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.