"In recent raids involving pirated books the Egyptian police seized pirated British books... but refused to seize American books. It has been presumed that this refusal is based on a lack of understanding on the police's part that since most American publishers simultaneously publish in a Berne country (typically England or Canada), under the terms of Article 3(4) of Berne, these works are entitled to protection in Egypt.'

Report By the International Intellectual Property Alliance to the United States Trade Representative (August 1985), Section of Appendix on Egypt, p. 2.

As to Thailand, Thai public prosecutors have taken the position that the 1937 Treaty of Amity and Economic Relations between the United States and Thailand is not enforceable and they will take cases involving American works only if they can establish "back-door" eligibility. In addition to the common practical difficulties establishing proof of first or simultaneous difficulties establishing proof of first or simultaneous publication in a Berne country, Thailand also requires that local licensees have a power of attorney signed by the American copyright owner. Id., Section of Appendix on Thailand, p. 5.

Mr. KASTENMEIER. The vote we have is on the rule to the textile bill. I regret that we must at this point recess. We will recognize the gentleman from North Carolina on our return.

The committee stands in recess for 10 minutes.

[Recess.]

Mr. KASTENMEIER. The subcommittee will come to order, please. I would like to yield to my colleague from California, Mr. Berman.

Mr. BERMAN. Thank you very much, Mr. Chairman. I have a few questions.

Does any country now have this kind of a "not self-enforcing, not self-executing" disclaimer to their Berne adherence?

Mr. NOLAN. Yes. It is my understanding that there are a number of countries that have, in fact, less protection in that 6 bis law type area than the United States.

Mr. BERMAN. I am sorry; in the what?

Mr. NOLAN. One problem that we have is in using the phrase "moral right" law, because quite frequently people think of the French moral rights law which is probably the most strict form of that type of law. In fact, article 6bis does not require that kind of law and doesn't even refer to the phrase "moral right."

Mr. BERMAN. I think anyone who would be against moral rights would rather have it phrased some other way.

Mr. NOLAN. Very specifically, in article 6bis there is language that accepts the principle that the totality of a country's law is to be taken into consideration. The law of the United Kingdom, Australia, and other Anglo-Saxon common law countries are all in that class.

Mr. BERMAN. But both of you are urging that as we join Berne, in the same legislation we should indicate that it is neither selfenforcing nor self-executing.

Mr. DAM. Yes, sir. But out of an excess of caution, because the treaty itself, under its own terms, is not self-executing.

Mr. BERMAN. My only question was, Has any other country done that?

Mr. NOLAN. Yes.

Mr. BERMAN. Joined Berne and, at the same time, said that it is part of their legislation?

Mr. NOLAN. Said that it is not self-executing?

Mr. BERMAN. Yes.

Mr. NOLAN. I don't believe other countries have the same constitutional problems that we do, so I don't think other countries have. Mr. BERMAN. Could you just elaborate on that? By the same constitutional problems, you mean

Mr. NOLAN. Well, the issue of whether a treaty is self-executing is important under our Constitution because ratified treaties become the supreme law of the land. That is, in our Constitution, and by its terms, the Berne Convention is not self-executing, and what we are proposing is, even on the side of very conservative caution, we would like a statement in the implementing legislation so that any court confronted with that statement would not think anything otherwise.

Mr. DAM. In answer to your question, Congressman, I am not aware of any such country. If some of my colleagues are, we will be glad to provide the subcommittee with that information.

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

The

Hence, two streams of judicial
authority are to be distinguished.
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.