Making Treaty Implementation More Like Statutory Implementation
Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the conventional assumption that Congress must implement treaties that are not directly enforceable by courts stems from an unduly narrow historical perspective. Instead, largely forgotten nineteenth-century practice and cases reveal that the executive branch can implement treaties so as to make them enforceable in the courts. Drawing on this past practice, this Article argues that it is time to reconfigure the administration of treaties. In at least some circumstances, the executive branch should be able to translate treaty provisions into court-enforceable obligations in a manner comparable to the statutory context, including through rulemaking by administrative agencies. This approach is particularly desirable for multilateral regulatory treaties, which have come to play an increasingly important role in global governance.
*Assistant Professor, University of Pennsylvania Law School. For helpful comments, I thank Greg Ablavsky, Curtis Bradley, Cary Coglianese, Nancy Coombs, Evan Criddle, Kristina Daugirdas, Bill Ewald, Sophia Lee, Ryan Scoville, David Sloss, David Zaring, and workshop participants at the University of Pennsylvania Law School, William & Mary Law School, and the 2016 JILSA Conference. I also thank the editors of the Michigan Law Review, especially Jonathan Huberman, Mariel Eben, and Alexandra Fedorak. For research assistance, I thank the Penn Law Library, especially Gabriela Femenia. All views and any errors are of course my own.