Treaty-making power

• Pages: 40-50

Page 40

In 1969, the U.S. President, having obtained the consent of the Senate, ratifi ed the Vienna Convention on Consular Relations (Convention), Apr. 24, 1963, [ 21 U.S. T. 77; T. I. A. S. No. 6820; 596 U. N. T. S. 261; in force for U.S. Dec. 24, 1969] and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (OP) Apr. 24, 1963, [1970] [21 U.S. T. 325; T. I. A. S. No. 6820].

Toward that end, the drafters included Article 36(1)(b) of the Convention to facilitat[e] the exercise of consular functions. It provides that if a person detained by a foreign country so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State of such detention, and inform the [detainee] of his righ[t] to request assistance from the consul of his own state, here that of Mexico.

The OP provides a venue for the resolution of disputes arising out of the interpretation or application of the Convention. Under the OP, such disputes shall lie within the compulsory jurisdiction of the International Court of Justice (ICJ) and may accordingly be brought before the [ICJ] ... by any party to the dispute being a Party to the present Protocol.

The ICJ is the principal judicial organ of the United Nations. U. N. Charter, (UNC) Art. 92, 59 Stat. 1051, T. S. No. 993 (1945); See also Statute of the International Court of Justice (ICJ Statute), 59 Stat. 1055, T. S. No. 993 (1945).

Under UNC Article 94(1) [e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party. The ICJ's jurisdiction in any particular case, however, is dependent upon the consent of the parties.

In 1946, the U.S. had originally consented to the general jurisdiction of the ICJ when it fi led a declaration recognizing compulsory jurisdiction under Art. 36(2). The U.S., however, withdrew from general ICJ jurisdiction in 1985. See 24 I. L. M. 1742 (1985). By ratifying the OP to the Convention, however, the U.S. consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. On March 7, 2005, after the ICJ's adverse judgment in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Avena), the U.S. withdrew from the OP to the Convention.

In 1993, a Texas jury convicted Petitioner Jose Ernesto Medellin and members of his street gang of attacking two girls aged 14 and 16 in Houston, Texas. The gang raped them for one hour. To rid themselves of witnesses, they then murdered the girls. Petitioner, a citizen of Mexico residing in the U.S., was personally responsible for strangling at least one of the girls with her own shoelace.

Less than three hours after his arrest, Petitioner confessed. Local authorities, however, never notifi ed Petitioner that he could ask for aid from Mexican consular authorities. During later attempts to have his Texas conviction reviewed, Petitioner violated various generally applicable Texas procedural rules limiting the number of appeals and applications for habeas relief in thePage 41 Texas courts. In Avena, the ICJ later concluded that the Texas authorities had breached Article 36(1)(b) of the Vienna Convention by failing to notify 51 named Mexican nationals, including Petitioner, of their Convention rights to consular aid. The ICJ found that those named individuals were entitled to review and reconsideration of their U.S. state-court convictions and sentences regardless of their failure to comply with state procedural rules dealing with post-conviction challenges to their criminal convictions.

In Sanchez-Llamas v. Oregon, 548 U.S. 331- handed down after Avena but involving parties not named in the Avena judgment-the Supreme Court held, contrary to the ICJ's determination, that the Convention did not preclude the application of state procedural default rules. The President then issued a Memorandum declaring that: "I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases fi led by the 51 Mexican nationals addressed in that decision."

Relying on Avena and the Memorandum, Petitioner fi led a second Texas state-court habeas application which attacked his state conviction and death sentence on the ground that the state authorities had not told him about his Convention rights. The Texas Court of Criminal Appeals dismissed Petitioner's application as an abuse of the writ, concluding that neither Avena nor the Memorandum constituted binding federal law that could displace the State's limitations on fi ling successive habeas applications.

The U.S. Supreme Court granted certiorari and now affirms. In a 6 to 3 vote, the Court concludes that neither Avena nor the President's Memorandum constitutes directly enforceable federal law that preempts state limitations on the fi ling of successive habeas petitions.

In the fi rst place, the Avena judgment is not directly enforceable as domestic law in state court. "While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be 'self-executing' and is ratifi ed on that basis. See, e.g., Foster v. Neilson, 2 Pet. 253, 314. The Avena judgment creates an international law obligation on the part of the U.S., but it is not automatically binding domestic law because none of the relevant treaty sources-the OP, the UNC or the ICJ Statute-creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted."

"The most natural reading of the OP is that it is a bare grant of jurisdiction. The OP says nothing about the effect of an ICJ decision, does not commit signatories to comply therewith, and is silent as to any enforcement mechanism. The obligation to comply with ICJ judgments is derived from UNC Article 94 which provides that '[e]ach ... Member ... undertakes to comply with the [ICJ's] decision ... in any case to which it is a party.' The phrase 'undertakes to comply' is simply a commitment by member states to take future action through their political branches. That language does not indicate that the Senate, in ratifying (sic) the OP, intended to vest ICJ decisions with immediate legal eff ect in domestic courts."

"This reading is confi rmed by Article 94(2)- the enforcement provision-which provides the sole remedy for noncompliance: referral to the U. N. Security Council by an aggrieved state. The provision of an express diplomatic, rather than judicial, remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. [Cite]. Even this 'quintessentially international remed[y],' is not absolute. It requires a Security Council resolution, and the President and Senate were undoubtedly aware that the U.S. Page 42 retained the unqualifi ed right to exercise its veto of any such resolution." [Slip op. 1].

"The ICJ Statute, by limiting disputes to those involving nations, not individuals, and by specifying that ICJ decisions have no binding force except between those nations, provides further evidence that the Avena judgment does not automatically constitute federal law enforceable in U.S. courts. Petitioner, an individual, cannot be considered a party to the Avena decision. Finally, the U.S.'s interpretation of a treaty is entitled to great weight, [cite], and the Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law."

"The [Texas] Court's conclusion that Avena does not by itself constitute binding federal law is confi rmed by the 'postratifi cation understanding' of signatory countries. See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 . There are currently 47 nations that are parties to the OP and 171 nations that are parties to the Convention. Yet neither Petitioner nor his amici have identifi ed a single nation that treats ICJ judgments as binding in domestic courts. The lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts. [Cite]."

General principles of interpretation further support the Court's conclusion. "Given that the forum state's procedural rules govern a treaty's implementation absent a clear and express statement to the contrary, ... one would expect the ratifying parties to the relevant treaties to have clearly stated any intent to give ICJ judgments such eff ect. There is no statement in the OP, the UNC, or the ICJ Statute that supports this notion. ..."

"This Court's holding does not call into question the enforcement of ordinary foreign judgments. An agreement to abide by the result of an international adjudication can be a treaty obligation like...