In the operation to abduct Nicolás Maduro, the Trump administration reportedly relied on a highly controversial 1989 legal memorandum claiming the President does not need to abide by the U.N. Charter as a matter of domestic law. Over the decades, the opinion generated sharp criticisms, including from Congress, and the Justice Department conspicuously avoided following its conclusions when presenting the administration’s position in courts.
The Department of Justice’s Office of Legal Counsel opinion, Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, was signed by then-Assistant Attorney General Bill Barr.
Among other things, the Barr memo concluded that the President could, as a domestic law matter, order actions in contravention of the UN Charter’s prohibition on the use of force, such as a forcible abduction of a foreign national in another country. The memorandum ran 22-pages long concerning, most of which entailed statutory interpretation of FBI authorities and the domestic status of customary international law. The explanation for its claim about the UN Charter and treaty law covered only four brief paragraphs. The analysis boiled down to a (flawed) assertion that Article 2(4) of the UN Charter is “non-self-executing” for courts to enforce and thus not domestic law binding on the Executive.
As explained at length below, the four-paragraph analysis reached a radical conclusion that cannot withstand serious scrutiny.
[Two notes before proceeding: (1) A violation of the Charter would still be unlawful as an international law matter, and no one contends otherwise. (2) I am not aware of any instance in which the Barr memo has been implemented by an administration to excuse a violation of the UN Charter; instead the four paragraphs have remained around like a loaded gun.]
I. The fallacy of equating treaty provisions that are “non-self executing” (in the sense of being enforceable in court) with treaty provisions that are not legally binding on the Executive
The most basic flaw in the Barr memo is its conflation of two types of treaty provisions:
Category A: A treaty provision that is “non-self-executing” in the sense that it has not “become a rule for the Court” to enforce in the absence of implementing legislation (Barr Memo quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.); and
Category B: A treaty provision that is “not legally binding on the political branches.”
The two categories are analytically and practically distinct. There are many federal laws that do not provide for any private cause of action and cannot be enforced in court, but are nevertheless legally binding on the Executive. See The Restatement (Fourth) of Foreign Relations Law § 310 Reporter’s note 12 (2018) (“A treaty’s lack of judicial enforceability is not inconsistent with a status of ‘Law of the Land’ under the Supremacy Clause. Constitutional and statutory provisions—also ‘supreme Law of the Land’—can also be non-self-executing in this sense.”).
Without any explanation, the Barr memo contends that Category A is the same as, or leads to, Category B (“A, therefore, B”). That is a fundamental error. The Restatement (Fourth) of Foreign Relations Law § 310 Reporter’s note 12 (“[T]here is no clear reason at present to conclude that non-self-executing provisions are, as a general matter, less than supreme law.”) Consider the basic distinction described by a range of experts:
Whether a treaty is self-executing or not, it is legally binding on the United States. Whether it is self-executing or not, it is supreme law of the land. If it is not self-executing, Marshall said, it is not ‘a rule for the Court’; he did not suggest that it is not law for the President or for Congress.
– Louis Henkin, Foreign Affairs and the United States Constitution 203 (2d ed. 1996)
My approach, by contrast, would distinguish between judicially enforceable treaty commitments and those that are not, while treating all of them as the supreme law of the land. Among other things, I believe my approach is easier to reconcile with the text of the Supremacy Clause, which states that “all” treaties ratified by the United States shall be the supreme law of the land (and here Professor Vásquez and I are in agreement).
– Curtis A. Bradley, Self-Execution and Treaty Duality, 2008 Supreme Court Review 131-182 (2008)
Of course, all three treaties at issue (including Article 94 of the UN Charter) are “federal law,” because all treaties are “federal law.” That wasn’t the question before the [Medellin] Court. The question was whether the treaties were “self-executing,” by which the Court meant judicially enforceable in U.S. courts. …
Just like statutes can constitute “federal law” and, by their terms, not be judicially enforceable, so too can treaties.
– Then-Solicitor General for the State of Texas Ted Cruz (who argued Medellin v. Texas), in Federalist Society Online Debate, Medellin v. Texas, Part I: Self-Execution, 2008.
To say that a treaty is not yet ripe for an individual to enforce in court does not necessarily mean that it requires legislation before the President must heed it. Treating the two as coterminous has its appeal, but it is inconsistent with the view of many in the Founding Era that treaties were binding under the U.S. Constitution, including (seemingly) for the President, irrespective of whether those treaties might be enforced by individuals in court. Moreover, the oft-repeated rationalization for non-self-executing treaties – that they are not cognizable in the courts because they are first addressed to the political branches – may be perfectly consistent with vesting authority for their enforcement in the President.
– Edward Swaine, Taking Care of Treaties, 108 Columbia Law Review 331, 355 (2008) (emphasis in original)
A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without implementing legislation. Non-self-executing does not mean non-binding as law, nor could it. The Supremacy Clause is clear: “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made … shall be the supreme law of the land.” The President would never suggest, for example, that because Bivens actions are not available to enforce some violations of the Constitution against the federal government – that the Constitution itself is not binding on the President. Quite the contrary, the President is legally bound by his obligations under the Constitution, and under “all treaties made,” no matter what subsequent enforcement mechanisms may be available.
– Deborah Pearlstein, Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land, Opinio Juris (2015)
With this well-settled understanding, Marty Lederman wrote about the Barr memo in 2015:
Quite frankly, this was a non-sequitur in 1989, and it remains so. The fact that a court cannot enforce a treaty provision without further legislative action — because the President and the Senate (arguably) determined that it would be “non-self-executing” in that sense — does not say anything about whether the provision imposes a binding norm under domestic law for executive conduct. That is to say (and to invoke the seminal Court case on this subject), the fact that Congress “must execute the [treaty provision] before it can become a rule for the Court,” Foster v. Neilson (Marshall, C.J.), does not mean that Congress must pass a law to implement the treaty provision before it can become a rule for the Executive. The two are distinct questions, and they don’t necessarily share the same answers.
…
Article 2(4) of the U.N. Charter plainly does impose a prohibition that was designed, and expected, to be binding on the Executive even if not judicially enforceable. Indeed, it’s a fairly preposterous notion, I think, to suggest that when the U.S. ratified the Charter, President Truman and the 1949 Senate would have seriously entertained the notion — let alone intended — that Article 2(4) would not be binding on the President as a matter of U.S. law.
[Aside: The Barr memo also claims that the President “has the authority to order such actions in contravention of the Charter,” but it is unclear why this would be restricted to the President if the treaty provision is, as a result of being “unexecuted” in domestic legislation, not binding on the political branches at all. The claim is equally erroneous as to other Executive branch officials.]
II. The domestic legal status of Article 2(4) of the U.N. Charter
The Barr memo properly accepts that the question is not whether a treaty as a whole is self-executing, and instead “the question should be whether individual provisions of the treaty are self-executing” (fn. 28).
However, the memo overlooks the strongest arguments for Article 2(4) of the U.N. Charter satisfying the test of self-executing in the sense of binding domestic law. There is no reason to think the U.S. treatymakers (the Senate and President) or the framers of the U.N. Charter thought this provision would provide a private cause of action. But there is every reason to believe they considered the provision automatically binding on the United States and on the political branches. (And they understood other provisions of the Charter would not be self-executing or binding domestic law in any sense of the word.)
A) Applying the Barr Memo’s own sources of authority
For the proposition that Article 2(4) is not self-executing the memo cites just two court cases. Neither case directly supports the memo’s assessment of Article 2(4), and one of the cases strongly undercuts it.
The first case simply noted that the provisions of the Charter involving the Trusteeship Agreement for the Trust Territory of the Pacific Islands is “not self-executing and do not vest any of the plaintiffs with individual legal rights which they may assert in this Court.” That is unremarkable.
The second case – Sei Fujii v. State of California – is an influential judgment in which the court correctly held that human rights provisions of the Charter are not-self executing. That’s because the member States only “obligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights [and] it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives.” In other words, the provisions are “framed as a promise of future action” and “lack the mandatory quality and definiteness,” explained the well-reasoned court opinion. (More on such provisions when I discuss Medellin v. Texas below.)
Importantly, the Sei Fujii court also explained that other provisions of the Charter do meet the criteria for self-execution as binding domestic law. At the outset, the court noted, “It is not disputed that the charter is a treaty, and our federal Constitution provides that treaties made under the authority of the United States are part of the supreme law of the land and that the judges in every state are bound thereby.” The court then turned to the relevant criteria for self-executing and automatically binding provisions and identified examples of Charter provisions that satisfied the test.
“When the framers of the charter intended to make certain provisions effective without the aid of implementing legislation they employed language which is clear and definite and manifests that intention,” the court wrote. The court cited, as examples, provisions with mandatory language and specific obligations (e.g., “Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization”).
Importantly, those provisions are similar in structure to Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State ….” Indeed, Article 2(4) is even clearer in its mandatory and prohibitory language.
What’s more, the sources of authority relied on by Sei Fujii also support the conclusion that Article 2(4) is domestic law binding on the Executive. As evidence that a provision of the Charter is not self-executing, Sei Fujii relied on the description given in Secretary of State Edward R. Stettinius, Chairman of the United States Delegation at the San Francisco Conference, Letter to President Truman (June 26, 1945). The Stettinius Letter, which also featured prominently in the Senate hearings on ratification of the Charter, informed President Truman that article 54 of the Charter “pledges the various countries to cooperate with the organization by joint and separate action in the achievement of the economic and social objectives of the organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes.” The Sei Fujii court well understood that description of a loose commitment to mean the provision was not-self-executing. In sharp contrast, the Stettinius Letter informed Truman that Article 2(4) is part of the Charter provisions that “are binding on the Members” (p. 55) and that “Members accept as binding” (p. 37) “The standards of conduct of this country permit us to assume this obligation with no hesitation,” the Stettinius Letter stated (p. 56).
Sei Fujii also relied on Hans Kelsen, The Law of the United Nations (1950) to assess whether a provision was automatically binding. Accordingly, it is notable that Kelsen identified Article 2(4) as one of the two provisions that “constitute the main obligations of the Members” (p. 90).
The Sei Fujii court was clear that other provisions of the Charter could be self-executing. The court cited other cases which issued such holdings: Curran v. City of New York, 77 N.Y.S.2d 206, 212 (N.Y. Sup. Ct. 1947) (“That these provisions [Articles 104 and 105], in a Treaty made under the Authority of the United States, are the law of the land, needs no argument.”) and Balfour, Guthrie & Co. v. United States, 90 F.Supp. 831 (N.D. Cal. 1950) (in discussing Article 104 of the Charter, stating, “As a treaty ratified by the United States, the Charter is part of the supreme law of the land. No implemental[sic] legislation would appear to be necessary to endow the United Nations with legal capacity in the United States.”). (See also Office of the US Attorney for the Southern District of New York letter to Judge Shlomo S. Hagler in All Craft Fabricators, Inc. v. ATC Associates Inc. (2015), relying on Curran v. City of New York and subsequent case law for the claim that courts should respect and enforce some UN treaty obligations.)
In short, the Barr memo cited no real authority for its determination of the status of Article 2(4); and the authority it did cite strongly helps prove the opposite. That case law invoked by the memo relied on criteria and sources of authority that would clearly support the understanding that Article 2(4) of the UN Charter is domestic law binding on the Executive.
B) Other sources of authority
On the core question – whether Article 2(4) of the U.N. Charter is binding domestic law and thus triggers the President’s duty to “take Care that the Laws be faithfully executed” – the Barr memo overlooked obvious and important sources of authority.
The most sustained and authoritative assessment of the “Take Care” Clause as it relates to Article 2(4) of the U.N. Charter is Brian Finucane, Presidential War Powers, The Take Care, and Article 2(4) of the U.N. Charter, 105 Cornell Law Review 1809 (2020). I commend especially Finucane’s examination of the drafting history of the Charter and the Senate’s advice and consent to the treaty at pp. 1840-45. As Finucane explains, “Those involved in the drafting and ratification of the U.N. Charter who considered the matter took the position that the Charter would be a ‘Law’ within the meaning of the Take Care Clause.”
I also commend Finucane’s account of the Truman administration’s invocation of the Charter and the Take Care Clause in justifying the U.S. approach to the Korean conflict, pp. 1845-47 (discussing administration’s 1951 memorandum, Powers of the President to Send the Amred Forces Outside of the United States, submitted to the Senate Foreign Relations Committee and Authority of the President to Repel the Attack in Korea, 23 Department of State Bulletin 173 (1950).
Needless to say, a credible OLC opinion on a legal question of such import would have, at a minimum, grappled with these same sources and past presidential actions.
III. Contrary subsequent DOJ practice
The Justice Department has not taken the position of the Barr memo in court. Instead, the DOJ has supported the standard distinction we describe – that a treaty provision (a) may not be self-executing in the sense that individuals have a right to enforce it in court, but (b) may nevertheless be the “law of the land” under the Supremacy Clause and the Take Care Clause.
Indeed, the DOJ under President George H.W. Bush adopted the standard view soon after the Barr memo in an indirectly related matter. Barr produced his memo in advance of the U.S. extraterritorial apprehension of Panama’s leader, Gen. Manuel Noriega. Following his imprisonment in the Southern District of Florida, Noriega asserted in federal court that he was entitled to POW protections while in detention. The court noted: ”The government acknowledges that Geneva III is ‘the law of the land,’ but questions whether that law is binding and enforceable in U.S. courts” (emphasis added).
(Aside: the court held that Noriega was a POW under Geneva Convention III and “entitled to the full range of rights under the treaty, which has been incorporated into U.S. law.”)
The DOJ adopted a similar stance in a case involving a crossborder abduction that occurred several months after the Barr memo. When the case, United States v. Alvarez-Machain, reached the Supreme Court, the DOJ stated in its brief:
“It is well established that the international charters that deal with the use of force within the borders of other nations do not create rights enforceable by private individuals in court.”
“[T]he Constitution provides that ‘[t]his Constitution, and the Laws of the United States … and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.’ Art. VI, Cl. 2. As a matter of domestic enforceability, however, it has long been recognized that treaties may be ‘executory’ in the sense that they do not give rise to legal rights without implementing legislation.”
Notably, when asked by Justice David Souter about these passages in the brief during oral argument, Solicitor General Kenneth Starr explained: “In terms of whether there was a violation or not of the U.N. charter and the like, I think the law is clear, Justice Souter, that that does not give rise to privately enforceable rights. … We are held to account to the Congress of the United States, which knows how to legislate.”
The DOJ under George W. Bush took a similar approach before the Supreme Court in Medellin v. Texas. The Department recognized that a treaty may not provide a private right of action, but could still operate as law of the land for the purposes of presidential enforcement (see #6 pp. 40-42 of Sept 2005 Brief discussing the Vienna Convention on Consular Relations). The DOJ also argued that the ratification of the U.N. Charter, in conjunction with the President’s Article II powers, made the presidential enforcement of an ICJ decision “the supreme Law of the Land” (pp. 23-24; see also p. 6 of June 2007 Brief (“The Supremacy Clause makes the national government’s action binding on the States when it acts under a valid treaty.”)).
(Aside: The Supreme Court rejected the latter view with respect to enforcement of ICJ decisions in U.S. domestic courts. More on the Medellin opinion below.)
In sum, the DOJ before federal courts has accepted that an “unexecuted treaty” (or more specifically, a non-self-executing treaty provision) can still be binding as a matter of domestic law, in contradiction of the Barr memo.
IV. Contrary congressional intent (especially including Senate Foreign Relations Committee)
The Barr memo’s assessment of Article 2(4) was so deeply counterintuitive and indefensible that it might explain why he and the DOJ tried to keep it from Congress. When news of the existence of the memo first leaked, Congress asked Barr to provide the opinion (DOJ refused, even after a subpoena) and for Barr to testify (he did so in November 1989). As I wrote at length about the episode in an essay several years ago, Barr agreed to provide Congress a public account that “summarizes the principal conclusions” of the opinion. His 13-page summary, however, omitted reference to the section involving the UN Charter and non-self-executing treaties.
In the course of trying to pry loose the OLC opinion, the House Judiciary Committee subcommittee on civil and constitutional rights held three hearings. Not knowing the opinion’s analysis of the UN Charter, Chairman of the committee Don Edwards remarked in his opening comments at a hearing on July 22, 1992:
Well, this story of a legal opinion was very upsetting to the sub- committee. The Constitution is very clear that laws passed by the Congress and signed by the President and treaties properly executed are the supreme law of the land, and so naturally we wanted to take a look at the legal opinion.
In more recent years, the conclusions in the Barr memo have been squarely rejected by the Senate Foreign Relations Committee. In 2008, the committee wrote:
The committee believes it is of great importance that the United States complies with the treaty obligations it undertakes. In accordance with the Constitution, all treaties — whether self-executing or not —are the supreme law of the land, and the President shall take care that they be faithfully executed.
The statement by the Senate Foreign Relations Committee deserves special emphasis. As Marty Lederman wrote in 2015: “If you are someone who–in contrast to the Senate Foreign Relations Committee–insists upon using the term ‘non-self-executing’ to refer to a treaty provision that is not domestic law unless Congress has enacted implementing legislation, well, in that case . . . Article 2(4) is not non-self-executing (that is to say, it is self-executing), given your use of those terms.”
On Jan. 7, 2025, the Senate Foreign Relations Committee Chairman Sen. Richard Durbin (D-IL) wrote a letter to the Attorney General calling for withdrawal of the Barr opinion. Durbin wrote:
The opinion concluded, inter alia, that the President could unilaterally “override” the U.N. Charter’s prohibition on the use of force. … This legal conclusion is inconsistent with the President’s obligation “to take Care that the Law be faithfully executed” as treaties such as the U.N. Charter are “laws” for the purposes of the Take Care Clause. The Senate has repeatedly reaffirmed its view on this point, including with respect to non-self-executing treaties.
V. A Note about Medellin v. Texas
Regrettably, dicta in the Supreme Court’s decision in Medellín v. Texas appeared to suggest that non-self-executing treaties, “are not domestic law unless Congress has … enacted implementing statutes” (emphasis added). Many pages have been spent trying to discern what that dicta meant.
First, I agree with the eminent experts involved in the Restatement of Foreign Relations Law. Medellin was focused on domestic law in terms of enforceability in court, and there is no reason to conclude it unsettled the standard view that lack of judicial enforcement has no bearing on status of a treaty provision under the Supremacy Clause. The Restatement explains:
“The failure of Medellín to speak clearly and comprehensively to the domestic legal status of non-self-executing treaty provisions was understandable, insofar as the Court was focused in that case only on whether the relevant treaty provisions were judicially enforceable. Likewise, other courts have focused on the issue of judicial enforceability rather than supremacy. … . [T]here is no clear reason at present to conclude that non-self-executing provisions are, as a general matter, less than supreme law.”
– The Restatement (Fourth) of Foreign Relations Law § 310 Reporter’s note 12 (2018)
As indicated above, Ted Cruz who argued the Medellin case as Texas’s Solicitor General took the same view as the Restatement on the Court’s opinion. He explained:
Of course, all three treaties at issue (including Article 94 of the UN Charter) are “federal law,” because all treaties are “federal law.” That wasn’t the question before the [Medellin] Court. The question was whether the treaties were “self-executing,” by which the Court meant judicially enforceable in U.S. courts. …
Just like statutes can constitute “federal law” and, by their terms, not be judicially enforceable, so too can treaties.
– Federalist Society Online Debate, Medellin v. Texas, Part I: Self-Execution, 2008.
See also Curtis A. Bradley, Intent, Presumptions, and Non-Self-Executing Treaties, 102 American Journal of International Law 540, 550 (2008) (“The Court makes clear there that the president is not precluded from taking actions to enforce a non-self-executing treaty, and that its decision only disallows the president from ‘unilaterally making the treaty binding on domestic courts.’ This statement is consistent with the approach to non-self-execution taken in Foster, where the Court stated that a non-self-executing treaty must be implemented by legislation ‘before it can become a rule for the Court.’ Under this approach, a non-self-executing treaty is supreme law of the land but does not create a rule of decision for U.S. court.”); Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harvard Law Review 599, 650 (2009) (agreeing essentially with Bradley’s description).
Second, the framework used by Medellin to assess whether U.N. Charter Article 94(1) is “non-self-executing” aligns with the framework articulated in Sei Fujii, discussed above. Accordingly, there’s every reason to think a faithful application of that framework would deem Article 2(4) of the U.N. Charter self-executing in the sense of domestic law binding on the Executive.
The Medellin Court emphasized that Article 94(1) “does not provide that the United States ‘’shall’’ or ‘must’’ comply with an ICJ decision.” In sharp contrast, those are the kinds of terms that Article 2(4) does provide.
Article 94(1): ‘‘Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”
Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
Indeed, Article 2 of the U.N. Charter uses a double “shall.” The heading provides that Member states “shall act in accordance with” Article 2(4).
The Medellin Court also stated that Article 94(1) does not “indicate that the Senate that ratified the U.N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, the words of Article 94 call upon governments to take certain action.” In contrast, all the evidence demonstrates that the Senate that ratified the U.N. Charter intended for Article 2(4) to have immediate legal effect and that it categorically mandated governments to refrain from certain actions (rather than the loose diplomatic language of calling on governments to do so). As discussed above, the Secretary of State Stettinius’s Letter to President Truman, which featured prominently in the Senate Foreign Relations Committee ratification discussions, stated: Article 2(4) is part of the Charter provisions that “are binding on the Members” (p. 55); it is a class of Charter provisions that “Members accept as binding” (p. 37); and “[t]he standards of conduct of this country permit us to assume this obligation with no hesitation” (p. 56). As Hans Kelsen explained, in 1950, Article 2(4) was one of the two provisions that “constitute the main obligations of the Members” (p. 90). See also the discussion above of Finucane’s historical work showing the treatymakers considered the Charter provisions on the use of force would be “Law” of the United States and binding on the Executive under the Supremacy Clause and Take Care Clause.
* * *
The 1989 OLC Memo was fundamentally flawed from the start, but its weaknesses have only been better understood over time. Former government attorneys have expressed the “preposterous” nature of the OLC analysis during Democratic and Republican administrations. This is no partisan issue, but one of concern to the separation-of-powers and the rule of law on matters of war and peace.
FEATURED IMAGE: TOPSHOT – Fire at Fuerte Tiuna, Venezuela’s largest military complex, is seen from a distance after a series of explosions in Caracas on January 3, 2026. The United States military was behind a series of strikes against the Venezuelan capital Caracas on Saturday, US media reported. The White House and Pentagon have not commented on the explosions and reports of aircraft over the city. US media outlets CBS News and Fox News reported unnamed Trump administration officials confirming that US forces were involved. (Photo by AFP via Getty Images)
Great Job Ryan Goodman & the Team @ Just Security Source link for sharing this story.
