Judicious influence: non-self-executing treaties and the Charming Betsy canon.

• Author: Crootof, Rebecca

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.S. international obligations. (22) Because most judges employing the Charming Betsy canon use it--and should continue to use it--without regard to whether the relevant treaty is self-executing, Medellin's seemingly monumental presumption is relatively insignificant. (23)

Non-self-executing treaties may describe two types of U.S. international obligations: they will always define treaty commitments, and they may sometimes codify customary international law. (24) Scholars correctly assume that non-self-executing treaties describing customary international law may be used with the Charming Betsy canon in statutory construction. (25) This Note expands upon this assumption, demonstrating that ambiguous statutes may be construed in light of all non-self-executing treaties. While there is a growing consensus that courts may interpret ambiguous statutes in light of non-self-executing treaties, scholarly pieces acknowledging this possibility either offer insufficient support for this claim or are too narrowly focused to provide a comprehensive argument in favor of this practice. (26) Despite relatively weak academic support, however, scholars are increasingly relying on this interaction as a foundational assumption for more complex arguments. (27) By describing the various ways in which courts have given indirect force to non-self-executing treaties and by reviewing the normative justifications for this practice, this Note provides needed support for future scholarship.

After reviewing the creation, animating principles, and application of the Charming Betsy canon, Part I describes how non-self-executing treaties currently influence statutory interpretation. When evaluating questions of U.S. international obligations, domestic courts may turn to non-self-executing (or even nonratified) treaties for guidance on the status and text of customary international law. Courts then use these treaties, in conjunction with the Charming Betsy canon, to interpret ambiguous statutes to accord with customary international law. Some non-self-executing treaties do not codify customary international law but nonetheless describe U.S. international obligations. Courts also employ the Charming Betsy canon to select statutory constructions that do not violate these treaty commitments. Furthermore, at least one court has interpreted an ambiguous statute to accord with a non-self-executing treaty, even though there was no domestic law nexus.

Part II analyzes the normative justifications for permitting non-self-executing treaties' indirect influence through the Charming Betsy canon. When interpreting a statute that permits multiple constructions, courts should favor those that accord with ratified treaties. (28) While a treaty may have been ratified as non-self-executing for a variety of reasons, the act of ratification formally binds the United States to the treaty's terms and creates international obligations. A court's selection of statutory interpretations that do not accord with a ratified treaty may result in judicially created, readily avoidable, and possibly undesirable breaches of these obligations. Giving non-self-executing treaties limited, indirect force through statutory construction supports separation-of-powers principles and encourages relatively costless compliance with U.S. international commitments. Additionally, by elucidating treaty provisions and participating in the international judicial dialogue, domestic judges promote the international adoption of U.S. treaty interpretations: the more U.S. judges contribute to the growing transnational corpus of law by interpreting treaty provisions, the more international law will evolve in tandem with U.S. law.

1. HOW NON-SELF-EXECUTING TREATIES INFLUENCE STATUTORY INTERPRETATION

   All non-self-executing treaties, by virtue of their ratification, describe treaty commitments. Some may also codify customary international law, permitting separate but similar Charming Betsy analyses. After reviewing the creation and application of the Charming Betsy canon, this Part examines how it is used to preserve these international obligations. Section I.B describes how courts may rely on non-self-executing treaties as evidence of customary international law. Once a court has established that a treaty provision constitutes customary international law, it can then employ the Charming Betsy canon to select a compatible construction. Courts have also determined that those provisions that are both customary international law and treaty commitments may support two separate Charming Betsy-based arguments. As demonstrated in Section I.C, even when the treaty commitment does not constitute customary international law, courts have reasoned that the Charming Betsy canon is still applicable. Furthermore, at least one court has employed this second analysis in a case that did not otherwise involve international law.

   1. The Charming Betsy Canon

      Both customary international law and treaty law are subject to the later-in-time rule: a subsequent statute that clearly contradicts an international obligation will eliminate its domestic effect. (29) The Charming Betsy canon, however, shields customary international law and treaties from being unintentionally overwritten by apparently contradictory statutes with multiple fairly possible interpretations.

      In Murray v. Schooner Charming Betsy, Chief Justice Marshall wrote for the Court: "[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains...." (30) While Marshall's language appears to announce a clear statement rule, the holding has proven most influential in its softer reincarnation as a canon of statutory construction. (31) This canon takes the form of two rebuttable presumptions: (1) the "[p]resumption that Congress does not intend to pass statutes which violate international law" (32) and (2) the "[p]resumption that Congress does not intend to...