I blogged earlier about how appointing a third party dispute resolution mechanism in transnational commercial contracts was a relatively straight-forward proposition, accepted by US courts and in keeping with general contract theory. In this post I will discuss an ongoing international dispute over a treaty that has wound up at the International Court of Justice and a number of times in the Supreme Court, most recently in this term.
The dispute is a matter of treaty interpretation. The Vienna Convention on Consular Relations entered into force in 1963 and governs consular practice between states. Currently, there are 171 signatories to the Convention. At issue is a provision in the treaty that requires states to notify foreign nationals that they have a right to consult with the consular representatives of their nation of citizenship when they are arrested abroad.
The US, as you might surmise, does not do a very good job of fulfilling its obligations under this provision, even though we often demand that other nations provide consular notification protections to our own citizens arrested abroad. Thus, Mexico sought review at the ICJ of the US convictions of 51 of its nationals who had not been provided with consular notification options. Mexico was able to seek this review because both Mexico and the US (at the time), as well as 44 other nations, are parties to the "Optional Protocol" of the Vienna Convention, which provides that the ICJ shall have jurisdiction over disputes that arise under the Convention (and, for the purposes of this discussion, the third-party dispute resolution mechanism).
In 2004, the ICJ decided that the US had an obligation arising under the treaty to "review and reconsider" the convictions of the 51 Mexican nationals. One of these, Jose Ernesto Medellin, filed a suit asking the federal courts to enforce this review of his capital conviction for murder in Texas. The Supreme Court granted certiorari to the case. In "Medellin I", the question was whether Medellin had a private right of action to request review, under the argument that the ICJ decision was binding treaty law in the US.
The Bush Administration filed an amicus brief positing that under its interpretation of the ICJ judgment, there was not a private cause of action created for individuals, as the ICJ can only resolve disputes between states. Simultaneously, the President declared that the US would meet its obligations under the ICJ judgment, and ordered the Texas courts to "review and reconsider" the convictions of the 51 Mexican nationals (it should also be noted that the US then proceeded to withdraw from the Optional Protocol). The Court, in a 5-4 decision, ordered the federal case dismissed and allowed a state habeas petition to go forward.
Medellin then filed in Texas, arguing that the Presidential order for review should be upheld. The Texas courts refused to reconsider the convictions, stating that the President does not have the authority to order Texas to apply a decision of the ICJ. Medellin filed for certiorari again, and oral arguments in "Medellin II" were heard this past October. There are two questions for review: The first is whether the President has the constitutional authority to order states to obey the ICJ ruling in order to satisfy the treaty obligations. The second is whether a state has to obey the ICJ ruling as it arises under a treaty and is thus the "supreme law of the land", as the Constitution defines treaties (and would therefore be binding irregardless of the President's order).
Another question is whether the court has already decided this issue in Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006). In that case, foreign nationals who were not among the 51 Mexican nationals in the ICJ case brought a suit seeking to have their convictions reviewed given the ICJ decision. Chief Justice John Roberts wrote for the five-Justice majority that the ICJ's interpretation of the treaty was not binding on US courts, and therefore petitioners could not have their convictions reviewed.
The petitioner in Medellin argues that while the ICJ's general interpretation of the treaty may not be binding on US courts (a contention that four Justices in Sanchez-Llamas disagreed with), that the specific decision of the ICJ as it relates to the 51 Mexicans is binding as a matter of treaty obligations (and, as stated, the US agrees with that point of view).
This is obviously a complex case, and one for which there are no easy precedents. But it is clear that there is a majority of the Court that is extremely reluctant to allow the decision of the ICJ to count for much of anything. My question is this: given that the Supreme Court has allowed significant latitude to third-party dispute resolution mechanisms in commercial contracts, why this reluctance to allow third parties to resolve conflicts between States when the parties have agreed to their jurisdiction? Is there some difference between holding a commercial party to their commitment to abide by an arbitral ruling and holding the US to its commitment to abide by a ruling of the ICJ on this narrow matter?
In my next post on this topic, I will draw on international law, commercial law and contract theory contract to make an argument for why the Supreme Court should find the ICJ's decision to be binding on US courts.
You might want to draw on constitutional law as well...or the argument risks falling on deaf ears! In any case, I look forward to the post.
Posted by: Patrick S. O'Donnell | January 17, 2008 at 05:24 PM
My argument rests on the assumption that treaties are the "supreme law of the land", thus the constitutional question is pretty clear. For instance, say the President signed and the Senate ratified a treaty that said we would review and reconsider all convictions of foreign nationals that had not been afforded consular notification at the time of their arrest. I think it would be pretty clear that that was now federal law, and could only be struck down if it was either a violation of the Constitution (there is a plausible argument that it would violate the 10th amendment, though I think it is likely to be found a valid exercise of federal power) or it is superceded by a later-in-time federal statute. Of course, here we did not sign such a treaty; rather, we signed a treaty that said we would abide by a decision of the ICJ related to any disputes over interpretation of the treaty. My article relates to the difference between those two scenarios.
Plenty of others have written on why it is "constitutional" that the ICJ judgment be enforced (for example, see Koh, 93 Cornell LR 243). My question is why the differing treatment of the two scenarios is problematic given the Court's previous treatment of 3rd party dispute resolution mechanisms in commercial contracts. Thus, my narrow argument is more contract theory than constitutional theory.
I'm glad you are interested! Please keep the comments coming, as I would like to see what holes can be poked in my thesis.
Posted by: Dave | January 18, 2008 at 01:17 AM
Well, I suspected as much, and should have accorded you the presumptive benefit of the doubt on this, but I'm also thinking of the rhetorical appeal. Without at all agreeing with this position, I think the Court is worried about being perceived as unduly constraining the power of the Excutive branch, of establishing precedent, etc., for, after all, and without being identified as a "Realist" or Hobbesian on such questions (i.e., descriptively but not normatively speaking) superpowers obey international law when it is perceived to be, rightly or wrongly, in their "self-interests," short-term or long-term, and are not accustomed to deferring to third parties. Such dispute resolution in commercial contracts seems to find parties on more equal footing, and the parties are not as structurally adverse to such dispute resolution (and 'losing' does not establish the same sort of precedent). In short, the contract model ill suits the more overtly political nature of the former situation while it is, of course, more commonplace in the latter case. So, while the legal arguments may in fact be impeccable, political variables loom large here (and when that occurs, alas, it trumps the law). In other words, I'm inclined to agree with your legal analysis thus far, I just don't see such cases getting decided solely on their legal merits. But I'm open to persuasion to the contrary as I'm not at all remotely close to being an expert in such matters. And I think it is important to make the legal argument, even if it is ignored...for some day things may be otherwise.
Posted by: Patrick S. O'Donnell | January 18, 2008 at 10:30 AM
I think, for the most part, that we are agreed that the Court will not be considering only the legal merits in this case. Additionally, I do not claim that there is an established legal answer to the question.
I can see where it would sting the Court a bit to abdicate its role in deciding what the law is. Similarly, prior to Mitsubishi, many courts did not want to give up their role in international litigation. However, the Court recognized that it was the parties' acceptance of the arbitration that governed, not the parochial desire of the domestic courts to be the ultimate authority.
And this is what interests me here. The President signed and the Senate ratified a treaty, as provided for in the Constitution. That treaty gave the ICJ dispute resolution authority. If the Court does not find the ICJ decision binding, isn't it essentially saying that the President and the Senate do not have the authority to conclude a treaty that outsources treaty interpretation? In this sense there really is a constitutional question, for at some point there must be checks and balances on the judiciary's power as well.
You can make the argument that commercial contracts are less important than treaty obligations. But, that is not necessarily true; in my view, a merger agreement between two multinational enterprises is of significantly larger import than the consular notification rights of 51 people. And the question of whether we want the ICJ interpreting treaties for us is easily resolved: we can avoid signing and/or ratifying treaties that contain these provisions, and we can withdraw from treaties we have already signed (as the Bush Administration did in regards to the Optional Protocol of the Vienna Convention).
All that aside, my purpose is not to develop a comprehensive argument for why the Court should find the ICJ's decision binding. My modest contribution is to argue that under an analysis of treaties as contracts between states, there is not any obvious solid footing as to why commercial entities should be held to their commitment to abide by the rulings of third party arbitrators but that States should not. If Tony Kennedy happens to be sitting up late at night in his pajamas surfing TLB, perhaps this small contribution will be what persuades him to come over to the other side. But somehow I doubt it!
Posted by: Dave | January 18, 2008 at 01:33 PM