Let’s now look at Harold Koh’s positions on the important question whether a treaty is self-executing or not.
As my immediately previous post on the scope of treaties explains, the Supreme Court has long distinguished between treaties that automatically have effect as domestic law (“self-executing” treaties) and those whose domestic legal effect depends on the enactment of implementing statutes (“non-self-executing treaties”). For reasons that I explained, a treaty that is self-executing and that addresses matters of domestic social or economic policy is especially at odds with the basic system of representative government that the Constitution creates: It entirely displaces the role of the House of Representatives in making domestic legislation (in violation of the “essential” values that James Madison identified), and, insofar as it imposes binding domestic obligations on the states, it tramples our system of federalism.
The Constitution of course provides that the Constitution itself, federal laws, and “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Why, one might ask, doesn’t this provision mean that all treaties automatically have effect as domestic law? Why is there such a thing as a “non-self-executing” treaty?
The short (but longstanding) answer is that some treaties are read as stating that they don’t have effect as domestic law. All nine justices in last year’s important Supreme Court decision in Medellin v. Texas agreed on this point, though they disagreed on how to determine whether a treaty should be so read. Chief Justice Roberts’s majority opinion (for five justices, himself included) determined that a treaty is not self-executing (i.e., does not automatically have domestic legal effect) unless “the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on those terms.” Both Justice Stevens (in his opinion concurring in the judgment) and Justice Breyer (in a dissent joined by Souter and Ginsburg) rejected “a presumption against self-execution” and concluded, based on their reading of the treaty in dispute (the Vienna Convention on Consular Relations), that it was self-executing.
Harold Koh’s own position appears to be far more hostile to non-self-executing treaties than any of the liberal justices. According to law professor Curtis A. Bradley, Koh is among those commentators who “have challenged the general ability of the treaty-makers to render treaties non-self-executing”—who believe, in other words, that a treaty generally has automatic domestic legal effect. (Bradley, “Breard, Our Dualist Constitution, and the Internationalist Conception,” 51 Stan. L. Rev. 529, 542 n. 67 (1999).) Specifically, Koh has stated: “Many scholars question persuasively whether the United States declaration [that a particular treaty was not self-executing] has either domestic or international legal effect.” (Koh, “Is International Law Really State Law?,” 111 Harv. L. Rev. 1824, 1828-1829 n. 24 (1998) (emphasis added).) (If any reader will inform me that Koh has since taken a different position on this question elsewhere in his voluminous academic writings, I will supplement this post.)
Interestingly, Koh, as counsel for former American diplomats, submitted an amicus brief in Medellin that argued that the Vienna Convention was self-executing. His sole evidence in support of that position: “the State Department Legal Adviser testified before the Senate Committee on Foreign Relations that the Convention was entirely self-executing and ‘did not require implementing … legislation to come into force.’” (Brief at 13 n. 9.) So Koh gave authoritative weight to the testimony—in 1969—of the person whose position he has now been nominated to fill.
An important sidenote: Koh’s academic writings frequently give important legal weight to the positions taken by the State Department legal adviser and by the Solicitor General. If appointed State Department legal adviser, Koh would be closely counseling the Solicitor General on the positions that the United States should take in the courts on questions of international law. Koh himself has highlighted how the “skill and maneuvering of particular well-positioned individuals, …serving as key institutional chokepoints,” can have inordinate influence on American positions on international law. (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1496 (2003).) I’ll develop more fully in a later post the many ways in which Koh’s position as State Department legal adviser would enable him to advance his transnationalist agenda.
As Medellin’s 5-4 margin on the issue of non-self-execution indicates, the Supreme Court may well be one vote away from conferring domestic legal status much more freely on treaties. Based on Koh’s record, there’s ample reason to believe that he will press hard to that end by various means, including by offering testimony that particular treaties are self-executing. As illustrated by the four decades that passed between the testimony that Koh cited in his Medellin brief and the Court’s ruling, he would thereby be able to inflict damage for decades to come.
(Sixth in a series. Previous posts: Overview of series, what “transnationalism” is, what customary international law is, the transnationalist game on customary international law, and the scope of the treaty power. Next: Interpreting and implementing treaties, with CEDAW as Exhibit A.)