Self-Executing and Non-Self-Executing Treaties

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Supremacy Clause of the Constitution, Article VI, Clause 2, states that treaties concluded in accordance with constitutional requirements have the status of the “supreme Law of the Land[.]” 1 The Founders included treaties in the Supremacy Clause in direct response to one of the major weaknesses of the Articles of Confederation: the national government’s inability to enforce the United States’ treaty obligations.2 Although the Articles of Confederation gave exclusive treaty-making power to Congress,3 the United States depended on state legislatures to enact laws necessary to ensure compliance with the Nation’s treaty commitments.4 When states ignored or violated the United States’ obligations—most famously, by refusing to permit British citizens’ to collect pre-Revolutionary War debts5 —some foreign nations considered the United States an unreliable treaty partner6 or cited U.S. noncompliance as grounds to disregard their own treaty commitments.7 The Framers sought to remedy this problem by making treaties part of the “supreme Law of the Land” to which “the Judges in every State shall be bound[.]” 8 The Supremacy Clause marked a shift from the British system under which treaties generally have domestic effect only after being implemented by Parliament.9

Despite the Supremacy Clause’s seeming simplicity, not all treaties have the status of domestic law that is enforceable in U.S. courts.10 Some treaties or (provisions within treaties11 ) are “self-executing,” meaning domestic courts can enforce them directly.12 Other treaty provisions are “non-self-executing” and occupy a more complex status in the U.S. legal system.13 Non-self-executing treaty provisions are not directly enforceable in U.S. courts, and Congress generally must pass legislation implementing the provision in a domestic statute to make it judicially enforceable.14

The Supreme Court first recognized the self-execution dichotomy in an 1829 decision, Foster v. Neilson.15 In his opinion for the Court, Chief Justice John Marshall explained: “[o]ur [C]onstitution 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[.]” 16 But Chief Justice Marshall then immediately qualified this explanation, stating that a treaty is only the equivalent of a legislative act when the treaty “operates of itself without the aid of any legislative provision.” 17 When the terms of treaty “import a contract” or suggest that some future legislative act is necessary, Marshall explained, “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.” 18 Using this test, the Foster Court held that the treaty provision at issue—which stated that certain land grants from the King of Spain “shall be ratified and confirmed” —was non-self-executing because it suggested that Congress would ratify the land grants through a future legislative act.19

The Supreme Court revisited the self-execution doctrine in a 2008 decision, Medellín v. Texas.20 In that case, the United Nation’s principal judicial body, the International Court of Justice (ICJ), had entered a judgment directing the United States to reconsider the criminal convictions and sentences of a group of Mexican nationals.21 The ICJ concluded that U.S. state and local authorities had not afforded the foreign nationals their rights to communicate with Mexican consular officials as required by the Vienna Convention on Consular Relations.22 One of the foreign nationals, Ernesto Medellín, argued that the ICJ’s judgment was directly enforceable in U.S. courts because of a provision in another treaty, Article 94 of the Charter of the United Nations. That article provides that the United States (and any member nation of the United Nations) “undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” 23 Medellín argued that Article 94 required Texas state authorities to reevaluate his conviction and stay his upcoming execution, but the Supreme Court disagreed.24 The Court held that Article 94 of the Charter of the United Nations was not self-executing, in part, because Article 94 states that a party to the Charter “undertakes to comply” with ICJ decisions, rather than stating that a country “shall” or “must” comply.25 Article 94 was not self-executing because it was not “a directive to domestic courts” and could not be judicially enforced in the face of contrary state law, the Supreme Court concluded.26

Determining whether a treaty provision is self-executing is not always a straightforward task.27 In some cases, a treaty may specify whether it is intended to be given immediate domestic legal effect without further action.28 However, the Medellín Court disapproved of the notion that certain special words or phrases are necessary to make a treaty self-executing.29 Medellín also rejected a multi-factor analysis, advanced by three Justices in a dissent, which would look outside the treaty’s text and analyze a variety of “practical, context-specific criteria” 30 to determine self-execution.31 Instead, the Medellín Court explained that the primary question is whether the President and Senate intended the treaty to be self-executing.32 The Supreme Court has deemed a treaty non-self-executing when the text manifested an intent that the treaty would not be directly enforceable in U.S. courts,33 or when the Senate conditioned its advice and consent on the understanding that the treaty was non-self-executing.34 Other relevant factors include whether the treaty provisions are suitably precise or obligatory to be capable of judicial enforcement and whether the provision contemplates that implementing legislation or other legal measures, such as administrative action, will follow the treaty’s ratification.35

Many courts and commentators agree that treaty provisions that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing.36 Although the Supreme Court has not addressed these constitutional limitations, lower courts have concluded that, because Congress controls the power of the purse,37 a treaty provision that requires expenditure of funds must be treated as non-self-executing.38 Other lower courts have suggested that treaty provisions that purport to create criminal liability39 or raise revenue40 must be non-self-executing because those powers are the exclusive prerogative of Congress.

The doctrine of non-self-execution appears to be in some tension with the Supremacy Clause’s declaration that “all treaties” are part of the supreme law of the land.41 The Supreme Court has never fully explained the relationship between non-self-executing treaties and the Supremacy Clause.42 Opinions from some lower courts and the Office of Legal Counsel (OLC) in the Department of Justice43 suggest non-self-executing treaties lack any domestic legal status.44 However, other courts and scholars contend that, although non-self-executing treaties may not be enforced in courts, they may still form part of the supreme law of the land that is carried out and enforced outside the judicial system.45

Despite the importance of the self-execution doctrine in U.S. domestic law, self-execution does not impact treaties’ status under international law.46 Under international law, treaties create rights and obligations that nations owe to one another that are independent of each nation’s domestic law.47 International law generally allows each country to decide how to implement its treaty commitments into its own domestic legal system.48 The self-execution doctrine concerns domestic enforcement of treaties, but it does not affect the United States’ obligation to comply with the provision under international law.49 Thus, even if courts cannot enforce a treaty provision in domestic courts because it is non-self-executing, that provision may still be binding under international law, and the United States may still have an international legal obligation to comply.

1: U.S. Const. art. VI, cl. 2. For analysis of the Supremacy Clause, see ArtVI.C2.1 Overview of Supremacy Clause.
2: See Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1, 49–72 (1979); Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L. J. 2202, 2204 (2015) ( “One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with the United States’s international legal commitments.” ); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1102 (2000) ( “It was famously the difficulty of obtaining state compliance with treaties that was among the foremost reasons impelling the movement toward Philadelphia, and that experience left an unmistakable imprint on the text adopted.” ).
3: Articles of Confederation of 1781, arts. VI, IX.
4: See infra notes 5–7. See also Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution 3 (1973) ( “Among the most important defensive powers which the United States lacked in 1783 was the power to enforce treaties.” ); David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 932, 989–90 (2010) ( “Because the foreign affairs powers were, for the most part, already nominally in the Confederation under the Articles, the main goal [of the Constitution] was to make those powers effective by eliminating the national government’s dependence on the states for carrying its powers into effect and by enabling it to discipline state obstructionism.” ).
5: See Report of Secretary of Foreign Affairs, John Jay (Oct. 13, 1786), reprinted in Secret Journals of the Congress of the Confederation 185–287 (Boston, Thomas B. Wait 1820) (report of John Jay, then-Secretary of Foreign Affairs under the Articles of Confederation, regarding state laws that violated the United States’ treaty obligations to Great Britain); Letter from John Jay to John Adams (Nov. 1, 1786) in 2 The Diplomatic Correspondence of the United States from the Signing of the Definitive Treaty of Peace, 10th September 1783, to the Adoption of the Constitution, March 4, 1789, at 674 (1837) ( “[T]here has not been a single day, since [the 1783 Treaty of Peace] took effect, on which it has not been violated in America, by one or other of the States.” ).
6: See, e.g., 1 The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., 1911) [hereinafter Farrand’s Records (records of James Madison) ( “The files of [Congress under the Articles of Confederation] contain complaints already, from almost every nation with which treaties have been formed.” ); The Federalist No. 22 (Alexander Hamilton) (suggesting that, under the Articles of Confederation, foreign nations could not “respect or confide” in the United States because U.S. treaties were “liable to the infractions” by state governments).
7: For example, Great Britain cited U.S. state laws impeding British citizens’ debt-collection abilities as grounds for not complying with Britain’s treaty-based obligations to withdraw its forces from military forts in the northwestern United States. See Marks, supra note 4, at 3–51.
8: U.S. Const. art. VI, cl. 2. Early in the Constitutional Convention, the Framers considered giving Congress the power to “negative” (i.e., veto) state law that contravened any treaty, 1 Farrand’s Records, supra note 6, at 47, 54, but they later adopted language originating in the New Jersey plan making treaties part of the “supreme law” that is binding upon state courts, id. at 245; 2 Farrand’s Records, supra note 6, at 27–29, 182–83, 389–90, 603.
9: See James Crawford, Brownlie’s Principles of Public International Law 63 (8th ed. 2012) (quoting Thomas v. Baptiste [2000] 2 AC 1 PC, 23 (Lord Millett)).
10: See, e.g., Bond v. United States, 572 U.S. 844, 850–51 (2014) (recognizing that the Convention on Chemical Weapons “creates obligations only for State Parties and ‘does not by itself give rise to domestically enforceable federal law’” ) (quoting Medellín v. Texas, 552 U.S. 491, 505 n.2 (2008)); Cameron Septic Tank Co. v. City of Knoxville, 227 U.S. 39, 50 (1913) (holding that a provision in an industrial property convention regulating patents was not self-executing and did not govern the date of expiration of a challenged patent).
11: See, e.g., United States v. Postal, 589 F.2d 862, 884 n.35 (5th Cir. 1979) ( “A treaty need not be wholly self-executing . . . . [A] self-executing interpretation of [one article] would not necessarily call for a similar interpretation of [a different article in the same treaty].” ), cert. denied, 44 U.S. 832 (1979); Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, 13 Op. O.L.C. 163, 179 n.28 (1989) ( “[T]he question should be whether individual provisions of the treaty are self-executing.” ).
12: See, e.g., Medellín, 552 U.S. at 505 n.2 ( “What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification.” ); Cook v. United States, 288 U.S. 102, 119 (1933) ( “For in a strict sense the [t]reaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions.” ); Whitney v. Robertson, 124 U.S. 190, 194 (1888) ( “When the [treaty] stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect.” ).
13: See, e.g., Medellín, 552 U.S. at 516 ( “The point of a non-self-executing treaty is that it ‘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.’” ) (quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 254 (1829), overruled on other grounds by United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833)).
14: See Medellín, 552 U.S. at 525–26 ( “The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.” ); id. at 526 ( “[T]he terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto.” ). Apart from implementing legislation, compliance with non-self-executing treaty provisions may be achieved through other avenues, including by judicial enforcement of legislation that pre-dates the treaty or through other executive or administrative action outside the judicial system. See Restatement (Fourth) of Foreign Relations Law § 310(1) (2018) [hereinafter Fourth Restatement]; Jean Galbraith, Making Treaty Implementation More Like Statutory Implementation, 115 Mich. L. Rev. 1309, 1333–63 (2017).
15: See Foster, 27 U.S. (2 Pet.) at 273–74. The Court’s Percheman decision is discussed infra note 19. While Foster first articulated the concept that some treaties require implementing legislation to be made judicially enforceable, the Supreme Court did not use the term “self-executing” when discussing treaties until 1887. See Bartram v. Robertson, 122 U.S. 116, 120 (1887). See also Galbraith, supra note 14, at 1341–42 (discussing development and usage of the term “self-executing” in the context of treaties, statutes, and constitutional law).
16: Foster, 27 U.S. (2 Pet.) at 314.
17: Id.
18: Id.
19: Id. at 315. Four years after Foster, the Supreme Court reviewed the Spanish language version of the same treaty, which was translated to state that the land grants “shall remain ratified and confirmed.” Percheman, 32 U.S. (7 Pet.) at 69 (emphasis added). Using the Spanish language version, the Court concluded that the same obligation was self-executing, explaining that the subtle difference in translations led to a different result in its holding: The difference between declaring that these grants shall be ratified and confirmed to the persons in possession of the lands, . . . and saying that all concessions of land shall remain confirmed and acknowledged to the persons in possession . . . is sufficiently obvious and important; the sense is materially different. The English side of the treaty leaves the ratification of the grants executory—they shall be ratified; the Spanish, executed. Id.
20: 552 U.S. 491.
21: Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. Rep. 12, ¶ 64 (Mar. 31).
22: Id. ¶ 128. See also Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter Consular Convention].
23: Charter of the United Nations art. 94(1), 59 Stat. 1051 (June 26, 1945).
24: See Medellín, 552 U.S. at 508–09.
25: Id.
26: Id.
27: See, e.g., Postal, 589 F.2d at 876 ( “The self-execution question is perhaps one of the most confounding in treaty law.” ); Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale J. Int’l L. 51, 51–52 (2012) (describing the self-execution doctrine as “[o]ne of the great challenges for scholars, judges, and practitioners alike” ); Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 722 (1995) ( “The distinction between self-executing and non-self-executing treaties has particularly confounded the lower courts, whose decisions on the issue have produced a body of law that can only be described as being in a state of disarray.” ).
28: See, e.g., Trademark and Commercial Protection; Registration of Trademarks (Inter-American): General Inter-American Convention for Trade Mark and Commercial Protection art. 3, Feb. 20, 1929, 46 Stat. 2907 ( “The provisions of this Convention shall have the force of law in those States in which international treaties possess that character, as soon as they are ratified by their constitutional organs.” ).
29: See Medellín, 552 U.S. at 521 ( “[N]either our approach nor our cases require that a treaty provide for self-execution in so many talismanic words.” ).
30: Id. at 549 (Breyer, J., dissenting joined by Souter & Ginsberg, JJ.).
31: Id. at 514–16.
32: See id. at 509, 523.
33: See supra note 10.
34: See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) ( “[T]he United States ratified the [International Covenant on Civil and Political Rights] on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.” ).
35: See Fourth Restatement, supra note 14, § 310(2) & reporters’ nn.5, 6.
36: See, e.g., id. § 310(3) & reporters’ n.11. See also infra notes 37–38.
37: For discussion of the Appropriations Clause and Congress’s power of the purse, see ArtI.S9.C7.1 Overview of Appropriations Clause.
38: See Edwards v. Carter, 580 F.2d 1055, 1058 (D.C. Cir. 1978) (per curiam) ( “[E]xpenditure of funds by the United States cannot be accomplished by self-executing treaty; implementing legislation appropriating such funds is indispensable.” ), cert. denied, 436 U.S. 907 (1978); The Over the Top (Schroeder v. Bissell), 5 F.2d 838, 845 (D. Conn. 1925) ( “All treaties requiring payments of money have been followed by acts of Congress appropriating the amount. The treaties were the supreme law of the land, but they were ineffective to draw a dollar from the treasury.” ); Turner v. Am. Baptist Missionary Union, 24 F. Cas. 344, 345 (C.C.D. Mich. 1852) ( No. 14251) ( “[M]oney cannot be appropriated by the treaty-making power. This results from the limitations of our government.” ).
39: See Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir. 1980) ( “Treaty regulations that penalize individuals . . . require domestic legislation before they are given any effect.” ); Postal, 589 F.2d at 877 (noting that constitutional restrictions on the use of a self-executing treaty to withdraw money from the treasury would also “be the case with respect to criminal sanctions” ), cert. denied, 444 U.S. 832 (1979).
40: See Edwards, 580 F.2d at 1058 ( “[T]he constitutional mandate that ‘all Bills for raising Revenue shall originate in the House of Representatives,’ . . . appears, by reason of the restrictive language used, to prohibit the use of the treaty power to impose taxes.” ) (quoting U.S. Const. art. I, § 7, cl. 1); Swearingen v. United States, 565 F. Supp. 1019, 1022 (D. Colo. 1983) ( “[A] treaty which created an exemption from the taxation of income of United States citizens . . . would be in contravention of the exclusive constitutional authority of the House of Representatives to originate all bills for raising revenues.” ). For analysis of the Origination Clause and Congress’s power to raise revenue, see discussion supra ArtI.S7.C1.1 Origination Clause and Revenue Bills.
41: U.S. Const. art. VI, cl. 2.
42: See, e.g., Fourth Restatement, supra note 14, § 310 reporters’ n.12. Some passages of Medellín suggest non-self-executing treaties have no status in domestic law. See, e.g., Medellín, 552 U.S. at 504 ( “This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law.” ); id. at 526 ( “[A] non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto.” ). Other passages suggest self-execution addresses whether the treaty is enforceable in U.S. courts rather than whether the treaty constitutes “law” in the constitutional sense. See, e.g., id. at 519 ( “[W]hether the treaties underlying a judgment are self-executing so that the judgment is directly enforceable as domestic law in our courts is, of course, a matter for this Court to decide.” ); id. at 523 ( “[T]he [ICJ’s] judgment is not a rule of domestic law binding in state and federal courts.” ).
43: OLC has stated that its opinions are “controlling” on questions of law within the Executive Branch, subject to the ultimate authority of the President. See Memorandum from David J. Barron, Acting Asst. Att’y Gen., Office of Legal Couns. to Att’ys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions 1 (July 16, 2010), https://www.justice.gov/olc/pdf/olc-legal-advice-opinions.pdf ( “OLC’s core function . . . is to provide controlling advice to Executive Branch officials on questions of law.” ); Memorandum from Steven G. Bradbury, Principal Deputy Asst. Att’y Gen., Office of Legal Counsel to Att’ys of the Office, Re: Best Practices for OLC Opinions 1 (May 16, 2005), https://fas.org/irp/agency/doj/olc/best-practices.pdf ( “[S]ubject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch.” ). See also Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1525 n.31 (2010) (collecting statements from OLC and its officials on the status of OLC opinions). However, OLC’s opinions are not “law” that is binding outside of the Executive Branch. See, e.g., McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 285–86 (1960) (declining to follow an Attorney General opinion and noting that such opinions are “entitled to some weight,” but “do not have the force of judicial decisions” ).
44: See ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 162 n.21 (2d Cir. 2007) ( “Non-self-executing treaties do not become effective as domestic law until implementing legislation is enacted.” ), certified question answered, 880 N.E.2d 852 (2007); Renkel v. United States, 456 F.3d 640, 643 (6th Cir. 2006) ( “'[N]on-self-executing’ treaties do require domestic legislation to have the force of law.” ); Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, supra note 11, at 178–79 ( “[T]he decision whether to act consistently with an unexecuted treaty is a political issue rather than a legal one, and unexecuted treaties . . . are not legally binding on the political branches.” ) (footnote omitted).
45: See, e.g., The Over the Top, 5 F.2d at 845 ( “The treaties were the supreme law of the land, but they were ineffective to draw a dollar from the treasury.” ); Fourth Restatement, supra note 14, § 310 reporters’ n.12 ( “[T]here is no clear reason at present to conclude that non-self-executing provisions are, as a general matter, less than supreme law.” ); Curtis Bradley, International Law in the U.S. Legal System 44 (2d ed. 2015) (summarizing the debate of the domestic status of non-self-executing treaties).
46: See, e.g., Medellín, 552 U.S. at 504–06 (discussing the distinction between the binding effect of treaties under international law versus domestic law).
47: See id.; Fourth Restatement, supra note 14, § 301(3) & cmt. d. See also Validity of Congressional-Executive Agreements That Substantially Modify the United States’ Obligations Under an Existing Treaty, 20 Op. O.L.C. 389, 391 (1996) ( “A ‘treaty,’ . . . has two aspects: insofar as it is self-executing, it prescribes a rule of domestic or municipal law; and, as a compact or contract between nations, it gives rise to binding obligations in international law.” ) (footnote omitted).
48: See, e.g., Head Money Cases (Edye v. Robertson), 112 U.S. 580, 598 (1884) ( “[A treaty] depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” ); Fourth Restatement, supra note 14, § 310 cmt. c ( “It is ordinarily up to each nation to decide how to implement domestically its international obligations.” ).
49: See Medellín, 552 U.S. at 522–23 (explaining that, although the ICJ’s judgment was non-self-executing and did “not of its own force constitute binding federal law[,]” the judgment “create[d] an international law obligation” for the United States); Fourth Restatement, supra note 14, § 310(1) ( “Whether a treaty provision is self-executing concerns how the provision is implemented domestically and does not affect the obligation of the United States to comply with it under international law.” ).