10 Oct More Medellin, or “How the Court Further Confuses the Self-Executing Treaty Doctrine”
For those who’ve not yet heard enough about Medellin, the transcript is now available here. I’ve only had time to give it a quick glance, but thought I’d pass on my initial reactions and open the door for other comments.
I guess what’s most interesting about the argument was what didn’t happen; although touched tangentially, the argument spent remarkably little time on the question of the President’s authority to order Texas to comply with the Avena judgment under his Foreign Affairs Power. That’s somewhat surprising, given my own suspicions that the decision should turn on that question (of course, it still might, given that the Supremes have, apparently with some frequency, heard arguments that avoid the central issue of their eventual decision).
Instead of Presidential power, treaty questions dominated the argument. Arguing for the petitioner Donald F. Donovan found it tough going in trying to establish the Court’s authority to enforce the Avena decision on the basis of the U.S. treaty obligations under the UN Charter and the Optional Protocol to the VCCR. Chief Justice Roberts, in particular, seemed hard pressed to understand how the Court could ever enforce an ICJ judgment that the Court had already said in Sanchez-LLamas wrongly interpreted the treaty in question (i.e., the VCCR).
In talking about the VCCR, the Optional Protocol and the UN Charter, there was also a surprising amount of talk about self-execution and non-self-execution. It certainly seemed that the Justices were aware of all the definitional difficulties that accompany those terms (thank you Carlos Vazquez). Still, I’m not sure the argument did anything to clarify what the 5th Circuit called the “most confounding” area in U.S. treaty law. For example, both Justice Scalia (p. 25) and Texas Attorney General Cruz (p. 69-70) seem to suggest a non-self executing treaty is, by definition, one where the judgement of how to comply is left up to Congress to decide whether to implement or not. But, that’s clearly wrong. Many times the United States joins a treaty that both the President and Senate qualify as non-self-executing, not because they want Congress to do anything new, but because they believe existing laws enacted by Congress already meet whatever obligations the United States will have under the treaty (I expect that to be the case, for example, with UNCLOS). In those cases, the non-self-executing character of the treaty is not a function of further congressional action, but of the Executive Branch’s own actions in deciding what the treaty requires and what U.S. law already does.
Justice Souter took a different tack on the non-self-execution argument, asking whether the Court could be the entity to “execute” the Treaty, rather than Congress (p. 69). It’s an interesting idea, although it seems to turn the original definition of non-self-execution articulated by Chief Justice Marhsall on its head (Marshall had suggested that a treaty is non-self-executing when it is addressed to the “political, not the judicial department”). If the Court can execute the treaty, it would seem to be self-executing at least in the original sense of that term.
There were also a few interesting exchanges on the question of the constitutionality of treaty provisions that commit the United States to binding dispute settlement, especially if those decisions were automatically enforceable. Justice Scalia seemed to view this as impinging on Article III, although he thought qualifying them as non-self executing (using his definition of the term) would solve the problem. Justice Breyer, in contrast, took a more prudential counter-position, noting that it might make hundreds of U.S. treaty provisions unconstitutional.
Speaking of Justice Breyer, I was intrigued by his attempt to simplify this case as a straight-up application of the Supremacy Clause:
JUSTICE BREYER: Maybe you could spend a minute explaining that, because, as I read the Constitution, it says all treaties made, or 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 — I guess it means including Texas
(Laughter.)
JUSTICE BREYER: — shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. Now, as I understand it, the United States entered into a treaty. That treaty said we will follow the interpretations and the judgments of the International Court of Justice in respect to the Vienna Convention. And that Court did make a judgment in that respect, in respect to this client, and it said: Our judgment is that Texas, or someone in the United States, must redo the procedural hearing simply to see whether, in deciding whether there’s prejudice or whether there’s a procedural default, full account is taken of the importance of the Vienna rights. That’s what we’re talking about. It’s a judgment of the court. The United States has promised to follow that judgment of the court. The Constitution says, since it promised by treaty, that is the law; and the law binds the States. That may be simple-minded, but I’d like to hear what the answer to that, rather, chain of logic is — chain of law.
Now, certainly, there are holes in that line of argument, particularly in terms of the substantive obligation that exists under the treaties at issue. But I also think it’s worth remembering (and this was something else the Court didn’t talk much about) that the reason treaties are in the Supremacy Clause, indeed one of the reasons we have a Constitution at all, was to force state courts into complying with U.S. treaty obligations. Under the Articles of Confederation, state courts frequently refused to enforce U.S. treaty obligations, causing many difficulties for the federal government. So, while I aprpeciate the debates over whether affirming the Presidential memo here would give the President too much power, I also think it’s important to consider the consequences of a Texas victory here as well. What legacy would such a decision have for this question of the federal government’s power, separate and apart from individual rights, to ensure compliance with U.S. treaty obligations? Would there be any purchase left to the Supremacy Clause?
Finally, I was struck by one of the arguments made by Texas’s Cruz: “of the 166 nations that signed on to the Vienna Convention and of the 50 nations that signed on to the Optional Protocol, zero–not a single nation–treats ICJ judgements as binding in their domestic courts.” It’s a bold statement, but I wonder what the research shows on this — does anyone know if a study has actually been done on this issue? I’d think that at least some ICJ judgements would be given direct legal effect in domestic courts that follow the monist tradition (particularly in some of the maritime delimination cases). But I’m just making an assumption given what I know about how other states interpret their treaties. Is there any data out there on this point?
Anyway, I’m sure there are a host of differing views on this case, so feel free to add yours in the comment chain.
For example, both Justice Scalia (p. 25) and Texas Attorney General Cruz (p. 69-70) seem to suggest a non-self executing treaty is, by definition, one where the judgement of how to comply is left up to Congress to decide whether to implement or not. But, that’s clearly wrong.
Not only is it wrong, but Scalia was the only Justice to embrace this nonsensical line of argument. It is worth noting that Cruz was a former Scalia clerk, and Scalia was probably just helping Cruz out.
Duncan, It seems to me that Cruz’s statement is somewhat of a red herring, if that’s the proper fish in English. First of all, no state other than the US has had a judgment of the ICJ on the VCCR directed against them in a contentious case, and only these judgments can be legally binding as a matter of international law, pursuant to Art. 59 of the ICJ Statute, which says that a ‘decision of the Court has no binding force except between the parties and in respect of that particular case.’ In all other cases ICJ judgments are ‘merely’ persuasive interpretative authority even at the international level. Consequently, a judgment of the ICJ which is not binding as a matter of international law cannot be binding as a matter of domestic law. Since Germany is not bound by the ICJ’s judgment in Avena, German courts are certainly not bound by the ICJ’s interpretation of the VCCR. So, my point is that it is impossible to make the claim that Cruz did, as there is no other state but the US which has an internationally binding judgment by the ICJ on the VCCR made against them. It is only if… Read more »
Actually, the Agreement Establishing the Caribbean Court of Justice states that “[j]udgments of the Court shall be legally binding precedents for parties in proceedings before the Court . . . .” And, the Preamble to the Charter of Fundamental Rights of the European Union which is incorporated into the Treaty Establishing a Constitution for Europe also makes the case law of the European Court of Justice and the European Court of Human Rights binding on all European Union members regardless of whether they were parties to the case from which the case law emanated. Although I think that Marko’s point is extremely important — conceptually speaking — because of the nature of judicial law making, the non liquet prohibition rule for international courts appropriately makes judicial precedents an important source of binding law for all states as a practical matter. The non liquet prohibition rule requires that international courts resolve interstate disputes that sometimes could otherewise erupt into armed conflicts if non liquet judgments were allowed because of an absence of applicable international law in the form of precedent. Furthermore, even conceptually speaking, observing case law has become more appropriate given the overlapping of international legal obligations and international adjudicative… Read more »
Argentina had a trouble a bit similar to the Medellin case.
The Inter-American Court rule that the killing of an student was an imprescptible offence to international law, and signed that this act will be prosecuted by national authorities.
The people involved were prosecuted, and the Supreme Court rendered an opinion in which stated that, although they respect the decision and will follow it, they do not like the rationale of the Court in teh Bulacio case.
I know that in the Bulacio case we are facing to a human rights court were individuals have partial personality, but I see that there are links to the Medellin case.
I’m writting from Latin America. When we study United States point of law in international law, we apprecciatte that the division between state and federal is elusive in international matters and that you are more involved into customary international law than treaties. [Although there are limits on the to customary law following Filartiga v. Peña-Irala].
Duncan, Interesting and very helpful post. I haven’t yet read the transcript, but the following caught my eye in your post: For example, both Justice Scalia (p. 25) and Texas Attorney General Cruz (p. 69-70) seem to suggest a non-self executing treaty is, by definition, one where the judgement of how to comply is left up to Congress to decide whether to implement or not. But, that’s clearly wrong. Many times the United States joins a treaty that both the President and Senate qualify as non-self-executing, not because they want Congress to do anything new, but because they believe existing laws enacted by Congress already meet whatever obligations the United States will have under the treaty (I expect that to be the case, for example, with UNCLOS). I don’t disagree with you at all. But to my way of thinking, the more common problem in using a conclusion that a treaty is NSE to mean “only Congress may decide whether and how to implement” is that it’s frequently used to connote only that it is not for private parties, via the judiciary, to decide. This leaves space for the executive branch — potentially — to decide, even in the absence… Read more »