U.S. Foreign Relations Law, Treaties Approved

At ALI’s Annual Meeting on Monday, May 22, members voted to approve the Tentative Draft No. 2 of the Treaties portion of the Foreign Relations Law Restatement.*  Next on the agenda are the Jurisdiction and Sovereign Immunity drafts. If all three are approved by membership, the three portions of the project will be complete.

New content reviewed and approved at this meeting includes the following in the Treaties draft (Reporters Memorandum – edited).

This Tentative Draft contains eight Sections. Although this Chapter is currently limited to Article II treaties, §§ 102 and 104 both address the international law governing international agreements generally, including non-Article II agreements. The international law relating to the conclusion and entry into force of international agreements makes procedural distinctions among agreements that correspond imperfectly to U.S. law and transcend Article II treaties, so it would be artificial and potentially confusing to limit those Sections to such treaties. However, neither Section addresses fundamental questions concerning the domestic status of international agreements other than Article II treaties.

Section 102, Capacity and Authority to Conclude International Agreements, is generally consistent with § 311 of the previous Restatement. While § 311(2) provided that “A person is authorized to represent a state for purposes of concluding an international agreement if . . . such authority clearly appears from the circumstances” (emphasis added), subsection (2) of this Section simply requires apparent authority, although in practice the inquiries will be satisfied by the same evidence—for example, a person’s position as the Minister of Foreign Affairs or as head of a diplomatic mission.

Subsection (3), Comment c, and Reporters’ Note 5 of this Section also add that in order for a violation of domestic law to constitute a basis for invalidating a state’s consent to be bound by an international agreement, the rule of domestic law must not only be one of fundamental importance, but must also concern competence to conclude international agreements. This requirement is reflected in the Vienna Convention on the Law of Treaties and is well accepted as a matter of international treaty practice.

Section 104, Entry into Force of International Agreements, is derived from § 312 of the previous Restatement. The discussion has been updated to reflect additional international and domestic practice relating to provisional application and interim obligations.

Section 105, Reservations and Other Conditions, is similar in substance to § 314 of the Restatement Third and Reporters’ Notes 3 and 4 to § 303 of the Restatement Third. The discussion has been substantially expanded, however, to take account of the decades of U.S. treaty practice since the last Restatement. In addition, while § 314 of the Restatement Third addressed “reservations and understandings,” the present Section addresses the full range of conditions attached by the Senate to its advice and consent. Finally, unlike § 314 (but consistent with § 303, Reporters’ Note 4 of the Restatement Third), the black letter of this Section contains an additional provision making clear that, to be given legal effect, conditions attached by the Senate to its advice and consent to a treaty must relate to the treaty and be consistent with the Constitution.

Section 106, Interpretation of Treaties, updates and elaborates upon the issues addressed in § 325 and parts of § 326 of the Restatement Third. This Section addresses the relationship between the rules for interpretation of treaties under the Vienna Convention on the Law of Treaties and U.S. judicial practice, and generally finds the two approaches to be compatible. The prior Restatement did not recognize the Vienna Convention Articles 31 and 32 as fully reflecting customary international law regarding the rules for treaty interpretation and identified some potential divergence between the U.S. approach to interpretation of treaties and that of the Vienna Convention. However, subsequent developments in international law and state practice in applying the Vienna Convention principles, and in the U.S. domestic approach to interpretation of treaties, have both solidified international acceptance of the Vienna Convention standard and narrowed any perceived divergence in approach.

Section 110, Self-Executing and Non-Self-Executing Treaty Provisions (previously § 106), was significantly reworked during the past year in light of discussions with our Advisers and others. The approach of this Section is generally consistent with the approach of the prior Restatement, with updated analysis to take account of subsequent developments, including the increased inclusion of declarations concerning self-execution or non-self-execution in the Senate’s resolutions of advice and consent, the Supreme Court’s decision in Medellín v. Texas, and lower-court decisions applying Medellín.

As discussed in Reporters’ Note 3 to this Section, the case law has not established any general presumption with respect to self-execution. A Reporters’ Note in the Restatement Third suggested that there should be a strong presumption in favor of selfexecution if the executive branch has not requested implementing legislation and Congress has not enacted any such legislation, “especially so if some time has elapsed.” See Restatement Third, The Foreign Relations Law of the United States § 111, Reporters’ Note 5 (AM. LAW INST. 1987). It does not appear that courts have relied on this suggestion, and it is difficult to reconcile with the Supreme Court’s decision in Medellín. There are also reasons to question the analysis reflected in this suggestion, as explained in the Tentative Draft.

Like this Section, the prior Restatement recognized that treaties are supreme law of the land, see Restatement Third, The Foreign Relations Law of the United States § 111(1) and Comment d (AM. LAW INST. 1987), and primarily addressed the question of self-execution as one addressed by courts, see id. § 111(3) and Comment c. Although there was some language in the prior Restatement that might be read to suggest that a non-self-executing treaty provision lacked any status as domestic law—see, for example, id. § 115, Comment e, and § 312, Comment k—those statements were ambiguous, and the dominant approach of the Restatement Third was to address self-execution in the context of judicial enforcement. This Section takes a similar approach. Section 111, Private Rights of Action Under Treaties, is generally consistent with the Restatement Third, The Foreign Relations Law of the United States (AM. LAW INST. 1987), although it contains additional detail to take account of developments in the case law. Thus, for example, § 111, Comment h, of the Restatement Third stated that “[w]hether a treaty is self-executing is a question distinct from whether the treaty creates private rights or remedies,” and § 907, Comment a, stated that “[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts” and that “[w]hether an international agreement provides a right or requires that a remedy be made available to a private person is a matter of interpretation of the agreement.”

Section 111 of the Tentative Draft likewise notes that treaty provisions often do not confer private rights of action, and that even treaty provisions that are self-executing do not do so by virtue of that fact alone. The nature of any presumption concerning private rights of action was the subject of extensive and varied input from our Advisers and, after those suggestions were accommodated in Council Draft No. 2, received further discussion in the Council. Based on that input, Comment b of this Section maintains the observation in § 907, Comment a, of the Restatement Third concerning the typical nature of international agreements in relation to private rights and private causes of action in domestic courts. Comment b and Reporters’ Note 1 also explain that subsequent cases—sometimes invoking the Restatement Third—have generally presumed that treaty provisions do not confer privately enforceable rights, at least in the context of damages actions. As in § 907, Comment a, of the Restatement Third, § 111 notes that any such presumption can be overcome by evidence that the provision was intended to be enforceable through private damages actions. It further notes that the ability to assert private rights of action under treaties is subject to general limitations such as requirements for standing.

Section 112, Relationship of Treaty Power to Federalism, is generally consistent with § 302 of the Restatement Third, which addressed the “Scope of International Agreements: Law of the United States.” Unlike § 302, this Section focuses only on Article II treaties, not international agreements more generally. In addition, in considering the relationship between the treaty power and the Constitution, this Section, unlike § 302, focuses only on federalism rather than on the Constitution as a whole— other aspects of which have already been addressed in § 107 in Tentative Draft No. 1. In doing so, this Section takes account of relevant federalism cases decided since the Restatement Third.

Unlike the prior two Restatements, § 112 does not take a position on whether there is some sort of subject-matter limitation on the treaty power. Section 117(1)(a) of the Restatement Second, Foreign Relations Law of the United States (AM. LAW INST. 1965), stated that the United States had the constitutional authority to enter into international agreements on any matters of “international concern,” and Comment b to that Section explained that an international agreement of the United States “must relate to the external concerns of the nation as distinguished from matters of a purely internal nature.” By contrast, Comment c of § 302 of the Restatement Third claimed that, “[c]ontrary to what was once suggested, the Constitution does not require that an international agreement deal only with ‘matters of international concern’” and that “the United States may make an agreement on any subject suggested by its national interests in relations with other nations.” The Reporters for the present Restatement concluded that the issue had not been sufficiently addressed in judicial decisions and other relevant legal materials to warrant taking a definitive position.

Section 113, Authority to Suspend, Terminate, or Withdraw from Treaties, is consistent in substance with § 339 of the Restatement Third, which similarly concluded that the President had the constitutional authority to suspend or terminate international agreements on behalf of the United States, either in accordance with a withdrawal clause or other terms in a treaty or by invoking international law grounds for suspension or termination. This Section takes account of developments in treaty practice that have occurred since the last Restatement and also provides a more detailed description of relevant historical practice.

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*All approvals by membership at the Annual Meeting are subject to the discussion at the Meeting and usual editorial prerogative.