Opinio Juris

Friday, May 2, 2008

The Role of Precedent at the WTO

by Roger Alford

Earlier this week the WTO Appellate Body clarified the role of legal precedent in WTO jurisprudence. The background to the discussion was a WTO panel’s refusal to follow a previous Appellate Body decision because the panel viewed the previous Appellate Body decision as failing to accord proper deference to permissible Member State interpretations. The details of the panel decision are here. I have written about judicial overreaching by the WTO Appellate Body and basically agreed with the lower panel’s legal reasoning on deference to permissible interpretations of Member States in the AD/CVD context.

Well, the Appellate Body in Stainless Steel (Mexico) did not take kindly to the panel’s refusal to follow the previous Appellate Body report and issued the following smack down:

158. It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB….

160. Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system … implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.

161. In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play…. The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU….

162. We are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel's approach has serious implications for the proper functioning of the WTO dispute settlement system ….

Did you catch all of that? WTO Appellate Body decisions are not binding, but they must be followed. Unless, that is, there are cogent reasons not to follow them. But then if you don’t follow them because you think you do have cogent reasons (i.e., the standard of review in the treaty was ignored by the previous Appellate Body report), then the Appellate Body will be deeply concerned.

The role of precedent has always been difficult with respect to international courts and tribunals. But I read the Appellate Body in Stainless Steel (Mexico) as essentially requiring panels to follow Appellate Body decisions and treat them as legal precedent. You can't call it legal precedent, but it is. As one anonymous commenter put it in this post, the message from the Appellate Body to panels is the following:

You really, really should follow prior Appellate Body decisions. It would be quite bad for the system if you do not. But if you've got what you think are compelling reasons for not doing so, we understand if you feel you have to go your own way. Bearing in mind, of course, that if you do, we will almost certainly reverse you on appeal. You may think your reasons are pretty good, but if they were really that persuasive we would have gone that way ourselves, hence they are not, in fact, "cogent".

05.02.2008 at 11:42am 2 Comments 0 Trackbacks

Tuesday, April 29, 2008

Aftermath of the NAFTA Lumber Wars: More Litigation

by Julian Ku

Longtime readers may recall my previous obsession with the seemingly endless Lumber Wars between Canada and the U.S. over Canadian timber subsidies and U.S. tariffs punishing such subsidies. The dispute threatened NAFTA, or at least Chapter 19 of NAFTA, because of the U.S. lumber industry's lawsuit to declare that chapter unconstitutional.

Now it turns out that the deal to end the lumber wars is itself provoking litigation. As Roger noted in a previous post, the deal was itself highly unusual and outside of the NAFTA system. As this article points out, there are big questions about the $1 billion the U.S. government retained in the deal.

Is it an illegal $1 billion slush fund for Bush administration friends in the timber industry, extorted from Canada and designed to evade congressional oversight?

Or is it a fairly negotiated end to an expensive trade war that's "the best thing that has happened to private forest land conservation in the United States in 100 years?"

It depends on your point of view. Now, a federal lawsuit filed in Seattle is bringing more scrutiny to the controversial deal. Sen. Maria Cantwell, D-Wash., is spearheading a Senate effort to get more information about who got the money and what they're doing with it.

Sounds like a neat case. If anyone has a copy of the complaint, I would be happy to post it online here.

04.29.2008 at 3:37pm 0 Comments 0 Trackbacks

When Does Application of the Warsaw Convention End and State Tort Law Begin?

by Roger Alford

Last week a Florida state court rendered an interesting decision on the scope of application of the Warsaw Convention. The court recognized that state tort law is preempted by the Warsaw Convention, but the critical question in Bowe v. Worldwide Flight Services was at what point in exiting a plane does the application of the treaty end and state tort law begin.

The plaintiffs in this case allege they were injured as a result of an accident that occurred on an up escalator as they exited an area the parties describe as a “bus depot,” located one level below Main Concourse E at the airport, when Mrs. Ferguson, Mrs. Deleveaux's eighty-eight-year-old mother, apparently fell backward onto both Ms. Bowe and Mrs. Deleveaux, resulting in all three suffering personal injuries. The complaint alleges the defendants were negligent by failing to fulfill a request for wheelchair assistance made for Mrs. Ferguson, which caused the plaintiffs to fend for themselves and hence, the escalator accident.

The record reflects the accident in this case occurred on July 29, 2001. Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson had just arrived in Miami on an American Eagle commuter aircraft from Nassau. The aircraft arrived at a freestanding building, separate from the main concourse. In accordance with practice for aircraft arriving at that location, Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson departed the aircraft and boarded an American Airlines bus for the short trip to the main terminal. The bus brought them to the bus depot. Although it appears from the record the bus depot is served by two escalators and an elevator, at best the record is murky concerning ingress, egress, and the extent to which the general passenger populace on the concourses is free to enter the depot area….

The preemptive effect of the Convention on local law extends no further than the Convention's own substantive scope. In this regard, it is clear from the text of the Convention it applies only to a “carrier.” Warsaw Convention, art. 17. In addition, the Convention applies only to injuries occurring either on board an aircraft or “in the course of any operations of embarking or disembarking.” Warsaw Convention, art. 17. These requirements constitute the initial inquiries we must make to determine whether the Convention is applicable to the claims being made and those we must consider here….

The Warsaw Convention also does not define or elucidate upon the phrase “operations of embarking or disembarking.” See Warsaw Convention, art. 17. However, it is clear the term does not automatically exclude events transpiring, as is the case here, within an airline terminal building. Rather than impose location-based or other rigid criteria to delimit these periods of liability under the Warsaw Convention, courts employ a three-prong test or guide to determine whether a passenger is entitled to seek the benefits of the Convention by considering: (1) the passenger's activity at the time of the accident; (2) the passenger's whereabouts at the time of the accident; and (3) the amount of control being exercised by the carrier at the time of the injury. In addition, when considering these factors, these same courts have made clear that no single factor is dispositive. Instead, “the three factors form a ‘single, unitary [analytical] base.'"

That three-part test poses difficult questions as to when the application of the treaty ends and state law begins. Depending on what the passenger is doing, where they are doing it, and whether they are “controlled” by the carrier, the Warsaw Convention applies. The key idea is that there is a point in every flight of every passenger that he or she ceases to “disembark” from flight. At that exact moment state tort law applies. But before that moment, the Warsaw Convention applies and preempts contrary state law. So where should that line be? At the airplane door, the terminal gate, the baggage carousel, or perhaps the airport parking lot?

Incidentally, the court in Bowe makes no mention of Medellin and whether the Warsaw Convention should still be interpreted as a self-executing treaty in light of Medellin. Supreme Court precedent indicates that the Warsaw Convention is self-executing, but the preemption analysis in the Supreme Court’s decision in El Al Israel v. Tseng offers a useful comparison to the self-executing analysis in Medellin. In El Al Israel, the Court ruled that a “home-centered preemption analysis … should not be applied, mechanically, in construing our international obligations” and that the “text, drafting history, and underlying purpose of the Convention” should be examined to determine whether a treaty preempts state law. The Court also looked extensively to the interpretations given to the treaty in the “opinions of sister signatories.” Medellin, by contrast, focused primarily on text and the interpretion of the United States, which it said is entitled to great weight. As we try to make sense of Medellin, it would be useful to analyze why the Court ruled that the Warsaw Convention is self-executing in El Al Israel, but that in Medellin it ruled that Article 94 of the U.N. Charter is not.

04.29.2008 at 12:41pm 0 Comments 0 Trackbacks

Monday, April 28, 2008

Bellinger on the United States and the ICC

by Roger Alford

I think there is more to Bellinger’s speech on the United States and the ICC than Julian suggests. Let me just summarize the best parts of the speech. First, Bellinger emphasizes that the ICC is not a partisan issue:

A relatively straight line runs from the positions on the ICC taken by our Congress in 1990, to those of U.S. negotiators in Rome, to President Clinton’s decision not to seek Senate ratification of the Rome Statute and to recommend the same to his successor, and to the current position of the Bush Administration.

Second, Bellinger argues that this position is not likely to change with the next Administration:

Even if a future President were to advocate U.S. accession to the Rome Statute, he or she could very well face a skeptical reaction in the U.S. Senate. It’s worth bearing in mind that the American Servicemembers’ Protection Act – legislation that was not sought by the Bush Administration and that includes a range of restrictions on U.S. support for the ICC – passed the Senate in 2002 by a vote of 75-19, including the affirmative votes of Senators Clinton and McCain, as well as those of the current Senate Majority and Minority Leaders, Senators Reid and McConnell.

Third, if we accept that the United States will remain outside the ICC for the forseeable future, what should be the response? Bellinger has the following suggestion:

The core concerns of the United States about the Rome Statute have not been resolved during the past decade, and are unlikely to be resolved in the next decade, unless the Statute is changed. Accordingly, as we look forward, the United States will very likely remain outside the Rome Statute regime. This is a reality that ICC supporters should accept. Agreeing to disagree about the ICC is the essential first step toward developing a more mature and productive relationship that can effectively advance our shared goal of promoting international criminal justice. This will involve seizing opportunities for cooperative efforts where they exist and avoiding pitfalls that risk reigniting past tensions. We should be guided in our efforts by the premise that the ends we seek are far more important than the means by which we seek them. The United States and ICC supporters can do more to prevent impunity for serious crimes by working together than either can achieve on their own, and it is in our mutual interest to develop a relationship that recognizes this.

Finally, as for concrete ways that the United States and the ICC can work together in a cooperative manner, Bellinger mentions Darfur, the Security Council, and the Rome Statute review conference on a crime of aggression:

It is important that we put aside our differences on these issues because the next decade poses challenges that will require our collective efforts as well as pitfalls that risk further inflaming tensions over ICC issues. Let me now discuss a few issues that I think will shape the relationship between the United States and the ICC in the coming years.

A first area relates to the response to large scale and horrific crimes in Darfur. Absent a decision by the ICC to pursue an investigation or prosecution against a U.S. person, the outcome of the ICC’s Darfur work is likely to do more than any other factor in the near term to shape U.S. perceptions of the role and impact of the ICC…. Darfur is … a good example of an area where, with respect and goodwill on all sides, there may be opportunities for constructive cooperation….

A second more general area that will shape U.S. views and policy toward the ICC in the coming years will be the impact of the ICC’s work on the UN Security Council…. Now that the ICC is a reality, it will be important to the United States to ensure that the work of the ICC complements the work of the Council to maintain international peace and security…. As the ICC proceeds to investigate and prosecute cases under the Rome Statute, the Security Council must be prepared to act if and when necessary to ensure harmony between the ICC’s work and the Council’s broader efforts....

A final area that will shape U.S. views and policy toward the ICC is the outcome of the upcoming Rome Statute review conference, now scheduled for 2010. If Rome Statute parties were interested in trying to address the core U.S. concerns about the ICC, the Review Conference could provide an opportunity to do so. These issues aside, a principal focus of work of the conference will likely relate to proposals to define a crime of aggression over which the ICC could exercise jurisdiction…. Efforts to design an aggression regime for the ICC will also need to address the regime’s applicability to countries that are not parties to the Rome Statute. As I have noted, a core principle of our ICC policy is that, as we acknowledge the decisions of other states to join the Rome Statute and to submit to its jurisdiction, we ask that other states accept our decision not to do so. In this context, should Rome Statute parties seek to make an aggression regime they adopt applicable to non-parties, they will almost certainly provoke a serious new crisis in the ICC’s relationship with a new U.S. Administration.

I’m not sure whether this constitutes new rhetoric or not, but I like the notion that if the United States is not joining the ICC anytime soon, then we should move toward accepting that political reality and find ways to cooperate on areas where the United States and the ICC share common interests. I particularly think that developing a framework for a crime of aggression must be done with the close cooperation of the United States. As a practical matter the world has almost no other major defense force to support the cause of international peace and security. To think that our allies in the ICC would dictate to the United States how it will use those resources without input from the United States is a serious mistake.

Friday, April 18, 2008

Bellinger Speaks Out on ATS Litigation

by Roger Alford

Last week State Department Legal Adviser John Bellinger delivered an important speech at Vanderbilt Law School on Alien Tort Statute litigation. The speech was a fascinating analysis of the future of ATS litigation, particularly its costs and benefits. To my knowledge, the speech is the first comprehensive statement ever by a senior Administration official, Republican or Democratic, about the legal and policy issues posed by ATS litigation.

Bellinger starts with a nice summary of the significant legal questions that remain unanswered since Sosa:

This continued litigation under the ATS reflects fundamental problems with how lower courts have approached these suits. These problems center on five key issues: First, whether the ATS applies extraterritorially – that is, whether a U.S. court can properly apply U.S. federal common law under the ATS to conduct that occurred entirely in the territory of a foreign State. Second, even if such a cause of action could properly be recognized, whether exhaustion of adequate and available local remedies in that foreign country should be a prerequisite to bringing an ATS suit. Third, whether corporations or other private entities may be held liable under the ATS for aiding and abetting human rights abuses perpetrated by foreign governments. A fourth issue is how to apply Sosa’s requirement that an international-law norm be sufficiently accepted and specific. And fifth, in what circumstances should courts dismiss suits based on what Sosa referred to as “case-specific deference to the political branches”?

Bellinger then highlights the costs and benefits of ATS litigation. The three principal benefits of ATS litigation he outlines are: (1) promoting accountability and providing a public voice to victims; (2) raising public and political awareness of human rights abuses; and (3) advancing U.S. participation in the development of customary international law. But these benefits, he asserts, are not legal arguments, and may not be as great as they appear.

As for the costs, Bellinger identifies three: (1) ineffective relief in most cases; (2) “diplomatic costs” and the (3) “lack of democratic checks and accountability.” I think the diplomatic costs of ATS litigation are particularly important and real, and rarely included in the calculus of whether to allow ATS litigation to go forward. As Bellinger notes, the United States is perceived by other countries to be a “rogue actor” by encouraging international civil litigation against other countries but resisting efforts to hold the United States criminally responsible before international tribunals.

We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.

I think that argument of diplomatic costs has a tremendous amount of force. Of course, reasonable people may disagree as to whether that means we should curtail ATS litigation in the United States or welcome the possibility of international criminal litigation elsewhere against United States actors. The status quo, however, does appear duplicitous and understandably is perceived as such by other countries.

The absence of democratic accountability is another important cost of ATS litigation, and one that highlights the potential disconnect between Executive branch interests and the victims’ interests.

The Executive Branch has real interests in ensuring that as a matter of policy, ATS litigation does not interfere with its conduct of foreign relations. I have already noted foreign governments’ concerns about the scope of U.S. court jurisdiction under the ATS. In addition, recent ATS suits have been used by litigants to duplicate, replace, or proceed on top of the U.S. government’s systemic efforts to reform foreign government practices or help end foreign conflicts. Often, these suits are brought as class actions for all aliens injured by the challenged conduct, effectively asking the U.S. courts to serve as administrator of an international claims program for foreign nationals.

The solution, Bellinger suggests, is either for courts to exercise more restraint consistent with Sosa, or for Congress to introduce legislation that curtails ATS litigation in a manner akin to the Torture Victim Protection Act (which includes a statute of limitations and defined causes of action) or the Flatow Amendment to the FSIA (which allows for greater Executive branch involvement in limiting the scope of litigation).

The take away message is that Sosa’s attempt to rein in ATS litigation has largely failed and that if courts do not more carefully monitor this litigation it will continue to cause foreign relations problems.

It is an important message. I think it would be quite valuable for a scholar to carefully examine the various statements of interest and amicus briefs filed by the United States in over a dozen ATS cases, combined with the concerns expressed in Bellinger's speech to illuminate the foreign affairs concerns at stake in ATS litigation.

In sum, Bellinger appears to be echoing some of the concerns raised by the Supreme Court in Sosa. As the Court put it in that case, "Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution." Then again in a footnote the Court emphasized that a "possible limitation" to ATS litigation "is a policy of case-specific deference to the political branches.... In such cases [as the apartheid litigation], there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy." That foreign policy limit identified by the Court and now repeated by the State Department Legal Adviser has yet to be fully explored by the courts or scholars.

04.18.2008 at 12:26am 7 Comments 0 Trackbacks

Wednesday, April 16, 2008

Defense Perspectives on Law and Politics in International Criminal Trials: A Reply to Professor Heller

by Jenia Iontcheva Turner

Many thanks once again to Kevin Heller for his thorough review of the article, for his kind compliments, and for his very insightful comments. Kevin is highly qualified to evaluate the article, and I can already see that I am benefitting from this exchange. I am very pleased that he believes the article to be useful and that he agrees with me on a number of points. At the same time, I will take this opportunity to address a couple of the issues that he highlights as possible points of divergence.

First, I will address Kevin’s points about the undesirable effects of the ICTY’s and ICTR’s “Completion Strategy” and the ICTR’s decision to take judicial notice of genocide. The two are related. The decision to take judicial notice was made in an effort to expedite trials. This was also the main goal of the Completion Strategy, which is the term for the Security Council’s mandate that the tribunals complete their work in the next several years. As I pointed out in the article, to the extent that efficiency is pursued at the expense of fairness and accuracy, possibly leading to unjustified convictions, the tribunals may in fact be moving toward a political model, and one devoted above all to efficiency. (This may be a move toward a “managerial model,” to quote Maximo Langer, who has analyzed it in greater depth). It was beyond the scope of the article to examine the full effects of the Completion Strategy and this move toward efficiency. I agree with Kevin that the Completion Strategy has reduced the perceived fairness of the tribunals among a number of defense attorneys and outside observers (including Kevin himself, in his excellent piece in the American Journal of International Law). And to the extent that it has compromised defendants’ rights to present evidence, to confront witnesses, or to contest all the specific charges leveled against them, it may have, in fact, reduced the fairness of trials. So I would acknowledge that the Completion Strategy in some respects represents a shift toward the political goal of efficiency over the adjudicative goal of apportioning guilt and innocence in a fair manner.

At the same time, as I discussed in the article, commentators and defense attorneys sometimes overlook incidental effects of the Completion Strategy that may in fact favor defendants. For example, as some defense attorneys whom I interviewed acknowledged, the Completion Strategy has led judges to trim overbroad indictments and to discourage or prevent prosecutors from introducing evidence that is cumulative or unrelated to the charges against the accused. To this extent, it has nudged trials away from some of the broad political goals which animated the work of the court in earlier years—for example, the goals of pursuing a fuller historical record and giving victims the opportunity to achieve closure by testifying in court. In short, I believe that the effects of the Completion Strategy are complex and do not entirely favor the prosecution or the political model.

Next, I will address Kevin’s comments about some of my statements that he believes may express a dismissive attitude toward defense attorneys. Throughout the research and writing of the paper, I tried to maintain a neutral and detached perspective concerning the role of defense attorneys at international criminal trials. But it is instructive for me to see that some of the statements do not appear to be entirely balanced in the eyes of a careful and knowledgeable reader. I would like to provide some further explanation of my intended meaning with respect to some of the statements that Kevin quoted.

My statement that “[i]t is likely that, when defense attorneys refrain from political arguments, they are simply making a strategic decision,” did reflect the responses of some of my interviewees. A number of defense attorneys made statements such as “judges do not like political arguments” and “such arguments are generally useless.” This suggested to me that they decided not to make political arguments at least in part because they thought the arguments are not likely to be successful. I do agree that these comments do not provide a full explanation why defense attorneys refrain from political arguments, and I offered other explanations of the defense attorneys’ decision to do so –although these explanations were perhaps more tentative than I meant them to be. I pointed out that the distance of the international tribunals (and their lawyers) from the communities involved in the conflict may be a critical factor that enables the lawyers to avoid becoming embroiled in the political aspects of the trials. Second, in a later section, I explained how professional norms of attorneys further shape the decision not to make political arguments. Namely, I argued their education and work experience in an adjudicative model of criminal trials has likely instilled in them a respect for the rule of law and a reluctance to resort to political arguments. A number of attorneys simply believed that resorting to political arguments was not behavior befitting a good lawyer. This is a finding that was quite striking to me and I hope to examine it in greater depth a future essay on the professional norms of defense attorneys in international criminal tribunals.

Once again, I would like to thank Kevin for taking the time to read the paper so thoroughly, and for offering his very useful and thought-provoking comments. I look forward to continuing the conversation about the purposes of international criminal trials and about the role of defense attorneys in these trials.

A final thanks again to Opinio Juris and the Virginia Journal of International Law for giving me the opportunity to take part in this exchange.

Tuesday, April 8, 2008

Put the ICTY Archives Online!

by Julian Ku

As this essay in the invaluable Institute for War and Peace Studies argues, a debate over the final location of the ICTY's documentary archives is missing the point.

The archive of the ICTY is a vast and invaluable collection, and its holdings will be indispensible for anyone researching or investigating events of the 1990s, in any former Yugoslav republic.

But most importantly, it is a digitised archive. Over the past 15 years, ICTY employees have scanned virtually every document and made many of them searchable, so that anyone with appropriate access to the tribunal’s computers can find references to a person, place, word, or topic among the millions of documents gathered by tribunal investigators.

For purely historical purposes, this stuff should be available. Because I suppose legal liability will continue to be an issue even after the ICTY closes shop, there needs to be some filtering. Still, it is tempting just to put it all online. It's already digitized. And it would unleash the bloggers of the world (who speak the relevant languages) on the process of building a more complete historical record of the Balkan wars and their aftermath.

04.08.2008 at 12:30am 0 Comments 0 Trackbacks

Saturday, April 5, 2008

Did the Soviet Union Commit Genocide in Ukraine (And Can Law Help Answer This Question)??

by Julian Ku

Russia's lower house of Parliament has passed a resolution denying that the Soviet Union committed "genocide" in Ukraine during the 1930s. The resolution states:

"There is no historical proof that the famine was organized along ethnic lines. Its victims were million of citizens of the Soviet Union, representing different peoples and nationalities living largely in agricultural areas of the country."

Interestingly, the resolution does not appear to deny (as it could not credibly do anyway) that the Soviet Union leadership was responsible for a great famine in the 1930s Ukraine that led to millions of deaths. The defense (which seems very honest and credible to me is: we may have adopted policies that killed millions, but it was not targeted toward a particular ethnic group, so it was not genocide. It was just a tragedy.

The resolution appears to respond to efforts by Ukraine's government to treat the famine as a genocide (and the U.S. government's semi-support of those efforts). The resolution is drawing support from an unlikely source: Soviet-era dissident Alexander Solzhenitsyn.

Article 2 of the Convention on Genocide doesn't help much: "[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. . ."

The intent language is key here, and it really is a question of historical fact. Is there any evidence that Stalin intended to wipe out Ukrainians? This may be unanswerable, but maybe not. It strikes me that the Ukrainians have the burden to demonstrate this element and that the Russians are right to take umbrage here. No doubt the mass murder that occurred in the 1930s was a horrible thing which deserves as much attention as genocide. But not all mass murders are genocide. And the law can help us remember that key fact.

04.05.2008 at 12:02am 1 Comments 0 Trackbacks

Thursday, April 3, 2008

ASIL/ITA Program on International Arbitration

by Roger Alford

For those interested in international arbitration, the ASIL and the Institute for Transnational Arbitration will be hosting a one-day conference on Wednesday, April 9 in Washington, D.C. The topic is "Soft Law Instruments in International Arbitration." The schedule is available here. Plenty of big names from the world of international arbitration, including David Caron, Michael Reisman, James Carter, and Gabrielle Kaufmann-Kohler.

04.03.2008 at 5:11pm 0 Comments 0 Trackbacks

Wednesday, April 2, 2008

Ecuador Takes Colombia to the ICJ for Spraying Toxic Herbicides

by Julian Ku

Pardon me for missing this little news item, but the ICJ has another new case: Ecuador has applied to the ICJ over Colombia's alleged spraying of toxic herbicides over Ecuadorian territory.

Here is what Ecuador is seeking the ICJ to declare:

(a) Colombia has violated its obligations under international law by causing or allowing the
deposit on the territory of Ecuador of toxic herbicides that have caused damage to human
health, property and the environment;
(b) Colombia shall indemnify Ecuador for any loss or damage caused by its internationally
unlawful acts, namely the use of herbicides, including by aerial dispersion, and in particular:
(i) death or injury to the health of any person or persons arising from the use of such
herbicides; and
(ii) any loss of or damage to the property or livelihood or human rights of such persons; and
(iii) environmental damage or the depletion of natural resources; and
(iv) the costs of monitoring to identify and assess future risks to public health, human rights
and the environment resulting from Colombia’s use of herbicides; and
(v) any other loss or damage;

I don't know enough about this area of law to say whether this is a strong claim. I assume this claim will be brought under customary international law although Ecuador is also invoking the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. But this looks like a pretty interesting case, and one worth watching. Ecuador has recently had a run-in with Colombia over its raids on FARC rebels based in Ecuador, but perhaps since such a case would be ugly for both sides (is Ecuador harboring FARC?), no case on that front appears to be contemplated.

04.02.2008 at 11:04am 0 Comments 0 Trackbacks

Thursday, March 27, 2008

More Signs that Serbia is Giving Up on Kosovo: It Plans to Seek an ICJ Opinion

by Julian Ku

Serbia announced yesterday that it would seek an ICJ advisory opinion on the legality of Kosovo's declaration of independence. This, to me, is further evidence that the Serbs have no real ability to alter the Kosovo outcome; the plan now is just to harass from a distance and hope Kosovo falls apart on its own. In order to get an ICJ advisory opinion, the Serbs need a majority of the General Assembly to vote for a referral (good luck!) and even if they win that, the ICJ would give them ... an advisory opinion that might take years to produce.

03.27.2008 at 11:06pm 11 Comments 0 Trackbacks

Wednesday, March 26, 2008

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.

All Related Posts (on one page) | Some Related Posts:

Medellin and Youngstown
A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!
Justice Stevens Almost Gets It Right...
Medellin v. Texas and Treaties' End
First Reaction on Medellin, Self-Execution, Etc.
Comment on Medellin...
Medellin: My Early Thoughts
Medellin: An Insta-Symposium
Texas Wins Medellin

03.26.2008 at 12:03pm 0 Comments 0 Trackbacks

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?

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03.26.2008 at 10:24am 0 Comments 0 Trackbacks

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.

All Related Posts (on one page) | Some Related Posts:

Medellin and Youngstown
A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!
Justice Stevens Almost Gets It Right...
Comment on Medellin
The End of "Respectful Consideration" and the Birth of Disaggregated Deference
Further Thoughts on Medellin...
Medellin: My Early Thoughts
Medellin: An Insta-Symposium
Texas Wins Medellin

03.26.2008 at 12:05am 3 Comments 0 Trackbacks

Tuesday, March 25, 2008

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.

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03.25.2008 at 6:20pm 1 Comments 0 Trackbacks

Medellin v. Texas: Another Set of Early Thoughts

by Ernie Young

As lead counsel on the scholars’ amicus brief in support of Texas, I am not entirely unbiased here. But when one can get scholars with as diverse views of executive power as John Yoo and Erwin Chemerinsky to sign on to a brief arguing that the President has gone too far, it shouldn’t be entirely surprising to find that the Court agrees. Here are some early thoughts on the opinions:

1. This opinion certainly gives aid and comfort to those who have argued for a general presumption that treaties are not self-executing, although it might be a stretch to say it holds as much. The Chief’s majority opinion does strongly reject the dissenters’ opposite presumption, and that is important in itself. But keep in mind that the Chief carefully distinguishes between the different ways that treaties may or may not be self-executing. The Vienna Convention is plainly self-executing in that it binds the Houston police to give warnings without further implementing legislation, and it may be self-executing in the sense that individuals can assert violations on their own in court (the Court doesn’t decide). What the Court rejects is that the ICJ’s judgments under the treaty are self-executing in the sense of being directly enforceable in domestic courts. But Medellin was on unusually weak ground here to argue otherwise, given that the Executive had taken the position that such judgments are not self-executing, and both the Executive and the Court (in Sanchez-Llamas) were on record that the judgment to be enforced was incorrect on the merits. These things are going to have to be fought out treaty by treaty, which is probably the right result.

2. The presidential power holding, although it takes a back seat to the self-execution holding in the majority opinion, may be more sweeping in at least one sense. The Court holds pretty categorically that the President lacks power unilaterally to execute a treaty that is otherwise non-self-executing. In fact, the Court says that a determination that the treaty is non-self-executing means that Congress has implicitly disapproved actions to execute the treaty, placing presidential actions to execute it in Category 3, not 2, under Youngstown. Given the broad and amorphous nature of many of the non-self-executing treaties to which we are parties—think of some of the more open-ended trade or human rights instruments—a contrary holding would have been a broad grant of power to the President indeed.

3. The majority also takes what seems to be a major bite out of the sole executive agreement cases like Garamendi, Dames & Moore, and (looking further back) Pink and Belmont. Chief Justice Roberts says that these cases “involve a narrow set of circumstances” concerning the settlement of claims against foreign nations. It will be harder, in future, to cite Garamendi and Dames & Moore for open-ended presidential authority to create binding federal law by sole executive agreements without congressional action.

4. The internationalism of Justice Breyer’s dissent is really quite striking, as is the extent to which this case replicates the usual left-right split on the Court. (Justice Stevens concurs in the result, but his heart seems to be with the other liberals in dissent.) I think that’s unfortunate. The legal question dividing the Court in Medellin concerned the domestic effect of international law, and the allocation of authority between domestic and supranational courts. That should be a left-right issue only on the most cynical view of international law, which is that it provides a vehicle to achieve more liberal results on issues like the death penalty than the domestic political consensus would otherwise stand for. But even if we take that view, the truth is that both liberals and conservatives have things to gain and things to fear from increasing or decreasing the influence of international law and institutions in the domestic legal system. Free market conservatives may approve (and liberals disapprove) of decisions by supranational trade tribunals rejecting local environmental or labor laws, for instance. Reasonable people can differ about the extent to which we should open up the domestic legal system to international law and courts, but they should not differ on the traditional left-right grounds.

All Related Posts (on one page) | Some Related Posts:

Medellin and Youngstown
A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!
Justice Stevens Almost Gets It Right...
Making Texas Pay for Its Sins, or Why Ernesto Medellin May Live Out His Days in Prison
Medellin v. Texas: Another Set of Early Thoughts
Some More Quick Thoughts on Medellin...
Medellin: My Early Thoughts
Medellin: An Insta-Symposium
Texas Wins Medellin

03.25.2008 at 4:36pm 0 Comments 0 Trackbacks

Medellin v. Texas: "Modest and Fairly Careful"

by Paul Stephan

A first read through the Medellín opinions leads to tentative observations, subject to revision:

• Chief Justice Roberts’ opinion for the Court is modest and fairly careful. He does not articulate a presumption against self-enforcement, or offer a general interpretive template. The analysis of the Optional Protocol and the UN Charter is specific to those two instruments. As my prior briefs and published work indicate, I find this part of the opinion completely persuasive. I take issue with the glib assumption that a commitment to comply with an international tribunal’s decision implies an automatic assignment to the judiciary of the authority to ensure that the commitment is honored.

• Although the opinion is limited in the sense that it does not offer a general rule for inferring self-executing from treaties, its dicta states strong views (it might be too strong to say it disposes of) concerning several controversies that the academic community has taken seriously. (a) The Court understands self-execution to refer to all forms of domestic enforcement, not just to the existence of a private right of action. Its definition of self-execution in footnote 2 may clarify our discussing going forward, even if some may quarrel with the definition used. (b) Reservations, declarations and understandings that limit or foreclose self-execution of a treaty that might otherwise have domestic effect seem acceptable to the Court. The Sosa Court also hinted as much. (c) And the idea of domestic enforcement of the awards of international tribunals does not seem to cause any great concerns, at least in the abstract. This will disappoint some who have suggested that domestication of such awards might present problems under Article III or other constitutional provisions.

• As a teacher of comparative law, I was delighted to see the Court’s reliance of the evidence of other country’s enforcement of ICJ decisions. I missed seeing a discussion of the recent decision of the German Constitutional Court regarding the Vienna Convention, although it may be too recent, too complex, and too tangential to make any of the briefs. The basic point that domestic implementation of international obligations has a comparative component and that an appreciation of foreign practice enriches our understanding of our own.

• As I was serving in the Executive Branch at the time of the drafting of the U.S. amicus brief and the oral argument, I am disappointed by the last part of the Court’s opinion. I would have thought that there was more to the US’s argument that the Optional Protocol, the UN Charter, and 22 U.S.C. § 287 can be read as assigning to the President the discretion to implement ICJ decisions through changes in domestic law. This argument, to be sure, is neither clear nor ineluctable. Still, I came away feeling that the Chief Justice was a bit like the person who, having a hammer, sees everything as a nail. That is to say, the opinion works so hard to clarify and establish what it means to say that a treaty is not self-executing that it rushes past a plausible and even useful refinement, namely that the treaty makers in advance might specify a nonlegislative mechanism for deriving valid domestic law from an otherwise non-self-executing treaty. To accept this argument, one would have to see Dames & Moore , Belmont and Pink not simply as cases recognizing a limited Presidential power that inheres in Article II, but also an expression of the expectations of the legislative branches when authorizing the President to enter into dispute resolution with foreign states. One might still argue that the treaty makers or Congress have to do more than simply sign on to dispute resolution to give the Executive the authority to choose to implement an international award or not. But here the Court’s opinion struck me as less careful or persuasive than what went before.

• If I had had any doubts about the persuasiveness of the majority’s discussion of the non-self-executing issue, Justice Breyer’s dissent would have put them to rest. The Chief Justice was remarkably restrained in his deflection of the dissent’s very problematic claims and proposals.

• This will not end all Vienna Convention litigation. We still have to decide what, if anything, Section 1983 adds: The Circuits are split. So the gift to which Julian refers will keep on giving for at least a little longer.

All Related Posts (on one page) | Some Related Posts:

Medellin and Youngstown
A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!
Justice Stevens Almost Gets It Right...
Local Lad Makes Good: Hollis Cited in Justice Breyer's Medellin Dissent
Medellin v. Texas: "Modest and Fairly Careful"
Medellin and Congress...
Medellin: My Early Thoughts
Medellin: An Insta-Symposium
Texas Wins Medellin

03.25.2008 at 2:43pm 0 Comments 0 Trackbacks

Medellin's Lawyer Speaks!

by Julian Ku

My former boss and Medellin's counsel Donald Donovan (of Debevoise & Plimpton LLP) sends out this reaction to the Medelllin decision.

Donald Francis Donovan of Debevoise & Plimpton LLP, New York, counsel to petitioner Jose Ernesto Medellín, in response to the March 25, 2008 decision of the United States Supreme Court in MEDELLIN v. TEXAS:

We are disappointed in the Supreme Court's decision, which is a departure from the original intent of the framers of the Constitution and over 200 years of enforcement of treaties by U.S. courts. But the Court unanimously confirmed that the United States has agreed by treaty to comply with the Avena judgment, and that the United States has the means to comply with it. While the Court has held that another step is required, we are confident that the President and the Congress will take that step, to ensure that the United States complies with the commitment that the elected representatives of the American people made when they agreed by treaty to comply with ICJ judgments. Having given its word, the United States should keep its word.

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03.25.2008 at 1:27pm 0 Comments 0 Trackbacks

Medellin: My Early Thoughts

by Julian Ku

The Supreme Court's Medellin decision today brings to an end a fascinating decade-long series of interactions between the U.S. Supreme Court, the International Court of Justice, and various state governments. Beginning in 1998, the Supreme Court has now weighed in four times on the ICJ's various interpretations of the Vienna Convention on Consular Relations, the UN Charter, and the ICJ Statute (once in Breard, twice in Medellin, once in Sanchez Llamas). But although I could wish for yet more litigations, I think this is the last one, and it has been (from a legal academic standpoint) a wonderful ride.

The Court's decision today may be the most important of the four decisions, since it tries to clarify a number of questions about the self-executing treaties and relationship of international judgments and state law, and the President's power (or lack thereof) to carry out such international judgments. As a whole, Chief Justice Roberts's decision is clear and (mostly) convincing. And it rightly rejects the more aggressive claims of groups like the ICJ Experts and other international lawyers that filed amicus briefs.

Here are the key holdings, as I see them:

1) Self-Execution

The key portion of the majority's opinion is its analysis of the key treaty provisions (the Optional Protocol to the Vienna Convention on Consular Relations and Article 94 of the U.N. Charter) to conclude that these treaty provisions are not meant to be self-executing. The line between self-execution and non-self-execution has always bedeviled courts and commentators, but the Court here doesn't seem deeply troubled. All you have to do is carefully analyze the text of the treaty to determine the intent of the treaty-makers, and perhaps consider some external sources such as the executive's interpretations of the treaty and other states' practice under the treaty.

2) The Enforceability of International Court Judgments

The question of whether an international court judgment is enforceable directly in US courts is entirely a question that turns on the particular treaty or statute or executive agreement in question. There is no presumption in favor of enforcing international court judgments. On the other hand, as the Court makes clear, there is no reason that Congress or the treaty-makers could decide to give international court judgments direct enforceability. They just haven't done so here.

3) The President's Limited Domestic Foreign Relations Power

Surprisingly, given the general media focus and interest in this case, the President's attempt to enforce the ICJ judgments through a "Memorandum" does not occupy the Court too much (nor the dissent). The logic is again all about self-execution. If the treaty is not self-executing, then it is not federal law, and therefore it gives the President no further authority. Following Youngstown, therefore, we are at best in category two, where there is no express congressional authority. The President's general foreign affairs power, recognized by the Court in Dames & Moore and, most recently, in Garamendi, is limited too executive agreements involving civil claims by U.S. citizens against foreign states. (Why this doesn't also extend to claims by Mexican citizens against U.S. states, or the US in general, is not addressed other than that there is not longstanding practice in such cases).

My General Take:

I am on board for most of the Court's analysis, which seems fairly sensible and reasonable. It is not overreaching, since it makes clear that there are indeed treaties that are self-executing, and international court judgments that could be self-executing (just not these ones).

The most important part of the Court's opinion deals with self-execution, since its analysis there is the key the rest of the decision. And I don't think it creates a "presumption" against self-execution, even against self-executing international court judgments (even though it perhaps ought to). But that is a subject of deep complexity, which I hope others tackle in more depth today.

Where I part from the Court is its rather brief dismissal of its own precedents in Dames & Moore and Garamendi, which I read to recognize that the President could preempt state law claims by virtue of sole executive agreements or a general foreign relations power. This power, it seems to me, seems to fit pretty well here since we have a Presidential attempt to settle a claim by a foreign government by preempting inconsistent state court judgments. But the Court is unimpressed and suggests this would be too different since those cases involved civil claims by U.S. citizens against foreign governments, whereas this involves interference with a state's police powers.

My instinct has always been that somewhere, somehow, someone in the federal government has the power to vindicate the ICJ judgment led me astray. Absent legislation from Congress, an ICJ judgment is basically meaningless as a matter of domestic law.

There is one legal entity, of course, that has the power to give effect the ICJ judgment as well: the State of Texas. It is interesting that Justice Stevens' surprising concurrence rested in the end on a plea to Texas to come to its senses and give Medellin a hearing. Good luck! Still, Justice Stevens recognizes that, in effect, we are going to have to rely on state governments to carry out ICJ judgments, absent Congressional action. The States, I've argued in prior work, are becoming substantially important foreign policy players. This decision will only enhance this role.

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03.25.2008 at 1:04pm 1 Comments 0 Trackbacks

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Opinio Juris

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Monday, April 28, 2008

Friday, April 18, 2008

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Thursday, March 27, 2008

Wednesday, March 26, 2008

Tuesday, March 25, 2008

A weblog dedicated to reports, commentary, and debate on current developments and scholarship
in the fields of international law and politics