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13 - United States

Published online by Cambridge University Press:  06 January 2010

David Sloss
Affiliation:
Professor of Law and Director, Center for Global Law and Policy Santa Clara University School of Law
David Sloss
Affiliation:
Santa Clara University, School of Law
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Summary

INTRODUCTION

This chapter analyzes the practice of U.S. courts in “treaty cases.” The term “treaty cases” includes cases where a court engaged in substantive analysis of a treaty provision, as well as other cases where a party involved in litigation invoked a treaty in support of a claim or defense.

Analysis of judicial decision making in treaty cases is problematic because U.S. courts apply two mutually inconsistent models, which the author has labeled the “nationalist” and “transnationalist” models. The two models provide very different answers to three questions: (1) Which treaties have the force of law in the domestic legal system? (2) How should courts interpret treaties? and (3) Under what circumstances are individuals entitled to judicial remedies for treaty violations? In brief, transnationalists hold that treaties generally have the force of law in the United States, that courts should interpret a treaty in accordance with the internationally agreed understanding of its terms, and that individuals are ordinarily entitled to judicial remedies for violations of their treaty-based individual rights. In contrast, nationalists hold that only self-executing treaties have the force of law, that courts should interpret treaties in accordance with the shared understanding of the U.S. political branches, and that there is a background presumption that treaties do not create judicially enforceable individual rights.

An analysis of judicial doctrine related to treaties, without more, would present an incomplete picture of judicial practice because current doctrine provides support for both the nationalist and the transnationalist approaches.

Type
Chapter
Information
The Role of Domestic Courts in Treaty Enforcement
A Comparative Study
, pp. 504 - 554
Publisher: Cambridge University Press
Print publication year: 2009

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References

Sloss, David, Schizophrenic Treaty Law, 43 Tex. Int'l L.J.15 (2007)Google Scholar
Sloss, David, When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas, 45 Colum. J. Trans'l L.20, 29–37 (2006)Google Scholar
Bradley, Curtis A., The Treaty Power and American Federalism, 97 Mich. L. Rev.390 (1998)CrossRefGoogle Scholar
Sloss, David, International Agreements and the Political Safeguards of Federalism, 55 Stan. L. Rev.1963, 1975–78 (2003)Google Scholar
Vazquez, Carlos M., The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L.695, 695 (1995)CrossRefGoogle Scholar
Sloss, David, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev.1, 46–55 (2002)Google Scholar
Bradley, Curtis A., Intent, Presumptions and Non-Self-Executing Treaties, 102 Am. J. Int'l L.540 (2008)CrossRefGoogle Scholar
Ku, Julian G., International Delegations and the New World Court Order, 81 Wash. L. Rev.1 (2006)Google Scholar
Alstine, Michael P., The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 Geo. L.J.1885 (2005)Google Scholar
Sloss, David, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. Ann. Surv. Am. L.497 (2007)Google Scholar
Chesney, Robert, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, 92 Iowa L. Rev.1723, 1741–49 (2007)Google Scholar
White, G. Edward, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev.1 (1999)CrossRefGoogle Scholar
Epstein, Lee, Martin, Andrew D. & Schneider, Matthew M., On the Effective Communication of the Results of Empirical Studies, Part I, 59 Vand. L. Rev.1811, 1827–38 (2006)Google Scholar
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  • United States
    • By David Sloss, Professor of Law and Director, Center for Global Law and Policy Santa Clara University School of Law
  • Edited by David Sloss
  • Book: The Role of Domestic Courts in Treaty Enforcement
  • Online publication: 06 January 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511635458.014
Available formats
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  • United States
    • By David Sloss, Professor of Law and Director, Center for Global Law and Policy Santa Clara University School of Law
  • Edited by David Sloss
  • Book: The Role of Domestic Courts in Treaty Enforcement
  • Online publication: 06 January 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511635458.014
Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

  • United States
    • By David Sloss, Professor of Law and Director, Center for Global Law and Policy Santa Clara University School of Law
  • Edited by David Sloss
  • Book: The Role of Domestic Courts in Treaty Enforcement
  • Online publication: 06 January 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511635458.014
Available formats
×