Treaties as Law and the Rule of Law: The Judicial Power to Compel Domestic Treaty Implementation

Abstract

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing only means that the treaty of its own force does not provide a private individual with cause of action. The treaty nonetheless remains domestic law under the Supremacy Clause. It is my contention that where a human rights treaty requires domestic implementation, that duty of implementation may be judicially enforced by mandamus relief. Although U.S. policymakers may attempt to modify the treaties they ratify to obviate any duty of domestic implementation, they may not do so by reliance on a misinterpretation of the non-self-executing treaty doctrine nor may they do so by a Senate declaration of non-self-execution. In short, ratified treaties are part of our law. And it is not only international law, but also our Constitution, that is flouted when the government refuses to comply with the supreme law it voluntarily creates upon ratifying a treaty.

Keywords: constitutional law, international law, international human rights law separation of powers, criminal law, mandamus, treaties, human rights, judicial review, supremacy clause, treaty clause, self-execution, self-executing, non-self- execution, non-self-executing, Medellin v. Texas, implementing legis

JEL Classification: K33, K14, K41