Breard, our dualist Constitution, and the internationalist conception.

• Author: Bradley, Curtis A.
• Position: Breard v. Greene

In its decision last Term in Breard v. Greene, the Supreme Court refused to stay the execution of Angel Breard, an inmate in Virginia, even though Virginia had violated a treaty on consular relations and the International Court of Justice had ordered the United States to "take all measures at its disposal" to stay the execution. The international law academy has been heavily critical of the Supreme Court's decision and other aspects of the United States' handling of the Breard case. In this article, Professor Curtis Bradley argues that the criticisms by the academy reflect an "internationalist conception" of the relationship between international law and U.S. domestic law. This conception presumes that international law must be incorporated into domestic law, that international law should supersede domestic law when the two conflict, and that "foreign affairs exceptionalism" should provide the federal government with expansive ability to enter into and implement international obligations. Using Breard as a case study, Professor Bradley argues that the internationalist conception is inconsistent with this country's traditionally "dualist" approach to international law and that it is unlikely to be accepted by U.S. government actors.

The Supreme Court's decision last Term in Breard v. Greene,(1) although a mere per curiam opinion issued without oral argument, may turn out to be one of the most significant and controversial foreign affairs decisions in recent history. In its decision, the Court declined to stay the execution of Angel Breard, a Paraguayan national, who earlier had been convicted in Virginia of murder and attempted rape. The Court did so notwithstanding its acknowledgement that Virginia had violated the Vienna Convention on Consular Relations(2) by failing to advise Breard at the time of his arrest of his right to confer with the Paraguayan consulate. More dramatically, it did so notwithstanding a provisional order by the International Court of Justice (ICJ) stating that the United States was to "take all measures at its disposal" to stay Breard's execution.(3) Shortly after the Court's decision, Virginia carried out the execution.

The Breard case is interesting on several levels. At the doctrinal level, the case raises important questions concerning the status in U.S. courts of ICJ orders, the applicability of the Eleventh Amendment to treaty violations, and the powers of the federal government to compel state compliance with international obligations. At the policy level, Breard illustrates some of the difficulties associated with balancing the U.S. commitment to federalism against its interest in international law compliance.(4) At the conceptual level, which will be the focus of this article, Breard provides a useful case study for examining the relationship between international law and U.S. domestic law.

There are two basic viewpoints concerning the relationship between international and domestic law--"monism" and "dualism."(5) Although there is much uncertainty surrounding these terms, a survey of the literature suggests the following general definitions. The monist view is that international and domestic law are part of the same legal order, international law is automatically incorporated into each nation's legal system, and international law is supreme over domestic law. Monism thus requires, among other things, that domestic courts "give effect to international law, notwithstanding inconsistent domestic law, even domestic law of constitutional character."(6) By contrast, the dualist view is that international and domestic law are distinct, each nation determines for itself when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law. Under this view, "[w]hen municipal law provides that international law applies in whole or in part within the jurisdiction, this is merely an exercise of the authority of municipal law, an adoption or transformation of the rules of international law."(7) As these definitions suggest, the debate between monism and dualism is in part a debate about where one should look to determine international law's domestic status: Monism looks outward to the structure and content of international law; dualism looks inward to domestic standards and processes.

Most commentators agree that, at least during the latter half of this century, dualism has been the prevailing view.(8) In recent years, however, there has been a definite revival of monist thought in the American international law academy. This revival does not perfectly mirror the traditional monist model, since few commentators today contend that all of international law is automatically incorporated into every domestic legal system and always trumps domestic law whenever the two conflict.(9) To distinguish it from pure monism, I will refer to it in this article as the "internationalist conception" of the relationship between international and domestic law.(10) The internationalist conception is not a school or even a unitary phenomenon but rather signifies a family of academic beliefs concerning international law's role in the U.S. legal system. A central theme underlying these beliefs is that the incorporation and status of international law in the U.S. legal system should be determined, at least to some extent, by international law itself.(11)

In this article, I argue that the internationalist conception is inconsistent with pervasive and long-standing principles of U.S. jurisprudence, and I use the Breard case to illustrate this point. Notwithstanding academic claims to the contrary, the U.S. approach to international law has been and continues to be fundamentally dualist. The article proceeds in three parts. Part I provides an overview of the proceedings and arguments in the Breard case. Part II describes the principal strands of the internationalist conception and how they are inconsistent with settled law. Part III revisits the Breard case and argues that it reaffirms the U.S. commitment to dualism.

I should make clear at the outset the nature of my argument. My principal goal here is to describe and criticize the framework from which many international law scholars operate in discussing the relationship between international law and U.S. domestic law. My argument is not intended as a disparagement of the importance of international law or international institutions. Thus, for example, I do not defend here Virginia's failure to give Breard the notice required under the Vienna Convention. Nor is my argument intended as a complete defense of the way in which the federal government and Virginia handled Breard's execution. It is quite possible that, as a policy matter, the federal government should have tried harder to delay the execution and that Virginia's Governor should in any event have used his own authority to do so. My analysis does suggest, however, that the Supreme Court correctly denied a stay of execution.

1. OVERVIEW OF THE BREARD CASE

   There is a certain amount of drama in almost any death penalty case, given the often gruesome nature of the crime, the seriousness and irrevocability of the punishment, and the usual last-minute stay requests. This is true of the Breard case. But what makes this case especially dramatic is the unusual--indeed, unprecedented--nature of its proceedings. Among other things, this case featured a suit by a foreign government against a U.S. state, a showdown with the ICJ, and intense (and, according to some observers, contradictory) involvement of two components of the Executive Branch.

   1. Trial and Conviction(12)

      Angel Francisco Breard, a citizen of Paraguay born in Argentina, came to the United States in 1986 on a student visa. In 1992, he was arrested by Virginia authorities and charged with the murder and attempted rape of a 39-year-old woman in Arlington County. As Virginia officials would later admit, Breard was not advised of his right under the Vienna Convention to have the Paraguayan consulate notified of his arrest.(13) Virginia officials did, however, appoint two attorneys to represent Breard, and those attorneys represented him throughout his trial and on direct appeal. He also was able to communicate with and receive assistance from his family in Paraguay.

      Breard pleaded not guilty and, apparently against the advice of his lawyers, decided to testify at his trial. In his testimony, he admitted to having committed the murder, for which he blamed a Satanic curse placed on him by his former father-in-law. Breard was subsequently convicted of capital murder and attempted rape and was sentenced to death. The conviction and sentence were affirmed by the Virginia Supreme Court,(14) and the U.S. Supreme Court denied certiorari.(15) After having new counsel appointed, Breard pursued collateral review of his conviction and sentence in the Virginia state courts, which denied relief.(16)

      At no time in his trial, direct appeal, or state collateral proceedings did Breard raise the claim that state authorities had violated the Vienna Convention. At some point during 1996, Paraguayan officials became aware of Breard's conviction and sentence and sought to confer with him. Virginia consented, and from that point on Paraguayan officials were given free access to Breard.

   2. Federal Habeas Corpus

      In August 1996, Breard filed a petition for a writ of habeas corpus in federal district court, arguing, among other things, that his conviction and sentence were invalid because of Virginia's violation of the Vienna Convention. The court denied relief.(17) While noting that it was "trouble[d]" by "Virginia's persistent refusal to abide by the Vienna Convention," the court held that Breard had procedurally defaulted his claim by not presenting it to the state courts and that he had not shown "cause" for this default.(18)

      The court of appeals affirmed, holding that...