The intent-to-benefit: individually enforceable rights under international treaties.

• Author: Kalantry, Sital

Abstract

Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to determining whether a treaty gives rise to individually enforceable rights, they often apply the textualist methodology derived from statutory interpretation. However, instead of using textual theories of statutory interpretation, I argue that courts should use intentionalist theories developed from contract interpretation in determining individually enforceable rights under treaties. Two positive arguments and one negative argument support my approach. First, the question of whether a non-party can enforce a treaty is structurally similar to the question of whether a non-party can enforce a contract, but structurally different from the issue of whether there is a private cause of action under a statute. Second, Supreme Court jurisprudence supports the view that treaties are contracts even though they have the effect of statutes. As such, it is appropriate to apply theories of contract interpretation to understanding treaties. Third, arguments used to justify using textualism for purposes of interpreting statutes are not relevant to interpreting treaties.

I suggest that courts use a modified version of the "intent-to-benefit" test derived from contract law in determining whether a treaty is enforceable by a non-party. Under the modified "intent-to-benefit" test, a non-party will have individually enforceable rights and remedies under the treaty if the treaty identifies a class of individuals who are intended beneficiaries of the treaty and if such non-party is within that class of individuals. Applying this test suggests that courts should privilege the drafting history over the ratification history of a treaty in interpreting it.

I apply the modified "intent-to-benefit" test to a case study--the Vienna Convention on Consular Relations. The Supreme Court recently decided in Sanchez-Llamas v. Oregon that the Vienna Convention on Consular Relations does not provide individuals with any remedies, but refused to decide whether the treaty provides individuals with rights. Since that decision, two Federal Courts of Appeals have come to differing conclusions on the question of whether that treaty creates individually enforceable rights. Under the modified "intent-to-benefit," the Vienna Convention on Consular Relations would be found to give rise to individually enforceable rights.

TABLE OF CONTENTS INTRODUCTION I. THE RISE OF TEXTUALISM IN STATUTORY INTERPRETATION II. THE RISE OF TEXTUALISM IN TREATY INTERPRETATION III. THE HISTORICAL ROOTS OF THE INTENT-TO-BENEFIT TEST AND A PROPOSAL FOR A MODIFIED INTENT-TO-BENEFIT TEST A. The Contract Law Approach to Determining Third Party Enforcement Rights B. The Modified Intent-to-Benefit Test 1. Class of Individuals as Intended Beneficiaries 2. Consulting Travaux Preparatoires 3. Level of Ambiguity Needed to Consult Extra-Textual Sources 4. Intent in Multi-party Contracts IV. JUSTIFICATIONS FOR APPLYING INTENTIONALISM FROM CONTRACT INTERPRETATION INSTEAD OF TEXTUALISM FROM STATUTORY INTERPRETATION IN DETERMINING INDIVIDUALLY ENFORCEABLE RIGHTS UNDER TREATIES A. Treaties as Contracts 1. Structural Similarities Between Treaties and Contracts 2. Response to Arguments that Treaties Are Sui Generis B. Treaties Are Like Contracts That Have the Effect of Statutes C. Justifications for Textualism in Statutory Interpretation Are Not Applicable in the Treaty Interpretation Context V. APPLICATION OF THE INTENT-TO-BENEFIT TEST TO DETERMINING INDIVIDUALLY ENFORCEABLE RIGHTS UNDER TREATIES: THE VIENNA CONVENTION ON CONSULAR RELATIONS A. The Sanchez-Llamas Case and the Circuit Split B. The Modified Intent-to-Benefit Test and the Consular Convention 1. Does the Treaty Identify a Class of Individuals who Are Intended to Benefited by It? 2. Are the Individuals Within the Class of People that the Parties Intended to Benefit? 3. Rights and Remedies CONCLUSION INTRODUCTION

Globalization, marked by an increase in trade, migration, and capital flows among nations, creates opportunities for disputes between national governments and foreign nationals. International tribunals, however, are not typically receptive to claims brought by individual litigants for treaty violations. (1) As a result, non-U.S, citizens are increasingly asserting claims in U.S. courts based on treaty violations. (2) The efforts of the Executive in the war against terrorism have also led non-U.S, citizens to assert claims under international treaties. (3)

Although courts have generally recognized that treaties may give rise to individually enforceable rights, (4) there is no consensus on the correct methodology for adjudicating the issue. Yet many courts have increasingly applied the textualist methodology that has become popular in statutory interpretation to determining whether a treaty gives individuals rights. (5) Courts thus only look to the text of the treaty and typically refuse to use extra textual sources to inform their decision. (6) Courts that apply this methodology typically disfavor finding individually enforceable rights in treaties. (7) The Restatement (Third) of Foreign Relations ("Foreign Relations Restatement") concurs that "[i]nternational agreements ... generally do not create private rights or provide for a private cause of action in domestic courts." (8)

This article argues that a modified version of the "intent-to-benefit" test used to determine third party rights in contracts should be used to determine whether a treaty gives rise to individually enforceable rights. Under the modified "intent-to-benefit" test, a non-party will have individually enforceable rights under a treaty if such non-party is within a class of individuals that are intended beneficiaries of the treaty. (9) Applying this test suggests that courts should consult with the drafting history of the treaty in interpreting it. (10) Finally, this approach suggests that the text of the document in question does not need to create both a right and a remedy, once a party is determined to be an intended beneficiary, he or she will have the right to enforce the document. (11)

I justify using an approach based in contract law with two positive reasons and one negative reason. First, the question of individually enforceable rights in treaties is more structurally similar to the question of third party beneficiary rights under contracts than to the issue of private rights of action in statutes. (12) Second, the text and history of the Constitution lend support to the view that treaties should be interpreted as contracts. (13) Finally, although textualism may be appropriate in the context of statutory interpretation, it is not appropriate for purposes of treaty interpretation. (14) I apply the modified intent-to-benefit test that I propose to the Vienna Convention on Consular Relations (Consular Convention), (15) focusing on the facts of Sanchez-Llamas v. Oregon, (16) a case decided by the Supreme Court last term, and two cases by Federal Appellate Courts decided since then. (17)

Sanchez-Lllamas consolidated two cases in which two non-U.S, citizen petitioners, who were arrested and tried in state courts, claimed that the United States violated Article 36 of the Consular Convention by failing to notify them about their right to receive assistance from their country's consulate. (18) Both petitioners argued that the Consular Convention provided them with individual rights that were enforceable in a court. (19) As a remedy to the U.S. violation of Article 36 of the Consular Convention, Sanchez-Llamas argued that certain statements he made to the police should be suppressed, (20) while the other petitioner, Bustillo, wanted to suspend Virginia's procedural default rule that would have otherwise barred his claim because he did not raise it during his trial. (21)

Instead of providing guidance to lower courts that had come to diverging conclusions on this question, (22) Justice Roberts, who wrote the majority opinion, avoided the issue altogether by assuming (without deciding) that the Consular Convention gives rise to individually enforceable rights. (23) The Court then held that the Consular Convention does not, however, give the petitioners the remedies they sought. (24) In so holding, the Court essentially required that in order for a litigant to sue and seek a remedy under a treaty, the treaty must state that the individual has individually enforceable rights, and its text must expressly provide the exact remedy that the individual seeks. (25)

Given the Court's failure to answer the question of whether the Consular Convention creates individually enforceable rights, it is not surprising that a circuit split has emerged on the question. (26) The Ninth and Seventh Circuits have recently considered whether a civil claim under the Consular Convention against state officials can proceed through a 42 U.S.C. [section] 1983 action, which allows individuals to sue state actors for violation of the "Constitution and laws." (27) While the Ninth Circuit rejected the argument that the Consular Convention could be enforced through Section 1983, (28) the Seventh Circuit found that Section 1983 provides a remedy for treaties that confer rights on individuals. (29)

Part I describes the Court's march towards textualism in statutory interpretation. Part II traces the Court's increasing tendency to apply textualism to treaty interpretation, particularly to the question of whether a treaty gives rise to individually enforceable rights. Part III describes the historical evolution of the intent-to-benefit test and lays out a proposal for a modified intent-to-benefit test. Part IV justifies why the intentionalist approach to contract interpretation...