the court this case is simply about holding the government to its commitment in article three section six of the u s canada treaty the united states agreed to consider the best interests of prisoners when making transfer this commitment is important because it is not an intuitive one usually the government wouldn't have to consider the prisoner's best interests when transferring prisoners within the united states or with other countries but article three section six of the us canada treaty expressly requires the united states to consider the prisoners past the mandatory language instruction sex provides a manageable standard for judicial review courts can look to ensure whether the government did in fact consider best interests when making the transfer decision without any judicial review the i p t use compliance with the treaty would rest in the hands alone which the supreme court warned against in the that there was no valid cause of action under that complaint there was still a jurisdiction for the court to hear the case under twenty u s c thirteen thirty one thirteen thirty one and said that yes there's jerde stiction for cases assume or conclude that the treaty is self executing right under yes your honor and so because it wasn't raised before the district court this court can assume without deciding that the treaty provision is self executing or it could reach the issue of self execution on appeal and if the provision we argue is self executing met again says that the first thing this court should look to is the  tax provision and this provision has in the industry language it says that the government shall consider the best interests and which is very different from the provision and many also the provision in writing that was considered  executing had an alternative enforcement mechanism the article ninety four of the un charter expressly tells the parties that if there's a problem they should go to the i c j and there is no alternative enforcement mechanism in section sex or in the treaty as a whole and also the fact that the language of section six this is protecting individual rights it's talking about it's making sure that the parties are considering the best interests of the prisoner is another indication that this is a self executing provision and so i go back to this once i get to the question of not whether it's office here but whether we have to determine whether it's self executing and on that so what's the argument for why it's not given that the consequence of saying that the what's at stake in determining whether a treat original self executing is whether congress intended to have any  operative law at all which kind of makes it seem like a fairly threshold consequential question about whether there's any law to be applied here it is your honor and so this court certainly can reach the question of soft execution and you just use yogi to say that there is room for this court to assume without deciding that the provision is self executing and remained to the district court reversing on the fact that there is manageable standard for judicial review assuming without deciding that the provision is self executing and allow the district court to hear the question of self execution for the first time on premium since this hasn't been brought up in four years  whether it's office accusing but if i have to of course i have to read and and it sounds like your position is that that i i don't have to that's correction or i'm just wondering why that is the case given that the consequence arguably be understood because the coup because even if there is no valid cause of action which is what the question of self execution goes to whether or not there is operative law there's still jurisdiction for this court to review that question even if the answer is no under twenty u s c thirteen thirty and so this court can still has jurisdiction to hear that question even if alternately they decide that the tree is so i think that's right so i think it's definitely true the courts always have jurisdiction to determine whether they have jurisdiction but that still doesn't tell me whether the question that we're that we're trying to decide is itself a jurisdictional requirement that we're required to address and so the only case that we found that speaks directly to this question is yogi and there's also the the bell supreme court case and john doe case in the circuit  law but mr slots does have a valid cause of action under the cia and so it's important that the score reverse the district court's decision that there was no manageable standard however to document saying that it needed good faith individualized and comprehensive consideration of whether transfer would be in the prisoner's that's actually that's that's reading some more words into it than the treaty itself says so what it says is you have to bear in mind and is is it not borne in mind when the agencies said of least in response to reconsideration it has a sudden says on page eighty seven eighty eight of the record where it takes into account the hardships and reach the conclusion of these hardships of african applicable to an inmate who reside in the united states for a lengthy period of time with the intention to remain in this country and whose immediate family members are living there are living here i'm sorry to the isn't that at least bearing in mind best interests in the rehabilitation sense in which the language is used in this camp yes your honor but the government never argued that that's what it was doing in that instance and in the case the district court held that there was no judicial review whatsoever so if this court agrees that there is no judicial review the government wouldn't have to make any such consideration they could just automatically deny all transfer applications from canadian prisoners and this court would have no ability to look and confirm whether or not best interests were considered so it's important that at the very least the facts that this question is judicial and the canadian prisoners held here because it's again mandatory language that's protecting individuals and us occur as does that when it recognizes that this court is lenient in recognizing individual rights in treaty provisions and this is true in the extradition context for prisoners are able to sue under extradition treaties even though those treaties don't express y say that they have individual rights or even provide a cause of action and then similarly in courts are more favorable in finding individual rights and biological treaties as the one here because the parties are able to better negotiate specific terms as to what they want done and clear the this provision section six is the only provision that serves to accomplish the underlying purpose of the treaty which is the social rehabilitation of the prisoner so if mr slawson is the us interests weren't considered as part of his transfer decisionmaking process than on his rights under the treaty we're them but just going back to the the language the language says that that the decision making authority shall bear in mind all factors bearing upon the probability that transfer will be in the best interest offender no you're saying that that means that the decision the ultimate decision has to be in the best interest of but i mean i i can tell my children that you should bear in mind that eating all of your vegetable on your you know with your dinner here is in your best interests in the end is healthy for you and you know my toddler could say but i don't like peas in you know eat everything but the piece of there on his plate  hasn't he you know perhaps borne in mind what i've told him but but nonetheless he's complied with with my directive that's correct your honor and so the standard that we ask for doesn't ask thoughts the ultimate decision being directed by a determination of whether or not transfer was and the prisoners last and trusts and the government has the disc to even find that the decision was the transfer would be in the prisoner's best interests and then articulate a reason as to why other reasons over car the prisoners the us interests but at the very least the treaty requires that requires the government to consider the best interests and this has meaning in weight because it's non intuitive consideration and normally when the government is deciding whether or not to transfer prisoners they're thinking about their own interest so why what why wasn't that done here what's your argument as to why if there's a requirement education for some of requirement to consider slash bear in mind best what's the argument as to why that wasn't done here given what the determination of reconsideration saturday disseminated so we can't fully know whether or not it was done here because the fullness trait of record was never before the district court and the government never argued that it had considered best interests so why does it have to say i consider best interest when the determination itself says here are some interests that we could because at the time that the government was making its transfer decision i see says that united states attorney and i'm here today in place of my colleague johnny walker who i think you were expecting mr walker's wife happily went into labor early early this morning and so i am here today as an argument on behalf of the department of justice mr sloss a dual citizen of canada and the united states lacks a judicially enforceable right under the one nine hundred seventy seven treaty between canada and the united states for the execution of penal sentences there are several reasons for this first and i contemplate it doesn't contain any clear enough law and necessary to override the presumption the trees do not create privately enforceable rights for their perhaps beneficiaries in this context  countries and the the strong presumption is that in the absence of language that makes it very clear that they are to be immediately imported and become effective in forcible domestic law in the absence of that they are presume not self execute we have beyond that we have many indications here in this case that the parties did not intend that to happen is not a clear language it would need to be some very clear language and there's no language identified  some provisions of an international agreement may be self executing and others non self executing i think it's i think it's possible i think it's possible i don't think it it clarifies sufficiently for my way of thinking at least when when that is but what i do know for sure is that in this case there's there's nothing in the text of the treaty and there's nothing in the behavior of the parties to negotiate that or the legislative senate folks who commented on it said it was not self executing with all of those indications without any indication that there are exceptions for small parts so all this is nothing in this case the papers and then i could see that could be that all the statements that were pointed out in your brief are statements that have to do with the parts that are non self executing because there are parts in the treaty that specifically contemplate the need for legislation there are provisions that do that there are i would say that the parts of the treaty that say they need legislation that i mean the article three paragraph nine specifically says the signing states must establish by legislation or regulation of procedures right so that contemplates that something must happen before the treaty becomes effective as to as to for that person for that provision to have any effect or implementation at all the first thing has to happen so i think maybe it's a it would be a lot to presume here on a base on this language that doesn't differentiate anywhere that that that recognized that this question is tied up part of the larger question of whether the clause is self executing so these are really two two parts of the same issue is what i would say so i don't think this is a new issue raise for the first time one of the it was as you yourself set out the argument in logical sequence of the outset you draw a distinction between these two because you said self executing and then privately enforceable right and so i guess there's a reason for that yeah and i'm just seizing on that and saying that is suppose that we don't think that the self executing part of that was flagged below then in order for us to resolve the question in order for us to be compelled to decide whether self execution exists with respect to this provision we'd have to conclude the self  that would be that there is that i acknowledge srinivasan has a very logical point about that is not that's not the way we have presented the issue  it's not the function of private u s citizens in courts in civilian courts to to handle there's a presumption that even those benefiting from free use don't have generally private rights i was going to i was going to suggest a look at mckesson corporation versus around which is a case involving a tree of amity between the united states and iran and that helped me understand better by the way the for that case is five thirty nine f third in the part i'm pointing to is page four eighty nine and this treaty while it was i believe self executing court found there was no private right because it doesn't say there was a private right to be enforced in a court there's much more language that would have to be in this treaty for you to conclude that there was a private judicially enforceable private right here for mr sloss so it's clear from that that the presumption is not overcome by the text of the statute it's not overcome by the tent of the executive branch and the senate in considering and renegotiating and then ratifying and implementing the treaty and i think one other thing that that occurred to me and this is just something that occurred to me in preparing for the argument here the treaty was negotiated and then the legislation was passed and the legislation was passed without any requirement that the designated official here the attorney general bear in mind all factors bearing upon the probability that transfer will be in the best interest of the offender and just as a general matter ordinarily treaty obligations can be overridden by subsequent legislation that is inconsistent so legislation passed the legislation signed in the seventy's in one go she should have been negotiations for a while but once it got going to happen fast a month i'm not understanding why the transfer act is inconsistent because it does not contain the standard from the president but if a particular treaty says that there's something that has let's just suppose that the treaty makes on believably clear that this is something that has to be considered and that this is something that has to be considered in a way that can be vindicated in a court then it's not clear to me why that would be inconsistent with the transfer act because what the transfer ex says is that the a g m has authority to transfer offenders but it doesn't say that it has the authority to transfer offenders regardless of anything contrary as hard part of the word is transfer regardless of anything contrary to treaty it could be that you have that authority to transfer unless a treaty channels that authority in a particular way by require you to do  we said that neither the act nor the treaty sets our particularize standards or criteria and we know what the x is in the treaty all the way through to the a p a standard and the court was looking to the treaty standard as the one for meaningful review our argument is well argument courses that should get there in the first bakaly i noticed in reading it it was decided on a motion for summary reversal interestingly so i doubt the arguments were terribly well developed in the way that they they have been here i point that out but so yeah i mean we know that the courts look to the nature of the decisions the language and the structure of whatever it's looking to so if you're going to look to the statute i mean the treaty i'm sorry the treaty i still think that gets us to the last step of the inquiry so let's assume that the government doesn't prevail until we've gotten to the point where we're talking about the application of the standard let's assume that the standard actually his judicially in full at least that it sets forth  know see and what the supreme court did is to say we have a normal presumption that says we try to find judicial and force ability when we can and we're going to construe this language shall endeavor to be judicially enforceable and we're just going to construe in such a way to the agency law so it's not going to be it's not going to be burdensome for the agency to satisfy it but it's also not the case that it's not just in forcible at all we're going to have a pretty constrained inquiry into whether the o c complied with the requirement that indeed it endeavor to do what the statute contemplates so here by a parallel reasoning we could say this statute requires that best interest be borne in mind that's a pretty narrow requirement it's just the best interest have to be borne in mind it's not to say that it wasn't done here maybe there's a really good argument that it was done here given what's a j eighty seven and eighty eight but at least it's judicially enforceable him so far as it requires that best interest just be borne in mind that we have to conclude is that the government in fact took account of best interest you could disagree with what the applicant says is the best interest you could certainly disagree with what the applicant says about how those best interests should weigh at the end of the day but it's just a check off requirement that just says you at least have to consider best interests and you can't entirely exclude them from the  is a different situation because it required the e e o c to endeavor to basically try to work things out with the employer before it initiated an enforcement action i came of the words like conciliate and confer and whatever there are three words three dollars and so action could be more easily measured and identified and you know observed whereas a requirement that something be borne in mind i i mean  scale because it's very hard to look behind the decision maker into the decision makers head in any case and certainly here i would would agree that at the end of the day what's  eighty seven and eighty eight reflects that considerations of the best interests perhaps not as mr slots would have argued would have liked were done here so there has to be so i agree with you you can't step into somebody's mind that that would be equally true even if you were just enforc borne in mind that's a very minimal requirement and that manifestation you would argue i think with with some force was definitely met here because if you look at the decisional document the rehabilitation interests were definitely born of my right exactly the things that the treaty was designed to address which is you know the rehabilitative purposes he understands the language he's not separated from his family all the things that was within this that you know what the spirit of the treaty encompasses were certainly considered here stuff but i think the more important point in your questionnaire is that that is a matter for canada the united states to resolve diplomatically not for a court to recognize through a private judicial enforceable private right to the beneficiary of a of a treaty if it's not already clear doesn't have to get into the heads of the disk makers the e p a requires there be a record of how the agency made its decision and it's clear in this case that the full ministry to record was not before the district court at the time the decision was made mr sauce has made a motion for some people mental evidence on appeal and has provided and has provided further documents from the administrative records that he has received in separate i pieced foil education against the i p two years that demonstrates that there was information that goes to how the agency need this decision before that was never before the district court  the implementing legislation referred to goes to the authority of the executive to meet the transfer decision and the government is correct in that implementing legislation was pas before the treaty was ratified because otherwise the government would have no authority to receive prisoners from canada or mexico and hold them under other countries sentences but authority was given to the executive section six constrains the authority of the executive in their decision making process and because and and that did not need implementing legislation the parties bound themselves agreement at the time they ratified the treaty further there is no presumption against self execution and in fact many expressed that it rejected a