Medellín—Injustice Roberts Grows a Long Nose

The four “right-wing” Justices of the Supreme Court, joined by Justice Kennedy, and fol­lowing other recent decisions, have held that treaties “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.” Me­del­lín v. Texas, 06–984 (2008), Slip Opinion at 8–9. This is contrary to our long-standing case law. Trea­ties as such are not self-execut­ing or oth­er­wise (we shall denote non-self-executing treaties as “politically-executed”). Indivi­dual provi­sions are self-execut­ing by the nature of their language, without reference to any “conveyed in­tention” some­where in the text. The Medellín formula is a myth perpetrated by the Court’s “right wing”—Scalia, Thom­as, Alito and Roberts, and similarly-minded judges on the lower court bench­es.

Self-executing and politically-executed provisions

The framers clearly intended that treaty provisions be self-executing, unless they call for specific action by the political branches. In promoting the proposed Constitution, Al­ex­an­der Ham­il­ton wrote, “The treaties of the United States, to have any force at all, must be con­sidered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.” The Federalist No. 22,[1] emphasis add­ed. It is difficult to see the role of enabling legislation in this passage. The treaties, not any enabling leg­is­lation, must be “part of the law of the land”. The import of the treaties, not of enabling legisla­tion, must “be ascertained by judicial determinations.”

From the start, the Supreme Court upheld Hamilton’s view. In Ware v. Hylton, 3 U.S. 199 (1796), the ad­minis­trator of the estate of a British citizen sought to collect a debt, part of which had been paid to the state of Virginia under “an act for sequestering British prop­erty”. At 199. The Court had to decide whether the fourth article of the treaty with Great Britain of 1783, read­ing, “It is agreed that creditors, on either side, shall meet with no lawful im­ped­iment to the recovery of the full value, in sterling money, of all bona fide debts, here­tofore contracted,” at 239, nullified the Virginia sequestering law, thereby enabling the estate to re­cover the full value in sterling.

Justice Chase, concurring in judgment[2] in favor of the estate, wrote,

I consider the fourth article in this light, that it is not a stipulation that cer­tain acts shall be done, and that it was necessary for the legislatures of individual states, to do those acts; but that it is an express agreement, that certain things shall not be permitted the American courts of justice; and that it is a contract, on behalf of those courts, that they will not allow such acts to be pleaded in bar, to prevent a recovery of certain British debts. ‘Creditors are to meet with no lawful impediment, etc.’ As creditors can only sue for the recovery of their debts, in courts of justice; and it is only in courts of justice that a legal impediment can be set up by way of plea, in bar of their actions; it appears to me, that the courts are bound to overrule every such plea, if contrary to the treaty. . . .

. . . . On the best investigation I have been able to give the fourth article of the treaty, I cannot conceive, that the wisdom of men could express their mean­ing in more accurate and intelligible words, or in words more proper and effectual to carry their intention into execution. Am satisfied, that the words, in their natural import, and common use, give a recovery to the British creditor from his original debtor of the debt contracted before the treaty, notwithstanding the pay­ment thereof into the public treasuries, or loan offices, under the authority of any State law. . . .

At 244–245. Two concepts appear here which defined our case law on treaties through the 20th century: first, the distinction between specific acts that will be done, and rules that will be applied by the courts, and second, that the words of the treaty “give a recovery to the British cre­ditor.” The courts cannot compel the political branches to do specific acts, just because they were promised in a treaty, but if a rule is set down affecting individual rights, the courts will apply it, without the aid of further legislative language.

Justice Chase further held that treaties by their lan­guage override state constitutions and laws, when there is a conflict, without any need to analyze the treaty for an “intent” to be self-executing:

If doubts could exist before the establishment of the present national govern­ment, they must be entirely remov­ed by the 6th article of the Constitution, which provides ‘That all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution, or laws, of any State to the contrary notwith­standing.’ . . . A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. . . . It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legisla­ture, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole.

At 236–237.
Five years later, in United States v. The Peggy, 5 U.S. 103, 109–110 (1801), the Court elaborated the distinction between self-exe­cuting and politically-executed language:

The Constitution of the United States declares a treaty to be the supreme law of the land. Of consequence, its obligation on the courts of the United States must be admitted. It is certainly true that the execution of a contract between nations is to be demanded from, and, in the general, superintended by the executive of each nation, and therefore whatever the decision of this Court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of Congress. . . .

Foster v. Neilson, 27 U.S. 253, 314–315 (1829), illustr­at­ed the distinction with hypo­the­tical variations in the language of the provision providing for the confirmation of land grants is­sued by the King of Spain, prior to ceding Florida to the United States:

. . . . Our constitution de­clares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the sti­pulation import a contract, when either of the parties engages to perform a parti­cular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the con­tract before it can become a rule for the Court.

The article under consideration does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of con­gress which were repugnant to it; but its language is that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised must be the act of the legis­lature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject. . . .[3]

The distinction between self-executing and politically-executed language was described again, with absolute clarity, in The Head-Money Cases, 112 U.S. 580, 598–599 (1884):

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the govern­ments which are parties to it. If these fail, its infraction becomes the subject of interna­tional negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citi­zens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforce­ment as between private parties in the courts of the country. An illustration of this char­acter is found in treaties, which regulate the mutual rights of citizens and sub­jects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that ‘this constitution and the laws made in pur­suance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.’ A treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

Thus, if a treaty provision prescribes “a rule by which the rights of the private citizen or subject may be determined”, it is self-executing.[4]

Self-executing language

Until the end of the 20th century, the Court consistently upheld this formula. In re Metzger, 46 U.S. 176, 188–189 (1847), explicitly rejected the claim the legislation was needed to give ef­fect to the treaty:

It is contended that the treaty, without the aid of legislation, does not authorize an arrest of a fugitive from France, however clearly the crime may be proved against him; that the treaty provides for a surrender by the executive only, and not through the instrumentality of the judicial power.

The mode adopted by the executive in the present case seems to be the proper one. Under the provisions of the Constitution, the treaty is the supreme law of the land, and, in regard to rights and responsibilities growing out of it, it may become a subject of judicial cognizance. . . .

Whether the crime charged is sufficiently proved and comes within the treaty are matters for judicial decision, and the executive, when the late demand of the surrender of Metzger was made, very properly as we suppose, referred it to the judgment of a judicial officer. The arrest which followed and the committal of the accused subject to the order of the executive seems to be the most appropriate, if not the only, mode of giving effect to the treaty.

U. S. v. Rauscher, 119 U.S. 407, 419 (1886) held that

The treaty of 1842 being, therefore, the supreme law of the land, of which the courts are bound to take judicial notice, and to enforce in any appropriate pro­ceeding the rights of persons growing out of that treaty, we proceed to in­quire, in the first place. . .into the true construction of the treaty. . . .

Rauscher emphasized that the words of the Supremacy Clause, “and the Judges in every State shall be bound thereby,” mean what they say:

. . . .under the doctrine that the treaty is the supreme law of the land, and is to be observed by all the courts, state and national, ‘anything in the laws of the states to the contrary notwithstanding,’ if the state court should fail to give due effect to the rights of the party under the treaty, a remedy is found in the judicial branch of the federal government, which has been fully recognized. This rem­edy is by a writ of error from the supreme court of the United States to the state court which may have committed such an error. The case being thus remov­ed into that court, the just effect and operation of the treaty upon the rights asserted by the prisoner would be there decided. . . .

Id., at 430–431.

Similarly, Whitney v. Robertson, 124 U.S. 190 (1888): “By the constitution, a treaty is plac­ed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that in­stru­ment to be the supreme law of the land, and no superior efficacy is given to either over the other.”

In re Cooper, 143 U.S. 472, 503 (1892): where “rights are dependent upon the construction of acts of Congress or of a treaty”, and Congress has not clarified the construction of the treaty by legislation, the courts are oblig­ed to construe the treaty and render judgment.

The Paquete Habana, 175 U.S. 677, 700 (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right de­pending upon it are duly presented for their determination.”

Maiorano v. B. & O. RR Co, 213 U.S. 268, 272–273 (1909): “A treaty, within those limits , by the express words of the Constitution, is the su­preme law of the land, binding alike national and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights.”

Asakura v. Seattle, 265 U.S. 332 (1924): A treaty granting Japanese citizens the right to engage in business and trade

is binding within the State of Washington. . . . The rule of equality established by it cannot be rendered nugatory in any part of the United States by municipal ordinances or state laws. It stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States. It operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts. . . .[5]

Bacardi v. Domenech, 311 U.S. 150, 161 (1940): The treaty “on ratification became a part of our law. No special legislation in the United States was necessary to make it effective.”

With like consistency, the Court has applied the principle of self-executing treaty language. Hopkirk v. Bell, 7 U.S. 454 (1806), held that, under the treaty with Great Britain of 1782, a time bar to a claim by an alien petitioner for re­payment of a debt cannot in­clude time before the war of independence. That he had a private right of action was never questioned.

In Fairfax’s Devisees v. Hunter’s Lessee, 11 U.S. 627 (1812), the alien petitioner pre­vailed in his bid to enforce his right under the treaty with Great Britain of 1794, to take title to land will­ed to him. That he had a private right of action was never questioned.

In Harden v. Fisher, 14 U.S. 300 (1816), the plaintiffs sought to eject the defendants from land claimed by plaintiffs under rights granted by the treaty with Great Britain of 1794. The case was remanded because the jury’s find­ings were insufficient for an appellate decision, but that the plaintiffs had a private right of action was never ques­tioned.

In Chirac v. Chirac’s Lessee, 15 U.S. 259 (1817), a Maryland statute requiring non-resi­dent aliens to settle on their property in Maryland, in order to retain full rights of ownership, at 272–273, was nullified by a treaty with France granting French citizens full rights of ownership to real proper­ty, including the right “to dispose of the same by testament or otherwise, as they shall think prop­er.” At 274. That enabling legislation was re­quired was never considered.

In Orr v. Hodgeson, 17 U.S. 453 (1819), treaties with Britain vindicated the rights of two British subjects to inherit land, without ref­erence to enabling legislation.

Hughes v. Edwards, 22 U.S. 489, 496 (1824): The 1794 treaty with Great Britain “applies to the title , whatever that may be, and gives it the same legal validity as if the parties were citizens.” That enabling legislation was re­quired was never considered.

In U. S. v. Percheman, 32 U.S. 51 (1833), the court held that the words “shall be ratified and confirmed,” are properly construed to im­port that the land titles in question “‘shall be rati­fied and confirmed,’ by force of the instrument itself.” (See Foster v. Neilson, above.) That enabling legislation was re­quired was never considered.

In Hauenstein v. Lynham, 100 U.S. 483 (1879), alien petitioners, heirs-in-law of a deceased Virginia property holder, sought to recover the proceeds of the sale of his escheated property. A treaty with Switzerland provided that aliens be permitted to sell inherited real property with­in a fixed time, should the property be in a state, such as Virginia, which does not allow aliens to hold such property. The length of time was generally as provided by state law. Virgin­ia having no such sta­tu­tory window, the escheator ar­gued that therefor, aliens in Virginia were not pro­tected by the treaty provision. The Court, following the long-established principle that treaty rights should be con­strued liberally, held the opposite, that in Virginia, there was no time limit. That enabling legislation was re­quired was never considered.

In Wildenhus’s Case, 120 U. S. 1 (1887), a treaty with Belgium restricting the juris­dic­tion of local Ameri­can authorities over incidents on Belgian merchant ships to those disorders “of such a nature as to disturb tranquility and public order on shore,” at 5, was interpreted to grant local jurisdiction in the case of a murder on board a ship. The Court made the point that “The treaty is part of the supreme law of the United States, and has the same force and effect in New Jersey that it is entitled to elsewhere.” At 17. That enabling legislation was re­quired was never considered.

In De Geofroy v. Riggs, 133 U.S. 258 (1890), a treaty with France provided that in states where French citizens are allowed to hold real estate, they shall have the same freedom to dis­pose of it as citizens do. The Court held that the District of Columbia is covered by this treaty as if it were a state. That enabling legislation was required was never considered.

In Asakura v. City of Seattle, 265 U.S. 332 (1924), a Seattle ordinance restricted ownership of pawnshops to citizens. The Court held that the ordinance was in violation of the 1911 Treaty with Japan, granting Japanese citizens the right to operate businesses in the United States. That enabling legislation was required was never considered.

In Jordan v. Tashiro, 278 U.S. 123 (1928), the Secretary of State of California refused to file articles of incorporation of the “Jap­anese Hospital of Los Angeles,” tendered by Japanese citizens, who brought a mandamus proceeding in the California courts, relying on the same treaty with Japan. The Court upheld petitioners’ right to incorporate their business. That enabling legis­la­tion was required was never considered.

In Todok v. Union State Bank of Harvard, 281 U. S. 449 (1930), the language of the trea­ty was interpreted as not overriding a state law restricting the conveyance of a certain class of pro­perty, but the Court made the point that

It was at one time supposed that the phrase ‘goods and effects’ in this article did not cover real property, a construction which was due in some measure to the view that the treaties of the United States could not affect the operation of the laws of the several States of the Union with respect to the inheritance of land. . . . This view of the treaty-making power of the United States is not ten­able.

At 453. That’s “treaties” which “affect the operation of the laws of the. . .States”, not “enabling legislation”.

In Nielsen v. Johnson, 279 U. S. 47 (1929), a treaty with Denmark protecting Danish na­tion­als against taxes on personal property not le­vied against American citizens was interpreted to cover inheritance taxes, thus overriding an Iowa tax on a Danish national’s estate. That enab­ling legis­la­tion was required was never considered.

In Bacardi v. Domenech, 311 U.S. 150 (1940), Article 3 of the General Inter-American Convention for Trade Mark and Commercial Pro­tec­tion provided that “Every mark duly regis­tered or legally protected in one of the Con­tract­ing States shall be admitted to registration or deposit and legally protected in the other Contracting States. . . .” Note 9. When the Puerto Rico legislature passed a law restricting the use of trade marks, petitioner Bacardi Corporation brought suit to have the legislation declared invalid. The Court upheld the petition, with respect to the right to use the trade mark. That enabling legis­la­tion was required was never considered.

In Kolovrat v. Oregon, 366 U.S. 187 (1961), the state attempted to escheat property which would otherwise have passed to aliens, based on an interpretation of a treaty provision that the Supreme Court found too restrictive. That enabling legis­la­tion was required was never consider­ed.

In Sumitomo Shoji v. Avagliano, 457 U.S. 176 (1982) a Japanese corporation sought relief from enforcement of employment dis­crim­ination statutes on the grounds that it was exempted by treaty provisions. The corporation was held to be an American corporation as defined by the treaty, and thus not protected. That there was a pri­vate right of action was never questioned.

Failure of claims not due to failure to self-execute

The failure of some claims brought under treaty rights does not render the case law incon­sis­­tent.
In Whitney v. Robertson, 124 U.S. 190 (1888), a treaty with the Dominican Republic grant­ed the latter most-favored-nation status with respect to American tariffs on Dominican products. Peti­tioners objected to paying a duty on sugars imported from the D. R. when similar pro­duce was imported without duty from Hawaii. The Court opined that the treaty with the D. R. applied only to generally-applicable legislation, not specific arrangements with specific countries. (Ha­waii was at the time fully independent.) That construction may be problematic, but the petition­ers could not prevail anyway—the lower tariffs on Ha­waiian sugars were passed by Congress after ratification of the treaty with the D. R., and Con­gress always has the right to modify or reverse treaty provisions by legislation.

In Maiorano v. B. & O. RR Co, 213 U.S. 268 (1909), a non-resident alien widow sued the railroad for negligence in the death of her hus­band. A treaty with Italy provided that

The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their per­sons and property, and shall enjoy in this respect the same rights and privi­leges as are, or shall be, granted to the natives, on their submitting themselves to the conditions imposed upon the natives.

At 273. The Court construed the language as not covering the right to sue for negligence. At 275. That interpretation may be doubtful, but that the treaty language was self-executing was nev­er questioned.

In Terrace v. Thompson, 263 U.S. 197 (1923), a property owner seeking to lease agricul­tural land to a Japanese citizen brought suit to enjoin the Attorney General of Wash­ing­ton from enforcing the state law prohibiting ali­ens from owning or leasing land. The Court held that the right to lease land for agricultural purposes was not covered by the language of the treaty with Japan (referenced in Asakura, above). At 223–224.

Webb v. O’Brien, 263 U.S. 313 (1923), and Frick v. Webb, 263 U.S. 326 (1923), are simi­lar.

In Ohio v. Deckebach, 274 U.S. 392 (1927), a treaty between Great Britain and the United States provided that “There shall be between the territories of the United States of America, and all the terri­tories of his Britannic majesty in Europe, a reciprocal liberty of commerce.” Note 1. Cincinnati refused to grant a license to operate a pool hall to a resident alien, who petitioned the Supreme Court of Ohio. The U.S. Supreme Court held that operation of a pool hall was not en­gaging in “commerce,” in the sense intended by the language of the treaty. At 395.

Politically-executed language

Politically-executed provisions are usually as easy to identify as are self-executing provi­sions, although not in our first example.

In Fellows v. Blacksmith, 60 U.S. 366, 370–372 (1856), The Seneca nation had agreed by treaty to be removed from New York State. Rights to the former Seneca lands passed to various individuals, including Fellows, against whom charges of tres­pass, etc. were brought when he for­ci­bly occupied his parcel. As no express provision was made “as to the mode or manner in which the removal of the Indians or surrender of the reservations was to take place,” at 370, Fellows claimed a right of private action to posses his land. Although today, no sane person would claim forcible occupation as a lawful way to vindicate one’s rights, that matter need not concern us, for the Court held that judicial relief to private individuals was not available, either.

The exact language of the relevant provisions is not quoted, but appears that, gener­al­ly, the treaty text was not phrased in the form of rules by which the rights of private citizens may be determined, but rather in the form of commitments to action. The United States committed to various actions which suggested that it would be superintending the removal. An overriding con­si­der­a­tion was that

It is difficult to believe that it could have been intended by the government that these people were to be left, after they had parted with their title to their homes, to be expelled by the irregular force and violence of the individuals who had acquired it, or through the intervention of the courts of justice. As we have seen, the Seneca Nation upon the four reservations consisted of a population of some two thousand six hundred and thirty-three souls; and if we include the Tusca­roras, whose lands were also purchased under the same treaty, nearly three thousand. It is obvious that any such litigation would be appalling.

At 371. Thus the treaty contained an implicit government commitment to effectuate the removal, and was, generally, only politically executable.

We have already seen, in Foster v. Neilson, supra, that a commitment to ratify land claims is politically executable.

“Treaties of extradition are executory in their character”. Terlinden v Ames, 184 U.S. 270, 288 (1902) The “terms of the stipula­tion import a con­tract,” that is, one or both “of the parties engages to perform a particular act.” When this is so, “the treaty addresses itself to the political, not the judicial, depart­ment.” Id. While the Executive Branch must go through the courts to de­termine the validity of an extradition request, see In re Metzger, supra, clearly, the courts cannot order the President to arrest an individual whose extradition has been requested.

In addition, certain questions relating to treaties are political, for example, whether a treaty survived a war, Clark v. Allen, 331 U.S. 503, 514 (1947); the determination of an international boundary, Garcia v. Lee, 37 U.S. 511 (1838); and whether a treaty has been abrogat­ed by anoth­er signatory’s failure to abide by its terms, Charlton v. Kelly, 229 U.S. 447 (1913), and see Terlinden v. Ames, 184 U.S. 270, 286 (1902):

It is out of the question that a citizen of one of the German states, charged with being a fugitive from its justice, should be permitted to call on the courts of this country to ad­judicate the correctness of the conclusions of the Empire as to its powers and the powers of its members, and especially as the Executive De­partment of our government has accepted these conclusions and proceeded accordingly.

Eisentrager not contra

Note 14 in Eisentrager, the supposed precedent for recent right-wing legislation from the bench, for ex­ample by the DC Circuit in Hamdan, is easily disposed of. It reads,

We are not holding that these prisoners have no right which the military authori­ties are bound to respect. The United States, by the Geneva Convention of July 27, 1929, 47 Stat. 2021, con­cluded with forty-six other countries, including the Ger­man Reich, an agreement upon the treat­ment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforce­ment of these rights is upon political and military authorities. Rights of alien enemies are vindi­cated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.

First, we note that no authorities are cited.

Second, this is a dictum. Justice Jackson, writing for the Court, had already concluded that American courts had no jurisdiction over enemy aliens outside the United States, and even they did, the petitioners had failed to state a cause of action. Thus footnote 14 is no more than an af­terthought.

Third, by its plain language, the dictum applies only to enemy aliens. Given its context in an opinion that is entirely about the rights of enemy aliens held abroad, it should be construed as applying only to such aliens. Construing it broadly, to include enemy aliens resident in the Unit­ed States, would conflict with existing case law regarding the rights of resident aliens—a disfav­ored reversal by implication.

Trashing the case law

José Medellín was convicted of capital murder and sentenced to death in Texas. Medellín, Slip Opinion at 4. He had not been informed, prior to signing a confession, of his right under the Vienna Conven­tion on Con­sular Relations of access to Mexican con­su­lar officials.[6] When he raised a claim under the Convention after conviction, it was denied as untimely. At 5. He then filed a habeas corpus petition in Federal District Court. At 6. Meanwhile, the Mexican Gov­ernment brought the United States before the International Court of Jus­tice on behalf of 51 of its nationals, including Medellín. The Inter­na­tional Court held that the United States was obli­gated “to provide, by means of its own choos­ing, review and reconsideration of the convictions and sen­tences of the [affected] Mexican na­tion­als. . . .without regard to state procedural default rules.” Id. Based on this ruling, and a Presi­dential memo indicating that the U. S. government would seek to have state courts give it effect, Medellín returned to state court with a second application for habeas relief. At 7. The question became, whether the Inter­national Court’s interpretation of the Vienna Convention was binding on our state courts, with­out enabling legis­la­tion.

By signing and ratifying the Optional Protocol Concerning the Compulsory Settle­ment of Dis­putes to the Vienna Convention, the United States committed to the provision that “Disputes arising out of the in­ter­preta­tion or application of the [Vi­enna] Convention shall lie within the com­pulsory jurisdic­tion of the International Court of Justice.” Slip Opinion at 11. By any honest interpretation, that means that the International Court’s interpretation’s of the Convention’s lan­guage are binding on our courts.

But Roberts’ opinion in Medillín is not honest. Doubt­ing that he can get away with a frontal assault on the Supremacy clause, he acknowleges the case law’s distinction between self-ex­ecut­ing and politically-executed treaty provisions. However, he never acknowleges the clearly stated basis for the distinction—whether or not a rule has been stated by which the rights of individuals may be determined. Instead, he pro­ceeds by the most bizarre “reas­oning” since Bush v. Gore. Ditching the heart of the case law, he creates new law in which a treaty as a whole is either self-executing or politically-exe­cuted—which one to be de­termined by searching the text for evi­dence of intent.

First, he “reasons”, be­cause there exists such a thing as compul­sory non-binding arbitra­tion, “com­pul­sory jurisdiction” does not mean com­pulsory com­pli­ance with the Inter­na­tional Court’s decisions!

The Protocol provides: “Disputes arising out of the in­ter­pretation or application of the [Vienna] Convention shall lie within the compulsory jurisdic­tion of the International Court of Justice.” . . . Of course, submitting to jurisdiction and agreeing to be bound are two different things. A party could, for example, agree to compulsory nonbinding arbitration. Such an agreement would require the party to appear before the arbitral tribunal without obligating the party to treat the tribunal’s decision as binding. . . .

The most natural reading of the Optional Protocol is as a bare grant of jurisdiction. . . . The Protocol says nothing about the effect of an ICJ decision and does not itself commit signatories to comply with an ICJ judgment. The Protocol is similarly silent as to any enforcement mechanism.

Slip Opinion at 11. If “jurisdiction” meant “authority to hear arguments”, this would be compel­ling reasoning. But that’s not what “jurisdiction” means. Our Constitution, Art. III, §2, ¶2, pro­vides that “In all Cas­es affecting Ambas­sa­dors, . . .the supreme Court shall have original Jurisdiction. In all the other Cases before mention­ed, the supreme Court shall have appel­late Jur­isdiction. . . .” Is it Rob­erts’ position that the Supreme Court’s opinions are advisory?! Is he go­ing to tell a traffic court judge, “You have juris­diction over this case, but that doesn’t mean I have to pay the fine”?

Jurisdiction is power, not opinion. “. . .all jurisdiction implies superiori­ty of power: authori­ty to try would be vain and idle, without an authority to redress; and the sen­tence of a court would be contemptible, un­less that court had power to command the execution of it. . . .” Black­stone’s Commentaries, Book I, ch. 7, at 235. Thus the “jurisdiction” of the Court of King’s Bench

is very high and tran­scendent. It keeps all inferior jurisdic­tions within the bounds of their authority, and may either remove their proceedings to be deter­mined here, or prohibit their progress below. It superin­tends all civil corporations in the king­dom. It com­mands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject, by speedy and summary in­ter­position.

Book II, ch. 4, at 43.

Blackstone frequently uses “jurisdiction” and “power” interchangeably, as in “The power of the privy coun­cil is to enquire into all offences against the government, and to commit the of­fen­ders into custody, in order to take their trial in some of the courts of law. But their jurisdiction is only to enquire, and not to punish. . . .” Book I, ch. 5, at 223. Thus limited juris­dic­tion is the same as limited power. If the jurisdiction or power is very limited, as was that of the eccle­siastical courts, it may be described as “de­fective”: “But the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process, but that of excommunication . . . .” Book III, ch. 7, at 101.

Our case law affirms this definition of jurisdiction: “Jurisdiction is defined to be the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is uni­versal, that if the power is conferred to render the judgment or enter the decree, it also in­cludes the power to issue proper process to enforce such judgment or decree.” Riggs v. Johnson Co., 73 U.S. 166, 187 (1867). Likewise Michigan Trust Co. v. Ferry, 228 U.S. 346, 356 (1913): “Jurisdiction is power, and the power of the Michigan court was not affected by the insanity of Ferry. The authority of the state to remove him and to require his account to be settled at the same time remained. . . .” Likewise again, Fauntleroy v. Lum, 210 U.S. 230, 235 (1908): “Yet a sta­tute could be framed that would make the power, that is, the jurisdiction, of the court, de­pendent upon whether there was a consi­deration or not.”

This power is physical: “The foundation of jurisdiction is physical power, although in civil­iz­ed times it is not neces­sary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person.” McDonald v. Mabee, 243 U.S. 90, 91 (1917).

Jurisdiction is also equated with authority[7]: “Jurisdiction, un­qual­i­fied, being, as it is, the sov­ereign authority to make, decide on, and execute laws. . . .” Wedding v. Meyler, 192 U.S. 573, 585 (1904), quoting Arnold v. Shields, 5 Dana, 18, 22.

And so on, throughout our case law. Roberts has torn out the heart of the law. “Juris­diction” is literally the pronounce­ment of the law. The pronouncement itself is not power, which rather rests on the willingness of the Executive Branch to obey court orders, which in turn rests on the com­mon consent, even if we as a society hold nothing else in common, that we live under, and are subject to, the rule of the law. To say that accepting “jurisdiction” does not com­mit one to compliance is to advocate the law of the jungle.

Clearly then, by signing and ratifying the Optional Protocol, we have agreed to submit to the decisions of the International Court.

Leaving the rule of law behind, and returning to Medellín, Roberts tackles the next obstacle in the way of his ideologically-derived conclusion. “The obligation on the part of signatory na­tions to comply with ICJ judgments derives not from the Optional Protocol, but rather from Article 94 of the United Nations Charter.” Slip opinion at 11. There, “each member of the United Nations undertakes to comply with” the decisions of the International Court. At 11–12. This language poses no problem to Roberts, who interprets “undertakes to comply” not as

“an acknowledgement that an ICJ decision will have immediate legal effect in the courts of U. N. members,” but rather “a commitment on the part of U. N. Mem­bers to take future action through their political branches to comply with an ICJ deci­sion.” . . .

. . . . The Article is not a directive to domestic courts. . . . Instead, “[t]he words of Article 94. . .call upon gov­ern­ments to take certain action.” . . . In other words, the U. N. Charter reads like “a compact between independent nations” that “depends for the enforcement of its provi­sions on the interest and the honor of the governments which are parties to it.”

Slip Opinion at 12, emphases in opinion.

It is not surprising to learn that the U. N. Charter “reads like ‘a compact between inde­pendent nations’”—that’s what it happens to be! And such compacts do usually “call upon gov­ernments to take cer­tain ac­tion.” Duhhh. And Article 94 is properly “not a directive to domestic courts”—how treaty obli­ga­tions are incorporated to a signatory’s domestic law is none of any other signatory’s business. The Supremacy Clause, not Article 94, is a directive to our courts that “all Treaties made. . .shall be the supreme Law of the Land.”

So how do these characteristics of the Charter cause it not to have an “immediate legal ef­fect in” our courts—that is, not to govern Medellín’s habeas petition? They don’t. Our case law, as we have seen, recognizes that trea­ty pro­visions requiring that some action be taken are politi­cally-executable, not self-executing. Thus by ratifying the Convention on Inter­national Civil Av­i­a­tion, 61 Stat. 1204 (1944), which provides that disputes arising under it may be referred to the Interna­tion­al Court, Art. 84, the United States agreed “to take effective mea­sures to prevent the spread by means of air navigation of cholera, typhus (epidemic), smallpox, yellow fever, plague, and such other communicable diseases as the contracting States shall from time to time decide to designate,” Art. 14. Should the International Court rule that the U.S. has not taken such “effec­tive mea­sures”, our Executive Branch has “undertaken to comply” with that ruling. Similarly, the United States agreed that “No munitions of war or implements of war may be carried in or above the territory of a State in aircraft engaged in international navigation, ex­cept by permission of such State.” Art. 35. Should the International Court rule that certain equip­ment carried on certain American aircraft constitutes “implements of war”, and that American planes shall cease carry­ing it without permission, our Executive Branch has “undertaken to comply” with that ruling.

Roberts, undaunted, takes another, equally bizarre, tack:

The remainder of Article 94 confirms that the U. N. Charter does not con­template the automatic enforceability of ICJ decisions in domestic courts. Article 94(2)—the enforcement pro­vi­sion—provides the sole remedy for noncom­pli­ance: referral to the United Nations Security Council by an aggrieved state. . . .

The U. N. Charter’s pro­vision of an express diplomatic—that is, non-judi­cial—remedy is it­self evi­dence that ICJ judg­ments were not meant to be enforce­able in domestic courts.

At 13. Waiving the objection that the word “sole” does not occur in the U. N. Charter, why does having such a “remedy for non-compliance” prove Article 94 to be a politically-ex­ecutable pro­vision?

And even this “quintessentially international remed[y],”. . .is not absolute. First, the Security Council must ‘dee[m] necessary’ the issuance of a recommen­da­tion or measure to effectuate the judgment. . . . Second, as the President and Senate were undoubtedly aware in subscribing to the U. N. Charter and Optional Pro­tocol, the United States retained the unqualified right to exercise its veto of any Security Council resolution.

Id. These observations, too, are less than startling. Did anyone suppose that the Security Council should act when pre­sented with a patently meritless com­plaint? And has anyone ever sup­posed that the President and the Senate thought the United States was ceding its veto power? But the reason for beating dead horses now becomes apparent:

If ICJ judgments were instead regarded as auto­matically enforceable domestic law, they would be immediately and directly binding on state and federal courts pursuant to the Su­premacy Clause. Mexico or the ICJ would have no need to proceed to the Security Council to en­force the judgment in this case. Noncompli­ance with an ICJ judgment through exercise of the Security Council veto—always regarded as an option by the Executive and ratifying Senate during and after consideration of the U. N. Charter, Optional Protocol, and ICJ Statute—would no longer be a viable alternative.

At 14.

No reasonable person would read “regarded as an option” to mean anything other than “re­garded as an option available for periodic use as needed”. However, as we have seen, Ro­berts provides no specific evidence that it was the intent of the political branches to hold the ve­to in re­serve against unpalatable International Court decisions. Indeed, that would be a strange stra­tegy, given that U.N. members can submit to the Court’s decisions on an ad hoc basis. Art. 36(1).[8] Ac­cordingly, all Roberts can dig up are some inanely ob­vious[9] state­ments indicating that the po­li­tical branches under­stood the U. N. Charter.

But, suppose this were the intent of the political branches? It is not difficult to demonstrate that such an understanding of Article 94 leads into a morass of utter nonsense.

First, that the political branches can make a treaty politically-executable by including a re­dress mechanism, absolutely contradicts the Suprem­acy Clause: “all Treaties made. . .shall be the supreme Law of the Land.” Not “shall be the law of the land if there is no redress mechan­ism.” Accordingly, whenever a provi­sion states “a rule by which the rights of the private citizen may be de­termined,” it is the Su­preme Law of the Land and it is self-executing.

Second, it contradicts common sense. It would require a very stupid signatory to ratify a treaty without redress provisions because it was self-executing within the other signatory coun­tries. “It was no attorney who drafted such a contract; it must have been a bodyguard.”[10] Ford v. Burnel, 11 Y. B. Edw. II 140 (1311). Wouldn’t anyone love having their lender receive such legal advice? “Hey, by my signature on this document, I feel bound to repay the loan, there­fore, let’s cross out these col­lection provisions!”

But, waiving these objections for a moment, what happens if we follow Roberts’ under­standing that Ar­ticle 94 was not meant to be self-executing, because the political branches want­ed the “option” of “non­compliance. . .through exercise of the Security Council veto”?

Since no enabling legislation was ever passed, the ongoing intent of the political branches would have to be that the President order compliance with the sort of deci­sion Mexico ob­tained on behalf of Medellín when desired, and allow petitioners to meet Medellín’s actual fate when compliance was not de­sired. That seems unlikely, even within Roberts’ make-believe scenario. First, there would be no need to subscribe to the Optional Protocol, for, as we have seen, submission to the International Court can be on an ad hoc basis. Second, the suggestion that the Pres­ident can issue orders to state courts is absurdly unconstitutional—the Presi­dent can order no one outside of the Executive Branch to do anything. If the President seeks to com­pel some action by a non-Executive-Branch party, the Attorney Gen­eral must obtain an order from a court. Such an order is granted not because the President wants it, but be­cause the court determines that it is consistent with the law. At the very least, it would seem that those who thought unilateral Presidential action to be a viable opinion in cases like Medellín’s would have sought an opinion from the Attorney General. Even Roberts got this one right.

Obviously, even if the political branches in 1945–1946 were contemplating “op­tion­al non-compliance” in some cases, they were not thinking of decisions, compliance with which would require overrid­ing state law—that is, the political branches did not have the question of self-execution in mind. Thus Security Council redress had nothing to do with self-execution. But let us continue anyway.

The President’s only remaining method of “optional non-compliance” is to turn Federal law on and off—specifically, a law relating to aliens, and thus within the power of Congress to pass, and supreme over state law, making the International Court’s de­ci­sions binding. Each time the President chose to act dif­ferently than the previous time, a bill must be introduced, debated, passed, and signed.

If we wish to continue, we must waive two further objections: first, that this sounds crazy, and second, that if we’re going to ping-pong back and forth between compliance and non-com­pliance, whether the treaty is self-executing doesn’t matter—we have to change the law anyway, except possibly the first time the issue arises. Then we come to the next question: would it even work?

If “optional com­pli­ance” meant to agree in advance to submit to the International Court’s decisions some of the time, and not others, the answer is yes, conditionally: Congress and the President would have to agree on particular cases, and, passage of the legislation would have to be timely. There would have to be no critical issues before Congress, and even if there were not, Congress would have to put off some other agenda item (Social Securi­ty? funding for the war in Iraq?) while it ad­dressed the Presi­dent’s latest request to place us under or remove us from the Interna­tional Court’s jurisdiction. These conditions contradict the idea of con­ducting foreign re­la­tions, which is that the Executive Branch should have a free reign in nimbly applying different pol­icies to nationals of different countries at different times.

Waiving that objection, we hit another obstacle—in real life, “optional com­pliance” doesn’t mean deciding to comply before the decision is known; it means refusing to comply when an Interna­tion­al Court decision conflicts with the Exe­cutive Branch’s de­sired out­come. But once a court’s de­ci­sion is known, it’s too late for the poli­ti­cal branches to change the law.

When a court of competent jurisdiction pronounces the law, that is, changes or clarifies existing law, the change or clarification is retroactive at least far back enough to afford relief to the prevailing party. Thus when the Texas courts rejected Medellín’s Vi­enna Con­vention claim, their pronouncement of the law was that the Convention does not override state pro­cedural de­fault rules. If our Su­preme Court had subsequently ruled to the contrary, that controlling pro­nouncement would apply re­troactively at least to Medellín.

But such a ruling did not come from our Supreme Court; it came from the International Court. Since no enabling legislation has ever been enacted, the International Court was, accord­ing to Roberts, without jurisdiction when it issued its decision, which thus had no more effect on U. S. law than one issuing from a Myanmar Court. In order for the deci­sion to have the re­tro­active effect required to afford relief to Medellín, the International Court must have had juris­diction with­in the United States before it was announced—that is, our law must already have been that we will comply with any outcome.[11] By purporting to accept the Inter­na­tional Court’s decision after the fact, the legislation would merely be changing the law by incor­por­at­ing some non-binding legal opinion. That’s no different than simply legislating a change that applies, un­con­stitutionally, ex post facto to Medellín. (Art. I, § 9, ¶ 3).

But then, if the political branches know what outcome they desire, of what relevance is the International Court? Legislation to the de­sir­ed effect can be enacted as soon as the alien’s case is known to the politicians. As we asked before, why subscribe to the Optional Protocol to begin with?[12]

The more Roberts attempts to defend its reading of Article 94, the longer his nose grows. For example, if he argues that in real life, the political branch­es did not intend to ping-pong back and forth between compliance and non-compliance, but rather, in a very few cases, they wanted the option to ignore the court’s rulings, then the question arises, why wasn’t enabling legislation enacted at the start?[13] Of course, all these problems disappear when we take the concepts he relies on—“a commitment on the part of U. N. Mem­bers to take future action”, “a compact be­tween inde­pendent nations”, appeal to the Se­curity Council being the “sole remedy for non-compliance”—for what they are: provisions regulating the relations between nations. They have nothing to do with self-execution. Going to the Security Council is not an in­dividual right, but rather the sole remedy available to a U.N. member state, if another state is al­leged to be not in compliance. Thus if Nigeria were to deny consular access to an arrested American, the United States can only appeal to the Security Council. This “sole rem­edy” does not address enforcement within a member state.

Conclusion

It usually easy to classify a treaty provision as self-executing or not. Lan­guage specifying that, if an arrested alien so re­quests, “the competent authorities of the receiving State shall, without delay, inform the consu­lar post of the sending State”, is “a rule by which the rights of the private citizen may be determined”, and therefor a self-executing provision. So is the Convention Against Torture’s provision that “No exceptional circumstances whatsoever, whe­ther a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” Art. II, § 2. On the other hand, the Convention Against Tor­ture’s provision that “Each State Party shall take effective leg­is­lative, ad­ministrative, judicial or other measures to prevent acts of torture in any territory under its juris­diction”, Art. II, § 1, is a commitment to pronounce policy by legislative and possi­bly other measures, and is thus not self-executing.

Thus under our Constitution, many or most treaties are peppered with self-executing provi­sions, despite that they may be primarily addressed to governments. A provision that “each mem­ber of the United Nations undertakes to comply with” the decisions of the International Court, being directed at the President as acting on behalf of the United States, has no relevance to Medellín. Our Supreme Court should have granted him relief by recognizing our sep­a­rate com­mit­ment, to submit to the compulsory jurisdic­tion of the International Court, as a rule by which the rights of a private citizen may be determined. But now that our Supreme Court has ruled incorrectly, the former provision has become relevant to him. Mexico can lodge a diplomatic pro­test, or go to the Security Council.[14]

As another example, let us look at a good-faith dispute for a change. Suppose a consular official of a foreign nation seeks access to an arrested individual, but the Supreme Court decides that the individual is really an American citizen. The International Court might decide the oppo­site. In that case, I would say that the Constitution requires the Supreme Court to ignore the In­ter­national Court. If the foreign nation appeals to the Security Council, the case would then be in the political arena, as Roberts says.

There is much more in Roberts’ opinion to criticize, but enough has been said to es­tablish it to be completely invalid. This is not the first gross abuse of judicial power since 2000. The only difference now between the United States and Zimbabwe is that there, the Executive Branch ignores the law, while here, the Judicial Branch ignores the law.

Notes
[1] Edited by Benjamin Fletcher Wright. New York: MetroBooks, 2002.
[2] No one opinion was billed as the opinion of the Court.
[3] The Court’s construction of the provision changed when an English translation of the Spanish text came out “shall remain ratified and confirmed”; see United States v. Percheman, below.
[4] Judge Robertson in Hamdan v. Rumsfeld, 04-5393 (2005), quoted the Head Money Cases thus: “As a general matter, a ‘treaty is primarily a com­pact between independent na­tions,’ and ‘de­pends for the en­force­ment of its provisions on the interest and honor of the governments which are parties to it.’ Head Money Cases. . . .”, slip opinion at 10, thus omitting the relevant part of the quote.
[5] Page numbers not in text downloaded from Findlaw website.
[6] “if he so requests, the competent authorities of the receiving State shall, without delay, inform the con­sular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communi­cation addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph. . . .” Art. 36(1)(b).
[7] “The power to influence or command thought, opinion, or behavior.” Merriam-Webster’s 9th Collegi­ate Dictionary, def. 2(a).
[8] Roberts mis-cites Article 36(1): “a nation. . .may consent specifically to jurisdiction over a particular category of cases or disputes pursuant to a separate treaty, Art. 36(1),” At 3–4. Actually, Art. 36(1) reads “The jurisdic­tion of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” 3 Treaties. . . at 1186, 59 Stat 1060, underlining added. Thus there are two categories of cases: (1) those referred to the Court by the parties, and (2) those provided for in (a) the U.N. Charter or (b) “treaties and con­ventions in force”.
[9] The quotes from committee hearings, cited at 14, were, of course, directed towards individuals who did not grow up learning about the U.N. in school.
[10] “Il ne fut pas homme de court qe tel escrit ordena einz fut un armuret.”
[11] So long, of course, that compliance would not violate the Constitution.
[12] And what happens when two aliens, A and B, are arrested at the same time, their cases run in parallel, and the political branches want A to be able to raise a post-conviction Vienna claim, but not B? This is left as an exercise for the reader.

[13] Unaccountably, the majority fails to mount the most reasonable attack on compulsory compliance with International Court decisions. Our Constitution provides, Art. III, § 1, that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” One could rationally argue that the Optional Protocol violates this provision. If that argument were to be adopted, however, the outcome of Medellín’s petition would be the same, if the majority were to be bound by their oaths of office, for, as we have seen, both the language of the treaty and the holdings of the pre-ideological-assault case law are as clear as can be. The Supreme Court would have the power to order a remedy for Medellín.

However, since the judicial “right-wing” advocates deference to the political branches, and the political branches signed and ratified the Optional Protocol, the Court should find that a treaty can bind us to submit to the decisions of an international court with respect to foreign nationals and other foreign affairs, so long as the decisions don’t conflict with the Constitution, which question would be decided by our Supreme Court. Applying the suppression rule to cases of failure to notify suspects of their right to consular access would not violate anyone’s Constitutional rights.

[14] Of course, now the President is stuck. His directive to the state courts having also, and properly, been voided, his only recourse would seem to be a Constitutional amendment.