Tuesday, April 8, 2008
Justice Roberts' opinion in Medellin v. Texas has been praised as "modest and fairly careful." But on the crucial question of self-execution, I find the opinion both bold and confusing. Bold, because I think the petition for cert. was improvidently granted in this case. As Justice Roberts notes in footnote 1 of the opinion, because Medellin confessed within three hours of his arrest, and because according to the ICJ's judgment in Avena, consular notification would have been timely if effected within three days, Medellin could not have been prejudiced based on the U.S. violation of the Vienna Convention on Consular Relations. The Texas courts so found on the merits of Medellin's habeas petition. The Court could have simply upheld that decision as satisfying the "review and reconsideration" required by Avena. End of the matter.
I find Roberts' opinion confusing on the vital matter of what it takes to make an international agreement self-executing. Or to put it in less technical language, when does an international agreement have direct effect as domestic law even without any congressional implementing legislation and under that test, must state courts give effect to the CISG in disputes where it provides governing law? Michael Van Alstine and Antonin I. Pribetic provide reasoned grounds for thinking that the CISG is a self-executing agreement under the test articulated by Justice Roberts.
Van Alstine writes:
Chief Justice Roberts' opinion in Medellin does not require express language for self-execution. Indeed, at one point he refers to the intent of the Senate upon giving its consent to treaty ratification. See slip op. at 12 (reasoning in part that the UN Charter was not self-executing because there was no "indicat[ion] that the Senate that ratified the U. N. Charter intended" it to have direct domestic law effect). Moreover, he quoted with approval Judge Boudin's opinion from Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (1st Cir. 2005) to the effect that a treaty need merely "convey an intention that it be 'self-executing' and [be] ratified on these terms.” Slip op. at 9.
Antonin Pribetic applies Justice Roberts' reasoning to the CISG as follows, beginning with a quotation from page 9, fn 3 of the Majority opinion:
"Accordingly, a number of the Courts of Appeals have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary. [citations omitted]."
Clearly, the CISG does "create private rights" or does "provide for a private cause of action", in circumstances where both parties are from Contracting States (CISG, Art. 1(1)(a)) and the pre-requisites of applicability, internationality and territoriality are otherwise met (Art. 2-6).
These readings of Roberts' opinion are well-justified and should prevail.
But the dissent provides an alternative reading of Roberts' opinion which is not without support in that text. For example, the language from Igartúa-De La Rosa v. United States quoted by Michael Van Alstine above actually suggests to me (as it does to the dissent) that a court must look to language in the treaty conveying an intention that the treaty be self-executing. This reading is reinforced on page 18 of the opinion where Justice Roberts writes that "we do think it rather important to look to the treaty language to see what is has to say about the issue" of self-execution.
But as the dissent points out at page 12 (quite rightly in my opinion), it is unlikely that a multilateral treaty would ever address the issue of self-execution, as that issue is handled differently in different domestic contexts. Rather, treaties usually express the expectation (though language such as the U.N.Charter Art. 94's "undertake to comply") that states will take whatever measures are necessary as a matter of domestic law to make the relevant provisions effective as a matter of domestic law.
In short, I think a smart commercial lawyer whose client would prefer to have her contract governed by the U.C.C. could convince a trial court that Justice Roberts' opinion now means that because there is no language in the CISG that expresses or implies an intention on the part of the parties to the CISG that it be a self-executory agreement, it cannot be given direct effect by U.S. courts absent congressional legislation to that effect.