Volume 43 | Number 1 Fall 2007
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IV. Treaties, Individual Rights, and Judicial Remedies
The nationalist and transnationalist models also apply starkly different approaches to the question whether, and in what circumstances, treaties create judicially enforceable individual rights. Judge Robert Bork’s concurring opinion in Tel-Oren v. Libyan Arab Republic56 exemplifies the nationalist approach. In that case, Judge Bork stated: “[t]reaties of the United States, though the law of the land, do not generally create rights that are privately enforceable in courts. Absent authorizing legislation, an individual has access to courts for enforcement of a treaty’s provisions only when the treaty . . . expressly or impliedly provides a private right of action.”57 In contrast, the following statement, written by Chief Justice Marshall in 1809, exemplifies the transnationalist model: “[e]ach treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states; and whoever may have this right, it is to be protected.”58
Nationalists assert that there is a “long-established presumption . . . that treaties and other international agreements do not create judicially enforceable rights.”59 From a nationalist perspective, the question whether a treaty creates individual rights is inextricably linked to the question whether private parties can enforce treaty obligations in domestic courts. Nationalists would endorse Justice Holmes’ famous statement that it puts “the cart before the horse . . . to consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward.”60 Thus, under the nationalist model, if the political branches have not authorized private enforcement of a treaty in domestic courts, the question whether the treaty creates individual rights is simply irrelevant.61
Transnationalists, on the other hand, distinguish between primary rights and judicial remedies. From a transnationalist perspective, a primary right is “the mere obverse of” a primary duty.62 Moreover, a primary duty is “an authoritatively recognized obligation . . . not to do something, or to do it, or to do it if at all only in a prescribed way.”63 Thus, a treaty creates primary rights for a particular individual if the treaty imposes a primary duty on the state party not to do something to the detriment of that individual, or to do something for the benefit of that individual.64
In addressing questions involving primary rights, transnationalists apply the traditional canon of liberal interpretation. As expressed by Justice Story, that canon states: “[i]f the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the most liberal exposition be adopted?”65 Transnationalists recognize that there are numerous treaty provisions that do not create primary rights for individuals. However, in cases where an individual asserts rights under a treaty, and the treaty text is ambiguous, transnationalists apply the canon of liberal interpretation as a “tiebreaker” to help resolve ambiguity in the treaty text.
Whereas the canon of liberal interpretation governs questions of primary rights, transnationalists maintain that questions involving judicial remedies should be decided in accordance with the traditional maxim “that where there is a legal right, there is also a legal remedy . . . whenever that right is invaded.”66 From a transnationalist perspective, the judiciary’s primary mission in our system of divided government is to provide remedies for individuals whose rights are violated. This principle applies to treaty-based individual rights, just as it applies to rights protected by other types of laws. Hence, Alexander Hamilton wrote: “Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.”67
Two recent decisions by different judges on the D.C. District Court illustrate the tension between the nationalist and transnationalist approaches to issues involving judicial enforcement of treaty-based individual rights. Judge Robertson’s opinion in Hamdan v. Rumsfeld68 illustrates the transnationalist approach. The petitioner in that case asserted rights under the Third Geneva Convention. Judge Robertson cited Head Money Cases69 for the “proposition that a ‘treaty is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.’”70 Applying this test, he had no difficulty concluding that the Geneva Conventions “are all about prescribing rules by which the rights of individuals may be determined.”71 Moreover, finding that trial by military commission would violate Hamdan’s rights under the POW Convention, Judge Robertson granted Hamdan’s habeas petition in part and issued an order precluding trial by military commission.72 Judge Robertson referenced Judge Bork’s concurring opinion in Tel-Oren (quoted above), but concluded that Judge Bork’s opinion “is not Circuit precedent and it is, I respectfully suggest, erroneous.”73
In contrast, Judge Hogan’s opinion in In re Iraq and Afghanistan Detainees Litigation74 illustrates the nationalist approach. The plaintiffs in that case asserted rights under the Fourth Geneva Convention.75 Judge Hogan tacitly conceded that the treaty created primary rights for the individual plaintiffs.76 Even so, from his (nationalist) perspective, the key question was not whether the treaty created primary individual rights, but whether the treaty authorized domestic judicial remedies for violations of those rights. Thus, Judge Hogan cited Judge Bork’s concurring opinion in Tel-Oren for the following proposition: “Absent authorizing legislation, an individual has access to courts for enforcement of a treaty’s provisions only when the treaty . . . expressly or impliedly provides a private right of action.”77 Applying this test, Judge Hogan concluded: “None of the provisions of Geneva Convention IV contain any such express or implied language indicating that persons have individual ‘rights’ that may be enforced under the treaty.”78 In short, even if the plaintiffs had rights under Geneva IV, and even if those rights were violated, the plaintiffs were not entitled to judicial remedies because the treaty does not authorize them to enforce their putative rights in U.S. courts.
The two district judges reached different results because they applied different tests, not because there are significant differences between Geneva III and Geneva IV. Applying the transnationalist model, Judge Robertson examined the text of Geneva III to ascertain whether the treaty protects primary individual rights—i.e., whether it prescribes “‘a rule by which the rights of the private citizen or subject may be determined.’”79 Finding that the treaty does protect Hamdan’s primary rights and that trial by military commission would violate those rights, Judge Robertson granted Hamdan a remedy, consistent with the well-settled principle that “where there is a right, there is a remedy.” In contrast, Judge Hogan, applying the nationalist model, examined the text of Geneva IV to ascertain whether the treaty creates domestic remedial rights—i.e., whether it authorizes private individuals to file lawsuits in U.S. courts to obtain remedies for treaty violations. Since the Geneva Conventions do not expressly authorize private lawsuits in U.S. courts, Judge Hogan concluded that Geneva IV does not establish “individual rights that may be judicially enforced via private lawsuits in federal courts.”80
Judge Robertson’s application of the transnationalist model in Hamdan is consistent with Supreme Court precedent dating back to the 18th century. Indeed, this author previously performed a comprehensive study of Supreme Court decisions between 1789 and 1838 in cases where an individual litigant raised a claim or defense on the basis of a treaty.81 The Court decided fifty-eight such cases during that time frame.82 All fifty-eight cases are consistent with the transnationalist principle that “where there is a right, there is a remedy.” In contrast, none of the fifty-eight cases endorse the nationalist presumption against individually enforceable rights. Moreover, at least fifteen of the fifty-eight cases are inconsistent with the nationalist presumption; in those fifteen cases, the Court awarded a remedy to an individual victim of a treaty violation, even though there was no statutory or treaty provision that authorized domestic judicial remedies for treaty violations.83 In sum, the transnationalist model has deep historical roots.
In contrast, the nationalist presumption that treaties do not create individually enforceable rights is a fairly new doctrinal innovation. As this author has documented elsewhere, this presumption first emerged in a set of lower federal court decisions in the 1970s and 1980s.84 Although the federal executive branch has repeatedly urged the Supreme Court to endorse this presumption,85 the Court, as of this writing, has declined to do so.86