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«A Monist Supremacy Clause and a Dualistic Supreme Court: The Status of Treaty Law as U.S. Law D. A. Jeremy Telman Valparaiso University School of ...»

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Law Faculty Publications Law Faculty Presentations and Publications

A Monist Supremacy Clause and a Dualistic

Supreme Court: The Status of Treaty Law as U.S.


D. A. Jeremy Telman

Valparaiso University School of Law, jeremy.telman@valpo.edu

Follow this and additional works at: http://scholar.valpo.edu/law_fac_pubs

Part of the Constitutional Law Commons, and the International Law Commons Recommended Citation Telman, D. A. Jeremy, A Monist Supremacy Clause and a Dualistic Supreme Court: The Status of Treaty Law as U.S. Law. Basic Concepts of Public International Law: Monism and Dualism (Marko Novakovic ed.), 2013; Valparaiso University Legal Studies Research Paper No. 13-6. Available at SSRN:http://ssrn.com/abstract=2265880 This Article is brought to you for free and open access by the Law Faculty Presentations and Publications at ValpoScholar. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu.



MAY 2013 (Draft) A Monist Supremacy Clause and a Dualistic Supreme Court: The Status of Treaty Law as U.S. Law forthcoming, BASIC CONCEPTS OF PUBLIC INTERNATIONAL LAW: MONISM AND DUALISM (Marko Novakovic ed.) D. A. Jeremy Telman This article can be downloaded from http://ssrn.com/abstract=2265880




* D. A. Jeremy Telman Abstract Hans Kelsen identified three possible relationships between the international and domestic legal orders. Dualism understands the international and domestic legal orders as separate and independent. Monism describes a single and comprehensive legal order but can operate with either domestic law or international law as a higher order law. Like many domestic legal orders, that of the United States has never fully worked out which of these three options specifies the status of international law in its domestic legal order. While the text of the United States Constitution suggests a form of monism in which international law is automatically part of the domestic legal order, the structure of the Constitution does not permit such automatic incorporation. In a 2008 decision, the U.S. Supreme Court articulated a theory that borders on dualism. The Court’s decision makes sense of some recent U.S. practice, but it cannot be reconciled with either the text or the structure of the U.S. Constitution. Moreover, as a consequence of the Supreme Court’s decision, the United States is in danger of re-enacting the de facto primacy of domestic law that the Constitution’s Framers sought to address by according constitutional supremacy to treaty law.




A. The Supremacy Clause and Monism

B. Structural Constitutional Elements Suggesting Dualism...........9

–  –  –



A. The Doctrine of Non-Self-Execution

B. The U.S. Supreme Court’s Decision in Medellín v. Texas......15 C. Continued Tension Between Constitutional Design and Constitutional Practice

1. The Revival of Federalism Concerns

2. Persistent Separation of Powers Concerns

3. Political Solutions



The status of international law in the domestic order varies dramatically from state to state.1 Hans Kelsen identified three basic theoretical possibilities that might describe the relationship between international and domestic law.2 Kelsen promoted what has come to be called “monism”; that is, the view that there is only one legal order of which international and domestic legal systems

comprise parts. Within monism, Kelsen entertained two options:

either international law or domestic law could be at the top of the hierarchy of legal norms.3 Kelsen associated the primacy of domestic law with the ideology of imperialism and that of international law with the ideology of pacifism. 4 Although Kelsen himself claimed not to prefer one form of monism over the other, Kelsen scholars have identified international supremacy as a hallmark of his theory of international law.5 Only a few states Two recent English-language volumes provide a comparative perspective on the problem of the domestic application of international law: See 44 VAL. U.

L. REV. 759–956 (2010); THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY (David Sloss ed., 2009) [hereinafter


HANS KELSEN, PURE THEORY OF LAW 328–47 (Max Knight trans., 2d ed., 1967).

Id. at 332–44.

Id. at 346–47.


HANS KELSEN: BELIEVING IN INTERNATIONAL LAW 93 (Thomas Dunlap trans., 2010) (describing the thesis of international primacy as the central project of a Kelsenian “school” of international law).

Monist Supremacy Clause 3 have fully embraced international law primacy by providing mechanisms to automatically incorporate international legal norms into the domestic legal order.6 In a dualist model, the international and domestic legal orders are independent of one another. Kelsen regarded such a relationship between the international and domestic legal orders to be “untenable,” because in his view that would produce a world in which behavior that would be permissible in one legal order would be impermissible in another.7 That is, there would be categories of conduct which, no matter what an actor chose to do, would put that actor in violation of some legal norm. This is not to say that Kelsen believed that domestic legal orders would always enforce international legal norms, but he was comfortable with the notion that legal norms could exist even if they were not enforced—or even if it took a long time for the proper authority to identify a violation and provide a remedy. A legislature may pass an unconstitutional statute, and that statute creates a legal norm until it is rendered ineffective by a court or a supervening legislative or executive act. Similarly, the fact that a state may adopt legal rules that are at odds with international legal norms is a temporary anomaly and does not, for Kelsen, give rise to a dualist system.8 Most domestic systems are complex hybrids rather than instantiations of one of the available theoretical options.9 The United Kingdom is often described as having a dualist system, because Parliament must approve domestic implementing legislation before treaties and rules of customary international law can be introduced in the domestic legal order. This model has been adopted in many of Britain’s former colonies, such as See ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 183–87 (2d ed., 2007) (discussing states with monist systems) (discussing variants on monism in five European states and Russia).

KELSEN, supra note 2, at 328, 329.

Id. at 330–31.

David Sloss, Treaty Enforcement in Domestic Courts: A Comparative


A COMPARATIVE STUDY (David Sloss ed., 2009).

4 [MAY 2013] Canada, Australia, India, and Israel as well.10 But the fact that there is a mechanism for domestic implementation of treaty norms does not necessarily suggest a dualist system, so long as there is an assumption that international norms will be incorporated into and recognized as binding within the domestic legal order.

At the time the U.S. Constitution was drafted, the Framers were well aware of the dangers of dualism. During the so-called “Critical Period,” between the successful Revolutionary War and the ratification of the Constitution, the ability of the national government to operate under the Articles of Confederation was stymied in significant part because the states did not consider themselves bound by the national government’s international agreements, including the Treaty of Paris that was intended to effect a comprehensive post-war settlement with England.11 But the United States system is neither monist nor dualist; rather, the U.S. Constitution and U.S. constitutional history suggest ambivalence about the status of international law as domestic law.

Part II of this Article begins with a discussion of the U.S.

constitutional design with respect to the incorporation of treaty obligations into the domestic legal order. Although the Framers of the U.S. Constitution clearly attempted to provide that treaties would have direct effect, with a status akin to that of acts of the national legislature, they did not come to terms with the difficulties such a monist design posed for the constitutional scheme, which envisioned both a federal system and a separation of executive and legislative powers. Part III then addresses the development of the Id. at 7.


43–45 (2007) (describing difficulties under the Articles of Confederation in enforcing both treaties and the law of Nations); David L. Sloss et al., International Law in the Supreme Court to 1860 7, 9–12, in INTERNATIONAL LAW IN THE U.S. SUPREME COURT: CONTINUITY AND CHANGE (David L. Sloss, et al. eds., 2011) (noting that under the Articles of Confederation, responsible treaty enforcement fell to the states, which often failed to comply with treaties);

Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV. L. REV. 559, 616–19 (2008) [hereinafter Vázquez, Treaties as Law] (citing discussions at the Constitutional Convention and the ratification debates).

Monist Supremacy Clause 5 doctrine of self-executing and non-self-executing treaties, culminating in the U.S. Supreme Court’s 2008 decision in Medellín v. Texas,12 in which the Court seems to have adopted a view on the status of treaty law that significantly diminishes its efficacy as domestic law. The Article concludes by contending that Medellín has left us with a rule on treaty law that cannot be reconciled either with the text or the structure of the U.S.

Constitution. It neither gives treaties the status they ought to have under the Supremacy Clause nor does it adequately protect the constitutional separation of powers because, according to Medellín, either the executive branch or the Senate can give domestic effect to an international agreement merely by stating an intention to do so. This bypasses the House of Representatives’ role in passing domestic legislation. In addition, the Medellín decision makes the United States a de facto dualist state and could potentially give rise to the very situation that Kelsen described as “untenable.” Conduct that is required under domestic law places the United States in violation of its international legal obligations.

The discussion here focuses on treaty law and will address only briefly the status of customary international law and international agreements other than treaties as part of the domestic legal order.

In short, for prudential reasons, U.S. courts determined during the first half of the twentieth century that international agreements that are not treaties have the same domestic legal status as treaties.13 The constitutional status of customary international law has become much more open to question in the past decade. Until recently, there was a scholarly consensus, now known as the “modern position,” that customary international law is binding federal law.14 That view has been challenged by a group of 552 U.S. 491 (2008).

United States v. Pink, 315 U.S. 203 (1942) (upholding assignment of property to the United States through executive agreement over objection grounded in New York state law); United States v. Belmont, 301 U.S. 324 (1937) (same). See generally RAMSEY, supra note 11, at 174–93 (focusing on courts’ treatment of sole executive agreements as preempting state law).

See Carlos M. Vázquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 NOTRE DAME L. REV. 1495, 1501 (2011) (defending the 6 [MAY 2013] revisionist scholars. In Erie v. Tompkins,15 the U.S. Supreme Court recognized that there is no general federal common law.

Revisionists argue that, following Erie, federal courts no longer have the power to recognize substantive rights that sound in customary international law.16 Faced with an opportunity to decide the issue in 2004, the Supreme Court refused to do so.17


Any discussion of the status of international law as U.S. law must begin with the Supremacy Clause, which states that all “Treaties made, or which shall be made, under the Authority of the United States, shall be supreme Law of the Land” and must be enforced notwithstanding any state law to the contrary.18 This constitutional provision, taken on its own, seems to suggest a monist constitutional design. Indeed, in his discussion of monism, Hans Kelsen provides a useful gloss on the purpose of constitutional provisions like the Supremacy Clause within a

monist system:

[The] primacy of international law is compatible with the fact that the constitution of a state contains a provision to the effect that general international law is valid as a part of national law. If we start from the validity of international law which does not require recognition by the state, then the mentioned constitutional provision does not mean modern position and characterizing it as the view that “customary international law binds State actors and thus preempts State law applicable to State officials and private parties”).

304 U.S. 64 (1938).

See Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV.

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