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Bush and the ICJ: Executive Obligation and International Law

JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that not only does the President have the authority to direct states to comply with a decision of the International Court of Justice, but in fact he has the obligation to do so.

The International Court of Justice (ICJ) ruled in March, 2004 that the United States must provide "effective review" of convictions of 51 Mexican nationals on death row in nine states who, upon arrest in the United States, were denied the right under Article 36 of the Vienna Convention on Consular Relations to be informed of their right to communicate with their consulate. Recently, President Bush notified Attorney General Alberto Gonzales of his determination "that the United States will discharge its international obligations under the decision of the International Court of Justice" and stated that he has constitutional authority to order state courts to comply. Does the President have such authority?

Despite earlier protestations from some members of the Executive branch (for example, whether Executive agreements (oral or written) regarding assurances to foreign countries that US prosecutors will not to seek the death penalty could bind the states (forgetting, of course, United States v. Pink (1942), United States v. Belmont (1937), and the Supremacy Clause of the US Constitution, art. VI, cl. 2)), Supreme Court and other federal cases and opinions of the Attorneys General have long recognized more generally that, under Article II, Section 3 of the Constitution, the President is bound to faithfully execute the "Laws" and that such laws include treaty law of the United States and customary international law. See, e.g., Paust, International Law as Law of the United States 7-11, 169-73 (2 ed. 2003). Thus, the President has a constitutionally-based duty to faithfully execute treaties of the United States - a duty that presidents sometimes prefer when they want to go to war by executing UN Security Council or NATO resolutions authorizing the US to use military force abroad.

Further, it is possible that an executive order can execute a non-self-executing treaty. See, e.g., id. at 78. In any event, our courts have found that the Vienna Convention is self-executing. Customary international law reflected in Article 36 of the Vienna Convention would also be directly operative law of the United States. See, e.g., id. at 7-11, 169-73. Moreover, "all" treaties of the United States (not just some, the ones that a present Administration likes, those that are already fully or partly self-executing, etc.) are expressly covered under the unavoidable mandate of the Supremacy Clause. Such treaties include the Vienna Convention as well as the UN Charter and, under the Charter, the United States is bound to faithfully execute decisions of the ICJ in cases directly involving the US (UN Charter, art. 94(1)). In fact, an ICJ decision is part of the UN treaty process and the treaty expressly sets forth the duty of compliance. This Charter-based duty also happens to override other inconsistent treaty requirements (UN Charter, art. 103).

From the above it is evident that not only can the President order the states to faithfully execute a treaty-based decision of the ICJ, but the President must faithfully execute such a decision (unless to do so would directly violate the US Constitution, see, e.g., Reid v. Covert (1957)). Of course, the 10th Amendment is no barrier to the treaty power because, considering the express recognitions in the amendment, the treaty power (1) has been expressly delegated to the federal government, and (2) has been expressly denied to the states. See, e.g., Reid v. Covert; Missouri v. Holland (1920); US Const. amend. X. Moreover, the Constitution expressly mandates that "all" treaties are supreme law of the land "and the Judges in every State shall be bound thereby." Thus, under the Supremacy Clause the states and state judges are bound by Article 94(1) of the UN Charter whether or not the President acts to enhance faithful execution of the treaty. I'm sure that President Bush is not just playing games when stating that he has determined that "the US will discharge its obligations under the decision of the International Court of Justice" in this instance. Clearly, he must do so as a matter of law in every instance and, most assuredly, the President of the United States is not above the law.

When former General Counsel for Governor Bush of Texas, Alberto Gonzales (who now happens to be the US Attorney General that the President addressed in his determination), wrote in response to a request from the US Office of the Legal Adviser to the Secretary of State to indicate what Texas was doing to implement the Vienna Convention, Alberto demonstrated remarkable ignorance of constitutional law and international law: "Since the State of Texas is not a signatory to the Vienna Convention..., we believe it is inappropriate to ask Texas" to determine whether a breach occurs or to implement the treaty. See Paust, Fitzpatrick, Van Dyke, International Law and Litigation in the US 390-91 (West, American Casebook Series, 2000). Perhaps that's why the President took special care to notify Alberto of the fact that the US will discharge its duties under the United Nations Charter.

Jordan Paust is Law Foundation Professor at the University of Houston Law Center, where he is the Director of the International Law Institute.


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