Treaties Domain

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TREATIES’ DOMAINS
Tim Wu*
INTRODUCTION ................................................................................... 572
I. THE SELF-EXECUTION PROBLEM AND THE DEFERENCE
MODEL .......................................................................................... 577
A. The Trouble with Treaties & Non-Self-Execution.............. 577
B. The Deference Model of Treaty Enforcement .................... 580
1. A Contract Model ............................................................ 580
2. Summary of Findings ...................................................... 582
a. State Breach ............................................................... 583
b. Congressional Breach ............................................... 587
c. Executive Breach ....................................................... 589
d. Types of Breach: A Signaling Model ...................... 594
e. Foreign Breach .......................................................... 597
II. PRE-TWENTIETH CENTURY TREATY ENFORCEMENT IN THE
UNITED STATES ............................................................................ 600
A. Establishing the Basic Principle of No Deference to
States Who Breach ................................................................. 601
1. The Flip Side .................................................................... 606
B. Expanding the Basic Principle and Introducing
Deference to Congress as Breacher: Commercial
Treaties.................................................................................... 608
1. The Flip Side: Tariffs—When Congress Breaches ....... 611
C. The Difference Between State and Congressional
Breach: Immigration & Chinese Exclusion ........................ 615
D. Enforcement Against the Executive: Extradition................ 622
*
Professor, Columbia Law School. My thanks to Curtis Bradley, Rachel Brewster,
Bradford Clark, Lori Damrosch, William Dodge, Martin Flaherty, Jack Goldsmith,
Oona Hathaway, Duncan Hollis, Thomas Lee, Kal Ralstiala, Cass Sunstein, Ann
Woolhander, Ingrid Wuerth, Ernie Young, and Paul Stephan for feedback on this and
different drafts, and to Katherine Gehring and particularly Pamela Bookman for re-
search assistance. Thanks to participants at the 2005 Harvard Foreign Relations
Workshop, the Columbia Law School “10-10” Faculty Workshop, the 2004 Virginia
Birdwood Faculty Retreat, the George Washington University Law School Faculty
Workshop, the 2004 Foreign Relations Interest Group Conference at Georgetown
University Law Center, and the University of Chicago Work-in-Progress Workshop.
571
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572 Virginia Law Review [Vol. 93:571
III. THE TWENTIETH CENTURY AND THE AGE OF

MULTILATERAL TREATIES ......................................................... 630
A. Enforcement Against States Continuing into the Present:
The Warsaw Convention....................................................... 633
B. The Difference Between State and Congressional Breach
Continues in the Twentieth Century: International
Intellectual Property Regimes............................................... 635
C. Human Rights Treaties.......................................................... 637
D. Further Developments in Enforcement Against the
Executive ................................................................................ 643
E. The Rise of the Congressional-Executive Agreement:
Altering the Balance of Deference ....................................... 645
CONCLUSION ....................................................................................... 648
INTRODUCTION
W HEN and why do American judges enforce treaties?1 The

question, always important, has become pressing in an age
where the United States is party to over 12,000 international
agreements.2 Article VI of the United States Constitution declares
“all treaties” the “supreme Law of the Land,”3 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 Conven-
tions, treaty enforcement questions have also become a regular
part of the Supreme Court’s docket.4
1
The term “treaty” in this paper is used in the international law sense of the term
and refers to both Article II treaties and executive agreements. Article II treaties are
separately described as such.
2
Cong. Research Serv. for S. Comm. on Foreign Relations, 106th Cong., Treaties
and Other International Agreements: The Role of the United States Senate 39
(Comm. Print 2001) [hereinafter Cong. Research Serv.].
3
U.S. Const. art. VI.
4
See, e.g., Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006); Medellin v. Dretke,
544 U.S. 660, 662 (2005) (dismissing certiorari as improvidently granted in case dis-
cussing enforcement of the Vienna Convention on Consular Relations).
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2007] Treaties’ Domains 573
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.5 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. Under-
standably, the distinction has provoked confusion for more than a
century.6 While academics have criticized the doctrine as perplex-
ing 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 inquir-
ies in treaty enforcement are questions of deference. Stated other-
wise, judicial treaty enforcement turns mainly on who is accused of
being the party in breach and the perceived competence of the ju-
diciary 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.
There is, perhaps unsurprisingly, a strong historical pattern of
enforcement of treaties against the individual States of the United
States. Beginning in 1796 with the Great British Debt Case,7 courts
have consistently enforced treaties to prevent States from placing
the United States in breach. While the fact has not been recognized
previously, direct treaty enforcement in U.S. courts consists mostly
5
See Restatement (Third) of the Foreign Relations Law of the United States § 111
(1987).
6
See, e.g., Curtis A. Bradley, International Delegations, The Structural Constitu-
tion, and Non-Self-Execution, 55 Stan. L. Rev. 1557, 1587–88 (2003); Louis Henkin,
U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89
Am. J. Int’l L. 341, 346–48 (1995); Jordan J. Paust, Self-Executing Treaties, 82 Am. J.
Int’l L. 760, 760 (1988); David Sloss, Non-Self-Executing Treaties: Exposing A Con-
stitutional Fallacy, 36 U.C. Davis L. Rev. 1, 4 (2002); Carlos Manuel Vázquez, Laugh-
ing at Treaties, 99 Colum. L. Rev. 2154, 2183–88 (1999); Carlos Manuel Vázquez, The
Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 695 (1995) [herein-
after Vázquez, Four Doctrines]; John C. Yoo, Globalism and the Constitution: Trea-
ties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955
(1999).
7
Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236–37 (1796).
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of enforcement against State breach of U.S. treaty obligations.

There is, moreover, an underlying constitutional logic to such en-
forcement: States are granted no power under the constitutional
design to breach treaties on behalf of the United States. Judges
have long enforced what can be called the central dogma of judicial
treaty enforcement: that “the peace of the whole ought not to be
left at the disposal of a part.”8
A second clear finding is with respect to an alleged Congres-
sional breach (or anticipatory repudiation) of U.S. treaty obliga-
tions. While Congress sometimes arguably misimplements a treaty,
or passes inconsistent legislation, courts in practice do not enforce
treaties directly in the face of such Congressional action. Instead,
courts obey the legislation passed by Congress, limiting themselves
to indirect enforcement through interpretative presumptions (most
notably, the Charming Betsy canon).9 In other words, in the Con-
gressional domain, questions of treaty enforcement all turn on the
usage of rules like Charming Betsy to interpret legislation so as not
to conflict with treaty obligations.
While this Article identifies fairly clear patterns for Congress
and the States, it makes somewhat less progress on perhaps the
most vexing problem in treaty enforcement: the patterns of en-
forcement against Executive breach. In cases of alleged Executive
breach, the judiciary faces a difficult question: is an apparent
breach an unwarranted violation of the law or the exercise of a le-
gitimate authority to breach the treaty? This Article shows the
rough development of a system with some similarity to the system
of deference to agency statutory interpretations known as Chevron
deference.10 While the system of Executive treaty deference oper-
ates in a largely unrecognized and not well understood fashion, we
8
The Federalist No. 80, at 439 (Alexander Hamilton) (Colonial Press rev. ed. 1901).
9
The Charming Betsy canon, in its original form, states that “an act of Congress
ought never to be construed to violate the law of nations if any other possible con-
struction remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804). The rule is also reflected in the Restatement (Third) of the Foreign Relations
Law of the United States § 115 (1987).
10
See Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984); see also
United States v. Mead Corp., 533 U.S. 218 (2001). I will refer to the system of Chev-
ron deference as the “statutory system” of deference.
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can detect a rough equivalent to the statutory system for deciding

when more or less deference is due the Executive.11
The descriptive findings in this paper suggest rethinking the law
of treaty enforcement in the American legal system. To the extent
that a legal theory serves as a prediction of what judges will do, to-
day’s doctrine of self-execution is not successful. As scholars have
pointed out, the rule of self-execution has been stretched beyond
recognition in the twentieth century into a loose doctrine that
blocks judicial enforcement of treaties on a seemingly ad hoc ba-
sis.12 As this Article shows, the doctrine is widely used as a judicial
device to enforce political and structural policies related to the
identity of the breaching party.
A determination that a treaty is self-executing would be better
understood as having less to do with the treaty itself and more to
do with the fact that the Court considers itself competent to en-
force the treaty in question. While this question may sometimes
turn on the text of the treaty—the original and narrowest meaning
of the phrase “non-self-executing”—over history, judicial enforce-
ment has more often depended on different matters, such as which
branch of government is accused of breach and what deference the
judiciary owes to that entity’s acts. As in statutory cases, that ques-
tion of deference often depends on what other branches of gov-
ernment have done—whether they have passed implementing leg-
islation, implemented detailed regulations, or otherwise. These
kinds of signals from other branches may make it clear to the judi-
ciary that the treaty will be enforced by other branches and that
the judiciary therefore owes deference to that decision.
Understanding treaty enforcement this way uproots “self-
execution” as the central tool for understanding treaty enforce-
ment. It confines self-execution to a narrower textual question:
whether the treaty, by its terms, might create an enforceable right
at all. Where that question is indeterminate, the approach recom-
mended here asks judges to explicitly consider whether they should
enforce the treaty or defer to other branches of government and, if
so, why. Such a change would do much to normalize treaty en-
forcement: it would be brought roughly in line with the kind of
11
See infra Subsection I.B.2.c.
12
See Sloss, supra note 6, at 4.
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questions that judges routinely face in statutory interpretation and

in administrative law.
Finally, this Article adds to the discussion of the development of
treaty enforcement in the twentieth century.13 Most scholars ob-
serve that judges seem to enforce treaties less often or perhaps less
vigorously in the twentieth century, particularly since World War
II.14 The usual theory is that either the rise of multilateral treaties
or the abuse of the doctrine of non-self-execution is the cause. As
David Sloss writes, “the modern doctrine of non-self-executing
treaties, created by courts and commentators in the latter half of
the twentieth century, distorts [proper treaty enforcement].”15
While this Article agrees that the patterns of judicial enforce-
ment in the twentieth century may have changed, it suggests a dif-
ferent explanation. The change in treaty enforcement patterns may
have come in large part from a change in the treaty-making proc-
ess—the emerging prevalence of Congressional-Executive agree-
ments that have all but replaced Article II treaty-making. Stated
otherwise, the practice of making international agreements cou-
pled with simultaneous authorizing and implementing legislation
has changed treaty enforcement practice. By creating statutes that
surround the treaties signed by the United States, the practice of
Congressional-Executive agreements may have done much to dis-
place direct judicial enforcement of treaties.
To restate, this Article suggests that courts should understand
the problem of self-execution as a question of institutional defer-
ence. The basic question is whether the alleged act of government
breach justifies a judicial remedy. For the judiciary, this is a famil-
13
On the changes in international law over the twentieth century, see Paul B.
Stephan, The New International Law—Legitimacy, Accountability, Authority, and
Freedom in the New Global Order, 70 U. Colo. L. Rev. 1555 (1999).
14
See, e.g., John Quigley, Toward More Effective Judicial Implementation of
Treaty-Based Rights, 29 Fordham Int’l L.J. 552, 554 (2006) (“The courts, in particular,
have declined to read the Supremacy Clause to apply to treaty-based rights that, by
the intent of the drafters of the Clause, would seem legitimately to fall within its
reach. This approach by the courts in recent decades contrasts with that of our nine-
teenth-century courts, which more readily interpreted the Supremacy Clause to apply
to rights identified in a treaty.”); Sloss, supra note 6, at 4; David Sloss, When Do
Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Is-
sue in Hamdan and Sanchez-Llamas, 45 Colum. J. Transnat’l L. 20, 26–27 (2006);
Stephan, supra note 13, at 1575.
15
Sloss, supra note 6, at 4.
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iar question with familiar types of answers. Judicial deference to

Congressional action with respect to a treaty is to be expected,16
while, conversely, the judiciary will, with confidence, continue to
use treaty law to prevent States from putting the United States in
violation of its international obligations. Finally, as to the Execu-
tive, the judiciary should begin to explain why, in terms of defer-
ence, it is or is not choosing to enforce a treaty against Executive
breach.
This Article takes no particular position on whether more or less
judicial enforcement of treaties is a good thing. In my view,
whether more or less enforcement is desirable depends so much on
the treaty in question, and how and why it was formed, to make a
general position untenable. The main point is descriptive—to un-
derstand what judges have been doing over the last two centuries.
Unfortunately, what judges are doing has been hidden behind the
unnecessary and counterproductive complexities of the doctrine of
self-execution. Bringing out the real question—that of appropriate
deference—and making it central to the discussion of treaty en-
forcement would represent a major step forward in the develop-
ment of treaty law in United States courts.
Part I introduces the deference theory of treaty enforcement.
Part II outlines the origins of the model in the eighteenth and nine-
teenth centuries, while Part III discusses its application to the prob-
lems of the twentieth century.
I. THE SELF-EXECUTION PROBLEM AND THE DEFERENCE MODEL

A. The Trouble with Treaties & Non-Self-Execution
A first-time reader of the United States Constitution might con-
sider the intended role of treaties in the American system as fairly
straightforward. Article VI of the Constitution declares in one
breath that valid treaties and statutes are the “supreme Law of the
Land.”17 The text suggests a rough equivalence in the legal status of
the two, and the simple equivalence view is supported by much,
particularly early, Supreme Court writing. According to Chief Jus-
tice John Marshall, when a treaty “affects the rights of parties liti-
16
See infra text accompanying notes 45–56 for a description of this tendency.
17
U.S. Const. art. VI.
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gating in court . . . [it] is as much to be regarded by the court as an

act of [C]ongress.”18 The equivalence view leads also to the “last-in-
time rule” that treaties trump prior statutes and vice versa. As the
Supreme Court has said, “[a] treaty may supersede a prior act of
Congress, and an act of Congress may supersede a prior treaty.”19
This equivalence theory suggests that treaty language, when raised
in court, usually ought to have effects no different from the exact
same language found in the United States Code. Yet that is not so.
The full legal effects that equivalence promises are blocked by a
different doctrine: the doctrine of non-self-execution.
Self-execution is the primary tool used by judges and academics
when assessing judicial enforcement of treaties.20 The theory, usu-
ally but wrongly said to have originated in the 1829 case of Foster
v. Neilson,21 divides all treaties into two categories. “Self-executing
treaties” become a domestic law of the United States immediately
upon ratification. “Non-self-executing treaties,” by contrast, create
no domestic law rules and cannot be directly enforced in American
courts. According to this theory, American compliance with a non-
self-executing treaty is a problem for entities other than the judici-
ary.22
How can a court tell the difference between the two categories?
Self-execution theory suggests that the intent of the treaty drafters
provides the key. As the Third Restatement of Foreign Relations
puts it, “An international agreement of the United States is ‘non-
self-executing’ . . . if the agreement manifests an intention that it
shall not become effective as domestic law without the enactment
of implementing legislation.”23 Yet discerning what the drafters in-
tended with respect to a treaty’s domestic enforcement is often
18
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801). See also Re-
statement (Third) of the Foreign Relations Law of the United States § 115 cmt. a
(1987) (“An act of Congress and a self-executing treaty . . . are of equal status in
United States law, and in case of inconsistency the later in time prevails.”).
19
Thomas v. Gay, 169 U.S. 264, 271 (1898).
20
See supra text accompanying notes 5–6 (discussing self-execution theory).
21
27 U.S. (2 Pet.) 253 (1829). The theory was recognized by a state court as early as
Camp v. Lockwood, 1 U.S. (1 Dall.) 393, 403–04 (Pa. Ct. Com. Pl. 1788), forty-one
years before Neilson.
22
See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th
Cir. 1985); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984).
23
Restatement (Third) of the Foreign Relations Law of the United States § 111
(1987).
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quixotic. Treaties are an exchange of promises between nations

and almost never speak directly to their enforceability in U.S.
courts. To exaggerate slightly, looking for a treaty’s intent regard-
ing judicial enforcement is akin to asking whether a sales contract
takes a side on the merits of affirmative action. The relevant intent
usually just is not in the treaty.
As a consequence, courts have created multiple-part tests de-
signed to tell the difference between a treaty intended to be self-
executing and its non-self-executing brethren. An example from
the Seventh Circuit reads as follows:
[C]ourts consider several factors in discerning the intent of the
parties to the agreement: (1) the language and purposes of the
agreement as a whole; (2) the circumstances surrounding its exe-
cution; (3) the nature of the obligations imposed by the agree-
ment; (4) the availability and feasibility of alternative enforce-
ment mechanisms; (5) the implications of permitting a private
right of action; and (6) the capability of the judiciary to resolve
24
the dispute.
As one might expect, using a multiple-part test to interpret the “in-
tent” of a document that never addressed the question is a recipe
for chaos in judicial clothing. Patterns of treaty enforcement, as
scholars have noted, seem impossible to square with the “intent”
analysis.25 Consequently, self-execution problems are universally
regarded as both confusing and confused.
The goal of the theory of enforcement advanced here is to pro-
vide a new and better explanation for what drives judicial treaty
enforcement. It is worth noting that the deference model is cer-
tainly not the only theory that might conceivably fit the evidence
and provide a better explanation than the “intent” theory. One
could argue that judges enforce treaties differently according to
subject matter, yielding a theory that there lies an evolving domain
of areas where treaties will be enforced. One might also argue that
the Court is motivated by the likelihood that its orders will actually
be obeyed. However, I advance the deference model as the best
descriptive fit to the history and record of treaty enforcement deci-
24
Frolova, 761 F.2d at 373.
25
See, e.g., Sloss, supra note 6, at 4–5; Vázquez, Four Doctrines, supra note 6, at
700–10.
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sions. Its basic premise is that concern for domestic government

structure is the primary driver of treaty enforcement patterns. In-
deed, many of the familiar forces that drive judicial enforcement of
statutes are to be found in treaty enforcement cases, albeit in dis-
tinctive (some might say mutated) forms that are driven by the
contractual nature of treaties and their connection to foreign af-
fairs.
B. The Deference Model of Treaty Enforcement

How do American judges enforce treaties? To answer this ques-
tion, we must first make clear what we mean by the enforcement of
a treaty and what it means for a party to be in breach. Subse-
quently, we summarize the main findings of Parts II and III, the
study of treaty enforcement in U.S. courts.
1. A Contract Model
The deference model of treaty enforcement is centered on a fa-
miliar yet crucial proposition: treaties are legal agreements be-
tween nations. They are, in other words, analogous to international
contracts, containing an exchange of promises between the United
States and another country. Like a contract, the promises can be
vague, clear, conditional, and so on. The point is that the creation
of a treaty can be described generally as a bargained-for exchange
of promises between nations that creates an obligation under in-
ternational law.
Where does a domestic judiciary enter the picture? In this
model, just as in a contract case, the judiciary’s role in a treaty case
begins when some party complains of breach. To make a claim un-
der a treaty in court, a litigant alleges that some government actor
has or will put the United States in violation of a promise made. In
effect, a treaty litigant asks the court to take the promise made as a
matter of international law and translate it into a domestic rule,
providing a domestic remedy against the international treaty
breach. For example, if the United States promised X to Canada, a
treaty plaintiff is asking the court to order the United States to
honor its promise.
This leads us to the first question: how, exactly, might govern-
ment actors put the United States in breach of a treaty? Basic con-
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tract theory can help us understand the meaning of breach. As in

contract law, there are two general ways in which government ac-
tors can put the entire country in breach. First, a State official or
the Executive might act in a manner inconsistent with what it
promised to do in the treaty—creating the contract law equivalent
of a breach through nonperformance.26 For example, say that the
United States and Britain agree by treaty to eliminate visa re-
quirements for citizens who want to enter either country. If federal
customs officials continue to demand a visa, a British tourist might
argue that the Executive branch has failed to live up to its prom-
ise.27
Second, lawmaking entities like a State legislature or Congress
may pass a law inconsistent with a promise made in a treaty. In so
doing they announce that the United States, or part of it, will
henceforth act in a manner inconsistent with a promise made in a
treaty—the contract law equivalent of anticipatory repudiation.28 If,
for example, Congress or a State legislature writes a law that places
an explicit quota on the import of German automobiles, we can say
that the law announces an anticipatory breach of the United State’s
obligations under the General Agreement on Tariffs and Trade
(“GATT”).29
Given an allegation of breach, a judge is left with two necessary
questions. One is a question of interpretation: does the alleged be-
havior actually constitute a breach of the treaty? The second and
often more difficult question is one of deference to institutional
competence: can the court comfortably translate the international
law rule into a domestic remedy? Even if we assume breach of the
26
Cf. E. Allan Farnsworth, Farnsworth on Contracts § 8.8 (2d ed. 1998) (discussing
nonperformance as breach).
27
Cf. Taylor v. Morton, 23 F. Cas. 784 (C.C.D. Mass. 1855) (No. 13,799), aff’d, 67
U.S. (2 Black) 481 (1862), discussed infra text accompanying notes 151–59.
28
Cf. Farnsworth, supra note 26, §§ 8.20–.22 (“A repudiation is a manifestation by
one party to the other that the first cannot or will not perform at least some of its ob-
ligations under the contract.”).
29
It might strike some readers as strange to speak of Congress breaching a treaty
through anticipatory repudiation. But notice that, as a positive matter, Congress’s
passage of the law will not usually nullify the international law duty of the United
States to follow the treaty—the GATT in this example. For unless the treaty by its
nature allows unilateral amendment, the international law duty survives the passage
of an inconsistent law, even though, as we will see, a domestic court is unlikely to en-
force that duty directly.
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treaty as an international law matter, is it always appropriate for

the judiciary to order a remedy?
There are two principal reasons a court might defer. First, the
defendant, as a government actor, may have some privilege to
breach the treaty in question, stemming from its power to termi-
nate, for example. Or, the government actor may claim an inde-
pendent authority to translate the treaty into domestic law rules
and create an implementation of the treaty to which the court owes
deference. For any combination of these reasons, the court may or
may not enforce a treaty in a given case.
Unfortunately, these questions are rarely asked this way in judicial
opinions. Asking the questions in this manner helps us understand
how, in fact, courts have acted to remedy treaty breach over the last
200 years. Perhaps thanks to the persistence of the self-execution doc-
trine, the topic is surprisingly underresearched. Yet it is crucial to in-
forming our view of the underlying normative questions.
2. Summary of Findings
For purposes of this study, this Article identified 148 Supreme
Court cases that address the enforcement of treaties.30 When im-
portant, well-known lower court decisions are also discussed.
While a full statistical study of the cases is beyond the scope of this
Article and no statistically causal claims are presented, a simple
survey of these 148 cases reveals interesting patterns. First of all, by
subject matter, the treaty cases break down as follows:
Treaty Case T opics
IP Consular
3% Tax
Tort 1% 3%
6%
Other
8% Property
31%
Immigration
8%
Admiralty
Discrimimation 6%
13% Trade
Criminal/Ex 7%
14%
30
The database is available upon request.
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Second, the cases were examined to determine, as best as possi-

ble, which government entity was accused of breach. That yields
the following:
Alleged Treaty Breach
(148 Decisions)
Foreign, 1, 1%
Unclear, 19, 13%
Congress, 27,
19% State, 72, 50%
Executive, 25,
17%
Finally, the study has made an effort to determine, as best as

possible, how many of the cases led to direct judicial enforcement
of the treaty. That yielded:
Findingsof Breach
(148 decisions)
Other
7%
Yes
No 50%
43%
At this broad level, few conclusions can be offered. Since the

theory suggests different patterns of treaty enforcement for differ-
ent actors, we now look at each major actor in turn.
a. State Breach
Courts vigorously enforce treaties to remedy State breach; en-
forcement against States is the primary and historically most sig-
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nificant type of treaty enforcement in the United States, with more

than fifty examples in the Supreme Court alone.31
The foundational case of State enforcement is the 1796 Great
British Debt Case (also known as Ware v. Hylton), discussed in de-
tail in Part II.32 In Ware, the Supreme Court enforced the 1783
Treaty of Peace between the United States and Great Britain to
nullify inconsistent State laws that released debtors from their pre-
31
See, e.g., Olympic Airways v. Husain, 540 U.S. 644, 646 (2004) (limiting liability of
Olympic Airways); El Al Israel Airlines. v. Tsui Yuan Tseng, 525 U.S. 155, 160–61
(1999) (interpreting Warsaw Convention in state law personal injury suit); Zicherman
v. Korean Air Lines Co., 516 U.S. 217, 218–19, 227 (1996) (same); Clark v. Allen, 331
U.S. 503, 508 (1947) (deciding that treaty with Germany trumps inconsistent Califor-
nia law); United States v. Belmont, 301 U.S. 324, 331 (1937) (finding that New York
State policy is no bar to operation of treaty law); Nielsen v. Johnson, 279 U.S. 47, 52
(1929) (stating that treaty provisions “must prevail over inconsistent state enact-
ments”); Jordan v. Tashiro, 278 U.S. 123, 125–26 (1928) (finding that treaty with Ja-
pan is not inconsistent with California law); Asakura v. City of Seattle, 265 U.S. 332,
341 (1924) (holding that treaty with Japan trumps inconsistent Washington State law);
Maiorano v. Baltimore & Ohio. R.R. Co., 213 U.S. 268, 273 (1909) (holding that
treaty with Italy is not inconsistent with Pennsylvania law); Geofroy v. Riggs, 133 U.S.
258, 272–73 (1890) (deciding that French commerce treaty supercedes inconsistent
D.C. law); Hauenstein v. Lynham, 100 U.S. 483, 488–89 (1879) (deciding that treaty
with Switzerland trumps inconsistent Virginia law); Chy Lung v. Freeman, 92 U.S.
275, 280 (1875) (finding that state ban on immigration of lewd women violates Burlin-
game Treaty); Pollard’s Heirs v. Kibbe, 39 U.S. (14 Pet.) 353, 366 (1840) (holding that
Spanish-American treaty trumps state property law); United States v. Percheman, 32
U.S. (7 Pet.) 51, 82–83 (1833) (same); American Ins. Co. v. 356 Bales of Cotton, 26
U.S. (1 Pet.) 511, 542 (1828) (holding that a treaty, ceding Florida from Spain, is “the
law of the land, and admits the inhabitants of Florida to the enjoyment of the privi-
leges, rights, and immunities, of the citizens of the United States”); Orr v. Hodgson,
17 U.S. (4 Wheat.) 453, 462–65 (1819) (finding that a treaty with Britain protects in-
heritance from Virginia law); Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 274–78 (1817)
(finding that state inheritance law was displaced by a treaty with France); Martin v.
Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 356–57 (1816) (finding that a treaty is a rele-
vant source of law for property disputes); Hannay v. Eve, 7 U.S. (3 Cranch) 242, 248
(1806) (finding that state contract law yields to treaty law); Hopkirk v. Bell, 7 U.S. (3
Cranch) 454, 458 (1806) (interpreting the Treaty of Peace to override a conflicting
state statute); Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4–5 (1794) (finding that even if
a Georgia statute could be construed to confiscate a debt, it would be invalid if in op-
position to the Treaty of Peace); see also Delchi Carrier v. Rotorex Corp., 71 F.3d
1024, 1027–28 (2d Cir. 1995) (holding that United Nations Convention on sales pre-
empts state law causes of action); Asante Tech. v. PMC-Sierra, Inc., 164 F. Supp. 2d
1142, 1152 (N.D. Cal. 2001) (same); In re Ah Chong, 2 F. 733, 740 (C.C.D. Cal. 1880)
(holding that a state law, prohibiting aliens from fishing in public waters, was void due
to contravention with Burlingame Treaty).
32
Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
WU_BOOK 4/17/2007 9:55 PM
War British creditors.33 The case created a model of treaty en-

forcement that courts have applied broadly across subject areas
ranging from State inheritance and immigration law to anti-
discrimination, trademark, and airline liability.34 In the famous 1924
case of Asakura v. City of Seattle, the Supreme Court enforced a
U.S.-Japanese treaty to nullify a Seattle ordinance that discrimi-
nated against aliens by allowing pawnbroker licenses to be issued
only to U.S. citizens.35 Asakura is a casebook favorite because of its
oddly vigorous enforcement of the treaty and the absence of any
discussion of the doctrine of non-self-execution by name. History
and the deference model show that Asakura is in fact no mystery at
all but rather a typical, and even routine, case of treaty enforce-
ment against State breach.
In State cases, the Court uses a rule of no deference: it makes no
effort to reconcile inconsistent State law and pays no special atten-
tion to State interpretation of a treaty. While always the practice,
the Court clearly stated the rule in Nielsen v. Johnson: “[A]s the
treaty-making power is independent of and superior to the legisla-
tive power of the States, the meaning of treaty provisions so con-
strued is not restricted by any necessity of avoiding possible con-
flict with State legislation and when so ascertained must prevail
over inconsistent State enactments.”36
It is also worth mentioning that since 1908 courts have some-
times used a different mechanism for enforcing certain kinds of in-
ternational agreements against States. In these cases, Executive
Agreements (not treaties in the Article II sense, but international
agreements made by the President) are at issue. The plaintiff asks
the court, under the authority of Ex parte Young,37 to issue an in-
junction that stops a State official from violating the agreement in
question or from violating the Supremacy Clause of the Constitu-
tion.38 Most academics put these cases in a different category from
33
Id. at 245.
34
See infra Sections II.C, II.D, III.A, and III.D for a history of the Ware rule in U.S.
courts.
35
265 U.S. 332, 343–44 (1924).
36
279 U.S. 47, 52 (1929).
37
209 U.S. 123, 167–68 (1908).
38
Some might argue that it is confusing to equate preemption of state law by treaty
with enforcement of a treaty over inconsistent state action, but I think it simpler to
see them as the same thing. See generally Curtis A. Bradley & Jack L. Goldsmith,
WU_BOOK 4/17/2007 9:55 PM
treaties altogether, but they may provide additional examples of

enforcement against State breach of an international agreement.
There are far fewer examples of this type of treaty enforcement;39
the most dramatic was 2003’s American Insurance Association v.
Garamendi, where the Supreme Court found that a series of Ex-
ecutive agreements preempted a California insurance statute, thus
preventing even potential inconsistency with an international
treaty regime.40 At a minimum, cases enforcing Executive agree-
ments may reflect the broader patterns of enforcement of interna-
tional agreements against the States.41
That the primary domain of treaty enforcement lies against
States should be no surprise. By enforcing treaties against States,
courts give effect to the single clearest principle in treaty enforce-
ment: that, in Madison’s phrase, “no part of a nation shall have it in
its power to bring [international complaints] on the whole.”42 The
Supremacy Clause is an obvious affirmation of that principle, ar-
guably giving courts both the power and the duty to prevent States
from violating the treaty obligations of the United States.
Over the course of American history and in recent years, various
writers have suggested that States should be granted more leeway
to express their own foreign policies.43 Whatever the future may
hold, the history of treaty enforcement against States has not given
much support for such arguments. Instead, courts show far more
concern that allowing State breach might create reciprocity con-
cerns that only courts are in a good position to remedy. As Justice
Foreign Relations Law 328–37 (2d ed. 2006) (discussing treaty preemption of state
law).
39
See, e.g., Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413–29 (2003); Dames &
Moore v. Regan, 453 U.S. 654, 679, 682–83 (1981); United States v. Pink, 315 U.S. 203,
223, 230 (1942); United States v. Belmont, 301 U.S. 324, 330–31 (1937). For a listing of
examples of lower courts using Ex parte Young to enforce treaties against states, see
David Sloss, Ex parte Young and Federal Remedies For Human Rights Treaty Viola-
tions, 75 Wash. L. Rev. 1103, 1195 nn.451–53 (2000).
40
539 U.S. at 413–29.
41
It is also certainly worth asking whether courts should be more deferential to state
breach of Executive Agreements as opposed to Article II treaties or Congressional-
Executive agreements.
42
1 The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., rev.
ed. 1937).
43
See, e.g., Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 Tex. L.
Rev. 1, 150–54 (2004) (arguing for greater deference to states in matters of foreign
relations).
WU_BOOK 4/17/2007 9:55 PM
Miller memorably wrote of a California statute banning the immi-

gration of foreign or “lewd” women, “[i]f [the United States]
should get into a difficulty which would lead to war, or to suspen-
sion of intercourse, would California alone suffer, or all the Un-
ion?”44
b. Congressional Breach
Congressional breach poses more complicated problems for the
judiciary. Unlike with respect to the States, the Supremacy Clause
does not clearly command courts to prevent Congressional breach
of treaties. Instead, the judiciary shares the job of treaty enforce-
ment with Congress (and also with the President, as discussed be-
low). In addition, Congress has the power, accepted since at least
1798, to terminate, or repudiate, treaty obligations altogether.
When Congress acts inconsistently with a U.S. treaty obligation,
the rule of deference has been clear: the judiciary refuses to en-
force the treaty independently.45 Arguably, in the realm of treaty
enforcement, Congress is an alternative, and perhaps predominant,
enforcement agency for American treaties. That is not to say that
Congress enforces treaties in the usual legal sense of the term but
rather that Congress enforces them through implementation. By
passing implementing legislation, Congress can decide how it wants
a particular treaty to be enforced in the United States. The judici-
ary, in turn, looks for signs that Congress has taken charge of
treaty enforcement in a given area. That can be evidenced most
clearly by the passage of implementing legislation, but sometimes
the passage of prior legislation in a field can demonstrate that
44
Chy Lung v. Freeman, 92 U.S. 275, 279 (1875); see also The Federalist No. 80, su-
pra note 8, at 439 (“[T]he peace of the whole ought not to be left at the disposal of a
part. The Union will undoubtedly be answerable to foreign powers for the conduct of
its members . . . .”).
45
See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314–15 (1829). These cases are less
common because Congress usually implements treaties or passes later-in-time statutes
that abrogate them. The first reported case to find the obligation of a treaty to be an
obligation of Congress is Camp v. Lockwood, 1 U.S. (1 Dall.) 393, 403–04 (1788); see
also Kelly v. Hedden, 124 U.S. 196, 196–97 (1888) (tariff statute); Whitney v. Robert-
son, 124 U.S. 190, 194 (1888) (same); United Shoe Machinery Co. v. Duplessis Shoe
Machinery Co., 155 F. 842, 843–45, 849 (1st Cir. 1907); Rousseau v. Brown, 21 App.
D.C. 73, 76–77 (D.C. Cir. 1903) (holding a patent treaty nonbinding absent an act of
Congress); Akins v. United States, 407 F. Supp. 748, 756–57 (Cust. Ct. 1976).
WU_BOOK 4/17/2007 9:55 PM
Congress has exerted its control over an area of treaty enforce-

ment.46 In either case (more obviously the former), potential incon-
sistency with the treaty represents a Congressional choice.
When Congress implements a treaty through a statute, the statu-
tory regime completely replaces the treaty as a basis for direct en-
forcement. That is, judges do not return to the original text of the
treaty as a law they can enforce directly. The Supreme Court has
said that “a court will not undertake to construe a treaty in a man-
ner inconsistent with a subsequent federal statute.”47 It would be a
mistake, however, to assume that the judiciary does nothing when
Congress’s implementation of a treaty or later-in-time legislation is
at odds with the treaty. Courts instead may turn to the Charming
Betsy canon or other presumptions by which Congressional ambi-
guity may be converted into treaty compliance.48 Nonetheless,
where Congress is absolutely clear in its intent to violate the treaty
(through, most obviously, passage of directly inconsistent legisla-
tion), the judiciary abandons any effort to enforce the treaty in its
original form.49
Several historical examples of treaty enforcement may help clar-
ify these points. In the nineteenth century, Congress sometimes ar-
guably misimplemented U.S. trade treaties.50 For example, in 1832
the United States promised Russia Most Favored Nation (“MFN”)
status—the right to the best tariff rate given any other country. In
its 1842 Tariff Act, however, Congress created special tariffs for
British- and Spanish-grown hemp, arguably in breach of its treaty
with Russia. Even if the courts might have agreed with Russia that
46
Similar patterns are observed in the tariff, Chinese exclusion, intellectual prop-
erty, and human rights treaties. See infra Sections II.B, II.C, III.B, and III.C.
47
Baker v. Carr, 369 U.S. 186, 212 (1962).
48
See, e.g., Cheung Sum Shee v. Nagle, 268 U.S. 336, 345–46 (1925) (holding that
the rights granted by the 1880 Treaty with China survived passage of a subsequent
immigration act: “[the Immigration] Act must be construed with the view to preserve
treaty rights unless clearly annulled”). Examples of the use of the Charming Betsy
canon to inform statutory interpretation based on treaties can be found in Ralph G.
Steinhardt, The Role of International Law As a Canon of Domestic Statutory Con-
struction, 43 Vand. L. Rev. 1103, 1135–62 (1990). See also Restatement (Third) of the
Foreign Relations Law of the United States § 114 (1987) (“Where fairly possible, a
United States statute is to be construed so as not to conflict with international law or
with an international agreement of the United States.”).
49
See, e.g., infra Section II.C (discussing the Chinese exclusion cases).
50
See infra Section II.B (discussing nineteenth-century commercial treaty practice).
WU_BOOK 4/17/2007 9:55 PM
Congress owed it the best rate, the Supreme Court was unwilling to
set Congress straight. It deferred, instead, to Congress’s implemen-
tation, relying on the judiciary’s relative lack of information as to
why Congress might have implemented the tariffs the way it did.51
Similarly, the United States in 1988 joined the Berne Convention
of 1886, which sets minimum international standards of copyright
protection,52 and Congress passed implementing legislation.53 De-
spite amendments to the copyright code, the United States argua-
bly still does not comply with some of the requirements of Berne,54
particularly the provisions demanding protection of “moral
rights.”55 Nonetheless, courts have ignored that fact in their deci-
sions and have failed to even attempt to construe federal law to be
consistent with U.S. treaty obligations.56 These two examples re-
flect broader patterns identified more clearly in Part II.
c. Executive Breach
The President, like Congress, has independent powers that make
review of his compliance with treaties challenging. The Executive
has the power to create both Executive agreements and treaties in
collaboration with Congress, and it assumes the authority to termi-
nate treaties unilaterally.57 The Executive also engages in inde-
51
See Taylor v. Morton, 23 F. Cas. 784, 784–85, 788 (C.C.D. Mass. 1855) (No.
13,799), aff’d, 67 U.S. (2 Black) 481 (1862).
52
Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886,
S. Treaty Doc. No. 99-27 (1986), 828 U.N.T.S. 221 [hereinafter Berne Convention].
53
Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat.
2853 (1988).
54
See Ralph S. Brown, Adherence to the Berne Copyright Convention: The Moral
Rights Issue, 35 J. Copyright Soc’y U.S.A. 196, 204–05 (1988); see also Jane C. Gins-
burg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law, 41
Hous. L. Rev. 263, 264–66 (2004) (discussing the limited U.S. copyright and trade-
mark protection of the right of attribution).
55
See Berne Convention, supra note 52, art. 6bis (moral rights protections).
56
In fact, courts have not even used the Charming Betsy canon to avoid arguable
breach of the Berne Convention. For example, in Dastar Corp. v. Twentieth Century
Fox Film Corp., 539 U.S. 23, 31–37 (2003), the Supreme Court effectively eliminated a
category of moral rights protection under trademarks law without questioning
whether this would put the United States in violation of its treaty obligations.
57
The exact amount of authority the President has to terminate treaties is debated.
See Louis Henkin, Foreign Affairs and the United States Constitution 211 (2d ed.
1996) (“[T]he Constitution tells us only who can make treaties for the United States;
it does not say who can unmake them.”); see also Goldwater v. Carter, 444 U.S. 996,
WU_BOOK 4/17/2007 9:55 PM
pendent interpretation of treaties, sometimes writing implementing

regulations and ordering its employees to obey the treaty as inter-
preted. As an example, U.S. soldiers (with well-known exceptions)
are regularly ordered to obey various laws of war, including the
Geneva Conventions, as the Executive has interpreted them in its
regulations.58
What then do courts do when facing a lawsuit alleging Executive
breach of a treaty? This turns out to be perhaps the hardest prob-
lem in the study of treaty enforcement. The de facto rule of defer-
ence in Executive breach cases is confusing. Courts will, on the one
hand, enforce treaties directly against the Executive (unless, to
avoid enforcement, they ascribe breach to Congress—more on that
in a moment). But courts tend to do so while also granting consid-
erable deference to the Executive’s interpretation of the treaty,
and such deference, when strong, can sometimes make it appear
that courts are not independently enforcing the treaty.
The problem of Executive breach is properly understood as a
cousin to the similarly difficult problem of statutory deference to
administrative agencies’ interpretations of the statutes they admin-
ister, which are generally called Chevron problems.59 Logic suggests
that there must be a treaty-law system of deference to the Execu-
tive in cases of alleged Executive breach, but if there is one, it is
only vaguely referred to in the cases and certainly is not well un-
derstood. Statutory deference may therefore serve as a useful ana-
logue to the problem of Executive treaty deference, though there
are enough differences to make treaty deference its own creature.
The similarity between statutory and treaty deference analysis
comes from the fact that in both kinds of cases, courts sometimes
encounter facts that justify what the Court calls Skidmore defer-
ence—recognition of, but not necessarily absolute deference to, the
1002 (1979) (finding, in a grant of certiorari and immediate remand to the district
court for dismissal, that the validity of a Presidential termination of a treaty is either
unripe or a nonjusticiable political question).
58
See, e.g., Dep’t of the Army, Field Manual No. 27-10, The Law of Land Warfare
3–14 (1956) (“The purpose of this Manual is to provide authoritative guidance to mili-
tary personnel on the customary and treaty law applicable to the conduct of warfare
on land.”).
59
See Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev.
649, 650–53 (2000) (arguing that a “Chevron perspective” provides a useful model for
deference in foreign affairs cases).
WU_BOOK 4/17/2007 9:55 PM
Executive’s “specialized experience and broader investigations and

information.”60 Beyond expertise, deference in such cases is also
premised on the greater political accountability of the Executive as
compared with the courts; such accountability may similarly rec-
ommend deference to the Executive in treaty interpretation cases.61
If the Executive has implemented a treaty and the public dislikes
the President’s approach, courts may reason that voters can seek a
democratic remedy. These common factors—expertise, informa-
tion, and accountability—suggest a baseline level of deference, and
in some treaty cases courts grant something like Skidmore defer-
ence. For example, in taxation treaty cases, while the courts do not
hesitate to find the Executive in breach in a clear case, they none-
theless say they will give “great weight” to the Executive’s inter-
pretation.62
But beyond this Skidmore point the comparison with statutory
deference becomes complex. In United States v. Mead Corp., the
Supreme Court suggested that the appropriate level of deference
to an administrative agency can vary.63 It depends, said the Court,
on evidence of Congressional delegation of legislative authority to
the agency, most obviously textual delegation in the statute itself.64
Where Congress has delegated legislative authority to the agency,
courts must apply what is known as Chevron deference to agency
60
Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944).
61
Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 866 (1983); see also
Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989
Duke L.J. 511, 517–18 (arguing that one of the chief virtues of Chevron deference is
flexibility in the administrative process, flexibility that is properly left to a politically
accountable branch).
62
In tax cases, courts usually directly enforce treaties without even discussing
whether they are “self-executing.” See, e.g., United States v. Stuart, 489 U.S. 353,
365–70 (1989); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180–90
(1982); Maximov v. United States, 373 U.S. 49, 51–56 (1963); Kimball v. Comm’r, 6
T.C. 535, 537–41 (1946). An international tax issue was also raised in Wodehouse v.
Comm’r, 50,161 T.C.M. (P-H) 505 (1950).
63
533 U.S. 218 (2001).
64
Id. at 226–31. Professors Thomas Merrill and Kristin Hickman originally sug-
gested that Chevron deference should attach only in clear cases of delegation and ac-
tual agency rulemaking. Thomas W. Merrill & Kristin E. Hickman, Chevron’s Do-
main, 89 Geo. L.J. 833, 920–21 (2001). However, in practice courts have relied on all
sorts of evidence of Congressional intent to delegate. See Adrian Vermeule, Introduc-
tion: Mead in the Trenches, 71 Geo. Wash. L. Rev. 347, 349–55 (2003) (examining the
D.C. Circuit’s reaction to Mead).
WU_BOOK 4/17/2007 9:55 PM
statutory interpretations that were intended to have utilized the

delegated legislative authority. Chevron deference involves the ap-
plication of a simple two-step framework. At the first step, the
court asks whether Congress has spoken clearly to the interpretive
question at hand. If Congress has not, the court then proceeds to
the second step, where it inquires as to whether the agency inter-
pretation of the statute is reasonable.65
The rule dictated in Mead has proven complex for statutes,66 and
what it might mean in the treaty context is oblique. First, explicit
delegations or other evidence of intent, such as speeches and
treaty-drafting history, only rarely appear in treaties. Treaties, after
all, are written to bind two or more governments and therefore do
not usually give precise instructions to domestic actors.67 Second,
the relevant intent of a treaty often reflects a joint intent between
many treaty partners. Asking whether Russia intended to delegate
to the U.S. Secretary of Commerce power to implement a given
treaty is a strange question for an American judge to answer. In the
absence of implementing legislation, the search for a treaty’s intent
to delegate legislative power to the Executive often makes little
sense.
Instead, in treaty cases there is commonly a different basis for
deference that cannot be ignored: the President’s independent
power not only to enforce treaties, but also to set the foreign policy
of the United States. This is the matter of foreign affairs deference
(itself sometimes understood as an offshoot of political question
deference), and scholars may have overlooked its effects in cases of
treaty enforcement.68
65
See Chevron, 467 U.S. at 843–44.
66
See Vermeule, supra note 64, at 347–49.
67
The closest approximation is a promise to give the treaty domestic effect, as in this
language in the International Covenant on Civil and Political Rights (“ICCPR”):
“[E]ach State Party to the present Covenant undertakes to take the necessary steps,
in accordance with its constitutional processes . . . to give effect to the rights recog-
nized in the present Covenant.” International Covenant on Civil and Political Rights
art. 2(2), Dec. 19, 1966, S. Treaty Doc. No. 95-20 (1978), 999 U.N.T.S. 171 [hereinafter
ICCPR].
68
Professor Curtis Bradley described foreign affairs deference as, in fact, comprising
five overlapping categories of deference: “Political Question,” “Executive Branch
Lawmaking,” “International Facts,” “Persausiveness” and “Chevron.” Bradley, supra
note 59, at 660–63.
WU_BOOK 4/17/2007 9:55 PM
How can we explain the precise effect of foreign affairs defer-

ence in cases of alleged Executive breach of a treaty? One answer
comes from Professor Louis Henkin, who in a famous article ex-
plained foreign affairs deference in a manner useful here.69 He sug-
gested that foreign affairs deference is simply the consequence of
the constitutional delegation of a legislative power to the Execu-
tive. When a court defers on foreign affairs grounds, says Henkin,
that may mean “that the President’s decision was within his author-
ity and therefore law for the courts.”70 Henkin’s approach suggests
that perhaps the most relevant issue in treaty deference cases is a
search for a constitutional—as opposed to a statutory—delegation
of legislative power to the Executive.
Based on Henkin’s work and the analogy to statutory deference,
we might outline a rough framework for how courts think about
the problem of Executive breach. When the Executive is accused
of breaching a U.S. treaty, the question for the Court, as in a statu-
tory case, is what deference to accord the Executive’s interpreta-
tion of the treaty in question. First, based on subject-matter exper-
tise, courts in treaty cases will accord the Executive something like
Skidmore deference as a matter of course. That is evident, for ex-
ample, in tax treaty cases. Yet in some cases, courts grant even
greater—or total—deference. Unlike in statutory cases, such def-
erence rarely results from the fact that a treaty explicitly delegates
legislative authority to the Executive (one path to deference that
Mead and Professors Thomas Merrill and Kristin Hickman sug-
gested).71 Instead, courts defer when the Constitution has delegated
to the Executive branch a relevant power, such as the power to an-
nounce that a treaty has been terminated.72 The result is a rough
two-tiered system of deference to the Executive in treaty cases that
might explain why the judiciary defers when it does.
It should be admitted, in closing, that this model for thinking
about Executive breach is more aspirational than the rest of this
Article. Perhaps the most extreme model of judicial deference to
69
See Louis Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597,
610–14 (1976).
70
Id. at 612.
71
See Merrill & Hickman, supra note 64, at 920–21.
72
Of course, looking to the Constitution for powers reserved to the Executive might
also happen in a statutory case; it is just less likely.
WU_BOOK 4/17/2007 9:55 PM
the Executive is the case of United States v. Alvarez-Machain.73 Yet,

as discussed in Part III, there seems little special about that case
that might have justified strong deference—unless the Court’s
point was to suggest that the Executive should always get complete
deference in treaty cases.74 But that legal conclusion seems implau-
sible in light of the Court’s relative lack of deference in other
treaty cases. In short, the Court is already offering different levels
of deference to the Executive in different types of cases. What is
suggested here is simply a more principled way to do so.
d. Types of Breach: A Signaling Model

If we accept that the identity of the breacher is crucial in cases of
treaty enforcement, how can a court distinguish instances of Ex-
ecutive, Congressional, and State breach? The answer to this ques-
tion can make all the difference in an individual case. As we have
seen, characterizing a matter as Executive or State breach opens
the door to judicial enforcement, as compared with deciding that
the fault lies with Congress for failing to implement the treaty in
the first place. The question is important, for it provides courts
with a means of avoiding the enforcement of a treaty against the
Executive or a State. Faced with an apparent breach of a treaty,
the court can instead attribute the problem to Congress by calling
the treaty non-self-executing and awaiting Congressional action.
The question is hard, and the contribution of Chief Justice Mar-
shall’s opinion in Foster v. Neilson was the suggestion that this
question might sometimes be answerable by the text of the treaty.
As he said, “when the terms of the [treaty] stipulation import a
contract, when either of the parties engages to perform a particular
act, the treaty addresses itself to the political, not the judicial de-
partment.”75 But despite Marshall’s intentions, the text of the treaty
is at best rarely used by courts to decide to whom the treaty is “ad-
dressed.” It is true that in some cases, as Neilson suggested, the text
may be determinative, but such cases are rare.76 Instead, in most
73
504 U.S. 655, 668–69 (1992).
74
See id.
75
Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).
76
One of the first reported treaty interpretation cases, Camp v. Lockwood, 1 U.S. (1
Dall.) 393 (1788), is an example of this. The language in question said that “Congress
shall earnestly recommend it to the legislatures of the respective states, to provide for
WU_BOOK 4/17/2007 9:55 PM
notable treaty cases the language is indeterminate or is simply ig-

nored. The history of treaty enforcement shows that there is often
little relationship between the particular phrasing of a treaty’s lan-
guage and the enforcement of a treaty. History is littered with trea-
ties with direct language that were nonetheless not enforced by the
judiciary for want of Congressional action.77
Instead of focusing on text, courts search for other evidence.
They want to know whether the courts are meant to be the primary
enforcers of the treaty in question and look for signals from Con-
gress or the Executive that might show who is meant to be respon-
sible for enforcing a given treaty. One of the clearest examples of
such a signal is a Congressional enactment of implementing legisla-
tion. But sometimes even previous Congressional activity has con-
vinced courts that judicial enforcement of an inconsistent treaty
would be unwelcome. Rightly or wrongly, that is how the courts
behaved in deciding the commercial and MFN treaties in the nine-
teenth century,78 the multinational intellectual property treaties in
the early twentieth century,79 and the human rights conventions of
the late twentieth century.80 In other words, courts have taken the
fact that Congress has passed prior legislation in the area as evi-
dence that the failure to implement a treaty is the fault of Con-
gress.
A careful observer will notice that the latter practice contradicts
the last-in-time rule, which provides that statutes and treaties are
of equal legal power and that the latter in time will prevail in case
of conflict.81 But because non-self-execution or other doctrines of
deference can be, and are, used to prevent a later-in-time treaty
the restitution of all estates, rights and properties.” Definitive Treaty of Peace, U.S.-
Gr. Brit., art. V, Sept. 3, 1783, 8 Stat. 80. The Court had little difficulty finding that
this created an obligation for Congress as opposed to the States. Lockwood, 1 U.S. (1
Dall.) at 403–04.
77
Some examples include the ICCPR, supra note 67, the Convention on the High
Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11, and the nineteenth-century
Commerce and Most Favored Nation treaties.
78
See discussion infra Section II.B.
79
See discussion infra Section III.B.
80
See discussion infra Section III.C.
81
For classic statements of the last-in-time rule, see, for example, Reid v. Covert, 354
U.S. 1, 18 (1957) and Whitney v. Robertson, 124 U.S. 190, 194 (1888).
WU_BOOK 4/17/2007 9:55 PM
from abrogating an earlier statute, the last-in-time rule is not a full

or accurate portrayal of judicial practice.82
While this point may seem novel, Professor Westel Woodbury
Willoughby made it as early as 1910. He wrote:
[T]here have been few (the writer is not certain that there have
been any) instances in which a treaty inconsistent with a prior act
of Congress has been given full force and effect as law in this
country . . . . Furthermore . . . Congress has explicitly denied that
a treaty can operate to modify the arrangements which it, by
statute, has provided, and, in actual practice, Congress in every
83
instance succeeded in maintaining this point.
In 1953, Professor Edward Corwin pointed out that Cook v. United
States84 is the only important appellate case to have enforced a later
treaty in abrogation of an earlier statute.85
The reciprocal version of the last-in-time rule, in other words,
stands on the authority of a single Supreme Court case, and Cook
requires further examination, for it is not entirely what it seems.
During Prohibition, the Coast Guard raided British ships and
seized intoxicating liquors. The United States, after much diplo-
matic friction, agreed via a 1924 treaty to restrain the Coast Guard
somewhat by prohibiting it from boarding ships outside of one
hour’s steaming from the coast.86 In 1932, in breach of that treaty
(but in compliance with a federal statute), the United States Coast
Guard seized Captain Frank Cook’s ship, and the Collector of Cus-
toms charged him with various violations.87 The Supreme Court re-
82
But cf. Julian G. Ku, Treaties as Laws: A Defense of the Last-In-Time Rule for
Treaties and Federal Statutes, 80 Ind. L.J. 319, 325–26 (2005) (arguing that despite
widespread academic belief that the last-in-time rule is obsolete and unworkable, the
rule is structurally and textually sound).
83
1 Westel Woodbury Willoughby, The Constitutional Law of the United States 555
(1st ed. 1910).
84
288 U.S. 102 (1933).
85
See The Constitution of the United States of America: Analysis and Interpreta-
tion 422 (Edward S. Corwin ed., 1953) [hereinafter Corwin].
86
Cook, 288 U.S. at 118.
87
Specifically, Frank Cook was fined $14,268.18 for failing to include the ship’s liq-
uor in the manifest. Id. at 107–08.
WU_BOOK 4/17/2007 9:55 PM
jected the view that the statute was controlling and enforced the
treaty, dismissing the violations.88
Cook is the only Supreme Court case to explicitly enforce a
treaty in the face of an inconsistent federal statute.89 But a little no-
ticed fact about Cook is that the Supreme Court did not disregard
the Executive branch’s interpretation of the treaty; rather, the
Court adopted it. The case was decided against the United States
at the request of the United States. In his brief to the Court, Solici-
tor General Thomas D. Thacher asked for reversal, noting that the
Coast Guard had disobeyed the Justice Department’s commands:
“The Commandant of the U.S. Coast Guard was advised in 1927
that all seizures of British vessels . . . should be within the terms of
the treaty . . . .”90 In short, the importance of Cook’s enforcement
of a subsequent treaty must be tempered by the fact that the Court
may have enforced the treaty in deference to the Executive’s inter-
pretation of the treaty.91 Overall, as Professor Willoughby sug-
gested, it might be clearer and more reflective of treaty practice to
say that a later-in-time treaty will override an earlier-in-time stat-
ute only when it explicitly does so. This is not meant to diminish
the role of treaties in the U.S. system but rather to reconcile judi-
cial doctrine with long-standing judicial behavior.
e. Foreign Breach
The final and least well-documented cases are those where a
plaintiff asks the federal judiciary to remedy a foreign nation’s
breach of a U. S. treaty. There is a limited quantity of cases of this
type, most concerning suits for torture or other mistreatment.92 Of
88
Id. at 120 (“As the Mazel Tov was seized without warrant of law, the libels were
properly dismissed.”).
89
See, e.g., Edwin D. Dickinson, Jurisdiction Following Seizure or Arrest in Viola-
tion of International Law, 28 Am. J. Int’l L. 231, 234–36 (1934); see also Henkin, su-
pra note 57, at 210. The Court in United States v. Schooner Peggy, 5 U.S. (1 Cranch)
103, 108 (1801), also enforced a treaty in the face of a contradictory statute, but the
Court did not specifically discuss the conflict between treaty and statute in its opinion.
90
Cook, 288 U.S. at 105.
91
Edward Corwin also contemplated that the decision and the Executive’s position
were “devised to avoid a diplomatic controversy which in the low estate of Prohibi-
tion at that date would not have been worthwhile.” Corwin, supra note 85, at 422.
92
See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 371–73 (7th
Cir. 1985) (per curiam); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 798, 808–10
(D.C. Cir. 1984) (Bork, J., concurring).
WU_BOOK 4/17/2007 9:55 PM
the 148 Supreme Court cases involving the enforcement of treaties

surveyed, only one addressed foreign breach.93 For that reason, this
Article does not dwell on foreign breach but instead offers a brief
analysis of how foreign breach fits into the deference model and
serves to elucidate and strengthen it.
When is it appropriate to order a foreign sovereign to live up to
its obligations? Using the self-execution doctrine, the judiciary
usually has declined to directly enforce treaties against a foreign
nation.94 In Tel-Oren v. Libyan Arab Republic, for example, survi-
vors of a terrorist attack in Israel sued Libya, the Palestine Libera-
tion Organization (“PLO”), and various other defendants.95 In a
concurring opinion on whether the 1907 Hague Conventions cre-
ated a private cause of action, Judge Robert Bork argued that they
must be interpreted not to do so, because otherwise
[T]he code of behavior the Conventions set out could create per-
haps hundreds of thousands or millions of lawsuits by the many
individuals, including prisoners of war, who might think their
rights under the Hague Conventions violated in the course of any
large-scale war. . . . [T]he prospect of innumerable private suits at
the end of a war might be an obstacle to the negotiation of peace
96
and the resumption of normal relations between nations.
This is a rule of strong deference to the foreign sovereign. As
Judge Bork suggested, there are obvious reasons for the reluctance
to enforce a treaty against another country, as doing so may too
closely resemble the judicial exercise of foreign policy. But should
deference to foreign nations really be achieved through the use of
the non-self-execution doctrine? Deference theory suggests that
the U.S. judiciary may be overusing non-self-execution as a rule of
deference and wrongly replacing Congressional or common-law
regimes of foreign sovereign immunity. The Foreign Sovereign
Immunities Act and the common-law immunities for foreign offi-
93
See “Alleged Treaty Breach” chart infra p. 583.
94
See, e.g., cases cited supra note 92 and accompanying text.
95
726 F.2d at 775 (per curiam).
96
Id. at 810 (Bork, J., concurring).
WU_BOOK 4/17/2007 9:55 PM
cials, rather than non-self-execution, should arguably be the rules

to which American courts adhere against foreign nations.97
A hypothetical example may better illustrate the point. Suppose
that Britain, in violation of treaties with the United States, refuses
to grant one American citizen a visa and refuses another American
navigation rights in the English Channel. Both American citizens
sue Britain under the treaty. To decline to enforce the treaty
through the doctrine of non-self-execution is to announce an empty
conclusion. Instead, the question should be whether the foreign
sovereign enjoys immunity under U.S. law, which it generally does
for sovereign but not commercial acts under the Foreign Sovereign
Immunities Act.98 There is little question that granting a visa is a
sovereign act, but it might at least be argued that breaking the
treaty granting navigation rights, perhaps to protect a British com-
petitor, represents commercial behavior. As it allows such ques-
tions to be asked, the Foreign Sovereign Immunities Act is the bet-
ter calibrated and the Congressionally designed instrument for
addressing these problems. It is designed to allow some enforce-
ment of U.S. law against foreign powers while providing immunity
for sovereign acts. With regard to foreign nations, meanwhile, non-
self-execution is simply a rule of over-deference.
* * *
The goal of this Article is to uproot the theory of self-execution
as the dominant mode for understanding treaty enforcement in the
United States. The deference theory advances the notion that cases
of treaty enforcement often have little to do with the nature of the
treaty, as self-execution theory suggests. They are, instead, prob-
lems of deference. Courts need to decide whether it would be ap-
propriate to correct an alleged breach by the Executive, a State,
Congress, or a foreign government.
The deference theory, while a departure from present theory, is
not a deviation from present practice but rather a better articula-
tion of it. Yet its goal should be clear: deference theory frames
questions of treaty enforcement instead of answering them. It is
97
28 U.S.C. §§ 1330, 1602–1611 (2000). On official immunities, see generally Bradley
& Goldsmith, supra note 38, at 523–35.
98
See 28 U.S.C. § 1605(a)(2) (providing for the commercial exception to sovereign
immunity).
WU_BOOK 4/17/2007 9:55 PM
primarily a positive theory. In this Article, therefore, I have not at-

tempted to address the much broader normative questions of when
and why a court should owe more or less deference to a State, the
Executive, or Congress. Those questions cannot be fully answered
in a single article. There are any number of arguments, for exam-
ple, that enforcement of treaties against States should be more or
less aggressive,99 or that the courts should defer more or less to the
Executive’s breach of treaties.100 For too long the dominance of
self-execution theory has made it difficult to appreciate how courts
make treaty enforcement decisions. In other words, the case for the
deference model does not depend on any normative view of when
treaties should be enforced. Rather, it depends on elucidating the
institutional concerns that drive treaty enforcement, helping to
clarify why and when judges decline to enforce “the supreme Law
of the Land.”
II. PRE-TWENTIETH CENTURY TREATY ENFORCEMENT IN THE

UNITED STATES
Thus far, we have portrayed a judiciary in a partnership with the
Executive and Congress in its enforcement of the treaties of the
United States. In specific cases, whether courts enforce treaties de-
pends heavily on the identity of the party in breach: that is,
whether the court is asked to discipline a State, the Executive, or
Congress.
The Article now turns to a survey of the record of treaty en-
forcement in the United States. The reason for this turn to history
is that the patterns discussed here are the best evidence of what the
law of treaty enforcement actually is. The method certainly carries
certain risks, for surveying such a lengthy period in history risks
oversimplification and, inevitably, oversight of some potentially
important details. It should be stressed that what follows is not
meant to be a contribution to the historical literature but a means
of better understanding treaty enforcement. What the approach
does reveal is the larger and lengthier trends of treaty enforcement
99
See Young, supra note 43, at 150–54 (arguing for greater deference to states in
matters of foreign relations).
100
See, e.g., Bradley, supra note 59, at 651–52 (advocating the Chevron approach of
deference to the Executive).
WU_BOOK 4/17/2007 9:55 PM
from over the last two hundred years, in which the structural con-
siderations affecting treaty enforcement cannot be missed. It is
from this standing record of how treaties are actually enforced that
the model in Part I is derived.
* * *
The study begins with treaty enforcement in the early Republic.
Here, the patterns of strong enforcement against State breach, de-
scribed in Part I, were first established.
A. Establishing the Basic Principle of No Deference to States Who

Breach
“I have no notion of cheating anybody,” said John Adams to
British negotiators in 1782.101 This single, impulsive remark might
be said to have laid the foundations of federal judicial treaty en-
forcement in the United States and, in particular, the idea, dis-
cussed in Part I, that a primary duty of the federal judiciary is to
remedy State breach. Adams’s comment must be understood in
context: it was made immediately after he joined Benjamin Frank-
lin and John Jay in Paris to negotiate the preliminary Treaty of
Peace with Great Britain. Among the most important points in dis-
pute at that time were the debts owed British creditors—debts in
excess of £5 million at the beginning of the revolution.102 Adams’s
comment was a concession: it was a promise that would bind the
United States, as a country, to guarantee the payment of debts,
whatever the individual States might think.
Implicit in Adams’s statement was an expansive view of national
power that would ultimately lead to expansive judicial enforcement
of treaties against the States. As Professor John Bassett Moore
wrote in 1906, Adams’s concession was “remarkable not only as
the embodiment of an enlightened policy, but also as the strongest
assertion in the acts of that time of the power and authority of the
national government.”103
101
Quoted in Richard B. Morris, The Peacemakers: The Great Powers and Ameri-
can Independence 361 (1965).
102
Richard B. Morris, The Durable Significance of the Treaty of 1783, in Peace and
the Peacemakers 230, 239 (Ronald Hoffman & Peter J. Albert eds., 1986).
103
John Bassett Moore, The Principles of American Diplomacy 29 (1918).
WU_BOOK 4/17/2007 9:55 PM
This point becomes clear when we see that the legal expression
of Adams’s promise was Article IV of the 1783 Treaty, which states
that “creditors on either side shall meet with no lawful impediment
to the recovery of the full value in sterling money, of all bona fide
debts heretofore contracted.”104 Because this language creates an
individual right—it protects the “creditor” who is granted the right
to recover debts notwithstanding “lawful impediment”—enforcing
it would require some authority (a court or agency) with the power
to give it effect. In the new republic, it would eventually become
clear that it was the job of the new federal courts to give legal life
to Adams’s promise.
Few courts existed in the 1780s to bring the creditors’ rights in
Article IV to life. Instead, contradictory State law put the United
States in substantial violation of its stated obligation. Historians of
the period may disagree over much, but they are in agreement over
the record of State compliance with Article IV of the 1783
Treaty.105 Typical was the case of Virginia, the State holding the
largest share of debt (over £2.3 million, or about half the national
debt). In 1777, Virginia passed a law allowing citizens to pay off
their British debt by making an equivalent payment in Virginia’s
paper currency.106 As the Virginia pound depreciated, the law be-
came an easy way to discharge British debt, and many did just
that—even Thomas Jefferson and George Washington.107 A second
Virginia Act in 1782 simply declared that “no debt or demand
whatsoever, originally due to a subject of Great Britain, shall be
recoverable in any court in this commonwealth.”108 No Virginia
court would hear an action to recover British debt, nullifying Ad-
ams’s promise to the British.
104
Definitive Treaty of Peace, supra note 76, art. IV.
105
See, e.g., Frederick W. Marks III, Independence on Trial: Foreign Affairs and the
Making of the Constitution 52, 82–90 (1973) (highlighting Congress’s difficulty in
eliminating foreign trade barriers due to state sovereignty and its effect on the ability
to enter into commercial treaties).
106
An Act for Sequestering British Property (1777), in At a General Assembly, Be-
gun and Held at the Capitol, In the City of Williamsburg 17 (Williamsburg, Alexander
Purdie 1778).
107
See Jean Edward Smith, John Marshall: Definer of a Nation 153–54 (1996).
108
An act to repeal so much of a former act as suspends the issuing of executions
upon certain judgments until December, one thousand seven hundred and eighty-
three (1782), reprinted in 11 William Waller Hening, The Statutes at Large; Being a
Collection of All the Laws of Virginia 76 (Univ. Press of Va. 1969) (1823).
WU_BOOK 4/17/2007 9:55 PM
As historian Brinton Coxe wrote in 1893, “[w]hen the Framers

met in convention the violation of the treaty of peace by certain of
the [S]tates was one of the most pressing anxieties of the political
situation of the Union.”109 The history of the framing of the Su-
premacy Clause is complex and contested, and this Article does not
represent original research into its meaning. Rather, it highlights a
fact over which there is little disagreement: that the historical evi-
dence shows a minimum view of when the Framers believed trea-
ties were enforceable. It shows an intent to create a solution to the
problem of State violations of the 1783 Treaty of Peace, to devise
some mechanism for enforcing Adams’s promise to the British, and
to prevent the States from inadvertently plunging the United States
into an unwanted war.110
This view of the role of treaty enforcement was quickly con-
firmed by the judiciary in the Great British Debt Case,111 now usu-
ally referred to as Ware v. Hylton.112 The adoption of the Constitu-
tion and the opening of the federal courts in 1790 brought a flurry
of a particular type of lawsuit: British creditors seeking payment of
their debts. In Virginia alone, more than two hundred cases were
brought in the first year, comprising the vast majority of the federal
docket.113 Ware was a test case. It presented exactly the facts that
had created trouble during the 1780s: State refusal to enforce the
Treaty of Peace.
109
Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation 274
(Philadelphia, Kay and Brother 1893).
110
Some of the strongest evidence of this intent includes the comments of James
Madison at the 1787 convention, found in 1 The Records of the Federal Convention
of 1787, supra note 42, at 316, and his writings in The Federalist No. 42 (James Madi-
son), supra note 8, at 228 (stressing that the new treaty power was “disembarrassed by
the plan of the Convention of an exception, under which treaties might be substan-
tially frustrated by regulations of the States . . . .”); The Federalist No. 22 (Alexander
Hamilton), supra note 8, at 117 (“[Treaties must be] submitted . . . to one supreme
tribunal. . . . The treaties of the United States, under the present Constitution [the Ar-
ticles of Confederation], are liable to the infractions of thirteen different legislatures,
and as many different courts of final jurisdiction . . . . The faith, the reputation, the
peace of the whole Union, are thus continually at the mercy of the prejudices, the pas-
sions, and the interests of every member of which it is composed.”).
111
See Leonard Baker, John Marshall: A Life in Law 158 (1974).
112
3 U.S. (3 Dall.) 199 (1796).
113
See Charles F. Hobson, The Recovery of British Debts in the Federal Circuit
Court of Virginia, 1790 to 1797, 92 Va. Mag. Hist. & Biography 176, 182 (1984).
WU_BOOK 4/17/2007 9:55 PM
The facts were typical. Daniel L. Hylton was a well-off James

River merchant who, in 1774, borrowed £1500 from Jones & Farell,
a leading British creditor. During the war, Hylton discharged his
debts using the Virginia statute described above: he paid the Vir-
ginia treasury £953 in Virginia pounds, worth £15 specie.114 In 1790,
when the federal courts opened, Ware sued on behalf of Jones &
Farell under Article IV of the Treaty of Peace to recover on the
debt.115 Despite a vigorous defense of Hylton by his lawyer John
Marshall, the Supreme Court upheld the rights of creditor Jones &
Farell, and along the way, it established the paradigmatic model of
judicial treaty enforcement.
Justice Chase, writing the main and longest opinion, held that
treaties were enforceable by the judiciary and were supreme to
State law. Justice Chase found that “[t]he people of America have
been pleased to declare, that all treaties made before the estab-
lishment of the National Constitution, or laws of any of the States,
contrary to a treaty, shall be disregarded.”116 Federal, as well as
State, judges, he said, have a “duty” to “determine any Constitu-
tion, or laws of any State, contrary to that treaty (or any other)
made under the authority of the United States, null and void.”117
Justice Iredell, in a separate opinion, wrote an emotional elegy
to treaties and the need for their enforcement by the judiciary:
None can reverence the obligation of treaties more than I do.
The peace of mankind, the honour of the human race, the wel-
fare, perhaps the being of future generations, must in no incon-
siderable degree depend on the sacred observance of national
conventions. . . . [The Definitive Treaty of Peace] presented
boundless views of future happiness and greatness, which almost
overpower the imagination . . . .
....
. . . Under this Constitution therefore, so far as a treaty consti-
tutionally is binding, upon principles of moral obligation, it is
also by the vigour of its own authority to be executed in fact. It
114
See Smith, supra note 107, at 576 n.69 (detailing the facts of Ware v. Hylton).
115
Ware, 3 U.S. (3 Dall.) at 199, 204.
116
Id. at 237.
117
Id. Other Justices used similar language. See, e.g., id. at 250 (Paterson, J.) (“The
act itself is a lawful impediment, and therefore is repealed; the payment under the act
is also a lawful impediment, and therefore is made void.”).
WU_BOOK 4/17/2007 9:55 PM
would not otherwise be the supreme law in the new sense pro-
118
vided for . . . .
Ware was therefore a bold statement of the role of the judiciary
in preventing State violations and was celebrated by many as
such.119 According to turn-of-the-century historian Hampton Car-
son, the Court found that
[T]he Treaty of 1783 was the supreme law, equal in its effect to
the Constitution itself, in overruling all State laws upon the sub-
ject . . . . Happy conclusion! A contrary result would have black-
ened our character, at the very outset of our career as a na-
tion . . . and would have prostrated the national sovereignty at
120
the feet of Virginia.
Unsurprisingly, those more sympathetic to stronger States’ rights
have often suggested that Ware’s significance is limited. Congress-
man and later law professor Henry St. George Tucker took the
counterintuitive position that Ware, despite its text, “did not decide
that the Definitive Treaty of Peace of 1783 annulled the Law of
Virginia.”121 The law, in his view, was already invalid and could
therefore not be nullified by the Supreme Court.122 Modern day
scholars, such as Professor John Yoo, have also done their best to
downplay Ware’s holding.123
118
Id. at 270, 277 (Iredell, J.).
119
Importantly, Ware did not make it clear what role the House of Representatives
needed to play in the formation of a valid treaty, a question that emerged in the midst
of a ferocious debate over the necessity of full Congressional enactment of the Jay
Treaty. See 1 Charles Henry Butler, The Treaty-Making Power of the United States
§§ 283–293 (1902) (discussing the Jay Treaty debate and, in particular, the House’s
role therein). While an inconclusive battle, it illustrates the extent of disagreement
over the mechanics of the Treaty Power.
120
1 Hampton L. Carson, The History of the Supreme Court of the United States
170 (1902).
121
Henry St. George Tucker, Limitations on the Treaty-Making Power Under the
Constitution of the United States 173 (1915).
122
Id. at 201.
123
See Yoo, supra note 6, at 2080 (“At best, then, Ware can stand for only a very
limited form of self-execution.”). But see Carlos Manuel Vázquez, Treaty-Based
Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, 1113 (1992) (“Ware v.
Hylton establishes that, when a treaty creates an obligation of a state vis-à-vis indi-
viduals, individuals may enforce the obligation in court even though the treaty does
not, as an international instrument, confer rights directly on individuals of its own
force.”).
WU_BOOK 4/17/2007 9:55 PM
From the vantage point of the twenty-first century, Ware can be

seen as the founding moment of judicial treaty enforcement against
the States. The Court would perhaps never perceive itself to be on
firmer ground in enforcing treaties than when enforcing the very
treaty whose violation had led to the Constitutional Convention.
The Supreme Court proceeded to decide more than fifty cases in
the image of Ware and continues to do so today; the significance of
the case thus cannot be overstated.124 But in no sense did Ware an-
swer all of the many treaty questions that were to follow. Ware was
like a “fat pitch.” Its facts were an easy target for the Court to
bring to life the core purpose of the federal treaty power: negating
violative State laws. A fat pitch, however, only tells you so much
about a batter’s potential, and similarly, Ware left much to be de-
cided.
1. The Flip Side

There is an evident flipside to Ware. John Adams’s comment—
“I have no notion of cheating anybody”—would lead to judicially
enforceable rights for British creditors, affirmed finally by the Su-
preme Court. But the same cannot be said for the British and Loy-
alist property owners who were greater victims of the Revolution-
ary War. The final language of the Definitive Treaty of Peace
stated that “Congress shall earnestly recommend it to the legisla-
tures of the respective States to provide for the restitution of all es-
tates, rights and properties, which have been confiscated, belonging
to real British subjects.”125 State legislatures, meanwhile, did
roughly the opposite: rather than restoring estates and rights, they
passed punitive statutes that prevented Loyalists from holding of-
fice and denied them various rights of citizenship.126
124
See supra note 31 (collecting cases in the model of Ware).
125
Definitive Treaty of Peace, supra note 76, art. V.
126
In 1779, for example, New York passed a statute declaring that all British Loyal-
ists in the state had forfeited their land to the state government. An Act, for the for-
feiture and sale of the estates of persons who have adhered to the enemies of this
State, and for declaring the sovereignty of the people of this State in respect to all
property within the same (October 22, 1779), reprinted in 1 Sec’y of State of N.Y.,
Laws of the State of New York 173, 174 (Albany, Weed, Parsons & Co. 1886). Simi-
larly, in 1784 the New York legislature passed a statute that prevented Tories from
holding office. An Act to preserve the freedom and independence of this State, and
WU_BOOK 4/17/2007 9:55 PM
The property-owner story led to the establishment of another

fundamental matter in treaty enforcement: that sometimes the text
of the treaty will make it clear that the judiciary is not meant to en-
force it. That point is made clear by Camp v. Lockwood, one of the
first cases in the first volume of the U.S. Reports.127 Lockwood fea-
tured a Loyalist named Abiathar Camp, whose estate was seized
during the Revolutionary War. The Pennsylvania Court of Com-
mon Pleas stated that “[i]t is agreed, indeed, by the 5th article, that
Congress shall recommend it to the several Legislatures to provide
for such a restitution;” however, “no acts for those purposes have
been passed by the Legislatures.”128 Absent an act of the State leg-
islature as recommended, no relief would be forthcoming; the
treaty could not compel relief on its own. In a way, this case is of
limited legal significance, as it was decided by a State court before
the adoption of the Constitution. But it already captures a crucial
idea: some treaties will be implemented by Congress and others en-
forced by the Judiciary. In this sense, Lockwood, while almost
completely ignored today, was the first coherent articulation of the
idea that treaties should not always be enforced by the judiciary.
Lockwood relied on the clear text of the treaty to reach this con-
clusion and is in that sense an easy case for nonenforcement. In
fact, in Lockwood we find the first text-based finding (predating
the more famous 1829 case, Foster v. Neilson129) that a treaty is not
written to be enforced by the judiciary. The very same idea was
also expressed in Ware. According to Justice Chase, “No one can
doubt that a treaty may stipulate, that certain acts shall be done by
the Legislature.”130 Justice Chase disagreed that Article IV of the
Treaty of Peace was such a stipulation; he instead saw it as a con-
tract binding on the judiciary:
I consider the 4th article in this light, that it is not a stipulation
that certain acts shall be done, and that it was necessary for the
legislatures of individual [S]tates, to do those acts; but that it is
an express agreement, that certain things shall not be permitted
for other purposes therein mentioned (May 12, 1784), reprinted in 1 Sec’y of State of
N.Y., supra, at 772, 773.
127
1 U.S. (1 Dall.) 393 (Pa. Ct. Com. Pl. 1788).
128
Id. at 403–04.
129
27 U.S. (2 Pet.) 253 (1829).
130
Ware v. Hylton, 3 U.S. (3 Dall.) 199, 244 (1796).
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the American courts of justice; and that it is a contract, on behalf

of those courts, that they will not allow such acts to be pleaded in
131
bar, to prevent a recovery of certain British debts.
In other words, the doctrine of textual non-self-execution, often
said to have been enunciated forty years later in Neilson,132 added
little to what was already obvious in 1788 and 1795.
* * *
The next Section, covering the nineteenth century, demonstrates
two points. First, it chronicles a “golden age” of judicial treaty en-
forcement, where the model of treaty enforcement born in Ware
for creditor interests was extended to a range of new commercial
treaties. The judiciary in this period very actively and aggressively
enforced treaties against State laws that discriminated against for-
eigners.
Second, in this period the judiciary began to face a different
problem: Congressional failure to implement a treaty as written, or
Congressional breach. While the Court might in this period have
chosen to offer remedies for broken promises to other nations, it
instead began to defer to even what seemed like Congressional
mistakes that put the United States in breach. Born here is the pol-
icy of strong deference to Congressional implementation of a
treaty discussed in Part I.
B. Expanding the Basic Principle and Introducing Deference to

Congress as Breacher: Commercial Treaties
According to John Quincy Adams, “[a]s the Declaration of In-
dependence was the foundation of all our municipal institutions,
the preamble to the treaty with France [America’s first commercial
treaty] laid the corner-stone for all our subsequent transactions of
intercourse with foreign nations.”133 He said that “[t]he two instru-
ments . . . were parts of one and the same system matured by long
and anxious deliberation of the founders of this Union in the ever
memorable Congress of 1776.”134
131
Id.
132
27 U.S. (2 Pet.) at 314.
133
Quoted in Moore, supra note 103, at 162.
134
Id.
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The significance of the treaties modeled on the 1778 Treaty with

France did grow to great prominence. In this, the golden age of ju-
dicially enforced treaty law, the federal judiciary did a brisk busi-
ness using treaties to protect the economic rights of aliens from
State incursion. Courts had a ready partner in the United States
Department of State. After a slow start, American diplomats went
on something of a world-wide sales blitz, signing dozens of com-
mercial treaties with nearly every country of significance in a de-
termined effort to break a colonial trading system that excluded
American products. From this era date numerous treaties of
“Peace, amity, and commerce,” or “Friendship, navigation, and
commerce,” most of similar content.135
The original model for all of these nineteenth-century commer-
cial treaties, as John Quincy Adams suggested, was the 1778 Treaty
of Commerce with “His Most Christian King” (the French Sover-
eign).136 The 1778 Treaty in fact embodies a principle of equality
and legal reciprocity innovative not only as a principle of trade, but
also for the judicial role it contemplated. The preamble reads:
[H]is Most Christian Majesty and the said United States . . .
tak[e] for the basis of their agreement, the most perfect equality
and reciprocity, and by carefully avoiding all those burthensome
preferences which are usually sources of debate, embarrassment
and discontent; by leaving also each party at liberty to make, re-
specting commerce and navigation, those interior regulations
which it shall find most convenient to itself; and by founding the
advantage of commerce solely upon reciprocal utility, and the
just rules of free intercourse; reserving withal to each party the
liberty of admitting at its pleasure, other nations to a participa-
137
tion of the same advantages.
An important part of such “perfect equality and reciprocity” was a
provision guaranteeing the economic rights of French and U.S. citi-
135
See United States, Treaties and Conventions Concluded Between the United
States of America and Other Powers, since July 4, 1776 (rev. ed., Washington, Gov’t
Printing Office 1873) (collection of all treaties signed by the United States, mostly
commercial).
136
In fact, much was taken from an early model commercial treaty that France
would not accept. Moore, supra note 103, at 8, 12.
137
Treaty of Amity and Commerce, U.S.-Fr., Preamble, Feb. 6, 1778, 8 Stat. 12.
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zens in each others’ territories. Article XI declared that Americans

in France were to be accorded the economic rights of French citi-
zens.138 In exchange, French citizens were to enjoy reciprocal eco-
nomic rights on American territory.139
Similar provisions can be found in the many commercial treaties
that American diplomats managed to negotiate in the first half of
the nineteenth century. In 1829, the United States promised the
Austrian Emperor King that Austrian citizens “shall enjoy . . . the
same security, protection and privileges as natives of the country
wherein they reside.”140 Using almost identical language, in 1845
the United States and the King of Belgium agreed that “the same
security and protection which is enjoyed by the citizens or subjects
of each country, shall be guarantied on both sides.”141
As the State Department signed commercial treaties with much
of Europe, the federal judiciary enforced these treaty-based rights
aggressively, particularly against discriminatory State legislation.
Consider, for example, the fairly startling case of Chirac v.
Chirac.142 A Maryland land statute, passed in 1780, created special
inheritance rules for Frenchmen. It gave them the right to own
land and devise it to heirs, but also provided that if a Frenchman
died without a will, all of his land would revert to the State unless
his legitimate relations were American residents.143 This affected
Jean Baptiste Chirac, a naturalized Frenchman. When he died,
Chirac left behind heirs in France, a bastard son in Maryland, and
no will to be found. Maryland seized Chirac’s land and gave it to
the son in America, and the French heirs sued in U.S. court.144
The Supreme Court enforced the treaty directly in an opinion
that is remarkable in many ways. First, despite the urgings of coun-
sel, the Court made no effort whatsoever to reconcile the treaty
138
Id. art. XI (“The Subjects and Inhabitants of the said United States, or any one of
them, shall not be reputed aubains [aliens] in France . . . .”).
139
Id. (“The Subjects of the Most Christian King [the French] shall enjoy on their
part in all the dominions of the said States, an entire and perfect reciprocity relative
to the stipulations contained in the present article . . . .”).
140
Treaty of Commerce and Navigation, U.S.-Austria, art. I, Aug. 27, 1829, 8 Stat.
398.
141
Treaty of Commerce and Navigation, U.S.-Belg., art. I, Nov. 10, 1845, 8 Stat. 606.
142
15 U.S. (2 Wheat.) 259 (1817).
143
Id. at 262–63.
144
Id. at 261.
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and the State statute but instead simply interpreted the treaty as
the source of Chirac’s rights. This is another example, as discussed
in Part I, of the early establishment of the rule of no deference to
State law. Second, Chief Justice Marshall paid no attention to the
fact that the treaty may have intruded into an area of traditional
State prerogative (land ownership and escheat). The opinion gives
an impression of a treaty power not only preemptive of State law
but insensitive to federalism limits. It also foreshadows the broad
scope of the treaty power vis-à-vis the States announced in Mis-
souri v. Holland.145 Finally, the Court enforced the treaty even
though it was abrogated before Chirac had died. Chief Justice Mar-
shall reasoned that since Chirac acquired the property when the
treaty was in force, he obtained it with all rights immediately
vested, including rights of assignment equivalent to a U.S. citizen.146
There were numerous ways in which the Court could have favored
the domestic defendant or softened the effects of the treaty in def-
erence to the State, but the Court declined to do so. Instead, it
treated the 1778 Treaty as a broad charter of protection for aliens
against discriminatory State law. Dozens of other inheritance cases,
including the famous Fairfax’s Devisee v. Hunter’s Lessee,147 were in
the same vein.148
1. The Flip Side: Tariffs—When Congress Breaches

These same treaties of Friendship and Commerce, while en-
forced vigorously against the States, would also be used to first de-
fine how the judiciary ought to handle Congressional acts inconsis-
tent with American treaty obligations. The treaties of Friendship
were trade treaties, and while they commonly included provisions
protecting aliens in the United States, stipulations as to tariffs were
(as with modern trade agreements) the sine qua non element.
Some of the friendship and commerce treaties concluded in the
first half of the nineteenth century include an appendix listing the
tariffs to be paid on various articles.149 More common, however,
145
252 U.S. 416, 432–35 (1920).
146
Chirac, 15 U.S. (2 Wheat.) at 276–77.
147
11 U.S. (7 Cranch) 603 (1812).
148
See, e.g., Hauenstein v. Lynham, 100 U.S. 483, 486–90 (1879); see also supra note
31 (listing cases enforcing treaties against the States).
149
See, e.g., Treaty with China, U.S.-China, app., July 3, 1844, 8 Stat. 592.
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were Most Favored Nation (“MFN”) provisions, obligating the

contracting parties to give each other the lowest tariffs charged to
any nation.150
But what legal status did such stipulations have in the United
States? It is important to notice some of the similarities between
the tariff bindings and the privilege and immunity (“P&I”) provi-
sions seen in Chirac. In contrast to a clear case like Lockwood, the
language of both the tariff bindings and the P&I provisions from
Chirac was no more or less obviously meant for judicial enforce-
ment. Overcharging on imports could surely create the same kind
of international tension that might result from the mistreatment of
aliens. Consequently, importers argued in court, many times and in
many ways, that stipulated tariffs should be directly enforceable as
the “supreme Law of the Land.”
But the importers lost. Despite similar language and circum-
stances, courts nonetheless treated tariff stipulations differently
from P&I stipulations and aliens differently from importers. The
only clear difference between the two, however, was who was al-
leged to have breached. The tariff cases alleged, in essence, wrong-
ful implementation by Congress, while the P&I provisions were
violated by the States.
The leading nineteenth-century tariff case, Taylor v. Morton, il-
lustrates this difference.151 In 1832, Russia and the United States
signed one of the many Friendship and Commerce treaties charac-
teristic of the era. The United States promised Russia MFN status:
it would charge Russian goods the lowest tariff granted any other
nation. Later, in the 1842 Tariff Act, Congress set a tariff of forty
dollars per ton for all hemp, with an advantageous tariff for
Manilla and Bombay hemp of twenty-five dollars per ton.152 Since
Russian hemp, according to the plaintiffs, was the same, or “like”
product as Bombay hemp, the treaty suggested that importers of
150
Many of the MFN provisions during this era, however, were understood as
“qualified” MFN provisions, meaning that countries did not automatically get the
benefits of negotiated deals without making some concession themselves. See John H.
Jackson, The World Trading System: Law and Policy of International Economic Rela-
tions 161–62 (2d ed. 1997) (describing the difference between conditional and uncon-
ditional MFN).
151
23 F. Cas. 784 (C.C.D. Mass. 1855) (No. 13,799), aff’d, 67 U.S. (2 Black) 481
(1862).
152
Id. at 784–85.
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Russian hemp should also be charged twenty-five dollars per ton.

The importers sued for the return of their money.
The Taylor case raises two interesting questions. First, the treaty
language in question gives no clues as to whether it should be en-
forced by the judiciary. It reads: “No higher or other duties shall be
imposed on the importation into the United States[] of any [Rus-
sian] article . . . than are, or shall be, payable on the like article, be-
ing the produce or manufacture of any other foreign country.”153
This is not language, as in Lockwood, that says “Congress shall
pass,” or even, as in Neilson, that uses the future tense. Instead, it
stipulates that no tariffs “shall be imposed,” which sounds like a di-
rect command.
Second, the Tariff Act and the Russian treaty are not clearly in
conflict, nor is it obvious that the 1842 Act was intended to abro-
gate the treaty stipulation. The plaintiffs argued, for example, that
the meaning of Congress’s distinction between Bombay and other
forms of hemp should have been read to give Russian hemp the
benefit of the lowest tariff rate. This is a plausible position, particu-
larly given the injunction of Charming Betsy to choose the inter-
pretation of a statute that, if at all possible, does not conflict with a
treaty. The Court, in other words, easily might have sought to re-
pair or remedy what looked like a thoughtless Congressional
breach of an American promise and declare the appropriate tariff
to be twenty-five dollars.
Nonetheless, Justice Curtis, riding Circuit, found the treaty to
have no effect cognizable by a court; the treaty was not “a rule of
action” for “the courts of justice.”154 He justified his decision not by
relying on treaty text or interpretation, but via a matter crucial for
informing the model in Part I: institutional deference to Congress.
In fact, Justice Curtis did not even quote the language of the treaty
in the opinion. Instead, he wrote: “[I]t is quite plain [that] it cannot
be competent for the court to go any further than a determination
that the case is within the treaty. If [C]ongress legislates in subor-
dination to the treaty, viewed as municipal law, it is not material
what its reasons were . . . .”155 Given Congress’s power to terminate
153
Treaty with Russia, U.S.-Russ., art. VI, Dec. 18, 1832, 8 Stat. 444.
154
Taylor, 23 F. Cas. at 787.
155
Id. at 786.
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treaties and its ongoing role in setting tariffs, he said, there might
have been many reasons that Congress wanted to violate the treaty
with Russia. According to Justice Curtis, a judge could not ask
whether a treaty with a foreign sovereign has been violated by
him; whether the consideration of a particular stipulation in a
treaty, has been voluntarily withdrawn by one party . . . [or]
whether the views and acts of a foreign sovereign . . . have given
just occasion to the political departments of our government to
withhold the execution of a promise contained in a treaty, or to
156
act in direct contravention of such promise?
Even if Congress had made a mistake (which may have been the
case), the judiciary was unwelcome in the interpretation of the tar-
iff law’s standing vis-à-vis the treaty: “[I]t is wholly immaterial to
inquire whether [Congress] ha[s], by the act in question, departed
from the treaty or not . . . .”157 For “[i]f by the act in question they
have not departed from the treaty, the plaintiff has no case.”158 At
the same time:
If [Congress] ha[s breached the treaty], their act is the municipal
law of the country, and any complaint, either by the citizen, or
the foreigner, must be made to those, who alone are empowered
by the constitution, to judge of its grounds, and act as may be
159
suitable and just.
However, Taylor did not give any sense of what should happen
to a tariff treaty adopted later than a tariff statute, a question first
addressed in the 1888 case of Whitney v. Robertson.160 Whitney fea-
tured another MFN treaty clause in an 1867 treaty with the Do-
minican Republic. The tariff statute was amended in 1870 to reflect
the treaty. Then, in 1876, when the United States signed a treaty
with Hawaii entitling Hawaii to export sugar to the U.S. duty free,
Congress failed to amend the tariff laws. This oversight led import-
ers of Dominican sugar to argue that they too were entitled to
156
Id. at 787.
157
Id.
158
Id.
159
Id.
160
124 U.S. 190 (1888); see also Bartram v. Robertson, 15 F. 212 (C.C.S.D.N.Y.
1883) (presenting same facts but Danish treaty), aff’d, 122 U.S. 116 (1886).
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duty-free imports because the Hawaiian treaty was the last-in-time

law of the United States. Read together with the 1867 treaty, it en-
titled the Dominican Republic to the same duty-free imports given
Hawaii.161
The Court rejected the argument. Again, there is no language in
the treaty suggesting that it ought not be enforced by the judiciary
or that there is an obligation due solely to Congress. Furthermore,
the Hawaiian treaty was in fact the last “expressed will of the sov-
ereign.” Nevertheless, the Court decided that Dominican sugar was
still governed by the 1870 statute. Potential beneficiaries of the
1876 Hawaiian treaty, such as the Dominican Republic, needed to
await Congressional action.162 While the Court could have held the
later-in-time treaty supreme to the 1870 statute and of immediate
effect, it did not.
By this point some central principles of treaty enforcement had
been stated for the States and Congress. These principles were
tested and reaffirmed in the last major episode of comparative
State and Congressional breach of U.S. treaty obligations—the his-
tory of the Burlingame Treaty and Chinese immigration.
C. The Difference Between State and Congressional Breach:

Immigration & Chinese Exclusion
In April 1867, the Chinese Empire’s first overseas diplomatic
mission arrived on the shores of San Francisco, marking China’s
first effort to join the modern diplomatic system.163 The Chinese,
unusually, had appointed an American to head the mission: Anson
Burlingame, Envoy Extraordinary and Minister Plenipotentiary.
The trade treaty Burlingame would negotiate on behalf of China
would become central to more than two decades of judicial treaty-
enforcement controversy.
The story of the Burlingame Treaty and its fate in U.S. courts
has enormous relevance for the role of the federal judiciary in the
enforcement of treaties. It reestablished and solidified a basic dy-
161
Whitney, 124 U.S. at 191–92; see also Bartram, 15 F. at 212–13.
162
Whitney, 124 U.S. at 193–95.
163
The story is recounted fully in Fredrick Wells Williams, Anson Burlingame and
the First Chinese Mission to Foreign Powers (1912); see also Jonathan D. Spence, The
Search for Modern China 194–215 (1990) (detailing efforts to reform and modernize
the Chinese empire in the late nineteenth century).
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namic described in Part I: vigorous enforcement against State

breach, and a judicial recognition of Congress’s power to breach
and subvert a Treaty signed by the United States. Yet the courts
did so under difficult conditions, striking down highly popular, yet
discriminatory, State laws.
Anson Burlingame negotiated one of the most liberal commerce
treaties the United States has ever signed. Among its provisions,
the United States agreed to a rule of unlimited and unrestricted
immigration between China and the United States.164 The Treaty
recognized a natural right to immigrate165 and “the mutual advan-
tage of the free migration and emigration” of citizens “for purposes
of curiosity, of trade, or as permanent residents.”166
For Chinese residing in the United States, the Treaty guaranteed
rights similar to those placed in European commerce treaties. Chi-
nese citizens, the treaty proclaimed, “shall enjoy the same privi-
leges, immunities, and exemptions in respect to travel or residence,
as may there be enjoyed by the citizens or subjects of the most fa-
vored nation,”167 and also “entire liberty of conscience,” and ex-
emption “from all disability or persecution on account of their reli-
gious faith.”168 But in contrast to the European commerce treaties,
there was immense popular support for blocking Chinese immigra-
tion and restricting Chinese economic rights.
The Western states largely ignored the Burlingame Treaty’s
promises, and by the 1870s had enacted multiple measures to block
the immigration of new Chinese workers and to restrict the rights
of those already in the United States.169 The Chinese, as Burlin-
game’s comments show, were at first a curiosity and a source of la-
bor.170 But by the 1870s the Chinese had become a scapegoat for
the West Coast’s economic woes, were seen as unwilling to assimi-
164
As Secretary of State William Seward said at the time, “The essential element
of . . . trade and commerce” with China is “[t]he free emigration of the Chinese to the
American [continent].” Hon. William H. Seward: His Departure from Hong Kong
Reception and Speech at the American Consulate, N.Y. Times, Feb. 25, 1871, at 2.
165
Burlingame Treaty, U.S.-China, art. V, July 28, 1868, 16 Stat. 740 (“The United
States of America and the Emperor of China cordially recognize the inherent and in-
alienable right of man to change his home and allegiance.”).
166
Id.
167
Id. art. VI.
168
Id. art. IV.
169
See Roger Daniels, Asian America 34–39 (1988).
170
See id. at 15, 19, 33.
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late, and were despised for their willingness to work harder for less
money. Anti-Chinese signs of the era proclaimed things like “THE
COOLIE LABOR SYSTEM LEAVES US NO
ALTERNATIVE” and “MARK THE MAN WHO WOULD
CRUSH US TO THE LEVEL OF THE MONGOLIAN
SLAVE.”171
In 1879, California ratified a new constitution that denied Chi-
nese residents the right to vote in State elections, permitted placing
the Chinese in ghettos, and, most radically, banned all employment
of Chinese workers.172 It reflected the influence of the California
Workingmen’s Party, whose slogan was “The Chinese must go!”173
The new California Constitution now read: “No corporation . . .
shall . . . employ, directly or indirectly, in any capacity, any Chinese
or Mongolian.”174
But the Chinese immigrants were organized and regarded the
federal judiciary and the Burlingame Treaty as their protectors.175
They “turned to the federal courts at San Francisco . . . and en-
joyed remarkable success.”176 Following the model of Ware, the
federal judiciary repeatedly struck the discriminatory State provi-
sions under the Burlingame Treaty and sometimes under the U.S.
Constitution. It was a successful test of the founding principle of
treaty supremacy against even highly popular State constitutional
provisions.
In 1880, federal judges first struck down the discriminatory pro-
visions of the new California Constitution. In In re Tiburcio
Parrott, Judge Sawyer, relying on Ware and subsequent law, struck
down the California constitutional ban on the employment of Chi-
nese workers as a violation of the Burlingame Treaty.177 He as-
serted that Burlingame had recognized a “natural right” to labor:
171
Id. at 38.
172
Cal. Const. art. XIX (repealed 1952); see also In re Tiburcio Parrott, 1 F. 481
(C.C.D. Cal. 1880).
173
Lucy E. Salyer, Laws Harsh as Tigers 12 (1995).
174
Cal. Const. art. XIX, § 2 (repealed 1952).
175
See generally Salyer, supra note 173, at xv (“Leaders in the Chinese community
spoke with ease and familiarity about the rights owed them under treaties and the
Constitution.”); Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in
Nineteenth Century America: The First Phase, 1850–1870, 72 Cal. L. Rev. 529 (1984)
(describing the organization of the Chinese community).
176
Salyer, supra note 173, at xv.
177
Tiburcio Parrott, 1 F. at 507.
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[T]his absolute, fundamental and natural right [to labor] was

guaranteed by the national government to all Chinese . . . . It is
one of the ‘privileges and immunities’ which it was stipulated that
they should enjoy . . . . And any legislation or constitutional pro-
vision of the state of California which limits or restricts that right
to labor to any extent, or in any manner, not applicable to citi-
zens of other foreign nations visiting or residing in California, is
178
in conflict with this provision of the treaty . . . .
In dozens of subsequent cases the federal judiciary struck down
numerous other anti-Chinese statutes, including restrictions on
fishing in public waters,179 immigration of “lewd” women,180 living or
operating businesses in San Francisco outside of designated ar-
eas,181 anti-Chinese covenants in deeds,182 and zoning rules that re-
stricted Chinese laundries.183 The dictum in Baker v. Portland,
which suggested that Portland’s anti-Chinese employment laws ran
contrary to the treaty, was typical.184 District Judge Deady agreed
with the plaintiffs that the Burlingame Treaty was a promise to
Chinese immigrants of full privileges and immunities, preemptive
of inconsistent municipal regulations.185 “An honorable man,” he
wrote, “keeps his word under all circumstances, and an honorable
nation abides by its treaty obligations, even to its own disadvan-
tage.”186 Upholding Judge Deady’s opinion, Justice Field, though
known for his personal contempt for the Chinese race, nonetheless
wrote that:
178
Id.
179
In re Ah Chong, 2 F. 733, 734, 737 (C.C.D. Cal. 1880) (holding State law prohibit-
ing aliens from fishing in public waters void due to contravention of the Burlingame
Treaty).
180
Chy Lung v. Freeman, 92 U.S. 275, 277 (1876).
181
In re Lee Sing, 43 F. 359, 361–62 (C.C.D. Cal. 1890).
182
Gandolfo v. Hartman, 49 F. 181, 181, 183 (C.C.S.D. Cal. 1892) (striking down
covenant not to covey or lease to a “Chinaman”).
183
In re Quong Woo, 13 F. 229, 229–30, 233 (C.C.D. Cal. 1882). On the other hand,
Justice Field upheld a law restricting the operating hours of laundries (requiring them
to be closed between 10 p.m. and 6 a.m.) as nondiscriminatory. See Barbier v. Con-
nolly, 113 U.S. 27, 30–31 (1885).
184
2 F. Cas. 472 (D. Or. 1879) (No. 777).
185
Id. at 473.
186
Id.
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[T]he anti-Chinese legislation of the Pacific coast is but a poorly

disguised attempt on the part of the [S]tate to evade and set aside
the treaty with China, and thereby nullify an act of the national
government. Between this and ‘the firing on Fort Sumter,’ by
South Carolina, there is the difference of the direct and indi-
187
rect—and nothing more.
A particularly bizarre case was that of an anti-Chinese ordinance
in San Francisco that mandated immediate haircuts for all jailed
persons. At the time, Chinese were filling the jail cells as a result of
civil disobedience.188 Because Chinese law and custom required
Chinese men to keep their hair in a long queue, the law selectively
punished the Chinese. Justice Field struck the law under the Con-
stitution, calling it “legislation unworthy of a brave and manly peo-
ple.”189
But even as the federal judiciary struck State anti-Chinese laws,
the national mood and the federal government inclined toward a
change in federal policy. As Justice Field (who had personally
struck many of the State laws) wrote: “[T]he people of the coast
saw, or believed they saw . . . great danger that at no distant day
that portion of our country would be overrun by [the Chinese]
unless prompt action was taken to restrict their immigration.”190 In
his words, “[s]o urgent and constant were the prayers for relief
against existing and anticipated evils, both from the public authori-
ties of the Pacific Coast and from private individuals, that Congress
was impelled to act on the subject.”191
After much agitation and petition, Congress in 1879 passed its
first Chinese immigration restrictions, H.R. 2423, known as the
“Fifteen Passenger Bill.”192 The law would have restricted steam-
ships to fifteen Chinese passengers per voyage to the United
States. But President Rutherford Hayes, citing the Burlingame
187
Id. at 475 (opinion on rehearing of Field, J.).
188
See Charles McClain & Laurene Wu McClain, The Chinese Contribution to
American Law, in Entry Denied: Exclusion and the Chinese Community in America,
1882–1943, at 3, 9 (Sucheng Chan ed., 1991).
189
Ho Ah Kow v. Nunan, 12 F. Cas. 252, 256–57 (C.C.D. Cal. 1879) (No. 6546).
190
Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581,
595 (1889).
191
Id. at 596.
192
See H.R. 2423, 45th Cong. (1879); 8 Cong. Rec. 791, 791–92 (1879).
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Treaty, vetoed the bill (“saving the nation’s honor”), arguing that it
was his legal obligation.193 Hayes was of the old school: he believed
in diplomatic treaty amendment, not Congressional abrogation,
and he promptly sent a commission to China to negotiate changes
to the Burlingame Treaty. The result was the 1880 Immigration
Treaty, which achieved some of what the exclusionists wanted. It
stated that the United States could “regulate, limit or suspend
[immigration], but may not absolutely prohibit it.”194 But it also
provided rights for Chinese already in the United States, mandat-
ing that Chinese residents “be allowed to go and come of their own
free will and accord, and . . . be accorded all the rights, privileges,
immunities, and exemptions as are accorded to the citizens . . . of
the most favored nation.”195
Despite the efforts of President Hayes and later President Ar-
thur to veto direct Congressional abrogation, the United States
would soon breach even the renegotiated treaty. In 1882, the first
Chinese Exclusion Act passed Congress with the preamble “the
coming of Chinese laborers to this country endangers the good or-
der of certain localities.”196 It was styled as an enactment of the
1880 treaty and suspended Chinese labor immigration for ten years
(a suspension later made permanent). In 1888, Congress enacted a
clear breach of its treaties with China with the Second Chinese Ex-
clusion Act.197 The Act made it illegal for Chinese residents who
had left the United States to ever return.198 This time, no Presiden-
tial veto came. Instead, President Grover Cleveland justified the
exclusion, pronouncing the Chinese “ignorant of our constitution
and laws, impossible of assimilation with our people, and danger-
ous to our peace and welfare.”199
193
Rutherford B. Hayes, The Diary of a President 189 (T. Harry Williams ed., 1964)
(“As I see it, our treaty with China forbids me to give it my approval.”); see also 8
Cong. Rec. at 2215.
194
Immigration Treaty, U.S.-China, art. I, Nov. 17, 1880, 22 Stat. 826.
195
Id. art. II.
196
Act of May 6, 1882, ch. 126, 22 Stat. 58 (repealed 1943).
197
Act of October 1, 1888, ch. 1064, 25 Stat. 504 (repealed 1943).
198
Id. (“[It is] unlawful for any chinese [resident] laborer . . . who shall have de-
parted . . . and shall not have returned before the passage of this act, to return to, or
remain in, the United States.”).
199
Quoted in Michael H. Hunt, The Making of a Special Relationship: The United
States and China to 1914, at 92 (1983).
WU_BOOK 4/17/2007 9:55 PM
Faced with conflict between the treaty and the statute, the fed-
eral courts in California and the Supreme Court decisively held
that a later-in-time, inconsistent statute abrogates an inconsistent
treaty. Justice Stephen Field was again the central player, writing
both the important District Court and Supreme Court decisions.
The first of the Chinese exclusion cases featured Chae Chan
Ping, who had lived in the United States since 1875. He had made a
trip to China to see his family after obtaining a prescribed certifi-
cate of reentry but was stopped at the border pursuant to the new
treaty. He sued. Justice Field denied that any right to return had
vested and upheld the statute in its entirety. He conceded that “the
act of 1888 is in contravention of express stipulations of the treaty
of 1868, and of the supplemental treaty of 1880,” but held that “it is
not on that account invalid or to be restricted in its enforcement.”200
Other cases were similar, including United States v. Lee Yen Tai,
which refused to find that a new 1894 treaty had abrogated Con-
gress’s 1882 exclusion statute and reinforced the suspicion that
later-in-time treaties will only rarely be enforced against inconsis-
tent prior statutes.201
The Burlingame era—an era that only really ended in the 1960s,
with the normalization of Chinese immigration—teaches much
about what the American judiciary will and will not do with its
power to enforce treaties. Federal judges feel comfortable defend-
ing the rights of aliens against State encroachment. The two San
Francisco district court judges, Ogden Hoffman and Lorenzo Saw-
yer, and Justice Field, in his appearances as a Circuit Justice, were
all predisposed to enforce U.S. treaties on behalf of the alien to
preempt contrary State law, even in face of virulent popular opin-
ion and their own apparently low regard for the Chinese as a peo-
ple.202 By contrast, the exact same judges deferred completely to
Congress’s expressed desire to break the Chinese treaties. While
perhaps the distinction was predictable, the difference made by the
200
Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581,
600 (1889).
201
See United States v. Lee Yen Tai, 185 U.S. 213, 220–23 (1902); see also 2 Charles
Henry Butler, supra note 119, §§ 379–81 (describing the remainder of the Chinese ex-
clusion cases).
202
See Christian G. Fritz, A Nineteenth Century “Habeas Corpus Mill”: The Chi-
nese Before the Federal Courts in California, 32 Am. J. Legal Hist. 347, 350–52 (1988)
(describing Judge Hoffman’s and Justice Field’s low opinion of the Chinese people).
WU_BOOK 4/17/2007 9:55 PM
identity of the breaching institution could not be clearer. It re-

mained unclear, however, how the judiciary would respond to a
suit against the Executive for failing to obey a treaty.
D. Enforcement Against the Executive: Extradition

By the late nineteenth century, several of the principles of treaty
enforcement had been stated. Courts, on the model of Ware,
Chirac, and the State Chinese exclusion cases, would enforce trea-
ties to prevent States from putting the Union in breach of its obli-
gations. Meanwhile, through the tariff cases and federal Chinese
exclusion cases, the courts had begun to respect a separate domain
of Congressional treaty implementation. Presented with cases
where Congress either failed to implement a treaty or passed stat-
utes inconsistent with treaty obligations, courts declined to offer a
remedy. Chief Justice Marshall’s rationale in Neilson—that certain
treaties by their terms create duties for the legislature, not the
courts—was often cited. Yet the actual cases rarely depended on
the text of the treaties. Instead, the cases seemed to depend on the
analysis of Taylor: that Congress has the power to terminate treaty
obligations and that courts must defer to such decisions, on the no-
tion that Congressional decisions might depend on information in-
accessible to the judiciary.
All of this left open the question of Executive breach. What
would courts do when faced with cases where the Executive branch
had failed to live up to its treaty obligations?
The small size of the Executive branch in the eighteenth and
nineteenth centuries meant few opportunities for the Executive to
violate international treaties in a judicially cognizable way. But
while small, the Executive branch did employ prosecutors. It was
their alleged breaches of international law in matters of extradition
that first raised the question of whether the judiciary would order
the Executive to obey treaties. While quite involved and confusing,
the history of the enforcement of extradition treaties gives the first
insights into the hardest question posed in Part I: when does the
judiciary enforce treaties against the Executive?
WU_BOOK 4/17/2007 9:55 PM
As Professor Ruth Wedgwood wrote, the history of extradition

begins with a “revolutionary martyrdom.”203 The first American ex-
tradition agreement was in the controversial Jay Treaty of 1794,
where, in Article 27, the United States and Great Britain promised
to “deliver up to justice all persons, who, being charged with mur-
der or forgery, committed within the jurisdiction of either, shall
seek an asylum within any of the countries of the other.”204 In 1798,
the British demanded the handover of a mutineer and murder sus-
pect named Jonathan Robbins. As Congress had passed no imple-
menting legislation, the question was whether the treaty alone gave
courts enough power to extradite Robbins. Robbins said “no,”
claiming to be a loyal U.S. citizen, pressed into British navy service,
whose mutiny was patriotic. But Judge Thomas Bee, with President
Adams’s consent, handed over the suspect based solely on the
power of the treaty. Robbins was promptly tried and hanged.205
The Robbins affair ignited a political firestorm. Judge Bee, said
the Aurora newspaper, had held that “A TREATY made by an
AGENT of the PEOPLE was PARAMOUNT to the
CONSTITUTION under which the agent was chosen.”206 Members
of Congress quickly proposed the censure of Adams for his per-
ceived treachery.207 Adams managed to survive censure—though
not the election—thanks in part to an impassioned defense by
Congressman John Marshall.208 But so severe was the political fall-
out that the United States refused to extradite anyone for any rea-
son for more than forty years.209
It was not until 1842 that a new extradition treaty with Britain
was signed and not until the late 1870s that the question of Execu-
tive breach arose. When it did, the question was linked closely to
203
Ruth Wedgwood, The Revolutionary Martyrdom of Jonathan Robbins, 100 Yale
L.J. 229 (1990).
204
Treaty of Amity, Commerce and Navigation, U.S.-Gr. Brit., art. XXVII, Nov. 19,
1794, 8 Stat. 116.
205
See United States v. Rob[b]ins, 27 F. Cas. 825, 833 (D.S.C. 1799) (No. 16,175).
Two detailed histories of the Robbins case are John T. Parry, The Lost History of In-
ternational Extradition Litigation, 43 Va. J. Int’l L. 93, 108–14 (2002), and Wedg-
wood, supra note 203.
206
Aurora (Philadelphia), Aug. 12, 1799, at 2, reprinted in Wedgwood, supra note
203, at 323.
207
See Wedgwood, supra note 203, at 334.
208
See id. at 354.
209
Parry, supra note 205, at 114.
WU_BOOK 4/17/2007 9:55 PM
the familiar problem of State misbehavior placing the Union in

breach of its treaties. The issue was “specialty”: the principle that it
is unlawful to charge an extradited subject with offenses other than
the specific crime for which extradition is requested and granted.
Anglo-American diplomatic tension brought specialty to the
forefront. Given today’s tendency to sequester the judiciary from
worldly affairs, it is interesting to note that the 1842 Treaty’s extra-
dition language was drafted by Justice Story (as a favor to Secre-
tary of State Daniel Webster). It enumerated seven specific of-
fenses as grounds for extradition: “murder, or assault with intent to
commit murder, or piracy, or arson, or robbery, or forgery, or the
utterance of forged paper.”210 Story purposely excluded any politi-
cal offenses, as to not “hazard the ratification by our Senate from
popular clamour.”211 The treaty also contained no explicit specialty
requirement, and for several decades extradition proceeded with-
out regard to whether the crime charged was the crime for which
extradition was sought.
That changed as, in the late 1860s, specialty began to gain intel-
lectual favor in Britain. Following several studies in 1870, the Brit-
ish Parliament passed a new Extradition Act.212 It required the Brit-
ish government to respect the principle of only charging a suspect
with the crime for which extradition was sought and to refuse ex-
tradition to nations that did not.213 That law would soon create yet
another Anglo-American showdown.
In 1876, the United States requested the extradition of Erza
Winslow for the offense of forgery, for which he was wanted in
Massachusetts. Britain captured and imprisoned Winslow, but fol-
lowing its new law, it refused to surrender him unless the United
States promised to try him for forgery alone and not to indict him
for other offenses. On the advice of Secretary of State Hamilton
210
A Treaty: To settle and define the boundaries between the territories of the
United States and the possessions of Her Britannic Majesty in North America; for the
final suppression of the African slave trade; and for the giving up of criminals, fugitive
from justice, in certain cases, U.S.-Gr. Brit., art. X, Aug. 9, 1842, 8 Stat. 572.
211
Letter from Joseph Story, Supreme Court Justice, to Daniel Webster, Sec’y of
State (Apr. 19, 1842), in 1 The Papers of Daniel Webster: Diplomatic Papers, 1841–
1843, at 537, 538 (Kenneth E. Shewmaker ed., 1983).
212
Extradition Act, 1870, 33 & 34 Vict., c. 52 (U.K.).
213
See id. §§ 3, 19.
WU_BOOK 4/17/2007 9:55 PM
Fish, President Ulysses Grant refused. Winslow was let free and
never heard from again.214
After Winslow’s release, an angry President Grant accused Brit-
ain of breaching the 1842 Treaty.
Her Majesty’s Government . . . instead of surrendering the fu-
gitive, demanded certain assurances or stipulations not men-
tioned in the treaty, but foreign to its provisions . . . .
The position thus taken by the British Government, if adhered
to, cannot but be regarded as the abrogation and annulment of
215
the article of the treaty on extradition.
Grant announced he was suspending U.S. performance of the
treaty unless Britain or Congress gave him reason to change his po-
sition.216
But the tension was short lived: by the end of 1876, the United
States and Britain had settled their differences. While making no
formal legal commitment, the United States dropped charges in a
prominent case, de facto observing the specialty principle.217 The
Earl of Derby, British Foreign Minister, told the House of Lords
that U.S. objections to specialty were now “purely theoretical.”218
Said Derby, “[w]e continued to maintain, and we maintain now,
that the construction which we put on the treaty was the correct
one.”219 Meanwhile, Britain quietly stopped demanding assurances
that specialty would be respected. Extradition under the treaty of
1842 resumed.
Was President Grant correct about the 1842 Treaty? To a mod-
ern reader, the lack of any explicit specialty clause combined with
214
See Message from the President [Ulysses S. Grant to Congress] in relation to the
extradition treaty with Great Britain (June 20, 1876), in 2 A Digest of the Interna-
tional Law of the United States 786, 787–88 (Francis Wharton ed., Washington, Gov’t
Printing Office 1886).
215
Id.
216
Id. at 789 (“Should the attitude of the British Government remain unchanged, I
shall not, without an expression of the wish of Congress that I should do so, take any
action either in making or granting requisitions for the surrender of fugitive criminals
under the treaty of 1842.”).
217
See 1 John Bassett Moore, A Treatise on Extradition and Interstate Rendition
§ 151 (photo. reprint 1996) (1891).
218
Lord Derby, British Foreign Secretary, Speech to the House of Lords (Feb. 13,
1877), reprinted in part in Moore, supra note 217, § 151, at 212 n.1.
219
Id.
WU_BOOK 4/17/2007 9:55 PM
decades of practice would suggest the answer is “yes.”220 But the in-
ternational law publicists of the late nineteenth century jumped on
the question and unanimously pronounced the American position
incorrect. Wrote John Bassett Moore in 1891, “[t]he general opin-
ion has been that, while [the United States] was wrong . . . [it] was
right in refusing to comply with the demand of the British govern-
ment.”221 Attacks on the U.S. position came from law professor and
Michigan Supreme Court Justice Thomas Cooley, Judge Lowell of
the District of Massachusetts, and most vigorously from William
Beach Lawrence, editor of Wheaton’s Elements of International
Law.222 As Lawrence wrote, Grant’s position “proposes to take
away all safeguards, which would protect our own citizens, when
extradited perhaps for the most trifling offenses, from being ex-
posed in a foreign country, without friends, and without counsel, to
a trial for the most heinous crimes.”223
The settlement of the Winslow affair did not, as Lord Derby had
promised, end the matter. For while the federal government had its
de facto policy, State prosecutors and rogue federal prosecutors
continued to charge beyond the indictment. A well-known example
was the Kentucky case of Commonwealth v. Hawes, where, despite
the complaints of the British ambassador, an extradition for for-
gery was used to charge a suspect for embezzlement.224 William
Beach Lawrence returned to the Albany Law Journal to warn that
State extradition practice threatened “dangers in our international
relations” and “even menaced hostilities.”225
It was against this background that the Supreme Court consid-
ered the famous case of United States v. Rauscher in 1886.226 Wil-
liam Rauscher, second mate of the USS J.F. Chapman, was extra-
dited from Britain on charges of murder. However, the federal
prosecutor in the Southern District of New York—apparently
220
See Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Mak-
ing Sense of United States v. Rauscher, 34 Va. J. Int’l L. 71 (1993).
221
Moore, supra note 217, §152, at 212–13.
222
Judge T. M. Cooley, Extradition, 3 Int’l Rev. 433, 438–40 (1876); William Beach
Lawrence, The Extradition Treaty, 14 Alb. L.J. 85, 85 (1876); Winslow’s Case, 10 Am.
L. Rev. 617, 617–18 (1876) (anonymous, attributed to Judge Lowell).
223
Lawrence, supra note 222, at 99.
224
76 Ky. (13 Bush) 697, 700–01 (1878).
225
William Beach Lawrence, Extradition, 16 Alb. L.J. 361, 364 (1877).
226
119 U.S. 407 (1886).
WU_BOOK 4/17/2007 9:55 PM
without permission from the Attorney General—charged him with

cruel and unusual punishment, a crime not enumerated in the 1842
extradition treaty. Justice Miller, joined by six Justices, brushed
aside the Government’s construction of the 1842 Treaty and en-
forced the treaty directly against the federal government. Drawing
on Neilson, he found the 1842 Treaty “the supreme law of the land,
which the courts are bound to take judicial notice of, and to en-
force in any appropriate proceeding.”227
The 1842 Treaty contained no explicit specialty requirement.
Nonetheless, Justice Miller relied on Story’s enumeration of seven
offenses in the treaty to support an argument that the indictment
was illegitimate. “[T]he enumeration of offenses . . . is so specific,
and marked by such a clear line in regard to the magnitude and
importance of those offenses, that it is impossible to give any other
interpretation to it than that of the exclusion of the right of extradi-
tion for any others.”228
What about President Grant’s message and the United States’
construction of the treaty? Did not the Supreme Court have some
duty to defer to the considered views of the Executive as to the
treaty it had negotiated? To a modern reader, the failure of the So-
licitor General’s brief to press this issue is quite surprising. Indeed,
there is a languid and concessionary nature to the brief that may
suggest the United States was not particularly concerned about los-
ing.229 In any case, Justice Miller did acknowledge the dispute over
the meaning of the treaty, noting that “[t]he correspondence is an
able one upon both sides.”230 Yet, instead of deferring to the Execu-
tive, he said that the treaty “presents the question which we are
now required to decide.”231
Justice Miller made far more of the views of the publicists who
had suggested that specialty was an established part of customary
international law. William Beach Lawrence was called “a very
learned authority on matters of international law living in this
country.”232 Justice Miller also favored the “learned and careful
227
Id. at 419.
228
Id. at 420.
229
Brief for the United States, Rauscher, 119 U.S. 407 (No. 1249).
230
Rascher, 119 U.S. at 415.
231
Id. at 416.
232
Id.
WU_BOOK 4/17/2007 9:55 PM
work” of Samuel Spear. In Miller’s view, Spear’s examination of

the matter was “so full and careful, that it leaves nothing to be de-
sired in the way of presentation of authorities.”233
In short, by ordering the breach remedied, the Court in Rauscher
ignored the President’s interpretation of a treaty and arguably
went beyond the text of the treaty to find the Executive branch in
violation. Secretary of State Hamilton Fish called the decision “all
wrong.”234 In a sense, Rauscher treated the Executive branch rather
like a State, entitled to no particular deference as to the meanings
of the treaties it had signed. What might explain this result?
One answer is simply that the Court believed that the Suprem-
acy Clause means that the judiciary should interpret treaties de
novo, without particular regard to the views of the Executive. An-
other explanation comes from Jacques Semmelman, an extradition
expert who has studied the history of Rauscher extensively. Sem-
melman believes that the Court was motivated primarily by con-
cerns about State misbehavior and problems with Britain.235 As he
writes:
A conclusion either that specialty was not implicit within the
Treaty, or that it was not enforceable by the courts, would have
conferred unfettered discretion upon the [S]tates to decide
whether to prosecute for crimes not included in the warrant of
surrender. . . . [This] might have led to serious international diffi-
culties for the United States . . . .
Justice Miller believed very firmly that the States should be in-
236
sulated from any role in international relations.
One idea, then, is that even though the Court was facing a fed-
eral defendant, it may have been motivated by the central dogma
of treaty enforcement: the prevention of State actions that create
Union breach.
A third explanation builds on the analogy to statutory deference
discussed in Part I. Rauscher was a criminal case, with a treaty
233
Id. at 417 (referencing Samuel T. Spear, The Law of Extradition (2d ed. 1884)).
234
Letter from Hamilton Fish, Sec’y of State, to J. C. Bancroft Davis (Dec. 7, 1887),
reprinted in part in Charles Fairman, Mr. Justice Miller and the Supreme Court, 1862–
1890, at 326 (1939).
235
See Semmelman, supra note 220, at 132–37.
236
Id. at 132–33.
WU_BOOK 4/17/2007 9:55 PM
raised as a defense. While the judiciary usually defers to Executive

constructions in treaty cases, judges have never granted great def-
erence to the Executive in the construction of criminal laws.237 As
Justice Scalia put it in 1990, “[t]he Justice Department, of course,
has a very specific responsibility to determine for itself what [a
criminal] statute means . . . but we have never thought that the in-
terpretation of those charged with prosecuting criminal statutes is
entitled to deference.”238 Just as judicial deference to the Executive
is at a minimum in statutory criminal cases, so it is for criminal
cases that touch on treaties. On this reasoning, Rauscher might
stand for a different idea: unless Congress signals otherwise, trea-
ties establishing criminal defenses should be enforced against any
government entity, be it State, Executive, or even foreign.
Regardless of the explanation, with Rauscher the Supreme
Court created the first domain of treaty law enforceable against
the Executive. While there is some disagreement over whether
foreign nations may waive the specialty defense on behalf of their
citizens, judges continue to enforce specialty clauses against State
and Federal governments.239 Justice Miller’s opinion, moreover,
created a domain that has spread beyond extradition into interna-
tional criminal procedure generally. Today, in addition to con-
tinuing to enforce extradition treaties, judges have directly en-
237
But see Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110
Harv. L. Rev. 469 (1996) (arguing that the federal government should get Chevron
deference in its interpretation of criminal laws).
238
Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring).
239
See, e.g., United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (characteriz-
ing an extradition treaty as directly applicable federal law); Valentine v. United States
ex rel. Neidecker, 299 U.S. 5, 18 (1936); Terlinden v. Ames, 184 U.S. 270, 288 (1902)
(“Treaties of extradition are executory in their character . . . .”); Cheung v. United
States, 213 F.3d 82, 95 (2d Cir. 2000) (“[T]he Constitution not only allows, but in fact
requires, the courts to treat the Agreement as equal to the federal extradition
statue . . . .”); United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995) (holding
that the extradition treaty between the United States and Uruguay could be enforced
directly by the person extradited); United States v. Riviere, 924 F.2d 1289, 1300–01
(3d Cir. 1991); United States v. Levy, 905 F.2d 326, 328 n.1 (10th Cir. 1990); United
States v. Thirion, 813 F.2d 146, 151 & n.5 (8th Cir. 1987); United States v. Najohn, 785
F.2d 1420, 1422 (9th Cir. 1986).
WU_BOOK 4/17/2007 9:55 PM
forced prisoner exchange240 and mutual legal assistance treaties

(“MLAT”).241
* * *
By the turn of the century, the Supreme Court had established
several important principles in treaty enforcement practice. The
central mission of treaty enforcement, vindicated in dozens of
cases, was preventing States from putting the nation in breach. In
addition to addressing State breach, though, the Court in the tariff
and Chinese exclusion cases had also wrestled with the tricky prob-
lem of Congressional inconsistency on treaties, using the last-in-
time rule and other means to defer to both Congress’s decisions
and its mistakes. Furthermore, the Court in Rauscher established a
beachhead for strong treaty enforcement against the Executive.
III. THE TWENTIETH CENTURY AND THE AGE OF MULTILATERAL

TREATIES
An important premise of the model outlined in Part I is that acts
undertaken by other branches can and will affect how the judiciary
enforces treaties. If that assertion is correct, then it stands to rea-
son that changes in the treaty-relevant practices of other branches
may affect how the judiciary enforces treaties. As this Section ar-
gues, that is exactly what has happened in the twentieth century.
It is commonplace to say that in the twentieth century judges
have changed how they enforce treaties or, more precisely, that en-
forcement has slowed down.242 Rather than disputing that assertion,
this Article provides a fundamentally different explanation for it.
The typical arguments suggest either that the multilateral treaties
typical of the post-World War II era have discouraged judges from
240
See, e.g., Cannon v. U.S. Dep’t of Justice, 973 F.2d 1190, 1192 (5th Cir. 1992) (en-
forcing a treaty on the execution of penal sentences between the United States and
Mexico against the U.S. Parole Commission).
241
See In re Comm’r’s Subpoenas, 325 F.3d 1287, 1289–90 (11th Cir. 2003) (enforc-
ing MLAT with Canada); United Kingdom v. United States, 238 F.3d 1312, 1316–17
(11th Cir. 2001) (recognizing MLAT as an enforceable treaty); In re Erato, 2 F.3d 11,
15 (2d Cir. 1993) (enforcing MLAT with the Netherlands).
242
See Stephan, supra note 13.
WU_BOOK 4/17/2007 9:55 PM
treaty enforcement,243 or that judges have developed a kind of con-

tempt for treaty law and refuse to enforce treaties, even though the
Supremacy Clause suggests they should.244
The work in this Part of the Article leads to two comments. First,
it is not clear that either the multilateral form of treaties or changes
in the non-self-execution doctrine have fundamentally changed ju-
dicial treaty enforcement practice. As the Sections below demon-
strate, the enforcement practices for multilateral treaties are simi-
lar to those for bilateral treaties. Indeed, multilateral treaties that
displace State law have been enforced vigorously, most notably the
Warsaw Convention on aircraft liability and the United Nations
Convention on Contracts for the International Sale of Goods.
These two conventions affect State tort and contract law, respec-
tively. By contrast, where multilateral treaties might create duties
for Congress, courts remain, as in the nineteenth century, reluctant
to enforce the treaty and more likely either to defer to Executive
construction or to wait for Congressional implementing legislation.
As discussed below, this judicial tendency can be seen in cases in-
volving the multilateral intellectual property regimes and the hu-
man rights treaties.
This Part suggests that different phenomena have profoundly al-
tered judicial treaty enforcement. The first (and most important)
phenomenon is the rise of the Congressional-Executive agree-
ment,245 which has all but replaced the Article II treaty procedure
(treaties signed by the President and approved by two-thirds of the
Senate).246 In the Congressional-Executive procedure, Congress
enacts legislation with every treaty, changing domestic law when it
thinks it necessary. The result is a flip in the default rule of treaty
enforcement. Where Congress automatically gives its opinion on
the appropriate domestic meaning of a treaty, the judiciary’s role
243
See, e.g., G. John Ikenberry, Address at Princeton University: America, World
Order, and the Rule of Law 3–4 (Mar. 28, 2003), http://www.princeton.edu/~lisd/
events/talks/Ikenberry_Lecture.pdf.
244
See Sloss, supra note 6, at 6–7.
245
Professor Duncan Hollis made this suggestion first. See Duncan Hollis, Remarks
at the Third Annual Workshop of the American Society of International Law’s Inter-
est Group on International Law in Domestic Courts (Dec. 13, 2004).
246
For an overview on the differences between Article II treaties and Congressional-
Executive agreements, see Bradley & Goldsmith, supra note 38, at 468–78.
WU_BOOK 4/17/2007 9:55 PM
recedes. The predictable result is a large shift in the respective sizes

of the Congressional and judicial domains of treaty enforcement.
The second phenomenon is the practice, concurrent with statu-
tory trends, of granting more deference to Executive interpreta-
tions of treaties. This development mirrors other trends in Ameri-
can law, most importantly the rise of the Administrative state since
the 1930s, which has brought greater levels of Executive and Con-
gressional control over the enforcement of statutes and the com-
mon law.247 Scholars have portrayed the creation of administrative
agencies as replacements for the judicial enforcement schemes of
the nineteenth century.248 The rise of the Congressional-Executive
agreement is the treaty version of the same phenomenon. It is
therefore not surprising that we have seen more Congressional and
Executive, as opposed to judicial, control of treaty enforcement.
* * *
Returning to the history of treaty enforcement, we see how
courts dealt with the first two major multinational treaty regimes:
the intellectual property unions of the late nineteenth century249
and the aircraft liability regime established in 1929 (the Warsaw
Convention).250 Afterward, we consider how courts have handled
the challenge of multinational human rights treaties. Judicial en-
forcement of these regimes shows the same tendency of courts to
consider the identity of the party in alleged breach and to defer to
Congress and the Executive as the central influences on treaty en-
forcement.
247
See generally Richard B. Stewart & Cass R. Sunstein, Public Programs and Pri-
vate Rights, 95 Harv. L. Rev. 1193, 1216–20 (1982) (discussing the evolution of the
control of remedies for administrative beneficiaries).
248
See Jerry L. Mashaw et al., Administrative Law 4–6 (3d ed. 1992) (discussing
agencies as replacements for failed judicial enforcement systems).
249
Examples of nineteenth-century intellectual property unions are the Paris Union,
established in 1893 by the Convention for the Protection of Industrial Property, and
the Berne Union, established in 1886 by the Convention for the Protection of Literary
and Artistic Work.
250
Convention for the Unification of Certain Rules regarding International Trans-
port, with Additional Protocol, Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 [hereinaf-
ter Warsaw Convention].
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A. Enforcement Against States Continuing into the Present: The

Warsaw Convention
The Warsaw Convention is familiar to travelers from the fine
print on the back of airline tickets. It is the clearest example of a
contemporary, judicially enforced treaty regime in the tradition of
Ware v. Hylton. It offers important insight into what kind of trea-
ties the judiciary will enforce directly and why.
The Warsaw Convention was the child of two international con-
ferences, held in Paris in 1925 and in Warsaw in 1929, and it built
on the work done by the interim Comité International Technique
d’Experts Juridique Aériens. The goal was to create a uniform le-
gal framework to govern the fledgling airline industry. As the re-
porter for the Convention put it, “[w]hat the engineers are doing
for machines, we must do for the law.”251
The most important parts of that legal framework were the stan-
dardized limits on carrier liability in domestic courts. Article 17
made carriers liable for personal injury damages sustained during
the course of a flight, but Article 22 limited that liability to 125,000
“Poincaré francs,” or about $8,300.252 Other portions limited liabil-
ity for lost luggage (Article 18) and flight delays (Article 19). The
liability limits—particularly for personal damages—were low, even
by 1929 standards. The point, however, was to attract investment
capital that might otherwise be scared off by fears of liability in the
event of a plane crash.253
In the United States, the principal effect of the Warsaw Conven-
tion is to constrain the States. The Convention limits remedies that
would otherwise be available through State tort law. In this re-
spect, it is legally similar to the 1780 Treaty of Peace and to the
many commercial treaties that limit the course that State law might
otherwise be inclined to take. And, like these earlier treaties, the
Warsaw Convention has been consistently enforced directly by the
judiciary as a self-executing treaty. The Warsaw Convention is a
pure example of a treaty within the judicial domain. There is no
251
II Conférence International de Droit Privé Aérien, 4–12 Octobre 1929, Varsovie
17 (1930), translated in Andreas F. Lowenfeld & Allan I. Mendelsohn, The United
States and the Warsaw Convention, 80 Harv. L. Rev. 497, 498 (1967).
252
Warsaw Convention, supra note 250, arts. 17, 22.
253
See Lowenfeld & Mendelsohn, supra note 251, at 499–500.
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implementing legislation or complementary regulation, yet it is the

regime under which most suits for damages occurring in the course
of international aviation must be brought.
The exact extent to which the Warsaw Convention limits State
causes of action has long been a matter of some dispute. The Su-
preme Court’s most recent pronouncements adopt a broad position
of treaty preemption of State tort law. The 1999 case of El Al Israel
Airlines v. Tsui Yuan Tseng presents a particularly strong vision of
judicial preemption of State action.254 After a plane crash, Tsui
Yuan Tseng and other plaintiffs sought damages for pain and suf-
fering under New York tort law. The question was whether the
plaintiffs could recover for injuries not explicitly limited by the
treaty—namely, emotional, as opposed to physical, suffering. The
Supreme Court said “no,” creating a sharp limit on State regulation
of international airline carriage.
Noting that the purpose of the Convention was to “achiev[e] uni-
formity of rules governing claims arising from international air
transportation,” the Court agreed with El Al and the United States
Government that the Convention must be read as precluding all
personal injury remedies (namely, State remedies) other than those
authorized by the Convention itself.255 In the Court’s words: “Given
the Convention’s comprehensive scheme of liability rules and its
textual emphasis on uniformity, we would be hard put to conclude
that the delegates at Warsaw meant to subject air carriers to the
distinct, nonuniform liability rules of the individual signatory na-
tions.”256
The Court assumed without discussion that the relevant portions
of the Warsaw Treaty were enforceable by the judiciary. While this
is a feature of every Warsaw Convention case, it is not inevitable:
the Court could have held the Warsaw Convention of no effect
without implementing legislation. But its failure to do so, and in-
deed the extremely cursory analysis of the self-execution doctrine
in El Al and other Warsaw Convention cases, suggests a familiar
dynamic. The court finds itself once again preventing State law
254
525 U.S. 155, 169–76 (1999).
255
Id. at 169 (quoting Eastern Airlines v. Floyd, 499 U.S. 530, 552 (1991)).
256
Id. at 169.
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from disturbing an international regime, happily implementing the

central dogma of treaty enforcement.
B. The Difference Between State and Congressional Breach

Continues in the Twentieth Century: International Intellectual
Property Regimes
The first major multilateral treaties signed by the United States
were the Intellectual Property (“IP”) treaties of the late nineteenth
century. Both the Berne Convention on Copyright257 and the Paris
Convention on Industrial Property258 (trademark and patent) were
ambitious efforts to create global protection for the rights of au-
thors and inventors, respectively. But unlike the Warsaw Conven-
tion, these conventions created federal duties, and the enforcement
results track these differences.
While the United States refused to sign the Berne Convention (it
was, at the time, one of the world’s leading “pirates” of copy-
righted works),259 the ratification of the Paris Convention prompted
new questions for the judiciary. On the one hand, the treaties did
suggest protection for foreign inventors, similar to some of the
treaties that had come before. On the other hand, the Paris Con-
vention touched on areas where Congress was already active, hav-
ing enacted and reenacted federal patent laws. Once again, the
sense that Congress was “seized” with the problem of patents
would lead the judiciary to leave implementation of the patent
treaties to the legislature.
Article II of the Paris Convention guaranteed equal rights for
foreigners in the patent system of Union countries (a “national
treatment” provision): “The subjects or citizens of each of the con-
tracting States shall enjoy, in all the other States of the Union . . .
the advantages that the respective laws thereof . . . accord to sub-
jects or citizens.”260
257
See Berne Convention, supra note 52.
258
See Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 25
Stat. 1372, 828 U.N.T.S. 107 [hereinafter Paris Convention].
259
See Robert A. Gorman & Jane C. Ginsburg, Copyright 9 (6th ed. 2002) (“During
the republic’s first hundred years, the U.S. was a ‘pirate nation,’ with respect to for-
eign works of authorship.”).
260
Paris Convention, supra note 258, art. II.
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The language suggests that a Swiss citizen should have the same
rights as an American in the U.S. system, trumping whatever pre-
existing discrimination existed in favor of the American. Swiss citi-
zen Ferdinand Bourquin asserted precisely this argument in 1889.
The U.S. law at the time included blatant favoritism towards the
American filer: it allowed U.S. citizens alone to file a “caveat,” or a
kind of preliminary patent, prior to filing the full patent applica-
tion.261 But despite having a clear later-in-time treaty on his side,
Bourquin and others like him lost.
Bourquin’s first appeal was to the Patent Office, and conse-
quently the matter was considered first by the Executive. By re-
quest, Attorney General Miller wrote an opinion, and he con-
cluded that the Paris Convention gave Bourquin no rights beyond
those in the Patent Act.262 His reasoning is not particularly helpful:
he argued that the treaty “is a reciprocal one; each party to it cove-
nants to grant in the future to the subjects and citizens of the other
parties certain special rights in consideration of the granting of like
special rights to its subjects or citizens.”263 Of course, all treaties are
reciprocal—so what made the Paris Union special? It seems much
easier to understand this opinion, and the Court decisions, as
adopting the rationale of the tariff decisions. In later cases, Con-
gress was accused of misimplementing the treaty; nevertheless,
courts held that any “mistakes” in the Patent Act were for Con-
gress to fix.264 As the First Circuit stated, “the courts would hesitate
before giving a treaty an interpretation differing from that sol-
emnly given it by the Executive or by Congress, even if they would
ever do it.”265
Are international IP treaties ever enforced directly? The answer
is yes, but only against State breach. The leading case is Bacardi
Corporation of America v. Domenech, where the Supreme Court
struck down discriminatory Puerto Rican trademark laws.266 In
261
There was an exception, however, for those in the process of obtaining U.S. citi-
zenship. 18 Revised Statutes of the United States 948–49 (photo. reprint, Dennis &
Co. 1972) (2d ed. 1878).
262
Caveats for Patents for Inventions, 19 Op. Att’y Gen. 273, 274 (1891).
263
Id. at 278.
264
See, e.g., United Shoe Mach. Co. v. Duplessis Shoe Mach. Co., 155 F. 842, 848–49
(1st Cir. 1907); Rousseau v. Brown, 21 App. D.C. 73, 77 (D.C. Cir. 1903).
265
United Shoe Mach. Co., 155 F. at 849.
266
311 U.S. 150, 167 (1940).
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1937, Puerto Rico passed a set of laws subsidizing local liquor; one
made it illegal to sell spirits in Puerto Rico under trademarks used
outside of Puerto Rico.267 Bacardi Corporation challenged the law
as inconsistent with the General Inter-American Convention for
Trade Mark and Commercial Protection.268 The Court struck the
Puerto Rico statute with ease, stating: “This treaty on ratification
became a part of our law. No special legislation in the United
States was necessary to make it effective.”269 The Puerto Rican
statute was nullified on grounds “of repugnance to the treaty.”270
C. Human Rights Treaties

The trademark late-twentieth century treaty is the human rights
convention. The United States, after initial reluctance, has ratified
several, including the International Convention on Civil and Politi-
cal Rights (“ICCPR”)271 and the Convention Against Torture.272 As
we will see, however, direct domestic enforcement of the treaties is
scarce. Can deference theory explain that outcome?
The kind of self-execution analysis called for by the Third Re-
statement, based on the nature or language of the treaty, provides
little help. Consider the ICCPR, ratified in 1992. The ICCPR looks
like the U.S. Bill of Rights: it provides a list of rights to which eve-
ryone is entitled. Article 7 states that “[n]o one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punish-
ment.”273 That language is not much different in kind from the U.S.
Constitution’s Eighth Amendment, which states that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”274 As for enforcement, the
ICCPR reads: “Where not already provided for . . . each State
267
Spirits and Alcoholic Beverages Act, No. 149, § 44, 1937 P.R. Laws 394.
268
General Inter-American Convention for Trade Mark and Commercial Protec-
tion, Feb. 20, 1929, 46 Stat. 2907, 124 L.N.T.S 357.
269
Bacardi, 311 U.S. at 161.
270
Id. at 167.
271
See ICCPR, supra note 67.
272
See Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment of Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465
U.N.T.S. 85; see also International Convention on the Elimination of All Forms of
Racial Discrimination, Mar. 7, 1966, S. Exec. Doc. C, 95-2 (1978), 660 U.N.T.S. 195.
273
ICCPR, supra note 67, art. 7.
274
U.S. Const. amend. VIII.
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Party to the present Covenant undertakes to take the necessary

steps, in accordance with its constitutional processes . . . to give ef-
fect to the rights recognized in the present Covenant.”275 There is,
in short, little from the agreement that would seem to preclude ju-
dicial enforcement. From textual analysis alone, the lack of judicial
enforcement of the ICCPR, and of human rights treaties in gen-
eral, is something of a mystery.
While raw political explanations of nonenforcement are com-
mon, the results can also be explained using the deference model.
The Senate alone, Congress, or the Executive have signaled to the
courts that either they already have implemented or will imple-
ment the human rights treaties that the United States has signed.
In short, Congress or the Senate has instructed the judiciary that
enforcement of human rights treaties is not their business, and the
judiciary has respected this instruction.
Several of these signals stand out. In some cases, Congress has
passed implementing legislation. The implementing legislation for
the Genocide and Torture Conventions specify how Congress
thinks the treaty should be enforced domestically.276 Less obvious
(and more controversial) are the Senate’s declarations and condi-
tions in its consent to the human rights treaties. In the case of the
ICCPR, the Senate states that “the United States understands that
this Covenant shall be implemented by the Federal Government to
the extent that it exercises legislative and judicial jurisdiction over
the matters covered therein.”277 It adds that “the United States de-
clares that the provisions of Articles 1 through 27 of the Covenant
are not self-executing.”278 The Senate appears to be signaling that,
in effect, the rights in the ICCPR are already provided for.
Judges, in other words, treat the ICCPR exactly as they would a
treaty ratified with implementing legislation. That is, the courts
treat the Bill of Rights, Fourteenth Amendment, and legislation
like the Civil Rights Act of 1964 as the implementing legislation of
the ICCPR. That suggests independent enforcement is inappropri-
275
ICCPR, supra note 67, art. 2.
276
Genocide Convention Implementation Act of 1987, 18 U.S.C. §§ 1091, 2340A
(2000).
277
U.S. Reservations, Declarations and Understandings, International Covenant on
Civil and Political Rights, 138 Cong. Rec. 8068, 8071 (1992).
278
Id.
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ate, even if Congress (or the courts) have deviated from the text of
the ICCPR in its “implementation.”
Of course, courts do not state these matters explicitly. But when
they address the enforcement of the ICCPR or other human rights
treaties, courts have justified nonenforcement based on the signals
from the Senate and the presence of adequate domestic reme-
dies.279 For example, Chief Judge Young of the Massachusetts U.S.
District Court explained his refusal to enforce the ICCPR directly
as follows: “[T]he United States Senate declined to pass legislation
(similar to the Torture Victim Protection Act of 1991) which would
have created a new private right of action enforcing the rights rec-
ognized in the Covenant because ‘existing United States Law is
adequate to enforce those rights.’”280
While deference to implementing legislation (as with the Geno-
cide Convention) is standard, deference to such “pre-
implementation” is novel, as is deference to the Senate acting
alone. Some academics have suggested on these grounds that
courts should ignore the signals in the reservations and enforce
human rights treaties directly.281 Whether courts would actually do
so is an open question.
279
See, e.g., Beazley v. Johnson, 242 F.3d 248, 266 (5th Cir. 2001); Igartua De La
Rosa v. United States, 32 F.3d 8, 10 n.1 (1st Cir. 1994) (holding that a right to vote
under Article 25 of ICCPR is not a privately enforceable right under U.S. law);
Heinrich v. Sweet, 49 F. Supp. 2d 27, 43 (D. Mass. 1999) (finding that plaintiffs have
adequate domestic remedies for claims of “crimes against humanity”); Hawkins v.
Comparet-Cassani, 33 F. Supp. 2d 1244, 1257 (C.D. Cal. 1999) (holding that the
ICCPR does not create a right of private action under which the plaintiff can success-
fully state a claim); White v. Paulsen, 997 F. Supp. 1380, 1387 (E.D. Wash. 1998) (rea-
soning that “the United States Senate expressly declared that the relevant provisions
of the ICCPR were not self-executing when it addressed this issue in providing advice
and consent to the ratification”); In re Extradition of Cheung, 968 F. Supp. 791, 803
n.17 (D. Conn. 1997) (stating that the ICCPR cannot support an extradition defense);
Domingues v. Nevada, 961 P.2d 1279, 1280 (Nev. 1998) (holding that the Senate’s ex-
press reservation to impose juvenile executions negates a claim under the ICCPR).
280
Heinrich, 49 F. Supp. 2d at 43 (quoting S. Exec. Rep. 102-23, at 14–15 (1992)).
281
See Henkin, supra note 6, at 346–48 (arguing that “[t]he pattern of non-self-
executing declarations threatens to subvert the constitutional treaty system”); Quig-
ley, supra note 14, at 582–85 (arguing that “[t]o the extent [treaties] do not infringe on
individual rights guaranteed by the Bill of Rights, there is no inherent reason they
should rest only on par with an Act of Congress as far as the courts are concerned”);
see also Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1, 118–
20 (2006).
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A more moderate course of action is the one suggested by the

Supreme Court in Hamdi v. Rumsfeld.282 In that case, an American
citizen named Yaser Hamdi was detained during the invasion of
Afghanistan and was held in the United States as an “enemy com-
batant.” His father petitioned for habeas corpus, and the Supreme
Court agreed that holding Hamdi without giving him a chance to
contest the factual basis underlying his classification as an unlawful
combatant was a violation of due process.283
The Hamdi majority did not explicitly address the enforceability
of the Geneva Convention. But, as Professor Sarah Cleveland sug-
gested, the convention’s requirements arguably colored its inter-
pretation of the “pre-implementation”—the Due Process clause of
the Fifth Amendment.284 That may be right as a matter of judicial
consideration—certainly many of the Justices had the convention
in mind when they interpreted the Constitution. Yet, in truth, the
Hamdi opinion says little on the relevance of the treaty to the con-
stitutional interpretation adopted, so overinterpretation is not war-
ranted.
We might more usefully consider, beyond the Hamdi scenario,
conditions under which courts might in fact consider enforcing a
human rights agreement like the ICCPR. As the model suggests,
the most likely scenario would be a case of egregious State breach.
Imagine, for example, that a State passed a series of laws neutral
on their face yet discriminatory in practice against the practice of
Islam, such as a facially neutral ban on all broadcast calls to prayer.
Under the Federal Constitution and Employment Division v.
Smith, the laws might be constitutional.285 Yet in this scenario,
where the State threatens to put the Union into significant tension
with Islamic countries, a federal court might find it appropriate to
strike down the State law using Article 18 of the ICCPR, the guar-
antee to religious freedom.286
282
542 U.S. 507 (2004).
283
See id. at 524–39.
284
Cleveland, supra note 281, at 118–19.
285
494 U.S. 872 (1990) (holding that facially neutral laws do not violate the estab-
lishment clause).
286
Enforcement, moreover, need not be direct but could come as an Ex parte Young
suit. See David Sloss, Ex Parte Young and Federal Remedies for Human Rights
Treaty Violations, 75 Wash. L. Rev. 1103 (2000).
WU_BOOK 4/17/2007 9:55 PM
A final set of data with respect to these questions comes from

the cases regarding judicial enforcement of the Vienna Convention
on Consular Relations.287 Article 36 of the Vienna Convention
states that when a foreign national in any signatory country is ar-
rested, his or her consulate shall be notified, and the suspect is to
be informed without delay of his right to communicate with his
consulate.288 In the United States, in various cases, state police have
failed to inform foreign nationals of their rights as stipulated by the
treaty. When defendants are convicted without the required notice
and complain in court, there is a question of treaty enforcement.
Does the treaty language give rise to an enforceable right in
American courts, and, if so, what might the remedy be?
The Supreme Court has, so far, continued to leave undecided the
question of whether Article 36 creates a judicially enforceable
right. In the 2006 case of Sanchez-Llamas v. Oregon, the Court as-
sumed the existence of an enforceable right, and it decided the case
by looking at remedies and procedural bars.289 The Court held that
even if Article 36 contained an individual right, it could not be read
to create an exclusionary rule that would mandate the removal of
tainted evidence.290 The Court also held that, notwithstanding the
opinion of the International Court of Justice,291 the “normal” rules
of state procedural default would apply when a defendant fails to
raise a breach of Article 36.292 Thus, in both Sanchez-Llamas and
the earlier case of Breard v. Greene,293 the Court, in effect, said that
whatever rights treaties might create, they will not be given an ex-
emption from procedural default rules that statutory and constitu-
tional rights do not enjoy.
287
Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596
U.N.T.S. 261.
288
Id. art. 36(1).
289
126 S. Ct. 2669, 2677–78 (2006).
290
See id. at 2678–82; see also Mapp v. Ohio, 367 U.S. 643 (1961) (establishing that
the exclusionary rule for evidence obtained in violation of constitutional rights applies
in state courts).
291
The International Court of Justice, in an earlier opinion, held that application of
American procedural default rules would create a violation of Article 36 of the Con-
vention. See LaGrand (F.R.G. v. U.S.), 2001 I.C.J. 466, 490–492, 494, 497–98 (June
27).
292
Sanchez-Llamas, 126 S. Ct. at 2682–87.
293
523 U.S. 371, 375 (1998) (per curiam) (finding that federal rules of procedural de-
fault apply to Vienna Convention rights).
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It is true that a Court highly sensitive to the prevention of State

breach, or more attentive to the opinions of the International
Court of Justice, might have crafted a set of remedies for violations
of Article 36 and might even have used its judicial power to ensure
that violations overcome any state procedural default rules. But
the main lesson we learn from these cases is one that relates to the
avenue of treaty enforcement. Most of the treaty enforcement
against States seen in this Article occurs when parties call for the
nullification or preemption of state law, sometimes to be replaced
with the treaty as the rule of decision—the model of Ware.294 The
Sanchez-Llamas and Breard litigations pursue a slightly different
tack—they attempt to raise the treaty rights in a fashion similar to
Miranda rights, and they ask for both an implied remedy and an
exception to the normal rules of procedural default. As such, the
cases may have less to do with the status of treaty enforcement in
the United States and more to do with the current jurisprudence of
defendants’ rights on federal review. Today, the federal remedies
available against State violation of defendants’ rights often fall
short of dramatic, and in Sanchez-Llamas the Court decided that
the limits placed on remedies exist regardless of whether the right
in question comes from a treaty, statute, or the Constitution.295 It is
also important to notice that the Court—by avoiding the question
of whether the treaty creates an enforceable right at all—has con-
tinued to reserve to itself the power to counter egregious State be-
havior in this area should it find the right vehicle.296
We have seen now that the enforcement patterns for multilateral
treaties have been similar in pattern to those for bilateral treaties
of similar purposes. The paradigm created for bilateral treaties,
targeting State breach, has been mostly translated to the multilat-
eral treaty context. Human rights treaties have raised new ques-
tions about how courts know whether to leave treaty implementa-
tion to Congress and whether treaty rights are subject to the same
procedural limits as statutory and constitutional rights.
294
3 U.S. (3 Dall.) 199, 236–37 (1796).
295
See 126 S. Ct. at 2688 (“It is no slight to the Convention to deny petitioners’
claims under the same principles we would apply to an Act of Congress, or to the
Constitution itself.”).
296
See id. at 2688–90 (Ginsburg, J., concurring) (noting that the treaty rights might
be important in other settings).
WU_BOOK 4/17/2007 9:55 PM
D. Further Developments in Enforcement Against the Executive

Late in the nineteenth century the Supreme Court displayed a
willingness to enforce treaties against the Executive and in the
process showed little deference to the Executive’s interpretations
of the treaty’s language. Since that time, while it will still consider
cases against the Executive, the Supreme Court has begun to grant
more attention and deference to Executive branch interpretation
of treaties. David Bederman, for example, argued that the defer-
ence given the Executive is “the single best predictor of interpreta-
tive outcomes in American treaty cases.”297
That trend has affected enforcement of treaties against the Ex-
ecutive. That fact can be clearly seen by looking to the two impor-
tant and recurrent areas where judges are asked to enforce treaties
against the Executive branch: taxation and international criminal
procedure, including extradition.298
Perhaps the leading area of judicial treaty enforcement against
the Executive is taxation. The United States ratified its first bilat-
eral double taxation treaty with France in 1932,299 and what appears
to be the first direct enforcement of that treaty came in the 1946
Tax Court case of Kimball v. Commissioner.300 In that case, after
reviewing the history of bilateral double taxation conventions, the
court proceeded to enforce the treaty directly without discussion of
whether the treaty was “self-executing” or whether it owed defer-
ence to the Executive.301 Later courts have explicitly stated that tax
treaties are directly enforceable in suits against the Commissioner
of the IRS.302 In tax cases, the Supreme Court has said that
297
David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L.
Rev. 953, 1015 (1994).
298
See Section II.C.
299
Convention and Protocol between the United States of America and France con-
cerning Double Taxation, U.S.-Fr., Apr. 27, 1932, 49 Stat. 3145.
300
6 T.C. 535 (1946). An international tax issue was also raised in Wodehouse v.
Comm’r, 50,161 T.C.M. (P-H) (1950).
301
See Kimball, 6 T.C. at 535.
302
See, e.g., Lidas, Inc. v. United States, 238 F.3d 1076, 1081 (9th Cir. 2001) (holding
that the information exchange provisions in the U.S. and France Double Taxation
Treaty were a valid basis for the issuance of an IRS summons); Samann v. Comm’r,
313 F.2d 461 (4th Cir. 1963) (exploring consistency between Tax Treaty and IRS regu-
lation). The Supreme Court has also decided several tax treaty cases. See, e.g., United
States v. Stuart, 489 U.S. 353 (1989); O’Connor v. United States, 479 U.S. 27 (1986);
Maximov v. United States, 373 U.S. 49 (1963).
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“[a]lthough not conclusive, the meaning attributed to treaty provi-

sions by the Government agencies charged with their negotiation
and enforcement is entitled to great weight.”303
Yet in the latter parts of the twentieth century, the Court ap-
pears to have increased its deference to the Executive’s interpreta-
tion of tax treaties. An illustrative case is O’Connor v. United
States.304 That case turned on a treaty granting certain American
workers in Panama an exemption from payment of “any taxes.” As
the language suggests, and as lower courts concluded, the phrase
“any taxes” might be thought to mean both United States and
Panamanian taxes. But Justice Scalia, writing for the Supreme
Court, went outside of the plain text of the tax treaty and instead
deferred to the Executive’s construction of the treaty, which was
that “any taxes” does not include U.S. taxes.305 While the record is
not uniform, other tax cases have also featured deference.306
Second, as discussed above, the 1886 case of United States v.
Rauscher307 established a tradition of enforcement of treaties
against the Executive in extradition and other criminal procedure
cases, and there are cases that follow its model.308 But since 1886,
the lack of deference afforded the Executive’s views of the treaty
in Rauscher has changed.
The high water mark of judicial deference to the Executive’s in-
terpretation of extradition treaties was surely the 1992 case of
United States v. Alvarez-Machain.309 Here, United States agents
kidnapped a suspect residing in Mexico, who promptly argued that
his abduction violated the 1978 extradition treaty with Mexico. Al-
varez-Machain made the straightforward argument that the whole
point of the extradition treaty was to preclude kidnappings, and the
Mexican authorities announced that his understanding of the treaty
303
Stuart, 489 U.S. at 369 (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457
U.S. 176, 184–85 (1982)).
304
479 U.S. 27.
305
Id. at 32–33.
306
See, e.g., Stuart, 489 U.S. at 369; Sumitomo, 457 U.S. at 184–85; Kolovrat v. Ore-
gon, 366 U.S. 187, 194 (1961); Factor v. Laubenheimer, 290 U.S. 276, 295 (1933).
307
119 U.S. 407 (1886).
308
See, e.g., Grin v. Shine, 187 U.S. 181 (1902); Terlinden v. Ames, 184 U.S. 270
(1902); Rice v. Ames, 180 U.S. 371 (1901).
309
504 U.S. 655 (1992).
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was also their interpretation.310 The Executive, however, advanced

what seemed the rather extreme view that ignoring the procedures
specified by the extradition treaty was not a violation of it. The Su-
preme Court, though it did not claim to be deferring totally to the
Executive, nonetheless accepted the Executive’s interpretation of
the treaty and held Alvarez-Machain’s abduction to be no viola-
tion.311
The degree of effective deference in Alvarez-Machain is high,
yielding a result that looks more like strong Chevron deference or
arguably nonenforcement of the treaty.312 One possible explanation
is that the courts have changed their approach since the Rauscher
days and today believe that they owe the United States’ interpreta-
tion of its treaty far greater deference—perhaps any reasonable in-
terpretation need be deferred to. That may be true—yet it is worth
pointing out that, in contrast to Rauscher, the Court was announc-
ing a rule for the Executive alone and therefore had no need to
formulate a rule that would prevent State breach. If Alvarez-
Machain were a case where California had seized a Japanese citi-
zen in breach of a U.S.-Japan extradition treaty, the results may
have been different.
A full study of treaty interpretation is beyond the scope of this
Article. However, one thing is certain: the Rauscher Court’s indif-
ference toward the Executive’s interpretation of the treaty is a rar-
ity today. This change, in turn, has altered how the Court enforces
cases that allege Executive breach. As argued above, that trend is
part of something much larger: the rise of the administrative state
and expert agencies, necessitating a greater system of deference.
E. The Rise of the Congressional-Executive Agreement: Altering the

Balance of Deference
In the fifty years from 1789 to 1839, the United States entered
into eighty-seven international agreements, or fewer than two each
year. Sixty, or sixty-nine percent, were enacted as Article II trea-
310
Id. at 671 n.1 (Stevens, J., dissenting).
311
Id. at 668–70.
312
See also Bederman, supra note 297, at 1014 (noting that Alvarez-Machain repre-
sents the ultimate repudiation of the canon of good faith and liberal interpretation).
WU_BOOK 4/17/2007 9:55 PM
ties,313 with the advice and consent of two-thirds of the Senate.314

From 1939 to 1989, the United States entered into 12,400 interna-
tional agreements, or on average about 250 per year. Of those,
11,698, or ninety-four percent, were not Article II treaties.315
Rather, the great majority were “Congressional-Executive”
agreements, which were passed through both houses of Congress
like normal legislation, instead of receiving a vote of two-thirds of
the Senate.316
The shift to Congressional-Executive agreements has attracted
much scholarly attention. A healthy debate exists over whether the
Congressional-Executive agreement is a constitutional or legiti-
mate means of making an international agreement.317 Political sci-
entists are also interested in the change of forms and ask what
might motivate the government to choose one form over another.318
But while most observers have focused on the constitutional sig-
nificance of the use of Congressional-Executive agreements, few
have appreciated the importance of the change for the judiciary’s
role in treaty enforcement.
When a treaty is entered into through the Congressional-
Executive process, the simultaneous passage of any necessary im-
plementing legislation is a natural consequence. When a treaty is
simply approved, as in the Article II treaty process, the treaty’s
text, joined possibly by statements by the Executive or the Senate,
313
U.S. Const. art. II, § 2 (“He shall have Power, by and with the Advice and Con-
sent of the Senate, to make Treaties, provided two thirds of the Senators present con-
cur . . . .”).
314
Cong. Research Serv., supra note 2, at 39.
315
Id.
316
A study of the time period 1946 to 1972 found that 88.3% of the U.S. interna-
tional agreements made during that time were entered into as Congressional-
Executive agreements. See id. at 41.
317
See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L.
Rev. 799 (1995) (arguing that Congressional-Executive agreements can be used to
pass laws beyond the reach of the enumerated powers); Joel R. Paul, The Geopoliti-
cal Constitution: Executive Expediency and Executive Agreements, 86 Cal. L. Rev.
671 (1998); Peter J. Spiro, Treaties, Executive Agreements, and Constitutional
Method, 79 Tex. L. Rev. 961 (2001); Lawrence Tribe, Taking Text and Structure Seri-
ously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv.
L. Rev. 1221 (1995) (arguing that some Congressional-Executive agreements are un-
constitutional).
318
See, e.g., Lisa L. Martin, The President and International Commitments: Treaties
as Signaling Devices, 35 Presidential Stud. Q. 440 (2005).
WU_BOOK 4/17/2007 9:55 PM
are the only relevant expressions of intent. But when a treaty is

both approved and implemented by Congress simultaneously, a
new document enters the picture: the enacting and implementing
legislation. In that legislation the full Congress has the opportunity,
if it wants, to specify how much or how little it wants a treaty to be
enforced. By making this determination, as the deference model
predicts, Congress will usually displace independent and direct ju-
dicial enforcement of a treaty.
This dynamic can be seen in what are so far the most important
Congressional-Executive agreements: the treaties creating the
World Trade Organization (“WTO”) in 1994. After the President
signed the agreement, Congress passed legislation, named the
Uruguay Round Agreements Act of 1994, which the President then
signed.319 That bill did two things at once. It approved the Uruguay
Round agreement, making it binding on the United States as a
matter of international law.320 But it also enacted changes to U.S.
law that were required (or even suggested) by the treaty. Approval
and implementation were a single step, leaving the judiciary with a
statute containing the domestic substance of the treaty.
So what about judicial enforcement of the WTO agreements?
The WTO has its own dispute resolution system, and the imple-
menting legislation declares the WTO agreement itself to be non-
self-executing.321 In practice, no judge has directly enforced the
agreement or decisions made under it.322 As for areas where the
agreements mandate changes in domestic law, the existence of im-
plementing legislation has in practice made that legislation, and not
the treaty, the center of judicial attention. For example, the Uru-
guay Round Agreement on Trade-Related Aspects of Intellectual
Property suggested that members of the WTO create a law against
bootlegging, or unauthorized recording of music concerts.323 Con-
gress took that suggestion seriously and illegalized bootlegging in a
319
Pub. L. No. 103-465, 108 Stat. 4809 (1994) (codified at 17 U.S.C. § 1101 (2000)).
320
Id. § 103.
321
Uruguay Round Trade Agreements, 19 U.S.C. § 3512(a)(1), (b)(2)(A) (2000).
322
See, e.g., Turtle Island Restoration Network v. Evans, 284 F.3d 1282, 1303 (Fed.
Cir. 2002) (Newman, J., dissenting) (“[N]o party asserts that WTO decisions have
controlling status as United States law.”).
323
Agreement on Trade-Related Aspects of Intellectual Property Rights, Including
Trade in Counterfeit Goods, art. 14, Dec. 15, 1993, 33 I.L.M. 81, 1202–03.
WU_BOOK 4/17/2007 9:55 PM
new chapter of the Copyright Code.324 The result is seen in cases

enforcing the new law, which focus on the legislation and not the
original agreement.325
As the above studies show, most treaty regimes are now imple-
mented via Congressional-Executive agreement. That does not
mean that there is no room for independent judicial enforcement.
It still leaves older regimes, like the Warsaw Convention, along
with older Article II treaties. But what this does mean is that the
relative size of the Congressional, as opposed to judicial, domain of
treaty enforcement has changed, with Congress’s domain now
much larger. That development, rather than changing standards of
the doctrine of non-self-execution, may explain the apparent de-
crease in the judicial enforcement of treaties. Furthermore, as the
ratio of Article II treaties to Congressional-Executive agreements
continues to decrease, direct judicial enforcement of treaties, as
opposed to implementing legislation, may slowly become a rarity.
CONCLUSION
A topic like the judicial enforcement of treaties is difficult to
cover completely and thoroughly. Yet the prevailing doctrine of
non-self-execution is so poorly descriptive of judicial behavior that
something must be done. The immodest goal is to uproot or sup-
plement the theory of self-execution as the dominant mode for un-
derstanding treaty enforcement in the United States.
What scholars, judges, and policy makers need to understand is
that questions of government structure have always, and will al-
ways, have a strong influence on whether judges enforce treaties—
far more than even the treaty text. Yet current doctrine continues
to pretend that judges are discerning the “intent” of a document
when they are doing something else entirely. The result is an un-
predictability and incoherency that makes treaty law far more
complicated than it need be.
Over the coming years, problems of treaty enforcement will con-
tinue to be raised, and the judiciary’s appropriate role will always
be a question. We might hope, at a minimum, that we can begin
facing those problems by asking the right questions. All we need to
324
See Uruguay Round Agreements Act § 512.
325
See, e.g., United States v. Moghadam, 175 F.3d 1269, 1276–77 (11th Cir. 1999).
WU_BOOK 4/17/2007 9:55 PM
ask is this: in a treaty case, when should a court owe more or less
deference to the State, Executive, or Congress, and for what rea-
sons? Such questions are really those created by the American sys-
tem of divided government and should play a starring role in future
considerations of treaty enforcement.

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572 Virginia Law Review [Vol. 93:571

III. THE TWENTIETH CENTURY AND THE AGE OF

W HEN and why do American judges enforce treaties?1 The

2007] Treaties’ Domains 573

Today’s dominant theory of treaty enforcement is the doctrine

574 Virginia Law Review [Vol. 93:571

of enforcement against State breach of U.S. treaty obligations.

2007] Treaties’ Domains 575

can detect a rough equivalent to the statutory system for deciding

576 Virginia Law Review [Vol. 93:571

questions that judges routinely face in statutory interpretation and

2007] Treaties’ Domains 577

iar question with familiar types of answers. Judicial deference to

I. THE SELF-EXECUTION PROBLEM AND THE DEFERENCE MODEL

578 Virginia Law Review [Vol. 93:571

gating in court . . . [it] is as much to be regarded by the court as an

2007] Treaties’ Domains 579

quixotic. Treaties are an exchange of promises between nations

580 Virginia Law Review [Vol. 93:571

sions. Its basic premise is that concern for domestic government

B. The Deference Model of Treaty Enforcement

2007] Treaties’ Domains 581

tract theory can help us understand the meaning of breach. As in

582 Virginia Law Review [Vol. 93:571

treaty as an international law matter, is it always appropriate for

2007] Treaties’ Domains 583

Second, the cases were examined to determine, as best as possi-

Finally, the study has made an effort to determine, as best as

At this broad level, few conclusions can be offered. Since the

584 Virginia Law Review [Vol. 93:571

nificant type of treaty enforcement in the United States, with more

2007] Treaties’ Domains 585

War British creditors.33 The case created a model of treaty en-

586 Virginia Law Review [Vol. 93:571

treaties altogether, but they may provide additional examples of

2007] Treaties’ Domains 587

Miller memorably wrote of a California statute banning the immi-

588 Virginia Law Review [Vol. 93:571

Congress has exerted its control over an area of treaty enforce-

2007] Treaties’ Domains 589

590 Virginia Law Review [Vol. 93:571

pendent interpretation of treaties, sometimes writing implementing

2007] Treaties’ Domains 591

Executive’s “specialized experience and broader investigations and

592 Virginia Law Review [Vol. 93:571

statutory interpretations that were intended to have utilized the

2007] Treaties’ Domains 593

How can we explain the precise effect of foreign affairs defer-

594 Virginia Law Review [Vol. 93:571

the Executive is the case of United States v. Alvarez-Machain.73 Yet,

d. Types of Breach: A Signaling Model

2007] Treaties’ Domains 595

notable treaty cases the language is indeterminate or is simply ig-

596 Virginia Law Review [Vol. 93:571

from abrogating an earlier statute, the last-in-time rule is not a full

2007] Treaties’ Domains 597

598 Virginia Law Review [Vol. 93:571

the 148 Supreme Court cases involving the enforcement of treaties