Myths and Realities in ?Self-Executing Treaties'

Author:Amos O Enabulele - Eric Okojie
Position:Amos O. Enabulele, PhD (Brunel University, London), LLB, LLM (Benin), BL, Associate Professor, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria; barrister and solicitor of the Supreme Court of Nigeria. - Eric Okojie, PhD (Igbinedion University, Okada), LLM (Benin), BL, Senior Lecturer and Head of ...
Pages:1-37
SUMMARY

There appears to be very few doctrines in contemporary international law that are in such a problematic state as the doctrine of self-executing treaties. It would appear that its usefulness is more in the debate it engenders than in its actual relevance to understanding the interface between international law and municipal legal systems. This is so because the term is variously applied to... (see full summary)

 
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1
Myths and Realities in
‘Self-Executing Treaties’
Amos O. Enabulele and Eric Okojie*
Abstract
There appears to be very few doctrines in contemporary international law that are
in such a problematic state as the doctrine of self-executing treaties. It would
appear that its usefulness is more in the debate it engenders than in its actual
relevance to understanding the interface between international law and municipal
legal systems. This is so because the term is variously applied to different
circumstances and ascribed with varied meanings. One of the many meanings
ascribed to self-executing treaties is that they are treaties that apply in the
municipal realm on their own force, discoverable from the intent of the makers as
expressed in the language of the treaty. This article queries that understanding and
argues that, other than by municipal law, there is no mystical authority by which
treaties are imposed on municipal legal systems and indeed municipal courts. We
argue that any search for the authority of treaties in the municipal realm, ultimately
leads to municipal law as the first point of focus.
Key terms
Self-executing, treaties, non-self-executing, constitution, municipal law,
international law, monism, dualism.
DOI http://dx.doi.org/10.4314/mlr.v10i1.1
______________
Introduction
The term “self-executing treaties” which was imported into the relationship
between municipal law and international law by the United States Supreme
Court in Foster v. Neilson,1 has added more confusion to an increasingly
Amos O. Enabulele, PhD (Brunel University, London), LLB, LLM (Benin), BL,
Associate Professor, Department of Jurisprudence and International Law, Faculty of Law,
University of Benin, Nigeria; barrister and solicitor of the Supreme Court of Nigeria.
* Eric Okojie, PhD (Igbinedion University, Okada), LLM (Benin), BL, Senior Lecturer and
Head of Department of Business Law, Faculty of Law, University of Benin, Nigeria;
Barrister and Solicitor of the Supreme Court of Nigeria.
1 Foster & Elam v. Neilson, 27 U.S. 2 Pet. 253 253 (1829). For a detailed historical account
see Yuji Iwasawa, (1985-1986) “The Doct rine of Self-Executing Treaties in the United
States: A Critical Analy sis”, 26 Virginal J. Int’l L. 627.
2 MIZAN LAW REVIEW, Vol. 10, No.1 September 2016
complicated area of the relationship between international law and municipal
law.2 The confusion is manifested in variety of ways. As Riesenfeld noted:
The acceptance and status of the doctrine of the self-executing character of
treaties in the legal order of the United States as well as in foreign legal
systems is both an important and intriguing problem. It has confronted the
courts with thorny ... issues and attracted the increasing attention of scholars
of international law. 3
In contemporary times, the pivotal position treaties occupy, not only in the
affairs of States, but also of both the human and non-human components of our
globalised world, has increased the need to unravel what is meant by the terms,
‘self-executing’ and ‘non-self-exec uting’ treaties with a view to understanding
the definite role they are assigned, if any, in the relationship between municipal
law and international law.
This article acknowledges the robust literature on the subject and argues that
the arguments that treaties could be self-executing might be misplaced after all.
The article argues that the concept is an abstract term that has no real practical
bearing on the authority by which international law is applied in the municipal
realm. This is so, insofar as it seeks to teach that a class of treaties possesses a
magical wand by which it could transmute into the municipal realm as the law
2 See Myres McDougal’s (1952) (Remarks) 45 Proceedings of Am. Soc’y of int’l L 101, 102
(counselling that “this word ‘sel f-executing’ is essentially meaningl ess, and …the quicker
we drop it from our vocabulary the better for clarity and understanding”); Andrea Bianchi,
(2004) “International Law and US Courts: The Myth of Lohengrin Revisited” 15(4) EJIL
751, 757 (noting “the state of ‘judicial confusion’ and ‘doctrinal disarray’ to which the
doctrine of self-execution seemed to be relegated not too long ago”); David L. Sloss,
(2012) “Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self -
Executing Treaties” 53 (1) Harvard International Law Journal 301, 311 (noting that the
terms “self-executing’ and ‘non-self-executing’ are ambiguous”); Anthony Aust, (2010)A
Handbook of International Law, (Cambridge University Press) 79, (noting that “the s elf-
executing concept has led to considerable confusion and uncertainty”); Jordan J. Paust,
(1988) “Self-Executing Treaties”, 82 Am. J. Int’l L. 760, 768; Robert E. Dalton (2006)
(Remarks) “Judicial Enforcement of Treaties: Self-Execution and Related Doctrines”,100
Am. Soc'y Int'l L. Proc. 439, 4 42, (observing that “when one l ooks at the literature and
considers the practice, it is clea r that ‘self-executing’ has become an ambiguous term
devoid of generally accepted meaning”); Edward T. Swaine (2008) “Taking Care of
Treaties” 108 Colum. L. Rev. 331, 353 (observing that “non-self-executing treaties [is] a
label used in maddeningly inconsistent ways”); David Sloss, (1999) “The Domestication
of International Human Rights: Non-Self-Executing Declarations and Human Rights
Treaties” 24 Yale J. Int'l L. 129, 131 (noting the multiple meanings and ambiguity of the
term ‘self-executing treaty’).
3 Stefan A. Riesenfeld, (1973) “The Doctrine of Self-Executing Treaties and Community
Law; A Pioneer Decision of the Court of Justice of the European Community” 67 Am. J.
Int’l L. 504, 504.
Myths and Realities in ‘Self Executing Treaties’ 3
of the realm without an enabling municipal law in the form of a general
constitutional provision or specific legislative implementation. The paper also
argues that the bulk of literature ascribing super-norm value to the so called
‘self-executing treaties’ is based on a false generalisation of the approach of
courts of the United States (US) and that, in actual fact, not even in the US is
there any such class of treaties capable of municipal application on their own
force.4 The paper concludes that the supposition that there is a class of treaties
that is ‘self-executing’ in the sense that it does not require any form of
municipal law enabler is a myth that has made this area of international law
really messy.
The first part of this article discusses the concept of self-executing treaties.
The second part examines the confusion attendant upon seeking to read the
concept into dissimilar constitutional provisions to those of the US. The third
part seeks to understand when it can actually be said that a treaty is self-
executing, and the last part considers the role to be ascribed to the intent of
treaty matters.
1. The Concept of Self-Executing Treaties
Although this essentially American concept of ‘self-executing treaties’ was not
used by the US Supreme Court until 1887, when Field J., used the term in
Bartram v. Robertson,5 it is generally agreed that the concept actually arose
from Chief Justice Marshall’ s view in Foster v. Neilson, wherein he declared
that there is a class of treaties that “is carried into execution ... whenever it
operates of itself”,6 notwithstanding that it was not even used in the case.7
4 Ernest A. Young (2007) “Sosa and the Retail Incorporation of International Law”, 120
Harvard Law Review Forum, 28, 34 (doubting “whether it is correct to say that U.S. courts
ever applied international law ‘of its own force’”); Lori F. Damrosch, (1991) “Role of the
United States Senate Concerning S elf-Executing and Non-Self-Executing Treaties - United
States”, 67 Chi.-Kent. L. Rev. 515, 516 (noting that the basic distinction between self-
executing and non-self-executing treaties under US law is not beyond question or criticism
and that it is essentially a judicial one, created by the courts to govern their own role with
respect to treaties).
5 124 US 190 (1887); Contra: Sloss, “The Domestication” supra, note 2, p. 146 (stating that
the earliest use of the term ‘self-executing’ in the sense of requiring implementing
legislation appears to have been in Whitney v. Robertson 124 U.S. 190 (1888)) It is
however instructive to state that both cases were decided by Field J., who actually cited
Bartram v. Robertson in Whitney v. Robertson.
6 Foster, supra note 1.
7 See Malvina Halberstam, (2005) “Alvarez-Machain II: The Supreme Court's reliance on
the Non-Self-Executing Declaration in the Senate Resolution Giving Advice and Consent
to the International Covenant on Civil and Political Rights”, 1 J. Nat'l Sec. L. & Pol'y 89,
96 (arguing that “[a]lthough the proposition that in the United States treaties may be either

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