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Tuesday, April 8, 2008

Medellin and Contracts Revisited II

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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. 

[Jeremy Telman]

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Comments

Excellent posts. I have a few reply comments.

First, if it is arguable that the CISG may not be self-executing on the basis that there is no express language in the treaty itself to this effect, then one is hard-pressed to identify any treaty or convention which passes muster (perhaps some of the blog’s readers have examples).

Second, I note that Article 91 of the CISG is explicit in the manner in which ratification, accession, acceptance or approval by Signatory States is effected.

Third, according to § 111 cmt. h of the Restatement (Third) of the Foreign Relations Law of the United States:

“In the absence of a special agreement, it is ordinarily for the United States to decide how it will carry out its international obligations. Accordingly, the intention of the United States determines whether an agreement is to be self-executing in the United States or should await implementation by legislation or appropriate executive or administrative action. If the international agreement is silent as to its self-executing character and the intention of the United States is unclear, account must be taken of any statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole for approval, and of any expression by the Senate or by Congress in dealing with the agreement." [emphasis added]

Fourth, Carlos Manuel Vazquez in his article, “The Four Doctrines of Self-Executing Treaties, The American Journal of International Law, Vol. 89, No. 4. (Oct., 1995), pp. 695-723 at 722, offers a useful taxonomy:

“Bringing coherence and analytical clarity to this area of the law requires recognition that the self-execution ‘doctrine’ addresses at least four distinct types of reasons why a treaty might be judicially enforceable [beyond reference to the Supremacy Clause]. First, a treaty might be judicially unenforceable because the parties (or perhaps the U.S. treaty makers unilaterally) made it judicially unenforceable. This is primarily a matter of intent. Second, a treaty might be judicially unenforceable because the obligation it imposes is of a type that, under our system of separated powers, cannot be enforced directly by the courts. This branch of the doctrine calls for a judgment concerning the allocation of a treaty-enforcement power as between the courts and the legislature. Third, a treaty might be judicially unenforceable because the treaty makers lack the constitutional power to accomplish by treaty what they purported to accomplish. This branch of the doctrine calls for a judgment about the allocation of legislative power between the treaty makers and the lawmakers. Finally, a treaty provision might be judicially unenforceable because it does not establish a private right of action and there is no other legal basis for the remedy being sought by the party relying on the treaty. Unlike the first three categories of non-self-executing treaties, a treaty that is non-self-executing in the fourth sense will be judicially unenforceable only in certain contexts. These four issues are sufficiently distinct and require sufficiently differing analyses that they should be thought of as four distinct doctrines.”

Finally, based upon the CISG’s Preamble and the establishment of correlative private rights of actions and remedies availing both buyers and sellers involved in an international commercial sales transaction, the CISG is self-executing and judicially enforceable under any of the Vazquez’s four distinct doctrines.

Antonin I. Pribetic

Posted by: Antonin I. Pribetic | Apr 8, 2008 12:10:02 PM

Just wait until the first time some plaintiff's lawyer suing Boeing or an airline argues that the Warsaw Convention was never properly enacted in the US, and hence state tort law governs the liability issue notwithstanding 80 years of reliance. I'll predict that the Court, in an opinion joined by least Roberts and Alito, manages to distinguish Medellin.

Posted by: Avery Katz | Apr 8, 2008 1:00:17 PM

And there may indeed be good reason, based in treaty language, legislative history, executive pronouncements, prolonged practice or the reasonable expectations of the parties, to believe that a case involving the CISG or the Warsaw Convention is distinguishable from Medellin.

Antonin, I find Professor Vazquez's article persuasive, and it is cited, along with Professor Martin Flaherty's equally learned and thoroughly researched article, by Justice Breyer in dissent. I was a bit surprised that the majority opinion did not engage this scholarship. In any case, I cannot reconcile Justice Roberts' approach with Professor Vazquez's.

Posted by: Jeremy Telman | Apr 8, 2008 1:44:32 PM

Me neither. I'm sure some ingenious commercial lawyer will probably try to make the argument, but as Avery Katz rightly asserts, Medellin will likely be distinguished.

Antonin I. Pribetic

Posted by: Antonin I. Pribetic | Apr 8, 2008 2:06:40 PM

A fortiori my earlier point on Article 91, the CISG is self-executing by virtue of Article 99 which reads in part:

Article 99
(1) This Convention enters into force, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92 [note: only Denmark, Finland, Norway and Sweden have made a declaration under article 92].

(2) When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.
...
(6) For the purpose of this article, ratifications, acceptances, approvals and accessions in respect of this Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective. The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination in this respect.[emphasis added]

See also, Virginia G. Maurer, “The United Nations Convention on Contracts for the International Sale of Goods”, 15 Syracuse J. Int'l L. & Com. (1989) 361-389 at fns.12 and 13,(available on the Pace CISG website at: http://cisgw3.law.pace.edu/cisg/biblio/maurer.html )

Interestingly, Professor Vazquez has just posted an article "Treaties as Law of the Land: The Supremacy Clause and Presumption of Self-Execution" (April 08, 2008). 121 Harvard Law Review, Forthcoming 2008 Available at SSRN: http://ssrn.com/abstract=1118063 which refers to the CISG as self-executing at footnote 191.

Highest Regards,

Antonin I. Pribetic

Posted by: Antonin I. Pribetic | Apr 9, 2008 9:42:54 AM

Antonin, in my view none of this language has anything to do with self-execution. It merely sets forth when the CISG enters into force as an international obligation. That is, if you are the first state to ratify, you are still not fully bound as a matter of international law until the conditions set forth in Article 99 are satisfied.

There is of course no question that the CISG has entered into force. There is no question that the VCCR has entered into force. Justice Roberts acknowledges that it is an international obligation. But because our law does not automatically incorporate international obligations into domestic law, entry into force does not mean self-execution.

Is there something I am missing?

Posted by: Jeremy Telman | Apr 9, 2008 1:06:54 PM

Article 99(2) uses the language "enters into force in respect of that State" which, in my view, speaks to the issue of self-execution.

Antonin I. Pribetic

Posted by: Antonin I. Pribetic | Apr 9, 2008 1:19:17 PM

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