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Treaties as Law of the Land

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Treaties as Law of the Land

Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”270 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”271

270 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). See THE FEDERALIST No. 75 (J. Cooke ed. 1961), 504-505.

271 112 U.S. 580, 598 (1884). (quoted with approval in Medellin v. Texas, 128 S. Ct. 1346, 1357, 1358-59 (2008)) For treaty provisions operative as “law of the land” (self-executing), see S. Crandall, supra, at 36-42, 49-62, 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. For treaty provisions of an “executory” character, see id. at 162-63, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, supra, at 41-68; Restatement, Foreign Relations, supra, §§ 111-115.

The meaning of treaties, as of statutes, is determined by the courts. “If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution.”17 Yet, “[w]hile courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”18 Decisions of the International Court of Justice (ICJ) interpreting treaties, however, have “no binding force except between the parties and in respect of that particular case.”19 ICJ decisions “are therefore entitled only to the ‘respectful consideration’ due an interpretation of an international agreement by an international court.”20

Even when an ICJ decision has binding force as between the governments of two nations, it is not necessarily enforceable by the individuals affected. If, for example, the ICJ finds that the United States violated a particular defendant’s rights under international law, and such a decision “constitutes an international law obligation on the part of the United States,” it does not necessarily “constitute binding federal law enforceable in United States courts… [W]hile treaties may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing and is ratified on these terms.”21 A memorandum from the President of the United States directing that the United States would “discharge its international obligations” under an ICJ decision interpreting a non-self-executing treaty, “by having State courts give effect to the decision,” is not sufficient to make the decision binding on state courts, unless the President’s action is authorized by Congress.22

17 Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 (2006), quoting Marbury v. Madison, 5 U.S. (1 Cr.) 137, 177 (1803). In Sanchez-Llamas, two foreign nationals were arrested in the United States, and, in violation of Article 36 of the Vienna Convention on Consular Relations, their nations’ consuls were not notified that they had been detained by authorities in a foreign country (the U.S.). The foreign nationals were convicted in Oregon and Virginia state courts, respectively, and cited the violations of Article 36 in challenging their convictions. The Court did not decide whether Article 36 grants rights that may be invoked by individuals in a judicial proceeding (four justices would have held that it did grant such rights). The reason that the Court did not decide whether Article 36 grants rights to defendants was that it held, by a 6-to-3 vote, that, even if Article 36 does grant rights, the defendants in the two cases before it were not entitled to relief on their claims. It found, specifically, that “suppression of evidence is [not] a proper remedy for a violation of Article 36,” and that “an Article 36 claim may be deemed forfeited under state procedural rules because a defendant failed to raise the claim at trial.” Id. at 342.

18 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).

19 Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added by the Court).

20 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam).

21 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008) (emphasis in the original, internal quotation marks omitted). As in the case of the foreign nationals in Sanchez-Llamas, Medellin’s nation’s consul had not been notified that he had been detained in the United States. Unlike the foreign nationals in Sanchez-Llamas, however, Medellin was named in an ICJ decision that found a violation of Article 36 of the Vienna Convention.

22 Medellin v. Texas, 128 S. Ct. 1346, 1353 (2008). “[T]he non-self-executing character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts.” Id. at 1371. The majority opinion in Medellin was written by Chief Justice Roberts. Justice Stevens, concurring, noted that, even though the ICJ decision “is not ‘the supreme Law of the Land,’ U.S. Const., Art. VI, cl. 2,” it constitutes an international law obligation not only on the part of the United States, but on the part of the State of Texas. Id. at 1374. This, of course, does not make it enforceable against Texas, but Justice Stevens found that “[t]he cost to Texas of complying with [the ICJ decision] would be minimal.” Id. at 1375. Justice Breyer, joined by Justices Souter and Ginsburg, dissented, writing that “the consent of the United States to the ICJ’s jurisdiction[ ] bind[s] the courts no less than would ‘an act of the [federal] legislature.’” Id. at 1376. The dissent believed that, to find treaties non-self-executing “can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.” Id. at 1381-82. Moreover, Justice Breyer wrote, the Court’s decision “place[s] the fate of an international promise made by the United States in the hands of a single State… And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause.” Id. at 1384. On August 5, 2008, the U.S. Supreme Court denied Medellin a stay of execution. Medellin v. Texas, 129 S. Ct. 360 (2008) (Justices Stevens, Souter, Ginsburg, and Breyer dissenting), and Texas executed him the same day.

Origin of the Conception.—How did this distinctive feature of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them enforceable by the courts without further action? The short answer is that Article VI, paragraph 2, makes treaties the supreme law of the land on the same footing with acts of Congress. The clause was a direct result of one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress’ promises was dependent on the state legislatures.272 Particularly with regard to provisions of the Treaty of Peace of 1783,273 in which Congress stipulated to protect the property rights of British creditors of American citizens and of the former Loyalists,274 the promises were not only ignored but were deliberately flouted by many legislatures.275 Upon repeated British protests, John Jay, the Secretary for Foreign Affairs, suggested to Congress that it request state legislatures to repeal all legislation repugnant to the Treaty of Peace and to authorize their courts to carry the treaty into effect.276 Although seven States did comply to some extent, the impotency of Congress to effectuate its treaty guarantees was obvious to the Framers who devised Article VI, paragraph 2, to take care of the situation.277

272 S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT ch. 3. (2d ed. 1916)

273 Id. at 30-32. For the text of the Treaty, see 1 Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers (1776-1909), 586 S. DOC. NO. 357, 61st Congress, 2d sess. (W. Malloy ed., 1910).

274 Id. at 588.

275 R. MORRIS, JOHN JAY, THE NATION, AND THE COURT 73-84 (1967).

276 S. Crandall, supra, at 36-40.

277 The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 M. Farrand, supra, at 47, 54, and then adopted the Paterson Plan which made treaties the supreme law of the land, binding on state judges, and authorized the Executive to use force to compel observance when such treaties were resisted. Id. at 245, 316, 2 id. at 27-29. In the draft reported by the Committee on Detail, the language thus adopted was close to the present supremacy clause; the draft omitted the authorization of force from the clause, id. at 183, but in another clause the legislative branch was authorized to call out the militia to, inter alia, “enforce treaties”. Id. at 182. The two words were struck subsequently “as being superfluous” in view of the supremacy clause. Id. at 389-90.

Treaties and the States.—As it so happened, the first case in which the Supreme Court dealt with the question of the effect of treaties on state laws involved the same issue that had prompted the drafting of Article VI, paragraph 2. During the Revolutionary War, the Virginia legislature provided that the Common-wealth’s paper money, which was depreciating rapidly, was to be legal currency for the payment of debts and to confound creditors who would not accept the currency provided that Virginia citizens could pay into the state treasury debts owed by them to subjects of Great Britain, which money was to be used to prosecute the war, and that the auditor would give the debtor a certificate of payment which would discharge the debtor of all future obligations to the creditor.278 The Virginia scheme directly contradicted the assurances in the peace treaty that no bars to collection by British creditors would be raised, and in Ware v. Hylton279 the Court struck down the state law as violative of the treaty that Article VI, paragraph 2, made superior. Said Justice Chase: “A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the constitution of a State . . . must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States shall be superior to the Constitution and laws of any individual State; and their will alone is to decide.”280

In Hopkirk v. Bell,281 the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitation to bar collection of antecedent debts. In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate.282 Such a case was Hauenstein v. Lynham,283 in which the Court upheld the right of a citizen of the Swiss Republic, under the treaty of 1850 with that country, to recover the estate of a relative dying intestate in Virginia, to sell the same, and to export the proceeds of the sale.284

278 9 W. HENING, STATUTES OF VIRGINIA 377-380 (1821).

279 3 U.S. (3 Dall.) 199 (1796).

280 3 U.S. at 236-37 (emphasis by Court).

281 7 U.S. (3 Cr.) 454 (1806).

282 See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483, 489-90 (1880).

283 100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197-98 (1961), the International Monetary Fund (Bretton Woods) Agreement of 1945, to which the United States and Yugoslavia were parties, and an Agreement of 1948 between these two nations, coupled with continued American observance of an 1881 treaty granting reciprocal rights of inheritance to Yugoslavian and American nations, were held to preclude Oregon from denying Yugoslavian aliens their treaty rights because of a fear that Yugoslavian currency laws implementing such Agreements prevented American nationals from withdrawing the proceeds from the sale of property inherited in the latter country.

284 See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S. 187 (1961). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a state statute which denied to a non-resident alien wife of a person killed within the State, the right to sue for wrongful death. Such right was afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen’s Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato v. Royer, 270 U.S. 535 (1926).

Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute which excluded aliens ineligible to American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.285 But in Oyama v. California,286 a majority of the Court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of the Fourteenth Amendment, a view which has since received the endorsement of the California Supreme Court by a narrow majority.287 Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923, between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting state legislation.288

285 Terrace v. Thompson, 263 U.S. 197 (1923).

286 332 U.S. 633 (1948). See also Takahashi v. Fish Comm’n, 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship was disallowed, both on the basis of the Fourteenth Amendment and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was relied upon.

287 This occurred in the much advertised case of Sei Fujii v. State, 38 Cal. 2d 718, 242 P. 2d 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55 and 56], said Chief Justice Gibson, “[w]e are satisfied . . . were not intended to supersede domestic legislation.” That is, the Charter provisions were not self-executing. Restatement, Foreign Relations, supra, § 701, Reporters’ Note 5, pp. 155-56.

288 Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S. 187 (1961).

Treaties and Congress.—In the Convention, a proposal to require the adoption of treaties through enactment of a law before they should be binding was rejected.289 But the years since have seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the effects of statutes, in connection with the treaty power. For purposes of this section, the question is whether entry into and ratification of a treaty is sufficient in all cases to make the treaty provisions the “law of the land” or whether there are some types of treaty provisions which only a subsequent act of Congress can put into effect? The language quoted above290 from Foster v. Neilson291 early established that not all treaties are self-executing, for as Marshall there said, a treaty is “to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.”292

Leaving aside the question when a treaty is and is not self-executing,293 the issue of the necessity of congressional implementation and the obligation to implement has frequently roiled congressional debates. The matter arose initially in 1796 in connection with the Jay Treaty,294 certain provisions of which required appropriations to carry them into effect. In view of the third clause of Article I, § 9, which says that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . .”, it seems to have been universally conceded that Congress must be applied to if the treaty provisions were to be executed.295 A bill was introduced into the House to appropriate the needed funds and its supporters, within and without Congress, offered the contention that inasmuch as the treaty was now the law of the land the legislative branch was bound to enact the bill without further ado; opponents led by Madison and Gallatin contended that the House had complete discretion whether or not to carry into effect treaty provisions.296 At the conclusion of the debate, the House voted not only the money but a resolution offered by Madison stating that it did not claim any agency in the treaty-making process, “but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.”297 This early precedent with regard to appropriations has apparently been uniformly adhered to.298

289 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 392-394 (rev. ed. 1937).

290 Supra, “Treaties as Law of the Land”.

291 27 U.S. (2 Pet.) 253, 314 (1829).

292 Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): “When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect .... If the treaty contains stipulations which are self-executing that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.” S. Crandall, supra, chs. 11-15.

293 See infra, “When Is a Treaty Self-Executing”.

294 8 Stat. 116 (1794).

295 The story is told in numerous sources. E.g., S. Crandall, supra, at 165-171. For Washington’s message refusing to submit papers relating to the treaty to the House, see J. Richardson, supra at 123.

296 Debate in the House ran for more than a month. It was excerpted from the ANNALS separately published as DEBATES IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, DURING THE FIRST SESSION OF THE FOURTH CONGRESS UPON THE CONSTITUTIONAL POWERS OF THE HOUSE WITH RESPECT TO TREATIES (1796). A source of much valuable information on the views of the Framers and those who came after them on the treaty power, the debates are analyzed in detail in E. BYRD, TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITES STATES 35-59 (1960).

297 5 ANNALS OF CONGRESS 771, 782 (1796). A resolution similar in language was adopted by the House in 1871. CONG. GLOBE, 42d Congress, 1st sess. (1871), 835.

298 S. Crandall, supra, at 171-182; 1 W. WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES 549-552 (2d ed. 1929); but see RESTATEMENT, FOREIGN RELATIONS, supra, § 111, Reporters’ Note 7, p. 57. See also H. Rep. 4177, 49th Congress, 2d Sess. (1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).

Similarly, with regard to treaties which modify and change commercial tariff arrangements, the practice has been that the House always insisted on and the Senate acquiesced in legislation to carry into effect the provisions of such treaties.299 The earliest congressional dispute came over an 1815 Convention with Great Britain,300 which provided for reciprocal reduction of duties. President Madison thereupon recommended to Congress such legislation as the convention might require for effectuation. The Senate and some members of the House were of the view that no implementing legislation was necessary because of a statute, which already permitted the President to reduce duties on goods of nations that did not discriminate against United States goods; the House majority felt otherwise and compromise legislation was finally enacted acceptable to both points of view.301 But subsequent cases have seen legislation enacted,302 the Senate once refused ratification of a treaty, which purported to reduce statutorily-determined duties,303 and congressional enactment of authority for the President to negotiate reciprocal trade agreements all seem to point to the necessity of some form of congressional implementation.

299 S. Crandall, supra, at 183-199.

300 8 Stat. 228.

301 3 Stat. 255 (1816). See S. Crandall, supra, at 184-188.

302 Id. at 188-195; 1 W. Willoughby, supra, at 555-560.

303 S. Crandall, supra, at 189-190.

What other treaty provisions need congressional implementation is subject to argument. In a 1907 memorandum approved by the Secretary of State, it is said, in summary of the practice and reasoning from the text of the Constitution, that the limitations on the treaty power which necessitate legislative implementation may “be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers....”304 The same thought has been expressed in Congress305 and by commentators.306 Resolution of the issue seems particularly one for the attention of the legislative and executive branches rather than for the courts.

Congressional Repeal of Treaties.—It is in respect to his contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question: What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States do not diminish Congress’ constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said: “Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.”307

304 Anderson, The Extent and Limitations of the Treaty-Making Power, 1 AM. J. INTL L. 636, 641 (1907).

305 At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was bound to provide, but did not indicate what in their opinion made some treaties self-executing and others not. 29 ANNALS OF CONGRESS 160 (1816). The House conferees observed that they thought, and that in their opinion the Senate conferees agreed, that legislative implementation was necessary to carry into effect all treaties which contained “stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory... .” Id. at 1019. Much the same language was included in a later report, H. Rep. No. 37, 40th Congress, 2d Sess. (1868). Controversy with respect to the sufficiency of Senate ratification of the Panama Canal treaties to dispose of United States property therein to Panama was extensive. A divided Court of Appeals for the District of Columbia reached the question and held that Senate approval of the treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 (D.C. Cir.), cert. denied, 436 U. S. 907 (1978).

306 T. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 175 (3d ed. 1898); Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 353-356 (1922).

307 Head Money Cases, 112 U.S. 580, 598-599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in 1854. 6 Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United States circuit court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 1855). See also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871); United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez, 130 U.S. 238 (1889); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721 (1893). “Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.” La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart v. Felps, 73 U.S. (6 Wall.) 160, 165-166 (1868), wherein it is stated obiter that “Congress is bound to regard the public treaties, and it had no power . . . to nullify [Indian] titles confirmed many years before... .”

Treaties Versus Prior Acts of Congress.—The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. Chief Justice Marshall early asserted that the converse would be true as well,308 that a treaty which is self-executing is the law of the land and prevails over an earlier inconsistent statute, a proposition repeated many times in dicta.309 But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, says: “In fact, however, there have been few (the writer is not certain that there has been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject.”310

308 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314-315 (1829). In a later case, it was determined in a different situation that by its terms the treaty in issue, which had been assumed to be executory in the earlier case, was self-executing. United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833).

309 E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220-221 (1902); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309, 320-321 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888).

310 1 W. Willoughby, supra, at 555.

The one instance that may be an exception311 is Cook v. United States.312 There, a divided Court held that a 1924 treaty with Great Britain, allowing the inspection of English vessels for contraband liquor and seizure if any was found only if such vessels were within the distance from the coast that could be traversed in one hour by the vessel suspecting of endeavoring to violate the prohibition laws, had superseded the authority conferred by a section of the Tariff Act of 1922313 for Coast Guard officers to inspect and seize any vessel within four leagues—12 miles—of the coast under like circumstances. The difficulty with the case is that the Tariff Act provision had been reenacted in 1930,314 so that a simple application of the rule of the later governing should have caused a different result. It may be suspected that the low estate to which Prohibition had fallen and a desire to avoid a diplomatic controversy should the seizure at issue have been upheld were more than slightly influential in the Court’s decision.

When Is a Treaty Self-Executing.—Several references have been made above to a distinction between treaties as self-executing and as merely executory, in which case they are enforceable only after the enactment of “legislation to carry them into effect.”23 But what is it about a treaty that makes it the law of the land and which gives a private litigant the right to rely on it in a court of law? As early as 1801, the Supreme Court took notice of a treaty, and finding it applicable to the situation before it, gave judgment for the petitioner based on it.315 In Foster v. Neilson,316 Chief Justice Marshall explained that a treaty is to be regarded in courts “as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.” A treaty will not be self-executing, however, “when the terms of the [treaty] stipulation import a contract — when either of the parties engages to perform a particular act…” When this is the case, “the treaty addresses itself to the political, not the judicial department; and the legislature must execute the con tract, before it can become a rule for the court.”24

Sometimes the nature of a treaty will determine whether it requires legislative execution or “conveys an intention that it be ‘self-executing’ and is ratified on these terms.”25 One authority states that whether a treaty is self-executing “depends upon whether the obligation is imposed on private individuals or on public authorities…”

311 Other cases, which are cited in some sources, appear distinguishable. United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801), applied a treaty entered into subsequent to enactment of a statute abrogating all treaties then in effect between the United States and France, so that it is inaccurate to refer to the treaty as superseding a prior statute. In United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876), the treaty with an Indian tribe in which the tribe ceded certain territory, later included in a State, provided that a federal law restricting the sale of liquor on the reservation would continue in effect in the territory ceded; the Court found the stipulation an appropriate subject for settlement by treaty and the provision binding. And see Charlton v. Kelly, 229 U.S. 447 (1913).

312 288 U.S. 102 (1933).

313 42 Stat. 858, 979, § 581.

314 46 Stat. 590, 747, § 581.

23 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Whitney v. Robertson, 124 U.S. 190, 194 (1888).

315 United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801).

316 27 U.S. (2 Pet.) 253, 314-15 (1829).

25 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Ingartua-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc).

26 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 1919); 1 W. WILLOUGHBY, supra, at 589. The State Department held the same view. G. HACKWORTH, 5 DIGEST OF INTERNATIONAL LAW 426 (1944).

“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .”

“On the other hand certain treaty obligations are addressed solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc.”319 It may well be that these two characteristics merge with each other at many points and the language of the Court is not always helpful in distinguishing them.320

319 Q. Wright, supra, at 207-208. See also L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 156-162 (1972).

320 Thus, compare Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314-315 (1829), with Cook v. United States, 288 U.S. 102, 118-19 (1933).

Treaties and the Necessary and Proper Clause.—What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress’ enumerated powers, then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals with a subject which falls within the national jurisdiction because of its international character, then recourse is had to the necessary and proper clause. Thus, of itself, Congress would have had no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.321 Congress could not confer judicial power upon American consuls abroad to be there exercised over American citizens, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements, and such legislation has been upheld.322

Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.323 And Congress could not ordinarily penalize private acts of violence within a State, but it can punish such acts if they deprive aliens of their rights under a treaty.324 Referring to such legislation, the Court has said: “The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with foreign power.”325 In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress’ enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; the only question that can be raised as to such measures is whether they are “necessary and proper” measures for the carrying of the treaty in question into operation.

321 Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614.

322 See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation, later reenacted at Rev. Stat. 4083-4091, was repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75 (1957).

323 18 U.S.C. §§ 3181-3195.

324 Baldwin v. Franks, 120 U.S. 678, 683 (1887).

325 Neely v. Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the court in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842), in the following words: “Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties.” Id. at 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power “to carry into effect rights expressly given and duties expressly enjoined” by the Constitution. Id. at 618-19. However, the treaty-making power is neither a right nor a duty, but one of the powers “vested by this Constitution in the Government of the United States.” Art. I, § 8, cl. 18.

The foremost example of this interpretation is Missouri v. Holland.326 There, the United States and Great Britain had entered into a treaty for the protection of migratory birds,327 and Congress had enacted legislation pursuant to the treaty to effectuate it.328 The State objected that such regulation was reserved to the States by the Tenth Amendment and that the statute infringed on this reservation, pointing to lower court decisions voiding an earlier act not based on a treaty.329 Noting that treaties “are declared the supreme law of the land,” Justice Holmes for the Court said: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.”330 “It is obvious,” he continued, “that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.”331 Since the treaty and thus the statute dealt with a matter of national and international concern, the treaty was proper and the statute was one “necessary and proper” to effectuate the treaty.

326 252 U.S. 416 (1920).

327 39 Stat. 1702 (1916).

328 40 Stat. 755 (1918).

329 United States v. Shauver, 214 F. 154 (E.D. Ark. 1914); United States v. McCullagh, 221 F. 288 (D. Kan. 1915). The Court did not purport to decide whether those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that Congress’ power under the commerce clause would be deemed more than adequate, but at that time a majority of the Court had a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918).

330 Missouri v. Holland, 252 U.S. 416, 432 (1920).

331 252 U.S. at 433. The internal quotation is from Andrews v. Andrews, 188 U.S. 14, 33 (1903).

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