factors. See Baker, supra Footnote note 67, at 217 (“[3] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [4] or an unusual need for unquestioning adherence to a political decision already made; [5] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question”).

⁸⁶ Zivotofsky, supra Footnote note 83, at 1428.

⁸⁷ Footnote Ibid. at 1430. After finding the matter justiciable, the Supreme Court struck down the statute specifying Israel as the place of birth as infringing on the Executive Branch’s exclusive authority to recognize foreign states and governments. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).

⁸⁸ Zivotofsky, supra Footnote note 83, at 1427–30; Baker, supra Footnote note 67, at 217.

⁸⁹ Leading Cases, 126 Harv. L. Rev. 307, 313 (2012).

⁹⁰ Zivotofsky, supra Footnote note 83, at 1432 (Sotomayor, J., dissenting).

⁹¹ Footnote Ibid. at 1432.

⁹² See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. Wash. L. Rev. 380, 432–4 (2015); Ingrid Wuerth, Book Review, 108 Am. J. Int’l L. 116, 117 (2014) (reviewing Curtis A. Bradley, International Law in the U.S. Legal System (2013); Sitaraman & Wuerth, supra Footnote note 57, at 1925–7; Carol Szurkowski, The Return of Classical Political Question Doctrine in Zivotofsky v. Clinton, 37 Harv. J. L. & Pub. Pol’y 347, 358–61 (2014).

⁹³ For examples of how lower courts are interpreting the political question doctrine narrowly in light of Zivotofsky and outside of the treaty context, see, e.g., Harris v. Kellogg Brown & Root Services, Inc., 724 F.3d 458, 465, 465–78 (3d Cir. 2013); Kaplan v. Central Bank of the Islamic Republic of Iran, 961 F.3d 185, 191–3 (D.C. Cir. 2013); Republic of Iraq v. ABB AG, 920 F. Supp. 2d 517, 534–5 (S.D.N.Y. 2013); Alaska v. Kerry, 972 F. Supp. 2d 1111, 1122–31 (D. Alaska 2013).

⁹⁴ Chris Michel, There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton, 123 Yale L.J. 253, 261–2 (2013).

⁹⁵ See Ministry of Oil of Republic of Iraq v. 1,032,212 Barrels of Crude Oil Aboard United Kalavrvta, 2015 Westlaw 93900 (S.D. Texas 2015); Republic of Iraq v. ABB AG, 920 F. Supp. 517, 534–5 (SDNY 2013).

⁹⁶ Harris, 724 F.3d at 477–8; Kerry, 972 F.2d at 1122–31; Center for Biological Diversity v. Hagel, 80 F.Supp.3d 991, 1001–1011 (N.D. Cal. 2015).

⁹⁷ But see Hourani v. Mirtchev, 796 F.3d 1, 8–9 (D.C. Cir. 2015) (discussing two factors presented in Zivotofsky without citing Baker or suggesting that other Baker factors are still relevant); Al Shimari v. CACI Premier Tech., Inc., No. 1:08-cv-00827-GBL-JFA, 2015 U.S. Dist. LEXIS 107511 (E.D. Va. June 18, 2015) (same); Starr International Co. v. United States, 121 Fed. Cl. 428, 2015 WL 5542545 (D.D.C. 2015) (“it is unclear whether factors three through six [of Baker] remain relevant after the Supreme Court’s restrictive formulations in … Zivotofsky”).

⁹⁸ Third Restatement, § 313.

⁹⁹ Footnote Ibid. at § 314.

¹⁰⁰ Footnote Ibid. at § 313, cmt. g.

¹⁰¹ Footnote Ibid. at § 314(2).

¹⁰² Footnote Ibid. § 303, cmt. d; see also Footnote ibid. § 314, cmt. e.

¹⁰³ See U.S. Senate Resolution of Advice and Consent to Ratification of the Convention on the Elimination of All Forms of Racial Discrimination, 140 Cong. Rec. S14326 (daily ed. June 24, 1994); U.S. Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, 138 Cong. Rec. S4783 (daily ed. Apr. 2, 1992); U.S. Senate Resolution of Advice and Consent to Ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 136 Cong. Rec. S17491 (daily ed. Oct. 27, 1990); U.S. Senate Resolution of Advice and Consent to Ratification of the Convention on the Prevention and Punishment of the Crime of Genocide, 132 Cong. Rec. S1378 (daily ed. Feb. 19, 1986).

¹⁰⁴ Substantive RUDs limit the scope of the treaty obligation undertaken while procedural RUDs inform how the treaty obligation will be enforced within the U.S. legal system. See Brad R. Roth, Under the “Understanding”: Federalism Constraints on Human Rights Implementation, 47 Wayne L. Rev. 891 (2001).

¹⁰⁵ See Torture Victim Protection Act, 28 U.S.C. § 1350 note; Genocide Convention Implementation Act of 1987, 18 U.S.C. §§ 1091–3.

¹⁰⁶ See Stewart, Chapter 6 of this volume; David P. Stewart, United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings, and Declarations, 42 DePaul L. Rev. 1183, 1206 (1993) (“The premise underlying most of the [RUDs] was the conclusion that existing U.S. law, even if not strictly in conformity with the precise language of the Covenant [on Civil and Political Rights], was acceptable and indeed preferable”).

¹⁰⁷ See Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U. Pa. L. Rev. 245 (2001)10.2307/3312917; Brad R. Roth, Understanding the “Understanding,” supra Footnote note 104; Peter J. Spiro, The States and International Human Rights, 66 Fordham L. Rev. 567 (1997); Thomas Buergenthal, Modern Constitutions and Human Rights Treaties, 36 Colum. J. Transnat’l L. 211 (1997); Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341 (1995); William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?, 21 Brook. J. Int’l L. 277 (1995); Lori Fisler Damrosch, The Role of the United States Senate Concerning “Self-Executing” and “Non-Self-Executing” Treaties, 67 Chi.-Kent L. Rev. 515 (1991); Louis Henkin, Rights: American and Human, 79 Colum. L. Rev. 405 (1979)10.2307/1121801.

¹⁰⁸ Harold H. Koh, A United States Human Rights Policy for the 21st Century, 46 St. Louis L.J. 293, 308 (2002).

¹⁰⁹ See Jack Goldsmith, The Unexceptional U.S. Human Rights RUDs, 3 U. St. Thomas L.J. 311 (2005); Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399 (2000)10.2307/3312731; Jack Goldsmith, International Human Rights Law and the United States Double Standard, 1 Green Bag 2d 365 (1998).

¹¹⁰ Bradley & Goldsmith, supra Footnote note 109, at 402.

¹¹¹ International Law in a World of Multiple Actors: A Conversation with Louis Henkin and Louis B. Sohn, 92 Am. Soc. Int’l L. Proc. 248, 257 (1998).

¹¹² Buergenthal, supra Footnote note 107, at 221.

¹¹³ There are, of course, numerous instances in which international human rights treaties are more protective than domestic statutes. In those instances, the impact of RUDs in limiting the judicial enforcement of treaty law is highly significant. See Connie de la Vega, Civil Rights during the 1990s: New Treaty Law Could Help Immensely, 65 U. Cin. L. Rev. 423 (1997).

¹¹⁴ See Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U.S.T. 77, 100–101, T.I.A.S. No. 6820; Cong. Rec. 30997 (1969); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).

¹¹⁵ Vienna Convention, supra Footnote note 114, at art. 36.

¹¹⁶ See, e.g., Sanchez-Llamas, supra Footnote note 114; Medellin v. Dretke, 544 U.S. 660 (2005); Breard, supra Footnote note 43, at 371 (1998); Gandara v. Bennett, 528 F.3d 823 (11th Cir. 2008); Gomez v. Dretke, 422 F.3d 264 (5th Cir. 2005); United States v. Luna-Rodriguez, 242 F.3d 384 (9th Cir. 2000); Buquer v. City of Indianapolis, (S.D. Ind. 2011); United States v. Cisneros, 397 F. Supp. 2d 726 (E.D. Va. 2005); Standt v. City of New York, 153 F. Supp. 2d 417 (S.D.N.Y. 2001); Salazar v. Burresch, 47 F. Supp. 2d 1105 (C.D. Cal. 1999).

¹¹⁷ See United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150, T.I.A.S. No. 6577.

¹¹⁸ See, e.g., Sale v. Haitian Centers Council, 509 U.S. 155 (1993); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987); I.N.S. v. Stevic, 467 U.S. 407 (1984); Annachamy v. Holder, 733 F.3d 254, (9th Cir. 2012); Garcia v. I.N.S., 7 F.3d 1320 (7th Cir. 1993); Chim Ming v. Marks, 505 F.2d 1170 (2d Cir. 1974).

¹¹⁹ David Sloss, Domestic Application of Treaties, in The Oxford Guide to Treaties, 367, 391 (D. Hollis, ed., 2012); David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129, 183–8 (1999); Stewart, supra Footnote note 106, at 1206.

¹²⁰ Sloss, Domestic Application of Treaties, supra Footnote note 119, at 391.

¹²¹ See David Sloss, United States, in The Role of Domestic Courts in Treaty Enforcement 504, 519 (D. Sloss, ed., 2009).

¹²² For a discussion of the judicial enforcement of such transnational treaties, see Paul Stephan, Treaties in the Supreme Court, 1946–2000, in International Law in the U.S. Supreme Court, 317, 346–52 (D. Sloss & M. Ramsey & W. Dodge, eds. 2011); Sloss, United States, supra Footnote note 121, at 515–52; Sloss, Domestic Application of Treaties, supra Footnote note 119, at 376–9, 389–90.

¹²³ See Sloss, Domestic Application of Treaties, supra Footnote note 119, at 388. There also are instances, of course, in which courts do not effectively enforce horizontal treaties that operate on the domestic plane. See generally Dubinsky, Chapter 3 in this volume (discussing Aerospatiale and the Hague Evidence Convention and Schlunk and the Hague Service Convention).

¹²⁴ If States wish to require judicial enforcement of treaty obligations, they can so specify in the treaty. See, e.g., New York Convention, art. 2(3); United Nations Convention against Corruption, art. 31(7).

¹²⁵ Sean D. Murphy, Does International Law Obligate States to Open Their National Courts to Persons for the Invocation of Treaty Norms That Protect or Benefit Persons?, in Sloss, supra Footnote note 121 The Role of Domestic Courts in Treaty Enforcement 61, 63.

¹²⁶ See supra Footnote note 105.

¹²⁷ Third Restatement at 3.

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