Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon

Article excerpt

NOTE CONTENTS

I. HOW NON-SELF-EXECUTING TREATIES INFLUENCE STATUTORY
   INTERPRETATION
   A. The Charming Betsy Canon
   B. The Role of Non-Self-Executing Treaties Describing Customary
      International Law in Statutory Interpretation
   C. The Role of Non-Self-Executing Treaties Describing Treaty
      Commitments in Statutory Interpretation

II. THE CASE FOR EMPLOYING NON-SELF-EXECUTING TREATIES IN
   CONCERT WITH THE CHARMING BETSY CANON
   A. The Immaterial Distinction Between Self- and Non-Self-Executing
      Treaties in Statutory Interpretation
   B. The Charming Betsy Canon's Limited Application Fosters Relatively
      Costless Compliance with International Obligations
   C. The Charming Betsy Canon's Deference to the Political Branches
      Respects Separation-of-Powers Principles
   D. The Charming Betsy Canon Encourages Domestic Courts' Engagement
      with International Agreements and International Adoption of
      Domestic Norms
   E. Critiques of the Canon and Its Application

CONCLUSION

When the United States ratifies a treaty, (1) it accepts and is bound by the treaty's requirements as a matter of international law. (2) Not all of these international obligations, however, may be enforced directly. In the United States, treaties are divided into "self-executing treaties"--which can be immediately enforced in courts (3) and may create private rights of action (4)--and "non-self-executing treaties"--which may not be judicially enforceable or may have no status as domestic law unless Congress passes implementing legislation. (5) In light of this distinction, the political branches often ratify treaties with language identifying them as self- or non-self-executing. When the self-executing status of a treaty is unclear, courts examine its text, its history, and subsequent state practice to determine the parties' intentions. (6)

In Medellin v. Texas, the Supreme Court appeared to endorse the presumption that, unless their text indicates otherwise, treaties are not self-executing. (7) On a practical level, Medellin increases the likelihood that future treaties will include text clarifying whether they are self-executing, (8) but the status of numerous treaties passed without such language remains unclear. (9) The narrowest reading of Medellin in the context of treaty law is that, because the treaties that were at issue were not self-executing, an adverse decision of the International Court of Justice was unenforceable in domestic courts. (10) However, application of the Court's reasoning will likely result in more treaties being deemed non-self-executing, (11) and some lower courts appear to read Medellin as approving the presumption in favor of non-self-execution. (12)

Even before Medellin, non-self-executing treaties were commonly dismissed as ineffectual agreements, (13) and even the most informed and definitive international law texts suggest that such treaties are domestically impotent in the absence of implementing legislation. (14) As non-self-executing treaties, standing alone, are perceived as having little to no effect on domestic jurisprudence, Medellin's seeming new presumption triggered a flurry of commentary in the academic community. (15) Internationalist scholars deplored Medellin's apparent approval of a presumption against self-execution. (16) Meanwhile, given that nationalists had already made an argument for such a presumption, (17) it is unsurprising that they celebrated its endorsement by the Supreme Court. (18)

Both sides missed the essential point. (19) Self-execution is important insofar as it increases the likelihood that a treaty will create a private right of action, but treaties are rarely cited in domestic decisions on that basis. (20) Instead, treaties most often influence domestic jurisprudence indirectly, when used as interpretive tools in conjunction with the Charming Betsy canon. (21) The Charming Betsy canon of statutory interpretation is a rebuttable presumption that, when interpreting an ambiguous domestic statute, a judge should select a reading that accords with U. …