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Copyright (c) 1988 The American Society of International Law
American Journal of International Law


October, 1988

82 A.J.I.L. 760


Jordan J. Paust *


The distinction found in certain cases between "self-executing" and "non-self-executing" treaties is a judicially invented notion that is patently inconsistent with express language in the Constitution affirming that "all Treaties . . . shall be the supreme Law of the Land." 1 Indeed, such a distinction may involve the most glaring of attempts to deviate from the specific text of the Constitution. For some 40 years after the formation of the Constitution, President George Washington's recognition in 1796 that "every Treaty [properly ratified] . . . thenceforward becomes the law of the land" was widely shared. 2 Yet today not all treaties are thought to be capable of operating as supreme federal law of their own effect.

It may prove profoundly informative to rediscover the predominant expectations of the Framers concerning the domestic legal effects of treaties and to ask whether certain present distinctions make constitutional sense. To that end, this paper will examine the following questions: When did the judicially created distinction first occur? How has it actually been used in the Supreme Court's history? Should the distinction be retained? What sort of criteria have been articulated with respect to the difference between a "self-executing" and a "non-self-executing" treaty, and how do these relate to the views of the Framers and to our constitutional history? Although a treaty may be non-self-executing according to its own terms, should any other treaty be inherently non-self-executing? What are the implications regarding ...
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