Hofstra lawprof Julian Ku passes along the following:
I thought you (and maybe your blog readers) would be interested to know that the International Court of Justice today issued a Final Judgment in Avena (Mexico v. United States) finding that the United States breached its obligations to Mexico under the Vienna Convention for Consular Relations. In particular, it appears to find that specific provisions of United States law, the “procedural default” doctrine as applied to foreign nationals arrested and convicted of capital crimes, violates the U.S.’s treaty obligations and that U.S. “review and reconsideration” of foreign nationals’ capital convictions must take place in judicial rather than executive clemency hearings. This judgment is likely to force the Supreme Court, the President and state governors, to confront a difficult conflict between international treaty obligations and domestic federal and state law.
In a previous case, the Supreme Court refused to use the Vienna Convention to suspend a state execution because, among other things, the Anti-terrorism and Effective Death Penalty Act (AEDPA) (a federal statute) prevented defendants from raising treaty violations in their habeas proceedings. The ICJ, however, has now held that application of this procedural default rule violates the Vienna Convention.
Under domestic U.S. law, a later in time federal statute like the AEDPA is given effect by the Supreme Court unless and until Congress revises it. But some members of the Supreme Court, especially Justice Breyer, have suggested in related decisions that the ICJ interpretation of the treaty obligation should be given effect instead of the federal statute because the ICJ has the power to issue “authoritative interpretations” of U.S. treaty obligations.
This is a troublesome approach because Justice Breyer is suggesting that the ICJ’s interpretation of U.S. treaty obligations is authoritative, even in the face of prior Supreme Court interpretations to the contrary. In other words, he is giving the ICJ the final word on the interpretation of U.S. treaty obligations, even with respect to how those obligations affect other domestic laws, such as the AEDPA statute. I think this is a dangerous approach that shifts too much interpretive authority to the ICJ. The judgment as to whether a treaty should modify domestic U.S. law, or be interpreted to avoid domestic U.S. law, should be held by the U.S. courts alone.
If the Supreme Court does not follow Justice Breyer’s approach, the ICJ’s opinion will still raise separation of powers and federalism problems. In theory, President Bush is under an international legal obligation to order the governors of the various states where Mexican nationals face execution to suspend those executions and hold new trials. But aside from being politically unattractive, such an act would be an remarkable assertion of unilateral federal power into traditional matters of state control.
It seems to me that there are two ways out of these difficulties. First, as they have done in the past, the state governors and courts should consider suspending these pending executions (Oklahoma has scheduled one on May 18) on their own authority out of deference to the ICJ opinion and maybe if President Bush (through the State Department) requests that they do so. Second, Congress could amend the federal statute in question to permit foreign nationals to raise such treaty
violations during habeas proceedings.Of these two possibilities, the former is more likely (although far from certain). But all of these issues will likely be dealt with in the coming weeks because Oklahoma has set a May 18 execution date for one of the Mexican nationals covered by this ICJ judgment. My very able former colleagues at Debevoise & Plimpton in New York are probably preparing briefs and motions to file in the next few days.
I’m no expert on this subject, but Prof. Ku is, so I thought I’d pass along his thoughts.
Comments are closed.