Us Federal Courts: Foreign Law Jurisdiction?

The role of foreign law in US federal courts is complex and often involves the interpretation of foreign treaties. Federal courts have long recognised that the executive branch, namely the President and Congress, are responsible for making and executing foreign policy decisions. However, the application of these treaties in domestic law can present challenges, particularly when conflicts arise between treaty provisions and federal or state statutes. This has led to a presumption against private enforcement of treaties, with courts deferring to Congress to resolve such conflicts.

Treaty-statute conflict

The role of foreign treaties in US domestic law is complex, and federal courts have always recognised that the president and Congress are responsible for making and carrying out American foreign policy. However, there are several instances where treaty-statute conflicts have arisen, and these have been adjudicated by federal courts.

In the 1970s and 1980s, several US courts of appeals began to apply a presumption against the private enforcement of treaties, using analogies to Supreme Court decisions regarding implied rights of action under federal statutes. The Restatement (3rd) of the Foreign Relations Law of the United States (1986) noted a decline in private enforcement, commenting that:

> "International agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts."

The Supreme Court quoted this statement in its 2008 Medellin opinion, and although the statement was dicta, it has been widely cited by lower courts. This has made it more difficult for private plaintiffs to bring federal-court lawsuits to enforce treaty-based rights.

In cases of treaty-statute conflict, courts have ruled that treaty provisions supersede inconsistent state laws governing the right of aliens to inherit real estate. For example, in Hauenstein v. Lynham, the Court upheld the right of a Swiss citizen, under the 1850 treaty with Switzerland, to recover the estate of a relative who died intestate in Virginia, sell the property, and export the proceeds.

In another example, an 1880 treaty permitted the United States to restrict the entry of Chinese labourers while providing that those already in the US could come and go as they pleased. However, an 1882 statute prohibited Chinese labourers from entering the country for ten years but allowed those already present to obtain "return certificates" to prove their right to re-enter. In 1884, Congress tightened the law by declaring that a return certificate was the only permissible evidence of a labourer's right of re-entry. The resulting conflict between the 1880 treaty and the 1882 statute was adjudicated in Chew Heong v. United States (1884), which involved a Chinese labourer who had left the US after the treaty took effect but before return certificates became available.

Private enforcement of treaties

The role of foreign treaties in domestic law is complex, and treaty cases in US federal courts often boil down to the question of whether a private party can sue in federal court to enforce a right allegedly created by a treaty.

US courts answer the following three questions in matters regarding international agreements:

• Was the treaty made and implemented with proper authorization, acting within the constitutional boundaries of Congress or the Federal government?
• What construction and interpretation should be used to scrutinize the texts of the international treaty?
• When do private treaties confer a private right of action?

The first question is a perpetual issue, with the public and legal scholars awaiting the Supreme Court to reveal whether a new interpretive regime that replaces the Major Questions Doctrine or the recently overturned Chevron Doctrine will be established. The second question has never been a concrete one, as the courts have seldom held an interpretation rule, instead applying numerous factors when interpreting a treaty. The third question is the sole matter where the Supreme Court has set a prominent precedent that is being applied to almost all cases regarding private treaties.

The Supreme Court has rarely provided a definition of what constitutes a treaty, instead drawing inspiration from sources outside of the judiciary to support its descriptions. The Vienna Convention on the Laws of Treaties of 1969, for example, defines a treaty as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".

In the period following World War II, the Supreme Court and the lower federal courts adopted a more inconsistent approach to the enforcement of treaties in US courts. The Supreme Court continued to enforce treaties affecting commercial relations and those addressing transnational litigation. However, when it came to new treaties dealing with public international law, such as the International Covenant on Civil and Political Rights (ICCPR), or an extradition treaty with human rights implications, the Court was more hesitant to declare that the treaty provided a private right of action.

In 2008, the judicial trend culminated in Medellin v. Texas, when the Supreme Court proposed in the dicta that: "Even when treaties are self-executing in the sense that they create federal law, the background presumption is that international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts". Despite this statement appearing in dicta, Medellin heavily influenced the future decisions of treaties in federal courts. Currently, any international treaty is presumed to provide no private right of action, regardless of whether it is a private or non-private treaty.

Self-executing treaties

The distinction between self-executing and non-self-executing treaties first emerged in the early 19th century in the United States, where it has thoroughly confounded the courts. A self-executing treaty is one that may be directly applied in the courts, whereas a non-self-executing treaty is one that requires legislative implementation before it may be applied by the courts and other domestic law-applying officials.

The question of whether a treaty provision is self-executing is a complex one, and federal courts have always recognised that the president and Congress are responsible for making and carrying out American foreign policy. The Supreme Court has noted that "international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts".

The determination of whether a treaty is self-executing or not has been considered a matter of domestic law by most scholars in the United States. However, non-US scholars have taken the position that it is a matter of international law. This view is supported by the fact that under the constitutional law of some states, treaties may not be enforced by courts without implementing legislation, yet US courts have found treaties with such states to be self-executing.

The ruling in Cameron Septic Tank is an example of a case where the Court deferred to Congress by declining to find a later-in-time treaty to supersede a statute. In this case, the Court reasoned that Congress believed the treaty to be non-self-executing because it had enacted legislation to effectuate some of its provisions.

Federal court lawsuits

Federal courts have consistently acknowledged that the executive branch of the US government, represented by the president and Congress, is responsible for formulating and executing American foreign policy, rather than the courts. This was demonstrated in the case of Cameron Septic Tank, where the Court deferred to Congress by declining to find a later-in-time treaty that would supersede a statute. In this case, the Court's ruling left it to Congress to decide whether to pass legislation to implement the provision in question and override the existing statute.

In the 1970s and 1980s, several US courts of appeals began to apply a presumption against private enforcement of treaties. This trend was noted in the Restatement (3d) of the Foreign Relations Law of the United States (1986), which commented that "international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts." This position was further supported by the Supreme Court's 2008 Medellin opinion, which has been widely cited by lower courts, despite being characterised as a "background presumption".

An example of a federal court case influenced by a foreign treaty is Chew Heong v. United States (1884). This case involved a conflict between an 1880 treaty, which permitted the United States to restrict the entry of Chinese labourers while allowing those already in the country to come and go freely, and an 1882 statute that prohibited Chinese labourers from entering the country for ten years. The statute specified that labourers already in the US could obtain "return certificates" to prove their right to re-enter the country if they departed. The outcome of this case was influenced by the treaty provision, which was found to be self-executing and directly enforceable in court, without the need for additional legislation from Congress.

Foreign policy

The ability of federal courts in the United States to decide issues involving foreign law is a complex and nuanced topic that has significant implications for international relations and the country's foreign policy approach.

When it comes to foreign policy, the US federal courts play a crucial role in interpreting and applying international law, as well as resolving disputes that arise from international agreements and treaties to which the US is a signatory. The courts' decisions can have far-reaching consequences for the country's relationships with other nations and can shape the executive branch's foreign policy decisions.

One key aspect is the interpretation of treaties and international agreements. Federal courts are often called upon to interpret the terms of these agreements and determine their applicability in specific cases, especially when there are disputes between parties from different countries. For example, the US Supreme Court has, on occasion, interpreted treaties and executive agreements, including those relating to foreign commerce and the extradition of criminals. These interpretations can have a significant impact on foreign policy, as they shape the expectations and obligations of the US and other nations.

Additionally, federal courts can play a role in resolving disputes that arise under international law, such as those involving human rights abuses, international trade, or violations of international treaties. For instance, US federal courts have heard cases involving allegations of human rights abuses committed in foreign countries, often under the Alien Tort Statute, which allows non-US citizens to bring lawsuits in US courts for violations of international law. These cases can have significant foreign policy implications, particularly when they involve countries with which the US has sensitive relationships.

The decisions made by federal courts can influence the country's reputation and relationships abroad. For example, rulings that are perceived as favoring US interests over international obligations can lead to criticism and strain relationships with allies. On the other hand, rulings that uphold international norms and treaties can strengthen the country's credibility and promote cooperation with other nations.

In conclusion, while federal courts in the US have the authority to decide issues involving foreign law, their decisions are carefully considered to balance legal principles with the country's foreign policy objectives. The interpretation of treaties, resolution of international disputes, and the potential impact on relationships with other nations are all crucial factors that shape the approach and decisions of federal courts in these matters. Ultimately, the federal judiciary plays a vital role in shaping the country's foreign policy and its relations with the international community.

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