Courts Find Treaties to be Judicially enforceable on behalf of Private Parties
Moorish treaties use the phrase “Any Moors” in several provisions found in treaties with the British and the United States. The “Any Moors” phrases implies private rights of actions just as “Any Person” does within the private rights of actions found in the United States Code and New Jersey State Statutes. To deny “Any Moor” or “Any Person” his or her private rights of action is to deny that person of Due Process and of a “Right” guaranteed by the United States Constitution.
By the Treaty of Commerce with Great Britain of December 8th, 1856, as well as by Treaties with Spain of November zoth, 1861, and with Germany of June ~st, 1890, the Sultan of Morocco guaranteed certain rights in matters of trade, including imports into Morocco.
These States, together with a number of other States, including the United States, were guaranteed equality of treatment by virtue of most-favoured-nation clauses in their treaties with Morocco……….it has been necessary to examine three groups of treaties. The first group includes the bilateral treaties of Morocco with France, the Netherlands, Great Britain, Denmark, Spain, the United States, Sardinia, Austria, Belgium and Germany, which cover the period from 1631 to 1892.
These treaties, which were largely concerned with commerce, including the rights and privileges of foreign traders in Morocco, dealt with the question of consular jurisdiction in three different ways:
(1) Certain of the treaties included specific and comprehensive grants of rights of consular jurisdiction to the Powers concerned, e.g., the Treaties with Great Britain of 1856 and with Spain of 1799 and 1861.
(2) Certain of the treaties made strictly limited grants of privileges with regard to consular jurisdiction, e.g., the Treaties with the United States of 1787 and 1836.
(3) There were other treaties, which did not define in specific terms the treaty rights granted by Morocco, but, instead, granted to the foreign nations through the device of most- favoured-nation clauses, the advantages and privileges already granted, or to be granted, to other nations.
There is a common element to be found in the most-favoured- nation clauses which have brought about and maintained a situation in which there could be no discrimination as between any of the Powers in Morocco, regardless of specific grants of treaty rights. When the most extensive privileges as regards consular jurisdiction were granted by Morocco to Great Britain in 1856 and to Spain in 1861, these endured automatically and immediately to the benefit of the other Powers by virtue of the operation of the most-favoured- nation clauses. The second group consisted of multilateral treaties, the Madrid Convention of 1880 and the Act of Algeciras of 1906. The method of relying on individual action by interested Powers, equalized by the operation of the most-favoured-nation clauses, had led to abuse and it had become necessary not merely to ensure economic liberty without discrimination, but also to impose an element of restraint upon the Powers and to take steps to render possible the development of Morocco into a modern State. Accordingly, the rights of protection were restricted, and some of the limitations on the powers of the Sultan as regards foreigners, which had resulted from the provisions of the earlier bilateral treaties, were abated. http://www.icj-cij.org/docket/files/11/1927.pdf
TREATY between Great Britain and Tripoli. Signed at Tripoli, 5th March, 1675-6*.
That in case any subject of His Majesty, being in any part of the Kingdom of Tripoli, happen to strike, wound, or kill a Turk or a Moor, if he be taken, he is to be punished in the same manner, and with no greater severity than a Turk ought to be, being guilty of the same offence; but if he escape, neither the said English Consul, nor any other of His said Majesty’s subjects, shall be in any sort questioned or troubled therefore
TREATY between Great Britain and Algiers, signed at Algiers, 10th April, 1682*.
XVI. That in case any subject of His said Majesty being in any part of the Kingdom of Algiers, happen to strike, wound, or kill a Turk or a Moor, if he be taken, he is to be punished in the same manner, and with no greater severity than a Turk ought to be, being guilty of the same offence; but if he escape, neither the said English Consul, nor any other of His said Majesty’s subjects, shall be in any sort questioned and troubled therefore.
TREATY between Great Britain and Algiers. Signed at Algiers, 5th April 1686*.
XVI. ‘That in case any subject of His said Majesty, being in any part of the Kingdom of Algiers, happen to strike, wound, or kill a Turk, or a Moor, if he be taken, he is to be punished in the same manner, and with no greater severity, than a Turk ought to be, being guilty of the same offence; but if he escape, neither the said English Consul, nor any other ’of His said Majesty’s subjects, shall be in any sort troubled or questioned therefore.
TREATY between Great Britain and Tripoli. Signed at Tripoli, 19th September 1751*.
XII. That in case any subject of His Majesty, being in any part of the Kingdom of Tripoli, happen to strike, kill, or wound a Turk or Moor, if he be taken, he is to be punished in the same manner, and with no greater severity than a Turk ought to be, being guilty of the same offence; but if he escape, neither the said English Consul, nor any other of His said Majesty’s subjects, shall be in any sort questioned or troubled upon that account, and no trial or sentence to be passed without the Consul being present.
Treaty between Great Britain and Tripoli. Signed at Tripoli, 19th September 1751 Renewed by the Treaty of 1762.
ART. XII. That in case any subject of His Majesty, being in any part of the Kingdom of Tripoli, happen to strike, kill, or wound a Turk or Moor, if he be taken, he is to be punished in the same manner, and with no greater severity than a Turk ought to be, being guilty of the same offence; but if he escape, neither the said English Consul, nor any other of His said Majesty’s subjects, shall be in any sort questioned or troubled upon that account, and no trial or sentence to be passed without the Consul being present.
TREATY between Great Britain and Morocco. _Signed at Salé, 8th of April, 1791.
VIII. If there happen any quarrel between any English subject, or person under English protection, and Musselmen, by which either of them may receive detriment, the Cause shall be heard and determined by the Emperor alone, and if the English subject, or person under English protection, be the aggressor, he shall be punished with no greater severity than a Moor guilty of the like offence ought to be; and if he escape, no other English subject, or person under English protection, shall suffer on his account, or in his place; and if it appear that the crime was committed by accident, or in his own defence, he shall be treated agreeable to the customs observed towards Musselmen in like cases. And if any quarrel shall happen between Englishmen and Musselmen in any part of the Dominions of the King of England, by which one of them may receive detriment, the same shall be heard before an equal number of Musselmen and Christians and determined agreeably to the laws of England.
TREATY between Morocco and United States 8 STAT. 484-487 (1836)
Art. 21 If a citizen of the United States should kill or wound a Moor, or, on the contrary, if a Moor shall kill or wound a citizen of the United States, the law of the Country shall take place, and equal justice shall be rendered, the Consul assisting at the trial; and if any delinquent shall make his escape, the Consul shall not be answerable for him in any manner whatever. The twenty-first article is that if there has been killed a Christian out of them or the reverse [sic] or has wounded him [sic], then he will be sentenced according to the rules of the Sacred [Mohammedan] Law, neither more nor less, and the trial is to take place in the presence of the Consul. If the delinquent escapes before having been sentenced, the Consul shall not be held responsible for him nor for the crime he committed. [The redaction of Article 21 is extremely inept.
In 1856 a treaty is signed, initiated by Britain in order to strengthen its influence over Morocco and to maintain its naval supremacy in the Mediterranean, which hugely undermines Moroccan sovereignty. This treaty wrested control over the extent of European penetration away from the governing institution of Morocco the Makhzen. The advantages gained by European traders, combined with their superior technique and the quantity of capital behind them, enabled then to monopolise most of the sea trade and to reduce Moroccan players to mere intermediaries. Click Here
A self – executing treaty is a treaty that creates a domestic legal obligation in the absence of implementing legislation. A private right is a right that accrues to an individual. For example, a property right, such as that provided by the treaty at issue in Chirac v. Chirac’s Lessee , 15 U.S. (2 Wheat.) 259, 271 (1817). For more on the distinction between private rights and private rights of action, see McKesson Corp. v. Islamic Republic of Iran , 539 F.3d 485, 489 – 491 (2008) (holding that even though the Treaty of Amity between the U.S. and Iran is self – executing, creates a property right, and provides for a remedy, there is no implied private right of action). See also David Sloss, When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez – Llamas, 45 C OLUM . J. T RANSNAT ’ L L . 20, 101 – 102 (2006) (noting that courts have found treaties to be judicially enforceable on behalf of private parties even when the treaty did not create an express private right of action).
Claims of deprivation of constitutional rights are, of course, cognizable under section 1983, as are, under specified circumstances, claims for deprivations of treaty-based rights.”) (citations omitted). Monetary claims of just compensation based on deprivation of property by governmental action are similarly cognizable in the Court of Federal Claims. Karuk Tribe California v. Ammon 209 F.3d 1366 (Fed. Cir. 2000)
For most of the history of the country , the Supreme Court treated the issues of self – execution , private rights, and private rights of action as essentially indistinguishable. Between 1790 and 19 47 , there were at least twenty – two cases in which the Supreme Court found a treaty self – executing on the basis that a private right was secured by the treaty. 32 In each ca se, the Court held not only that the treaty was self – executing, but also that it created a private right of action . The treaties where the Court inferred this right to private enforcement of a treaty right fell into four areas: (1) contract matters; (2) property and inheritance law matters; (3) the right to challenge the legality of detention through a writ of habeas corpus ; and (4) rights to carry on a trade .
The reasoning of the Court throughout this period followed a consistent pattern: if the treaty created a private right — a property right, inheritance right, contract right, or habeas corpus right — then the treaty was “self – executing,” and there was necessarily a private right of action enabling individuals to enforce the right in the courts. The Court reasoned that treaties conferring rights on private individuals did not “addres[s] [themselves] to the legislature” 33 and therefore did not require congressional action to have effect. Rather, these treaties spoke to the judiciary , whose role it was to enforce individual rights under the treaties. The Court’s approach during this era is exemplified by the seminal cases of Ware v. Hylton , 34 Foster v. Neilson , 35 and United Stat es v. Percheman . 36
In Ware , the Court held that the Treaty of Peace, signed between the United States and Great Britain in 1783, enabled a British creditor to recover a debt owed to him by an American. 37 The Court reasoned that because the Peace Treaty between the United States and Britain created a private right for British creditors, the treaty automatically gave rise to an implied private right of action. The treaty aimed to protect the contractual rights of British creditors and the Court regarded judicial enforcement of that right as the necessary means to that end . 38 Thus, once it found that the treaty created a private right, the Court inferred that the treaty must give rise to a private right of action allowing the enforcement of that private right in U.S. courts.
The Court discussed whether individuals have standing to invoke treaty-based rights, and acknowledged that typically they do not. Id. At 1533. In United States v. Valencia-Trujillo, 573 F.3d 1171 (11th Cir. Fla. 2009), it was held that not all treaties give defendants rights that can be asserted in the courts of the United States. Only if the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, will they have the force and effect of a legislative enactment.
In De Los Santos Mora v. New York, 524 F.3d 183 (2d Cir. 2008), it was held that a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal (i.e., domestic) law, and which are capable of enforcement as between private parties in the courts of the country. The Supremacy Clause of the United States Constitution places such provisions in the same category as other laws of Congress. Thus, whenever provisions of a treaty prescribe a rule by which the rights of the private citizen or subject may be determined and when such rights are of a nature to be enforced in a court of justice; that court resorts to the treaty for a rule of decision for the case before it as it would a statute. Rauscher , 119 U.S. at 419 (“[A] treaty may . . . confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. . . . And, when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case be fore it as it would to a statute.’”
See 1 B LACKSTONE , supra note 13, at *117–41; 2 J AMES K ENT , C OMMENTARIES ON R A MERICAN L AW 1 (O.W. Holmes, Jr., ed., 12th ed., Boston, Little, Brown & Co. 1873) (“The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable.”)
To determine whether a treaty creates a cause of action, we look to its text. See United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) (“In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.”). The Treaty of Amity, like other treaties of its kind, is self-executing. See Medellín v. Texas, 128 S. Ct. 1346, 1365–66 (2008); Blanco v. United States, 775 F.2d 53, 60 (2d Cir. 1985) (Friendly, J.); CURTIS A. BRADLEY & JACK L.GOLDSMITH, FOREIGN RELATIONS LAW 379 (2d ed. 2006) (“[C]ourts commonly assume that certain types of bilateral treaties, such as . . . Friendship, Commerce, and Navigation (FCN) treaties, are self-executing.”).
As such, it “operates of itself without the aid of any legislative provision,” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.), and its text is “the supreme Law of the Land,” U.S. CONST. art. VI, cl. 2, on par with that of a statute, Whitney v. Robertson, 124 U.S. 190, 194 (1888).
That the Treaty of Amity is self-executing begins but does not end our search for a treaty-based cause of action, because “[w]hether a treaty is self-executing is a question distinct from whether the treaty creates private rights or remedies.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 cmt. h (1986) [hereinafter RESTATEMENT]; accord Renkel v. United States, 456 F.3d 640, 643 n.3 (6th Cir. 2006); United States v. Li, 206 F.3d 56, 67 (1st Cir. 2000) (en banc) (Selya & Boudin, JJ., concurring).
“Even when treaties are self-executing in the sense that they create federal law, the background presumption is that ‘[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.’ ” Medellín, 128 S. Ct. at 1357 n.3 (quoting RESTATEMENT, supra, § 907 cmt. a). However, it also noted that if a treaty expressly or impliedly provides a private right of action, it is self-executing and can be invoked by the individual. Id. At 1533 (citing Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. at 253-54, 28 L.Ed. 798 (1884)).
By contrast, private rights are those rights held by individuals. Blackstone explained that private rights included the “absolute” rights of personal security, life, liberty, and property, as well as “relative” rights which individuals acquired “as members of society, and stand- ing in various relations to each other.” The victim of a private wrong could seek a remedy by bringing the appropriate form of action, such as a writ of trespass or a writ of trespass on the case.
In the English case Ashby v. White, Chief Justice Holt rejected the no- tion that a plaintiff could not maintain an action on the case arising from the violation of a right if he suffered no harm. 31 He explained that “[i]f the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are recipro- cal.” 32 Responding to the argument that an action on the case was “not maintainable because here is no hurt or damage to the plaintiff,” Chief Justice Holt argued that “surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an in- jury imports a damage, when a man is thereby hindered of his right.” 33 Regardless of the type of action, the violation of the right was what mattered.
Indeed, Blackstone viewed all judicial remedies as vindicating the violation of rights. 45 Courts awarded damages not to compensate for factual loss the victim suffered but instead to make the plaintiff whole by compensating for the consequences of the violation. 3 BLACKSTONE , supra note 13, at *23; accord id. at *109 (“For it is a settled and R invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury it’s proper redress.”); see also 1 id. at *55–56 (“[I]n vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law.”); EDWARD COKE , THE SECOND PART OF THE INSTITUTES OF THE LAWES OF ENGLAND 55–56 (London, Fletcher & Young 1642) (“[E]very subject of this realme, for injury done to him in bonis, in terris, vel persona, by any other subject . . . may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.”).
In Marbury v. Madison , Chief Justice Marshall, quoting Blackstone, stated that “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” 49 Indeed, Chief Justice Marshall stated that “[t]he very essence of civil liberty certainly consists in the right of every indi- vidual to claim the protection of the laws, whenever he receives an injury.” 50 The United States “has been emphatically termed a govern- ment of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”
Treaties are as binding within the territorial limits of the United States as they are elsewhere throughout the dominion of the United States. Baldwin v. Franks,120 U.S. 678, 7 S. Ct. 656, 32 L. Ed. 766 (1887).
In answering the question, the court must be guided by the “longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” Aramco, 499 U.S. at 248, quoting Foley Brothers, 336 U.S. at 285.
This canon of statutory construction “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” Aramco, 499 U.S. at 248, citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22 (1963); accord, Small v. United States, 544 U.S. 385, (2005) the case of Hughes v. Cornelius, that if a judge of one nation, in case of a capture at sea, will assume novel and false principles, as principles of the [**34] law of nations, or misapply, or unduly extend, or restrict such as may have been already received and sanctioned, or misinterpret a treaty, or decide wholly on the particular regulations of his own nation, repugnant to, or deviating from the law of nations, or by whatever other erroneous reasonings or means, considered as the principles relative to the law in the case, he shall come to it as legal conclusion that the goods captured ought to be condemned as prize, either as being enemy property, or for breach of blockade, or as being contraband of war, or for any other cause whatever, every such condemnation would be a grievance on the captured, against which his nation is to claim and procure reparation for him. It would be perfectly a casus foederis; a case where the nation, in virtue of the mutual obligation of allegiance and protection, between sovereign and subject, would be held to interfere and remonstrate against the principles of the condemnation, and insist that they be disavowed or renounced, and that reparation be made to the captured; who, instead of seeking for indemnity from an underwriter, through the medium of a court of justice, must seek for it from the foreign nation [**35] itself, through the medium of the government or sovereignty of his own nation.
“Treaties to which the United States is a party pre-empt state laws in conflict with them,” the department stated in a news release.
A State cannot refuse to give foreign nationals their treaty rights because of fear that valid international agreements may possiblynot wrk completely to the satisfaction of state authorities. Kolovrat v. Oregon,366 U.S. 187, 81 S. Ct. 922,6 L. Ed. 2d 218 (1961).
Thus the effect of a treaty is not to nullify a conflicting statue, but rather suspend it in its application to a citizen of the country with which the treaty is made. Ahrens v. Ahres, 144 Iowa 486, 123 N.W. 164 (1909) In re Sitxrud’s Estate, 58 Wash. 339, 109 P. 33 (1910).
Citing Pitt-Bey v. District of Columbia, 942 A.2d 1132, 1135 D.C. App. 2008 and Windom v. City of Rochester United States District Court, W.D. New York. April 29, 2012 which states: “As its title indicates, the treaty is one of Peace and Friendship between the sovereign states of Morocco and the United States, and it provides that subjects or citizens of each country will be held safe by the other.”
The Supreme Court first noted in Marbury v. Madison , “that where there is a legal right, there is also a legal remedy by suit or action at law, when- ever that right is invaded.” 5 U.S. (1 Cranch) 137, 163 (1803) (internal quotation marks omitted). orically, individuals were entitled to relief for violations of private rights, re- gardless of whether they suffered any additional injury in fact, and that this practice continues today through the awarding of nominal damages.
Contract In four cases during the two decades following the Founding , the Supreme Court held that the Treaty of Peace between the U.S. and Great Britain, signed after the Revolutionary War in 1783, created private contractual right s directly enforceable in U.S. courts. 47 The Treaty of Peace stated: “It is agreed, that creditors on either side, shal l meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted.” 48 No mention of rights of action or self – execution appeared in the text of the treaty. Nonetheless, when several states pas sed statutes expressly limit ing the rights of British creditors to recover debts owed to them , t he Supreme Court gave relief to British creditors under the Treaty. Time and again, the Court held that the Treaty of Peace of 1783 was the “supreme law of the land” ; that it took precedence over contrary state statutes ; that it created a contract right for British creditors ; and, finally, that the contract right was enforceable in U.S. courts by private litigants .
Property and Inheritance In eight cases betw een 1789 and 1840, the Supreme Court held that a treaty created a private property or inheritance right that was directly enforceable in U.S. court s. 49 In Chirac v. Chirac’s Lessee , decided in 1817, for example, the Court held that the 1778 Treaty of Amity between the United States and France created a private right for Frenchmen to hold and sell land in the United States. Accordingly, t he Court allowed a Frenchman’s heirs to invoke the treaty in a U.S. court to stop the deceased’s estate from escheating to the government. 50 Two years later in Orr v. Hodgson , the Supreme Court reached a similar holding with respect to the Treaty of Peace between the United States and Britain, signed in 1783. 51 In Orr, the Court held that the U.S. – Britain Treaty had created by i ts “express terms” a private right for British residents to acquire and pass on property by descent , and thus right was directly enforceable in court.
Although the treaties at issue in Orr, Chirac , and the other six cases decided by the Court in this period expressly created private property or inheritance rights, none explicitly created private rights of action to enforce those rights in the courts of the United States. In each case, the Court inferred the rights of action once it found that the treaties were meant to create the private rights.
Detention and Habeas Corpus Three cases decided by the Supreme Court during the 1880s held that a treaty endowed persons with a private right either to be released from detention or to file for habeas corpus review, when detained by authorities. In the 1884 case of Chew Heong v. United States , 53 the Supreme Court assumed that a treaty between the United States and China created a private right of action to bring a habeas petition in U.S. courts, absent explicit language to that effect in the treaty.
In United States v. Rauscher , two years later, the Supreme Court held that a bilateral extradition treaty between the United States and Britain created a private right to be released from detention i n one’s own country , when a detainee had been extradited and was detained for a crime not specified in the extradition treaty. The Rausche r case is interesting because it involved several steps of inferential reasoning by the Court – even the Court’s loca ting of a private right of the detainee to be free of charges for those crimes not specified in the extradition treaty was an expansive reading. Finally, in Mail v. Keeper of the Common Jail, decided in 1887, the Supreme Court held that a bilateral treaty between the United States and Belgium, also created a private right to be free of detention in the United States for crimes not covered by the treaty, as well as a private right of action in U.S. courts demanding release.