Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft represents an advance from the treatment of the subject in the Restatement (Third) of Foreign Relations Law of the United States. At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. Such retrogression might be explained by the fact that the new project has to deal with a recent, puzzling Supreme Court decision on the subject. At the time of the Restatement (Third), the Court had not addressed this distinction in any depth since its original decisions introducing the doctrine almost two centuries earlier, namely Foster v. Neilson1 and United States v. Percheman.2 The Court's 2008 decision in Medellin v. Texas,3 the first since Foster to deny relief on the ground that the treaty being invoked was non-self-executing,4 presents obvious challenges to any attempt to restate the law on this subject. The reporters are largely successful at avoiding the blind alleys down which Medellin might have led them. They rightly recognize that some of the views expressed in the opinion are untenable and conclude that "[t]he unusual circumstances of Medellin . . . counsels against generalizing too much from the Court's finding there of non - self- execution. "5 On some issues, however, the reporters overlook this wise counsel. On others, the problems with the draft are not traceable to Medellin.This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The draft already implicitly recognizes this by distinguishing three of the issues that courts and commentators have analyzed under the "self-execution" label.6 Explicit recognition of the non-unitary nature of self-execution doctrine would significantly advance clarity of analysis. The draft should also recognize a fourth distinct version of self-execution.Second, the draft should abandon the claim that the self-executing or non-self-executing nature of a treaty is "essentially" about the treaty's judicial enforceability. Only one of the four types of non-self-execution might be said to be essentially about judicial enforceability. with respect to the others, lack of judicial enforceability is just one of the consequences of a treaty's non-self-executing character. The non-self-executing character of a treaty has important ramifications for state and federal executive officials and ordinary citizens as well as the judiciary. More importantly, the claim that self-execution is essentially about judicial enforceability can potentially distort the analysis of when a treaty is properly characterized as non-self-executing. The draft's focus on judicial enforceability is perhaps a reflection of the fact that "[r]estatements are primarily addressed to courts."7 But it should be kept in mind that, for all but one of the categories of self-execution, a treaty's unenforceability in court is a consequence of its non-self-executing character-one of a number of possible consequences-rather than its cause.Third, the draft should qualify its claim that self-execution turns on the intent of the U.S. treaty makers. This claim perpetuates a mistake in the Restatement (Third). The current version abandons the flawed logic that led to the Restatement (Third) s mistaken conclusion, but it defends the mistaken conclusion on other grounds. In reality, only one of the categories of self-execution might be said to turn on intent at all. With respect to this category of non-self-execution, as originally explained in Foster and Percheman, the relevant intent is not that of the U.S. treatymakers, but that of the parties to the treaty. Evidence of the intent of the U.S. treatymakers is relevant in ascertaining the intent of the parties, and may be entitled to special deference by U. …