Texas Wins Medellin

by Marty Lederman

Six to three. The decision is here. My very quick and preliminary reaction, after having read only a bit of the opinion, is that the presidential power question is not the most important aspect of the opinion. That would be, instead, the Court’s interpretation of Article 94 of the U.N. Charter as merely imposing a future obligation on the U.S. federal political branches to do something to comply with its requirement — and not to impose any independent obligation on the United States, including Texas, to actually take steps to comply with an ICJ judgment. This strikes me as an implausible interpretation, and as potentially very troubling for construction of treaty obligations going forward.

The article reads that the U.S. “undertakes to comply with with the decision of the [ICJ] in any case to which it is a party.”

The Court reads this obligation not to actually require the United States and its component parts to, uh, actually comply with an ICJ decision. Indeed, it apparently permits Texas (part of the U.S., last time I checked) to intentionally refuse to comply with such a decision.

What will this sort of treaty interpretation portend for, say, article 16 of the CAT, which provides that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment”?” Apparently, that no longer means we are forbidden from intentionally inflicting such treatment on detainees — or so the Chief Justice reasons.


13 Responses

  1. From reading the opinion, it appears that no treaty constructed in such a way is self-enforcing. I’d think this is a pretty big development in IL regarding the United States.

  2. Marty,

    I think your quick and preliminary reaction missed a couple of key indications that you jumped to the wrong conclusion.

    First, on p. 8, the Ct says “No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States.” Note that the Ct says the Avena decision is itself the obligation, not the obligation to do something to comply with that decision.

    Second, on p. 11, the Ct says “The obligation on the part of signatory nations to comply with ICJ judgments derives not from the Optional Protocol, but rather from Article 94 of the United Nations Charter—the provision that specifically addresses the effect of ICJ decisions.” Again, the Ct says that Article 94 requires the US to comply with the judgment, not just to try to comply somehow.

    Third, JPS’s concurrence made crystal clear that he thinks that the US and TX still have an int’l law obligation to follow Avena. Surely he would have mentioned it if the Ct held or even suggested otherwise (not to mention that SGB would have gone apopleptic).

    In short, I think you overread the Ct’s discussion of the “undertake to comply” language of Art. 94. The Ct highlights that language for the limited purpose of arguing that ICJ judgments don’t take immediate legal effect in domestic court, i.e., that they’re not self-executing. You can agree or disagree with the inference they draw from that language (and other indicia upon which they rely), but I don’t think anyone could read the opinion as a whole to be suggesting that the Ct thinks the US complied w/ its Art 94 int’l law obligation simply by trying to get TX to yield. I just think the Chief didn’t feel like emphasizing the fact that the result of his holding is that the US remains in breach of its int’l law obligation, as JPS’s concurrence does emphasize.

  3. Well, Too Quick (and there’s really no need for anonymity here), if the U.S. is in breach of a treaty obligation — not merely an international obligation, but the “Supreme Law of the Land” per article VI — then it was Texas’s decision to ignore the ICJ judgment that placed the U.S. in breach. What gives Texas the authority to cause the U.S. to breach its treaty obligation? Isn’t Texas bound to at least “undertake” to comply with the ICJ judgment by virtue of the Supremacy Clause?

  4. I think that Marty is perfectly correct when he criticizes Chief Justice Roberts’ analysis of the words ‘undertake to comply’ in Art. 94 of the Charter, at pp. 10-11 slip op. I honestly don’t see what would change if the words ‘must comply’ or ‘shall comply’ were used. The word ‘undertake’ is frequently used in treaties to denote the creation of binding legal obligations. It is not a mere promise to do something in the future – at least insofar any treaty is a promise to do something in the future.

  5. Does anyone here know if “We agree” in footnote 13 of CJ Roberts’ majority opinion constitutes a legal ruling?

  6. I think Too Quick is on the right track. The issue is whether the Art. 94 obligation to “undertake to comply” is self-executing. If it’s not, then Texas has no obligation under federal law to comply with the judgment. The United States, however, may have an obligation to comply vis a vis its obligations to other states. We then get to the executive power question, which I think the Court answered correctly. If the US wants to be in compliance with it’s obligations to other states under the judgment, it still needs to act within constitutional bounds.

    I think the Court is allowing that a breach of international law exists. But that doesn’t suddenly make the judgment enforceable in the US.

  7. If the US wants to be in compliance with it’s obligations to other states under the judgment, it still needs to act within constitutional bounds.

    Isn’t the problem here that this is question-begging? The case is deciding the constitutional bounds, but doesn’t really explain why it draws the line where it does, it just draws a line.

  8. Well, if the court not determining exactly where the line is between executive and legislative power is question-begging, the Court has a long tradition of it. Much like Youngstown and Hamdan, the court declines to say where the line is, and simply decides that the president’s action in the present circumstances is on the wrong side of it.

    As his lawyer pointed out, there’s an easy solution to Mr. Medellin’s issue: get congress to pass a bill recognizing that we have an international obligation to review and reconsider the convictions of the Mexican nationals at issue in Avena.

  9. I readily agree with Marty Lederman and Marko Milanovic, but I feel the Court may basically be right. It just has gone further than it needed to go, and in so doing has fallen into error.

    First, my agreement with Messrs Lederman and Milanovic: the phrase ‘undertake to comply’ certainly is not directed exclusively to the government, or the ‘political branches’, as the Court would have it.

    The Court’s argument falls to the ground, I believe, as soon as the phrase ‘member[] of the United Nations’ is understood as referring to the State as the one entity, comprising all its organs, that it is in international law. The Charter does not conceive of the governments, or any ‘political branches’, as members of the UN. A State is a member, and under the principle of the ‘unity of the State’, that State, for present purposes, is only the United States of America. No federal or other organisational subdivisions even begin to count. [See also EJIL 17 (2006), 349, 352]

    This failure to grasp the international legal meaning of the word ‘State’ (or ‘member of the United Nations’) is a common misunderstanding that often plagues international law in domestic courts, but which is no less intellectually disappointing for that. Admittedly, it is counterintuitive for domestic lawyers to think of any ‘bailiff or tipstaff’ as ‘the State’ in any sense of the word (cf. e.g. Propend Finance Pty Ltd v. Sing (1997) 111 ILR 611), but the very autonomy of international law dictates as much.

    Now, if Article 94(1) of the Charter is understood as saying that every organ of the State ‘undertake[s] to comply’ (or, more precisely, that the State as one entity does so, and that every failure by any organ to comply engages the responsibility of the State), it can no longer be said that the Charter only conceives of action by the political branches. Nor, and there I agree with Marko in particular, is there room for any distinction between ‘undertakes to’ and ‘shall’. If the ‘member[] of the United Nations’ is only the government, it is about plausible that an ‘undertaking’ is not a promise of immediate action in compliance; governments and ‘political branches’ clearly can act at the political level, for instance in enacting implementing legislation. If, however, the obligation applies more broadly and affects all organs, then the force of the argument is greatly diminished.

    So, I don’t think Article 94(1) of the Charter is downright incapable of having ‘self-executing’ effect. It certainly is not addressed only to Congress. In fact, it has no concept of ‘Congress’, or any aspects of the division of powers.

    But that, as such, does not mean that Article 94(1) of the Charter must be self-executing. That, like the question of the division of powers, is a matter usually left outside the purview of international law. International law is concerned with the result, not with the way the result is brought about. Thus, even if an obligation may be violated by any State organ, that does not mean that the obligation must be part of domestic law. It must be complied with; that’s it.

    The only question, then, is whether US law voluntarily allows treaty law into domestic law. I think the question posed by the Court in this regard is about right.

    As I have tried to explain, I don’t think it’s an answer to point to the ‘undertakes to comply’ bit in the article, or to the phrase ‘member of the United Nations’ (which reference may be implicit in the invocation of the first phrase – see above). Both are standard concepts in international law, which don’t go one way or the other.

    On the other hand, I am more impressed by the arguments drawn from Article 94(2) of the Charter and from the practice of other States (the Socobel case, etc.). Mind you, the other States might be as wrong as the Supreme Court (or have considered more complex PCIJ/ICJ cases in which the Court’s order is less easily executed without more). Also, the fact that the Charter only provides for political avenues of ‘execution’ of ICJ judgments needn’t mean that individual States shouldn’t freely allow legal avenues in addition to that (particularly where individual interests have been raised at the inter-State level).

    I’m not sure where I would come down on this.

    But two other arguments advanced by the Court also seem less than cogent:

    – Article 59: true, Medellín is not a party to the ICJ case, and so the judgment is not binding between him and the US. But Medellín still might have a right to vindicate the claim of Mexico. In other words, the obligation owed to Mexico may extend to cover Medellín’s interests as a third person.

    – The Court also does not think highly of the prospect that ICJ judgments might be unquestionable. So they should. That’s what res judicata is for. We’re talking of the settlement of the dispute here, not of any law of precedent. There must be finality in litigation, even if the ‘reasoning and result’ of a final judgment is quite wrong. If the Court distrusts the ICJ in preferring to have some power of review, I fail to see how it can trust foreign courts and more commercially-minded international fora to deliver final rulings – political misgivings of the Supreme Court aside…

  10. ‘Political misgivings’ may be a bit harsh, given the explanation tendered by the Court. Of course, the Court has said that ‘judgments of foreign courts awarding injunctive relief, even as to private parties, let alone sovereign States, are not generally

    entitled to enforcement,’ and has seen that as counselling against the enforcement of ICJ judgments.

    I’m still not buying that, though.

    As I see it, the rule precluding enforcement of foreign injunctive relief rests on the lack of jurisdiction (in the sense of ‘jurisdiction to enforce’) in the foreign State to take any action in the recognizing (or rather, not recognizing) State. The rule is related to, and based on the same principle as, the one precluding the application of foreign public and revenue laws. (See for an explanation of that latter principle, with extensive reference to international law, Mbasogo v. Logo Ltd [2006] EWCA Civ 1370, [2007] 2 WLR 1062, paras. 32, 36, 41-42.)

    ICJ cases are of another order entirely. There is no question of a lack of jurisdiction in any State. Nor could the Court be without jurisdiction, as it depends on the consent of the parties before it (which has been given in Avena, and on the existence of which the Court can finally decide under Article 36(6) of its Statute).

  11. Tobias-

    I think the analogy with injunctive relief in the commercial context may be apt. Nothing grants jursidiction to the ICJ to enforce, only to rule. Enforcement beyond voluntary compliance, should it be called for, is left at most to the Security Council, an expressly political organ. I do not think that it is as clear as you would like to make it that the ICJ, even when it has jursidiction, has jurisdiction within a state, only that it has jurisdiction over the relations of the state. Thus, the ICJ can determine that the US has breached it’s treaty obligations, and can even note what the US needs to do in order to be in compliance with its treaty obligations. But that is not the same as saying that under international law the ICJ has the power to order the organs of a state to behave, and that such an order has an independent basis in law separate from whatever effect it is given by the laws of the state itself.

    I am currently writing an article along similar lines, comparing the Breard/Avena/Sanchez-Llamas/Medellin set of cases with Mitsubishi Motors and international third party arbitration in the commercial context. You can read more of my take here.

  12. Dave-

    That’s a good point. Thank you. I shall have to refine my argument.

    My argument proceeds from the basis of the rule against the recognition of foreign injunctive relief. That basis, so I believe on the grounds of English authority (more on that in a PS below), is in general international law: if a foreign court enjoins certain conduct in Texas, then the state to which that court belongs exceeds its authority. The state just does not have ‘jurisdiction to enforce’ outside its own territory. (note that this is ‘jurisdiction to enforce‘ in the sense of the distinction between ‘jurisdiction to prescribe’ and ‘to enforce’ in general international law; ‘enforcement’ in that sense isn’t necessarily the enforcement of a judgment) The courts of the state whose territorial sovereignty is prejudiced by the foreign injunction of action within its territory will not tolerate, allow or otherwise give their imprimatur to such an arrogation of authority on the part of a foreign court.

    You are quite right to say that the ICJ does not have jurisdiction within a state. It cannot directly affect federal law, nor the law of Texas. That is because, simply put, international law has no knowledge of anything within a state; there is no state of Texas, at least for present purposes of international law. There is only the USA.

    The Court can and does, however, impose an obligation on the USA, in international law, to comply with its judgment. Foreign courts don’t do that. I therefore don’t see a policy reason parallel to that applying in the inter-state context for US courts to deny recognition to ICJ judgments.

    I should say that I haven’t had time to read more of your take on the matter just yet. I will do so later, and come back here if necessary.

    PS: I have cited only English authority for my understanding of the rule of non-recognition in inter-state cases. That is largely because I don’t know enough about US law. But I also incline to think that the English line of authority is old, basic and international enough to ‘count’ in some way (the line goes back to Emperor of Austria v. Day and Kossuth (1861) 3 De G F &J 217).

  13. Dave,

    I have now read your posts on Medellín. I agree with your point about the Supreme Court appearing to deny Mitsubishi powers of creating res judicata to the ICJ, but I feel the same reluctance has surfaced in Medellín. I am referring, as I was in the final paragraph of my first post above, to the passage where the Supreme Court says that Medellín’s position ‘gives pause’ because it would make ICJ judgments unquestionable. Res judicata is the central aspect of any form of judicial dispute settlement, and of course it means that final judgments are to not to be questioned.

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