By: Timothy Son
Volume X – Issue I – Fall 2024
I. INTRODUCTION
What is a “treaty?” When is a treaty enforceable in the U.S. domestic courts? How should the treaties be interpreted? As much as the international law itself, the U.S. jurisprudence on international treaties has been ambiguous, if not, narrowly defined. The U.S. Constitution lays the actors responsible, including the judiciary authority over the treaties, however, it leaves a significant ambiguity in the enforcement of treaties in the U.S. domestic courts. Article II of the U.S. Constitution grants the President the treaty-making power with the consent and advice requirement from the Senate. [1] Article VI, known as the Supremacy Clause, states that all treaties “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” [2] Finally, Article III, Section 2, Clause 1 provides that the judicial power will “extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” [3] This paper will argue that the Supreme Court’s role in international treaties—specifically in constitutionality, interpretation, and private enforcement of treaties—has been rarely standardized. Recent court cases flipped decades-long precedents on the basic assumptions of treaty interpretation and made abrupt changes in the authority of the President to make treaties, the Congress, and private enforcement.
This paper briefly outlines the history of jurisprudence on the international treaties in the U.S. domestic courts, explains recent relevant cases in the federal courts, and summarizes the role of federal courts in the enforcement of international treaties in the U.S. Section I describes the judicial history of international treaties in the U.S. domestic courts, examining it under the perspective of three subsection of ideas relevant to the enforcement of international treaties: A. Treaty Making Power and Constitutionality, B. Construction and Interpretation of Treaties, and C. Private Enforcement. For each subsection, this paper will analyze how the judicial rule has been fluctuating. Section II scrutinizes the recent cases involving international treaties, scrutinizing the notable portions where the Supreme Court applies the past precedents and exemplifies the jurisprudence of international treaties.
II. THE HISTORY OF TREATY JURISPRUDENCE
What is a treaty? The Supreme Court has rarely provided this definition, rendering the Court to instead bring inspiration from sources outside of the judiciary to support its description. Most notably, the Vienna Convention on the Laws of Treaties of 1969 (“Vienna Convention”), defines it as, “an international agreement concluded between States in written form and governed by international law.” [4] The United States is a high contract party to the Convention, meaning that the U.S. federal government has signed the treaty. However, the treaty was never ratified by the Senate, and the Convention does not give binding legal obligations to the United States. Nonetheless, the U.S. domestic courts have applied several propositions of the convention in its holding, and the convention is generally received as customary international law. [5] In the U.S. specifically, a treaty must be ratified by the Senate, as per Article II of the Constitution. However, the President can initiate and bind to an international agreement without the approval from the Senate, in which case it is generally referred to as “executive agreements,” as opposed to “Article II treaties.” [6]
i. Treaty Making Power and Constitutionality
Who can make treaties? Was the treaty created with proper authority delegated to the executive agency? This set of questions is pertinent to the enforcement of treaties due to the possibility of judicial interference when treaties are conceived and implemented. [7] Although the U.S. courts have generally resisted the urge to extend the judicial review to matters regarding international relations, it is not an uncommon occurrence that the courts ruled on the constitutionality of the treaties. [8] Particularly, executive agreements, rather than Article II treaties, are subjected to this question more frequently. This trend may be because treaties following the proper Article II procedure leave little room for questioning its constitutionality. In contrast, executive agreements require the President to obtain proper authorization from Congress through prior statute or treaty. [9] Therefore, if the prior arrangement between the Congress and the President is ambiguous, implicit, or if the executive agency has extrapolated in its interpretation, then the constitutionality question of the treaty arises. In such cases, the Courts indeed can invalidate treaties on the basis of the Constitution.
The majority of the treaties today are created as Executive Agreement, rather than Article II treaties. [10] This necessarily indicates that the Executive branch relies on the delegation of power from Congress to create and implement the majority of its international agreements. [11] Between 1989 and 2016, 53 percent of the executive agreements had its authorization basis on less than an “express” delegation, where the Constitutional basis of the treaty included an “authorization to negotiate, but not to conclude an agreement,” or “no arguable delegation of agreement-making authority.” [12] Following this trend, the Supreme Court has historically favored broad and less specific Congressional power delegation when the matter dealt with international relations—a trend known as the Historical Gloss. [13] Moreover, when the statute is “silent or ambiguous,” the Court has traditionally followed the Chevron Doctrine and deferred to the agency’s “reasonable interpretation.” [14] Yet, the Court has recently undermined the Executive agencies’ authority to interpret the prior statute. In West Virginia v. EPA, the Court consolidated the Major Questions Doctrine, rejecting the Environmental Protection Agency its authority to interpret the Clean Air Act to create the Clean Power Plan. [15] Chief Justice Roberts, describing the Major Questions Doctrine, stated that in “certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.” [16] In such cases the agency must cite a “clear congressional authorization for the power it claims.” [17] However, Justice Roberts never clarified what constitutes “extraordinary case” or what the “clear congressional authorization” entails. [18] Thus, it is wholly possible that the Court can extend the Major Questions doctrine to the executive agreements dependent on implicit delegation of power from Congress. Finally, in Loper Bright Enterprises v. Raimondo, the Roberts Court has effectively overruled the Chevron Doctrine entirely, leaving the question of Executive branch statutory interpretation vis-a-vis international agreements completely vacated. [19]
ii. Construction and Interpretation
A construction, or an interpretation rule of international treaties under the U.S. domestic courts have been vague, dispersed, and even conflictual depending on the jurisdiction. For the majority of U.S. jurisprudential history, the Supreme Court has failed to provide a clear and concise interpretation rule of treaties. [20] However, there existed a set of principles that were known to guide the Supreme Court’s construction of international treaties. In Tucker v. Alexandroff, the Court considered treaties with the “Good Faith Principle,” where the Court looks to the apparent purpose and context of the treaties to interpret the ordinary meaning of the text, for the mutual protection of parties involved in the treaties. [21] The Court establishes, “that the rights of the parties must be determined by the treaty, but that this particular convention being operative upon both powers and intended for their mutual protection, should be interpreted in a spirit of uberrima fides, and in a manner to carry out its manifest purpose.” [22] Furthermore, “Treaties of every kind . . . are to receive a fair and liberal interpretation according to the intention of the contracting parties, and to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts.” [23] This “Good Faith” Principle seems to have been the prevalent norm for a long time, as it was described in a 1934 University of Chicago Law Review article as having “hardly any exceptions to this principle.” [24] Additionally, the Alexandroff Court invoked what is known as the liberal construction when interpreting private treaties. [25] The Court added, “[treaties] should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity, so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence.” [26] Similarly, in Shanks v. Dupont, Justice Story describes the Liberal Construction as: “If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the liberal exposition be adopted.” [27] Unlike the Good Faith Principle, the liberal construction held a contentious position in the Supreme Court jurisprudence, as the Court never fully described what it means to apply a “liberal” construction. [28] The principle was often mentioned in dicta, rather than a binding precedent, and the Court has been inconsistently applying the principle. [29]
Today, courts frequently cite the Restatement of the Foreign Relations Law of the United States (“Restatement”), a series of influential summary documents outlining the nature and position of U.S. foreign relations laws. Part III, Section 306 lays the principles that guide the U.S. Courts when interpreting international treaties, which categorizes six different interpretation rules. [30] First, the good faith principle, considering the meaning, objective, and purpose of the treaty. Second, the context of the purpose of the treaty, including any other agreements and any instruments made by the compromising parties. Third, any subsequent agreements, practices, or rules of international law. Fourth, a special meaning given to a particular term of the treaty. Fifth, the negotiating history and circumstances of the treaty. Sixth, the weight given to the Executive branch’s interpretation. [31]
iii. Private Enforcement
A treaty can be characterized as a “private” treaty when it confers a private right, or marginally relates to the private rights of citizens or related parties. [32] A treaty that, in face, does not concern private rights however may still confer private rights. [33] For the majority of the Supreme Court’s history, a private treaty was presumed to be self-executing, meaning that it did not require additional legislative statutes to establish private rights in U.S. domestic courts. Moreover, courts prior to the mid-twentieth century ruled that a self-executing private treaty almost inherently conferred the private right of action, meaning that individuals can actively invoke the private rights conferred by the treaty. [34] Therefore, the majority of the private treaties were considered self-executing and conferred private right of action.
However, post-World War II courts increasingly viewed this interpretation skeptically, slowly diminishing the presumption. Between the period of mid 20th century through the year 2008, the distinction between private treaties and non-private treaties became meaningful, as it dictated how the court ruled on its private enforcement rights. Nonetheless, in 2008, the judicial trend culminated in Medellin v. Texas, when the Supreme Court wholly proposed in the dicta that: “Even when treaties are self-executing in the sense that they create federal law, the background presumption is that international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” [35] Despite this statement appearing in dicta, Medellin heavily influenced the future decisions of treaties in federal courts. Currently, regardless of the private or non-private treaty divide, any international treaty is presumed to provide no private right of action. [36]
II. RECENT CASES
The following two subsections present recent Supreme Court cases, Bond v. United States and Water Splash Inc. v. Menon, each exemplifying the issue of constitutionality and the construction (interpretation), respectively. In each case analysis, an explanation will be presented of how the Court applied or exhibited signs of its prior jurisprudence. Private Rights are not discussed in this section, due to the lack of recent Supreme Court rulings on the matter. Courts have applied the Medellin decision, and since 2008, no significant change occurred in such a trend.
i. Treaty Making Power and Constitutionality
The Chemical Weapons Convention (“CWC”) was ratified by the United States in 1997, obligating the parties to prohibit the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons. [37] Subsequently, Congress enacted the Chemical Weapons Convention Implementation Act of 1998, making it a federal crime to use or possess any chemical weapons. [38] In 2006, Carol Anne Bond, a microbiologist and the petitioner of this case, found that her close friend Myrlina Haynes was pregnant and that the child’s father was Bond’s husband. [39] In a retaliatory manner, Bond created a mildly toxic chemical compound and dispersed it throughout Haynes’ properties, to give Haynes uncomfortable skin rashes. Haynes only suffered minor chemical burns on her thumb, and Bond was later charged with mail theft (which occurred during the dispersion of the chemical), and notably, the violation of 18 U.S. Code Section 229(a), which was amended by the Chemical Weapons Convention Implementation Act to federally criminalize the usage of chemical weapons. Bond raised a Tenth Amendment claim on her charges, arguing that Congress and the federal government overstepped its enumerated boundaries into the state government’s police power of local crime prosecution. The Third Circuit Court of Appeals denied this claim on the basis of Missouri v. Holland, which stated, “If the treaty is valid there can be no dispute about the validity of the statute that implements it as a necessary and proper means to execute the powers of the Government.” [40] The unanimous Supreme Court in Bond v. United States ruled in favor of Bond, holding that, “Absent a clear statement of that purpose, we will not presume Congress to have authorized such a stark intrusion into traditional state authority.” [41]
Unlike much of the issue discussed in Section I of this paper, which dealt with the treaty-making power from the perspective of Executive statutory interpretation and Congressional delegations, Bond case primarily concerns the scope of Congress’ own treaty-making power. The Bond court seems to limit the broad powers previously granted by Missouri v. Holland, and sets the boundaries of treaty-making power at the point when the Federal government crosses over the State and local governments’ powers. [42] However, Bond decision arguably is more narrowly defined than how it looks superficially. Bond decision does not outright overrule every situation when the Federal government seeks to enforce an international agreement at the local level. After all, Chief Justice Roberts reassures that, “The Federal Government undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts with the potential to cause mass suffering. Those crimes have not traditionally been left predominantly to the States, and nothing we have said here will disrupt the Government’s authority to prosecute such offenses.” [43] In coming to this conclusion, the Court scrutinized 1) Congress’ intent, and 2) the use of the term “Chemical Weapons” in the CWC and 18 U.S. Code Section 229(a). [44] In summary, the Court found that the CWC, which was created in the context of mass chemical weapons, could not have rendered the Congress to cover the statute to the layperson’s understanding of “using a chemical” to inflict a minor harm. [45] Nonetheless, questions persist, as it is less clear whether the Roberts Court will, once again, set boundaries to Congress and the Federal Government’s treaty-making powers when new cases involving other types of international agreements arise to the Supreme Court.
ii. Construction and Interpretation
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (“Hague Service Convention”) simplifies the process of servicing judicial documents across borders. [46] The respondent Menon was sued by her former employer Water Splash Inc. on the claims of unfair competition, conversion, and tortious interference with business relations—for working with Water Splash’s competitor while being employed by Water Splash. [47] The plaintiff received permission to service the suit by mail, as Menon was residing in Canada at the time, and after Menon failed to respond, the trial court made a default judgment in favor of Water Splash. Menon appealed the case, arguing that the service by mail did not comply with the requirements of the Hague Service Convention. The Texas Court of Appeals ruled in favor of Menon, whereas a number of other district courts around the nation made less than unified rulings on whether the service by mail comports with the Hague Service Convention. [48] In Water Splash v. Menon, the Supreme Court held in favor of Water Splash, clarifying that the Hague Convention does not prohibit the service by mail. [49]
Justice Alito, writing for the unanimous court, utilized almost all the interpretive tools in the Restatement to scrutinize the Hague Convention. The issue at hand was whether the phrase “send judicial documents” in Section 10(a) purports to “sending documents for the purposes of service.” [50] First, the context of the term used in the Convention, including the term used in other parts of the Convention and the French translation. Article 1 of the Convention lays that the scope of the convention “shall apply in all cases. . .for service abroad.” [51] The structure of the Convention also compels that Section 10 cannot be read to exclude mailing for the purposes of service. [52] Moreover, the Court even analyzes the French definition of the word “send” and asserts that it “has been consistently interpreted as meaning service or notice.” [53] Second, exterior documents, including the treaty drafting history, were considered, as the Court establishes that the relevant documents consistently state the permissibility of the service by mail. [54] Third, the interpretation of the Executive branch, including the report from the Department of State, supporting the Court’s argument. [55] Lastly, the views of the other parties to the treaty, including the foreign court interpretations, the signatories, and the Special Commission which comprises several member states provide that the Convention does not prohibit service by mail. [56]
III. CONCLUSION
This paper has analyzed the role of U.S. domestic courts in the enforcement of international treaties. In large, the U.S. courts answer the following three questions in matters regarding international agreements. First, was the treaty made and implemented with proper authorization, acting within the constitutional boundaries of Congress or the Federal government? Second, what construction and interpretation should be used to scrutinize the texts of the international treaty? Third, when do private treaties confer a private right of action? This paper argued that the jurisprudence of the Supreme Court has failed to provide an overarching rule that answers all three questions satisfactorily. The first question is a perpetual issue, as the public and legal scholars wait for the Supreme Court to reveal whether a new interpretive regime that replaces the Major Questions Doctrine or the recently overturned Chevron Doctrine will be established. Or conversely, if there will be no such regime, leaving the courts as the sole authority of statute interpretation. The second question has never been a concrete one, as the courts have seldom held an interpretation rule, and rather applied numerous factors of consideration when interpreting a treaty. The last question remains the sole matter where the Supreme Court has set a prominent precedent that is being applied to almost all cases regarding private treaties. Nevertheless, the Court’s opinion in is only a dicta, and there exists no guarantee that the following generation of Courts will introduce changes. One commonality between the presented three issues is that the Court has made significant changes in the last two decades—arguably a recent phenomenon. The status of U.S. treaty jurisprudence, the treaty-making powers of the federal government, and ultimately, the role of the U.S. domestic courts in the enforcement of treaties is, hence, ever-evolving under the current Supreme Court.
Endnotes
[1] U.S. Constitution, art. 2, sec. 2.
[2] U.S. Constitution, art. 6.
[3] U.S. Constitution, art. 3, sec. 2, cl. 1.
[4] “The Vienna Convention on the Laws of Treaties,” May 23, 1969, the United Nations, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
[5] Bradley , Curtis A., Sarah H. Cleveland , and Edward T. Swaine. Restatement of the Law Fourth, the foreign relations law of the United States. 4th.ed. St. Paul, MN: American Law Institute Publishers, 2018.
[6] Eichensehr, Kristen and Hathaway, Oona A., Major Questions about International Agreements (July 25, 2023). 172 University of Pennsylvania Law Review 1845 (2024), 1847.
[7] Eichenseher and Hathaway, “Major Questions,” 1858.
[8] Federal Republic of Germany v. Philipp, 592 U.S. 169, (2021). The Supreme Court indeed has been “selective” when deciding which international cases to interpret. For example, Chief Justice Roberts, while commenting about the prior case Banco Nacional De Cuba v. Sabbatino, described the reluctance of the Court: “Hesitant to delve into this controversy, we instead invoked the act of state doctrine, which prevents United States courts from determining the validity of the public acts of a foreign sovereign.”
[9] Eichenseher and Hathaway, “Major Questions,” 1859.
[10] Eichenseher and Hathaway, “Major Questions,” 1858.
[11] Eichenseher and Hathaway, “Major Questions,” 1859.
[12] Eichenseher and Hathaway, “Major Questions,” 1862.
[13] Eichenseher and Hathaway, “Major Questions,” 1878.
[14] Eichenseher and Hathaway, “Major Questions,” 1850.
[15] West Virginia v. Environmental Protection Agency, 597 U.S. 697, (2022).
[16] West Virginia v. Environmental Protection Agency, 597 U.S. 697, (2022).
[17] West Virginia v. Environmental Protection Agency, 597 U.S. 697, (2022).
[18] Eichenseher and Hathaway, “Major Questions,” 1854-1855.
[19] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, (2024).
[20] Lenoir, James J. “Treaties and the Supreme Court.” The University of Chicago Law Review 1, no. 4 (1934): 602–22. https://doi.org/10.2307/1597002.
[21] Tucker v. Alexandroff, 183 U.S. 424, (1902).
[22] Tucker v. Alexandroff, 183 U.S. 424, (1902).
[23] Tucker v. Alexandroff, 183 U.S. 424, (1902).
[24] Lenoir, “Treaties and the Supreme Court,” 617.
[25] Tucker v. Alexandroff, 183 U.S. 424, (1902).
[26] Tucker v. Alexandroff, 183 U.S. 424, (1902).
[27] Shanks v. Dupont, 28 U.S. 242, (1830).
[28] Lenoir, “Treaties and the Supreme Court,” 621.
[29] Lenoir, “Treaties and the Supreme Court,” 621.
[30] Bradley, Cleveland, and Swaine, “Restatement.”
[31] Bradley , Cleveland , and Swaine, “Restatement.”
[32] Oona A. Hathaway; Sabria McElroy; Sara Aronchick Solow, "International Law at Home: Enforcing Treaties in U.S. Courts," Yale Journal of International Law 37, no. 1 (Winter 2012): 56.
[33] Hathaway, McElory, and Solow, “International Law at Home,” 56.
[34] Hathaway, McElory, and Solow, “International Law at Home,” 57.
[35] Medellin v. Texas, 552 U.S. 491, (2008).
[36] Hathaway, McElory, and Solow, “International Law at Home,” 57.
[37] “The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction,” signature opened January 13, 1993, Organization for the Prohibition of Chemical Weapons (OPCW), https://www.opcw.org/sites/default/files/documents/CWC/CWC_en.pdf.
[38] Chemical Weapons Convention Implementation Act, 18 U.S. Code, § 229(a).
[39] Bond v. United States, 572 U.S. 844, (2014).
[40] Missouri v. Holland, 252 U.S. 416, (1920).
[41] Bond v. United States, 572 U.S. 844, (2014).
[42] Oona A. Hathaway, Spencer Amdur, Celia Choy, and Samir Deger-Sen, The Treaty Power: Its History, Scope and Limits, 98 Cornell L. Rev. 239 (2013), 3.
[43] Bond v. United States, 572 U.S. 844, (2014).
[44] Bond v. United States, 572 U.S. 844, (2014).
[45] Bond v. United States, 572 U.S. 844, (2014).
[46] “The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,” November 15, 1965, Hague Conference on Private International Law, https://www.hcch.net/en/instruments/conventions/full-text/?cid=17.
[47] Water Splash, Inc. v. Menon, 581 U.S. 271, (2017).
[48] Water Splash, Inc. v. Menon, 581 U.S. 271, (2017).
[49] Water Splash, Inc. v. Menon, 581 U.S. 271, (2017).
[50] “The Convention on the Service,”§10(a).
[51] “The Convention on the Service.”
[52] Bradley , Cleveland , and Swaine, “Restatement.” Subsection 2 provides that the context and purpose of the treaty, including its preamble and annexes, should be considered.
[53] “Restatement.” Comment f states that the United States has largely accepted the Article 33 of the Vienna Convention as a matter of practice. Article 33 states that, for treaties authenticated in multiple languages, the text in each language is equally authoritative.
[54] “Restatement.” Subsection 5 provides that, supplementary means of interpretation, including the treaty’s negotiating history and circumstances of its conclusion may be considered when the meaning of the treaty is ambiguous.
[55] “Restatement.” Subsection 6 provides that U.S. Courts ordinarily give greater weight to an interpretation made by the executive branch.
[56] “Restatement.” Subsection 2(b) states that any instrument made by the treaty’s parties concerning the conclusion of the treaty can be considered. Subsection 3 lays that any subsequent agreements, practices, or relevant international law applicable may be considered.