This panel was convened at 10:45 a.m., Thursday, March 26, by its moderator, Ronald Bettauer of the George Washington University Law School, who introduced the panelists: Edward Swaine of the George Washington University Law School; Kathy Patchel of Indiana University School of Law; and Avril Haines of the Office of the Legal Adviser at the U.S. Department of State.
INTRODUCTORY REMARKS BY RONALD BETTAUER *
I am currently a visiting scholar at the George Washington University Law School. Until late 2007, I was Deputy Legal Adviser at the State Department. I am moderating this panel today because I chaired a joint ASIL-ABA International Law Section task force on treaties in U.S. law that considered the implications of the Medellin decision.
Let me introduce the members of the panel. Ed Swaine is an associate professor of law at the George Washington University Law School. During 2005-2006, he served as counselor on international law in the Office of the Legal Adviser at the Department of State. Kathy Patchel is an associate professor of law at Indiana University School of Law, Indianapolis. She serves as the treaty implementation coordinator for the National Conference of Commissioners on Uniform State Laws (NCCUSL). Avril Haines is the Assistant Legal Adviser for Treaty Affairs at the Department of State. During 20072008, she served as counsel on the staff of the Senate Foreign Relations Committee responsible for treaty matters. Paul Clement, a partner at King & Spalding in Washington, D.C., who served as Solicitor General of the United States during 2005-2008 and argued the Medellin case before the Supreme Court, had expected to join us on the panel but was prevented from doing so by a client emergency.
Our objective for the panel is not to debate whether the Medellin court was right or wrong or what we believe the result should have been. Instead, our objective is to take the decision as a given and to address its more general implications for treaties in U.S. law.
Ed will first summarize the holding and comment on possible public international law implications. Kathy will then address implications for private international law and the states. At that point, I will report on the recommendations of the task force. Then, Avril Haines will focus on the Government's reactions and plans. We expect to reserve time for discussion and questions from the audience.
REMARKS BY ED SWAINE ([dagger])
The Supreme Court held in Medellin that the ICJ judgment in Avena (requiring the United States to provide review and reconsideration in certain cases involving Mexican nationals) did not override Texas's procedural rule of default. In recognizing a fundamental tension between international treaty law and domestic law, the Court found that the UN Charter obligated compliance with Art. 94 for international law but not necessarily for state law. The Court ruled that the ICJ decision was, therefore, not self-executing and did not create a private right of action that Medellin could invoke absent implementing legislation.
In a description, rather than evaluation, of the Medellin decision, Professor Swaine considered what the Court was communicating about self-execution. Specifically, his discussion centered on the circumstances under which treaties will be found to be self-executing and the possible legal consequences of a determination that a given treaty is self-executing. He was careful to point out that self-execution and judicial enforceability are distinct issues to be handled separately.
Swaine began his discussion with a consideration of the intended scope of the decision and considered the reasoning that might underpin such a reading. Under the narrowest interpretation, Swaine stated that the opinion would apply only to decisions by the ICJ or a similar international body. Decisions by international bodies are likely to be subject to this scrutiny, Swain noted, because of the hesitance to force the federal government to either submit to non-compliance under Art. 92 or risk enforcing a politically sensitive decision in a resistant state. Under a broad reading, however, the opinion would apply to all treaties that do not affirmatively state that the provisions are judicially enforceable. In support of this reading of the opinion, Swaine noted that the ICJ rarely decides cases in which the United States is a party and does not typically rule against the United States. An intermediate reading would likely limit the opinion to those treaties that spoke to future actions by states.
If the opinion is interpreted...