U.S. Supreme Court Deals a Blow to ICJ, Wrongly
Yesterday, the U.S. Supreme Court decided Sanchez-Llamas v. Oregon, in which it held that (i) violations of the right to notification under Article 36 (2) of the Vienna Convention on Consular Rights (VCCR) do not make evidence gained from an accused ignorant of his rights inadmissible, (ii) claims of such violations were subject to the ordinary rules on procedural default, by which federal courts will in principle not hear challenges to state judgments that have not been previously raised in state court, and (iii) the fact that the International Court of Justice (ICJ) had held the application of the procedural default doctrine to be in violation of Article 36 (2) VCCR (LaGrand and Avena and Other Mexican Nationals) was nothing to the point, because the ICJ cases were (a) not binding on US courts, and (b) had been wrongly decided.
In my opinion, the only case here to have been wrongly decided is Sanchez-Llamas.
The first problem, to say the least, lies in the question whether the Supreme Court was bound to follow the ICJ. The Supreme Court here held that the US Constitution placed the powers of the Judiciary in US courts and specifically in the ‘one supreme Court,’ and that it therefore was not bound to follow any external cases.
To be sure, there is no doctrine of stare decisis in general international law (although I should point out that stare decisis has recently been advocated as a means of preventing other international courts and tribunals from departing from ICJ case law: see Jasper Finke, Die Parallelität internationaler Streitbeilegungsmechanismen, Duncker und Humblot: Berlin 2004, pp. 365 et seq. I don’t think that such is the law as it stands: see also the review of this book by Karin Oellers-Frahm in the German Yearbook of International Law 47 (2004), pp. 972, 975-76).
The Supreme Court is also quite right in saying that the ICJ is not itself bound by its own precedents (Article 38 (1) (d) in fine of the Statute).
However, states are bound by Article 94 (1) of the UN Charter (always read with Article 59 of the ICJ Statute) ‘to comply with the decision of the [ICJ] in any case to which it is a party.’ Again, to be sure, this binding force exists only ‘between the parties and in respect of the particular case’ (Article 59 of the Statute, emphasis added).
The petitioners in Sanchez-Llamas, Mr Moises Sanchez-Llamas and Mr Mario Bustillo, were not among the persons whose cases were referred to the ICJ in Avena. Mr Bustillo is not even a Mexican national. Nonetheless, it may be possible to argue that Mr Sanchez-Llamas, as a Mexican national, did come within the binding force of the Avena judgment, i.e. that he comes within ‘the particular case’ (Article 59 of the Statute). This is because the ICJ included a finding of general application in the operative and binding part of the Avena judgment: para. 153 (11) of the judgment found ‘that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America shall, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention’ (emphasis added).
This finding by the ICJ clearly applies to any Mexican nationals, not only to those whose cases were before the Court (this is put beyond doubt by the fact that the same finding, mutatis mutandis, was already contained in LaGrand, at para. 128 (7), which case of course directly concerned two persons who had already been executed). There is a presumption that this command is within the bounds of Article 59 of the Statute, and not ultra vires the ICJ; indeed, this much is supported also by academic comment: see Rudolf Bernhardt, in Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary, Oxford University Press: Oxford, 2006, Art. 59 MN 36-40 (p. 1243).
In fact, this finding by the ICJ should be understood as following from a German/Mexican request for a general assurance of non-repetition (to which an injured state is, of course, entitled: see Article 30 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, p. 216, and Commentary thereto, ibid., pp. 219 et seq.). The requested assurance or guarantee, allowed by the law of state responsibility, is in effect granted by the judgment of the Court itself.
The United States must therefore abide by it, and the courts of the United States, whether federal or state courts, as organs of the United States of America, must respect the obligation of adherence to the binding judgment, or else the United States will violate international law (see Karin Oellers-Frahm, in Zimmermann/Tomuschat/Oellers-Frahm, op. cit., Art. 94 UN Charter MN 12-14 (pp. 165-67)).
In other words, the United States have yesterday violated international law.
And that’s before we come to an even more troublesome point: the constitutional interpretation chosen by the Supreme Court in order to absolve itself from the duty to follow the ICJ cases appears to be force the Supreme Court, as much as any other American court, from giving effect to the Avena judgment even in cases clearly falling under the obligation of Article 94 (1) of the Charter. If one of the individuals personally covered by the ICJ judgment should ever come to the courts to argue that his case must be reconsidered in accordance with Avena, an American court will be faced with a non-binding international judgment and, on the other hand, yesterday’s very much binding judgment in Sanchez-Llamas. Courts other than the Supreme Court would have no choice but to follow Sanchez-Llamas, and incur responsibility under Article 94 (1) of the Charter.
And even the Supreme Court would be in trouble in such a case: while it may, of course, depart from its own precedents, as from any others, it could hardly say that the VCCR means one thing in an Avena case, and quite another in all other cases (there in accordance with Sanchez-Llamas). This would be astounding.
So, whatever happens (short of the Supreme Court overruling Sanchez-Llamas very soon), the United States’ courts will be incapable of giving effect to Avena, at least as regards the procedural default aspect. At the very least, Sanchez-Llamas therefore means that the US will violate Article 94 (1) of the Charter.
Nor could it be said that the interpretation put on the Convention by the Supreme Court is beyond doubt, or even simply correct.
The Supreme Court put it to the ICJ that the latter had misunderstood the adversarial system of criminal proceedings in the American legal system. This was said to be relevant because Article 36 (2) VCCR provided that ‘[t]he rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving state.’
However, this is under the proviso ‘that the said laws must enable full effect to be given to the purposes for which the rights (…) are intended.’ The rights must, accordingly, not be nullified, or restricted beyond usefulness. The ICJ considered that such would be the case if a person could not plead a violation of his or her rights in federal court, on the ground that he or she did not know of his rights earlier, which itself is a consequence of the violation. This appears to be unassailable.
Put simply, the reference to domestic law in Article 36 (2) VCCR does not give a state licence to remove the rights altogether. Nor does it allow a state to keep in operation fundamental rules of its own legal system, no matter what the effect of these rules on the relevant rights. Herein appears to lie much of the fallacy of the Supreme Court.
Also, the right is not the exception; the limitation by domestic law is. Generally speaking, domestic law, including basic features of the legal system, like the adversarial court system or the federal structure, are utterly irrelevant to international law (see Articles 3, 32 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, pp. 74, 231). The power of domestic law to limit the effect of international rules should therefore be narrowly construed. This the Supreme Court certainly did not do.
In fact, the Supreme Court’s judgment could hardly be described as according ‘respectful consideration’ to the views of the ICJ, to which they are, on the Supreme Court’s own view, entitled. The ICJ is the ‘principal judicial organ’ (Articles 92 of the UN Charter, 1 of the ICJ Statute) of the world organization, has described itself as an organ of international law (Corfu Channel, ICJ Reports (1949), pp. XXX), and holds very special expertise in all matters relating to international law (cf. Art. 2 of the Statute). This entitles it to a very great deal of respect, comparable to that which European courts commonly accord to the European Court of Human Rights (as to which see e.g. R (Boughton and Ors) v. HM Treasury [2006] EWCA Civ 504, at paras. 11, 38-41).
In sum, the Supreme Court has taken a swipe at the ICJ, which is not only regrettable as such, but also ill-considered on its merits.
In my opinion, the only case here to have been wrongly decided is Sanchez-Llamas.
The first problem, to say the least, lies in the question whether the Supreme Court was bound to follow the ICJ. The Supreme Court here held that the US Constitution placed the powers of the Judiciary in US courts and specifically in the ‘one supreme Court,’ and that it therefore was not bound to follow any external cases.
To be sure, there is no doctrine of stare decisis in general international law (although I should point out that stare decisis has recently been advocated as a means of preventing other international courts and tribunals from departing from ICJ case law: see Jasper Finke, Die Parallelität internationaler Streitbeilegungsmechanismen, Duncker und Humblot: Berlin 2004, pp. 365 et seq. I don’t think that such is the law as it stands: see also the review of this book by Karin Oellers-Frahm in the German Yearbook of International Law 47 (2004), pp. 972, 975-76).
The Supreme Court is also quite right in saying that the ICJ is not itself bound by its own precedents (Article 38 (1) (d) in fine of the Statute).
However, states are bound by Article 94 (1) of the UN Charter (always read with Article 59 of the ICJ Statute) ‘to comply with the decision of the [ICJ] in any case to which it is a party.’ Again, to be sure, this binding force exists only ‘between the parties and in respect of the particular case’ (Article 59 of the Statute, emphasis added).
The petitioners in Sanchez-Llamas, Mr Moises Sanchez-Llamas and Mr Mario Bustillo, were not among the persons whose cases were referred to the ICJ in Avena. Mr Bustillo is not even a Mexican national. Nonetheless, it may be possible to argue that Mr Sanchez-Llamas, as a Mexican national, did come within the binding force of the Avena judgment, i.e. that he comes within ‘the particular case’ (Article 59 of the Statute). This is because the ICJ included a finding of general application in the operative and binding part of the Avena judgment: para. 153 (11) of the judgment found ‘that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America shall, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention’ (emphasis added).
This finding by the ICJ clearly applies to any Mexican nationals, not only to those whose cases were before the Court (this is put beyond doubt by the fact that the same finding, mutatis mutandis, was already contained in LaGrand, at para. 128 (7), which case of course directly concerned two persons who had already been executed). There is a presumption that this command is within the bounds of Article 59 of the Statute, and not ultra vires the ICJ; indeed, this much is supported also by academic comment: see Rudolf Bernhardt, in Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary, Oxford University Press: Oxford, 2006, Art. 59 MN 36-40 (p. 1243).
In fact, this finding by the ICJ should be understood as following from a German/Mexican request for a general assurance of non-repetition (to which an injured state is, of course, entitled: see Article 30 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, p. 216, and Commentary thereto, ibid., pp. 219 et seq.). The requested assurance or guarantee, allowed by the law of state responsibility, is in effect granted by the judgment of the Court itself.
The United States must therefore abide by it, and the courts of the United States, whether federal or state courts, as organs of the United States of America, must respect the obligation of adherence to the binding judgment, or else the United States will violate international law (see Karin Oellers-Frahm, in Zimmermann/Tomuschat/Oellers-Frahm, op. cit., Art. 94 UN Charter MN 12-14 (pp. 165-67)).
In other words, the United States have yesterday violated international law.
And that’s before we come to an even more troublesome point: the constitutional interpretation chosen by the Supreme Court in order to absolve itself from the duty to follow the ICJ cases appears to be force the Supreme Court, as much as any other American court, from giving effect to the Avena judgment even in cases clearly falling under the obligation of Article 94 (1) of the Charter. If one of the individuals personally covered by the ICJ judgment should ever come to the courts to argue that his case must be reconsidered in accordance with Avena, an American court will be faced with a non-binding international judgment and, on the other hand, yesterday’s very much binding judgment in Sanchez-Llamas. Courts other than the Supreme Court would have no choice but to follow Sanchez-Llamas, and incur responsibility under Article 94 (1) of the Charter.
And even the Supreme Court would be in trouble in such a case: while it may, of course, depart from its own precedents, as from any others, it could hardly say that the VCCR means one thing in an Avena case, and quite another in all other cases (there in accordance with Sanchez-Llamas). This would be astounding.
So, whatever happens (short of the Supreme Court overruling Sanchez-Llamas very soon), the United States’ courts will be incapable of giving effect to Avena, at least as regards the procedural default aspect. At the very least, Sanchez-Llamas therefore means that the US will violate Article 94 (1) of the Charter.
Nor could it be said that the interpretation put on the Convention by the Supreme Court is beyond doubt, or even simply correct.
The Supreme Court put it to the ICJ that the latter had misunderstood the adversarial system of criminal proceedings in the American legal system. This was said to be relevant because Article 36 (2) VCCR provided that ‘[t]he rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving state.’
However, this is under the proviso ‘that the said laws must enable full effect to be given to the purposes for which the rights (…) are intended.’ The rights must, accordingly, not be nullified, or restricted beyond usefulness. The ICJ considered that such would be the case if a person could not plead a violation of his or her rights in federal court, on the ground that he or she did not know of his rights earlier, which itself is a consequence of the violation. This appears to be unassailable.
Put simply, the reference to domestic law in Article 36 (2) VCCR does not give a state licence to remove the rights altogether. Nor does it allow a state to keep in operation fundamental rules of its own legal system, no matter what the effect of these rules on the relevant rights. Herein appears to lie much of the fallacy of the Supreme Court.
Also, the right is not the exception; the limitation by domestic law is. Generally speaking, domestic law, including basic features of the legal system, like the adversarial court system or the federal structure, are utterly irrelevant to international law (see Articles 3, 32 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, pp. 74, 231). The power of domestic law to limit the effect of international rules should therefore be narrowly construed. This the Supreme Court certainly did not do.
In fact, the Supreme Court’s judgment could hardly be described as according ‘respectful consideration’ to the views of the ICJ, to which they are, on the Supreme Court’s own view, entitled. The ICJ is the ‘principal judicial organ’ (Articles 92 of the UN Charter, 1 of the ICJ Statute) of the world organization, has described itself as an organ of international law (Corfu Channel, ICJ Reports (1949), pp. XXX), and holds very special expertise in all matters relating to international law (cf. Art. 2 of the Statute). This entitles it to a very great deal of respect, comparable to that which European courts commonly accord to the European Court of Human Rights (as to which see e.g. R (Boughton and Ors) v. HM Treasury [2006] EWCA Civ 504, at paras. 11, 38-41).
In sum, the Supreme Court has taken a swipe at the ICJ, which is not only regrettable as such, but also ill-considered on its merits.
posted by Tobias Thienel at 16:59
5 Comments:
Why does the word "Treaty" not appear, even once, in this post?
Isn't there a treaty obligation regarding the Convention, as suggested by the Brief submitted by int'l law scholars, and as mentioned in the comments to the post at Opinio Juris?
If so, shouldn't the analysis of direct binding force of ICJ judgments be short-circuited by the question whether the U.S. has undertaken the treaty obligation to abide by international law?
Thank you for your comment.
There are several reasons for my omission.
First, my post was neer intended to exhaust all the issues presented by the binding force question. I gave my opinion, insofar as it has not been given elsewhere. One more vioce stressing the voluntary nature of the US obligation to respect the ICJ's views - and to follow them - would not be particularly valuable, would it?
Secondly, my argument, based as it is on Article 94 (1) of the UN Charter, obviously also proceeds from treaty arrangements freely entered into (indeed, to a considerable degree created by) the United States. The treaties in question are the UN Charter and the ICJ Statute, complemented by the acceptance of the ICJ's jurisdiction in the Optional Protocol to the VCCR.
Thirdly, I am not entirely convinced by the argument of the experts, as it appears in their brief. It is true, of course, that a state agreeing to bring a case before the ICJ, or to be taken there by another state, also agrees to carry out the judgment of that Court. This is a central tenet of international judicial dispute settlement, a requirement of basic good faith, and the material content of Article 94 (1) of the Charter.
However, this does beg the question: what does this agreement entail? It is little more than a value judgment to say that such agreement implies consent to be bound by the reasons given by the Court. This does not appear in the Charter or the Statute, which only speak of the 'decision', i.e. the operative part of the judgment.
The experts sought to circumvent the difficulty of delineating the reach of the agreement to be bound by the judgment by expressing the matter thus:
'The United States freely agreed to the compulsory jurisdiction of the ICJ to resolve Vienna Convention disputes, and thus voluntarily accepted an obligation to give effect to the ICJ's interpretation resulting from the dispute settlement procedure.'
Certainly, there is an obligation to 'give effect' to the judgment, but not necessarily to every part of the judgment, and most definitely not to 'the ICJ's interpretation'. The obligation created by the voluntary submission to the ICJ, read with the arrangements of the Charter and the Statute thus rendered applicable to the US, only refer to the operative part of the judgment (the court's order, to put it in terms of domestic law), and only of the specific case.
There is no law to say that the interpretation given by the ICJ to a legal instrument becomes binding on the parties for every future case.
This is where my argument starts off: the ICJ said in the operative part of Avena that the US would have certain duties in future cases, and it did so based on Mexico's right to a guarantee of non-repetition. Therefore, the legal duty to comply with the operative part extends also to certain future cases.
In effect, my argument extends that made by the international law experts, by showing with reference to law and authority what the duty to 'give effect' to the judgment, freely undertaken by the US, means.
I intended to show that this duty follows not simply from good faith or other moral considerations, but from the strict law of the Charter, as applied to the specific orders in Avena.
I hope I made myself clear, albeit only at this late stage, and only in reply to your question.
One correction to my post:
I now see that Mr Sanchez-Llamas's case did not in fact raise the procedural default issue. Mr Bustillo's case did, but he is not a Mexican citizen, so the ICJ's decision on future cases involving Mexican citizens clearly does not apply to the decided case. The Supreme Court's decision therefore did not as such violate international law.
I do not, however, resile from my comments in so far as the general question of the effect of Article 94(1) of the Charter, read with the ICJ's strictures on Mexican (and, in LaGrand, German) citizens in future cases are concerned. In all such cases, the US are obliged by Article 94 to provide for the meaningful review of convictions. This does not nearly depend on whether the Court's interpretation of the Vienna Convention was right. It is simply part of the binding force of the judgment as between the parties.
I, of course, a newcomer to this blog, but the author does not agree
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