Schizophrenic Treaty Law

Abstract:     
This essay demonstrates that U.S. courts apply two mutually inconsistent models in cases where individual litigants raise claims or defenses on the basis of treaties. I refer to these as the nationalist and transnationalist models of treaty enforcement. As applied to the Geneva Conventions, the transnationalist model holds that: the Geneva Conventions have the status of law in the United States; courts should interpret the Conventions in accordance with international law; the Conventions protect individual rights; and it is the judiciary's responsibility to provide remedies for individuals whose treaty rights are violated. In contrast, the nationalist model holds that: the Geneva Conventions lack domestic legal force in the absence of implementing legislation; courts should interpret the Conventions in accordance with executive branch policy preferences; the Conventions do not create individually enforceable rights; and it is not the judiciary's responsibility to provide remedies for violations of the Geneva Conventions.

The essay has three objectives. First, it provides a conceptual overview of the distinction between the nationalist and transnationalist models. Second, it illustrates the application of the two models by reference to recent judicial decisions implicating the Geneva Conventions. The analysis shows that U.S. courts have applied both models in Geneva Convention cases, even though the two models are mutually inconsistent. Third, the essay shows that the transnationalist model has deep historical roots, dating back to the eighteenth century, whereas the emergence of the nationalist model is largely a post-World War II development. This essay does not present original historical analysis: it merely summarizes the historical analysis developed by this author and other scholars in previous publications.

Number of Pages in PDF File: 13

Keywords: public international law, treaties, federal courts

JEL Classification: K33, K41, K42

Accepted Paper Series