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Paying Decent Respect to International Tribunal Rulings

Published online by Cambridge University Press:  28 February 2017

Harold Hongju Koh
Harold Hongju Koh*
Affiliation:
Gerard C and Bernice Latrobe Smith of International Law, Yale Law School
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Abstract

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Type
“Vertical” Conflicts Between International and National Tribunals
Information
Proceedings of the ASIL Annual Meeting , Volume 96 , 2002 , pp. 45 - 53
Copyright
Copyright © American Society of International Law 2002

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References

1 For a historical review, see generally Koh, Harold Hongju, Paying “Decent Respect” to World Opinion on the Death Penalty, 36 U.C. Davis L. Rev. 1085 (2002)Google Scholar.

2 See generally Koh, Harold Hongju, 1998 Frankéi Lecture: Bringing International Law Home, 35 Hous. L. Rev. 623 (1998)Google Scholar; Koh, Harold Hongju, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997)CrossRefGoogle Scholar.

3 Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).

4 Weisburd, A. Mark, Problems with the Concept of “Vertical Conflicts”, supra at 42-45.

5 U.S. Const, art. III.

6 See Case Concerning United States Diplomatic and Consular Staffin Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24).

7 See Dames & Moore v. Regan, 453 U.S. 654 (1981).

8 Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982).

9 The Declaration of Independence, para. 1-2 (U.S. 1776) (“When in the Course of human events, it becomes necessary for one people to . . . assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation, (emphasis added)).

10 Societe Nationale Industrielle Aerospatiale v. [U.S.] Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 555, 567(1987) (Blackmun. J.) (citation omitted).

11 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 85 (entered into force June 26,1987).

12 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).

13 U.S. Const, art I, §8.

14 Brief for the United States as Amicus Curiae at *11, Natsios v. Nat’l Foreign Trade Council, 2000 WL 194805 (2000) (No. 99-474).

15 Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.). For a recent citation of this proposition, see Justice Scalia’s opinion in Hartford Fire Insurance Co. v. California, 509 U.S. 764, 815, 818-19 (1993).

16 U.S. Const, amend. VIII.

17 Breard v. Greene, 523 U.S. 371 (1998) (per curiam).

18 LaGrand case (F.R.G.V. U.S.), 2001 ICJ Rep. 104 (June 27), at <http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm>.

19 Atkins v. Virginia, No. 00-8452 (U.S. argued Feb. 20, 2002), decided 122 S.Ct. 2242 (June 20,2002) [Ed. note: after these remarks were delivered, the Supreme Court in Atkins banned the execution of people with mental retardation, relying, in part, on the fact that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved,” 122 S.Ct. at 2249 n.21.]

20 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 78.

21 Case concerning the Vienna Convention on Consular Relations (Para. v. U.S.), Request for Provisional Measures, Order, 1998 ICJ Rep. 266, §§18, 20 (Apr. 9), at <http://www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm>.

22 Letter from Madeleine K. Albright, U.S. Secretary of State, to James S. Gilmore III, Governor of Virginia (Apr. 13, 1998), available at <http://www.asil.org/ajil/agoral.htm>. Albright wrote,

As Secretary of State ... I have a responsibility to bear in mind the safety of Americans overseas. I am particularly concerned about the possible negative consequences for the many U.S. citizens who live and travel abroad. The execution of Mr. Breard in the present circumstances could lead some countries to contend incorrectly that the U.S. does not take seriously its obligations under the Convention. The immediate execution of Mr. Breard in the face of the Court’s April 9 action could be seen as a denial by the United States of the significance of international law and the Court ‘s processes in its international relations and thereby limit our ability to ensure that Americans are protected when living or traveling abroad, (emphasis added).

23 See Kempster, Norman, Despite Warnings, Virginia Executes Paraguayan Citizen, L.A. Times, Apr. 15, 1998, at A6 Google Scholar.

24 See, e.g., the Federalist No. 80, at 477 (Alexander Hamilton) (New American Library ed. 1961) (expressing concern that the United States might be held internationally responsible for “an unjust sentence against a foreigner” issued by a state court).

25 See generally LaGrand case, 2001 ICJ Rep. 104.

26 Id. at para. 33.

27 See, e.g., United States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001); State v. Martinez-Rodriguez, 33 P.3d267 (N.M. 2001).

28 See, e.g., United States v. Minjares-Alvarez, 264F.3d 980 (10th Cir. 2001); State v. Lopez, 633 N.W.2d 774 (Iowa 2001); State v. Issa, 752 N.E.2d 904 (Ohio 2001).

29 The ICJ ruled, inter alia, that: (1) Article 36, paragraph 1 of the Vienna Convention creates an individual right to consular notification and access; (2) that a foreign national deprived of his Article 36 rights and sentenced to a “severe penalty” is entitled to “review and reconsideration” of his conviction and sentence; (3) that application of domestic rules of procedural default to the LaGrand brothers violated the United States’ obligation to give “full effect” to the purposes of Article 36; (4) that a foreign national need not demonstrate prejudice by the Article 36 violation before he may obtain an effective remedy for the violation; and (5) that the provisional measures order should have been treated as binding upon the United States. LaGrand case, 2001 ICJ Rep. at §§123-27.

30 United States v. Lombera-Camorlinga, 206 F.3d 882,884-85 (9th Cir. 2000) (en banc) (holding that suppression of evidence was not an appropriate remedy for violation of the Vienna Convention).

31 State v. Reyes, 740 A.2d 7 (Del. Super. Ct. 1999), overruled by State v. Tiaseca, cited in State v. Vasquez, 793 A.2d 1249 n.6 (Del. Super. Ct. 2001).

32 See Status of Detainees at Guantanamo, Office of the White House Press Secretary (February 7, 2002), available at <http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html>.

33 See Letter from Juan E. Méndez, President, Inter-American Human Rights Commission, Re “Detainees in Guantanamo Bay, Cuba, Request for Precautionary Measures” (March 13, 2002), available ar<http://www.humanrightsnow.org>.

34 At this writing, the District of Columbia federal court has rejected habeas petition filed on behalf of two British and one Australian detainee on Guantanamo. Bay Bravin, Guantanamo Detainees Lose Bid for Access to U.S. Courts, Wall St. J. (July 31, 2002), available at <http://online.wsj.com>.

35 Ins v. Cardoza Fonseca, 480 U.S. 421, 439 n.22 (1987).

36 Atkins v. Virginia, 122 S.Ct. 2242 (decided June 20,2002) following this panel, discussed in supra note 19.

37 See Brief of Amici Curiae Diplomats Morton Abramowitz et al. at 1-21, McCarver v. North Carolina, 2000 U.S. Briefs8727 (N.C. June 8, 2001), available at <http://www.deathpenal tyinfo.org/ForeignServiceBrief.html>.

38 See Baktybek Abdrisaev, Letter to the Editor, Penalties in Kyrgyzstan, N.Y. Times, June 30, 2001, available at <http://www.nytimes.com/2001/06/30/opimon/L30KYRG.html?ex=995179324&ei=l&en=76edcd977ωcf7e8>.

39 The Paquete Habana, 175 U.S. 677, 700 (1900).

40 See Atkins v. Virginia, No. 00-8452, 2002 WL 341765, at *48 (Feb. 20, 2002) (United States Supreme Court official Transcript).

41 Id.

MS. Rumpz: This Court has said previously that the notions of other countries and the notions of other lands cannot play the deciding factor in what—

Justice Ginsburg: Not deciding. I asked you if it was relevant.

Ms. Rumpz: Well, it is relevant in—as Justice Scalia said in one of his opinions, to determine whether our practice is a historical accident or not. But it certainly is not relevant in deciding the Eighth Amendment principle. . . .

Justice Ginsburg: I asked if it was relevant....I didn’t ask if it was dispositive.

Ms. Rumpz: It’s not dispositive, and it is relevant once the Eighth Amendment principle has already been established. It’s not relevant in establishing whether something is cruel and unusual.

Justice Souter: Why do you need it after it’s been established?

Question: You don’t.

Ms. Rumpz: You don’t. You—you look—you look after the fact to see whether—I guess my answer I guess is it’s not relevant.

But see Atkins, 122 S.Ct. at 2249 n.21 (taking note of the overwhelming disapproval of the world community for this practice in the course of invalidating it under the Eight Amendment).

42 President George W. Bush, State of the Union Address (Jan. 29, 2002) (transcript available online at <http://www.whitehouse.gov/news/releases/2002/01/20020129-ll.html>) (“America will always stand firm for the non-negotiable demands of human dignity: the rule of law; limits on the power of the state; respect for women; private property; free speech; equal justice; and religious tolerance.”).