When Do American Judges Enforce Treaties?

Tim Wu, Columbia Law School


This paper advances a theory of judicial treaty interpretation and enforcement in the American legal system.

Today, the doctrine of self-execution dominates the study of judicial enforcement of treaties in U.S. courts. This paper, based on an extensive study of the record of treaty practice in U.S. courts, suggests a different analysis.

Treaty enforcement has in practice varied on who judges are asked to enforce a treaty against – the party alleged to be in breach – whether States, the Executive, or Congress. This paper shows this pattern thorough the history of U.S. treaty practice.