Towards More Effective Judicial Implementation of Treaty-Based Rights

Abstract

Early in the history of the United States, courts faithfully applied the U.S. Constitution's Supremacy Clause to implement rights that the United States had accorded by treaty. The first instance saw the U.S. Supreme Court recognizing the rights of British creditors on debts that had been confiscated by colonies during the colonies' war for independence against Great Britain. The rights of these creditors had been guaranteed in the Treaty of Paris, whereby the United States gained recognition of its independence from Britain. The Court applied the Supremacy Clause, which states that treaties are part of the law of the land, to reinstate the debts owed to the British creditors. Through the nineteenth century, both federal and state courts applied the Supremacy Clause to enforce rights accorded by treaty.

In recent decades, however, implementation of treaty-based rights under the Supremacy Clause has been far from uniform. The Senate, in consenting to the ratification of treaties that protect rights, has included declarations that may keep the rights from being judicially enforceable. The courts have found ways to exclude various treaty-based rights from Supremacy Clause implementation. This tendency is particularly apparent in cases in which rights are claimed under the Vienna Convention on Consular Relations, and the Geneva Prisoners of War Convention. The Article argues that the courts should revert to the earlier approach and provide proper implementation of treaty-based rights, as contemplated by the Constitution's drafters.

Keywords: Medellin, Hamdan, Avena

JEL Classification: K33