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A distinction has become entrenched in United States law between treaties that are "self-executing" and those that are not. The precise nature of this distinction--indeed, its very existence--is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the "most confounding" in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson's observation that " [t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion" surrounding it. The continuing, and remarkably candid, judicial confusion over this issue will, in the hopes of the author, excuse yet another attempt to bring some coherence to the doctrine. In this article, he argues that much of the doctrinal disarray and judicial confusion is attributable to the failure of courts and commentators to recognize that for some time four distinct "doctrines" of self-executing treaties have been masquerading as one. With a view to furthering the development of doctrine in conformity with constitutional allocations of power, the author identifies these four "doctrines," as reflected in the self-execution decisions of the Supreme Court and the lower federal courts, and he examines the very different types of analysis that they call for.

At a general level, a self-executing treaty may be defined as a treaty that may be enforced in the courts without prior legislation by Congress, and a non-self-executing treaty, conversely, as a treaty that may not be enforced in the courts without prior legislative "implementation."' This definition helps us understand the domestic allocation-of-powers function of the distinction: it allocates between the judiciary and the legislature the responsibility for enforcing compliance with treaties by everyone else (private individuals, state and federal executive officials, state legislatures). But the doctrine allocates this responsibility only provisionally. Because of the last-in-time rule, under which a statute is to be enforced by the courts even if it conflicts with an earlier treaty, the legislature ultimately has the power to control the judiciary's role in enforcing even self-executing treaties. The doctrine of self-executing treaties thus serves to distinguish those treaties that require an act of the legislature to authorize judicial enforcement from those that require an act of the legislature to remove or modify the courts' enforcement power (and duty).

Publication Citation

89 Am. J. Int'l L. 695-723 (1995)