Even More on the Domestic Enforcement of ICJ Judgments: Summary and Analysis of the Briefs for the Respondent

Warning: this is a rather long post summarizing the various arguments raised by all the three briefs filed yesterday in Medellin , with my comments and thoughts (for what they are worth). Although this post is long, it still beats reading all three briefs, links to which can be found here, here, and here (Hello? Supreme Court Clerks assigned to bench memos for Medellin? Over here!)

Just as a reminder, the case is about a Mexican habeas petitioner who was arrested and convicted without receiving his consular notification rights under the Vienna Convention on Consular Relations. The International Court of Justice ruled, in a case brought by Mexico, that such Mexican nationals have a right to review and reconsideration of their convictions and sentences. He filed a petition in federal court seeking habeas review.

Here are the main arguments:

(1) The Anti-Terrorism and Effective Death Penalty Act (AEDPA), the federal statute regulating federal court jurisdiction for habeas corpus petitions, does not grant jurisdiction for review of the petitioner’s attempt to enforce the ICJ judgment.

There are a number of reasons why this is the case, the most important one (as all three briefs point out) is that the petitioner Medellin is bringing a claim that his treaty rights were violated whereas the appellate jurisdiction of the federal courts under AEDPA is limited to review of a denial of “constitutional claims.”

There is a larger principle at stake in this technical discussion. Does a federal statute supersede or modify an earlier enacted treaty? The answer under U.S. law is a resounding yes (as I explain exhaustively here). If the statute means what Texas, the U.S. and the Seven Law Professors says it means, then the federal statute prevents Medellin from seeking federal appellate court review of his treaty-based claim. It doesn’t mean, as all three briefs point out, that there is no significance to having a treaty-based right, but it just means that Congress has the right to limit or control how such treaty rights will be reviewed in habeas. After all, it is well settled that Congress can limit the ability of petitioners to seek review of other federal statutory or even constitutional rights, so it is not surprising that Congress can limit the review of treaty-based rights.

(2) The Vienna Convention on Consular Relations does not grant the petitioner a judicially enforceable right.

All three briefs talk about this issue, although most heavily emphasized by the U.S. and Texas. The basic point is this: Even though the Vienna Convention is a self-executing treaty, this does not mean it creates judicially enforceable private rights of action. In other words, not all treaties create rights for individuals to enforce their provisions in domestic courts. As the U.S. Brief explains, the Vienna Convention is “self-executing” in the sense that federal and state government officials already hold the power (without additional legislation from Congress) to enforce the treaty’s terms. No judicial enforcement by private individuals is necessarily required or permitted.

(3) The Optional Protocol granting jurisdiction to the ICJ to interpret the Vienna Convention does not grant ICJ judgments the status as domestically enforceable law.

This is an argument emphasized by the Law Professors’ Brief and the U.S. Brief. And I believe it is the most interesting one.

Both briefs argue that the U.S. government did not, when it agreed to grant the ICJ “compulsory jurisdiction” over Vienna Convention disputes, grant the ICJ the power to create enforceable judgments that bind domestic federal and state courts. The Law Professors’ Brief points out that the terms of the Optional Protocol only grants jurisdiction to resolve disputes between “parties” , that is to say, governments and not individuals. The U.S. further argues that the source of authority to carry out judgments of the ICJ lies in the UN Charter and with the U.S. government’s political branches only. It is here that I think the LawProf Brief usefully adds an important argument. If, as the petitioner argues, the ICJ judgments are directly enforceable in domestic federal and state courts, then I (and the co-signers of the LawProf brief) think serious constitutional problems are created.

The ICJ essentially becomes a part of the U.S. judicial branch because it can directly order U.S. courts to reverse their judgments. I, and others, have called this a delegation, and a potentially excessive one, to an international institution otherwise unaccountable to the U.S. individuals to which their judgments would apply.

Marty Lederman is unconvinced by this argument citing in the main to cases discussing the ability of Congress to assimilate foreign law by statute and suggesting the LawProf Brief conceded this point. Actually, we did not concede this point and I don’t read the cases to have resolved this question already. But suppose he is right: if Congress can delegate to a foreign government the authority to make or interpret domestic law by statute, why can’t they do it by treaty?

I have a two part response:

(a) When Congress assimilates foreign law by statute, this is also a delegation, albeit one might be found constitutional. But it is a delegation and courts must analyze whether or not the delegation was excessive. Generally, such delegations will pass the test, but the point is that the delegation question needs to be asked.

(b) The delegation question needs to be asked precisely in cases like this one, where the treaty doesn’t have any language as clear and specific as the language in congressional statutes assimilating foreign law upon which lederman relies. The delegation question forces Congress or the treaty makers to plainly spell out the fact that they are delegating authority, and what limits or standards they will place on such delegations. The usual way they do this in the treaty context is through a subsequently enacted statute spelling out how and whether a domestic court should enforce a foreign or international court judgment. It matter more in the instance of an international delegation because of the stronger presumption that the conduct of relations with foreign countires and international institutions will be controlled by the political branches and not the courts.

Additionally, such authority may also threaten the autonomy of the state governments because any ICJ judgments would presumably preempt their laws.

Overall, these are difficult and fundamental questions about the status of international tribunals within or above the U.S. judicial system. All of these difficult questions can be avoided if the Court simply refuses to consider the ICJ judgment as self-executing.

(4) Contrary to Petitioner’s and amici’s claims otherwise, enforcing the ICJ judgment directly here would depart from both U.S. and international practice.

Here is what turns out to be the main contribution of the Law Professors’ Brief. The U.S. does allow domestic enforcement of many international court judgments, but such enforcement has always been specifically authorized by Congress.

Moreover, our treaty partners in the ICJ, other foreign countries, do not directly enforce, through their judicial branches, judgments of the International Court of Justice. There is NO evidence anywhere of a reported judgment where an ICJ judgment was given direct effect.

There is an important principle at stake here as well. Congress might want to control how an international court judgment is enforced, what standards a court should use in considering how to enforce that international court judgment, etc. They might want “full faith and credit” (meaning no review) or they might want lots of judicial review of the international court judgment. But Congress gets to bind the court, not the international court itself nor the treaty. In theory, a treaty might directly order U.S. court to enforce its judgments, but any such treaty would have to make such an order to the courts crystal clear. No such clarity can be claimed here.

Additionally, it would be odd for the Court to adopt a rule directly enforcing ICJ judgments when none of the U.S.’s treaty partners do so. It is unclear that any comity is being provided to the treaty partners, whom would not provide any reciprocal treatment (Our brief further points out that one of the amicus briefs for the petitioner, filed by Prof. Damrosch of Columbia Law mistakenly claims that Belgium does directly enforce ICJ judgments).

(5) The Executive Branch has the inherent and exclusive power to enforce the ICJ judgment.

This is the biggest surprise of the briefing. The U.S., via Pres. Bush, has issued an executive order requiring state courts to give domestic effect to ICJ judgments.

My own view has been that the President should request states to defer to an ICJ judgment and that the states should listen. This has been the past practice when foreign governments made diplomatic protests on behalf of their nationals. The U.S. Brief goes one step farther and orders the state courts to carry out the ICJ’s order. Any inconsistent state law is preempted by the Executive Order. The Executive Order is based on the UN Charter’s imposition of a duty on the U.S. to carry out ICJ orders and the Executive’s inherent authority to manage foreign affairs.

I am not thrilled with this approach, because it opens the door to lots of executive orders telling the states to do things because of foreign affairs (as Brannon Denning and Mike Ramsey pointed out here). On the other hand, I do see its advantages, especially if the alternative is having the U.S. Supreme Court order the states to do the ICJ’s bidding.

What is at stake here is whether foreign relations will be controlled by the political branches (e.g. the President and/or Congress) or the federal courts. Historical practice, as well as functional competence (this is the main point of my piece with John Yoo here), strongly suggests this power should be held by the political branches.

On the other hand, whether the President can do this sort of thing alone, where his actions require the preemption of state law, is quite another matter. I suppose Congress could always override his actions, but this doesn’t really solve the federalism problem. What is the federalism problem?

Well, why can’t the President claim all sorts of foreign affairs concerns require him to issue executive orders to preempt state law? The U.S. government brief here carefully ties much of its authority to the UN Charter (a treaty of the U.S.) but it also claims a broad inherent power. Is there any limit imposed by federalism on the President’s foreign affairs powers? I think there must be some limit but I have suggested in the past that no President wanted to explore that limit. Yesterday, President Bush began to explore that limit and we will have to see (back in Texas I presume) how far he (and the courts) are willing to go.

Bottom line: the Executive Branch has taken responsibility, as it should, for the enforcement of its international legal obligation to comply with the ICJ’s judgment. This should satisfy all parties concerned (even Texas, who can now say, the President made us do it). I don’t think they needed to make an executive order (or whatever it is, some controlling executive act) but this is not the worst option (the worst option being having the Supreme Court do this). If I were Medellin’s lawyers, I would declare victory and quit the field. Your client will almost certainly get his hearing (although he will probably still lose and face execution).

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Whew! If you made it all the way to the end of this post, congratulations!! I barely made it myself.