Friday, March 04, 2005

Should We Annex Canada (and Mexico)?

In a conference in Brussels, Quebec's Premier Jean Charest "called for closer economic and trade ties among Canada, Mexico and the United States, saying the three North American countries should take the European Union as an example of closer integration."

In particular, Charest says the NAFTA countries should move toward "NAFTA-plus, that we should look at dispute settlement mechanisms that have binding effects on jurisdictions and whether we can open up to more trade and services and move forward. . ."

I doubt that Charest means that the NAFTA countries should try to emulate the proto-superstate that the European Union has become. But his comments do suggest that NAFTA dispute settlement provisions should become "binding" perhaps in the sense that they will be self-executing in the way that European Court of Justice decisions have become self-executing within Europe.

There might or might not be constitutional questions raised by such binding dispute settlement, but Charest's comments reminded me one of my favorite thought experiments: what would happen if the three NAFTA countries really did want to move toward a EU-style confederation? Is that even permissible under the current U.S. Constitution? I'm not sure. While the U.S. could surely welcome Canada and Mexico into the Union as states (just as Texas and Hawaii entered as foreign countries via treaties), I somehow doubt that is what Charest or the Mexicans have that in mind.

Thursday, March 03, 2005

Iraq's Short-Lived Membership in the ICC

A while ago, I noted that Iraq had joined the ICC, which was rather surprising given the U.S. govt's strenuous opposition to the international criminal court. I also noted that no one, except the French government, appeared to notice or care.

Yesterday, however, Iraq announced that it was withdrawing from the ICC (thanks to Allison Danner for the heads up). This withdrawal is just as surprising as its decision to join. I'm sure there is some interesting behind-the-scenes story here, but I am not well-plugged in enough to know what it is.

WTO Watch: Dispute Settlement Panel Upholds Ruling on U.S. Cotton Subsidies

The U.S. has lost its appeal to the WTO Appellate Body seeking to overturn a prior panel's judgment finding that U.S. cotton subsidy programs violate WTO rules. (Update: The 288-page report can be found here). I do not believe the U.S has any further recourse within the WTO system, although compliance will likely take a very long time. Congress would have to, for instance, end all (or most) cotton subsidies worth about $12.5 billion annually. Moreover, if the U.S. does not comply, the remedy is for Brazil (the plaintiff, so to speak) to impose trade sanctions on the U.S. Whether that is enough to push the U.S. into compliance is hard to say.

Still, it is worthwhile noting that no one thinks Brazil could enforce this WTO judgment in federal court. The decision on whether and how to comply with this judgment, requiring the elimination of billions in annual subsidies, is held by Congress and Congress alone.

Will the U.S. Congress Vote on Withdrawing From the WTO?

This week, the U.S. Trade Representative submitted the 2005 Trade Policy Agenda and the 2004 Annual Report of the President on trade. These annual reports to Congress are required by statute. What makes this year's 437-page report more interesting than usual, however, is that it also triggers a statutory provision that requires the U.S. government to assess the costs and benefits of staying in the WTO every five years and to allow members of Congress to propose a joint resolution withdrawing the U.S. from the WTO.

According to this Reuters account, there are some members of Congress who will probably introduce such a resolution this year. In particular, Rep. Bernie Sanders of Vermont, a Socialist, seems ready to do so. Is the foundation of global trade threatened? Probably not. Back in 2000, Rep. Ron Paul (Republican-Libertarian - Texas) introduced a similar resolution that went down in the House by an astounding vote of 56 in favor of withdrawing and 363 opposed. Who says the Republican-controlled House is anti-internationalist?

I believe these sorts of reports to Congress and statutory procedures for permitting Congress to vote on WTO membership are a healthy thing. We should probably have similar mechanisms for other international organizations like the U.N. Congress needs to be kept abreast of what is going on and they should be periodically presented with the question as to whether it still makes sense to stay in the organization. This ensures that U.S. membership in the WTO remains subject to the supervision and control of the most democratically accountable branch of the federal government. The fact that WTO is subject to more democratic constraints than most international organizations to which the U.S. is a member may actually be one reason that its decisions and judgments are more respected within the U.S. system.

Malaysia v. Indonesia: Can the Law of the Sea Help?

Although Malaysia and Indonesia have both been devastated recently by the December tsunami, they have apparently recovered enough to start squabbling over undersea development rights on two previously disputed islands, the Sipadan and Ligitan islands. The International Court of Justice awarded sovereignty over the two islands to Malaysia in a 2002 judgment, but Indonesia continues to contest the extent of Malaysia's undersea development rights and has even sent warships to the disputed area to highlight its claim.

This issue apparently turns on whether Malaysia has the right to undersea development more than 19 kilometers and it also has to do with Indonesia's prior claims and concessions in this area.

It doesn't sound like things will get ugly, but this little episode does highlight how an international tribunal and a set of international rules like the Law of the Sea can help resolve this dispute. Whether such rules really will be invoked, and whether the ICJ or some other arbitral tribunal is called in to resolve this dispute is another question given the billions of dollars at stake here, but it does seem like a classic example of how international adjudication and international law can play a useful role in resolving disputes.

Wednesday, March 02, 2005

The U.S., Multilateralism, and the Iranian Nuclear Program

According to recent reports, the U.S. is considering lowering the level of ire in its rhetoric towards Iran and even providing incentives to Iran (such as not blocking Iran’s bid to enter the WTO) for setting aside its attempts at constructing nuclear weapons. This turnabout of U.S. policy (see, by contrast, here) seems to be in response to calls by its European allies to become more engaged in negotiations with Iran over nuclear proliferation. As a result, there is now a more concerted effort by the Europeans, the U.S. and the U.N. in addressing the threat of Iranian military nuclearization.

One interesting side issue is how and when the issue of the Iranian nuclear program should be referred to the Security Council. The U.S. has been in favor of referring the issue sooner rather than later, likely in an attempt to get a Chapter VII resolution finding any such nuclearization a threat to international peace and security. This could open the door to international sanctions and, as discussed in my posts on S.C. resolutions and Iraq, a Chapter VII resolution with the “all necessary measures” clause (opening the way to armed interventions) .

Some view the U.S. about face as being actually an about face of 360 degrees: ending up the same place as where it started. The theory is that, by giving the Europeans what they want (engagement towards a diplomatic settlement), it will be easier for the U.S. to get European acquiescence to a Security Council referral if (or when) the negotiations fall apart. Perhaps.

Nancy Soderberg, among others, has argued (hear her, for example, on the Brian Lehrer show) that this policy shift is a sign that the Bush Administration is realizing that U.S. unilateralism will not be able to secure the type of long term changes that it is seeking in the Middle East. Returning to our earlier discussions on multilateralism and unilateralism (see here and here), by going it alone the U.S. finds that there is too much to do, at too much of a cost in blood and treasure, if it is not able to bring along more than a token coalition. And, in today’s world, if you want more than a minimal set of allies, then the U.N. is a very useful institution. In such cases multilateralism matters and it is smart politics. Perhaps Bush the Younger is learning what Bush the Elder clearly knows.

The Medellin "Memorandum" from the President.

The following is the text of the memorandum issued by the President yesterday with respect to the enforcement of the ICJ's order which I discussed here and here. It is NOT an executive order (as I had thought), but it is some kind of memorandum from the President.
Some questions: Is it essentially an executive order? What is its legal effect on the Supreme Court? On the state courts that might hear the case? Is it within the authority of the President to issue such an order?
I will try to explore its implications more later (and upload the original file).
UPDATE: The Appendix to the Government's Brief, which includes the executive "determination" is here (thanks to Marty Lederman for the heads up).


February 28, 2005


SUBJECT: Compliance with the Decision of the International Court of Justice in Avena

The United States is a party to the Vienna Convention on Consular Relations (the "Convention") and the Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), which gives the International Court of Justice (ICJ) jurisdiction to decide disputes concerning the "interpretation and application" of the Convention.

I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its inter-national obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Avena), 2004 ICJ 128 (Mar. 31), by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.
[Signed] George W. Bush

Medellin, Simmons and International Death Penalty Litigation Strategy

The Roper v. Simmons and Medellin discussions highlight one of the points of tension between the US and its closest international allies – the continuing use of the death penalty in this country. Julian has elucidated in his thorough and helpful discussions here and here the important constitutional law and federalism issues raised by Medellin, as well as the question of creating individual remedies in federal court for treaty violations (see also Mary Lederman’s discussion at SCOTUSBlog here). These are important questions that will have, in the near term, implications for the Guantanamo and detainee abuse cases. But let's face it, Medellin is, from the perspective of Mexico and the rest of the world, about the death penalty. No one has brought a case before the ICJ on behalf of, for example, car thieves sentenced to 5-10 years who were denied the right to notify their consulates.

For years, abolitionists here and abroad have been looking for ways to get at the problem of the death penalty in the United States; the AEDPA of 1996 threw up additional procedural obstacles to habeas challenges in death cases. In 1998, the ICJ was poised to decide the Breard case (a Paraguayan national sentenced to death in Virginia), and issued a “provisional measures” order requesting the US to take measures to prevent the execution before the ICJ could consider the case. The “measures” taken consisted of a letter from then Secretary of State Albright to the governor of Virginia saying, in essence, “We’d appreciate it if you did not execute Mr. Breard, as the VCCR is an important treaty that protects US citizens overseas.” The Governor rejected the request and Breard was executed. (As Lederman discusses, Breard had also brought a habeas claim in US federal court, which was rejected by SCOTUS as procedurally defaulted under the AEDPA.)

In 1999, Mexico joined the fight by brining a request for an Advisory Opinion to the Inter-American Court of Human Rights to determine whether Mexican nationals on death row in the United States were entitled to some remedy for the failure of the US to provide consular notification under the VCCR. The IACHR issued an opinion (non-binding) outlining the legal rationales that became the basis for the later ICJ opinion in Avena: 1) the VCCR creates an individual right to an arrested national to have his consular representation notified; 2) the US failed to provide the notification; 3) the US must provide some remedy for the failure to notify, e.g., waive the procedural default rule, especially where death is the punishment.

Also in 1999, two German brothers, the LaGrands, were sentenced to death in Arizona. After one brother was executed, Germany brought a case before the ICJ under the VCCR. Again, the ICJ issued a provisional measure (which Germany unsuccessfully tried to have enforced by SCOTUS), and again the remaining defendant was executed before the ICJ could issue its final judgment. But Germany pursued the case anyway, with the resulting opinion of the ICJ reaching in essence the conclusions of law set forth by the IACHR advisory opinion. Avena, decided last year in favor of Mexico, was the last in the line of the three ICJ cases and provided the basis for the current Medellin challenge. At the same time as these cases have been pursued under the VCCR, international human rights groups have been systematically filing amicus briefs in key cases, like Simmons, and have been shining the harsh light of publicity on the US death penalty.

We have all seen movies where an American or Briton engages in some crime while vacationing abroad, only to find themselves subject to a criminal justice system that is draconian (anything from Return to Paradise to Bridget Jones Diary II comes to mind) by our own standards. We sympathize with the plight of the American sentenced to death for drug possession, and cheer for the friends who try to use all available means to spring them from jail, including intercessions by the US government. It can hardly be a surprise that other governments – who uniformly prohibit the death penalty – would do the same in the face of the practices of some US states that they view as archaic and draconian.

Julian may be right that the defendant in Medellin may ultimately not be spared the death penalty in Texas at the end of this process. But taken in combination with the ruling yesterday in Simmons, the strategy of pursuing American death penalty practices through a regional human rights body, the ICJ and through networks of activists poised to file amicus briefs and influence the “virtual” court of public international opinion appears to be swinging the pendulum ever so slightly in the direction of the abolitionists.

In this morning's press, our international partners appear heartened by Kennedy’s acknowledgment in Roper v. Simmons that we pay attention to what is going on in the rest of the world, and some recognition that, yes, we live in that world. For a sample of some of the international reaction to the Simmons case, see discussions here (Irish Times) and here (Jerusalem Post). As with his majority opinion in Lawrence v. Texas, Kennedy places, in my mind, just the right amount of emphasis on the practice of other states (particularly the UK) and the trends in international human rights instruments. (What is really interesting about Simmons is the extent to which the Missouri Supreme Court opinion affirmed by the Court discussed international opinions on the death penalty.)

I happen to agree with the former diplomats who filed an amicus brief in Simmons, and who cited Harry Blackmun’s views on this issue, that, "if the substance of the Eighth Amendment is to turn on the 'evolving standards of decency' of the civilized world, there can be no justification for limiting judicial inquiry to the opinions of the United States."

UPDATE: The Economist has this interesting article on the case asking "is the United States being swayed by international opinion?"

Iraqi Special Tribunal Judge Murdered

I recently posted about Saddam’s trial moving forward. Yesterday, one of the judges of the Iraqi Special Tribunal, Barwize Mohammed Mahmoud al-Merani, and his son were murdered. (News report is here.) The judge was also a leading Kurdish politician and his son was an attorney at the tribunal. Authorities believe they were killed by insurgents.

This comes a day after the news of the turn-over of Saddam’s half brother, Ibrahim al-Hasan al-Tikriti , by Syria. Al-Tikrit is now believed to be the first person likely tried by the tribunal.

Legal transitions are often a process of two steps forward/one step back but it is difficult to think of one with higher stakes than this one.

Medellin: A Response to Comments

I am gratified for some of the comments below to my very long post on Medellin. Please indulge me as I follow up with a further clarification of why I believe the ICJ judgment should not be enforced by the courts.

I agree with Andreas that enforcing the ICJ judgment would not necessarily make the ICJ a higher court. Rather, the analogy would be to that of the U.S. Supreme Court and the highest court of particular state, say New York. The U.S. Supreme Court is bound, in a sense, to follow the interpretations of the highest New York court on questions of New York law. Similarly, if the U.S. Supreme Court was applying French law on a question, it seems reasonable to say that it would have to follow the interpretations of the highest French court.

But what is going on here is a bit different. Under Andreas' view, the U.S. has delegated the authority to interpret U.S. treaty law (which is the law of the land under Article VI) to an international court. So under Andreas' view, the ICJ is the final interpreter of a type of law (treaty law) that the U.S. Supreme Court would otherwise have the last word on.

I think such delegations would be constitutionally suspect if made without some limitations, and the better view is to consider such delegations to grant international tribunals the power to intepret the international law consequences only of a treaty. The question of whether or how the U.S. would apply that interpretation as a matter of domestic law should remain a question within the discretion of the political branches (Congress and the President).

The political branches might decide that the treaties should be enforced by the courts absent any constraints or limitations. This remains constitutionally suspect, but much less so if Congress and the President have been forced to state, on the record, that they have granted the international court this authority. Then they are accountable for the international court's decision, and not the international court itself. Or, as is more commonly the case, the political branches decide to reserve to themselves (usually the President) the question of how or whether to enforce the international court judgment as a matter of domestic law.

This is what the U.S. government has done with WTO and NAFTA decisions and I think this is the best way to understand what the U.S. treatymakers did here with the Vienna Convention and the ICJ Statute as well. Sometimes international lawyers like to suggest that the WTO is all powerful and complied with so we should also comply with other international tribunals, but they should remember that there is a constant give and take within the U.S. system over whether and how to comply. And the one institution that has no say whatsover is the federal courts.

So in that way, the President's action yesterday conforms to this approach. I think it raises some new problems, e.g. the question of the President's power over the states, but those problems, while real, are I think far less significant the problem raised by the international court's power over the domestic U.S. court system.

Comity is everyone's favorite fallback position. The idea here is that domestic courts should give weight to the international court's interpretation of the treaty or whatever law. I think this is right, but the whole point of comity is that it is not mandatory on the comity-conferring court. Thus, the U.S. Supreme Court should try, whenever possible, to defer to foreign and international court interpretations. But if there are strong countervailing domestic law obstacles to providing comity, e.g. a federal statute denying jurisdiction, then comity cannot override that domestic law obstacle.

When the Medellin case goes back to Texas court, which I believe will happen, the Texas court will have to figure out what it means to be "required" to give comity to the ICJ decision. Does a federal determination of comity override a mandatory state law policy? I don't know and this will be the next tricky question facing the lawyers for Medellin, Mexico, and the state of Texas in this case.

Tuesday, March 01, 2005

Rumsfeld Sued For Torture

Busy news day here at Opinio Juris. The ACLU and Human Rights First announce that they, along with a group of former military officers, have sued Donald Rumsfeld over the use of torture and/or other abuses at Guantanamo Bay, Iraq, and Afghanistan.

Really quick take: The biggest practical obstacle here is Rumsfeld's immunity as a government official. Still, there might be ways to get around this and at the very least, it will force the government to defend its activities. And it might require a court to wrestle with some of the tricky questions on just what constitutes torture that we have been batting back and forth here.

UPDATE: The complaint can be found here. Some of the allegations are rather shocking:

  • Refusing to provide medical care for gunshot wounds inflicted by U.S. forces for several hours and then removing bullets from Plaintiff Ali H.’s neck and back without anesthetic, intentionally causing excruciating pain;
  • Refusing to provide Plaintiff Ali H. with food, water, and pain medication for one-and-a-half days, despite his gunshot wounds, in order to cause pain, hunger, thirst, and humiliation;

More to the point, the allegations raise another possible issue and defense for Rumsfeld, namely, "I never authorized this behavior". Certainly, there is no actual document or allegation directly linking him to this behavior, no "smoking gun" so to speak. I presume that is what he will argue (in addition to the argument that this behavior never occurred, which is still possible). As I've argued before, if this type of stuff was going on, the mere fact that he didn't stop this behavior, or do something to prevent this behavior, is bad enough and should be grounds for his resignation (but not his liability in these sorts of lawsuits).

International Law and the Juvenile Death Penalty

The Supreme Court today held that the practice of executing individuals for crimes they committed below the age of 18 is a violation of the Eighth Amendment. Justice Kennedy's opinion for the Court here includes an extended discussion of the relevance of foreign and international practice to the interpretation of the Eighth Amendment. Some highlights on this issue:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. (emphasis added)

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10.11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. (emphasis added)

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

The Court also cited:
  • International Covenant on Civil and Political Rights, Art. 6(5), 999 U. N. T. S., at 175
  • United Nations Convention on the Rights of the Child, Art. 37,
  • American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5)
  • African Charter on the Rights and Welfare of the Child, Art. 5(3)

I can't resist observing that the U.S. government has specifically reserved to the question of the execution of juveniles in signing and ratifying the ICCPR and in signing the Convention on the Rights of the Child. It may have done so also with the American Convention on Human Rights.

I am not sad to see the juvenile death penalty go away, but I do think it is odd that treaties to which the U.S. government specifically reserved the question at issue (the international legality of the juvenile death penalty) are being used as evidence of what the U.S. Constitution requires.

Even More on the Domestic Enforcement of ICJ Judgments: Summary and Analysis of the Briefs for the Respondent

Warning: this is a rather long post summarizing the various arguments raised by all the three briefs filed yesterday in Medellin , with my comments and thoughts (for what they are worth). Although this post is long, it still beats reading all three briefs, links to which can be found here, here, and here (Hello? Supreme Court Clerks assigned to bench memos for Medellin? Over here!)

Just as a reminder, the case is about a Mexican habeas petitioner who was arrested and convicted without receiving his consular notification rights under the Vienna Convention on Consular Relations. The International Court of Justice ruled, in a case brought by Mexico, that such Mexican nationals have a right to review and reconsideration of their convictions and sentences. He filed a petition in federal court seeking habeas review.

Here are the main arguments:

(1) The Anti-Terrorism and Effective Death Penalty Act (AEDPA), the federal statute regulating federal court jurisdiction for habeas corpus petitions, does not grant jurisdiction for review of the petitioner's attempt to enforce the ICJ judgment.

There are a number of reasons why this is the case, the most important one (as all three briefs point out) is that the petitioner Medellin is bringing a claim that his treaty rights were violated whereas the appellate jurisdiction of the federal courts under AEDPA is limited to review of a denial of "constitutional claims."

There is a larger principle at stake in this technical discussion. Does a federal statute supersede or modify an earlier enacted treaty? The answer under U.S. law is a resounding yes (as I explain exhaustively here). If the statute means what Texas, the U.S. and the Seven Law Professors says it means, then the federal statute prevents Medellin from seeking federal appellate court review of his treaty-based claim. It doesn't mean, as all three briefs point out, that there is no significance to having a treaty-based right, but it just means that Congress has the right to limit or control how such treaty rights will be reviewed in habeas. After all, it is well settled that Congress can limit the ability of petitioners to seek review of other federal statutory or even constitutional rights, so it is not surprising that Congress can limit the review of treaty-based rights.

(2) The Vienna Convention on Consular Relations does not grant the petitioner a judicially enforceable right.

All three briefs talk about this issue, although most heavily emphasized by the U.S. and Texas. The basic point is this: Even though the Vienna Convention is a self-executing treaty, this does not mean it creates judicially enforceable private rights of action. In other words, not all treaties create rights for individuals to enforce their provisions in domestic courts. As the U.S. Brief explains, the Vienna Convention is "self-executing" in the sense that federal and state government officials already hold the power (without additional legislation from Congress) to enforce the treaty's terms. No judicial enforcement by private individuals is necessarily required or permitted.

(3) The Optional Protocol granting jurisdiction to the ICJ to interpret the Vienna Convention does not grant ICJ judgments the status as domestically enforceable law.

This is an argument emphasized by the Law Professors' Brief and the U.S. Brief. And I believe it is the most interesting one.

Both briefs argue that the U.S. government did not, when it agreed to grant the ICJ "compulsory jurisdiction" over Vienna Convention disputes, grant the ICJ the power to create enforceable judgments that bind domestic federal and state courts. The Law Professors' Brief points out that the terms of the Optional Protocol only grants jurisdiction to resolve disputes between "parties" , that is to say, governments and not individuals. The U.S. further argues that the source of authority to carry out judgments of the ICJ lies in the UN Charter and with the U.S. government's political branches only. It is here that I think the LawProf Brief usefully adds an important argument. If, as the petitioner argues, the ICJ judgments are directly enforceable in domestic federal and state courts, then I (and the co-signers of the LawProf brief) think serious constitutional problems are created.

The ICJ essentially becomes a part of the U.S. judicial branch because it can directly order U.S. courts to reverse their judgments. I, and others, have called this a delegation, and a potentially excessive one, to an international institution otherwise unaccountable to the U.S. individuals to which their judgments would apply.

Marty Lederman is unconvinced by this argument citing in the main to cases discussing the ability of Congress to assimilate foreign law by statute and suggesting the LawProf Brief conceded this point. Actually, we did not concede this point and I don't read the cases to have resolved this question already. But suppose he is right: if Congress can delegate to a foreign government the authority to make or interpret domestic law by statute, why can't they do it by treaty?

I have a two part response:

(a) When Congress assimilates foreign law by statute, this is also a delegation, albeit one might be found constitutional. But it is a delegation and courts must analyze whether or not the delegation was excessive. Generally, such delegations will pass the test, but the point is that the delegation question needs to be asked.

(b) The delegation question needs to be asked precisely in cases like this one, where the treaty doesn't have any language as clear and specific as the language in congressional statutes assimilating foreign law upon which lederman relies. The delegation question forces Congress or the treaty makers to plainly spell out the fact that they are delegating authority, and what limits or standards they will place on such delegations. The usual way they do this in the treaty context is through a subsequently enacted statute spelling out how and whether a domestic court should enforce a foreign or international court judgment. It matter more in the instance of an international delegation because of the stronger presumption that the conduct of relations with foreign countires and international institutions will be controlled by the political branches and not the courts.

Additionally, such authority may also threaten the autonomy of the state governments because any ICJ judgments would presumably preempt their laws.

Overall, these are difficult and fundamental questions about the status of international tribunals within or above the U.S. judicial system. All of these difficult questions can be avoided if the Court simply refuses to consider the ICJ judgment as self-executing.

(4) Contrary to Petitioner’s and amici’s claims otherwise, enforcing the ICJ judgment directly here would depart from both U.S. and international practice.

Here is what turns out to be the main contribution of the Law Professors’ Brief. The U.S. does allow domestic enforcement of many international court judgments, but such enforcement has always been specifically authorized by Congress.

Moreover, our treaty partners in the ICJ, other foreign countries, do not directly enforce, through their judicial branches, judgments of the International Court of Justice. There is NO evidence anywhere of a reported judgment where an ICJ judgment was given direct effect.

There is an important principle at stake here as well. Congress might want to control how an international court judgment is enforced, what standards a court should use in considering how to enforce that international court judgment, etc. They might want “full faith and credit” (meaning no review) or they might want lots of judicial review of the international court judgment. But Congress gets to bind the court, not the international court itself nor the treaty. In theory, a treaty might directly order U.S. court to enforce its judgments, but any such treaty would have to make such an order to the courts crystal clear. No such clarity can be claimed here.

Additionally, it would be odd for the Court to adopt a rule directly enforcing ICJ judgments when none of the U.S.’s treaty partners do so. It is unclear that any comity is being provided to the treaty partners, whom would not provide any reciprocal treatment (Our brief further points out that one of the amicus briefs for the petitioner, filed by Prof. Damrosch of Columbia Law mistakenly claims that Belgium does directly enforce ICJ judgments).

(5) The Executive Branch has the inherent and exclusive power to enforce the ICJ judgment.

This is the biggest surprise of the briefing. The U.S., via Pres. Bush, has issued an executive order requiring state courts to give domestic effect to ICJ judgments.

My own view has been that the President should request states to defer to an ICJ judgment and that the states should listen. This has been the past practice when foreign governments made diplomatic protests on behalf of their nationals. The U.S. Brief goes one step farther and orders the state courts to carry out the ICJ’s order. Any inconsistent state law is preempted by the Executive Order. The Executive Order is based on the UN Charter’s imposition of a duty on the U.S. to carry out ICJ orders and the Executive’s inherent authority to manage foreign affairs.

I am not thrilled with this approach, because it opens the door to lots of executive orders telling the states to do things because of foreign affairs (as Brannon Denning and Mike Ramsey pointed out here). On the other hand, I do see its advantages, especially if the alternative is having the U.S. Supreme Court order the states to do the ICJ’s bidding.

What is at stake here is whether foreign relations will be controlled by the political branches (e.g. the President and/or Congress) or the federal courts. Historical practice, as well as functional competence (this is the main point of my piece with John Yoo here), strongly suggests this power should be held by the political branches.

On the other hand, whether the President can do this sort of thing alone, where his actions require the preemption of state law, is quite another matter. I suppose Congress could always override his actions, but this doesn’t really solve the federalism problem. What is the federalism problem?

Well, why can’t the President claim all sorts of foreign affairs concerns require him to issue executive orders to preempt state law? The U.S. government brief here carefully ties much of its authority to the UN Charter (a treaty of the U.S.) but it also claims a broad inherent power. Is there any limit imposed by federalism on the President’s foreign affairs powers? I think there must be some limit but I have suggested in the past that no President wanted to explore that limit. Yesterday, President Bush began to explore that limit and we will have to see (back in Texas I presume) how far he (and the courts) are willing to go.

Bottom line: the Executive Branch has taken responsibility, as it should, for the enforcement of its international legal obligation to comply with the ICJ's judgment. This should satisfy all parties concerned (even Texas, who can now say, the President made us do it). I don't think they needed to make an executive order (or whatever it is, some controlling executive act) but this is not the worst option (the worst option being having the Supreme Court do this). If I were Medellin's lawyers, I would declare victory and quit the field. Your client will almost certainly get his hearing (although he will probably still lose and face execution).

Whew! If you made it all the way to the end of this post, congratulations!! I barely made it myself.

Medellin Update: The Law Professors (and the U.S. and Texas) Strike Back

As I noted on Friday, respondent's brief were due yesterday in Medellin v. Dretke, the Supreme Court case considering the domestic enforcement of judgments by the International Court of Justice. Texas filed a brief (which can be found here) as did a group of law professors (myself included) who filed an amicus brief here in support. But the big question was whether the U.S. government would file an amicus brief and what it would say. Well, they did file a brief (see here) and what they had to say was striking in some instances, as Marty Lederman explains here.

Here is my quick take. I plan to post a much longer discussion later today. The U.S. government's brief follows my suggestion here (OK, they didn't "follow" it, but great minds think alike) in that it pledges to the Court that the Executive Branch will take care of the enforcement of the ICJ judgment without judicial intervention. How they say they will enforce is another matter I'll discuss in the future. The upshot: I predict this intervention will result in this case being vacated and remanded to the lower courts or dismissed altogether. I cannot imagine why the Court would want to hear this case if they don't have to. And the Executive's brief yesterday gives them every reason to believe they don't have to.

Here's why. President Bush has issued an executive order stating:

I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of American (Avena), 2004 I.C.J. 128 (Mar. 31, by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

End of story? Maybe. Please stay tuned for more....

Monday, February 28, 2005

US Government Ordered to Release Padilla or Charge Him

In this opinion handed down today, Judge Henry Floyd of the US District Court in Charleston granted Jose Padilla's habeas petition, explicitly rejecting the government's position that the President has broad powers to detain US citizens as enemy combatants. The government has 45 days to charge Padilla with a crime, hold him as a material witness, or release him. Here's a quote from the judge's conclusions of law, which relies on Youngstown and Hamdi:

It is true that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else -- not the Court and not the President. "The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times." Youngstown, 343 U.S. at 589. "[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." Hamdi, 124 S.Ct. at 2650 (internal citation omitted). Simply stated, this is a law enforcement matter, not a military matter.

SCOTUS Considers Application of ADA to Foreign-Flagged Vessels

In a case argued this morning at the Supreme Court, the Department of Justice has sided with a group of disabled cruise passengers who sued Norwegian Cruise Lines for failing to provide the kinds of accommodations required on public transportation under the Americans with Disabilities Act. NCL argues that, because their ships fly under the Bahamian flag, extraterritoriality doctrines should be applied, which would exempt them from ADA regulation in the same way that they are exempt from federal labor laws. (NCL's brief is here.) DOJ and the plaintiffs' argue that the ADA can be applied to foreign flagged vessels operating in US waters precisely because they come in and out of US jurisdiction and operate as a public accommodation. (Plaintiffs' brief is here.)

This is a close and interesting question. Under international law, ships are generally only subject to the jurisdiction of the state under whose flag they sail. But NCL and other cruise lines routinely invoke US jurisdiction in contracts of adhesion (e.g., passenger tickets) for torts and other disputes that arise onboard their cruises. Further, it seems that NCL would have a tough time arguing that the US cannot insist, for example, that civil rights laws banning racial discrimination in public accommodations be extended to cruise ships embarking from US ports. On the other hand, cruiselines choose to register under foreign flags precisely to avoid certain regulatory restrictions and costs (i.e., taxation, labor and employment laws), and broad application of the ADA to foreign-flagged vessels might conceivably apply not only to cruise ships, but also to every merchant marine vessel that ever enters US waters. As was noted in this morning's oral argument, compliance with the ADA in those circumstances would be extraordinarily expensive and a burden on trade.

Like earlier extraterritoriality cases (See, e.g, EEOC v. Aramco), whatever the Court decides --and it may confine its ruling to the narrow circumstance of ships that offer public accommodation -- this one may prompt Congress to go back and define when and how it thinks the ADA should apply to foreign-flagged vessels.

Georgetown Law is hosting a panel discussion on the case tomorrow.

UN Human Rights Commission: Membership Not the Only Problem

Looking beyond the very real problem of human rights abusers sitting as members of the UN Human Rights Commission, UN Watch Executive Director Hillel Neuer (a former colleague from my days in practice) has a cogent essay in last week's TNR ($) criticizing the Commission's 1503 procedure. The 1503 procedure was introduced in the 1970s to enable individuals to bring complaints against states directly to the Commission. In theory, it is a great idea. In practice, it has failed utterly. Why? Confidentiality of the procedure protects the perpetrators at the expense of the complainants, and the politicization of the process used to determine which complaints get through to the full commission has meant almost no real action at all. Neuer concludes that the confidential 1503 procedure does more harm than good; burying some problems (Darfur) in favor of repeatedly blasting favorite targets like Israel. The real action is in the public 1235 procedure of the Commission -- "naming and shaming" of violators -- which takes place at the plenary session in the Spring. Neuer describes the central challenge of reforming the system:

In many ways, the world's foremost human-rights body is at its nadir. In December it was indicted by the United Nations. itself for "eroding credibility and professionalism" and for being dominated by states whose interest is "not to strengthen human rights but to protect themselves against criticism or to criticize others." Kofi Annan, responding to proposals contained in the report that included this unusually candid diagnosis, is expected in March to announce a major attempt to fix the commission, while leading member states are expected to present their own visions for reform during the commission's first week of ministerial speeches, also next month. Thus far, none of the suggestions (for instance, expanding membership to all 191 U.N. members) provides a solution to the core challenge: How can the objective enforcement of human rights, an apolitical task, be pursued by a body made up entirely of governments, which are inherently political? That is the crucial question confronting the U.N. Commission on Human Rights. And it's much bigger than Cuba, Zimbabwe, and Saudi Arabia.

Mexico, Genocide, and the (Non)Supremacy of International Law

Central America expert David Holiday points me to this LA Times op-ed yesterday on the recent Mexican Supreme Court decision to bar an indictment for genocide against a former Mexican President. If correct, the article suggests that the recent fad for genocide indictments in Latin America are being driven almost completely by the requirements of international law. Thus, as I argued here, the Bolivian genocide indictment is probably an attempt to force the U.S. to extradite their former President. Similarly, the Mexican indictment (according to the article) was an attempt to circumvent domestic Mexican law, namely Mexico's statute of limitations. As the article explains,

In Mexico, domestic laws still trump international treaties. Although many nations have surrendered their sovereignty to international norms on human rights, Mexico has not. So, because he had no other choice, the special prosecutor resorted to the charge of "genocide" against former President Luis Echeverria in the 1971 killings of student protesters. The prosecutor believed that perhaps crimes against humanity might be punished even if murder committed long ago could not. But the court ruled the Mexican Constitution establishes a 30-year statute of limitations that not even international treaties on genocide can void.

It is not clear to me whether the decision was based on Mexican constitutional law or not, but either way, it does appear that Mexico views international law in the same way as the United States does -- that is to say, international law cannot supersede domestic law simply because it is international law (please correct me if I'm wrong about this Andreas).

There are all sorts of good reasons why domestic law, especially domestic constitutional law, should trump international law (even international human rights law) when the two kinds of law come into conflict. The U.S. has always had this rule (albeit with some permutations I won't go into here) and it is interesting that Mexico has the same approach. If so, perhaps Mexico will be more understanding if the United States Supreme Court does not go out of its way to overrule U.S. domestic law based on a judgment won by Mexico in the International Court of Justice in Medellin. OK, they almost certainly won't, but at the very least Mexico will have to recognize that all the U.S. court would be doing in Medellin, if it rules against the Mexican petitioner, would be what Mexico's own Supreme Court just did, namely, give effect to domestic over international law.

Agent Orange and the Alien Tort Statute

Arguments will begin today in U.S. District Court for the Eastern District of New York in Brooklyn over a motion to dismiss an Alien Tort Statute lawsuit by Vietnamese nationals seeking damages from manufacturers of Agent Orange, an herbicide used by the U.S. during the Vietnam War. This remarkable suit is brought as a class action on behalf of every Vietnamese national who was exposed to Agent Orange. According to the complaint, this class consists of "not less than two to four million persons." No dollar amount in damages is specified, probably any amount wouldn't fit on a page of their brief.

The plaintiffs seem to face serious obstacles (as explained in the defendants here and here)(1) the 10-year statute of limitations for Alien Tort Statute claims would appear to bar this suit; (2) it seems highly doubtful that spraying herbicides was a violation of international law at the time of the Vietnam War (apparently, this has become a matter of dispute between two well known international law figures, George P. Fletcher and W. Michael Reisman); (3) any finding that such spraying was a violation of international law may create separation of powers problems because the President plainly authorized the spraying as part of his war powers; (4) it is also highly doubtful that defendant manufacturers are liable under international law for the actions of the U.S. government.

On the other hand, the plaintiffs wisely filed their lawsuit in the court of Judge Jack B. Weinstein who is a respected federal judge, but let's face it, is hero of the plaintiffs' bar. So even though I think the defendants appear to have the stronger arguments, I put the plaintiffs' chances of success (in district court) at better than 50 percent.

Sunday, February 27, 2005

The Relevance of Legality in War (Part III)

I want to weigh in on what has been a fascinating discussion of war and legality in the context of Iraq and Kosovo and also the lingering issue of the gulf between the US and Europe on these fundamental questions.

First, on Julian's and Chris' comments about the rules governing the use of force and doctrines of interpretation: the problem for both sides is that the rules only really worked for a short period of time in the 1990s. At the time, it looked as though the end of the Cold War would bring about a Security Council that would more or less operate as originally intended by the drafters of the Charter. Today it looks more like a historical window that opened and is now, if not totally shut, only partially ajar. Reliance on these rules and doctrines of interpretation therefore becomes relatively meaningless when divorced from the liberal principles underlying the international system. This is precisely why I raised the issue of legitimacy in my earlier post on a NATO force for Darfur. I agree with Seth Weinberger's comment to Julian's post that question of legitimacy lies at the center of the multilateral rules governing the use of force, and should be at the heart of any discussion of how to revise or revamp the rules. The interplay between law and legitimacy is interesting in this context: 1) the rules themselves confer a kind of legitimacy (i.e. collective security through cooperative decision-making as a reflection of international liberalism); and 2) the use of force itself as an attempt to enforce liberal values (e.g., human dignity and security).

Because it was a case in which these two points conflicted, Kosovo was a challenge to a central orthodoxy in international law about the non-use of force except in self-defense. As Chris pointed out, plenty of international law scholars did and still do denounce Kosovo as an illegal intervention (in addition to Tom Franck, see, e.g., Mary Ellen O'Connell, The UN, NATO, and International Law, After Kosovo, Human Rights Quarterly 22, 2000). But Kosovo forced the UN and the international community to grapple with the fact that the UN mechanism created to enforce the rules may have been, gasp, an impediment to preserving and defending the very values for which it was created. The use of NATO is one way to carry out a collective use of force through an organization that is based on the same principles as the UN, save one: universal membership. (Indeed, the North Atlantic Treaty borrowed language on collective security almost wholesale from the UN Charter.) It is one reason why I support the use of NATO in Afghanistan and would support in Darfur.

Second, Julian hasn't been paying enough attention when he asks "do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal? I don't." As one astute anonymous comment noted, one of the architects of the current Iraq war, Richard Perle, famously stated on the record that the war was illegal. (See the uproar his statement caused in the UK here). And the tone had certainly been set by the Bush's statement that he didn't need a "permission slip" to defend US interests. Attempts within the Bush administration at expressing legal justification for the war -- based on either the emerging doctrine of pre-emptive war or on past UN Security Council resolutions -- were clearly post hoc and (as Kevin Heller points out in his comment) shifted as the facts and political justifications changed over time. Ironically, these attempts to provide legal justifications put the administration where I don't think it wanted to be (certainly not where Perle thought they should be) -- arguing over doctrinal rules governing Security Council resolutions.

Julian raises an important point: the apparent irrelevancy of the international legality of the use of force in US political discourse -- including throughout the mainstream media -- and the centrality of it in European political discourse. Why does it not matter (to Democrats or Republicans) whether sending American troops into battle is unlawful in the eyes of the rest of the world? Why does it matter to Blair or Schroeder or Chiraq? I don't think it is simply a question of ICC jurisdiction, but rather goes to the relationship between countermajoritarian international law and democracy. In an early post here, I discussed Jed Rubenfeld's take on this issue, which I think gets it right. To grossly oversimplify his point: because of its history of nationalism Europe sees post-WWII international law as necessary to constrain majoritarian tendencies; the US sees post WWII international structures as a way of implementing majoritarian views. But this deep division on questions of international governance (with the exception of trade regulation) is the "elephant in the room" of US-European relations. And the elephant did not arrive when Bush was elected president; it has been there since the fall of the Berlin Wall. This is one reason why the Medellin case will be watched closely across the pond.

At our symposium on judging this weekend, Dan Farber made an observation about judging that applies equally to international law (certainly as reflected in a couple of the student comments posted in response to Julian's and Chris' posts). Most students, he noted, enter their first year of law school fascinated -- and comforted -- by the idea that the law is set of rules and exceptions that can be applied almost mechanically. They generally balk at the idea that two judges can look at the same set of rules and exceptions applied to the same set of facts and come up two different results. So they react in one of two ways: throw up their hand and conclude that all judging is either based on what the judge had for breakfast or raw political preference; or retreat into the rules and insist that their view of them is right. The hard slogging for us professors is getting them to the middle where principled decision making meets policy choices. As our discussion here shows, this is even more so when talking about the rules governing the use of force, which were always intended to meld law with politics.