In its decisions in the LaGrand and Avena cases, the International Court of Justice (I.C.J. or Court) determined that Article 36 of the Vienna Convention on Consular Relations (VCCR) creates "individual rights" (as opposed to just rights of states) and that the United States has an obligation to provide an individual with meaningful access to U.S. courts to vindicate those rights. Based on those determinations, it might be thought that international law generally obligates a state to open its courts for private persons to vindicate rights or benefits that a treaty accords to them, whether or not the treaty expressly provides for such a remedy. Such a proposition, however, is over broad, and does not follow from a close reading of the I.C.J.'s decisions, or from a more general assessment of the international legal system. At present, there is no obligation under general international treaty law, customary international law, or general principles of international law for a state to open its courts for invocation by individuals of treaty norms. Various treaties, however, either expressly or by implication, provide a right for individuals to invoke those treaties in national court systems. The I.C.J.'s decisions in LaGrand and Avena indicate the circumstances in which a right of this kind may be implied in a treaty, but there are also various circumstances that can be postulated for when such a right should not be implied. International law is changing, particularly under the pressures of globalization. It is possible that one aspect of that change will be the ultimate recognition of a general obligation under international law for states to make their national courts available to individuals seeking interpretation and application of treaty norms that are protective of the individual. While there are reasons to welcome a general obligation of that nature, there are also reasons to be wary of it. The caution evinced by the I.C.J. in the LaGrand and Avena cases should be heeded as states and non-state actors contemplate whether such a general norm should be recognized.
GW Paper Series
GWU Law School Public Law Research Paper No. 438; GWU Legal Studies Research Paper No. 438
Sean D. Murphy, Does International Law Obligate States to Open their National Courts to Persons for the Invocation of Treaty Norms that Protect or Benefit Persons? in THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY (David Sloss, Derek Jinks, eds., Cambridge University Press, Forthcoming)