Treaties as "Part of Our Law"
Young, Ernest A., Texas Law Review
Justice Gray famously wrote in The Paquete Habana1 that "[iInternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination."2 The succeeding century has seen a great deal of sparring among courts and commentators as to what, exactly, that memorable phrase means for the status of international law within the domestic legal system. The Paquete Habana itself concerned customary international law, and scholars continue to debate whether that law amounts to supreme federal law.3 More recently, controversy has shifted to the domestic status of treaties.4 The Supremacy Clause plainly makes treaties "part of our law";5 the question is what that status entails for the interpretation and enforcement of treaty provisions.
The interpretation and force of treaties in domestic courts lie at the heart of a line of recent cases concerning the Vienna Convention on Consular Relations (VCCR).6 The VCCR requires law enforcement officials to notify foreign nationals whom they arrest of the foreign nationals' right to consult with their consulates.7 Dual opinions by the International Court of Justice (ICJ), culminating in its 2004 Avena9, decision, found the United States in violation of the VCCR and required American courts to give the treaty effect, notwithstanding domestic doctrines limiting the enforceability of its provisions in certain circumstances.9 The U.S. Supreme Court rejected Avena's construction of the treaty in Sanchez-Llamas v. Oregon,10 refusing to give much deference to the ICJ' s interpretation."
The VCCR saga took a more curious turn when, in a rare fit of multilateralism, President George W. Bush sought to enforce the ICJ' s judgment by directing an unusual executive order to the state courts.12 The Supreme Court rejected the President's effort in Medellin v. Texas,13 and it further held that ICJ judgments lack "self-executing" effect within the domestic legal system.14 Medellin's latter holding was the first Supreme Court intervention in recent memory into a longstanding debate among the courts of appeals (and scholars of foreign relations law) concerning when a treaty should be considered to have domestic legal force without further action by the national political branches.
This extraordinary sequence of rulings and events concerning the VCCR may well be sui generis in any number of ways, but the issues of interpretive deference and self-execution that it raises are likely to recur across any number of other treaty regimes, from trade to terrorism. In debates about the domestic status of international law generally, internationalists typically invoke The Paquete Habana for the proposition that domestic courts and officials should be more receptive to international law;15 nationalists, on the other hand, generally seek to maintain a firewall between international and domestic law, and to leave decisions about which norms pass through that firewall to national political officials.16 I argue here that, contrary to conventional assumptions, The Paquete Habana principle does not necessarily support various internationalist doctrinal prescriptions and that, properly considered, it frequently buttresses more nationalist positions.
The point is a general one. In an earlier piece on customary international law (CIL), I argued that the "modern position" - which treats CIL norms as supreme federal law with binding effect in every case within the scope of those norms - is not actually consistent with the way federal common law works.17 Rather, federal courts articulate federal common law rules only when the otherwise-applicable state law would conflict with some particular federal interest (and not some generic federal interest in "uniformity" for its own sake).18 Treating CIL as part of our law would thus subject it to the same highly contextual conflicts analysis that federal courts apply in domestic cases not governed by federal statutes, treaties, or constitutional provisions.19
This Article makes a similar point about treaties. As internationalist scholars often point out, the Supremacy Clause explicitly recognizes treaties as supreme federal law.20 These scholars often argue that proper respect for treaties requires that domestic courts defer to interpretations of treaty provisions by supranational bodies21 and that treaties be treated as (at least presumptively) self-executing in all instances.22 But these internationalist conclusions do not necessarily follow from the premise that treaties are the supreme law of the land. Taking treaties seriously as part of our law - that is, treating them the same way we treat federal statutes and constitutional provisions - actually supports a number of conclusions generally advanced by nationalists. First, if treaties are part of our law, then there is no reason to defer to foreign or supranational courts in interpreting them. Rather, as the Supreme Court recently recognized in Sanchez-Llamas v. Oregon,2^ interpreting treaties falls within the Court's familiar duty to "say what the law is."24 Second, it does not follow from a treaty's status as supreme federal law that it is necessarily self-executing in a number of the senses in which that term is generally employed. Domestic federal law is frequently nonself-executing: many statutes provide no private rights of action and some impose no enforceable legal norms at all. Treating treaties as "part of our law" thus does not absolve interpreters of the difficult task of determining precisely what the treaty makers wished to accomplish.
My argument is that the VCCR cases represent a "normalization" of treaty law - that is, that the Court's decisions demonstrate a determination to approach treaties in much the same way that the Court approaches statutes and other more familiar forms of federal law. Just as federal statutes are not necessarily self-executing, so too with treaties. This uniform approach makes sense in a world where treaties and statutes increasingly address the same sorts of problems and have similar effects on settled domestic practices. If Medellin and Sanchez-Llamas do, in fact, represent an effort to consolidate the treatment of these disparate forms of supreme federal law, then the VCCR cases will have far-reaching (although not surprising) implications.
Part I of this Article discusses the question of interpretive authority. Part II addresses the self-execution problem. Part III considers the more general matter of normalizing treaty law.
I. Interpretive Authority
Treaties have a dual existence: they are part of international law and, by virtue of the Supremacy Clause,25 simultaneously part of "the supreme Law of the Land."26 They are thus necessarily shared law among multiple jurisdictions and multiple interpreters, including not only the courts of other signatory nations but also, for some treaties, supranational judicial bodies like the ICJ. This situation necessarily raises questions of interpretive primacy and deference: When a domestic court must construe a treaty provision, to what extent should it defer to prior interpretations of the same provision by foreign or supranational courts?
In Sanchez-Llamas v. Oregon, Chief Justice Roberts's majority opinion insisted on the Supreme Court's own primary authority - and obligation - to "say what the law is," even in cases involving treaties.27 I argue here that this was exactly the right thing to do and that arguments for more binding forms of deference, founded either in notions of "comity" or in analogies to the treatment of judgments in private law cases, are unpersuasive.28 This Article discusses comity as well as three other models of interpretive deference grounded in domestic law. None of these models, I contend, adequately captures the function of the Supreme Court in interpreting treaty obligations.
A. Sanchez-Llamas, Avena, and the Problem of Interpretive Deference
The Sanchez-Llamas litigation involved two consolidated cases arising under the VCCR. Article 36 of the Convention guarantees that consular officials of signatory nations will have access to their nationals when officials of another signatory nation detain those nationals.29 When they detain a foreign national, government authorities must notify that national's consulate if he requests it, and they must inform the detained foreign national of this right "without delay."30 Moisés Sanchez-Llamas, a Mexican national, was convicted in Oregon state court of attempted aggravated murder after a shoot-out with police and sentenced to twenty and one-half years in prison.31 Mario Bustillo, a Honduran national, was convicted in Virginia state court of first-degree murder after a fight outside a restaurant and sentenced to thirty years in prison.32 Neither Mr. Sanchez-Llamas nor Mr. Bustillo was notified by police of his rights under the VCCR.33
On appeal to the U.S. Supreme Court, Mr. Sanchez-Llamas and Mr. Bustillo presented quite different issues. Sanchez-Llamas had invoked his VCCR rights before the state courts and sought to suppress incriminating statements that he made to police prior to notification of the Mexican consulate.34 His appeal therefore asked whether the Miranda-style exclusion of evidence is a proper remedy for violation of a foreign national's rights under the VCCR.35 Bustillo, on the other hand, failed to raise the VCCR issue before the state trial court or on direct review; he presented the issue for the first time in a state petition for habeas corpus.36 His case thus concerned whether the doctrine of procedural default - which holds that a habeas petitioner's failure to comply with state procedural rules for presenting federal claims bars collateral review on habeas37 - applies to VCCR claims.38
Although I will have a few things to say about the exclusionary-rule issue, my primary concern here is with the Court's resolution of Mr. Bustillo's claim. What makes that claim interesting is that the central issue - the relationship between the procedural default doctrine and the VCCR - had already been addressed by both the Supreme Court and the ICJ. In Breara v. Greened a Paraguayan national convicted of capital murder argued that he was entitled to raise a VCCR claim for the first time on collateral review because "the Convention is the 'supreme law of the land' and thus trumps the procedural default doctrine."40 The Supreme Court rejected that argument, observing that "it has been recognized in international law that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State."41 The ICJ reached the opposite conclusion eight years later, however, in the Avena case. Avena, which concerned the VCCR claims of fifty-four Mexican nationals on death row in various American states, found violations of the Convention in the overwhelming majority of the cases, and ordered the United States to provide "review and reconsideration" of each prisoner's conviction and sentence.42 Citing its earlier decision in the LaGrand case,43 the ICJ further held that the American doctrine of procedural default violated the VCCR by preventing domestic courts from giving "full effect" to the treaty's provisions.44
Naturally, Mr. Bustillo invoked Avena in support of his argument that procedural default should not bar his VCCR claim.45 An amicus brief of "International Court of Justice Experts" went so far as to urge that "the United States is obligated to comply with the Convention, as interpreted by the ICJ."46 Chief Justice Roberts's majority opinion rejected this suggestion, however. "If treaties are to be given effect as federal law under our legal system," he wrote, "determining their meaning as a matter of federal law 'is emphatically the province and duty of the Judicial department,' headed by the 'one supreme Court' established by the Constitution."47 As a result, "LaGrand and Avena are . . . entitled only to the 'respectful consideration' due an interpretation of an international agreement by an international court."48 Applying this standard, the Court rejected Avena' s interpretation of the VCCR and adhered to its own prior construction in Breard, which applied the same procedural default doctrine to VCCR claims as that which potentially blocks any claim to habeas corpus relief.49
Chief Justice Roberts's refusal to defer to the ICJ's interpretation of the VCCR has been controversial.50 Justice Breyer's dissent was willing to "assume that the ICJ's interpretation does not bind this Court in this case,"51 but most observers agree that his version of "respectful consideration" was considerably more deferential than that of the majority.52 Justice Stevens went so far as to suggest, in an earlier VCCR case, that the ICJ's LaGrand decision was an "authoritative interpretation of Article 36."53 And prominent academics have claimed that the ICJ's interpretation binds the U.S. Supreme Court outright.54
Although we are unlikely to see much further ICJ litigation under the VCCR itself,55 this debate has significant implications for how domestic courts treat decisions of a burgeoning class of supranational judicial institutions. In the remainder of this Part, I argue that none of the traditional reasons for interpretive deference apply to treaties that are "part of our law" under the Supremacy Clause. Indeed, such deference threatens the presumptive authority of federal courts, under Article III of the Constitution, to issue an "independent decision of . . . every . . . question affecting the normative scope of supreme law."56
One possible basis for deference to interpretations of treaties by supranational or foreign courts is the foreign-relations-law doctrine of comity. Although the Sanchez-Llamas petitioners (and Justice Breyer's dissent) avoided explicit references to