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. *
INTRODUCTORY REMARKS BY CARLOS M. VAZQUEZ ([dagger])
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. 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. (10)
The Solicitor General, and the D.C. Circuit in Hamdan, also rely on language from Head Money Cases to the effect that "[a] treaty is primarily a compact between independent nations [which] depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it," and accordingly "[w]hen a violation of a treaty nonetheless occurs, it 'becomes the subject of international negotiations and reclamations,' not judicial redress." (11) But here, too, the Court was referring to the effect of treaties in the absence of the Supremacy Clause. The Court made it clear that, because of the Supremacy Clause, treaties that "prescribe a rule by which the rights of the private citizen or subject may be determined" are to be regarded as equivalent to an act of the legislature, and hence to be "enforced in a court of justice." (12)
Indeed, the Supreme Court made it clear two years later in United States v. Rauscher that the language from Head Money Cases on which the Solicitor General relies was describing the effect of treaties in Great Britain, which does not have a Supremacy Clause. (13) As the Court made clear in Rauscher, Head Money Cases addressed "the effect of a treaty as a part of the law of the land, as distinguished from its aspect as a mere contract between independent nations." (14) Because treaties are declared by the Constitution to be the supreme law of the land, the Court emphasized in Rauscher that "the courts are bound to take judicial notice [of them], and to enforce in any appropriate proceeding the rights of persons growing out of [them]." (15)
Not all treaties are enforceable in court. Historically, a treaty's enforceability in court has been addressed by courts through the doctrine of self-execution. This is consistent with the Court's statement in Foster that a self-executing treaty is "to be regarded in courts of justice as equivalent to an Act of the Legislature." I have previously written that the concept of a non-self-executing treaty masks several distinct types of reasons why a treaty might not be judicially enforceable even though it is the "supreme Law of the Land." (16) But while the grounds for finding a treaty self-executing might vary, the effect of a finding that a treaty is self-executing is clear. As the Court made clear in Foster and Head Money Cases, a self-executing treaty is enforceable in the courts of justice in the same circumstances as a statute having the same content.
A party relying on a self-executing treaty might still lose. For example, he might lose because the treaty does not confer a private fight of action. But a private right of action is not necessary if the party invokes the treaty defensively, or pursuant to a right of action conferred by another law. (17) This is the case in Sanchez-Llamas, where the treaty was invoked by a criminal defendant, and in Hamdan and Bustillo, in which the treaty was invoked by a habeas petitioner. (18) The party invoking the treaty might also lose because the treaty does not support the remedy he seeks. Thus, the Court might find that the Vienna Convention does not support the suppression of a statement given before consular notification is given.
But the fact that a treaty is self-executing does rule out one basis for denying relief to a party relying on the treaty. It rules out the conclusion that the treaty is not judicially enforceable because it is a contract between states that is for diplomatic enforcement only. If a treaty is self-executing, it is to be treated like an act of legislation. It should therefore not be denied enforcement because it is "merely" a compact between states.
* Mr. Kesavan did not contribute remarks.
([dagger]) Professor, Georgetown University Law Center.
(3) Id. at 38-40.