Taking Treaty Implementing Statutes Seriously

Abstract

Although a critical aspect of the U.S. treatymaking process since the very beginning of the Republic – recall the debate over whether legislation was required to implement the Jay Treaty of 1794– treaty implementing statutes are generally ignored (at least in academic circles), a neglected stepchild of U.S. foreign relations law. This conventional frame of reference gets things backwards: while the treaty spells out our international obligations, the implementing law is the domestic face of the treaty (except in rare cases where the treaty is considered self-executing). Treaty implementing legislation reflects the operative law of the United States with respect to the treaty in question. The implementing statute warrants our focus when discussing the treaty. Instead, there is a general tendency in the literature to overlook the statute in favor of the underlying treaty. This paper seeks to rekindle interest in treaty implementation statutes. For present purposes, Let’s assume we are dealing with non-self-executing treaties and no issue is presented of Congress passing a law in connection with a treaty that would fall outside of its Article I domain. Given these premises, a renewed appreciation of, and focus on, the central role of the implementing statute in the case of non-self-executing treaties is likely to yield several significant benefits, including (1) a better understanding of the precise U.S. law position on a particular issue (as, for example, discussed below on the question of corporate liability for financing terrorism); (2) avoiding the dangers of blanket incorporation of treaty language that fails to adjust for U.S. institutions and legal culture (as, for example, discussed below in the case of U.S. domestic-law treatment of the Chemical Weapons Convention; and (3) providing an opportunity for Congressional expansion of protection beyond the requirements of the treaty (as, for example, discussed below in the case of U.S. asylum legislation).