How transnational law develops

(Part 2 of a 3-part guest post by Mireille Delmas-Marty)

Having introduced a comparison of French and U.S. approaches to legal pluralism in a transnational legal world develops, we now consider answers to our threshold question: How does the transnational legal world develop?
Transnational law develops through:
► cross-referencing,
► efforts to harmonize, and
► creation of hybrid rules of substance and procedure.
In both the European and the U.S. legal systems, the last method is rarely used. It is true that some hybrid rules have been created. An example is the hybridisation of the accusatorial and inquisitorial criminal procedure rules that occurred first in the ad hoc tribunals and later at the International Criminal Court. But these rules – which increase judicial powers in the preliminary phase, transmit dossiers to the trial judge, and accord more prominent roles to victims – do not directly affect national legal orders.
In the United States, much has been debated about the 1st option, called cross-referencing or, sometimes, consultation; that is, the citation by U.S. judges of decisions handed down by judges of foreign constitutional and international courts. Most salient are 2 U.S. Supreme Court judgments, Lawrence v. Texas (2003) and Roper v. Simmons (2005). The latter issued during a Term when the Court considered or referred to foreign law in at least 6 cases, according to Justice Stephen G. Breyer (above). In his foreword to my book Ordering Pluralism (trans. Naomi Norberg 2009), Breyer wrote that "six out of a total docket of 79 indicates the increasingly routine nature" of this method in American cases.
In France, meanwhile, the main concern is the middle option, harmonisation. Jurists focus on the changes that European efforts to harmonise different national systems imposes on criminal, contract, and other sectors of French law.
Harmonisation is a very complex process, entailing both more and less integration than either of the other 2 options:

Harmonisation and cross-referencing
Compared with cross-referencing, harmonisation requires more integration. Cross-referencing assumes the priority of domestic law; in contrast, harmonisation involves a hierarchy in which an abundance of international law is binding on the national legislative authority. That international law derives, moreover, from both poles of the bipolar European legal system discussed in my last post:
► Respecting the European Union pole, France’s Conseil d’État (right) observed in 2000 that since the 1960s the Community had produced more than 68,000 acts supposed to be integrated to French law.
► Respecting the Council of Europe pole, the indirect effects of decisions by the European Court of Human Rights (below left) against France must be noted. In 1990 that Court condemned France twice -- in Huvig and Kruslin, which challenged wiretapping without any legal basis -- and France adopted a new law within a year. In Medvedyev (2008), a Court panel ruled that in France the prosecutor is not independent enough to satisfy the due process principle enshrined in Article 5 of the Convention on Human Rights and Fundamental Freedoms. Should the Court’s Grand Chamber confirm this finding of violation, the French government likely will have to delay and revise a pending plan to transfer more power from the investigating judge to the prosecutor, about which I wrote an op-ed last summer. (Prior IntLawGrrls post)

Harmonisation and hybridisation
Compared with the 3d option of hybridisation, however, harmonisation involves less integration This is because each member state enjoys a margin of appreciation that precludes application of strictly identical rules throughout Europe. As articulated in Handyside v. United Kingdom (1976) and later judgments, the margin-of-appreciation concept operates to limit the jurisdiction of the European Court of Human Rights, particularly in areas in which differences among members states are so strong and so deeply linked to national cultures that it seems impossible for international judges to impose the same rule on every state. Examples include areas such as abortion, euthanasia, and privacy. The national margin of appreciation excludes binary reasoning: it imposes not an obligation of strict conformity, which bars all variation, but rather an obligation of compatibility, which permits some differences in application of European legal norms.
In short, the margin of appreciation involves gradation-based reasoning -- fuzzy logic, as I have called it -- and accepts incomplete integration.
Not all differences are accepted, however. The concept preserves some gradation of integration, for it assumes limits which must not be exceeded. Examples:
► Abortion may be subject to limitations by the state that are strict, as in Ireland or Poland, or not so strict, as in Germany. But, as the Court established in Tysiac v. Poland (2007), the domestic law must effectively implement the Europe-wide right to abortion.
► Wiretapping may be controlled very differently in each European national system -- by administrative authority, for instance, or by a judge or a parliamentary commission. The Court has not relinquished its right to review such mechanisms, but has limited review to those deemed incompatible with Europe-wide norms.
This graduated approach has some resonance among U.S. jurists. Justice Breyer proposed in Heller (2008), which entailed "review of gun control regulation," U.S. courts ought to embrace an "interest balancing inquiry." Breyer considered deference to legislative appreciation to be "particularly appropriate" given that the decision was made "by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions." The consequence is that different localities may seek to solve similar problems in different ways. Breyer’s dissenting opinion in Heller:

The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.

(internal quotation marks omitted) This statement is not so different from those in which the European human rights court has considered that national courts are better situated than European judges to determine the proper scope of restrictions based on public order.

(Still to come in this 3-part guest post: Part 3, on where and when transnational law develops; here. Part 1, which introduced comparison of French and U.S. approaches, is here.)

Medellín executed; debate continues

The case of José Ernesto Medellín ended with his execution by lethal injection at 9:57 last night at the Texas prison in Huntsville.

In March, as detailed in prior IntLawGrrls posts, the U.S. Supreme Court in Medellín v. Texas rejected the Mexico-born defendant's challenge to his conviction. Medellín had contested the use of a confession obtained without telling him of his Vienna Convention on Consular Relations right to consular access. But the Court held 6-3 held that the Convention regime, which Congress never implemented into internal U.S. law, did not oblige Texas to reconsider Medellín's case, notwithstanding an International Court of Justice order to do so.

Last night's execution went forward after the United States' highest court declined Medellín's application for a stay. This vote was 5-4. Justice John Paul Stevens, who had cast the 6th vote for Texas in March, would have granted a stay in order to seek the views of the U.S. Executive respecting what, in Stevens' view, was the failure of Texas to discharge its

duty as a matter of international law -- to remedy the potentially significant breach of the United States' treaty obligations ....

Also dissenting from denial of a stay were Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Breyer favored delay in order to permit Congress to respond to the Medellín majority's exposition of what it maintained makes a treaty provision self-executing or non-self-executing. Making particular note of the mid-July introduction into Congress of a bill entitled the Avena Case Implementation Act of 2008, Breyer argued that

until the Court's decision in Medellín a few months ago, a member of Congress might reasonably have believed there was no need for legislation because the relevant treaty provisions were self-executing. It is not realistic to believe Congress could act to provide the necessary legislative approval in only a few weeks' time.

Questions of how government ought to respond to Medellín's treatment of international treaties' status in internal U.S. law endure despite the conclusion of this particular case. Taking up those questions is a newly appointed Joint Task Force on Treaties in US Law, newly formed by the American Society of International Law and the American Bar Association's Section of International Law. Members include private- and public-sector attorneys, as well as a number of IntLawGrrls' academic colleagues: yours truly, Diane Marie Amann, California-Davis; Donald K. Anton, Michigan; Curtis A. Bradley, Duke; Lori Fisler Damrosch, Columbia; Duncan Hollis, Temple; Julian Ku, Hofstra; Sally Rider, Arizona; Edward T. Swaine, George Washington; and Carlos Manuel Vázquez, Georgetown.

(credit for 2007 Pat Sullivan/AP photo of Texas death chamber)

Texas judge rebuffs Mexico's lawyer, sets execution date in consular access treaty case

Harris County, Texas, Judge Caprice Cosper (right) has set August 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in Medellín v. Texas was Article 36(b) of the 1963 Vienna Convention on Consular Relations, which requires law enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts here). The enforceability vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In Medellín -- involving a death row petitioner who, like many persons arrested in the United States for decades after the U.S. joined the treaty regime, never was advised of his consular-access rights -- the Supreme Court was called upon to consider:
► Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. United States (Avena) (2004)?
► Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the Court decided both. Treating the latter question 1st, Chief Justice John G. Roberts, Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes" -- in telling a constituent state what to do, the President had violated the Constitution. The dissent of Justice Stephen G. Breyer relied on the earlier view of non-self-execution doctrine. But to no avail; Breyer was joined only by Justices Davis H. Souter and Ruth Bader Ginsburg. (Margaret E. McGuinness' ASIL Insight here; prior Convictions posts on the decision here and here.)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing Medellín's attorneys -- Sandra Babcock (left), Clinical Associate Professor of Law and Clinical Director, Center for International Human Rights, Northwestern University School of Law, Donald Donovan of New York's Debevoise & Plimpton -- sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said; Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
Their arguments did not sway Judge Cosper, who reportedly "kept a hangman's noose over her office door" when she was a "death penalty prosecutor" in the Office of the Harris County District Attorney. At this week's hearing Cosper, elected to the bench in 1992, denied defendant's request to let the legal adviser to the Mexico's Foreign Minister speak with these words:

'I did not intend to hold a hearing. I did intend to set an execution date.'

One suspects that this was not the "further appropriate action by the State of Texas" that Justice John Paul Stevens had in mind when, agreeing with Breyer's view of the non-self-execution doctrine but disagreeing that its threshold had been met, he concurred in the Court's judgment in Medellín.

(Cross-posted on Slate's Convictions blog)

No stomach for capital punishment

It's said in West Coast legal circles that Californians like to hand down the death penalty, but they haven't the stomach to carry it out. But now, 1 California-based federal appellate judge wants to help his state find that stomach.

The Los Angeles Times' Henry Weinstein reports on the suggestions to streamline and expedite executions that death penalty proponent Arthur L. Alarcón, a former Los Angeles prosecutor now a Senior Judge for the U.S. Court of Appeals for the Ninth Circuit, has set forth in "Remedies for California's Death Row Gridlock," 80 Southern California Law Review 697 (May 2007).

Statistics indeed show that much is awry:

► 667 inmates are on death row, adjacent to the lethal-injection chamber at San Quentin Prison in California's Bay Area (left).

► 88 have no lawyer, on account of a chronic shortage of attorneys willing and able to take death cases.

► Some prisoners have been on death row since 1978, when the state, in the wake of the Supreme Court's revival of the death penalty in Gregg v. Georgia (1976), enacted a new death penalty law.

► The 1st execution after enactment of that law came 14 years later, in 1992.

► Since then there've been 12 more executions, fewer than 1 a year.

► More condemned prisoners have died from natural causes -- 38 -- or suicide -- 14 -- than by execution.

► The longest stay on death row before execution was 24 years 8 months; the shortest, 9 years 7 months.

Alarcón would jumpstart the system in part by a shift of the automatic review process from the state's Supreme Court to its intermediate appellate courts and by "a major infusion of cash," intended to attract more defense lawyers.

More lawyers would lead to more litigation, and not only of the lethal injection challenges that've stalled executions in California for well over a year. Also likely: further pressing of a claim familiar to international lawyers. The claim's won favor in the European Court of Human Rights and, to cite a few examples, Britain's Privy Council and India's and Zimbabwe's highest courts. To date, however, it's caught the eye of only Justices John Paul Stevens and Stephen G. Breyer on the U.S. Supreme Court. It is, of course, the "death row phenomenon" claim that holding a person under sentence of death for years at a time is itself punishment violative of fundamental rights. It's a claim that last year the Ninth Circuit avoided in the case of the last man executed, on account of procedural default, and 1 that, as Alarcón observes in his 12th footnote, California's Supreme Court dodged in People v. Hill, 839 P.2d 984 (1992). Notably, the dodge came 20 years after the same court wrote in People v. Anderson, 493 P.2d 880, words that seemed to presage the death row phenomenon decisions that elsewhere would follow:

The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out.

On August 3, ...

... 1993, the Senate voted 97-3 to confirm the nomination of Ruth Bader Ginsburg, then a federal appellate judge, to become the 2d woman ever to serve on the U.S. Supreme Court. On the same day 1 year later, Stephen G. Breyer, also a federal appellate judge, was sworn in as a Supreme Court Justice. Both remain on the Court to this day.
... 1936, Jesse Owens (right), Alabama-born "son of sharecroppers and the grandson of slaves," won a gold medal in the 100-meter dash at the XIth Olympic Games in Germany. In the course of the games the African-American athelete would win 4 gold medals, and so give the lie to the master-race theories of Adolf Hitler, the leader of the host country. For this achievement the International Olympic Committee calls Owens "The Hero of Berlin."