At Just Security, David Sloss (Santa Clara): Non-Self-Executing Treaties in the Draft Restatement of Foreign Relations Law. From the introduction:
At its annual meeting on May 18–20, the American Law Institute (ALI) will consider portions of a draft Restatement (Fourth) of Foreign Relations Law. Unfortunately, the most recent draft of the Restatement on Treaties appears to endorse a variant of non-self-execution (NSE) doctrine that is unconstitutional. This essay distinguishes among five possible interpretations of NSE declarations. Under two of those interpretations, NSE declarations are clearly constitutional. Under one other interpretation, NSE declarations are probably constitutional. Under the last two interpretations, NSE declarations are probably unconstitutional. The April 2015 Discussion Draft on Treaties appears to endorse the most constitutionally problematic interpretation of NSE declarations.
I'm largely (though not entirely) in sympathy with Professor Sloss (who takes a strongly textualist/originalist approach to treaty law). In any event, this is an important critique of the pending revision of the Restatement.
Posted at 6:35 AM