Intent to Benefit: Individually Enforceable Rights in Treaties


Citizens of foreign countries are increasingly using international treaties to bring claims against the U.S government. 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 it, they often apply the textualist methodology derived from statutory interpretation in determining whether a treaty gives rise to individually enforceable rights. Resolution of this issue in favor of individually enforceable rights is particularly beneficial for human rights and humanitarian law treaties, because without individually enforceable rights, those treaties are not likely to be enforced.

Instead of using theories of statutory interpretation, I argue that courts should apply a modified version of the “intent-to-benefit” test derived from contract law in determining whether a treaty is enforceable by a non-party. Three general grounds support my agreement. First, the structural similarities between contracts and treaties (and the correlative differences between statutes and treaties) justify applying the principles derived from contract interpretation to treaty interpretation. Second, Supreme Court jurisprudence supports the view that treaties have the effect of statutes, but are actually contracts. 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 apply the modified intent-to-benefit test to a case study-- the Sanchez-Llamas case, in which the Supreme Court decided last term that the Vienna Convention on Consular Relations does not provide individuals with any remedies.


International Law

Date of this Version

February 2007