Appendix B to the Statement of Kenneth W. Dam, Vice President, Law and External Relations, IBM Corporation, before the

Subcommittee on Patents, Copyrights and Trademarks, Committee on the Judiciary, United States Senate, 100th Congress, Second Session, on S. 1301 and S. 1971, March 3, 1988.

THE BERNE CONVENTION AND SELF-EXECUTION

I.

The Berne Convention Does Not Require Self-Execution

On its face, the Berne Convention imposes no requirement that it be self-executing for member countries. To the contrary, Article 36 (1) provides that a Berne member "undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention."

As the WIPO Guide explains: "What those measures are depends on the constitution of the country in question: in some it becomes part of the law of the land; in others parliament must pass laws to give effect to the Convention's obligations."

WIPO, Guide to the Berne Convention for the Protection of
Literary Works (Paris Act, 1971) (1978), $36.2 at 141.

Thus, "in countries according to the constitution of which treaties were self-executing, no separate legislation was necessary to implement those provisions of the Convention which, by their nature, were susceptible of direct application." Id., $36.5 at

141.

As Professor Henkin points out, "[i]n Western parliamentary systems, generally, treaties are only international obligations, without effect as domestic law; it is for the parliament to translate them into law, or to enact any domestic legislation necessary to carry out the obligations." Louis Henkin, Foreign Affairs and the Constitution (1972), at 156. It has long been the common understanding that a treaty "is in its nature a contract between two nations, not a legislative act." Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829), overruled on other grounds, United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). A commentator explains:

A treaty is a contract, not law. It
lays down rules for the parties, and
these should be promulgated to the
individual before he should be bound by
them. Hence, many countries have a rule
that treaties must be legislated upon to
be internally operative. Even when they
have no such rules their courts can only
apply the treaty as law when it was the
intention of the signatories that it
should be internally operative. There
is a distinction between treaties which
are self-executing, i.e., intended to

bind States internally, and those which
are non-self executing, i.e., intended
to bind them externally

Hence, two streams of judicial
authority are to be distinguished. The
first is to be found in States which
require the legislative incorporation of
treaties in municipal law before they
can be internally operative, and the
second is to be found in States which
have no such constitutional requirement.
In the first stream no distinction need
be made between self-executing and
non-self-executing treaties because it
is the legislation and not the inten-
tions of the parties that creates
municipal law; in the second the dis-
tinction is vital because there is no
criterion but the intentions of the

parties for determining that the treaty
has become municipal law.

D. P. O'Connell, International Law (2d ed.) I (1970), at 54-55 [hereinafter cited as "O'Connell"].

II.

Berne Members, Under Their Own National Systems,
Make a Variety of Decisions as to Adoption of the
Convention as Self-Executing or Not

The United Kingdom is the most important and most obvious example of a nation in which, with a very limited class of exceptions, no treaty is "self-executing. "! * McNair, The Law of Treaties (1961), at 81 [hereinafter cited

* The exceptions involve cases affecting the rights of belligerents and relating to diplomatic immunities. McNair, The Law of Treaties (1961), at 89-93.

as "McNair"]; see also United States v. Postal, 589 F.2d 862, 878n.24 (5th Cir.), cert denied, 444 U.S. 832 (1979). Although a non-self-executing treaty is internationally binding on the United Kingdom, a court may not give it "municipal" effect without parliamentary sanction. supra, at 82; Kate Holloway, Modern Trends In Treaty Law (1967), at 293 [hereinafter cited as "Holloway"].

McNair,

Historically, the rule in the United Kingdom goes

back to constitutional divisions over 300 years ago between the Crown and Parliament, and between the executive prerogative and the legislative power:

Matters of State connected with foreign
policy were within the province of the
Council, not of Parliament, and the
asserted incapacity of the Executive to
legislate for its subjects by treaty was
a manifestation of the constitutional
struggle concerning the prerogative.

O'Connell, supra, at 59.

Explicit sanction by Parliament is therefore

necessary whenever a treaty requires for its execution and application in the United Kingdom "a change in or addition to the law administered in the courts" or a grant of additional power to the government, or wherever a treaty imposes a "direct or contingent financial obligation" upon the United Kingdom. McNair, supra, at 83-85, 93-94;

Holloway, supra, at 291.

Legislation to give effect to a

treaty may either incorporate the treaty directly into English law or translate its terms into English law. Holloway, supra, at 292.

Typically, the government in

modern Britain will seek legislative approval before a treaty is formally ratified. Id. at 191-192.

It is interesting to note that although the United Kingdom adhered to the Brussels Act (1948) of the Berne Convention in 1957, Parliament now has a bill before it to enact a moral right. H.L. Bill 12, "Copyright, Designs and Patents," introduced in the House of Lords October 28, 1987. Thus, it is clear that the Convention is not self-executing in the United Kingdom: such a statutory provision would of course be surplusage if the Convention were self-executing.

Indeed, the United Kingdom has been cited by Dr. Arpad Bogsch, the Director General of the World Intellectual Property Organization, as a prime example of countries which do not view Berne as self-executing:

United Kingdom, to mention only one
example, does not consider the Berne
Convention "self-executing" in the sense
that one could rely on the provisions of
the Berne Convention in any court
proceeding in the United Kingdom.

Parties before United Kingdom courts can