Treaty Rights and Remedies: The Virtues of a Clear Statement Rule
Newman, Ryan D., Texas Review of Law & Politics
"Treaty law covers every imaginable subject."1 This is hardly surprising given the rapid pace and increasing scope of globalization. While it is certainly true that globalization in one form or another has long been at work in world affairs,2 its contemporary form, as Joseph Nye pointed out, is "thicker and quicker."3 Thomas Friedman in The Lexus and the Olive Tree described today's globalization as going "farther, faster, cheaper and deeper."4 In other words, modern globalization does not represent a mere expansion of markets and trade; rather, " [i] t also represents an acceleration of the speed of communications, computer networks, and transportation systems that makes possible not just world markets, but also the global dissemination of ideas, news, and values."5 To harness the benefits as well as to address the challenges of globalization, states have increasingly relied on new forms of treaties and international agreements "that include multiple parties, that create independent international organizations, and that pierce the veil of the nation-state and seek to regulate individual private conduct."6 The scope of international law has thus largely increased in tandem with the scope of globalization.7 For instance, the issue of war and peace among nation-states is no longer the only legitimate subject of treaties;8 now, they govern such far-ranging issues as arms control, international economics, environmental law, and human rights.9
The expanding scope of international law brought about by globalization is problematic to the extent that it infringes upon the usual processes of domestic lawmaking. According to Professor John Yoo, contemporary treaty arrangements and institutions "create difficulties because they intrude into what was once controlled by the domestic political and legal system."10 Thus, for example, the World Trade Organization and the North American Free Trade Agreement each establish obligations and standards of conduct for domestic manufacturers.11 Similarly, human rights treaties enlarge the duties states owe their citizens beyond that required by their domestic legislation or constitution.12 Given the growing tendency for international law to penetrate the realm of domestic lawmaking,13 the question necessarily arises as to the extent courts should give effect to treaties that purport to operate domestically. Some countries, such as Germany, give the same effect to international law as they give to their national law.14 In the United States, however, the relationship between international law and domestic law is more complex.15
This Note addresses the judicial enforceability of treaty-based rights and remethes. The emergence of human rights treaties and other treaties that purport to create individual rights raises the issue as to the circumstances under which state and federal courts should recognize and enforce these rights. As this Note will argue, domestic courts should remedy violations of treaty-based individual rights only when the parties to the treaty clearly provide for judicially enforceable remethes. In other words, courts should apply a "clear statement rule"-that is, they should enforce an individual, treaty-based right only when specifically authorized to do so by the unmistakable intentions of the parties.
The Supreme Court evaded this issue regarding the judicial enforceability of treaty rights most recently in Sanchez-Llamas v. Oregon and Bustilb v. Johnson,16 cases involving Article 36 of the Vienna Convention on Consular Relations. Article 36 requires "competent authorities" to notify the relevant consulate at the request of any foreign national who is arrested and to allow communication between the consulate and the detained individual.17 It further provides that "the said authorities shall inform the [detained person] without delay of his rights."18 Sanchez-Llamas and Bustillo, both foreign nationals, were arrested by state law enforcement authorities and ultimately convicted of violent crimes. …