Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 6 of 6
Full-Text Articles in Law
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 …
Treaties And The Eleventh Amendment, Carlos Manuel Vázquez
Treaties And The Eleventh Amendment, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …
Breard, Printz, And The Treaty Power, Carlos Manuel Vázquez
Breard, Printz, And The Treaty Power, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court's anti-commandeering doctrine. The first concerns the distinction between commandeering and …
The Four Doctrines Of Self-Executing Treaties, Carlos Manuel Vázquez
The Four Doctrines Of Self-Executing Treaties, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
A distinction has become entrenched in United States law between treaties that are "self-executing" and those that are not. The precise nature of this distinction--indeed, its very existence--is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the "most confounding" in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson's observation that " [t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion" surrounding it. The …
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 …
Treaty-Based Rights And Remedies Of Individuals, Carlos Manuel Vázquez
Treaty-Based Rights And Remedies Of Individuals, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. …