On September 25, 1997, the International and National Security
Law Practice group co-hosted a debate with the ABA Standing Committee
on National Security Law on the subject of the binding force of
treaties. We have excerpted the remarks of the two speakers, John
Bolton and Robert Turner.
John R. Bolton*
Treaties have no special or higher status than other legislative
acts, or the U.S. Constitution.
I have been surprised, in conversations even with knowledgeable
and sophisticated foreign policy analysts, to hear repeated reference
to treaties as possessing some special status in the American legal
system. I believe that the confusion stems from the misreading both
of the Supremacy Clause of the Constitution, and of the well-known
opinion by Mr. Justice Holmes in Missouri v. Holland, 252 U.S. 416
The Supremacy Clause provides:
"This Constitution, and the laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding."
U.S. Constitution, Article VI, clause 2.
The inclusion of "treaties" in the Clause was a deliberate
effort by the Framers to subordinate contrary State laws to treaties
entered into by the national government. Under the Articles of Confederation,
States had frequently enacted laws which, for example, clashed with
the Treaty of Paris of 1783. Just as the Framers intended duly enacted
laws at the national level to supersede contrary State laws, so
too, national treaties were intended to trump State law under the
The Constitution entrusted the treaty-making power solely to the
national government, by providing that the President "shall
have Power, by and with the Advice and Consent of the Senate, to
make Treaties, provided two thirds of the Senators present concur...."
U.S. Constitution, Article II, Section 2, clause 2. Indeed, the
Framers also provided that "No State shall enter into any Treaty,
Alliance, or Confederation...," to make it completely clear
that the treaty power belonged only to the national government.
Id. Article 1, Section 10, clause 1.
In Missouri v. Holland, supra, the State of Missouri challenged
the constitutionality of the Migratory Bird Convention of 1916 with
Great Britain, as well as statutes and regulations intended to implement
the treaty. Missouri argued that the Convention, which attempted
to limit the killing and capturing of migratory birds in the U.S.
and Canada, violated the Tenth Amendment. The Supreme Court rejected
Missouris argument, and upheld the validity of the treaty,
as well as the implementing statue and regulations.
Justice Holmes specifically concluded that "[t]he treaty in
question does not contravene any prohibitory words to be found in
the Constitution." 252 U.S. at 433. Nonetheless, his opinion
added expansively that :
"It is said that a treaty cannot be valid if it infringes
the Constitution; that there are limits, therefore, to the treaty-making
power; and that one such limit is that what an act of Congress
could not do unaided, in derogation of the powers reserved to
the states, a treaty cannot do ...."
"Acts of Congress are the supreme law of the land only when
made in pursuance of the Constitution, while treaties are declared
to be so when made under the authority of the United States ...
We do not mean to imply that there are no qualifications to the
treaty-making power; but they must be ascertained in a different
way. It is obvious that there may be matters of the sharpest exigency
for the national well-being that an act of Congress could not
deal with, but that a treaty followed by such an act could, and
it is not lightly to be assumed that, in matters requiring national
action, a power which must belong to and somewhere reside
in every civilized government is not to be found [citation
Id. at 432-33.
Having dealt with the Convention, Justice Holmes summarily upheld
the implementing statute: "If the treaty is valid, there can
be no dispute about the validity of the statute under article 1,
[Sec.] 8, as a necessary and proper means to execute the powers
of the government." Id. at 432.
Perhaps sensing the need to quiet the concerns generated by Missouri
v. Holland, the Supreme Court revisited the issue in Reid v. Covert,
354 U.S. 1 (1957). There, the Court invalidated the murder convictions
of wives of American servicemen who had accompanied them as dependents
overseas, and who were convicted of murdering them by military courts
martial. A plurality of the Court concluded that military trials
of civilians generally violated the Constitution, while Justices
Frankfurter and Harlan limited their opinion only to capital cases.
The plurality opinion by Justice Black rejected an argument by
the government that courts martial of dependents accompanying the
U.S. military overseas were required to implement international
agreements made with the countries where they were stationed. The
Court concluded that "no agreement with a foreign nation can
confer power on the Congress, or on any other branch of Government,
which is free from the restraints of the Constitution." 354
U.S. at 16.
After quoting the Supremacy Clause, Justice Black stated:
"There is nothing in this language which intimates that
treaties and laws enacted pursuant to them do not have to comply
with the provisions of the Constitution... It would be manifestly
contrary to the objections of those who created the Constitution,
as well as those who were responsible for the Bill of Rights --
let alone alien to our entire constitutional history and tradition
-- to construe Article VI as permitting the United States to exercise
power under an international agreement without observing constitutional
prohibitions. In effect, such construction would permit amendment
of that document in a manner not sanctioned by Article V."
Id. at 16-17.
Justice Black added that "[t]his Court has regularly and uniformly
recognized the supremacy of the Constitution over a treaty."
Id. at 17 (emphasis added). He then concluded expressly: "There
is nothing in Missouri v. Holland [citation omitted] which is contrary
to the position taken here. There the Court carefully noted that
the treaty involved was not inconsistent with any specific provision
of the Constitution." Id. at 18.
Thus, for purposes of American law, treaties do not exist apart
from or outside of that body of law, or in a position superior to
or superseding the Constitution, or any of its requirements or prohibitions.
Whatever the legal impact of a treaty -- a point I turn to next
-- that impact must be determined consistently with the Constitution
and subordinate American law.
Treaties are "law" only for
U.S. domestic purposes. In their international operation, treaties
are simply "political," and not legally binding.
Another major source of confusion about the effect of U.S. treaty
obligations is what it means to say that they constitute, in the
Constitutions phrase, "the supreme Law of the Land."
In normal American usage, the word "law" denotes a binding
obligation. In the context of UN assessments, the argument is frequently
made that these assessments are the result of a treaty obligation,
hence are the "law of the land," and hence are "legally
binding" on Congress to pay in full and in a timely fashion.
This line of argument is flatly incorrect. To the extent that adherence
to the UN Charter carries any obligation, it is political in nature,
and subject to all of the possibilities for modification or abrogation
of any political arrangement. That renders it fundamentally different
from a treaty that affects the domestic relationships between the
government and its citizens, or between private citizens, as the
Supreme Court has repeatedly recognized.
In Edve v. Robertson, 112 U.S. 580 (1884) (the "Head Money
Cases"), the Court upheld as constitutional a per-person fee
on immigrants, to be used for the support of those who need care
or assistance after landing. The ship owners challenging the fees
validity argued that the statute establishing the fee violated several
U.S. treaty obligations. The Court rejected this argument, and in
so doing articulated the important distinction between the effect
of treaties in the international arena, on the one hand, and within
the United States, on the other. While respect to the international
arena, the Court said:
"[a] treaty, then, is a law of the land as an Act of Congress
is, whenever its provisions prescribe a rule by which the rights
of the private citizen or subject may be determined. And when
such rights are of a nature to be enforced in a court of justice,
the court resorts to the treaty for a rule of decision for the
case before it, as it would to a statute."
Id. (emphasis added)
The Supreme Courts distinction in the Head Money Cases echoed
the same point made in The Federalist, Number 75: treaties "are
not rules prescribed by the sovereign to the subject, but agreements
between sovereign and sovereign." As the Court indicates, when
treaties operate as "municipal law, "they are justiciable
as are all other similar legal requirements. "An illustration
of this character is found, in treaties which regulate the mutual
rights of citizens and subjects of the contracting Nations in regard
to rights of property by descent or inheritance, when the individuals
concerned are aliens." 112 U.S. at 598. In the international
arena, however, resolution of disputes arising under treaties requires
political adjustments -- not legal adjudications -- among the states
party to the treaty, up to and including war.
In short, treaties are "law" to the extent that they
constitutionally adjust private-private and private-public relationships
within the United States. They are "political," and not
legally binding, to the extent that they purport to affect relations
among national governments. There may be good and sufficient reasons
to abide by the provisions of a treaty, and in most cases one would
expect to do so because of the mutuality of benefits that treaties
provide, but not because the U.S. is "legally" obligated
to do so. As the Supreme Court observed in Chae Chan Ping: "whilst
it would always be a matter of the utmost gravity and delicacy to
refuse to execute a treaty, the power to do so was prerogative,
of which no nation could be derived without deeply affecting its
independence." 130 U.S. at 602 (emphasis added).
*John R. Bolton is Senior Vice President of the American Enterprise
- See Reid v. Covert, 354 U.S. 1, 16-17 (1957).