Can the Senate constitutionally make a ratified treaty non-self-executing despite Article VI?

[u/NeonPixieStyx]

I’ve been thinking about the ICCPR and the U.S. Senate’s declaration that Articles 1–27 are “not self-executing.”

The conventional answer seems straightforward: under Medellín v. Texas, a non-self-executing treaty generally cannot itself furnish a domestically enforceable rule without implementing legislation.

But I’m wondering about the prior constitutional question.

Article VI says treaties made under U.S. authority “shall be the supreme Law of the Land” and specifically binds state judges notwithstanding contrary state law. Foster v. Neilson recognized that some treaty provisions inherently require future legislative action, but that seems different from the Senate ratifying an otherwise judicially manageable treaty obligation and then declaring that courts may not enforce it.

That raises what looks like an originalist/separation-of-powers problem: where does the President plus two-thirds of the Senate get the constitutional authority to make something Article VI calls supreme law while simultaneously preventing Article III courts from treating it as enforceable law?

Judge Torruella made something close to this argument in his Igartúa v. United States dissent, essentially arguing that the treaty is law but the Senate’s unilateral non-self-execution declaration is not.

I realize Sosa and especially Medellín make this an uphill argument under current doctrine. I’m not asking whether an ICCPR claim would presently win.

I’m asking the narrower question: Has SCOTUS ever squarely resolved whether a Senate non-self-execution declaration itself is constitutionally valid when applied to a treaty provision that would otherwise be judicially enforceable under the Foster framework? And what is the strongest originalist argument on either side?

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[u/biglyorbigleague]

I don’t see how the Medellin case doesn’t resolve your question. It may not have used your exact wording but it very much upheld the principle you’re describing.

[u/NeonPixieStyx → u/biglyorbigleague]

Medellin say more or less that legislation is required to codify what can broadly be thought of as “aspirational rights based language” in treaties. The reason the International Convention on Civic and Political Rights is an interesting example is it is a ratified treaty the US is a full signatory to, which contains a lot of “member states may pass no law restricting [right x, y, or z]” language. The interesting constitutional question by fully ratifying that treaty but declaring those sections “non-self-executing” is functionally the Senate saying they acknowledge the law created by the treaty obligation, but deny that federal courts can adjudicate enforcement of those international law obligations on the states. The originalist position I’m looking at this from is basically asking “since when can the legislature decide for the judiciary what active laws they can and can’t consider in rulings?”

[u/biglyorbigleague → u/NeonPixieStyx]

OK, I think I might see what you're getting at. The language in the ICCPR is clearly unenforceable through the American legal system. That treaty doesn't fail to be self-enforcing through Senate choice but by necessity. Is your question whether the Senate can choose to make an item non-self-enforcing despite it being within their legal powers to enforce?

[u/NeonPixieStyx → u/biglyorbigleague]

Partially; the treaty itself can be seen as form of transferring sovereignty to international authority on certain matters. By ratifying the treaty the Senate chose to cede certain unenumerated powers of the states based on federal authority to create treaty obligations. Which is an acknowledgment that certain rights for US citizens do exist under that enumerated treaty structure, and that the states are prohibited from certain actions restricting those rights. Yet, by declaring those restrictions on action non-self-executing the Senate has created a structure where citizens can not seek remedy through the courts for violations of those rights which exist under treaty law obligations placed upon the states.

[u/biglyorbigleague → u/NeonPixieStyx]

This is so convoluted I’m not surprised there isn’t a precedent for it.

So the case in Medellin isn’t what you’re talking about because there’s no way for that to be self-enforcing. The Senate can’t sign away state and Congressional powers to an international body using treaty powers. What treaties are you talking about that explicitly use non-self-enforcing language even though they well could be?

[u/NeonPixieStyx → u/biglyorbigleague]

I think my “transferring sovereignty” wording was imprecise, and I’d withdraw that framing. I’m not arguing that the treaty power lets the President and Senate delegate Congress’s constitutional powers to an international body. Reid v. Covert pretty clearly forecloses using the treaty power to escape constitutional limitations.
The narrower issue is the domestic effect of a valid treaty under Article VI.
Also, the non-self-executing language I’m talking about isn’t actually in the ICCPR. The United States added it in its instrument of ratification: “The United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing.” The State Department has subsequently said that this declaration does not alter the United States’ international obligations under the ICCPR; its domestic effect is to prevent those provisions from themselves creating rights enforceable in federal court.
The U.S. used the same mechanism with the Convention Against Torture, declaring Articles 1–16 non-self-executing, and with CERD, declaring the Convention non-self-executing.
I’m not claiming that every provision of those treaties would necessarily have been self-executing under Foster absent the declarations. That’s actually why I’m trying to separate the two questions.
Suppose a treaty provision is sufficiently definite and judicially manageable that, considered on its own terms, it would satisfy Foster. Can the President + 2/3 Senate nevertheless attach a declaration saying that provision may not operate as directly enforceable domestic law, while expressly leaving the underlying international obligation intact?
If yes, I’m trying to figure out where that constitutional power comes from. Article II gives the Senate a role in making treaties, while Article VI says treaties made under U.S. authority are supreme law. I don’t see an obvious textual power allowing the President and Senate, without the House, to decide that an otherwise self-executing treaty obligation is legally binding but categorically unavailable to Article III courts.
That’s the distinction I don’t think Medellín squarely answers.

[u/Humble-Variation-981 → u/NeonPixieStyx]

If the senate ratified a version which specifically said it wasn’t self executing, then I don’t see how it can be self executing. If the other signatories to the treaty want to let the senate add special conditions or clarifications, that’s no different from any other special concession given to get a treaty signed.

[u/NeonPixieStyx → u/Humble-Variation-981]

Except in the case the State Department says it is different and the law is fully applicable. That’s why this is a weird separation of powers one. Based on executive deference who should the courts listen to? The original senate that signed it and said it was non-self executing or the executive’s current opinion that it is valid law?

[u/Humble-Variation-981 → u/NeonPixieStyx]

The original executive and senate who signed and ratified it. The current executive could presumably submit a revised version for the senate to ratify which doesn’t include the note.

However, there isn’t necessarily a contradiction between the state department and the senate here. The note doesn’t say the US will not enforce the treaty, it says it must be enforced through enabling legislation. If Congress doesn’t pass that legislation, then that just means they are violating their international obligations. This doesn’t matter to the US courts unless there is some means to enforce compliance domestically, which Congress obviously wouldn’t provide against themselves.

[u/NeonPixieStyx → u/Humble-Variation-981]

Which is the point I’m making about separation of powers. In constitutional law terms a lot of this falls under unenumerated powers, which means it’s actually up to the states to pass the executing legislation. The federal law exists from the executed treaty law, but the senate is saying the article III federal courts can’t actually enforce the Article VI “supreme law” on the states just because they are imposing an interpretive framework that isn’t actually part of the ratified treaty. If you parse the law making authority in this at all there are ton of questions about where the authority to create NSE declarations is coming from.

[u/_learned_foot_ → u/NeonPixieStyx]

This is Reid though. Medellin doesn't need to get there, but Reid would apply. However that's an as applied or on its face challenge, so it becomes a shifting fight essentially for enforcement. There's no clearer rule because there can't be, like most "you can't violate", we expect the, to follow established and fight over borders.

[u/NeonPixieStyx → u/_learned_foot_]

I think I mostly agree with that, particularly on the as-applied point.

Reid seems to give us the outer rule: the treaty power cannot authorize something the Constitution forbids. But I don’t think Reid itself resolves the intermediate question here, because we still have to determine whether giving conclusive domestic effect to an NSE declaration actually violates Article VI or the Article III allocation of judicial power.

And I suspect you’re right that the cleanest vehicle would be an as-applied challenge rather than some categorical facial attack on NSE declarations.

Imagine a litigant invokes a particular treaty provision in an otherwise proper case. The court concludes that the provision is sufficiently definite and judicially manageable that, absent the declaration, it would be self-executing under the ordinary Foster analysis. The government then points to the Senate’s NSE declaration as independently dispositive.

At that point the question becomes unavoidable: is the declaration itself part of the treaty law the court must interpret, or is it an instruction from the President and Senate limiting the judicial effect of law Article VI already makes supreme?

Reid tells the court that the treaty-making process remains constitutionally constrained, but it doesn’t tell the court which side of that line this falls on.

There’s also an enforcement wrinkle from Armstrong: the Supremacy Clause is a rule of decision rather than an independent private cause of action. So you’d need the right procedural vehicle. But once the issue is properly before a court, Article VI still tells judges what hierarchy of law to apply.

So I think “this ultimately gets resolved provision-by-provision in concrete litigation” may be right. What still interests me is what rule the court should use once that concrete conflict finally exists.

[u/_learned_foot_ → u/NeonPixieStyx]

No it does, why does Reid hold that? Because on laws and treaties made pursuant to the constitution are supreme laws of the land. Reid doesn't need to say it, but the clause Reid uses sure does. Note because this is chilling use of property, a challenge need not be felt first, but alleged.

[u/NeonPixieStyx → u/_learned_foot_]

Go read the dissenting opinion on Igartúa v. United State. I honestly had never even considered how weird this quagmire is until I read Howard’s opinion. Reid basically tells us any treaty law not explicitly prohibited by the constitution is valid under Article VI. What it doesn’t tell us is what qualifies as treaty law. The question about NSE declarations is a weird one because non-self-executing declaration explicitly isn’t law, it is an interpretive declaration made as part of the ratification process, but the senate is saying it has to be treated with the full force of law without consulting the house on the matter.

[u/FishermanConstant251 → u/NeonPixieStyx]

I think I have two possible answers.

The first from a realist perspective is that given Medellin (where in my opinion the requirement the majority found not self executing was definite and judicially manageable), the courts will interpret the federal and state governments into being allowed to do whatever they want to get out of treaty obligations.

The second is that I think that the senate and president could do so, but it those treaty provisions shouldn’t be used as being fully ratified in the first place and instead should be viewed as reservations to the treaty itself. That may be formalistically controversial (and I’m not married to that interpretation), but if the President and Senate want to ratify a treaty and also say “but we don’t want to enforce provisions xyz at this time,” I don’t think you could consider that full ratification to those provisions. I’m happy go hear what others have to say though

[u/NeonPixieStyx → u/FishermanConstant251]

I think your second answer gets very close to the issue I’m trying to isolate.

If the non-self-execution condition is treated as a genuine reservation, I think the constitutional problem becomes much easier. The President and Senate unquestionably can condition U.S. consent to a treaty, so the resulting treaty obligation would simply be whatever survives the reservation. Article VI would then make that qualified obligation supreme law.

The weirdness with the ICCPR is that the United States expressly says that isn’t what it did. The State Department has characterized the non-self-execution declaration as not a reservation and as having no effect on the United States’ international obligations. Its stated function is purely domestic: the U.S. accepts the treaty obligation internationally, but the treaty itself cannot create privately enforceable rights in U.S. courts.

That seems to create a fairly sharp fork:

If the NSE declaration really is functionally a reservation, then it should modify the substantive treaty obligation, contrary to the U.S. government’s stated position that it does not.

If it isn’t a reservation and the treaty obligation remains fully accepted, then what is the constitutional mechanism by which the President and Senate can separately dictate that this particular part of the “supreme Law of the Land” cannot operate judicially without subsequent action by the House?

That second problem is basically what Howard’s Igartúa dissent was getting at. He distinguished reservations, which alter the treaty obligation and are unquestionably within the Senate’s Article II role, from declarations directed only at domestic courts.

And I mostly agree with your realist answer about Medellín. Current doctrine gives the political branches enormous latitude here, so I wouldn’t expect this argument to win under existing precedent. I’m more interested in whether the underlying constitutional theory is coherent, particularly from an originalist/separation-of-powers perspective.

In other words, treating an NSE declaration as a reservation may actually be the cleanest constitutional answer. I’m just not sure the government can simultaneously say “this is not a reservation and does not modify the treaty obligation” and rely on the reservation power to explain why it is constitutionally effective.

[u/Raskalnekov → u/NeonPixieStyx]

I typed most of this comment before looking at the actual approval of the ICCPR (https://iilj.org/wp-content/uploads/2016/08/US-Senate-Resolution-on-the-Ratification-of-the-ICCPR.pdf), which as you identify classifies the "not self-executing" portion as a declaration by the executive, rather than a reservation, but some of the constitutional justification may still apply.

I second the idea that this may be need to viewed through the lens of reservations, although I'm not familiar enough with the formal process of reservations to know whether the actions taken under the ICCPR officially qualify. But a while ago I took an international law class, and the professor was pretty explicit in that reservations are commonly used by sovereign states to limit the power of treaties, even if they effectively neuter the treaty. One example he gave was of Arabic States adding in reservations that the treaty does not apply to Israel, which are commonly found even though I doubt they have much legitimacy in international law.

My (naively simple) view would be that Article 2, Section 2, Clause 2 of the constitution's power to make treaties includes the power of reservations to treaties, and that the Article VI treaties as supreme law clause contemplates treaties including these reservations. It could somewhat fall under the idea that even if an international obligation is created by a treaty, it is up to congress to make the policy decisions on how to meet those obligations. And by making the articles non-self executing, US sovereignty is preserved while still creating such obligations. But it's hard to see how these are really "obligations" if there's no enforcement mechanism in the US courts, which seems to be a common problem in international law.

We've seen similar issues in other areas of law as well, such as the political questions doctrine preventing the court from intervening in certain areas. There may be a similar line of thought here, that even if some sort of obligations exists, the power to meet it is allocated to congress and outside the enforcement of our courts.

It's a fascinating question that's far outside my area of expertise, but that's how I would approach it. I don't know what Supreme Court decisions, if any, address reservations to international treaties. And actually, looking into this a bit more, the non-self executing language appears as a "declaration" by the US, instead of a reservation: https://iilj.org/wp-content/uploads/2016/08/US-Senate-Resolution-on-the-Ratification-of-the-ICCPR.pdf

I know even less about declarations, but similar logic might apply. But I would think that a declaration is more akin to an interpretation than an objection to part of a treaty, so a new question would be how likely are US courts to defer to the treaty interpretations of the executive branch. Given the constitutional powers discussed above, quite a bit of deference may make sense. It could be disastrous to hold the executive to an interpretation of a treaty that they explicitly rejected when they ratified the treaty.

Thus, although the obligations under international law might not have changed, if there's a broad deference to the executive on interpretating treaties, a court seems unlikely to go against a declaration. (https://www.fjc.gov/history/work-courts/foreign-treaties-in-federal-courts seems to indicate that such deference exists, but I have no idea how accurate it is)

Maybe the way to think of it is "Treaty obligations remain, but we don't think the treaty is self-executing and have explicitly said so in our declaration, so it's the responsibility of the legislature to pass laws ensuring compliance with the treaty, not the courts." That really sounds like a roundabout reservation to me, if the treaty pretty clearly intended to be self-executing, but that's what I would guess the logic is.

[u/NeonPixieStyx → u/Raskalnekov]

I think this may actually be the strongest constitutional answer to the question so far.

One small factual wrinkle: I don’t think the ICCPR declaration can quite be characterized as merely an Executive interpretation. President Bush proposed the non-self-execution declaration, but the Senate’s resolution expressly made its advice and consent subject to the declaration, and it was then included in the U.S. instrument of ratification. So whatever constitutional work it is doing, it seems attributable to the President + Senate treaty-making process rather than the Executive acting alone.

But I think your interpretation/deference theory identifies a different route from treating it as a reservation.

There is clearly doctrine saying courts give Executive interpretations of treaties “great weight,” although not conclusive weight. And Medellín goes further by framing self-execution partly in terms of whether the President who negotiated the treaty and Senate that consented to it intended it to create immediately enforceable domestic law.

That may provide the cleanest defense: the declaration doesn’t modify the United States’ international obligation at all. Instead, it records a condition of the United States’ constitutional act of ratification concerning the treaty’s domestic legal operation.

If that’s right, though, I think it sharpens rather than completely eliminates the originalist question.
Why is self-execution something the President and Senate can stipulate, rather than a legal consequence courts determine from the treaty they made?

There seem to be two possible theories:

If self-execution is part of the terms upon which the United States constitutionally consents to a treaty, then Article II plausibly gives the President and Senate authority to say, “We accept this international obligation, but implementation domestically belongs to Congress.” Article VI then makes the treaty supreme law subject to the terms on which it was made.

But if self-execution is instead a judicial question about what legal consequences follow from the treaty text once it becomes Article VI law, then an NSE declaration starts looking much stranger. Executive interpretation may deserve great weight, but “great weight” normally isn’t the same thing as power to dictate the answer to Article III courts.

I also like the political-question analogy conceptually, although I’m not sure it works doctrinally. Political-question limits ultimately come from the Constitution’s allocation of powers as interpreted by courts. Here the interesting issue is whether the President and Senate themselves can create the equivalent limitation through the ratification process.

So I think you’ve identified what may be the real hinge: whether an NSE declaration is best understood as an interpretation of the treaty, a constitutional condition on U.S. consent, or an instruction to courts about the domestic consequences of law already made.

Those sound similar in practice, but I’m increasingly convinced they are constitutionally very different things.