When and why do American judges enforce treaties? The question, always important, has become pressing in an age where the United States is party to over 12,000 international agreements. Article VI of the United States Constitution declares "all treaties" the "supreme Law of the Land," and American judges have long had the potential power, under the Constitution, to enforce treaties as they do statutes. But over the history of the United States, judges have not enforced treaties that way. Instead, judicial treaty enforcement is widely seen as unpredictable, erratic, and confusing. As a result, the question of treaty enforcement has become a leading question in both American jurisprudence and the study of international law. In recent years, given difficult questions surrounding the enforcement of the Vienna and Geneva Conventions, treaty enforcement questions have also become a regular part of the Supreme Court's docket.
Today's dominant theory of treaty enforcement is the doctrine of "self-execution," which suggests that judicial enforcement of treaties is deduced from the nature of the treaties signed. Thought to have originated in the early nineteenth century, the theory holds that some treaties are written so as to be directly enforceable, just like a statute, with full domestic effects, while other treaties are written so as to create duties only under international law. Understandably, the distinction has provoked confusion for more than a century. While academics have criticized the doctrine as perplexing and of little predictive value, they have so far failed to come up with an alternative description of judicial behavior.
This Article, based on a study of the history and record of treaty enforcement, provides a descriptive theory as to when treaties are actually enforced in American courts. It finds that the main inquiries in treaty enforcement are questions of deference. Stated otherwise, judicial treaty enforcement turns mainly on who is accused of being the party in breach and the perceived competence of the judiciary to offer a remedy. A good guide to treaty enforcement across the history of the United States is a question of identity: whether the judiciary will defer to a breach of a treaty by Congress, the Executive, or a State.
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/841