Texas Wins Medellin

Texas Wins Medellin

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.

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Matthew Gross
Matthew Gross

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.

Too Quick
Too Quick

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… Read more »

Marty Lederman
Marty Lederman

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?

Marko Milanovic
Marko Milanovic

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.

Not a law professor
Not a law professor

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

Dave

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.

Not a law professor
Not a law professor

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.

Dave

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.

Tobias Thienel

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… Read more »

Tobias Thienel

‘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… Read more »

Dave

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 »

Tobias Thienel

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… Read more »

Tobias Thienel

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.