Briefly resuscitating the great writ: the International Court of Justice and the U.S. death penalty.

• Author: Karamanian, Susan L.
• Position: Symposium: "Outsourcing Authority?": Citation to Foreign Court Precedent in Domestic Jurisprudence

1. INTRODUCTION

   A single judgment of a non-U.S. court, the International Court of Justice (ICJ) in The Hague, tackled troubling aspects of the post-conviction death penalty process in the United States. The ICJ decision, Avena, (1) had altered U.S. death penalty jurisprudence beyond what even the U.S. Supreme Court seemed willing to do. (2) The ICJ, the principal judicial organ of the United Nations that sits thousands of miles from the U.S. coast, took direct aim at procedural hurdles in the U.S. system that have denied meaningful review of arguably meritorious claims. In addition to exposing flaws, the ICJ's judgment in Avena required the United States to take corrective measures. The reach of Avena ran from state trial courts to the U.S. Supreme Court, from the office of state governors to the office of the U.S. President.

   Avena had the potential for making an impact greater than Atkins v. Virginia (3) and Roper v. Simmons, (4) recent U.S. Supreme Court cases involving the death penalty which have captured considerable attention for their citation to foreign precedent. My remarks address this observation. They also raise concerns about whether the promise of Avena can be fully realized given fairly entrenched principles of U.S. habeas jurisprudence. In fact, on the eve of the publication of these remarks, the U.S. Supreme Court issued its ruling about domestic implementation of Avena. The effect of the ruling is briefly addressed in a postscript to this paper.

2. THE FOREIGN PRECEDENT DEBATE AND THE ICJ

   As this symposium focuses on the citation to foreign precedent in U.S. jurisprudence, at the outset, I would like to provide some thoughts on the topic in general and then briefly address how the ICJ fits into the discussion. Judges, government officials, and academics seem preoccupied, nearly obsessed, with the role of international law or foreign law in the U.S. system. The debate de jour is whether U.S. courts are authorized to cite to foreign court decisions or foreign opinion to give meaning to the U.S. Constitution. A well-demarcated line has been drawn. On the one hand are those who believe U.S. courts should not consider foreign law in interpreting the Constitution. (5) On the other hand are those who recognize that foreign decisions may provide useful insight into certain aspects of the Constitution. (6)

   With the line drawn, the sides seem to be talking past each other. The dialogue is reminiscent of the endless discussion on whether, in interpreting the Constitution, the Court can look beyond the founders' original intention. (7) The "foreign" aspect has added a touch of xenophobia as U.S. judges who look beyond U.S. borders are accused of "impos[ing] foreign moods, fads, or fashions on Americans." (8)

   Even participants in the fury have suggested that the matter has the makings of a tempest in the teapot. Justice Stephen Breyer reasonably asks about the harm in "opening your eyes to things that are going on elsewhere" and using that information "for what it's worth." (9) Further, while looking at foreign precedent may be "dramatic ... it isn't really the important issue." (10) Indeed, amid the big fuss, and perhaps lost in the sea of over-reaction and hype, is that foreign law and international law are finding their way into U.S. jurisprudence in a meaningful manner because they are central to resolution of specific disputes before U.S. courts.

   The decision of one non-U.S. tribunal in particular, the ICJ in The Hague, has affected a controversial area of U.S law with substantial constitutional implications, the death penalty. Invoking the ICJ into the debate on foreign precedent may seem odd. First, the ICJ is not a "foreign" court that applies foreign law; it is the principal judicial organ of the United Nations that, among other responsibilities, resolves disputes between states consistent with the ICJ Statute. (11) Some of those who have raised questions about the use of foreign law to interpret the Constitution, however, also object to the "[e]levated [u]se of [i]nternational [s]ources." (12) Second, at least the United States has some say as to who sits on the ICJ. As a member of the UN General Assembly and as a member of the UN Security Council, the United States votes on the fifteen ICJ members. (13) But, the ICJ is not a U.S. court. Driving some of the objection to using foreign precedent is that the law emanates from a tribunal that is not American. (14)

   Perhaps the most penetrating reason for questioning the ICJ's relevance in the foreign precedent debate stems from the role of treaties under the U.S. Constitution. Under the Constitution, a treaty is the supreme law of the land. (15) The U.S. President has the authority to enter into a treaty with the advice and consent of two-thirds of the U.S. Senate. (16) U.S. courts typically cite to ICJ decisions when the dispute at issue involves a treaty to which the United States is bound and the ICJ has resolved matters relating to the treaty. (17) The U.S. Supreme Court has also looked at a decision of the ICJ for guidance in resolving maritime boundary matters between states and the United States. (18) A court's citation to the decision of a foreign court, the Supreme Court of Canada for example, to give meaning to the Constitution is arguably different because some see it as an attempt to inject a foreign legal standard that otherwise would be irrelevant.

   No doubt, the distinction as to how the decision of a foreign court comes into the U.S. system is critical. Indeed, under the UN Charter, the United States has agreed to comply with an ICJ decision to which it is a party, and if it fails to do so, the other party may seek relief in the UN Security Council. (19) As Justice Scalia has observed, as to a treaty, U.S. courts should "give considerable respect to the interpretation of the same treaty by the courts of other signatories" as the treaty is designed "to establish a single, agreed-upon regime" for the signatories. (20)

   The issue of how law comes into the U.S. legal system is undoubtedly important, but it may not have the final say about the effect of that law once it starts appearing and re-appearing in U.S. courts. It is this development to which I now turn.

3. THE ICJ MEETS THE U.S. DEATH PENALTY, OR IS IT THE OTHER WAY AROUND?

   1. The Vienna Convention on Consular Relations

      The United States is a State party to the Vienna Convention on Consular Relations (Vienna Convention) along with more than 160 other nations. (21) Article 36 of the Vienna Convention establishes a regime under which a national from a State party to the treaty (sending State) who is present in another State party (the receiving State) is entitled to access the sending State's consular post and receive certain assistance from it upon arrest or detention. (22) In particular, Article 36(1)(b) requires authorities of the receiving State, without delay, to inform the foreign national of "his rights" under Article 36(1)(b), including the right to have the consular post informed of the foreign national's arrest or detention and to forward any communication from the foreign national to the consular post. (23) Under Article 36(1)(a), consular officers are authorized to communicate freely with and have access to the foreign national, and the foreign national has the "same freedom ... to communicate with and [have] access to consular officers." (24) Under Article 36(1)(c), consular officials have the right of access to the foreign national for purposes of arranging legal representation. (25)

      The Vienna Convention goes beyond imposing a duty on the receiving State to provide the requisite notice and consular access. Of significance is that the State's "laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article [36] are intended." (26)

      The Article 36 regime of consular assistance and access protects the foreign national who is in a foreign country and faces the prospect of criminal sanctions under a foreign legal system and, perhaps, in a foreign language. As the United States earlier acknowledged before the ICJ, Article 36 "establishes rights not only for the consular office but, perhaps more importantly, for the nationals of the sending State who are assured access to consular officers and through them to others." (27)

      Obviously, when death is a possible sanction, the need for assistance and guidance is critical. In the United States, capital murder trials and appeals, which are usually conducted under state law, are complex. The trial itself is actually two trials, the guilt-innocence phase and the sentencing phase. (28) The lawyer handling the case must have substantial legal expertise in both aspects of the trial. Although indigent defendants are entitled to court-appointed counsel, in many instances the quality of representation is marginal. In addition, the post-conviction review process, which involves the submission of habeas petitions in state courts and federal courts under strict procedural rules, is a minefield waiting to trip up those lacking the expertise to maneuver through statutes and other relevant legal principles, some of which have their roots in the unique U.S. federal system. (29) The combination of these factors and others makes it nearly imperative for the foreign national to have consular access and support when faced with the charge of capital murder.

      Until March 9, 2005, the United States was a party to the Optional Protocol Concerning the Compulsory Settlement of Disputes. (30) Under the Optional Protocol, the United States consented to the ICJ's compulsory jurisdiction to resolve "[d]isputes arising out of the interpretation or application of [the Vienna Convention]" filed by a party to the Vienna Convention and the Optional Protocol. (31)

   2. The ICJ Reviews U.S. Practice under the Vienna Convention

      The ICJ has been pulled into the U.S. execution process on three distinct...