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.
When Do American Judges Enforce Treaties?,
University of Chicago Public Law Research Paper No. 82
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1354