Monday, January 30, 2006

Treaties, Private Rights of Action, and Comity: An Internationalist Critique

The Supreme Court is poised to decide one of the most important cases involving the enforceability of treaties in the last few decades (indeed, maybe the last century). In Sanchez-Llamas v. Oregon, the Supreme Court will consider whether the Vienna Convention on Consular Relations gives such aliens the private rights of action as well as the remedy of suppression for any evidence gathered against them in violation of their treaty rights.

Professor Paul Stephan of UVA Law, joined by eight other law professors (including me), has filed an amicus brief in support of the respondent state governments. I can't really do the arguments justice here. Suffice to say they offer a unique and often overlooked point of view. When a court aggressively interprets treaties to incorporate international court judgments and to create wide-ranging domestic rights, the court may actualy be discouraging U.S. participation in treaty systems and in international dispute resolution.

The brief has three main arguments, which I paraphrase below:

(1) The VCCR does not create a private right of action. There is no evidence that the drafters of the treaty intended for the treaty to create a private right of action, and the President's interpretation warrants substantial deference. Most importantly, the Court should avoid finding a private right of action in a treaty unless it is plainly expressed in the text of the treaty, especially since overbroad interpretations of treaties will discourage future U.S. participation in treaty regimes.

(2) Neither comity nor a policy of uniform treaty interpretation compels this Court to regard the Vienna Convention as creating a private right of enforcement. The International Court of Justice, the only tribunal that has reached such a conclusion, is not a national court but an international agency with clearly delimited authority. It lacks the characteristics of a domestic agency that invite judicial deference.

(3) Finally, a decision that the Vienna Convention authorizes private enforcement will disrupt rather than promote uniform treaty interpretation, as no other state has reached such a conclusion.


Blogger randomopinion said...

"Suffice to say they offer a unique and often overlooked point of view."

How modest of you, being a co-author! I also enjoyed very much those (in)famously "unique and often overlooked" points of view used by another young and supremely self-confident law professor to advance his views. In his case though the underlying issue wasn't death penalty. Just torture.

I'm pretty sure the Supreme Court will rule as you wish. What a nice story to tell your grandchildren when you grow up: not only did I teach at class why VCCR doesn't give aliens private rights of action in the US, I effectively contributed to having the Supreme Court rule against it!!! And now boys, who wants to know what potassium chloride is?

1/31/2006 4:23 AM  
Blogger boonelsj said...

Well, I'm also unconvinced by the amicus brief, although I don't think its arguments are that implausible.

Here's the petitioner's brief, for those interested:

1/31/2006 10:23 AM  
Blogger boonelsj said...

Sorry, here's the link to the petitioner's brief

1/31/2006 10:23 AM  
Blogger Aaron Ostrovsky said...

Julian, I think the amicus brief is convincing for what it includes (president is in the best position to make foreign policy decisions, this is an issue of comity) but it is notable for what it doesn't mention; that this is a LEGAL question as well. The points of the amici seem more grounded in international policy and not law.

It appears to me that the self-executing nature of the VCCR is exactly what DOES make for individual rights and a PROA, if that is what the ICJ says it does. As was argued in Medellin, if the ICJ is the designated interpreter of the treaty, then its opining on what the treaty means is a self-executing part of the treaty as well. Therefore, this country (and domestic courts perhaps) have a duty to follow the ICJ's rulings. I realize saying U.S. courts must follow the ICJ is a touchy subject around conservative circles, but we are not talking about defering to the court per se but rather defering to the ICJ as a part of the VCCR.

In terms of having a chilling effect on new treaties, I think Bush Inc. is doing a fine job of that on its own without the SCOTUS being blamed for anything.

1/31/2006 2:09 PM  
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