The Dynamic Last-in-Time Rule

Abstract

For more than a decade, controversy has raged over whether and when a U.S. state’s execution of a convicted foreign national can be delayed by an International Court of Justice (ICJ) judgment under the Vienna Convention on Consular Relations (Vienna Convention). On several occasions — most recently on July 7, 2011 — the Supreme Court has declined to stay such an execution, even though the foreign national was convicted without being informed of his rights under the Vienna Convention.

One doctrine raised to bar enforcement of the ICJ judgment was the last-in-time rule, which provides that when a statute and treaty conflict, the most recent instrument governs. A 2004 ICJ judgment held that the United States had violated the Vienna Convention rights of fifty-one Mexican nationals and further decreed that U.S. courts should remedy the violations by reconsidering those nationals’ convictions. Such relief would have been barred, however, by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a statute enacted after the 1969 ratification of the Vienna Convention, but before the 2004 ICJ judgment. The Supreme Court suggested, though it did not conclusively decide, that AEDPA would trump the Vienna Convention under the last-in-time rule. In the Court’s analysis, the Executive’s decision to submit to the jurisdiction of the ICJ in the proceedings resulting in the 2004 judgment was legally irrelevant.

This Article argues that the Supreme Court’s suggestion is incorrect — the Executive’s decision to submit a dispute to an international tribunal under a valid treaty regime is a legally cognizable expression of the “dynamic” sovereign will. To establish this “dynamic last-in-time rule,” this Article analyzes the constitutional interests underlying the last-in-time rule, and related doctrines for interpreting and enforcing treaties. It then demonstrates that the dynamic last-in-time rule serves those interests better than its traditional, static counterpart. In the context of a conflict under a dynamic treaty regime, the Executive’s submission to international jurisdiction should trump previously enacted statutes. The result is greater fidelity to both constitutional principle and international obligation.

Keywords: last-in-time rule, international law, constitutional law, separation of powers, vienna convention on consular relations