Article 2, Section 2, Clause 2 — Self Executing And Non Self Executing Treaties

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Supremacy Clause of the Constitution, Article VI, Clause 2, states that treaties concluded in accordance with constitutional requirements have the status of the “supreme Law of the Land[.]” [1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn1art2 " U.S. Const. art. VI, cl. 2. For analysis of the Supremacy Clause, see . ") The Founders included treaties in the Supremacy Clause in direct response to one of the major weaknesses of the Articles of Confederation: the national government’s inability to enforce the United States’ treaty obligations.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn2art2 " See Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1, 49–72 (1979); Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L. J. 2202, 2204 (2015) ( “One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with the United States’s international legal commitments.” ); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1102 (2000) ( “It was famously the difficulty of obtaining state compliance with treaties that was among the foremost reasons impelling the movement toward Philadelphia, and that experience left an unmistakable imprint on the text adopted.” ). ") Although the Articles of Confederation gave exclusive treaty-making power to Congress,[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn3art2 " Articles of Confederation of 1781, arts. VI, IX. ") the United States depended on state legislatures to enact laws necessary to ensure compliance with the Nation’s treaty commitments.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn4art2 " See infra notes 5–7. See also Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution 3 (1973) ( “Among the most important defensive powers which the United States lacked in 1783 was the power to enforce treaties.” ); David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 932, 989–90 (2010) ( “Because the foreign affairs powers were, for the most part, already nominally in the Confederation under the Articles, the main goal [of the Constitution] was to make those powers effective by eliminating the national government’s dependence on the states for carrying its powers into effect and by enabling it to discipline state obstructionism.” ). ") When states ignored or violated the United States’ obligations—most famously, by refusing to permit British citizens’ to collect pre-Revolutionary War debts[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn5art2 " See Report of Secretary of Foreign Affairs, John Jay (Oct. 13, 1786), reprinted in Secret Journals of the Congress of the Confederation 185–287 (Boston, Thomas B. Wait 1820) (report of John Jay, then-Secretary of Foreign Affairs under the Articles of Confederation, regarding state laws that violated the United States’ treaty obligations to Great Britain); Letter from John Jay to John Adams (Nov. 1, 1786) in 2 The Diplomatic Correspondence of the United States from the Signing of the Definitive Treaty of Peace, 10th September 1783, to the Adoption of the Constitution, March 4, 1789, at 674 (1837) ( “[T]here has not been a single day, since [the 1783 Treaty of Peace] took effect, on which it has not been violated in America, by one or other of the States.” ). ") —some foreign nations considered the United States an unreliable treaty partner[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn6art2 " See, e.g., 1 The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., 1911) [hereinafter Farrand’s Records (records of James Madison) ( “The files of [Congress under the Articles of Confederation] contain complaints already, from almost every nation with which treaties have been formed.” ); The Federalist No. 22 (Alexander Hamilton) (suggesting that, under the Articles of Confederation, foreign nations could not “respect or confide” in the United States because U.S. treaties were “liable to the infractions” by state governments). ")
or cited U.S. noncompliance as grounds to disregard their own treaty commitments.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn7art2 " For example, Great Britain cited U.S. state laws impeding British citizens’ debt-collection abilities as grounds for not complying with Britain’s treaty-based obligations to withdraw its forces from military forts in the northwestern United States. See Marks, supra note 4, at 3–51. ")
The Framers sought to remedy this problem by making treaties part of the “supreme Law of the Land” to which “the Judges in every State shall be bound[.]” [8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn8art2 " U.S. Const. art. VI, cl. 2. Early in the Constitutional Convention, the Framers considered giving Congress the power to “negative” (i.e., veto) state law that contravened any treaty, 1 Farrand’s Records, supra note 6, at 47, 54, but they later adopted language originating in the New Jersey plan making treaties part of the “supreme law” that is binding upon state courts, id. at 245; 2 Farrand’s Records, supra note 6, at 27–29, 182–83, 389–90, 603. ")
The Supremacy Clause marked a shift from the British system under which treaties generally have domestic effect only after being implemented by Parliament.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn9art2 " See James Crawford, Brownlie’s Principles of Public International Law 63 (8th ed. 2012) (quoting Thomas v. Baptiste [2000] 2 AC 1 PC, 23 (Lord Millett)). ")

Despite the Supremacy Clause’s seeming simplicity, not all treaties have the status of domestic law that is enforceable in U.S. courts.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn10art2 " See, e.g., Bond v. United States, 572 U.S. 844, 850–51 (2014) (recognizing that the Convention on Chemical Weapons “creates obligations only for State Parties and ‘does not by itself give rise to domestically enforceable federal law’” ) (quoting Medellín v. Texas, 552 U.S. 491, 505 n.2 (2008)); Cameron Septic Tank Co. v. City of Knoxville, 227 U.S. 39, 50 (1913) (holding that a provision in an industrial property convention regulating patents was not self-executing and did not govern the date of expiration of a challenged patent). ")
Some treaties or (provisions within treaties[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn11art2 " See, e.g., United States v. Postal, 589 F.2d 862, 884 n.35 (5th Cir. 1979) ( “A treaty need not be wholly self-executing . . . . [A] self-executing interpretation of [one article] would not necessarily call for a similar interpretation of [a different article in the same treaty].” ), cert. denied, 44 U.S. 832 (1979); Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, 13 Op. O.L.C. 163, 179 n.28 (1989) ( “[T]he question should be whether individual provisions of the treaty are self-executing.” ). ")
) are “self-executing,” meaning domestic courts can enforce them directly.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn12art2 " See, e.g., Medellín, 552 U.S. at 505 n.2 ( “What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification.” ); Cook v. United States, 288 U.S. 102, 119 (1933) ( “For in a strict sense the [t]reaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions.” ); Whitney v. Robertson, 124 U.S. 190, 194 (1888) ( “When the [treaty] stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect.” ). ")
Other treaty provisions are “non-self-executing” and occupy a more complex status in the U.S. legal system.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn13art2 " See, e.g., Medellín, 552 U.S. at 516 ( “The point of a non-self-executing treaty is that it ‘addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.’” ) (quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 254 (1829), overruled on other grounds by United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833)). ")
Non-self-executing treaty provisions are not directly enforceable in U.S. courts, and Congress generally must pass legislation implementing the provision in a domestic statute to make it judicially enforceable.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/self-executing-and-non-self-executing-treaties#fn14art2 " See Medellín, 552 U.S. at 525–26 ( “The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.” ); id. at 526 ( “[T]he terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto.” ). Apart from implementing legislation, compliance with non-self-executing treaty provisions may be achieved through other avenues, including by judicial enforcement of legislation that pre-dates the treaty or through other executive or administrative action outside the judicial system. See Restatement (Fourth) of Foreign Relat