Finding the Right Framework for Medellin
Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by a written application made by any party to the dispute being a Party to the present Protocol.The Optional Protocol establishes a process by which signatories to the Vienna Convention can turn to a neutral arbiter, the ICJ, to settle disputes over the meaning and effect of the primary treaty. Significantly, the United States is committed to the Optional Protocol by treaty, and thus, just like the Vienna Convention, the Optional Protocol is the "supreme Law of the Land," binding on federal and state courts and capable of preempting state law. The Avena decision was the outcome of a treaty-based procedure for dispute resolution and should be recognized as such. Of course, the Avena decision is not a treaty in and of itself, but it is the outcome of a treaty-based process entered into by the United States -- this is what Professor Damrosch was (in my mind, mistakenly) analogizing to decisions of the U.S.-Iran claims tribunal.
So, with this in mind, the question remains: what role should the Optional Protocol play in the context of the Medellin litigation?
Here I agree with Professor Bradley et al. that the United States Supreme Court is the final arbiter of what will (and will not) preempt state law. We know that treaties can preempt state law, and, in this case, the Court will decide whether the Vienna Convention preempts Texas' procedural default rules -- with the Breard decision most likely hanging in the balance. The Supreme Court may or may not agree with the ICJ's analysis in Avena that state law is preempted, but the contention that Avena can somehow bind the Court as a "rule of decision" (or have "direct effect" in the American legal system) is just plain fanciful.
Getting back to my earlier point, I think the "rule of decision" argument is rooted in the fact that the Optional Protocol is itself a treaty. Petitioner's amici use this fact to argue that Avena, by sheer force of the Optional Protocol's treaty status, must also be "the supreme Law of the Land." As noted below, this is wrong.
The argument of amici runs roughly as follows: (1) as a default, the Supreme Court gets to determine the preemptive effect of a treaty (e.g. the Vienna Convention); (2) here, however, there is a second treaty (the Optional Protocol) that tells us how to determine the preemptive effect of the Vienna Convention; (3) the Optional protocol takes the decision about the Vienna Convention's preemptive effect out of the hands of the Supreme Court and gives it to the ICJ; (4) as a result, the Supreme Court now has a rule of decision on the preemptive effect of the Vienna Convention (i.e. Avena) courtesy of the ICJ; (5) this rule of decision is binding on the Supreme Court because the Optional Protocol is a treaty and thus the "supreme Law of the Land."
Of course, this is all wrong. The Optional Protocol cannot take away the Supreme Court's power to decide the preemptive effect of another treaty. As a certain Federal Courts instructor likes to scold his students: "That's Marbury!" Unfortunately for Medellin's amici, the Optional Protocol cannot turn Avena into a binding "rule of decision" for the Supreme Court. In our constitutional system, the Supreme Court cannot be bound, even by treaty, to rubber stamp the ICJ's determinations about "what the law is." To hold otherwise would allow precisely the type of "upward delegation" that Professor Damrosch dismissed out of hand in the debate on Monday.
None of this is to say that the meaning and application of the Vienna Convention are not best explicated by the ICJ. Moreover, the Supreme Court might decide (and with good reason) to look at the ICJ's holding in Avena as highly persuasive authority. But for Medellin to win, the Supreme Court, and not the ICJ, must find that the Vienna Convention preempts Texas law.