Government Merits Brief - Hamdan v. Rumsfeld

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253, 306 (1829); see generally U.S. Br. at 11-16, Bustillo v.
Johnson, No. 05-51 (to be argued March 29, 2006).
To be sure, treaties can, and on occasion do, create judicially
enforceable private rights. But since such treaties are
the exception, rather than the rule, there is a presumption
that a treaty will be enforced through political and diplomatic
channels, rather than through the courts. United States v.
Emuegbunam, 268 F.3d 377, 389-390 (6th Cir. 2001), cert.
denied, 535 U.S. 977 (2002); United States v. De La Pava, 268
F.3d 157, 164 (2d Cir. 2001); United States v. Jimenez-Nava,
243 F.3d 192, 195-196 (5th Cir.), cert. denied, 533 U.S. 962
(2001); United States v. Li, 206 F.3d 56, 61 (1st Cir.), cert.
denied, 531 U.S. 956 (2000). That background principle applies
even when a treaty benefits private individuals. See 2
Restatement (Third) of the Foreign Relations Law of the
United States § 907 cmt. a, at 395 (1987) (“International
agreements, even those directly benefitting private persons,
generally do not create private rights or provide for a private
right of action in domestic courts.”). And it applies wholly
apart from whether the treaty is self-executing (i.e., whether
the treaty requires implementing legislation to be given effect).
See 1 id. § 111 cmt. h, at 47; Carlos Manuel Vazquez,
The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l
L. 695, 721 (1995).
In Eisentrager, this Court held that captured Nazi combatants
challenging the jurisdiction of a military tribunal
could not invoke the 1929 version of the Geneva Convention
because the Convention was not judicially enforceable. 339
U.S. at 789. Like the current version of the Convention, the
1929 version contained various provisions that protected individual
rights. See, e.g., Convention Relative to the Treatment
of Prisoners of War, July 27, 1929, arts. 2, 3, 16, 42, 47 Stat.
2021, 2031, 2036, 2045, 118 L.N.T.S. 343, 357, 363, 373 (1929
Convention). The Court explained, however, that the Conven-