A Response: Sanchez-Llamas and the Value of ICJ Judgments
I thank Roger for his thoughtful comments. Roger himself has written a seminal article in this area, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675 (2003), and I’m grateful for his kind words about my work.
Let me try to address his points. First, I agree that Medellin addresses a narrower issue from Sanchez-Llamas: the enforcement of ICJ judgments rather than their precedential effect. As Roger says, the “foreign judgments” model fits Medellin better than it does Sanchez-Llamas. Because enforcing a judgment does not create systemic effects within a domestic regime, it is less problematic than granting a judgment precedential effect. I also agree that the US has an international-law obligation to comply with Avena under the Optional Protocol and the UN Charter. But if you accept dualism as the most plausible approach to ICJ judgments – as I do, for the reasons I explain in my piece – you have to ask another question. Is there a domestic-law obligation to enforce Avena? I’m not so sure that the treaties create such an obligation. (The President’s memorandum may do so, but I don’t understand Roger to be asking about that). You have to interpret treaties, like contracts, fairly and consistently with the background assumptions of the parties, and neither the Optional Protocol nor the UN Charter indicates that states were contemplating domestic-court enforcement when they signed on. Contrast, for example, the New York Convention on international commercial arbitration, which clearly contemplates domestic judicial enforcement of international arbitral awards.
Second, on Justice Ginsburg’s “middle way,” I don’t read her dissent quite the way Roger does. Justice Ginsburg’s point was not that a subsequent federal statute superseded the VCCR, but that there was no conflict between the ICJ’s judgment and US law in this case. According to Ginsburg, Avena barred a state from applying a procedural default rule only where the state’s actions themselves had precluded the defendant from raising his VCCR claims at trial. That was not the situation in Sanchez-Llamas – Oregon had done nothing to prevent the defendant from raising his VCCR claims at trial. So Oregon’s application of its procedural default rule did not violate the treaty, as the ICJ had interpreted the treaty. I think this was step-two, rather than step-one, under Roger’s analysis of Charming Betsy.
Finally, I do recognize that the Court has stated that the opinions of foreign courts are entitled to “considerable weight” in treaty interpretation. Perhaps, as the quote from Justice Scalia suggests, these statements mean that there’s a presumption in favor of deferring to foreign courts. But, as I discuss in the article, the Court does not always act as though such a presumption exists. Sometimes it defers to foreign-court interpretations and sometimes it does not. One could explain the Court’s decisions in dualist terms: the Court adopts the reasoning of foreign courts when it believes there are good reasons for doing so – promoting uniformity, for example – but goes its own way when it believes those reasons are lacking.
I hope to develop these points in a paper I’m presenting at a conference at Duke next semester. For now, I’d like to thank Roger again for his careful reading and his OJ colleagues for this fun blogging opportunity.