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?,
U of Chicago Public Law Research Paper No. 82
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1354