A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!

by Julian Ku

I wanted to jump in with a quick response to Marty’s awesome post about what is, without question, the most surprising (and for me, delightful) part of the Medellin opinion: Justice Stevens’ concurrence.

I love this concurrence, especially because I am (to put it mildly) rarely fond of Justice Stevens’ forays into foreign relations law. This is, after all, the author of both Rasul and Hamdan. But give the Court’s senior justice his due: Justice Stevens seems to be genuinely constrained by his view of the law, and not his very clear policy preferences (to rule for Medellin). This may be true of the other Justices, but it is much harder to tell.

So here’s my take on his thinking: Article 94 does not, in his view, require the United States to comply with the ICJ ruling. All it has to do is “undertake to comply,” which in his reading, is not a mandatory obligation. So the Supremacy Clause is imposing a non-mandatory obligation on the U.S. here and neither authorizes the President’s action nor requires Texas to do anything. All Texas is obligated to do is whatever the U.S. is obligated to do, which is to “undertake to comply,” which is non-mandatory.

To put it another way, the “obligation” here for Texas is one of upholding honor and integrity with respect to conduct with foreign nations. Justice Stevens is recognizing here something that I have argued in a number of law review articles (at greatest length here): state governments have often believed they had the primary duty to manage certain aspects of foreign relations that intersected their domain. And the federal government has often agreed that the states have this task, and has left such questions to the states. (Recall that in both the Breard and LaGrand cases, President Clinton basically took that position with respect to those earlier ICJ rulings).

This is why Stevens is asking, pleading, for Texas to come to its senses and give Mr. Medellin his hearing. He is recognizing that, in the U.S. system, the states often are the only governmental entities empowered to fulfill certain treaty international law obligations (although they have no constitutional duty to do so). It is a bit a strange result, but it is actually (in my reading of historical practice) hardly unprecedented.


3 Responses

  1. With respect, there’s a world of difference between ‘has to undertake to comply’ and ‘undertakes to comply’.

  2. “With respect, there’s a world of difference between ‘has to undertake to comply’ and ‘undertakes to comply’.”

    No there isn’t. There’s a world of difference between “undertakes to comply” and “shall comply”, though.

  3. As you would imagine, I disagree. On both points.

    “Undertakes to comply” is no different in legal meaning from “shall comply”. I accept that in ordinary English, to undertake to do something may not mean to promise to do it. But in international legal drafting, the same is not true. The phrase is frequently used to denote undoubted legal obligations; consider, for example, Article 34(1)(2) ECHR: “The High Contracting Parties undertake not to hinder in any way the effective exercise of [the right of individual application to the European Court of Human Rights]“, or Article 46(1) of the same Convention: “The High Contracting Parties undertake to abide by the final judgment of the Court [...].” Other examples abound.

    This is definitely not merely exhortatory language. If there is any difference between the use of “shall” and that of “undertake to”, it is in style only. “Undertakes to” sounds more solemn, and may be thought to appeal more to the honor of the person making the undertaking. But, of course, that doesn’t mean it’s only honor that’s engaged. It’s just that sovereign states may have a certain preference for a more solemn choice of phrase, or for one that underlines the obvious fact that the state chooses to make a promise in the treaty, not a higher power that imposes an obligation.

    Particularly in the context of Article 94 of the Charter, it is quite absurd to read “undertakes to” as no more than an appeal to a party’s honor. To do so would not be in harmony with Article 59 of the ICJ Statute (“The decision of the Court has no binding force except between the parties and in respect of that particular case”). Nor is it easy to see why the UN Charter would lessen the obligations resulting from ICJ judgments compared to those of the old PCIJ (Article 13(4) of the League of Nations Covenant).

    So, if “undertakes to” is not merely exhortatory, then there is a marked difference between “has to undertake to comply” (Prof. Ku’s reading of the article) and “undertakes to comply”. The latter does express an obligation; the former probably does not: “has to” clearly imposes an obligation, so if “undertakes to” is also interpreted as creating an obligation (of result, not only of doing something to further the end of compliance), the expression is tautological.

    To explain further, let me just transpose this to the context of Prof. Ku’s post:

    Texas does not have to “undertake to comply”. (How, incidentally, would it do that? The members of the UN do that in Article 94. Texas is not a member of the UN, and hence not one of the undersigned, as it were, of the undertaking in Article 94. Nor is there any way, Article 94 having been signed off 63 years ago, to give any further undertaking now; neither Texas nor the USA can be duty-bound to do any such thing.) The USA has to comply. So much for international law.

    Constitutional law may well transpose this obligation to Texas, but that obligation would be to comply, not to undertake to comply.

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