Class 9 States & Treaties

1. Class 9States & Treaties POLS 363 International Law P. Brian Fisher Spring 2011

2. Review of IL Flowcharts Part I

5. Treaties and US v. Mexico Part II

6. ‘Treaties’ • Basic Definition: written agreements b/w 2 or more nations, governed by IL, creating or restating legal rights and duties )see Vienna Convention) • Overwhelming part of IL consists of utilizing treaties as the basis for legal remedies, preventative/precautionary principles, and remedial norms. • Created through international organizations (UN, EU, WB) and nation-states through bilateral and multilateral agreements. • Superior to other legal sources onglobal issues b/c they allow for “targeted laws, flexibility of law-making, machinery for inducing compliance, and non-compliance and dispute resolution mechanisms”

7. Flexibility of Treaties 3 General Parts • Framework Treaty: general principles • Protocols: supplement or implement the framework treaty • Annexes: details for amendment to changing needs

8. Elements of a Typical Int’l Convention or Treaty • Definitions • Objective • Principles (needs and rights) • Commitments (categorization of countries for purposes of implementation) • Amendment of Annexes to Convention • Protocols (procedure for adoption, entry into force, acceptable parties, participation) • Right to Vote (assignment of voting rights) • Ratification, Acceptance, Approval (timing, binding nature, etc.) • Entry into Force

9. Capacity to Conclude a Treaty • Capacity to Enter: States are free to negotiate and enter into a treaty with other states. • Internal Ratification (US): Every state is different, but in US, Exec negotiates and signs a treaty, but Senate must ratify (by 2/3). President then has final say. Once Senate and then Pres both ratify, only then does the US become bound by treaty. • Reservations: an exception, exclusion or modification of the legal effect of the treaty (to the state)—that is, allows a state to not be bound by certain parts of the treaty.

10. Reservations: Convention on Prevention & Punish of Genocide(1951 ICJ 15 (Advisory OP)) • 2 Issues • 1. Can reserving state maintain reservation despite objection by other states (whether one can reserve that issue) • 2. If affirmative, what is the effect for: a) parties objecting & b) those accepting it • H1: Yes, state can remain a party IF the reservation remains compatible with the object and purpose of the Convention (compatibility test) • H2: In above case, the objecting party believes that reservation is incompatible with O&P, then it can consider reserving state not a party • On the other hand, if party accepts reservation as compatible then it can consider the reserving state party to the Convention.

11. Execution of a Treaty • Self-Executing Treaty: merely becoming a party puts the treaty and all of its obligations in action. • Non Self-Executing: requires 'implementing legislation'—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. • An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes. • Sole executive agreements (as a Treaty): may be executed by the President acting alone (rather than formal treaty process that requires internal ratification). • international agreements are executed by executive agreement rather than treaties at a rate of 10:1. • However, most of the time Presidents go through the formal treaty process, to include Congress, for political and financial support. • Jus Cogens: (Article 53 of VC): A treaty is null and void if it is in violation of a preemptory norm at the time of its conclusion. • Art 64 states that if existing treaty violates a newly emerged preemptory norm, the treaty is terminated.

12. Invalidity • Under VC (articles 46-53), error, coercion or fraud may lead to termination or invalidate a treaty • Error (rarely invoked): but if error formed the “essential basis” for consenting to treaty than can be used to invalidate • Coercion: through the threat or use of force, if used to obtain the consent of that state to a treaty, will invalidate that consent. • Fraud: If consent to the treaty was induced by the fraudulent conduct of another party, or by the direct or indirect "corruption" of its representative by another party to the treaty.

13. Main Articles of Vienna Convention on Treaties Application of Treaties • Art 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” • Art 27: internal law cannot be raised as a justification for the failure to keep a treaty. Interpretation of Treaties • Art 31: interpret treaties in accordance with its ordinary meaning –but it operates in treaty’s context and overall objective • Supplementary Materials can only be used only to the degree the “ordinary meaning” is left “ambiguous or obscure” or when that interpretation leads to an “absurd or unreasonable” result

14. Le Grand Case (Germ v. US)2001 ICJ 466 • Facts: German Nationals living in US commit armed burglary killing a person. Subsequently, found guilty; sentenced to DP. LeGrands’ appeal to ICJ, which grants a stay (of execution). In ICJ, Germany argues that they should have been apprised of their legal right to consular assistance. US argued that the Vienna Convention did not grant rights to individuals, only to states. • Issue: Do foreign nationals, alleged to have committed crimes in the US, have an individual right to consular assistance under the Vienna Convention? • Holding: Yes. For Germany (rejected all US arguments). • Reasoning: (1) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention, but only specify the means by which those rights were to be exercised. So, intergovernmental orgs, and even individuals, can be “subjects” of rights and obligations of IL

15. Exclusionary Rule • Exclusionary Rule: evidence collected in violation of defendant’s constitutional rights is (sometimes) inadmissible. • Grounded in 4th A (due process): it is intended to protect citizens from illegal searches and seizures. • The exclusionary rule is also designed to provide a remedy (excluding tainted evidence) and a disincentive to violating procedural rules on collecting evidence. • “Fruit of the Poisonous Tree”: when an illegal action is used by police/prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal action • So, any “fruit” derived from the illegal search is thrown out, even if later fruit is obtained legally.

16. Mexico v. US (Avena)2004 ICJ 12 • F: In ~50 death row cases involving MX nationals, Mexico alleges that detainees were never informed of their Vienna Convention Rights (Art 36,1b) when taken into US custody. US is party to VC treaty. In 29 cases, consular authorities only learned of detention after death sentence handed down and in others, learned through non-official means. Mexico also asserts injury to its state, directly & through its Nationals. • I: US violate the Vienna Conv by failing to notify Mexico Nationals and Mexico of their consular rights? • H: Yes, US indeed had obligations under Art 36, and failed to extinguish them by informing detainee “without delay” once “there are grounds to think that the person is probably a foreign national (para 63). • R: The court relies on LeGrand, saying that Art 36 creates “individual rights” (for the National)…which my be invoked by the national state. The state’s rights may also be violated. The court determined that in most cases, the US did not meet the minimal definition of “without delay”. ICJ’s legal remedy is to remand to lower US dist cts for reconsideration to determine if proper notice was provided, and if not, to what degree their rights implicated

17. Sanchez-Llamas v. Oregon548 US 331 (2006) • F: Sanchez-Llamas, MX national, was convicted of attempted murder in Oregon and Mario Bustillo, a Honduras national, was convicted of murder in Virginia for beating a man to death with a baseball bat. Neither had his consulate informed of the charges against him, as is required by VC Art 36. • I: Does the violation of Art 36 require the suppression of evidence at trial? Does a procedural state law permit dismissal of a VC claim? • H: No, Ct provided no answer to whether Art 36 provides substantive rights, and procedural remedy to Art 36 violation should not be based on exclusionary rule. • R: Too stiff a penalty for violation (would be “startling” decision) and US is the only country to use the exclusionary rule. Also, majority ruled that ICJ rulings are not binding on U.S. courts. Also, Art 36 must be exercised in conformity with domestic law” means states must be allowed to decide when claims need to be raised. • D: Would have found that Art 36 in VC creates substantive rights that can be enforced in US courts, yet suppression would only be used in “some” cases. Dissent said there may be times when state procedural default rules must yield" to the VC’s requirement that domestic laws give it "full effect."

18. Medellin v. Texas552 US 491 (2008) (6-3 decision) • F: Medellin, MX national, sentenced to death for gang rape and murder of 2 teenaged girls. He appeals based on Art 36 of VC. Pursuant to the ICJ ruling in Mxv. US, Medellin argues that the VC grants him an individual right that state courts must respect. Also, argues that US Presidential memo instructed state cts to comply with ICJ rulings by rehearing cases. Argues that US constitution give Pres broad treaty power (to ensure fulfillment) • I1:WasPres memo (to comply with ICJ rulings) within his statutory foreign affairs authority? • I2: Must state courts comply with treaty obligation by complying with ICJ ruling? • H: No. No. Issue hinged on whether VC was a “self-executing” treaty. If it was, then it’s binding. If not, then needed to be “executed” by Act of Congress. Ct found that it was not “self-executing” and not required to comply with ICJ ruling, and that Pres memo was simply an executive way of trying to enforce a non-self-executing treaty; to decide otherwise would grant Pres law-making powers. • D: “self-executing” based on a reading of other treaties that had gone into effect without additional Congressional action…and "I believe the treaty obligations, and hence the judgment [of the ICJ], resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal] legislature.'"