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The Four Doctrines of Self-Executing Treaties

Published online by Cambridge University Press:  27 February 2017

Carlos Manuel Vázquez
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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, I hope, excuse yet another attempt to bring some coherence to the doctrine. In this article, I argue 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, I identify these four “doctrines,” as reflected in the self-execution decisions of the Supreme Court and the lower federal courts, and I examine the very different types of analysis that they call for.

Type
Research Article
Information
American Journal of International Law , Volume 89 , Issue 4 , October 1995 , pp. 695 - 723
Copyright
Copyright © American Society of International Law 1995

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References

1 Jordan J. Paust, Self-Executing Treaties, 82 AJIL 760 (1988); Yuji Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 VA. J. INTL L. 627, 635 (1986).

2 See Carlos Manuel Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1117–23 (1992);John H.Jackson, United States, in THE EFFECT OF TREATIES IN DOMESTIC LAW 141, 148–49 (Francis G.Jacobs & Shelley Roberts eds., 1987).

3 United States v. Postal, 589 F.2d 862, 876 (5th Cir.), cert. denied, 444 U.S. 832 (1979); United States v. Noriega, 808 F.Supp. 791, 797 (S.D. Fla. 1992). The statement would be accurate even if the words “of treaties” were omitted.

4 In addition to the other articles cited herein, see those cited in Jackson, supra note 2, at 149 n.26.

5 Id. at 149.

6 This article addresses the distinction as it is drawn in United States law. Similar distinctions exist in international law, see Advisory Opinion No. 15, Jurisdiction of the Courts of Danzig, 1928 PCIJ (ser. B) No. 15 (Mar. 3), and in the laws of other nations and regional arrangements such as the European Union. The distinction has proved to be controversial and confusing in these contexts, too. See, e.g., Pierre Pescatore, The Doctrine of “Direct Effect”: An Infant Disease of Community Law, 8 EUR. L. REV. 155 (1983); Josephine Steiner, Direct Applicability in EEC Law—A Chameleon Concept, 98 LAWQ. REV. 229 (1982); J. A. Winter, Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law, 9 COMMON MKT. L. REV. 425 (1972).

7 See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring), cert, denied, 470 U.S. 1003 (1985); Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir. 1983); British Caledonian Airways v. Bond, 665 F.2d 1153, 1160 (D.C. Cir. 1981); Postal, 589 F.2d at 875; Diggs v. Richardson, 555 F.2d 848, 850–51 (D.C. Cir. 1976); Bartram v. Robertson, 15 F. 212, 213 (C.C.S.D.N.Y. 1883), aff’d, 122 U.S. 116 (1887); Noriega, 808 F.2d at 798; Thomas Buergenthal, Self-Executing and Non-Self-Executing Treaties in National and International Law, 235 RECUEIL DES COURS 303, 317 (1992 IV).

By “enforced in the courts,” I mean enforced in our domestic courts (whether state or federal) at the behest of individuals. Although treaties as a matter of international law are thought to confer rights only on states, domestic law regulates the legal relations of individuals vis-à-vis other individuals and government, and the purpose of our domestic courts has always been thought to be the vindication of the rights of individuals, not sovereigns. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (“The province of the court is, solely, to decide on the rights of individuals.”). Thus, if the purpose of the Supremacy Clause (insofar as treaties are concerned) was to make treaties enforceable in the courts, as I show below and in Vázquez, supra note 2, it was perforce to make them enforceable in court at the behest of individuals. It cannot be maintained that the Founders contemplated that treaties would be enforced in our courts only at the behest of sovereign states and their officials. (For a more extended discussion of these points, see generally Vázquez, supra note 2.) Hereinafter, any reference to the enforcement or enforceability of treaties in the courts refers to their enforcement or enforceability in our domestic courts (whether state or federal) at the behest of individuals.

The recognition that treaties are (at least sometimes) enforceable in our courts at the behest of individuals raises the question of which individuals may enforce them and when. I addressed these questions at some length in Vázquez, supra note 2, and I address them further in part V infra.

8 Whitney v. Robertson, 124 U.S. 190, 195 (1888); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620–21 (1870).

9 Although the last-in-time rule has been attacked as undesirable and as inconsistent with the Framers’ intent insofar as it permits Congress to abrogate a treaty for domestic-law purposes, see Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INTLL. 406, 425–26 (1989); Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071 (1985), the Supreme Court has adhered to it with notable consistency and shows no sign of rejecting it. But cf. Jordan J. Paust, Rediscovering the Relationship Between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom, 28 VA. J. INT’L L. 393 (1988). Because of its pedigree, and because the evidence that the rule is inconsistent with the Framers’ intent is inconclusive (there appear to have been varying views on the point among the Framers), I treat the last-in-time rule as a fixed point in my analysis. See Vázquez, supra note 2, at 1114 n.126.

10 The Supremacy Clause, U.S. CONST. Art. VI, cl. 2, provides as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

11 See J. G. STARKE, INTRODUCTION TO INTERNATIONAL LAW 81–82 (10th ed. 1989);J. G.Collier, Is International Law Really Part of the Law of England?, 38 INTX & COMP. L.Q. 924, 925–26 (1989) (citing The Parlement Beige, 4P.D. 129 (1879)).

12 The British rule was described in some detail by Justice Iredell in Ware v. Hylton, 3 U.S. (3 Dall.) 256, 274–75, rev’d on other grounds, 3 U.S. (3 Dall.) 199 (1796). (Justice Iredell’s decision on Circuit was reversed because a majority of the Court disagreed with Iredell’s narrow construction of the treaty. The other Justices did not take issue with Iredell’s discussion of the history or purpose of the Supremacy Clause. Justice Story cited Iredell’s discussion of this history with approval in 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 696 (1833).) Iredell described the British rule as follows:

[I]t is an invariable practice in that country, when the King makes any stipulation [in a treaty] of a legislative nature, that it is carried into effect by an act of Parliament. The Parliament is considered as bound, upon a principle of moral obligation, to preserve the public faith, pledged by the treaty, by passing such laws as its obligation requires; but until such laws are passed, the system of law, entided to actual obedience, remains de facto, as before.

3 U.S. (3 Dall.) at 274. Iredell gave the example of a treaty that purports to set a tariff at a given level. According to Iredell, such a treaty, despite its “self-executing” language, would not have been enforceable by British law-applying officials until implementing legislation was enacted by Parliament. Id. at 274–75. Insofar as Iredell suggested that no judges would have given effect to treaties without parliamentary implementation, he may have written too broadly, as admiralty and prize courts were empowered to give effect to the law of nations (including treaties) direcdy. See ALFRED P. RUBIN, THE LAW OF PIRACY 66–121 (1988). Accordingly, Iredell should probably be understood to have been describing the allocation of treaty-enforcement authority as between Parliament and the common-law courts. Cf. Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 YALE L.J. 1651, 1679 (1994) (attributing to Coke the “widespread notion” that “English law” meant the English common law and did not include the admiralty law or the law merchant, which were considered “foreign law”).

Starke notes that there are limited exceptions to the requirement of parliamentary implementation:

No legislation is required for certain specific classes of treaties, namely, treaties modifying the belligerent rights of the Crown when engaged in maritime warfare (presumably because such treaties involve no major intrusion on the legislative domain of Parliament), and administrative agreements of an informal character needing only signature, but not ratification, provided they do not involve any alteration of municipal law.

STARKE, supra note 11, at 82–83. Significantiy, these exceptions appear to involve matters unlikely to become the subject of litigation before common-law courts.

13 The constitutional rule under which all treaties are deemed to be non-self-executing will be referred to herein as the British rule.

14 See 1 STORY, supra note 12, at 242–43; 3 id. at 696; WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 74–75 (1829); see generally Vázquez, supra note 2, at 1101–02.

15 See Justice Iredell’s opinion in Ware, 3 U.S. (3 Dall. ) at 276. See also 3 STORY, supra note 12, at 696.

16 See RAWLE, supra note 14, at 74.

17 32 JOURNALS OF THE CONTINENTAL CONGRESS 124–25, 177–84 (Mar. 21, 1787) (Roscoe R. Hill ed., 1936). The resolution declared that “on being constitutionally made[,] ratified and published [treaties] become in virtue of the confederation part of the law of the land and are not only independent of the will and power of [state] legislatures but also binding and obligatory on them.” Id. at 124–25. Somewhat inconsistently, it also requested that the states enact legislation repealing laws that conflicted with treaties. Id. at 125. Iredell interpreted this request as recognition that Congress lacked the power to dispense with the need for repealing legislation. See Ware, 3 U.S. (3 Dall.) at 276. Madison in the Continental Congress explained that “a repeal of those contravening laws was expedient, and even necessary, to free the courts from the bias of their oaths, which bound the judges more strongly to the states than to the federal authority.” JAMES MADISON, DEBATES IN THE CONGRESS OF THE CONFEDERATION (Mar. 21, 1787), reprinted in 5 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 98–99 (J. Elliott n.d.) (2d ed. 1968) [hereinafter EI LIOTTS DEBATES]. This amounts to a concession that despite the resolution (at least many) state courts would not regard treaties as laws binding on them. As both Iredell and Story observed, the Supremacy Clause was adopted to “obviate this difficulty.” Ware, 3 U.S. (3 Dall.) at 277; 3 STORY, supra note 12, at 696.

18 See Iredell’s opinion in Ware, 3 U.S. (3 Dall.) at 277; 3 STORY, supra note 12, at 696. In the Continental Congress, Yates at first objected to the portion of the resolution declaring treaties to be the law of the land, noting that “the states, or at least his state, did not admit it to be such until clothed with a legal sanction.” MADISON, supra note 17 (Mar. 20, 1787), reprinted in 5 ELLIOTTS DEBATES 98. On the next day, however, he declared himself “satisfied with the resolutions as they stood” because “the words ‘constitutionally made’ … qualify sufficiently the doctrine on which the resolution was founded.” Id.

19 See generally Vázquez, supra note 2, at 1097–1104; Carlos Manuel Vázquez, The “Self-Executing” Character of the Refugee Protocol’s Nonrefoulement Obligation, 7 GEO. IMMIGR. L.J. 39, 44–49 (1993). See also Paust, supra note 1, at 760–63.

20 Because the lower federal courts derive their jurisdiction entirely from federal statutes—because, in other words, the Article III jurisdiction of the lower federal courts is not “self-executing”—no treaty may be enforced in these courts without some authorizing legislation. The statement that the Supremacy Clause makes treaties enforceable in court without additional legislative authorization is therefore technically true only with respect to state courts and the U.S. Supreme Court (whose Article III jurisdiction is self-executing). (The same may be said about the Constitution and statutes, for that matter.) Indeed, because state courts, too, exist and possess jurisdiction only pursuant to state law, it might be contended that, even here, treaties are enforceable in court only if supplemented by other laws. (Again, to the extent this contention is true, it applies equally to federal statutes and the Constitution itself.) This observation merely illustrates that no law is wholly “self-executing.” Recognizing that every law requires some legislative supplementation, in turn, means that the first question that must be addressed whenever a treaty (or any law) is claimed to be non-self-executing should be: what is it that the treaty assertedly fails to accomplish itself? (The next question should be: does some other law accomplish it?) As described in the text, the Supremacy Clause eliminated the need for one form of legislative supplementation: it dispensed with the need for legislation giving the treaty provision the force of domestic law and thus making the treaty cognizable by (and binding on) courts and other domestic-law-applying officials. The Supremacy Clause (itself a law) may be said to “execute” all treaties in this respect.

Taking the foregoing objections into account, the statement in the text may be qualified as follows: the Supremacy Clause makes treaties “directly” enforceable in courts that exist and possess jurisdiction over the subject matter, at the behest of individuals who have standing and, if necessary, a right of action. Some of these qualifications are discussed in the remainder of this part and in part V infra. Additional qualifications are no doubt necessary.

21 3 STORY, supra note 12, at 696.

22 Id.

23 Id. at 695.

24 See generally infra part V.

25 See generally Vázquez, supra note 2. See also United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (“The Extradition Treaty has the force of law, and if, as respondent asserts, it is self-executing, it would appear that a court must enforce it on behalf of an individual regardless of the offensiveness of the practice of one nation to the other nation.”); United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir. 1995) (same).

26 27 U.S. (2 Pet.) 253 (1829).

27 The Foster self-execution holding was an alternative ground for denying relief. See infra note 35. Before reaching the self-execution issue, the Court held that the treaty was inapplicable because the United States possessed sovereignty over the relevant land at the time the treaty was concluded. Because the Court's conclusion that the treaty was not self-executing was an independent basis for denying relief, our discussion of the Court's self-execution holding may assume that Spain did possess sovereignty over the relevant land at the relevant time.

28 27 U.S. (2 Pet.) at 314.

29 Id. (emphasis added).

30 For example, Judge Bork, in his concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Gir. 1984), cited Foster for the proposition that “[t]reaties of the United States … do not generally create rights that are privately enforceable in courts.” In recent litigation, the executive branch has argued that this opinion and others establish a “presumption” that treaties are not self-executing. See Vázquez, supra note 19, at 54 n.66 (citing government submissions taking this position). For the reasons set forth in this part, Foster actually establishes the opposite presumption. The lower-court decisions on which the executive branch has relied to support its argument that there is a presumption against judicial enforceability may be interpreted instead merely to be making the factual statement that most treaties are not self-executing. See, in addition to Judge Bork’s opinion in Tel-Oren, Dreyfus v. Von Finck, 534 F.2d 24, 29 (2d Cir.), cert. denied, 429 U.S. 835 (1976); Canadian Transport Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979). So interpreted, the statement may or may not be correct as an empirical matter, but it tells us nothing about how to determine whether a given treaty is or is not self-executing. If the lower courts did mean to suggest that there is a presumption that U.S. treaties are not self-executing, their dicta to this effect must be rejected for the reasons set forth in this part. See also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §111 reporters’ note 5 (1987) [hereinafter RESTATEMENT (THIRD)]; Paust, supra note 1, at 774–75.

31 32 U.S. (7 Pet.) 51 (1833).

32 27 U.S. (2 Pet.) at 314.

33 Id. (emphasis added).

34 32 U.S. (7 Pet.) at 88–89.

35 Professor Buergenthal has argued that the decision in Foster did not in fact turn on whether the parties to the treaty had intended to require a future legislative act. He interprets the decision as reflecting instead the Court’s deference to the position of the political branches that Spain had not at the relevant time possessed sovereignty over the disputed territory. See Buergenthal, supra note 7, at 374–75. This reading of Foster, however, fails to take account of the fact that the “self-execution” holding in Foster was one of two independent grounds for denying relief, and that the Court deferred to the political branches only in the portion of the opinion that related to the other ground. Before holding that it was not self-executing, the Court held (by a divided vote) that the 1819 treaty between Spain and the United States was inapplicable. By the second article of that treaty, Spain ceded to the United States “all the territories which belong to [it] ” in West Florida, and by the eighth article the United States agreed (according to the English text) that “all the grants of land made … by his catholic majesty … in the said territories ceded by his majesty to the United States, shall be ratified and confirmed.” The Court in Foster concluded that the land at issue was not situated in territory that belonged to Spain in 1819, and that, accordingly, the Spanish grant did not come within the purview of Article 8. It was only after reaching this conclusion that the Court went on to hold that, even if the territory had belonged to Spain at the relevant time, Article 8 was unavailing to the plaintiffs because it was not self-executing. 27 U.S. (2 Pet.) at 310, 314 (emphasis added). In reaching the first holding, the Court deferred to the Executive’s construction of an 1803 treaty between France and Spain. Id. at 309. (As the Executive construed this treaty, Spain had ceded the relevant land to France in 1803, and France had ceded it to the United States by treaty in 1804. The land was accordingly not Spain’s to cede in 1819. It is noteworthy that the Court here deferred to the Executive’s construction of a treaty to which the United States was not a party, and that accordingly was not the “law of the land.” Foster thus cannot be read as a precedent for the proposition that U.S. courts must defer to the Executive’s construction of treaties that are the “law of the land.’) The Court’s self-execution holding did not in any way rest on judicial deference to the Executive’s interpretation of the 1819 treaty. Indeed, the Court did not even mention any evidence of the political branches’ construction of the 1819 treaty (aside from its text). That the political branches’ position was not conclusive of the self-execution issue, or even significant, is strongly suggested by the holding in Percheman, in which the Court rejected the Justice Department's construction of the treaty. It is true that Percheman involved land in territory over which Spain had previously had undisputed sovereignty, but that fact did not play a role in the Court’s self-execution analysis. Later, in Garcia v. Lee, 37 U.S. (12 Pet.) 511 (1838), a case involving land in the disputed territory, the Court recognized that Percheman had “overruled” Foster on the self-execution issue, and it did not purport to disturb Percheman on that score. Instead, it reaffirmed Foster’s alternative holding that Article 8 did not apply because the relevant land did not belong to Spain in 1819. Id. at 519–20, 522. I therefore do not agree with Professor Buergenthal’s suggestion, Buergenthal, supra, at 375 n.209, that Garcia confirms his interpretation of the self-execution holdings of Foster and Percheman.

36 If Foster and Percheman are so interpreted, they establish that under U.S. law there is a presumption that treaties require no legislative implementation. Admittedly, there is language in Foster that does not suggest such a presumption. For example, the Court said that the pertinent question in its view was: “Do [the treaty’s] words act directly on the grants, so as to give validity to those not otherwise valid; or do they pledge the faith of the United States to pass acts which shall ratify and confirm them?” 27 U.S. (2 Pet.) at 314. This language suggests a “purer” interpretive enterprise than the one suggested in this article’s interpretation of Foster, one uninfluenced by any presumption. A “no presumption” rule, however, would be in tension with the Court’s recognition in the same case that, (1) for nations without a supremacy clause (which at that time meant all nations except the United States, see infra note 43), treaties “by [their] nature,” whatever their words, could not “act direcdy on the grants” but instead “pledged the faith” of the parties to enact legislation; and (2) the Supremacy Clause established a “different principle” in the United States. As I argue below, the Court in Foster took insufficient account of the implications of these propositions. (Moreover, because nations negotiating treaties do not typically address matters of domestic enforcement, see text at and note 63 infra, the absence of a presumption of self-execution is, as a practical matter, tantamount to a presumption against self-execution.) The Court’s about-face in Percheman should be interpreted as resolving the ambiguity of the Foster decision in favor of the “different principle” interpretation of the Supremacy Clause, an interpretation that, for the reasons set forth in the text, entails a presumption of self-execution.

37 See, e.g.,J. W. PELTASON, CORWIN AND PELTASONS UNDERSTANDING THE CONSTITUTION 102–03 (6th ed. 1973); LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 157 (1972); Geoffrey R. Watson, TheDeath of Treaty, 55 OHIO ST. L.J. 781, 831 (1994); Jackson, supra note 2, at 145–46; Alona E. Evans, Some Aspects of the Problem of Self-Executing Treaties, 45 ASIL PROC. 66, 68 (1951). Compare Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (because “the Convention is a self-executing treaty,” “no domestic legislation is required to give [it] the force of law in the United States”) with United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (suggesting that a treaty’s self-executing character and its status as “law of the land” are separate questions). The contention that a treaty that is not self-executing lacks domestic legal force underscores the tension between the doctrine of self-executing treaties and the Supremacy Clause, which declares “all” treaties of the United States to be the “Law of the Land.” Whether the contention is sound is beyond the scope of this article. I address it in a work in progress, tentatively titled Treaties as Law of the Land.

38 Such an interpretation would have made the Supremacy Clause more efficacious in advancing its purpose of averting treaty violations attributable to the United States and would have obviated the doctrinal problems that the courts have encountered in drawing the distinction contemplated in Foster, see infra part II, “ ‘Intent-Based’ Non-Self-Execution in the Lower Courts,” while leaving open the possibility of denying judicial enforcement on “justiciability” grounds, see infra part III. As discussed infra note 91, the conclusion that the treaty involved in Foster (as there interpreted) was not judicially enforceable could have been framed in “justiciability” rather than “intent” terms.

39 Although in 1829 the Court might easily and defensibly have held that the parties lack the power to alter the constitutional default rule, such a holding would be difficult to square with subsequently developed constitutional doctrine. Under the last-in-time rule, for example, see text at and notes 8–9 supra, a later treaty must be enforced by the courts in preference to an earlier conflicting treaty, even if enforcing the later treaty would produce a violation of the earlier treaty. If the courts’ ability to enforce a treaty may be altered or taken away completely by the treaty makers’ subsequent agreement with the same or a different nation, it is difficult to contend that the courts’ ability to enforce a treaty may not be altered or taken away by the treaty makers’ concurrent agreement with a treaty partner. This point is developed in Vázquez, supra note 37.

40 Later courts have interpreted Foster as establishing that “words of futurity” indicate diat a treaty provision is not self-executing. See Robertson v. General Elec. Co., 32 F.2d 495, 500 (4th Cir.), cert, denied, 280 U.S. 571 (1929).

41 Foster, 27 U.S. (2 Pet.) at 314. Aldiough this language from Foster might be read to suggest that the distinction the Court had in mind was between treaty provisions establishing obligations to act affirmatively and provisions establishing obligations not to act, the Foster and Percheman decisions show both the unworkability and the irrelevance of such a distinction. The “particular act” that the Court in Foster diought the parties had agreed to perform was an act of legislation ratifying and confirming the Spanish grants. The statement diat a treaty requires legislation when its terms reflect an engagement to perform a particular act thus means only that a treaty requires legislation when its terms reflect an engagement to enact legislation. Nor did anything in either Foster or Perchemantum on whether the ultimate objective of the treaty was “affirmative” or “negative.” It would have been equally plausible to characterize the ultimate objective of the relevant treaty (recognition of the validity of the grants) as “affirmative” (i.e., the obligation of everyone [including federal and state judges] to recognize the plaintiffs’ ownership of the land in question) or “negative” (i.e., the obligation of everyone not to interfere with the plaintiffs’ quiet enjoyment of the land in question). Yet the Court in neither case attempted to draw such a line. Instead, the difference in result was attributable to the difference between language suggesting the need for legislation (“shall ratify”) and language suggesting no need for legislation (“shall remain ratified”). In short, what is relevant is not whether the underlying objective of the treaty is an affirmative or negative one, but whether the parties agreed to accomplish that objective through intervening acts of domestic lawmaking. Thus, even a treaty provision whose ultimate objective is essentially negative (such as the obligation not to return a refugee to a place of persecution) would be non-self-executing in the Foster sense if the parties to the treaty had stipulated that the prohibition would take effect infraterritorially (i.e., would bind domestic-law-applying officials, such as domestic courts) only upon the enactment of domestic legislation. See Vázquez, supra note 19, at 56–57 (acknowledging this possibility).

42 On the diversity of constitutional approaches to domestic enforcement of treaties, see Antonio Cassese, Modem Constitutions and International Law, 192 RECUEIL DES COURS 331 (1985 III); Eric Stein, International Law in Internal Law: Toward Internationalization of Central-Eastern European Constitutions?, 88 AJIL 427 (1994).

43 See supra text at and notes 11–12. See also Polites v. The Commonwealth, 70 CL.R. 60 (1945) (Austl.). Justice Iredell stated in Ware v. Hylton, 3 U.S. (3 Dall.) 256, 272 (1796), that the United States Constitution “affords the first instance of any government … saying, treaties should be the supreme law of the land.”

44 As discussed below, disentangling a treaty’s self-executing or non-self-executing character as a matter of U.S. law (which, under Foster, turns on the intent of the parties) from its self-executing or non-self-executing character as a matter of the various other parties’ domestic constitutional rules is tricky and has proven to be a significant source of confusion among the lower courts.

45 This was established as early as 1796, when the Court decided Ware v. Hylton. Because, as Justice Iredell recognized, treaties never have domestic effect in Great Britain, there could have been no common intent of the parties that the treaty be binding on courts without implementing legislation. The Court held, however, that the Supremacy Clause nevertheless made the treaty binding on courts in the United States.

46 See, e.g., Goldstar (Panama), S.A. v. United States, 967 F.2d 965, 968 (4th Cir.), cert. denied, 113 S.Ct. 411 (1992); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985); Cardenas v. Smith, 733 F.2d 909, 918 (D.C. Cir. 1984); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 778 (D.C. Cir. 1984) (Edwards, J., concurring); British Caledonian Airways v. Bond, 665 F.2d 1153, 1160 (D.C. Cir. 1981); United States v. Postal, 589 F.2d 862, 876, 874 (5th Cir. 1979); Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976); Linder v. Calero Portocarrero, 747 F.Supp. 1452, 1463 (S.D. Fla. 1990), aff’d in part and rev’d in part, 963 F.2d 332 (1992). As I show in part III, however, in many cases “intent” does not do the work that the courts claim it does.

47 See, e.g., Frolova, 761 F.2d at 376 (relying on preratification statement of President); Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1284 (9th Cir. 1985) (same), cert. dismissed, 479 U.S. 957 (1986); Postal, 589 F.2d at 881–83 (relying on preratification statements of State Department officials and U.S. negotiators); Edwards v. Carter, 580 F.2d 1055, 1057 n.4 (D.C. Cir.) (relying on preratification statements by Attorney General and State Department Legal Adviser), cert. denied, 436 U.S. 907 (1978); Diggs, 555 F.2d at 851 n.ll (relying on State Department’s silence); In re Stoffregen, 6 F.2d 943 (D.C. Cir.) (relying on postratification position of U.S. Patent Office and postratification views of Congress), cert. denied, 269 U.S. 569 (1925); Ortman v. Stanray Corp., 371 F.2d 154, 157 (7th Cir. 1967) (relying on postratification statement of Attorney General); Rousseau v. Brown, 21 App. D.C. 73, 76 (D.C. 1903) (relying on postratification position of U.S. Patent Office). See also Cook v. United States, 288 U.S. 102, 119 n.19 (1932) (relying on preratification statement of Secretary of State and postratification “administrative practice” of the Treasury Department and Coast Guard); Cameron Septic Tank Co. v. Knoxville, 227 U.S. 39, 49 (1913) (relying on apparent views of subsequent Congress).

48 See cases cited supra note 47.

49 See Postal, 589 F.2d 862.

50 On this question, see, e.g., United States v. Stuart, 489 U.S. 353, 371–77 (1989) (Scalia, J., concurring). See generally David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953 (1994); Dedev F. Vagts, Treaty Interpretation and the New American Ways of Law Reading, 4 EUR. J. INTL L. 472 (1993).

51 By “unilateral” I mean not (necessarily) shared (or agreed to) by the other parties to the treaty.

52 See Vázquez, supra note 2, at 1103. See also 3 STORY, supra note 12, at 694 (“[U]nless [treaties] are scrupulously obeyed, and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited with reprisals, or war.”).

53 See infra note 56.

54 Such a declaration was attached to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, Dec. 10, 1984, Hein’s No. Kav 2398. The U.S. declaration is discussed in S. EXEC. REP. NO. 30, 101st Cong., 2d Sess. 12 (1990). A similar declaration was attached to the Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. See Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AJIL 341, 348 (1995).

55 For example, Article 3 of the Torture Convention prohibits parties from extraditing persons to places in which they are likely to be tortured. In the absence of a declaration purporting to place the issue beyond the courts’ cognizance, such a provision would undoubtedly be enforceable by courts entertaining habeas corpus petitions of persons subject to extradition orders. See Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 CORNELL L. REV. 1198, 1221–26 (1991) (especially text at and nn. 143, 203). Such courts routinely apply treaty provisions that address whether an individual is extraditable; upon ratification, Article 3 of the Torture Convention would have become another such provision had it not been for the declarations attached to it. There is nothing about the issues that Article 3 addresses that would have made them nonjusticiable. The courts in other contexts entertain claims of torture, see Torture Victim Protection Act of 1991, Pub. L. No. 102–256, 106 Stat. 73 (1992); Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), and make findings of fact regarding a state’s propensity to persecute individuals in other ways, see, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Thus, in the absence of the declarations attached to the Convention by the United States, Article 3 would undoubtedly have been considered judicially enforceable.

The United States also attached to the Convention a declaration stating that, in this country, the responsibility for enforcing Article 3 shall reside exclusively in the Secretary of State. This provision seems wholly redundant in light of the declaration making the entire Convention non-self-executing. It has always been recognized that the Secretary has the discretion not to extradite someone whose extradition is otherwise required by treaty if there is a danger of mistreatment by the receiving state. See generally Semmelman, supra. The non-self-execution declaration purports to make the Secretary’s decision to do so (or not to do so) unreviewable. It is not apparent what, if anything, the additional statement that the Secretary has the “exclusive” power to do so accomplishes.

56 It is debatable, however, whether non-self-execution declarations that are formally communicated to the other treaty parties and are deposited with the U.S. instruments of ratification can be accurately characterized as representing only the unilateral views of the United States. See the discussion of this issue in Stefan A. Riesenfeld & Frederick M. Abbott, The Scope of U.S. Senate Control over the Conclusion and Operation of Treaties, 67 CHI.-KENT L. REV. 571 (1991), and in Vazquez, supra note 37.

57 See cases cited supra note 47.

58 See Jackson, supra note 2, at 156 (“[T]he courts will apparently follow the formally expressed view” of the President and Senate concerning a treaty’s non-self-executing character.).

59 RESTATEMENT (THIRD), supra note 30, §111 cmt. h. See also §314 cmt. d (“A treaty ratified or acceded to by the United States with a statement of understanding becomes effective in domestic law (§111) subject to that understanding.”); cf §303 cmt. d (listing condition “that the treaty shall not be self-executing” as example of condition Senate might attach to its consent to a treaty that is “presumably not improper”).

60 Nor does the truism that the greater power includes the lesser lend support to the notion that the treaty makers have the power unilaterally to make a treaty judicially unenforceable. The power not to enter into a treaty at all does not include the power to enter into a treaty but make it judicially unenforceable. If the purpose of the Supremacy Clause was to avert treaty violations by making treaties, once ratified and binding on the United States, enforceable in the courts, the Founders may well have preferred no treaty at all to a treaty that bound the nation internationally but was not judicially enforceable. Cf. 2 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 393 (rev. ed. 1966) (Gouverneur Morris was “not solicitous to multiply and facilitate Treaties. … The more difficulty in making treaties, the more value will be set on them.”).

61 There is both judicial and scholarly authority that calls into question the constitutionality or effectiveness of the non-self-executing declarations that have been attached by the United States to recent treaties. See Henkin, supra note 54, at 346–48, 349; John Quigley, The International Covenant on Civil and Political Rights and the Supremacy Clause, 42 DEPAUL L. REV. 1287 (1993); Jordan J. Paust, Avoiding Fraudulent Executive Policy: Analysis of Non-Self Execution of the Covenant on Civil and Political Rights, 42 DEPAUL L. REV. 1257 (1993); Riesenfeld & Abbott, supra note 56; Charles H. Dearborn III, Note, The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self-Executing, 57 TEX. L. REV. 233 (1979); Power Auth. of N.Y. v. Federal Power Comm’n, 247 F.2d 538 (D.C. Cir.), vacated and remanded with instructions to dismiss as moot sub nom. American Pub. Power Ass’n v. Power Auth., 355 U.S. 64 (1957).

I examine this question in Vázquez, supra note 37, and find merit in two arguments favoring the constitutionality and effectiveness of these declarations: (1) the declarations are not “unilateral,” but represent an agreement among the parties to the treaty and thus fall within the rule set forth in Foster (cf. supra note 56); and (2) if the U.S. treaty makers possess the constitutional power to abrogate a treaty for purposes of domestic law, even when such abrogation is not permitted by international law, they must also possess the constitutional power to enter into a treaty but unilaterally deny it domestic legal force.

62 United States v. Postal, 589 F.2d 862 (5th Cir. 1979). See also cases cited supra note 30 and infra note 67. Additionally, in recent litigation the executive branch has taken the position that there is a presumption that treaties are not self-executing, relying (directly or indirectly) on Foster. See supra note 30. For a more extended critique of this position, see Vázquez, supra note 19, at 44–53. See also RESTATEMENT (THIRD), supra note 30, §111 reporters’ note 5 (criticizing Postal); Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 AJIL 892 (1980) (same).

63 See Iwasawa, supra note 1, at 654 (“Whether or not a treaty provision will be self-executing for a particular state party … ha[s] generally not been [a] consideration when states enter into treaty obligations.”); Paust, supra note 1, at 770–71 (the parties to a treaty “rarely concern themselves with the details of domestic implementation”).

64 Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979). Other lower courts have relied on provisions such as these, or provisions that are even less probative of a “stipulation for a future legislative act,” to support their conclusion that a particular treaty is not self-executing. See Postal, 589 F.2d at 876; Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J., concurring); Linder v. Calero Portocarrero, 747 F.Supp. 1452, 1463 (S.D. Fla. 1990); Handel v. Artukovic, 601 F.Supp. 1421 (C.D. Cal. 1985); Haitian Refugee Center v. Gracey, 600 F.Supp. 1396, 1406 (D.D.C. 1985), aff’d on other grounds, 809 F.2d 794 (D.C. Cir. 1987).

65 See RESTATEMENT (THIRD), supra note 30, §111 cmt. h.

66 See Vázquez, supra note 19, at 58–59; Paust, supra note 1, at 775 n.97.

67 See, e.g., Goldstar (Panama), S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992) (“intent to provide a private right of action” or to provide “a privately enforceable cause of action”); United States v. Davis, 767 F.2d 1025, 1030 n.9 (2d Cir. 1985) (intent to confer “judicially enforceable rights on individuals”); Tel-Oren, 726 F.2d at 809 (Bork, J., concurring) (“inten[t] to be judicially enforceable at the behest of individuals” and “inten[t] to give individuals the right to enforce [the treaty] in municipal court”); United States v. Noriega, 808 F.Supp. 791, 799 (S.D. Fla. 1992) (“inten[t] to impart on an individual the right to bring a legal action to force compliance with the treaty”).

68 The standing issue is discussed infra note 134 and in Vázquez, supra note 2, at 1133–41. The closely related right-of-action issue is discussed in part V infra, and in Vázquez, supra, at 1141–57.

69 But cf. Vázquez, supra note 2, at 1157–61 (arguing that a right of action should be held to be implicit in a treaty in certain circumstances even if there is no evidence that the parties [or the treaty makers] affirmatively intended to create a right of action).

70 The similar statement that a treaty is enforceable at the behest of individuals only if it creates a “private right,” see, e.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298–99 (3d Cir. 1979); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir. 1976), is either wrong (if “right” is understood as a synonym for “right of action”) or a tautology (if “right” is understood more broadly as the obverse of a legal duty).

71 Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373–76 (7th Cir. 1985).

72 Id. at 373.

73 In INS v. Stevic, 467 U.S. 407, 429 n.22 (1984), the Court in dictum described Article 34 of the Refugee Convention as “precatory and not self-executing.” See also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J., concurring) (“Articles 1 and 2 [of the United Nations Charter] … contain general ‘purposes and principles,’ some of which state mere aspirations and none of which can sensibly be thought to have been intended to be judicially enforceable at the behest of individuals.”); Sei Fujii v. State, 242 P.2d 617, 619 n.2 (Cal. 1952) (UN Charter provision requiring states to “promot[e] and encourag[e] respect for human rights” not self-executing); Brief for the United States as Amicus Curiae at 9, Jaffe v. Snow (U.S. May 27, 1994) (No. 93-241) (arguing that an agreement between the United States and Canada “to cooperate to deter … transborder abductions” is judicially unenforceable), cert, denied, 114 S.Ct. 2724 (1994).

74 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).

75 For example, in Dennis v. Higgins, 498 U.S. 439, 448 (1991), the Supreme Court held that a statute cannot be enforced through 42 U.S.C. §1983 (1988) if, rather than “creat[ing] an obligation,” it “does no more than express a congressional preference for certain kinds of treatment.”

76 See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981). The line in this context has not been a stable one; the most recent decisions appear to rely primarily on the presence or absence of congressional intent to make the provision judicially enforceable. See Suter v. Artist M., 503 U.S. 347 (1992). Such a standard, if adopted for treaties as well, would effectively collapse the intent-based non-self-execution category and the justiciability category. Depending on which presumption is adopted (cf. part II, “ ‘Intent-Based’ Non-Self-Execution in the Lower Courts,” supra), this would either drastically expand or drastically reduce the judicial enforceability of treaties.

77 Although the Foster and Percheman Courts did not require evidence that the parties had specifically considered whether an act of Congress was required, the question, as the Court conceived it in Foster, was whether such an intent could be inferred from the language of the treaty. There was nothing about the provision’s ultimate objective (recognition of the validity of Spanish grants) that made it inherently judicially unenforceable; the provision was judicially unenforceable only because the parties to the treaty contemplated that the objective would be achieved through legislation. Indeed, the very same treaty provision was held in Percheman, 32 U.S. (7 Pet.) 51 (1833), to be judicially enforceable without legislative implementation. “Precatory” provisions, by contrast, are judicially unenforceable without regard to the parties’ intent concerning judicial enforcement.

78 See 2 FARRAND, supra note 60, at 430. See also 3 STORY, supra note 12, at 695 (Supremacy Clause directs courts to “enforce [treaties] directly in all cases, to which they can be judicially applied”). See generally Vázquez, supra note 2, at 1129–30.

79 Cf. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978).

80 See Vázquez, supra note 2, at 1097–1101, 1124–25.

81 Head Money Cases, 112 U.S. 580, 598–99 (1884). Some courts have read this language to stand for the proposition that a treaty may be enforced in the courts by individuals only if it establishes “private rights.” This formulation of the “self-execution” test, however, is at best tautological and at worst misleading. See supra note 70. If the term “right” were understood in a particular way—i.e., as the obverse of a duty that is sufficiently determinate to be judicially enforced—then the “private right” interpretation and the “determinateness” interpretation offered in the text would be collapsed, but the concept of a “right” would do no work: the treaty’s enforceability would turn on the precision with which the duty was defined; that the treaty conferred a “right” would simply follow from the conclusion that it was judicially enforceable. However, because there are innumerable competing senses of the term “right,” see HENRY M. HART, JR., & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 135 (William N. Eskridge, Jr., & Phillip P. Frickey eds., 1994) (the term is “incorrigibly multifarious in actual usage”), I prefer, in the interest of clarity, to frame the “self-execution” test(s) without recourse to the term. Cf. infra text at note 89 (conclusion that treaty confers a “right” reflects judgments about the role of the courts in our governmental system).

82 People of Saipan v. United States Dep’t of Interior, 502 F.2d 90, 99 (9th Cir. 1974), cert, denied, 420 U.S. 1003 (1975).

83 Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). In American Baptist Churches v. Meese, 712 F.Supp. 756, 770 (S.D. Cal. 1989), the court said that Article 1 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War was not a self-executing treaty provision because “[t]he language used does not impose any specific obligations on the signatory nations” (emphasis added). The court said that the lack of precision deprived the court of “any intelligible guidelines for judicial enforcement.” See also Greenpeace USA v. Stone, 748 F.Supp. 749, 767 (D. Haw. 1990) (citing lack of “standards and procedures to judicially enforce the treaty”), appeal dismissed as moot, 924 F.2d 175 (9th Cir. 1991).

84 Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 374 (7th Cir. 1985). The court concluded that such language “suggested that [the articles of the treaty] are declarations of principles, not a code of legal rights.”

85 United States v. Noriega, 808 F.Supp. 791, 799 (S.D. Fla. 1992).

86 RESTATEMENT (THIRD), supra note 30, §111 reporters’ note 5. A provision that prohibits clearly defined conduct on the part of the United States is perhaps the clearest example of a provision that “can readily be given effect” without further legislation. See Commonwealth v. Hawes, 76 Ky. (13 Bush) 697, 702–03 (1878), described by the Supreme Court as a “very able” decision, United States v. Rauscher, 119 U.S. 407, 427–28 (1886). See also RESTATEMENT (THIRD), supra, §111 reporters’ note 5; Vazquez, supra note 2, at 1127. Cf. Vazquez, supra note 19 (describing [and criticizing] executive branch arguments that Article 33 of the Refugee Convention, which the United States agreed to comply with when it adhered to the Refugee Protocol, is not self-executing even though it prohibits clearly defined conduct). Even a treaty provision whose object is to prohibit clearly defined conduct would be non-self-executing if the parties so intended. See supra note 41.

87 Baker v. Carr, 369 U.S. 186, 217 (1962) (constitutional norms); Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989) (constitutional and statutory norms judicially enforceable under 42 U.S.C. §1983 if “not … ‘too vague and amorphous’ ” (quoting Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 431 (1987))).

88 See Louis Henkin, Is There a Political Question Doctrine?, 85 YALE L.J. 597 (1976).

89 See supra note 81.

90 See supra note 78.

91 Indeed, the Foster decision might have been decided on such grounds. As interpreted by the Court in that case, the relevant treaty provision obligated the United States to begin recognizing the Spanish grants as valid at some unspecified future date. As an alternative basis for its conclusion that the treaty was not judicially enforceable without legislative implementation, the Court might have said that the determination of the relevant time to begin recognizing the grants as valid requires the exercise of “political” judgment that, in our tradition, is not for the courts to make. If this had been the basis of the Court’s judgment, a different result would have been called for if the treaty had stipulated that the United States “shall ratify the Spanish grants by January 1, 1824.”

92 People of Saipan v. United States Dep’t of Interior, 502 F.2d 90, 97 (9th Cir. 1974). Other courts have asked whether the treaty creates “judicially enforceable” or “privately enforceable” rights or rights of action or causes of action. See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 374 (7th Cir. 1985); United States v. Thompson, 928 F.2d 1060, 1066 (11th Cir.), cert, denied, 112 S.Ct. 270 (1991), and cases cited supra note 67. These tests seem to combine the “justiciability” question (which I discuss in this part) and the private-right-of-action question (which I discuss in part V infra).

93 502 F.2d at 97.

94 See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 125–26, 184 (1962).

95 See Herbert Wechsler, Towards Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 7–8 (1959).

96 I refer here to Foster. Cameron Septic Tank Co. v. Knoxville, 227 U.S. 39 (1913), the only other case in which the Court may have denied relief on self-execution grounds, was ambiguous in this regard. In INS v. Stevic, 467 U.S. 407 (1984), the Court stated in dictum that Article 34 of the Refugee Convention was not self-executing. In the other cases in which the Court has mentioned the issue, the Court has either (1) found the treaty to be self-executing, see Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984); Bacardi Corp. v. Domenech, 311 U.S. 150 (1940); Cook v. United States, 288 U.S. 102 (1932); Asakura v. City of Seattle, 265 U.S. 332 (1924); United States v. Rauscher, 119 U.S. 407 (1886); United States v. Forty-Three Gallons of Whiskey, 93 U.S. (3 Otto) 188 (1876), or (2) denied relief on the basis of the last-in-time rule, see Head Money Cases, 112 U.S. 580 (1884).

97 See supra note 35.

98 Percheman, 32 U.S. (7 Pet.) 51 (1833).

99 See, e.g., Kolovrat v. Oregon, 336 U.S. 187 (1961); Clark v. Allen, 331 U.S. 503 (1947); Factor v. Lauben-heimer, 290 U.S. 276 (1933); Nielsen v. Johnson, 279 U.S. 47 (1929); Jordan v. Tashiro, 278 U.S. 123 (1928); Patsone v. Pennsylvania, 232 U.S. 138 (1914); Tucker v. Alexandroff, 181 U.S. 619 (1901); Florida v. Furman, 180 U.S. 402 (1901); Lem Moon Sing v. United States, 158 U.S. 538 (1895); Ekiu v. United States, 142 U.S. 457 (1891); Botiller v. Dominguez, 130 U.S. 238 (1889); Wildenhus’ Case, 120 U.S. 1 (1886); Chew Heong v. United States, 112 U.S. 536 (1884); Hauenstein v. Lynham, 100 U.S. 483 (1879); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870); Wilson v. Wall, 73 U.S. (6 Wall.) 83 (1867); The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866); Crews v. Burcham, 66 U.S. (1 Black) 352 (1861); Doe v. Wilson, 64 U.S. (23 How.) 457 (1859); United States v. Rogers, 45 U.S. (4 How.) 567 (1846); Porterfield v. Clark, 43 U.S. (2 How.) 76 (1844); Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840); Strother v. Lucas, 31 U.S. (6 Pet.) 763 (1838); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Carneal v. Banks, 23 U.S. (10 Wheat.) 181 (1825); Hughes v. Edwards, 22 U.S. (9 Wheat.) 489 (1824); Orr v. Hodgson, 17 U.S. (4 Wheat.) 453 (1819); Chirac v. Chirac, 15 U.S. (2 Wheat.) 259 (1817); Harden v. Fisher, 14 U.S. (1 Wheat.) 300 (1816); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1812); Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

There are, of course, possible alternative explanations for the infrequency with which the Supreme Court has addressed the self-execution question. In some of the cases cited above, the litigant relying on the treaty lost on other grounds, and there was accordingly no need to reach that issue. Moreover, by denying certiorari in cases in which the lower courts have dismissed on self-execution grounds, the Court may be tacidy approving the results, if not the reasoning, of those decisions. Nevertheless, the fact that the Court has not addressed the doctrine in many years despite the glaring need for clarification, but has instead gone out of its way to avoid reaching forcefully pressed self-execution arguments by dismissing treaty-based claims on other (exceedingly tenuous and controversial) grounds, see, e.g., Sale v. Haitian Centers Council, 113 S.Ct. 2549 (1993); United States v. Alvarez-Machain, 504 U.S. 655 (1992), is itself strong evidence of the doctrine’s problematic status.

100 The Court used this phrase in rejecting a conception of the act of state doctrine as a vague, quasi-discretionary abstention doctrine requiring an open-ended, case-by-case inquiry similar to that required by the view of the self-execution doctrine discussed in text. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 409 (1990).

101 Lower-court decisions in the three lawsuits seeking to enjoin the Haitian interdiction program as a violation of the Refugee Protocol illustrate this timidity. In both Haitian Refugee Center v. Gracey, 600 F.Supp. 1396, 1406 (D.D.C. 1985), and Haitian Centers Council v. McNary, No. 92-CV-1258, slip op. at 8 (E.D.N.Y. June 5), rev’d on other grounds, 969 F.2d 1350 (2d Cir. 1992), rev’d sub nam. Sale v. Haitian Centers Council, 113 S.Ct. 2549 (1993), the district court denied relief on the ground that the Refugee Protocol was not self-executing, and in Haitian Refugee Center v. Baker, 949 F.2d 1109 (11th Cir. 1991), cert. denied, 502 U.S. 1122 (1992), the court of appeals denied relief on the same ground. It is noteworthy that, when the Supreme Court finally confronted the challenge to the interdiction program, it did not question the Protocol’s judicial enforceability, even though the Executive forcefully urged the Court to hold that the Protocol was not self-executing. Sale, supra. On the self-executing character of the Refugee Protocol, see generally Vázquez, supra note 19.

102 An important difference between this category of non-self-executing treaty and the Foster category is that a justiciability-based determination that a treaty is judicially unenforceable will affect not just the particular treaty provision before the court, but all provisions “like” it. Determining that a treaty is not judicially enforceable for reasons other than intent requires a constitutional separation-of-powers judgment; a determination that one treaty provision is not judicially enforceable will accordingly affect all relevandy similar treaty provisions. By contrast, the parties to the treaty (or perhaps the U.S. treaty makers unilaterally) may make a treaty judicially unenforceable for any (rational) reason; their determination that one treaty shall not be judicially enforceable will not have any necessary implications with respect to the judicial enforceability of other treaties.

103 If some “vague” treaty provisions may be suitable for direct judicial enforcement while others are not, see supra text following note 91, distinctions among such provisions will obviously have to be based on factors other than vagueness.

104 See RESTATEMENT (THIRD), supra note 30, §111 reporters’ note 6.

105 See HENKIN, supra note 37, at 137–56, 251–70.

106 See Paust, supra note 1, at 775–81; HENRY J. STEINER, DETLEV F. VAGTS & HAROLD HONGJU KOH, INTERNATIONAL LEGAL PROBLEMS 556–57 (4th ed. 1994).

107 See RESTATEMENT (THIRD), supra note 30, §111 cmt. i; Edwards v. Carter, 580 F.2d 1055, 1058 (D.C. Cir. 1978); The Over the Top, 5 F.2d 838, 845 (D. Conn. 1925). But see Paust, supra note 1, at 778, 780–81.

108 RESTATEMENT (THIRD), supra note 30, §111 cmt. i; Iwasawa, supra note 1, at 676 n.239; Hopson v. Krebs, 622 F.2d 1375, 1380 (9th Cir. 1980) (“Treaty regulations that penalize individuals … are generally considered to require domestic legislation before they are given any effect.”). But see Paust, supra note 1, at 775, 780. In The Over the Top, 5 F.2d at 845, the court said that “[i]t is not the function of treaties to enact the … criminal law of a nation. For this purpose no treaty is self-executing.”

109 See RESTATEMENT (THIRD), supra note 30, §111 cmt. i. But see Paust, supra note 1, at 775, 778, 780–81.

110 Spiess v. C. Itoh & Co. (America), 643 F.2d 353, 356 (1981), cert. dismissed, 454 U.S. 1130 (1982). See Alona E. Evans, Self-Executing Treaties in the United States of America, 30 BRIT. Y.B. INT’L L. 178, 186 (1953) (listing 12 subjects normally considered to be self-executing, including “unconditional most-favoured-nation provisions of commercial treaties”).

111 See United States v. Caro-Quintero, 745 F.Supp. 599, 607 (CD. Cal. 1990) (“Extradition treaties by their nature are deemed self-executing and thus are enforceable without the aid of implementing legislation.”), aff’d sub nam. United States v. Alvarez-Machain, 946 F.2d 1466 (1991), reu’d on other grounds, 504 U.S. 655 (1992); In re Extradition of McMullen, 769 F.Supp. 1278, 1293 (S.D.N.Y. 1991).

112 Terlinden v. Ames, 184 U.S. 270, 288 (1902) (“Treaties of extradition are executory in their character, and fall within the rule laid down by Chief Justice Marshall in Fosterv. Neilson … ” (dictum)).

113 See text following note 103 supra.

114 See Smith v. Socialist People’s Libyan Arab Jamahiriya, 1995 U.S. Dist. LEXIS 6817, at *11 n.6 (E.D.N.Y. May 17, 1995); Telesat de Panama v. United States Dept. of Defense, 1992 U.S. App. LEXIS 18469, at *17 (Fed. Cir. Aug. 7, 1992); Goldstar (Panama), S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992); United States v. Thompson, 928 F.2d 1060, 1066 (11th Cir. 1991); Columbia Marine Servs., Inc. v. Reffet Ltd., 861 F.2d 18, 21 (2d Cir. 1988); United States v. Bent-Santana, 774 F.2d 1545, 1550 (11th Cir. 1985); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork.J., concurring); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298–99 (3d Cir. 1979); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir. 1976); United States v. Noriega, 808 F.Supp. 791, 798 (S.D. Fla. 1992); Greenpeace USA v. Stone, 748 F.Supp. 749, 767 (D. Haw. 1990); Handel v. Artukovic, 601 F.Supp. 1421, 1425 (CD. Cal. 1985). Cf. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440–42 (1989) (citing Foster and Head Money Cases in support of proposition that certain treaties do not confer private causes of action).

115 See PAUL M. BATOR ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 533 (3d ed. 1988) (“Federal law is generally interstitial in its nature. … [Often,] substantive rights [are] defined by Congress but the remedies for their enforcement left undefined or relegated wholly to the states.”).

116 In other words, a treaty that does not itself create a private right of action might be described as non-self-executing in the sense that a plaintiff seeking to maintain an action must find some other law to supplement the treaty, see infra note 134, but the “other law” need not be federal, or statutory, or later in time than the treaty.

117 See, e.g., Kolovrat v. Oregon, 336 U.S. 187, 197 (1961); Patsone v. Pennsylvania, 232 U.S. 138, 145 (1914).

118 Throughout our nation’s existence, treaties have been enforced in court through common-law forms of action, such as actions in debt and actions in the nature of ejectment. Florida v. Furman, 180 U.S. 402, 428 (1901) (action to remove cloud on legal title); Botiller v. Dominguez, 130 U.S. 238, 243 (1889) (ejectment); Orr v. Hodgson, 17 U.S. (4 Wheat.) 453, 462–63 (1819) (bill in equity); Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 277 (1817) (ejectment); Harden v. Fisher, 14 U.S. (1 Wheat.) 300, 303 (1816) (same).

119 Jordan v. Tashiro, 278 U.S. 123, 125 (1928) (state mandamus action); Asakura v. City of Seattle, 265 U.S. 332, 340 (1924) (state action for injunction); Hauenstein v. Lynham, 100 U.S. 483, 485 (1879) (action “pursuant to a law of the State”).

120 See, e.g., Testa v. Katt, 330 U.S. 386 (1947); McKnett v. St. Louis & S.F. Ry., 292 U.S. 230, 233–34 (1934).

121 See, e.g., United States v. Rauscher, 119 U.S. 407 (1886) (federal habeas corpus action); Baldwin v. Franks, 120 U.S. 678 (1887) (civil rights legislation). See generally Vázquez, supra note 2, at 1146–54 (discussing availability of §1983 and Administrative Procedure Act as rights of action for enforcing treaty obligations).

122 See, e.g., Rauscher, 119 U.S. 407 (1886).

123 See generally Vázquez, supra note 2, at 1143–56.

124 Though there were cases before Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), that equated the self-execution issue and the private-right-of-action issue, see Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298–99 (3d Cir. 1979); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir. 1976), Tel-Oren appears to have become the standard citation for this equivalency. See cases cited supra note 114.

125 726 F.2d at 775.

126 Because the attack occurred in Israel, it was unlikely that any state’s tort law applied to such conduct. The question of federal jurisdiction would of course have been a separate issue.

127 However, a state court might have dismissed such a suit on the ground of forum non conveniens, an issue that would be governed by state law. See American Dredging Co. v. Miller, 114 S.Ct. 981 (1994).

128 That would certainly be true today under the Supreme Court’s interpretation of 28 U.S.C. §1331 in Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986). Thus, the court’s statement in Columbia Marine Servs., Inc. v. Reffet Ltd., 861 F.2d 18, 21 (2d Cir. 1988), that “[a]n action arises under a treaty [for purposes of §1331] only when the treaty expressly or by implication provides for a private right of action” was accurate when made, though it might have been contestable before Merrell Dow.

129 Other courts that have considered whether a treaty confers a private right of action have similarly done so in circumstances in which there was no other apparent source for the judicial remedy sought by the plaintiff. See Handel v. Artukovic, 601 F.Supp. 1421, 1425 (CD. Cal. 1985) (suit for damages for injuries occurring in Yugoslavia).

130 Tel-Oren, 726 F.2d at 808. Even if we interpreted the term “authorizing legislation” broadly to include state statutes and generic federal statutes such as the habeas corpus statutes, this statement would be erroneous because it fails to recognize that a right of action to enforce a treaty may have sources other than legislation; it may, for example, have its source in the common law or in another treaty.

131 United States v. Noriega, 808 F.Supp. 791, 798 (S.D. Fla. 1992). The court held that the treaties were self-executing.

132 The court in United States v. Bent-Santana, 774 F.2d 1545, 1550 (11th Cir. 1985), similarly discussed whether the treaty gave a criminal defendant a right of action. If a prisoner after conviction wishes to challenge the conditions of his confinement on the ground that they violate the U.S. treaty obligations, the habeas corpus statutes confer the relevant “right of action.”

133 On this question, see Vázquez, supra note 2, at 1155–62.

134 The Restatement takes the position that “[w]hether a treaty is self-executing is a question distinct from whether the treaty creates private rights or remedies.” RESTATEMENT (THIRD), supra note 30, §111 cmt. h. In reality, a treaty that does not itself confer a private right of action can accurately be described as non-self-executing,” as that term is used in legal discourse. See Vázquez, supra note 2, at 1117–18 (citing such uses of the term). As I have argued elsewhere, the variety of ways in which the term can be used contributes to the confusion surrounding the self-execution “doctrine.” See id. If, however, the Restatement means that the distinction introduced in Foster did not relate to the existence or nonexistence of a private right of action, it is correct.

135 The issue of standing or “invocability” of a treaty provision has often been examined as a self-execution issue. See Jackson, supra note 2, at 158–59. The standing issue is closely related to the right-of-action issue. To the extent we continue to regard standing as a self-execution issue, we may regard it as a branch of the “private right of action” version of that doctrine. As I have addressed standing to enforce treaties at length elsewhere, see Vázquez, supra note 2, I shall not discuss it here except to note that, at a minimum, anyone whose common-law liberty or property interests are being impaired through a violation of a treaty should be deemed to have standing to enforce the treaty in court. See generally id. For example, someone kidnapped from Mexico by federal officials and being held in the United States necessarily has standing to enforce in our courts a treaty provision prohibiting such abductions and requiring the return of the abductee, if the treaty is self-executing. Cf. United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992), quoted supra note 25.

136 See United States v. Aguilar, 883 F.2d 662, 680 (9th Cir. 1989), cert. denied, 111 S.Ct. 751 (1991).

137 See text at note 65 supra.

138 See United States v. Noriega, 808 F.Supp. 791, 798 (S.D. Fla. 1992), and United States v. Bent-Santana, 774 F.2d 1545, 1550 (11th Cir. 1985), discussed supra in text at and notes 131 and 132.

139 See Report of the Committee on Human Rights, Annex D, Committee Letter to Senator Claiborne Pell (Dec. 11, 1991), AM. BRANCH INT’L L. Ass’N, PROC. & COMMITTEE REP. 1991–1992, at 98, 111 & n.26, 112 & n.28 (1992), quoted in Paust, supra note 61, at 1265–66.

140 We might add to the list of “doctrines” of self-executing treaties by including categories for treaties that fail to accomplish certain other things that a litigant might need in particular circumstances to maintain an action. For example, to sue a government entity, a litigant may require a waiver or withdrawal of sovereign immunity. A treaty that does not waive or withdraw such immunity might be described as “non-self-executing.” See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989).