Transnational Law Blog

Medellin v. Texas: ICJ decision creates an international obligation, but not domestic law

This morning’s decision in Medellin v. Texas is the culmination of a long line of cases, both at the ICJ and at the Supreme Court, that have attempted to determine the effect that an ICJ ruling has under U.S. domestic law. In the law review comment I am working on, I have approached this problem from the perspective of trying to doctrinally resolve the Medellin line of cases with the Supreme Court’s decision in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985). In Mitsubishi, the Court determined that parties to an international commercial contract that appointed a third-party arbitrator would, absent an entirely egregious result, be bound to the decision of the arbitrator, even if such a decision is not the same result as what would be achieved in the courts. Thus, I wondered why it might not be possible for states to take a similar approach and appoint a third party arbitrator (such as the ICJ) to resolve disputes arising under a treaty (a contract between states).

The Supreme Court in Breard and Sanchez-Llamas seemed to be hostile to the idea of allowing the ICJ such a power. Thus, I anticipated that the decision in Medellin would limit the power of the ICJ to create a binding obligation. My prediction last week was that the Court would determine that while the ICJ had the power under the treaties to decide that the US had breached an obligation to Mexico or to other states and perhaps order damages, it would not allow the ICJ the power to order  compliance measures that would have any effect under federal law. While this would be an unsatisfying answer (it is clear to most that the ICJ’s powers are not limited to award of damages), this was in some way reconcilable with Mitsubishi, since international third-party arbitrators are limited to awarding damages (and thus do not have the power to order a party to comply with the contract, only to determine that a breach has occurred.

My prediction, I think, was fairly close. I predicted it would be 5-4, though in fact it was 5-3 with a narrow concurrence by Stevens. The court did find that there is an international obligation, but declined to allow the ICJ to dictate the terms upon which it should be complied with domestically without some further action by the legislature. My initial reaction is that that approach is easily reconcilable with the approach taken in Mitsubishi. The opinion expressly notes that it is undisputed that the ICJ decision is an international legal obligation of the United States (p.8). The subsequent question is that if we accept that the US has this obligation, what needs to be done? Petitioner argued that nothing needs to be done, and that the domestic courts now have the power and obligation to enforce the judgment. The Solicitor General argued that nothing needs to be done until the President says what should be done. The Court rejected both of those approaches, and determined that compliance with our international legal obligation in this case requires some action on the part of the legislature.

Others, I’m sure, will debate the merits of whether the determination that nothing in either the Optional Protocol or Article 94 of the UN Charter creates a self-executing obligation under federal law. I think that there are good arguments to be made on either side of that debate. But the question of whether the judgment is a binding legal obligation is clear. The only question left domestically is: who is responsible for enforcing that obligation? The Court seems to state that it cannot be the judiciary acting alone, nor the executive acting alone. Thus, this problem is put squarely in the legislature’s lap (whether the federal Congress, or the state legislatures). For those concerned with constitutional overstepping of the President and/or the judiciary, this is a superb result. And even for those of us who are committed internationalists and would like to see a greater acceptance of international tribunals, this decision is not problematic. In a sense, it is a reaffirmation of the international obligation we have under the treaties, and merely concerns itself with the internal steps we must take in order to comply.

Third Party Dispute Resolution in Treaties: Medellin v. Texas

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.

Third-Party Dispute Resolution Mechanisms in Transnational Commercial Contracts

We live in a globalized world, where people, money and ideas flow easily across borders. Yet, our legal systems continue to be based on national territorial sovereignty. Thus, when it comes to a dispute between parties that are resident or present in more than one country, there is no international or transnational law that can be called on to resolve the dispute. Rather, the domestic system of one or more of the countries that have some territorial connection to the parties or the dispute steps in to govern the dispute.

This is obviously problematic. Which state's law should govern? States have developed numerous ways of attempting to resolve this quandary, including doctrines limiting jurisdiction. In the area of commercial contracts, many states allow parties themselves to agree in a contract as to which law shall govern. In the US, this approach was enshrined in M/S Bremen v Zapata Offshore Co., 407 U.S. 1 (1972). There, the Supreme Court adopted a hands-off approach to allowing commercial parties to contract the place and law that will govern their contract. Chief Justice Burger wrote in his opinion: "The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.”

States have also turned to treaties as a method of filling the gaps between municipal legal systems. Once again in the commercial context, 142 states have signed the "New York" Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This convention obliges the signatories to enforce arbitration awards rendered by third-party (non-state) arbitrators. Again in the US, under Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), the Court established that where parties in a commercial contract specify a third-party dispute resolution mechanism (an arbitrator), the judiciary will defer to that arbitrator's judgment in practically all areas, including areas involving important public policy concerns such as antitrust. Justice Blackmun wrote: "Concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes, all require enforcement of the arbitration clause in question, even assuming that a contrary result would be forthcoming in a domestic context."

Thus, in the context of commercial agreements, US law is clear: parties to an international agreement may appoint a third party to resolve any disputes arising under the agreement. We can reconcile this with Contract Theory generally: so long as it is the intent of the parties to be bound to the decision of the arbitrator, the courts should enforce that intention. The dispute resolution mechanism is nothing more than another contracted term.

That being clear, here is an interesting quandary. Let's say that the NY Convention included a clause (which in reality it does not) referring any disputes under the treaty to a third-party arbitrator. And let's say that the US did not enforce arbitral awards as required by the treaty. Another state brings an action before the arbitral body noted in the treaty, and the arbitral body says that in order to be in compliance with the treaty it signed, the US must begin enforcing arbitral awards. In other words, we have taken the third-party dispute resolution mechanism out of the commercial context and put it into the public international law context.

What status should this determination have under US law? Leaving aside the fact that commercial arbitrators only have authority to award damages and not to compel performance, is there a reason why a third-party dispute resolution mechanism should be binding in the case of commercial arbitration, but should not be binding on the U.S. when we have signed a treaty that establishes our intention to be bound by the decisions of the third party?

My next post will be on Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006), and a case currently under review by the Supreme Court, Medellin v. Texas. These cases deal with the issue of whether a decision of the International Court of Justice in binding on the US when the US has signed a treaty in which the ICJ is noted as a third-party dispute resolution mechanism for any disputes arising under the treaty.

But for the moment, I am curious if anyone has any thoughts on this. Is there a reason there should be enforceable third-party dispute resolution mechanisms in commercial contracts, but not in treaties? Should a party's obligations arising under a treaty be left solely to the interpretation of that party? I'm curious to hear your views.

Legal Justifications for Securing Pakistan's Nuclear Weapons

Over at Opinio Juris, Prof. Julian Ku links an article in the UK’s Herald that noted that US Special Forces were on standby to enter Pakistan and secure the nuclear warheads should civil unrest threaten the Musharraf regime. Ku calls this plan a “sensible precaution” but opines that it would be “almost certainly illegal under international law.”

My final exam in Public International Law a few weeks ago posited exactly this scenario: a takeover in Pakistan by fundamentalist elements including Al Qaeda and Taliban. My task, as Deputy Legal Advisor at the Department of State, was to write a memo outlining the legal basis for entering to secure the weapons as well as a possible full-blown invasion if necessary.

The rationale I gave was that such an action was justified under our right to self-defense from an imminent armed attack, as established under customary international law (e.g., the Caroline Doctrine) and under Article 51 of the UN Charter. Under the Caroline Doctrine as articulated by Secretary Webster in 1842, US policy has been that anticipatory self defense may take place in cases where the necessity of defense is instant, overwhelming, leaves no choice of means or time for deliberation. I think there is a strong argument that this scenario presents such a case.

There are two characteristics of this hypothetical scenario that lead to its legality that are not present in other cases (such as, say, Iran, North Korea or Syria). One is the confirmed presence of nuclear weapons and advanced rocketry. The second is that we are currently in a state of unprovoked belligerency with Al Qaeda and the Taliban, and we can reasonably expect that any fundamentalist takeover in Pakistan would involve significant elements of these groups. I think there is a reasonable argument that if this takeover occurred, there would be a high likelihood of an imminent nuclear attack (if the US didn’t immediately secure the weapons, I doubt Al Qaeda would wait around until there was a Security Council resolution or we established our resolve... they would launch as soon as it was technically feasible).

This is different from the Bush preemption doctrine, which is aimed at preventing states which may one day both secure WMD’s and become belligerent with us. Like many, I find that approach to be of dubious legality. However, here we would be dealing with a regime that has already attacked, and with certain nuclear capabilities.

Of course, international law is by no means an exact science. Determining whether something is legal or not is really just a process of making arguments and letting political processes and public opinion be the judge. However, my feeling is that when reasonable people such as Prof. Ku see an armed action as a “sensible precaution” there is a good argument to be made that it is also a legal precaution.

Salutations

My name is Dave Raynor, and I am a new guest-blogger here at TLB. I want to thank Travis and the rest of the gang for inviting me to participate. I am a 2L at USF School of Law, and have various interests related to international and transnational law. In particular, my interests focus on a couple of areas: the effects of law and trade on development, transnational approaches to dispute resolution, and the intersection of domestic law with global economic concerns, such as those that arise in connection with antitrust and  trade.

I have a considerable amount of  international experience, having been raised primarily in Latin America (Venezuela and Bolivia), and as an adult I have lived and worked in Germany, Columbia and Vietnam. Prior to law school, I was in the business world for eight years. I began my career at a European HR consultancy that advised companies expanding in emerging markets, and later was in corporate trading. This past summer I interned for an international law firm in Vietnam, which was a tremendous experience. I will certainly blog more about Vietnam and the effect that expanded trade is having there. I will be returning to the international firm as a summer associate this year, working in their international and corporate groups.

As I noted, one of my areas of interest is transnational dispute resolution. I am currently doing research on the status of international third-party dispute resolution mechanisms under U.S. law by comparing the hands-off approach taken to third-party dispute resolution mechanisms in commercial contracts with the apparent hostility to third-party interpretation of treaties often exhibited by the courts. I'll be blogging a bit about this topic initially, and would like to invite your comments as I hope to turn this research into a law review comment.

Thanks again for having me aboard!

Trying Donald Rumsfeld and Dating Scarlett Johansson

Reporting on the efforts of the Center for Constitutional Rights to bring a case against former Secretary of Defense Donald Rumsfeld in Germany, the San Francisco Chronicle includes the following remark by UC Hastings Prof. Joel Paul:

Since the post-World War II Nuremberg tribunals, it has been clear that "governments have the right to put on trials of (other nations') officials for international crimes."

Now, it's always a stupid idea to criticize a professor, especially based upon a quote in a newspaper.  However, since I don't have any classes with Prof. Paul this or next semester (and I have a lack of common sense), I think I can get away with throwing some stones without too many negative consequences.

I am not sure that Nuremberg is the proper authority for the ability of governments to try the officials of other nations. Yes, German officials were tried for crimes against humanity, but it was not done by an individual country. Nuremberg, in theory at least, was an international tribunal.  As Prof. Paul has said in his international law classes, a far more relevant authority for universal jurisdiction over foreign officials is ex parte Pinochet (see the "Ripple Effect of the Pinochet Case"), but I am just picking nits here. Similarly, it is well settled that government officials can be tried before international tribunals, e.g. Milosevic and Taylor.  The relative success of the Milosevic and Taylor cases as opposed to the Pinochet situation highlights the fundamental problem facing any effort to bring a case against Rumsfeld: politics.

While ex parte Pinochet contributed to international jurisprudence, it doesn't appear that Pinochet will be seeing the inside of a jail cell anytime soon. Belgium's universal jurisdiction statute was scrapped after the US threatened not to participate in a NATO meeting there.  And of course, there is nothing quite as pleasurable as reminding my Dutch colleagues that Congress has given the President the authority to blow them up. Germany bringing a case against Rumsfeld would be as inadvisable as criticising a Professor's quotation in a newspaper. 

Guns and Garbage Trucks

A recent article by Peter Pham in World Defense Review (http://www.reportingwar.com/strategicinterests.shtml) highlights the role of Moamar Qadhafi in training Charles Taylor and supporting rebel efforts in Liberia and Sierra Leone. Now that Taylor is facing trial before the Special Court for Sierra Leone, Pham laments that Qadhafi will not be subject to similar proceedings. While it is possible that the connection with Qadhafi will be an issue at trial, there is little chance there will be any serious repercussions for Qadhafi. Curiously, Qadhafi continues to be involved in Sierra Leone, but in a far more benign manner. Recently, Libya donated a number of vehicles, including busses, water trucks, and garbage trucks, to the government of Sierra Leone. The large green busses are a shockingly-modern addition to the flow of poda-podas and taxis that dominate the streets of Freetown. The vehicles, though desperately needed, pose difficult questions regarding aid from war-supporters in post-conflict societies.

[View a picture of the donated vehicles at a Republic of Sierra Leone Armed Forces base here.]

According to Pham, Qadhafi trained both Charles Taylor and Foday Sankoh, leader of the Revolutionary United Front (RUF), at camps in Liberia. In the camps, Taylor and Sankoh established a relationship that would result in their later collaboration. After Taylor overthrew the massively-corrupt Samuel Doe and assumed control of Liberia, he assisted, and perhaps controlled, rebels led by Sankoh in Sierra Leone. Pham contends that throughout the conflict, Qadhafi assisted by facilitating funding and weapons shipments.

Qadhafi has now made strides to repair his international image and appears to be doing the same in Sierra Leone. Although some eyebrows were raised at the acceptance of the vehicles, there was no lasting criticism. How to explain this apathy to a gift from a hand covered in blood? It is difficult to know the extent to which normal Sierra Leoneans consider Qadhafi an integral figure of the conflict, but he certainly is not as prominent as Taylor. Moreover, there is unlikely anything that can be done by Sierra Leone to punish Qadhafi for his role in the conflict. There are far more pressing concerns like development and the 2007 elections. I am sure a great deal of this also arises out of a desire to put the conflict in the past. They may be larger philosophical issues at play which can be debated in article and blogs, but in Sierra Leone it seems fairly clear that when one is desperate for help, it matters little where that help comes from.

Inadequacies in the Middle Eastern Human Rights Regime

This post is intended to be an extension on my previous post on the regional unenforcement of human rights in the Middle East. The common critique of the human rights regime has been that civil and political rights protected under the UN Declaration of Human Rights and the Two Covenants (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights) are Western concepts not in line with certain cultures. In particular, Islamic countries such as Sudan, and Saudi Arabia have raised this issue to develop constructs of Islamic rights. This movement to develop an Islamic human rights regime has led to the ratification of two significant doctrines: the Cairo Declaration on Human Rights in Islam and the Arab Charter on Human Rights. Nevertheless the two doctrines do little in establishing an effective human rights regime in the Islamic world given the extent of claw-back clauses and ambiguity.

The 1990 Cairo Declaration on Human Rights in Islam, issued by the Organization of the Islamic Conference was born out of the idea that “international human rights norms had a Western or Judeo-Christian bias that precluded their acceptance in Muslim milieus” (Mayer, p. 322). Whereas the framers of the Cairo Declaration intended to create a counter to the International Bill of Human Rights, the doctrine actually reveals an amalgam of international norms and “Islamic principles”, however ultimately subjects rights to interpretations of Islamic law, the Shari’ah:

“In contribution to the efforts of mankind to assert human rights, to protect man from exploitation and persecution, and to affirm his freedom and right to a dignified life in accordance with the Islamic Shari'ah” (Cairo Declaration, preamble).

The weaknesses in the Cairo Declaration step from two important characteristics. First, the Cairo Declaration lacks many of the fundamental freedoms, particularly civil and political rights, which are vital to viable human rights regime. Second, rights stipulated by the Declaration are written in ambiguous terms without clarification as to extent of neither the rights nor their protection. All freedoms have Islamic qualifications without added clarity of Shari’ah.

Does Regional Unenforcement of Human Rights in the Middle East Mean They Are Ineffective Without Force?

Kenneth Waltz is well known for describing inter-state relations as existing in “international anarchy.” Because of absence of any international enforcement mechanisms, states are constantly occupied with issues of security and territorial integrity. As such, Waltz’s world would never permit a regime of human rights which would offer external pressures that would require the sacrifice of realist ambitions. Nevertheless, what Waltz could never fathom is that human rights can have meaning in the world despite having no international enforcement. The history of human rights for the past 50 years has demonstrated the resilience of the human rights regime in providing safeguards against abuses. Henry Steiner demonstrated this cause by illustrating the growth of human rights in the conduct of warfare. As Steiner indicated, the modern world has seen a genuine concern of conducting warfare in line with internationally accepted rules of conduct compared to 50 years ago when such rules either were not in existence or simply regarded with little to no weight. Ultimately, however, the concept of human rights as an enforceable doctrine depends on the willingness of states to implement their ideals. Thus without a standard of enforcement for human rights, regional differences can serve as loopholes for human rights implementation as illustrated by the enforcement of specific human rights guarantees in the Middle East.

The human rights regime has meaning despite the lack of international enforcement because it develops a guideline by which states and constituents know how to act by. Despite the variety of reservations offered by states to human rights doctrines or the complete lack of respect offered to their provisions, the concept of human rights is enforced because the idea of which rights ought to be protected becomes developed into the social conscious. The development of the human rights regime depends in large part to its integration in societies and the mindset of peoples. In many parts of the world, the concept of rights are still absent in that they have not been articulated. Therefore, in the sense that rights have been documented and accepted, there is a standard of rights which states have taken upon themselves to protect. While states may not protect those rights initially, the concept of rights has steadily grown in the minds of individuals and has resulted in them demanding for the protection of those rights. Moreover, it has resulted in the integration of the human rights regime into cultural practices and philosophies. Thus, as Heiner Bielefeldt states, “an understanding of human rights that refers primarily to the Universal Declaration of Human Rights…is potentially open to a variety of different cultural interpretations” (Bielefeldt, p. 588).

The UC Hastings Symposium About The War on Terror

(Editor's Note: TLB would like to thank Diana Sanchez for her numerous behind the scenes contributions to this blog, which includes providing us with an audio recording of the panel discussion. TLB wouldn't be the same without her. Thanks, D!)

Law schools around the nation protested the “War on Terror” on Thursday, October 5th, by having teach-ins at which both students and professors missed class in order to address the fundamental transnational issues facing the US and its legal system.  At UC Hastings, the American Constitutional Society and Amnesty International hosted a panel presentation on “The War on Terror: Guantanamo Bay & Domestic Implications.” The ACS will host another panel discussion about the boundaries of the executive power on Tuesday, October 10th, at 3:40 PM, in room A.

The "The War on Terror" panel featured four speakers, which are listed below in the order they presented. Listen to the panel introduction by Professor William Dodge here: Download hastingsintro.mp3

Joel Paul is a UC Hastings professor with expertise in international trade law and the WTO, presidential powers in foreign relations, foreign relations law, public international law, and international business transactions. Professor Paul discussed what constitutes a war. Listen to it here: Download hastingspaul.mp3

Evan Lee is a UC Hastings professor with expertise in  appellate, constitutional law-Fed, and criminal law. He discussed the issues surrounding domestic surveillance and warrantless wiretapping. Listen to it here: Download hastingslee.mp3

Ian Wallach is a UC Hastings alumnus and former habeas counsel for several Guantanamo Bay detainees. See his article on the Jurist entitled, "No Habeas at Guantanamo? The Executive and the Dubious Tale of the DTA". He discussed his experiences representing detainees held at the Navy base in Guantanamo Bay. Listen to it here: Download hastingswallach.mp3

William Dodge is the UC Hastings associate academic dean and a professor with expertise in contracts, international business transactions, international litigation, and NAFTA Chapter Eleven. He is the driving force behind Hastings new transnational law course, and he is a former contributing member of Opinio Juris. Professor Dodge discussed the recently legislated Military Commissions Act and its many ramifications. Listen to it here: Download hastingsdodge.mp3

Listen to the Q & A session here: Download hastingsQA.mp3

What is written below is meant to be a rough summary of the panel's discussion.  For a more in depth discussion please listen to the audio links.