Medellín, the Alien Tort Statute, and the Domestic Status of International Law

by David H. Moore

[David H. Moore is a Professor at J. Reuben Clark Law School, Brigham Young University]

The Supreme Court’s decision in Medellin v. Texas has understandably generated substantial debate on the status of treaties in domestic law. Medellin has significant implications for three other areas of foreign relations law as well: Alien Tort Statute litigation, the domestic legal status of customary international law, and the development of a uniform doctrine governing the domestic status of both treaties and customary international law.

ATS Litigation

While most ATS claims are grounded in CIL, treaty-based claims are also raised. Treaty-based claims will not succeed, however, unless the treaty is self-executing and the plaintiff has a cause of action. By endorsing a broad notion of non-self-execution and by endorsing the presumption that treaties do not create domestic rights of action even when treaties “directly benefit[] private persons,” Medellin restricted prospects for treaty-based claims under the ATS. Medellin also undermines the more common CIL-based claims. In Sosa v. Alvarez-Machain, plaintiff Alvarez cited the International Covenant on Civil and Political Rights as evidence that CIL prohibits the type of arbitrary detention he suffered. The Court discounted the evidentiary value of non-self-executing treaties like the ICCPR in identifying actionable norms of CIL, stating that even if Alvarez properly represented the ICCPR’s content, he had mustered “little authority that a rule so broad has the status of a binding customary norm today.” Medellin’s broad view of non-self-execution reduces the evidence available to establish viable CIL-based claims.

The Domestic Status of Customary International Law

Medellin also bears on the more substantial question of CIL’s domestic legal status. That question has split scholars into two primary camps: a modernist camp that perceives CIL as federal common law that the federal judiciary may apply in the absence of positive authorization, and a revisionist camp that maintains that the political branches or Constitution must authorize federal judicial use of CIL as a rule of decision. I have argued, based on Sosa, that the Supreme Court favors the revisionist perspective. Medellin strengthens that argument by displaying the same separation of powers vision evident in Sosa. In that vision, which is consistent with the revisionist view, the political branches take the lead in making domestic law based on international law and in conducting foreign affairs. The vision is evident in the considerations Sosa provided to guide lower courts in identifying actionable norms of CIL in ATS cases—the intent of the political branches, specific definition, wide acceptance, practical considerations, effects on foreign affairs and the political branches’ foreign affairs authority, and alternative means of enforcement. The vision is also evident in the Sosa Court’s comments on the limited role of the judiciary in exercising common law powers and managing foreign relations.

Medellin manifests the same separation of powers vision. In deciding whether the relevant treaty obligations were self-executing, the Court considered the intent of the U.S. treaty makers, the specificity of the treaty obligations, other state parties’ understanding of the treaty obligations, the potential consequences of classifying ICJ judgments as inscrutable federal law, the effects on foreign affairs and political branch authority of eliminating political discretion to reject ICJ judgments and of rendering self-execution a case-by-case judicial question, and the existence in the Security Council of an international alternative to domestic judicial enforcement. These considerations reflect the view that Congress and the executive should have “the primary role in deciding when and how international agreements will be enforced.” In short, the separation of powers vision that undergirds both the revisionist position and Sosa appears in Medellin.

Medellin supports the revisionist position in two other ways as well. The Court’s repeated (and confusing) suggestion that non-self-executing treaties are not domestic law and not merely judicially unenforceable, evidences a view that international law, absent incorporation, generally resides outside domestic law. And Justice Breyer’s divergent conclusions in Sosa and Medellin—favoring a more limited role for CIL than the Sosa majority allowed but a more expansive role for treaties than the Medellin Court permitted—indicates that he, at least, may appreciate the revisionist suggestion that treaties should, absent statute or constitutional amendment to the contrary, have a broader domestic role than CIL.

A Developing Uniformity

Not only do the considerations that Medellin invoked to determine self-execution reveal a separation of powers perspective similar to Sosa’s, those considerations significantly resemble the guidance Sosa provided for the creation of common law causes of action based on CIL. With regard to both treaties and CIL, the intent of the political branches, specificity, mutuality, practical consequences, foreign affairs effects, and alternative means of enforcement (at a minimum) affect the domestic legal import of international law. The Supreme Court’s most significant explanation of self-execution analysis thus supports the notion that a uniform doctrine governing the domestic status of both treaties and CIL is developing.

http://opiniojuris.org/2010/02/03/medellin-the-alien-tort-statute-and-the-domestic-status-of-international-law/

7 Responses

  1. David,

    Can you clarify your post as to self-execution?  Does it matter that the treaty has domestic effect in the country where the wrongful conduct occurred, but does not have domestic effect in the United States?  Say, for example, that in Filartiga that Paraguay had either a monist system or otherwise made clear that the Torture Convention was self-executing or had implementing legislation.  How would that play into your arguments?

    Roger Alford

  2. Glad to see the BYU representation!

  3. Roger:  Thanks for the question.  As you know, the Court in Medellin considered whether other states that had ratified the relevant treaties perceived ICJ judgments as enforceable in their domestic courts.  On the evidence adduced, it was not clear that any state did.  This fact supported the Court’s conclusion that the U.S. treaty makers did not intend for ICJ judgments to be judicially enforceable (and unassailable) by U.S. courts.  The take away, I think, is that the touchstone of self-execution analysis is the intent of the U.S. treatymakers.  In attempting to decipher that intent, the understanding of other parties to a treaty may be helpful even if it is not dispositive.  With regard to the weight to give other parties’ understanding, I think that understanding is most probative when the parties believe that the particular treaty imposes an international obligation to render the treaty enforceable in domestic courts.  The understanding seems less compelling when a state treats all treaties as enforceable in domestic courts because the state has adopted a monist regime.  That point, however, derives less from Medellin and more from my own assessment.
    Best,
    Dave

  4. David,

    Medellin dealt with the status of a treaty provision within the U.S. domestic legal system, with whether it created a supreme domestic rule of decision that displaced or superseded contrary domestic law.  Do you mean to contend that the application of all conventional or customary international law in domestic courts, particularly to extraterritorial conduct (in ATS or non-ATS litigation), necessarily requires domestication of the relevant customary or conventional rule?  If so, would that not then raise other issues regarding the extraterritorial jurisdiction to prescribe domestic law governing the extraterritorial conduct at issue?

    Stated differently, if a case involves extraterritorial conduct and effects, and parties other than the U.S. government or a U.S. national (e.g. Filartiga), is any domestic law even potentially applicable as such?  Clearly, U.S. courts can apply foreign law as the law governing extraterritorial conduct without “domesticating” the foreign rule of decision.  In such cases, the conflict of laws rule is domestic, but the foreign law rule of decision that it requires to be applied is not.  It is, as they say, “discovered” and not “made.”  Can we not, in some cases, say the same with regard to the application of conventional or customary international law to extraterritorial conduct?

    John Dehn

  5. Professor Moore makes a compelling argument for the uniformity of vision that animates Sosa and Medellin, but the article exaggerates the extent to which the Sosa Court adopted the revisionist position.  The Sosa majority steered a middle course between the modernist and revisionist positions.

    If the point of Medellin was to “reflect the view that Congress and the executive should have ‘he primary role in deciding when and how international agreements will be enforced,'” the result in Medellin was odd.  In that case, the executive made clear that it wanted the Avena decision to be enforced, and Congress did nothing.  In Medellin, the Supreme Court permitted the State of Texas to thwart the executive’s ability to conduct foreign affairs.

    This is not to say that Professor Moore has mischaracterized Medellin.  My comment is more directed at the tension between what the Court said it was doing in Medellin and what it actually did.

  6. Thanks for your comments and questions John and Jeremy.

    Consistent with John’s suggestions, Ernie Young argued that customary international law should be treated as a body of general law that state courts or federal courts sitting in diversity might apply pursuant to conflict of law rules.  Although Sosa seemed to dismiss the notion that CIL remains general law, I do not think there is anything preventing the states or Congress from developing conflict of law rules that require application of CIL.  Unless CIL is federal law, however, federal courts lack constitutional jurisdiction to hear claims between foreign parties based on CIL.  Perhaps a federal conflict of law rule directing application of CIL would render CIL federal law, but state conflict of law rules could not.

    As to Jeremy’s point that Sosa steered a middle course, I agree that Sosa’s holding split the baby.  Some CIL-based litigation could continue, as modernists advocated, but federal courts lacked wholesale authority to apply CIL as federal common law, consistent with the revisionist view.  The analysis that led to that conclusion, however, tilts toward the revisionist position–for example, the focus on the existence and scope of implicit authorization from the First Congress, the relevance of Erie to CIL’s domestic status, etc.  Others have obviously disagreed, but I think it is hard to square the Court’s search for positive authorization or reliance on Erie with the modern view.

    Nor do I think that Medellin is internally inconsistent.  Medellin both states that Congress and the executive should have “the primary role in deciding when and how international agreements will be enforced” and concludes that the President could not execute the relevant treaty obligations through a memo to the Attorney General.  In exercising their primary role to decide when and how to enforce treaties, Congress and the executive must act constitutionally.  The political branches’ primacy did not permit the Court to sanction what amounted to an unconstitutional attempt preempt state law by executive directive.

  7. I am in limited agreement with Ernie Young and his self-confessed predecessor in thought, A.J. Weisburd.  I am simply uncertain whether they have established a fully satisfactory theoretical basis for the application of CIL in conflict of laws manner.  I do not read Sosa as precluding this approach in every case. 

    I will postpone discussing the possible sources of a federal conflict of laws rule until I finish my current paper.  I do not think that your above comment is necessarily a complete statement of the possible sources of such a rule.  Additionally, certain jurisdictional grants, such as admiralty (and thereby prize) law, appear to have been historically understood to require the application of the general law in appropriate cases (other than the Swift v. Tyson/Erie line) without express congressional authorization or incorporation.  There is a fairly decent body of Supreme Court precedent on this point.

    You categorically state that “Unless CIL is federal law, however, federal courts lack constitutional jurisdiction to hear claims between foreign parties based on CIL.”  I do not think a federal conflict of laws rule, or for that matter a general grant of jurisdiction to enforce CIL (the ATS), would convert CIL into federal law.  A constitutional basis other than “arising under” jurisdiction is therefore required.  Once such a separate constitutional basis exists, however, I believe it is still possible to apply CIL in appropriate cases without it necessarily becoming general federal common law in every case.

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