Medellin, Avena, the supremacy of treaties, and relevant executive authority.

• Author: Paust, Jordan J.
• Position: The Medellin v. Texas Symposium

1. TREATY-BASED OBLIGATIONS OF THE UNITED STATES 302 A. Obligations of the United States Under the United Nations Charter 302 B. The Avena Judgment of the International Court of Justice 306 II. EXECUTIVE EXECUTION 307 A. The President's Decision 307 B. The Legal Status and Effect of the Presidential Decision 308 III. CONSTITUTIONAL REQUIREMENTS AND AUTHORITY 311 A. The Article II, Section 3 Presidential Mandate and Executive Execution 311 B. The Supremacy of Treaties 315 C. The Lack of Any Competing or Inhibiting State Authority 318 D. Preemption 324 E. State Power to Comply Exists 326 F. The Medellin Majority's Improper Tests for Self-Execution 328 IV. NO INHIBITING FEDERAL LEGISLATION EXISTS 330 V. CONCLUSION 331 The case of Medellin v. Texas, (1) decided recently by the Supreme Court of the United States, had raised questions of whether the President of the United States has constitutional authority to faithfully execute treaties of the United States with or without the approval of Congress, and whether treaties of the United States, as well as executive implementary measures, are binding on the states under the Supremacy Clause of the United States Constitution. (2) The majority opinion of Chief Justice Roberts decided against such presidential authority with respect to the implementation of a judgment of the International Court of Justice. As noted below, I respectfully disagree and would answer the questions in the affirmative. Indeed, the express mandate of the Supremacy Clause is reason enough to ensure that the judgment of the International Court of Justice (ICJ) in this case, as an outcome and part of binding treaty processes, must prevail within the states of the United States.

1. TREATY-BASED OBLIGATIONS OF THE UNITED STATES

   1. Obligations of the United States Under the United Nations Charter

      The majority opinion in Medellin made a pivotal error when it disagreed, but it is otherwise well understood that under Article 94 of the United Nations Charter, the United States has an absolute obligation "to comply with the decision of the [ICJ] in any case to which it is a party." (3) Further, under Articles 59 and 60 of the Statute of the ICJ, (4) which is incorporated by reference into, and as a necessary part of, the UN Charter, (5) a judgment of the ICJ has "binding force" and "is final and without appeal." (6) Merely one possible sanction response against a state that "fails to perform the obligations incumbent upon it under a judgment rendered by the Court" can involve sanctions authorized or mandated by the UN Security Council.? Whether or not the Security Council issues relevant sanctions, the state party to an ICJ judgment clearly remains bound thereby. Therefore, it is undeniable that under treaty law of the United States, the United States has an absolute obligation "to comply" and to perform "the obligations incumbent upon it under a judgment rendered" by the ICJ. (8) At some point, the manifest and pivotal error of the majority opinion should be abandoned and the true meaning of the treaty allowed to prevail. (9)

      Further, the U.S. Supreme Court has recognized in other cases that the decision of an international tribunal, as the outcome of a treaty process, is a binding, "conclusive" treaty obligation that is "not re-examinable" in U.S. courts. (10) In our democracy, whether or not the benefits for the United States outweigh the burdens with respect to such forms of binding international decision making is a question for the political branches and not for the judiciary. As long as the United States permits the ICJ to issue a binding judgment in a case to which it is a party, it remains bound by the judgment of the ICJ. As the Supreme Court declared more generally, "we administer the public law of nations, and are not at liberty to inquire what is for the particular advantage or disadvantage of our own or another country." (11) Lacking such legitimacy, there is nothing for a domestic court to weigh, quarrel with, or compare with respect to binding ICJ judgments. Moreover, there is no judicial authority to limit binding judgments that are the outcome of a binding treaty process by using some sort of discretionary comity-factors analysis that courts might use with respect to the receipt of foreign domestic judgments that are admittedly not binding within the United States.

      However, the fact that a judgment of the ICJ is binding on a state party as a matter of treaty law involves a different point than the answer to the question whether an interpretation of a treaty in a case to which the state is not a party is binding. (12) Interestingly, U.S. courts have often used Permanent Court of International Justice and ICJ opinions, in both contentious cases and advisory opinions, as legally relevant aids for interpretation of the content of international law. (13)

   2. The Avena Judgment of the International Court of Justice

      In the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), (14) the judgment of the ICJ concluded that the United States had violated Article 36 of the Vienna Convention on Consular Relations (VCCR) (15) in several ways, including by the failure "to inform detained Mexican nationals of their rights" under Article 36(1)(b) of the Convention and "to notify the Mexican consular post of the detention" of such persons. (16) Noting that Article 36(2) of the treaty requires the United States to give "full effect" to rights accorded in the article, the ICJ ruled that U.S. courts, as part of a "judicial process," must provide a judicial remedy of "review and reconsideration" of the convictions and sentences of the fifty-one Mexican nationals named in the judgment."

2. EXECUTIVE EXECUTION

   1. The President's Decision

      On February 28, 2005, President George W. Bush issued a "Memorandum for the Attorney General" on the subject of "Compliance with the Decision of the International Court of Justice in Avena." (18) The Memorandum declared that the President had "determined ... that the United States will discharge its international obligations under the decision of the International Court of Justice" in the Avena case (19) "by having State courts give effect to the decision in accordance with general principles of comity...." (20) Thereafter, the U.S. Attorney General notified states within the United States of the President's decision by mailing copies of the Memorandum to various state officials, including the Attorney General of the State of Texas. (21)

   2. The Legal Status and Effect of the Presidential Decision

      One interesting question concerning the President's determination that state courts will "give effect to the ICJ judgment in accordance with general principles of comity" is whether the determination constitutes a presidential directive or "merely confirmed that the United States would comply" with the ICJ judgment. (22) Addressing this issue, the Brief for Petitioner Medellin before the Supreme Court stated that the Memorandum operated as a "determination that state courts must provide the required review and reconsideration" of relevant domestic decisions concerning the fifty-one Mexican nationals named in the ICJ judgment, since this is what the ICJ decision required; (23) that the President "acted to give effect to the Nation's obligation, under duly ratified treaties, to abide by the Avena judgment"; (24) and that the President "directed that state courts, in cases brought before them, apply existing federal treaty law as a means of carrying that law into effect." (25) The Brief, however, also stated that the President "prescribed no new rules," (26) "did not make law," (27) "merely confirmed that the United States will comply" with the Avena judgment, (28) and "confirmed that the Avena judgment must be given effect in state courts." (29) The Brief also quoted an Amicus Brief of the United States in the Fifth Circuit as having set forth the executive view that a consequence of the President's Memorandum is that "'the 51 named individuals may file a petition in state court seeking ... review and reconsideration ['of their convictions and sentences'], and the state courts are to recognize the Avena decision.'" (30)

      The Brief for Respondent, the State of Texas, argued that the Memorandum should be characterized as a communication to the states, but "as a request, not a command," (31) Yet, the Texas brief also recognized that "the Presidential Memorandum purports to require the state courts to conduct a review," (32) the overall "executive action purports to direct state courts," (33) and the Memorandum "direct[s] state courts to revisit claims" and "orders those courts" to do certain things. (34) Similarly, the plurality opinion of the Texas Court of Criminal Appeals in this case assumed that the Memorandum "constituted an executive order requiring Texas's compliance." (35)

      In view of the above, it is clear that in order to comply with the ICJ judgment, the President made a determination that state courts must "give effect to the decision" of the ICJ in Avena. (36) In context, it is also clear that this must be done by providing review and reconsideration of relevant convictions and sentences, because this is what is required "to give effect to" the judgment of the ICJ in Avena. It is evident, therefore, that the President's determination contained in his Memorandum, coupled with the notifications by the U.S. Attorney General, operated (1) as a notification and directive that state courts comply with the judgment of the ICJ in the Avena case by providing relevant review and reconsideration, and (2) as a directive executing any relevant treaty and the judgment of the ICJ (which was an outcome of two treaty processes for the settlement of international disputes, i.e., the United Nations Charter and the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes). In this sense, the President's...