Commentary: The Executive Power Question Might Not be the Most Important Aspect of Medellin
[NOTE: This post adapted from a quick reaction posted over at Opinio Juris — please excuse the more-informal-than-usual, and somewhat contentious, tone.] My very preliminary reaction, after having read only a bit of the opinion, is that the presidential power question might not be the most important aspect of the decision. That would be, instead, the Court’s interpretation of Article 94 of the U.N. Charter as merely imposing a future obligation on the U.S. federal political branches to do something to comply with its requirement — and not to impose any independent obligation on the United States, including Texas, to actually take steps to comply with an ICJ judgment. This strikes me as an implausible interpretation, and as potentially very troubling for construction of treaty obligations going forward.
The article reads that the U.S. “undertakes to comply with with the decision of the [ICJ] in any case to which it is a party.”
The Court reads this obligation not to actually require the United States and its component parts to actually comply with an ICJ decision. Indeed, it apparently permits Texas (part of the U.S., last time I checked) to intentionally refuse to comply with such a decision.
What will this sort of treaty interpretation portend for, say, article 16 of the CAT, which provides that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment”?” Apparently, that no longer means we are forbidden from intentionally inflicting such treatment on detainees — or so the Court’s reasoning appears to suggest.
“Apparently, that no longer means we are forbidden from intentionally inflicting such treatment on detainees — or so the Chief Justice’s reasoning appears to suggest.”
But in the case of the CAT, we enacted the Torture Act, which of course is narrower than the CAT, but at least is a binding statute.
I didn’t think there’d ever been any serious argument that the broader CAT terms were enforceable in the U.S. courts.
Comment by Andy Lowry — March 25, 2008 @ 11:03 am
Marty, my first reaction was similar to yours. I thought of this quote by the character Inigio Montoya from the old movie the Princess Bride, “You keep using that word, I don’t think it means what you think it means.”
I thought this was a difficult case that could go either way, and upon which reasonable people could disagree. But frankly it was inconceivable to me the court would decide the case on this wording.
Comment by Daniel Thomas — March 25, 2008 @ 12:03 pm
One of the problems with presumption that SCOTUS has established against treaties being self-executing is that this circumvents the clear allocation of the treaty making power in the U.S. Constitution to the Senate.
Instead, in addition to two-thirds Senate approval, this doctine additionally requires legislation which both the House and Senate approve, and signature by the then President who may not be the President who negotiated and signed the treaty ratified by the Senate.
When this doctrine is coupled with the well established, but implausible from the Constitutional text, doctrine that ordinary domestic legislation can overide a treaty, the Courts have really blue penciled the Constitutional scheme of the treaty making power into something beyond recognition in the textual constitutional scheme.
Comment by Andrew Oh-Willeke — March 25, 2008 @ 1:13 pm
Marty:
What will this sort of treaty interpretation portend for, say, article 16 of the CAT, which provides that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment”?” Apparently, that no longer means we are forbidden from intentionally inflicting such treatment on detainees — or so the Chief Justice’s reasoning appears to suggest.
Check out Note 12 of the Roberts opinion, which notes that the 2d and 6th Circuits have already held the CAT is not self executing as domestic US law and suggests that enforcement of the CAT and other treaties as domestic law is Congress’ job.
Comment by Bart DePalma — March 25, 2008 @ 1:14 pm
I am not a lawyer, so this may be a naive comment, but Texas is not the United States, so that while the federal government is obliged to honor Article 94, perhaps a state is not so obliged.
Comment by steven gerber — March 25, 2008 @ 1:18 pm
Andrew,
So it is easy to ratify a treaty and easy to repeal it, but difficult to implement it, assuming Presidents switch political parties every 4 to 8 years. Fine.
But is it worse for the importation of international law to the United States to be responsive to domestic politics rather than the President to decree that state laws yield to his whims?
Comment by Jacques McKenzie — March 25, 2008 @ 1:19 pm
Andrew. I agree. How far would I get in court if I said, “Well, you honor, it’s true that ‘I’ agreed to this contract, and it’s true that ‘myself’ agreed to this contract, but as for ‘me’, no I didn’t agree to this contact so stuff it.” I would be laughed out of court and met with derision. Yet this is exactly what the SC has said in this case. It doesn’t matter what Congress thought it said, it doesn’t matter what the President thought it said, it only matters what the SC thinks it says and that is stuff it ICJ.
How is any president going to make effective treaties with other foreign parties under those circumstances. He and the Senate can promise the sun and the moon to other countries and their word means exactly *nothing*. All the foreign powers can do is sit on their hands and hope like hell that SC doesn’t overturn the treaty someday.
I wouldn’t sign a treaty under those conditions and neither would any person who rationally wanted the treaty enforced. The treaty making power is now only ceremonial.
Comment by Daniel Thomas — March 25, 2008 @ 1:23 pm
Jacques. That’s a somewhat loaded question as I not sure it was his “whim”. Nevertheless, I think it get to the heart of the matter. The problem I have is that the majority opinion never really gets to the heart of the matter and never really acknowledges the pragmatic effects of its decision. I am not out on a limb and saying I think the court judgment was wrong; this was a difficult case. But the majority opinion in no way honors what is really at stake in this case. It’s rationale is strained. It’s opinion exists in a true “fairyland castle”. The court’s opinion does a grave disservice to America.
Comment by Daniel Thomas — March 25, 2008 @ 1:30 pm
As to the self-executing issue, it seems reasonable to me to bifurcate it. Enabling laws can deal with details, but the core aspects of the treaty cannot be rendered toothless because of some non-self executing rule.
Various relevant comparisons can be made. For instance, Congress has the Art. I power to pass laws regarding the laws of nations. But, did this imply that if it did not, the U.S. could do anything it wanted to, even if it blatantly violated said laws?
This seems to be the idea in the eyes of some, but I don’t think it is kosher. Ditto Art. III. Congress has the power to fill in many details. But, if it simply never formed a Supreme Court at all, or did so in some token fashion, it would render Art. III largely null and void.
But, this might not be helpful in some sense, since the exact provision here might be part of my “category 2″ enabling legislation. And/or something like Stevens said. The opinion of the majority, which turns out to be more executive enabling than limiting (at least for this one) is both much more shocking and rather suprising.
Who thought this would be the result?!
Comment by Joe Paulson — March 25, 2008 @ 1:37 pm
What’s really at stake was whether Texas was going to have to abide by a goofy decision by a group of foreign “judges” intent on sticking a finger in the eye of the US. Thankfully, the Court answered no.
Let’s do a thought experiment. Let’s say the ICJ had said that Medellin simply had to be released. What’s the likelihood that would have flown? But the ICJ did something equally ridiculous, namely holding that Medellin et alia had specific rights granted by the treaty–rights, of course, that would, but for intervening developments after the Avena decision, be applicable to every single immigrant who commits crimes in this country. (Anyone care to redo to all those cases? That was the risk the ICJ imposed on us.)
Lost in all of this, of course, is the plight of the victims’ families. Medellin, and his cohorts (saved by a lawless decision from SCOTUS) should have been executed years ago.
Comment by Sean O'Brien — March 25, 2008 @ 2:01 pm
Daniel:
Treaties are not contracts. They are diplomatic agreements which the parties can and do enter and withdraw from at will. Treaties are only provided the enforcement which the power entering the treaty deems to give them.
Comment by Bart DePalma — March 25, 2008 @ 2:07 pm
I respectfully disagree with Marty. I may be just rehashing what Roberts and Stevens point out in the opinion, but we know from Sanchez-Llamas that Avena is not a binding obligation on all future litigants, yet Medellin argues that it is binding for him because he was named in the case. But we know the only actual “parties” to Avena were Mexico and the United States. The second paragraph of UN Chater, Article 94 provides that “if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the [ICJ], the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” Only member-nations can have such recourse to the security council.
And only nations can be “parties” before the ICJ so Medellin cannot be a “party” within the meaning of that paragraph. The ICJ statute provides that “the decision of the Court has no binding force except between the parties and in respect of th[e] particular case.” Art. 59, 59 Stat. 1062. Taken together, these clauses make clear that the purpose of establishing the ICJ was to resolve disputes between national governments – the only entities that can be “parties” before the ICJ.
So enforceability is a political question. The “rights” referred to in these treaties and in the ICJ decisions refer to rights of nations against each other, not rights that can be automatically invoked in the judicial proceedings of every individual country. We’ve seen where the U.S. has refused to comply with ICJ decisions, such with Reagan and the Nicaragua case.
There’s nothing outrageous about this, and it doesn’t leave the issue without remedy. As Justice Stevens points out, (1) the treaty itself could be self-executing in that it could be clearer that it is judicially enforceable, (2) Congress could take the treaty and create laws to implement it (including, as Justice Stevens points out, a law which makes ICJ decisions automatically enforceable after the expiration of a waiting period), (3) Texas may comply as a matter of its own state law procedures. You might disagree with the presumption in FN4, but it’s been around a long time and it’s certainly something that Congress and the Executive can operate from.
As a final matter, the perplexing thing to me about this is why President Bush – when he had a Republican Congress – wrote this memo and contacted and encouraged states to comply with Avena, but never thought to get Congress to actually pass something, even something limited to just enforcing Avena.
Comment by Chris Brown — March 25, 2008 @ 4:48 pm
Jacques McKenzie,
I agree that there are difficulties involved in allowing an executive decree not ratified by anyone, in its own right, to be effective vis-a-vis a state government. A bare executive agreement or foreign policy justified decree should not have that effect. If it does, the requirement that the Senate ratify treaties is likewise irrelevant.
But, given that there is a Senate ratified treaty in place in this case, and an opinion from a court to which we are a party duly and properly rendered interpreting that treaty, the questions is far less clear. One can either take the position that was taken by the administration, and hold that the President has that power, or you can take a position somewhat akin to that taken by Stevens in his concurring opinion and hold that the government of the State of Texas has an obligation to carry out that power — although I see why under Stevens’ reasoning the obligation of the State of Texas should be voluntary, as opposed to a mandatory obligation enforceable through SCOTUS upon the State of Texas.
Bart DePalma,
Most countries other than the United States which have the rule of law in place do treat treaties as binding contracts, superior to domestic law other than their organic documents such as a constitution.
The most common manner by which countries leave treaties is by out clauses within the treaty itself, allowing a party to it to withdraw. What examples can you cite of countries with rule of law in place that have unilaterally withdrawn from treaties that do not permit parties to the treaty to do so.
Sean O’Brien,
If the fact that someone thought that a judicial decision was “goofy” was a ground not to follow it, a good share of American judicial precedent (including U.S. Supreme Court precedent) would be invalid. I also hardly find it goofy that a court says that U.S. Courts have a duty to comply with their treaty obligations regarding foreign nationals charged with crimes in the United States — particularly considering that the number of such people who are currently incarcerated is managably small because most felony terms are reasonable short and particularly considering that the right involved like the right to counsel impacts the fairness of the procedure itself. This burden, moreover, could be carried mostly by the federal courts with a fairly trivial amendment to the habeas corpus exhaustion requirements in federal court. After all, since this issue arises under uniquely federal law rather than state law, there is no reason that state court interpretations should receive special deferrence.
The argument that victims are hurt begs the question. If a treaty right was violated and the error was not harmless, it isn’t necessarily safe to say that the convicted individual was indeed factually guilty. This is a particular concern in this case because the state courts of Texas do not consistently meet either U.S. or international standards of due process in death penalty cases, particularly when it comes to the quality of legal counsel provided — something which is at stake in the Vienna Convention treaty rights.
Comment by Andrew Oh-Willeke — March 25, 2008 @ 5:00 pm
That interpretation may seem absurd in the domestic law context, but I think it is entirely in line with both the statute and case law of the ICJ.
Unlike domestic criminal acts or torts, internationally wrongful acts give rise to responsibility, not liability. “Responsibility” means that a state, by its actions, has incurred some new international obligation to do or refrain from doing some additional act. On several occasions the ICJ has emphasized that its powers do not extend into the “reserved domain” of municipal jurisdiction over non-international matters. As such, the import of the its decision in this case probably should not be regarded as having any direct domestic effect.
Natural persons are not, in general, subjects of international law. Mexico’s claim before the ICJ was, therefore, in the nature of a diplomatic protection claim. Such a claim adjudicates the injury to the applicant state, rather than the citizen on whose behalf it is brought. The injury to Mexico, violation of a treaty obligation, can be remedied easily in damages. That should be the end of this case, unless the more liberal members of the ICJ suddenly arrogate to the court jurisdiction over non-states.
I agree that the Supreme Court’s doctrinal aversion to self-executing treaty law lacks textual support in the constitution, especially in light of certain historical realities. For instance, the prominent international legal scholar Sir Gerald Fitzmaurice wrote at length on the subject of treaty ratification in his authoritative analysis of the World Court’s precedents. In his view, a treaty became binding internationally upon signature by the Head of State, notwithstanding any municipal requirements of “higher ratification.”
There is, however, one strong counter-argument. The sovereign and legal-intellectual predecessor to the United States, the United Kingdom, follows precisely the same rule. Although HM Government both concludes and ratifies treaties on behalf of the UK without any involvement of the political branches, the UK courts have always considered themselves lacking in enforcement power over treaty provisions that have not been later incorporated into the domestic law of the UK by parliamentary act.
Comment by Trey Forgety — March 25, 2008 @ 5:37 pm
Jacques McKenzie,
Bart DePalma: Most countries other than the United States which have the rule of law in place do treat treaties as binding contracts, superior to domestic law other than their organic documents such as a constitution.
Our Constitution does not. Both Congress and the President can withdraw from a treaty at will.
Comment by Bart DePalma — March 25, 2008 @ 7:49 pm
“All the foreign powers can do is sit on their hands and hope like hell that SC doesn’t overturn the treaty someday.”
Or, you know, they could insist in negotiations that a self-executing statement be included in the treaty. Of course the presence of such clauses might make certain treaties harder to ratify, which I suspect is the true source of the outrage on display in certain quarters.
Comment by James Griffith — March 26, 2008 @ 7:36 am
Very few counties have Court systems below the “State” level. The Decisions of the ICJ are enforceable at that level. In the US most of the Courts are an the state level. That state holds “Court” in that state, without much Direct Federal Court Supervision. Question: Can the United States enter into a Treaty that violates the Right of its Citizens that are provided by the Constitution?
Comment by Charles A. Pierce — March 26, 2008 @ 10:40 pm