1 Brief for the United States as Amicus Curiae at 51, Breard v. Greene, 118 S.Ct. 1352 (1998) (Nos. 97–1390, 97–8214) (the material in brackets appears in the original).

2 Commonwealth of Virginia, Office of the Governor, Press Office, Statement by Governor Jim Gilmore Concerning the Execution of Angel Breard at 2 (Apr. 14, 1998).

3 “Should the [ICJ] resolve this matter in Paraguay's favor, it would be difficult, having delayed the execution so that the [ICJ] could consider the case, to then cany[ ]out the jury's sentence despite the rulings [of] the [ICJ].” Id.

4 But cf. Louis Henkin, Provisional Measures, U.S. Treaty Obligations, and the States, supra p. 679, 683 (criticizing Gilmore's decision); Frederic L. Kirgis, Zschernig v. Miller and the Breard Matter, infra pp. 704, 707–08 (same).

5 See generally Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, 1101–05 (1992).

6 The Federalist No. 15, at 107 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

7 Id. at 106.

8 U.S. Const. Art. VI, c1. 2. See generally Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 AJIL 695 (1995).

9 U.S. Const. Art. III, §2, c1. 1.

10 Id., Art. II, §3.

11 Id., Art. I, §8, c1. 15.

12 Id., c1. 18.

13 Brief of the United States as Amicus Curiae at 15–23, Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998) (No. 96–2770).

14 A group of law professors submitted a brief disputing the administration's political question arguments. See Brief Amicus Curiae of a Group of Law Professors, Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998) (No. 96–2770).

15 If an executive order seemed too dramatic a step, he could perhaps have accomplished his goals through less visible measures, such as a letter to Governor Gilmore demanding that he postpone the execution, buttressed by the threat of a legal action (of the sort Professor Henkin alludes to, supra p. 681) in the event of a refusal. Such an approach would perhaps have been more palatable politically, but a letter would have differed from an executive order in form only, and I do not think anything in the constitutional analysis would turn on this difference. If the Breard matter did indeed present a political question, then the ICJ Order by itself would not have been directly enforceable in court. A lawsuit by the executive branch would therefore have to have been preceded by a presidential demand that the execution be postponed; the lawsuit would have sought a court order requiring the Governor to comply with the demand of the President, to whom the matter had (by hypothesis) been constitutionally entrusted.

16 See, e.g., Baker v. Carr, 369 U.S. 186, 211 (1962) (political question doctrine asks “whether a matter has in any measure been committed by the Constitution to another branch of government”). This understanding of the doctrine has become the standard one. See Nixon v. United States, 506 U.S. 224 (1993); Powell v. McCormack, 395 U.S. 486, 521 (1969).

17 Thus, if President Clinton had issued an executive order postponing the execution and Governor Gilmore had challenged it, a judge who believed that the ICJ Order raised political questions would dismiss not for lack of jurisdiction, but on the merits. See, e.g., Luther v. Borden, 48 U.S. (7 How.) 1 (1849), in which the plaintiffs' trespass claim turned on whether the defendants were the agents of the lawful government of Rhode Island, which in turn depended on whether that government was “republican” in form under the Guaranty Clause. The Court ruled against the plaintiffs on political question grounds, but by this it meant that “it rests with congress to decide what government is the established one in a State,” and Congress had recognized the government of which the defendants were agents as the true government of Rhode Island. Id. at 42. If Congress had recognized another government as the true government of Rhode Island, the Court would have been bound by that judgment and would presumably have ruled for the plaintiffs.

18 The administration argued that the relevant treaties do not give the ICJ the authority to issue binding orders of provisional measures. Although it acknowledged that the commentators were divided on this question, it concluded that the writings of the commentators supporting its position were “better reasoned.” Brief for the United States as Amicus Curiae, supra note 1, at 49. In its brief to the Supreme Court, the administration also suggested, although it did not press the point, that the ICJ regarded its Order as merely “precatory” because it had merely said that the United States “should” take certain actions. Id. at 51. This argument seems strained. Webster's defines “should” as “an auxiliary used to express obligation, duty, propriety, necessity.” “Should,” def. 2(a), Webster's New Universal Unabridged Dictionary (2d ed. 1983). Moreover, the inference the administration seeks to draw from the word “should” is in tension, to say the least, with the ICJ's denomination of what it wrote as an “order.” See also Henkin, supra note 4, p. 680 (ICJ Order was binding).

19 The administration disputed the ICJ's jurisdiction over the case on the ground that, because the United States had conceded that the Vienna Convention had been violated, there was not in fact a dispute about the meaning of the Vienna Convention. See ICJ, Verbatim Record of Oral Argument in Case Concerning the Application of the Vienna Convention on Consular Relations (Para. v. U.S.), Doc. 98/7, at 42–43 ‹www.icj-cij.org›. Paraguay countered that there was a dispute about whether the Convention required that Breard's death sentence be vacated. Id., Doc. 98/8, at 6–10. In any event, Article 36(6) of the Statute of the ICJ provides that, “in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.” The binding quality of the Order accordingly does not turn on one party's views about whether the Court possessed jurisdiction.

20 See Vazquez, supra note 8, at 713.

21 UN Charter Arts. 27, 94; ICJ Statute, June 26, 1945, Art. 58, 59 Stat. 1055, TS No. 993. The Clinton administration conceded in its brief to the Supreme Court that final decisions of the ICJ are binding under Article 94(1) of the UN Charter. Brief for the United States as Amicus Curiae, supra note 1, at 50. Yet, even though the ICJ decided in the Nicaragua case that “the United States had violated customary international law and [a treaty] by a number of acts,” Barry E. Carter & Phillip R. Trimble, International Law 329 (2d ed. 1995), and indicated that the United States was “under a duty immediately to cease and to refrain from all such acts,” Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 146–49, para. 292 (June 27), the United States “veto[ed] a Security Council resolution calling upon it to comply,” Richard B. Bilder, The United States and the World Court in the Post-“Cold War” Era, 40 Cath. U. L. Rev. 251, 255 (1991) (citing United Nations Security Council: Excerpts from Verbatim Records Discussing I.C.J. Judgment in Nicaragua v. United States, 25 ILM 1337, 1352, 1363 (1986)), “ignor[ed] … [the ICJ's] final Order,” Detlev F. Vagts, Taking Treaties Less Seriously, 92 AJIL 458, 461 (1998), and “took no steps to change its activities in Central America,” Carter & Trimble, supra, at 329.

22 See generally Vázquez, supra note 8, at 712–13 (citing cases). I am using the terms “binding” and “mandatory” interchangeably, as apparently the Solicitor General was. See Brief for the United States as Amicus Curiae, supra note 1, at 51 (order is not binding if the parties not “required to heed” it).

23 See Vázquez, supra note 8, at 695–96 (citing authorities). See also Lori Fisler Damrosch, The Justiciability of Paraguay's Claim of Treaty Violation, infra p. 697, 698.

24 252 U.S. 416 (1920).

25 Id. at 434.

26 Id. at 431.

27 See Printz v. United States, 117 S.Ct. 2365 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995).

28 Professors Bradley and Goldsmith write in this Agora that “[t]here may be some instances … in which the federal political branches will lack the authority to override state law, even pursuant to a treaty.” Curtis A. Bradley &Jack L. Goldsmith, The Abiding Relevance of Federalism to U.S. Foreign Relations, supra p. 675, 677 n.18. But see Henkin, supra note 4, pp. 682–83. Be that as it may, no one maintains that regulation of the treatment of aliens is beyond the treaty-making power, even if that regulation “interferes with” the freedom of states to enforce their criminal laws. It is common for treaties to “interfere with” the freedom of the states parties to enforce their criminal laws against nationals of the other states parties. Cf. Italy Dismisses Ski Case, N.Y. Times, July 14, 1998, at A4 (reporting that an Italian court had dismissed criminal cases against Americans, ruling that “Italian courts lacked jurisdiction under a NATO treaty”).

29 See Brief of the United States as Amicus Curiae, supra note 13, at 30–32. In other cases, the administration has advanced the somewhat more limited argument that the 11th Amendment does not restrict Congress's exercise of the War Power. See Brief of the United States as Intervenor at *5–15, Velasquez v. Frapwell, No. IP 96-0557-C H/G, 1998 U.S. Dist. LEXIS 1344 (S.D. Ind. Feb. 6, 1998); Brief of the United States as Intervenor-Appellant at 6–17, Velasquez v. Frapwell, Nos. 98–1547, 98–2034 (7th Cir. Feb. 26, 1998); Brief of the United States as Intervenor at 6–17, Palmatier v. Michigan Dept. of State Police, No. 97–1982 (6th Cir. Dec. 15, 1997); Reply Brief for the United States as Intervenor at 2–5, Palmatier v. Michigan Dept. of State Police, No. 97–1982 (6th Cir. Feb. 18, 1998). One court adopted that position shortly after the Court decided in Seminole Tribe that Congress does not have the authority to abrogate 11th Amendment immunity under the Commerce Power, see Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 616 (1st Cir. 1996), but the district courts in Velasquez and Palmatier rejected the argument.

30 The court in Republic of Paraguay v. Allen affirmed the district court's dismissal on 11th Amendment grounds, 134 F.3d 622, 629 (4th Cir.), cert, denied, 118 S.Ct. 1352 (1998), and the Supreme Court expressed agreement with this disposition of the case. The Supreme Court's 11th Amendment decisions draw a distinction between suits against state officials seeking retrospective relief such as damages, which are barred by the 11th Amendment, and suits against state officials seeking prospective relief from a continuing or threatened violation of federal law, which are permitted under the Ex parte Young exception. Paraguay claimed that its suit fell within the Ex parte Young exception because it was seeking to prevent a future violation of federal law (i.e., the enforcement of an illegal death sentence), but the lower courts found that Paraguay was seeking retrospective relief because it was complaining of a past violation of the Vienna Convention (i.e., the failure to inform Breard of his right to consult with his consul). The Ninth Circuit reached the same decision in a similar case. United Mexican States v. Woods, 126 F.3d 1220 (9th Cir. 1997), cert, denied, 118 S.Ct. 1517 (1998). In another article, I take issue with these 11th Amendment holdings, which if followed would call into question all habeas corpus jurisprudence. See Carlos Manuel Vázquez, Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 Geo. LJ. 1 (1998). In his brief to the Supreme Court, the Solicitor General pointedly declined to endorse the lower courts' 11th Amendment holdings. See Brief for the United States as Amicus Curiae, supra note 1, at 15–16.

31 See, e.g., the oft-cited (by Presidents) opinion of Justice Nelson on circuit in Durand v. Hollins, 8 F. Cas. 111, 112 (C.C.S.D.N.Y. 1860) (No. 4186).

32 It might perhaps be argued that the President's authority to protect U.S. citizens abroad through military action stands on a firmer constitutional footing than his authority to protect U.S. citizens abroad by taking the steps the ICJ ordered, because in the former context his authority rests on an explicit constitutional provision—the Commander-in-Chief Clause. But, at best, this clause merely counterbalances the explicit constitutional limitation found in the War Powers Clause. In any event, only rather recently have Presidents begun to rely on the Commander-in-Chief Clause as the source of their authority to protect U.S. citizens abroad. For most of our history, the President's authority in this regard was thought to derive from the “Take Care” Clause. See Durand, 8 F. Cas. at 112; In re Neagle, 135 U.S. 1, 63–66 (1890).

33 See, e.g., Clinton to Discuss Haiti on TV, News & Observer (Raleigh, N.C.), Sept. 14, 1994, at Al; Why Invade Haiti? U.S. Builds Case, Clinton Wary of Public Opposition, State J.-Reg. (Springfield, Ill.), July 15, 1994, at 1.

34 1 doubt that die state officials charged with executing Breard would have disregarded an executive order postponing the execution. They may have complied without challenging it. Had they (or the Governor) challenged the order in court, the delay in resolving the dispute would effectively have resulted in die postponement of the execution.

35 For example, treaties can give the President the authority to enter into executive agreements he would not otherwise have die authority to conclude without Senate consent, even if the treaty does not require the President to conclude any particular agreement, or any agreement at all, or even to negotiate one. See Restatement (Third) of the Foreign Relations Law of the United States §303 cmt. f (1987) (“An executive agreement may be made by the President pursuant to a treaty when the executive agreement can fairly be seen as implementing the treaty, especially if the treaty contemplated implementation by international agreement”).

36 Article 93 of the UN Charter provides that “[a]ll members of die United Nations are ipso facto parties to the Statute of the [ICJ],” and Article 41(1) of the ICJ Statute, supra note 21, gives the ICJ the power to indicate provisional measures.

37 A treaty that gives the ICJ the power to urge (rather than require) the parties to take action by way of provisional measures presupposes that some official or group of officials of the states parties has the authority to decide whether to take the action. Identifying the relevant officials in the United States is a matter of domestic law. We have seen that Congress and the President (through legislation) have the power to compel the states to take action urged by the ICJ. But, because of the nature of provisional measures, the decision whether to take the relevant actions will often have to be made quickly. Since legislating takes time, it is reasonable to interpret the pertinent treaty to delegate the decision to the President.

38 453 U.S. 654 (1981).

59 In particular, there had been a long history of congressional acquiescence in executive claims settlement. 453 U.S. at 681. Some have suggested that presidential action to postpone Breard's execution would have contravened the Antiterrorism and Effective Death Penalty Act. But the antiterrorism law limits the power of federal courts to entertain habeas corpus petitions by persons in custody in violation of federal law who have failed to raise their federal claim in state courts in accordance with state procedures. This law does not purport to limit the federal courts' jurisdiction over Paraguay's claim based on the Vienna Convention, and the Supreme Court did not rely on it in denying Paraguay's petitions. It is even less plausible to claim that the statute limits the federal courts' jurisdiction in claims by foreign states seeking to enforce ICJ judgments involving death sentences. Finally, even if the law did reflect a congressional decision to deny the courts jurisdiction over such claims, it would not reflect a decision to deny the executive branch the power to take action contemplated by an ICJ order. Indeed, such a (hypothetical) congressional judgment could as easily reflect the view that this power properly resides in the President rather than the courts.

40 Even the most vocal current defenders of state prerogatives in the foreign affairs area (Professors Bradley and Goldsmith) agree that “the political branches” of the federal Government (which at a minimum means Congress and the President, through legislation) had the power to require compliance by Virginia with the ICJ Order (whether or not it was “binding”). Bradley & Goldsmith, supra note 28, p. 679. Their contribution suggests that they also agree that the President had the power to do so alone, either on his own constitutional authority or through delegation. Id. n.30 (noting possible political concerns that might have led the Executive not “to compel Virginia's compliance with the ICJ Order”). But cf. id. p. 679 (noting that “difficult questions about the distribution of foreign relations authority at the federal level” might result if political branches disagree about “relative priority of domestic and international interests”). At the very least, their contribution concedes that the President had a reasonable claim to such authority. Their suggestion that the administration decided not to exercise this authority because it concluded that the foreign relations interests were outweighed by federalism-based interests, see id., seems inconsistent with the Secretary of State's attempt to “persua[de]” the Governor to postpone the execution. Their alternative suggestion that the administration declined to exercise its authority to compel Virginia's compliance with the ICJ Order because doing so might have compromised its ability to achieve its other foreign relations goals in Congress, see id. n.30, is more plausible, but does not support their central claim that federalism-based interests remain important in the foreign relations area.