Amicus Curiae Brief — Medellin v. Texas
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No. 00-984
IN Thi
Supreme Court of the United States
JOSE FRNESTO MEDELLIN,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
Ow PETITION FOR 4 Writ OF CERTIORARI TO THE
CouRT OF CRIMINAL APPEALS OF TEXAS
BRIEF OF INTERNATIONAL COURT OF
JUSTICE EXPERTS AS AMICI CURIAE
IN SUPPORT OF PETITIONER
Lort Fister DawRoscnu
Of Counsel: Counsel of Record
CHARLES OWEN VERRILL, JR. 435 West 116" Street
Joun B. ReyNo tps I] New York. NY 10027
Pyar A. Dame (212) 854-3740
Witky Rein LLP
1776 K Street, N.W.
Washington, D.C. 20006
(2002) 719-7000
Attorneys tor Amici Curiae
TABLE OF CONTENTS
TABLE OF CITED AUTHORITIES ............
INTEREST OF THE AMICI CURIAE ...........
SUMMARY OF ARGUMENT .................
EE et Ee ee ee eee ree
Il.
The Court Should Grant The Writ To Settle
The Effects Within U.S. Law Of A Binding
Judgment Of The International Court Of
Justice In Respect Of Individuals Covered By
Pe IL Sccecdsanccgasedecdinntes
A. The Avena Judgment is Binding in
ST OS evs ecicévesexvess
B. The Avena Judgment is Binding Under the
SUPOMENSY CEMMEB. 6c ccc ccescscccs
This Court Should Grant The Writ To Uphold
U.S. Commitments Under Dispute Settlement
WG. cdc ekreicbeankekveekateneeaads
This Court Should Grant The Writ To Fulfill
The U.S. Commitment To Settle A Dispute
With Mexico Concerning Treatment Of
Mexican Nationals In The United States. ..
Page
10
14
19
la
7
TABLE OF CITED AUTHORITIES
CASES
International Court of Justice Cases
Aerial Incident of 3 July 1988 (Iran v. U.S.),
EE 5 6besuckedecvateduneiakesess
Aerial Incidents,
1556 BLS SP CUS. v. Tas.) «cc ccccceseses
1956 BES BGS CUS. V. URGE) 2c ccc sevccces
og ng ee eee
Foe Gat Calas Gs GD oe se ccecesecveces
S550 OLS 158 CUS. V. UBER) occ cc cccsccenss
1959 GS 276 (U.S. ¥V. USSR) 2... ccc cc ces
1960 ICY 046 (US. v. Bulg.) .........-0000.
Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Bosnia-Herzegovina v. Serbia-Montenegro),
gL Peer TT rer Tye rere rere Te
Avena and Other Mexican Nationals
(Mex. v. U.S.), 2004 ICJ No. 128 ...........
Elettronica Sicula S.p.A. (ELSI)
a es ES SU I OP nbd cecesnnsecesns
Gulf of Maine (Delimitation of the Maritime
Boundary in the Gulf of Maine Area)
CF), TIS TS BOD oes cce ws sevccnes
Interhandel (Switz. v. U.S.),
DEE Sade Scanned aneenessacecdbnane
Page
13
ii
Cited Authorities
Page
LaGrand (F.R.G. v. U.S.),
ies eta vetwnendceusances beens 13
Legality of Use of Force (Yugo. v. U.S.),
| rr er re 13
Lockerbie (Questions of Interpretation and
Application of the 1971 Montreal Convention)
(Libya v. U.S.), 2003 ICJ 152 ............... 14
Military and Paramilitary Activities
in and against Nicaragua
RO ge Se ee 9-10, 12
Monetary Gold Removed from Rome in 1943
(Italy v. Fr., U.K., U.S.), 1954 I1CJ 19 ......... 13
Nuclear Tests (Austl. & N.Z. v. Fr.),
SP ET encacdeanencsenssadnedoeee 12
Oil Platforms (Iran v. U.S.),
Ey 56a Seu ent t0s4eu bee aedeneen’s 14
Rights of Nationals of the United States of America
in Morocco (Fr. v. U.S.),
DT <scasthacucvanieeseness cede’ 12
Treatment in Hungary of Aircraft and Crew of the
United States of America
(Us Sm RS, & e 13
ay
Cited Authorities
Page
United States Diplomatic and Consular Staff
in Tehran (U.S. vy. Iran),
4 ES} Eb rere 10, 11, 13
Vienna Convention on Consular Relations
(Pare. V0.5.) TORS FG SED wc ce sccscceses 14
Federal Cases
American Insurance Association v. Garamendi,
Fae ie SO GMD Kt ccceccecees padeienees 17
Bremen vy. Zapata Off-Shore Co.,
er ly PEN. bee Neeenauventbencecscdecs 5, 16
Committee of United States Citizens Living
in Nicaragua v. Reagan,
859 F.2d 929 (D.C. Cir. 1988) ............... 9-10
Conde v. Starlight I, Inc.,
ee ee BUEN GA CUSED kvdccentecscncves 13
Crosby v. National Foreign Trade Council,
Es SED 6c Sweetie ccdbeveneseceses 17
Dames & Moore v. Regan,
ee I noo 6600s 04ec ae enawnndcs 17
La Abra Silver Mining Co. v. United States,
pegs Bs) ee er 5-6
Medellin v. Dretke.
Ec cc ov ccusecebeceeeves 6-7
Cited Authorities
Page
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
fete et. -) Peeerrrrrrr rrr rr Te ree
Olympic Airways v. Husain,
De Wa ee GND 6.52 0e ovevesséndawese or
Sanchez-Llamas v. Oregon,
548 U.S. __, 126 S. Ct. 2669 (2006) .........
United States v. Belmont,
FON UA SOO CESSE) cece cevdeeswevvecceuses
United States v. Pink,
PEF Gia BO COOGED. c oec ct eesCiccwacesvaaas
State Cases
Torres v. Oklahoma, No. PCD-04-442
(Okla. Crim. App. May 13, 2004),
120 P.3d 1184 (Okla. 2005) .................
Foreign Cases
Comeau's Sea Foods Ltd. v. Canada
(Minister of Fisheries and Oceans),
[1992] 3 F.C. 54 (Can. Fed. Ct.), rev'd,
[1995] 2 F.C. 467, aff'd, [1997] 1 S.C.R. 12 ...
Mersey Seafoods Ltd. v. Minister of Nat'l Revenue,
[1985] 2 C.T.C. 2485 (Can. Tax Ct.) ..........
5, 16
17
13
13
vi
Cited Authorities
Page
CONSTITUTIONAL PROVISIONS
ES ee 4
ER or 3,8
TREATIES
Charter of the United Nations,
RE 2, 3, 11
Optional Protocol to the Vienna Convention
on Consular Relations Concerning the
Compulsory Settlement of Disputes,
April 24, 1963, 21 U.S.T. 325,
T.LA.S. No. 6820, 596 U.N.T.S. 487 ... 2,4, 8, 10, 15, 16
Statute of the International Court of Justice,
a eeee 2, 3, 4, 5, 11, 12
Vienna Convention on Consular Relations,
April 24, 1963, 21 U.S.T. 77,
T.LA.S. No. 6820, 596 U.N.T.S. 261 ..........
eo een sees ous 2, 6, 8, 9, 10, 14, 15, 18, 19
OTHER AUTHORITIES
Brief for the United States as Amicus Curiae
Supporting Respondent, Medellin v. Dretke, 544
Deen ceeee 6-7
Brief for the United States as Amicus Curiae, Ex Parte
Medellin (Ct. Crim. App. TX, Sept. 2, 2005) ... 7
vil
Cited Authorities
Brief for the United States as Amicus Curiae
Supporting Respondents, Bustillo v. Johnson and
Sanchez-Llamas v. Oregon, 548 U.S. __, 126
i ED ov eheconeenedudssetuesees
President George W. Bush, Memorandum on
Compliance with the Decision of the International
Court of Justice in Avena, Feb. 28, 2005 .......
Goler Teal Butcher, The Consonance of U.S. Positions
with the International Court’s Advisory Opinions,
in THE INTERNATIONAL Court OF JuSTICE AT A
Crossroaps 423 (Lori F. Damrosch ed., 1987) ..
Jonathan |. Charney, Disputes Implicating the
Institutional Credibility of the Court, in THE
INTERNATIONAL CourT OF JUSTICE AT A CROSSROADS
288 (Lori F. Damrosch ed., 1987) ............
115 Cong. Rec. 30997 (Oct. 22, 1969) ..........
Dep’t of State Daily Press Briefing (Mar. 10, 2005),
at http://www.state.gov/t/pa/prs/dpb/2005/4 3225.
ED 65000 006600800800s 00058 eeeseneeeasnee
Walter H. Faulkner (U.S. v. Mex.), Opinions of the
Commissioners Under the Convention Concluded
September 6, 1923 (1927)... ccccccccccces
Terry D. Gill, International Court of Justice -
Diplomatic Protection — U.S.-Italian Treaty of
Friendship, Commerce and Navigation, 84 Am. J.
eT he PD Seah ekcdsbdusveseccenens
Page
6, 12
16
14
vill
Cited Authorities
Page
Tom Ginsburg & Richard H. McAdams, Adjudicating
in Anarchy: An Expressive Theory of International
Dispute Resolution, 45 Wm. & Mary L. Rev. 1229
EEL SSE Ee Aree eae Ce ee a ee ee 1]
ANTONIO GOmEZ RoBLEDO, MEXICO Y EL ARBITRAJE
INTERNACIONAL (1965) ..............c0ceee: 18
G Hackworrn, Dicest of INTERNATIONAL Law (1942)
pipihhn vane dekendnCseaue weeksaaasacan es 14, 15
Manley O. Hudson, The Thirty-First Year of the World
Court, 47 Am J. Int’: L. 1 (1953) ............ 12
1979 ICJ Pleadings, United States Diplomatic and
Consular Staff in Tehran (U.S. v. Iran) ........ 10
Jesse Lewis (The David J. Adams) Claim (U.S. v. Gr.
Br., 1921), 6 U.N. Rep. Int'l Arb. Awards 85 ... 16
Kennedy Says U.S. Was Wrong in Mexico Border
Disagreement, N.Y. Times, Jul. 6, 1962 ....... P 18
SHELDON B. Liss, A Century oF DISAGREEMENT:
THE CHAMIZAL Conptict, 1864-1964(1965) .... 18
Statement of J. Edward Lyerly, Deputy Legal Adviser
for Administration, U.S. Department of State,
Before the Senate Committee on Foreign Relations,
reprinted in Sen. Exec. Rep. No. 91-9, 91st Cong.,
SRE SI Ue er Re ee 8
ix
Cited Authorities
Fred L. Morrison, Treaties as a Source of Jurisdiction,
Especially in U.S. Practice, in THE INTERNATIONAL
Court orf Justice at a Crossroaps (Lori F.
I i
Sean D. Murphy, Contemporary Practice of the
United States Relat.ng to International Law:
Implementation of Avena Decision by Oklahoma
Court, 98 Am. J. Int’t L.579 (2004) ..........
Note, Judicial Decisions: Morocco—Criminal
Jurisdiction over U.S. Citizens—. . . -Iniernational
Court of Justice, 49 Am. J. Int’L L. 263 (1955) ...
Colter Paulson, Compliance With Final Judgments of
the International Court of Justice Since 1987, 98
Og SO re
Report of the United States Delegation to the Vienna
Conference on Consular Relations, reprinted in
Sen. Exec. E, 91st Cong., Ist Sess., May 8, 1969
Seeeeeeeeaeseeeeaeegcecscse eoeseeaeeceeseeeaeeeeaceeeaeeseseecese
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAw
oF THE UniteD States (1987) .................
Curistorpn C. SCHREUVER, Decisions or INTERNATIONAL.
INSTITUTIONS BeFore Domestic Courts (1981)
Francis J. Werner, Tue UNITED Srates Versus Mexico:
THE Finat SETTLEMENT OF THE Pious FuNpD (1969)
Se ee eeee eee eeee~ee ene a’eaeeces@egc@22 Oa e808 6 68 86 8 a ©
Page
15,
10
18
12
18
Cited Authorities
Page
M. WuitemMan, Dicest oF INTERNATIONAL Law (1970)
Percy Don Williams, Jr., Fifty Years of the Chamizal
Controversy — A Note on International Arbitral
Appeals, 25 Tex. L. Rev. 455 (1947) .......... 18
1961-II Y.B. Int’: L. Comm'n 88-128 ........... 15
INTEREST OF THE AMICI CURIAE
Amici are professors and scholars of law expert in the fields
of international law, international dispute settlement, and the
application of international law by courts in the United States.'
(A List of Amici is set forth in the Appendix.) Amici are
experienced in the work of international tribunals, notably the
International Court of Justice (ICJ), and include former officials
of the U.S. Department of State who have represented the United
States at the ICJ. Amici seek to present their views concerning
the obligations arising from a final judgment of the ICJ
interpreting a treaty of the United States in proceedings in which
the United States participated fully, and the respect that should
be accorded to the judgment by all courts in the United States,
in the context of a petition to allow review and reconsideration
of a conviction and death sentence.
Amici limit their submission to questions concerning the
ICJ judgment interpreting the consular treaty and the rights that
individuals may assert under that judgment and treaty in U.S.
courts. They do not take a position on the death penalty as such;
indeed, Amici occupy diverse points on the spectrum of opinion
about the death penalty, as well as on other political
controversies. Amici are united in the view that an ICJ judgment
interpreting and applying a treaty, rendered in a case to which
the United States was party and addressing the claims of certain
named foreign nationals, is binding on all courts in the United
States to which claims under the treaty may be presented in
respect of cach of the individuals subject to the judgment, that
State courts are required to apply the treaty in the manner .
specified in the judgment; that state procedural default rules
esnnot foreclose the exercise of treaty rights to a hearing as
peld by the ICJ in its judgment concerning those individuals;
1. No party other than Amici and their counsel authored this brief
in whole or in part, and no person or entity, other than Amici and their
counsel, has made a monetary coniribution to the preparation or
submission of this bref. Letters of consent to the filing of this amicus
curiae brief are on file with the Clerk of the Court.
2
and that petitioner has the right under the judgment to review
and reconsideration of his conviction and sentence. This Court
is the proper organ within our federal system to ensure that the
State courts comply with the ICJ judgment.
SUMMARY OF ARGUMENT
Petitioner is one of 49 Mexican nationals currently on death
row in state courts in the United States, who are covered by the
final judgment of the International Court of Justice (ICJ) in
Avena and Other Mexican Nationais (Mex. v. U.S.), 2004 ICJ
No. 128. All those covered by Avena are similarly situated, in
that they were not advised in a timely manner of their rights
under the Vienna Convention on Consular Relations, April 24,
1963, 21 U.S.T. 77, T.LA.S. No. 6820, 596 U.N.T.S. 261, to
contact the Mexican consular post, were convicted and sentenced
to death without benefit of timely consular services, and have
been held by the ICJ to be entitled to review and reconsideration
of their convictions and sentences as a remedy for that treaty
violation — a violation that the United States has acknowledged.
The court below erred in denying the relief that the ICJ has
found to be required to redress the treaty violations in Avena.
Avena resulted from a treaty-based judicial process to which
the United States fully consented, in which the United States
fully participated, and which binds the United States as a whole.
The United States consented to the jurisdiction of the ICJ to
decide this dispute and is obliged under Article 94 of the U.N.
Charter, Article 59 of the ICJ Statute, and the Vienna Convention
and its Optional Protocol — four treaties that were in force for
the United States at the time of Avena — to carry out the judgment.
All courts in the United States are obliged to exercise their
judicial powers within their respective jurisdictions consistently
with the Avena judgment.
The petition should be granted to resolve an unsettled
important question of federal law involving the national interest
in treaty compliance. The Texas court of last resort reached a
result that is incorrect and conflicts with the final disposition of
a comparable matter by the court of last resort in Oklahoma.
3
This Court has not yet ruled on the effects in state and federal
law of an ICJ judgment addressing treaty-based rights of specific
individuals covered by the judgment. This Court should allow
plenary review to prevent a misinterpretation of its prior rulings
from obstructing U.S. compliance with its international
obligations.
AKGUMENT
I. The Court Should Grant The Writ To Settle The Effects
Within U.S. Law Of A Binding Judgment Of
The International Court Of Justice In Respect Of
Individuals Covered By The Judgment.
The Texas Court of Criminal Appeals erred in taking this
Court’s decision in Sanchez-Llamas v. Oregon, 548 U.S. ___,
126 S. Ct. 2669 (2006), to stand fo: the proposition that “Avena
is not binding federal law” im respect of an individual covered
by Avena itself. App. to Pet. for Cert., p. 20a; see also p. 24a,
pp. 63a-64a. In declining to apply Avena’s reasoning for the
benefit of petitioners Sanchez-Llamas and Bustillo, whose cases
were not before the ICJ in Avena, this Court did not prejudice
the binding force of the Avena judgment as an international
obligation of the United States, and as a treaty-based obligation
binding state courts under the Supremacy Clause of the U.S.
Constitution, in cases to which Avena by its terms applies. The
question of Avena’s effects on proceedings pending in the United
States concerning individuals covered by Avena was not before
this Court in Sanchez-Llamas; it is now properly presented in
the instant petition.
A. The Avena Judgment is Binding in International
Law.
Under Article 94(1) of the Charter of the United Nations,
59 Stat. 1031, T.S. 993 (1945), “[e]ach Member of the United
Nations undertakes to comply with the decision of the [ICJ] in
any case to which it is a party.”” Under Article 59 of the Statute
of the ICJ, 59 Stat. 1055, T.S. 993 (1945) |ICJ Statute], which
4
is annexed to the U.N. Charter and is an integral part thereof,’
decisions of the Court have “no binding force except between
the parties and in respect of that particular case” (emphasis
added). As the ICJ has recently explained, “Article 59 of the
Statute, notwithstanding its negative wording, has at its core
the positive statement that the partics are bound by the decision
of the Court in respect of the particular case.”* Thus, as between
the United States and Mexico in respect of Avena (which
includes the Medellin matter), the decision of the ICJ is indeed
binding.
By ratifying the U.N. Charter and the annexed ICJ Statute
as a treaty with the advice and consent of the U.S. Senate under
Article Il of the Constitution in 1945, the United States accepted
the duty to comply with ICJ judgments in any cases that would
come within the ICJ’s consensual jurisdiction in the future. The
undertakings to comply with ICJ decisions and to treat them as
bindi:ig remain in force as treaty obligations of the United States.
The jurisdiction of the ICJ in the Avena case was founded
on consent and reciprocity under Articie 36(1) of the [CJ Statute,
which establishes jurisdiction over “all matters specially
provided for ... in treaties and conventions in force.” The
Optional Protocol was a treaty in force under Article 36(1) of
the ICJ Statute at the time of Avena.* Proceedings under Article
2. According ©» Article 93 of the U.N. Charter, all U.N. Members
are ipso facto parties to the [CJ Statute.
3. Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia-Herzegovina v. Serbia-Montenegro),
2007 ICJ No. 91, para. 115.
4. Optional Protocol to the Vienna Convention on Consular
Relations Concerning the Compulsory Settkement of Disputes, April
24, 1963, 21 U.S.T. 325, T.LA.S. No. 6820, 596 U.N.T.S. 487. Article I
of the Optional Protocol states: “Disputes arising out of the interpretation
or application of the [Vienna] Convention shall lie within the compulsory
jurisdiction of the International Court of Justice and may accordingly
be brought before the Court by a written application made by any party
to the dispute being a Party to the present Protocol.” tee
(Cont'd)
36(1) produce binding judgments under Article 59 of the Statute,
which are “final and without appeal” under Article 60. As the
ICJ has recalled,
it is in the interest of a party that an issue which has
already been adjudicated in favour of that party not
be argued again. ... Depriving a litigant of the
benefit of a judgment it has already obtained must
in general be seen as a breach of the principles
governing the legal settlement of disputes.
A litigant’s obligation to carry out judgments against it is implicit
in the rule of law.
Amici respectfully emphasize the fully consensual nature
of the obligations undertaken when the United States agreed by
treaty to the Vienna Convention and to the Optional Protocol’s
system for binding settlement of disputes arising thereunder.
The Optional Protocol serves as a forum selection clause, with
the effect that parties that have selected the ICJ as the forum to
decide their disputes are bound to carry out its decisions.° The
United States is free not to enter into treaties, and is free not to
accept optional dispute settlement clauses, but once having given
consent to a treaty and to a treaty-based dispute settlement
system, the United States is bound to comply with the obligations
to which it has agreed. Indeed, this Court has long recognized
that when the United States undertakes to participate in
international dispute settlement, the good faith of the United
States is implicated in carrying out the resulting award. See La
(Cont'd)
On March 7, 2005, the United States gave notice of withdrawal
from the Optional Protocol. Under international law, that notice cannot
have retroactive effect on the obligation to comply with a judgment
entered when the Optional Protocol was fully in force for both parties
to the judgment.
5. Bosnian Genocide, note 3 supra, 2007 ICJ No. 91, para. 116.
6. Cf. Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 8-9 (1972);
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614,
629 (1985).
6
Abra Silver Mining Co. v. United States, 175 U.S. 423, 463
(1899).
The Texas court misunderstood the nature of an
international judgment in treating Avena as not binding. A state
court is not free to depart from the interpretation and application
of an international treaty as authoritatively settled by an
international tribunal exercising a consent-based jurisdiction
accepted by the federal political branches, nor to place conditions
on compliance that are inconsistent with the judgment itself.
It was thus error for that court to continue to apply state rules
of procedural default in a manner incompatible with
Avena’s disposition concerning an individual named in the
judgment,’ as well as to deny the efficacy of President Bush’s
acknowledgment of the obligatory force of the judgment.*
The President of the United States accepts that the United
States has incurred “international obligations” under Avena; see
President George W. Bush, Memorandum on Compliance with
the Decision of the International Court of Justice in Avena, Feb.
28, 2005. In its filings in earlier phases of the Medellin matter
and in other cases, the United States Government has
consistently acknowledged that “the United States has an
international obligation under Article 94 [of the U.N. Charter]
to comply with the Avena decision.” See Bnef for the United
States as Amicus Curiae Supporting Respondent at 38, Medellin
7. The ICJ concluded that while the procedural default rule in
itself does not violate Article 36 of the Vienna Convention, particular
applications of the rule can violate the Convention, namely when a
breach of Article 36(1) through failure to inform the individual of his
rights precluded the exercise of his or his country’s treaty rights. In
Avena, the treatment of procedural default and related questions comes
under the general heading of “Article 36, paragraph 2,” beginning at
paragraph 107 of the judgment. See especially paras. 111-113, 133-
134, 138.
8. There is no warrant for the suggestion in the opinion below
that a post-judgment executive agreement would be needed as a predicate
for carrying out the already existing treaty-based obligation to comply
with the judgment.
J
v. Dretke, 544 U.S. 660 (2005); see also id. at 38-39 n. 12 (using
term “decision” under Article 59 to refer to “the portion of the
ICJ ruling with which the United States has an international
obligation to comply — what in United States practice would be
called the judgment”);’ Bricf for the United States as Amicus
Curiae at 18 n. 2, Ex Parte Medellin (Ct. Crim. App. TX, Sept.
2, 2005). In its Sanchez-Llamas filing, the United States
Government likewise confirmed that the United States “is
obligated under international law to comply with the judgment
of the ICJ in any case to which it is a party.” Brief for the United
States as Amicus Curiae Supporting Respondents at 29, Bustillo
v. Johnson and Sanchez-Llamas v. Oregon, 548 U.S. __, 1268.
Ct. 2669 (2006). The United States Government also invoked
the binding force of the Avena judgment in urging the Oklahoma
authorities to grant review and reconsideration of the conviction
and sentence in the matter of another individual covered by
Avena, Osbaldo Torres, and those authorities correctly treated
the judgment as binding in acting on the Department of State’s
representations. See Sean D. Murphy, Contemporary Practice
of the United States Relating to International Law:
Implementation of Avena Decision by Oklahoma Court, 98 AM.
J. INntT’L L.579, 581-84 (2004); Torres v. Oklahoma, No. PCD-
04-442 (Okla. Crm. App. May 13, 2004) (granting remand for
evidentiary hearing); see also 120 P.3d 1184 (Okla. 2005) (final
judicial determination of whether governor's commutation of
death sentence overcame any prejudice to defendant from treaty
violation).
This Court in Sanchez-Llamas made a clear distinction
between an ICJ judgment and ICJ treaty interpretations outside
the framework of such a judgment, both by drawing attention
to the terms of Article 59 of the ICJ Statute (quoting the language
on binding force “between the parties and in respect of that
particular case,” 126 S.Ct at. 2684) and by observing that the
9. In its recent judgment in the Bosnian Genocide case, 2007 ICJ
No. 91, para. 123, the [CJ confirmed that the operative part of a judgment
possesses the force of res judicata.
8
ICJ’s principal purpose is “to arbitrate particular disputes.”
In declining to give conclusive effects to such interpretations at
the behest of persons not covered by the judgment, this Court
took: note that “the United States has agreed to ‘discharge its
international obligations’ in having state courts give effect to
the decision in Avena.” 126 S. Ct. at 2685.
B. The Avena Judgment is Binding Under the
Supremacy Clause.
The Avena judgment in petitioner’s case implements a treaty
obligation of the United States which is the supreme law of the
land (U.S. Const. art. VJ). It thus is binding on all courts in the
United States and should be followed as the rule of decision in
a State habeas petition.
The Senate approved the obligations of the Vienna
Convention and ICJ compulsory jurisdiction over disputes under
it when it gave unanimous advice and consent to ratification of
the Vienna Convention and the Optional Protocol. See 115 Cong.
Rec. 30997 (Oct. 22, 1969).'° The Vienna Convention has been
understood at all times to be a self-executing treaty.'' Likewise,
there has never been the slightest doubt that the Vienna
Convention would prevail over any inconsistent state law.'?
10. See RESTATEMENT (THIRD) OF THE FORFIGN RELATIONS LAW OF THE
Unirep Srates (1987), Intro. Note to Part II and §§ 301-312, 321; Intro.
Note to Part IV, ch. 6 (before § 464); § 465.
11. The Department of State witness informed the Senate: “The
Convention is considered entirely self-executive and does not require
any implementing or complementing legislation.” Statement of J. Edward
Lyerly, Deputy Legal Adviser for Administration, U.S. Department of
State, Before the Senate Committee on Foreign Relations, reprinted in
Sen. Exec. Rep. No. 91-9, 91" Cong., I* Sess. (1969), at 5. See also
RESTATEMEN7, Intro. Note before § 464.
12. The priority of treaty law over state law as required by the
Supremacy Clause was spelled out explicitly in the State Department's
responses to the Senate’s questions:
Question. What is the effect of the convention on (a)
Federal legislation; and (b) State laws? ;
(Cont'd)
9
This Court in Sanchez-Llamas confirmed the well-
established position that “a self-executing treaty binds the States
pursuant to the Supremacy Clause” and that
where a treaty provides for a particular judicial
remedy, there is no issue of intruding on the
constitutional prerogatives of the States or the other
federal branches. Courts must apply the remedy as
a requirement of federal law.
126 S. Ct. at 2680. While the Court there held that the remedy
of suppression of evidence was not required by the Vienna
Convention, it would be entirely compatible with the approach
indicated by this Court in Sanchez-Llamas to consider the Avena
judgment directly binding on state courts. Because Avena
specified what is required by the Vienna Convention itself as a
remedy for breaches, all aspects of the present petition are
properly understood as implementation of self-executing treaty
obligations.’
(Cont'd)
Answer [after explaining a possible area of conflict
not relevant here].
To the extent that there are conflicts with Federal
legislation or State laws the Vienna Convention, after
ratification, would govern as in the case of bilateral consular
conventions.
Sen. Exec. Rep. No. 91-9, at 18. This official response about the
controlling effect of the Vienna Convention raised no concerns in the
Senate, which gave unanimous advice and consent.
13. Committee of United States Citizens Living in Nicaragua \.
Reagan, 859 F.2d 929, 937-938 (D.C. Cir. 1988), concerned a situation
quite different from the present one. The ICJ’s Nicaragua judgment
(cited in note 19 infra) entailed aspects of international law (use of
military force) that are non-self-executing in U.S. law. The plaintiffs
who sought to enforce the Nicaragua judgment were strangers to the
ICJ case, see 859 F.2d at 938, while Avena explicitly deals with
petitioner's situation and specifies the remedy for his claims under a
(Cont'd)
10
Il. This Court Should Grant The Writ To Uphold U.S.
Commitments Under Dispute Settlement Treaties.
It is critical for the United States to uphold the obligatory
character of compulsory jurisdiction under dispute settlement
clauses to which it has agreed, in order to secure the benefits of
compliance by other participants under comparable treaties. The
United States was the first state to turn to the ICJ in a Vienna
Convention dispute, when it brought an application against [ran
concerning U.S. diplomatic and consular personnel held hostage
in Tehran in 1979. See United States Diplomatic and Consular
Staff in Tehran (U.S. v. Iran), 1979 ICJ 7, 1980 ICJ 3, 5, 24-26.
The U.S. pleadings in that matter analyze the obligation of parties
to the Optional Protocol when disputes arise to abide by ICJ
decisions. See 1979 ICJ Pleadings, United States Diplomatic
and Consular Staff in Tehran, at 141-152. When the ICJ
indicated provisional measures in 1979 and entered judgment
in 1980, the United States insisted on Iranian compliance and
invoked the ICJ’s decisions in U.S. and foreign tribunals.
Approximately 70 U.S. treaties now in force contain
obligations comparable to those in the Optional Protocol for
submission of treaty-based disputes to the [CJ.'* These include
bilateral and multilateral treaties involving substantial economic,
political, and other interests. The United States is a frequent
litigant at the ICJ, both as applicant and as respondent. Indeed,
the United States has been involved in more ICJ cases than any
(Cont'd)
self-executing treaty. Finally, Congress and the President had repudiated
the Nicaragua judgment in a subsequent conflicting statute, which the
court of appeals found controlling, see 859 F.2d at 936-937. Here, no
Statute rejects Avena, and the President has formally endorsed
compliance through state courts.
14. See Fred L. Morrison, Treaties as a Source of Jurisdiction,
Especially in U.S. Practice, in Tot INTERNATIONAL Court OF JUSTICE AT A
Crossroans $8-8! (Lori F. Damrosch ed., 1987) [Crossroavs }. With
only a few exceptions, all such treaties remain in force for the United
States in 2007.
11
other state:'* in total, the United States has been party to 21
cases at the ICJ,'° of which 10 have been brought by the United
States as applicant or by special agreement and |! have been
brought against the United States.'’ Since each of the 70 treaties
with an ICJ dispute settlement clause entails obligations under
those treaties and under the U.N. Charter (art. 94) and ICJ Statute
(arts. 36(1), 59), failure to carry out Avena could prejudice the
ability of the United States to hold other states to their dispute
settlement obligations and to sustain U.S. credibility before the
ICJ in future proceedings.
The United States has a major stake in maintaining a record
of abiding by the outcome of ICJ dispute settlement, since it
continues to be active in that forum. Compliance with ICJ final
judgments has generally been high, including in the cases in
which the United States has been a party.'* States have
15. For a listing of all ICJ cases grouped by state, see the ICJ
website al Www.icj-cij.org.
16. The United States has also taken part in almost all proceedings
for advisory opinions under Article 65 of the ICJ Statute. See Goler
Teal Butcher, The Consonance of U.S. Positions with the International
Court’s Advisory Opinions, in CROSSROADS at 423; for a current listing,
see [CJ Website.
17. The cases initiated by the United States include seven involving
Soviet-bloc aerial incidents, as well as Tehran Hostages (Iran 1979-
81), Gulf of Maine (Canada 1981-84), and Elettronica Sicula S.p.A.
(ELSI) (Italy 1987-89).
18. Recent studies find compliance with two-thirds of the ICJ’s
substantive judgments and as high as 80% compliance with final judgments
over a substantial period. See Colter Paulson, Compliance With
Final Judgments of the International Court of Justice Since 1987, 98 Ao.
J. Ini’ L. 434, 456-460 (2004) (compliance rate of 60% with judgments
issued in last 15 years; likelihood that rate would go up to 80% rate for
prior periods in light of efforts to comply over time); Tom Ginsburg &
Richard H. McAdams, Adjudicating in Anarchy: An Expressive Theory of
International Dispute Resolution, 45 Wm. & Mary L. Rev. 1229, 1308-
1311 (2004) (overall compliance rate of 68%, counting disregard of
provisional measures as noncompliance); Jonathan I. Charney, Disputes
Implicating the Institutional Credibility of the Court , in CROSSROADS at 288,
310-319 (only 5 cases of noncompliance with final judgments 1946-1986).
12
exceptionally disregarded ICJ rulings when they contested the
Court’s consensual jurisdiction, notably where respondents
insisted that the ICJ had been granted no competence to decide
a matter involving a state’s vital security interests.'" In the present
case, by contrast, jurisdiction was by consent and no security
interest would be prejudiced by compliance. Indeed, President
Bush’s memorandum on compliance with Avena confirms the
national interest in fulfilling international obligations.
Implementation of IC) judgments has proceeded smoothly
in almost all treaty-based cases and those involving the rights
of aliens within a state’s territory. In the first case leading to a
final judgment involving the United States, both the United
States and France promptly complied with the judgment in
Rights of Nationals of the United States of America in Morocco
(Fr. v. U.S.), 1952 ICJ 176.*° In Gulf of Maine (Canada/U:S.),
1984 ICJ 246, the final judgment drew a maritime boundary;
19. See especially the U.S. position on Military and Paramilitary
Activities in and against Nicaragua (Nic. v. U.S.), 1986 ICJ 14, note 13
above. France denied the existence of proper ICJ jurisdiction in Nuclear
Tests (Austi. & N.Z. v. Fr.), 1974 ICJ 253, 457. The United States and
France reacted to these cases by withdrawing from the general
compulsory jurisdiction clause of Article 36(2) of the ICJ Statute, while
maintaining treaty-based acceptances under Article 36(1).
20. The final judgment in Morocco had clements requiring
implementation by cach side. The United States dismissed all cases
before U.S. consular courts in Morocco that were outside the limits of
jurisdiction specified by the ICJ, and French courts relied on the
judgment in local (Moroccan) and appellate rulings (by the Cour de
cassation), which referred to the ICJ judgment as dispositive. See Manley
O. Hudson, The Thirty-First Year of the World Court, 47 Am. J. Unt’ L.
1, 8, 14-15 (1953); Note, Judicial Decisions: Morocco—Criminal
Jurisdiction over U.S. Citizens—. . . -International Court of Justice,49
Am. J. Int’t L. 263, 267 (1955); Curisropn C. ScHREVER, DECISIONS OF
INTERNATIONAL INSTITUTIONS Brrore Domesric Courts 33-34, 199, 221 n.
100 (1981) (French courts “do not seem to have regarded any domestic
implementing measures for the application of the International Court's
judgment as being necessary:” direct application of decision derived
from French submission to [CJ jurisdiction).
13
both sides accepted the judgment and promptly complied with
it.”' In ELSI, 1989 ICJ 15, the United States embraced the ICJ
forum as the last recourse of its diplomatic efforts and accepted
the judgment as dispositive of the claims it had raised on behalf
of U.S. investors.*? Thus, apart from Nicaragua (addressed in
note 13 above) and such continuing problems as may exist in
the wake of Avena, the United States has complied with all final
ICJ judgments addressed to it and has benefited from the
compliance of all of its adversaries with final judgments
addressed to them, except for Iran in the Tehran Hostages case.**
21. Compliance having been assumed, only a few cases refer to the
ICJ judgment. See, e.g., Conde v. Starlight 1, Inc., 103 F.3d 210 (1* Cir.
1997) (Hague Line mentioned); Comeau's Sea Foods Ltd. v. Canada
(Minister of Fisheries and Oceans) , {1992} 3 F.C. 54 (Can. Fed. Ct.), rev'd,
[1995] 2 F.C. 467, aff'd, [1997] | S.C.R. 12 (plaintiff sought fishing
license in area awarded to Canada by ICJ); Mersey Seafoods Ltd. v. Minister
of Nat'l Revenue, [1985] 2 C.T.C. 2485 (Can. Tax Ct.), paras. 142-147
(ICJ decision became available after arguments concluded).
22. See Terry D. Gill, International Court of Justice — Diplomatic
Protection — U.S.-Italian Treaty of Friendship, Commerce and
Navigation, 84 Am. J. Int’L L. 249, 257 (1990).
23. In addition to the cases discussed in the text and LaGrand
(F.R.G. v. U.S.), 2001 ICJ 466, which resulted in final judgment against
the United States after the individuals in question had already been
executed, the disposition of the remainder of the 21 cases to which the
United States has been party is as follows:
Dismissal on Threshold Ground (No Jurisdiction or Claim
Inadmissible): The seven Soviet-bloc Aerial Incident cases were
dismissed for lack of jurisdiction. 1954 ICJ 99 (U.S. v. Hung.); 1954
ICJ 103 (U.S. v. USSR); 1956 ICJ 6 (U.S. v. Cz.); 1956 ICI 9 (U.S. vy.
USSR); 1958 ICJ 158 (U.S. v. USSR); 1959 ICJ 276 (U.S. v. USSR);
1960 IC} 146 (U.S. v. Bulg.). Monetary Gold Removed from Rome in
1943 (Italy v. Fr., U.K., U.S.), 1954 ICJ 19, was dismissed for lack of
an indispensable party. /nterhandel (Switz. v. U.S.), 1959 ICJ 16, was
dismissed for failure to exhaust local remedies. Legality of Use of Force
(Yugo. v. U.S.), 1999 ICJ 916, was dismissed for lack of jurisdiction.
Dismissal Upon Settlement: Aerial Incident of 3 July 1988 (Iran vy.
U.S.), 1996 [CJ 9, was discontinued after the United States agreed to
(Cont'd)
14
In view of the U.S. interest in credible fulfillment of dispute
settlement undertakings, this Court should ensure that the courts
below uphold the U.S. obligations to carry out the final judgment
in Avena.
IfI. This Court Should Grant The Writ To Fulfill The U.S.
Commitment To Settle A Dispute With Mexico
Concerning Treatment Of Mexican Nationals In The
United States.
Prior to the Vienna Convention, disagreements over the
treatment of U.S. nationals in Mexico and Mexican nationals
in the United States — including instances of denial of consular
access — frequently led to diplomatic protests and international
arbitration.** Codification of consular law in the Vienna
(Cont'd)
make an ex gratia payment. Lockerbie (Questions of Interpretation and
Application of the 1971 Montreal Convention) (Libya v. U.S.), 2003
ICJ 152, was discontinued upon an overal) setthement. Vienna
Convention on Consular Relations (Para. v. U.S.), 1998 ICJ 426, was
discontinued after provisional measures and before the merits.
Dismissal on Merits: Oil Platforms (Iran v. U.S.), 2003 ICJ 161,
was dismissed on the merits of both Iran's claim and the U.S.
counterclaim.
24. See 4G. HackworTH, DiGest oF INTERNATIONAL Law 830-837
(1942) | HackworrH]; 7 M. Wurreman, DiGest oF INTERNATIONAL Law 626-
658 (1970) | WHrreMAN], 8 WutreMan at 807-837. In the 1920s, a U.S.-
Mexican claims ccmmission held that “a foreigner, not familiar with
the laws of the country where he temporarily resides, should be given
{the] opportunity” of consular access. Walter H. Faulkner (U.S. v. Mex.),
Opinions of the Commissioners Under the Convention Concluded
September 8, 1923 (1927) at 86, 90; see also 4 HackwortH 830.
Conversely, where California officials did not give the Mexican
consulate access to a detained Mexican citizen, the Department of State
stressed the importance of California’s compliance with standards
maintained by the United States in its dealings with other countries:
Even in the absence of applicable treaty provisions
this Government has always insisted that its consuls be
(Cont'd)
15
Convention has produced greater certainty of substantive rules
in consular matters,** and the creation of a multilateral
mechanism for binding settlement of consular disputes in the
Optional Protocol obviated the need for a special arbitration
agreement between the United States and Mexico to resolve a
consular dispute.*° The United States voluntarily accepted the
Optional Protocol when it ratified the Vienna Convention in
(Cont'd)
permitted to visit American citizens imprisoned throughout
the world and it is belicved that if [the] attitude [of the]
District Attorney is maintained in [the] instant case there
will be repercussions in Mexico and perhaps other countries
unfavorable to American citizens,
4 HAckwortTH 836.
In the early 20" century, in preparation for arbitration with Mexico
involving protection of nationals of one country in the other’s territory,
State Department lawyers sought instructions on how to deal with legal
issues concerning actions of states of the Mexican federation, in light
of mirror-image considerations of U.S. federalism. The Department
replied that “in our dealings with foreign Governments having a federal
system similar to our own, we have invariably insisted on the liability
of the Federal Government.” 5 Hackwortu 593, 597 (1943).
25. Codification of consular law was undertaken by the U.N.
International Law Commission and a diplomatic conference. See 1961 -
I YB. Int’t. L. Comm’N 88-128. The United States played a leading role
in negotiating the specific wording of Article 36 of the Convention and
the Optional Protocol. See Report of the United States Delegation to
the Vienna Conference on Consular Relations, reprinted in Sen. Exec.
E, 91* Cong., I* Sess., May 8, 1969, at 41, 59-61 [Report of U.S.
Delegation].
26. The United States actively advocated the provision that became
the Optional Protocol and resisted others’ efforts to eliminate or weaken
dispute settlement. See Report of U.S. Delegation at 72-73. The
formulation from the Vienna Conference, fully supported by the United
States, was an Optional Protocol that states would be free to accept or
not, upon acceptance, a binding obligation would be created. /bid.
16
1969.2’ and Mexico’s subsequent acceptance of the same
obligation created the necessary consent-based reciprocity for
either state to sue the other on any dispute involving
interpretation or application of the Convention.
No state can unilaterally determine the definitive meaning
of an international treaty.** Thus, in a dispute under the Vienna
Convention, the United States cannot impose its own view on
Mexico (or on any other treaty partner), or establish the
measure of its own treaty compliance. Nor can disputes over
the application of the Vienna Convention to particular facts, or
over the remedy for breach, be determined by the United States
as one party to the dispute. For authoritative resolution of such
disputes, the Optional Protocol confers jurisdiction on the ICJ.
27. Withdrawal from the Optional Protocol does not affect the
U.S. obligation to abide by the Avena judgment. At the same time as the
announcement of withdrawal from the Protocol, the United States
reaffirmed its commitment to comply with the Avena judgment. The
State Department spokesman said (in response to a question): “The
bottom line is we believe in the international system, we are committed
participants in the international system, as reflected by . . . our decision
to comply with the judgment.” Dep't of State Daily Press Bricfing (Mar.
10, 2005), available at http://www.state.gov/t/pa/prs/dpb/2005/
43225.htm.
28. See Jesse Lewis (The David J. Adams) Claim (U.S. v. Gr. Br.,
1921), 6 UN. Rep. Int'l Arb. Awards 85 (British court decision could
not be conclusive of meaning of U.S.-British treaty; arbitral tribunal
had competence to interpret the treaty authoritatively). See also
Mitsubishi, 473 U.S. at 629; Bremen, 407 U.S. at 9 (U.S. courts should
not “insist on a parochial concept that all disputes must be resolved
under our Jaws and in our courts... . We cannot have [internationa!
dealings] exclusively on our terms, governed by our laws, and resolved
in our courts.” ).
29. For this reason, U.S. courts ought to give careful consideration
to reasoned positions adopted by foreign or international as well as
U.S. courts on points of treaty interpretation. Cf. Olympic Airways v.
Husain. 540 U.S. 644, 660-661 (Scalia, J., dissenting). Where a tribunal
has been accepted by the U.S. political branches as the forum for binding
settlement of treaty disputes, deference to its ruling 1s required.
17
The jurisprudence of this Court accepts the authority of the
federal government to settle disputes with foreign governments
in a manner that binds state courts. In United States v. Belmont,
301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203
(1942), this Court found that the federal policy of the United
States adopted in the context of definitive resolution of disputes
with the Soviet Union would displace contrary state law. In
Dames & Moore v. Regan, 453 U.S. 654, 679-680 (1981), this
Court explained that claims by nationals of one country against
another can be “sources of friction” in international relations
and that dispute settlement procedures accepted by the U.S.
political branches are a traditional and proper method for
resolving such grievances. In American Insurance Association
v. Garamendi, 539 U.S. 396 (2003), this Court confirmed that
an executive policy in favor of achieving “legal peace” with
foreign governments had to prevail over a state law affecting
the jurisdiction of state courts.°° Whatever might be the limits
of federal authority to resolve disputes with foreign governments
in some hypothetical scenario not involved here, it falls clearly
within the core of federal power under the Constitution to accept
the outcome of a treaty-based dispute resolution process as
definitively settling a dispute over treatment of foreign nationals
by the states and for this Court to ensure that state courts Carry
out the treaty-based judgment in question.
Refusal to grant review and reconsideration of petitioner's
conviction and sentence as required by the ICJ would compound
the treaty violation that occurred when the Texas authorities
failed to inform petitioner of his right to communicate with the
Mexican consulate. Such a refusal to accord this treaty-based
remedy for a treaty violation would prejudice the U.S. ability to
30. In Crosby v. National Foreign Trade Council, 530 U.S. 363.
383 (2000), this Court invalidated a state law that had embroiled the
national government for some time in an international dispute settlement
procedure. A fortiori, in the face of a binding judgment from treaty-
based dispute settlement, a state rule must not impede treaty compliance
and a judicial remedy must be available.
18
insist on compliance by other states with their obligations under
the Vienna Convention toward the millions of U.S. nationals
who visit or work in Mexico and in the other 164 parties to the
Convention.*!
Ultimately, it is the interpretation of this Court that must
have conclusive effect under the Constitution.*? It would be a
justified assertion of the role of this Court, consistent with the
principles of federalism and separation of powers, if the Court,
as Amici urge, exercises its independent judgment to give effect
to the legal obligations of the United States embodied in the
Avena judgment.
31. On rare occasions of U.S. failure to implement obligations
resulting from dispute settlement (as with prolonged noncompliance
with the Chamizal arbitral award in Mexico’s favor), detriments to U.S.
economic and political interests are well-documented. See SHELDON B.
Liss, ACENTURY OF DISAGREEMENT: THE CHAMIZAL CONFLICT, 1864-1964
68-69, 75-77, 86-88, 100-101 (1965); ANTONIO GOMEZ RoBLEDO, MExico
Y ELARBITRAJE INTERNACIONAL 161 (1965); Percy Don Williams, Jr., Fifty
Years of the Chamizal Controversy — A Note on International Arbitral
Appeals, 25 Tex. L. Rev. 455, 461-462 (1947) (problems in negotiating
with Mexico over expropriation of U.S. properties, in view ot
noncompliance with Chamizal award); Francis J. WeBeR, THE UNITED
States Versus MEXICO: THE FINAL SETTLEMENT OF THE Pious FuND 42-50
(1969) (linkage between U.S. rejection of Chamizal and Mexico’s
suspension of payments under Pious Fund award). President Kennedy
said that because of the U.S. refusal on Chamizal, “Mexico has been
unwilling to take any other matter to arbitration, which has, of course,
therefore lessened the harmony between the two countries.” See Kennedy
Says U.S. Was Wrong in Mexico Border Disagreement, N.Y Ties, Jul.
6, 1962, at 4, 8.
At the time of the eventual Chamizal settlement in 1963, the office of
the Texas Attorney General concurred with the opinion of the Legal Adviser
of the U.S. Department of State that the matter could be resolved with
Mexico by treaty without Texas’s consent, because of its international
implications. See Liss at 95-97; 3 WHITEMAN at 680, 696-699.
32. See Restatement, § 112(2) (“The determination and
interpretation of international law present federal questions and their
disposition by the United States Supreme Court is conclusive for other
courts in the United States”) and commenta.
19
CONCLUSION
Amici urge this Court to ensure that actions and omissions
of the State of Texas are remedied by the courts of that State, as
the proper organs to bring about compliance with the Avena
judgment. Refusal to grant the remedy for the Vienna
Convention violations that has been determined by the ICJ in
its judgment on petitioner’s treaty claims would undermine the
U.S. ability to insist on compliance by other states with their
obligations under the Vienna Convention. Review and
reconsideration of petitioner’s conviction and sentence is
necessary to avoid the adverse consequences that would result
from failure to comply with the Avena judgment, which could
include prejudice in connection with dispute settlement under
other treaties.
By remanding with instructions to afford the remedy of
review and reconsideration to redress the violation of the treaty
as required by the Avena judgment, this Court will fulfill its
responsibility within our constitutional system and will sustain
compliance with the international obligations of the United
States.
Respectfully submitted,
Lori Fister DAMROSCH
Of Counsel: Counsel of Record
CHARLES OWEN VERRILL, Jr. 435 West 116" Street
Joun B. REyYNo ps III New York, NY 10027
Paut A. DAME (212) 854-3740
Witey Rein LLP
1776 K Street, N.W.
Washington, D.C. 20006
(202) 719-7000
Attorneys for Amici Curiae
‘ae
“
ai
Ve a
ap ae.
APPENDIX
la
APPENDIX - LIST OF AMICI
Lori Fisler Damroschis the Henry L. Moses Professor of Law
and International Organization at Columbia University and
editor of The International Court of Justice at a
Crossroads (1987). As an attorney in the U.S. Department
of State between 1977 and 1981, she was one of the counsel
for the United States in United States Diplomatic and
Consular Staff in Tehran (U.S. v. Iran) 1979 ICJ 7, 1980
ICJ 3, and in the advisory opinion proceeding on
Interpretation of the Agreement of 25 March 195]
between the World Health Organization and Egypt, 1980
ICJ 73.
Thomas M. Franck is Murry and Ida Becker Professor of Law
Emeritus at New York University. He served as judge ad
hoc of the International Court of Justice in Sovereignty Over
Pulau Ligitan and Pulau Sipadan (\ndonesia/Malaysia),
2001 ICJ 575, and as counsel for Chad in Territorial
Dispute (Libya/Chad), 1994 ICJ 6, and for Bosnia-
Herzegovina in the cases concerning Application of the
Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia-Herzegovina v. Serbia-
Montenegro), 1993 ICJ 3, 325, 1996 ICJ 595, 2007 ICJ
No. 91, and Application for Revision of the Judgment of
11 July 1996 (Yugoslavia vy. Bosnia-Herzegovina), 2003
IC} 7.
Richard N. Gardner is Professor of Law and International
Organization at Columbia University and was previously U.S.
ambassador to Italy and Spain. As Deputy Assistant
Secretary of State for Internationa! Organization Affairs, he
was involved in the U.S. position in the Certain Expenses
of the United Nations advisory opinion proceeding, 1962
ICJ 163. He served as counsel for the United States at the
ICJ in Elettronica Sicula S.p.A. (ELS) (US. v. Italy), 1989
ICJ 15.
2a
Appendix
Louis Henkin is University Professor Emeritus at Columbia
University and a past president of the American Society of
International Law. He served as Chief Reporter for the
American Law Institute’s Restatement (Third) of the
Foreign Relations Law of the United States and is the
author of Foreign Affairs and the United States
Constitution (2d ed. 1996).
Andreas F. Lowenfeld is the Herbert and Rose Rubin Professor
of International Law at New York University. He served in
the Office of the Legal Adviser of the U.S. Department of
State between 1961 and 1966 and was Deputy Legal
Adviser from 1964 to 1966. He was Associate Reporter
for the American Law Institute’s Restatement (Third) of
the Foreign Relations Law of the United States and co-
Reporter for the ALI’s Project on Recognition and
Enforcement of Foreign Judgments. He acted as counsel
for the United States in Oil Platforms (Iran v. U.S.), 1996
ICJ 803, 2003 ICJ 161.
Bernard H. Oxmanis Richard A. Hausler Professor of Law at
the University of Miami and a former Assistant Legal Adviser
of the U.S. Department of State. He was a legal consultant
for the United States in Delimitation of the Maritime
Boundary in the Gulf of Maine Area(Canada/U.S.), 1984
ICJ 246. He served as a judge ad hoc of the International
Tribunal for the Law of the Sea in 2003 and has been
appointed as a judge ad hoc of the International Court of
Justice in Maritime Delimitation in the Black Sea (Romania
v. Ukraine), 2004 ICJ No. 132.
3a
Appendix
W. Michael Reisman is the Myres S. McDougal Professor of
International Law at Yale University and a former member
and president of the Inter-American Commission on Human
Rights. He has served as counsel in Maritime Delimitation
and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), 2001 ICJ 40, and for the Philippines in
Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), 2001 ICJ 575.
Stephen M. Schwebel was a judge of the International Court
of Justice from 1981 to 2000 and its president from 1997
to 2000. Previously he served for fourteen years in the Office
of the Legal Adviser of the U.S. Department of State,
including as Assistant Legal Adviser and Deputy Legal
Adviser, in which offices he represented the United States
in the Certain Expenses of the United Nations advisory
opinion proceeding, 1962 ICJ 163; United States
Diplomatic and Consular Staff in Tehran (U.S. v. Iran),
1979 ICJ 7, 1980 ICJ 3; and in the advisory opinion
proceeding on /nterpretation of the Agreement of 25
March 1951 between the World Health Organization and
Egypt, 1980 ICJ 73.
Anne-Marie Slaughter is the Dean of the Woodrow Wilson
School at Princeton University and past president of the
American Society of International Law. She was formerly
the J. Sinclair Armstrong Professor of Comparative and
International Law at Harvard University.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.