Sanchez-Llamas and the Value of ICJ Judgments

Mark’s excellent article provides a thoughtful analysis of Sanchez-Llamas and the significance of that case for the question of deference to decisions of international tribunals. There is much to commend about this article. I particularly like his analysis of the risks and rewards of the dualist approach and his forceful argument that dualism strikes the appropriate balance of those risks and rewards. (pp. 90-96) He also has some great stuff on why the European model of deference to the ECJ and the European Court of Human Rights does not work for the United States (pp. 112-114).

Unlike Medellin, it is important to recognize that the Sanchez-Llamas petitioners who rely on the ICJ’s decision in Avena were not among the 51 nationals whose claims were espoused by Mexico in that case. As such, the case does not trigger questions about the direct enforcement of ICJ decisions by virtue of our treaty commitments. It appears from Mark’s article that had Sanchez-Llamas been a case like Medellin, then “the United States has an international obligation to comply with an ICJ judgment in a case to which it is a party.” (p. 88). In other words, if there is a federal mandate requiring that an ICJ decision have dispositional value, then apparently Mark believes it should have such effect.

The question raised by Sanchez-Llamas then, is what effect should a national court give to an ICJ decision on matters of treaty interpretation. Mark presents the choices as either “information” value or “disposition” value, with the majority in Sanchez-Llamas opting for the former, and the dissent choosing the latter. I think the choices are broader than that. I think the dispositional approach is most useful in those situations in which (1) there is either a federal mandate requiring domestic courts to give such effect to the international decision or (2) the United States is a party in the international litigation and the prevailing party seeks direct recognition and enforcement of the ICJ decision.

My sense is that Sanchez-Llamas falls into neither of those categories and therefore dispositional value is inappropriate. Thus, contrary to Mark’s discussion in his article (pp. 106-107), I don’t think the “foreign judgment” model fits the facts of Sanchez-Llamas. (Medellin is a harder question). But does that leave us with simply the option that the international decision has only informational value (what I have previously called the “Paquete Habana model” of deference)? I don’t think so.

There is a third way, suggested by Justice Ginsburg in her concurrence, that moderates between the majority and dissenting opinions. She recognized that under the last-in-time rule, a subsequent statute would supersede any inconsistent provision in the earlier Convention. Thus, whatever value one might give to the ICJ decision as to the meaning of the treaty obligation, a subsequent conflicting statute must be given appropriate effect. She then engaged in an independent analysis of the meaning of the federal “procedural default rule” statute and concluded that the Supreme Court could not give effect to Article 36 of the VCCR in light of that conflicting statute.

As I have suggested in a previous article, what the Court did in Breard (and arguably what Justice Ginsburg did in Sanchez-Llamas) was a Charming Betsy “step-one” analysis. Charming Betsy requires two steps: (1) can the subsequent statute and the earlier international obligation be reconciled; and (2) if so, interpret the statute in manner consistent with the international obligation. Because Justice Ginsburg could not overcome the first step, she did not need to address the second step.

Perhaps one could say this middle approach continues to give the Court complete discretion to interpret the meaning of the federal statute as it sees fit (i.e., the ICJ’s interpretation of the federal statute is only of informational value), but the Court should give presumptive value to the decisions of an international tribunal charged by the United States (and other signatories) with interpreting the meaning of the treaty obligation (i.e., the ICJ’s interpretation of the international treaty obligation is not dispositional as to the meaning of the treaty, but is given presumptive weight).

As Justice Scalia put it in Olympic Airways, “it is reasonable to impute to the parties [to a treaty] an intent that their respective courts strive to interpret the treaty consistently.” It is equally reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently with the interpretation given by the international tribunal charged by the parties with resolving disputes as to the meaning of the treaty.