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Published online by Cambridge University Press: 27 February 2017
Medellín v. Texas is the first case in which the Supreme Court has denied a treaty-based claim solely on the ground that the treaty relied upon was non-self-executing. In Foster v. Neilson, the only other case in which the Court had denied relief on this ground, the Court offered its view that the treaty was non-self-executing as an alternative ground for denying relief. The Court soon thereafter disavowed its conclusion that the treaty involved in Foster was non-selfexecuting, and, in the intervening years, it repeatedly declined invitations to deny relief on this or related grounds. Many observers (including me) thought that the Court would again skirt a ruling on non-self-execution in Medellín because the president had issued a memorandum ordering compliance with the judgment of the International Court of Justice (ICJ) in Avena. After all, the Court in American Insurance Ass’n v. Garamendi had recently struck down a California law on the ground that it conflicted with a “policy” reflected in certain sole executive agreements. The president in Medellín seemed to be standing on stronger ground, as he was insisting that state law give way to an obligation imposed by a treaty that had received the consent of the Senate and was accordingly the supreme law of the land. But the Court defied this expectation, with potentially regrettable results for the law of treaties.
1 128 S.Ct. 1346, 1357 (2008).
2 Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).
3 Id. at 314. In his dissent in Medellín, Justice Breyer noted that Foster and Cameron Septic Tank Co. v. Knoxville, 227 U.S. 39 (1913), were the only cases in which the Supreme Court had denied relief on this ground. Medellín, 128 S.Ct. at 1379 (Breyer, J., dissenting) (citing Manuel, Carlos Vázquez, The Four Doctrines of Self-Executing Treaties , 89 AJIL 695, 716 (1995)Google Scholar [hereinafter Vázquez, Four Doctrines]). The majority did not dispute the point. 128 S.Ct. at 1366 n. 12. In the article cited by the dissent for this point, I noted, out of an excess of caution, that Cameron Septic Tank may have denied relief on non-self-execution grounds, but, if so, it was ambiguous in doing so. Vázquez, Four Doctrines, supra, at 716 n.96.1 now do not regard Cameron Septic Tank as having based its holding on a conclusion that the treaty was non-self-executing. See Brief for Louis Henkin et al. as Amici Curiae Supporting Petitioner at 16 n.10, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 05-184) (“[In Cameron,] this Court noted but did not endorse the apparent view of Congress … that the treaty of Brussels of 1900 was not self-executing. Instead, it ruled against the plaintiff on the merits ….”) (I was a coauthor of this brief).
4 See generally Carlos, M. Vázquez, Foster v. Neilson and United States v. Percheman: Judicial Enforcement of Treaties , in International Law Stories 151 (John, E. Noyes, Laura, A. Dickinson, & Mark, W. Janis eds., 2007)Google Scholar [hereinafter Vázquez, Story of Foster and Percheman].
5 United States v. Percheman, 32 U.S. (7 Pet.) 51, 89 (1833).
6 Compare Hamdan v. Rumsfeld, 548 U.S. 557,627 (2006), with Brief for the Respondents at 31, Hamdan, 548 U.S. 557 (No. 05-184) (arguing that treaties are presumptively to be enforced diplomatically rather than judicially); compare Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 179 (1993) (construing Article 33 of Refugee Convention not to apply to aliens beyond U.S. borders), with Brief for the Petitioners at 38 n.24, Sale, 509 U.S. 155 (No. 92-344) (arguing that Article 33 is not judicially enforceable); compare United States v. Alvarez–Machain, 504 U.S. 65 5,667 (1992) (construing U.S.-Mexico Extradition Treaty not to prohibit unilateral abductions), with Brief for United States at 34, Alvarez–Machain, 504 U.S. 655 (No. 91-712) (arguing that individuals lack standing to invoke extradition treaty in court).
7 Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 ICJ Rep. 12 (Mar. 31).
8 Am. Ins. Ass’n v. Garamendi 539 U.S. 396, 425 (2003).
9 I refer here to Article 94 of the United Nations Charter [hereinafter Article 94], by which the United States undertook to comply with judgments of the ICJ in cases to which it is a party.
10 See Manuel, Carlos Vázquez, Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures , 92 AJIL 683, 689–90 (1998)Google Scholar [hereinafter Vázquez, Breard and Federal Power].
11 Vienna Convention on Consular Relations (Para. v. U.S.), 1998 ICJ Rep. 248, 258 (Nov. 10) (“The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings.”).
12 The Medellín majority denied that it was holding that “in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law,” 128 S.Ct. at 1367 n.13, and it stressed that it was addressing only the “far more limited [questions] of whether he may unilaterally create federal law by giving effect to the judgment of this international tribunal pursuant to this non-self-executing treaty, and, if not, whether he may rely on other authority under the Constitution to support the action taken in this particular case.” Id.
13 Bush v. Gore, 531 U.S. 98, 109 (2000) (limiting consideration “to the present circumstances”).
14 Brief for the United States as Amicus Curiae at 51, Breard v. Greene, 523 U.S. 371 (1998) (No. 97-8214).
15 See generally Vázquez, Four Doctrines, supra note 3, at 698–700; Manuel, Carlos Vázquez, Treaty-Based Rights and Remedies of Individuals , 92 Colum. L. Rev. 1082, 1108–10 (1992)Google Scholar.
16 LaGrand (FRG v. U.S.), 2001 ICJ Rep. 446 (June 27).
17 Brief for the United States, supra note 14, at 51; LaGrand at 507–08, paras. 112, 115.
18 Vázquez, Breard and Federal Power, supra note 10, at 685–86.
19 Although 1 also suggested that the president’s power to “Take Care” that the relevant treaties be faithfully executed would have supported a presidential order to comply with a (hypothetically) binding order of provisional measures even if it were regarded as not directly enforceable for political question reasons, see Vázquez, Breard and Federal Power, supra note 10, at 685,1 regarded the delegation rationale as narrower and sufficient to sustain an executive order staying Breard’s execution. For a careful and persuasive argument that the president’s memorandum in Medellín was a valid exercise of his “Take Care” power, see Edward, T. Swaine, Taking Care of Treaties , 108 Colum. L. Rev. 331, 372–86 (2008)Google Scholar. Although Swaine argues that a “Take Care” rationale would be narrower than a delegation rationale, id. at 377, he does not seem to be referring to the delegation argument discussed here and in my prior article, which was specific to orders of provisional measures. His article discusses the validity of the president’s order requiring compliance with the final judgment in Avena. Id. at 337–42. As discussed below, my delegation argument would not necessarily apply to such an order.
20 Bernard, H. Oxman, Jurisdiction and the Power to Indicate Provisional Measures , in The International Court of Justice at a Crossroads 323, 323 (Lori, F. Damrosch ed., 1987)Google Scholar (“Urgency is a basic characteristic of those situations.”).
21 See Vázquez, Breard and Federal Power, supra note 10, at 689 & n.37. Of course, the treaty authorizing such measures does not say expressly that it delegates such power to the president. Treaties generally do not address details of domestic enforcement (nor can they, given the diversity of constitutional systems covered by multilateral treaties of this sort). My argument was that treaties authorizing emergency measures of this sort should be construed as implicitly authorizing action by domestic officials who have the ability to act expeditiously and who otherwise can be delegated power to perform the contemplated acts. See id. at 689 n.37. In countries with a more streamlined legislative process, compliance through legislation might be appropriate, but in a legal system such as ours, which imposes significant obstacles to legislation, executive action is necessary.
22 Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 ICJ Rep. 12 (Mar. 31).
23 The Spanish version of UN Charter Article 94 indicates that the parties “agree[d] to comply” with the judgments of the ICJ. See Medellín, 128 S.Ct. at 1384 (Breyer, J., dissenting) (quoting Spanish counterpart to “undertakes to comply”—”compromete a cumplir”—which translates most directly as “agrees to comply”).
24 Brief for the United States as Amicus Curiae Supporting Respondent 33-38, Medellín v. Dretke, 544 U.S. 660 (2005) (No. 04-5928).
25 George, W. Bush, Memorandum for the Attorney General (Feb. 28, 2005)Google Scholar, reprinted in John, R. Crook, Contemporary Practice of the United States, 99 AJIL 489 (2005).Google Scholar
26 Supra note 24, at 45–46; Brief for the United States as Amicus Curiae Supporting Petitioner at 23–24, Medellín v. Texas, 128 S.Ct. 1346 (2008) (No. 06-984).
27 32 U.S. (7 Pet.) 51, 88 – 89 (1833).
28 Brief of Constitutional and International Law Scholars as Amicus Curiae Supporting Respondent at 11–12, Medellín, 128 S.Ct. 1346 (2008) (No. 06-984).
29 These treaties include the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171,6 ILM 368; the International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, GARes. 2106 (XX), 660 UNTS 195; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. NO. 100-20 (1988), 1465 UNTS 85.
30 Cf. Medellín, 128 S.Ct. at 1365 (“[S]ome treaties are self-executing and some are not, depending on the treaty.”).
31 See generally Manuel, Carlos Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties , available at http://ssrn.com/abstract==1118063>, revised in 121 Harv. L. Rev. (forthcoming 2008),+revised+in+121+Harv.+L.+Rev.+(forthcoming+2008)>Google Scholar (manuscript at 48–75) [hereinafter Vázquez, Treaties as Law].
32 See id. at 70 – 75.
33 As noted by the dissent, the equally authoritative Spanish version provided that the parties “agreed” to comply with ICJ judgments. See supra note 23.
34 See Vázquez, Four Doctrines, supra note 3, at 718–19.
35 See id.
36 This was one of the hypotheticals posed by Chief Justice John Roberts at the Medellín oral argument, apparently to raise concerns about an interpretation of Article 94 requiring compliance with ICJ judgments without exception. Transcript of Record at 4, Medellín v. Texas, 128 S.Ct. 1346 (2008) (No. 06-984). In addition to the due process problem with any attempt at direct judicial enforcement of such a (highly unlikely) ICJ judgment, it is worth noting that enforcement could in any case be precluded through a subsequent federal statute forbidding compliance.
37 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14 (June 27). But cf Coram, of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d929, 932 (D.C. Cir. 1988) (rejecting “political question” rationale for dismissing action seeking to enforce ICJ Nicaragua judgment, but dismissing on other grounds).
38 Curtis, A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution , 55 Stan. L. Rev. 1557, 1587–95 (2003).Google Scholar
39 United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936).
40 See Vázquez, Breard and Federal Power, supra note 10, at 689 n.35.
41 Indeed, the Court appears to have rejected a delegation objection to an agreement to give domestic legal force to the judgments of international tribunals. See 128 S.Ct. at 1364–65 (“We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments.”).
42 I share the view, noted elsewhere in this Agora, that the position that non-self-executing treaties lack domestic law status would be difficult to reconcile with the text of the Supremacy Clause. See Curtis, A. Bradley, Intent, Presumptions, and Non-Self-Executing Treaties , 102 AJIL 540, 550 (2008)Google Scholar. For this reason, and for the additional reasons set forth below and in Vázquez, Treaties as Law, supra note 31, Medellín should be read in a way that would preserve the domestic law status of valid non-self-executing treaties. Notwithstanding the aspects of Medellín % analysis that I discuss in the next several paragraphs, the majority opinion as a whole is susceptible to a narrower reading. See generally Vázquez, Treaties as Law, supra note 31.
43 This analysis would appear to rule out presidential action requiring compliance with provisional measures orders as well, if the obligation to comply with such measures (now recognized to be binding) derives from Article 94. Insofar as the obligation to comply with provisional measures orders derives from other treaty provisions, cf. LaGrand (FRG v. U.S.), 2001 ICJ Rep. 446, 505–06 (June 27) (noting that Article 94 “confirm[s] the binding nature of provisional measures”), the president’s power to require compliance would turn, as a threshold matter, on whether those treaty provisions are self-executing under the majority’s test.
44 Medellín v. Texas, 128 S.Ct. 1346, 1371 (2008).
45 Id. at 1369 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)).
46 Id. at 1356 (citing Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829)).
47 See Vázquez, Story of Toster and Percheman, supra note 4, at 166–67.
48 Youngstown, 343 U.S. at 634-55 (Jackson, J., concurring).
49 Medellín, 128 S.Ct. at 1369.
50 Id.
51 Id.
52 Id. For a sampling of other indications that the majority believed a treaty to be self-executing only if its text affirmatively conveys an intent that it have the force of domestic law, see Medellín, 128 S.Ct. at 1356 (“In sum, while treaties ‘may comprise international commitments … they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be “self-executing” and is ratified on these terms.’” (alteration in original) (quoting Igartúa-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc))); id. at 1369; see also id. at 1364 (“[W]e have held treaties to be self-executing when the textual provisions indicate that the President and Senate intended for the agreement to have domestic effect.”); id. at 1366 (“Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.”).
53 Accord Bradley, supra note 42.
54 See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236–37 (1796), discussed in Manuel, Carlos Vázquez, The Separation of Powers as a Safeguard of Nationalism , 8 Notre Damel. Rev. 1601, 1621–22 (2008)Google Scholar [hereinafter Vázquez, Safeguard of Nationalism]; see also Vázquez, Treaties as Law, supra note 31, at 40 n. 191 (citing other cases).
55 See Medellín, 128 S.Ct. at 1365-66 (discussing Kolovrat v. Oregon, 366 U.S. 187,191,196 (1961), and Clark v. Allen, 331 U.S. 503, 507–11, 517–18 (1947), and noting with approval that the Court had found self-executing “a number of the ‘Friendship, Commerce, and Navigation’ Treaties cited by the dissent”).
56 Id. at 1364.
57 Id at 1369.
58 Id. atl359n.5.
59 See Vázquez, Treaties as law, supra note 31, at 35 n. 172.
60 Medellín, 128 S.Ct. at 1358.
61 The Court in Percheman wrote that “[a]lthough the words ‘shall be ratified and confirmed,’ are properly the words of contract, stipulating for some future legislative act; they are not necessarily so. They may import that they ‘shall be ratified and confirmed,’ by force of the instrument itself.” United States v. Percheman, 32 U.S. (7 Pet.) 51,89 (1833).
62 Medellín, 128 S.Ct. at 1359.
63 Id. at 1360.
64 Id.
65 See generally Vázquez, Treaties as Law, supra note 31; Vázquez, Safeguard of Nationalism, supra note 54.
66 Medellín, 128 S.Ct. at 1369.
