25 Feb The Domestic Enforceability of ICJ Judgments (The WSJ Weighs In)
Today’s Wall Street Journal has an interesting, essentially right, but somewhat overbroad editorial ($) on the upcoming Medellin case before the Supreme Court. Medellin, most of you no doubt recall, will consider the domestic legal effect of an International Court of Justice judgment finding the U.S. in violation of its treaty obligations under the Vienna Convention on Consular Relations. In particular, the ICJ has ordered the U.S. to provide review and reconsideration for foreigners (particularly Mexicans) who were convicted of capital crimes and sentenced to death but whose initial arrest violated their treaty obligations.
The Journal rightly identifies the core issue, which is not whether the U.S. violated the treaty (it did) nor whether it is bound by the treaty (it is). Rather,
[t]he danger here lies in the remedy. Letting the ICJ tell Texas how to run its courts would move the U.S. in the direction of the European Union, which has a supernational legal system to which national courts must bow. Not far down the line would be an ICJ ruling declaring the death penalty illegal and ordering Texas to get rid of capital punishment.
I think there is some truth to this conclusion, but it is overbroad. Is the Journal arguing that the ICJ could never tell Texas”how to run its courts” because this would automatically turn us into the EU? Does the Journal believe this slow transformation is happening when U.S. courts conform their interpretations of treaties to comply with NAFTA rulings (which is arguably more analogous to how the EU system go started anyway)?
My own view coincides with the views set forth in an amicus brief in Medellin that will appear on Monday signed by a number of law professors (including me). Let me just say here (without giving away the argument) that the real question is not whether an international court could ever have direct authority over domestic courts (they might in some circumstances), but whether the treatymakers (the President and the Senate) intended for that to happen when the ratified the Vienna Convention and whether Congress has agreed to allow such direct judicial enforcement. As the brief on Monday will explain (drafted by the estimable Paul Stephan at UVA), for a variety of reasons, this is almost certainly not the case for Medellin or any other foreigners seeking enforcement of ICJ interpretations of the Vienna Convention.
The Journal editorial also reveals that there is a battle going on between the State Department and the Justice Department over whether the U.S. government should also file a brief in support of Texas. This is actually a more interesting question in many ways. The U.S. has said it has an obligation to comply with ICJ judgments (if for no other reason because it wants other countries to do the same). Although compliance does not necessarily mean judicial compliance, it would be odd for the U.S. executive to fulfill its international duty to comply with an ICJ judgment by filing a brief in support of Texas, which presumably does not want to comply with the ICJ judgment.
One way to square this circle would be for the U.S. government to file a brief saying: “We believe the ICJ judgment is valid, binding, and it is our duty (as the United States) to comply. But we (meaning the executive) will take care of compliance through non judicial mechanisms and we agree with Texas that there is no authority for this court to order compliance with the ICJ judgment here. ” I’ve explained in my past writings that the traditional mechanism for compliance would be for the President to call up the Governor of Texas and ask him to halt the execution or at least order a new hearing to consider whether the treaty violations made a difference in the conviction and/or sentence. Call me crazy, but I think this would do it and I don’t see why, at that point, foreign countries could continue to complain.
Will they? I’m not as well-plugged in as the Journal or other much better known law profs. We’ll have to see on Monday.