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 (2008) | DOWNLOAD PDF

Should Antitrust Condemn Tying Arrangements that Increase Price Without Restraining Competition?

Steven Semeraro :: In his article Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, Professor Einer Elhauge attempted to demonstrate that tying, the practice whereby a firm conditions the sale of one product on the customer’s agreement to purchase another, always harms consumers. He determined that antitrust law should prohibit tying even when that tying did not restrain competition in the tied product’s market. In this response, Professor Steven Semeraro argues that this form of tying actually benefits consumers in the long term. READ MORE

Disappearing Neighbors

David D. Troutt :: In his article Mobile Capital, Local Economic Regulation, and the Democratic City, Professor Richard C. Schragger explored the consequences of local governments’ attempts to entice — and then exploit — mobile capital. He concluded that cities possess, but must not abuse, the power to assert democratic control over capital flow. In this response, Professor David D. Troutt argues that current foreclosure crisis demonstrates the weakness of cities in relation to mobile capital. READ MORE

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Cynthia Estlund :: In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. READ MORE

FORUM ARCHIVE

RSS FEED

Harvard Law Review
Gannett House
1511 Massachusetts Ave
Cambridge, MA 02138

Editorial Office:
617-495-7889
617-496-5053 (fax)

Business Office:
617-495-4650
617-495-2748 (fax)