Re: Self-Executing Status of WIPO Copyright Treaty

On Wed, 23 Jun 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> OK, I know less than nothing about international law, so forgive me
> if this is a stupid question. But does ratification of the treaty
> necessarily imply that it is self-executing?

Mark,

It's not a stupid question, because the self-executing issue is a quite complicated and unsettled in US law. Ratification alone, however, does not necessarily imply anything one way or the other about whether a treaty (or one or more of its provisions) is or is not self-executing. In theory, the determination of a treaty's self-executing status is a judicial function. Generally courts first look at the text of the treaty discern the intent of the treaty parties and also to see whether its terms are sufficiently precise to create judicially-enforceable obligations for states parties without implementing legislation. According to the often-cited People of Saipan case, they then consider four factors: (1) "the purposes of the treaty and the objectives of its creators," (2) "the existence of domestic procedures and institutions appropriate for direct implementation," (3) "the availability and feasibility of alternative enforcement methods," and (4) "the immediate and long-range social consequences of self- or non-self-execution." People of Saipan v. United States Department of Interior, 502 F.2d 90, 97 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975).

The foregoing analysis applies where the US simply ratifies an international agreement without making taking an official position concerning its self-executing status in US law. In recent years however, the Senate has, for several treaties, expressly conditioned US ratification on its "declaration" (stated either in the instrument of ratification or in US legislation) that a treaty is not-self executing and thus does not create judicially enforceable rights in US courts. In the human rights context, this was done for the International Covenant on Civil and Political Rights and the Convention Against Torture, among others. In the intellectual property context, it was done in the Berne Convention Implementation Act and the Uruguay Round Agreements Act, in part to avoid owners of IP rights basing a claim directly on a treaty where US law does not provide the internationally-mandated level of protection. This practice by the US is controversial to the extent that it renders non-self-executing a treaty article that would otherwise be construed as self-executing. (Some other countries' national courts, for example, have held that various articles in the Berne and TRIPs treaties ARE self-executing -- see Paul Geller's International Copyright treatise for details). It is unclear whether US courts are bound by the position of the political branches, although most courts have so far acquiesced on the theory that the NSE determination was a condition of Congress consent. Hope this helps.

Larry Helfer

--
Laurence R. Helfer
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Loyola Law School
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