28 Jun U.S. Supreme Court to ICJ – You’re Wrong, Wrong, Wrong!
OK, maybe that is overstating the majority opinion’s holding today, in Sanchez-Llamas/Bustillo, but not by much. In an opinion authored by Chief Justice Roberts, the Court rejected attempts by alien criminal defendants to invoke the Vienna Convention on Consular Relations (VCCR) to either suppress evidence against them during a trial, or to challenge their conviction in post-trial hearings.
The Court dodged what I called the “self-executing treaty puzzle” by failing to decide whether or not the VCCR actually creates individual rights. But (at least from my perspective), the Court did reach the important question of whether and how to give effect to ICJ interpretations of treaties. Indeed, based on my reading, there is very little support on this court for the classic internationalist view (reflected in the brief of leading international law scholars) that ICJ interpretations are binding on U.S. courts. Chief Justice Roberts emphatically rejected this view (and the international law scholars’ brief):
Bustillo asserts that since Breard, the ICJ’s LaGrand and Avena decisions have interpreted the Convention to preclude the application of procedural default rules to Article 36 claims. Although the ICJ’s interpretation deserves “respectful consideration,” Breard, supra, at 375, it does not compel the Court to reconsider Breard’s understanding of the Convention. “The judicial Power of the United States” is “vested in one supreme Court . . . and . . . inferior courts.” U. S. Const., Art. III, §1. That “power . . . extend[s] to . . . treaties,” Art. III, §2, and includes the duty “to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177. If treaties are to be given effect as federal law, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one supreme Court.” Ibid. Nothing in the ICJ’s structure or purpose suggests that its interpretations were intended to be binding on U. S. courts. Justice Roberts goes on to find that the ICJ’s interpretation of the VCCR is simply wrong.
The dissent, written by Justice Breyer, also refused to endorse this view, and “assumed that the ICJ decisions are not binding.” Instead, the dissent argued that “respectful consideration” should have required the Court to give deference to the ICJ here and spends lots of ink pointing out that the ICJ has often been cited by U.S. Courts and the Supreme Court.
There are other issues here, but this is, to me, the most interesting holding. ICJ decisions do NOT have binding force. When the ICJ is wrong (as the Court held here), the Supreme Court is free to reject their decisions.
I’ll blog more later, but to sum up my initial take: Liberal internationalist lawyers, and the International Court of Justice, lost big today.
This is a refutation of a straw man, isn’t it, Julian? As far as I know, “liberal internationalist lawyers” have <i>not</i> argued that the ICJ’s judgments <i>automatically</i> trump the interpretations of federal courts, regardless of whether the U.S. has consented to such binding effect. They argued instead that (i) the U.S. <i>agreed</i>, by virtue of the Optional Protocol, to conform its practices to ICJ judgments, and (ii) the President’s withdrawal from the OP did not affect this treaty obligation. Here’s how the ICJ experts brief (cited and specifically rejected by the Court) put the point: “The United States freely <i>agreed</i> to the compulsory jurisdiction of the ICJ to resolve Vienna Convention disputes, <i>and thus voluntarily accepted an obligation to give effect to the ICJ’s interpretation resulting from the dispute settlement procedure</i>. The basis for ICJ compulsory jurisdiction is Article I of the Optional Protocol.” And “Withdrawal from the Optional Protocol does not affect the U.S. obligation to abide by the Vienna Convention as interpreted in LaGrand and Avena.” The argument, in other words, was simply that the U.S. had a <i>treaty obligation</i> to conform its conduct to ICJ judgments — not that the ICJ’s interpretations somehow of their own accord… Read more »
What a flamboyant title – and what an equally excited conclusion: “ICJ decisions do NOT have binding force. When the ICJ is wrong (as the Court held here), the Supreme Court is free to reject their decisions. … Liberal internationalist lawyers, and the International Court of Justice, lost big today.” My enormous distaste for the state of extreme politicization and ideological polarization of the legal profession in the United States notwithstanding, I really, really don’t think the ICJ is looking to the US Supreme Court for external validation, as it quite frankly has much better things to do. The people who lost in this case are Sanchez-Llamas, Bustillo and others like them, not the ICJ. The ICJ’s decisions have binding force only in the concrete case in which they are delivered, and have it only between the parties of that particular case (see Article 59 of the ICJ Statute). There has never been a formal doctrine of judicial precedent in international law. No one was arguing there was one. What IS binding on the US is the VCCR, and the ICJ’s judgments were an interpretation of that treaty. The ICJ’s judgments are not gospel and their authority can be questioned… Read more »
I have not read Prof. Vazquez’s paper regarding Mirand, but I think the court’s analogy to Miranda was appropriate to illustrate the importance of the question of remedy. Whether or not following the ICJ was the “wise and proper thing to do in this case” as Marko suggests I think belies the question of whether the ICJ was actually giving any concrete directions. “Review and reconsideration” was not very clearly delineated in either LaGrand or Avena but, by being vague, the ICJ respected the sovereignty of the US and other parties to the treaty. But rejecting procedural default seems to be an error that in some ways stems from the ICJ’s misunderstanding of our criminal justice system. Procedural default is rooted in federalism; federal courts will not hear claims that state courts have already deemed not appropriate to hear. Otherwise, you would have federal courts second-guessing state courts on questions that usually involve state law. Thus, the federal courts find that there is no rememdy not because they are unfair or harsh but because they respect the states’ decision that no further remedy should be available to petitioners. The ICJ’s decisions did not seem to pick up on this nuance… Read more »
I don’t believe that the ICJ in LaGrand or Avena either misunderstood the adversarial nature of the American system of criminal justice, as Chief Justice Roberts states in his opinion, or its federalist nature, as Aaron claims in his post.
The main holdings in both LaGrand and Avena were delivered with only one dissenting vote, that of Judges Oda and Parra-Aranguren respectively, and these judges dissented for mainly procedural reasons. There are common lawyers sitting on the Court, like now President Higgins or Judge Buergenthal, who are quite capable of providing their fellow civilian judges any information on the adversarial process.
The ICJ’s principal holding was very simple: the United States cannot prevent a foreign national from invoking his Article 36 VCCR rights if that foreign national was not informed by the United States authorities that he actually had those rights. The ICJ did not and cannot care about the federal structure of the US, as it is the US which is the sole subject of international law, not its member states. The appropriate remedies are also a matter for the US authorities, but they must provide one.
Marko,
I couldn’t possibly agree more. International law generally does not care one jot for domestic law, so the ICJ is simply not in the business of understanding US law.
More on that, and a few other issues relating to the binding force of ICJ decisions under the Charter and otherwise, at my own blog here.
I think I was perhaps unclear in my comment. As Marko says, the remedy is a matter for US authorities (courts?) and they must provide one. The problem with the remedy, and I still think the ICJ missed this nuance, is that FEDERAL courts don’t feel they can provide a remedy once state courts say there isn’t one available any longer.
This tension is clear after the SCOTUS’s decision in Medellin, which I and Brandon Reavis wrote on here. The Court deferred to Texas, not because it didn’t think the ICJ’s opinions were binding authority, but because it did not feel that federal courts could interfere with what was a state issue.
This goes much deeper than simply saying the supremecy clause controls – states have the power to expand rights under their own constitutions that the federal constitution does not. They also have expanded rights under federal doctrines like Miranda where the SCOTUS has withdrawn (but this is much more rare). The point is, this is so much more complicated than simply saying the ICJ’s decision controls and the SCOTUS needs to respect it, full stop.