In votes divided 6 to 3, U.S. Supreme Court rules that neither Vienna Convention, nor Optional Protocol thereto nor Presidential Memorandum clearly requires U.S. state to give effect to Avenas judgment of International Court of Justice as domestically enforceable federal law by requiring Texas to set aside its rules on number and timing of post conviction procedures to determine whether failure of Texas officials to notify Petitioner Mexican citizen's consular officials of his arrest may have prejudicially tainted Petitioner's Texas convictions for rape and murder
In 1969, the U.S. President, having obtained the consent of the Senate, ratified the Vienna Convention on Consular Relations (Convention), Apr. 24, 1963, [ 21 U.S. T. 77; T. I. A. S. No. 6820; 596 U. N. T. S. 261; in force for U.S. Dec. 24, 1969] and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (OP) Apr. 24, 1963, [1970] [21 U.S. T. 325; T. I. A. S. No. 6820].
Toward that end, the drafters included Article 36(1)(b) of the Convention to facilitat[e] the exercise of consular functions. It provides that if a person detained by a foreign country so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State of such detention, and inform the [detainee] of his righ[t] to request assistance from the consul of his own state, here that of Mexico.
The OP provides a venue for the resolution of disputes arising out of the interpretation or application of the Convention. Under the OP, such disputes shall lie within the compulsory jurisdiction of the International Court of Justice (ICJ) and may accordingly be brought before the [ICJ] ... by any party to the dispute being a Party to the present Protocol.
The ICJ is the principal judicial organ of the United Nations. U. N. Charter, (UNC) Art. 92, 59 Stat. 1051, T. S. No. 993 (1945); See also Statute of the International Court of Justice (ICJ Statute), 59 Stat. 1055, T. S. No. 993 (1945).
Under UNC Article 94(1) [e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party. The ICJ's jurisdiction in any particular case, however, is dependent upon the consent of the parties.
In 1946, the U.S. had originally consented to the general jurisdiction of the ICJ when it filed a declaration recognizing compulsory jurisdiction under Art. 36(2). The U.S., however, withdrew from general ICJ jurisdiction in 1985. See 24 I. L. M. 1742 (1985). By ratifying the OP to the Convention, however, the U.S. consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. On March 7, 2005, after the ICJ's adverse judgment in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Avena), the U.S. withdrew from the OP to the Convention.
In 1993, a Texas jury convicted Petitioner Jose Ernesto Medellin and members of his street gang of attacking two girls aged 14 and 16 in Houston, Texas. The gang raped them for one hour. To rid themselves of witnesses, they then murdered the girls. Petitioner, a citizen of Mexico residing in the U.S., was personally responsible for strangling at least one of the girls with her own shoelace.
Less than three hours after his arrest, Petitioner confessed. Local authorities, however, never notified Petitioner that he could ask for aid from Mexican consular authorities. During later attempts to have his Texas conviction reviewed, Petitioner violated various generally applicable Texas procedural rules limiting the number of appeals and applications for habeas relief in the Texas courts. In Avena, the ICJ later concluded that the Texas authorities had breached Article 36(1)(b) of the Vienna Convention by failing to notify 51 named Mexican nationals, including Petitioner, of their Convention rights to consular aid. The ICJ found that those named individuals were entitled to review and reconsideration of their U.S. state court convictions and sentences regardless of their failure to comply with state procedural rules dealing with post conviction challenges to their criminal convictions.
In Sanchez Llamas v. Oregon, 548 U.S. 331"handed down after Avena but involving parties not named in the Avena judgment"the Supreme Court held, contrary to the ICJ's determination, that the Convention did not preclude the application of state procedural default rules. The President then issued a Memorandum declaring that: "I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision."
Relying on Avena and the Memorandum, Petitioner filed a second Texas state court habeas application which attacked his state conviction and death sentence on the ground that the state authorities had not told him about his Convention rights. The Texas Court of Criminal Appeals dismissed Petitioner's application as an abuse of the writ, concluding that neither Avena nor the Memorandum constituted binding federal law that could displace the State's limitations on filing successive habeas applications.
The U.S. Supreme Court granted certiorari and now affirms. In a 6 to 3 vote, the Court concludes that neither Avena nor the President's Memorandum constitutes directly enforceable federal law that pre empts state limitations on the filing of successive habeas petitions.
In the first place, the Avena judgment is not directly enforceable as domestic law in state court. "While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be "self executing' and is ratified on that basis. See, e.g., Foster v. Neilson, 2 Pet. 253, 314. The Avena judgment creates an international law obligation on the part of the U.S., but it is not automatically binding domestic law because none of the relevant treaty sources"the OP, the UNC or the ICJ Statute"creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted."
"The most natural reading of the OP is that it is a bare grant of jurisdiction. The OP says nothing about the effect of an ICJ decision, does not commit signatories to comply therewith, and is silent as to any enforcement mechanism. The obligation to comply with ICJ judgments is derived from UNC Article 94 which provides that "[e]ach ... Member ... undertakes to comply with the [ICJ's] decision ... in any case to which it is a party.' The phrase "undertakes to comply' is simply a commitment by member states to take future action through their political branches. That language does not indicate that the Senate, in ratifying (sic) the OP, intended to vest ICJ decisions with immediate legal effect in domestic courts."
"This reading is confirmed by Article 94(2)"the enforcement provision"which provides the sole remedy for noncompliance: referral to the U. N. Security Council by an aggrieved state. The provision of an express diplomatic, rather than judicial, remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. [Cite]. Even this "quintessentially international remed[y],' is not absolute. It requires a Security Council resolution, and the President and Senate were undoubtedly aware that the U.S. retained the unqualified right to exercise its veto of any such resolution." [Slip op. 1]
"The ICJ Statute, by limiting disputes to those involving nations, not individuals, and by specifying that ICJ decisions have no binding force except between those nations, provides further evidence that the Avena judgment does not automatically constitute federal law enforceable in U.S. courts. Petitioner, an individual, cannot be considered a party to the Avena decision. Finally, the U.S.'s interpretation of a treaty is entitled to great weight, [cite], and the Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law."
"The [Texas] Court's conclusion that Avena does not by itself constitute binding federal law is confirmed by the "postratification understanding' of signatory countries. See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 . There are currently 47 nations that are parties to the OP and 171 nations that are parties to the Convention. Yet neither Petitioner nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts. The lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts. [Cite]."
General principles of interpretation further support the Court's conclusion. "Given that the forum state's procedural rules govern a treaty's implementation absent a clear and express statement to the contrary, ... one would expect the ratifying parties to the relevant treaties to have clearly stated any intent to give ICJ judgments such effect. There is no statement in the OP, the UNC, or the ICJ Statute that supports this notion. ..."
"This Court's holding does not call into question the enforcement of ordinary foreign judgments. An agreement to abide by the result of an international adjudication can be a treaty obligation like any other, so long as the agreement is consistent with the Constitution. In addition, Congress is up to the task of implementing non self executing treaties, even those involving complex commercial disputes."
"[Petitioner] contends that domestic courts generally give effect to foreign judgments, but the judgment [Petitioner] asks us to enforce is hardly typical: It would enjoin the operation of state law and force the State to take action to "review and reconside[r]' his case. Foreign judgments awarding injunctive relief against private parties, let alone sovereign States, "are not generally entitled to enforcement.' Restatement (Third) of Foreign Relations Law of the United States Section 481, Comment b, p. 595 (1986)." [Slip op. 2].
"Secondly, the President's Memorandum does not independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules."
"The President seeks to vindicate plainly compelling interests in ensuring the reciprocal observance of the Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. But those interests do not allow the Court to set aside first principles. The President's authority to act, as with the exercise of any governmental power, "must stem either from an act of Congress or from the Constitution itself.' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585."
"Justice Jackson's familiar tripartite scheme [in Youngstown] provides the accepted framework for evaluating executive action in this area. First, "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.' Id. at 635 (Jackson, J., concurring)."
"Second, "[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.' Id., at 637.In such a circumstance, Presidential authority can derive support from "congressional inertia, indifference or quiescence.' Ibid. Finally, "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,' and the Court can sustain his actions "only by disabling the Congress from acting upon the subject.' Id., at 637 638."
"The [Government] next marshals two main arguments in favor of the President's authority to establish binding rules of decision that preempt contrary state law. "The U.S. argues that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority. The U.S. also relies upon an "independent' international dispute resolution power. We find these arguments, as well as [Petitioner's] additional argument that the President's Memorandum is a valid exercise of his "Take Care' power, unpersuasive." [Slip op. 3]
"The U.S. maintains that the Memorandum is implicitly authorized by the [OP] and the [UNC]. But the responsibility for transforming an international obligation arising from a non self executing treaty into domestic law falls to Congress, not the Executive. [Cite]. It is a fundamental constitutional principle that [t]he power to make the necessary laws is in Congress; the power to execute, in the President. Hamdan v. Rumsfeld, 548 U.S. 557, 591. A non self executing treaty, by definition, is one that was ratified [by the President] with the understanding that it is not to have domestic effect of its own force."
"That understanding precludes the assertion that Congress has implicitly authorized the President"acting on his own"to achieve precisely the same result. Accordingly, the Memorandum does not fall within the first category of the Youngstown framework. Indeed, because the non self executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with the authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so, the President's assertion of authority is within Youngstown's third category, not the first or even the second."
"The U.S. maintains that congressional acquiescence requires that the President's Memorandum be given effect as domestic law. But such acquiescence is pertinent when the President's action falls within the second Youngstown category, not the third. In any event, congressional acquiescence does not exist here. Congress' failure to act following the President's resolution of prior ICJ controversies does not demonstrate acquiescence because in none of those prior controversies did the President assert the authority to transform an international obligation into domestic law and thereby displace state law."
"The U.S.'s reliance on the President's "related' statutory responsibilities and on his "established role' in litigating foreign policy concerns is also misplaced. The President's statutory authorization to represent the U.S. before the UN, the ICJ, and the [UNC] speaks to his international responsibilities, not to any unilateral authority to create domestic law. ... [Thus] the President may not rely upon a non self executing treaty to establish binding rules of decision that pre empt contrary state law." [Slip op. 4]
"The [Government] also claims that"independent of the U.S.'s treaty obligations"the Memorandum is a valid exercise of the President's foreign affairs authority to resolve claims disputes. See, e.g., American Ins. Assn. v. Garamendi, 539 U.S. 396, 415. This Court's claims settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,' can "raise a presumption that the [action] had been [taken] in pursuance of its consent.' Dames & Moore v. Regan, 453 U.S. 654, 668 ."
"But "[p]ast practice does not, by itself, create power'. The President's Memorandum"a directive issued to state courts that would compel those courts to reopen final criminal judgments and set aside neutrally applicable state laws"is not supported by a "particularly longstanding practice.' The Executive's limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far."
"[Finally, [Petitioner's] argument that the President's Memorandum is a valid exercise of his power to "Take Care' that the laws be faithfully executed, U.S. Const., Art. II, Section 3, fails because the ICJ's decision in Avena is not domestic law."
One Justice concurred in the judgment. Though noting the considerable weight of the arguments pro and con, he ultimately decided that Congressional action was necessary to make the ICJ decision binding on state courts, and that the President had no unilateral authority to change the fact that such action was necessary. Nonetheless, the U.S., by ratifying the UNC, affirmatively promised the world community that it would take whatever action is needed to comply with ICJ judgments. Under the Supremacy Clause, this duty of compliance falls on all the states as well"especially here on Texas. That state: "having already put the Nation in breach of one treaty [the Vienna Convention], it is now up to Texas to prevent the breach of another [the U. N. Charter]." [ Slip op. 26]
Three Justices subscribe to the dissenting opinion excerpted below. "The Constitution's Supremacy Clause provides, in relevant part, that "all Treaties ... which shall be made ... under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.' Art. VI, cl. 2." The question here is whether the ICJ's Avena judgment is enforceable now as a matter of domestic law, i.e., whether it "operates of itself without the aid' of any further legislation."
"The U.S. has signed and ratified a series of treaties obliging it to comply with ICJ judgments in cases in which it has given its consent to the exercise of the ICJ's adjudicatory authority. [In his Memorandum], President Bush has determined that domestic courts should enforce this particular ICJ judgment. [Cite] And Congress has done nothing to suggest the contrary. Under these circumstances, I believe the treaty obligations, and hence the judgment, resting as it does upon the consent of the U.S. to the ICJ's jurisdiction, bind the courts no less than would "an act of the [federal] legislature.' [Cite]."
"...[T]he reader must keep in mind three separate ratified U.S. treaties and one ICJ judgment against the U.S. The first treaty, the Vienna Convention, contains two relevant provisions. The first requires the U.S. and other signatory nations to inform arrested foreign nationals of their separate Convention given right to contact their nation's consul. The second says that these rights (of an arrested person) "shall be exercised in conformity with the laws and regulations' of the arresting nation, provided that the "laws and regulations ... enable full effect to be given to the purposes for which' those rights ... are intended.' See Vienna Convention, Arts. 36(1)(b), 36(2). Approximately 70 U.S. treaties now in force contain obligations comparable to those in the [OP] for submission of treaty based disputes to the ICJ'."
"In my view, the President has correctly determined that Congress need not enact additional legislation. The majority places too much weight upon treaty language that says little about the matter. The words "undertak[e] to comply,' for example, do not tell us whether an ICJ judgment rendered pursuant to the parties' consent to compulsory ICJ jurisdiction does, or does not, automatically become part of our domestic law."
"To answer that question, we must look instead to our own domestic law, in particular, to the many treaty related cases interpreting the Supremacy Clause. Those cases, including some written by Justices well aware of the Founders' original intent, lead to the conclusion that the ICJ judgment before us is enforceable as a matter of domestic law without further legislation." [Slip op. 27, 28].
"Supreme Court case law stretching back more than 200 years helps explain what, for present purposes, the Founders meant when they wrote that "all Treaties ... shall be the supreme Law of the Land.'" [Slip op. 29].
"Since [the nation's earliest days], this Court has frequently held or assumed that particular treaty provisions are self executing, automatically binding the States without more. See Appendix A, infra (listing, as examples, 29 such cases, including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence)."
"Of particular relevance to the present case, the Court has held that the U.S. may be obligated by treaty to comply with the judgment of an international tribunal interpreting that treaty, despite the absence of any congressional enactment specifically requiring such compliance." [Cites].
"All of these cases make clear that self executing treaty provisions are not uncommon or peculiar creatures of our domestic law; that they cover a wide range of subjects; that the Supremacy Clause itself answers the self execution question by applying many, but not all, treaty provisions directly to the States; and that the Clause answers the self execution question differently than does the law in many other nations. Our cases also provide criteria that help determine which provisions automatically so apply"a matter to which I now turn."
"The case law provides no simple magic answer to the question whether a particular treaty provision is self executing. But the case law does make clear that, insofar as today's majority looks for language about "self execution' in the treaty itself and insofar as it erects "clear statement' presumptions designed to help find an answer, it is misguided."
"The many treaty provisions that this Court has found self executing contain no textual language on the point (see Appendix A, infra ). Few, if any, of these provisions are clear. [Cite]. Those that displace state law in respect to such quintessential state matters as, say, property, inheritance, or debt repayment, lack the "clea[r] state[ment]' that the Court today apparently requires. ... This is also true of those cases that deal with state rules roughly comparable to the sort that the majority suggests require special accommodation. See, e.g., Hopkirk v. Bell, 3 Cranch 454, 457 458 (1806) (treaty pre empts Virginia state statute of limitations). ... These many Supreme Court cases finding treaty provisions to be self executing cannot be reconciled with the majority's demand for textual clarity."
"Indeed, the majority does not point to a single ratified U.S. treaty that contains the kind of "clea[r]' or "plai[n]' textual indication for which the majority searches. [The concurring Justice's] reliance upon one ratified and one un ratified treaty to make the point that a treaty could speak clearly on the matter of self execution, does suggest that there are a few such treaties. But that simply highlights how few of them actually do speak clearly on the matter."
"And that is not because the U.S. never, or hardly ever, has entered into a treaty with self executing provisions. The case law belies any such conclusion. Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation's domestic law regards the provision's legal status. And that domestic status determining law differs markedly from one nation to another."
"As Justice Iredell pointed out 200 years ago, Britain, for example, taking the view that the British Crown makes treaties but Parliament makes domestic law, virtually always requires parliamentary legislation. [Cites]. On the other hand, the U.S., with its Supremacy Clause, does not take Britain's view. [Cite]. And the law of other nations, the Netherlands for example, directly incorporates many treaties concluded by the executive into its domestic law, even without explicit parliamentary approval of the treaty.[Cite]."
"Above all, what does the absence of specific language about "self execution' prove? It may reflect the drafters' awareness of national differences. It may reflect the practical fact that drafters, favoring speedy, effective implementation, conclude they should best leave national legal practices alone. It may reflect the fact that achieving international agreement on this point is simply a game not worth the candle. In a word, for present purposes, the absence or presence of language in a treaty about a provision's self execution proves nothing at all. At best, the Court is hunting the snark. At worst, it erects legalistic hurdles that can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones." [Slip op. 31, 32, 33].
"The case law also suggests practical, context specific criteria that this Court has previously used to help determine whether, for Supremacy Clause purposes, a treaty provision is self executing. The provision's text matters very much. But that is not because it contains language that explicitly refers to self execution. ... [O]ne should not expect that kind of textual statement. Drafting history is also relevant. But, again, that is not because it will explicitly address the relevant question. Instead text and history, along with subject matter and related characteristics will help our courts determine whether, as Chief Justice Marshall put it, the treaty provision "addresses itself to the political ... department[s]' for further action or to "the judicial department' for direct enforcement. [Cites]."
"In making this determination, this Court has found the provision's subject matter of particular importance. Does the treaty provision declare peace? Does it promise not to engage in hostilities? If so, it addresses itself to the political branches. [Cite] Alternatively, does it concern the adjudication of traditional private legal rights such as rights to own property, to conduct a business, or to obtain civil tort recovery? If so, it may well address itself to the Judiciary. Enforcing such rights and setting their boundaries is the bread and butter work of the courts. See, e.g., Clark v. Allen, 331 U.S. 503 (1947) (treating provision with such subject matter as self executing); Asakura v. Seattle, 265 U.S. 332 (1924) (same)."
"One might also ask whether the treaty provision confers specific, detailed individual legal rights. Does it set forth definite standards that judges can readily enforce? Other things being equal, where rights are specific and readily enforceable, the treaty provision more likely "addresses' the judiciary." [Slip op. 34]
"Such questions, drawn from case law stretching back 200 years, do not create a simple test, let alone a magic formula. But they do help to constitute a practical, context specific judicial approach, seeking to separate run of the mill judicial matters from other matters, sometimes more politically charged, sometimes more clearly the responsibility of other branches, sometimes lacking those attributes that would permit courts to act on their own without more ado. And such an approach is all that we need to find an answer to the legal question now before us."
"Applying the approach just described, I would find the relevant treaty provisions self executing as applied to the ICJ judgment before us (giving that judgment domestic legal effect) for the following reasons, taken together."
"Indeed, ... the U.S. has ratified approximately 70 treaties with ICJ dispute resolution provisions roughly similar to those contained in the [OP]; many of those treaties contemplate ICJ adjudication of the sort of substantive matters (property, commercial dealings, and the like) that the Court has found self executing, or otherwise appear addressed to the judicial branch. None of the ICJ provisions in these treaties contains stronger language about self execution than the language at issue here."
"I recognize, ... that the U.N. Charter uses the words "undertakes to comply,' rather than, say, "shall comply' or "must comply.' But what is inadequate about the word "undertak[e]'? A leading contemporary dictionary defined it in terms of "lay[ing] oneself under obligation ... to perform or to execute. Webster's New International Dictionary 2770 (2d ed. 1939). And that definition is just what the equally authoritative Spanish version of the provision (familiar to Mexico) says directly: The words "compromete a cumplir' indicate a present obligation to execute, without any tentativeness of the sort the majority finds in the English word "undertakes.'"
"And even if I agreed with [the concurring Justice] that the language is perfectly ambiguous (which I do not), I could not agree that "the best reading ... is ... one that contemplates future action by the political branches.' The consequence of such a reading is to place the fate of an international promise made by the U.S. in the hands of a single State. And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause. [Cites]."
"The upshot is that treaty language says that an ICJ decision is legally binding, but it leaves the implementation of that binding legal obligation to the domestic law of each signatory nation. In this Nation, the Supremacy Clause, as long and consistently interpreted, indicates that ICJ decisions rendered pursuant to provisions for binding adjudication must be domestically legally binding and enforceable in domestic courts at least sometimes. And for purposes of this argument, that conclusion is all that I need. The remainder of the discussion will explain why, if ICJ judgments sometimes bind domestic courts, then they have that effect here."
"First, the language of the relevant treaties strongly supports direct judicial enforceability, at least of judgments of the kind at issue here. The [OP] bears the title "Compulsory Settlement of Disputes,' thereby emphasizing the mandatory and binding nature of the procedures it sets forth. ... And the [OP] contrasts proceedings of the compulsory kind with an alternative "conciliation procedure,' the recommendations of which a party may decide "not' to "accep[t].' Art. III, id., at 327.Thus, the [OP's] basic objective is not just to provide a forum for settlement but to provide a forum for compulsory settlement. ..." [Slip op. 35,36].
"Second, the OP here applies to a dispute about the meaning of a Vienna Convention provision that is itself self executing and judicially enforceable. The Convention provision is about an individual's "rights,' namely, his right upon being arrested to be informed of his separate right to contact his nation's consul. The provision language is precise. The dispute arises at the intersection of an individual right with ordinary rules of criminal procedure; it consequently concerns the kind of matter with which judges are familiar. The provisions contain judicially enforceable standards. [Cite]. And the judgment itself requires a further hearing of a sort that is typically judicial."
"Third, logic suggests that a treaty provision providing for "final' and "binding' judgments that "settl[e]' treaty based disputes is self executing insofar as the judgment in question concerns the meaning of an underlying treaty provision that is itself self executing."
"Why treat differently the parties' agreement to binding ICJ determination about, e.g., the proper interpretation of the Vienna Convention clauses containing the rights here at issue? Why not simply read the relevant Vienna Convention provisions as if (between the parties and in respect to the 51 individuals at issue) they contain words that encapsulate the ICJ's decision? See Art. 59 (ICJ decision has "binding force ... between the parties and in respect of [the] particular case'). Why would the ICJ judgment not bind in precisely the same way those words would bind if they appeared in the relevant Vienna Convention provisions"just as the ICJ says, for purposes of this case, that they do?"
"To put the same point differently: What sense would it make (1) to make a self executing promise and (2) to promise to accept as final an ICJ judgment interpreting that self executing promise, yet (3) to insist that the judgment itself is not self executing (i.e., that Congress must enact specific legislation to enforce it)? I am not aware of any satisfactory answer to these questions."
"It is no answer to point to the fact that in Sanchez Llamas v. Oregon, 548 U.S. 331 (2006), this Court interpreted the relevant Convention provisions differently from the ICJ in Avena. This Court's Sanchez Llamas interpretation binds our courts with respect to individuals whose rights were not espoused by a state party in Avena. Moreover, as the Court itself ... and the President recognizes, ... the question here is the very different question of applying the ICJ's Avena judgment to the very parties whose interests Mexico and the U.S. espoused in the ICJ Avena proceeding. It is in respect to these individuals that the U.S. has promised the ICJ decision will have binding force."
"We are instead confronted with the discrete question of Texas' obligation to comply with a binding judgment issued by a tribunal with undisputed jurisdiction to adjudicate the rights of the individuals named therein. "It is inherent in international adjudication that an international tribunal may reject one country's legal position in favor of another's"and the U.S. explicitly accepted this possibility when it ratified the [OP]. [Cite]." [Slip op. 38, 39]
"Fourth, the majority's very different approach has seriously negative practical implications. The U.S. has entered into at least 70 treaties that contain provisions for ICJ dispute settlement similar to the [OP] before us. Many of these treaties contain provisions similar to those this Court has previously found self executing"provisions that involve, for example, property rights, contract and commercial rights, trademarks, civil liability for personal injury, rights of foreign diplomats, taxation, domestic court jurisdiction, and so forth."
"I thus doubt that the majority is right when it says, "We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments.' In respect to the 70 treaties that currently refer disputes to the ICJ's binding adjudicatory authority, some multilateral, some bilateral, that is just what the majority has done."
"And as this Court's prior case law has avoided laying down bright line rules but instead has adopted a more complex approach, it seems unlikely that Congress will find it easy to develop legislative bright lines that pick out those provisions (addressed to the Judicial Branch) where self execution seems warranted. But, of course, it is not necessary for Congress to do so"at least not if one believes that this Court's Supremacy Clause cases already embody criteria likely to work reasonably well. It is those criteria that I would apply here."
"Fifth, other factors, related to the particular judgment here at issue, make that judgment well suited to direct judicial enforcement. The specific issue before the ICJ concerned review and reconsideration of the "possible prejudice' caused in each of the 51 affected cases by an arresting State's failure to provide the defendant with rights guaranteed by the Vienna Convention. [Cite]."
"Sixth, to find the U.S.'s treaty obligations self executing as applied to the ICJ judgment (and consequently to find that judgment enforceable) does not threaten constitutional conflict with other branches; it does not require us to engage in nonjudicial activity; and it does not require us to create a new cause of action. The only question before us concerns the application of the ICJ judgment as binding law applicable to the parties in a particular criminal proceeding that Texas law creates independently of the treaty."
"Seventh, neither the President nor Congress has expressed concern about direct judicial enforcement of the ICJ decision. To the contrary, the President favors enforcement of this judgment. Thus, insofar as foreign policy impact, the interrelation of treaty provisions, or any other matter within the President's special treaty, military, and foreign affairs responsibilities might prove relevant, such factors favor, rather than militate against, enforcement of the judgment before us."
"For these seven reasons, I would find that the U.S.' treaty obligation to comply with the ICJ judgment in Avena is enforceable in court in this case without further congressional action beyond Senate (sic) ratification of the relevant treaties. The majority reaches a different conclusion because it looks for the wrong thing (explicit textual expression about self execution) using the wrong standard (clarity) in the wrong place (the treaty language)."
"Hunting for what the text cannot contain, it takes a wrong turn. It threatens to deprive individuals, including businesses, property owners, testamentary beneficiaries, consular officials, and others, of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide. In a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction."
"Were the Court for a moment to shift the direction of its legal gaze, looking instead to the Supremacy Clause and to the extensive case law interpreting that Clause as applied to treaties, I believe it would reach a better supported, more felicitous conclusion. That approach, well embedded in Court case law, leads to the conclusion that the ICJ judgment before us is judicially enforceable without further legislative action."
"Thus, I would send this case back to the Texas courts, which must then apply the Avena judgment as binding law. See U.S. Const., Art. VI, cl. 2; see also, e.g., Dominguez v. State, 90 Tex. Crim. 92, 99, 234 S.W. 79, 83 (1921) (recognizing that treaties are "part of the supreme law of the land' and that "it is the duty of the courts of the state to take cognizance of, construe and give effect' to them)."
"It is difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law. Previously, this Court has said little about this question. It has held that the President has a fair amount of authority to make and to implement executive agreements, at least in respect to international claims settlement, and that this authority can require contrary state law to be set aside. See, e.g., United States v. Belmont, 301 U.S. 324, 326 327 (1937). It has made clear that principles of foreign sovereign immunity trump state law and that the Executive, operating without explicit legislative authority, can assert those principles in state court. [Cite]. See Ex parte Peru, 318 U.S. 578, 588 (1943)."
"It has also made clear that the Executive has inherent power to bring a lawsuit "to carry out treaty obligations.' Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 425, 426 (1925). But it has reserved judgment as to "the scope of the President's power to preempt state law pursuant to authority delegated by ... a ratified treaty'" a fact that helps to explain the majority's inability to find support in precedent for its own conclusions." [Slip op. 41, 42, 43]
"Given the Court's comparative lack of expertise in foreign affairs; given the importance of the Nation's foreign relations; given the difficulty of finding the proper constitutional balance among state and federal, executive and legislative, powers in such matters; and given the likely future importance of this Court's efforts to do so, I would very much hesitate before concluding that the Constitution implicitly sets forth broad prohibitions (or permissions) in this area."
"I would thus be content to leave the matter in the constitutional shade from which it has emerged. Given my view of this case, I need not answer the question. And I shall not try to do so. That silence, however, cannot be taken as agreement with the majority's Part III conclusion."
Finally, "[t]he majority's two holdings taken together produce practical anomalies. They unnecessarily complicate the President's foreign affairs task insofar as, for example, they increase the likelihood of Security Council Avena enforcement proceedings, of worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation's reputation abroad as a result of our failure to follow the "rule of law' principles that we preach. The holdings also encumber Congress with a task (postratification legislation) that, in respect to many decisions of international tribunals, it may not want and which it may find difficult to execute."
"At the same time, insofar as today's holdings make it more difficult to enforce the judgments of international tribunals, including technical non politically controversial judgments, those holdings weaken that rule of law for which our Constitution stands. [Cites]."
"These institutional considerations make it difficult to reconcile the majority's holdings with the workable Constitution that the Founders envisaged. They reinforce the importance, in practice and in principle, of asking Chief Justice Marshal's question: Does a treaty provision address the "Judicial' Branch rather than the "Political Branches' of Government. [Cite]. And they show the wisdom of the well established precedent that indicates that the answer to the question here is "yes.'" ... For the reasons set forth, I respectfully dissent." [Slip op. 44, 45].
Citation: Medellin v. Texas, 2008 WL 762533 (Sup. Ct. March 25, 2008).
USA visa and immigration information is available at www.immigrationtelevision.com.
|
