John Bellinger Gets it Right on Consular Convention Implementing Legislation

by Peggy McGuinness

John Bellinger, who served as the Bush administration Legal Advisor to the State Department (in which capacity he famously guest blogged at Opinio Juris!), has an op-ed in today’s last Saturday’s NY Times calling for legislation to override the Supreme Court’s decision in Medellin v. Texas and to give effect to the ICJ’s 2003 decision in Avena. The legislation would overcome any state procedural bar rules to permit review of the convictions of the 51 Mexican nationals at issue in Avena who were denied their consular notification rights in violation of the Consular Convention.  As Bellinger notes, until such review takes place, the U.S. remains in non-compliance with the ICJ decision and the UN Charter.  Moreover, the Supreme Court indicated in Medellin v. Texas that legislation, not to assertion of executive powers, is the only path to compliance with Avena – short of the individual states independently choosing to comply (an option rendered impossible following Texas’ execution of Jose Medellin last August).

Bellinger rightly emphasizes the reciprocal nature of the Consular Convention and the protections it affords to Americans overseas, and notes that although the Obama administration has embraced the idea of enforcing  international legal obligations it still faces a dilemma on this issue:

President Obama now faces the same challenges as Mr. Bush in 2005: an international obligation to review the cases of those Mexicans remaining on death rows across the country; state governments that are politically unwilling or legally unable to provide this review; and a Congress that often fails to appreciate that compliance with treaty obligations is in our national interest, not an infringement of our sovereignty.

The Obama administration’s best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter.

From closing Guantánamo to engaging with the International Criminal Court to seeking Senate approval of the Law of the Sea Convention, President Obama is confronting the recurring tension between our international interests and domestic politics. But reviewing the Mexican cases as the international court demands is not insincere global theater. On the contrary, complying with the Vienna Convention is legally required and smart foreign policy. It protects Americans abroad and confirms this country’s commitment to international law.

A statute aimed more broadly at Consular Convention compliance was proposed during the last congressional term but languished in the shadow of the presidential campaign and a lame-duck administration (see the proposed bill here.)  Whether the statute is more narrowly tailored as Bellinger suggests, or sweeps more broadly to preempt state procedural rules to achieve compliance with the Convention going forward, Bellinger is right that this should be a priority for the Obama State Department and Congress.

Medellin and Youngstown

by Roger Alford

[William Dodge is a law professor at UC Hastings]

I’ve not seen anyone comment yet on what I thought was one of the more notable aspects of Chief Justice Roberts’s opinion, its application of Justice Jackson’s Youngstown analysis. The question is how to read congressional silence. Although I am greatly oversimplifying, Jackson seemed to read Congress’s failure to authorize what the President did in Youngstown as implicit disapproval (category 3). In Dames & Moore, by contrast, Justice Rehnquist read Congress’s silence as approval (category 1). Roberts’s opinion in Medellin seems to follow Jackson rather than Rehnquist and to treat silence as implicit disapproval (category 3).

As chance would have it, Rehnquist clerked for Jackson the term that Youngstown was decided and Roberts clerked for Rehnquist clerked the term that Dames & Moore was decided. I’m sure there is a great law review article to be written here (though I am not the one to write it).

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.

Justice Stevens Almost Gets It Right

by Marty Lederman

In the beginning of his concurrence in Medellin, Justice Stevens reads Article 94 not to require the Texas state courts to take steps to ensure that the U.S. complys with the ICJ judgment. I disagree with his interpretation of “undertakes to comply,” but he’s almost convinced me that it’s a close question, at least with respect to whether the treaty (plus the Supremacy Clause) imposes an obligation on the state court to entertain a habeas petition that state law would otherwise foreclose.

In any event, and more to the point, Justice Stevens then includes (page 4-5) a remarkable paragraph that in my view gets right to the heart of the matter, which is not whether the ICJ judgment is “enforceable in court,” but instead whether the State of Texas as a whole has a constitutional obligation to see to it that the ICJ judgment is honored:

Under the express terms of the Supremacy Clause, the United States’ obligation to “undertak[e] to comply” with the ICJ’s decision falls on each of the States as well as the Federal Government. One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another.

OK, so Texas (as well as the federal government) has a constitutional obligation to prevent the U.S. from breaching Article 94. I agree. And if Texas were to execute one of the 51 defendants before they were afforded “review and reconsideration” of their sentences by someone, Texas would then cause the U.S. to breach Article 94, which Texas may not do.

Having read this paragraph, one might expect Justice Stevens to then conclude that, even if there is no way (absent federal statute) to judicially enforce this obligation against Texas, nevertheless Texas is constitutionally required to do the right thing.

But for some reason, Justice Stevens pulls his punches at the last minute: Instead of writing that “The Court’s judgment, which I join, does not change the fact that the State of Texas is required to take appropriate action to prevent a breach,” Stevens writes that “The Court’s judgment, which I join, does not foreclose further appropriate action by the State of Texas.”

As though Texas has a choice in the matter.

Can anyone reconcile this closing sentence with Stevens’s earlier paragraph (quoted above), which (correctly, in my view) speaks of Texas’s constitutional “duty” and “obligation”?

Medellin v. Texas and Treaties’ End

by Oona Hathaway

As many have noted, the Supreme Court’s decision yesterday in Medellin v. Texas raises serious questions about the binding nature of United States’s treaty commitments. The Court holds as follows: “Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law.” (Slip Op. at 10). In other words, the Optional Protocol to the Vienna Convention on Consular Relations may be binding as a matter of international law, but it is not binding domestic law because it is not self-executing and there is no federal legislation that puts the obligation into effect.

This decision just serves to prove a point that I make in my article, Treaties’ End, which was the subject of a forum on Opinio Juris last week. In the article, I argue that treaties can be more difficult to enforce in U.S. courts than congressional-executive agreements. That is in part because some treaties are not self-executing. (I put to one side, for now, the question of whether the Court was right that the treaty obligations at issue in Medellin are or are not self-executing.) In such cases, two problems can emerge. First, a non-self-executing treaty could impose an international obligation on the United States that would be unenforceable as a matter of domestic law—because the necessary implementing legislation has not been passed—leaving the country in violation of its international obligations. (That is essentially what the Medellin Court decided had happened in that case.) To avoid this problem, the Senate usually postpones its advice and consent to a non self-executing treaty until implementing legislation can be enacted concurrently. Alternatively, it might give its advice and consent to the ratification of a treaty contingent upon the subsequent enactment of implementing legislation. That did not happen here—either because everyone involved assumed the treaty obligations were, in fact, self-executing or because the nature of the treaty obligations were not expected to give rise to individual claims under the treaty that could only be satisfied if there were federal implementing legislation (if the latter were true, that would represent a serious lack of foresight that should have been addressed once the individual claims were in fact filed).

As I argue in my article, congressional-executive agreements make it possible to avoid these dilemmas. Congressional-executive agreements are created by means of legislation passed by both houses of Congress. Unlike non-self-executing treaties, congressional-executive agreements provide one-stop shopping: the same act that provides the authority to accede to the international agreement can also make the necessary statutory changes to implement the obligation incurred. Had the Vienna Convention and Optional Protocol been entered as congressional-executive agreements, it is extremely unlikely that the Court would have held in Medellin that the treaty obligations were unenforceable in U.S. courts as a matter of domestic law.

First Reaction on Medellin, Self-Execution, Etc.

by Mark Weisburd

[Mark Weisburd is the Martha M. Brandis Professor of Law at UNC Law School.]

I find it difficult to read Medellin as institutionalizing a presumption against self-execution. If that had been Roberts’s intent, the form of his argument should have been, “We presume non self-execution, is there anything to overcome the presumption?” Instead, he analyzed the text, ratification hearings, and practice of other treaty parties to conclude that Art. 94 was not intended to create obligations for domestic courts. The conclusion seems reasonable to me – 94(2)’s according the Security Council discretion to refuse to enforce an ICJ judgment is hard to reconcile with a domestic judicial duty to enforce those same judgments – but it certainly isn’t reached with the aid of presumption.

David Sloss’s post makes an important point regarding the branch of the federal government with the repsonsibility to execute particular treaties. As he pointed out to me in a colloquy some time ago, whatever the status of some generic ICJ judgment, this particular judgment specifically requires action by American judges and it is impossible to carry out the international obligation admittedly created by the judgment without judicial action. The problem I see is that, if Art. 94 in general does not require domestic judicial implementation, and if the Senate consented to American submission to the ICJ only on the understanding that there was no requirement of domestic judicial enforcement, what happens when a particular ICJ judgment is meaningless without such enforcement? I find the Senate’s understanding crucial. Necessarily, it seems to me, the “treaties” to which the Supremacy Clause refers are those to which the Senate understood itself to be consenting. That is, a treaty for purposes of American judicial treatment imposes only those obligations which the Senate saw the treaty as creating. So – to address David’s argument – if the treaty to which the Senate thought it consented never requires judicial enforcement of ICJ judgments, then that’s the treaty which is the supreme law of the land. It may well be reasonable to argue that, at least on these facts, that not the best reading of Art. 94, but, if I’m right, the only issue is determining the Senate’s understanding of the treaty, not determining whether that understanding necessarily makes sense. Indeed, when the Court holds that the Senate’s understanding of Art. 94 as creating no domestic legal effects disables the president from seeking to implement Avena, it seems to put just that degree of weight on the Senate’s understanding.

Three other quick points. First, I think Ernie Young is exactly right that upholding the effect of Bush’s memo here would have had immense consequences. The administration’s argument was that the president can negate state law in order to carry out international legal obligations not otherwise binding in the US. Given the breadth of at least some readings of customary international law these days, it’s hard to imagine a subject as to which the President could not, effectively, legislate by decree if that argument had prevailed. I would add that the Court’s take on the consequences of the Senate’s understanding would seem to put to rest the controversy during the Reagan administration regarding the President’s authority to “reinterpret” treaties, according them a meaning different from that the Senate thought they had when it consented to ratification. Finally, regarding Paul Stephan’s point about the Court’s examining other states’ readings of Art. 94, I would note that this follows straight from the Vienna Convention on the Law of Treaties. Indeed, one of the reasons the ICJ was wrong in LaGrand and Avena was that it ignored other states’ readings of the Consular Convention.

Comment on Medellin

by Edward Swaine

[Edward Swaine is an Associate Professor of Law at the George Washington University Law School. ]

The quick scorecard on Medellin is pretty simple: Texas wins, the ICJ loses, and the President loses. I have lots of reactions to what the opinions say about the ICJ, non-self-execution, and even comparative law, but let’s just focus on this bottom line.

The first two claims have already been spun. As to Texas, Peter makes the point that freedom may have a price. (And Justice Stevens thought that Texas might step up and take one for the team; I suppose hope springs eternal.) As to the ICJ, Chief Justice Roberts suggests that a sparer approach to self-execution is indispensable for U.S. treatymaking, since any other approach might “hobble” U.S. willingness to enter into agreements by causing too much anxiety about what courts would do. If this reasoning is accepted – and there’s something to it, though I am not persuaded – it probably applies even more forcefully to dispute-resolution mechanisms, so this decision could be celebrated as a shot in the arm for U.S. willingness to go before the ICJ! (Not that it will particularly improve the reception once we get there, but you can’t have it all.)

So what about the third result — the President’s loss? I myself have argued that President should be understood to have the authority to implement even some non-self-executing treaty obligations via the Take Care Clause, which is a constrained kind of power — it authorizes only to the extent it binds. The Court gives that the back of the hand. It also rejects what the executive branch was arguing, which depended on the power to make sole executive agreements, and should be understood as cutting back on attempts to extrapolate from that line of precedent. As many have pointed out, however, the circumstances giving rise to this assertion of presidential power are pretty unusual: Not only is the President trying to embrace an ICJ decision that the United States lost, but he is doing so while continuing to insist that the ICJ was wrong. Not too appealing a pitch, and not too likely to come up in the near future, even if the Court has single-handedly saved dispute resolution.

So is there a countervailing upside for the President, like there is for the ICJ? Something much more substantial, to my reckoning – if not exactly to my liking. The near presumption against self-execution, the reliance on domestic political branches to confirm that presumption, and the deference to executive branch treaty interpretation, among other things, all force the conclusion that it will be yet harder in the future to invoke treaty obligations in court contrary to executive branch interests. Even a marginal change along this line of authority is quite important to presidential authority, since it applies in many more circumstances, and in many cases of keener concern to the President, than will the case’s holdings with regard to ICJ decisions. Geneva Conventions, anyone?

The End of “Respectful Consideration” and the Birth of Disaggregated Deference

by Roger Alford

There is much one could say about Medellín, but I want to focus on the meta-question of what this decision portends for the future of international courts and tribunals. While the domestic effect of ICJ decisions is now cast into serious doubt (at least in terms of direct enforcement), I think there is far more reason to be hopeful than some are suggesting.

First, the Court emphasized that the effect to be given to international courts and tribunals depends first and foremost on whether there is a federal mandate to respect such decisions. It emphasized that such a federal mandate might be found in a self-executing treaty or a congressional statute. The Court said it agreed “as a general matter [that] an agreement to abide by the result of an international adjudication can be a treaty obligation,” but found that “the particular treaty obligations on which Medellín relies do not of their own force create domestic law.” (p. 24). The Court also agreed that a statute could have the same effect. “The judgments of a number of international tribunals enjoy a different status because of implementing legislation.” (p. 25).

Second, the Court fully embraced the principle that domestic effect should be given to decisions of international courts and tribunals if that is what federal law requires. As I have written elsewhere, this domestic effect falls along a continuum of deference. The Court cited with approval the “full faith and credit” approach of 22 U.S.C. 1650a, which treats ICSID decisions exactly the same as domestic court decisions. (p. 25). It also cited with approval an “arbitration model” under the New York Convention that accords great deference to international arbitral decisions pursuant to the Federal Arbitration Act. (p. 26). The decisions of the Iran-United States Claims Tribunal are the best example of an international tribunal that falls within this sort of approach. Although somewhat less clear, the Court also appears to accept a “foreign judgment” model, provided the international tribunal is rendering monetary awards (rather than injunctive relief) and provided the international decision does not contravene domestic law. (p. 26). Mass claims tribunals such as the UNCC are possible candidates for such a foreign judgment model. (It is also worth noting that the citation in footnote 1 to the La Abra case involving the U.S.-Mexico Claims Commission–one of the few Supreme Court decisions utilizing a foreign judgment model for an international tribunal decision–may suggest that if a foreign judgment model is to be employed, again the treaty (or implementing legislation) must mandate that approach.)

Third, the Court effectively relegated ICJ decisions to the same status as the decisions of the WTO Appellate Body. Direct recognition of WTO decisions is precluded by implementing federal legislation (19 U.S.C. 3512(c)). Under this implementing legislation, the political branches must decide what domestic effect to give to WTO decisions. Apparently the same now applies to ICJ decisions. ICJ decisions may be given domestic effect, but the mechanism is through the political branches. The President tried to do that, but failed in his choice of mechanism. Obviously if it so desired, Congress could achieve what the President’s Memorandum did not. That frequently happens with WTO decisions, with Congress amending the law to bring the United States into conformity with our international obligations as interpreted by WTO Appellate Body decisions.

Fourth, the Court did not address the issue of indirect recognition of decisions of international courts and tribunals. On this score nothing has changed. Charming Betsy remains vibrant and there is every reason to think that domestic courts in construing statutes will continue to rely on decisions of international courts and tribunals (including the ICJ) to interpret international law. The same goes for using international decisions as persuasive authority to understand the content of international law in matters such as ATS claims or boundary disputes.

We are witnessing the end of the era of “respectful consideration” and the birth of disaggregated deference. That is, the degree of deference domestic courts should accord to decisions of international courts depends on what federal law (i.e., self-executing treaties or implementing legislation) requires. That mandate may be more or less than “respectful consideration.” In the absence of such a federal mandate, international tribunal decisions will not have direct effect, but they will continue to enjoy indirect recognition as tools of interpretation.

Further Thoughts on Medellin

by David Sloss

I wanted to react quickly to two of the other items posted earlier today. First, Paul Stephan makes the point that Justice Breyer’s dissent is “very problematic.” I agree. Breyer’s opinion does not make a helpful contribution to untying the “Gordian knot” of non-self-execution doctrine.

Second, Curt Bradley claims that the Court’s decision effectively reserves “to Congress the determinations of whether and how to comply with the ICJ decision.” With due respect for Curt, whose views are usually very insightful, I think this assessment is wrong. Even if the Court held that courts are obligated to enforce the Avena decision, Congress would retain the power to decide “whether and how to comply with the ICJ decision,” because Congress could enact a statute to override the Court’s decision. The real issue here concerns default rules — what should the courts do in the absence of congressional action? The Court effectively endorses a default presumption against judicial enforcement (although the Court does a very poor job of explaining when that default presumption applies). In contrast, the Framers endorsed a default presumption in favor of judicial enforcement, as evidenced by the constitutional text specifying that “the judges in every State shall be bound” by treaties. Thus, the Court’s decision does not empower Congress. To the contrary, it effectively amends the Supremacy Clause by instructing state courts not to enforce treaties — or not to enforce some ill-defined category of treaties — in the absence of Congressional action.

Posner on Medellin: Chastening the Transnationalists

by Peter Spiro

Eric Posner has this post up on Medellin on Slate’s new law blog Convictions, which wraps up with the following:

There is an academic theory that holds that the type of litigation (sometimes called “transnational legal process”) exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of hindsight, we see that the opposite has been the case. The U.S. government reacted to this litigation by withdrawing from the protocol that gave the ICJ jurisdiction over these cases, and the U.S. Supreme Court has reacted to this litigation by weakening the domestic effect of treaties, expressing discomfort with international adjudication and making clear that the president lacks the power to compel the states to comply with treaties. The United States will violate or withdraw from international law when its national government wants to, and sometimes it will do so even when its national government does not want to.

But this is at least partly false. The U.S. is in fact clearly in greater compliance with the VCCR today than it was in, say, 1998, when the Supreme Court first addressed the consular notification rights issue in the Breard case. In 1998 there were probably only a handful of local law enforcement officials, even high up the chain, who had even heard of the VCCR. A decade later, it’s only one level below Miranda. Even law enforcement officers in Texas probably try to toe the line, if only because they now understand the kind of headaches that come with noncompliance. It’s an astonishing success story, the entrepreneurial use of the VCCR. It could only have happened against a backdrop in which IL was generally coming to count for more.

No doubt today’s decision is a loss for the transnationalist camp, as was the US withdrawal from the Optional Protocol, and there may have been some overreaching/wishful thinking along the way. But equating Medellin with necessarily diminished US compliance is to take an overly court-centric view of the international legal dynamic. Although it would help to enlist them more fully as enforcement agents, international law does not need the federal courts to achieve meaningful efficacy. Other countries with substantial interests in the VCCR can keep up the heat through other channels, in ways that will work to further improve aggregate U.S. compliance over the long run.

Medellin and the Perversion of Legal Realism

by David Sloss

In Medellin, the Court held “that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law . . . .” This comment focuses on the effect of the Avena judgment itself, and disregards the President’s Memorandum. The majority was undoubtedly correct to hold that Avena is not “directly enforceable federal law.” In fact, Avena is not federal law at all. The Constitution is federal law. Statutes are federal law. Treaties are federal law. But decisions of the ICJ are not federal law.

The Court erred, however, by concluding that Article 94 of the U.N. Charter is not federal law. See Roberts, slip op. at 10 (stating that the U.N. Charter does not create “binding federal law in the absence of implementing legislation”); id. at 24 (“the particular treaty obligations on which Medellin relies do not of their own force create domestic law”); id. at 31 (“A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force.”) The Chief Justice, unfortunately, confused two entirely separate questions: whether Article 94 of the U.N. Charter is federal law, and how the treaty obligation is to be executed.

Article 94(1) of the Charter stipulates: “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.” Chief Justice Roberts tried to answer the question whether Article 94 is federal law by analyzing the text of the treaty. This is like trying to answer a question about Venezuelan law by looking in the U.S. Code. The question whether the U.N. Charter is federal law is a question about U.S. constitutional law. Accordingly, the answer is to be found in the text of the Constitution, not in the text of the treaty. The Constitution states that “all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.” Since the U.N. Charter was made under the authority of the United States, it is the supreme Law of the Land: i.e., it is federal law. By deciding that the U.N. Charter is not federal law, the Court has effectively rewritten the text of the Supremacy Clause to say that treaties are the Law of the Land unless we, the Supreme Court, decide otherwise.

Given that Article 94 is federal law, the next question is how to execute the U.S. treaty obligation. As noted above, Article 94 obligates the U.S. to comply with the ICJ decision “in any case to which it is a party.” There is no dispute that the U.S. is obligated to comply with the ICJ decision in Avena because the U.S. was a party in Avena. At the risk of over-simplifying, one can say that Avena obligates the U.S. to provide a judicial hearing for Medellin for the purpose of deciding whether he was prejudiced by the violation of his rights under Article 36 of the Vienna Convention on Consular Relations (VCCR). So, in the present case, the question of how to implement the U.S. obligation under Article 94 becomes a question of how to implement the U.S. obligation to provide a judicial hearing for Medellin.

In this regard, it is helpful to recall Justice Iredell’s opinion in Ware v. Hylton, 3 U.S. 199 (1796). In Ware, Justice Iredell distinguished between executed and executory treaty provisions. Treaty provisions are “executed” if “from the nature of them, they require no further act to be done.” Id. at 272. In contrast, executory treaty provisions require some further action by the U.S. government. Justice Iredell divided executory treaty provisions into three groups: legislative, executive, and judicial. See id. at 272-73. Whether an executory treaty provision requires legislative, executive, or judicial action depends on the nature of the international obligation, and the capacity of the respective branch of government to implement that obligation.

Chief Justice Marshall’s analysis in Foster v. Neilson, 27 U.S. 253 (1829), was entirely consistent with Iredell’s analysis in Ware. Marshall thought that Article 8 of the 1819 treaty with Spain was executory because the specific treaty language – “shall be ratified and confirmed” – required further government action. (It bears emphasis that Marshall was drawing a distinction between executory and executed treaty provisions, a distinction that depended on whether the treaty required further government action. See David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 19-24 (2002)). The specific government action required by the treaty, in Marshall’s view, involved the transfer of real property from one private party to another private party. Legislative action was necessary because the treaty obligated the U.S. to convey title to real property, and the legislature was the only branch of government competent to execute that obligation. Foster neither states nor implies that legislative action is always necessary to execute an executory treaty provision. Thus, the Court in Medellin erred by construing Foster to mean that a non-self-executing treaty always requires legislative implementation. See Roberts slip op., at 30. As Justice Iredell explained in Ware, some executory treaty provisions require legislative action, but others require executive or judicial action, depending on the nature of the international obligation.

The application of this framework in Medellin is very straightforward. As noted above, the U.S. obligation under Avena and Article 94 of the U.N. Charter is to provide a judicial hearing for Medellin. There is only one branch of government capable of executing that obligation: the judicial branch. As Justice Breyer noted in his dissent, the obligation could be implemented either by the federal judiciary or the Texas state courts, but there are a variety of factors that weigh in favor of state court implementation. Regardless, the correct application of Foster and Ware to the facts of Medellin leads inexorably to the conclusion that Article 94 is an executory treaty provision that requires judicial execution because the judicial branch is the only branch competent to execute the U.S. obligation to provide a judicial hearing for Medellin. This does not mean that every ICJ decision is directly enforceable in U.S. courts. As Justice Iredell explained in Ware, it depends on the nature of the obligation that flows from the particular ICJ decision.

The fundamental flaw in the Court’s analysis in Medellin stems from its failure to distinguish between two very different questions: 1) is Article 94 of the U.N. Charter federal law?; and 2) what is the appropriate mechanism to execute U.S. treaty obligations under Article 94? The Court conflated these two questions by combining them into a single question: whether Article 94 is self-executing. This muddled analytical approach is symptomatic of a broader trend in U.S. jurisprudence that can be traced, in part, to the rise of legal realism a century ago. Justice Holmes thought that a so-called “law” is not really “law” if it can’t be enforced. Henry Hart argued persuasively that effective application of Holmes’ insight necessarily requires a two-step analysis: 1) is the relevant instrument a “law”?; and 2) what is the best way to enforce that law? Under Hart’s approach, the assumption is that all laws must be enforced in some way because the very nature of “law” is that it must be enforced.

Unfortunately numerous courts and commentators have twisted Holmes’ idea to produce the opposite result. They think that courts should simply bypass step one, proceed directly to step two, and ask whether the relevant law explicitly requires judicial enforcement. Under this approach, if the law does not explicitly require judicial enforcement, courts should refuse to enforce it. Whereas Holmes believed that the idea of an “unenforceable law” is a contradiction in terms, modern realists have perverted Holmes’ key insight and produced a wide range of judicial decisions that effectively render valid laws unenforceable. Medellin is the latest in this misguided series of decisions. In Justice Roberts’ perverted version of Holmesian realism, Article 94 of the U.N. Charter is not domestically enforceable (without legislative action) because it does not specify a domestic enforcement mechanism. Since Article 94 is not domestically enforceable, it is not federal law – even though the Constitution states unambiguously that it is federal law!!! Justice Holmes is rolling over in his grave.

Making Texas Pay for Its Sins, or Why Ernesto Medellin May Live Out His Days in Prison

by Peter Spiro

I’ll venture a cautious prediction beyond the four corners of the opinion: Medellin will not be executed. I don’t think it will result from anything that happens in Washington; Congress just won’t have adequate incentive to help out a brutal murderer in the name of international legal obligation. The Administration might try to push for implementing legislation sufficient to satisfy the Medellin majority. It’s possible that the Government of Mexico itself will make some approaches on the Hill as well as at Foggy Bottom (where diplomatic hands have now been more tightly bound), thus further bringing Congress directly into the arena of international relations on yet another front. But I just don’t see Congress picking up that ball.

The more intriguing possibility is that Mexico starts waving a big stick around Austin with talk of what I’ve called targeted retaliation. If domestic Mexican constituencies (and for that matter, Mexican citizens resident in the US, who can now vote in Mexican presidential elections) are mobilized, the GOM will have to take some action beyond useless diplomatic demarches (nor does the Security Council route look very promising, even from a PR perspective). So why not start talking boycott? I doubt it could be undertaken as an official move, consistent with the international trade regime, but I don’t think it’s at all implausible that Mexican elites (governmental and non) could start quietly talking about redirected trade and investments. Texas had more than $40 billion in annual exports to Mexico as of 2003. That’s serious money and a lot of jobs. (Why buy a Dell when you can go with Gateway?) Even if a very small percentage made its way to California or other states instead, that would have to make Medellin’s execution look a little less like a top priority. And of course we have the Torres case in Oklahoma by way of precedent (which, in Janet Levit’s account, included “implicit threats of economic retaliation”).

So we might be at the end of the federal judicial road, as Mark Movsesian suggests, but that will hardly be the end of the story here. By further gumming up the treaty enforcement process at the national level, the Court pushes decisionmaking downstairs. But that isn’t necessarily a bad place to advance the rule of international law.