Treaty-Based Rights and Remedies of Individuals

Abstract:     
Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. As Chief Justice Marshall long ago observed, "[t]he province of the court is, solely, to decide on the rights of individuals .... " Accordingly, it is frequently said that treaties are enforceable by individuals in our courts only when they confer rights on individuals. Yet it is widely held that treaties, as international instruments, establish legal obligations and correlative legal rights only of the nations that are parties to them, not of individuals.

Number of Pages in PDF File: 83

Keywords: treaties, treaty-based rights, Supremacy Clause, Supreme Court, rights as individuals, treaty enforcement, international law

JEL Classification: K30, K39, K00

Accepted Paper Series