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Four Problems With The Draft Restatement’S Treatment Of Treaty Self-Execution, Carlos Manuel Vázquez
Four Problems With The Draft Restatement’S Treatment Of Treaty Self-Execution, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The "self-executing" label encompasses four …
Less Than Zero?, Carlos Manuel Vázquez
Less Than Zero?, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
Medellin v. Texas is the first case in which the Supreme Court has denied a treaty-based claim solely on the ground that the treaty relied upon was non-self-executing. In Foster v. Neilson, the only other case in which the Court had denied relief on this ground, the Court offered its view that the treaty was non-self-executing as an alternative ground for denying relief. The Court soon thereafter disavowed its conclusion that the treaty involved in Foster was non-self-executing, and, in the intervening years, it repeatedly declined invitations to deny relief on this or related grounds. Many observers thought that the …
Missouri V. Holland’S Second Holding, Carlos Manuel Vázquez
Missouri V. Holland’S Second Holding, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The Supreme Court in Missouri v. Holland famously held that Congress has the power to pass a law to implement a treaty even if the law would not fall within Congress’ legislative power in the absence of the treaty. Essential to this holding were two distinct propositions. The first proposition is that the treaty-makers have the constitutional power to make treaties on matters falling outside Congress’ enumerated powers. The second is that, if the treaty-makers make such a treaty and the treaty is not self-executing, the Necessary and Proper Clause gives Congress the power to implement such a treaty through …
Treaties As Law Of The Land: The Supremacy Clause And The Judicial Enforcement Of Treaties, Carlos Manuel Vázquez
Treaties As Law Of The Land: The Supremacy Clause And The Judicial Enforcement Of Treaties, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international …
Judicial Enforcement Of Treaties: Self-Execution And Related Doctrines, Carlos Manuel Vázquez
Judicial Enforcement Of Treaties: Self-Execution And Related Doctrines, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
This morning we will be discussing the judicial enforcement of treaties in the United States. In particular, I would like to focus on the relationship between a treaty's status as self-executing or not, and the question of its judicial enforceability.
The “Self-Executing” Character Of The Refugee Protocol’S Nonrefoulement Obligation, Carlos Manuel Vázquez
The “Self-Executing” Character Of The Refugee Protocol’S Nonrefoulement Obligation, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
When the United States ratified the 1967 U.N. Protocol Relating to the Status of Refugees (Protocol), it undertook not to "expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened" on specified grounds. On May 24, 1992, President Bush issued an executive order, known as the Kennebunkport Order, authorizing the United States Coast Guard to interdict vessels on the high seas suspected of containing Haitians destined for U.S. shores and to return such persons to Haiti without regard to whether their lives or freedom would …