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International Law in the American Courts – The United States Supreme Court Declines to Enforce the I.C.J.'s Avena Judgment Relating to a U.S. Obligation under the Convention on Consular Relations

Published online by Cambridge University Press:  06 March 2019

Frederic L. Kirgis

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The United States is a party to the Vienna Convention on Consular Relations (“the Consular Convention”). It requires in Article 36(1)(b) that the competent authorities of each State party inform the consulate of another party if the latter's national is arrested and requests that the consulate be notified. Article 36(1)(b) further requires the authorities to inform the person arrested of the right to communicate with the consulate. Article 36(2) says that the rights in Article 36(1) are to be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso “that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”

Type
Developments
Information
German Law Journal , Volume 9 , Issue 5 , 01 May 2008 , pp. 619 - 638
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. This Introduction is based in part on ASIL Insight, The Texas Court of Criminal Appeals Decides Medellín's Consular Convention Case (Dec. 8, 2006), available at http://www.asil.org/insights/2006/12/insights061208.html. See also ASIL Insight, Medellín v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings (Apr. 8, 2008), available at http://www.asil.org/insights/2008/04/insights080418.html.Google Scholar

2 Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 266 (Order of Prov. Meas., Apr. 9); LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 104 (June 27); Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).Google Scholar

3 LaGrand Case, para. 91; Avena Case, para. 113.Google Scholar

4 Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).Google Scholar

5 Ex parte Medellín, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006).Google Scholar

6 Medellín v. Texas, 128 S.Ct. 1346 (2008).Google Scholar

7 Medellín, 128 S.Ct. at 1358.Google Scholar

8 Medellín, 128 S.Ct. at 1381, 1383 (Breyer, J. dissenting).Google Scholar

9 See U.S. Const. art. II, § 2, cl. 2. (explaining that in the United States, treaties - in the domestic sense of the word - require only the advice and consent of two-thirds of the Senate).Google Scholar

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13 The U.S. view on the scope of Article 94(2) was not widely shared by other States at the San Francisco conference that drafted the U.N. Charter. See Leland B. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations 557 (3d ed. 1969); see also 2 The Charter of the United Nations: A Commentary 1177 (Bruno Simma ed., 2002).Google Scholar

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15 Medellín, 128 S.Ct. at 1360 (emphasis in the original).Google Scholar

16 See 3 Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005, at 1571 (2006).Google Scholar

17 Medellín, 128 S.Ct. at 1363. A similar approach was taken by the Fifth Circuit Court of Appeals in United States v. Postal, 589 F.2d 862 (5th Cir. 1979) (concerning Article 6 of the Convention on the High Seas). For criticism, see Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 AM. J. INT'L L. 892 (1980). See also 1 Restatement (Third) of Foreign Relations Law of the United States § 111 cmt. h, and Reporters’ Note 5 (1987).Google Scholar

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21 Medellín, 128 S.Ct. at 1368. The third argument is taken directly from Article II, Section 3 of the Constitution.Google Scholar

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25 United States v. Pink, 315 U.S. 203, 227–30 (1942); United States v. Belmont, 301 U.S. 324, 330–31 (1937); see U.S. Const. art. II, § 3 (illustrating that the Constitution expressly gives the President the authority unilaterally to receive ambassadors and other public ministers).Google Scholar

26 This argument has no implications for the President's asserted authority to act unilaterally to combat terrorism as commander-in-chief of the armed forces. In that context, the lines between presidential and congressional authority are much less clear than they are in the purely diplomatic context.Google Scholar

27 Medellín, 128 S.Ct. at 1371–72. The majority referred to American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003); Dames & Moore v. Regan, 453 U.S. 654 (1981); United States v. Pink, 315 U.S. 203; and United States v. Belmont, 301 U.S. 324 (1937).Google Scholar

28 Garamendi, 539 U.S. at 421.Google Scholar

29 Zschernig v. Miller, 389 U.S. 429 (1968).Google Scholar

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32 See Louis Henkin, Foreign Affairs and the United States Constitution 203–04 (2d ed. 1996).Google Scholar

33 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).Google Scholar

34 Medellín, 128 S.Ct. at 1365.Google Scholar

35 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, U.N. Doc. A/CONF.39/27 (1969).Google Scholar

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37 See the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, arts. 49 & 51 (“Articles on State Responsibility”), and the Commentary thereto, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, 328–33 & 341–44, U.N. Doc. A/56/10 (2001), reprinted in James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries 281–87 (2002). See also Frederic L. Kirgis, Some Lingering Questions About Article 60 of the Vienna Convention on the Law of Treaties, 22 Cornell Int'l L.J. 549, 571–72 (1989).Google Scholar

38 Articles on State Responsibility, art. 54.Google Scholar

39 Case Concerning the Air Services Agreement of 27 March 1946 (U.S. v. Fr.), 18 R.I.A.A. 417 (1978). The panel upheld countermeasures that “do not appear to be clearly disproportionate” when compared to the wrongful act of the other State. In Gab!íkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, paras. 85–87 (Sept. 25), the I.C.J. concluded that then-Czechoslovakia's diversion of the Danube River was disproportionate to Hungary's refusal to proceed with work under a treaty to construct and operate a system of locks on the river. The I.C.J. did not offer a test for proportionality.Google Scholar

40 Articles on State Responsibility, arts. 48 & 54.Google Scholar