Document Type

Article

Disciplines

International Law

Abstract

The United States is a party to hundreds of treaties that create a vast array of international obligations for the country.' In addition, the United States often has agreed to submit disputes arising out of or in connection with many of these treaties to various international tribunals for resolution.2 Historically, treaties dealt mainly with relations between States in the international community. Today, however, treaty-based obligations increasingly affect relations between the United States and its sub-federal units of government, in part because the subject matter of these treaties is expanding into areas traditionally regulated by the states. Non-state actors, such as individuals and businesses, frequently find that they also are directly affected by these international agreements.

Domestic implementation of these international obligations has created structural tensions for the United States, both between the branches of the federal government and between the states and the federal government.3 As globalization continues at its rapid pace, the issue of the proper allocation of power between the different branches and levels of government with respect to implementation of international obligations is likely to arise more and more often. This Article addresses the question of how best to implement the United States' international obligations, including decisions of international tribunals, particularly when the decision relates to litigation involving individual rights in federal or state courts in the United States.

This issue arose most recently in connection with the Bush Administration's attempt to implement the ruling of the International Court of Justice ("ICJ") in the Case Concerning Avena and Other Mexican Nationals, which held that the United States had breached its obligation under the Vienna Convention on Consular Relations ("VCCR" or "Vienna Convention") to inform certain Mexican nationals of their consular notification rights.' As discussed in more detail below, Article 36 of the Vienna Convention affords foreign nationals the right to be informed without delay of their right to have their consulate notified upon their arrest or detention.' In light of the United States' failure to provide such consular notification, the ICJ found that appropriate reparation would consist of providing, by means of the United States' own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the Avena case.

In the domestic implementation stage of the Avena decision, President Bush asserted the sole power to order state courts to provide review and reconsideration of the Mexican nationals' judgments in state criminal proceedings.' The President's claim to such authority was challenged before the United States Supreme Court ("Supreme Court") in Medellin v. Texas, wherein the Supreme Court held that the President could not unilaterally order state courts to comply with the decision of the ICJ in Avena.5 However, the Supreme Court's decision left open many questions regarding the proper method of implementing the United States' legal obligations consistent with our constitutional structure of government. Thus, this Article uses the Avena judgment and subsequent litigation to illustrate some of the problems presented by this issue and to analyze how implementation of international obligations can be better handled in the future.

Part II begins by providing some background regarding the Avena judgment and post-Avena litigation in the United States and analyzes the strengths and weaknesses of arguments that have been made in that litigation regarding the proper method of implementation of the ICJ judgment by the United States. Next, Part III places that litigation in the larger context of the debate regarding the proper role of each branch of the federal government with respect to the implementation of the United States' international obligations. Part III also examines the issue from a federalism perspective and the interplay between the states and the federal government with respect to implementation of the United States' international obligations." Finally, Part V provides some suggestions as to how implementation can be better handled in the future consistent with our constitutional structure.

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