Taking Treay-Implementing Statutes Seriously

The Restatement and Beyond: The Past, Present, and Future of the Foreign Relations Law of the United States, ch. 3 (Sarah H. Cleveland & Paul B. Stephan es. Oxford University Press, Forthcoming)

NYU Law and Economics Research Paper No. 20-20

NYU School of Law, Public Law Research Paper No. 20-21

37 Pages Posted: 15 Jun 2020 Last revised: 26 Jun 2020

Date Written: June 8, 2020

Abstract

This chapter considers how implementing legislation has been a critical aspect of the U.S. treaty-making process since the very beginning of the Republic. Yet modern academic studies of U.S. foreign relations law too often neglect treaty-implementing statutes. While the treaty spells out the international obligations, the implementing law is the domestic face of the treaty, except in the increasingly rare instances where the treaty is considered self-executing. Ultimately, treaty-implementing legislation constitutes the operative law of the United States with respect to the treaty in question. The chapter then seeks to rekindle interest in this part of the process in the making of U.S. foreign relations law. A renewed appreciation by the courts and politically accountable breaches of, and focus on, the central role of the implementing statute in the case of non-self-executing treaties is likely to yield several significant benefits for the development of U.S. foreign relations law. These include, firstly, a better understanding of the precise U.S. law position on a particular issue; secondly, avoiding the dangers of blanket incorporation of treaty language that fails to adjust for U.S. institutions and legal culture; and, thirdly, providing an opportunity for Congressional expansion of protection beyond the requirements of the treaty.

Keywords: treaties, self-enforcing treaties, non-self-encoring treaties, foreign relations law, international law, clear statement rule, separation of powers, Congress, legislation, statutory interpretation, human rights

JEL Classification: F50, F51, F53, F55, H, 56, K33

Suggested Citation

Estreicher, Samuel, Taking Treay-Implementing Statutes Seriously (June 8, 2020). The Restatement and Beyond: The Past, Present, and Future of the Foreign Relations Law of the United States, ch. 3 (Sarah H. Cleveland & Paul B. Stephan es. Oxford University Press, Forthcoming) , NYU Law and Economics Research Paper No. 20-20, NYU School of Law, Public Law Research Paper No. 20-21, Available at SSRN: https://ssrn.com/abstract=3622621

Samuel Estreicher (Contact Author)

New York University Law School ( email )

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