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International law consists of "rules and principles of general application dealing with the conduct of [S]tates and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical."1 Rules of international law can be established in three main ways: (1) by international, formal agreement, usually between States (i.e., countries), (2) in the form of international custom, and (3) by derivation of principles common to major world legal systems.2
International law is derived from two primary sources—international agreements and customary practice. Under the U.S. legal system, international agreements can be entered into by means of a treaty or an executive agreement. The Constitution allocates primary responsibility for entering into such agreements to the executive branch, but Congress also plays an essential role. First, in order for a treaty (but not an executive agreement) to become binding upon the United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many treaties and executive agreements are not self-executing, meaning that implementing legislation is required to render the agreement's provisions judicially enforceable in the United States. The status of an international agreement within the United States depends on a variety of factors. Self-executing treaties have a status equal to federal statute, superior to U.S. state law, and inferior to the Constitution. Depending upon the nature of executive agreements, they may or may not have a status equal to federal statute. In any case, self-executing executive agreements have a status that is superior to U.S. state law and inferior to the Constitution. Courts generally have understood treaties and executive agreements that are not self-executing generally to have limited status domestically; rather, the legislation or regulations implementing these agreements are controlling. In addition to legally binding agreements, the executive branch also regularly makes nonlegal agreements (sometimes described as "political agreements") with foreign entities. The formality, specificity, and intended duration of such commitments may vary considerably, but they do not modify existing legal authorities or obligations, which remain controlling under both U.S. domestic and international law. Nonetheless, such commitments may carry significant moral and political weight for the United States and other parties. Unlike in the case of legal agreements, current federal law does not provide any general applicable requirements that the executive branch notify Congress when it enters a political agreement on behalf of the United States. The effects of the second source of international law, customary international practice, upon the United States are more ambiguous. While there is some Supreme Court jurisprudence finding that customary international law is "part of" U.S. law, domestic statutes that conflict with customary rules remain controlling, and scholars debate whether the Supreme Court's international law jurisprudence still applies in the modern era. Some domestic U.S. statutes directly incorporate customary international law, and therefore invite courts to interpret and apply customary international law in the domestic legal system. The Alien Tort Statute, for example, which establishes federal court jurisdiction over certain tort claims brought by aliens for violations of "the law of nations." Although the United States has long understood international legal commitments to be binding both internationally and domestically, the relationship between international law and the U.S. legal system implicates complex legal dynamics. Because the legislative branch possesses important powers to shape and define the United States' international obligations, Congress is likely to continue to play a critical role in shaping the role of international law in the U.S. legal system in the future.Since its inception, the United States has understood international legal commitments to be binding upon it both internationally and domestically.3 The United States assumes international obligations most frequently when it makes agreements with other States
Contents
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Summary
Introduction
International law consists of "rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical."1 While the United States has long understood international legal commitments to be binding upon it both internationally and domestically since its inception,2 the role of international law in the U.S. legal system often implicates complex legal principles.3
The United States assumes international obligations most frequently when it makes agreements with other nations or international bodies that are intended to be legally binding upon the parties involved.4 or international bodies that are intended to be legally binding upon the parties involved. Such legal agreements are made through treaty or executive agreement.5 The U.S. Constitution allocates primary responsibility for such agreements to the executive branch, but Congress also plays an essential role. First, in order for a treaty (but not an executive agreement) to become binding upon the United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds majority.46 Secondly, Congress may authorize congressional-executive agreements.7 Thirdly, Thirdly, in order to have domestic, judicially enforceable legal effect, the provisions of many treaties and executive agreements may require implementing legislation that provides U.S. bodies with the authority necessary to enforce and comply with an international agreement's provisions.5
The effects of customary international law and the law of foreign States (foreign law)in order to be judicial enforceable in U.S. courts.8
The effects of customary international law upon the United States are more ambiguous and sometimes controversial. Theredifficult to decipher.9 While there is some Supreme Court jurisprudence finding that customary international law is incorporated into domestic law, but this incorporation is only to the extent that "there is no treaty, and no controlling executive or legislative act or judicial decision" in conflict.6 Though foreign law and practice have long been seen as persuasive by American courts as evidence of customary norms, their use in certain regards (particularly with respect to interpreting the Constitution) has prompted some criticism by a number of lawmakers and scholars. This report provides an introduction to the role that international law and agreements play in the United States.
The United States regularly enters into international legal agreements with other States or international organizations that are legally binding as a matter of international law. Under U.S. law, legally binding international agreements may take the form of treaties or executive agreements.10 This report provides an introduction to the role that international law and agreements play in the United States.
Forms of International Agreements
For purposes of U.S. law and practice, pacts11 between the United States and foreign nations may take the form of treaties, executive agreements, or nonlegal agreements, which involve the making of so-called "political commitments."12 In this regard, it is important to distinguish "treaty" in the context of international law, in which "treaty" and "international agreement" are synonymous terms for all binding agreements,713 and "treaty" in the context of domestic American law, in which "treaty" may more narrowly refer to a particular subcategory of binding international agreements.8
Forms of International Pacts International Agreement: A blanket term used to refer to any agreement between the United States and a foreign state or body that is legally binding under international law.15 Treaty: An international agreement that receives the advice and consent of the Senate and is ratified by the President.16 Executive Agreement: An international agreement that is binding, but which the President enters into without receiving the advice and consent of the Senate.17 Nonlegal Agreement: A pact (or a provision within a pact) between the United States and a foreign entity that is not intended to be binding under international law, but may carry nonlegal incentives for compliance.18 |
Under U.S. law, a treaty is an agreement negotiated and signed9 by the Executive that enters into force if it is approved by a two-thirds majority of the Senate and is subsequently ratified by the President. Treaties19 In modern practice, treaties generally require parties to exchange or deposit instruments of ratification in order for them to enter into force.20 A chart depicting the steps necessary for the United States to enter a treaty is in the Appendix.
The Senate may, in considering a treaty, condition its consent on certain reservations,10 declarations,11 understandings,12 and provisos13 concerning treaty application. If accepted, these conditions may limit and/or define U.S. obligations under the treaty.14 The Senate may also propose to amend the text of the treaty itself. The other party or parties to the agreement would have to consent to these changes in order for them to take effect.
The use of reservations, understandings, and declarations (RUDs) to condition U.S. consent to treaties has met with criticism from some international law scholars. On occasion it has been alleged that RUDs should be deemed invalid because they are incompatible with the object and purpose of an underlying treaty—particularly those RUDs which aver that the United States is able to fully comply with treaty obligations through existing law.15 Another frequently voiced objection to RUDs is that those positing that a treaty is non-self-executing (i.e., implementing legislation is required to give the treaty domestic legal effect) conflict with the Constitution's Supremacy Clause16 because a non-self-executing treaty cannot be said to constitute the "law of the land."17 Proponents of this view regard at least some provisions of treaties as presumptively self-executing, which, they contend, cannot be altered by the President or the Senate consistent with the Constitution.18 Proponents of non-self-executing declarations argue that the Supremacy Clause makes federal statutes the law of the land but says nothing about lawmakers' ability to define the domestic scope of these laws; the same should be true for treaties.19
However much controversy RUDs may have engendered among academics, they have produced little detailed discussion in courts. In general, U.S. courts appear to interpret U.S. treaty obligations in light of any RUDs attached to the instrument of ratification.20 Where a treaty is ratified with a declaration that it is not self-executing, a court will not give its provisions the effect of domestic law enforceable of themselves.21 However, even non-self-executing treaties may sometimes be invoked by courts for other purposes;22 for example, ambiguous statutes may be interpreted in such a way as to comport with U.S. treaty obligations.23
The great majority of international agreements that the United States enters into are not treaties but executive agreements—agreements entered into by the executive branch that are not submitted to the Senate for its advice and consent. Congress generally requires notification upon the entry of such an agreement.24Treaty Clause—Article II, Section 2, Clause 2 of the Constitution—vests the power to make treaties in the President, acting with the "advice and consent" of the Senate. 21 Many scholars have concluded that the Framers intended "advice" and "consent" to be separate aspects of the treaty-making process.22 According to this interpretation, the "advice" element required the President to consult with the Senate during treaty negotiations before seeking the Senate's final "consent."23 President George Washington appears to have understood that the Senate had such a consultative role,24 but he and other early Presidents soon declined to seek the Senate's input during the negotiation process.25 In modern treaty-making practice, the executive branch generally assumes responsibility for negotiations, and the Supreme Court stated in dicta that the President's power to conduct treaty negotiations is exclusive.26
Although Presidents generally do not consult with the Senate during treaty negotiations, the Senate maintains an aspect of its "advice" function through its conditional consent authority.27 In considering a treaty, the Senate may condition its consent on reservations,28 declarations,29 understandings,30 and provisos31 concerning the treaty's application. Under established U.S. practice, the President cannot ratify a treaty unless the President accepts the Senate's conditions.32 If accepted by the President, these conditions may modify or define U.S. rights and obligations under the treaty.33 The Senate also may propose to amend the text of the treaty itself, and the other nations that are parties to the treaty must consent to the changes in order for them to take effect.34
Some international law scholars occasionally have criticized the Senate's use of certain reservations, understandings, and declarations (RUDs).35 For example, some critics have argued RUDs that conflict with the "object and purpose" of a treaty violate principles of international law.36 And scholars debate whether RUDs specifying that some or all provisions in a treaty are non-self-executing (meaning they require implementing legislation to be given judicially enforceable domestic legal effect) are constitutionally permissible.37
However much debate RUDs may have engendered among academics, they have produced little detailed discussion in courts. The Supreme Court has accepted the Senate's general authority to attach conditions to its advice and consent.38 And U.S. courts frequently interpret U.S. treaty obligations in light of any RUDs attached to the instrument of ratification.39 Where a treaty is ratified with a declaration that it is not self-executing, a court will not give its provisions judicially enforceable domestic legal effect.40
Executive Agreements
The great majority of international agreements that the United States enters into are not treaties, but executive agreements—agreements entered into by the executive branch that are not submitted to the Senate for its advice and consent.41 Federal law requires the executive branch to notify Congress upon entry of such an agreement.42 Executive agreements are not specifically discussed in the Constitution, but they nonetheless have been considered valid international compacts under Supreme Court jurisprudence and as a matter of historical practice.2543 Although the United States has entered international compacts by way of executive agreement since the earliest days of the Republic,44 executive agreements have been employed much more frequently since the World War II era. In recent years, the State Department has begun making available on its website the text of executive agreements recently entered by the United States.26 Adding these agreements to earlier State Department estimates, it would appear that over 18,500 executive agreements have been concluded by the United States since 1789 (more than 17,300 of which were concluded since 1939), compared to roughly 1,100 treaties that have been ratified by the United States.27 However, this estimate seems likely to undercount the number of executive agreements entered by the United States. While the precise number of unreported executive agreements is unknown, there is likely a substantial number of agreements (mainly dealing with "minor or trivial undertakings"28) that are not included in these figures.29
There are three types of prima facie legal executive agreements: (1) congressional-executive agreements, in which Congress has previously or retroactively authorized an international agreement entered into by the Executive; (2) executive agreements made pursuant to an earlier treaty, in which the agreement is authorized by a ratified treaty; and (3) sole executive agreements, in which an agreement is made pursuant to the President's constitutional authority without further congressional authorization. The Executive's authority to enter the agreement is different in each case.45 Commentators estimate that more than 90% of international legal agreements concluded by the United States have taken the form of an executive agreement.46
Types of Executive Agreements
Executive agreements can be organized into three categories based on the source of the President's authority to conclude the agreement. In the case of congressional-executive agreements, the domestic authority is derived from an existing or subsequently enacted statute.47 The President also enters into executive agreements made pursuant to a treaty based upon authority created in prior Senate-approved, ratified treaties.48 In other cases, the President enters into sole executive agreements based upon a claim of independent presidential power in the Constitution.49 A chart describing the steps in the making of an executive agreement is in the Appendix.
In the caseThe constitutionality of congressional-executive agreements, the "constitutionality ... seems well established."30 is well-settled.50 Unlike in the case of treaties, where only the Senate plays a role in approving the agreement, both houses of Congress are involved in the authorizing process for congressional-executive agreements.51 Congressional authorization of such agreements takes the form of a statute which must pass both houses of Congress. Historically, congressional-executive agreements have been made for a wide variety of topics, ranging from postal conventions to bilateral trade to military assistance.3152 The North American Free Trade Agreement53 and the General Agreement on Tariffs and Trade54 are notable examples of congressional-executive agreements.
Agreements made pursuant to treaties are also well- established as legitimate,constitutional,55 though controversy occasionally arises as to whether the agreement was actually imputed by the treaty in question.32 Since the earlier treaty is the "Law of the Land,"33a particular treaty actually authorizes the Executive to conclude an agreement in question.56 Because the Supremacy Clause includes treaties among the sources of the "supreme Law of the Land,"57 the power to enter into an agreement required or contemplated by the treaty lies fairly clearly within the President's executive function.
Sole executive agreements rely on neither treaty nor congressional authority to provide for their legal basis.59 The Constitution may confer limited authority upon the President to promulgate such agreements on the basis of his foreign affairs power.3460 For example, the Supreme Court has recognized the power of the President to conclude sole executive agreements in the context of settling claims with foreign nations.61 If the President enters into an executive agreement pursuant to and dealing withaddressing an area where he has clear, exclusive constitutional authority—such as an agreement to recognize a particular foreign government for diplomatic purposes—the agreement ismay be legally permissible regardless of Congress's opinion on the matter.35congressional disagreement.62
If, however, the President enters into an agreement and his constitutional authority over the agreement's subject matter is unclear, a reviewing court may consider Congress's position in determining whether the agreement is legitimate.3663 If Congress has given its implicit approval to the President entering the agreement, or is silent on the matter, it is more likely that the agreement will be deemed valid.64 When Congress opposes the agreement and the President's constitutional authority to enter the agreement is ambiguous, it is unclear if or when such an agreement would be given effect. TheExamples of sole executive agreements include the Litvinov Assignment, under which the Soviet Union purported to assign to the United States claims to American assets in Russia that had previously been nationalized by the Soviet Union, is an example of a sole executive agreement.
Standard Categories of Executive Agreements Congressional-Executive Agreement: An executive agreement for which domestic legal authority derives from a preexisting or subsequently enacted statute.66 Executive Agreement Made Pursuant to a Treaty: An executive agreement based on the President's authority in a treaty that was previously approved by the Senate.67 Sole Executive Agreement: An executive agreement based on the President's constitutional powers.68 |
There has been long-standing scholarly debate over whether certain types of international agreements may only be entered as treaties, subject to the advice and consent of the Senate, or whether a congressional-executive agreement may always serve as a constitutionally permissible alternative to a treaty.3773 A central legal question in this debate concerns whether the U.S. federal government, acting pursuant to a treaty, may regulate matters that could not be reached by a statute enacted by Congress pursuant to its enumerated powers under Article I of the Constitution.3874 Adjudication of the propriety of congressional-executive agreements has been rare, in significant part because plaintiffs often cannot demonstrate that they have suffered a redressable injury giving them standing,3975 or fail to make a justiciable claim.76 or fail to make a justiciable claim.40
A recurring concern for the executive and legislative branches is whether an international commitment should be entered into as a treaty or an executive agreement. The Senate may prefer that significant international commitments be entered as treaties, and fear that reliance on executive agreements will lead to an erosion of the treaty power. The House may want an international compact to take the form of a congressional-executive agreement, so that it may play a greater role in its consideration. As a matter of historical practice, some types of international agreements have traditionally been entered as treaties in all or nearly every instancemany instances, including compacts concerning mutual defense,4177 extradition and mutual legal assistance,4278 human rights,4379 arms control and reduction,44 environmental protection,4580 taxation,4681 and the final resolution of boundary disputes.47
State Department regulations prescribing the process for coordination and approval of international agreements (commonly known as the "Circular 175 procedure")4883 include criteria for determining whether an international agreement should take the form of a treaty or an executive agreement. Congressional preference is one of several factors (identified in the text box below) considered when determining the form that an international agreement should take. According to State Department regulations,
In 1978, the Senate passed a resolution expressing its sense that the President seek the advice of the Senate Committee on Foreign Relations in determining whether an international agreement should be submitted as a treaty.85 The State Department subsequently modified the Circular 175 procedure to provide for consultation with appropriate congressional leaders and committees concerning significant international agreements.86 Consultations are to be held "as appropriate."87 Factors to Distinguish Treaties from Executive Agreements In determining whether a particular international agreement should be concluded as a treaty or an executive agreement, the State Department requires consideration to be given to the following factors: In determining a question as to the procedure which should be followed for any particular international agreement, due consideration isIn addition, the Circular 175 procedure provides that "the utmost care" should be exercised to "avoid any invasion or compromise of the constitutional powers of the President, the Senate, and the Congress as a whole."84
given to the following factors:
(1) The extent to which the agreement involves commitments or risks affecting the nation as a whole;
(2) Whether the agreement is intended to affect state laws;
(3) Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;
(4) Past U.S. practice as to similar agreements;
(5) The preference of the Congress as to a particular type of agreement;
(6) The degree of formality desired for an agreement;
(7) The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and
(8) The general international practice as to similar agreements.88(8) The general international practice as to similar agreements.
In determining whether any international agreement should be brought into force as a treaty or as an international agreement other than a treaty, the utmost care is to be exercised to avoid any invasion or compromise of the constitutional powers of the President, the Senate, and the Congress as a whole.49
In 1978, the Senate passed a resolution expressing its sense that the President seek the advice of the Senate Committee on Foreign Relations in determining whether an international agreement should be submitted as a treaty.50 The State Department subsequently modified the Circular 175 procedure to provide for consultation with appropriate congressional leaders and committees concerning significant international agreements.51 Consultations are to be held "as appropriate."52
Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a legally binding international agreement.89 In some cases, the United States makes "political commitments" or "gentlemen's agreements" with foreign States. Although these agreementswith foreign States,90 also called "soft law" pacts.91 Although these pacts do not modify existing legal authorities or obligations, which remain controlling under both U.S. domestic and international law, such commitments may nonetheless carry significant moral and political weight.92 In some instances, a nonlegal agreement between States may serve as a stopgap measure until such time as the parties may conclude a permanent legal settlement.5393 In other instances, a nonlegal agreement may itself be intended to have a lasting impact upon the parties' relationship.
The executive branch has long claimed the authority to enter such agreementspacts on behalf of the United States without congressional authorization, asserting that the entering of political commitments by the Executive is not subject to the same constitutional constraints as the entering of legally binding international agreements.5494 An example of a nonlegal agreement is the 1975 Helsinki Accords, a Cold War agreement signed by 35 nations, which contains provisions concerning territorial integrity, human rights, scientific and economic cooperation, peaceful settlement of disputes, and the implementation of confidence-building measures.
An95
Under State Department regulations, an international agreement is generally presumed to be legally binding in the absence of an express provision indicating its nonlegal nature.96 State Department regulations recognize that this presumption may be overcome when there is "clear evidence, in the negotiating history of the agreement or otherwise, that the parties intended the arrangement to be governed by another legal system."5597 Other factors that may be relevant in determining whether an agreement is nonlegal in nature include the form of the agreement and the specificity of its provisions.56
The Executive's authority to enter such arrangements—particularly when those arrangements contemplate the possibility of U.S. military action—has been the subject of long-standing dispute between Congress and the Executive.5799 In 1969, the Senate passed the National Commitments Resolution, stating the sense of the Senate that "a national commitment by the United States results only from affirmative action taken by the executive and legislative branches of the United States government by means of a treaty [or legislative enactment] .. . . specifically providing for such commitment."58100 The Resolution defined a "national commitment" as including "the use of the armed forces of the United States on foreign territory, or a promise to assist a foreign country .. . . by the use of armed forces .. . . either immediately or upon the happening of certain events."59
The National Commitments Resolution took the form of a sense of the Senate resolution, and accordingly had no legal effect.102 Although Congress has occasionally considered legislation that would bar the adoption of significant military commitments without congressional action,60103 no such measure has been enacted.
Unlike in the case of legally binding international agreements, there is no statutory requirement that the executive branch notify Congress of every nonlegal agreement it enters on behalf of the United States.104 State Department regulations, including the Circular 175 procedure, also do not provide clear guidance for when or whether Congress will be consulted when determining whether to enter a nonlegal arrangement in lieu of a legally binding treaty or executive agreement.61 The primary means Congress uses to exercise oversight authority105 Congress normally exercises oversight over such non-binding arrangements is through its appropriations power or via other statutory enactments, by which it may limit or condition actions the United States may take in furtherance of the arrangement.
The Iran Nuclear Agreement Review Act of 2015 (P.L. 114-17) is a notable exception where Congress has opted to condition U.S. implementation of a political commitment upon congressional notification and an opportunity to review the compact.107 The act was passed during negotiations that culminated in the Joint Comprehensive Plan of Action (JCPOA) between Iran, and six nations (the United States, the United Kingdom, France, Russia, China, and Germany—collectively known as the P5+1).108.62 Under the terms of the agreementplan of action, Iran pledged to refrain from taking certain activities related to the production of nuclear weapons, while the other parties haveP5+1 agreed to ease or suspend sanctions that had been imposed in response to Iran's nuclear program. The agreement does not take the form of a legally binding compact, but rather a political agreement which does not purport to alter their109 Because the JCPOA was not signed by any party and purported rely on a series of "voluntary measures," the Obama Administration considered it a political commitment that did not alter domestic or international legal obligations.63 The110 Despite the JCPOA's nonbinding status, the Iran Nuclear Agreement Review Act provided a mechanism for congressional consideration of the JCPOA prior to the Executive being able to exercise any existing authority to relax sanctions to implement the agreement's terms.64 Although the act contemplates congressional consideration of a joint resolution of approval or disapproval of the agreement, it does not purport to transform the JCPOA into binding U.S. law. At most, the President would be authorized (but not required) to implement the JCPOA in a manner consistent with existing statutory authorities concerning the application or waiver of sanctions.65
The effects that international legal agreements entered into by the United States have upon U.S. domestic law are dependent upon the nature of the agreement; namely, whether the agreement (or a provision within an agreement) is self-executing or non-self-executing, and possibly whether itthe commitment was made pursuant to a treaty or an executive agreement.
Some provisions of international treaties or executive agreements are considered "self-executing," meaning that they have the force of domestic law without the need for subsequent congressional action.66 Treaty provisions113 Provisions that are not considered self-executing are understood to require implementing legislation to provide U.S. agencies with legal authority to carry out the functions and obligations contemplated by the agreement or to make them enforceable in court by private parties.67 Treaties have been found to be non-self-executing for at least three reasons: (1) the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation; (2) the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation;68 or (3) implementing legislation is constitutionally required.69 There is significant scholarly debate regarding the distinction between self-executing and non-self-executing agreements, including the ability of U.S. courts to apply and enforce them.70
Until implementing legislation is enacted, existing domestic law concerning a matter covered by an international agreement that is not self-executing remains unchanged and controlling law in the United States. However, when a treaty is ratified or an executive agreement is entered into, the United States acquires obligations under international law and may be in default of those obligations unless implementing legislation is enacted.71
At least since the Supreme Court's 1920 ruling in Missouri v. Holland,72 courts have recognized that Congress may permissibly legislate on matters beyond the scope of its enumerated powers under Article I of the Constitution without violating the Tenth Amendment, when such legislation is necessary and proper to implement requirements established by a ratified treaty. In Holland, the Supreme Court upheld a federal law regulating the killing of migratory birds that had been adopted pursuant to a treaty between the United States and Great Britain, notwithstanding the fact that a similar statute enacted in the absence of a treaty had been found by a lower court to be beyond the scope of Congress's enumerated powers and unconstitutional on Tenth Amendment grounds. Writing for the Holland Court, Justice Holmes stated:
To answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, § 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.73
The extent to which Congress may intrude upon traditional state authority through treaty-implementing legislation remains unclear, though there is reason to believe that it could not enact legislation that infringed upon the essential character of U.S. states, such as through legislation that commandeered state executive and legislative authorities.74
In January 2013, the Supreme Court granted certiorari in Bond v. United States, in which the Court was asked to once again consider the extent to which the Tenth Amendment acts as a constitutional constraint upon Congress's ability to enact treaty-implementing legislation.75 The petitioner had been convicted under the Chemical Weapons Convention Implementation Act of 1998 (CWCIA),76 for attempting to poison her husband's paramour with toxic chemicals. She argued that the act, as applied to her, impermissibly intruded upon matters falling under traditional state authority, and that Congress may not act beyond the scope of its enumerated powers to implement a treaty.
The Supreme Court, however, opted in Bond not to revisit its earlier statement in Missouri v. Holland regarding the scope of the treaty power, or provide any clear signal as to whether it agreed with the earlier Court's characterization.77 The Court declined to reach the constitutional issue because the criminal provisions of the CWCIA should "be read consistent with the principles of federalism inherent in our constitutional structure,"78 and therefore should not be interpreted to cover the petitioner's conduct. Nonetheless, the Bond ruling may suggest that the Court will not normally interpret legislation, including treaty-implementing legislation, as having been intended to reach matters that have traditionally been seen as subject to state or local regulation.
It should be noted, however, that the Court's ruling in Bond likely has no consequence upon Congress's ability to enact legislation on matters covered by ratified treaties, when such legislation can be clearly justified as a constitutionally valid exercise of Congress's legislative authority under Article I of the Constitution.
Sometimes, a treaty or executive agreement will conflict with one of the three main tiers of domestic law—U.S. state law, federal law, or the Constitution. For domestic purposes, a ratified, self-executing treaty is the law of the land equal to federal law79 and superior to U.S. state law,80 but inferior to the Constitution.81 A self-executing executive agreement is likely superior to U.S. state law,82 but sole executive agreements may be inferior to conflicting federal law in certain circumstances (congressional-executive agreements or executive agreements pursuant to treaties are equivalent to federal law),83 and all executive agreements are inferior to the Constitution.84 In cases where ratified treaties or certain executive agreements are equivalent to federal law, the "last in time" rule establishes that a more recent federal statute will trump an earlier, inconsistent international agreement, while a more recent self-executing agreement will trump an earlier, inconsistent federal statute.85 Treaties and executive agreements that are not self-executing, on the other hand, have generally been understood to lack domestic legal effect in the absence of implementing legislation.86 "The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress."87 Accordingly, it appears unlikely that a non-self-executing agreement could be converted into judicially enforceable domestic law via unilateral presidential action.88
Customary international law is defined as resulting from "a general and consistent practice of States followed by them from a sense of legal obligation."89 This means that all, or nearly all, States consistently follow the practice in question and they must do so because they believe themselves legally bound, a concept often referred to as opinio juris sive necitatis (opinio juris). If States generally follow a particular practice but do not feel bound by it, it does not constitute customary international law.90 Further, there are ways for States to avoid being subject to customary international law. First, a State which is a persistent objector to a particular requirement of customary international law is exempt from it.91 Second, under American law, the United States can exempt itself from customary international law requirements by passing a contradictory statute under the "last in time" rule.92 As a result, while customary international law may be incorporated, its impact when in conflict with other domestic law appears limited.
In examining State behavior to determine whether opinio juris is present, courts might look to a variety of sources, including, inter alia, relevant treaties, unanimous or near-unanimous declarations by the United Nations General Assembly concerning international law,93 and whether noncompliance with an espoused universal rule is treated as a breach of that rule.94
In 1900, the Supreme Court stated that customary international law "is our law," but only when there is not already a controlling executive or legislative act.95 There does not appear to be a case where the Court has ever struck down a U.S. statute on the ground that it violated customary international law. However, customary international law can potentially affect how domestic law is construed. If two constructions of an ambiguous statute are possible, one of which is consistent with international legal obligations and one of which is not, courts will often construe the statute so as not to violate international law, presuming such a statutory reading is reasonable.96
Some particularly prevalent rules of customary international law can acquire the status of jus cogens norms—peremptory rules which permit no derogation, such as the international prohibition against slavery or genocide.97 For a particular area of customary international law to constitute a jus cogens norm, State practice must be extensive and virtually uniform.98
Perhaps the clearest example of U.S. law incorporating customary international law is via the Alien Tort Statute (ATS), sometimes referred to as the Alien Tort Claims Act.99 The ATS originated as part of the Judiciary Act of 1789, and establishes federal court jurisdiction over tort claims brought by aliens for violations of either a treaty of the United States or "the law of nations."100 Until 1980, this statute was rarely used, but in Filartiga v. Pena-Irala, the Second Circuit relied upon it to award a civil judgment against a former Paraguayan police official who had allegedly tortured the plaintiffs while still in Paraguay. In doing so, the Filartiga Court concluded that torture constitutes a violation of the law of nations and gives rise to a cognizable claim under the ATS.101 Since that time, the ATS has been used by aliens on a number of occasions to pursue civil judgments against persons or entities for alleged human rights violations.102
Until relatively recently, the Supreme Court had not addressed the scope of the causes of action available to aliens under the ATS. In 2004, however, the Supreme Court heard Sosa v. Alvarez-Machain,103 a case in which the plaintiff attempted to derive from the Alien Tort Statute a cause of action for violation of rules of customary international law. The case arose from the 1985 seizure of a Mexican national, Humberto Alvarez-Machain, on suspicion of assisting in the torture of a Drug Enforcement Agency (DEA) agent. When extradition attempts failed, the DEA contracted with Mexican nationals, including Jose Francisco Sosa, to abduct Alvarez-Machain from his home and bring him to the United States so he could be arrested by federal officers.104 After a lengthy procedural challenge,105 Alvarez-Machain was acquitted by the district court. In 1993, he returned to Mexico and commenced a civil suit against the United States and Sosa for his allegedly arbitrary arrest and detention, with his claim against Sosa being made under the ATS. The holding in Sosa clarifies when and whether the ATS provides for a cause of action on the basis of an alleged violation of customary international law.
The Supreme Court interpreted the ATS as being primarily a jurisdictional statute, giving federal courts authority to entertain claims but not creating a statutory cause of action. Nonetheless, an assessment of historical materials led the Sosa majority to conclude that the statute "was intended to have practical effect the moment it became law … [based] on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time."106 Claims could be pursued under the ATS based on violations of present-day international customary law, but such violations should "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" which existed at the time the ATS was enacted (e.g., a violation of safe conducts, infringement of the rights of ambassadors, or piracy).107 Applying this standard, the Court held that Sosa's claim of arbitrary and unlawful arrest did not give rise to relief under the ATS.
The Court declined to provide examples of modern-day violations of the law of nations that might provide grounds for an ATS claim, and counseled restraint in finding them.108 However, the majority opinion cites to Filartiga on a number of occasions, including citing in dicta to the Filartiga Court's finding that "for purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind."109 The Court did not, however, view provisions contained in either the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR)—two documents signed by the United States (and in the case of the ICCPR, ratified as a treaty) that have been widely recognized as evidence of customary international norms—as necessarily reflecting the existence of a customary international norm sufficient to support an ATS claim.110 The application of customary international law in U.S. courts, at least with respect to providing grounds for aliens to pursue civil claims under the ATS, appears limited in scope.111
In the decades following the Filartiga decision, a substantial portion of ATS litigation concerned activities which occurred on foreign soil and, in many instances, involved parties with little or no ties to the United States. In 2013, the Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co.112 which may significantly reduce the number of cases successfully brought under the ATS involving activities abroad. The case concerned a lawsuit brought by Nigerian citizens against two non-U.S. corporations which allegedly aided and abetted the Nigerian government in the commission of widespread human rights abuses. Although litigation before the lower courts had centered on the question of whether corporations may be held liable under the ATS for violations of the laws of nations, the Supreme Court focused upon the broader issue of the ATS's extraterritorial application.113 In general, courts presume that federal statutes are intended to apply only to domestic conduct in the absence of evidence to the contrary, and the Kiobel Court found that this presumption also applied to the ATS. While holding that nothing in the text, history, and intent of the ATS rebutted the presumption against the ATS's extraterritorial application in many cases, the Court appeared to leave a narrow opening in situations where extraterritorial conduct might "touch and concern the territory of the United States" with "sufficient force" to overcome the presumption.114 While the contours of this exception were largely left open for consideration in future cases, the Kiobel decision appears to significantly limit the extraterritorial application of the ATS.115
In recent years, foreign or international legal sources have increasingly been cited by the Supreme Court when considering matters of U.S. law. While these sources have been looked to for persuasive value, they have not been treated as binding precedent by U.S. courts.116 Reference to foreign law or jurisprudence is not a new occurrence. For example, in 1815, the Supreme Court noted that "decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect."117 With respect to international law and treaty interpretation, at least, foreign practice and understanding have always been considered to have persuasive value.118 However, domestic court reference to foreign law and practice has become increasingly controversial.119 There is some dispute among scholars and policy makers over the extent to which American courts can and should rely on foreign practices in making decisions interpreting U.S. statutes and the Constitution, particularly following recent Supreme Court rulings that referred to foreign jurisprudence.120
Possibly the most notable recent references to foreign law by the Supreme Court occurred in the 2003 case of Lawrence v. Texas121 and the 2005 case of Roper v. Simmons.122 In Lawrence, the Court held that a Texas statute outlawing same-sex sodomy violated the Due Process Clause of the Fourteenth Amendment. In an earlier Court decision upholding anti-sodomy laws, Bowers v. Hardwick, Chief Justice Burger had written that practices akin to those in question in Lawrence had been prohibited throughout Western history.123 Writing for the majority in Lawrence, Justice Kennedy responded to this claim by noting that decisions by other nations and the European Court of Human Rights within the past few decades conflicted with the reasoning and holding of Bowers. The Lawrence Court's opinion went on to imply in dicta that trends in other countries' understandings of "human freedom" can inform our own, though the anti-sodomy statute was struck down on separate grounds.124
In Roper, the Court held that the execution of persons who were juveniles at the time of their capital offenses was prohibited under the Eighth and Fourteenth Amendments. In earlier cases, the Court had struck down the death penalty for juvenile offenders under the age of 16,125 but found that there was not a national consensus against the execution of those persons who were aged 16 or 17 at the time of the offense.126 The Court in Roper held that "evolving standards of decency" had led to a consensus that the execution of juvenile offenders was "cruel and unusual" punishment prohibited under the Constitution.127 Besides citing to U.S. state practice and the views of non-governmental, domestic groups as evidence confirming a national consensus against executing juvenile offenders, the Roper Court also noted "the overwhelming weight of international opinion against the juvenile death penalty."128 Justice Kennedy, writing for the majority, stated that "[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."129
It is not yet clear how persuasive foreign law is considered to be, or whether the Court's decisions in Lawrence, Roper, and other cases evidence a growing practice of looking to foreign jurisprudence to inform constitutional or statutory interpretation. Thus far, it does not appear that an American court has based its holding on a question of statutory or constitutional interpretation solely on foreign law. Although foreign law and practice have historically had a role in American jurisprudence and courts will likely continue to refer to it, where, when, and how significantly they will rely upon it is difficult to predict.
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Source: Reprinted from Congressional Research Service, Treaties and Other International Agreements: The Role of the United States Senate, A Study Prepared for the Senate Comm. on Foreign Relations 8-9 (Comm. Print 2001). |
Author Contact Information
1. |
Restatement (Third) of Foreign Relations, §101 (1987). Recorded international law dates back to agreements between Mesopotamian rulers five thousand years ago, but international law as we understand it began with the Roman Empire, whose scholars formulated a jus gentium (law of nations) they believed universally derivable through reason. See generally David J. Bederman, International Law in Antiquity (2001). The term "international law" appears to have been coined by Jeremy Bentham in 1789. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 326 n. 1 (Hafner Publ'g Co. 1948) (1789). Although originally governing State-to-State relations, the scope of international law has grown, beginning in the latter half of the 20th century with the emerging fields of human rights law and international criminal law, to regulate the treatment and conduct of individuals in certain circumstances. See, e.g., Universal Declaration on Human Rights, UN GAOR, Supp. No. 16, UN Doc. A/6316 (1948); Geneva Convention (Third) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Times of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR, 3rd Comm., 21st Sess., 1496th plen. mtg., U.N. Doc. A/RES/2200A (XXI) (1966). See also U.S. State Dept. Pub. No. 3080, Report of Robert H. Jackson, International Conference on Military Trials 437 (1949) (arguing that crimes against humanity were "implicitly" in violation of international law even before the Nuremberg military trials of Nazi leadership for such offenses following World War II). |
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Restatement, supra footnote 1, §102. |
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3. | By contrast, the Supreme Court has addressed the scope of Congress's power to enact legislation implementing non-self-executing treaty provisions. In a 1920 case, Missouri v. Holland,134 the Supreme Court addressed a constitutional challenge to a federal statute that implemented a treaty prohibiting the killing, capturing, or selling of certain birds that traveled between the United States and Canada.135 In the preceding decade, two federal district courts had held that similar statutes enacted prior to the treaty violated the Tenth Amendment because they infringed on the reserved powers of the states to control natural resources within their borders.136 But the Holland Court concluded that, even if those district court decisions were correct, their reasoning no longer applied once the United States concluded a valid migratory bird treaty.137 In an opinion authored by Justice Holmes, the Holland Court concluded that the treaty power can be used to regulate matters that the Tenth Amendment otherwise might reserve to the states.138 And if the treaty itself is constitutional, the Holland Court held, Congress has the power under the Necessary and Proper Clause139 to enact legislation implementing the treaty into the domestic law of the United States without restraint by the Tenth Amendment.140 Commentators and jurists have called some aspects of the Justice Holmes's reasoning in Holland into question,141 and some scholars have argued that the opinion does not apply to executive agreements.142 But the Supreme Court has not overturned Holland's holding related to Congress's power to implement treaties.143 Nevertheless, principles of federalism embodied in the Tenth Amendment continue to impact constitutional challenges to U.S. treaties and their implementing statutes, including in the 2014 Supreme Court decision, Bond v. United States.144 Bond concerned a criminal prosecution arising from a case of "romantic jealously" when a jilted spouse spread toxic chemicals on the mailbox of a woman with whom her husband had an affair.145 Although the victim only suffered a "minor thumb burn," the United States brought criminal charges under the Chemical Weapons Convention Act of 1998—a federal statute that implemented a multilateral treaty prohibiting the use of chemical weapons.146 The accused asserted that the Tenth Amendment reserved the power to prosecute her "purely local" crime to the states, and she asked the Court to overturn or limit Holland's holding on the relationship between treaties and the Tenth Amendment.147 Sometimes, a treaty or executive agreement will conflict with one of the three main tiers of domestic law—U.S. state law, federal law, or the Constitution. For domestic purposes, a ratified, self-executing treaty is the law of the land equal to federal law153 and superior to U.S. state law,154 but inferior to the Constitution.155 A self-executing executive agreement is likely superior to U.S. state law,156 but sole executive agreements may be inferior to conflicting federal law in certain circumstances (congressional-executive agreements or executive agreements pursuant to treaties are equivalent to federal law),157 and all executive agreements are inferior to the Constitution.158 In cases where ratified treaties or certain executive agreements are equivalent to federal law, the "last-in-time" rule establishes that a more recent federal statute will prevail over an earlier, inconsistent international agreement, while a more recent self-executing agreement will prevail over an earlier, inconsistent federal statute.159 Treaties and executive agreements that are not self-executing, on the other hand, have generally been understood not to displace existing state or federal law in the absence of implementing legislation.160 "The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress."161 Accordingly, it appears unlikely that a non-self-executing agreement could be converted into judicially enforceable domestic law absent legislative action through the bicameral process.162 The executive branch frequently is responsible for interpreting international agreements outside the context of domestic litigation.172 While the Supreme Court has final authority to interpret an agreement for purposes of applying it as domestic law in the United States, some questions of interpretation may involve exercise of presidential discretion or otherwise may be deemed "political questions" more appropriately resolved in the political branches. In Charlton v. Kelly, for example, the Supreme Court declined to decide whether Italy violated its extradition treaty with the United States, reasoning that, even if a violation occurred, the President "elected to waive any right" to respond to the breach by voiding the treaty.173 Moreover, the executive branch often is well-positioned to interpret an agreement's terms given its leading role in negotiating agreements and its understanding of other nations' post-ratification practices.174 Thus, even when a question of interpretation is to be resolved by the judicial branch, the Supreme Court has stated that the executive branch's views are entitled to "great weight"175—although the Court has not adopted the executive branch's interpretation in every case.176 Congress also possesses power to interpret international agreements by virtue of its power to pass implementing or other related legislation.177 And because the Constitution expressly divides the treaty-making power between the Senate and the President, the Supreme Court has examined sources that reflect these entities' shared understanding of a treaty at the time of ratification.178 The Senate's ability to influence treaty interpretation directly, however, may be limited to its role in the advice and consent process.179 The Senate may, and frequently does, condition its consent on a requirement that the United States interpret a treaty in a particular fashion.180 But after the Senate provides its consent and the President ratifies a treaty, resolutions passed by the Senate that purport to interpret the treaty are "without legal significance" according to the Supreme Court.181 The Constitution sets forth a definite procedure whereby the President has the power to make treaties with the advice and consent of the Senate, 182 but it is silent as to how to terminate them.183 Although the Supreme Court has recognized directly the President's power to conclude certain executive agreements,184 it has not addressed presidential power to terminate those agreements. The following section discusses historical practice and jurisprudence related to the withdrawal from and termination of international agreements.185 Congress also has asserted the authority to direct the President to terminate congressional-executive agreements. For example, in the Comprehensive Anti-Apartheid Act of 1986, which was passed over President Reagan's veto, Congress instructed the Secretary of State to terminate an air services agreement with South Africa.192 And in the Trade Agreements Extension Act of 1951, Congress directed the President to "take such action as is necessary to suspend, withdraw or prevent the application of" trade concessions contained in prior trade agreements regulating imports from the Soviet Union and "any nation or area dominated or controlled by the foreign government or foreign organization controlling the world Communist movement."193 On the other hand, treaties do not share every feature of federal statutes. Whereas statutes can be enacted over the president's veto, treaties can never be concluded without the Senate's advice and consent. Moreover, whereas an enacted federal statute can only be rescinded by a subsequent act of Congress, some argue that, just as the President has some unilateral authority to remove executive officers who were appointed with senatorial consent, the President may unilaterally terminate treaties made with the Senate's advice and consent.200 At the turn of the 20th century, government practice began to change, and a new form of treaty termination emerged: unilateral termination by the President without approval by the legislative branch. During the Franklin Roosevelt Administration and World War II, unilateral presidential termination increased markedly.211 Although Congress occasionally enacted legislation authorizing or instructing the President to terminate treaties during the 20th century,212 unilateral presidential termination became the norm.213 The president's exercise of treaty termination authority did not generate opposition from the legislative branch in most cases, but there have been occasions in which Members of Congress sought to block unilateral presidential action. In 1978, a group of Members filed suit in Goldwater v. Carter214 seeking to prevent President Carter from terminating a mutual defense treaty with the government of Taiwan215 as part of the United States' recognition of the government of mainland China.216 A divided Supreme Court ultimately ruled that the litigation should be dismissed, but it did so without reaching the merits of the constitutional question and with no majority opinion.217 Citing a lack of clear guidance in the Constitution's text and a reluctance "to settle a dispute between coequal branches of our Government each of which has resources available to protect and assert its interests[,]" four Justices concluded that the case presented a nonjusticiable political question.218 This four-Justice opinion, written by Justice Rehnquist, has proven influential since Goldwater, and federal district courts have invoked the political question doctrine as a basis to dismiss challenges to unilateral treaty terminations by President Reagan219 and President George W. Bush.220 Customary international law is defined as resulting from "a general and consistent practice of States followed by them from a sense of legal obligation."221 This means that all, or nearly all, nations consistently follow the practice in question and they must do so because they believe themselves legally bound, a concept often referred to as opinio juris sive necitatis (opinio juris).222 If nations generally follow a particular practice but do not feel bound by it, it does not constitute customary international law.223 Further, there are ways for nations to avoid being subject to customary international law. First, a nation that is a persistent objector to a particular requirement of customary international law is exempt from it.224 Second, under American law, the United States can exempt itself from customary international law requirements by passing a contradictory statute under the "last-in-time" rule.225 As a result, the impact of customary international law that conflicts with other domestic law appears limited. In examining nations' behavior to determine whether opinio juris is present, courts might look to a variety of sources, including, inter alia, relevant treaties, unanimous or near-unanimous declarations by the United Nations General Assembly concerning international law,226 and whether noncompliance with an espoused universal rule is treated as a breach of that rule.227 Uncertainties and debate frequently arise concerning how customary international law is defined and how firmly established a particular norm must be in order to become binding.228 Some particularly prevalent rules of customary international law can acquire the status of jus cogens norms—peremptory rules which permit no derogation, such as the international prohibition against slavery or genocide.229 For a particular area of customary international law to constitute a jus cogens norm, State practice must be extensive and virtually uniform.230 In a landmark 1938 decision, Erie Railroad Co. v. Tompkins, the Supreme Court rejected the then-longstanding notion that there was a "transcendental body of law" known as the general common law, which federal courts are permitted to identify and describe in the absence of a conflicting statute.234 Erie held that the "law in the sense in which courts speak of it today does not exist without some definite authority behind it" in the form of a state or federal statute or constitutional provision.235 Some jurists and commentators have argued that, because judicial application of customary international law requires courts to rely on the same processes used in discerning and applying the general common law, Erie should be interpreted to foreclose application of customary international law in U.S. courts.236 Many commentators, however, disagree with this view.237 Although the Supreme Court has not passed directly on the issue, in 1964, it discussed with approval a law review article in which then-professor and later judge of the International Court of Justice Philip C. Jessup argued that it would be "unsound" and "unwise" to interpret Erie to bar federal courts' application of customary international law.238 And in a 2004 case, the High Court rejected the view that federal courts have lost "all capacity" to recognize enforceable customary international norms as a result of Erie.239 Consequently, at present, the precise status of customary international law in the U.S. legal system remains the subject of debate. 240 While there is some uncertainty concerning the customary international law's role in domestic law, the debate has largely focused on circumstances in which customary international law does not conflict with an existing federal statute. When a federal statute does conflict with customary international law, lower courts consistently have concluded that the statute prevails.241 And there do not appear to be any cases in which a court has struck down a federal statute on the ground that it violates customary international law.242 Further, the Supreme Court's pre-Erie jurisprudence could be read to support the view that federal statutes prevail over customary international law. In The Paquete Habana, the Court explained that customary international law may be incorporated into domestic law, but only to the extent that "there is no treaty, and no controlling executive or legislative act or judicial decision" in conflict.243 While it appears that federal statutes will generally prevail over conflicting custom-based international law, customary international law can potentially affect how courts construe domestic law. Under the canon of statutory construction known as the Charming Betsy canon, when two constructions of an ambiguous statute are possible, one of which is consistent with international legal obligations and one of which is not, courts will often construe the statute so as not to violate international law, presuming such a statutory reading is reasonable.244 Filártiga was a highly influential decision that caused the ATS to "skyrocket" into prominence as a vehicle for asserting civil claims in U.S. federal courts for human rights violations even when the events underlying the claims occurred outside the United States.251 But the expansion of the claims grounded in the ATS was not long-lived. Beginning with a 2004 decision, Sosa v. Alvarez-Machain, the Supreme Court began to place outer limits on the statute's application.252 Sosa held that not all violations of international norms are actionable under the ATS—only those that "rest on a norm of international character accepted by the civilized world" and are defined with sufficient clarity and particularity.253 And even when a claim meets these standards, Sosa explained that federal courts must exercise "great caution" before deeming a claim actionable.254 Nine years later, in Kiobel v. Royal Dutch Petroleum Co., the Supreme Court further limited the ATS's reach by holding that courts should apply the canon of construction known as the presumption against extraterritoriality to the statute.255 Under Kiobel, foreign plaintiffs cannot sue foreign defendants in ATS suits when the relevant conduct occurred overseas.256 And in Jesner v. Arab Bank, PLC, a 2018 decision, the High Court concluded that foreign corporations are not subject to the liability under the ATS.257 Although the ATS remains a clear example of a U.S. statute incorporating customary international law, the Supreme Court's narrowing of ATS jurisdiction in Sosa, Kiobel, and Jesner has caused some commentators to question its continued relevance.258 Although the United States has long understood international legal commitments to be binding both internationally and domestically, the relationship between international law and the U.S. legal system implicates complex legal dynamics. In some areas, courts have established settled rules. For example, courts clearly have recognized that the Constitution permits the United States to make binding international commitments through both treaties and executive agreements.259 And the Supreme Court has held that only self-executing international agreements have the status of judicially enforceable domestic law.260 But other issues concerning the status of international law in the U.S. legal system have never been fully resolved.261 The scope of presidential power to make executive agreements, the role of non-self-executing agreements and customary international law, and the division of power to withdraw from international agreements—like many international-law-related issues—have long been the subject of debate. Because the legislative branch possesses significant powers to shape and define the United States' international obligations, Congress is likely to continue to play a critical role in dictating the outcome of these debates in the future.
Source: Reprinted from Treaties and Other International Agreements: The Role of the United States Senate, A Study Prepared for the Senate Comm. on Foreign Relations, S. Rep. 106-9, at 8-9 (Comm. Print 2001).
Source: Reprinted from Treaties and Other International Agreements: The Role of the United States Senate, A Study Prepared for the Senate Comm. on Foreign Relations, S. Rep. 106-9, at 8-9 (Comm. Print 2001). Author Contact Information Acknowledgments This report originally was prepared by [author name scrubbed], Section Research Manager. Restatement (Third) of Foreign Relations law of the United States, § 101 (1987) [hereinafter Third Restatement]. Recorded international law dates back to agreements between Mesopotamian rulers five thousand years ago, but international law as it now commonly understood began with the Roman Empire, whose scholars formulated a jus gentium (law of nations) they believed universally derivable through reason. See generally David J. Bederman, International Law in Antiquity (2001). Although originally governing nation-to-nation relations, the scope of international law has grown, beginning in the latter half of the 20th century with the emerging fields of human rights law and international criminal law, to regulate the treatment and conduct of individuals in certain circumstances. See, e.g., Universal Declaration on Human Rights, UN GAOR, Supp. No. 16, UN Doc. A/6316 (1948); Geneva Convention (Third) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Times of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR, 3rd Comm., 21st Sess., 1496th plen. mtg., U.N. Doc. A/RES/2200A (XXI) (1966). See also U.S. State Dept. Pub. No. 3080, Report of Robert H. Jackson, International Conference on Military Trials 437 (1949) (arguing that crimes against humanity were "implicitly" in violation of international law even before the Nuremberg military trials of Nazi leadership for such offenses following World War II). See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796) ("When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement."); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793) ("[T]he United States had, by taking a place among the nations of the earth, become amenable to the law of nations."); Letter from Thomas Jefferson, Secretary of State, to M. Genet, French Minister (June 5, 1793), https://founders.archives.gov/documents/Jefferson/01-26-02-0189 (describing the law of nations as an "integral part" of domestic law). See also infra notes 231-233 (citing statements by the judicial and executive branch concerning the application of international law into domestic law). See infra § Effects of International Agreements on U.S. Law. See infra § Forms of International Agreements. See id. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
U.S. Const. art. II, § 2, cl. 2 (providing that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur"). |
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8.
See infra § Executive Agreements. |
See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1828) (Marshall, C.J.) ( |
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10.
See infra § Customary International Law. |
The Paquete Habana, 175 U.S. 677, 700 (1900). See also, e.g., As used in this report, the term "pact" is a generic term intended to encompass non-binding commitments between nations and legally binding international agreements. For further detail of various types of international commitments and their relationship with U.S. law, see Treaties and Other International Agreements, supra note 8, at 43-97; Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201, 1207-09 (2018). | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Vienna Convention on the Law of Treaties, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
The term "treaty" is not always interpreted under U.S. law to refer only to those agreements described in Article II, § 2 of the Constitution. See Weinberger v. Rossi, 456 U.S. 25, 31-32 (1982) (interpreting statute barring discrimination except where permitted by "treaty" to refer to both treaties and executive agreements); B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912) (construing the term "treaty," as used in statute conferring appellate jurisdiction, to also refer to executive agreements). |
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10. | See id. For more on variations of the definition of the term "treaty," see supra notes 13-14. See infra § Executive Agreements. See infra § Nonlegal Agreements. See Third Restatement, supra note 1, § 301(1); Restatement (Fourth) of Foreign Relations Law of the United States: Treaties, Tentative Draft No. 1, § 101 cmt. a (Mar. 21, 2016) [hereinafter Fourth Restatement: Draft 1]. See Curtis A. Bradley, Unratified Treaties, Domestic Politics and the U.S. Constitution, 48 Harv. Int'l L.J. 307, 313 (2007) ("Under modern practice . . . consent is manifested through a subsequent act of ratification – the deposit of an instrument of ratification or accession with a treaty depositary in the case of multilateral treaties, and the exchange of instruments of ratification in the case of bilateral treaties."); Third Restatement, supra note 1, § 312 cmt. c ("A state can be bound upon signature, but that has now become unusual as regards important formal agreements."). See supra note 6 (citing the Treaty Clause). See, e.g., Louis Henkin, Foreign Affairs and the U.S. Constitution 177 (2d ed. 1996) ("As originally conceived, no doubt, the Senate was to be a kind of Presidential council, affording him advice throughout the treaty-making process and on all aspects of it . . . ."); Arthur Bestor, "Advice" from the Very Beginning, "Consent" When the End Is Achieved, 83 Am. J. Int'l L. 718, 726 (1989) ("[T]he use of the phrase 'advice and consent' to describe the relationship between the two partners clearly indicated that the Framers' conception was of a council-like body in direct and continuous consultation with the Executive on matters of foreign policy."). See supra note 22. On an occasion that has been described as the first and last time the President personally visited the Senate chamber to receive the Senate's advice on a treaty, President Washington went to the Senate in August 1789 to consult about proposed treaties with the Southern Indians. See 1 Annals of Cong. 65-71 (1789). But observers reported that he was so frustrated with the experience that he vowed never to appear in person to discuss a treaty again. See, e.g., William Maclay, Sketches of Debate in the First Senate of the United Sates 122-24 (George W. Harris ed. 1880) (record of the President's visit by Senator William Maclay of Pennsylvania); Ralston Hayden, The Senate and Treaties, 1789-1817, at 21-26 (1920) (providing a historical account of Washington's visit to the Senate). See Memoirs of John Quincy Adams 427 (Charles Francis Adams ed., 1875) ("[E]ver since [President Washington's first visit to the Senate to seek its advice], treaties have been negotiated by the Executive before submitting them to the consideration of the Senate."). See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015) ("The President has the sole power to negotiate treaties, . . . and the Senate may not conclude or ratify a treaty without Presidential action."); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) ("The President . . . makes treaties with the advice and consent of the Senate; but he alone negotiates."). See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 405 (2000) ("The exercise of the conditional consent power has been in part a response by the Senate to its loss of any substantial 'advice' role in the treaty process."); Samuel B. Crandall, Treaties, Their Making and Enforcement 81 (2d ed. 1916) ("Not usually consulted as to the conduct of negotiations, the Senate has freely exercised its co-ordinate power in treaty making by means of amendments."). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Declarations are "statements expressing the Senate's position or opinion on matters relating to issues raised by the treaty rather than to specific provisions." Treaties and Other International Agreements, supra |
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Understandings are "interpretive statements that clarify or elaborate provisions but do not alter them." | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Provisos concern "issues of U.S. law or procedure and are not intended to be included in the instruments of ratification to be deposited or exchanged with other countries." |
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14. |
As a matter of customary international law, States are "obliged to refrain from acts which would defeat the object and purpose of a treaty," including entering reservations that are incompatible with a treaty's purposes. Vienna Convention, arts. 18-19. |
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See Fourth Restatement: Draft 2, supra note 28, § 105 reporters' n.3. See also United States v. Stuart, 489 U.S. 353, 374–75 (1989) (Scalia, J., concurring) ("[The Senate] may, in the form of a resolution, give its consent on the basis of conditions. If these are agreed to by the President and accepted by the other contracting parties, they become part of the treaty and of the law of the United States . . . ."). 33.
|
|
For discussion of historical examples of conditions attached by the Senate to treaties, see Fourth Restatement: Draft 2, supra note 28, § 105 reporters' n.5. 34.
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For example, in giving its advice and consent to the first treaty that was to be ratified by the United States after the adoption of the Constitution—dubbed the Jay Treaty because it was negotiated by the first Chief Supreme Court Justice of the United States, John Jay, who was appointed a special envoy to Great Britain despite his role in the judicial branch—the Senate insisted on suspending an article allowing Great Britain to restrict U.S. trade in the British West Indies. Senate Exec. Journal, 4th Cong., Special Sess., June 24, 1795, at 186. The Jay Treaty was ratified by Great Britain without objection to Senate's changes. See Hayden, supra note 24 at 86-88. 35.
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See, e.g., Curtis A. Bradley, International Law in the U.S. Legal System 36-39 (2d ed. 2015) (discussing scholarly debate over RUDs). |
See, e.g., Louis Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341, 343-44 (1995) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
16. |
U.S. Const. art. 6, cl. 2 ("[A]ll Treaties made ... under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby...."). |
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17. | See Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869) (noting that "the Senate are not required to adopt or reject [a treaty] as a whole, but may modify or amend it, as was done with the treaty under consideration"). See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (reasoning that the International Covenant on Civil and Political Rights (ICCPR) could not form the basis for a claim because it was ratified "on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts"); Oxygene v. Lynch, 813 F.3d 541, 546 (4th Cir. 2016) (interpreting a Senate understanding attached to its resolution of advice and consent to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and stating the that understanding "reflects the intent of the United States to influence how executive and judicial bodies later interpret the treaty on both the international and domestic level"); Pierre v. Gonzales, 502 F.3d 109, 115 (2d Cir. 2007) ("The definition of torture under domestic immigration law, and the scope of an individual's entitlement to CAT relief, is therefore governed by the text of the CAT subject to the terms of the Senate ratification resolution."); Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (rejecting petitioner's claim that Ohio's death penalty violates international law in part by noting U.S. reservations to relevant treaties). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
18. |
See Halberstam, supra footnote 17, at 602; Damrosch, supra footnote 17, at 527; Vázquez, supra footnote 17, at 609 (concluding, however, that "the treatymakers do have the power under our Constitution to render treaties non-self-executing by attaching declarations of non-self-execution"). |
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19. |
Curtis A. Bradley and Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 446 (2005). |
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20. |
See, e.g., Pierre v. Gonzales, 502 F.3d 109, 115 (2d Cir. 2007) ("The definition of torture under domestic immigration law, and the scope of an individual's entitlement to ... relief [under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)], is therefore governed by the text of the CAT subject to the terms of the Senate ratification resolution."); Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (rejecting petitioner's claim that Ohio's death penalty violates international law in part by noting U.S. reservations to relevant treaties); Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001) (suggesting Senate's reservation to provision of ICCPR prohibiting imposition of death sentence for defendants less than 18 years of age was valid). |
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21. |
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23. |
See Hathaway et al., supra footnote 22, at 87-88. |
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24. |
See 1 U.S.C. §112b (requiring text of executive agreements to be transmitted to Congress within 60 days, subject to certain exceptions). |
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25. | The Case-Zablocki Act of 1972, Pub. L. No. 92-403, 86 Stat. 619, requires that all "international agreements" other than treaties be transmitted to Congress within 60 days of their entry into force for the United States. 1 U.S.C. § 112b. The act does not define what sort of arrangements constitute "international agreements," though the legislative history suggests that Congress "did not want to be inundated with trivia . . . [but wished] to have transmitted all agreements of any significance." H.R. Rep. No. 92-1301(1972). Implementing State Department regulations establish criteria for assessing when a compact constitutes an "international agreement" that must be reported under the Case-Zablocki Act. These regulations provide that "[m]inor or trivial undertakings, even if couched in legal language and form," are not considered to fall under the purview of the act's reporting requirements. 22 C.F.R. § 181.2(a). Similarly, although federal law generally requires the State Department publish all international agreements to which the United States is a party, an exception is made which affords the Secretary of State discretion to decline to publish some executive agreements when "public interest in such agreements is insufficient to justify their publication." 1 U.S.C. § 112a(b). |
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27. |
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28. |
The Case-Zablocki Act of 1972 (P.L. 92-403) requires that all "international agreements" other than treaties be transmitted to Congress within 60 days of their entry into force for the United States. The act does not define what sort of arrangements constitute "international agreements," though the legislative history suggests that Congress "did not want to be inundated with trivia ... [but wished] to have transmitted all agreements of any significance." H.Rept. 92-1301, 92nd Cong. (1972). Implementing State Department regulations establish criteria for assessing when a compact constitutes an "international agreement" that must be reported under the Case-Zablocki Act. These regulations provide that "[m]inor or trivial undertakings, even if couched in legal language and form," are not considered to fall under the purview of the act's reporting requirements. 22 C.F.R. §181.2(a). Similarly, although federal law generally requires the State Department to publish all international agreements to which the United States is a party, an exception is made which affords the Secretary of State the discretion to decline to publish some executive agreements when "public interest in such agreements is insufficient to justify their publication." 1 U.S.C. §112a(b). |
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29. |
In a 1953 congressional hearing, Secretary of State John Foster Dulles was asked how many executive agreements had been entered by the United States pursuant to the NATO Treaty. Dulles replied, with some degree of hyperbole, "about 10,000.... Every time we open a new privy, we have an executive agreement." Hearing on S.J. Res. 1 and S.J. Res. 43: Before a Subcommittee of the Senate Judiciary Committee, 83rd Cong., 1st Sess. (1953), 877. |
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30. |
Treaties and Other International Agreements, supra footnote 5, at 5. See also CRS Report 97-896, Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than Treaties, by [author name scrubbed], [author name scrubbed], and [author name scrubbed]; Louis Henkin, Foreign Affairs and the U.S. Constitution (2nd ed. 1996) at 215-18. |
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31. |
Treaties and Other International Agreements, supra footnote 5, at 5. |
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32. |
Id. |
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33. |
U.S. Const. art. VI, §2 ("the laws of the United States ... [and] all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land"). |
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34. |
See Treaties and Other International Agreements, supra footnote 5, at 5, citing U.S. Const. arts. II, §1 (executive power), §2 (commander in chief power, treaty power), §3 (receiving ambassadors). Courts have recognized foreign affairs as an area of very strong executive authority. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). |
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35. |
See Restatement, supra footnote 1, §303 (4). See also Zivotofsky v. Kerry, 135 S.Ct. 2076 (2015) (recognizing that the Constitution confers the President with exclusive authority to recognize foreign states and their territorial bounds, and striking down a statute that impermissibly interfered with the exercise of such authority). |
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36. |
See Dames & Moore v. Regan, 453 U.S. 654 (1981) (upholding sole executive agreement concerning the handling of Iranian assets in the United States, despite the existence of a potentially conflicting statute, given Congress's historical acquiescence to these types of agreements); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ("When the President acts pursuant to an express or implied authorization of Congress, his powers are at their maximum.... Congressional inertia, indifference or quiescence may ... invite, measures of independent Presidential responsibility.... When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter") (Jackson, J., concurring). But see Medellin v. Texas, 552 U.S. 491, 531-532 (2008) (suggesting that Dames & Moore analysis regarding significance of congressional acquiescence might be relevant only to a "narrow set of circumstances," where presidential action is supported by a "particularly longstanding practice" of congressional acquiescence). |
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37. | See Treaties and Other International Agreements, supra note 8, at 38; Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236, 1288 (2008); Bradley & Goldsmith, supra note 12, at 1210. Bradley & Goldsmith, supra note 12, at 1213. See also Treaties and Other International Agreements, supra note 8, at 40. See, e.g., CLOUD Act, Pub. L. No. 115-141, div. V, § 105 (codified at 18 U.S.C. § 2523) (authorizing data-sharing executive agreements with certain foreign nations); Foreign Assistance Act of 1961, Pub. Law No. 87-195 (codified as amended at 22 U.S.C. §§ 2151-2431k) (authorizing the President to furnish assistance to foreign nations "on such terms and conditions as he may determine, to any friendly country"). See Third Restatement, supra note 1, § 303(3); Treaties and Other International Agreements, supra note 8, at 86. See Treaties and Other International Agreements, supra note 8, at 88. See also supra note 43 (citing Supreme Court case law recognizing the validity of sole executive agreements). See Third Restatement, supra note 1, § 303(2); Henkin, supra note 22, at 217; Bradley & Goldsmith, supra note 12, at 1208. See supra note 47 (citing examples of congressional-executive agreements). See Treaties and Other International Agreements, supra note 8, at 5. North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 605 (entered into force Jan. 1, 1994). See General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A3, 55 U.N.T.S. 187. See Third Restatement, supra note 1, § 303(3) & cmt. f; Bradley & Goldsmith, supra note 12, at 1208; Treaties and Other International Agreements, supra note 8, at 86. See also Wilson v. Girard, 354 U.S. 524, 528-29 (1957) (giving effect to an executive agreement defining jurisdiction over U.S. forces in Japan that was concluded pursuant to a treaty). Treaties and Other International Agreements, supra note 8, at 86-87 & n.117 (discussing examples in which Members of the Senate contended that certain executive agreements did fall within the purview of an existing treaty and required Senate approval). U.S. Const. art. VI, § 2 ("[T]he laws of the United States . . . [and] all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . ."). See supra note 55. See Treaties and Other International Agreements, supra note 8, at 5 (citing U.S. Const. arts. II, § 1 (executive power), § 2 (commander in chief power, treaty power), § 3 (receiving ambassadors)). Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 415 (2003); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981); United States v. Pink, 315 U.S. 203, 229 (1942); United States v. Belmont, 301 U.S. 324, 330 (1937). See Third Restatement, supra note 1, § 303 (4). See also Zivotofsky v. Kerry, 135 S.Ct. 2076, 2084-96 (2015) (recognizing that the Constitution confers the President with exclusive authority to recognize foreign states and their territorial bounds, and striking down a statute that impermissibly interfered with the exercise of such authority). See Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (upholding sole executive agreement concerning the handling of Iranian assets in the United States, despite the existence of a potentially conflicting statute, given Congress's historical acquiescence to these types of agreements); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization of Congress, his powers are at their maximum . . . . Congressional inertia, indifference or quiescence may . . . invite, measures of independent Presidential responsibility . . . . When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."). But see Medellín v. Texas, 552 U.S. 491, 531-32 (2008) (suggesting that Dames & Moore analysis regarding significance of congressional acquiescence might be relevant only to a "narrow set of circumstances," where presidential action is supported by a "particularly longstanding practice" of congressional acquiescence). See supra note 63. See Treaties and Other International Agreements, supra note 8, at 88. See also United States v. Belmont, 301 U.S. 324, 330 (1937) (recognizing constitutional authority for the Litvinov Assignment); United States v. Pink, 315 U.S. 203, 229 (1942) (confirming the holding in Belmont). See Harold Hongju Koh, Triptych's End: A Better Framework to Evaluate 21st Century International Lawmaking, 126 Yale L.J. Forum 338, 345 (2017); Daniel Bodansky & Peter Spiro, Executive Agreements+, 49 Vand. J. Transnat'l L. 885, 887 (2016). For example, the Obama Administration described the Paris Agreement on climate change as an executive agreement, and commentators discussed multiple possible sources of executive authority on which to conclude the Agreement, but the executive branch did not publicly articulate the precise sources of executive authority on which President relied in entering into the Paris Agreement. See CRS Report R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement, by [author name scrubbed], at 18 & n. 146-149. See also Bodansky & Spiro, supra note 69, at 908-914 (citing the Anti-Counterfeiting Trade Agreement, Minamata Convention on Mercury, and inter-governmental agreements related to reporting of foreign income as executive agreements that did not have a specific, identifiable source of statutory or constitutional authority, but that were concluded as a new form of executive agreement during the Obama Administration). See Bodansky & Spiro, supra note 69, at 927; Koh, supra note 69, at 345-48. See Bradley & Goldsmith, supra note 12, at 1263. |
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Compare Yoo, supra |
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Third Restatement, supra |
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See Made in the USA |
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See Inter-American Treaty of Reciprocal Assistance, |
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See generally |
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See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, entered into force for the United States |
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See, e.g., Treaty on the Non-Proliferation of Nuclear Weapons, |
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For a list of tax treaties to which the United States is a party, see IRS, United States Income Tax Treaties - A to Z, https://www.irs.gov/businesses/international-businesses/united-states-income-tax-treaties-a-to-z (last updated June 19, 2018). 82.
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See, e.g., Treaty Concerning the Canadian International Boundary, U.S.-U.K., |
See, e.g., International Convention for the Prevention of Pollution of the Sea by Oil, with Annexes, 12 U.S.T. 2989, 327 U.N.T.S. 3, entered into force for the United States on December 8, 1961; United Nations Framework Convention on Climate Change, with Annexes, Sen. Treaty Doc. 102-38, 1771 UNTS 107, entered into force March 21, 1994; Montreal Protocol on Substances that Deplete the Ozone Layer, with Annexes, SEN. TREATY DOC. 100-10, 1522 U.N.T.S. 3, entered into force January 1, 1989. |
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46. |
Under these agreements, parties generally agree to tax the income of residents of the other agreement parties at a reduced rate, or exempt those residents from taxation altogether. For a list of tax treaties to which the United States is a party, see International Revenue Service, United States Income Tax Treaties - A to Z, at http://www.irs.gov/Businesses/International-Businesses/United-States-Income-Tax-Treaties—A-to-Z. |
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47. |
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Circular 175 initially referred to a 1955 Department of State Circular which established a process for the coordination and approval of international agreements. These procedures, as modified, are now found in 22 C.F.R. Part 181 and 11 Foreign Affairs Manual (F.A.M.) chapter 720. |
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11 F.A.M. § 723.3 |
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S. 11 F.A.M. § 723.4(b)-(c). |
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11 F.A.M. § 723.3.
See generally Duncan B. Hollis and Joshua J. Newcomer, "Political" Commitments and the Constitution, 49 Va. J. Int'l L. 507 (2009) (discussing the origins and constitutional implications of the practice of making political commitments). Treaties and Other International Agreements, supra note 8, at at 58-64 (discussing various types of nonlegal agreements and their status under domestic and international law). |
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92.
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|
See Third Restatement, supra note 1, § 301 reporters' n. 2 ("[T]he political inducements to comply with such [nonbinding] agreements may be strong and the consequences of noncompliance serious."). |
Temporary arrangements intended to avoid dispute pending the conclusion of a permanent legal agreement are sometimes referred to as modi vivendi arrangements, and can potentially be either legal or nonlegal in nature. For further discussion of U.S. historical practice with respect to modi vivendi agreements, see William Hays Simpson, Use of Modi Vivendi in Settlement of International Disputes, 11 Rocky Mntn. L. Rev. 89 (1938); W. Michael Reisman, Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions, 35 Vand. J. Transnat'l L. 729 (2002). |
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See generally Memorandum from Robert E. Dalton, Asst. Legal Adviser for Treaty Affairs, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
55. |
22 C.F.R. §181.2(a)(1). |
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95.
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Conference on Security and Cooperation in Europe: Final Act, Aug. 1, 1975, 73 Dep't State Bull. 323 (1975) [hereinafter Helsinki Accords]. 96.
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22 C.F.R. § 181.2(a)(1) ("In the absence of any provision in the arrangement with respect to governing law, it will be presumed to be governed by international law."). See also Hollis & Newcomer, supra note 89, at 525 ("To date, most (but not all) international lawyers favor a presumption of treaty making in lieu of creating political commitments."). 97.
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22 C.F.R. § 181.2(a)(1). |
Id. See also State Department Office of the Legal Adviser, Guidance on Non-Binding Documents, at http://www.state.gov/s/l/treaty/guidance/. |
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See |
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S. Res. 85, 91st Cong |
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Id. According to the committee report accompanying the Resolution, the
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See, |
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105.
See supra note 42 (discussing statutory notification requirements for treaties and executive agreements). |
See State |
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107.
|
|
Pub. L. No. 114-17, 129 Stat. 201 (2015) (codified in 42 U.S.C. § 2011 note and id. § 2160e). 108.
|
Joint Comprehensive Plan of Action, July 14, 2015, http://www.state.gov/e/eb/tfs/spi/iran/jcpoa/ [hereinafter JCPOA]. For additional background on the JCPOA and the United States' withdrawal from the plan of action under the Trump Administration, see CRS Legal Sidebar LSB10134, Withdrawal from the Iran Nuclear Deal: Legal Authorities and Implications, by [author name scrubbed].
109.
|
|
See JCPOA, supra note 108, at 6. 110.
|
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See Office of Legal Adviser, U.S. Dep't of State, Digest of United States Practice in International Law 2015, at 123 (Sally J. Cummins & David P. Stewart eds., 2002). Some argue that, although the JCPOA was originally nonbinding under international law, its provisions became binding when it was incorporated into a U.N. Security Council Resolution. For more discussion on the legal status of the JCPOA, see CRS Legal Sidebar LSB10134 supra note 108 and CRS Report R44761, supra note 70, at 23-24. |
See JCPOA at 6 (providing in the introduction to the agreement's operative clauses that "Iran and [the other JCPOA parties] will take the following voluntary measures within the timeframe as detailed in this JCPOA and its Annexes"). See also CQ Congressional Transcripts, House Foreign Affairs Committee Holds Hearing on Iran Nuclear Deal, July 28, 2015 (in response to questioning concerning the form of the agreement, Secretary of State John Kerry described the JCPOA as a "political agreement," and indicated that a motivation behind the agreement taking this form was because U.S. negotiators were concerned that "it's become impossible" for a treaty to be approved by the U.S. Senate). |
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For a detailed description of the Iran Nuclear Agreement Review Act, including the temporal scope and effect of the framework for congressional review contained within the act, see CRS Report R44085, Procedures for Congressional Action in Relation to a Nuclear Agreement with Iran: In Brief, by [author name scrubbed] and [author name scrubbed]. |
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See infra § Self-Executing vs. Non-Self-Executing Agreements. 113.
|
See, e.g., Medellín v. Texas, 552 U.S. 491, |
P.L. 114-17, §2, codified at 42 USC §2160e (providing that if Congress either enacts a joint resolution of approval of the JCPOA, or fails to enact a joint resolution of disapproval within the specified time period, then the President is permitted to act "consistent with existing statutory requirements" to provide sanctions relief to Iran pursuant to the JCPOA). |
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66. |
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68. |
For example, in the case of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984), the Senate gave advice and consent subject to a declaration that the treaty was not self-executing. U.S. Reservations, Declarations, and Understandings to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 136 Cong. Rec. H.R. 1 (daily ed., Oct. 27, 1990). Congress has specified that neither World Trade Organization (WTO) agreements nor rulings made by the WTO Dispute Settlement Body pursuant to these agreements have direct legal effect under U.S. domestic law. See CRS Report RS22154, World Trade Organization (WTO) Decisions and Their Effect in U.S. Law, by [author name scrubbed], [author name scrubbed], and [author name scrubbed]. |
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69. |
Restatement, supra footnote 1, §111(4)(a) & reporters' n. 5-6. |
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70. |
See, e.g., John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 Am. J. Int'l L. 310 (1992); Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Int'l L. 760 (1988); Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008); John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999). |
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71. |
See Restatement, supra footnote 1, §111, cmt. h. |
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72. |
Missouri v. Holland, 252 U.S. 416 (1920). |
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73. |
Id. at 432. Since Holland, a number of federal statutes implementing treaty requirements have been recognized by reviewing courts as constitutionally permissible under the Necessary and Proper Clause. See, e.g., United States v. Bond, 681 F.3d 149 (3rd Cir. 2012), cert. granted, 133 S. Ct. 978 (U.S., Jan. 18, 2013) (applying Holland and holding that the Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. §229, was a constitutionally valid exercise of Congress's power under the Necessary and Proper Clause to implement a treaty requirement); United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001) (upholding Hostage Taking Act, 18 U.S.C. §1203, as necessary and proper to implement the International Convention Against the Taking of Hostages); United States v. Wang Kun Lue, 134 F.3d 79 (2nd Cir. 1997) (same). See also United States v. Lara, 541 U.S. 193 (2004) (citing to the Indian Commerce Clause and Treaty Clause as providing Congress with power to legislate on Indian tribe issues, and stating that "treaties ... can authorize Congress to deal with matters with which otherwise Congress could not deal ...") (internal quotations omitted). |
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74. |
See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). See generally Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 Colum. L. Rev. 403 (2003). For criticism of the Supreme Court's decision in Missouri v. Holland, and arguments that the treaty power may not expand Congress's legislative power, see Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867 (2005). |
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115.
|
|
See, e.g., Medellín, 552 U.S. at 507-08 (holding that Article 94 of the U.N. Charter, which states that each member of the U.N. "undertakes to comply" with the decisions of the International Court of Justice (ICJ) did not render an ICJ decision self-executing in the sense that it overrode contradictory state law); Foster, 27 U.S. at 254 (concluding that a provision in a treaty between United States and Spain that purported to preserve prior Spanish lands grants was non-self-executing). 116.
|
|
See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) ("[T]he United States ratified the ICCPR on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts."). 117.
|
|
See, e.g., Fourth Restatement: Draft 2, supra note 28, § 110(3) & cmt. c. See also 5 Annals of Congress 771 (1796) (resolution from the House of Representatives stating that "when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress "). 118.
|
|
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, 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) ("[M]oney cannot be appropriated by the treaty-making power. This results from the limitations of our government."). 119.
|
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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."); United States v. Postal, 589 F.2d 862, 877 (5th Cir. 1979) (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). 120.
|
|
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."). 121.
|
|
See, e.g., Medellín v. Texas, 552 U.S. 491, 503-04 (2008) (concluding that because an ICJ judgment was not binding on domestic courts, state law concerning procedural limitations on successive filings of petitions for habeas corpus applied). 122.
|
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See, e.g., United States v. Postal, 589 F.2d 862, 876 (5th Cir. 1979) ("The self-execution question is perhaps one of the most confounding in treaty law."), cert. denied, 44 U.S. 832 (1979); 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"). 123.
|
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See, e.g., David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int'l L. 129, 197-216 (1999). 124.
|
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Compare, e.g., Auguste v. Ridge, 395 F.3d 123, 133 (3d Cir. 2005) ("Treaties that are not self-executing do not create judicially-enforceable rights unless they are first given effect by implementing legislation."); with ITC Ltd. v. Punchgini, Inc., 482 F.3d 161 n.21 (2d Cir. 2007) ("Non-self-executing treaties do not become effective as domestic law until implementing legislation is enacted."); and 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."). 125.
|
|
See Bradley, supra note 35, at 44 (summarizing the debate of the domestic status of non-self-executing treaties). 126.
|
|
See, e.g., Medellín v. Texas, 552 U.S. 491, 504-06 (2008) (discussing the distinction between the binding effect of treaties under international law versus domestic law). 127.
|
|
See id. 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."); Head Money Cases (Edye v. Robertson), 112 U.S. 580, 598 (1884) ("A treaty is primarily a compact between independent nations . . . . But a treaty may also contain provisions which . . . partake of the nature of municipal law . . . ."). 128.
|
|
See Head Money Cases, 112 U.S. at 598 ("[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: Draft 2, supra note 28, § 110 cmt. c ("It is ordinarily up to each nation to decide how to implement domestically its international obligations."). 129.
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|
See Medellín, 552 U.S. at 522-23 (explaining that, although an ICJ judgment did "not of its own force constitute binding federal law[,]" the judgment "create[d] an international law obligation" for the United States); Fourth Restatement: Draft 2, supra note 28, § 110(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."). 130.
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|
See Third Restatement, supra footnote 1, §111, cmt. h. 131.
|
See Henkin, supra note 22, at 204. See also supra § Self-Executing vs. Non-Self-Executing Agreements (discussing Congress's role in implementing non-self-executing treaties).
132.
|
|
Whereas Alexander Hamilton argued that the House of Representatives was obligated to appropriate funds for the Jay Treaty, supra note 34, James Madison, then a Member of the House, and others disagreed. Compare Enclosure to Letter from Alexander Hamilton to George Washington (Mar. 29, 1796), in Papers of Alexander Hamilton 98 (Harold C. Syrett ed., 1974) ("[T]he house of representatives have no moral power to refuse the execution of a treaty, which is not contrary to the constitution, because it pledges the public faith, and have no legal power to refuse its execution because it is a law—until at least it ceases to be a law by a regular act of revocation of the competent authority."), with 5 Annals of Cong. 493-94 (1796) (statement of Rep. Madison) ("[T]his House, in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, . . . it would be the mere instrument of the will of another department, and would have no will of its own."); 5 Annals of Cong. 771 (1796) (proposed resolution of Rep. Blount) ("[W]hen a Treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect . . . ."). 133.
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See Henkin, supra note 22, at 205. 134.
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252 U.S. 416 (1920). 135.
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See Migratory Bird Treaty Act, 40 Stat. 755 (1918); Convention for the Protection of Migratory Birds, Aug. 16, 1916, art. VIII, U.S.-Gr. Brit., 39 Stat. 1702. 136.
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United States v. McCullagh, 221 F. 288, 295-96 (D. Kan. 1915); United States v. Shauver, 214 F. 154, 160 (E.D. Ark. 1914). 137.
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|
See Missouri v. Holland, 252 U.S. 416, 433 (1920). 138.
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See Holland, 252 U.S. at 433-34 (concluding that the "treaty in question does not contravene any prohibitory words to be found in the Constitution" and is not "forbidden by some invisible radiation from the general terms of the Tenth Amendment"). 139.
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|
See U.S. Const., art. I, § 8. 140.
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|
See Holland, 252 U.S. at 432 ("If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."). Accord Neely v. Henkel, 180 U.S. 109, 121 (1901) ("The power of Congress to make all laws necessary and proper . . . includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power."). 141.
|
See Reid v. Covert, 354 U.S. 1, 16-17 (1957) (plurality opinion) (responding to dicta in Holland by clarifying that the treaty power is subject to certain constitutional constraints); |
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76. |
18 U.S.C. §229. |
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77. |
For further discussion of the Bond ruling, see CRS Report R42968, Bond v. United States: Validity and Construction of the Federal Chemical Weapons Statute, by [author name scrubbed]. |
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78. |
Bond v. United States, 134 S. Ct. 2077, 2087 (2014). In the aftermath of Bond, however, the Ninth Circuit rejected a constitutional challenge to the CWCIA, finding that it was "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power...." United States v. Fries, 781 F.3d 1137, 1148 (9th Cir. 2015) (quoting and adopting reasoning of the Third Circuit Court of Appeals in Bond, 681 F. 3d. at 165). |
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142.
|
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Bradley, supra note 35, at 86. 143.
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See United States v. Lara, 541 U.S. 193, 201 (2004) ("[A]s Justice Holmes pointed out, treaties made pursuant to [the treaty] power can authorize Congress to deal with 'matters' with which otherwise 'Congress could not deal.'") (quoting Missouri v. Holland, 252 U.S. 416, 433 (1920)); Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion) ("To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier."). 144.
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134 S. Ct. 2077 (2014). 145.
|
|
See id. at 2090-91. 146.
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|
Chemical Weapons Convention Act of 1998, Pub. L. No. 105-277, div. I, tit. II, § 201(a), 112 Stat. 2681, 2681-866 (codified in 18 U.S.C. §§ 229-229f); Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, art. 1, entered into force Apr. 29, 1997, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 317. 147.
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Bond, 134 S. Ct. at 2086-87. 148.
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See id. at 2087. Justice Scalia and Justice Thomas criticized Holland and argued that the Supreme Court should depart from its interpretation of congressional power to enact legislation that is necessary and proper to implement treaties. See id. at 2102 (Scalia, J., concurring in the judgment) (joined by Thomas, J.). 149.
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|
See id. at 2089-90. 150.
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Id. at 2090. 151.
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See id. at 2089-90. 152.
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Accord William S. Dodge, Bond v. United States and Congress's Role in Implementing Treaties, 108 AJIL Unbound 86, 87 (2015) ("The central holding of Bond is that statutes implementing treaties are not exceptions to the rules of statutory interpretation that the Supreme Court has developed to protect federalism."). 153.
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See Whitney v. Robertson, 124 U.S. 190, |
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See U.S. Const., art. VI, § 2 ("the laws of the United States |
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81. |
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See United States v. Belmont, 301 U.S. 324, 330 (1937) (holding that sole executive agreement concerning settlement of U.S.-Soviet claims provided federal government with authority to recover claims held in New York banks, despite existence of state laws that would generally bar their recovery); United States v. Pink, 315 U.S. 203, 229 (1942) ( |
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See generally Third Restatement, supra |
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Id. (holding that presidential memorandum ordering a U.S. state court to give effect to non-self-executing- treaty requirement did not constitute federal law preempting the state's procedural default rules). | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
89. |
Restatement, supra footnote 1, §102(2). |
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163.
|
|
See Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006) ("If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law 'is emphatically the province and duty of the judicial department . . . .'" (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803))). 164.
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See, e.g., BG Grp., PLC v. Republic of Argentina, 134 S. Ct. 1198, 1208 (2014); Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1232 (2014); Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 183 (1982); Wright v. Henkel, 190 U.S. 40, 57 (1903). 165.
|
Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1509 (2017) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988)); Société Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 534 (1987); Air France v. Saks, 470 U.S. 392, 397 (1985) |
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|
See, e.g., Water Splash, Inc., 137 S. Ct. at 1511; Schlunk, 486 U.S. at 699. In one case, the Supreme Court changed its conclusion about the self-executing effect of a provision in an 1819 treaty with Spain after analyzing an authenticated Spanish-language version of the text. Compare Foster v. Neilson, 27 (2 Pet.) U.S. 253, 314-15 (1829) (construing English language version of 1819 treaty between the United States and Spain and deeming a provision stating that certain land grants "shall be ratified and confirmed" to be non-self-executing) (emphasis added), with United States v. Percheman, 32 U.S. (7 Pet.) 51, 88–89 (1833) (concluding that the land grant provision at issue was self-executing after interpreting the Spanish language version, which was translated to state that the land grants "shall remain ratified and confirmed") (emphasis added). 167.
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See, e.g., Abbott v. Abbott, 560 U.S. 1, 20 (2010); Sanchez-Llamas, 548 U.S. at 347; Société Nationale Industrielle Aerospatiale, 482 U.S. at 530; E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991). 168.
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See, e.g., Water Splash, Inc., 137 S. Ct. at 1511; Medellín, 552 U.S. at 507; Air France, 470 U.S. at 400; Schlunk, 486 U.S. at 700. 169.
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|
See, e.g., Water Splash, Inc., 137 S. Ct. at 1511-12; Abbott, 560 U.S. at 16; Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1233 (2014); Air France, 470 U.S. at 404. 170.
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|
See, e.g., Medellín, 552 U.S. at 507; TWA v. Franklin Mint Corp., 466 U.S. 243, 259 (1984). 171.
|
|
See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) ("We must thus be governed by the text-solemnly adopted by the governments of many separate nations-whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous . . . . But where the text is clear, as it is here, we have no power to insert an amendment."). 172.
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See Relevance of Senate Ratification History to Treaty Interpretation, 11 U.S. Op. Off. Legal Counsel 28, 30 (1987) ("[T]he President is responsible for enforcing and executing international agreements, a responsibility that necessarily 'involves also the obligation and authority to interpret what the treaty requires.'" (quoting L. Henkin, Foreign Affairs and the Constitution 167 (1st ed. 1972))). Fourth Restatement: Draft 2, supra note 28, § 106 cmt. g ("Execution of a treaty requires interpretation, and the President often determines what a treaty means in the first instance . . . ."). 173.
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|
See 229 U.S. 447, 475 (1913). 174.
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|
See Fourth Restatement: Draft 2, supra note 28, § 106 cmt. g & reporters' n.10 (discussing the executive branch's unique access to information related to treaty interpretation). Accord Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982) (giving deference to the Department of State's interpretation of a treaty because it is the agency "charged with [the treaty's] negotiation and enforcement"). 175.
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|
See Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1512 (2017) (quoting Abbott v. Abbott, 560 U.S. 1, 15 (2010)); Medellín, 552 U.S. at 513; Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184–85 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961). 176.
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|
See BG Grp., PLC v. Republic of Argentina, 134 S. Ct. 1198, 1208 (2014) (construing a dispute resolution provision in an investment treaty between the United Kingdom and Argentina and concluding "[w]e do not accept the Solicitor General's view as applied to the treaty before us"); Hamdan v. Rumsfeld, 548 U.S. 557, 629-30 (2006) (declining to adopt the executive branch's interpretation of Common Article 3 of the 1949 Geneva Conventions). 177.
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See Henkin, supra note 22, at 206 ("Congress, too, has occasion to interpret a treaty when it considers enacting implementing legislation, or other legislation to which the treaty might be relevant."). 178.
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See United States v. Stuart, 489 U.S. 353, 365-68 (1989) (considering, but deeming inconclusive, a treaty's ratification history); Société Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 531 (1987) (discussing Secretary of State's analysis of the purposes of a treaty that was provided to the Senate). 179.
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See Fourteen Diamond Rings v. United States, 183 U.S. 176, 180 (1901) (declining to give legal weight to a Senate resolution attempting to clarify a ratified treaty because the "meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it."). 180.
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For example, the Senate frequently has conditioned its advice and consent to treaties on what has become known as the "Byrd-Biden condition," which provides that "the United States shall interpret the Treaty in accordance with the common understanding of the Treaty shared by the President and the Senate at the time the Senate gave its advice and consent to ratification . . . ." 134 Cong. Rec. 12849 (1988). See also Treaties and Other International Agreements, supra note 8, at 129-30 (providing a history of the Byrd-Biden condition and examples of its use). 181.
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See Fourteen Diamond Rings, 183 U.S. at 180 (describing a Senate resolution purporting to interpret an earlier, Senate-approved treaty as "absolutely without legal significance"). 182.
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See supra note 6. 183.
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See, e.g., Goldwater v. Carter, 444 U.S. 996, 1003 (1979) (plurality opinion) ("[W]hile the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty."); Henkin, supra note 22, at 211 ("[T]he Constitution tells us only who can make treaties for the United States; it does not tell us who can unmake them."). 184.
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|
See supra § Executive Agreements. 185.
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|
For more detailed analysis of international and domestic legal principles related to withdrawal from international agreements, see CRS Report R44761, supra note 70. 186.
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|
See Bradley & Goldsmith, supra note 12, at 1225; Treaties and Other International Agreements, supra note 8 at 172; Third Restatement, supra note 1, § 339 reporters' n. 2. 187.
|
|
See Bradley & Goldsmith, supra note 12, at 1225 ("Presidents clearly have the authority to terminate sole executive agreements and political commitments, since those agreements by Presidents based on their own constitutional authority."); Third Restatement, supra note 1, § 339 reporters' n. 2 ("No one has questioned the President's authority to terminate sole executive agreements."). 188.
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See, e.g., Julian Ku, President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on "Day One," Opinio Juris (Sep. 10, 2015), https://tinyurl.com/ydfodbbo (arguing that, because the JCPOA is a nonbinding political commitment, the President can unilaterally terminate the arrangement); Ryan Harrington, A Remedy for Congressional Exclusion from Contemporary International Agreement Making, 118 W. Va. L. Rev. 1211, 1226 (2016) ("A political commitment also provides the executive branch with the ability to terminate the agreement unilaterally or to deviate from it without consequences."). 189.
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|
See Third Restatement, supra note 1, § 339 cmt. a; Treaties and Other International Agreements, supra note 8, at 174, 208; Michael J. Glennon, Can the President Do No Wrong?, 80 Am. J. Int'l L. 923, 926 (1986). See also Hathaway, supra note 45, at 1362 n.268 ("The President may withdraw from . . . a congressional-executive agreement unilaterally unless Congress has expressly limited the President's power to withdraw through . . . authorizing legislation . . . ."). 190.
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See Third Restatement, supra note 1, § 339 cmt. a. 191.
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See id. For example, Section 125 of the Free Trade Act of 1974, which authorizes a fast-track process for consideration of legislation implementing free trade agreements, states: "Duties or other import restrictions required or appropriate to carry out any trade agreement entered into pursuant to this chapter . . . shall not be affected by any termination, in whole or in part, of such agreement or by the withdrawal of the United States from such agreement and shall remain in effect after the date of such termination or withdrawal for 1 year, unless" certain exceptions apply. 19 U.S.C. § 2135(e). 192.
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Pub. L. No. 99-440, § 306(b)(1), 313, 100 Stat. 1086, 1100 (1986) ("The Secretary of State shall terminate the Agreement Between the Government of the United States of America and the Government of the Union of South Africa Relating to Air Services Between their Respective Territories . . . ."), repealed by South African Democratic Transition Support Act of 1993, Pub. L. No. 103-149, § 4, 107 Stat. 1503, 1505. The Reagan Administration complied and provided the requisite notice of termination. See South African Airways v. Dole, 817 F.2d 119, 121 (D.C. Cir. 1987), cert denied, 484 U.S. 896 (1987). 193.
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See Pub. L. No. 82-50, § 5, 65 Stat. 72, 73 (1951). The Truman Administration relied on this law in terminating certain congressional-executive agreements with the Soviet Union and several Soviet satellite countries. Dep't of State, Office of the Historian, Foreign Relations of the United States, 1951, Europe: Political and Economic Developments, Volume IV, Part 2, https://history.state.gov/historicaldocuments/frus1951v04p2/d169. 194.
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See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1627-40 (2018); Michael Ramsey, Could President Trump Unilaterally Withdraw the U.S. from its International Agreements?, Originalism Blog (Sep. 29, 2016), https://tinyurl.com/yc26cfdr. 195.
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See Julian Ku & John Yoo, Trump Might be Stuck with NAFTA, L.A. Times (Nov. 29, 2016) (arguing that Congress's Commerce Clause authority bars the President from terminating the NAFTA without congressional authorization); Joel P. Trachtman, Trump Can't Withdraw from NAFTA Without a 'Yes' from Congress, The Hill (Aug. 16, 2017), https://tinyurl.com/y9byuyed ("If the president, acting alone, were to terminate U.S. participation in NAFTA, he would be imposing regulation on commerce, without congressional participation. This would be an unconstitutional usurpation of the powers granted to Congress."). 196.
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See Treaties and Other International Agreements, supra note 8, at 208 ("[T]he President's authority to terminate executive agreements . . . has not been seriously questioned in the past"); Bradley, supra note 194, at 1639 ("Congress has not indicated that it views congressional-executive agreements as special with respect to the issue of presidential termination authority."). 197.
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See, e.g., Barry M. Goldwater, Treaty Termination is a Shared Power, 65 A.B.A. J. 198, 199-200 (1979). 198.
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See, e.g., Clinton v. City of New York, 524 U.S. 417, 438 (1998) ("There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes."); INS v. Chadha, 462 U.S. 919, 954 (1983) ("[R]epeal of statutes, no less than enactment, must conform with Art. I."). 199.
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See, e.g., David Gray Adler, The Constitution and the Termination of Treaties 89-110 (1986). 200.
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See, e.g., id. at 94. |
Id. at §102, reporters' n. 2. The philosophy underlying the consistent objector exemption is that States are bound by customary international law because they have at least tacitly consented to it. Binding them to abide to customary practices despite their explicit rejection of these norms would violate their sovereign rights—though States are likely still bound in the case of peremptory, jus cogens norms which are thought to permit no State derogation, such as the international prohibition against genocide or slavery. See Colom v. Peru, 1950 I.C.J. 266 (Nov. 20); U.K. v. Norway, 1951 I.C.J. 116 (Dec.18). |
92. |
Whitney, 124 U.S. at 194 (When…[a statute and treaty] relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing."). |
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93. |
Restatement, supra footnote 1, §102 (2) cmt. c. For a discussion of potential difficulties in relying U.N. General Assembly Resolutions as evidence of customary international law, see Oscar Schachter, International Law in Theory and Practice: General Course in Public International Law, 178 Rec. Des Cours 111-121 (1982-V). |
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94. |
See Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004) (declining to apply protections espoused by the Universal Declaration of Human Rights because it "does not of its own force impose obligations as a matter of international law"). |
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95. |
The Paquete Habana, 175 U.S. at 700. As a result, it is the opinion of some commentators that "no enactment of Congress may be challenged on the grounds that it violates customary international law." Wade Estey, The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption Against Extraterritoriality, 21 Hastings Int'l. & Comp. L. Rev. 177, 180 (1997). See also Committee of U.S. Citizens Living in Nicaragua, 859 F.2d at 940. |
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96. |
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, J.) ("an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains...."). But see Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1151-54 (7th Cir. 2001) (suggesting that given the "present uncertainty about the precise domestic role of customary international law," application of this canon of construction to resolve differences between ambiguous congressional statutes and customary international law should be used sparingly). |
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97. |
Restatement, supra footnote 1, §702, cmt. n. |
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98. |
Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001), citing North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/The Netherlands) 1969 I.C.J. 51/52 (Feb. 20) & Restatement, supra footnote 1, §102 (2) cmt. k. & reporters' n. 6. |
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99. |
28 U.S.C. §1350. |
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100. |
For additional background on the ATS, see CRS Report RL32118, The Alien Tort Statute: Legislative History and Executive Branch Views, by [author name scrubbed], and CRS Report R42925, Kiobel v. Royal Dutch Petroleum Co.: Extraterritorial Jurisdiction Under the Alien Tort Statute, by [author name scrubbed]. |
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101. |
630 F.2d 876 (2nd Cir. 1980). The court based its conclusion that torture was prohibited under international law upon sources including, inter alia, U.N. resolutions, the U.N. Charter, and the Universal Declaration of Human Rights. |
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102. |
See, e.g., Flores v. Southern Peru Copper Corp., 343 F.3d 140 (2nd Cir. 2003) (Peruvian plaintiffs brought personal injury claims under ATS against American mining company, alleging that pollution from mining company's Peruvian operations had caused severe lung disease); Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) (former prisoners in Ethiopia filed lawsuit under ATS against former Ethiopian official for torture); Kadic v. Karadzic, 70 F.3d 232 (2nd Cir.1995) (Bosnian plaintiffs brought suit against the self-proclaimed leader of unrecognized Bosnian-Serbian entity under the ATS for war crimes). |
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103. |
542 U.S. 692 (2004). |
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104. |
Alvarez-Machain v. United States, 331 F.3d 604, 609 (9th Cir. 2003) (en banc). |
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105. |
See United States v. Alvarez-Machain, 504 U.S. 655 (1992). |
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106. |
Sosa, 542 U.S. at 724. |
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107. |
Id. at 725. |
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108. |
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110. |
Id. at 734-735. |
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111. |
Id. See also, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005), cert. denied, 549 U.S. 1032 (2006) (while claim of torture was cognizable under ATS, claims of arbitrary detention and cruel, inhuman or degrading treatment were not); Taveras v. Taveraz, 477 F.3d 767 (6th Cir. 2006) (cross-border child abduction by parent did not constitute violation of "law of nations" cognizable under ATS); Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2nd Cir. 2009) (jurisdiction existed under ATS for claim against private company that, with the aid of Nigerian government, allegedly violated customary international prohibition on non-consensual human medical experimentation), cert. denied, 130 S. Ct. 3541 (2010). |
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112. |
Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013). |
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113. |
When the Supreme Court initially granted certiorari to consider the Kiobel case, it appeared that the central issue concerned whether corporations could be held liable under the ATS for violations of the laws of nations. After the first round of oral arguments, however, the Court directed the parties to file supplemental briefs on the question of the ATS's extraterritorial application and heard a second round of oral arguments on that issue. For further background, see CRS Legal Sidebar WSLG128, Supreme Court to Rehear Kiobel Case this Fall—Possible Repercussions for Human Rights Cases and Foreign Affairs, by [author name scrubbed]. |
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114. |
Kiobel,133 S.Ct. at 1669. The majority opinion stated that "mere corporate presence" in the United States was not a sufficient nexus for ATS jurisdiction to attach over a multinational corporation's conduct outside the country. Id. Writing in concurrence, Justice Kennedy stated that the Court's opinion was "careful to leave open a number of significant questions regarding the reach and interpretation" of the ATS, including its extraterritorial "application to allegations of serious violations of international law principles protecting persons." Id. (Kennedy, J., concurring). Rejecting the presumption against extraterritoriality, Justice Breyer, also concurring and joined by three other members of the Court, would have held that ATS jurisdiction may attach when "(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind." Id. at 1671 (Breyer, J., concurring). |
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115. |
For discussion and analysis of the Kiobel case, see CRS Report R42925, Kiobel v. Royal Dutch Petroleum Co.: Extraterritorial Jurisdiction Under the Alien Tort Statute, by [author name scrubbed]. |
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203.
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|
See, e.g. Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773, 789 (2014); Fourth Restatement: Draft 2, supra note 28, § 113, reporters' n.2; Treaties and Other International Agreements, supra note 8, at 207. 204.
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See S. Rep. No. 34-97, at 5 (1856) (Senate Foreign Relations Committee describing the 1798 treaty abrogation statute as a "rightful exercise of the war power, without viewing it in any manner as a precedent establishing in Congress alone, and under any circumstances, the power to annul a treaty."). Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (opinion of Washington, J.) (treating the 1798 statute as one in a bundle of congressional acts declaring a limited "public war" on the French Republic). 205.
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|
For analysis of 19th century understanding and practice related to treaty termination, see Bradley, supra note 203, at 788-801; Crandall, supra note 27, at 423-66. 206.
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|
See, e.g., Joint Resolution Concerning the Oregon Territory, 9 Stat. 109 (1846) (providing that the President "is hereby authorized, at his discretion, to give to the government of Great Britain the notice required by" a convention allowing for joint occupancy of parts of the Oregon Territory); Joint Resolution of June 17, 1874, 18 Stat. 287 (authorizing the President to give notice of termination of a Treaty of Commerce with Belgium). 207.
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See, e.g., Joint Resolution of Jan. 18, 1865, 13 Stat. 566 ("Resolved . . . That notice be given of the termination of the Reciprocity Treaty . . . and the President of the United States is hereby charged with the communication of such notice to the government of the United Kingdom . . . ."); Joint Resolution of Mar. 3, 1883, 22 Stat. 641 ("[T]he President . . . hereby is directed to give notice to the Government of Her Britannic Majesty that the provisions of each and every of the articles aforesaid will terminate . . . on the expiration of two years next after the time of giving such notice."). 208.
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See, e.g., Franklin Pierce, Third Annual Message (Dec. 31, 1855), in 7 A Compilation of the Messages and Papers of the Presidents 2860, 2867 (James D. Richardson ed., 1897) ("In pursuance of the authority conferred by a resolution of the Senate of the United States passed on the 3d of March last, notice was given to Denmark" that the United States would "terminate the [treaty] at the expiration of one year from the date of notice for that purpose."). 209.
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|
For example, after Congress enacted a joint resolution calling for the termination of the Oregon Territory Treaty, supra note 206, the Secretary of State informed the U.S. Ambassador to Great Britain that "Congress have spoken their will upon the subject, in their joint resolution; and to this it is his (the President's) and your duty to conform." S. Doc. 29-489, at 15 (1846). As required by the Joint Resolution of January 18, 1865, supra note 207, the Andrew Johnson Administration terminated an 1854 treaty with Great Britain concerning trade with Canada. Letter from William H. Seward, U.S. Sec'y of State, to Charles Francis Adams, Minister to the U.K. (Jan. 18, 1865), in Papers Relating to Foreign Affairs, pt. 1, at 93 (1866). 210.
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See, e.g., Joint Resolution to Terminate the Treaty of 1817 Regulating the Naval Force on the Lakes, 13 Stat. 568 (1865) ("[T]he notice given by the President of the United States to [the] government of Great Britain and Ireland to terminate the treaty . . . is hereby adopted and ratified as if the same had been authorized by Congress."); Joint Resolution of Dec. 21, 1911, 37 Stat. 627 (1911) (stating that President Taft's notice of termination of a treaty with Russia was "adopted and ratified"). 211.
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|
See Bradley, supra note 203, at 807-09. 212.
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See, e.g., Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, § 313, 100 Stat. 1086, 1104 (mandating that "[t]he Secretary of State shall terminate immediately" a tax treaty and protocol with South Africa), repealed by South African Democratic Transition Support Act of 1993, Pub. L. No. 103-149, § 4, 107 Stat. 1503, 1505; Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265, § 202(b), 90 Stat. 331, 340-41 (authorizing the Secretary of State to renegotiate certain fishing treaties and expressing the "sense of Congress that the United States shall withdraw from any such treaty, in accordance with its provisions, if such treaty is not so renegotiated within a reasonable period of time after such date of enactment"). 213.
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See Bradley, supra note 203, at 807-15. 214.
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444 U.S. 996 (1979). 215.
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Mutual Defense Treaty Between the United States of America and the Republic of China, Dec. 2, 1954, 6 U.S.T. 433. 216.
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|
For background on Goldwater v. Carter, see Victoria Marie Kraft, The U.S. Constitution and Foreign Policy: Terminating the Taiwan Treaty 1-52 (1991). 217.
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See Goldwater, 444 U.S. at 996 (vacating with instructions to dismiss with no majority opinion). 218.
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See id. 1002-05 (Rehnquist, J., concurring) (joined by Justices Stewart and Stevens and Chief Justice Burger). Justice Powell also voted for dismissal, but did so based on the ground that the case was not ripe for judicial review until the Senate passed a resolution disapproving of the President's termination. See id. at 998 (Powell, J., concurring). Justice Brennan would have held that President Carter possessed the power to terminate the Mutual Defense Treaty with Taiwan, but his opinion centered on the President's power over recognition over foreign governments, and not because he believed the President possessed a general, constitutional power to terminate treaties. See id. at 1006-07 (Brennan, J., dissenting). 219.
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|
In 1986, a federal district court dismissed a group of private plaintiffs' suit seeking to prevent President Reagan from unilaterally terminating a Treaty of Friendship, Commerce, and Navigation with Nicaragua. See Beacon Products Corp. v. Reagan, 633 F. Supp. 1191, 1198-99 (D. Mass. 1986), aff'd on other grounds, 814 F.2d 1 (1st Cir. 1987). 220.
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In 2002, the United States District Court for the District of Columbia dismissed as nonjusticable a challenge brought by 32 Members of Congress to President George W. Bush's termination of the Anti-Ballistic Missile Treaty with Russia. See Kucinish v. Bush, 236 F. Supp. 2d 1, 14-17 (D.D.C. 2002). 221.
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|
Third Restatement, supra note 1, § 102(2). 222.
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|
Id. § 102 cmt. c. 223.
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|
Id. 224.
|
|
Id. § 102, reporters' n. 2. The philosophy underlying the consistent objector exemption is that States are bound by customary international law because they have at least tacitly consented to it. Binding them to abide to customary practices despite their explicit rejection of these norms would violate their sovereign rights—though States are likely still bound in the case of peremptory, jus cogens norms which are thought to permit no State derogation, such as the international prohibition against genocide or slavery. See Colom v. Peru, 1950 I.C.J. 266 (Nov. 20); U.K. v. Norway, 1951 I.C.J. 116 (Dec.18). 225.
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|
See Whitney v. Robertson, 124 U.S. 190, 194 (1888) ("When . . . [a statute and treaty] relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing."). See also supra § Conflict with Existing Laws (discussing the "last-in-time rule"). 226.
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|
Third Restatement, supra note 1, §102 (2) cmt. c. For a discussion of potential difficulties in relying U.N. General Assembly Resolutions as evidence of customary international law, see Oscar Schachter, International Law in Theory and Practice: General Course in Public International Law, 178 Rec. Des Cours 111-121 (1982-V). 227.
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|
See Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004) (declining to apply protections espoused by the Universal Declaration of Human Rights because it "does not of its own force impose obligations as a matter of international law"). |
See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331, 354 (2006) (while Optional Protocol of the Vienna Convention on Consular Relations, to which the United States was a party, gave the International Court of Justice jurisdiction to settle disputes between parties regarding the treaty's meaning, ruling by the international tribunal was not binding precedent on U.S. courts; if "treaties are to be given effect as federal law … determining their meaning as a matter of federal law is emphatically the province and duty of the judicial department, headed by the one [S]upreme Court established by the Constitution") (citations and quotations omitted). |
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117. |
Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch) 191 (1815). |
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119. |
Recent controversy has focused on citations to contemporary foreign law in U.S. courts' analyses of the meaning and scope of U.S. constitutional provisions. But citations to foreign law may also occur in other, sometimes less controversial, contexts. For example, a federal or U.S. state statute may recognize action taken by a foreign government as being relevant to the person's eligibility for a federal or state right or benefit (e.g., whether to recognize a marriage occurring in another country; or the implications that a foreign criminal conviction may have upon an non-citizen's ability under U.S. immigration laws to enter or remain in the United States). Litigation concerning these domestic statutes may occasionally compel U.S. courts to interpret and apply foreign law. Moreover, the law of a U.S. state may authorize the recognition of a foreign judgment or arbitration award. Further, a U.S. state's choice of law rules may require application of foreign law in certain civil disputes taking place between private parties (e.g., when a person brings suit against a person residing in the U.S. state on account of injurious activities that occurred overseas). In recent years, the possibility that U.S. state courts might apply religious law to settle family disputes, or might enforce an anti-defamation judgment of a foreign state which does not protect free speech to the same degree as the United States, has been the subject of legislative enactments at the state or federal level, and, in some instances, litigation. For discussion of these issues, see CRS Report R41824, Application of Religious Law in U.S. Courts: Selected Legal Issues, by [author name scrubbed], and CRS Report R41417, The SPEECH Act: The Federal Response to "Libel Tourism" (discussing the SPEECH Act, P.L. 111-223, which bars U.S. state and federal courts from recognizing or enforcing a foreign judgment for defamation unless certain requirements are satisfied, including consistency with the U.S. Constitution and Section 230 of the Communications Act of 1934, which accords legal protections to providers of interactive computer services which block or screen offensive material). |
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120. |
See generally Steven G. Calabresi and Stephanie Dotson Zimdahl, The Supreme Court And Foreign Sources Of Law: Two Hundred Years Of Practice And The Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005) (discussing historical usage of foreign law by Supreme Court and controversy regarding usage in recent cases involving constitutional interpretation). |
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121. |
539 U.S. 558 (2003). |
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122. |
543 U.S. 551 (2005). |
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123. |
478 U.S. 186, 192 (1986). |
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124. |
Lawrence, 539 U.S. at 576-577. In dissent, Justice Scalia referred to the majority's discussion of foreign law as "meaningless ... [d]angerous dicta." Id. at 2495 (Scalia, J., dissenting). |
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125. |
Thompson v. Oklahoma, 487 U.S. 815 (1988). |
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126. |
Stanford v. Kentucky, 492 U.S. 361 (1989). |
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127. |
For further discussion, see CRS Report RS21969, Capital Punishment and Juveniles, by [author name scrubbed]. |
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128. |
Id. at 578. |
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129. | Third Restatement, supra note 1, § 702, cmt. n. Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001) (citing Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988); Third Restatement, supra note 1, § 102 (2) cmt. k. & reporters' n. 6). See The Nereide, 13 U.S. 388, 423, 3 L. Ed. 769 (1815) (Marshall, C.J.) ("[T]he Court is bound by the law of nations which is a part of the law of the land.); Respublica v. De Longchamps, 1 U.S. 111, 116 (Pa. O. & T. 1784) (describing a "crime in the indictment is an infraction of the law of Nations. This law, in its full extent, is part of the law of this State."). See also William Blackstone, Commentaries on the Laws of England 67 (1769) ("[T]he law of nations . . . is here adopted in its full extent by the common law, and is held to be a part of the law of the land."). See, e.g., 1 Op. Atty Gen. 26, 27 (1792) ("The law of nations, although not specially adopted by the constitution or any municipal act, is essentially the law of the land."); 1 Op. Att'y Gen. 69, 69 (1797) ("[T]he common law has adopted the law of nations in its full extent, made it a part of the law of the land.); 5 Op. Att'y Gen. 691, 692 (1802) ("[T]he law of nations is considered as part of the municipal law of each State."). 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination."). Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (describing the "assumption that there is a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute" as a fallacy) (internal quotations omitted). Id. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 745-46 (2004) (Scalia, J., concurring) (arguing that customary international law would have been considered part of the "general common law" abolished by Erie); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law As Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 852-55 (1997) (""After Erie . . . a federal court can no longer apply [customary international law] in the absence of some domestic authorization to do so, as it could under the regime of general common law."). See, e.g., Third Restatement, supra note 1, § 111 reporters' n. 3 ("[T]he modern view is that customary international law in the United States is federal law . . . ."); Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1835 (1998) ("[F]ederal courts retain legitimate authority to incorporate bona fide rules of customary international law into federal common law."); Beth Stephens, The Law of Our Land: Customary International Law As Federal Law After Erie, 66 Fordham L. Rev. 393, 397 (1997) ("[T]he suggestion that Erie tossed the law of nations out of federal court along with the general common law rests on several misconceptions."). Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964) (discussing Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am.J.Int'l L. 740 (1939)). See Sosa, 542 U.S. at 730 ("We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism."). For an overview of competing positions on the issue, see Bradley, supra note 35, at 140-58. See, e.g., Guaylupo-Moya v. Gonzales, 423 F.3d 121, 136 (2d Cir. 2005) ("[C]lear congressional action trumps customary international law and previously enacted treaties."). Accord Bradley, supra note 35, at 153. The Paquete Habana, 175 U.S. 677, 700 (1900). Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, J.) ("[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . ."). But see Sampson v. Fed. Republic of Germany, 250 F.3d 1145, 1151-54 (7th Cir. 2001) (suggesting that given the "present uncertainty about the precise domestic role of customary international law," application of this canon of construction to resolve differences between ambiguous congressional statutes and customary international law should be used sparingly); Al-Bihani v. Obama, 619 F.3d 1, 32–36, 42 (D.C. Cir. 2010) (Kavanaugh, J., concurring in denial of rehearing en banc) (arguing against the application of the Charming Betsy canon). 16 U.S.C. § 1651 ("Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life."); 28 U.S.C. § 1605(a)(3) (providing an exception to foreign sovereign immunity in any case "in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state"); 28 U.S.C. § 1350. For more in-depth treatment of the ATS, see CRS Report R44947, The Alien Tort Statute (ATS): A Primer, by [author name scrubbed]. 630 F.2d 876 (2nd Cir. 1980). See Anthony D'Amato, Preface in The Alien Tort Claims Act: An Analytical Anthology vii (1999). See also Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 116 (2d Cir. 2010), aff'd on other grounds, 569 U.S. 108 (2013) ("Since [Filártiga], the ATS has given rise to an abundance of litigation in U.S. district courts."); Balintulo v. Daimler AG, 727 F.3d 174, 179 (2d Cir. 2013) (describing the ATS as "a statute, passed in 1789, that was rediscovered and revitalized by the courts in recent decades to permit aliens to sue for alleged serious violations of human rights 'occurring abroad."); Ingrid Wuerth, Kiobel v. Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute, 107 Am. J. Int'l L. 601, 601 (2013) ("Since the 1980 court of appeals decision in Filártiga v. Peña-Irala permitting a wide of range human rights cases to go forward under the statute's auspices, the ATS has garnered worldwide attention and has become the main engine for transnational human rights litigation in the United States."). 542 U.S. 692 (2004). Id. at 725. Id. at 728. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124 (2013). See id. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018). See, e.g., Chimène Keitner, ATS, RIP?, Lawfare (Apr. 25, 2018), https://lawfareblog.com/ats-rip. See supra § Forms of International Agreements. |