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Making sense of the U.S. President's intervention in Medellin.

I. INTRODUCTION

U.S. President George W. Bush has intervened (1) on behalf of a (non-white-collar) criminal defendant, (2) in a death penalty case, (3) in Texas, (4) invoking principles of comity, (5) with reference to an international legal obligation on the United States, (6) as determined by an international court, (7) in a judgment that penetrates deeply into the domestic criminal justice system, (8) of Texas.

What's not wrong with this picture?

Has the President been converted to a true believer of the merits of a robust international legal order with organs of international governance and the power to issue orders binding upon countries, even when the country in question is the United States itself? Does the White House suddenly think that international law is an integral part of the internal legal order of the United States? Has the Bush Administration woken up to the inequities of criminal justice systems in the United States? Or has the President simply become an ardent opponent of capital punishment?

As extraordinary as this may seem, a closer examination of the U.S. President's position in the Medellin case reveals that it is not as out of step with the Bush Administration's prior attitude toward international law and international institutions as may at first appear.

Indeed, it becomes clear that there are a range of reasons why this President would take the position he does. First, the Avena judgment gave rise to an undeniable legal obligation on the United States, and there are strong U.S. interests in seeing that obligation fulfilled, not least of which is the consular protection of U.S. nationals abroad. From this vantage, the President's intervention is entirely consistent with the traditional pragmatic approach of the U.S. government toward international courts, which, Bush's occasional outburst notwithstanding, (1) has been largely carried on by his administration.

However, the position taken in the Medellin case may also serve narrower interests. When viewed in light of the U.S. Executive's invocation of international law in a counter-terrorism context, a pattern seems to emerge. In particular, throughout the "War on Terror," the White House has invoked international law to expand its authority, both externally and internally, while rejecting the limitations imposed by international law. This pattern is exemplified in the case of Hamdan v. Rumsfeld. (2) From this vantage, the President's intervention in Medellin smacks of a power-grab.

II. THE U.S. PRESIDENT'S POSITION IN MEDELLIN

In March 2004, in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), the International Court of Justice (ICJ) found the United States to be in violation of its obligations under the Vienna Convention on Consular Relations (VCCR) owing to, inter alia, its failure to inform certain named Mexican nationals, who had been detained in the United States in the context of criminal proceedings, that they had a right to have the Mexican consular authorities notified of their situation. (3) At the time Mexico brought this case to the ICJ, all of the named individuals had been tried, convicted, and sentenced to death by courts in the United States. With reference to a number of those individuals, the ICJ further held that appropriate reparation for the breach "consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of" their convictions and sentences. (4) The ICJ also noted that "it is the judicial process that is suited to this task." (5)

The United States is clearly bound by this judgment on the international plane. As a member state of the United Nations, the United States has an international legal obligation to "com ply with the decision of the International Court of Justice in any case to which it is a party." (6)

One of the detainees specifically named in that case was Jose Ernesto Medellin. At the time the ICJ delivered that judgment, Medellin was on death row in Texas and in the process of seeking post-conviction habeas relief in federal court. In December 2004, the U.S. Supreme Court granted his petition for certiorari. (7) While the case was pending before the Court, President Bush on February 28, 2005 issued a "Memorandum for the Attorney General," which provided in pertinent part:
 I have determined, pursuant to the authority vested in me as
 President by the Constitution and laws of the United States, that
 the United States will discharge its international obligations
 under the decision of the international Court of Justice in
 [Avena], by having state courts give effect to the decision in
 accordance with general principles of comity in cases filed by the
 51 Mexican nationals addressed in that decision.


This Memo was also attached to the amicus brief filed by the United States in the Medellin case that same day. Exactly one week later, by a letter deposited with the UN Secretary General, the United States denounced the VCCR Optional Protocol (8) that had given the ICJ jurisdiction over consular notification cases. (9)

On the basis of the President's "determination," Medellin's attorneys then re-filed for habeas relief at the state level while seeking a stay of the proceedings in the Supreme Court. In light of these developments, the Supreme Court dismissed the writ of certiorari as "improvidently granted" and noted that the Texas courts "may provide Medellin with the review and reconsideration of his Vienna Convention claim that the ICJ required, and that Medellin now seeks in this proceeding." (10)

The following year, the Supreme Court rendered judgment in two other cases in which foreign nationals were seeking post-conviction relief on the basis that they were not informed of their right to consular notification. However, the individuals in these cases were not among those whose situations were considered by the International Court of Justice, and were thus not encompassed by any of the ICJ judgments against the United States. (11) Nonetheless, the petitioners invoked the Avena judgment as authority in their cases, asserting that the ICJ's interpretation of the VCCR was authoritative. In the June 2006 judgment in Sanchez-Llamas v. Oregon and Bustillo v. Johnson, the Supreme Court held that the ICJ's interpretation was due "respectful consideration," (12) but flatly rejected any notion that it was binding upon the Court. As for the 2005 Presidential Memorandum, the Court noted that the United States had "not taken the view that the ICJ's interpretation of [the relevant article of the VCCR] is binding on our courts," but had merely "agreed to 'discharge its international obligations' in having state courts give effect to the decision in Avena." (13) It also noted the U.S. denunciation of the Optional Protocol as further evidence of the lack of Avena's authority. (14)

A few months later, the Medellin case (i.e., the re-petition for habeas relief based on the Presidential Memorandum) had worked its way back up to the Texas Court of Criminal Appeals. That court denied Medellin's petition for post-conviction relief, finding that neither Avena nor the Presidential Memorandum were "binding law." (15)

And now the Medellin case is once again before the U.S. Supreme Court. In its Brief of the United States as Amicus Curiae in Support of the Petitioner, the Executive makes its position clear.

According to the U.S. Brief, the state courts must give effect to Avena because the President stated that they would do so pursuant to his determination that the United States would com ply with its international obligations in this instance. It argues that "in light of the President's well-established constitutional and statutory powers in the realm of foreign affairs and his historically accepted lead role in responding to ICJ decisions," the President is authorized to make such a determination and to compel compliance by the state courts as the mode of implementation of these obligations. (16)

III. THE INSTRUMENTALIST APPROACH TO INTERNATIONAL JUDICIAL AUTHORITY

The attitude of the U.S. government toward international courts can be best described as pragmatic. At a May 2006 colloquium on the subject of U.S. attitudes toward international courts, U.S. State Department Legal Adviser John Bellinger stated:
 In our view, such courts and tribunals should not be seen as an end
 in themselves but rather as potential tools to advance shared
 international interests in developing and promoting the rule of
 law, ensuring justice and accountability, and solving legal
 disputes. Consistent with this approach, we evaluate the
 contributions that proposed international courts and tribunals may
 make on a case-by-case basis, just as we consider the advantages
 and disadvantages of particular matters through international
 judicial mechanisms rather than diplomatic or other means. (17)


The U.S. approach is essentially instrumentalist, employing international judicial authority when it suits U.S. interests. (18)

In an international criminal context, for example, this has played out in erratic levels of support for international criminal courts. (19) While the United States has at times been an extremely strong supporter of some international criminal courts, it has not been supportive of others. And even among those international criminal courts that the United States generally favors, such as the Yugoslav and Rwanda Tribunals, U.S. support has fallen off sharply when those institutions have acted in a way that was perceived in Washington as contrary to U.S. foreign policy objectives. The jurisprudence of these institutions has also been invoked selectively and instrumentally. (20)

When it comes to the ICJ, U.S. support for this venerable institution has ebbed and flowed according to the U.S. interests implicated in the particular cases before it. (21) A range of interests, both direct and indirect, enter into this calculation. (22) There are certainly a number of U.S. interests at stake in the present context. According to the U.S. Brief, "[T]he United States has compelling interests in ensuring reciprocal observance of the Vienna Convention by treaty partners who detain U.S. citizens, promoting foreign relations, and reaffirming the United States' commitment to the international rule of law." (23)

While the second factor is vague and the third strains credulity, the first finds traction. The law of diplomatic and consular relations, consisting of an essentially reciprocal exchange of rights and duties, is firmly embedded in the traditional interstate structure of the international legal system in which the principal incentive for compliance is quid pro quo. As noted by Judge Chapel in Torres v. State, an Oklahoma consular notification case:
 Several courts have expressed concern that any failure of United
 States courts to abide by the Vienna Convention may have
 significant adverse consequences for United States citizens abroad.
 "Treaty violations not only undermine the 'Law of the Land,' but
 also international law, where reciprocity is key. If American law
 enforcement officials disregard, or perhaps more accurately, remain
 unaware of the notification provision in Article 36, then officials
 of foreign signatories are likely to flout those obligations when
 they detain American citizens." I share those concerns. (24)


However, this interest in reciprocal compliance does not seem to fully explain the President's determination. If the United States is concerned about protection of U.S. nationals abroad, why should the President's determination be limited to the fifty-one nationals expressly identified in Avena, and not be applicable to all similarly situated foreigners in the criminal justice system? And why was the determination accompanied by denunciation of the Protocol, cutting off the 1CJ's ability to examine the situation of those other individuals? Surely it is in the interest of the United States for the ICJ to be able to examine cases in which U.S. nationals have been denied these rights by foreign governments.

The United States contends that it disagrees with the 1CJ's interpretation of the VCCR, and that this is the primary factor motivating its denunciation. But perhaps there is something else going on here. Maybe the Executive is not fundamentally driven by the national interests served by mutual compliance with the VCCR. A closer examination of the position asserted by the Executive in its amicus brief, viewed in light of a pattern of attempts to expand Executive power through selective use of international law, suggests that its intervention in Medellin serves narrower interests.

IV. THE TENDENCY TO INVOKE INTERNATIONAL LAW TO EXPAND AUTHORITY WHILE REJECTING ITS RESTRAINTS

The Presidential Memorandum refers to "principles of comity." (25) The Respondent, Texas, argues, inter alia, that the use of this phrase indicates that the Memorandum should be regarded as an entreaty to the Texas courts, requesting, and not commanding, that they give effect to Avena. However, the text is ambiguous as to precisely who is according comity, and with reference to whom.

It seems more likely that the President invoked "principles of comity" to make clear that he did not regard himself as being obliged to determine that the United States would comply with its international obligations or to otherwise take steps to carry it out. (26)

Indeed, the U.S. Brief makes clear that "[a]bsent a Presidential determination, the 1CJ's decision in Avena could not be enforced in this Nation's courts. It is the President who is authorized to determine whether and how the United States will comply with an ICJ decision." (27) Essentially, the President asserts that he is the sole decision-maker as to whether the United States will comply with an ICJ decision, and implies that when he determines that the United States will comply, he has the power to compel anyone accordingly. (28) In this instance, the President is claiming an authority to issue a command to state courts on the basis of an international legal obligation, while simultaneously rejecting any notion that he himself is bound by that obligation. At the same time, his assertion that the right of consular notification is not "judicially enforceable" absent his determination encroaches on the judicial power to determine the applicable law. (29)

This is certainly not the first time the President has claimed to be the sole "decider." (30) Nor is it the first time this Administration has invoked rules of international law to expand its authority, while rejecting rules of international law that would restrain it. This approach is fully consonant with the legal positions taken by the Administration in the "War on Terror."

V. THE LEGAL POSTURE OF THE BUSH ADMINISTRATION IN THE "WAR ON TERROR"

The President's intervention in Medellin fits within an established pattern of selectively and opportunistically invoking international law, while at the same time attempting to limit the ability of the judiciary to apply and interpret international law. This pattern is clearly visible in the legal posture of the Bush Administration in the "War on Terror."

From the inception of the "War on Terror" the United States has claimed authority under international law to use armed force abroad, and to kill and detain indefinitely those that it deems to be enemy combatants. Its legal arguments have varied greatly over time, and have been consistently entwined with policy matters.

However, one consistent element has permeated all of the various forms of its arguments. Ever since President Bush classified the September 11, 2001 attacks as "acts of war," his ad ministration has invoked the "law of war" as a basis for enhanced authority to respond to those attacks, as well as what it deems to be related threats. In so doing, the Administration has employed ambiguous terminology and made exorbitant, yet colorable, legal claims, attempting to ground them in (the most strained) interpretations of international law.

These ambiguities have been exploited by the Executive to maximize its scope of authority under the law of war, while avoiding the application of any of concomitant restraints.

In October 2001, the United States invaded Afghanistan, claiming that it was entitled to do so under the jus ad bellum. The Executive maintained both internationally and domestically that the "law of war" (31) gave it the necessary authority to kill and detain "enemy combatants." (32)

In January 2002, in response to queries about the detainees being sent to Guantanamo Bay, the Bush Administration asserted that the Geneva Conventions did not apply to the conflict in Afghanistan. (33) Shortly thereafter, it amended its position by acknowledging that the Conventions did apply to the armed conflict with Afghanistan, but that they did not apply to any of the detainees, as the Taliban and al-Qaeda were not parties to the Conventions. (34) This is of course a legally incoherent argument. (35) It then amended its position again, claiming that while the Geneva Conventions did apply to the armed conflict with Afghanistan, the members of the Taliban and al-Qaeda were unlawful combatants and thus ineligible for protection under the Conventions. (36) While this claim was at least colorable, it was not grounded in well-established rules of international law, but in maverick interpretations proffered by those seeking to limit the reach of international law.

In the meantime, the President established military commissions to prosecute certain of the detainees, again relying on claimed authority under the law of war. (37) He also took the position that the detainees, as enemy combatants, could not have access to the ordinary courts. (38) Nonetheless, a number of detainees brought habeas claims in federal court. Throughout, the Executive maintained that international law gave it the authority to capture and detain enemy combatants, while refusing to recognize the applicability of any of the protections afforded to individuals under the Geneva Conventions. (39) It claimed that the detainees had no rights under the Conventions, and that even if they did, they could not be invoked in U.S. courts. (40)

Despite attempts by the Executive, in cooperation with the Congress, to block new cases through the enactment of legislation, (41) the courts continued to hear the existing detainee cases. A number of the detainees had raised claims based on the Geneva Conventions. One such detainee was Salim Ahmed Hamdan.

The case of Hamdan exemplifies the extent of the Executive's rejection of the restraints contained within the Geneva Conventions. In Hamdan, the Petitioner, a Guantanamo de tainee, claimed that the Military Commission before which he was to be prosecuted was unlawful because its constitution and procedures did not comply with, inter alia, Common Article 3 to the 1949 Geneva Conventions. Hamdan was an alleged al-Qaeda affiliate who had been captured in Afghanistan in November 2001 in the course of the armed conflict between the United States and the then de facto government of Afghanistan. The law of armed conflict clearly applies to that conflict, and the U.S. government by that time had accepted this position. Nonetheless, the nature of the conflict in the context of which Hamdan was captured remained a point of contention between the parties.

The nature of the conflict as either international or non-international is a fundamental threshold question in the application of the international law of armed conflict. International armed conflict traditionally has been subject to far more expansive regulation than non-international armed conflict. While the 1949 Geneva Conventions marked significant advances over earlier treaties, they were still primarily concerned with interstate armed conflict. Common Article 2 of the 1949 Geneva Conventions provides that "the present Convention shall apply to all cases of ... armed conflict which may arise between two or more of the High Contracting [state] Parties." (42) However, the adoption of the 1949 Conventions also yielded the first treaty provision expressly regulating non-international armed conflict. Common Article 3 of the Conventions applies to "armed conflicts] not of an international character occurring in the territory of one of the High Contracting Parties." (43), It is the only substantive provision in the Conventions that applies in non-international armed conflict, and protects only against the most serious abuses. (44)

In its submissions before the Supreme Court, the Executive tried to evade application of the Geneva Conventions on several grounds. First, it claimed that the Geneva Conventions were not applicable with respect to Hamdan as a matter of international law. (45) It then asserted, in language mirroring its position in Medellin, that even if they did apply as a matter of international law, the rights contained therein were not "judicially enforceable" in domestic courts. (46)

As to its first argument, the U.S. government had taken the position that there were in fact two simultaneous conflicts occurring in Afghanistan. One conflict was between the United States and the Taliban (fighting on behalf of Afghanistan, a state party to the Geneva Conventions), and the other was a separate conflict with al-Qaeda. It regarded the former as an international armed conflict to which the Geneva Conventions were applicable. However, it asserted that the Conventions, including Common Article 3, could not be applied to the conflict with al-Qaeda. The United States took the position that Common Article 3 applies only to internal armed conflicts. (47) Because the conflict with al-Qaeda was transnational in nature, it was neither interstate nor internal. Essentially, the United States posited a gap in the application of the Conventions--that there were some armed conflicts to which no part of the Conventions could apply.

This position was contrary to the way Common Article 3 had been interpreted in a number of international judicial decisions. In Nicaragua v. United States, after noting that Common Article 3 applies in conflicts not of an international character, the ICJ stated that there was:
 no doubt that, in the event of international armed conflicts, these
 rules also constitute a minimum yardstick, in addition to the more
 elaborate rules which are also to apply to international conflicts;
 and they are rules which, in the Court's opinion, reflect what the
 Court in 1949 called "elementary considerations of humanity." (48)


This position has also been adopted by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. In its 1995 Tadic Appeal Decision, the Chamber noted that the ICJ had "confirmed that these rules reflect 'elementary considerations of humanity' applicable under customary international law to any armed conflict, whether it is of an internal or international character." (49) It therefore held that, "at least with respect to the minimum rules in Common Article 3, the character of the conflict is irrelevant." (50) Both of these international courts have thus found that the standards of Common Article 3 have evolved into a baseline of legal protection applicable in all armed conflicts.

Nonetheless, the U.S. Executive disregarded these authorities and maintained that the Geneva Conventions were inapplicable to Hamdan while simultaneously asserting the right to detain him on the basis of the "law of war." As noted above, it also maintained that even if the Court found the Geneva Conventions applicable as a matter of international law, they could not be given effect by U.S. courts. (51)

As to the first issue, the Supreme Court had a range of options before it. If it viewed the situation in Afghanistan as one single international armed conflict, the entire regime of the 1949 Conventions would be applicable. It would then have had to deal separately with the question of Hamdan's individual status in order to determine which protections he would receive under the Conventions. If it viewed it as a single non-international armed conflict, e.g., by reasoning that the United States intervened in an ongoing non-international armed conflict with the consent of the de jure government, or if it took the view that there was a separate conflict with al-Qaeda, it would have to determine whether Common Article 3 applies to such conflicts.

Ultimately, the Court chose not to take a position on whether there were two separate conflicts, and refrained from characterizing the nature of the conflict(s). In any event, it rejected the President's argument that no provision of the Geneva Conventions was applicable. The Court adopted the position that "there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories"--Common Article 3. (52) The Court reasoned that the "term 'conflict not of an international character' is used here in contradistinction to a conflict between nations," (53) essentially adopting the residual view of Common Article 3. It found that this provision
 affords some minimal protection, falling short of full protection
 under the Conventions, to individuals associated with neither a
 signatory nor even a nonsignatory [state] who are involved in a
 conflict "in the territory of" a signatory. The latter kind of
 conflict is distinguishable from the conflict described in Common
 Article 2 chiefly because it does not involve a clash between
 nations (whether signatories or not).
 In context, then, the phrase 'not of an international character'
 bears its literal meaning. (54)


In responding to the Executive's claim that the Geneva Conventions were not "judicially enforceable," the Supreme Court again had several options. There were various factors the Court could have cited in favor of, or against, a finding of self-execution. (55) Ultimately, the Court avoided answering the controversial self-execution question. Instead, the Court found that the "law of war," including the 1949 Geneva Conventions, had been incorporated by reference into Article 21 of the Uniform Code of Military Justice, and that this provision conditioned the Presidential power to create military commissions on compliance with that body of law as well as other relevant U.S. laws. (56) It then found, inter alia, that because the military commission trying Hamdan could not be regarded as a "regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples," as required by Common Article 3, the commission lacked power to proceed.

Thus, the Court effectively rejected the President's attempts to shed the restraints of international law. While not forming a part of the Court's written opinion, the bad faith evinced by the Executive's selective and opportunistic invocations of international law was surely not lost upon the Court.

This case also represented a legal defeat for the President in another sense. By insisting that the law of international armed conflict was not applicable, the Executive ruled out the application of the only branch of the law of armed conflict that could privilege the detention of enemy combatants. The law of non-international armed conflict, the applicability of which the Bush administration now concedes, grants no such privilege. (57) The ultimate irony in this case is that, as a matter of international law, the United States got the exact opposite of what it was seeking. Instead of conferring enhanced authority, the U.S. insistence on the armed conflict model has led only to increased legal restraints.

Notwithstanding this defeat, the President has pressed on with his strategy of bad faith exploitation of international law. In the wake of Hamdan, the White House went to Congress to effectively overturn that decision through legislation. (58) The Military Commissions Act of 2006 purports to prevent courts from applying the Conventions as a "source of rights" in actions against the U.S. government, (59) and to greatly curtail the ability of the judiciary to interpret those Conventions in virtually any other context. (60) Nonetheless, the Executive continues to rely on those same treaties to justify its conduct. In Boumediene v. Bush, (61) another Guantanamo detainee case currently pending before the Supreme Court, the U.S. brief asserts that "the laws of war--including the Geneva Convention--have long permitted the detention of members or supporters of hostile forces." (62) The very same brief responds to the Petitioner's invocation of rights under the Geneva Conventions, as well as the International Covenant on Civil and Political Rights, by asserting that such rights are not judicially enforceable in U.S. courts. (63)

Even though the President's subsequent efforts to modify domestic law undermined some of Hamdan's gains, the Supreme Court nonetheless has played a vital role in preventing the President from misusing international law as such, and it is essential that it continue to do so.

It is precisely this same role that the Supreme Court should play in the Medellin case. As noted above, in Medellin, the President seeks to be the sole decision-maker as to whether and how the United States complies with international law, and to have the power to compel anyone accordingly. Thus, the Court is once again faced with the President's assertion that he can dictate to the judiciary when international law must be applied and, more importantly, when it cannot be applied. The Court must continue to resist the President's attempts to take from it the power to determine and interpret the applicable law.

V. CONCLUSION

When it comes to governmental decision-making, trying to pin down motivating factors is rarely a simple matter. The Executive bureaucracy encompasses a vast spectrum of opinions, attitudes, objectives, and agendas. In all probability, it is a combination of many of the above-mentioned factors that motivated the President's intervention in Medellin.

How will the Supreme Court proceed? Any international jurist will recognize (and the Justices themselves might even admit) that when it comes to the application of international law within the domestic legal system, the Supreme Court is making it up as it goes along, and this is especially true for a case involving the legal status of international judicial authority. Ultimately, the Court could reasonably go in any one (or two) of the many different directions laid out by the parties and the amici, or another direction altogether.

In which direction should it go? It should order compliance with the Avena judgment. In general, the Supreme Court should accord ICJ judgments, in cases in which the United States is a party, the status of federal law.64 The Court should, of course, test the judgments for substantive compliance with the U.S. Constitution, and recognize that they may be overridden, as a matter of United States law, (65) by subsequent legislation, bearing in mind the adverse effects of using domestic law to contravene international law.

This approach flows naturally from the principle of good faith. The Court should presume good faith on the part of all relevant actors, including the ICJ, and the default position should be that the United States will comply with its international obligations in good faith and that all of its organs will act accordingly. (66) The international legal system is based on the principle that international legal obligations will be carried out in good faith. Selective compliance undermines the system. If there are compelling reasons for the United States not to comply with its international obligations, it should be the responsibility of the Congress and the Executive to make that determination cooperatively, with full knowledge of the costs of non-compliance, and to legislate accordingly.

One direction which the Court should reject is going down the garden path laid out by the U.S. amicus brief. As noted above, that position serves only to expand Executive power to the outer (or inner) reaches of international obligations without preserving any of the limitations inherent in legal obligation. The Executive should not have unfettered discretion to choose to implement those obligations that enable it to broaden its power, while rejecting those rules of international law that would restrain it. If international law is to serve as a source of power, it must also serve as a source of responsibility. If the President seeks to invoke international law as a basis of authority, he must also accept that international law binds him.

VI. POSTSCRIPT

In light of the recent judgment in the Medellin case on March 25, 2008, (67) the Symposium authors have all been invited to revise their contributions. While I am disappointed by the majority's disregard for Avena and, in particular, its narrowing of the doctrine of self-execution, (68) I am heartened by the Supreme Court's rejection of the U.S. President's position, as well as an improvement in its use of treaty terminology. (69)

Having had this additional time to reflect, I have re-examined whether my own hasty analysis may have been somewhat cynical, and considered that perhaps the predominant interests underlying the President's intervention were indeed those relating to ensuring reciprocal observance of the VCCR, protecting relations with foreign governments, and demonstrating commitment to the role of international law. Fortunately, the Supreme Court has pointed a way forward. The review and reconsideration indicated by the ICJ can yet be achieved in a way that would address all of these concerns. The President need only ask Congress to accord Avena the status of federal law. (70) While the 110th Congress may be reluctant to cooperate with the Bush Administration, simply making the request would be a sign of good faith.

I am not inclined to hold my breath. On the same day that Medellin was handed down, the U.S. Executive argued the case of Munaf v. Geren. (71) The Deputy Solicitor General argued that U.S. courts lacked jurisdiction to hear habeas petitions by U.S. citizens held by U.S. troops in Iraq because the petitioners were "being held under international authority pursuant to determinations made by an international multinational force acting and carrying out a United Nations mandate...." (72) As pointed out by Justice Souter, this would mean that "the President acting alone can make an agreement for an international force or a cooperative force and that agreement of the executive alone in effect eliminates habeas jurisdiction over an American citizen. "(73) This would seem even more striking as applied to an international force that is, in reality, a U.S. force with an international veneer. Once again, this case demonstrates the Executive's selective use of international law to expand its authority and to circumvent domestic legal restraints. While we are accustomed to seeing this President wrap himself in the U.S. flag to avoid the restraints of U.S. law, these cases reveal that he occasionally dons the UN banner as well.

Viewed in the context of this continuing pattern of opportunistic invocation of international law, the President's intervention in Medellin is stripped of the legitimacy of the interests it claims to serve.

(1.) See Cesare Romano, Prologue to THE SWORD AND THE SCALES: THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS, (Cesare Romano ed., Cambridge Univ. Press)(forthcoming 2008). One notable exception to the maintenance of a pragmatic approach seemed to be the Bush Administration's posture vis-a-vis the international Criminal Court (ICC), which has at times been spectacularly hostile. Id. Nonetheless, this position has moderated and seems to be returning to one of pragmatic exploitation. Id. Increasingly, Bush's anti-ICC remarks appear to be attempts to appease his neocon base while maintaining an instrumentalist policy. See John P. Cerone, Dynamic Equilibrium: The Evolution of U.S. Attitude Towards International Criminal Courts and Tribunals, 18 EUR. J. INT'L L. 277 (2007).

(2.) 126 S. Ct. 2749 (2006).

(3.) Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 72 (Mar. 31).

(4.) Id. at 72.

(5.) Id. at 66.

(6.) U.N. Charter art. 94, para. 1.

(7.) Medellin v. Dretke, 543 U.S. 1032 (2004).

(8.) Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 596 U.N.T.S. 487, 21 U.S.T. 325, n.l.

(9.) Letter from Condoleezza Rice, Sec'y of State, to Kofi A. Annan, U.N. Sec'y Gen. (Mar. 7, 2005). "This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol." Id.

(10.) Medellin v. Dretke, 544 U.S. 660, 663 (2005).

(11.) There were two other consular notification cases brought against the United States prior to Avena. They were Breard v. Green (brought by Paraguay) and LaGrand (F.R.G. v. U.S.) (brought by Germany). Breard v. Green, 523 U.S. 371 (1998); LaGrand (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27).

(12.) Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2683 (2006).

(13.) Id. at 2685.

(14.) Id.
 Moreover, shortly after Avena, the United States withdrew from the
 Optional Protocol concerning Vienna Convention disputes. Whatever
 the effect of Avena and LaGrand before this withdrawal, it is
 doubtful that our courts should give decisive weight to the
 interpretation of a tribunal whose jurisdiction in this area is no
 longer recognized by the United States.


Id.

(15.) Ex parte Medellin, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006).

(16.) Brief for the United States as Amicus Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1909462, *4 [hereinafter Brief for the United States].

(17.) See John Bellinger, Legal Adviser, U.S. Dep't of State, Next Steps in the U.S. Relationship with International Courts and Tribunals, Keynote address, at the George Washington Law Review Symposium (May 11, 2006); see also Press Release, John Bellinger, Legal Adviser, U.S. Dep't of State, XXIXth Roundtable on Current

Problems of International Humanitarian Law (Sept. 8, 2006), available at http://www.usmission.ch/press2006/0908BellingerSanRemo.html.; Press Release, John Bellinger, Legal Adviser, U.S. Dep't of State, The United States and International Law (June 6, 2007), available at http://www.state.gov/s/l/rls/86123.htm (the Darfur referral, the offer of assistance to the ICC Prosecutor in Darfur, and the transfer of the Taylor proceedings "reflect our desire to find practical ways to work with ICC supporters to advance our shared goals of promoting international criminal justice").

(18.) See Romano, supra note 1.

(19.) See Cerone, supra note 1, at 315.
 The US has tended to support international criminal courts where
 the US government has (or is perceived by US officials to have) a
 significant degree of control over the court, or where the
 possibility of prosecution of US nationals is either expressly
 precluded or otherwise remote. This was certainly the case for the
 post-World War II military tribunals, as well as the Security
 Council ad hoc tribunals. US support for the hybrid tribunals was
 similarly facilitated by the inclusion of jurisdictional
 limitations and other assurances of non-prosecution of US
 nationals. If the US is assured that US nationals will not be
 prosecuted (or, at least, not without its consent), it will engage
 in a balancing of interests to determine its level of support or
 opposition. Ideological leanings will of course color this
 balancing of interests and at times define some of those interests.
 To the extent that an administration's ideological strain in favor
 of criminal accountability is stronger than its ideological strain
 opposed to the creation of international authority, the prospect of
 US support of a given international criminal court seems to
 increase.


Id.

(20.) See Press Release, Office of the Press Sec'y, Fact Sheet: The Military Commissions Act of 2006 (Oct. 17, 2006), available at http://www.whitehouse.gov/news/releases/2006/10/20061017.html (providing stark example). It underscores in one section that the due process standards enshrined in the Act reflect standards employed by International Criminal Courts, while elsewhere emphasizing the importance of the Act's prohibition on utilizing international judicial decisions as legal authority. Id.

(21.) See Romano, supra note 1.

(22.) See Romano, supra note 1.

(23.) See Romano, supra note 1.

(24.) Torres v. State, No. PCD-04-442, 2004 WL 3711623, at *2 (Okla. Crim. App. 2004) (Chapel, J., concurring) (citing U.S. v. Carrillo, 70 F. Supp. 2d 854, 860 (N.D. Ill. 1999)). In Torres, the Oklahoma Court of Criminal Appeals ordered a review of the defendant's case in order to determine whether he was prejudiced by the failure to inform him of his right to consular notification. Id. at *1. Judge Chapel opined that the Court was "bound to give full faith and credit to the Avena decision." Id. at *3 (Chapel, J., concurring).

(25.) Brief for the United States, supra note 16, at 3.

(26.) Brief for the United States, supra note 16, at 3.

(27.) Brief for the United States, supra note 16, at 7.

(28.) Brief for the United States, supra note 16, at 10. The breadth of the language used in the U.S. amicus suggests that the President, when acting pursuant to a "duly ratified treaty and his own constitutional authority," would have the power to compel any natural or legal person, public or private, to comply with his determination, subject only to constitutional limitations imposed on the federal government as a whole. Id.

(29.) Brief for the United States, supra note 16, at 26.

(30.) Reacting to calls from six retired military generals for Donald Rumsfeld's resignation, the President publicly proclaimed, "But I'm the decider, and I decide what is best." Ed Henry & Barbara Starr, Bush: 'I'm the Decider' on Rumsfeld, CNN. com, Apr. 18, 2006, http://www.cnn.com/2006/POLITICS/04/18/rumsfeld/.

(31.) See John P. Cerone, The Military Commissions Act of 2006: Examining the Relationship between the International Law of Armed Conflict and US Law, ASIL INSIGHT (Nov. 13, 2006), available at http://www.asil.org/insights/2006/11/insights061114.html. A significant ambiguity is introduced by the U.S. administration's use of the term "law of war." Id. In international law, this phrase could refer to the jus ad bellum (i.e., the law regulating recourse to the use of armed force), as well as the jus in bello (i.e., the law regulating the conduct of hostilities). Id. Apart from the different possible meanings in international law, it could also refer to these bodies of international law as they are understood within the U.S. legal system (i.e., as interpreted by those empowered under U.S. law to do so). Id. It could also refer to this latter category as supplemented or modified by other related U.S. law, including common law, legislation, and other legal instruments. Id.

(32.) The United States continues to assert this position in UN forums. See Letter from the Permanent Rep. of the U.S. to the U.N. and Other Int'1 Org. in Geneva, to the High Commisioner for Human Rights (Jan. 31, 2006). "The United States has made clear its position that it is engaged in a continuing armed conflict against Al Qaida, [and] that the law of war applies to the conduct of that war and related detention operations...." Id. Indeed, the United States justifies its continued detention of the Guantanamo detainees by reference to the law of armed conflict. In replying to inquiries by UN and related human rights bodies about the legal basis for detaining the individuals at Guantanamo, the United States has consistently asserted that "[t]he law of war allows the United States--and any other countries engaged in combat-to hold enemy combatants without charges or access to counsel for the duration of hostilities." See Response of the United States of America to Inquiry of the UNCHR Special Rapporteurs dated August 8, 2005 Pertaining to Detainees at Guantanamo Bay (Oct. 21, 2005); see also Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, U.N. Doc. Cat/C/48/Add.3 (June 29, 2005).

(33.) Thom Shanker & Katherine Q. Seelye, A Nation Challenged: Captives; Behind-the-Scenes Clash that Led Bush to Reverse Himself on Applying Geneva Conventions, N.Y. TIMES, Feb. 22, 2002.

(34.) See Brief for the Respondents, Rasul v. Bush, 542 U.S. 466 (2005) (Nos., 03-334, 03-343), 2004 WL 425739. [hereinafter Brief for the Respondents].

(35.) To determine whether the Conventions' rules pertaining to international armed conflict are applicable as such, the relevant inquiry is not whether al-Qaeda or the Taliban were "parties" to the Conventions, but whether Afghanistan is a state party--and, of course, it is. As for the rules applicable to non-international armed conflict, the only essential state party in this context is the United States.

(36.) See Brief for the Respondents, supra note 34, at 36.

(37.) Brief for Respondent, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184), 2006 WL 460875; Exec. Order No. 13,440, 72 Fed. Reg. 40,707 (July 20, 2007).

(38.) See Brief for the Respondents, supra note 34 at 35.

(39.) See Brief for the Respondents, supra note 34, at 36.

(40.) See Brief for the Respondents, supra note 34, at 24.

(41.) See generally The Detainee Treatment Act of 2005, Pub. L. No. 109-148, [section][section] 1001-106, 119 Stat. 2680, 2739-44 (2005).

(42.) See Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Convention Relative to P.O.W.].

(43.) Convention Relative to P.O.W., supra note 42, at art. 3.

(44.) See Convention Relative to P.O.W., supra note 42, at art. 3. Under Common Article 3, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to ... [p]ersons taking no active part in the hostilities, including ... those placed hors de combat ...

(a) violence to life and person in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Id.

(45.) Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2796-97 (2006).

(46.) Id. at 2762.

(47.) It should be noted, however, that there has been within the U.S. military a long standing policy giving a very broad read to Common Article 3, holding it applicable in a wide range of military operations.

(48.) Military and Paramilitary Activities (Nicar, v. U.S.), 1986 LCT 14, 218 (June 27) (citing Corfu Channel Chase (U.K. v. Alb.), 1949 I.C.J. 4,2 (Apr. 29)). Although the Court ultimately refrained from characterizing the conflict in which the United States was engaged in Nicaragua, it held that Common Article 3 would apply in any event as a minimum yardstick for all armed conflicts. Id. It thus clearly took the position that Common Article 3 applies beyond a state's territory. Id.

(49.) Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, [paragraph] 102 (Aug. 10, 1995).

(50.) Id.

(51.) Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2762 (2006).

(52.) Hamadan, 126 S. Ct. at 2756-57. The Court reserved judgment on whether other provisions of the Conventions were applicable. By taking this position, the Court essentially also adopted the position taken by the ICJ that Common Article 3 is a "minimum yardstick" for all armed conflicts, international or non-international. Id.

(53.) Id. at 2795.

(54.) See id. at 2757. Ultimately, it is unclear whether the Court found Common Article 3 applicable as such, or whether it found that the rules of Common Article 3 would be applicable in any event. For example, by envisioning Common Article 2 and Common Article 3 as drafted in contradistinction to each other, it seems to imply that they are mutually exclusive. Thus, it would seem that the Court would have to find either that the conflict was non-international such that Common Article 3 would apply, or that it was international and the rest of the convention would apply, to the exclusion of Common Article 3. Ultimately, however, the Court apparently finds that Common Article 3 would apply irrespective of the nature of the armed conflict. This could be understood as finding that the rules of Common Article 3, as fundamental minimum standards, are in fact provided for in other terms, and supplemented with much greater protections, elsewhere in the Conventions. Id.

(55.) Arguments against a finding of self-execution included the embedding of the law of armed conflict within the traditional interstate structure of the international legal system, the fact that the Conventions establish an interstate mechanism for the vindication of Convention rights, as well as the finding by at least two U.S. courts of appeals that the Conventions were not self-executing and a 1950 Supreme Court dictum emphasizing the interstate nature of the rights created by the 1929 Geneva Convention, an earlier treaty regulating the treatment of prisoners of war. See Hamdi v. Rumsfeld, 316 F.3d 450, 468 (4th Cir. 2003); Hamdan v. Rumsfeld, 415 F.3d 33, 40 (D.C. Cir. 2005) (the court of appeals decision in the present case); Johnson v. Eisentrager, 339 U.S. 763, 789, n.14 (1950). In favor of a finding of self-execution were the dramatic changes that occurred in the international legal system following the Second World War, including the innovative provisions included in the 1949 Conventions to overcome deficiencies in earlier treaties and growing recognition of the individual human being as a subject of international law. In particular, the 1949 Conventions contain provisions on the non-renunciation of rights conferred by the treaties, increasing their use of the term "rights" (accompanied by loosening the link between individual and state that was traditionally understood as a necessary corollary to those rights), the advent of a regime for prosecution of war criminals, and the abandonment of compensation as the exclusive remedy for breaches.

(56.) See Hamdan, 126 S. Ct. at 2786.

(57.) The international legal rules providing the combatants' privilege and authority to detain exist only in the law of international armed conflict, as they result from the reciprocal exchange of rights and duties as between warring states. However, to say that international law grants no authority to detain enemy combatants in the context of a non-international armed conflict is not necessarily to say that it is prohibited. In an internal armed conflict, the paradigm case of a non-international armed conflict, the state is of course free to detain and prosecute enemy combatants. It requires no international authority to do so. This would not be the case, however, when the state acts outside of its own territory. John P. Cerone, Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-International Armed Conflict in a Transnational Context, 40 Isrz. L. Rev. 72 (2007).

(58.) The Hamdan court applied Common Article 3 as incorporated into U.S. law through an Act of Congress. Hamdan, 126 S. Ct. at 2802. As a result, the administration has been able to go to Congress to enact new legislation to override the Court's interpretation.

(59.) Military Commissions Act of 2006, 10 U.S.C. [section] 948a (2006) [hereinafter MCA].

(60.) The Military Commissions Act of 2006 (MCA) purports to give the President sole power to definitively interpret "the meaning and application of the Geneva Conventions," effectively depriving courts of their central function. MCA [section] 6(a)(3)(A) & (C). But see MCA [section] 6(a)(3)(D). Pursuant to authority granted by the MCA, the President in July 2007 signed an Executive Order that determined that "members of al Qaeda, the Taliban, and associated forces" are not entitled to prisoner of war status, and that a "program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3," provided that certain conditions set forth in the order are met. Exec. Order No. 13,440, 72 Fed. Reg. 40,707 (July 20, 2007). The Order "interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States." Id. The Order purports to embed in domestic law a unilateral interpretation of international law, a body of law that is beyond the power of the United States to unilaterally amend. While it is to be expected that the Executive would interpret the law in the first instance, this Order leaves no room for the judiciary to interpret the treaty provision differently. The inclusion of the phrase "including satisfaction of the international obligations of the United States" would seem even to prevent courts from recognizing that the Order puts the United States in default of its international obligations or in any way deviates from them. It could even foreclose recourse to the Charming Betsy rule, which generally requires that ordinary domestic law be interpreted consistently with international law whenever possible. See generally Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).

(61.) 127 S. Ct. 3078 (2007) (No. 06-1195), 2007 WL 2972541.

(62.) See Brief for the Respondents, supra note 34; Boumediene, 127 S. Ct. 3078, 2007 WL 2972541, at *64-65.

(63.) Boumediene, 127 S. Ct. 3078, 2007 WL 2972541, at *71-72.

(64.) That is not to say they should accord it the status of a decision of the Supreme Court, nor that it should have any precedential effect. As such, the Supreme Court would not necessarily be bound by the ICJ's interpretation of the VCCR in comparable cases, notwithstanding ICJ dicta to the contrary. See Avena, 2004 I.C.J. at 69-70. The Avena case would simply form part of the applicable law in those cases in which the United States is bound by a particular ICJ judgment. Nonetheless, giving the case precedential effect would seem to be a more coherent approach.

(65.) The international legal obligation would of course continue in force, but the later in time rule would apply as applicable U.S. law.

(66.) Such a presumption is grounded in existing U.S. law. For example, the well-established Charming Betsy Rule, which provides that Acts of Congress must be interpreted by U.S. courts in harmony with international law whenever possible, is predicated on the presumption that Congress intends to act in accordance with the international legal obligations of the United States. See generally Murray, 6 U.S. (2 Cranch) 64. This approach, however, would not necessarily be compelled by international law. As noted above, international law generally leaves the manner of compliance within the state's discretion. Even in a case such as Avena, where the ICJ indicated that the task to be undertaken was suited to a judicial proceeding, this still leaves considerable room in shaping the contours of implementation.

(67.) Medellin v. Texas, 128 S. Ct. 1346 (2008).

(68.) The Court sets an extremely high bar for textual indications of self-executing status. It essentially requires that the treaty text demonstrate an intent that the relevant rules set forth in the treaty should automatically form part of the law applicable in the courts of states parties. While this is conceivable in the context of a bilateral treaty, in which specific accommodation could be made for the differences in the legal systems of the two parties, this understanding of the doctrine makes little sense in the context of multilateral treaties, which are designed to be accessible to a multitude of states with diverse legal systems. The Court's principal error, in deriving this standard, is its conflation of the question of whether a treaty is self-executing with the distinct question of whether the treaty entails an obligation to have the rules in the treaty form part of the applicable law within the legal system of the state party. In so doing, the Court turns on its head a doctrine that was designed to promote compliance with treaty obligations.

The judgment may have even more serious implications for the treaty making process. A central feature of the Court's reasoning is the constitutional role of Congress as law-maker. It thus shifts the focus of its inquiry to Congress, and seems pre occupied with the congressional role in the treaty-making process, as well as the view of Congress. Thus, the Court states that where the President seeks to make a treaty that has domestic effect of its own force by plainly providing for domestic enforceability, "the Senate must consent to the treaty by the requisite two-thirds vote." Seeming to tacitly acknowledge that it is indeed making it up as it goes along, the Court cites no authority for this proposition other than a provision of the Constitution that simply does not address the issue. This dictum seems to exclude Executive Agreements and even Congressional-Executive Agreements from qualifying for self-execution. The exclusion of the latter would be particularly absurd, considering that they are concluded with the consent of a majority of both houses.

(69.) The majority, however, still slips up in places, referring to Congressional approval as "ratification" and using the term "signatory" when it means "party."

(70.) This is certainly not the only way forward. The states, of course, are free to follow Avena, as Oklahoma has, if they determine that such would be an appropriate remedy for what the federal government has already admitted were violations of the Vienna Convention.

(71.) Transcript of Oral Argument, Munaf v. Geren (No. 06-1666) (Mar. 25, 2008), available at http://www,supremecourtus.gov/oral arguments/argument-transcripts/061666.pdf.

(72.) Id. at 5.

(73.) Id. at 7.

John Cerone*

* Associate Professor of Law and Director of the Center for International Law and Policy at New England School of Law. The author would like to thank Angela Davis for her assistance.
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Title Annotation:The Medellin v. Texas Symposium
Author:Cerone, John
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2008
Words:9506
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