The Yin and Yen of Respect for International Law

Due to a dearth of recent Canadian conflict of laws decisions, I find myself paying more and more attention to U.S. cases, especially the differences between the U.S. and Canadian approaches to this subject. Having only yesterday discussed the difference in approaches to forum non conveniens, the decision of the U.S. Supreme Court in Medellín v. Texas (NYT article here), released today, provided me with a chance to consider a diametrically opposed path taken by the two legal systems with respect to domestic enforceability of international law.

Medellín concerned a fundamental question of whether a decision of the International Court of Justice (ICJ), “the principal judicial organ of the United Nations”, admittedly an “international law obligation on the part of the United States”, was binding on a state court. The specific case before the Court was an appeal of a Mexican national, on death row in Texas for rape and murder, based on a 2004 decision of the ICJ that he (as well as 50 other Mexican nationals) was “entitled to review and reconsideration of their state-court convictions and sentences” without “regard to state procedural default rules”, because of the failure to inform them of their right to receive consular assistance. Despite President Bush’s intervention following the ICJ decision, effectively ordering the state court to consider Mr. Medellín’s case, it refused the application because the breach was not raised at the original trial.

Although in 2005 the U.S. withdrew its consent to the ICJ jurisdiction, it was conceded that at the time the ICJ decision was rendered, the U.S. was subject to the “compulsory jurisdiction” of the ICJ. Furthermore, the Court stated that “[n]o one disputes that the [ICJ] decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States.” Thus, the key question was whether this international obligation was a “binding federal law enforceable in United States courts”, having “automatic domestic legal effect” without any corresponding legislative action.

Considering the “natural reading” of the treaties as well as the legislative debates at the time of their ratification, the Court concluded that although the U.S. agreed to “submit disputes arising out of … the ICJ” and the treaty provided that “[d]isputes … shall lie within the compulsory jurisdiction of the [ICJ], “submitting to jurisdiction and agreeing to be bound are two different things”, and such agreement could be found. Although the treaty provided that U.S. “undertakes to comply with the decision of the [ICJ]”, the Court held that simply indicates a “commitment … to take future action through … political branches to comply with an ICJ decision”. Thus, it held that ICJ decisions did not have “immediate legal effects in domestic courts”. In the Court’s opinion, to hold otherwise would mean that “sensitive foreign policy decisions would instead be transferred to state and federal courts …[a]result … particularly anomalous in light of the principle that ‘[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative —‘the political’—Departments’.”  

While the Court’s conclusion appears to be quite reasonable and well supported by the statutory interpretation exercise, especially by references to the Senate debates and Court’s precedents, I think that the Court’s concern for the potential consequences of a contrary decision betrays its parochial or protectionist policy with respect to international law:

Moreover, the consequences of Medellin’s argument give pause. An ICJ judgment, the argument goes, is not only binding domestic law but is also unassailable. As a result, neither Texas nor this Court may look behind a judgment and quarrel with its reasoning or result. (We already know, from Sanchez-Llamas, that this Court disagrees with both the reasoning and result in Avena.) Medellin’s interpretation would allow ICJ judgments to override otherwise binding state law; there is nothing in his logic that would exempt contrary federal law from the samefate. See, e.g., Cook v. United States, 288 U. S. 102, 119 (1933) (later-in-time self-executing treaty supersedes a federal statute if there is a conflict). And there is nothingto prevent the ICJ from ordering state courts to annul criminal convictions and sentences, for any reason deemed sufficient by the ICJ. Indeed, that is precisely the relief Mexico requested. Avena, 2004 I. C. J., at 58–59.

I note that the latter concern that ICJ could overturn U.S. criminal sentences was probably particular poignant in the context of death penalty cases.

Having discussed the decision of the U.S. Supreme Court in Medellín v. Texas, I want to contrast it to the following words of Mr. Justice Major in R. v. Hape commenting on the “Canadian approach to the domestic reception of international law”:

36                 The English tradition follows an adoptionist approach to the reception of customary international law.  Prohibitive rules of international custom may be incorporated directly into domestic law through the common law, without the need for legislative action.  According to the doctrine of adoption, the courts may adopt rules of customary international law as common law rules in order to base their decisions upon them, provided there is no valid legislation that clearly conflicts with the customary rule …

37                 In Canada, this Court has implicitly or explicitly applied the doctrine of adoption in several cases.

39                 Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada.  Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it.  In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation.  The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary.  Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly.  Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.

There is no question that an argument can be made that the ICJ decision may not be a “prohibitive rule” of international law, and that the Supremacy Clause in the U.S. Constitution introduces concerns vitally  different from the ones inherent in the Canadian constitutional division of powers. Nevertheless, I think that Medellín v. Texas underscores the U.S. approach to conflict of laws that is in many ways fundamentally different from the Canadian doctrine, focused on parochial protectionism rather than a cosmopolitan approach to international law.