Trivialising the UN System?

Two recent judicial developments have sent across signals of doubt yet again as to what the value of UN measures is. The first one is Medellin v. Texas (US Supreme Court judgment of March 25, 2008), in which the Supreme Court by a majority of 6:3 declared that the UN Charter and other treaties are not self-executory and therefore not binding, despite recognising that there are international law obligations accrued.

The case came in the following context. The appellant, Medellin and other Mexican nationals raped and murdered two girls in Texas, and were arrested for the same crime. Although the Miranda warning was given by the authorities, the Texas authorities did not comply with the requirements of Vienna Convention on Consular Relations, 1963 (of which US is a signatory), which prescribes that in the event of an arrest of a foreign national, the accused must be informed of his right to contact his consulate. The Optional Protocol provides that the disputes arising out of VCCR fall within the compulsory jurisdiction of the International Court of Justice.

Mexico brought an action against the US in the ICJ on behalf of 51 nationals placed in similar circumstances, which decided in Avena (Mexico v. US) that since the requirements of VCCR were not fulfilled, the concerned nationals were entitled to a review of sentences. The Appellate Court refused to implement the ICJ judgment. Medellin approached the US Supreme Court, which admitted the appeal. Subsequently, the US withdrew from the Optional Protocol to the VCCR. President Bush issued a memorandum in 2005 ordering States to review the sentences of the Mexican nationals, complying with the VCCR.

The US Supreme Court was now considering a) whether the Avena judgment of the ICJ was automatically executable; and b) whether the President’s memorandum is valid.

The majority opinion written by Chief Justice Roberts and the concurring by Justice Stevens ruled that Art. 94 of the UN Charter uses the words “undertakes to comply with the decision of the International Court of Justice”, which the Court held was not adequately binding, since it was lesser in its tenor than words like ‘shall’ or ‘must’, thereby holding that ICJ judgments are not binding without a Congress law. The Court also declared the President’s Memorandum void because it found him making law and thus, violating the separation of powers principle.

The dissent by Justice Breyer, who is a Democrat President-nominated judge, and more liberal than others, is powerful, and I think, pragmatically sounder. He begins with the Supremacy clause contained in Article VI, cl. 2 of the US Constitution, and on that basis regards the treaty obligation as binding on the judicial organ. Holding that the Charter’s language of ‘undertakes to comply’ is adequately self-executory, since it is unlikely that an international instrument will contain stronger language, he notes that the ICJ judgment in this case and in any case to which the US is a party is binding on all the Courts in the US. He also upholds the President’s Memorandum as he feels that it falls within the second category of the three-pronged Youngstown framework elucidated by Justice Jackson in 1952, that is an action where he has no express authority or Congressional grant, but in which he and the Congress would have concurrent authority, or in which the distribution is uncertain. This is opposed to the majority’s finding of the President’s Memorandum falling within the third category where the President takes measures incompatible with the express or implied will of the Congress.

In the second judicial development, Kadi and Al-Barakaat International Foundation v. Council and Commission (CJEC Judgment of September 3, 2008, C-402/05 P, available at http://curia.europa.eu/), a challenge was brought against the EC measures taken in compliance with the UN Security Council resolutions freezing bank accounts and imposing other restrictions on persons and organisations suspected of being involved with Al-Qaida, Usama Bin Laden and the Taliban, on the ground of violation of fundamental rights of hearing, of effective judicial remedy and of property. The CJEC upheld the challenge and found that the EC measures could not stand.

Both these judgments have resulted in a precarious situation as to the status and strength of UN measures. While in both the judgments, the respective judicial fora accept that international obligations accrue, they put the executive (in the first case) and the member-States (in the second case) in a strange situation. In Medellin v. Texas, Chief Justice Roberts went so far as to say that the option of a veto when the matter comes up before the Security Council for non-compliance under Article 94(2) of the Charter, is always available with the US. Clearly, these judgments indicate a dangerous trend, going to the root of UN actions. In Kadi, the CJEC indirectly reviewed Chapter VII Resolutions, which are non-reviewable at any rate. The Security Council has been given the widest power to maintain peace and security, and without the cooperation of its member-States, it is hardly imaginable that any such measures can succeed. Violation of fundamental rights cannot be imputed to Security Council resolutions, because the basis of the Charter is that the goal of peace overrides the goal of justice, and in some cases, if there is injustice caused, such measures are necessary to be taken to ensure peace and greater security.