American Enterprise Institute

September 27, 2007

[Edited transcript from audio tapes]

10:15 a.m.	Registration
10:30	Panel 1:	American Law and the Decisions of International Tribunals
	Panelists:	John O. McGinnis, Northwestern University School of Law
		Peter B. “Bo” Rutledge, Columbus School of Law, Catholic University of America
		Michael J. Matheson, George Washington University Law School
	Moderator:	John Yoo, AEI
12:00 p.m.	Luncheon
12:30	Panel 2:	Presidential Power and Federalism
	Panelists:	R. Ted Cruz, State of Texas
		Michael D. Ramsey, University of San Diego School of Law
		Edward T. Swaine, George Washington University Law School
	Moderator:	Edwin D. Williamson, Sullivan & Cromwell LLP
2:00	Adjournment

Proceedings:

John Yoo:  I would like to welcome you all to this conference on Medellin v. Texas.  It is being sponsored by the AEI Legal Center for the Public Interest, which was once the National Legal Center for the Public Interest, and was merged into AEI just this month to start a new research division here.  The AEI Legal Center for the Public Interest is going to pursue programs involving legal issues at AEI.  It will be directed by AEI Resident Fellow Ted Frank.  This event is also being cosponsored by the Federal Society’s International and National Security Law Practice Group.  We would like to thank the Federal Society for cosponsoring this program with AEI.  I would also like to thank Edwin Williamson, who will be moderating the second panel, for his help organizing this event.

Finally, I would just like to mention that the AEI Legal Center will be having an event here tomorrow -- its Annual Supreme Court Briefing.  It will be a discussion of the last term and the upcoming term.  Michael Greve, Ted Frank and Maureen Mahoney, former deputy solicitor general, as well as Andrew Pincus, who is also a well-known Supreme Court litigator for Mayer Brown, will be participating on the panel which will be moderated by Peter Wallison.

As a brief note of introduction before I announce the speakers, the general format for the panel will be each speaker will present for about 10 to 15 minutes.  We will have some questions and discussion between the panel and, hopefully, reserve about 40-some minutes for questions and discussions with you all here. 

Just a word about the case itself and some background:  As many of you probably know, the Medellin case is the latest iteration of a series of decisions by both the International Court of Justice and the U.S. Supreme Court about the enforcement of the Vienna Convention on Consular Relations and their application to death sentences that have been rendered by state courts for nationals from different countries, the most recent and most important set being from Mexico.

The most recent iteration of this was an ICJ case known as Avena, involving 50 Mexican nationals who are on death row in the United States and who claim that they were not provided the rights under the Vienna Convention when they were arrested and tried in state courts.  This last iteration involves a fellow named Jose Medellin, who, in the course of his litigation, is challenging the legality of his conviction.  President Bush issued an executive memorandum - and I’m sure we will get into this - either requesting or ordering - it is not clear which - the state courts of Texas to comply with the judgment of the ICJ in the Avena litigation, and this is the issue that has come up to the Supreme Court.

In the first panel, we are going to take a big picture approach and look at the question of international tribunals and the place of their decisions in international domestic law, which the ICJ question is just a species of.  The second panel, which Edwin Williamson will moderate after lunch, will be more directly about the merits of the Medellin case itself. 

Let me begin the first panel.  I’m just going to introduce each of our panelists and then we will proceed in alphabetical order.  John McGinnis will speak first -- he is a professor at Northwestern Law School.  He has had a distinguished career in the government, having been a law clerk to Judge Kenneth Starr in the D.C. Circuit and a deputy assistant attorney general at the Office of Legal Counsel at the Department of Justice.  And this I did not know - he is also on the roster of panelists for WTO organization disputes.  So he gets to make decisions about international trade.

Professor Mike Matheson is also someone who has had quite a distinguished career in the government, primarily at the Department of State where he was the principal deputy legal adviser and the acting legal adviser between 1990 and 2000.  He worked on probably every major international law issue involving the United States in that time period.  Since leaving the department in 2000, he has held a variety of positions at various organizations and universities here in Washington, including Johns Hopkins, the U.S. Institute for Peace.  Now he is a law professor at George Washington University Law School.  We are very happy to have him with us.

Then, to my right is Peter “Bo” Rutledge, who is a Professor at Catholic University Law School where he teaches international dispute resolution.  He clerked for Judge Harvie Wilkinson and then Justice Clarence Thomas on the Supreme Court, and he is now the coauthor of -- I’m pretty sure the most widely used book in the United States on international dispute resolution in the United States, which was co-written with Gary Born.  So we are happy to have him with us as well.  Why don’t we begin?  John, why don’t you speak first, and then we will turn to Mike and then Bo.  Thanks.

John O. McGinnis:  Well, thanks so much for inviting me to both the Federalist Society and AEI.  I’m really glad to speak about this because I do believe the topic of international law is as important as any to our future domestic legal regime.  The domestic world is becoming full of international law.  Justices propose to use customary international law as a source for construing our own constitution for issues such as the category of citizens subject to the death penalty.  Other advocates want to treat customary international law as federal law that constrains officials, and even displaces contrary federal legislation.  International rules relating to the War on Terror might then become binding on the United States.

The specific question for today, however, is whether judgments of international courts should be given any force or weight in our own domestic jurisprudence.  I think it is important to remember that this is part of a much broader trend of the penetration of international law into our domestic sphere and should be seen as such.  The issue, in my view, in all these cases is whether the United States should abandon its traditional dualism.  Dualism is a doctrine by which the United States and other countries often strictly demarcate their international obligations from their domestic obligations; they are wholly separate.

For instance, a treaty imposes international obligations on the United States, but only if the Senate and the President intend it to be self-executing does it impose domestic obligations?  Similarly, the United States may be bound as a matter of international law by a judgment of an international panel, but it will be bound by domestic law only if its domestic structures make that legal norm binding.  Thus, the domestic application of such international norms, whether they are customary international law or these decisions of international tribunals, become controversial if the Congress or the President have not affirmatively chosen to give them domestic effect.  I’ll call this kind of unprocessed international law “raw international law” to distinguish it from the international law that the political branches have expressly brought over into the domestic sphere to be self-executing treaties.

In the case of international judgments, these judgments are raw unless the political branches direct the courts to give them effect.  I’m largely going to leave which political branches should be responsible for bringing international judgments into the domestic sphere to the next panel.  In the context of international court judgments on our domestic courts, a few preliminary remarks are very important to make.  It is important to make a distinction between those who advocate giving those judgments some actual weight in our jurisprudence and those who just suggest we should look at the judgments for their information value.  I have made this distinction in a previous article about the use of international law in construing the American Constitution. It has then been applied to the effect of international judgments in an interesting article by Mark Movsesian in the Virginia International Law Review.  Only if they are to be given weight is our traditional dualism eroded because then the international judgments have actual effect on the domestic sphere. 

Let me give an example.  The question of what weight to give international judgments was central to the Sanchez-Llamas case, the predecessor case to the case that the second panel will be discussing.  There, the ICJ had come down with a decision that, briefly stated, said that our courts should not apply their traditional default rules but allow a the violations of treaty to be raised on habeas even if been waived at trial.  Was that the right interpretation of the treaty? -- The Supreme Court took it up in a case where an alien said he should have the right to raise the violation of the consular treaty even though he had not raised this violation at trial.   So what weight should the Supreme  give to the ICJ’s international judgment on the very question at issue before the Supreme Court?

That was the source of the debate between Chief Justice Roberts and Justice Breyer; both said the ICJ should receive “respectable considerations” but from their opinions it is clear that they meant very different things.  I think the Chief Justice meant something like, “My clerk will read it.  If the ICJ opinion contains good arguments such as a sound parsing of the treaties tax, the court might adopt them.”  Thus, citing the opinion itself is simply like citing a law review article or it is something else in a scratch book to show where the Court found its arguments.  Under this view, the ICJ has no authority or weight in the United States jurisprudence by virtue of being the ICJ.  It only has information value.

But it is clear that Justice Breyer wants to give the ICJ some substantial weight.  Indeed, he gives it almost a presumption of correctness; the court can depart from it but it must have some good reasons for doing so.  This gives the ICJ opinion real force in American jurisprudence.  For some international law scholars, in fact, Breyer’s only error is that he did not go far enough; some very distinguished law professors filed a brief suggesting the ICJ decision should be binding on the Supreme Court.  The key pragmatic question in assessing whether we should give raw international law judgments domestic weight, as Breyer would have us to do, or binding effect as many academics propose, is whether such international laws are likely to be better than those produced by our own political processes.  The rule of international law is certainly not to be referred to if it destabilizes a better American rule of law.

How do we evaluate the quality of raw international law, in this case, the quality of international judgments compared to our own?  I could simply cite instances of American legal interpretations and those of the ICJ, look where they diverge and suggest, as I believe is true generally, that American judgments are better.  But, instead, I am going to look at and assess whether the process of making raw international law, and in this case, international judgments in specific, will be beneficial or at least better than the process of making American law.

First, I’ll compare international law with American laws that affects Americans, and then as it affects citizens of the wider world.  American courts are better for Americans because they are more likely to reflect the values of democracy, less likely be influenced by dictatorial governments, and more likely to be transparent.  Let me begin by contrasting the ICJ to the American Supreme Court.  The justices of the American Supreme Court are chosen by the president and confirmed by the Senate.  There is thus a very substantial democratic check on the values they bring; while they have life tenure, they are subject to relentless scrutiny and criticism in the press read by millions of their fellow citizens.  This also helps keep them more honest, at least, at the margin.

The ICJ is a very different story.  Appointments are nominally made by the United Nations but, in actuality, the appointments reflect the influence of national governments and regional blocks.  Many of the nations that are traditionally allowed to name judges are dictatorships such as China, and the International Court of Justice currently contains justices from other non-democratic nations.  In fact, at present, of the 15 justices in the ICJ, 5 represent authoritarian states and 2 come from nations whose democratic credentials are certainly somewhat questionable.  Many of the nations within the regional groupings that are responsible for the nominations are also authoritarian.

Even for a democratic government like the United States, the nomination process for an ICJ justice is nothing like the deliberative process that leads to an appointment to the Supreme Court.  First, the president is not directly responsible; a so-called national group of our lawyers that form the Permanent Court of Arbitration at The Hague nominate the ICJ justices.  While members of this group are appointed by national governments, they operate with more insulation from political control.  Second, these choices lack public deliberation and are made behind closed doors; there is nothing resembling a process that gives them scrutiny.  As a result of this lack of transparency and relative obscurity of the position, American citizens are unlikely to be able to even name the U.S. nominee to the ICJ.

From our understanding, the nomination process in other countries is no more deliberative or transparent, nor is the work of the ICJ subject to the same public scrutiny or transparency.  There is little to keep them honest, and some articles in law reviews are beginning to show how jurists interpret the law at the ICJ to meet their appointing nation’s foreign policy objectives.  So far, my comments would be a caution against any democratic state with a transparent judiciary giving weight to the ICJ’s decisions.  But in the American context we are going to add to these problems that there is a particular danger that some of the justices may come from states with foreign policy animus against the United States.  The United States is the lead power in the world and that is one of the most likely targets of politically motivated decisions at the ICJ since such states have difficulty finding other mechanisms of pressure and protest.

Thus, international courts with appointment processes like the ICJ have multiple defects.  Our judiciary, of course, is far from perfect but the confirmation process, criticism, and relative transparency with the processes provide better assurance to the norm it produces and its motive interpretation.  And over time it proves to be beneficial for Americans.  It is thus difficult to connect international legal judgements to a process for generating norms more beneficial than our own militates and to give it any domestic effect without the endorsement of the political branches.  Of course, we may have reasons to give the ICJ some weight for foreign policy reasons, including respect for international law, but only if those policy reasons come from the political branches.

Some have argued that following international judgments may improve American welfare because only international law, including delegations of international tribunals, can provide the solutions to tragedies of the common where spillovers of one nation affect other nations.  For instance, it may be best for all nations to refrain from over-fishing in a common body of water because in the long run that makes everyone better off.  Thus, following that an international norm limiting fishing is a good idea, it may be better to follow judgments in the international body on how to interpret a treaty providing these fishing allocations because otherwise, the different courts of different nations may cheat at the margin.

But at most, this seems to me an argument for international agreements by the political branches to accept these international decisions.  The political branches could decide to enter into treaties or even to adopt international judgments if they believe that it would solve coordination problems among nations.  That will provide some evidence that the solutions international law provides are actually good ones.  I’ll leave here to one side the important question of whether Article 3 or the Appointments Clause would constitutionally prevent such delegations. 

Finally, some have argued we should follow raw international judgments to take into account the interest of other nationals.  I, myself, think the touchstone of American jurisprudence should be the welfare of Americans.  But here, let me look at the question that American judgments may actually be better than international judgments for the interest of citizens around the world.  First, not all activities in international law generate substantial negative spillovers from one nation to another.  For instance, the decisions at Medellin only directly concern those who had subjected themselves to the jurisdiction of the United States and the center of policy interest was largely in the United States and not other nations.

 Yet, even if one is concerned with how such judgments affects foreigners, our power to determine how the processes of our own criminal law work, including how those processes relate to treaties, has benefits to foreigners.  One benefit is that some individuals can choose to move, here as millions do each decade, to take advantage of our peculiar bundle of rights and responsibilities.  Moreover, all democratic nations can evaluate our rights and processes and embrace as many as are good for them.  Of course, I recognize the issue in Medellin is small enough that it hardly is likely to be a spur to migration to the United States or even much emulation abroad.  But in the future, the issue may well be more important as the international tribunals take on a far wider scope.  Thus, the principal of local autonomy in deciding such issues remains very important.  By converging our domestic jurisprudence to some international standard, we may actually prevent other nations from enjoying the fruits of our judicial approach.

Let me say one final word.  There are, of course, activities where there are direct spillovers where the nations of the world are very concerned, such is the law on the use of force or how one treats international enemy combatants or terrorists.  Here, too, I think, American judgments may well be better than international judgments.  The United States is the world’s great power, sometimes called in international relations theory the global hegemon or, according to a late French foreign minister, the hyper-power.  It gains to stand the lion’s share therefore of resources from the peace and prosperity of the world.  Thus, its political processes have incentives - more incentives than any other nation in the world - to provide law for what the economist would call public goods, the great public goods such as the appropriate use of force that contribute to peace and prosperity. 

These guarantees of beneficence, of course, are imperfect because, well, our jurisdiction lacks foreigners.  But they seem better than those provided by the international legal process or the international judgment process that I have described with its lack of transparency and its substantial representation by authoritarian governments.  Thus, it seems to me that by insisting that our courts follow our own law and not raw international law and our own judgments rather than the judgments of international tribunals, we are not only doing well by ourselves; we are doing a favor for citizens around the world.

Thanks very much.

John Yoo:  Mike?

Michael J. Matheson:  Thank you very much.  First of all, thank you for your very kind introduction and the invitation to be here today.  I had left the government by the time the Avena case came to the ICJ and the Medellin case came to the Supreme Court but I was involved in two of the earlier death penalty cases before the ICJ.  And that experience gave me - how shall I say it? - some very challenging personal moments.  For example, there was a memorable moment for me in February of 1999 when I happened to be acting as legal adviser in the State Department.  It was less than two hours before the scheduled execution of a German national in Arizona, Karl LaGrand, when in came one of my subordinate attorneys to my office with a faxed order from the International Court of Justice directing the United States to take all measures necessary to ensure that the execution not take place.  I can remember exclaiming at that point, “Oh - expletive - what am I going to do with this?” 

Of course, there really wasn’t any time to do anything with it except to notify the authorities in Arizona of what had transpired.  But later, of course, after the Avena decision of the ICJ, the President did consider all his options and decided to take direct action with the end of getting the state courts to comply with the ICJ decision in that case.  That poses a number of very interesting questions, which we are going to be talking about today.  What I would like to do in my opening presentation is, first of all, to talk about the significance of international tribunals and other forms of collective dispute resolution in the implementation of treaties.  And then I would like to talk about the role of action by domestic courts in treaty implementation.  Let me start with the place of international tribunals in treaty implementation generally.  It is not the case that collective dispute resolution is the primary means of enforcing treaty obligations.  In fact, treaty obligations are primarily enforced by state action and by collective diplomacy.  Nonetheless, I think it is the case that the dispute settlement procedures can perform a number of important functions in terms of keeping the treaty regime together and functioning.

First of all, it can give parties a mechanism for resolution of disputes that are difficult or impossible to solve through bilateral diplomatic negotiation for political reasons.  This is often the case, for example, with boundary disputes where states that want to resolve them are unable to make the necessary compromises because of the demands of their domestic constituencies.  Another area in which tribunals can be useful is in providing an authoritative source for neutral decisions, which are therefore more likely to be respected than unilateral decisions would necessarily be.

Also, such tribunals or other dispute mechanisms can provide uniformity of standards by reason of establishing a sort of jurisprudence that applies to all treaties.  They can also provide an enforcement mechanism to give parties their treaty rights even though they may not have the bilateral power to accomplish it directly in negotiations.  And finally, such mechanisms can be used to give private parties a means for asserting their treaty rights directly, as opposed to having to rely upon governments to assert them.

Now, of course, the United States has very considerable resources on its own to enforce its own interests in the treaty regime and to ensure compliance.  But sometimes, it does need or could use the benefit of dispute settlement mechanisms for issues that it, for political reasons, finds difficult to negotiate.  One example is the U.S.-Canada boundary issue, which was submitted to the ICJ for resolution.  There may also be cases where it would expend too much political capital or damage bilateral relations to solve it through a bilateral contest; for example, the U.S. and Italy submitted an investment dispute to the ICJ, which proved to be much more easy than negotiating directly.  Or there may be cases where the United States may find it useful to have a decision of an international tribunal as a means of gathering political support from other countries.  This was the case, for example, in the Iran hostages’ case where, obviously, Iran did not comply with the ICJ ruling but, nonetheless, the United States was able to use the decision to garner support from other Western allies to support its position of putting pressure and sanctions on Iran.  Or the United States may wish to have a mechanism for U.S. nationals or U.S. companies to assert their rights directly.  This is, for example, the case with the Iran-U.S. Claims Tribunal and NAFTA.

Now, in deciding whether to have such a dispute resolution system and a treaty or to decide whether to accept its jurisdiction, of course, the International Court of Justice is only one possible option.  Dispute settlement resolution can take many forms - ad hoc arbitration, creation of a particular tribunal or other dispute resolution system for a specific treaty, voluntary submission to a standing international tribunal, or finally, acceptance of compulsory jurisdiction by a standing international tribunal.  These are all options, and it seems to me that it is a pragmatic decision in every case whether one should accept such a body, and if so, what body to choose. 

Obviously, with respect to the Vienna Consular Convention, the United States initially was of the view that it was in U.S. interest to have mandatory resort to the International Court of Justice primarily as a means of protecting the interests of U.S. nationals abroad where they might be subject to unfair treatment or worse.  After the death penalty cases, the United States made a different pragmatic judgment, which was that we had more to lose by exposure as a result of claims by foreign nationals in the United States than we had to gain by the ICJ as a mechanism to protect U.S. nationals abroad.  And I think this is the kind of case-by-case pragmatic judgment that one always needs to make.

Okay, now to the question of implementation of decisions of international tribunals or other dispute settlement mechanisms in domestic courts.  Again, I think in most cases, treaty parties do not rely necessarily on domestic courts but primarily on actions by their national executive authorities with or without legislative authorization.  But there are some kinds of treaty obligations which do require implementation in domestic courts, and those include implementation by state or local courts in the federal system.  For example, where the treaty provisions are specifically designed to protect foreign nationals against domestic judicial action, like the immunity of diplomats; or where domestic judicial action is needed affirmatively to implement rights, like those protecting foreign investors.  And in such cases, it is very important to have a system which does require domestic courts to comply with the treaty norms, or else the treaty regime will be compromised, parties will depart from it and the regime may collapse.  I think this logically applies also to the implementation of decisions of international tribunals or other dispute resolution mechanisms where the treaty makes those decisions binding.

Now, the U.S. system, of course, relies primarily on the Executive Branch to take the necessary action to enforce U.S. treaty obligations; the president is responsible for foreign relations, including the resolution of disputes over treaties.  The president has many sources of constitutional authority to carry out that responsibility, including his rights and responsibilities under the so-called “take care” clause of the Constitution.  And I think the same logically is true with respect to the enforcement of binding decisions of international tribunals.  In many cases, implementation by U.S. courts, including state courts, is necessary to comply with our obligations and thereby preserve the treaty regime.

As a practical matter, I think the United States will usually have significant interests in complying with binding tribunal decisions.  Such compliance may be necessary to avoid damage to a treaty regime that the United States thought was in its interests, to protect the interests of private U.S. nationals, or to avoid damage to bilateral relations with the other country in question.  All these are interests that the President invoked as reasons for compliance by state courts with the Avena decision of the ICJ.

Of course, with respect to the constitutional issue, the supremacy clause says that the treaties are the supreme law of the land notwithstanding anything to the contrary in state law, and that logically means that state courts must apply treaty obligations not as a matter of deference to anybody but as a matter of caring out the applicable law.  I think the same logically applies in principle to the implementation of binding decisions by international tribunals where the United States has chosen by treaty to accept them.  But in any particular case, several issues will arise; first of all, whether the treaty is intended to directly bind domestic courts or rather to oblige the other party to take appropriate action within its domestic system.  In the United States, this is often stated as a question of whether the treaty is self-executing or whether private litigants have standing to enforce.

Another question will be whether the particular decision by the international tribunal is, in fact, binding on the United States with respect to the particular decision in question.  That, for example, was not the case in the Sanchez-Llamas decision by the Supreme Court where they were dealing with a case that had not yet been ruled upon by the ICJ and, therefore, there was no binding ICJ decision.  Another question that may arise is whether the particular decision of the tribunal is, in fact, directed at domestic courts or whether it is a direction of the executive branch of the national government of the country in question to take appropriate action.

Answering these questions requires a case-by-case analysis every time.  Much depends on the specifics of the treaty - whether the rights in question are of a type that require enforcement by courts, whether the rights in question seem to adhere to the individuals or rather to the party in question.  So I do not see this as some grand clash between international law and domestic law; I mean we are only talking about treaty obligations that the United States has affirmatively accepted through a U.S. domestic process -- a treaty ratification.  Nor do I see this as a contest between the adequacy of international institutions and the adequacy of U.S. institutions because in each case the United States makes a pragmatic decision whether a particular body, which it may have helped create, is a good place to resolve disputes or whether it is not.

Furthermore, in ratifying a treaty, the United States may decide to limit the degree to which the decisions of an international tribunal or other dispute resolution mechanism, should be binding upon domestic courts.  This might be done through reservation or understanding to the treaty or by implementing legislation to the extent that these are possibilities under the treaty regime.  In any event, such limits have been adopted in particular cases, for example, with respect to WTO, and the proposed U.S. ratification of the Seabed Disputes Chamber under the Law of the Sea Treaty.  These are options which the United States may decide are necessary or desirable in particular cases on a pragmatic basis.

Well, the next panel is going to be discussing the specifics of the Medellin case, and in particular, the President’s authority to direct the enforcement of the decision.  So I’m not going to try and go into that in any detail.  Let me only say that it seems to me that that is a strong case for enforcement by state courts of the decisions of the tribunal for a combination of reasons.  It was pursuant to treaty -- in fact, pursuant to three different treaties - the Vienna Convention, the Optional Protocol, and the UN Charter.  At least one of those treaties, the Vienna Convention, has been accepted as self-executing for various purposes.  The specific case in question was directly governed by the tribunal’s decision, unlike the Sanchez-Llamas case where that was not true.  The rights seem to be of a type which call for direct enforcement by domestic courts, namely, the rights of a defendant in a criminal proceeding initiated by state courts.  And, finally, perhaps the most important, the President has taken direct action to require compliance by state courts.  So you have a combination of the treaty power with the President’s own powers under the Constitution.  I think the case would be less clear if some of these factors were not present.  Maybe we can talk about that later. 

It would particularly be difficult if the President had directed that the decision not be enforced or if there were some later federal statute, which would have been in conflict with the enforcement of the decision which, for example, might have been the case if this were a federal prosecution where there is such a later statute.  Finally, one brief comment - I think it is very important that we not see this whole issue simply as a referendum about -- the International Court of Justice or the US posture toward the court.  These same issues arise with respect to all other dispute resolution mechanisms, where the United States might have a clear interest in protecting U.S. nationals and other U.S. interests through a binding treaty mechanism.  If state courts were generally free to disregard these, then of course, the courts of other nations would act likewise and this might be a serious threat to the treaty regime and to the interests which the United States was trying to serve through its adherence to that regime.  Thank you.

John Yoo:  Bo?

Peter B. Rutledge:  Thank you, John.  I would like to thank the American Enterprise Institute and the Federalist Society and both John and Ed for the invitation to speak here today.  There are two challenges for the last speaker in panels like these.  One is that you hear all these very inspiring comments by the people who went before you that kind of cause you to sort of throw your prepared comments overboard.  And the other thing is that you hear some things that make you think, “Well, I do not want to simply repeat what has come before me.”  So what I’m going to provide to you is something that tries to weave together some of the things that John and Mike have talked about and sort of offer my own view on this. 

I agree with John at the outset that - I guess this is to say John McGinnis, not John Yoo, although I think I probably agree with both of them at this point, that this issue about the specific question of how the Medellin case should be decided needs to be viewed in sort of two more abstract contexts.  One slightly more abstract context is the question that political scientists and legal academics talk about, which is the issue of delegation -- the question of what is the impact of a grant of authority by a sovereign state to a transnational or a supranational institution.  And secondly, I agree with John McGinnis as well that this also needs to be seen in an even more abstract context about the extent to which this sort of international law will penetrate our domestic sphere. 

Moving from there to some of Mike’s comments, I think it is also important to keep in mind that this sort of specific issue of the extent to which international tribunals are relied upon to give effect to international legal obligations is one piece of a broader puzzle.  And it is interesting to sort of inquire into what it is that makes particular types of disputes or particular types of international problems particularly amenable to the use of international tribunals as opposed to some of the other mechanisms that Mike described.

And so I want open my comments by giving you two hypotheticals.  One hypothetical is, imagine a situation where the United States says that the decision of the International Court of Justice shall have binding effect on our domestic courts, and that various sorts of procedural entitlements follow even absent sorts of action by the politically accountable actors as John would describe.  And, second, I want you to consider another hypothetical -- not so much hypothetical, but an actual case that somewhat makes John Yoo’s panel here quite timely -- which is, last week, as some of you may have known, the tribunal for the Law of the Seas handed down a long-awaited decision in the Guyana-Surinam dispute.  That decision concerned Surinam’s expulsion of a Canadian energy company from its shores in the 1990s, and led to an extensive dispute between Guyana and Surinam over exactly where the boundary lay.  After much wrangling before the International Tribunal’s Law of the Seas, the tribunal came down and found in favor of Guyana, which caused this Canadian energy company’s stock to shoot up because, all of a sudden, this particular source of energy that they had been trying to exploit in Guyana was potentially available on the market again. 

How between these two poles do we identify what are appropriate delegations to international tribunals, and what are not?  Picking up on what both John and Mike have said, the broader academic debate here looks at both the benefits and costs of these sorts of delegations to international tribunals.  John has done a very good job of articulating what one might call the welfare’s critique, which is to essentially say, delegating to international tribunals is a bad idea because it produces bad outcomes for the United States.

A slightly different, though related, critique that you often see in the literature on delegations to these tribunals is what is termed sovereignty costs -- that by allowing these tribunals to make decisions that have some kind of binding effect on sovereign states and, derivatively, their populations, there is the lack of democratic accountability both through the process by which the decision was reached and in the actual content of the decision.

Defenders of delegation would say that these costs are at least minimal or are offset by important benefits.  And the two benefits that they point to broadly, some of which have been alluded to already in this discussion, are, one, that these sorts of international delegations are the solution to problems of collective action.  I think Mike talked about this a little bit in his discussion of why, in certain cases, international tribunals are necessary to overcome the domestic political constraints on solving intractable problems that require a trans-boundary solution.  And the other benefit that is often pointed to in the context of delegation to international tribunals is of the efficiency gains through specialization; if we have a trans-boundary problem that requires a certain know-how to solve it, is it not better to have, so the argument goes, a single expert tribunal that is responsible for sorting out these problems, rather than have them be sorted out by a mishmash of domestic actors who are not acting as efficiently?

And if we see these debates about delegation to international tribunals in this context of this broader debate over sovereignty costs, on the one hand, and the benefits of collective action on the other, this actually is not anything new, at least at a certain level of abstraction.  It is something that I think conflict scholars have been dealing with at least since the Treaty of Westphalia, which is essentially to say, how are we to deal with certain problems that require trans-boundary cooperation between states while at the same time respecting the integrity of the state system that reserves to states the prerogatives to make decisions within their own territories?  And conflict scholars for a long time sort of said, “Well, the way we deal with this is comity, we accord a certain amount of domestic political respect to these sorts of trans-boundary decisions but, ultimately, we reserve into ourselves the decision whether or not to give them domestic-legal effect.”  And you see this in a variety of contexts ranging from the enforcement of foreign judgments where a foreign state may resolve the rights and responsibilities that touch upon a United States actor, or where the prevailing party comes to the United States and expects that foreign judgment to be reduced to the effective domestic judgment.  You also see it in the context of international arbitration.  I guess this should lay bare my bias on the table here, which is that I come at these problems as someone who is a student and now a teacher of international dispute resolution.

At certain levels, the debates here are something that I feel that, in my discipline, people have been dealing with for a long time, whether it be the US-Iran Claims Tribunal that Mike alluded to a little while ago or ICSID tribunals into the Washington Convention in 1965.  Here, too, we have non-national institutions that are not domestically politically accountable rendering decisions that are then being asked to be reduced to domestic political effect in the United States.  My bottom-line point being this problem is not new.

Now, having laid that ground work, let’s try to figure out what it is that makes the cases like Medellin and others particularly problematic.  I think that there are two reasons:

One is that with the possible exception of an example like the US-Iran Claims Tribunal, states are being asked to give effect to decisions by institutions that themselves are not beholden to the state system, unlike a situation where a state is being asked to give effect to a decision, say, of a judge of a foreign country or, in the context of The Hague Evidence Conventions, to execute a letter rogatory by a foreign judge.  Here it is being asked to give effect to a decision of these individuals whom John quite colorfully described as kind of coming out of nowhere through this process of questionable deliberation.

The second difference, which picks up on some of the things that Mike talked about, is that from the perspective of the state being asked to give domestic effect, the opportunities for exit or escape are more limited.  Mike talked about the fact that under various treaties, there are opportunities at various stages of either the ratification or the implementation process for states to preserve their prerogative such as by announcing certain reservations, understandings or declarations or RUDs by attaching non-self-executing provisions to the treaty.

You also see it as well in the debates such as in Sanchez-Llamas and Bustillo over whether treaties will be presumed to be self-executing.  You have additional examples of these sorts of escape hatches such as the “last in time” principle where states can override an international outcome that they do not like by enacting a new statute.  Executive orders can provide escape hatches as well where under the state preserves for itself the prerogative to control the mechanism by which the decision of the international tribunal is given legal effect.

And to that end, I am looking at the relationship between delegations and opportunities for states to preserve prerogatives of their sovereignty.  I would commend to you the excellent article by Professor Swaine in the Columbia Law Review that analyzes this issue of delegation.  Why these differences exist begs the question about why they matter.  Why do we care that these decisions are coming from transnational tribunals as opposed to foreign courts?  Why do we care about the fact that in the stakes of something like Medellin, the opportunities for exit are lower?  Here is why.

The reason why we care about the fact that these are coming from transnational institutions as opposed to domestic actors in foreign states is because of the concern about “mission creep.”  That is that when you create an institution and give it a mandate, there are principal agency costs about the extent to which you can oversee the activities of that institution, and the risk, of course, is that you may define the mandate of the institution one way but like any good administrative agency, the institution will look for ways in self-interest to expand its mandate as far as it can.  This is something that various political scientists have talked about in the context of transnational institutions.

The reason why we worry about the lack of opportunity for escape devices or exit is because of the problem of consent.  And this picks up on something that I think underpins both John’s and Mike’s comments, and is central to the delegation debate.  Defenders of delegations would say, “Look, the way states get into this box is not that they have it foisted upon them.  The way they get into this box is that they ratify a treaty that has a particular dispute resolution mechanism.  And just like any other bargain that states or legislators or individuals may make, there may be unintended consequences but that does not let you get out from under the bargain.”  So they make a consent-based defense.  The problem, of course, with a consent-based defense, as some of John’s critiques picked up on, is that as with many consent-based defenses, it may be incomplete; there may be timing preferences.  We thought when we were opting into a treaty that we were getting a certain outcome, and it turns out that we get another outcome.  Or we thought that when we were opting into a treaty we had a certain domestic political alignment, and now we have a different political alignment.

And so the extent to which we eliminate, as the Medellin argument would do, the opportunities for exit, we create this collision between the sovereignty costs on the one hand and the need for consent checks on the other hand to ensure that there is not this collision between international norms and the state system.  The challenge of a system like Medellin is that it eliminates the attachment to the state system and reduces the opportunities for exit.

Now, to say that that is a problem does not mean that it is intractable.  Indeed, I want of throw out on the table one thing that I hope will come up in the discussion, which is the model of the European Union.  Because in the European community, we have a situation where, in some sense, the decisions of a transnational political actor, namely, the European Court of Justice, have in some sense been giving domestic political effects through the Doctrine of Direct Effect, something that Professor Yoo and Professor Posner allude to in their article on this topic in the California Law Review.

I want to be careful here because I do not want to stretch the European Court of Justice analogy; I’m offering it as a positive issue, not as a normative issue.  So here is the point that I’m trying to make about the European Court of Justice:

If you go back and look at how the European Court of Justice articulated the Doctrine of Direct Effect, it was very careful on how it did so.  This is a point that Joseph Weiler, probably one of the foremost academics on the European Union, has made.  And that is that the European Court of Justice did not go out and pick the most controversial, intractable issues among the European states in which to articulate the doctrine; it picked issues on which to articulate the Doctrine of Direct Effect that were relatively non-controversial among the member states of the European community.  And, as a result, the mechanism of domestic absorption was relatively uncontroversial.

Contrast that with what is going on in Medellin where you have a real divergence between the domestic political views about the death penalty, which, if anything, is on the resurgence again in the United States in terms of states reconsidering adopting it, Illinois excepted.  And on the other hand, the consensus in the international community, many of whom would view the death penalty as inconsistent with modern-day human rights norms.  If you are one who is trying to advocate the integration of the Doctrine of Direct Effect or its analogue in the Medellin case, you have picked a really poor example by which to do so.  You have not learned the lesson of Europe.  You have picked a situation where the divergence between the international norm and the domestic political consensus is so great that you are bound to promote this firestorm of controversy over whether or not the international judgment is going to be reduced to a domestic judgment.

Does that mean that these international judgments do not have any effect whatsoever?  No, of course not.  We can differentiate as various scholars in this field do between hard law and soft law.  They may not be given direct domestic effect in the way that, say, judgments at the European Court of Justice are, but that does not mean that they do not influence the political process potentially in ways that, as I think John would say, are affected by actors who have a great degree of political accountability.  So in the wake of these sorts of Medellin-type decisions, you do not see U.S. courts reducing their judgments to domestic effect but you do, for example, see governors acting to commute various death sentences of individuals, perhaps, in response to some of the pressure that comes from these international tribunals.

The interesting thing to watch will not necessarily be how Medellin comes out but instead it will be to see how those who would advocate the integration of international tribunals’ decisions into our domestic system strategize and what types of cases they will use to develop the extent to which they rely on “soft law” methods to bridge the dissensus between the domestic political norms and the international norms in order to ease the transition as occurred in the EU.  Thank you.

John Yoo:  We want to be able to finish at noon promptly for lunch.  I think we will just start with the questions, and let me take the prerogative of asking the first question just to get the discussion started.  One question for John McGinnis:  Is there any situation where it would be appropriate for the United States to agree to binding decisions of an international tribunal? 

Then the flipside question I would ask to Mike Matheson is: are there any cases where it would appropriate for the United States not to obey international tribunal decisions?  And is it then the case that there really are no such things as states in foreign relations that we are not to take any kind of cognizance of state prerogatives?  And then for Bo, I would just ask, is the comparison between international arbitration or traditional international dispute resolution really of the same kind as the questions raised by these permanent international tribunals created by these multilateral treaty regimes?  As you describe, these courts engage in a political calculus of whether to make decisions and what kinds of subjects to touch; this indicates how different they are -- an international arbitral panel created to settle one dispute would not think in that way.  And so does that not in fact show that they are not really that similar?”

John McGinnis:  Well, the answer is, yes, I think the United States does have the constitutional authority to buy in to the binding effect of international tribunal decisions.  My remarks are that it has to do so expressly through the decision of Congress and, through a treaty.  There are two distinct issues here:  One, should we allow international courts without express authority from the political branches to have direct effect in our own law?  And I think the answer to that is clear.  We should not do that because they really do not have the same quality as our own courts.  On the other hand, if our domestic institutions had made this decision, that itself is a democratic decision.  Nevertheless, in important issue remains—one that Bo touched on.  Even if the democratic branches made a decisions to give international bodies direct effect, you might worry that delegations are still going to be somewhat problematic because there are going to be tremendous agency costs.  But we face agency costs in domestic areas as well as in case of administrative agencies.  You might think is that the treaty power happily mediates that.

The two-thirds requirement for ratification in the Senate, if we require these delegations to be done by treaty and expressly self-executing, that is a very high hurdle and it means that we are only going to do it when the costs of delegation - and I think Bo so wonderfully sketched out these costs - are really going to be met.  So my answer is, yes, we can do it but we should do it through a deliberative process that takes account of those delegation costs.

Mike Matheson:  So if I understand the question, it is, do I think there are any cases where the United States should not obey an apparently binding decision of an international tribunal under a treaty?  And I think my answer is yes.  One obvious case is where the tribunal has clearly exceeded its jurisdiction and its authority.  Beyond that, I’m not a purist on these matters.  It seems to me that the president does have the discretion and authority within our system to decide not to comply with international obligations in particular cases.  And there may be cases where the decision of a tribunal is so fundamentally at odds with U.S. interests or with American constitutional principles that he may decide not to obey it, recognizing that this may subject the United States to adverse consequences for failure to comply with U.S. obligations in.  Now, a purist would probably take a different view but I guess I have been schooled in the “hard knocks” of pragmatism in the State Department.

Peter Rutledge:  And I guess to my question, I would also say the answer is, yes, there is a difference between the private international arbitral tribunal and the more permanent tribunal such as the ITLOS.  But I guess my answer would be that this is a difference in degree and not in kind.

To give you what I think is the best example of why it is a difference in degree and not in kind, even where you have non-permanent actors in the sense that a private commercial arbitration has different individuals who are resolving each dispute, there is, nonetheless, an institutional incentive for that group of actors who are involved in those decisions to push the institution in a certain way.

The example that I would give would be the Hilmarton case under Article 5.2 of the New York Convention.  For those of you who are unfamiliar with this area, there is a 1950 treaty that governs the recognition and enforcement of international arbitral awards.  It was a heavily negotiated treaty because, on the one hand, the sovereign states wanted the benefits that came from having transnational alternative dispute resolution. But on the other hand, they wanted to reserve for themselves the prerogative of being able to control the enforceability of awards, particularly those that were rendered on their own territory.

And so the compromise that was struck was essentially that the convention would govern the enforcement of awards, but that domestic political courts could control the vacator of awards, which is the setting aside of awards in those states.  What has happened is a real divergence has developed in the jurisprudence over what is the enforceable effect of an award that has been vacated by the court of the state in which the award was rendered.  So for example, if you and I agree to arbitrate a dispute in France and a French court vacates the award, can the winner, nonetheless, go to a third country and seek to enforce the award under the New York Convention?  And there is a real divergence among states as to whether or not that can occur. 

I think the analogy that I see between that and something more conventional, whether it be ITLOS or the NAFTA tribunals or what have you, is that there is this concern about “mission creep” by the institution and the needs for states to preserve opportunities for exit, which are perhaps more salient in the permanent tribunal context but are not non-existent in the more traditional private commercial context.

Matt Muggeridge:  My name is Matt Muggeridge, and I’m from the National Right to Work Foundation.  I do not want to repeat the question that you asked but would it be an over-simplification to say - and I direct this question to anyone in the panel - that, ultimately, once the attitude of a state party litigant in an international dispute is very different from the attitude of a litigant in a normal civil lawsuit or a criminal case that, ultimately, we are not going to defer if an aboriginal claim is successful and hands over Manhattan back to whoever owned it in the first place?  That we are going to abide by the decision always in a pragmatic way.  And so the comparison like the -- whether we should abide by –- I mean this debate is really -- we are not going to abide, it is whether we choose to abide which is not the same attitude as a civil litigant.  He does not choose to abide.  He may be a scofflaw but eventually the police are going to show up or he will be in contempt or whatever.  So, really, they are not that similar and I do not mean to repeat the question so if it has repeated it then we can move on.  But thanks.

John Yoo:  Is this a question of enforcement?  I think we are all familiar with domestic versus international legal enforcement.

Michael J. Matheson:  Well, I guess my answer is yes and no.  Clearly there is a difference between the way in which an American public official will react to a decision by a U.S. domestic court as opposed to a decision of an arbitral tribunal or some other international body.  And it is, I think, more a pragmatic difference than a difference in principle.  Because the decisions of these bodies are binding as a matter of international obligation, the president, if he decides to ignore them, cannot escape that fact, and there will be both legal and political consequences.  But nonetheless, he, as a historical and pragmatic matter will undoubtedly feel that he has more latitude to do that than in the case of a decision of the U.S. Supreme Court.

But there is no fundamental difference in principle, because law operates in both cases, there are obligations in both cases, and there will be important pragmatic and policy reasons why the United States should comply with a binding decision or a tribunal where the United States has accepted the tribunal’s jurisdiction.  But, as I have said, I think the President has an area of discretion under the U.S. system in extreme cases to decline to comply with the decision of such a tribunal, if he is prepared to accept the consequences of ignoring U.S. obligations.

John Yoo: Michael Greve

Michael S. Greve:  I have a question to Bo about the politics of this.  You mentioned that the death penalty is probably the worst possible starting point, right?  Well, that is who these constituencies are, right?  The international law community thinks America is bad, and I mean, what is worse about America than the death penalty?  They are not interested in sort of direct enforcement or domestication of foreign judgments that you or I might care about, some commercial jazz.  If they lose Medellin, I mean, what is their next move?  What is the strategy?  Could you map that out?  I mean if that were their agenda, how would they go about it?  What are the non-controversial areas other than the pure, raw, commercial disputes where there is no real contest?  What is the next move?

Peter B. Rutledge:  Up until a couple of years ago, I might have said, well, I think the next move probably would be to look for one of two things.  One, where there is less of a dissensus and may well not be one.  The other one that I might look for is one where there is a relatively less mature domestic political consensus on the issue.  I guess the counterpoint that I think about is certain trade issues.  The trade is sort of a tricky subject because in some sense, trade is a very volatile political issue.  But I think we should not lose sight of the fact that the U.S. already gives domestic legal effect to certain decisions by trans-boundary trade dispute resolution bodies with relatively little domestic political consequence.

And so I would be looking for areas where the U.S. has sort of opted into a low salience regime, maybe the Montreal Protocol, where the risk of dissensus is not as great. To be more specific in that, it is frankly hard for me to identify one.  What I’m describing is more of a kind of a positive aspiration than some sort of a clear strategy.  But I think it is a very fair question.

John Yoo:  Just a follow up on Mike’s question, making it harder -- Is there some kind of contradiction between the way we approach the nature of the tribunals, the WTO and NAFTA, where the United States was the country that was really pushing the hat and our attitude to the ICJ?  I think actually your question also really directed at John McGinnis in a way.

John McGinnis:  I would just go back rather to those times when we have agreed – when we really agreed to make tribunals under such agreements part of binding law.  I think there are only a very few examples of that, when there was a domestic consensus that we were willing to pay these delegation costs.  I think in other areas, there is no such consensus and that is where I would draw the line.  The harder question for me was addressed by Bruce Ackerman and David Golove.  They wrote this article, Is NAFTA Unconstitutional? arguing that the problem is that NAFTA was not put through the treaty clause, only through statute; the treaty clause requires a much greater consensus.  You might think, given the international delegation costs, that that should be required. So my own view is  the treaty clause is the way of trying to protect against these strategies because I think Mike is absolutely correct that the costs may differ from one case to another. Sometimes it is probably worth paying. It  seems to me that the requirement that delegations to international tribunals have the kind of consensus required by treaty that expressly delegates this power and is self-executing is a pretty good proxy that those delegation costs are worth paying.

Linwood Bragan:  I’m Linwood Bragan, working on Capitol Hill.  There has been some concern voiced in various briefings regarding the Law of the Sea Treaty that you would have an extrapolation through ratification of that treaty that other treaties and other obligations could come in without going through the Senate for further confirmation. And I was just wondering what implications you think, from all the panel members, that are if that were to occur -- are we suddenly going outside the Constitution of ratifying other agreements?  I mean even to what Mr. McGinnis said that higher standard with NAFTA, are we ever getting the standard entirely?

John Yoo:  I just might add this is a concern that was present in the Treaty of Versailles and the UN Charter, this question of if you entered these treaty regimes you have an organization that makes decisions.  Those decisions never get approved by the Senate in the same vote requirements that you have for the original treaty.

Peter B. Rutledge:  I think that the short answer is, yes, that there is that risk.  And I think it illustrates the incompleteness of the consent account.  The consent account would say – I think -- here is where I think the real fault line in the debate is:  That the defenders of these mechanisms will say that it is sufficient to consent to process.  That by opting into a treaty that contains a dispute resolution mechanism, you know going forward that you are consenting to a degree of uncertainty about how that dispute resolution mechanism is going to be implemented.  And thereby, you get a horror stories about what happens in the international treaty laws -- essentially what happens in the ITLOS announces a decision that suddenly constrains the ability of the U.S. Navy to do something.

On the other hand, skeptics of international delegation would say that, “You not only need to consent to process but you need to consent to substance, such that when one of these tribunals goes off the reservation, if you will, you have the opportunity to exit or escape.”  And so I think my answer to that question is, the critical way of addressing that in the ITLOS debate is to the extent that we are concerned that there is a disconnect between the process that we are opting into and the substance of the outcome, that there be adequate opportunities for exit to protect against that and to take it one step further into something I meant to make in my original remarks. 

If we are trying to differentiate between different types of international tribunals and their regimes, where do the opportunities of “mission creep” become greatest?  I think what you need to look at is what is the degree of specificity in the scope of the delegation, because you can define a delegation in a relatively precise way that enables you to assess fairly clearly whether or not the tribunal oversteps its mandate.  On the other hand, if the tribunal’s mandate is defined in kind of vague and flowery terms that does not put clear boundaries, that is where the risk of creep comes in and the need for escape devices becomes important.

John O McGinnis:  May I jump in here?  I mean, the fact is of course that we have a requirement of treaty ratification - all of these issues come up and people will say, “Well, we have got to build some of these things into our statutory framework and not let people go off in the ‘mission creep’. A failure to build in such protections will make ratification very hard.  That is a pretty strong protection.  I should also note that even after a tribunal comes down, in the matter of domestic cases, often, Congress will be able to -- or the President will be able to pull out of a treaty at least going forward, and the Congress may be even be able to negate the tribunal decision with a statute.

So what a political scientist would view this problem as  question of the policy space an international tribunal enjoys after being delegated authority expressly by a treaty.  The international tribunal is still constrained by the prospect of  the United States’ action. It has to have the support of at least a substantial majority of people in Congress or otherwise it can have its decisions revoked by statute largely.  And so there are some exit protections built in even into our domestic system.

Michael J. Matheson:  I think there are a series of very pragmatic decisions to be made by the United States in each case whether to adhere to the treaty; whether to include some form of mandatory dispute resolution; and, in addition, whether to incorporate some kind of escape mechanisms or limitations either by negotiation or by U.S. reservation.  But what we have to remind ourselves, of course, is that this is not a unilateral process, and in every instance in which we limit U.S. obligations, we allow all the other parties to do the same.  And this will obviously degrade whatever benefits we felt we were getting by having a binding dispute settlement resolution. 

So you have to weigh the one against the other.  It is not just a question of preserving maximum U.S. discretion; otherwise, you would not have this regime at all.  You have to weigh the extent to which the United States has interests in a regime that binds other parties against any pragmatic considerations that may weigh in favor of a reservation or escape clause.

John Yoo:  Edwin Williamson

Edwin D. Williamson:  I do not want to take up time since I will have the microphone a little later but two quick comments.  One in response to your question, Michael, is that I think a situation which cried out for testing of the role of the federal government vis-à-vis our states in this context is the Loewen case, which is a NAFTA Chapter 11 case where a Canadian company, which had been driven into bankruptcy by a Mississippi state court judgment jury verdict that was just laced with totally unacceptable racist and xenophobic emotions, left the U.S.  The U.S. has dodged that bullet very, very narrowly but it left the U.S. federal government holding the bag for a very substantial judgment.  It seems to me that in order to prevent that occurring in the future, the federal government needs to take some action directing states to clean up their acts and their jury trials, which is an incredible intrusion in the federalist system.

The question I want to ask and I think I know the answer that you guys are just going to say is this question I'm weighing -- I think that given our record in the ICJ, why are we still parties to many, many optional protocols that still submit us to the jurisdiction of the ICJ?

Michael J. Matheson:  Well, I’ll answer that about the ICJ and then more generally about dispute resolution.  In the ICJ, we certainly have a mixed record.  The ICJ has done well in some areas, for example, in boundary disputes; it has performed a very useful function in resolving issues that might otherwise have resulted in conflicts.  On the other hand, it has a less favorable record with respect to the law on the use of armed force, where it has reached some incorrect conclusions.

With respect to the U.S. experience with the ICJ, the United Stats brought several cases to the Court in the 1980s, such as the Iran Hostages case, and the results were not bad; in the 1990s, the United States was mostly the respondent in cases brought by others.  In cases in which I was personally involved, two went against the United States, but in four other cases the ICJ dismissed claims against the U.S.: by Iran in the Platforms case, by Yugoslavia in the Kosovo case, and by Libya in the Lockerbie case.  Would domestic litigators consider that a bad litigation record?

More generally, I think it is not true that the United States has had a bad record in international dispute settlement mechanisms.  In the Iran-U.S. Claims Tribunal, American private litigants got more than a billion dollars in recoveries from Iran.  The United States has not yet lost a case in NAFTA.  So on the whole, is it true that international dispute resolution has been unfavorable for the United States?  I do not think so.

In Iran-U.S. Claims Tribunal, the U.S. private litigants got more than a billion dollars in recoveries from Iran.  I do not think we have yet lost a case in NAFTA.  So you know, on the whole, is it true that international dispute resolution is a disaster for the United States?  I do not think so.  I’m just looking at this in a very pragmatic way.

John Yoo:  Ted -- I’m sorry.  I’m afraid just because of the time, this is the last question but we will have another question period after the second panel.

Ted Cruz:  I wanted to ask if any of the members of the panel is aware of any decision by any court in any country in the world that has accorded binding effect to a decision of the International Court of Justice in that country’s domestic courts?  And if the answer is no, then as a follow-up, I wanted to ask if it makes any sense for the United States to be uniquely bound in a way that no other country in the world believes it is bound?

John Yoo:  Well, I believe that Constitutions of Italy, Germany, Japan, place the decisions of international law above their domestic constitutions, but in actuality when it happens, it still goes through this kind of “are they going to accept it” course which does not quite seem consistent with their own constitutions.  But that is the only example I’m aware of and it relates to the constitutions themselves.

Michael J. Matheson:  There are many ICJ decisions on land and maritime boundaries that have been implemented by the domestic institutions of the parties – including their domestic courts.  But, as John says, this is a complicated question and a lot depends on how the constitutional systems of different states implement their international obligations.  In some cases, this occurs by direct action by domestic courts, and in others by executive action.  You would have to do a lot more empirical study.  But I think it is true that, generally speaking, states have implemented decisions not only of the ICJ but of all kinds of other dispute resolution bodies.  I think it is the minority rather than majority cases in which those decisions have been ignored.

John O. McGinnis:  One thing I would add to that is, conversely, even if some country does that, it does not make sense necessarily for the United States to do it.  For instance, with respect to the quality of the ICJ, it may be low, but compared to some countries’ adjudicatory systems, it may be better than that.  We might be better off if Putin’s Russia decided to follow the ICJ.  So I think that we are in a somewhat different position and so even if there are some countries -- and I would not be surprised if there is not some examples of foreign deference to the ICJ, it does not at all follow up that the United States should do it.  We are in a different position and I think we should think through that difference before we accept any of these arguments about reciprocity or equivalence between other nations.

Peter B. Rutledge:  And I would just say, no and no and I think the particular reason why the second “no” is important is because, having practiced both here and abroad, I think that there are distinct considerations of federalism that are often colliding with this sort of march toward international norms, which makes it particularly important for the U.S. to be protective about the domestication issue, which hopefully transitions well into your next panel.

John Yoo:  Well, thank you very much.  Let’s thank the panelists.

 [Break]

[Second Panel]

Edwin D. Williamson:  Okay, if I can have your attention, thank you all for being here.  Welcome to our second panel on the Medellin case.  We are on a slightly tight time schedule and we really need to be out of here promptly at 2:00.  We have a distinguished panel as you can see from the flier that you have received, so I will not spend any of our precious time giving you the backgrounds.  I will, however, tell you a little bit about what I think they are going to say, so you can get a good idea of where this panel is going.  I think that is necessary because in putting this panel together, I was constantly amazed by who was taking what positions.  As you know, we will be discussing the president’s power to tell the Texas state courts to comply with the decision of the International Court of Justice. 

Now, I did not tell them how to come out on the issue but just to hold a hearing on whether the failure to tell Medellin that he had a right to a visit from the Mexican Consulate affected his conviction or sentencing.  This is a panel consisting of Ted Cruz, who will be representing Texas before the Supreme Court on October the 10th.  I think we can count on Ted to present the arguments that he has set forth in his brief.  Unlike the Texas Court of Appeals, who unanimously told the president not to mess with Texas, Ted is actually going to have to come up with a convincing reason why the Texas court could not put together a majority on this. 

Now, it would have been easy to get someone from the academic, NGO, and the death penalty camp who had filed a brief in support of the defendant petitioner, Medellin, to provide the counter-argument.  But I wanted a nice pro-presidential power conservative like me who would argue consistent with other strong pro-presidential power positions that he or she had taken that, clearly, the president has the power to tell Texas to comply with the law of the land; you know, somebody like John Yoo or Tim Flanagan.  Lo and behold!  I discovered that Tim had filed an amicus brief along with some other timid defenders of the president’s power, such as Ed Meese and Chuck Cooper, opposing the president’s action.  Likewise, John Yoo had filed a brief with his fellow academic soul mate, such as Erwin Chemerinsky, also opposing the president’s action.  Joining that brief was our panelist, Michael Ramsey, who will tell us about the positions taken by these former justice officials and the academics. 

Then I tried someone who had been in the Bush Justice Department, when the administration’s position had been formulated only to have him beg off because he really did not agree with the position.  I began to think, “Am I the only pro-presidential power conservative who can support the president on this issue other than the solicitor general?”   But I’m tainted because I served in the State Department.  In fact, I’m probably that State Department alumnus that Ted referred to in his comments to the panel yesterday.  And, Ted, I will just try to be a little clearer today in pointing out the problems with your arguments than you indicated yesterday that I had done.  I actually blamed what you took away from my comments on the fact that I bought you that second drink. 

Well, I turned to Ed Swaine, who I thought could and would support the president’s position and would do it credibly, notwithstanding the fact that he, too, had spent some time in the State Department, but only a year or so.  He will tell us why what the president did was okay and in doing so, he will tell us the difference between the arguments advanced by Medellin’s lawyers and those advanced by the solicitor general.  So let’s start with Ed.

 Edward T. Swaine:  Thank you very much, I guess, for that.  It’s not unlike a greengrocer saying to a customer, “Well, that shriveled thing we have here is the best tomato I could find”;  I am here apparently as the best pro-presidential power person that could be found.  And it is a little odd, I have to say, being here at the Institute as the minority proponent of presidential authority over foreign affairs.  It may seem a little incongruous, but I will say this is just my debut; next week, I will be here as the sole opponent of wage and price controls. 

Joking aside, I think that the role reversals here illustrate that these are really tough questions and that the participants in this debate are not ideologically driven -- they are actually driven to what they think are the correct positions.  So somebody who ordinarily is in favor of strong presidential authority may balk when it comes to interfering with the rights of the states, and those who are often pro-international may have difficulties with the assertion of presidential authority.  I may appear to be one of the lingering few who supports the enforcement of international obligations under these particular circumstances.  But let me just identify for you the broader spectrum of opinion, which I think suggests that I’m really not at the extreme but rather somewhat more of a centrist in this regard. 

There are lots of views on the question of presidential authority with respect to the ICJ judgments.  And on most of them, the president lacks authority, but for radically different reasons.  Some contend - and this was alluded to this morning - that ICJ judgments and perhaps other international decisions are automatically enforceable under U.S. law.  This makes Avena authoritative but tends to mean that whatever the president thinks about the matter is surplusage; it is really irrelevant.  Presidential authority does not enter into this. 

There is another view that says only legislative intervention is effective.  If, for example, Congress were to adopt a specific statute on the Avena judgment, that would be authoritative; otherwise, the argument would go, the presidency cannot manufacture the power on its own.  Again presidential authority is in effect for naught. 

A third view, which seems to be closest to that held by some of my co-panelists - and I may be corrected on this shortly - is that, really, no mechanism for federal power would suffice under these circumstances.  Perhaps the fact that it is the President doing it alone makes it a little worse than Congress doing it, and a little better than just relying on the ICJ to do it, but only marginally so.  Basically, no authority outside the states can compel the state courts to change. 

So then, what argument might redeem presidential authority?  Some think that it is a matter of some kind of inherent foreign affairs authority: that there is really a lot of executive power due to implicit and explicit grants.  The president is commander-in-chief; the president is also the sole organ for foreign relations; and so forth.  On this view, arguably implicit in the U.S. government briefing in this particular case, the problem is sort of like a bachelor stir-fry - you open the refrigerator; you take out a lot of leftover constitutional clauses and a variety of statutes; you throw it all in; and somehow the result is edible. 

My own view is a bit more particular.  Let me just identify it for you and we will get to some of the counter-arguments against it later on.  My view is somewhat closer to the legislative supremacy model than to a pure presidential authority model.  In my opinion, the president has authority under the Take Care Clause, which provides that the president has the authority to take care that the laws – which include treaties – be faithfully executed.  This confers a kind of bounded discretion - and I emphasized the boundedness of this - on the president to implement judgments like the one that is at issue here; this is not so much by virtue of the Vienna Convention, but instead due to Article 94 of the UN Charter, which requires the United States to abide by decisions like that taken by the ICJ. 

In shameless self-promotion, this view is articulated - well, it is presented; articulated is a more exalted standard - in a piece that will come out in the spring in the Columbia Law Review.  And there are a couple of hurdles to this argument that I won’t belabor right now.  One is whether the treaties are included at all among the laws in the Take Care Clause.  That is not settled by the text, because “laws” get used a lot of different ways in the Constitution, but I think it is pretty well settled by practice.  It seems to have been extremely widely accepted at the founding, certainly, and there is very little dissent from that view.

There are, however, limits on the kinds of laws that get incorporated, and I think these are important to recognize at the outset.  There have been some very extreme Supreme Court glosses as to the kind of laws that get included, in particular, In re Neagle – involving the defense of a Supreme Court Justice, in which habeas relief was afforded and the Court alluded to all the foreign affairs interests that the President might seek to defend through the Take Care Clause. 

On the other hand, you have important cases like Steel Seizure, in which the Court indicates concern that the President is in effect attempting to manufacture his own power by adopting an order and then implementing it.  So part of it is this anti-bootstrapping principle.  It also creates an anti-plenary power principle, that laws -- the laws in question that the president is invoking under the Take Care Clause -- have to be the kind that bind the president, if he seeks to enforce them.  And also, that presidential authority may be displaced by the laws in question, by separate legislation, and by constitutional restraints to the extent that they are identifiable. 

Now – and this is a problematic move that I’m sure my co-panelists will seize on – I include within the range of the laws and the treaties that the President is to take care of certain kinds of non-self-executing treaties.  “Non-self-executing” gets used in a lot of different ways, but what I try to do is draw a distinction between executive and non-executive provisions. 

Non-executive treaty provisions are those that are confined to another branch of government, such as Congress, because of constitutional concerns (such as, say, the power of the House over appropriations) or because Congress or the Senate has said, “This is not for you, Mr. or Ms. President.”  The broader class of authority, however, is executable by the president even if it is not a provision that an individual may enforce in the U.S. Court, pursuant to the normal notion of non-self-execution. 

So by having established this, the paper - and I will spare you the details - explains why this authority is pretty broad.  The presidential authority that has been recognized to take care of the laws is not specifically limited to those things that are ironed out and specified in detail in either a statute or in a treaty.  A succession of presidents in the 19th century and the 20th century said with relatively little opposition that this includes the power to make sure that the ends of the legislation or the treaties are accomplished and that barriers to their implementation are removed. 

Now, there are a variety of objections to this.  I do not think they are ultimately persuasive but they are important and challenging.  One class is horizontal in character - the president exceeding presidential authority because what he is doing is too close to making laws.  This is an important distinction, albeit one that is very difficult to apply in practice.  Here, however, I will simply stress that under my approach, the president is effectuating a treaty, something that has been agreed to by super-majoritarian processes, and assuming a role that the positive law of the United States does not deny.  I think that it is consistent with the anti-plenary notion I elaborated earlier to have the president enforcing Article 94. 

What the ICJ did in the Avena decision was to say, “United States, go forth and do this and do it through the judicial processes.”  That presented the president with essentially a binary decision - either do it or not do it.  And there was very little attempt in the memorandum to deviate from that.  It basically said – “Yeah, what those guys said.  Make it so.”  This is not a case in which the president was unilaterally making up a presidential policy – which, by the way, the Supreme Court has occasionally intimated the president may do, and may do so preemptively.  See, for example, the Garamendi case, in which the president was making up a foreign policy not dictated by an executive agreement, let alone a treaty, and imposing it on the states preemptively.  I think this is a much, much easier case than that. 

There are of course, horizontal problems concerning the judicial role and I think that some of those problems may be emphasized by my co-panelists.  For what it’s worth, I do not think that anything the President has done is contrary to the Supreme Court’s prior case law.  We now have a direct, final decision from the ICJ and these are individuals who were implicated directly in the ICJ proceedings.  So nothing in the prior Supreme Court cases is to the contrary.   

There is another problem with my position that seems to loom large: what about the Vienna Convention?  The President seems to be speaking out of both sides of his mouth on this one.  On the one hand, he is saying, “We must obey Article 94 of the UN Charter and follow what the ICJ says.  See, I obey treaties.”  And on the other hand, he is saying, “Oh, but I continue to maintain, as I always have, that the ICJ got the Vienna Convention completely wrong.  And in order to help show how much I think they got it wrong, I’m withdrawing the United States from the Optional Protocol.” 

I do not ultimately think this is a fatal problem. The Take Care Clause – by referring to the duty to execute the laws – anticipates the fact that laws may point in more than one direction, and that discretion is vested in the president to decide ultimately what the right call is.  This result is not uncommon.  In the domestic sphere, we see cases in which the United States acquiesces in one circuit’s construction of a statute even though the president through underlings has been litigating tooth and nail against it.  So this sort of thing does occur; it is called compromise.  It occurs in litigation and it occurs under the Take Care Clause authority, too. 

Now, a brief word about the vertical dimension of this mix. I do not want to anticipate all the complaints that may be made against my position, but I think that the vertical dimension is an important one.  Namely, the order seems abusive of the states and their prerogatives to some degree.  But a countervailing vertical dimension is the international one – sometimes, as part of the processes that were described this morning, the United States decides that it is in its interest to place certain issues above U.S. or other national resolution, and agrees rationally and efficiently to vest those decisions in another authority.  It was extremely important to the founding generation that we would abide by treaties and by the decisions of international tribunals if and to the extent we undertook to enter into such obligations.  The United States could follow through by legislation; the Supremacy Clause was also supposed to be of assistance.  But it was also expected – and vetted in some early debates, such as Jonathan Robbins affair – that the President would carry out previously arranged bargains. 

There are residual problems vis-à-vis our U.S. states, and one can see the ghost of National League of Cities marching through some of the briefing in this case.  I ultimately do not think that those positions are well-considered, but maybe the better thing to do is to let those positions be articulated first and then I will respond to the extent possible in question and answer.

Edwin D. Williamson:  Ted

R. Ted Cruz:  Let me begin by thanking AEI and the Federalist Society for hosting this event.  I would say it is extraordinarily useful to have two panels of very learned experts so primed on the many issues in this case, given that in 13 days Texas will be before the Supreme Court defending our position in this case.  So let me thank both organizations and Ed and John in particular for their leadership in organizing this. 

With respect to this case, I think there are two central issues, each of which was rightly and well-represented by the two panels we have had today.  There is the international law issue of what is the binding effect of the ICJ decision in Avena, and then there is the U.S. constitutional issue of separation of powers and federalism and the effect of the presidential memorandum.  Let me briefly touch on the first question but I think it was well-covered in the initial panel, so I do not want to dwell long on it, which is:  What is the operative effect of the ICJ decision in Avena? 

Medellin has argued both the last time this was before the Supreme Court in 2005 and today what I call the strong version of the effect of the ICJ decision, which is quite simply that it is a binding rule of law that the matter has been definitively decided; it is a judgment and that U.S. courts have no choice but to follow that judgment because it is in effect a superior court that has rendered it.  That is an interesting argument and it may be one that finds some resonance in the international law community.  I think it is an interesting commentary as to the accepted views in the International Law Community because I do not think there is a single justice of the nine that believes it; I think that is a view that commands precisely zero votes on the Supreme Court of the United States. 

Indeed, the first time Medellin was before the Supreme Court, Texas had an interesting tactical decision because virtually all of Medellin’s briefs presented that argument.  And from a tactical perspective, we could respond and say, “No, it is this Supreme Court that decides federal law, and there is no superior court to this Supreme Court for determining federal law, which includes treaty law.”  Now that is a little bit like beating up a straw man because I think the justices are already there.  And so in Medellin One, we made a tactical decision to make what struck us as the stronger argument in our brief in order to attempt to refute it.  And I think the stronger argument is ultimately what was reflected in Justice Breyer’s dissent in Sanchez-Llamas, which is, of course, that this court that is the Supreme Court of the land and is the final word on questions of what is federal law.  But the court should give great respect to the decision of a sister tribunal that is learned in these matters of the treaty, not because you have to.  But then the analogy we used in Medellin One is really kind of like Chevron deference; you are not bound to do it but you really need to listen seriously.  And in Medellin One -- although Medellin did not present that argument, we made the tactical decision to present it in order to provide our refutation. 

Well, the long and short of this argument is I think it is largely dead at this point.  Sanchez-Llamas resolved it.  Last year, the court had before it the question of what is the effect of the ICJ decision, and the majority opinion of the U.S. Supreme Court squarely concluded the ICJ decision is not binding in U.S. courts and it cannot trump procedural doctrines that are neutral laws of criminal jurisprudence that have been applied across the board for decades.  To my mind, on the question one, Sanchez-Llamas resolves the issue in this case, which leads us to where, I think, the real fight is, which is question two:  What is the effect of the president’s order?  To my mind, the presidential memorandum reflects an extraordinary assertion of presidential power.  Ed observed that we have such wilting wallflowers on presidential power as John Yoo and Chuck Cooper and Ed Meese, all of whom agreed this crosses the line, and I would readily put myself in their camp. 

I am not a shy defender of presidential power; in fact, I will quote my good friend, Chuck, who was my first boss after clerking for the court.  And when this first happened -- for those of you all that know Chuck, he is no wilting wallflower on this.  And Chuck’s reaction was, “You know, on questions of presidential power, “I’m a nut.  And I think this is the most egregious thing I have ever seen.”  So at the end of the day, that was the brief that was filed in this case -- I essentially called Chuck and I said, “Chuck, could you write a brief that pretty much just says that?  I would be just fine with that being your summary of argument.” 

Now, why is it that this goes beyond the limits for presidential power?  Well, I think it transgresses the limits of presidential power on multiple axes.  Indeed, as I have observed a number of times, what makes this case so fascinating as a separation of powers and federalism case, is that it implicates every conceivable structural limitation on government.  You have president vis-à-vis Congress; you have president vis-à-vis the Supreme Court.  You have Federal Government vis-à-vis the States.  You International law vis-à-vis domestic law.  And then with what I like to describe as a Mobius twist, you have president vis-à-vis the State Judiciary, which, to be candid, is just plain weird. 

Let’s start with the first axis, which I think at the end of the day is going to be the most compelling to the Supreme Court - the president vis-à-vis Congress.  The treaties at issue here - and in particular, I want to focus on the Vienna Convention and the optional protocol - were both submitted to the Senate and ratified by the Senate under the express understanding that they were not self-executing in the sense that they would have no domestic effect in U.S. courts, that they would not alter domestic laws.  That was the position of the United States; that was the position of the State Department at the time of ratification both in writing and in oral testimony.  It was the written understanding of the Senate when it ratified the treaties.  And not only that; it has been the uniform position of the United States ever since.  For over four decades, every administration, Democratic and Republican has agreed that not only is the Vienna Convention not enforceable in U.S. courts but decisions of the International Court of Justice are likewise not enforceable in U.S. courts. 

Interestingly enough, that remains the position of the United States, and it is what makes the president’s position so utterly untenable because the United States continues to agree that the Avena decision cannot be enforced in any U.S. court, except with regard to these 51 Mexican nationals.  And why is that?  Because the president has written a two-paragraph memorandum to the attorney general of the United States, Alberto Gonzales, in which he, in effect, ordered the state courts to obey the decision of the world court. 

Now, the problem with saying, as Ed did, that this is simply taking care that the laws are faithfully executed is when the Senate ratified this treaty, it did so under the understating that nothing in this treaty and no decision from the ICJ would alter domestic law.  And what the president is asserting is the unilateral authority to take a non-self-executing treaty and make it self-executing.  That is fundamentally in contravention with the authority of Congress.  A second area in which it violates separation of powers is vis-à-vis the Supreme Court.  In Sanchez-Llamas, the Supreme Court had before it the question of what the domestic effect of the Avena decision is.  These treaties are federal law and the Supreme Court gave resp