More on Medellin

By Marty Lederman
on Mar 9, 2005 at 9:28 pm

Two very significant developments today, in the wake of the SG’s brief last week in Medellin, reporting the President’s determination that state courts must entertain motions from 51 prisoners alleging violations of their Geneva Convention rights as declared by the International Court of Justice. (See my previous posts here and here.)

First, the petitioners have filed a motion for the Court to stay proceedings in Medellin while they pursue relief in state court pursuant to the President’s directive. “In the event that the Texas courts do not provide the review and reconsideration required by the Avena Judgment and the President’s determination,” petitioners write, “this case could then be restored to this Court’s calendar for argument on the questions presented and, if appropriate, consolidated with any proceedings here resulting from Petitioner’s pursuit of his remedy in the state courts.”

Second, and much more significantly, the Administration has announced that the U.S. has “withdrawn” from the treaty upon which the Medellin petitioners are relying — familiarly known as the “Optional Protocol to the Vienna Convention” — which gives the International Court of Justice jurisdiction to hear disputes under the Vienna Convention. In a letter to Kofi Annan — apparently transmitted two days ago and now published in this extremely comprehensive post by Michael Froomkin — Secretary of State Rice wrote:

Dear Mr. Secretary-General:

Condoleezza Rice

This might effectively mean the end to common litigation in which foreign nationals convicted in state courts have challenged states’ failure to provide them an opportunity to contact their nations’ consulates, as required by the Vienna Convention itself. The SG’s strategy last week in Medellin takes care of the 51 cases that the ICJ already has adjudicated, and the U.S.’s withdrawal from the treaty presumably would preclude all future ICJ-based claims. Defendants could continue to bring claims based on the Vienna Convention itself, but would have to convince U.S. courts that that treaty creates individually enforceable rights — which could be a daunting prospect for defendants who are unable to rely on the ICJ’s interpretation.

NOTE: There is some question whether today’s treaty “withdrawal” was effective because the President acted alone, without the assent of the Senate and/or the Congress. Whether and under what circumstances the President has the constitutional power to unilaterally “withdraw” the U.S. from a treaty (or to “terminate” a treaty) is a famously difficult and unresolved constitutional question. See, e.g., the discussion in Jeff Powell’s article at 67 G.W. L. Rev. at 563. Indeed, the question may be even more uncertain in this case than in Goldwater v. Carter, 444 U.S. 996 (1979), because the withdrawal here would not appear to be a “necessary incident” of the President’s constitutional authority to recognize foreign regimes (cf. Justice Brennan’s dissent in Goldwater, 444 U.S. at 1007).

Nevertheless, there may never be occasion for the Court to resolve whether the Protocol remains a treaty that is the “supreme Law of the Land” for purposes of Article VI, because no one may have standing to challenge the President’s action. If the ICJ accepts the representation that the U.S. has withdrawn from the Protocol, it will not adjudicate a dispute involving the U.S. — and therefore no future defendants will be able to urge domestic courts to honor ICJ judgments.]

FURTHER THOUGHTS from Julian Ku over at Opinio Juris — including a suggestion (seconded by Michael Froomkin at his blog) that the ICJ might not deem U.S. withdrawal effective for 12 months.