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Self-Executing Treaties

Published online by Cambridge University Press:  27 February 2017

Jordan J. Paust
Jordan J. Paust*
Affiliation:
University of Houston Law Center
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Extract

The distinction found in certain cases between “self-executing” and “non-self-executing” treaties is a judicially invented notion that is patently inconsistent with express language in the Constitution affirming that “all Treaties … shall be the supreme Law of the Land.” Indeed, such a distinction may involve the most glaring of attempts to deviate from the specific text of the Constitution. For some 40 years after the formation of the Constitution, President George Washington’s recognition in 1796 that “every Treaty [properly ratified]… thenceforward becomes the law of the land” was widely shared. Yet today not all treaties are thought to be capable of operating as supreme federal law of their own effect.

Type
Research Article
Information
American Journal of International Law , Volume 82 , Issue 4 , October 1988 , pp. 760 - 783
Copyright
Copyright © American Society of International Law 1988

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References

1 See U.S. Const, art. VI, cl. 2 (emphasis added). See also id. art. III, §2, cl. 1 (“The judicial Power shall extend to all Cases … arising under … Treaties …”) (emphasis added).

2 See President Washington, Message to the House of Representatives, Mar. 30, 1796, reprinted in 3 The Records of the Federal Convention of 1787, at 371 (M. Farrand ed. 1937) (emphasis added). The President added: “when ratified, [“all” treaties] become obligatory. … [T]he assent of the House of Representatives is not necessary.” Id. See also note 29 infra.

3 Jay, report to Congress, Oct. 13, 1786, quoted in 1 C. Butler, The Treaty-Making Power of the United States 268 n.4, 270 (1902). Jay also made these points after becoming Chief Justice in 1789. See notes 36–37 infra.

4 1 C. Butler, supra note 3, at 389. Nearly the same phrases as those quoted in the text at note 3 supra and at notes 5–7 infra were adopted in a resolution of the Continental Congress of Mar. 21, 1787. 12 J. Cong. 24 (1801).

5 See 1 C. Butler, supra note 3, at 274 n.4. See also note 13 infra. Similarly, Jay wrote: “Under the national government, treaties and articles of treaties … will always be expounded … and executed … .” The Federalist No. 3, at 98 (B. Wright ed. 1961) (emphasis added).

6 See 1 C. Butler, supra note 3, at 270 n.4 and 275 n.4. See also Hamilton v. Eaton, 11 F. Cas. 336, 337 (Sitgreaves), 340 (Ellsworth) (C.C.D.N.C. 1792) (No. 5,980). Oliver Ellsworth had been a member of the Constitutional Convention (1787) and would join the Supreme Court in 1796. See J. Nowak, R. Rotunda & J. Young, Constitutional Law 1109 (3d ed. 1986).

7 See 1 C. Butler, supra note 3, at 274 n.4.

8 See id. at 270 n.4.

9 See id. at 389 (quoting a pamphlet written by Iredell). Iredell would make similar points later (see note 17 infra) and after joining the Supreme Court in 1790 (see notes 36, 40 infra; cf. note 46 infra).

10 See J. Madison, Notes of Debates in the Federal Convention of 1787, at 520 (recommendation of Gouverneur Morris on Aug. 23), 597 (recommendation, quoted in part in the text above, by James Wilson on Sept. 7) (1966 ed.) (1840); 2 Farrand (ed.), supra note 2, at 297 (Mercer), 538 (Wilson); see also The Federalist No. 64, at 421–24 (Jay).

11 See J. Madison, supra note 10, at 517.

12 See 2 Farrand (ed.), supra note 2, at 394.

13 The Federalist No. 22, at 197 (Hamilton). Hamilton asserted also that federal judicial power extends to “cases arising upon treaties and the law of nations,” without mentioning any distinction among types of treaties and later quoting Article III, §2, “all cases … arising under” (emphasis added). Id., No. 80, at 501, 503 (Hamilton). See also id., No. 64, at 423–24 Gay):

[T]reaties, when made, are to have the force of laws. … [and] have as much legal validity … as if they proceeded from the legislature. …

… They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.

Jay implicitly added that this power need not involve the full legislature, yet it was a power “by which the citizens are to be bound and affected,” and he noted: “It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community … .” Id. at 424, 425. He articulated these points again as Chief Justice. See notes 36–37 infra. On Jay’s point that the President is bound, see, e.g., Paust, The President Is Bound by International Law, 81 AJIL 377 (1987).

14 The Federalist No. 23, at 200 (Hamilton). The treaty power, of course, is that of the President and Senate.

15 See 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 27 (J. Elliot ed. 1941) (1830). George Mason of Virginia had opposed the new constitution, in part because the federal treaty power was “in many Cases, an exclusive Power of Legislation.” See G. Mason, Objections to the Constitution of Government Formed by the Convention (1787), reprinted in 2 The Complete Antifederalist 11 (H. Storing ed. 1981), 2 Farrand (ed.), supra note 2, at 639. Similarly, Cato had opposed ratification, characterizing treaties as “legislation.” See Letters of Cato, N.Y.J., September 1787–January 1788, reprinted in Storing (ed.), supra, at 122.

16 See 4 Elliot (ed.), supra note 15, at 115.

17 Id. at 28.

18 Id. at 158.

19 Id. at 119.

20 Id. at 267–68 (emphasis added). Rutledge was appointed to the Supreme Court in 1789 and had been one of the signers of the Constitution. See J. Nowak, R. Rotunda & J. Young, supra note 6, at 1111.

21 See 4 Elliot (ed.), supra note 15, at 277–79.

22 2 id. at 490. Wilson, who had signed the Declaration of Independence and the Constitution and would join the Supreme Court in 1789 (see J. Nowak, R. Rotunda & J. Young, supra note 6, at 1112), would make similar points as a Justice. See notes 36–37 infra.

23 2 Elliot (ed.), supra note 15, at 506.

24 See 3 id. at 501, 514, 532.

25 See id. at 502, 506.

26 See id. at 365 (Grayson of Virginia), 511 (Corbin of Virginia).

27 See text at note 2 supra. Hamilton, in a draft for the President’s message, had written: “the House of Representatives … have no legal power to refuse its execution because it is a law.” See Works of Alexander Hamilton 566 (J. C. Hamilton ed. 1851), quoted in L. Henkin, Foreign Affairs and the Constitution 161 (1972). The treaty power was simply too important to be left with the full Congress, or even with Congress and the Executive. See also notes 1, 2, 4, 5 and 13 supra, and note 29 infra.

28 See 4 Elliot (ed.), supra note 15, at 435. But see Gallatin, 4 Annals of Cong. 744–46 (1796). For views similar to Murray’s, see, e.g., notes 13–15, 27 supra; 4 Annals of Cong. 485 (Havens), 595–96 (J. Smith) and 1243 (Ames), quoted in Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1098-99 (1985); see also id. (Hamilton, Findley, Williams, Coit).

29 W. Rawle, A View of the Constitution of the United States 57–61 (1825), quoted in 1 C. Butler, supra note 3, at 397; see also 1 J. Kent, Commentaries on American Law 286–87 (1826) (general expectations that a treaty “is as much obligatory upon Congress as upon any other branch of the government, or upon the people at large. … The House of Representatives are not above the law”); letter from Secretary of State Livingston to Mr. Serurier, June 3, 1833, reprinted in 2 F. Wharton, A Digest of the International Law of the United States 67 (1866).

30 See U.S. Const, art. III, §2, cl. 1; see also text at notes 6, 8, 13, 18, 20 and 22 supra.

31 See U.S. Const, art. VI, cl. 2; see also McLaughlin, The Scope of the Treaty Power in the United States, 42 Minn. L. Rev. 709, 731 (1958) (“the phrasing used was calculated to assure that all treaties were included”).

32 Hamilton v. Eaton, 11 F. Cas. 336, 340 (C.C.D.N.C. 1792) (No. 5,980).

33 Id. at 337. See also Penhallow v. Doane’s Admin., 3 U.S. (3 Dall.) 54, 94 (1795) (Paterson, J.) (“when rightfully exercised,” constitutional power as to treaties is “equally binding upon those from whom the authority was derived,” i.e., the people).

34 United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (Marshall, C.J.). Just before he joined the Court, Marshall, as a member of the House of Representatives, defended the actions of President Adams under a treaty by noting: “The treaty … is a law … . Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but till this be done, it seems the duty of the Executive department to execute the contract by any means it possesses.” 10 Annals of Cong. 613–14(1800).

35 Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) 344, 348–49 (1809) (Marshall, C.J.) (emphasis added). As Secretary of State, Marshall had also decried the failure of certain British judges to apply international law, thus “converting themselves from judges into mere instruments of plunder.” See 2 American State Papers (Foreign Relations) 386–87, 486–90 (1832).

36 See, e.g., Carneal v. Banks, 23 U.S. (10 Wheat.) 181, 189 (1825) (Marshall, C.J.); Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 271, 274–76 (1817) (Marshall, C.J.); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 340–41, 360 (Story, J.), 370–71 (Johnson.J.) (1816); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603, 627 (1813) (Story, J.); Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) 344, 348–49 (1809) (Marshall, C.J.); Hopkirk v. Bell, 7 U.S. (3 Cranch) 454, 458 (1806); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236–37 (“any treaty”), 244–45 (Chase, J.), 249, 256 (Paterson, J.), 272, 276–77, 279 (Iredell, J.), 281 (Wilson, J.), 282, 284 (Cushing, J.) (1796); Hamilton v. Eaton, 11 F. Cas. at 337–38, 340; Gordon v. Kerr, 10 F. Cas. 801, 802 (C.C.D. Pa. 1806) (No. 5,611) (Washington, Circuit Justice); Fisher v. Harnden, 9 F. Cas. 129, 130–31 (C.C.D.N.Y. 1812) (No. 4,819) (Livingston, Circuit Justice), aff’d, 14 U.S. (1 Wheat.) 300 (1816). See also Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794) (Jay, C.J.) (alien’s individual right “revived at the peace, both by the law of nations and the treaty of peace”).

37 See, e.g., American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 542 (1828) (Marshall, C.J., opinion); United States v. Robins, 27 F. Cas. 825, 833 (D.C.D.S.C. 1799) (No. 16,175); United States v. Cooper, 25 F. Cas. 631, 641–42 (C.C.D. Pa. 1800) (No. 14,865) (Chase, Circuit Justice); Henfield’s Case, 11 F. Cas. 1099,1100–01 (Jay, C.J.), 1120 (Wilson, J.) (C.C.D. Pa. 1793) (No. 6,360); 1 Op. Att’y Gen. 57, 58 (1795); see also Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 159–61 (1795) (Iredell, J.); 1 Op. Att’y Gen. 566, 570–71 (1822).

38 See, e.g., Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 117–18 (1804) (Marshall, C.J.); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801) (Marshall, C.J.); 1 Op. Att’y Gen. 52,53 (1794); 1 Op. Att’y Gen. 26, 27 (1792).

39 See U.S. Const, art. VI, cl. 2.

40 See Ware v. Hylton, 3 U.S. (3 Dall.) at 237, 244 (Chase, J.), 261 (Iredell, J.), 272 (cf. id. at 273); 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’lL. 393, 434–35, and references cited (1988).

41 See Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) at 348–49. Importantly, the Chief Justice declared the next year that our judicial tribunals “are established … to decide on human rights.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810) (Marshall, C.J., opinion).

42 See Paust, supra note 40, at 430, 431–33 n.79, and references cited; see also Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 867 n.65 (1987); Gordon v. Kerr, 10 F. Cas. 801, 802 (C.C.D. Pa. 1806) (No. 5,611) (seemingly non-self-executing treaty “is supreme” over state constitution); 6 Op. Att’y Gen. 291, 293(1854); B. Weston, R. Falk&A. D’Amato, International Law and World Order 192 (1980); L. Sohn & T. Buergenthal, International Protection of Human Rights 947 (1973); Wright, National Courts and Human Rights—The Fujii Case, 45 AJIL 62, 69 (1951); Restatement (Third) of Foreign Relations Law of the United States §115 comment e (1987) [hereinafter Restatement (Third)] (stating that any U.S. treaty or international agreement “supersedes inconsistent State law or policy … . Even a non-self-executing agreement … may sometimes be held to be federal policy superseding State law or policy”). But see id. (“non-self-executing agreement … not effective as law”).

43 U.S. Const, art. VI, cl. 2.

44 See Paust, supra note 40, at 431–33 n.79, and references cited; notes 99, 104–05 and 107 infra.

45 Bartram v. Robertson, 122 U.S. 116,120 (1887) (Field, J., opinion). Justice Field used the phrase a year later in a more oft-cited opinion. Whitney v. Robertson, 124 U.S. 190, 194 (1888) (Field, J., opinion).

46 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.). See also id. (treaties that “the legislature must execute”).

47 Id. Marshall had primarily in mind the practice in Great Britain. Id. For evidence of a subsequent British practice, see Preuss, 45 ASIL Proc. 82, 85–87 (1951); United States v. Rauscher, 119 U.S. 407, 417 (1886).

In fact, most nation-states ratify treaties through a legislative process, thus obviating much of the concern about “self-executing” status or shifting attention to the intent of the legislature upon ratification. Cf. Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 Va. J. Int’l L. 627,638–41 & n.57 (1986). See also Restatement (Third), supra note 42, §111 Reporters' Note 5 (“few other states distinguish between self-executing and non-self-executing treaties”); T. Franck & M. Glennon, Foreign Relations and National Security Law 274–75 (1987); Henry, When Is a Treaty Self-Executing?, 27 Mich. L. Rev. 776, 779 (1929); Lillich, Invoking International Human Rights in Domestic Courts, 54 U. Cin. L. Rev. 367, 373 (1985); Preuss, supra, at 87–96, and references cited; P. De Visscher, De La Conclusion des Traités Internationaux 122, passim (1943). Professor Iwasawa also explains the many different meanings of “self-executing” and related phrases here and abroad and some of the confusion generated by the use of such phrases. See Iwasawa, supra, at 635–49, and references cited.

48 27 U.S. (2 Pet.) at 314.

49 See notes 34–38 supra. As a member of the House, the year before he joined the Court, Marshall had also recognized that the President was bound by a treaty because it was supreme federal law. See 10 Annals of Cong. 614 (1800), also in United States v. Robins, 27 F. Cas. 825, 836, 867 (D.C.D.S.C. 1799) (No. 16,175).

50 See 27 U.S. (2 Pet.) at 314 (“when the terms …—when either of the parties engages … , [when] the treaty addresses”); see also id. at 314–15:

Do these words act directly … or do they pledge the faith of the United States to pass acts which shall ratify and confirm them?

… .

… It does not say, that those grants are hereby confirmed. Had such been its language, it … would have repealed those acts of congress which were repugnant to it; but its language is, that those grants shall be ratified and confirmed … . By whom shall they be ratified and confirmed? [emphasis added].

51 See, e.g., Warren v. United States, 340 U.S. 523, 526–27 (1951); Valentine v. United States, 299 U.S. 5, 10–11 (1936); Jones v. Meehan, 175 U.S. 1, 10 (1889); Baldwin v. Franks, 120 U.S. 578, 703–04 (1887) (Field, J., dissenting); Edye v. Robertson, 112 U.S. 580, 598–99 (1884); Dainese v. Hale, 91 U.S. 13, 18–19 (1875); Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) at 348–49; Cardenas v. Smith, 733 F.2d 909, 918 (D.C. Cir. 1984); Benjamins v. British European Airways, 572 F.2d 913, 916–19 (2d Cir. 1978); Z. & F. Assets Realization Corp. v. Hull, 114 F.2d 464, 470 (D.C. Cir. 1940), aff’d, 311 U.S. 470 (1941); Ex parte Toscano, 208 F. 938, 942 (S.D. Cal. 1913); United Shoe Mach. Co. v. Duplessis Shoe Mach. Co., 155 F. 842, 845 (5th Cir. 1907); United States v. Enger, 472 F.Supp. 490, 542 & n.23 (D.N.J. 1978); Noel v. Linea Aeropostal Venezolana, 144 F.Supp. 359, 360 (S.D.N.Y. 1956); Indemnity Ins. Co. of N. Am. v. Pan Am. Airways, 58 F.Supp. 338, 340 (S.D.N.Y. 1944); Five Per Cent Cases, 6 Ct. Cust. App. 291, 328–31 (1915), rev’d on other grounds, 243 U.S. 97 (1917); see also Ware v. Hylton, 3 U.S. (3 Dall.) at 244 (Chase, J); People of Saipan v. United States Dep’t of Interior, 502 F.2d 90, 101 (9th Cir.) (Trask, J., concurring), cert, denied, 420 U.S. 1003 (1974); Blandford v. State, 10 Tex. App. 627, 639–40 (1881); Commonwealth v. Hawes, 76 Ky. (13 Bush) 697, 702 (1878); M. S. McDougal & W. M. Reisman, Interna Tional Law in Contemporary Perspective 1223 (1981) (cf. id. at 1229–30); 1 N. Redlich & B. Schwartz, Constitutional Law 3–107 (1983); B. Schwartz, Constitutional Law 102 (2d ed. 1979); 2 J. Story, Commentaries on the Constitution of the United States §423 (1833); 4 id. §1838 (4th ed. 1873); J. Sweeney, C Oliver & N. Leech, The International Legal System 1069 (2d ed. 1981) (but see id. at 1076 (Riesenfeld’s suggestion)); Bell & Foy, The President, the Congress, and the Panama Canal: An Essay on the Powers of the Executive and Legislative Branches in the Field of Foreign Affairs, 16 Ga. J. Int’l & Comp. L. Supp. 607, 627, 629 & n.97, 633 (1986); McDougal, Remarks, 45 ASIL Proc. 102 (1951); note 94 infra; cf. Henry, supra note 47, at 785, passim; Iwasawa, supra note 47, at 654–57, and references cited; Shelton, Overview of International Human Rights Law in Domestic Courts, 17 U.S.F. L. Rev. 12, 16 (1982). See also Henkin, Lexical or “Political Question”: A Response, 101 Harv. L. Rev. 524, 533 (1987) (strong preference “to make treaties self-executing whenever the character of the undertaking permits, so that they will have full status immediately as law”).

52 See 27 U.S. (2 Pet.) at 314–15; note 50 supra.

53 United States v. Percheman, 32 U.S. (7 Pet.) 51, 89 (1833) (Marshall, C.J.) (emphasis added) (adding that the “Spanish part of the treaty was not then [in Foster] brought to our view … .[It shows a] difference of expression in the same instrument, drawn up in the language of each party”). See also Garcia v. Lee, 37 U.S. (12 Pet.) 511, 519 (1838) (Taney, C.J., opinion); United States v. Wiggins, 39 U.S. (14 Pet.) 334, 349 (1840) (Catron, J., opinion).

54 Contra Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 630 (1857) (Curtis, J.); Wright, supra note 42, at 64. All that Marshall said that was even close was that “when the terms … import a contract … to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract.” 27 U.S. (2 Pet.) at 314 (emphasis added). See also id. at 315; notes 50, 53 supra. See further text at note 69 infra; Ware v. Hylton, 3 U.S. (3 Dall.) at 244 (Chase, J.) (stating that an article in a treaty is “a contract, on behalf of those courts”—thus, “contract” language does not require legislative action).

55 In Foster and Percheman, Congress clearly had enacted relevant legislation under a relevant congressional power, but self-executory effect hinged on interpretation of the terms of the treaty itself. On the general point, see also L. Henkin, supra note 27, at 149, 159 n.††; Restatement (Third), supra note 42, §111 Reporters’ Note 6; notes 100 and 102 infra.

56 3 U.S. (3 Dall.) 199, 256 (1796) (Iredell, J., dissenting).

57 See id. at 272.

58 See id. at 271–72.

59 See notes 9 and 17 supra.

60 See 3 U.S. (3 Dall.) at 273 (Iredell, J., dissenting).

61 See text at notes 47–48 supra; see also Respublica v. Cobbet, 3 U.S. (3 Dall.) 467, 473 (1798).

62 See 3 U.S. (3 Dall.) at 276–77 (Iredell, J., dissenting) (adding: once the Constitution was ratified, the treaty would control “as if every act constituting an impediment … had been expressly repealed, and any further act passed, which the public obligation had before required”).

63 See id. at 277.

64 See id. at 272.

65 See id. (emphasis added).

66 See id. at 244.

67 See text at notes 47–54 supra.

68 See 27 U.S. (2 Pet.) at 314–15.

69 See Schachter, The Charter and the Constitution: The Human Rights Provisions in American Law, 4 Vand. L. Rev. 643, 645 (1951), reprinted in International Human Rights: Problems of Law and Policy 72 (R. Lillich & F. Newman eds. 1979). For similar views, see, e.g., Henry, supra note 47, at 777–78; Iwasawa, supra note 47, at 685; Wright, supra note 42, at 65 n.12. But see Robertson v. General Elec. Co., 32 F.2d 495, 500 (4th Cir. 1929) (using the “contract” approach without evident knowledge of Percheman).

70 Schachter, supra note 69, at 645.

71 Id., adding: “The Supreme Court certainly does not consider either [of these supposed tests] as an indication that a treaty is not self-executing.” See also Ex parte Toscano, 208 F. 938, 942 (S.D. Cal. 1913). Cf. 19 Op. Att’y Gen. 273, 278–79 (1889). For similar views, see, e.g., Henry, supra note 47, at 777–78; Iwasawa, supra note 47, at 685–86; Comment, Self-Execution of United Nations Security Council Resolutions Under United States Law, 24 UCLA L. Rev. 387, 394 (1976) [hereinafter UCLA Comment]; Comment, Criteria for Self-Executing Treaties, 1968 U.

Ill. L.F. 238, 242 (1968) [hereinafter Ill. Comment]; Note, Treuiies—Scope of Treaty-Making Power—When Treaties Are Self-Executing, 26 Mich. L. Rev. 316, 320 (1928); note 51 supra and accompanying text. But see Robertson v. General Elec. Co., 32 F.2d 495, 500 (4th Cir. 1929); Ortman v. Stanray Corp., 371 F.2d 154, 157 (7th Cir. 1967). Marshall himself must have abandoned such a viewpoint. See note 53 supra and text at note 77 infra.

72 The quoted phrase is Marshall’s. 27 U.S. (2 Pet.) at 314. On the general point, see also Taylor v. Morton, 23 F. Cas. 784, 785 (C.C.D. Mass. 1855) (No. 13,799); L. Henkin, supra note 27, at 158; Iwasawa, supra note 47, at 654, 661, 684. One notable exception is the guarantee of the right to an effective remedy in domestic tribunals contained in human rights instruments.

73 See notes 50, 52 and 53 supra.

74 See text at notes 35 and 41 supra.

75 See also note 41 supra.

76 See text at note 53 supra.

77 See Delassus v. United States, 34 U.S. (9 Pet.) 117, 133 (1835) (Marshall, C.J., opinion). Marshall’s treaty language test seems to have been used later in 4 Op. Att’y Gen. 201, 209–10 (1843). See also 21 Op. Att’y Gen. 347, 348 (1896); 19 Op. Att’y Gen. 273, 278–79 (1889); 6 Op. Att’y Gen. 748, 749–50 (1854).

78 J. Story, supra note 51, §423 (“when the terms … the treaty addresses ……).

79 Id. For relevant judicial opinions of Justice Story, see, e.g., notes 36 supra and 83 infra.

80 J. Story, supra note 51, §423.

81 Id. Such direct enforcement is also known as direct incorporation, as opposed to indirect incorporation. See also text at notes 124–25 infra.

82 For cases recognizing such a distinction after 1829, see, e.g., Terlinden v. Ames, 184 U.S. 270, 285, 288–89 (1902) (Fuller, C.J., opinion); Fong Yue Ting v. United States, 149 U.S. 698, 720 (1893); Chae Chang Ping v. United States, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 630 (1857); United States v. Flint, 25 F. Cas. 1107, 1109 (C.C.D. Cal. 1876) (No. 15,121) (Field, Circuit Justice); In re Metzger, 17 F. Cas. 232, 233–35 (D.C.S.D.N.Y. 1847) (No. 9,511) (also recognizing that a treaty can enhance judicial power and that if it is “addressed to the judicial power [it can] become a rule of law of” itself and “must be observed and enforced” by the judiciary). See also Garcia v. Lee, 37 U.S. (12 Pet.) 511,519 (1838); Turner v. American Baptist Missionary Union, 24 F. Cas. 344, 345 (C.C.D. Mich. 1852) (No. 14,251); In re Sheazle, 21 F. Cas. 1214, 1217 (C.C.D. Mass. 1845) (No. 12,734) (President can exercise “ministerial acts” to implement extradition treaty even though no congressional legislation exists); note 45 supra. However, in Sheazle, the court declared that state magistrates are “bound in all cases to respect treaties and the rights under them.” 21 F. Cas. at 1216 (emphasis added).

83 See, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 458, 461 (1899); Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Raucher, 119 U.S. 407, 418 (1886); Chew Heong v. United States, 112 U.S. 536 (1884); Von Cotzhausen v. Nazro, 107 U.S. 215, 217 (1883); Hauenstein v. Lynham, 100 U.S. 483, 488–90 (1879); United States v. Forty-Three Gallons of Whisky, 93 U.S. 188, 197 (1876); Haver v. Yaker, 76 U.S. (9 Wall.) 32, 34 (1870); The New York Indians, 72 U.S. (5 Wall.) 761, 768, 770, 772 (1867); The Kansas Indians, 72 U.S. (5 Wall.) 737, 757, 759 (1866); Doe v. Braden, 57 U.S. (16 How.) 635, 657–59 (1853); The Passenger Cases, 48 U.S. (7 How.) 283, 413 (1849); Lessee of Pollard’s Heirs v. Kibbe, 39 U.S. (14 Pet.) 353, 412 (1840) (Baldwin, J., concurring); Carver v. Jackson, 29 U.S. (4 Pet.) 1, 101 (1830) (Story, J., opinion); In re Lee Sing, 43 F. 359, 360–62 (C.C.N.D. Cal. 1890); In re Parrott, 1 F. 481, 507, 517 (1880); Baker v. City of Portland, 2 F. Cas. 472, 473 (C.C.D. Ore. 1879) (No. 777); 26 Op. Att’y Gen. 250, 251–53 (1907); and cases cited in notes 84–86 infra. In one such case it was also recognized: “Where a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred.” Hauenstein v. Lynham, 100 U.S. at 487 (citing Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 249–50 (1830)). See also Paust, Human Rights: From Jurisprudential Inquiry to Effective Litigation, 56 N.Y.U. L. Rev. 227, 240 & n.65 (1981).

84 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 593 (1832) (Washington, J.). See also Hauenstein v. Lynham, 100 U.S. at 488 (Swayne, J., opinion) (“The efficacy of the treaty is declared and guaranteed by the Constitution” (emphasis added)).

85 Strother v. Lucas, 37 U.S. (12 Pet.) 410, 439 (1838) (Baldwin, J., opinion).

86 Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 372 (1857).

87 See, e.g., note 83 supra.

88 Maiorano v. Baltimore & Ohio R.R., 213 U.S. 268, 272–73 (1909).

89 265 U.S. 332, 341 (1924). See also Paust, supra note 83, at 240 n.65. In view of the many cases that seem to have paid no attention to the question of self-executing versus non-self-executing status, it would be difficult to argue that the Court in Asakura “assumed without discussion” that the relevant treaty was self-executing unless such an “assumption” clearly were “the rule” (i.e., that all treaties are “assumed” to be self-executing). See id. (addressing Reporters’ Note 5 to §131 of the Restatement of Foreign Relations Law of the United States (Revised) (Tent. Draft No. 1, 1980) [hereinafter 1980 Draft Restatement]); see also Restatement (Third), supra note 42, §111 Reporters’ Note 5; note 92 infra. No such “assumption” is evident, however, in the separate line of cases.

90 See, e.g., Zschernig v. Miller, 389 U.S. 429, 440–41 (1968); Baker v. Carr, 369 U.S. 186, 212 (1962); Kolovrat v. Oregon, 366 U.S. 187, 190–98 (1961); Clark v. Allen, 331 U.S. 503, 508 (1947) (Douglas.J., opinion); United States v. Pink, 315 U.S. 203,231 (1942) (Douglas, J., opinion); Hines v. Davidowitz, 312 U.S. 52, 62–63 (1941); Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 161–62, 166 (1940); Santovincenzo v. Egan, 284 U.S. 30, 40 (1931); Nielsen v. Johnson, 279 U.S. 47, 52 (1929); Jordan v. Tashiro, 278 U.S. 123, 127–29 (1928); Cheung Sum She v. Nagle, 268 U.S. 336, 345–46 (1925); Filartiga v. Pena-Irala, 630 F.2d 876, 882–87 (2d Cir. 1980) (a case nonetheless grounded upon a federal statute and arguably thereby “executed,” 28 U.S.C. §1350); Coriolan v. Immigration & Naturalization Serv., 559 F.2d 933, 996–97 (5th Cir. 1977); Kashani v. Immigration & Naturalization Serv., 547 F.2d 376, 379 (7th Cir. 1977); Perre v. United States, 525 F.2d 933, 935 (5th Cir. 1976); United States v. Steinberg, 478 F.Supp. 29, 33 (N.D. Ill. 1979); Chim Ming v. Marks, 367 F.Supp. 673, 676–81 (S.D.N.Y. 1973), aff'd, 505 F.2d 1170, 1171–72 (2d Cir. 1974) (per curiam), cert, denied, 421 U.S. 911 (1975); Kan Kam Lin v. Rinaldi, 361 F.Supp. 177, 179 n.l, 183–86 (D.N.J. 1973), aff’d, 493 F.2d 1229 (3d Cir.), cert, denied, 419 U.S. 974 (1974).

91 See note 89 supra.

92 See Restatement (Third), supra note 42, § 111 (3) and (4). The test of non-self-execution set forth in § 111(4) strengthens such a presumption, since non-self-execution only exists “if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation” or in a “rare” case (see note 95 infra) where legislation is “constitutionally required.” Id. Since such agreements are rare, the presumption will be strong that treaties are self-executing. The newer version of Reporters’ Note 5 retains this general presumption and also identifies a “strong presumption” of self-execution “if the Executive Branch has not requested implementing legislation and Congress has not enacted such legislation.” Id. §111 Reporters’ Note 5. See also Aerovias Interamericanas de Panama, S.A. v. Board of County Comm’rs, 197 F.Supp. 230, 248 (S.D. Fla. 1961) (presumed self-executing if no executive request for legislation), rev’d on other grounds sub nom. Board of County Comm’rs v. Aerolineas Peruanasa, 307 F.2d 802 (5th Cir. 1962), cert, denied, 371 U.S. 961 (1963); L. Henkin, R. Pugh, O. Schachter & H. Smit, International Law 202 (2d ed. 1987); Ill. Comment, supra note 71, at 243, 248. The new version of the Restatement adds: “Obligations not to act, or to act only subject to limitations, are generally self-executing.” Restatement (Third), supra, § 111 Reporters’ Note 5 (citing and later quoting Commonwealth v. Hawes, 76 Ky. (13 Bush) 697, 702–03 (1878)).

93 Restatement (Third), supra note 42, § 111 Reporters’ Note 5 (emphasis added). This presumption is recognized by others. See, e.g., Amaya v. Stanolind Oil & Gas Co., 158 F.2d 554, 556 (5th Cir. 1947); N. Redlich & B. Schwartz, supra note 51, at 3–107; B. Schwartz, supra note 51, at 102; Iwasawa, supra note 47, at 656, 668 n.184; III. Comment, supra note 71, at 248. See also Henkin, supra note 51.

94 See Restatement (Third), supra note 42, §111(4) (“if the agreement manifests an intention that it shall not become effective as domestic law”), §111 Reporters’ Note 5 (quoting Marshall), and id. (“unless a contrary intention is manifest”). This, of course, with the strong presumption noted in note 92 supra.

95 See Restatement (Third), supra note 42, § 111 (4). See also id. § 111 Reporters’ Note 6. A previous draft recognized that such instances would be “rare.” See Restatement of Foreign Relations Law of the United States (Revised) § 131 (4) (Tent. Draft No. 6, 1985) [hereinafter 1985 Draft Restatement].

96 See notes 51 and 82 supra.

97 See, e.g., People of Saipan v. United States Dep’t of Interior, 502 F.2d 90, 97 (9th Cir. 1974) (citing M. McDougal, H. Lasswell & J. Miller, The Interpretation of Agreements and World Public Order (1967)); Ill. Comment, supra note 71, at 239–41. For extensive treatment of related factors considered by the courts, see Iwasawa, supra note 47, at 653–75, 681–85, and references cited. See also Note, When Are Treaties Self-Executing?, 31 Neb. L. Rev. 463, 467–71 (1952).

The infamous Sex Fujii case, an old opinion of the California Supreme Court, also adopted a language considered in context approach, while concluding that relevant treaty provisions were not obligatory and lacked specificity. See Sei Fujii v. California, 38 Cal. 718, 722–25, 242 P.2d 617, 620–22 (1952). Use of these two bases for the court’s conclusion that the treaty provisions were not self-executing was not really questioned as such, but the specific application and choices were questioned. See, e.g., Wright, supra note 42. Further, subsequent events have obviated both prongs of the court’s conclusion and it has been recognized that the degree of “specificity” needed for judicial application is not great. See, e.g., Paust, supra note 83, at 239 & n.59; Schachter, supra note 69, at 652, 655.

The fact that a treaty addresses an obligation of signatories to assure that any necessary implementing legislation is forthcoming is not determinative. See, e.g., Burke, Coliver, de la Vega & Rosenbaum, Application of International Human Rights Law in State and Federal Courts, 18 Tex. Int’l L.J. 291, 302 (1983); Iwasawa, supra note 47, at 658–61, and references cited; Ill. Comment, supra note 71, at 241 & n.20. First, whether or not legislation is “necessary” in the United States is the very question at stake. Second, such a treaty provision may well be directed at other countries where treaties cannot be self-executing. See, e.g., Iwasawa, supra note 47, at 660–61 & nn.144, 152; Ill. Comment, supra note 71, at 241 & n.20. Third, such a clause may merely seek greater assurance of a directly operative effect in countries where legislation is not constitutionally “necessary.” See Iwasawa, supra, at 660; American Convention on Human Rights, Art. 2, opened for signature Nov. 22, 1969, reprinted in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System, OEA/Ser. L/V/II.65, doc. 6, at 63 (1985); International Covenant on Civil and Political Rights, Art. 2(2), GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966). In countries where the treaty can be self-executing, additional legislation is simply not “necessary.” Legislation would also not be “necessary” further to “ensure” self-operative effect if prior legislation were already operative to “execute” the particular treaty or such treaties more generally (or portions of them), it being recognized that treaties could be “executed” by any form of legislation. Fourth, text writers have recognized that the legislative history of relevant human rights treaties demonstrates that the parties “never intended to deny their self-executing character by inserting domestic implementation clauses.” Iwasawa., supra, at 660. Moreover, this recognition is strengthened by the fact that the right to an effective remedy in domestic tribunals for human rights deprivations is customary and is expressed elsewhere in the treaty as an independent right. See, e.g., Paust, On Human Rights: The Use of Human Right Precepts in U.S. History and the Right to an Effective Remedy in Domestic Courts, 10 Mich. J. Int’l L. (1988); American Convention on Human Rights, supra, Art. 25. Further, language such as “undertakes to ensure” has a mandatory quality unlike words such as “could” or “may,” which are usually discretionary.

98 See notes 92–94 supra.

99 For examples of this approach, see, e.g., E. Corwin, The President, Office and Powers 1787–1957, at 195 (4th rev. ed. 1957); L. Henkin, supra note 27, at 159 (re appropriations, crime, war; but see id. at 149, 159 n.††, 160); H. Steiner & D. Vagts, Transnational Legal Problems 584 (2d ed. 1976) (citing The Over the Top, 5 F.2d 838, 845 (D. Conn. 1925), re revenue matters and crime; actually, the case spoke of “fiscal” matters and appropriations, and the treaty involved was later found to be self-executing in Cook v. United States, 288 U.S. 102, 118–19 (1933)); R. Rotunda, Modern Constitutional Law 232 (2d ed. 1985); L. Tribe, American Constitutional Law 167–68 (1978) (citing Turner v. American Baptist Missionary Union, 24 F. Cas. 344 (C.CD. Mich. 1852) (No. 14,251)); 14 M. Whiteman, Digest of International Law 305 (1970); Anderson, The Extent and Limitations of the Treaty-Making Power Under the Constitution, 1 AJIL 636, 653 (1907); Dickinson, Are the Liquor Treaties Self-Executing?, 20 AJIL 444, 448–49 (1926) (cf. id. at 449–50); Evans, Some Aspects of the Problem of Self-Executing Treaties, 45 ASIL PROC. 66, 71, 74 (1951) (but see id. at 72–74) [hereinafter Evans I]; Evans, Self-Executing Treaties in the United States of America, 30 Brit. Y.B. Int’l L. 178, 185, 187 (1954) (but see id. at 186–87, 190–91, also listing cases involving self-executing treaties) [hereinafter Evans II]; Henkin, supra note 42, at 868 n.70 (reading United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812), too broadly re common law crime); Henry, supra note 47, at 780 (but see id. at 782 re crimes); Iwasawa, supra note 47, at 676–78 (cf. id. at 676–77); Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 AJIL 892, 898 n.30 (1980); Schachter, supra note 69, at 645; Wright, supra note 42, at 68, 77–78; UCLA Comment, supra note 71, at 399–400 (re appropriations; but see id., all others can be self-executing); Note, supra note 97, at 472–74 (but see id. at 471–74); cf. Paust, After My Lai: The Case for War Crime Jurisdiction over Civilians in Federal District Courts, 50 Tex. L. Rev. 6, 9 n. 10 (1971) (assumed better view at the time re crime), reprinted in 4 The Vietnam War and International Law 447, 450 n.10 (R. Falk ed. 1976); Wright, Treaties and the Constitutional Separation of Powers in the United Slates, 12 AJIL 64 (1918); British Caledonian Airways v. Bond, 665 F.2d 1153, 1160 (D.C. Cir. 1981); Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir. 1980); Edwards v. Carter, 580 F.2d 1055, 1057 n.4 (Raoul Berger), 1058 (D.C. Cir.), cert, denied, 436 U.S. 907 (1978) (but see id. at 1057–58); Swearingen v. United States, 565 F.Supp. 1019, 1022 (D. Colo. 1983) (citing Edwards); Aerovias Interamericanas de Panama, S.A. v. Board of County Comm’rs, 197 F.Supp. 230, 246 (S.D. Fla. 1961) (citing Turner, 24 F. Cas. 344).

100 See Edwards v. Carter, 580 F.2d at 1058–59 (discussed in text at notes 111–21 infra); Indemnity Ins. Co. of N. Am. v. Pan Am. Airways, 58 F.Supp. 338, 339–40 (S.D.N.Y. 1944); see also United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 103–10 (1801). Several treaties have had a self-executing or self-operative effect despite the existence of some concurrent congressional power. See, e.g., Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252, reh’g denied, 467 U.S. 1231 (1984); Cook v. United States, 288 U.S. 102, 119 (1933); Charlton v. Kelley, 229 U.S. 447 (1913); Johnson v. Browne, 205 U.S. 309 (1907); Francis v. Francis, 203 U.S. 233, 241–42 (1906); Ward v. Race Horse, 163 U.S. 504 (1896); Chae Chan Ping v..United States, 130 U.S. 581, 600 (1889); Smith v. Canadian Pacific Airways, 452 F.2d 798, 801–02 (2d Cir. 1971); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 640 & n.9 (2d Cir. 1956); Master v. Cribben & Sexton Co., 202 F.2d 779, 783 (C.C.P.A. 1953); Pettibone v. Cook County, Minn., 120 F.2d 850, 854–55 (8th Cir. 1941); John T. Bill Co. v. United States, 104 F.2d 67, 73 (C.C.P.A. 1939); United States v. Garrow, 88 F.2d 318, 320 (C.C.P.A. 1937) (re customs); The Pictonian, 3 F.2d 145, 147 (E.D.N.Y. 1924) (re extension of criminal jurisdiction), rev’d on other grounds, 20 F.2d 353 (2d Cir. 1927); Hennebique Const. Co. v. Myers, 172 F. 869, 873–74 (Gray, J.), 887–88 (Archbald, D.J.) (3d Cir. 1909); Hannevig v. United States, 84 F.Supp. 743, 744–45 (Ct. Cl. 1949); Petition of Georgakopoulos, 81 F.Supp. 411,413 (E.D. Pa. 1948); American Express Co. v. United States, 4 Ct. Cust. App. 146 (1913); United States v. Kelly, 2 Extrater. Cases 665, 669–70 (U.S.C. China 1923) (treaty prohibiting contraband trade can be self-executing for criminal sanction purposes); Ill. Comment, supra note 71, at 243; UCLA Comment, supra note 71, at 399–400; notes 34, 37, 51, 53, 55, 77, 83,

86 and 90 supra. See also INS v. Stevic, 467 U.S. 407, 428 n.22 (1984); O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 42 (1943); The Three Friends, 166 U.S. 1, 53 (1897) (crimes); Reichert v. Felps, 73 U.S. (6 Wall.) 160, 165–66 (1868); United States v. Moreno, 68 U.S. (1 Wall.) 400, 404, (1864); United States v. Worrall, 2 U.S. (2 Dall.) 384, 391 (Chase, J.), 395 (Peters, J.) (C.C.D. Pa. 1798); Robertson v. General Elec. Co., 32 F.2d 495, 500 (4th Cir. 1929); Morris v. United States, 161 F. 672, 675 (8th Cir. 1908); 7 Op. Att’y Gen. 746, 750 (1856); cf. United States v. Mason, 344 F.2d 673, 683–85 (2d Cir. 1965). See further United States v. Ragsdale, 27 F. Cas. 684, 686 (C.C.D. Ark. 1847) (No. 16,113).

101 See note 1 supra. To decide otherwise would be to undermine both the treaty power and judicial power, and thus to disrupt the proper balance of power the Constitution sought to establish, by preventing the judiciary and the executive branch from accomplishing their constitutionally assigned responsibilities. For this reason also, appropriate concern for the separation of powers compels recognition that a court that refuses for some specious reason to apply international law denies its own validity. When human rights are at stake, such a court may also be denying or disparaging human rights within the meaning of the Ninth Amendment. See Paust, Human Rights and the Ninth Amendment: A New Form of Guarantee, 60 Cornell L. Rev. 231, 234–37, 249, 257–60, 266–67 (1975); note 41 supra.

102 See, e.g., Representative Marshall, quoted in note 34 supra; Anderson, supra note 99, at 653, 655, 657, 664; McDougal & Arens, The Genocide Convention and the Constitution, 3 Vand. L. Rev. 683,690–91 (1950) (cf. id. at 693 n.63); Hamilton (re taxes, quoted in Lobel, supra note 28, at 1098); Palmer, The Federal Common Law of Crime, 4 Law & Hist. Rev. 267, 276, 277 n.63 (1986) (also quoting Representative Marshall, 10 Annals of Cong. 607 (1800)); note 55 supra; Ill. Comment, supra note 71, at 243; UCLA Comment, supra note 71, at 399–400 (but see id.; one exception involves appropriations). See also text at notes 10–11 and 26 supra; Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 159–61 (1795) (Iredell, J.); 1 Op. Att’y Gen. 68,69 (1797) (“law of nations” can be self-operative for criminal sanction purposes); J. Hendry, Treaties and Federal Constitutions 92 (1955) (citing 5 G. Hackworth, Digest of International Law 16–17 (1943)); Dickinson, supra note 99, at 449–50 (re crimes); Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 36–38 (1952); Evans I, supra note 99, at 72–74 (re taxes, revenue, duties, commercial matters, trademarks); Evans II, supra note 99, at 190–91; Henry, supra note 47, at 782 (re crimes); McLaughlin, supra note 31, at 749; Nathanson, The Constitution and World Government, 57 Nw. U.L. Rev. 355, 362–64 & n.16 (1962); Paust, supra note 99; Note, supra note 97, at 471–74; cf. Marshall, supra: “But the Judicial power cannot extend to political compacts: so as to allow Courts to ‘execute’ such compacts” (emphasis added).

103 See note 100 supra.

104 See Restatement (Third), supra note 42, § 111(4).

105 See id. §111 comment i (“if the agreement would achieve what lies within the exclusive law-making power of Congress under the Constitution” (emphasis added)).

106 Id. §111 Reporters’ Note 6.

107 See id. § 111 comment i (“Thus … requires”).

108 See id. and §111 Reporters’ Note 6. But see note 102 supra.

109 See Restatement (Third), supra note 42, §111 comment i. But see note 102 supra.

110 Restatement (Third), supra note 42, §111 Reporters’ Note 6, adding: “But see the dissenting opinion in Edwards v. Carter … .” There are no Supreme Court opinions supporting such assumptions and relevant judicial opinions are extremely rare. See note 99 supra. Cf. note 116 infra on the sui generis power of Congress to declare war.

111 580 F.2d at 1057–58 (emphasis added), adding:

The American Law Institute’s Restatement of Foreign Relations, directly addressing this issue, comes to the same conclusion we reach:

The mere fact, however, that a congressional power exists does not mean that the power is exclusive so as to preclude the making of a self-executing treaty within the area of that power.

ALI Restatement of Foreign Relations Law (2d), §141, at 435 (1965).

580 F.2dat 1058.

112 580 F.2d at 1058 n.7. See also note 116 infra.

113 580 F.2d at 1058 (emphasis added), adding:

These particular grants of power to Congress operate to limit the treaty power because the language of these provisions clearly precludes any method of appropriating money or raising taxes other than through the enactment of laws by the full Congress. This is to be contrasted with the power-granting language in Art. I, §8, and in Art. IV, §3, cl. 2. Rather than stating the particular matter of concern and providing that the enactment of a law is the only way for the federal government to take action regarding that matter, these provisions state simply that Congress shall have power to take action on the matters enumerated.

Id. at 1059.

114 See U.S. Const, art. I, §8, cl. 10; notes 100 and 102 supra. See also Note, supra note 97, at 473. But see note 99 supra.

115 See U.S. Const, art. I, §8, cls. 1 and 3; notes 100 and 102 supra. But see text at note 113 supra (Edwards, considering Art. I, §7, cl. 1 to prohibit taxes by treaty); note 99 supra.

116 Compare U.S. Const, art. I, §8, cl. 11, with text at note 112 supra. See also U.S. Const. art. I, §8, cls. 12–15; P. Brest, Processes of Constitutional Decisionmaking 435 (1975) (recognizing that the Founders “rejected a resolution that would have lodged the war power in the president and Senate” (citing 1 Farrand (ed.), supra note 2, at 292, 300)); Iwasawa, supra note 47, at 677–78 & n.251; Murphy, Treaties and International Agreements Other Than Treaties: Constitutional Allocation of Power and Responsibility Among the President, the House of Representatives, and the Senate, 23 Kans. L. Rev. 221,224–30, 241–42,245 (1975); 3 Falk (ed.), supra note 99, at 489–91 (1972); 4 id. at 535–818; The Federalist No. 64, at 420 (Jay) (“power of making treaties is an important one, especially as it relates to war”); Paust, supra note 40, at 416–18 (“war power” exception to last-in-time rule accepts treaty-based international law as a restraint on congressional power); Restatement (Third), supra note 42, § 111 Reporters’ Note 6 (‘The power of Congress to declare war is not characterized or designated in any way that would distinguish it from, say, the power to regulate commerce …”).

A declaration of war is not the equivalent of legislation or a “law,” but is the outcome of an exercise of a sui generis power. See, e.g., Brown v. United States, 12 U.S. (8Cranch) 110, 125–26 (1814) (Marshall, C.J., opinion). This might distinguish that portion of the “war power” so as to allow the conclusion that no treaty constitutionally could declare war, although treaties regulating the conduct of war certainly could be self-executing. See also 50 U.S.C. §§1541, 1547(a)(2) (1982) (§8(a)(2) of the War Powers Resolution: no authority to introduce forces shall be inferred “from any treaty … unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces”). Further, there is significant judicial precedent to the effect that the war power (unlike others here mentioned) is vested in the full Congress. See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862); Brown v. United States, supra; Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801); Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800). See also Glennon, United States Mutual Security Treaties: The Commitment Myth, 24 Colum. J. Transnat’l L. 509 (1986); Paust, Responding Lawfully to International Terrorism: The Use of Force Abroad, 8 Whittier L. Rev. 711, 718–19 n.21 (1986).

117 See 4 Elliot (ed.), supra note 15, at 129 (Iredell), 438 (Lyman).

118 U.S. Const, art. I, §7, cl. 1; text at note 113 supra.

119 See also notes 102 and 115 supra.

120 See also Evans II, supra note 99, at 185 n.3 (“It is possible to argue, however, that … appropriations may be made by treaty” (citing Feidler & Dwan, The Extent of the Treaty-Making Power, 28 Geo. L.J. 187,192(1939)); Restatement (Third), supra note 42, §111 Reporters’ Note 6 (might be “possible to conclude that since treaties are declared to be ‘law’ (Art. VI) and are treated as equal to an act of Congress for other purposes, an appropriation of funds through an international agreement is an appropriation ‘made by law’ ”). But see id. § 111 comment i (appropriation of funds listed as “exclusive law-making power of Congress”).

121 But see Restatement (Third), supra note 42, § 111 Reporters’ Note 6 (addressing Art. I, §8, cl. 17, “exclusive legislation,” which might even be distinguished from the term “Law”); notes 112 and 116 supra (re war power as sui generis).

122 But see text at note 117 supra.

123 See note 111 supra and accompanying text; see also note 99 supra.

124 See, e.g., Iwasawa, supra note 47, at 687, 689–90 (& nn.323, 328), 692; Paust, supra note 40, at 403–05, and references cited; Paust, supra note 83, at 240–42, 244.

125 See note 124 supra.

126 See 1980 Draft Restatement, supra note 89, §131(3) (“given effect only after“). Section 131(3) was changed in the 1985 draft to read: “not be given effect as law” and should have read “not be given effect directly as law.” See 1985 Draft Restatement, supra note 95; Paust, supra note 40, at 403–04 n.14, 446–47.

127 United States v. Postal, 589 F.2d 862, 875 (5th Cir.), cert, denied, 444 U.S. 832 (1979).

128 See Paust, supra note 83, at 239–40.

129 See id. at 240 n.63.

130 See text at notes 83–90 supra.

131 See note 116 supra.

132 See McDougal, Remarks, 45 ASIL Proc. 102 (1951) (“this word ‘self-executing’ is essentially meaningless, and … the quicker we drop it from our vocabulary the better for clarity and understanding”).