Opinio Juris

It's not often that an NPR show features treaties, but last week, Ira Glass of This American Life, had a fascinating story about the US-Canada International Boundary Commission (listen to Act 1). In short, he recounts a fight between a Bush-appointed commissioner Dennis Schornack and the Justice Department over the application of a series of treaties between the United States and Canada establishing the US-Canada boundary line and empowering two commissioners (one appointed by each side) to operate as an International Boundary Commission (IBC) with the charge of overseeing and maintaining the boundary. The current controversy combines questions of treaty interpretation, international organizations law, and constitutional law. It started as a treaty interpretation problem. Article 4 of the 1925 Boundary Demarcation Treaty provides:

The Contracting Parties, in order to provide for the maintenance of an effective boundary line between the Dominion of Canada and the United States . . . hereby agree that the Commissioners appointed under the provisions of the Treaty of April 11, 1908, are hereby jointly empowered and directed: to inspect the various sections of the boundary line . . . at such times as they shall deem necessary; to repair all damaged monuments and buoys; to relocate and rebuild monuments which have been destroyed; to keep the boundary vistas open . . . to maintain at all times an effective boundary line between the Dominion of Canada and the United States . . . as defined by the present Treaty and Treaties heretofore concluded, or hereafter to be concluded; and to determine the location of any point of the boundary line which may become necessary in the settlement of any question that may arise between the two Governments.

The Commission has evidently relied on the authority to "keep the boundary vistas open" in this treaty to maintain a 20 foot strip (ten feet on either side) free from any natural or man-made obstructions along the more than 5,000 mile boundary. For decades the two sides have stopped private property owners and others from building within the 20 foot strip to preserve this vista. And, until recently, no one had ever challenged their legal authority to do so. But when a Washington couple--Shirley-Ann and Herbert Leu--were asked by the IBC to stop building a small retaining wall less than 10 feet from the border, they sued the IBC in U.S. court and challenged its ability to interfere with their property rights. When the IBC's American Commissioner, Dennis Schornack, sought the assistance of DOJ (the State Department having told him that he represented an independent international organization that they could not help), he was surprised to learn DOJ sided with the property owners (the story never gets specific on why the Justice Department took this position; I'm assuming DOJ might argue that there's a 5th Amendement problem with maintaining the vista on private property and that under Reid v. Covert whatever the domestic legal status of U.S. treaties, they cannot contravene the Constitution). The Justice Deparment, moreover, informed Schornack that he was an agent of the Executive and could not take an independent position on the treaty's meaning, but had to adopt that of the Executive. Schornack refused, arguing that although appointed by President Bush, the treaty made him into an "independent" commissioner of an international organization, one whom the President could neither fire nor control. The Administration proceeded to replace Schorack, a move recently upheld by the District Court for the Western District of Washington on the grounds that the President's removal power was not limited by any of the US-Canada treaties setting up the IBC.

The story appears to have been put together pre-Medellin, and so I listened to it wondering what the effect of that decision would be on the domestic enforceability of the various boundary treaties, including U.S. authority to maintain the vista. For starters, I'm assuming that the Court would find the treaty text itself does not establish that it is self-executing, particularly where Canada follows the British practice of having no self-executing treaties (and, indeed, unlike the United States, Canada actually passed a law to implement the boundary, the IBC and its work). I haven't looked at the treaties' legislative histories, but given their dates of 1908 and 1925, I'd be very surprised if there's any affirmative indication by the Executive or the Senate that these treaties were intended to be self-executing. And, if that's true, under the logic of Medellin, we'd have to say the boundary treaties are not self-executing. And, if they're not self-executing, according to the Court, it appears that they are not federal law. So far so good for DOJ in reinforcing its view that authority to maintain a vista can't deprive private property owners of their right to build on their property. But, if it's true that the boundary provisions are not federal law, then what's the legal authority for enforcing the boundary line at all? Is there some statute out there that authorizes the Executive Branch to maintain the boundary line where it is and keep folks from crossing it, moving it, or building much larger obstructions than a 3 foot retaining wall? If not, could Medellin have the unintended consequence of wiping out our border with Canada until Congress legislates it?

Now, I'd assume that the courts would not go so far, even if that's the direction Medellin clearly points. For example, I'd expect that, unlike the enforcement of ICJ decisions, one could find Congress has acquiesced in the U.S.-Canada boundary. My point though is that even as Medellin clarified the long-debated doctrinal questions of what it means for a treaty to be non-self-executing, and when to find a treaty qualifies as such, it has opened up whole new areas of confusion over the current domestic legal status of treaties that were otherwise silent on the self-executing question. I'd be interested to know if any of our readers have views on this case, or other instances, where you think Medellin may curtail the domestic legal status of U.S. treaties in unanticipated ways.