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The Justiciability of Paraguay’s Claim of Treaty Violation

Published online by Cambridge University Press:  27 February 2017

Lori Fisler Damrosch
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Extract

The U.S. Government’s position asserting nonjusticiability of the treaty claims raised by Paraguay in the domestic and international lawsuits is disturbing. The Government’s amicus filings at the court of appeals and the Supreme Court denied that Paraguay’s claims belonged in federal court (or indeed in any court at all); at die International Court of Justice, the United States admitted a treaty violation but denied the competence of that tribunal to enter a judicial remedy. At one or another phase of these proceedings, the U.S. Government pressed a variety of arguments that (if accepted) would rule out virtually any judicial consideration of a treaty-based claim. The haste with which the Supreme Court denied a stay in Breard’s case foreclosed adequate consideration of the justiciability of such claims in domestic courts and also effectively barred Paraguay from achieving the relief it sought on the international plane.

Type
Agora: Breard
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 697 - 704
Copyright
Copyright © American Society of International Law 1998

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References

1 Brief for the United States as Amicus Curiae at 11–27, Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998) (No. 96-2770) [hereinafter 4th Cir. Amicus Brief].

2 The Fourth Circuit amicus brief left open the possibility that an injured foreign national (in contrast to a foreign state) might himself be able to sue to enforce the treaty, id. at 12; but at the Supreme Court the Solicitor General contended that “the Convention does not provide a judicial cause of action, at the behest of either a foreign national or his sending state, to have a criminal conviction or sentence vacated, either on direct appeal or on a collateral proceeding.” Brief for the United States as Amicus Curiae at 13–14, Republic of Paraguay v. Gilmore and Breard v. Greene, 118 S.Ct. 1352 (1998) (Nos. 97-1390 & 97-8214) [hereinafter S.Ct. Amicus Brief].

3 4th Cir. Amicus Brief, supra note 1, at 9–10, 27–30; S.Ct. Amicus Brief, supra note 2, at 30–33. The Supreme Court summarily endorsed the position that neither a foreign state nor its consul is a “person” within the meaning of 42 U.S.C. §1983 (1994), see 118 S.Ct. at 1356; see also Justice Souter's concurring statement noting “substantial doubt” that Paraguay or any Paraguayan official is a “person” within the meaning of §1983, id.

4 4th Cir. Amicus Brief, supra note 1, at 9, 23–25; S.Ct. Amicus Brief, supra note 2, at 15–28. The Government did not dispute mat the Vienna Convention is self-executing but distinguished this point from the position that the Convention does not provide for a right of action to vacate a criminal conviction. Id. at 17–18 n.4.

5 4th Cir. Amicus Brief, supra note 1, at 3, 15–23; cf. Letter of Acting Legal Adviser Michael Matheson to Robert Brooks, Esq. (Aug. 20, 1997), quoted in 92 AJIL 90 (1998) (“We believe firmly that allegations that treaty obligations have been breached should be raised and resolved through diplomatic representations between governments.”).

6 Head Money Cases, 112 U.S. 580 (1884).

7 The Supreme Court, 118 S.Ct. at 1355, and Curtis A. Bradley &Jack L. Goldsmith in the present Agora, The Abiding Relevance of Federalism to U.S. Foreign Relations, supra pp. 675, 678–79, treat the Antiterrorism and Effective Death Penalty Act of 1996 as the kind of statute that could have superseded the domestic effects of the Vienna Convention. This position would not be persuasive unless there were some evidence—and there is none—that Congress had focused on the possibility of a conflict with obligations under the Vienna Convention and had deliberately decided to require noncompliance. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).

Bradley and Goldsmith, supra p. 679, also contend that resolution of trade-offs between federalism and foreign relations should be made by the federal political branches. This assertion ignores the long-standing role of the federal judiciary in undertaking an independent examination of the national interests implicated in state and local infringements on foreign commerce and foreign affairs.

8 See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

9 The U.S. Government urged the courts to stay away from the 11th Amendment issues, noting their complexity especially in the international context. 4th Cir. Amicus Brief, supra note 1, at 2, 10, 30–32; cf. S.Ct. Amicus Brief, supra note 2, at 26 (arguing against grant of certiorari because the only other federal appellate decision had likewise dismissed the case on 11th Amendment grounds, see United Mexican States v. Woods, 126 F.3d 1220 (9th Cir. 1997), cert. denied, 118 S.Ct. 1517 (1998)). The Supreme Court accepted Virginia's 11th Amendment contentions in a few terse sentences. 118 S.Ct. at 1356.

10 S.Ct. Amicus Brief, supra note 2, at 37–46; 118 S.Ct. at 1354–55.

11 4th Cir. Amicus Brief, supra note 1, at 2, 20, 24 (foreign states' claims of treaty violations are properly resolved “through actions before appropriate international bodies”; disputes covered by the Vienna Convention's Optional Protocol should be brought to the ICJ rather than to domestic courts).

12 Case concerning the Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, paras. 28–29 (Order of Apr. 9, 1998) [hereinafter ICJ Order].

13 Paraguay argued that the United States was under an international legal obligation not to apply the doctrine of “procedural default” so as to preclude the exercise of Vienna Convention rights. See id., para. 5(3). The U.S. position was that treaty rights must be exercised in conformity with relevant procedural rules of internal law. See S.Ct. Amicus Brief, supra note 2, at 38–41.

14 S.Ct. Amicus Brief, supra note 2, at 46–51.

15 Letter from U.S. Secretary of State Madeleine Albright to Governor of Virginia James Gilmore (Apr. 13, 1998), quoted in Jonathan I. Charney & W. Michael Reisman, The Facts, supra pp. 666, 671–72.

16 118 S.Ct. at 1356.

17 The Supreme Court's per curiam order observed: “If the Governor wishes to wait for the decision of the ICJ, that is his prerogative. But nothing in our existing case law allows us to make that choice for him.” Id.

18 Pfizer, Inc. v. India, 434 U.S. 308 (1978); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

19 E.g., in Pfizer the Supreme Court construed the Sherman Act to determine whether foreign states could sue as parens patriae on antitrust claims. As noted above, the Supreme Court held in Breard that a foreign state was not a “person” entitled to bring a claim under 42 U.S.C. §1983 (1994).

20 Santovicenzo v. Egan, 284 U.S. 30 (1931) (suit by Italian consul involving property of Italian national who died intestate); Wildenhus's Case, 120 U.S. 1 (1887) (suit by Belgian consul alleging exclusive consular jurisdiction in relation to murder committed on a Belgian-flag vessel); Glass v. The Sloop Betsey, 3 U.S. (3 Dall.) 6 (1794) (suit by French consul to determine rights in ship of French and Swedish parties).

21 Argentina v. New York, 250 N.E.2d 698 (N.Y. 1969) (claim that customary international law required exemption of real property from taxation).

22 See In re Kaine, 55 U.S. 103, 107 (1852); Castro v. De Uriarte, 16 F. 93 (S.D.N.Y. 1883), cited in 4th Cir. Amicus Brief, supra note 1, at 25; 18 U.S.C. §3184 (1994).

23 United States v. Arlington County, 669 F.2d 925 (4th Cir.), cert. denied, 459 U.S. 801 (1982); United States v. City of Glen Cove, 322 F.Supp. 149 (E.D.N.Y), aff'd on opinion below, 450 F.2d 884 (2d Cir. 1971) (suits brought by United States to enjoin assessment of local taxes on property owned by foreign governments). These lower-court cases are relatively recent applications of the doctrine established by the U.S. Supreme Court decades ago that the United States can initiate suits to bring about compliance with international law on the part of subfederal actors. See Sanitary Dist. v. United States, 262 U.S. 405 (1925); United States v. Minnesota, 270 U.S. 181 (1926).

24 See, e.g., The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812) (“One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another …”).

25 Cf. U.S. Foreign Sovereign Immunities Act, 28 U.S.C. §§1330(a), 1604, 1605(a)(1) (providing for suits against foreign states in specified circumstances, inter alia, where they have waived immunity by international agreement).

26 See cases cited in note 23 supra.

27 See correspondence reprinted in 73 AJIL 124–25 (1979).

28 Although Paraguay and Breard both sought a stay of Breard's execution in 1997–1998, this does not mean that their legal interests were the same. Paraguay also sought additional relief irrelevant to Breard's own case—for example, assurances that the breach of treaty would not be repeated in the case of any other incarcerated Paraguayan nationals.

Since the U.S. Government agreed with Paraguay that Virginian officials had violated the treaty, this case did not raise the difficult policy questions that might have arisen if the U.S. executive branch had contested the allegation of breach. In that event, it would have been up to the federal court, after giving “due weight” to the Executive's position, see Kolovrat v. Oregon, 366 U.S. 187 (1961); Perkins v. Elg, 307 U.S. 325 (1939), to construe the treaty authoritatively.

29 Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 36(1) (b) (emphasis added), 21 UST 77, 596 UNTS 261.

30 Id., Art. 36(1) (emphasis added).

31 Report of the International Law Commission on the work of its thirteenth session, ch. II, [1961] 2 Y.B. Int'l L. Comm'n at 88, UN Doc. A/CN.4/SER.A/1961/Add.1; see also commentaries to draft Article 36 stressing “the right of the consular official” to communicate with its detained national, id. at 112.

32 For example, the Australian delegate proposed an amendment to the ILC's text that would have added the words “subject to the wishes of the person concerned.” He explained the amendment with reference to the “rights of the individual” to say whether or not he wished to be approached by consular officials. 1 United Nations Conference on Consular Relations, Official Records 331–32, UN Doc. A/CONF.25/16 (1963).

33 Arguably, such a suit would be precluded if the sending state's national “expressly opposed” the action within the meaning of Article 36(1) (c); but this would be a matter for the receiving state's court to decide by interpreting the Vienna Convention and applying it to the facts before it, rather than by ruling out any suit brought by the foreign state.

The issue of whether the foreign state could maintain a claim in the face of procedural default by its national should also be resolved by interpreting and applying the treaty, including Article 36(2):

The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

The U.S. Government cited the opening phrase as a reason for summary dismissal of the claim, while Paraguay stressed the proviso in arguing that local law could not cut off its treaty rights. The Supreme Court construed this provision as requiring Breard to have first asserted his treaty rights in state court as a precondition for federal habeas relief. Breard v. Greene, 118 S.Ct. 1352, 1354 (1998).

34 The Government had reminded the Fourth Circuit of cases such as United States v. Pink, 315 U.S. 203, 234 (1942), which had opined that “in respect of our foreign relations generally, state lines disappear,” and had also noted that in a full-scale consideration of 11th Amendment issues the court would have to address the doctrine of United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315–18 (1936), that the foreign relations power does not depend upon surrender of state powers to the federal Government. See 4th Cir. Amicus Brief, supra note 1, at 31.

35 292 U.S. 313, 329–30 (1934), quoted in 118 S.Ct. at 1356.

36 S.Ct. Amicus Brief, supra note 2, at 49.

37 This was the position advocated by a group of a dozen professors of international law, for whom the undersigned served as counsel of record, in an amicus filing made with the Supreme Court on April 13, 1998, in Republic of Paraguay v. Gilmore, 118 S.Ct. 1352 (1998) (No. 97–1390). This section draws in part on that amicus brief.

38 Bernard H. Oxman, Jurisdiction and the Power to Indicate Provisional Measures, in The International Court of Justice at a Crossroads 323, 332–33 (Lori F. Damrosch ed., 1987).

39 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7 (Order of Dec. 15).

40 Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298 (1994); Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979); Zschernig v. Miller, 389 U.S. 429 (1968).

41 Cf. Barclays Bank, 512 U.S. at 328–32 (upholding a state tax alleged to burden foreign commerce, after performing independent examination of significance of Executive's statements bearing on foreign policy considerations).

42 Societe Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958); Interhandel (Switz. v. U.S.), 1957 ICJ Rep. 105 (Order of Oct. 24); and Preliminary Objections, 1959 ICJ Rep. 6 (Mar. 21).

43 118 S.Ct. at 1354.

44 For criticism of the Government's typical reliance on nonjusticiability arguments in foreign affairs cases, see Thomas M. Franck, Political Questions/Judicial Answers (1992); Harold Hongju Koh, The National Security Constitution, ch. 6 (1990).

45 As the ICJ viewed the matter, the issue of whether a criminal conviction could be set aside as a remedy for breach of the Vienna Convention “can only be determined at the stage of the merits.” ICJ Order, supra note 12, para. 33. U.S. lawyers might well expect that such an issue should be decided at the outset: in federal courts, it could be resolved on a motion to dismiss for failure to state a claim on which relief may be granted. Fed. R. Civ. P. 12(b)(6).