Guest Blogger: Cindy Galway Buys

It's IntLawGrrls' great pleasure to welcome Cindy Galway Buys (left) as today's guest blogger.
Associate Professor of Law and Director of International Programs at Southern Illinois University School of Law in Carbondale, Cindy directs both the Immigration Detention Project and the summer study-abroad program in Ireland. Her courseload includes International Law, International Business Transactions, Constitutional Law, and Immigration Law, and her publications (here and here) reflect her expertise in these fields.
Cindy holds an LL.M. in International and Comparative Law, with distinction, from the Georgetown University Law Center, where she earned the Chetwood Prize for the Most Outstanding Academic Performance. She earned her J.D. and an M.A. in International Relations from Syracuse University in New York, where she served as an associate editor of the Law Review.
Before entering academia in 2001, Cindy practiced in the private and public sectors in Washington, D.C. At the U.S. Department of Commerce, she defended agency decisions before the Court of International Trade, the U.S. Court of Appeals for the Federal Circuit, and panels of the World Trade Organization.
She completed a stint as a Fulbright Senior Specialist in Vilnius, Lithuania, last year; her numerous professional affiliations include service as Co-Chair of the Teaching International Law Interest Group of the American Society of International Law and member of the Executive Committee, Section on International Law, Association of American Law Schools.
In her guest post below, Cindy posits a way forward respecting the United States' obligations under international law in the aftermath of recent Vienna Convention on Consular Relations litigation, before the U.S. Supreme Court and the International Court of Justice. Another topic of current research is linkage between Nottebohm (Liechtenstein v. Guatemala) (International Court of Justice, 1953) and the World War II-era U.S. detention program in Latin America.

Heartfelt welcome!

The better to implement U.S. obligations

(Thanks to IntLawGrrls for this opportunity to contribute this guest post)

Increasingly, the proper implementation of the United States’ international obligations in domestic law has presented difficult challenges in the structural context of the U.S. legal system. Challenges are evident at multiple levels of that structure; that is, among the branches of the federal government and between the states and the federal government.

In my recent article, The U.S. Supreme Court Misses the Mark: Towards Better Implementation of the United States’ International Obligations (2008), I use the efforts of the White House (below right) to implement the judgment of The Hague-based International Court of Justice (courtroom above), in the Case Concerning Avena and Other Mexican Nationals (2004), to illustrate some of the problems presented by this issue.

International law scholars, not to mention IntLawGrrls readers of these prior posts, will remember the backstory:

In Avena, the ICJ found that that the United States had breached its obligations under Article 36 of the 1963 Vienna Convention on Consular Relations, for the reason that authorities within the United States had not informed certain arrestees, Mexican nationals, of their treaty-based rights to consular notification. The ICJ further found that the appropriate reparation would consist of providing, by means of the United States’ own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the case.

In the domestic implementation stage of that decision, a 2005 memorandum by President Bush asserted the power to order state courts to provide review and reconsideration of the Mexican nationals’ judgments in state criminal proceedings. The President’s claim to such authority was troubling, because it appeared to violate structural principles of separation of powers and federalism. Ultimately, the U.S. Supreme Court (below left) rejected the President’s claim to such unilateral authority in Medellín v. Texas (2008), in a decision that leaves unanswered many questions regarding the proper implementation of the United States, international obligations.

My article analyzes the strengths and weaknesses of arguments that were made in the Medellín litigation regarding the proper way to implement the ICJ judgment consistent with the United States' constitutional structure. It then places the litigation in the larger context of the debate regarding the implementation of the United States’ international obligations, examining: from a separation-of-powers perspective, the proper role of each branch of the federal government; and from a federalism perspective, the interplay between the state and federal governments. Finally, the article provides some suggestions as to how the United States can better handle implementation of these obligations in the future:

► 1st, the U.S. Supreme Court should pay more than lip service to its own statement, at footnote 9 of Chief Justice John G. Roberts' opinion for the Court, that ICJ decisions are entitled to “respectful consideration.” The article describes how a true respectful dialogue between the two courts might proceed.

► 2d, with respect to the political branches, when ratifying a treaty the Senate (left) and the President should provide clearer directions as to how the treaty ought to be implemented, and whether and what types of private claims will be allowable under the treaty.

► 3d, the federal and state governments should establish a better consultation process, particularly for treaties that affect areas of traditional state regulation.

Through these methods, it is hoped that treaties will be implemented more effectively in U.S. law, and that better relations will result, both externally with the United States’ treaty partners and internally among the various branches and levels of government.

State Department invokes VCCR

'The Swiss ambassador did today receive formal notification by the Iranian government that it has three Americans in detention. Iran has obligations under the Vienna Convention, and we demand consular access at the first opportunity.'

Thus commented Philip J. Crowley, Assistant Secretary, Bureau of Public Affairs, U.S. State Department, yesterday on what CNN called "the first official notice through diplomatic channels," confirming reports that 3 American students were arrested recently "when they strayed across the border while hiking in the mountains of Iraqi Kurdistan." (map credit) The channel went Iran-to-Switzerland-to-United States because, as we noted a while back, the countries at either end of the chain do not have diplomatic relations with one another. A glance through IntLawGrrls' prior posts regarding the treaty to which Crowley referred -- the Vienna Convention on Consular Relations, as it has played out in cases like Medellín v. Texas (U.S. Supreme Court, 2007) and United States v. Iran (International Court of Justice, 1980) -- will place Crowley's comment in further context.

On June 27

On this day in ...
… 1831, Marie-Sophie Germain (right), French mathematician best known for her work in number theory, died in Paris. (image credit) Germain began teaching herself mathematics using her father's library when she was 13. Her parents felt that her interest was inappropriate and did all that they could to discourage her, though they relented in the face of her determination. Under the pseudonym M. LeBlanc, Sophie submitted a paper on analysis to Professor Joseph-Louis Lagrange of the École Polytechnique. Its originality and insight made Lagrange look for its author. When he discovered "M. LeBlanc" was a woman, his respect for her work remained, and he became her sponsor and mathematical counselor. In 1804, Germain began corresponding with the German mathematician, Carl Friedrich Gauss, whom she showed her work on a math problem known as Fermat's Last Theorem. Her work, the concept of the Sophie Germain prime, is arguably her greatest contribution to mathematics. In 1815, she won the prize for her entry for the Institut de France’s elasticity competition. Partly as a result, the French Academy of Sciences welcomed her as the first woman attendee who was not a member's wife.
… 2001, the International Court of Justice (the seat of which is the Peace Palace at The Hague, left) ruled against the United States in its judgment in the LaGrand Case. U.S. authorities had been required under the Vienna Convention on Consular Relations, of which the United States is a state party, to inform the defendants, foreign nationals, of their right to receive consular assistance from their government at the time of their arrest. They failed to do so and proceeded to carry out sentencing. The ICJ ruled that the United States had violated international law, stating additionally, for the first time in its history, that provisional measures issued by the Court were legally binding. (photo credit)

(Prior June 27 posts are here and here.)

That Pesky Vienna Convention Again . . .

Seemingly an unlikely source for human rights advocates, the Vienna Convention on Consular Relations (VCCR) sat quietly for over thirty years until creative lawyers used it to attack death penalty sentences in the United States in the Breard, LaGrand, and most recently, Medellin cases. Those cases were unsuccessful in obtaining stays of execution despite the U.S. government's failure to notify consular officials of these foreign nationals' arrest, trial, and sentencing, in violation of the VCCR. (As Diane Amann posted here, the Joint Task Force on Treaties in US Law is currently debating the question of the VCCR's status in U.S. law.) Regardless of the U.S. goverment's willingness to accept responsibility for upholding the treaty, reporting its violations of the VCCR retain at least some shame value.

That's presumably the view held by the Center for Public Policy Priorities, a Texas non-profit that yesterday released a report, A Child Alone and Without Papers, on the removal of undocumented unaccompanied children from the United States. In an analysis of the myriad rights violations that the Department of Homeland Security's agents perpetrate against unaccompanied minors (ignoring requests for medical attention, failing to provide food and water, striking and knocking down children), the report notes that Article 37 of the VCCR mandates consular notice where appointment of a guardian appears to be in the interest of a minor. Combined with Article 36, the provision used in the cases noted above that directs officials to notify a detained non-citizen that she can contact her consulate, it would appear that the United States is required to notify relevant consulates of the presence of unaccompanied undocumented minors in immigration detention. Needless to say, DHS officials routinely fail to notify consulates, and instead deport minors to unsafe situations in which they may be prey to traffickers and other abusive situations.

The report recommends various protocols to ensure the safe treatment of undocumented unaccompanied minors in the United States and their safe return to their home country; hopefully the new administration will set up formal structures to protect the rights of these children and uphold our international obligations. It would be a start for DHS agents to recognize that immigrants, undocumented and otherwise, are humans with rights. In the words of Gilberto, a 13-year old Mexican boy, “Don’t treat us like dogs. They treat us like dogs.” 'Nuff said.

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)

Three Narratives of Medellín v. Texas

Much ink has already been spilled about the Medellín v. Texas decision – the subject of my IntLawGrrls guest post – with much more to come. (For a summary of the case and its holding, see my ASIL Insight here.) The first published law review symposium on the case was convened by Professor Valerie Epps for the Suffolk Transnational Law Review and included important contributions from Bill Schabas, Christina Cernas, John Murphy, Jordan Paust, John Cerone and Craig Jackson. I have argued elsewhere that the story of Medellín is one of the Vienna Convention on Consular Relations (VCCR) being exploited as a “norm portal” that has permitted transnational advocacy groups to contest American exceptionalism on the death penalty. Building from that work. my own modest contribution to the Suffolk symposium, Three Narratives of Medellin v. Texas, views the case through a wide lens which sees the Supreme Court decision as part of a broader story of international legal process:

Analysis of Medellín is likely to fall into one of the three narratives to have emerged from the arguments of the parties, the briefs of amici, and outside commentary: (1) Internal/Constitutionalist: Draws on the U.S. Constitution as the final word on applicable law and modes of judicial interpretation in the case; (2) External/Internationalist: Looks to the tenets of public international law to identify first order principles for understanding the case and appropriate judicial outcomes; and (3) Transnational/Intersystemic: Seeks to explain Medellín through the phenomenon of multiple, interactive systems of law through which changes in normative behavior occur. While the first two narratives dominated the parties' submissions to the Court and form the space within which much of the academic debate has taken place, it is the third narrative that provides a more complete story of how a death penalty case in Texas came to be litigated before both the ICJ and the Supreme Court.

Medellín represents an excellent case study for process-oriented theories of how international human rights norms move across national borders and between and among local, national and transnational actors and provides important detail about the domestic and international mechanisms that promote norm integration and, significantly, can serve as barriers to norm integration. That this case is fundamentally a result and reflection of U.S. death penalty exceptionalism is broadly recognized by the foreign states that have challenged the U.S. at the International Court of Justice (ICJ), even though they sought to address the death sentences against their nationals through the seemingly neutral procedural device of consular notification. I don’t mean to suggest that the questions of presidential power, federalism, self-execution of treaties and ICJ enforcement powers at the heart of the case (and the Internal/Constitutional and External/Internationalist narratives) are uninteresting or unimportant. Rather, I am arguing that they are merely one part of the story, representing doctrinal spaces in which the underlying question of American exceptionalism to international human rights regulation is being contested.
To illustrate these disparate processes and actors at work, here are two examples from recent press accounts of the case. The first is a May editorial in the Corpus Christi Caller-Times calling on Texas to do the right thing and grant José Medellín (above left) the additional hearing that the ICJ held was required to remedy the breach of the VCCR notification provisions at the time of Medellín's arrest:

Medellín deserves his justice, but the United States has its obligations, too. The obligation is to honor the treaty it agreed to when it signed the 1963 Vienna Convention. That agreement says that when people are arrested abroad, they have a right to have access to consular officials from their own country.
That right protects Americans, too. And perhaps Americans in particular because thousands of Americans travel abroad on vacations, on family trips and on business. Being arrested and detained by foreign police, being put in a foreign jail, under strange laws can be frightening. Americans under arrest have the right to access American consular officials because of treaty obligations. But if the United States ignores those obligations, so can foreign countries.

[snip]

It’s highly doubtful that holding a hearing on the violations would change the outcome of the prosecution. Medellin’s prosecution seems to have followed every required step that state law requires. But ordering a hearing would satisfy the process of the international treaty and more importantly send the message that the United States takes treaty obligations seriously.

To get a flavor for how the issue plays out with the Corpus Christi readership – including how the question of consular reciprocity gets wrapped up with local prerogatives over the death penalty and perceptions of fairness of foreign criminal justice systems – check out the comments section below the editorial. At a minimum, the expressed "local" interest – in this case a community made up of a large active and retired military population, close to an international border – provides evidence for why we ought to be skeptical of rational choice reciprocity analysis of why states obey international law that takes into account only an aggregated or monolithic "national interest."
The second example is from the ICJ’s press release citing to the Mexican Government’s request of last month for interim measures seeking to compel the U.S. to comply – where the Supreme Court declined to do so – with the Avena decision:

Mexico explains that "while the United States may use ‘means of its own choosing’ under paragraph 153 (9) [of the Court’s Judgment], the obligation to provide review and reconsideration is not contingent on a success of any one means. As a result, the United States cannot rest on a single means chosen; it must provide the requisite review and reconsideration and prevent the execution of any Mexican national named in the Judgment unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation". Mexico further asserts that "requests by the Mexican nationals for the review and reconsideration mandated in their cases by the Avena Judgment have repeatedly been denied". It also states that "on 25 March 2008, the Supreme Court of the United States determined in the case of José Ernesto Medellín Rojas . . . that the Judgment itself did not directly require U.S. courts to provide review and reconsideration under domestic law" and that "while expressly recognizing the United States obligation to comply with the Judgment under international law, [it] further held that the means chosen by the President of the United States to comply were unavailable under the U.S. Constitution and indicated alternate means involving legislation by the U.S. Congress or voluntary compliance by the State of Texas". Mexico adds that "it understands the United States obligation under paragraph 153 (9) to extend to taking the steps set forth by the Supreme Court, including legislative action at the federal or state levels or compliance by state courts or the state legislatures".
In its Request for interpretation, Mexico goes on to explain that, since the decision of the Supreme Court was issued, "Texas . . . has scheduled Mr. Medellín for execution on 5 August 2008". It insists that "the actions of Texas, a political subdivision of the United States, engage the international responsibility of the United States" and that "the United States cannot invoke its municipal law as justification for failure to perform its international legal obligation under the Avena Judgment". It also observes that "at least four more Mexican nationals are also in imminent danger of having execution dates set by the State of Texas"

It is in this push and pull of the local, the national and the international that norms of behavior will emerge. Viewed from this perspective, there is no claimed superiority of the national or the international, the doctrinal or political, but an ongoing process through which shifts in human rights behavior may be achieved.

(Cross-posted at Opinio Juris blog)

On May 24

On this day in ...
... 1980, the International Court of Justice rendered its decision in United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran). The court ruled that Iran was responsible for breaches of obligations to the United States -- related to the Vienna Convention on Consular Relations -- arising out of the November 4, 1979, takeover of the U.S. Embassy in Tehran. The court ordered immediate release of the hostages then taken and payment by Iran of reparations to the United States. But the hostages would not be released until January 20, 1981, minutes after the U.S. Presidency was transferred from Jimmy Carter to Ronald Reagan. The Iran-U.S. Claims Tribunal, still in operation at The Hague, then was established to resolve disputes between the 2 countries.
... 1830, the nursery rhyme "Mary Had a Little Lamb" was published. Its author was New Hampshire resident Sarah Josepha Hale, 42, a lifelong women's rights activist whose novel Northwood (1827) had caused a stir because of its treatment of slavery. In "Mary" Hale turned into verse the true story of one Mary Sawyer, who used to take her lamb to her hometown school in Sterling, Massachusetts. Among the many versions of the song is this one by former Beatle Paul McCartney. (image credit)

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)

On this day

On March 31, ...
... 2005, the U.N. Security Council referred "the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court." In its Resolution 1593, the Council acted pursuant to coercive powers granted it in Chapter VII of the U.N. Charter. As posted here, here, here and here, the prosecution's named suspects it believes responsible for international crimes in that region of Sudan, but Sudan's government so far has refused to hand them over to the ICC. Earlier this month former U.N. Secretary-General Kofi Annan questioned whether all in the international community "have yet fully lived up to" their "responsibility -- notably in Darfur." (credit for photo above of Security Council meeting room)
... 2004, the International Court of Justice, in Avena and Other Mexican Nationals (Mexico v. United States), ruled that the United States had violated the Vienna Convention on Consular Relations by failing to inform noncitizen detainees of their right to contact their consulate. The ICJ called upon the United States to provide review and reconsideration of capital convictions and sentences at issue, as our colleague William Aceves explained in an ASIL Insight. Last week the U.S. Supreme Court decided a case arising out of the Avena matter -- Medellín v. Texas, about which we've posted here, here, here, and here --adversely to defendant/respondent. Our colleagues at Opinio Juris, and their assorted guests, produced an "insta-symposium"; hope to comment more here after digesting the 44-page judgment. credit here for above left photo of ICJ courtroom and here for photo at right of Supreme Court's courtroom)

Diagonal Dialogue

We had the pleasure of hosting Professor Melissa Waters (left) yesterday at Temple's International Law Colloquium, and so received a sneak preview of her current work-in-progress, Diagonal Dialogue: Giving "Respectful Consideration" to International Courts' Treaty Interpretation. As a self-described "moderate internationalist" (with a motto of "Hell, maybe"), Prof. Waters is interested in charting out the territory that lies between a strictly monist and a strictly dualist vision of domestic incorporation of international law. If we label a monist vision as vertical and a dualist vision as horizontal, this paper explores the many diagonal lines that can be drawn between these two extremes. Taking the Sanchez-Llamas v. Oregon decision as a case study, Prof. Waters formulates a framework for understanding the phrase used by all nine Supreme Court justices in describing how U.S. courts should treat the International Court of Justice's interpretation of the Vienna Convention on Consular Relations: "respectful consideration." The paper aims to create a test that can be applied to similar cases while remaining faithful to the analysis used in Sanchez-Llamas -- a difficult but important task. While Prof. Waters is still working through the knots of this framework, her initial efforts show promise, especially in reaching her goal of speaking to both the internationalists and the nationalists, the monists and the dualists, and finding a method of domesticating international law with which we can all be comfortable -- a tall order indeed. You go, grrl!

Medellín & death in the heart of Fox' Texas

Am happy for opportunities to talk IntLaw with the media; seems part of a prof's job to try to help others make some sense of the intricate ways that law aims for fair and nonforcible settlement of disputes. Most Fox News Radio interviews I did this morning went just fine, but one reminded just how difficult the task of IntLaw explanation can be.
Listening patiently to the 7 a.m. drivetime prattle in San Antonio, Texas. Ready to talk about Medellín v. Texas, set for oral argument today in D.C.
As we've posted, the Supreme Court's considering whether President George W. Bush overstepped when he ordered state courts to enforce the International Court of Justice judgment in Mexico v. United States (Avena) (2004) by means of "review and reconsider[ation]" of the cases of Medellín and 50 other Mexican nationals condemned to death without being told of their right under the Vienna Convention on Consular Relations to call their consulate for help with their defense. Phrased another way, the question's whether Texas' highest criminal court was in the right when, citing judicial independence, it told Bush that he was wrong. A fascinating mix of questions of state, national, and international law.
The intro line to the Texas interview? "Sovereignty at stake."
1st words out of the radio host's mouth? The gory details of the crime for which Medellín's been convicted, gang rape and murder of 2 young women when he was 18. Establishing spin for the rest of the interview, the account reminded of the frame in which even the most ordinary criminal cases often are presented to the public.
Gist of the questions? Where do these international courts come off thinking they can tell us (read U.S.) what to do? The answer, that the ICJ's a court on which the United States insisted in 1945, and that what's at stake is whether the United States can keep its promises, did not seem entirely welcomed.
Final question added a note of immigration to the already heady law & order/sovereignty stew. It went something like this: Bush's made a habit throughout his presidency of refusing to go along with international law. Isn't his backing off here about nothing but politics with Mexico?Interview over, here's a question: What can IntLaw types do to stake a claim to America's heartland?

First Day of October for the U.S. Supreme Court: Must States Comply with International Law?

This morning, the United States Supreme Court opens its new term with a number of international law and executive power v. power of Congress cases. Perhaps of keenest interest to those following the battle between states rights and compliance with international law is Medellín v. Texas. The Court will consider whether the President can require states to implement and enforce ICJ decisions and U.S. compliance with international law.
Specifically, the questions presented are:
(1) Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined on Feb. 28, 2005, that the states must comply with the United States' treaty obligation to give effect to the Avena judgment of the International Court of Justice in the cases of the 51 Mexican nationals named in that March 2004 judgment?
(2) Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?
Jennifer Koons of the Medill News Service quotes the U.S. Solicitor General in his reply brief submitted in support of Medellín as arguing, perhaps novelly on behalf of the President, that "a state court should not have the final word on whether the United States as a nation abides by its treaty obligations..." and "It is the unique role of this Court, as the final authority on questions of federal law, to protect the federal government's constitutional power to enter into enforceable treaties and to conduct the foreign relations of the United States without interference from the courts of the several states."
So, as I ponder the seeming disparities of these arguments with the actual practice of our Administration in its compliance with principles of international law, I wonder whether it might be time to hold the President to his brief and ask, "Mr. President, would you please tell the federal government and the states to comply with our other obligations under international law, such as prohibiting the sentencing of children to life without parole?" I will be among those following the Medellín case with enormous interest.

Circuits split on consular-warning lawsuits

A divided panel of the U.S. Court of Appeals for the Ninth Circuit this week rejected a civil suit brought by the victim of a violation of Article 63 of the 1963 Vienna Convention on Consular Relations, requiring that noncitizen arrestees be told they may call their consulate. Judge Pamela Rymer (right), joined by Judge Arthur L. Alarcón, wrote in Cornejo v. City of San Diego that "the right to protect nationals belongs to States party to the Convention," and that "no private right is unambiguously conferred on individual detainees"; therefore, 42 U.S.C. § 1983, a federal civil rights statute, offered no path to relief.
In so ruling, the majority parted company not only with the dissenter, Senior Judge Dorothy W. Nelson (left) -- who wrote that "it is clear that Article 36(1)(b) does confer individual rights" -- but also with the opinion that Judge Diane Wood (below right) wrote for a unanimous Seventh Circuit panel last March in Jogi v. Voges, 480 F.3d 822. (The Jogi decision, about which we posted here, may be viewed free here; log-on required.)
Circuit splits sometimes portend eventual review of an issue by the U.S. Supreme Court. In any event, there's no doubt that Court will grapple soon with aspects of the Consular Relations Convention. For this circuit split arises just weeks before consideration of the enforceability vel non of Avena, a 2004 International Court of Justice judgment that called for reconsideration of noncitizens who'd been convicted in the United States without having been told of the right of consular access. The high court, whose October Term 2007 begins Monday, will argument in that case, Medellín v. Texas, on October 10.

Sovereign Democracy?

In a couple of earlier posts (here and here), "Grace O'Malley" [IntLawGrrl Diane Marie Amann] and I discussed the fact that “democracy” has many meanings. Judy Dempsey writes in the Herald Tribune that Russia is now openly advocating a repressive political philosophy it calls “sovereign democracy”: subordinating democratic values to national interests. According to this “philosophy”, the foreign supervision Russia is subject to as a member of the Council of Europe (COE) and the Organization for Security and Cooperation in Europe (OSCE) is nothing more than foreign meddling in Russia’s internal affairs. Thus, Russia is currently blocking reforms at the European Court of Human Rights (ECHR) (at right), the court established in Strasbourg, France to hear human rights claims from individuals living in the 47 COE member states. Judges at the Court are seeking reforms to help deal with the 89,000-case backlog (while 90% of ECHR claims are dismissed as inadmissible, they still must be examined individually). Russia joined the court in 1996 and implemented the European Human Rights Convention in 1998. Since then, over 48,790 complaints have been filed against Russia – more than against any other country. Of those, 10,569 were lodged in 2006 alone, when the ECHR found 96 violations. As COE chair last year, Russia suggested the Council shift priorities away from human rights to education, culture, illegal migration, human trafficking and combating terrorism. Russia is also trying to curb election-monitoring activities undertaken by the Office for Democratic Institutions and Human Rights in Vienna. A division of the OSCE founded in 1976, the Office monitored elections in Georgia, Kyrgyzstan and Ukraine in which Russian-backed regimes were toppled by pro-democracy revolutions (below). Despite its criticisms of these organizations, however, Russia is not renouncing membership. Instead, it created the Collective Security Treaty Organization in 2003, which includes Armenia, Belarus, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. Political cooperation and collective security are the main purposes; interference in member states' internal affairs is strictly forbidden. Russia is also supporting the Shanghai Cooperation Organization. which was founded in 2001 to fight terrorism and cross-border crime and, again, includes Russia and several Central Asian countries. This organization also directly competes with the Office for Democratic Institutions in observing elections. As Dempsey points out, this is a sad turn-around “for a rich and self-confident country that during the 1990s had fought hard to be accepted into Europe's human rights organizations”. While I cannot help but agree, I also cannot help but note that “Guantánamo”: from the camp itself to the Patriot Act, NSA wiretapping, CIA renditions and secret detention camps, abuse and disappearance of Muslim prisoners within the US, and withdrawing from the Optional Protocol to the Vienna Convention on Consular Relations to avoid scrutiny of our application of the death penalty to foreign citizens are all signs of a return to sovereign democracy here at home.

Gitmo back at the High Court

Notwithstanding this Term's dearth of such references, transnational considerations are likely soon to return to the Supreme Court. Today the Court granted petitions for writs of certiorari in 2 Guantánamo detainee cases that it earlier refused to hear. Coupled with the prior grant concerning internal enforcement of the Vienna Convention on Consular Relations in Medellín, this grant portends an OT '07 filled with review of foreign and international law and context.

Thanks to SCOTUSblog, here (with some hypertexting in lieu of cites) are the precise questions the Court will review in the Gitmo cases:

Boumediene
1. Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
2. Whether Petitioners' habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Al Odah
1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?
2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?
3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?
4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas cases, thereby creating serious constitutional issues?

Let the briefing begin.

IntLaw claims in state court?

Check out the new ASIL Insight analyzing Jogi v. Voges, No. 01-1657 (7th Cir. Mar. 12, 2007), in which a U.S. federal court grapples once again with the ramifications of American officials' failure to comply with U.S. obligations, pursuant to Article 63 of the 1963 Vienna Convention on Consular Relations, to inform non-U.S. arrestees of their right to seek assistance from their consulate.
Last Term a divided U.S. Supreme Court assumed in Sanchez-Llamas v. Oregon that defendants could invoke such a failure in their criminal cases, yet ruled that proof of failure would not warrant suppression of evidence gathered as a result of that failure. The Court will revisit the question next Term in Medellín v. Texas, in which the defendant's claim is bolstered by a 2004 judgment of the International Court of Justice.
In Jogi the Seventh Circuit turned aside a claim that plaintiff's civil lawsuit could be based on the 1789 Alien Tort Statute, instead looking to ordinary federal question jurisdiction.
The authors of this Insight -- Chimène Keitner, new to the faculty at University of California-Hastings, and Alabama Law Dean Kenneth C. Randall -- warn that "federal question jurisdiction will not necessarily encompass a wider set of potential claims," and add that "as federal case law progressively circumscribes the available causes of action under the" Alien Tort Statute,

plaintiffs may seek to file international law claims in state courts as claims for municipal torts—the very “torts” that the First Congress sought to bring within federal jurisdiction because of their potential implications for international affairs.