Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Judicial Enforcement of Treaties: Self-Execution and Related Doctrines

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Judicial Enforcement of Treaties: Self-Execution and Related Doctrines

Article excerpt

The panel was convened at 9:00 a.m., Saturday, April 1, by its chair, Carlos Vazquez of Georgetown University Law Center, who introduced the panelists: Robert Dalton of the U.S. Department of State; Vasan Kesavan of D.B. Zwiru & Co.; and Ann Woolhandler of the University of Virginia School of Law. *


This morning we will be discussing the judicial enforcement of treaties in the United States. In particular, I would like to focus on the relationship between a treaty's status as self-executing or not, and the question of its judicial enforceability.

The circumstances in which treaties may be enforced in court by individuals arises in three high-profile cases currently before the Supreme Court. In Hamdan v. Rumsfeld, an individual challenges the validity of the military commissions created by the president shortly after the attacks of September 11, 2001. (1) He argues that the president's order calling for the creation of the commissions violates the constitutional separation of powers and the Geneva Conventions. The U.S. Court of Appeals for the District of Columbia Circuit (with then-Judge John G. Roberts concurring) held that the individual rights conferred by the Geneva Conventions were not enforceable in domestic courts. (2) In reaching that conclusion, the court relied on the proposition that treaties are compacts between nations, typically enforceable through diplomatic negotiation, not in domestic courts. (3)

The other two cases involve the Vienna Convention on Consular Relations, a concededly self-executing treaty that provides, inter alia, that nationals of one state party detained by officials of another state party have a right to be informed without delay that they have a right to confer with their consul. (4) In Sanchez-Llamas v. Oregon, a criminal defendant sought to suppress a statement he gave to the police before he was notified of his right to communicate with his consul. The Oregon courts denied the requested relief on the ground that the rights conferred by the Vienna Convention are not judicially enforceable. (5) In Bustillo v. Johnson, a habeas corpus petition was filed by a prisoner who was convicted of murder without ever having been informed of his right to communicate with his consul. He argues that, if he had been informed of this right, the consul would have buttressed his argument at trial that the murder had actually been committed by another Honduran national then living in Virginia. (6)

Before the Supreme Court, the U.S. government argues in all three cases that treaties are generally compacts between nations with which domestic courts have nothing to do. While acknowledging that treaties may sometimes be judicially enforceable, the Solicitor General argues that this is a narrow exception to the general rule that treaty disputes are for diplomatic resolution. To fall within the exception, he claims, the treaty must clearly specify that it is judicially enforceable. (7)

The Solicitor General's position is in substantial tension with the constitutional text. Article VI provides that treaties are the "supreme Law of the Land," and instructs judges to give them effect. This suggests that judicial enforceability is the rule, and that doctrines that preclude judicial enforcement are the exception.

Nor is the Solicitor General's position supported by the decisions on which it relies. Taking a page from John Yoo, (8) the Solicitor General relies on Foster v. Nielson for the idea that treaties are contracts between states, not legislative acts. (9) But the Supreme Court in Foster was actually making the opposite point. While observing that treaties are not considered to have legislative effects in other countries, it stressed that

[i]n the United States a different principle is established. Our

constitution declares a treaty to be the law of the land. …

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