Treaties as Law of the Land: The Supremacy Clause and Presumption of Self-Execution, a new article by Carlos Vázquez and to be published in the Harvard Law Review, has just been posted to SSRN.
[This article was being prepared for publication in the May 2008 issue of the Harvard Law Review when the Supreme Court handed down its decision in Medellín v. Texas on March 25. A revised version will appear in a later issue of the same journal.]
The case law concerning the judicial enforcement of treaties has long been regarded as a morass. Relying on the notion that treaties are contracts between nations generally enforceable only at the state-to-state level, primarily through diplomatic mechanisms, the lower courts have begun to require private parties invoking treaties to make a threshold showing of "judicial enforceability" over and above the showing that litigants must make to enforce statutes and the Constitution. This Article argues that such a showing is unnecessary because the Supremacy Clause supplements the state-to-state enforcement mechanisms provided by international law with a domestic mechanism: enforcement in the courts at the behest of individuals. Under the Supremacy Clause, the judicial enforcement of treaties is governed by the same doctrines that govern the judicial enforcement of the other two forms of federal law - federal statutes and the Constitution. The sole exception to the foregoing proposition concerns treaties that are "non-self-executing" in the sense contemplated by the Court in Foster v. Nielson. This Article argues that the Constitution establishes a presumption that treaties are self-executing in this sense. The Court's subsequent decision in United States v. Percheman is best read to have recognized such a presumption when it wrote that a treaty is non-self-executing if it "stipulat[es] for a future legislative act."
In recent years, the U.S. treaty-makers have been attaching declarations of non-self-execution to the human rights treaties the United States has ratified. These declarations appear to be stipulations of the sort contemplated by the Court in Percheman, but their validity has been the subject of considerable controversy. This Article concludes that declarations clearly stipulating that the treaty obligations being assumed by the United States are subject to legislative implementation do validly render the treaties non-self-executing in the Foster/Percheman sense.