2008 International Law Update, Volume 14, Number 3 (March)

2008 International Law Update, Volume 14, Number 3 (March)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

ALIEN TORT CLAIMS ACT

Second Circuit affirms dismissal of case brought by Vietnamese Plaintiffs allegedly injured by U.S. use of Agent Orange and other defoliants during Vietnam War, deciding (1) that there is no universally accepted customary international norm against use of herbicides in war, and (2) that injunctive relief is inappropriate since U.S. court lacks jurisdiction over affected Vietnamese territory

Plaintiffs are (1) a class of Vietnamese nationals suing on behalf of themselves and all others similarly situated for injuries allegedly sustained by their exposure to Agent Orange (AO) and other herbicides used by the U.S. military during the Vietnam War. Plaintiffs also include (2) the Vietnamese Association for Victims of Agent Orange (VAVAO), a Vietnamese non‑profit, non‑governmental organization representing persons who were exposed to AO. Its purpose is to protect the interests of its members and to raise funds for their care and treatment. Defendants are U.S. companies who manufactured the chemicals and supplied them to the U.S. government.

U.S. forces were using AO in the Vietnam War in order to clear off large swaths of jungle and dense forest, so as to protect U.S. troops against ambushes. The military applied the herbicides by an aerial spray; the military claims that they tried hard to spray only military targets in places remote from civilian centers.

During the conflict, the U.S. government thought that the pace of AO production was not enough to meet its projected needs. Acting under the Defense Production Act of 1950 (DPA), it decided to compel Defendants to prioritize AO production. DPA Section 101 authorized the President to “require that performance under contracts or orders . . . which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, to require acceptance and performance of such contracts or orders in preference to other contracts or orders.” He in effect commandeered all of the corporate Defendants’ capacity to produce AO.

In 1966, a government study uncovered evidence that exposure to AO was causing health problems and the U.S. stopped using AO in 1970. After the war, however, both American military personnel and Vietnamese citizens began to report health defects, allegedly caused by exposure to AO and other herbicides. Plaintiffs’ allege, such injuries included, inter alia, miscarriages, birth defects, breast cancer, ovarian tumors, lung cancer, Hodgkin’s Disease, and prostate tumors.

The Plaintiffs’ complaint charged (1) that the U.S. use of AO violated international, domestic, and Vietnamese law and (2) that Defendants either aided and abetted these violations or committed independent violations by fulfilling the military’s demand for herbicides. With respect to their claims arising under international law, Plaintiffs alleged that Defendants’ actions constituted torts under the “law of nations” that were actionable under the Alien Tort Claims Act, 28 U.S.C. Section 1350 (ATCA); these wrongs included war crimes, genocide, crimes against humanity, and torture.

Their complaint also included various claims arising under U.S. and New York law and the internal tort law of Vietnam. Plaintiffs sought compensatory and punitive damages. They also asked for an injunction ordering Defendants to provide environmental remedies in the allegedly contaminated areas in Vietnam and to disgorge profits gained from their production and supply of AO and other herbicides.

Defendants moved to dismiss the Complaint for failure to state a claim under the ATCA. They further moved for partial summary judgment dismissing all Plaintiffs’ claims as time‑barred. On the merits, Defendants contended that Plaintiffs failed to allege a violation of the Law of Nations, citing Sosa v. Alvarez‑Machain, 542 U.S. 692 (2004). On January 12, 2005, the U.S. government filed a Statement of Interest supporting Defendants’ motion to dismiss the ATCA claims and raised the government‑contractor defense.

The District Court ultimately determined that none of Plaintiffs’ claims could proceed. As to the ATS claims, the Court found that Plaintiffs had failed to state a cause of action because neither the U.S. military’s use of Agent Orange, nor Defendants’ agreement to supply it to the military, violated a universal international norm prohibiting the use of herbicides in war. The Plaintiffs’ domestic and Vietnamese law claims were barred by the government‑contractor defense. The District Court then granted Defendants’ motion to dismiss. This appeal ensued. The U.S. Court of Appeals for the Second Circuit essentially agrees with the district court and affirms.

On appeal, Plaintiffs argued, inter alia, two major contentions: (1) the District Court had erred by dismissing their ATCA claims since Defendants had violated customary international law banning the use of poisoned weapons and the infliction of unnecessary suffering; and (2) the District Court had prematurely dismissed their claims for injunctive relief without the benefit of adequate discovery.

On the ATCA claims, the Court of Appeals is unable to find any customary international law specific enough under Sosa to bar the use of herbicides in war, particularly where there is no allegation and no evidence that the U.S. intended the herbicides to poison human life. The Plaintiffs have not established that there is a universally‑accepted ban against the use of substances which only secondarily harm humans.

Plaintiffs also allege that the use of AO and other herbicides violated the norm of proportionality and caused unnecessary suffering. The Court notes, however, that “[t]he principle of proportionality implicates the element of intent, e.g., ‘calculated to cause unnecessary suffering,’ ‘wanton destruction,’ ‘willfully causing great suffering,’ and ‘carried out unlawfully and wantonly.’ [Cite.] Because Plaintiffs do not allege, nor could they on this record prove, the required mens rea, they fail to make out a cognizable basis for their ATCA claim.” [Slip op. 22]

Finally, the District Court found that the extraterritorial injunction that the Plaintiffs sought implicated Vietnam’s sovereignty and was “wholly impracticable.” The District Court would be unable to enforce an order of abatement and remediation for areas of land over which the U.S. has no jurisdiction. Plaintiffs claimed that further discovery was essential to guide the District Court in ruling on the injunction. The Court of Appeals disagrees. The facts relied on by the District Court, Vietnam’s sovereignty and the lack of jurisdiction over the relevant territory, are readily apparent on the present record.

Citation: Vietnam Association for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir. 2008).

EXTRADITION

In appeal from hearing on Greece’s request to extradite Petitioner, Ninth Circuit holds that inquiry into intent is appropriate in dual criminality analysis, that identity of person sought by extradition request can be confirmed through witnesses’ identification by photo, and that depositions supporting foreign arrest warrant were not indispensable to support finding of probable cause under U.S.‑Greece Extradition Treaties

In October 1999, Greece (Petitioner) requested that the U.S. extradite Crystalla Kyriakidou (Respondent). According to the request, Respondent had entered the U.S. using a false passport under the name of Christina Manta. Petitioner sought to extradite Respondent on (1) deceit of especially great damage, by profession and by habit; (2) deceit which caused an especially important damage, in continuation and by habit; (3) continuing deceit against a bank, with damage of more than 5,000,000 drachmas [about $18,000 USD] and committed by a person who acted by profession and by habit and especially dangerous; and (4) fraud by profession and out of habit of particularly great damage.

A California federal court issued an arrest warrant and, on June 30, 2005, authorities provisionally arrested Manta in the belief that she was Kyriakidou. At the extradition hearing, the magistrate judge (MJ) partially granted the government’s request for extradition. The MJ concluded that the person before the court, Christina Manta, was Crystalla Kyriakidou, the one Greece sought for extradition. The MJ approved extradition on only two charges: (1) ongoing deceit that caused an especially important damage, and (2) professional and habitual fraud of particularly great damage. The applicable agreements as of January 1, 2007 are Treaty of Extradition and Exchange of Notes, 47 Stat. 2185; T.S. 855; 138 L.N.T.S. 293 (in force, Nov. 1, 1932 ; and Protocol Interpreting Article I of 1931 Treaty, 51 Stat. 2185; E.A.S. 114; 185 L.N.T.S. 408 (in force Sept. 2, 1937).

On one charge, the MJ relied on an investigative report from a Greek Public Prosecutor; it stemmed from testimony from Kiskiras and three other witnesses. For the other charge, the MJ relied on sworn testimony before an Athenian Appeal Court where a witness identified “Manta” as “Kyriakidou.” Manta unsuccessfully challenged her extradition by petitioning for a writ of habeas corpus in the district court. Manta now appeals.

Manta raises two objections on appeal. They are (1) that the crime did not fall within the terms of the treaty, and (2) that there no probable cause to believe that Petitioner was the one who had committed the crimes charged. The U.S. Court of Appeals for the Ninth Circuit affirms the dismissal of the habeas petition.

Article I of the [Extradition] Treaty between the U.S. and Greece sets forth the usual ‘dual criminality’ requirement. Dual criminality exists if the ‘essential character’ of the acts criminalized by the laws of each country are the same and the laws are ‘substantially analogous.’ [Cite.] The elements of the crime allegedly committed in a requesting nation need not be identical to the elements of the substantially analogous crime in the requested nation.

The Court of Appeals agrees with the District Court that the essential character of the two crimes on which the MJ based the extradition order corresponds to the U.S. crime of obtaining money by false pretenses. It also agrees that criminal intent is relevant but that it may be inferred from Petitioner’s conduct.

At an extradition hearing, the MJ must determine whether the party before the MJ is identical to the party named in the extradition request. The Ninth Circuit upholds the MJ’s finding where there is any competent evidence in the record to support it.

“The magistrate judge relied on a complaint that Ms. Loui submitted to the Public Prosecutor of Athens Misdemeanor Court, in which Loui alleged that the person who defrauded her in Greece presented herself as Christina Manta using a 1994 passport No. I.837326; that Manta left Greece to live in San Diego, and that Loui later learned that Manta’s real name was ‘Cristallo Kiriakidou.’ In her affidavit, Loui stated that she examined passport No. N464835, which was issued to ‘Christina Manta’ in 1999, and testified that she recognized the person in the picture as the person who deceived her.” [Slip op. 7‑8].

The Court concludes that the lower court had not erred in determining Manta was the person sought by the extradition request. “An identification based on a single photograph may be competent evidence of identity in an extradition proceeding. ... A magistrate judge may [also] consider the circumstances of an identification when assessing its reliability. The magistrate judge properly did so here when she credited Loui’s identification, in part, because Loui had multiple interactions with Kyriakidou.” [Slip op. 10]

The Court may uphold the MJ’s probable cause determination if there is any competent evidence in the record to support it. Competent evidence did exist, and as the usual rules of evidence do not apply in extradition hearings (unless the relevant treaty provides otherwise), the only requirement for evidence is authenticity. According to Manta, Article XI of the Extradition Treaty does require more than mere authentication. Article XI provides, in relevant part, that: “If [a] fugitive is merely charged with a crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and of the depositions upon which such warrant may have been issued, shall be produced, with such other evidence or proof as may be deemed competent in the case.”

The Court concludes that the plain language of the Extradition Treaty refutes Manta’s argument that witness statements used at her extradition hearing were not competent evidence because they are unsworn. Article XI, however, is clear that depositions “shall be produced, with such other evidence or proof as may be deemed competent in the case.”

Manta also argued that the MJ’s probable cause determination was not admissibly supported because the requesting state failed to produce depositions supporting the Greek arrest warrant. The Court rejects this argument as well, albeit on different grounds. “The plain language of the Treaty is clear that depositions are not required in every case. The Treaty requires the submission of depositions only when a warrant ‘may have been issued’ upon those depositions.” [Slip op. 11‑12]

Finally, the Court rejects Manta’s argument that the Fourth Amendment requires that every piece of evidence relied on in an extradition proceeding be sworn. Such a requirement would run contrary to the well‑established case law that evidence offered for extradition purposes need not be made under oath.

Citation: Manta v. Chertoff, 2008 WL 638404 (9th Cir. March 11, 2008).

TRADEMARKS

In trademark dispute involving foreign mark, Second Circuit upholds summary judgment for Defendant since New York law demands that foreign holder produce evidence that Defendant’s potential New York customers primarily associate foreign Plaintiff’s mark with Plaintiff

Plaintiffs here are ITC Limited and ITC Hotels Limited (collectively Plaintiffs); they sued Punchgini Inc., and Bukhara Grill II, Inc. (Defendants), in a New York federal court. They alleged infringements of various federal and New York trademark laws along with unfair competition relating to the restaurant trademark “Bukhara.” Plaintiffs had not used the mark and the related trade dress in the U.S. for more than three years.

The District Court gave summary judgment to the Defendants, and Plaintiffs appealed. The U.S. Court of Appeals for the Second Circuit affirms.

In previous litigation, the Court had affirmed the grant of summary judgment on Plaintiff’s trademark infringement claims under Section 32(1)(a) of the federal Lanham Act and New York common law; it held that Plaintiff had abandoned its “Bukhara” mark as applied to restaurant services in the U.S. The Court had also affirmed the denial of Plaintiffs’ federal unfair competition claim because it turned on the “famous marks” doctrine, which Congress had not yet incorporated into federal trademark law.

Because the famous marks doctrine might support a New York common law claim for unfair competition, however, the Court certified two state law questions to the New York Court of Appeals: (1) “Does New York common law permit the owner of a federal mark or trade dress to assert property rights therein by virtue of the owner’s prior use of the mark or dress in a foreign country?”; and (2) “If so, how famous must a foreign mark be to permit a foreign mark owner to bring a claim for unfair competition?”

The New York Court of Appeals answered the first question in the affirmative. The specific principle is that “when a business, through renown in New York, possesses goodwill constituting property or commercial advantage in this state, that goodwill is protected from misappropriation under New York unfair competition law. This is so whether the business is domestic or foreign.” [Slip op. 3]

The New York Court of Appeals answered the second question as follows. Protection from misappropriation of a famous foreign mark presupposes the existence of actual goodwill in New York. If the foreign party has no goodwill in New York, then there can be no unfair competition based on a misappropriation theory. At a minimum, consumers of the good or service at issue must primarily associate the mark with the foreign plaintiff.

The lower court identified the following factors as potentially relevant: (1) evidence that the defendant intentionally associated goods with those of the foreign Plaintiff in the minds of the public, such as public statements or advertising stating or implying a connection with the foreign Plaintiff; (2) direct evidence, such as consumer surveys, indicating that consumers of defendant’s goods or services believe them to be associated with the plaintiff; and (3) evidence of actual overlap between customers of the New York Defendant and the foreign Plaintiff.

The New York Court of Appeals observed that, to prevail against Defendants on an unfair competition theory under New York law, Plaintiff would have to show, that Defendants appropriated Plaintiff’s “Bukhara” mark or trade dress for their New York restaurants. If that is the case, Plaintiff would then have to prove that the relevant consumer market for New York’s Bukhara restaurant primarily associates the Bukhara mark or trade dress with those Bukhara restaurants owned and operated by foreign Plaintiff. In sum, to pursue an unfair competition claim, Plaintiff must present proof of both deliberate copying and “secondary meaning.”

The Second Circuit agrees with the lower court’s finding that enough evidence of deliberate copying exists here to satisfy that element of the claim. The Court then reviews the sufficiency of Plaintiff’s showing of “secondary meaning.”

Plaintiff failed to create a genuine issue of material fact as to whether the Bukhara mark, when used in New York, calls Plaintiff’s restaurants to the minds of Defendants’ potential customers. “[Plaintiff’s] evidence of goodwill [was] derived entirely from foreign media reports and sources and was unaccompanied by any evidence that would permit an inference that such reports or sources reach the relevant consumer market in New York. ... [Plaintiff] proffered no evidence that it had ‘directly targeted advertising of its Indian or other foreign ‘Bukhara’ restaurants to the U.S.’”

“It made no attempt to prove its goodwill in the relevant market through consumer study evidence linking the Bukhara mark to itself, and it presented no research reports demonstrating strong brand name recognition for the Bukhara mark anywhere in the U.S. Moreover, the record is devoid of any evidence of actual overlap between customers of Defendants’ restaurant and [Plaintiff’s] Bukhara, aside from [Plaintiff’s] own inadmissible speculation.”

“Absent admissible evidence, however, a reasonable factfinder could not conclude that potential customers of Defendants’ restaurant would primarily associate the Bukhara mark with Plaintiff, particularly in light of evidence that numerous Indian restaurants in Massachusetts, Washington, Virginia, and around the world have used the name ‘Bukhara,’ all without any affiliation or association with [Plaintiff].” [Slip op. 6]

“[Plaintiff’s] belated efforts to identify admissible evidence of secondary meaning are unavailing. First, [Plaintiff] points to record evidence that a significant number of Defendants’ customers are Indian or ‘well‑traveled [people who] know what authentic Indian food tastes like.’ Even if these facts support a reasonable inference that this consumer market is ‘more knowledgeable about India than the general New York population,’ [Plaintiff] provides no evidence—apart from its own conjecture—to support the conclusion that, as a consequence, these persons ‘primarily associate’ the name ‘Bukhara’ with [Plaintiff]. Conjecture, of course, is insufficient to withstand summary judgment.”

“Second, [Plaintiff] argues that the district court failed to consider evidence of ‘public statements or advertising stating or implying a connection with the foreign Plaintiff.’ [The appellate court] is not persuaded. The district court plainly considered this evidence and concluded that it supported [Plaintiff’s] claim of intentional copying.”

“Moreover, the district court recognized that ‘there may be some circumstances in which intentional copying is sufficient to show ‘secondary meaning.’ But it cogently explained why this was not such a case: ‘it would be tautological to conclude that copying alone demonstrates ‘secondary meaning’ sufficient to permit an unfair competition claim as to a foreign mark here, where that copying is only prohibited by the ‘well known’ or ‘famous’ mark exception if the mark has ‘secondary meaning.’”

“We adopt this reasoning as consistent with the New York Court of Appeals’ conclusion that more than copying is necessary for a famous foreign mark holder to pursue a state law claim for unfair competition. That foreign holder must further offer evidence that the Defendants’ potential customers ‘primarily associate[]’ the mark with the foreign holder.’ [Plaintiff] cannot satisfy this burden simply by pointing to evidence of obvious similarities between Defendants’ Bukhara Grill and [Plaintiff’s] own Bukhara restaurant, because such evidence is no proof that Defendants’ potential customers were even aware of the existence of [Plaintiff’s] Bukhara.” [Slip op. 6‑7].

Citation: ITC Hotels Ltd. v. Punchgini, Inc., 2008 WL 612326 (2d Cir. 2008).

TREATY‑MAKING POWER

In votes divided 6 to 3, U.S. Supreme Court rules that neither Vienna Convention, nor Optional Protocol thereto nor Presidential Memorandum clearly requires U.S. state to give effect to Avenas judgment of International Court of Justice as domestically enforceable federal law by requiring Texas to set aside its rules on number and timing of post‑conviction procedures to determine whether failure of Texas officials to notify Petitioner Mexican citizen’s consular officials of his arrest may have prejudicially tainted Petitioner’s Texas convictions for rape and murder

In 1969, the U.S. President, having obtained the consent of the Senate, ratified the Vienna Convention on Consular Relations (Convention), Apr. 24, 1963, [ 21 U.S. T. 77; T. I. A. S. No. 6820; 596 U. N. T. S. 261; in force for U.S. Dec. 24, 1969] and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (OP) Apr. 24, 1963, [1970] [21 U.S. T. 325; T. I. A. S. No. 6820].

Toward that end, the drafters included Article 36(1)(b) of the Convention to facilitat[e] the exercise of consular functions. It provides that if a person detained by a foreign country so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State of such detention, and inform the [detainee] of his righ[t] to request assistance from the consul of his own state, here that of Mexico.

The OP provides a venue for the resolution of disputes arising out of the interpretation or application of the Convention. Under the OP, such disputes shall lie within the compulsory jurisdiction of the International Court of Justice (ICJ) and may accordingly be brought before the [ICJ] ... by any party to the dispute being a Party to the present Protocol.

The ICJ is the principal judicial organ of the United Nations. U. N. Charter, (UNC) Art. 92, 59 Stat. 1051, T. S. No. 993 (1945); See also Statute of the International Court of Justice (ICJ Statute), 59 Stat. 1055, T. S. No. 993 (1945).

Under UNC Article 94(1) [e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party. The ICJ’s jurisdiction in any particular case, however, is dependent upon the consent of the parties.

In 1946, the U.S. had originally consented to the general jurisdiction of the ICJ when it filed a declaration recognizing compulsory jurisdiction under Art. 36(2). The U.S., however, withdrew from general ICJ jurisdiction in 1985. See 24 I. L. M. 1742 (1985). By ratifying the OP to the Convention, however, the U.S. consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. On March 7, 2005, after the ICJ’s adverse judgment in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Avena), the U.S. withdrew from the OP to the Convention.

In 1993, a Texas jury convicted Petitioner Jose Ernesto Medellin and members of his street gang of attacking two girls aged 14 and 16 in Houston, Texas. The gang raped them for one hour. To rid themselves of witnesses, they then murdered the girls. Petitioner, a citizen of Mexico residing in the U.S., was personally responsible for strangling at least one of the girls with her own shoelace.

Less than three hours after his arrest, Petitioner confessed. Local authorities, however, never notified Petitioner that he could ask for aid from Mexican consular authorities. During later attempts to have his Texas conviction reviewed, Petitioner violated various generally applicable Texas procedural rules limiting the number of appeals and applications for habeas relief in the Texas courts. In Avena, the ICJ later concluded that the Texas authorities had breached Article 36(1)(b) of the Vienna Convention by failing to notify 51 named Mexican nationals, including Petitioner, of their Convention rights to consular aid. The ICJ found that those named individuals were entitled to review and reconsideration of their U.S. state‑court convictions and sentences regardless of their failure to comply with state procedural rules dealing with post‑conviction challenges to their criminal convictions.

In Sanchez‑Llamas v. Oregon, 548 U.S. 331—handed down after Avena but involving parties not named in the Avena judgment—the Supreme Court held, contrary to the ICJ’s determination, that the Convention did not preclude the application of state procedural default rules. The President then issued a Memorandum declaring that: “I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.”

Relying on Avena and the Memorandum, Petitioner filed a second Texas state‑court habeas application which attacked his state conviction and death sentence on the ground that the state authorities had not told him about his Convention rights. The Texas Court of Criminal Appeals dismissed Petitioner’s application as an abuse of the writ, concluding that neither Avena nor the Memorandum constituted binding federal law that could displace the State’s limitations on filing successive habeas applications.

The U.S. Supreme Court granted certiorari and now affirms. In a 6 to 3 vote, the Court concludes that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre‑empts state limitations on the filing of successive habeas petitions.

In the first place, the Avena judgment is not directly enforceable as domestic law in state court. “While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be ‘self‑executing’ and is ratified on that basis. See, e.g., Foster v. Neilson, 2 Pet. 253, 314. The Avena judgment creates an international law obligation on the part of the U.S., but it is not automatically binding domestic law because none of the relevant treaty sources—the OP, the UNC or the ICJ Statute—creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted.”

“The most natural reading of the OP is that it is a bare grant of jurisdiction. The OP says nothing about the effect of an ICJ decision, does not commit signatories to comply therewith, and is silent as to any enforcement mechanism. The obligation to comply with ICJ judgments is derived from UNC Article 94 which provides that ‘[e]ach ... Member ... undertakes to comply with the [ICJ’s] decision ... in any case to which it is a party.’ The phrase ‘undertakes to comply’ is simply a commitment by member states to take future action through their political branches. That language does not indicate that the Senate, in ratifying (sic) the OP, intended to vest ICJ decisions with immediate legal effect in domestic courts.”

“This reading is confirmed by Article 94(2)—the enforcement provision—which provides the sole remedy for noncompliance: referral to the U. N. Security Council by an aggrieved state. The provision of an express diplomatic, rather than judicial, remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. [Cite]. Even this ‘quintessentially international remed[y],’ is not absolute. It requires a Security Council resolution, and the President and Senate were undoubtedly aware that the U.S. retained the unqualified right to exercise its veto of any such resolution.” [Slip op. 1]

“The ICJ Statute, by limiting disputes to those involving nations, not individuals, and by specifying that ICJ decisions have no binding force except between those nations, provides further evidence that the Avena judgment does not automatically constitute federal law enforceable in U.S. courts. Petitioner, an individual, cannot be considered a party to the Avena decision. Finally, the U.S.’s interpretation of a treaty is entitled to great weight, [cite], and the Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law.”

“The [Texas] Court’s conclusion that Avena does not by itself constitute binding federal law is confirmed by the ‘postratification understanding’ of signatory countries. See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 . There are currently 47 nations that are parties to the OP and 171 nations that are parties to the Convention. Yet neither Petitioner nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts. The lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts. [Cite].”

General principles of interpretation further support the Court’s conclusion. “Given that the forum state’s procedural rules govern a treaty’s implementation absent a clear and express statement to the contrary, ... one would expect the ratifying parties to the relevant treaties to have clearly stated any intent to give ICJ judgments such effect. There is no statement in the OP, the UNC, or the ICJ Statute that supports this notion. ...”

“This Court’s holding does not call into question the enforcement of ordinary foreign judgments. An agreement to abide by the result of an international adjudication can be a treaty obligation like any other, so long as the agreement is consistent with the Constitution. In addition, Congress is up to the task of implementing non‑self‑executing treaties, even those involving complex commercial disputes.”

“[Petitioner] contends that domestic courts generally give effect to foreign judgments, but the judgment [Petitioner] asks us to enforce is hardly typical: It would enjoin the operation of state law and force the State to take action to ‘review and reconside[r]’ his case. Foreign judgments awarding injunctive relief against private parties, let alone sovereign States, ‘are not generally entitled to enforcement.’ Restatement (Third) of Foreign Relations Law of the United States Section 481, Comment b, p. 595 (1986).” [Slip op. 2].

“Secondly, the President’s Memorandum does not independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules.”

“The President seeks to vindicate plainly compelling interests in ensuring the reciprocal observance of the Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. But those interests do not allow the Court to set aside first principles. The President’s authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.’ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585.”

“Justice Jackson’s familiar tripartite scheme [in Youngstown] provides the accepted framework for evaluating executive action in this area. First, ‘[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.’ Id. at 635 (Jackson, J., concurring).”

“Second, ‘[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.’ Id., at 637.In such a circumstance, Presidential authority can derive support from ‘congressional inertia, indifference or quiescence.’ Ibid. Finally, ‘[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,’ and the Court can sustain his actions ‘only by disabling the Congress from acting upon the subject.’ Id., at 637‑638.”

“The [Government] next marshals two main arguments in favor of the President’s authority to establish binding rules of decision that preempt contrary state law. “The U.S. argues that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority. The U.S. also relies upon an ‘independent’ international dispute‑resolution power. We find these arguments, as well as [Petitioner’s] additional argument that the President’s Memorandum is a valid exercise of his ‘Take Care’ power, unpersuasive.” [Slip op. 3]

“The U.S. maintains that the Memorandum is implicitly authorized by the [OP] and the [UNC]. But the responsibility for transforming an international obligation arising from a non‑self‑executing treaty into domestic law falls to Congress, not the Executive. [Cite]. It is a fundamental constitutional principle that [t]he power to make the necessary laws is in Congress; the power to execute, in the President. Hamdan v. Rumsfeld, 548 U.S. 557, 591. A non‑self‑executing treaty, by definition, is one that was ratified [by the President] with the understanding that it is not to have domestic effect of its own force.”

“That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. Accordingly, the Memorandum does not fall within the first category of the Youngstown framework. Indeed, because the non‑self‑executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with the authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so, the President’s assertion of authority is within Youngstown’s third category, not the first or even the second.”

“The U.S. maintains that congressional acquiescence requires that the President’s Memorandum be given effect as domestic law. But such acquiescence is pertinent when the President’s action falls within the second Youngstown category, not the third. In any event, congressional acquiescence does not exist here. Congress’ failure to act following the President’s resolution of prior ICJ controversies does not demonstrate acquiescence because in none of those prior controversies did the President assert the authority to transform an international obligation into domestic law and thereby displace state law.”

“The U.S.’s reliance on the President’s ‘related’ statutory responsibilities and on his ‘established role’ in litigating foreign policy concerns is also misplaced. The President’s statutory authorization to represent the U.S. before the UN, the ICJ, and the [UNC] speaks to his international responsibilities, not to any unilateral authority to create domestic law. ... [Thus] the President may not rely upon a non‑self‑executing treaty to establish binding rules of decision that pre‑empt contrary state law.” [Slip op. 4]

“The [Government] also claims that—independent of the U.S.’s treaty obligations—the Memorandum is a valid exercise of the President’s foreign affairs authority to resolve claims disputes. See, e.g., American Ins. Assn. v. Garamendi, 539 U.S. 396, 415. This Court’s claims‑settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that ‘a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,’ can ‘raise a presumption that the [action] had been [taken] in pursuance of its consent.’ Dames & Moore v. Regan, 453 U.S. 654, 668 .”

“But ‘[p]ast practice does not, by itself, create power’. The President’s Memorandum—a directive issued to state courts that would compel those courts to reopen final criminal judgments and set aside neutrally applicable state laws—is not supported by a ‘particularly longstanding practice.’ The Executive’s limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far.”

“[Finally, [Petitioner’s] argument that the President’s Memorandum is a valid exercise of his power to ‘Take Care’ that the laws be faithfully executed, U.S. Const., Art. II, Section 3, fails because the ICJ’s decision in Avena is not domestic law.”

One Justice concurred in the judgment. Though noting the considerable weight of the arguments pro and con, he ultimately decided that Congressional action was necessary to make the ICJ decision binding on state courts, and that the President had no unilateral authority to change the fact that such action was necessary. Nonetheless, the U.S., by ratifying the UNC, affirmatively promised the world community that it would take whatever action is needed to comply with ICJ judgments. Under the Supremacy Clause, this duty of compliance falls on all the states as well—especially here on Texas. That state: “having already put the Nation in breach of one treaty [the Vienna Convention], it is now up to Texas to prevent the breach of another [the U. N. Charter].” [ Slip op. 26]

Three Justices subscribe to the dissenting opinion excerpted below. “The Constitution’s Supremacy Clause provides, in relevant part, that ‘all Treaties ... which shall be made ... under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.’ Art. VI, cl. 2.” The question here is whether the ICJ’s Avena judgment is enforceable now as a matter of domestic law, i.e., whether it ‘operates of itself without the aid’ of any further legislation.”

“The U.S. has signed and ratified a series of treaties obliging it to comply with ICJ judgments in cases in which it has given its consent to the exercise of the ICJ’s adjudicatory authority. [In his Memorandum], President Bush has determined that domestic courts should enforce this particular ICJ judgment. [Cite] And Congress has done nothing to suggest the contrary. Under these circumstances, I believe the treaty obligations, and hence the judgment, resting as it does upon the consent of the U.S. to the ICJ’s jurisdiction, bind the courts no less than would ‘an act of the [federal] legislature.’ [Cite].”

“...[T]he reader must keep in mind three separate ratified U.S. treaties and one ICJ judgment against the U.S. The first treaty, the Vienna Convention, contains two relevant provisions. The first requires the U.S. and other signatory nations to inform arrested foreign nationals of their separate Convention‑given right to contact their nation’s consul. The second says that these rights (of an arrested person) ‘shall be exercised in conformity with the laws and regulations’ of the arresting nation, provided that the ‘laws and regulations ... enable full effect to be given to the purposes for which’ those rights ... are intended.’ See Vienna Convention, Arts. 36(1)(b), 36(2). Approximately 70 U.S. treaties now in force contain obligations comparable to those in the [OP] for submission of treaty‑based disputes to the ICJ’.”

“In my view, the President has correctly determined that Congress need not enact additional legislation. The majority places too much weight upon treaty language that says little about the matter. The words ‘undertak[e] to comply,’ for example, do not tell us whether an ICJ judgment rendered pursuant to the parties’ consent to compulsory ICJ jurisdiction does, or does not, automatically become part of our domestic law.”

“To answer that question, we must look instead to our own domestic law, in particular, to the many treaty‑related cases interpreting the Supremacy Clause. Those cases, including some written by Justices well aware of the Founders’ original intent, lead to the conclusion that the ICJ judgment before us is enforceable as a matter of domestic law without further legislation.” [Slip op. 27, 28].

“Supreme Court case law stretching back more than 200 years helps explain what, for present purposes, the Founders meant when they wrote that ‘all Treaties ... shall be the supreme Law of the Land.’” [Slip op. 29].

“Since [the nation’s earliest days], this Court has frequently held or assumed that particular treaty provisions are self‑executing, automatically binding the States without more. See Appendix A, infra (listing, as examples, 29 such cases, including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence).”

“Of particular relevance to the present case, the Court has held that the U.S. may be obligated by treaty to comply with the judgment of an international tribunal interpreting that treaty, despite the absence of any congressional enactment specifically requiring such compliance.” [Cites].

“All of these cases make clear that self‑executing treaty provisions are not uncommon or peculiar creatures of our domestic law; that they cover a wide range of subjects; that the Supremacy Clause itself answers the self‑execution question by applying many, but not all, treaty provisions directly to the States; and that the Clause answers the self‑execution question differently than does the law in many other nations. Our cases also provide criteria that help determine which provisions automatically so apply—a matter to which I now turn.”

“The case law provides no simple magic answer to the question whether a particular treaty provision is self‑executing. But the case law does make clear that, insofar as today’s majority looks for language about ‘self‑execution’ in the treaty itself and insofar as it erects ‘clear statement’ presumptions designed to help find an answer, it is misguided.”

“The many treaty provisions that this Court has found self‑executing contain no textual language on the point (see Appendix A, infra ). Few, if any, of these provisions are clear. [Cite]. Those that displace state law in respect to such quintessential state matters as, say, property, inheritance, or debt repayment, lack the ‘clea[r] state[ment]’ that the Court today apparently requires. ... This is also true of those cases that deal with state rules roughly comparable to the sort that the majority suggests require special accommodation. See, e.g., Hopkirk v. Bell, 3 Cranch 454, 457‑458 (1806) (treaty pre‑empts Virginia state statute of limitations). ... These many Supreme Court cases finding treaty provisions to be self‑executing cannot be reconciled with the majority’s demand for textual clarity.”

“Indeed, the majority does not point to a single ratified U.S. treaty that contains the kind of ‘clea[r]’ or ‘plai[n]’ textual indication for which the majority searches. [The concurring Justice’s] reliance upon one ratified and one un‑ratified treaty to make the point that a treaty could speak clearly on the matter of self‑execution, does suggest that there are a few such treaties. But that simply highlights how few of them actually do speak clearly on the matter.”

“And that is not because the U.S. never, or hardly ever, has entered into a treaty with self‑executing provisions. The case law belies any such conclusion. Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation’s domestic law regards the provision’s legal status. And that domestic status‑determining law differs markedly from one nation to another.”

“As Justice Iredell pointed out 200 years ago, Britain, for example, taking the view that the British Crown makes treaties but Parliament makes domestic law, virtually always requires parliamentary legislation. [Cites]. On the other hand, the U.S., with its Supremacy Clause, does not take Britain’s view. [Cite]. And the law of other nations, the Netherlands for example, directly incorporates many treaties concluded by the executive into its domestic law, even without explicit parliamentary approval of the treaty.[Cite].”

“Above all, what does the absence of specific language about ‘self‑execution’ prove? It may reflect the drafters’ awareness of national differences. It may reflect the practical fact that drafters, favoring speedy, effective implementation, conclude they should best leave national legal practices alone. It may reflect the fact that achieving international agreement on this point is simply a game not worth the candle. In a word, for present purposes, the absence or presence of language in a treaty about a provision’s self‑execution proves nothing at all. At best, the Court is hunting the snark. At worst, it erects legalistic hurdles that can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.” [Slip op. 31, 32, 33].

“The case law also suggests practical, context‑specific criteria that this Court has previously used to help determine whether, for Supremacy Clause purposes, a treaty provision is self‑executing. The provision’s text matters very much. But that is not because it contains language that explicitly refers to self‑execution. ... [O]ne should not expect that kind of textual statement. Drafting history is also relevant. But, again, that is not because it will explicitly address the relevant question. Instead text and history, along with subject matter and related characteristics will help our courts determine whether, as Chief Justice Marshall put it, the treaty provision ‘addresses itself to the political ... department[s]’ for further action or to ‘the judicial department’ for direct enforcement. [Cites].”

“In making this determination, this Court has found the provision’s subject matter of particular importance. Does the treaty provision declare peace? Does it promise not to engage in hostilities? If so, it addresses itself to the political branches. [Cite] Alternatively, does it concern the adjudication of traditional private legal rights such as rights to own property, to conduct a business, or to obtain civil tort recovery? If so, it may well address itself to the Judiciary. Enforcing such rights and setting their boundaries is the bread‑and‑butter work of the courts. See, e.g., Clark v. Allen, 331 U.S. 503 (1947) (treating provision with such subject matter as self‑executing); Asakura v. Seattle, 265 U.S. 332 (1924) (same).”

“One might also ask whether the treaty provision confers specific, detailed individual legal rights. Does it set forth definite standards that judges can readily enforce? Other things being equal, where rights are specific and readily enforceable, the treaty provision more likely ‘addresses’ the judiciary.” [Slip op. 34]

“Such questions, drawn from case law stretching back 200 years, do not create a simple test, let alone a magic formula. But they do help to constitute a practical, context‑specific judicial approach, seeking to separate run‑of‑the‑mill judicial matters from other matters, sometimes more politically charged, sometimes more clearly the responsibility of other branches, sometimes lacking those attributes that would permit courts to act on their own without more ado. And such an approach is all that we need to find an answer to the legal question now before us.”

“Applying the approach just described, I would find the relevant treaty provisions self‑executing as applied to the ICJ judgment before us (giving that judgment domestic legal effect) for the following reasons, taken together.”

“Indeed, ... the U.S. has ratified approximately 70 treaties with ICJ dispute resolution provisions roughly similar to those contained in the [OP]; many of those treaties contemplate ICJ adjudication of the sort of substantive matters (property, commercial dealings, and the like) that the Court has found self‑executing, or otherwise appear addressed to the judicial branch. None of the ICJ provisions in these treaties contains stronger language about self‑execution than the language at issue here.”

“I recognize, ... that the U.N. Charter uses the words ‘undertakes to comply,’ rather than, say, ‘shall comply’ or ‘must comply.’ But what is inadequate about the word ‘undertak[e]’? A leading contemporary dictionary defined it in terms of ‘lay[ing] oneself under obligation ... to perform or to execute. Webster’s New International Dictionary 2770 (2d ed. 1939). And that definition is just what the equally authoritative Spanish version of the provision (familiar to Mexico) says directly: The words ‘compromete a cumplir’ indicate a present obligation to execute, without any tentativeness of the sort the majority finds in the English word ‘undertakes.’”

“And even if I agreed with [the concurring Justice] that the language is perfectly ambiguous (which I do not), I could not agree that ‘the best reading ... is ... one that contemplates future action by the political branches.’ The consequence of such a reading is to place the fate of an international promise made by the U.S. in the hands of a single State. And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause. [Cites].”

“The upshot is that treaty language says that an ICJ decision is legally binding, but it leaves the implementation of that binding legal obligation to the domestic law of each signatory nation. In this Nation, the Supremacy Clause, as long and consistently interpreted, indicates that ICJ decisions rendered pursuant to provisions for binding adjudication must be domestically legally binding and enforceable in domestic courts at least sometimes. And for purposes of this argument, that conclusion is all that I need. The remainder of the discussion will explain why, if ICJ judgments sometimes bind domestic courts, then they have that effect here.”

“First, the language of the relevant treaties strongly supports direct judicial enforceability, at least of judgments of the kind at issue here. The [OP] bears the title ‘Compulsory Settlement of Disputes,’ thereby emphasizing the mandatory and binding nature of the procedures it sets forth. ... And the [OP] contrasts proceedings of the compulsory kind with an alternative ‘conciliation procedure,’ the recommendations of which a party may decide ‘not’ to ‘accep[t].’ Art. III, id., at 327.Thus, the [OP’s] basic objective is not just to provide a forum for settlement but to provide a forum for compulsory settlement. ...” [Slip op. 35,36].

“Second, the OP here applies to a dispute about the meaning of a Vienna Convention provision that is itself self‑executing and judicially enforceable. The Convention provision is about an individual’s ‘rights,’ namely, his right upon being arrested to be informed of his separate right to contact his nation’s consul. The provision language is precise. The dispute arises at the intersection of an individual right with ordinary rules of criminal procedure; it consequently concerns the kind of matter with which judges are familiar. The provisions contain judicially enforceable standards. [Cite]. And the judgment itself requires a further hearing of a sort that is typically judicial.”

“Third, logic suggests that a treaty provision providing for ‘final’ and ‘binding’ judgments that ‘settl[e]’ treaty‑based disputes is self‑executing insofar as the judgment in question concerns the meaning of an underlying treaty provision that is itself self‑executing.”

“Why treat differently the parties’ agreement to binding ICJ determination about, e.g., the proper interpretation of the Vienna Convention clauses containing the rights here at issue? Why not simply read the relevant Vienna Convention provisions as if (between the parties and in respect to the 51 individuals at issue) they contain words that encapsulate the ICJ’s decision? See Art. 59 (ICJ decision has ‘binding force ... between the parties and in respect of [the] particular case’). Why would the ICJ judgment not bind in precisely the same way those words would bind if they appeared in the relevant Vienna Convention provisions—just as the ICJ says, for purposes of this case, that they do?”

“To put the same point differently: What sense would it make (1) to make a self‑executing promise and (2) to promise to accept as final an ICJ judgment interpreting that self‑executing promise, yet (3) to insist that the judgment itself is not self‑executing (i.e., that Congress must enact specific legislation to enforce it)? I am not aware of any satisfactory answer to these questions.”

“It is no answer to point to the fact that in Sanchez‑Llamas v. Oregon, 548 U.S. 331 (2006), this Court interpreted the relevant Convention provisions differently from the ICJ in Avena. This Court’s Sanchez‑Llamas interpretation binds our courts with respect to individuals whose rights were not espoused by a state party in Avena. Moreover, as the Court itself ... and the President recognizes, ... the question here is the very different question of applying the ICJ’s Avena judgment to the very parties whose interests Mexico and the U.S. espoused in the ICJ Avena proceeding. It is in respect to these individuals that the U.S. has promised the ICJ decision will have binding force.”

“We are instead confronted with the discrete question of Texas’ obligation to comply with a binding judgment issued by a tribunal with undisputed jurisdiction to adjudicate the rights of the individuals named therein. ‘It is inherent in international adjudication that an international tribunal may reject one country’s legal position in favor of another’s—and the U.S. explicitly accepted this possibility when it ratified the [OP]. [Cite].” [Slip op. 38, 39]

“Fourth, the majority’s very different approach has seriously negative practical implications. The U.S. has entered into at least 70 treaties that contain provisions for ICJ dispute settlement similar to the [OP] before us. Many of these treaties contain provisions similar to those this Court has previously found self‑executing—provisions that involve, for example, property rights, contract and commercial rights, trademarks, civil liability for personal injury, rights of foreign diplomats, taxation, domestic‑court jurisdiction, and so forth.”

“I thus doubt that the majority is right when it says, ‘We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments.’ In respect to the 70 treaties that currently refer disputes to the ICJ’s binding adjudicatory authority, some multilateral, some bilateral, that is just what the majority has done.”

“And as this Court’s prior case law has avoided laying down bright‑line rules but instead has adopted a more complex approach, it seems unlikely that Congress will find it easy to develop legislative bright lines that pick out those provisions (addressed to the Judicial Branch) where self‑execution seems warranted. But, of course, it is not necessary for Congress to do so—at least not if one believes that this Court’s Supremacy Clause cases already embody criteria likely to work reasonably well. It is those criteria that I would apply here.”

“Fifth, other factors, related to the particular judgment here at issue, make that judgment well suited to direct judicial enforcement. The specific issue before the ICJ concerned review and reconsideration of the ‘possible prejudice’ caused in each of the 51 affected cases by an arresting State’s failure to provide the defendant with rights guaranteed by the Vienna Convention. [Cite].”

“Sixth, to find the U.S.’s treaty obligations self‑executing as applied to the ICJ judgment (and consequently to find that judgment enforceable) does not threaten constitutional conflict with other branches; it does not require us to engage in nonjudicial activity; and it does not require us to create a new cause of action. The only question before us concerns the application of the ICJ judgment as binding law applicable to the parties in a particular criminal proceeding that Texas law creates independently of the treaty.”

“Seventh, neither the President nor Congress has expressed concern about direct judicial enforcement of the ICJ decision. To the contrary, the President favors enforcement of this judgment. Thus, insofar as foreign policy impact, the interrelation of treaty provisions, or any other matter within the President’s special treaty, military, and foreign affairs responsibilities might prove relevant, such factors favor, rather than militate against, enforcement of the judgment before us.”

“For these seven reasons, I would find that the U.S.’ treaty obligation to comply with the ICJ judgment in Avena is enforceable in court in this case without further congressional action beyond Senate (sic) ratification of the relevant treaties. The majority reaches a different conclusion because it looks for the wrong thing (explicit textual expression about self‑execution) using the wrong standard (clarity) in the wrong place (the treaty language).”

“Hunting for what the text cannot contain, it takes a wrong turn. It threatens to deprive individuals, including businesses, property owners, testamentary beneficiaries, consular officials, and others, of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide. In a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction.”

“Were the Court for a moment to shift the direction of its legal gaze, looking instead to the Supremacy Clause and to the extensive case law interpreting that Clause as applied to treaties, I believe it would reach a better supported, more felicitous conclusion. That approach, well embedded in Court case law, leads to the conclusion that the ICJ judgment before us is judicially enforceable without further legislative action.”

“Thus, I would send this case back to the Texas courts, which must then apply the Avena judgment as binding law. See U.S. Const., Art. VI, cl. 2; see also, e.g., Dominguez v. State, 90 Tex. Crim. 92, 99, 234 S.W. 79, 83 (1921) (recognizing that treaties are ‘part of the supreme law of the land’ and that ‘it is the duty of the courts of the state to take cognizance of, construe and give effect’ to them).”

“It is difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law. Previously, this Court has said little about this question. It has held that the President has a fair amount of authority to make and to implement executive agreements, at least in respect to international claims settlement, and that this authority can require contrary state law to be set aside. See, e.g., United States v. Belmont, 301 U.S. 324, 326‑327 (1937). It has made clear that principles of foreign sovereign immunity trump state law and that the Executive, operating without explicit legislative authority, can assert those principles in state court. [Cite]. See Ex parte Peru, 318 U.S. 578, 588 (1943).”

“It has also made clear that the Executive has inherent power to bring a lawsuit ‘to carry out treaty obligations.’ Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 425, 426 (1925). But it has reserved judgment as to ‘the scope of the President’s power to preempt state law pursuant to authority delegated by ... a ratified treaty’– a fact that helps to explain the majority’s inability to find support in precedent for its own conclusions.” [Slip op. 41, 42, 43]

“Given the Court’s comparative lack of expertise in foreign affairs; given the importance of the Nation’s foreign relations; given the difficulty of finding the proper constitutional balance among state and federal, executive and legislative, powers in such matters; and given the likely future importance of this Court’s efforts to do so, I would very much hesitate before concluding that the Constitution implicitly sets forth broad prohibitions (or permissions) in this area.”

“I would thus be content to leave the matter in the constitutional shade from which it has emerged. Given my view of this case, I need not answer the question. And I shall not try to do so. That silence, however, cannot be taken as agreement with the majority’s Part III conclusion.”

Finally, “[t]he majority’s two holdings taken together produce practical anomalies. They unnecessarily complicate the President’s foreign affairs task insofar as, for example, they increase the likelihood of Security Council Avena enforcement proceedings, of worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation’s reputation abroad as a result of our failure to follow the ‘rule of law’ principles that we preach. The holdings also encumber Congress with a task (postratification legislation) that, in respect to many decisions of international tribunals, it may not want and which it may find difficult to execute.”

“At the same time, insofar as today’s holdings make it more difficult to enforce the judgments of international tribunals, including technical non‑politically‑controversial judgments, those holdings weaken that rule of law for which our Constitution stands. [Cites].”

“These institutional considerations make it difficult to reconcile the majority’s holdings with the workable Constitution that the Founders envisaged. They reinforce the importance, in practice and in principle, of asking Chief Justice Marshal’s question: Does a treaty provision address the ‘Judicial’ Branch rather than the ‘Political Branches’ of Government. [Cite]. And they show the wisdom of the well‑established precedent that indicates that the answer to the question here is ‘yes.’” ... For the reasons set forth, I respectfully dissent.” [Slip op. 44, 45].

Citation: Medellin v. Texas, 2008 WL 762533 (Sup. Ct. March 25, 2008).

EU Commission allows Google’s purchase of DoubleClick. Having already been approved by United States antitrust authorities, Google has achieved complete approval from the European Commission to acquire rival Web advertiser “DoubleClick” for $3.1 billion. The Commission declared that “[Our] in‑depth market investigation found that Google and DoubleClick were not exerting major competitive constraints on each other’s activities and could, therefore, not be considered as competitors at the moment.” Competitors such as Microsoft Corp. and Yahoo had opposed the approval. The Commission opined, however, that the acquisition would not generate enough power to marginalize Google’s competitors in “ad serving.” This process uses software to help advertisers target potential customers. At the same time, it believed, the purchase would aid advertisers in marketing blank space on their Websites. Promoters of individual privacy objected that the deal would enable the two companies to unduly magnify privacy invasions by combining their different methods of exploiting information about the habits of Web surfers.

Citation: Reuters News Service (Online), Brussels, Belgium, published Tuesday, March 11, 2008 at 10:01 a.m. ET (Reported by David Lawsky, edited by William Schomberg and Quentin Bryar).

U.S. agrees to visa waiver programs with Latvia and Estonia and is negotiating with other former Eastern Bloc nations. On March 12, 2008, the United States signed agreements with EU members Latvia and Estonia that will enable the these two Baltic nations to join the U.S. visa waiver program this year. In both countries, there are now Memoranda of Understanding that will enable the two nations’ law enforcement authorities to share passenger data and air travel information; these are legal prerequisites for a visa waiver program. Estonian tourists should be able to travel visa‑free to the U.S. later this year. These arrangements, however, seemingly annoy Brussels, since the European Commission is at the same time trying to settle on a visa‑waiver agreement for the entire 27‑nation European Union. U.S. officials are emphasizing that they have intended no disrespect toward Brussels. The present U.S. program permits citizens from most western European countries to enter the U.S. without visas. It does not yet apply, however, to Greece, the Czech Republic, and the EU’s other eastern European nations. Since achieving independence in 1991, the above Baltic nations have lobbied to become able to travel to the U.S. without needing a tourist visa. Citation: FindLaw (via AP), Tallinn, Estonia, Wednesday, March 12, 2008, at 11:00:27 GMT (by Jari Tanner, AP writer).

European Union imposes record fine on Microsoft Corporation. On February 27, the European Union imposed a fine upon Microsoft Corp. of record size, $1.3 billion. The fine is the largest ever for a single company and the first time the EU has penalized a company for failing to obey an antitrust order. According to the EU, until last October, Microsoft had been overcharging rivals for software information that they needed to make their products compatible with the Windows operating system. Microsoft quickly announced that this was for past activities and that now it was competing under new principles that would make its products more transparent. The EU complained in March 2007 that its rates were unfair. Under threat of fines, Microsoft two months later reduced the patent rate from 3.87 percent to 0.7 percent and the information license from 2.9 percent to 0.5 percent —but only in Europe, leaving the worldwide rates unchanged. The EU’s Court of First Instance ruling supporting the EU Commission’s views led the U.S. company in October to offer a new license for interoperability information for a flat fee of $14,000 and an optional worldwide patent license for a reduced royalty of 0.4 percent . Citation: Associated Press (Online), Brussels, Belgium, Wednesday, February 27, 2008 at 10:51:25 GMT (byline of Aoife White, AP Business Writer).

Mexico abruptly limits importation of used cars to ten‑year‑old vehicles. Effective as of March 3, 2008, the Mexican government is allowing only 10‑year‑old used cars to be legally imported into Mexico. Until now, Mexican citizens have been eagerly buying used cars 10 to 15 years old at auctions held at South Texas used car dealers. The buyers were looking not only for affordable transportation but also for the distinctiveness of owning unfamiliar models. The government’s surprise move on short notice seemingly resulted from pressure by Mexico’s new car dealers. They have been complaining that U.S. jalopies have long been unduly undermining their sales of new cars, many of which were built in Mexico. During this year, 1998 autos have acquired premium status. For example, one dealer said his buyers at auto auctions report that, when a 1998 model arrives at a garage, 20 buyers get in line where there used to be a mere handful. Citation: Associated Press (online), Hidalgo, Texas; released Monday, March 3, 2008 at 03:01:50 GMT (byline of Christopher Sherman, AP writer).