Self-executing treaties and judgments

Last week, I asked two questions: first, what role do judgments of the International Court of Justice (herein ICJ) play in international law, and second, what role do they play in our own courts? These questions were raised by considering the effects of Medellin v. Texas (2008), a Supreme Court case which held that even though an ICJ judgment constituted an international law obligation of the United States, it does not constitute “binding federal law enforceable in United States courts.” (Chief Justice John Roberts, majority opinion). The question was whether the state of Texas had to change its criminal procedures in a case to comply with the ICJ judgment order? Roberts answered “no.”

In answer to the first question, said judgments become part of the corpus of international law, even though under Article 59 of the statute of the ICJ, they do not become binding precedent. The answer to the second question on how these judgments affect our own courts is the topic for today. Many of the treaties we have voluntarily entered into have a provision we have accepted for resorting to the ICJ for the resolution of disputes.

My thesis is that such judgments of the ICJ should be binding on us as self-executing law in domestic courts, state or federal, unless the president and Congress conclude by statute that they are inimical to the national interest. Such statutes should be rare. This thesis is based on the textual language of the Supremacy Clause (Article 6[2]) of the Constitution and the past practice of early case law by courts presumably familiar with the intent of our Founders.

The Supremacy Clause states, among other things, that, “… all Treaties made, or which shall be 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This means that treaties are generally self-executing. The great chief justice, John Marshall, wrote in Foster and Elam v. Neilson (1829) that a treaty is, “… the law of the land … to be regarded in Courts of justice as equivalent to an act of the legislature …” and “… operates of itself without the aid of any legislative provision …” unless the treaty, “… addresses itself to the political and not to the judicial department.” (Cited by Justice Stephen Breyer in dissent in Medellin v. Texas).

In an early case, Ware v. Hylton (1796), our Supreme Court directly applied Article 4 of the Treaty of Paris (1783), which reinstated debts owed by Americans to British creditors. This self-execution of a treaty provision was typical. Often these cases concerned private legal rights, “… such as rights to own property, to conduct a business, or to obtain civil tort recovery … it may well address itself to the Judiciary. Enforcing such rights and setting their boundaries is the bread and butter work of the courts.” (Breyer, ibid.).

The chief justice in his majority opinion relied heavily on Article 94(1) of the United Nations Charter: “Each Member … undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” He says that the obligation described by the word “undertakes” refers to future action, “not a directive to domestic courts"; it does not say “shall” or “must.” But it seems “undertakes” is broad enough to allow immediate action in domestic courts, that is, “self-execution.”

In a conflict between a treaty and a statute of Congress, the last-in-time prevails. I would suggest that we retain the power to avoid a treaty or judgment by passing a statute to that effect which would prevail as last-in-time, if such is in the national interest. This should be rare. Normally, it would be self-execution of international legal commitments: honorable and a step in the right direction for the development of the rule of international law in world affairs.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Self-executing treaties and judgments