Amicus Curiae Brief — Medellin v. Dretke

Supaeme Court, U.S

Fi LED

— | MAR 2 82005

No. 04-5928 FEB

din

IN THE

Supreme Court of the United States

JOSE ERNESTO MEDELLIN.

Petitioner.

Vv.

DOUG DRETKE, Director,

Texas Department of Criminal Justice Institutional Division

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR PROFESSORS OF INTERNATIONAL

LAW, FEDERAL JURISDICTION AND THE

FOREIGN RELATIONS LAW OF THE

UNITED STATES AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

PAUL B. STEPHAN *

580 Massie Rd.

Charlottesville, Va. 22903

(434) 293-6939

* Counsel of Record Counsel for Amici Curiae

February 28, 2005

a Se SS SPS A SSE fo a PCTS?

Wii SON-EPES PRINTING CO.. IN« (202) 789-0096 WASHINGTON, D.C. 20001

TABLE OF CONTENTS

ARGUMENT ccccevsesscesecscensecoovecsesnosionsosonaneseniuteonentasctontng

The requirements of 28 U.S.C. § 2253, which

governs federal appellate jurisdiction to hear

this case, have not been met because applicant

has not made a substantial showing of the

denial of a constitutional right ..........:ccececeeseeees

The Optional Protocol to the Vienna Conven-

tion on Consular Relations, the United Nations

Charter and the Statute of the International

Court of Justice do not obligate the courts of

the United States to implement the Avena

decision of the International Court of Justice,

and any interpretation of these treaties to the

contrary would raise substantial constitutional

COTRGUTTE 2 .ccxscicccersenesesebiesincitinntiecinnbiammniaaiianas

(i)

il

TABLE OF CONTENTS—Continued

Neither comity nor the need for uniformity in

treaty interpretation justifies a federal judicial

order requiring Texas to provide a hearing on

petitioner's Vienna Convention claim. No

other country has understood the Vienna Con-

vention as obligating its courts to implement

the ICJ’s interpretation of the Vienna Con-

vention. It is not generally the practice of other

countries to interpret their treaty commitments

as delegating to international bodies the

authority to render judgments in particular

disputes that will have direct effect in

domestic law, especially as to persons who do

not have standing to participate in such bodies’

INIT ciccikauiltinnsnusentenctnipestensecctnaniberpeeneesenees

SLA II scrleninthcteeeistinnendsirernntptedtocedinqnesenesenenstooes

Page

ili

TABLE OF AUTHORITIES

CASES

Alling v. United States, 114 U.S. 562 (1885) ........

Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989) .....cccccccceeeeseeeeeeees

Ashwander v. TVA, 297 U.S. 298 (1936)..........00++

Breard v. Greene, 523 U.S. 371 (1998)..........:cc00e-

Chapman v. Houston Welfare Rights Organi-

zation, 441 U.S. 600 (1979)... ccceccceseeeeeeeeeees

Cherokee Tobacco Case, 78 U.S. 616 (1871).......

Chevron USA Inc. v. NRDC, Inc., 467 U.S. 837

Coleman v. Thompson, 501 U.S. 722 (1991)........

Committee of United States Citizens Living in

Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir.

Dames & Moore v. Regan, 453 U.S. 654 (1981)...

Dretke v. Haley, 541 U.S. 386 (2004) oo... ccccceeeee

Electronic Datas Systems Corp. Iran v. Social

Security Org., 651 F.2d 1007 (Sth Cir. 1981)...

Fay v. Noia, 372 U.S. 391 (1963).....cccscceseeeeseeeeee

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829)......

Frelinghuysen v. Key, 110 U.S. 63 (1884)...........

Great Western Insurance Co. v. United States,

Ee Ae OEE CIEE enenenrictantenecicensesencitbenesnecasins

Head Money Cases, 112 U.S. 580 (1884) .............

Hilton v. Guyot, 159 U.S. 113, 164 (1895)............

Islamic Republic of Iran v. Boeing Co., 771 F.2d

SEL CID ccnttihiinscmpiverinmatincsmadepsicies

La Abra Silver Mining Co. v. United States, 175

ey EE chctentccssnccsopepsssvigiesetamsenenbiiptnicen

Maine v. Thiboutot, 448 U.S. 1 (1980) ..........c00000

12-14

18

21

18

9

4, 10

17

17

10

21

iV

TABLE OF AUTHORITIES—Continued

Marbury v. Madison, 5 U.S. (1 Cranch) 137

CRT Poe Cra LT ee

McCleskey v. Zant, 499 U.S. 467 (1991)...

Miller-El v. Cockrell, 537 U.S. 322 (2003)...........

Murray v. Schooner Charming Betsy, 6 U.S.

Cam GE CHO sccicnntsininniatnaacbiitintitiaatiiiiniadas

Murphy v. Netherland, 116 F.3d 97 (4th

as aan he NN Ne ee

Oliphant v. Suquamish Indian Tribe, 435

SREB e COUPE decccisivcasnninsitnaitaauniniitemnintlaiend.

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

CF eccnacnsisniceniciipalitinsitsiaaiiiniittinaitie tienes

Reid v. Covert, 354 U.S. 1 (1957) ..........ccsceeeseeeeees

Slack v. McDaniel, 529 U.S. 473 (2000)...............

Sosa v. Alvarez-Machain, 542 U.S. __ (2004)......

Swift & Co. v. Wickham, 382 U.S. 111 (1965)......

Torres v. Oklahoma, No. PCD-04-442 (Okla.

CUER, RE, Baie ep cccssncensseesetnvsesnisintacionnincannitiinies

United States v. Blaine, 139 U. S. 306 (1891).......

United States v. de la Maza Arredondo, 31 U.S.

DR ky ae aa

United States v. Dion, 476 U.S. 734 (1986) ..........

United States v. Lopez, 514 U.S. 549 (1995).........

United States v. Louisiana, 470 U.S. 93 (1985)....

United States v. Maine, 475 U.S. 89 (1986)..........

United States v. Morrison, 529 U.S. 598 (2000)...

United States v. Percheman, 32 U.S. (7 Pet.) 51

United States v. Schooner Peggy, 5 U.S. (1

| ee ee ae ae

United States v. Weld, 127 U.S. 51 (1888).............

Whitney v. Robertson, 124 U.S. 190 (1888)..........

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

Page

es hae ita il

v

TABLE OF AUTHORITIES—Continued

CONSTITUTION, STATUTES, TREATIES TO

WHICH THE UNITED STATES IS A PARTY,

AND EXECUTIVE AGREEMENTS Page

Ch CIID cccscsresrescnensnihisnnpinscstiienstnstnaiiaeneasen 4,19

ls Be EY cncecscnsectnsneastatiliennnitinniahapanls 18

9D CREE, & Bei cccccesastennsensienemngsniiistisiecinanstions 15

Se ie He Py CR ccceresccsccociscccetscctninnnnst 15

y Lit BE: . | + . Sanaa ennmeney 7 ona 6

BD Bohs & TAG cecevicensncecseerenecisiiiviniiiantniaivictasen 6

BD Ui ilics BBD. cscsncmcsccsescenercsnmnnmstpeinstoinsiesi 6

Se UB, BD Fe a ecenccinccsccsseimisvinsncenipieiintin 6

BD Bilis © SOIIR cccniccisnncescctnatitwijutanientneiabeecini 17

BB CE, FEED cqtcrteincrnnineniintinnnnmniigniae 2-3, 6-7

BO UB, Ge cxcccscesenctnecassssipssvitinunintntitgiiaiy 6

Be UBL, Be ccceensttsscascensipintsegitapnienisindaias 5

Convention on the Settlement of Investment

Disputes Between States and Nationals of

Other States, Mar. 18, 1965, 17 U.S.T. 1270,

T.LA.S. No. 6090, 575 U.N.T.S. 159 .......ccccee0es 15

Uruguay Round Trade Agreements, April 15,

1994, 1868 U.N.T.S. 3, H.R. Doc. 103-316

(BBG, ccececenrscsrnnsnssvinsinnninasiactianinivesiidaiiniatianings 16

North American Free Trade Agreement, Dec. 17,

1992, H.R. Doc. 103-159 (1993), 32 LL.M.

GD (Bei evcrececcecncessccsntpnictinesinnatamneneiipianvidenante 15-17

North American Free Trade Agreement Imple-

mentation Act of 1993, § 102(b)(2) (codified

at 19 U.S.C. § S312(ONZ)) ..cccrccccecesoacssecsccessesoree 16

Optional Protocol to the Vienna Convention on

Consular Relations Concerning the Compul-

sory Settlement of Disputes, April 24, 1963,

21 U.S.T. 325, 596 U.N.T.S. 487 ...ccccccccessseeeees passim

Statute of the International Court of Justice, June

Bb, 1D4D, FO Batt, COGS ecccesinmnsesiemntinmasccnin 9, 12-14

vi

TABLE OF AUTHORITIES—Continued

Page

United Nations Charter, June 26, 1945, 59 Stat.

GEIS cicegsesniesnnintentibinapenttipennapensaeiisiniatiomoualin 9, 13-14

United Nations Convention on the Recognition

and Enforcement of Foreign Arbitral Awards,

June 10, 1958, 21 U.S.T. 2517, T.LA.S. No.

Uruguay Round Agreements Act of 1994,

§ 102(b)(2) (codified at 19 USC.

FE Fea R cnrcestescnieninenattninscuaienpininninivetaniaiaiion 16

Vienna Convention on Consular Relations, April

24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 ........ passim

LEGISLATIVE MATERIALS

Vienna Convention on Consular Relations, Sen.

Exec. Rpt. 91-9 (1969) (Statement of J.

Edward Lyerly, Deputy Legal Adviser for

I wesincsstinicantitcaninitiiniiiniasicititmantiinieitins 12

OTHER TREATIES

European Convention for the Protection of

Human Rights and Fundamental Freedoms,

Nov. 4, 1950, 213 U.N.T.S. 221 ..........ccsssceesees 24

Consolidated Version of the Treaty Establishing

the European Community, Dec. 24, 2002, O.J.

ee Fe ae Ge vistcctierentiecematinntiianthitninnniis 26

MISCELLANEOUS

A v. Secretary of State, 2004 UKHL 4 42 (HLL.

Ae ccencavtinaninticasipteesinniciaiiaciiijeiattnitibdaepiiabinnae 25

A.Racke GmbH & Co. v. Hauptzollamt Mainz

(Case C-162/96), 1998 E.C.R.1-3655S ........c00000+ 26

Accession by the Communities to the Convention

for the Protection of Human Rights and

Fundamental Freedoms (Opinion 2/94), 1996

alias "EU nnscmcicniininnsdebieipbiansibienanlentabinibiniabens 27

fa ee ee

Bias bs oY

Vil

TABLE OF AUTHORITIES—Continued

Page

Anklagemyndigheden v. Poulsen (Case C-

286/90), 1992 E.C.R. 1-6019 cc cccccccecscseeeeeeees 26

Avena and Other Mexican Nationals (Mexico v.

United States), 2004 L,I. ......ccccccccseseseseeeeees 7, 9, 22-23

Brunner v. The European Union Treaty, [1994] 1

C.M.L.R. 57 (German Federal Constitutional

CREED ..cocsneaishetnsocniclineqnateasnbapunseniaitsimianuictongusniinnte 25

Curtis A. Bradley, /nternational Delegations,

the Structural Constitution, and Non-Self-

Execution, 55 STAN. L. REV. 1557 (2003) ......... 20

Curtis A. Bradley, Chevron Deference and For-

eign Affairs, 86 Va. L. Rev. 649 (2000) ............ 22

Case Concerning Military and Paramilitary

Activities in and against Nicaragua (Nica-

ragua v. United States of America), 1986

Sih celln DP iecveunislinwectisictesanitasisthanipdautiiendhblidinensuniibenties 12, 13

Jim C. Chen, Appointments with Disaster: The

Unconstitutionality of Binational Arbitral Re-

view under the United States-Canada Free

Trade Agreement, 49 WASH. & LEE L. REV.

DET CoD icentrcccscenisttnsstiinistpisitiinttibiinaategiininiis 20

Chiquita Brands International v. Commission

(Case T-19/0]), 2005 E.C.R. Te co.cc cece ee eeeee eens 27

Rosalyn Higgins, The ICJ, the ECJ, and the

Integrity of International Law, 52 INTL &

CORP. CKD. © Ge ccctncntatiasincittnnbcniietinaieavinn 27

Human Rights Act 1998, ch. 42 (Eng.) ........:00s000 25

Julian G. Ku, The State of New York Does Exist:

How the States Control Compliance with In-

ternational Law, 82 N.C. L. REV. 457 (2004) ... 20

Regina v. Secretary of State for Transport ex

parte Factortame Ltd., [1991] 1 All E.R. 70

CRE od scinscianisesehiccensntstnhineaiimmamipelenainiintisianin 25

Vill

TABLE OF AUTHORITIES—Continued

Constanze Schulte, COMPLIANCE WITH DECI-

SIONS OF THE INTERNATIONAL COURT OF

ITE Ce citisdeniiacetdentininiicensisiitetnbiiiiaiiiiaiianaias

THE EXECUTION OF STRASBOURG AND GERMAN

HUMAN RIGHTS DECISIONS IN THE NATIONAL

LEGAL ORDER (Tom Barkhuysen et al. eds.

War Crimes Case Against Former Foreign

Minister “Inadmissible,” AFRICA NEWS, Apr.

Mark Weisburd, J/nternational Courts and

American Courts, 21 Mich. J. INTL L. 877

Page

24

INTEREST OF THE AMICI CURIAE

Amici are professors and scholars of law with

expertise in international law, federal jurisdiction, and

the foreign relations law of the United States. This case

raises important questions concerning the authority of an

international tribunal to make direct changes in a core area of

U.S. domestic law, namely the procedural prerequisites for an

individual’s assertion of a legal right in the course of

a criminal prosecution. Acceptance of the arguments put

forward by petitioners would disregard the authority of

Congress to determine the conditions under which federal

courts can exercise habeas jurisdiction and bring about

an unprecedented, profound, and, in our view, undesirable

change in the relationship between international organizations

and domestic lawmaking in the United States.

SUMMARY OF ARGUMENT

Pursuant to 28 U.S.C. § 2253(c)(2), a habeas

petitioner must make a “substantial showing of the denial of a

constitutional right” in order to appeal a federal district

court’s refusal to issue a writ. The petitioner here alleges only

the violation of a right based on a treaty, which presents no

independent constitutional claim. Even if there were no

statutory bar to the consideration of petitioner’s claim at this

stage of habeas review, decisions of the International Court of

Justice are not directly enforceable in U.S. courts.

Compelling the lower federal courts to implement a decision

of the International Court of Justice, which can hear only

disputes between sovereigns, would bring about an

unprecedented upheaval in the relationship of international

bodies to our domestic law. In particular, the use of an

international body’s determination to invalidate a State’s

appropriate and neutral procedural default rule may very well

violate fundamental principles of federalism, the separation

9

—

of powers, and Article Ill. Considerations of comity and

uniform treaty interpretation do not support this outcome. To

the contrary, other countries’ legal systems, as well as the

European Court of Justice, generally do not recognize such a

delegation of lawmaking power to an international body.

ARGUMENT

I. The requirements of 28 U.S.C. § 2253, which

governs federal appellate jurisdiction to hear this

case, have not been met because applicant has not

made a substantial showing of the denial of a

constitutional right.

Both lower courts in this case denied petitioner a

certificate of appealability pursuant to 28 U.S.C. § 2253, as

amended by the Antiterrorism and Effective Death Penalty

Act of 1996. Through this provision, Congress limited

appeals of a federal district judge’s habeas review of state

criminal convictions to those instances where “the applicant

has made a substantial showing of the denial of a

constitutional right.” On several occasions this Court has

recognized that satisfaction of this standard is a jurisdictional

prerequisite to appellate consideration of a habeas application

and that § 2253 limits judicial review to consideration of

claims based on constitutional rights. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473,

484 (2000).

Before this Court, petitioner alleges no violation of

any constitutional right. Rather, his claims rest only on

the Vienna Convention on Consular Relations, April 24,

1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (Vienna Convention),

and the Optional Protocol to the Vienna Convention on

Consular Relations Concerning the Compulsory Settlement of

Disputes, April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487

3

(Optional Protocol). Neither of these international treaties

establishes a constitutional right, and a violation of their

provisions does not constitute a “denial of a constitutional

right” within the meaning of § 2253.

In Murphy v. Netherland, 116 F.3d 97 (4th Cir.),

cert. denied, 521 U.S. 1144 (1997), the Fourth Circuit held

that a Mexican national’s allegation that Virginia had

violated his rights under the Vienna Convention did not

satisfy the requirements for issuance of a certificate of

appealability under § 2253. In particular, the court rejected

the argument that the term “constitutional right” in that

statute encompassed claims derived from the Supremacy

Clause:

Although states may have an obligation under

the Supremacy Clause to comply with the

provisions of the Vienna Convention, the

Supremacy Clause does not convert violations

of treaty provisions (regardless whether those

provisions can be said to create individual

rights) into violations of constitutional rights.

Murphy v. Netherland, supra, at 99-100.

The Murphy court’s argument clearly is correct.

The Supremacy Clause expresses a fundamental principle

about the relationship of federal and state law, but does

not vest any rights or interests in people as such. This Court

and Congress both appreciate the important distinction

between constitutional rights, which exist independent of any

legislative decisions, and other rights under federal law,

which depend on the existence of duly authorized enactments.

This Court and Congress also have recognized that treaty

4

rights, to the extent they exist, stand on the same footing as

those based on a federal statute. '

For over two hundred years this Court has stated that

treaties, to the extent they create any rights over which a court

can take cognizance, have exactly the same status as

legislation enacted by Congress. United States v. Schooner

Pegey, 5 U.S. (1 Cranch) 103, 110 (1801); Foster v. Neilson,

27 USS. (2 Pet.) 253, 314 (1829); Whitney v. Robertson, 124

U.S. 190, 194 (1888); Reid v. Covert, 354 U.S. 1, 18 (1957)

(plurality opinion); Breard v. Greene, 523 U.S. 371, 376

(1998). This concept of the interchangeability of treaties and

other federal legislation for the purposes of judicial

decisionmaking extends to the construction of federal

statutes. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,

208 n.17 (1978) (same canons apply to Indian treaty and

statutory construction). Cf. Chickasaw Nation v. United

States, 534 U.S. 84, 99 (2001) (O’Connor, J., dissenting)

(same canons of construction apply to treaties and statutes;

form of enactment is irrelevant).

Especially instructive is Justice Harlan’s discussion of

the relationship of constitutional questions, the Supremacy

Clause, and treaty interpretation. In Zschernig v. Miller, 389

U.S. 429, 443-45 (1968) (concurring opinion), he argued that

the majority disregarded the prudential teaching of

Ashwander v. TVA, 297 U.S. 298, 341 (1936) (Brandeis, J.,

concurring), which calls for the avoidance of deciding

' As we argue in Part II of this brief below, an interpretation of the

Optional Protocol or other international instruments as binding the courts

of the United States to fulfill the orders of the International Court

of Justice would raise significant constitutional questions concerning

federalism, the separation of powers, and Article III. These structural

constitutional issues, however, do not entail the denial of any

constitutional right belonging to petitioner. Moreover, the constitutional

question would arise only if petitioner's treaty-based claim were accepted.

5

unnecessary constitutional questions, when it held that an

Oregon statute unconstitutionally encroached on the federal

power over foreign relations. In Harlan’s view, a treaty with

Germany provided a sufficient basis for invalidating the

statute. In a footnote, he recognized that either approach

entailed the invocation of a constitutional provision to nullify

a State statute, but he explained that using the Supremacy

Clause does not involve constitutional adjudication within the

meaning of the Ashwander doctrine:

It is true, of course, that the treaty would

displace the Oregon statute only by virtue of

the Supremacy Clause of the Constitution. Yet

I think it plain that this fact does not render

inapplicable the teachings of Ashwander.

Disposition of the case pursuant to the treaty

would involve no interpretation of the

Constitution, and this is what the Ashwander

rules seek to bring about.

389 U.S. at 445 n. 4.

This Court consistently has understood a statutory

reference to constitutional issues as not extending to statutory

or treaty questions in spite of the background role of the

Supremacy Clause. For example, in Swift & Co. v. Wickham,

582 U.S. 111 (1965), the Court interpreted 28 U.S.C. § 2281,

a statute requiring the use of a three-judge court to hear

challenges to state statutes based “upon the ground of the

unconstitutionality of such statute.” The Court had no

difficulty deciding that a claim that a State statute conflicted

with federal legislation did not fall within this jurisdictional

p:vvision, notwithstanding the necessity of the Supremacy

Clause to the plaintiffs’ claim. /d. at 120-23. The Court noted

that a consistent line of earlier decisions had taken for granted

that arguments grounded on the Supremacy Clause did not

6

impugn the constitutionality of a statute within the meaning

of § 2281. Similarly, in Chapman vy. Houston Welfare Rights

Organization, 441 U.S. 600, 612-15 (1979), the Court

interpreted 28 U.S.C. § 1343(3)’s reference to “any right,

privilege or immunity secured . . . by the Constitution” as not

extending to Supremacy Clause claims. Cf. Maine v.

Thiboutot, 448 U.S. 1 (1980) (interpreting 42 U.S.C. § 1983

as extending to cases of conflicts between federal and state

law because of statute’s use of term “and laws,” not because

Supremacy Clause claims rest on Constitution).

Acts of Congress dealing with the jurisdiction of the

federal courts consistently reflect an understanding that

claims based on the constitution, within the meaning of these

Statutes, are distinct from those based on other sources of

federal law, even when asserted against the States under the

Supremacy Clause. Of direct relevance here is 28 U.S.C.

§ 2254(a), which authorizes federal courts to hear challenges

to a State criminal conviction on the ground that

the applicant’s custody is “in violation of the Constitution

or laws or treaties of the United States.” See also, e.g., 28

U.S. § 1254(2) (appellate jurisdiction of Supreme Court);

§ 1257(a) (certiorari jurisdiction of Supreme Court); § 1258

(Supreme Court jurisdiction as to judgments of Puerto Rican

courts); § 1331 (federal question jurisdiction of federal

courts). In each of these instances, the reference to the

laws and treaties of the United States would be superfluous

if Congress believed that a reference to constitutional

claims incorporated treaty violations. Swift & Co. v.

Wickham, supra, at 126; Chapman ». Houston Welfare Rights

Organization, supra, at 614-15. The contrast between

the language of §2254(a) and the standards for appeal

under § 2253(c)(2), in light of this longstanding and well

established jurisprudence, leads to an irresistible inference

that Congress did not authorize the federal courts to entertain

claims based on violation of a treaty when hearing appeals

from denials of habeas petitions.

7

The argument that § 2253 does not apply in this case

because of conflicting and superior authority is not plausible.

To the extent one can perceive any inconsistency between the

Vienna Convention and the requirements of § 2253, the latter

enacted statute, adopted in 1996, clearly would prevail over

the Convention, which went into effect as to the United States

in 1969. Breard v. Greene, supra, at 376. The decision of the

International Court of Justice in Avena and Other Mexican

Nationals (Mexico v. United States), 2004 1.C.J. 1, is not an

independent subsequent enactment, but rather one body’s

interpretation of the meaning of the earlier Convention. Thus

neither the Optional Protocol nor the Avena decision can

override the clear and later-in-time limitation on appellate

court jurisdiction found in § 2253.

Finally, while U.S. courts historically have sought to

interpret congressional enactments so as not to violate the

nation’s international obligations, see Murray v. Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), that doctrine

cannot apply here. First, this Court consistently has said that

it will not apply the Charming Betsy doctrine to frustrate the

clearly expressed intent of Congress. United States v. Dion,

476 U.S. 734 (1986); Whitney v. Robertson, 124 U.S. 190

(1888); Cherokee Tobacco Case, 78 U.S. 616 (1871). In light

of the language of § 2253(c)(2), the intent of Congress to

preclude nonconstitutional claims in federal habeas appeals is

unmistakable. Second, even if one were to conclude that the

Avena interpretation of the Vienna Convention constitutes an

accurate statement of the international law obligations of the

United States, nothing in the Avena decision compels federal

judicial review of petitioner’s claim. Cf. Torres v. Oklahoma,

No. PCD-04-442 (Okla. Crim. App. 2004). Thus, no conflict

exists between the statute and international law.

8

II. The Optional Protocol to the Vienna Convention

on Consular Relations, the United Nations Charter

and the Statute of the International Court of

Justice do not obligate the courts of the United

States to implement the Avena decision of the

International Court of Justice, and any

interpretation of these treaties to the contrary

would raise substantial constitutional concerns.

By not distinguishing the legal interests at stake in

this case, petitioner attempts to bootstrap a remarkable,

unprecedented and disturbing new rule of law onto several

well established and uncontroversial principles. The issue

here is not whether petitioner enjoys rights established by the

Vienna Convention that he may assert in a court in the United

States. Nor does it involve the willingness of this Court to

regard decisions of the International Court of Justice (ICJ) as

evidence of the content of international law in cases that

depend on international law for their resolution. See, ¢.g.,

United States v. Maine, 475 U.S. 89 (1986) (looking to 1951

ICJ decision as evidence of rule of decision to be applied in

dispute over seabed ownership); United States v. Louisiana,

470 U.S. 93 (1985) (same).” Rather, petitioner maintains that,

as a result of an order of the ICJ, the courts of the United

States have lost the authority to apply neutral procedural rules

in a criminal proceeding to ensure that a competently

represented criminal accused will assert claims based on

treaties in a timely manner. In particular, petitioner maintains

that exactly the procedural rules that this Court regards

as consistent with Texas’s obligation to safeguard rights

> On occasion this Court also has indicated a willingness to disregard

or narrow the scope of arguments based on ICJ judgments when

ascertaining the content of international law. See, e.g., Sosa v. Alvarez-

Machain, 542 U.S. __, 124 S. Ct. 2739, 2768 (2004) (ICJ decision in

Iranian embassy case did not establish a rule of law cognizable under 28

U.S.C. § 1350 prohibiting arbitrary detentions).

9

guaranteed by the Constitution of the United States are

insufficient to protect his interests under the Vienna

Convention. To reach this result, petitioner imputes to several

instruments of international law — the United Nations Charter,

June 26, 1945, 59 Stat. 1031(UN Charter), the Statute of the

International Court of Justice, June 26, 1945, 59 Stat. 1055

(Statute of the ICJ), and the Optional Protocol — a meaning

that is unprecedented in U.S. practice and which, if accepted,

would raise substantial constitutional issues.

We note some of the practical implications of

accepting petitioner’s argument:

e First, the Avena decision of the ICJ seems to require

that an accused receive a post-conviction hearing to

consider claims based on the Vienna Convention,

even if a well counseled accused were deliberately to

bypass an opportunity to raise the claim during the

course of trial. Avena, supra, at 45-46, 51-52. Such an

outcome would endow criminal defendants eligible to

invoke the Vienna Convention with a strategic

weapon, unavailable to all others accused of a crime,

that this Court long has recognized as inconsistent

with general standards of equity and administrability.

E.g., Fay v. Noia, 372 U.S. 391, 433, 438 (1963).

e Second, the Avena decision applies to all persons with

a Vienna Convention claim, not just to thdse

sentenced to death, and thus opens the way for

perhaps many thousands of demands for post-

conviction review,

e Third, a holding that the decision of the United States

to submit to international adjudication, without more,

creates rights that individuals can assert in domestic

courts likely would inhibit the United States from

10

submitting to international adjudication in the future,

and may induce the United States to denounce the

Optional Protocol and other existing commitments to

international adjudication.

None of these unwanted outcomes is inevitable,

because under U.S. law as traditionally understood none of

the international treaties at issue in this case provides a basis

for application of the Avena order by our domestic courts.

U.S. law on the role of international obligations in the

domestic legal order is clear, at least at the structural level.

On the one hand, the United States intends that some of its

treaties be self-executing, in the sense that they will supply a

rule of decision that courts must apply in a lawsuit. On the

other hand, this Court often has recognized that the United

States may intend for a treaty to create obligations only on

the plane of international law and in the anticipation of

later implementation by the political branches. To ascertain

whether a treaty is self-executing or instead requires further

implementing enactments, a court must consider the treaty’s

text, the background assumptions of the parties as illustrated

by past practice, the general context, and other means

generally used for determining the intention of a legal

instrument’s authors. Compare Foster v. Neilson, supra, and

United States v. de la Muza“ Arredondo, 3\ U.S. (6 Pet.) 691

(1832), with Murray v. Schooner Peggy, supra, and United

States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). See also

Argentine Republic v. Amerada Hess Shipping Corp., 488

U.S. 428, 442-43 (1989); Head Money Cases, 112 U.S. 580,

598-99 (1884).

When one applies these general principles to the

treaties on which petitioner relies, the conclusion is

irresistible that the United States in each instance intended

not to create self-executing obligations with direct effect in

the U.S. domestic legal order. We discuss each in turn,

First, one must recognize that the Vienna Convention

and the Optional Protocol are distinct international

instruments with independent legal significance. We assume

for purposes of this dispute that the United States intended for

the Convention to be self-executing and to have direct effect

in U.S. law. There is no evidence, however, that the United

States or any other state party regards the Optional Protocol -

as also self-executing or having direct effect. It would have

been remarkable if any party had so believed this, given

the normal understanding of the relationship between the

decisions of international bodies and domestic law.

Article I of the Optional Protocol provides:

Disputes arising out of the interpretation

or application of the Convention shall lie

within the compulsory jurisdiction of the

International Court of Justice and may

accordingly be brought before the Court by

an application made by any party to the

dispute being a Party to the present Protocol.

(emphasis added)

Petitioner argues in effect that the term “compulsory

jurisdiction” establishes not only the capacity of the ICJ to

render an authoritative determination of the questions in

dispute, but also the authority to enforce its decisions through

the automatic enlistment of other judiciaries to carry out its

orders. Yet Article I contains limitations that are clearly

inconsistent with such enforcement powers. By its terms,

Article I permits only a Party to appear before the ICJ. The

Optional Protocol thus reflects the general structure of ICJ

dispute resolution, which extends only to controversies

between and among sovereign states. Individuals have no

12

—

standing to appear on their own behalf before the ICJ, and can

derive no rights or interests directly from ICJ decisions. The

same, for that matter, is true of Texas, which is a subordinate

jurisdiction of the United States and not capable of being a

party to an ICJ proceeding. Neither can the ICJ hold anyone

other than a sovereign state responsible for violation of any

rights determined through its proceedings.”

Significantly, no court of the United States ever has

understood as self-executing a treaty pursuant to which the

United States has acceded to the compulsory jurisdiction of

the International Court of Justice. This Court never has

addressed the issue. The leading lower court decision is

Committee of United States Citizens Living in Nicaragua vy.

Reagan, 859 F.2d 929 (D.C. Cir. 1988). The plaintiffs there

argued that the United States’ ongoing disregard of an order

of the ICJ, arising out of a matter within the ICJ’s compulsory

jurisdiction, had caused them direct injuries for which a

federal court could grant relief. The ICJ had based its

jurisdiction on Article 36(2) of the Statute of the International

Court of Justice, pursuant to which the United States has

accepted the compulsory jurisdiction of the ICJ with respect

tO most international law disputes concerning other states."

3

To the extent the legislative history of the Optional Protocol is

relevant, one should note that a representative of the State Department

explained in testimony before the Senate, regarding the legal effect of the

Optional! Protocol, “[{i]f problems should arise regarding the interpretation

or application of the convention, such problems would probably be

resolved through diplomatic channels.” Vienna Convention on Consular

Relations, Sen. Exec. Rpt. 91-9, 19 (1969) (Statement of J. Edward

Lyerly, Deputy Legal Adviser for Administration). Additionally, “parties

to the optional protocol may agree to resort to . . . an arbitral tribunal” or

conciliation. /d (emphasis added). Nothing in this testimony suggests that

the United States anticipated that accession to the Optional Protocol

would open up literally thousands of future criminal convictions to federal

habeas review.

* Midway through the proceedings in the Nicaragua case, the United

States withdrew its consent to ICJ jurisdiction. The ICJ ruled that, as to

~~ he

4

13

Article 36(2) entailed an even greater and more

comprehensive derogation of sovereignty in favor of the ICJ

than does the Optional Protocol, yet the District of Columbia

Circuit court had no difficulty in finding that the ICJ order

had no effect on the domestic law of the United States.

A review of the other international treaties on which

petitioner relies buttresses the conclusion that he cannot

invoke the order of the ICJ in a U.S. court. Article 94(1)

of the UN Charter, a treaty to which the United States is a

party, imposes on states an obligation “to comply with the

decision of the International Court of Justice in any case to

which it is a party.” Article 94(2), however, specifies that

enforcement of that obligation rests with the UN Security

Council. No nation ever has inferred from Article 94(1) an

obligation on the part of a state’s judiciary independently to

compel compliance, and the Committee of United States

Citizens Living in Nicaragua court squarely rejected that

interpretation. It ruled that Article 94 “simply does not confer

rights on private individuals.” Committee of United States

Citizens Living in Nicaragua v. Reagan, supra, at 937.

The Statute of the International Court of Justice, also a

Treaty to which the United States is a party, reinforces this

conclusion. Article 59 of the Statute states expressly that:

“The decision of the Court has no binding force except

between the parties and in respect of that particular case.”

The court in Committee of United States Citizens Living in

Nicaragua, after quoting this language, observed:

Taken together, these Charter clauses make

clear that the purpose of establishing the

that dispute, this withdrawal was ineffective. Case Concerning Military

and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America), 1986 1.C.J. 14, 23-25. It proceeded to reach the

merits of the case and issued an order requiring the United States to end

its intervention in Nicaraguan affairs.

14

ICJ was to resolve disputes between national

governments. We find in these clauses no

intent to vest citizens who reside in a U.N.

member nation with authority to enforce an

ICJ decision against their own government.

/d. at 938 (citations omitted).

It is immaterial that here petitioner seeks to assert

rights under the Vienna Convention against a state of which

he is not a subject, rather than rights under general and

customary international law against his own government, or

that the ICJ order in Avena referred to petitioner, while the

order in the Nicaragua dispute did not expressly incorporate

the plaintiffs. Neither of these aspects of the case affects the

holding of the District of Columbia Circuit court: Pursuant to

UN Charter and the ICJ’s Statute, the ICJ can bind only

parties to a dispute. The Optional Protocol does not alter, but

rather confirms, this result. Under that treaty, Texas and

petitioner were not, and could not be, parties to an ICJ

proceeding.

The fundamental character of ICJ dispute resolution

as an exclusively interstate proceeding does not mean that

individuals may derive nothing of significance from the

outcome of an ICJ decision, or that compliance with a state’s

obligations, as determined by the ICJ, has nothing to do with

how that state treats particular individuals. Rather, Article I of

the Optional Protocol, like Article 94 of the UN Charter and

Article 59 of the Statute of the International Court of Justice,

reflects the traditional and widely recognized distinction

between the rights and obligations of states in relation to each

other, the traditional subject of international law, and the

legal mechanisms through which a state acts in response to its

15

international obligations, which is ultimately a question of

domestic law. The ICJ has jurisdiction to determine that

the United States is responsible under international law for

the treatment of petitioner. It is up to U.S. law, however,

to determine which level and branch of government has

the authority to take steps to bring the United States into

compliance with its obligations to Mexico. And nothing in

U.S. law assigns that authority to the judiciary.

The limited scope of ICJ orders in the domestic legal

order of the United States is far from atypical. We are

unaware of *1y international instrument establishing a

tribunal’s compulsory jurisdiction that ever has sufficed in

and of itself to make that tribunal’s orders binding on U.S.

courts. Rather, some additional act of the political branches,

typically a separate statutory enactment, always has been a

prerequisite to giving an international tribunal the authority to

determine rights and duties in a manner that can bind the

courts of the United States.

Consider the case of investment disputes covered by

Chapter 11 of the North American Free Trade Agreement,

Dec. 17, 1992, H.R. Doc. 103-159 (1993), 32 LL.M. 605

(1992) (NAFTA). That agreement expressly incorporates the

Convention on the Settlement of Investment Disputes

Between States and Nationals of Other States, Mar. 18, 1965,

17 U.S.T. 1270, T.LA.S. No. 6090, 575 U.N.T.S. 159 (ICSID

Convention), a treaty to which the United States is a party.

See NAFTA Articles 1120, 1136, 1139. With respect to the

ICSID Convention, Congress enacted 22 U.S.C. §§ 1650,

1650a to enable U.S. courts to enforce arbitral awards against

states, including the United States. It is these statutory

provisions that enable a U.S. court to order enforcement of an

arbitral award based on NAFTA’s investor protection

obligations, and not any provision in NAFTA or the ICSID

Convention itself. Also noteworthy is 19 U.S.C. § 1516a,

16

which recognizes the authority of the international tribunals

stipulated by NAFTA to hear appeals from certain customs

determinations by U.S. administrative authorities. Each of

these instances illustrates the well entrenched pattern of U.S.

law: Additional legislation is a prerequisite to judicial

enforcement of the orders of an international tribunal, even

after the United States has consented to that tribunal’s

jurisdiction.

This pattern is, if anything, even clearer with respect

to dispute resolution under the auspices the World Trade

Organization (WTO). In approving the Uruguay Round

Trade Agreements, April 15, 1994, 1868 U.N.T.S. 3, H.R.

Doc. 103-316 (1994), Congress provided for the exclusive

authority of the Executive Branch to enforce WTO rules,

including the decisions of that organization’s dispute

resolution body. This legislation used identical language

to that approving NAFTA. In both instances, Congress

explicitly forbade the judiciary from invalidating any federal

or State law on the basis of the international agreement in

question, except in a lawsuit brought by the United States.

North American Free Trade Agreement Implementation Act

of 1993, § 102(b)(2) (codified at 19 U.S.C. § 3312(b)(2));

Uruguay Round Agreements Act of 1994, § 102(b)(2)

(codified at 19 U.S.C. § 3512(b)(2)).

Nor is dispute resolution under these trade agreements

sui generis.- The United State consistently has adopted

separate legislative authorization for any domestic judicial

enforcement power resulting from acceptance of international

adjudication. For example, on numerous occasions throughout

our history, the United States entered into international

agreements to settle disputes over iujuries suffered by

individuals. Often the agreement authorized a tribunal of

some sort to determine liability and damages, after which

one state would make a payment to the other. Since

OR EIRENE rvs

—

17

1863, federal statutory law has made _ the practice

of separate legislative authority for domestic judicial

enforcement explicit by forbidding the U.S. courts from

issuing money judgments against the United States based

solely on an international tribunal’s decision:

Except as otherwise provided by Act of

Congress, the United States Court of Federal

Claims shall not have jurisdiction of any claim

against the United States growing out of or

dependent upon any treaty entered into with

foreign nations.

28 U.S.C. § 1502.

This Court consistently has adhered to § 1502 while

reaffirming the general principle that, as to the federal

judiciary, the decisions of international tribunals affect only

sovereign rights and not the legally enforceable interests of

individuals. See, e.g., La Abra Silver Mining Co. v. United

States, 175 U.S. 423 (1899) (claim derived from Convention

Between Mexico aid the United States of 1868 subject

to judicial cousideration only pursuant to 1892 statute);

United States v. Blaine, 139 U. S. 306, 323 (1891) (same

Convention: “The government assumed the responsibility of

presenting his claim, and made it its own in seeking redress in

respect to it.”); United States v. Weld, 127 U.S. 51 (1888)

(1871 Treaty of Washington); Alling v. United States, 114

U.S. 562 (1885) (1868 Mexico-United States Convention);

Great Western Insurance Co. v. United States, 112 U.S.

193 (1884) (1871 Treaty of Washington); Frelinghuysen v.

Key, 110 U. S. 63, 74 (1884) (1868 Mexico-United States

Convention: “No nation treats with a citizen of another nation

except through his government.”).°

* The Brief Amicus Curiae of the Government of the United

Mexican States in Support of Petitioner, at 4-11, refers to NAFTA and the

18

Contemporary cases confirm this understanding of

the relationship between international claims settlement

and domestic law. In particular, Dames & Moore v. Regan,

453 U.S. 654 (1981), recognized that the legal basis for

establishing the Iranian claims settlement process, which

entailed extinguishing the right to bring lawsuits in the United

States and instead relegating claimants to an international

tribunal, comprised Treasury Regulations issued pursuant to

Statutory authority and the President’s Article II powers to

conduct foreign relations, and not the agreement between the

two states itself. Cf. Dames & Moore v. Regan at 689-90

(indicating that any subsequent takings claims for losses

caused by extinction of lawsuits would not be derived

from the international agreement). Subsequent cases have

confirmed that the Treasury Regulations, and not the terms of

the international agreement, determine the legal basis of

claims related to the Iranian dispute. /slamic Republic of Iran

v. Boeing Co., 771 F.2d 1279 (9th Cir. 1985); Electronic

Datas Systems Corp. Iran v. Social Security Org., 651 F.2d

1007 (Sth Cir. 1981).°

Convention that was the subject of the Court’s decisions in the above

cases as examples of binding dispute resolution. It fails to note, however,

that none of the cited instances involved an international agreement that of —

its own force produced direct effects in the domestic legal order of the

United States.

" Similarly, U.S. judicial enforcement of international arbitral awards

produced in accordance with the United Nations Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958,

21 U.S.T. 2517, T.LA.S. No. 6997, a treaty to which the United States is a

party, rests on separate legislation, specifically 9 U.S.C. §§ 201-07. This

legisiation limits the scope of the U.S. obligations to arbitrations of a

commercial nature and provides expressly that only parties to an

arbitration to which the Convention applies can invoke this enforcement

power. /d. §§ 202, 207.

19

Were this Court, by interpreting the Optional Protocol as self-

executing, to depart from two centuries of consistent practice

and widely held assumptions about the relationship of

domestic law to international tribunals, it then would

face substantial constitutional questions. In the context of

this case, involving a state’s administration of its criminal

justice process, the interposition of an international tribunal’s

authority would raise novel issues about the limits of

our federalism, the requirements of Article III, and the

constitutional separation of powers. This Court consistently

has recognized and safeguarded the primacy of the States’

role in the administration of criminal justice, e.g., United

States v. Morrison, 529 U.S. 598, 618 (2000); United

States v. Lopez, 514 U.S. 549, 561 (1995). The Court also

has understood Article III] as_ protecting the judicial

department from interference by the other departments. Plaut

v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). It would be

remarkable, to say the least, to hold simultaneously that a

particular legal instrument constituted federal law subject to

adjudication, but that this Court lacked the ultimate authority

to determine what it means. Cf. Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803) (“It is emphatically the province

and duty of the judicial department to say what the law is.”).

Transgression of these constitutional principles would be

problematic, even if brought about by a treaty rather than a

statute adopted by both Houses of Congress. Reid v. Covert,

354 U.S. 1, 16 (1957) (plurality opinion) (“The obvious and

decisive answer to this, of course, is that no agreement with a

foreign nation can confer power on the Congress, or on any

other branch of Government, which is free from the restraints

of the Constitution.”).

Due to the unprecedented nature of petitioner’s

argument, no court has had to confront these constitutional

questions. The scholarly literature, although necessarily

speculative, suggests that the issues are grave and significant.

20

See, e.g., Curtis A. Bradley, /nternational Delegations, the

Structural Constitution, and Non-Self-Execution, 55 STAN. L.

REV. 1557, 1567-80 (2003) (discussing separation of powers

and Article III problems raised by self-executing ICJ

judgments); Jim C. Chen, Appointments with Disaster: The

Unconstitutionality of Binational Arbitral Review under the

United States-Canada Free Trade Agreement, 49 WASH. &

Lee L. Rev. 1455 (1992); Julian G. Ku, The State of

New York Does Exist: How the States Control Compliance

with International Law, 82 N.C. L. REV. 457, 510-521 (2004)

(discussing federalism problems of self-executing ICJ

judgments); A. Mark Weisburd, /nternational Ceuris and

American Courts, 21 MICH. J. INT’L L. 877, 891-900 (2000)

(discussing Article III problems with self-executing ICJ

judgments). The general policy of avoidance of difficult and

significant constitutional questions should provide this Court

with a further reason for not giving the Optional Protocol a

gloss that neither the plain language of the treaties nor the

longstanding understanding of their meaning supports.

III. Neither comity nor the need for uniformity in

treaty interpretation justifies a federal judicial

order requiring Texas to provide a hearing on

petitioner’s Vienna Convention claim. No other

country has understood the Vienna Convention as

obligating its courts to implement the ICJ’s

interpretation of the Vienna Conveution. It is not

generally the practice of other countries to

interpret their treaty commitments as delegating to

international bodies the authority to render

judgments in particular disputes that will have

direct effect in domestic taw, especially as to

persons who do not have standing to participate in

such bodies’ proceedings.

Petitioner argues that even if the orders of the ICJ

do not have direct effect in U.S. law so that a U.S. court

21

must enforce them, the judiciary nonetheless should offer

enforcement in a spirit of “comity” with the ICJ and support

for uniform treaty interpretation. Brief for Petitioner at 45-50.

These arguments are misconceived at several levels.

First, the doctrine of comity, which has its origins in

the Treaty of Westphalia and the concepts of sovereign

power that the settlement of the Thirty Years War established,

applies to sovereigns, not to international bodies that

themselves are the product of international agreements.

Hilton v. Guyot, 159 U.S. 113, 164 (1895), clearly states that

comity constitutes “the recognition which one nation allows

within its territory to the legislative, executive, or judicial acts

of another nation.” (emphasis added). This distinction is not a

mere formality: International law rests on the choices and

behavior of states. An international organization is the

creature of international law, and has only so much authority

as the instrument that establishes it specifies. Extending

the authority of an international body through common law

doctrines such as comity circumvents, rather than reinforces,

the choices made in the body’s foundational instrument.

Second, even if the comity doctrine were applicable

here, the policy judgments on which it rests must give way in

the face of well established and widely accepted domestic

policy. This Court has reaffirmed the necessity of neutral

procedural rules to ensure the timely consideration of all legal

rights of a criminal accused. It has observed on many

occasions that its upholding of State procedural-default rules

reflects a respect for “finality, comity, and the orderly

administration of justice.” Dretke v. Haley, 541 U.S. 386, __,

124 S. Ct. 1847, 1849 (2004). See Coleman v. Thompson, 501

U.S. 722, 726 (1991); McCleskey v. Zant, 499 U.S. 467, 493

(1991). There has been no claim here that the rules applied by

Texas to determine whether petitioner forfeited his claim

22

under the Vienna Convention represent any kind of hostility

to, or subversion of, any federally protected interest, whether

derived from the Constitution or other federal law. Allowing

the desire to show proper respect to the ICJ to outweigh the

authority of Texas to develop and apply neutral procedural

rules would constitute an unprecedented sacrifice of crucial

local interests to an inchoate and ultimately unfounded

international concern. As we noted above, the implications

of such a decision would include requiring the federal courts

to review many thousands of criminal convictions based

on claims of Vienna Convention violations and providing

persons from Vienna Convention countries accused of a

crime with a remarkable weapon for strategic use of these

claims.

Neither does this case present any issue about uniform

treaty interpretation. A conclusion that the political branches

of the United States, and not the judiciary, have the

” The Brief of Former United States Diplomats as Amici Curiae

in Support of Petitioner, at 26 n. 55, suggests the relevance of an

analogy between the deference federal courts typically give to agency

interpretations of their authorizing statutes, see Chevron USA Inc. vy.

NRDC, Inc., 467 U.S. 837 (1984), and the interpretation that the

International Court of Justice has given to a treaty. One should note first

that the source cited in the footnote refers to deference given to the views

of other signatories, not to the views of international tribunals established

by such treaties. Second, Amici’s argument confuses the questions of, on

the one hand, interpreting the meaning of a treaty and the international

obligations it imposes, and, on the other hand, determining how, under its

domestic law, a state should implement its international law obligation.

This case involves only the latter question, and on this issue neither the

views of the ICJ or those of signatories to the Vienna Convention deserve

any deference. If any governmental actor merits Chevron deference on the

question of how the United States should implement its international

obligations, it is the President, who under Article II has responsibility for

conducting the foreign relations of the United States. Curtis A. Bradley,

Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649 (2000).

23

responsibility of determining how the United States will meet

its obligations under the Vienna Convention in no way

conflicts with the ICJ’s interpretation of that Convention. To

the contrary, the Avena decision determined only the content

of the obligations imposed by the Convention, and not the

process by which the United States can choose to bring itself

into compliance with those obligations. The affirmance by

this Court of the decision of the court below will not interfere

in any way with the power of the President and Congress to

pursue measures to satisfy Mexico’s interests, as determined

by the Avena decision.

Were this Court to regard the Avena decision as

obligating the judiciary of the United States, and not the

political branches, to implement the Vienna Convention, it

would depart from, rather than reinforce, generally accepted

international understandings about the relationship between

international obligations and domestic law. Other countries

do not normally interpret a treaty acceding to the jurisdiction

of an international tribunal as imposing on domestic courts

the responsibility for enforcing the orders of such tribunals.

The only significant exception to this principle is the case of

the judicial bodies of the European Community. But the

European Community constitutes a sui generis attempt to

create an extensive legal regime embracing the member

states, not a template for general international law. And even

the European Court of Justice, the principal judicial body of

the European Community, has rejected the possibility that it

could act as an enforcing agent for any other international

tribunal.

Considering first the International Court of Justice,

our research has turned up no instance where a nation has

clearly embraced the principle of direct enforcement of ICJ

orders. The universal practice is to regard ICJ decisions as

important evidence of the content of international law in

cases where such law is relevant to a matter otherwise before

24

a national court, but not as independent grounds for a national

court's authority. Nations understand that their legislatures

and governments, not their judiciaries, have the primary

responsibility for bringing themselves into compliance with

ICJ orders. We are unaware of any instance, and petitioner

and the various amici in support of petitioner cite to no

instance, where another state through a court decision has

mandated the direct enforcement of an ICJ order.” For a

comprehensive review of foreign judicial decisions rejecting

direct enforcement of ICJ decisions, see A. Mark Weisburd,

International Courts and American Courts, supra, at 886-87.

European practice regarding the European Court of

Human Rights also is instructive. This international tribunal

oversees compliance with the European Convention for the

Protection of Human Rights and Fundamental Freedoms,

Nov. 4, 1950, 213 U.N.T.S. 221, a treaty with 45 parties that

The Brief of International Law Experts as Amicus Curiae in Support

of Petitioner, at 25, cites the dismissal of an arrest warrant by a Belgian

court as an instance of a national court enforcing an order of the ICJ. A

review of the press account cited as the source of this claim, however,

reveals that the Belgian judges did nor base their decision on the order of

the ICJ. According to the press account:

They based their judgment on an article of the Code of

Criminal Procedure of 1878, which stipulates that cases

against foreigners relating to offences committed abroad

can only be tried if the foreign national in question is on

Belgian soil at the time the case is brought.

War Crimes Case Against Former Foreign Minister “Inadmissible,”

AFRICA NEws, Apr. 17, 2002, available in LEXIS, News Library, Allnws

File. For independent confirmation of the accuracy of the press report, and

of the inaccuracy of the Brief of International Law Experts, see Constanze

Schulte, COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF

JUSTICE 270 (2004).

25

protects basic human rights in the covered countries. Since

1998, individuals have had the right to bring a case directly to

the European Court of Human Rights. But enforcement of

its judgments, including orders for compensation, depends

entirely on national law, not the Convention itself. In the

United Kingdom, for example, it is the Human Rights Act

1998, ch. 42 (Eng.), that provides the legal basis for domestic

enforcement of the Convention. For a recent discussion of the

relationship between the Convention and British law, see A v.

Secretary of State, 2004 UKHL 4 42 (H.L. 2004). Even

European nations whose constitutions subordinate domestic

legislation to international law, such as Germany, Italy, and

the Netherlands, do not give direct effect to the judgments of

the European Court of Human Rights. For a thorough

discussion of practice in these countries, see THE EXECUTION

OF STRASBOURG AND GERMAN HUMAN RIGHTS DECISIONS IN

THE NATIONAL LEGAL ORDER (Tom Barkhuysen et al. eds.

1999).

The European Union (EU) and the European

Community (EC), the EU’s principal institutional structure,

rest on treaties which, in the case of the European

Community, create judicial bodies. The parties to these

treaties do regard the decisions of the judicial bodies of the

European Community, namely the European Court of Justice

(ECJ) and the ECJ’s Court of First Instance, as generally

having direct effect in their domestic legal order. See, e.g.,

Regina vy. Secretary of State for Transport ex parte

Factortame Ltd., {1991} 1 All E.R. 70 (H.L.). But cf. Brunner

v. The European Union Treaty, [1994] 1 C.M.L.R. 57

(German Federal Constitutional Court) (reserving right to

review decisions of ECJ for compliance with German

constitutional order). This outcome, however, results not

from an abstract sense of obligation to comply with the orders

of international tribunals, but rather because of explicit

provisions in the treaty constituting the EC. Consolidated

26

‘Version of the Treaty Establishing the European Community,

Dec. 24, 2002, O.J. (C 325) 33, Articles 228, 244, 256. These

articles expressly impose on domestic courts the obligation to

carry out the orders of the ECJ.

The direct enforcement of ECJ decisions by the

member states does not represent a new approach generally

to the domestic incorporation of the international law.

The EC involves a distinctive, if not unique, level of

extensive and intensive cooperation among the members.

Direct enforcement of the ECJ’s decisions facilitates that

cooperation, much like the decisions of this Court promote

the smooth workings of our federal union. Rather than

serving as a new model of international adjudication, the

ECJ’s operates in relation to the legal system of the member

states much as this Court does with respect to the legal

systems of the several States.

In particular, the ECJ’s approach to international

law (the foundational treaties of the EU and the EC aside)

closely resembles the traditional posture of this Court.

Like this Court, the ECJ recognizes that the decisions of

international tribunals are informative, but that treaty

provisions obligating the EC to submit disputes to a tribunal

do not mean that the decisions of those tribunals become part

of EC law. In particular, the ECJ considers the decisions of

the ICJ as evidence of the content of international law in

cases where it must look to international law for a rule of

decision, but it reserves solely for itself the authority to make

a conclusive determination. See, e.g., A.Racke GmbH & Co.

v. Hauptzollamt Mainz (Case C-162/96), 1998 E.C.R.1-3655;

Anklagemyndigheden v. Poulsen (Case C-286/90), 1992

E.C.R. 1-6019. One member of the ICJ has captured exactly

the relationship between the two tribunals:

The European Court, as we have seen, regards

the provisions of customary international law

Tree re ee SOT

~ ~~ ne

Ne tt ts

27

as part of the legal order of the European

Communities, and the International Court of

Justice's findings as a useful short-route to

identifying what customary international law

on a given topic may be.

Rosalyn Higgins, The ICJ, the ECJ, and the Integrity of

International Law, 52 INT’L & Comp. L.Q. 1, 10 (2003).

That the decisions of other international tribunals,

when interpreting treaty obligations that bind the EC, cannot

directly become part of EC law is illustrated by several

decisions. In Chiquita Brands International v. Commission

(Case T-19/01), 2005 E.C.R. Il-__, available at

http://curia.eu.int (last visited February 21, 2005) (Court of

First Instance), the court ruled that a U.S. firm injured by the

EC’s barriers to the importation of bananas, a legal regime

that the WTO dispute settlement body deemed in violation of

the Uruguay Round Agreements, had no rights under EC law.

In another case, the ECJ ruled that the Treaty Establishing the

European Community barred the EC from becoming a party

to the European Convention on Human Rights, because such

a step would transform both the Convention itself and the

rulings of the European Court of Human Rights into EC law.

Accession by the Communities to the Convention for the

Protection of Human Rights and Fundamental Freedoms

(Opinion 2/94), 1996 E.C.R. I-1759. The clear implication of

this somewhat terse opinion is that the Treaty as presently

constituted would not permit another international tribunal,

namely the European Court of Human Rights, to assume eny

portion of the ECJ’s function of having the final say about all

aspects of EC law.

28

CONCLUSION

The court below lacked jurisdiction to decide the

questions presented by petitioner. Moreover, no treaty to

which the United States is a party itself requires the courts of

the United States to enforce the orders of the International

Court of Justice, and any treaty that did so require would

present serious constitutional questions. The course urged on

this Court by petitioner, far from bringing U.S. practice

into conformity with that of other nations, would give

international law and the decisions of international tribunals a

role in the U.S. legal system that other nations do noi permit

in their own legal systems. Accordingly, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

Paul B. Stephan

Counsel of Record

580 Massie Rd.

Charlottesville, Va. 22903

(434) 924-7098

Counsel for Amici

APPENDIX

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op ae ae ohn C. Harrison is the D. Lurton Massie, Jr.

4

RRA A Sa | 3 Professor of Law and the Horace W. Goldsmith Research

: Bah Tig a's Professor at the University of Virginia School of Law. He has

saci been on the faculty uf the University of Virginia since 1993

bai Aen and served in the Justice Department from 1983 to 1993,

2 feet SSO Paes eine from 1990 to 1993 as Deputy Assistant Attorney General,

tit ode 3 Office of Legal Counsel.

tee ner es Sie noha | Julian G. Ku is Associate Professor of Law, Hofstra

ae ernie: aN Akt ne University School of Law. He has been on the faculty of

SE | Meare ote | Hofstra since 2002.

John O. McGinnis is Professor of Law, Northwestern

University School of Law. He has been on the faculty of

Northwestern University since 2002, from 1991 to 2002 on

the faculty of Benjamin N. Cardozo School of Law, Yeshiva

University, and from 1985 to 1991, was an attorney-advisor,

then Deputy Assistant Attorney General, Office of Legal

Counsel, U.S. Department of Justice.

EY eet of ig = ees i A . a eee Michael D. Ramsey is Professor of Law, University

en ee. | aoe 3 of San Diego School of Law. He has been on the faculty of

the University of San Diego since 1995.

fee Benes | jas Paul B. Stephan is the Lewis F. Powell, Jr. Professor

e a of Law and the Hunton & Williams Research Professor at the

University of Virginia School of Law. He has been on the

; faculty of the University of Virginia since 1979.

A. Mark Weisburd is Professor of Law, University

of North Carolina School of Law. He has been on the faculty

of the University of North Carolina School of Law since

1981.

——_— = |

2a

Ann Woolhandler is the William Minor Lile

Professor of Law and the Class of 1948 Professor in

Scholarly Research in Law at the Universuy of Virginia

School of Law. She has been on the faculty of the University

of Virginia since 2002 and from 1990 to 2002 was on the

faculty of Tulane University School of Law.

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