Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties
Vazquez, Carlos Manuel, Harvard Law Review
TABLE OF CONTENTS INTRODUCTION 601 I. THE REQUIREMENT OF EQUIVALENT TREATMENT 611 A. The Supremacy Clause and the British Rule 613 B. The Purpose and Original Public Meaning of the Supremacy Clause 616 C. Early Judicial Construction 619 1. Ware v. Hylton on the Supremacy Clause's Reversal of the British Rule 619 2. Foster and the Requirement of Equivalent Treatment 621 D. The Contrary View 623 II. THE NON-SELF-EXECUTION EXCEPTION 628 A. Four Versions of Non-Self-Execution 629 B. Non-Self-Execution in Foster and Percheman 632 1. The Foster Conundrum 633 2. Intent of the U.S. Treatymakers? 638 3. Salvaging Foster 641 4. Percheman and the Presumption of Self-Execution 644 C. Understanding Medellin 646 1. The Effect of Non-Self-Execution 648 2. The Cause of Non-Self-Execution 651 (a) Presumption Against Self-Execution Rebuttable by Clear Statement that Treaty Has Domestic Legal Force 652 (b) Test Turning on Whether Treaty Requires Direct Judicial Enforcement 654 (c) No Presumption 656 (d) Default Rule of Self-Execution Rebuttable by Evidence of Intent To Require Implementing Legislation 657 (e) Test Turning on the Intent of U.S. Treatymakers 658 (f) Medellin as a Nonjusticiability Case 660 3. Interpreting Medellin 665 III. DECLARATIONS REGARDING SELF-EXECUTION AS MODERN-DAY PERCHEMAN OR MEDELLIN STIPULATIONS 667 A. Declarations of Non-Self-Execution 672 1. The Case Against Validity 672 2. The Inadequacy of Existing Defenses 675 3. Evaluating the Arguments Against Validity 677 (a) Validity of Reservations of Non-Self-Execution 677 (b) Validity of Declarations of Non-Self-Execution 681 B. The Validity of Declarations of Self-Execution 685 CONCLUSION 694
Treaties are being invoked increasingly in the courts, both in cases connected to the "war on terror" (1) and in cases that would not otherwise be regarded as particularly international in nature. (2) When confronted with treaties, the courts often address as a threshold question whether a treaty is "judicially enforceable." Often, though not always, they will address this question in the context of deciding whether the treaty is "self-executing." The Supreme Court introduced this concept as the basis of an alternative holding in Foster v. Neilson (3) in 1829, but, after disavowing its Foster holding four years later in United States v. Percheman, (4) the Court all but abandoned the field for the next 174 years. In the meantime, the lower courts confessed to being confounded by the "self-execution" question. (5) The Supreme Court reentered the field last …
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Publication information: Article title: Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties. Contributors: Vazquez, Carlos Manuel - Author. Journal title: Harvard Law Review. Volume: 122. Issue: 2 Publication date: December 2008. Page number: 599+. © 2007 Harvard Law Review Association. COPYRIGHT 2008 Gale Group.
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