Not to distract from the Hamdan case (and note Peter’s and Geoff’s useful comments below), on which I have plenty to say (but not just now), I am pleased to share with Opinio Juris readers the thoughts of Professor Paul Stephan of UVA Law School, who submitted an amicus brief in favor of Virginia and Oregon in Sanchez-Llamas/Bustillo, the ICJ case the Court released yesterday. Professor Stephan posted these thoughts on an international law in domestic courts listserve and I republish them below (also, check out Professor Stephan’s important observation about Hamdan at the end of his comments) (Updated with a correction I mistakenly left off).
It will surprise no one on this list to know that I am pleased and impressed with Chief Justice Roberts’s opinion for the Court and somewhat bemused by Justice Breyer’s dissent. The Court grounds its understanding of the relationship between the Supreme Court and the ICJ on Article III of the Constitution, which it understands as bestowing on the Court the ultimate responsibility for interpreting federal law. The opinion indicates that the majority takes this responsibility seriously, and exercises it by reviewing the decisions of the ICJ in LaGrand and Avena as it would any other respected but subordinate court. This approach does not accord with the polyarchic model of the international order that some German theorists and their New World followers celebrate, but it strikes me as a sound, indeed unavoidable account of the domestic legal ordering. The dissent (which, if O’Connor had remained on the Court, might well have been the majority) does not disagree with the principle but seeks to subvert it in practice by combining aggressive deference to the ICJ with a strained interpretation of LaGrand and Avena. What I find most puzzling in the dissent is the assertion that the ICJ would have regarded as acceptable a conversion of Vienna Convention claims into ineffective assistance arguments. If allowing the claimant to make an ineffective assistance argument would satisfy US obligations under LaGrand and Avena, in what way did Oregon and Virginia dishonor this obligation? Is there any evidence that either state would foreclose an ineffective assistance argument grounded on counsel’s failure to make a timely assertion of the Vienna Convention claim? Didn’t the Virginia courts consider this argument on the merits? On the issue that four Justices addressed but the Court did not, I note that Breyer’s interpretation of the Head Money cases seems eerily similar to J.I. Case v. Borak. Is there still time for a majority to embrace the argument that judicial enforcement of treaties on behalf of private persons (whatever the reason for their participation in judicial proceedings) should involve the same analytical process as that applicable to legislation?
In general, Breyer’s opinion strikes me as a wonderful example of diplomacy but very poor law. Soothe the Europeans and the ICJ by sending the case back for review but order the lower courts to apply a standard that already has been met, giving lip service to the hierarchical priority of national law but bend over backward to please the outside world. The problem is that the lower courts are left without workable standards to determine what it takes to “give effect” to Vienna Convention rights.
Finally, I note that in Hamdan at least Kennedy (the crucial fifth vote) seems to regard the Geneva Conventions as applicable due to legislative incorporation and not as of their own force. So the issue of whether self execution equates with direct effect, and if so what direct effect means, remains open.
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