Smith Custody Case Show ‘Vestiges of Past Lopsided Relations’ with US

Published on March 7, 2009

Medellin then brought his appeal before the Fifth Court of Appeals, raising the ICJ ruling on Avena, but was denied relief. On March 7, 2005, the US withdrew from the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention of April 24, 1963 – which provides that disputes on the interpretation or application of the Vienna Convention “shall lie within the compulsory jurisdiction of the International Court of Justice.” Following this, Medellin appealed before the US Supreme Court.

The US Supreme Court issued a decision on the Medellin v. Texas case denying the petition for certiorari on March 25, 2008. In the majority decision, penned by Chief Justice John Roberts, the US Supreme Court stated that:

No one disputes that the Avena decision – a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes – constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that – while they constitute international law commitments – do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson, 2 Pet. 253, 315 (1829), overruled on other grounds, United States v. Percheman, 7 Pet. 51 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314. When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson, 124 U. S. 190, 194 (1888). In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).[Footnote 2]

A treaty is, of course, “primarily a compact between independent nations.” Head Money Cases, 112 U. S. 580, 598 (1884). It ordinarily “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Ibid.; see also The Federalist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing laws that individuals are “bound to observe” as “the supreme law of the land” with “a mere treaty, dependent on the good faith of the parties”). “If these [interests] fail, its infraction becomes the subject of international negotiations and reclamations … . It is obvious that with all this the judicial courts have nothing to do and can give no redress.” Head Money Cases, supra, at 598. Only “[i]f the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment.” Whitney, supra, at 194. x x x

Medellín and his amici nonetheless contend that the Optional Protocol, United Nations Charter, and ICJ Statute supply the “relevant obligation” to give the Avena judgment binding effect in the domestic courts of the United States. Reply Brief for Petitioner 5-6. x x x Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law.

“Medellin v. Texas proves that the Mutual Defense Treaty and the VFA have no legal force, as these are not self-executory in the US,” Agabin said. “We should not recognize the VFA since it is not recognized as a treaty in the US.”

“We are talking about a treaty (in Medellin v. Texas), but the VFA is not even a treaty,” Ursua said while explaining that the Medellin v. Texas ruling leaves Smith’s camp a lot of room to maneuver in his favor and at the expense of “Nicole”.

“We are at a disadvantage here,” Pangilinan said of the Medellin v. Texas ruling.

With these, Ursua said, “the remedy in the case of ‘Nicole’ is political.”

“We can certainly do without the VFA,” Reyes said. “Nothing in this agreement makes it indispensable. In fact, there is even urgency to rid ourselves of this one-sided pact and to reassert our national sovereignty.”

Colmenares said Congress and the courts are legitimate venues in the Smith custody case. “
But the people must not leave out one other venue: the streets,” he said.

Ursua called on the Filipino people to join “Nicole” in her fight. “If Filipinos can’t identify with ‘Nicole’, a great opportunity to correct historical errors will pass,” she said. (Bulatlat.com)

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