Law (Makers) of the Land: The Doctrine of Treaty Non-Self-Execution

David H. Moore

Responding to Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008)

Last year, in Medellín v. Texas, the Supreme Court handed down its most important decision on the domestic status of treaties in almost two hundred years. The Court concluded that the International Court of Justice’s (ICJ) judgment in the Case Concerning Avena and Other Mexican Nationalsis not binding federal law because the treaties rendering the judgment compulsory on the international stage are not self-executing.

In the wake of that decision, Professor Carlos Vázquez, one of the foremost scholars on U.S. treaty law, has argued that one strain of the doctrine of non-self-execution — the Foster doctrine — is invalid. Specifically, he argues that this brand of non-self-execution is inconsistent with the Constitution, long-standing precedent, other manifestations of the non-self-execution doctrine, and the best reading of Medellín.

In this essay, Professor Moore challenges each assertion. Each stems from a focus on treaties’ status as law of the land under the Supremacy Clause. But the propriety of the Foster doctrine is defined largely by the constitutional scope and allocation of lawmaking authority. Focusing on the authority of the lawmakers of the land rather than on treaties’ status as law of the land, this essay concludes that the Foster brand of non-self-execution is supported by the Constitution, consistent with long-standing precedent, a coherent part of the non-self-execution doctrine, and endorsed by Medellín.



122 Harv. L. Rev. F. 32 (2009) | DOWNLOAD PDF