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Monday, February 21, 2005

Live Blogging for Curtis Bradley v. Lori Damrosch Event

Welcome to the debate over the Medillin case. I will serve as your humble live blogger. All typos are my own, and not the speakers.

Professor Flaherty serves as moderator:

"We are going to have a discussion which might blossom into a debate. We are here to discuss Medillin, and cutting edge issues of international law as a result. This includes self executing treaties, the interpretation of these treaties, and the resulting roles of the executive and the judiciary. The context is a death penalty case. We will hear first from Prof. Curtis Bradley, then Columbia's own Prof. Lori Damrosch, for 15 minutes each. This will be followed by a five minute discussion. Then, your humble blogger will attempt to ask a question.

Here's the background: The Vienna Convention on Consular Relations Art. IIIVI(B) has a requirement similar to the Miranda law. It requires notice to the consular post of a state if the national of that state is arrested or is awaiting trial. This has been interpreted to also give the detainee notice that he has the right to contact the consul.

Art. XCIV of the UN Charter requires member states to abide by the ICJ's judgments.

This is not the first time this has come up. In Briard v. Green, someone alleged he had not been given his notice in a timely fashion. He failed to allege this in a domestic court within the allowed time. This came before the ICJ, which ordered a stay until the ICJ could listen to the case on the merits. The U.S., though, did nothing to force Virginia to stay the execution.

The US Supreme Court said it was not bound by the stay order. First, because it was only temporary relief. Second, the Supreme Court held that a federal statute bolstering local death penalty rules took precedence over the ICJ and treaties like it.

Later, the ICJ reviewed the LeGrand case, where a German national alleged that he did not receive his Vienna Convention rights. The ICJ said that these rights were guaranteed under the convention, and that the US should grant relief. Avena involved 51 Mexican citizens in the US convicted of capital crimes. The ICJ said that the US States violated the Vienna convention by not giving notice of the right to contact consul, by not contacting Mexican consulate, and by not allowing the Mexican consul to provide attorneys. The ICJ ordered the US to review the convictions of these individuals by the means of its own choosing. From among these 51, we get the Medillin case, where the circuit court said there was no private right to relief. The court then denied relief and upheld the conviction.

Questions which arise:
1) Is the Vienna Convention the self executing law of the land?
2) Does it preempt state law?
3) Are individual rights under the Vienna Convention available for enforcement by the individual or only by that individual's nation?
4) What is the effect of the Avena doctrine? Can the US Delegate power to an international court, and if not, should there be persuasive deference granted.

Prof. Lori Damrosch

The reason the panelists are sitting is to make this seem less like a debate. Professor Damrosch filed an amicus brief herself, among with many others.

One thing which is not in dispute is the fact of a treaty violation. D was never informed of his right to contact the Mexican consul, nor was the consulate aware. The only question is the remedy. The ICJ thinks the remedy should be a reexamination of the conviction and the sentence in a hearing where the right under the Vienna Convention is thought of as more than a reason for mercy or clemency. In the German case, it was thought enough to have the executive recommend clemency. Prof. Damrosch points out that Bush was governor for many of these cases and happily signed the death warrants and your humble blogger is bored since he has heard enough subtle jabs against the Sainted President for one day. Clue number one that you are about to lose a debate: You cannot contain your hatred for successful conservatives long enough to stay on topic.

Back to the action. This is not a case about the death penalty, but about a consular treaty. This has nothing to do with whether the death penalty violates customary international law (good, because I would stop paying attention again). The amicus group that Damrosch joined had some who supported the death penalty and others who need better axes to grind.

Facts do matter in these cases. In the Supreme Court, facts are often not important, but here they are. The 51 cases from Mexico are all quite diverse, but they have this in common: they are all on trial for murder, they are all from Mexico, and no one was given notice or contact with the consulate.

Consular participation can make a big difference in developing facts at trial. That can change the outcome in a death penalty case, even if D will be found guilty. Why do these things matter? Language barriers, access to Mexican records, retention of experts, retention of supplementary council, etc., all are techniques used by the consulate which can be very effective.

For example, Professor Damrosch raises the case of someone sentenced to death in Oklahoma who reputedly had the weakest case in the history of Oklahoma (Boomer Sooner). The Supreme Court there remanded for consideration of the consular treaty, and the executive followed this up with a commuted sentence. This shows that the facts matter, the consulate can have an effect, and there is a role for the judiciary and the executive branch.

The Medillin facts are important, too. D's lawyer was incompetent and brought no records or personal history to show that this murder apparently wasn't so bad after all. Even if Medillin's council satisfies the constitutional test, the treaty sets up an independent test, because the consular office can offer different assistance in certain cases than the type of attorney assistance thought of under the Constitution.

Damrosch says that Federalists might not know enough about treaties. You have got to be kidding me. What is this based on?!? Here is the analysis that Prof. Damrosch is probably using. Federalists don't think that the Constitution is indifferent in its choice between the words "Congress" and "United Nations." Therefore, we are thought to be simpletons when it comes to international law, because we have yet to realize that efficacy in foreign relations should trump the Constitution. Prof. Damrosch will in fact make this argument in a few minutes. I will hold off until then. Stay tuned next week, though, for the Federalists versus Journal of Transnational Law international law contest. For those of an originalist bent, the framers did expect us to comply with international law. Framers thought that being a nation required adhering to international affairs requirements.

Key points about the Vienna convention (the lights go out in the room. I thought the Undertaker might show up to end this charade, but the lights go back on). It was adopted Under Article II with advice and consent of the Senate. There is no problem of Executive Agreements. Approval of this treaty was, in fact, unanimous. There is no issue of federalism. The framers would understand this as an appropriate use of the treaty power.

The president told the Senate that the treaty would require no legislation and was self executing. Therefore, it is the Supreme Law of the land, and is binding on all state judges, and should be used as a rule of decision in state and federal cases. Some would argue that Missouri v. Holland might apply here, but this seems as though an alien outside of his own jurisdiction is an appropriate subject for an international treaty. For example, Ware v. Hilton allowed a treaty provision between the US and England protecting Alien. Treaties protecting aliens should preempt state law. The stronger statement is that all state courts must effect the Vienna Convention in state court proceedings, and must use those interpretations of the ICJ to guide enforcement of the Convention.

No state has to opt into the system of dispute settlements under the ICJ. However, once a state has submitted itself to the jurisdiction of the ICJ, a state can by unilateral application bring a dispute over the application of a treaty to the ICJ. This judgment becomes a binding obligation under the UN Charter Art. XCIV.

Thus, the Vienna Convention binds the state court decision on Medillin, as interpreted by the ICJ.

We might contrast this to the system which existed before the Vienna Convention. Before this, consular relations were governed by consular international law. Disputes between the US and Mexico over consular relations have gone on for 150 years, with the US often complaining that Spring Breakers were arrested in Mexico and not allowed to contact the consulate. These disputes were subjected to ad hoc tribunals, which generally agreed that an alien should have the right to contact his consulate.

The US took the lead in requiring binding judgment to govern the Vienna Convention. The US itself demanded its enforcement in the Iran Hostages situation.

Damrosch thinks there is an area of disagreement between Prof. Bradley and Prof. Damrosch. She does not think that all judgments of the ICJ are not necessarily self executing in US Law. This one is special since the treaty was presented as directly applicable, requiring no implementing legislation.

The Nicaragua case might be different. There, the ICJ held that US policy towards Nicaragua was illegal under customary international law. This lends itself to political action as opposed to judicial action. However, judgments implementing self executing treaties are different.

Curtis Bradley

Thanks to everyone. These issues raise novel questions of the relationship between the US and international institutions.

3 general points by way of overview for how the case should come out. Mere fact that US has an obligation under International law to provide review and reconsideration does not tell us how an obligation is to be implemented within a US legal system. Everyone considers these separate questions.

Second: While Avena interprets US treaty obligations in a way binding on the US, the decision itself is not a treaty of the United States. The fact that this is an interpretation of a treaty and not a treaty has relevance for the status of the obligation.

Third: We are missing one key piece of the puzzle. We need to know the opinion of the executive branch as to what the court should do to accommodate international obligations.

Here's the bottom line. The case should be resolved as follows: There is a serious technical problem in this case, which could lead to the case being dismissed without getting to the merits.

If we do get to the merits, the Avena decision should not be enforceable in US courts, nor should any other ICJ opinion. The petitioner, though, may never the less have rights which might be informed by what the ICJ thought was the meaning of the treaty. Lastly, petitioner should be required to pursue this claim in the state court in the first instance. This is compelled by statute and by the federalism whiff of the case. Therefore, Bradley hopes the Court affirms and send the challenge back to the state court system.

The Federal Habeus statute requires treating this in the state court. The habeus statute allows raising claims for constitutional, state, or treaty rights. However, to appeal a denial, one must show a substantial denial of a constitutional right. There is no other basis for a federal appeal.

Here, the only obligations are treaty obligations. There are no constitutional obligations. When there is a conflict between a past opinion and reaching the merits, the Court should take the procedural out and not engender conflict with the past precedent. Someone could claim the treaty preempts state law, as governed by the constitution, but this is not a constitutional right within the cognizance of the statute. No one is claiming this is a constitutional right, any more than any time a statute preempts a state law. (I ask all our readers, though, to please Cf. Judge J. Harvie Wilkinson's excellent piece in the Columbia Law Review, Our Structural Constitution, in which he makes the claim that thinks like preemption, separation of powers, federalism, etc., are all collective rights).

Assuming the Court finds a way to get to the merits, Prof. Bradley thinks the treaty should be observed, and is the supreme law of the land, but that the ICJ judgment need not be enforced at this stage. None of the questions in the petititon for cert dealt with whether the Vienna Convention was the supreme law of the land. The only question is whether the ICJ ruling has direct effect because of a legal requirement or a notion of comity.

ICJ decisions are not the equivalent of Supreme Court decisions or any other binding precedent which could override state local procedure. The treaty might be able to override state law. However, it is not clear where the law comes from if the override comes from an ICJ decision. Only nation states can bring claims in the ICJ. The only enforcement mechanism for an ICJ decision is through the Security Council (see the UN Charter) at their discretion. This shows enforcement has a political, not judicial, character. The UN Charter says decisions should be undertaken by nations, but there is no self executing remedy. The Security Council has never enforced an ICJ judgment.

Under the constitution, only 3 kinds of laws can override local procedural law: statutes, treaties, and the US Constitution. Decisions of the ICJ cannot do so. It would be fine for the US Supreme Court to AGREE with the interpretation of the ICJ and enforce the Vienna Convention. However, the decision itself cannot override state law. The same is true for WTO decisions (which are enforced by a congressional scheme). There is no direct effect of a WTO decision. No such statute exists to give effect to ICJ decisions.

Giving direct effect to an ICJ decision would raise constitutional concern. It would allow non-US judges to exercise the judicial power and displace the law of the several states. It would intrude on state sovereignty by infringing on the world of criminal procedure. It is one thing to allow treaty makers this invasion, but another thing to allow unrepresentative international judges to have this authority.

Comity: We often give comity to the decisions of the courts of other nations. There are many differences between that kind of judicial relationship and this situation. Normal comity is to other NATIONS' courts, not to supranational bodies. Also, it is only for private law (and not criminal) matters, and is ALWAYS superceded by public policy rationales. The state of Texas here has a strong public policy reason supporting procedural default.

These are legitimate, neutral rules of state procedures. They can be applied to the most important rights of the Bill of Rights. Comity clearly does not go farther than the Bill of Rights.

The best argument petitioner has would be to focus on the underlying Vienna Convention. That says something about individual rights, and comes in a treaty (which we know can override state procedure). Petitioner did not pursue this argument though. One reason for this is a concern over what the executive branch will say. If the Executive Branch comes in and says that the ICJ misinterpreted the treaty, the Supreme Court might be likely to side with the President, since the Executive Branch negotiated the treaty. By the petitioner's route, it DOESN'T MATTER what the executive says, since the ICJ ruling has weight of its own accord. While this is a serious weakness, it avoids the Exec branch problem.

Back to Damrosch --- Discussion

The Supreme Court has seen some of these issues before. The Court has felt that INTERIM orders are not binding, and that state procedural default controls over Art. XXXVI . This was shown wrong in later ICJ cases, where the ICJ said that state procedural rules have to give way to treaty obligations.

Damrosch thinks the ICJ judgment is the governing interpretation of the treaty, and so the treaty needs to be given effect. She thinks that the US should not be able to unilaterally decide the interpretation of the treaty, but that if the convention is accepted without reservation, and if the US accepted the binding judgment of the ICJ, then they accept the authoritative interpretations of the treaty.

In Spring 2004 (now Prof. Damrosch is trying to say mean things about Scalia. Wait for the lightning bolts), Scalia dissented and said his colleagues did not pay sufficient attention to intermediate opinions interpreting the treaty.

On the lack of a filing of an Executive Position: She thinks there was an error in not supporting the petitioner. What happens if there is no executive position developed by the deadline? This would not mean the courts would be free to do whatever they want. They would still have to enforce the obligations of the US.

The executive branch argued vigorously at the ICJ and lost. They probably will not advance these arguments again. The Supreme Court usually says that it has the final say in the meaning of interpretations for domestic applications of treaty law, but this might not mean that controls over an ICJ interpretation.

Prof. Bradley Again

On the technical issue: Since we can affirm on any ground, affirming on the plain text of the habeus statute makes sense.

On Briard: The idea that the treaty might prevail is different from the idea that the ICJ decision has a res judicata effect. If it did have effect, it would only be binding to the parties in this case and would have no precedential effect for future litigants. However, if the US Supreme Court adopts the ICJ rationale as a domestic interpretation of the treaty, there would be a precedential effect to that new decision. All future litigants would get the benefit of what the ICJ thinks.

Even if the ICJ decision is authoritative as a matter of international law, that doesn't get us to the point of finding enforcement WITHIN the US legal system. Even the ICJ has said the enforcement of the treaty should be by means of the US's own choosing. If these things are automatically enforceable, most nations are in non compliance. No nations enforce ICJ decisions directly.

Could Congress commit to do this? Damrosch thinks we already have. All we have committed to do is to allow the ICJ to figure out what rights exist under the treaty. We have not committed our domestic judicial machinery to enforce the decisions of the ICJ.

Even if Congress doesn't act, the states can be the proper forum for solving treaty disputes. They can allow for review and reconsideration based on the Vienna Convention claims. If, though, the executive disagrees about the meaning of the treaty, we don't know what happens.

Question I: By St. Thomas More (This would have been your humble blogger's question)

What is the limit of our ability to cede interpretations to international courts? Is the Bill of Rights a check?

A: Damrosch

Congress has enacted implementing legislation for several international adjudication systems (like WTO), where Congress says the international adjudication is not self executing. The Senate here made a conscious choice to the contrary. They didn't reserve any power to decide otherwise.

Ceding interpretation to international treaties is inherent in the nature of international agreements. The uniformity itself is a virtue.

Question II:

Two pronged question. I would rather this not happen. I hate two pronged questions, because they are really two questions. Let's skip this one.

Question III:

General question on the bricker amendment. Isnt the bias that all treaties are self executing, if Senators felt like they needed an amendment to make all treaties non self executing?

Answer: Bradley:

Most treaties do not have clauses on self execution, which does not resolve the question of whether a treaty is self executing. It has never been thought that ICJ decisions by their own force can be directly enforced in the US courts. This is not because we want to reject the ICJ's decisions. We might want to amend statutes, which the courts cant do.


Usually, international judgments are complied with. Some states do treat them as directly operative.

Question from the Moderator:

Is there no limit substantive limit on reviewability by Article III courts when there is delegation internationally? When there is delegation domestically, there is at least some review (even if it as light as Chevron deference). Does Damrosch think even this doesn't exist in the international context?


If we concede that one side cannot determine obligations under a treaty, and there has to be an objective meaning, then we would have to say that both sides' highest courts should give effect to the meaning determined by the dispute settlement body.

Question For Bradley:

What happens if a foreign state would bring this suit to the US Supreme Court as a matter of original jurisdiction? Would that eliminate the difference between treaty obligations and their judicial interpretations? Also, is there any way to have any meat on such law like issues, without allowing for judicial enforcement?


If Individuals are mentioned as potential claimants in European international law, they still only have a judicial remedy if provided under domestic law. Here, there is no individual mention and no mention of a judicial remedy.

Looking to historical practice, there have been no situations of domestic effect of international obligations without separate Congressional action.

Good Question by Someone in the Back:

If the US would be in violation of international law by not abiding by the ICJ opinion, isn't it fair for a judge to see himself as part of the state and therefore to try and place the state in compliance.


If the executive says nothing, the Supreme Court might enforce the ICJ judgment, since there are no counterveiling domestic policy reasons. However, if there is a domestic legal problem (constitutional for example), a court must be faithful to the domestic legal order over the international agreement. The hardest case is if the executive disagrees. The court has some responsibility to let the executive be the nation's spokesman on international affairs, but has counterveiling responsibilities to enforce the nation's commitments under international law.

However, if the ICJ's reading was less reasonable, it would be fair to defer to the reading of the political actors.


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Anonymous mia76 said...

Why did he have to say "Only nation states can bring claims in the ICJ." instead of just states?

12:39 PM  

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