After Medellin: A Proposed ICJ Decisions Implementation Act
On October 31, 2008, I made a presentation at the ASIL’s Tillar House of a proposal for an “International Court of Justice Decisions Implementation Act.” My proposal is an outgrowth of my essay in the Agora of the July 2008 issue of the American Journal of International Law. The Agora focuses on the U.S. Supreme Court’s decision in “Medellin v. Texas” and includes essays by David Bederman, Curtis A. Bradley, Carlos Vázquez, and I. All four essays are posted on the AJIL website. In my essay, titled “Revitalizing the U.S. Compliance Power,” I critique the Supreme Court’s reasoning and suggest that there would have been a way to interpret the U.N. Charter to require that Texas comply with the judgment of the International Court of Justice. (Because of the Supreme Court’s rulings, Texas put to death the Mexican national that the case centered on.) My essay also looked forward and discussed ways in which the Congress and future treatywriters could respond to Chief Justice Roberts’s Opinion with regard to the pre-requisites for treaty implementation in the United States.
On page 560 of my essay, I said that Congressional “legislation could authorize the President to implement ICJ judgments or could establish an expedited procedure to gain legislative approval of compliance” (footnote omitted). My presentation at Tillar House built on that sentence by offering a specific proposal for how Congress might act in framework legislation to authorize U.S. compliance with ICJ decisions at the request of the President.
The proposed Act is attached at the end of this post and let me give a brief summary of it: Section 1 gives the short title. Section 2 states 12 findings by Congress as to why this new process is needed and why it is justified under Constitutional law. Section 3 states that “It is the policy of the United States to comply with decisions of the International Court of Justice.” Section 4 requires the Secretary of States to consult with interested parties in the United States whenever a case arises before the ICJ against the United States. Section 5 provides for a sequence of actions following an ICJ decision where U.S. action has been indicated. To start with, the President would publish a statement explaining how the US should comply with the ICJ decision. At the same time, the Secretary of State would renew consultations with Congress. Then if in the President’s opinion, U.S. compliance would require federal legislation under the standard in the Medellin judgment, the President could submit a special message to Congress containing draft implementing legislation. This legislation would be considered by the House and Senate through expedited procedures that would provide for a vote in the House and Senate provided that there was support for the measure by the bipartisan party leaderships.
Let me also explain briefly why I wrote my proposal in the way that I did. First, although I am aware that there are other proposals circulating for broader legislation that would address implementation of all treaty commitments, I purposefully crafted my proposal narrowly to address only US implementation of ICJ decisions.
Second, borrowing from World Trade Organization practice, I introduce the idea that following an ICJ decision adverse to the United States litigating position, the Administration should state publicly its intention regarding compliance.
Third, also borrowing from the practice in U.S. trade law, I have written in requirements for ongoing consultation between the State Department and the Congress and other interested parties such as state governments.
Fourth, the bill would provide a pathway for the President to propose federal legislation to implement an ICJ decision. Obviously, the President can propose whatever he wants now under the Constitution, even without this law, but the Medellin experience shows Presidential inertia may need a bit of nudging. I thought about the idea of a blanket ex ante authority for the President to implement all future ICJ decisions, but I do not think that it would be wise to give that sort of blank check to the President. Rather, I think that authorizations for compliance, which would not occur frequently for the ICJ, should be decided individually. I also thought about the possibility of widening my proposal to include US compliance for all international judgments against it in international courts and tribunals. Again, however, I have opted for a narrower proposal that would respond only to the obvious problem that occurred in the Medellin case where the Bush Administration was legally powerless to save the United States from being an international law scofflaw.
Fifth, the legislative pathway provides a fast track procedure but not one as automatic as the one used in international trade. Although I still support the trade fast track model for future US trade agreements and perhaps for other agreements, such as climate, I would not propose it for ICJ implementation purposes. Rather I have borrowed an expedited procedure available for budget issues and incorporated it by reference into my proposal. I have also included a specific provision requiring bipartisan leadership support for the legislation before it could gain use of these procedures. In my view, international law is not a partisan issue, so I don’t see why there would be a problem in getting bipartisan support for holding a Congressional vote on complying with U.S. obligations on US treaty commitments.
Sixth, I have avoided using a fast track procedure designed for a simple approval/disapproval of an international agreement because what’s needed from the Congress in ICJ situations is not a simple approval or disapproval of a President’s plan but rather a law from Congress that will override state law or change previous federal law. (By assumption, if a President can implement an ICJ judgment on his own authority, then he can do so without using the discretionary procedures of my proposal.)
In discussion of my proposals, one commentator has raised the point that my analogies to trade law are not appropriate because in trade, the U.S. Congress does pass legislation to change US law to bring the United States into compliance with ICJ judgments, but only does so in response to the WTO-authorized trade sanctions (i.e. the “SCOO”) against the United States. It’s true that such legislative changes during the WTO era have only come following the SCOOs against the United States. But I would like to think that there would be constituencies developed sufficient to persuade Congress to pass laws to comply with individual ICJ judgments, and that this can be done without trade sanctions that mobilize affected U.S. export industries. For international law cases, I can imagine that many NGOs would lobby for U.S. compliance and that some business organizations would do so too. Implicit in my proposal is that if the President proposes legislation to implement an ICJ judgment, that act will attract attention and support could be mobilized through Congressional hearings. What was missing in the Medellin episode was a specific proposal by the Bush Administration for legislation to comply and Congressional hearings on it.
I invite comments from interested readers on my proposal.
ICJ Decisions Implementation Act (A Draft Proposal)
Section 1. Short Title.
This Act may be cited as the “ICJ Decisions Implementation Act of 2009.”
Section 2. Findings.
Congress makes the following findings:
(1) As a founding Member of the United Nations, the United States has been a party to the Statute of the International Court of Justice (ICJ) from its inception in 1946.
(2) Article 94(1) of the U.N. Charter states that “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”
(3) Article 60 of the ICJ Statute declares that the ICJ “judgment is final and without appeal.”
(4) On July 16, 2008, the ICJ issued an “Order” to the United States indicating, as a provisional measure, that the United States “take all necessary measures to ensure” that five named Mexican nationals are not executed pending judgment on Mexico’s Request for interpretation “unless and until these five Mexican nationals receive review and reconsideration” consistent with a prior ICJ judgment.
(5) On July 17, 2008, the current and past presidents of the American Society of International Law sent a letter to Congressional leaders urging them to pass legislation that would ensure U.S. compliance with the ICJ’s judgment.
(6) On August 5, 2008, the U.S. Supreme Court denied a stay of execution of sentence of death for one of the five Mexican nationals noting that “It is up to Congress whether to implement obligations undertaken under a treaty which (like this one) [referring to the U.N. Charter] does not itself have the force and effect of domestic law sufficient to set aside the judgment or the ensuing sentence, and Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in Medellín v. Texas, 552 U.S. ___ (2008).”
(7) Within several hours after the Supreme Court’s action, the State of Texas carried out the execution of one of the Mexican nationals listed in the ICJ Order.
(8) In this episode, the United States failed to comply with an Order of the International Court of Justice regarding U.S. obligations under the Vienna Convention on Consular Relations.
(9) In its decision in Medellin v. Texas on March 25, 2008, the U.S. Supreme Court explained with respect to judgments of international tribunals, that “Congress could elect to give them wholesale effect (rather than the judgment-by-judgment approach hypothesized by the dissent, post, at 24) through implementing legislation, as it regularly has.” In addition, the Court stated that “Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes.”
(10) Under current U.S. treaties, the United States may be a party to future contentious cases at the International Court of Justice where the Court may issue orders or judgments requiring compliance by the United States.
(11) In 1946, the United States accepted the compulsory jurisdiction of the ICJ through the Optional Clause. In October 1985, the United States terminated U.S. acceptance of the Court’s compulsory jurisdiction effective in 1986.
(12) In 1972, the United States deposited its ratification of the Optional Protocol to the Vienna Convention on Consular Relations consenting to the specific jurisdiction of the ICJ. In March 2005, the United States gave notice of withdrawal from the Optional Protocol.
Section 3. Statement of Policy.
It is the policy of the United States to comply with decisions of the International Court of Justice.
Section 4. Consultations by the Secretary of State
Whenever any case arises before the International Court of Justice alleging that the United States is in violation of a U.S. treaty obligation, the U.S. Secretary of State or her designee will begin consultations with interested parties in the United States including, but not limited to, any agency of the United States, the Governor of any State with an interest in the case, the Senate Committee on Foreign Relations, the House Committee on Foreign Affairs, and other Congressional committees with jurisdiction over the matters covered by the ICJ case.
Section 5. Actions Following ICJ Decision
(a) Statement by the President
(1) Within 30 days following any ICJ decision in which actions by the United States have been indicated by the Court, the President shall publish a Statement explaining how the United States should comply with the ICJ decision. When by the nature of the case, U.S. compliance is urgent, the President shall issue the Statement within 10 days.
(2) The Statement should be published in the Federal Register and on the White House web site.
(3) On the same day as the President publishes a Statement, the Secretary of State or her designee shall renew consultations with the Senate Foreign Relations Committee, the House Foreign Affairs Committee, and all other Congressional committees with jurisdiction over the matters covered by the ICJ case in order to gain agreement on a plan to implement the ICJ judgment.
(b) Special Message of the President
(1) If, in the President’s opinion, U.S. compliance would require a statutory enactment from Congress, the President may submit a Special Message including draft implementing legislation to the Congress. The President should do so within 60 days following the decision of the ICJ.
(2) The implementing legislation shall include only those provisions that are necessary and appropriate for compliance with the ICJ judgment.
(3) On the day in which the President’s Message is submitted to the Congress, the implementing bill shall be introduced (by request) in the House by the majority leader of the House, for himself, and the minority leader of the House, and shall be introduced (by request) in the Senate by the majority leader of the Senate, for himself and the minority leader of the Senate.
(c) Expedited Consideration of the President’s Message
(1) Provided that there is concurrence of the Speaker, the House Minority Leader, the Senate Majority Leader and the Senate Minority Leader, the time limits in, Title 2, Section 688 of the United States Code, regarding discharge of committee, floor consideration in House, and Floor consideration in Senate, shall apply to the implementing bill referred to in Section 5(b)(3).
(2) The concurrence of the Congressional leadership shall be expressed in the form of a letter to the other three Congressional leaders published in the Congressional Record.