The Avena decision (1) concerned Article 36 of the Vienna Convention on Consular Relations, a treaty that the United States ratified in 1969. (2) Article 36 provides that a party country that arrests a national from another party country is required to advise the national that he can communicate with and seek assistance from his consulate. (3) An Optional Protocol to this Convention, which the United States also ratified in 1969 but recently withdrew from, provides that the International Court of Justice (ICJ) at The Hague has jurisdiction to hear disputes "arising out of the interpretation or application of the Convention." (4)
The ICJ has heard several cases involving violations of Article 36 by the United States: the Breard case brought by Paraguay, (5) the LaGrand case brought by Germany, (6) and most recently the Avena case brought by Mexico. (7) In its Avena decision, the ICJ held that Article 36 confers individual rights, that the United States violated those rights with respect to fifty-one Mexican nationals, and that, as a remedy for these violations, in cases involving severe penalties, the United States was required to provide the Mexican nationals with review and reconsideration of their convictions and sentences, notwithstanding any rules of procedural default that might otherwise bar such review and reconsideration. (8) The domestic effect of this decision is currently being litigated, both in cases involving the Mexican nationals directly discussed in the Avena decision, and in cases involving foreign nationals not directly covered by the decision but with respect to whom the Vienna Convention was violated. (9)
This Article makes three points: First, even though the Avena decision is binding on the United States internationally, the United States legal system should not give direct effect to the decision. Second, the general concept of "comity" does not provide a basis for automatically accepting the ICJ's treaty interpretation in Avena. Third, it may nevertheless be appropriate for United States courts to give some deference to the ICJ's treaty interpretation to the extent that the treaty is ambiguous and the ICJ's interpretation is reasonable. I will then describe what I believe the implications of these three points are for current litigation in the United States concerning violations of the Vienna Convention.
My first argument is that the United States legal system should not give direct effect to the ICJ's decision in Avena--or, indeed, to any ICJ decision. That an international tribunal's decision is binding on the United States does not reveal anything about the domestic legal status of the decision. Both the United States and the international community have consistently regarded international obligations and domestic implementation as separate questions. The ICJ itself has stated in its Vienna Convention decisions, including Avena, that the United States could implement the decisions "by means of its own choosing." (10)
Those who advocate giving the Avena decision direct effect would allow the decision to override otherwise applicable state law and state judicial decisions. (11) In other words, the advocates are arguing that the decision should be given the status in the United States of preemptive federal law. (12) The Supremacy Clause of the U.S. Constitution, however, states that there are only three types of supreme federal law: federal statutes, treaties, and the Constitution itself. (13) Thus international judicial decisions are not themselves supreme federal law under our Constitution.
There is nothing in the United States treaty relationship with the ICJ that suggests that ICJ decisions will have direct domestic legal effect. Article 59 of the ICJ Statute provides that "[t]he decision of the Court has no binding force except between the parties and in respect of that particular case." (14) In addition, the United Nations Charter simply provides that nations "undertak[e] to comply" with decisions of the ICJ to which they are a party, with no suggestion of any automatic judicial enforceability. …