Law of the Land

Treaties as Law of the Land

Treaty commitments of the United States are of two kinds. As Chief Justice Marshall wrote in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract-when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court.” 1

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To the same effect, but more accurate, is Justice Miller's language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it. . . . But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.” 2

Law of the Land: Developments

The meaning of treaties, as of statutes, is determined by the courts. “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,' headed by the 'one supreme Court' established by the Constitution.” 3 Yet, “[w]hile courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.” 4 Decisions of the International Court of Justice (ICJ) interpreting treaties, however, have “no binding force except between the parties and in respect of that particular case.” 5 ICJ decisions “are therefore entitled only to the 'respectful consideration' due an interpretation of an international agreement by an international court.” 6

Other Aspects

Even when an ICJ decision has binding force as between the governments of two nations, it is not necessarily enforceable by the individuals affected. If, for example, the ICJ finds that the United States violated a particular defendant's rights under international law, and such a decision “constitutes an international law obligation on the part of the United States,” it does not necessarily “constitute binding federal law enforceable in United States courts. . . . [W]hile treaties may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be selfexecuting and is ratified on these terms.” 7 A memorandum from the President of the United States directing that the United States would “discharge its international obligations” under an ICJ decision interpreting a non-self-executing treaty, “by having State courts give effect to the decision,” is not sufficient to make the decision binding on state courts, unless the President's action is authorized by Congress.8

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References

This text about Law of the Land is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] Foster v. Neilson, 27 U.S. (2 Pet.) 253, 313-14 (1829). See THE FEDERALIST No. 75 (J. Cooke ed. 1961), 504-505.

[Footnote 2] 112 U.S. 580, 598 (1884) (quoted with approval in Medellin v. Texas, 128 S. Ct. 1346, 1357, 1358-59 (2008)). For treaty provisions operative as “law of the land” (self-executing), see S. Crandall, supra, at 36-42, 49-62, 151, 153-163, 179, 238- 239, 286, 321, 338, 345-346. For treaty provisions of an “executory” character, see id. at 162-63, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, supra, at 41-68; Restatement, Foreign Relations, supra, §§ 111-115.

[Footnote 3] Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 (2006), quoting Marbury v. Madison, 5 U.S. (1 Cr.) 137, 177 (1803). In Sanchez-Llamas, two foreign nationals were arrested in the United States, and, in violation of Article 36 of the Vienna Convention on Consular Relations, their nations' consuls were not notified that they had been detained by authorities in a foreign country (the U.S.). The foreign nationals were convicted in Oregon and Virginia state courts, respectively, and cited the violations of Article 36 in challenging their convictions. The Court did not decide whether Article 36 grants rights that may be invoked by individuals in a judicial proceeding (four justices would have held that it did grant such rights). The reason that the Court did not decide whether Article 36 grants rights to defendants was that it held, by a 6-to-3 vote, that, even if Article 36 does grant rights, the defendants in the two cases before it were not entitled to relief on their claims. It found, specifically, that “suppression of evidence is [not] a proper remedy for a violation of Article 36,” and that “an Article 36 claim may be deemed forfeited under state procedural rules because a defendant failed to raise the claim at trial.” Id. at 342.

[Footnote 4] Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).

[Footnote 5] Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added by the Court).

[Footnote 6] Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam).

[Footnote 7] Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008) (emphasis in the original, internal quotation marks omitted). As in the case of the foreign nationals in Sanchez- Llamas, Medellin's nation's consul had not been notified that he had been detained in the United States. Unlike the foreign nationals in Sanchez-Llamas, however, Medellin was named in an ICJ decision that found a violation of Article 36 of the Vienna Convention.

[Footnote 8] Medellin v. Texas, 128 S. Ct. 1346, 1353 (2008). “[T]he non-self-executing character of a treaty constrains the President's ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts.” Id. at 1371. The majority opinion in Medellin was written by Chief Justice Roberts. Justice Stevens, concurring, noted that, even though the ICJ decision “is not 'the supreme Law of the Land,' U.S. Const., Art VI, cl. 2,” it constitutes an international law obligation not only on the part of the United States, but on the part of the State of Texas. Id. at 1374. This, of course, does not make it enforceable against Texas, but Justice Stevens found that “[t]he cost to Texas of complying with [the ICJ decision] would be minimal.” Id. at 1375. Justice Breyer, joined by Justices Souter and Ginsburg, dissented, writing that “the consent of the United States to the ICJ's jurisdiction[ ] bind[s] the courts no less than would 'an act of the [federal] legislature.' ” Id. at 1376. The dissent believed that, to find treaties non-self-executing “can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.” Id. at 1381-82. Moreover, Justice Breyer wrote, the Court's decision “place[s] the fate of an international promise made by the United States in the hands of a single State. . . . And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause.” Id. at 1384. On August 5, 2008, the U.S. Supreme Court denied Medellin a stay of execution, Medellin v. Texas, 129 S. Ct. 360 (2008) (Justices Stevens, Souter, Ginsburg, and Breyer dissenting), and Texas executed him the same day.