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When Can an Individual Enforce a Right Set Forth in an International Treaty?
When can an individual enforce a right set forth in an international treaty? This was the question posed in a recent ASIL webinar given by Donald Francis Donovan. It is certainly a controversial question and one that is increasingly on the minds of scholars and practitioners. Recent cases, such as Medellín v. Dretke 544 U.S. 660 (2005) and Sanchez-Llamas v. Oregon 548 U.S. __ (2006), have underscored questions about the justiciability of individual rights stemming from international treaties.
Three key issues arise when considering the judicial enforceability of the rights of individuals in international treaties. First, it must be determined whether a treaty is self-executing or not. A self-executing treaty has the same effect as an Act of Congress, while a non-self-executing treaty requires a legislative act in order to operate as domestic law. It is uncontested, for example, that the Vienna Convention on Consular Relations (VCCR) is a self-executing treaty, while the UN Convention Against Torture (CAT) is a non-self-executing treaty which was implemented in the US through legislation (specifically, CFR 8).
The second question to consider is whether a treaty creates any individual rights. Many treaties create obligations to individuals as well as states while some do not create any obligations to individuals. The VCCR, under Article 36(1) states that when a foreign national is detained, the competent authorities must notify the individual “without delay” of “his rights” to request assistance from his nation’s consulate, notify the consulate “if he so requests”, and afford the detained individual and the consulate the “freedom” to communicate with each other. In addition, Article 36 (2) creates an obligation on the detaining state that the state’s laws and regulations must “enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”
The third and final question which is generally raised is whether or not a private cause of action exists. Where a plaintiff brings suit on a treaty, the private cause of action may come from statute, treaty, or common law. Examples of such causes include, the habeas statute, a suit for injunction (e.g. Asakura v. City of Seattle) federal common law (e.g. Sosa v. Alvarez-Machain), or an implied private right of action under the treaty, as under a statute.
It is important to note that case law already exists on individual treaty rights. Some of the most notable include: United States v. Rauscher 119 U.S. 407 (1886), Asakura v. Seattle 265 U.S. 332 (1924), Kolovrat v. Oregon 6 U.S. 187 (1961) as well as The Head Money Cases 112 U.S. 580 (1884). This last case affirmed that individual treaty rights are judicially enforceable but also held that the Constitution does not prohibit Congress from abrogating these rights.
Clearly, the debate and discussion on this issue will continue as more cases involving international treaties come before the courts and as more individuals look to and rely upon international treaties to assert individual rights before domestic courts.
The American Society of International Law is actively engaged in providing a forum for debate and discussion as part of its mission to promote a just world under international law. To this end, ASIL pursues programming which will support and encourage dialogue on these and other important issues related to international law. Recent programs have included:
• A conversation with former German Foreign Minister, Joschka Fisher, as part of a roundtable on Old Rules, New Threats which is co-sponsored by the Council on Foreign Relations.
• A roundtable discussion with International Criminal Court (ICC) President, Philippe Kirsch who discussed the ICC process and rules and took questions about the jurisdiction of the Court, its relationship to other international institutions as well as to the legal systems of States parties to the Rome Statute and to those of other countries around the world.
• A panel presentation on Promoting the Rule of Law in Post-Conflict Societies: Are International Institutions Getting it Right?. The panel included both the practitioner and academic points of view to discuss lessons learned and best practices as well as a more knowledgeable and nuanced approaches to designing and implementing judicial and legal reform programs.
• An address by Justice Graciela J. Dixon, President
of the Supreme Court of Panama, who spoke of the importance
of judicial networking, especially for women, and highlighted
Panama’s work toward integrating gendered perspectives
into its courts.
by Andrew Solomon, ASIL Director of Research and Outreach Programs, and Katherine Brantingham, ASIL Program Officer
International
Judicial Monitor