Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The self-executing label encompasses four distinct types of reasons why a treaty might require implementing legislation. Second, the draft should abandon the claim that the self-executing or non-self-executing nature of a treaty is “essentially” about the treaty’s judicial enforceability. Third, the draft should qualify its claim that self-execution turns on the intent of the U.S. treaty makers. Finally, the draft should modify its claim that there is no presumption either in favor or against self-execution. There is substantial support in case law for a presumption in favor of self-execution with respect to one of the four categories of self-execution— the “intent-based” category