Marpol Amendment Procedures

Constitutionality of Marpol Amendment Procedure in 2013 (Continuation)

United States views on international law [1] in relation to Constitutionality of Marpol Amendment Procedure: iii. Congressional Implementation of the ECA Amendment. The SAC also asserts that “[t]he ECA amendment . . . never became domestic federal law because it was never implemented pursuant to legislation passed by both houses of Congress.” RDC supports the State's arguments in its briefing. The Federal Defendants disagree, contending that the North American ECA “entered into force for the United States consistent with both the Senate's understanding in giving its advice and consent to Annex VI and with its implementation through [the APPS] legislation passed by both houses of Congress.” The Clean Air Defendants and the Environmental Defendants support the Federal Defendants' position. The State relies on Medellin v. Texas to support its arguments. Medellin involved a judgment of the International Court of Justice (“ICJ”), Avena, which resolved a dispute between several Mexican nationals, including Medellin, and the United States. The ICJ found that the United States had violated an article of the Vienna Convention in its dealings with those individuals who had been convicted in state courts within the United States. The President issued a memorandum stating that the United States would meet its obligations under Avena by having state courts give effect to that decision. Medellin filed a habeas corpus petition in Texas state court seeking to enforce his rights under Avena. The state court dismissed the petition on the grounds that Avena and the President's memorandum were not directly enforceable federal domestic law that would preempt the state limitation on the filing of successive habeas petitions. The Supreme Court agreed with the state court. It explained that the relevant treaty sources indicated that ICJ judgments were binding only between nations who were parties in the suit. Because Avena had not been implemented in the United States through legislation, it was not binding on the state court. The Supreme Court also held that the President's memorandum did not make the Avena decision enforceable domestic law because the President was not authorized by the relevant treaty sources or congressional action to implement the judgment.

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The Federal Defendants distinguish Medellin from the present action, pointing out that Medellin turned on whether the relevant treaties were self-executing, as it was undisputed that no implementing legislation existed. Here, by contrast, there is no dispute that MARPOL is nonself-executing and that there is a specific legislative act authorizing its implementation. APPS expressly implements amendments to Annex VI by making it “unlawful to act in violation of the MARPOL Protocol” and by defining “MARPOL Protocol” to include “any modification or amendments to the Convention, Protocols or Annexes which have entered into force for the United States.” The Federal Defendants assert that “[t]o the extent Alaska is arguing that implementing legislation can only render an international commitment enforceable if Congress passes such legislation following the negotiation and conclusion of the international commitment, that is equally wrong. Congressional ex ante authorization for international agreements extends to the earliest days of the nation.” They cite examples of implementing legislation for other treaties that involved ex ante authorization for entering into and amending international agreements. The Federal Defendants also cite a history of the U.S. Secretary of State's acceptance of prior MARPOL Annex amendments under Section 1909(b) that predates the 2008 APPS amendment implementing Annex VI.189 The Federal Defendants assert that as Congress enacted APPS against this background of ex ante authorization, Congress should be presumed to have intended to preserve it.

Development

The State acknowledges that “it appears that the Executive has accepted regulations and amendments to international agreements and treaties that purport to be domestically enforceable without further action by Congress or even an agency rulemaking.” But the State maintains that this history does not establish this practice as lawful, since as the Supreme Court stated in Medellin, '[p]ast practice does not, by itself, create power.'” However, in making that statement in Medellin, the Supreme Court quoted Dames & Moore v. Regan.193 The full sentence in Dames reads: “Past practice does not, by itself, create power, but 'long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent.'”194 Given Congress's long history of enacting legislation that authorizes the executive branch to accept and render enforceable amendments to international agreements, and the fact that MARPOL Annex amendments have been previously enforced through the ex ante authority of 33 U.S.C. § 1909(b), the Court finds that Congress should be presumed to have intended that MARPOL Annex amendments, including the North American ECA, that have been accepted by the U.S. Secretary of State would constitute enforceable domestic law without further implementation by Congress.

Details

The legislative history of APPS supports this interpretation. The State asserts that when the Senate approved Annex VI in 2006, senators stated that Annex VI “'will require implementing legislation,'” which the State argues indicates they “implicitly prohibited the executive branch from unilaterally making any of the treaty obligations in Annex VI—including any obligations flowing from amendments—domestic federal law.” But the Federal Defendants persuasively contend that the State's reliance on this 2006 report is misplaced because it “ignores the chronology of the ratification of Annex VI and amendments to APPS.” First the Senate approved Annex VI, then Congress amended APPS to include Annex VI; thus, at the time of the report cited by the State, Annex VI did indeed still “require implementing legislation.” The Court therefore does not read the Senate report cited by the State as indicating anything beyond a recognition that Annex VI was not self-executing. Accordingly, the Court finds that when the Senate approved Annex VI, and when Congress passed the amended version of APPS implementing Annex VI, they intended that the U.S. Secretary of State's acceptance of an ECA amendment at a future date would be effective domestic law without further Senate approval and would be implemented through the existing version of APPS without further congressional action.

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193 Medellin, 552 U.S. at 496 (quoting Dames, 453 U.S. 654, 686 (1981)).

Resources

Notes

1. Constitutionality of Marpol Amendment Procedure in the Digest of United States Practice in International Law