March 25, 2008
Medellin and Contracts
The U.S. Supreme Court today decided Medellin v. Texas. Links to the opinion as well as extended scholarly discussion of the case can be found, for example, on Opinio Juris, here, and on SCOTUSblog, here, here and here. The crucial question in the case is whether the International Court of Justice's 2004 ruling in Mexico v. U.S. (Avena) requires implementation by state courts (in this case Texas courts) where the President has issued a memorandum directing state courts to implement the decision.
In Avena, the ICJ found that the U.S. had violated its obligations under Article 36 of the Vienna Convention on Consular Relations by failing to advise foreign nationals who are criminal suspects of their right to consular notification and consultation. The ICJ suggested that the appropriate remedy was a case-by-case review and reconsideration to determine whether the foreign nationals had suffered prejudice because they were denied their right of consular notification and consultation. Medellin, who was arrested, convicted and sentenced to death in Texas without being informed of his Article 36 rights, is one of the criminal defendants potentially affected by the rulling. Texas has taken the position that the ICJ ruling cannot override state procedural rules limiting defendants' rights to file successive habeas petitions and that the President lacks constitutional authority to require state courts to comply with a decision of the ICJ.
In an opinion authored by Chief Justice Roberts, the U.S. Court ruled 6-3 in favor of Texas. Justice Roberts first noted that the ICJ statute is not a self-executing treaty and that Congress has taken no action to make it so. Article 94 of the U.N. Charter, under which each state undertakes to comply with decisions of the ICJ, does not mean that there are to be domestic remedies in case of non-compliance. The Chief Justice also found no authorization, either from Congress or in the Constitution, empowering the President to direct state courts to implement a decision of the ICJ.
So, how does this relate to contracts? Well, first, there is some overlap between this ruling and a previous post about how recent developments in U.S. doctrine are creating new obstacles for parties considering entering into agreements with the U.S. The majority's expansive view of the doctrine of non-self-executing treaties leaves the U.S. (or in this case state governments) free to refuse to abide by the U.S.'s international obligations. As Justice Breyer's dissenting opinion makes clear, there are strong arguments suggesting that the purpose of the Supremacy Clause was to create a presumption that treaties are self-executing.
Second, contracts scholars are already discussing the ramifications of this opinion with respect to the Convention on the International Sale of Goods. If Article 94 of the U.N. Charter does not obligage the U.S. to implement decisions of the ICJ by enforcing them domestically, could there be a problem if, for example, state courts were to decide that the CISG is not binding on them?
The Medellin opinion is long and I just gave it a quick read. I will be grateful to anyone who can provide additional thoughts on the opinion and/or corrections to my initial chracterization of it. I also welcome thoughts on the CISG issue.
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