Posted Tuesday, March 25, 2008, at 12:40 PM
Today, the Supreme Court handed down an opinion of great importance for understanding America's obligations under international law. The United States is a party to the Vienna Convention on Consular Relations, which requires states to allow foreign nationals to obtain advice from their consulates when they are arrested and to give notice to these foreign nationals that they have this right. Local police in the United States do not always know that they are supposed to do this, and the lawyers assigned to criminal defendants don't always know that they should complain to the court if the local police fail to do this. In most cases, if your lawyer fails to invoke one of your rights before the trial judge, you can't later bring it to the attention of another judge in a habeas proceeding.This is known as the procedural default rule.
In 2004, the International Court of Justice, the judicial organ of the United Nations, held, in a case brought by Mexico against the United States, that depriving foreign nationals of their consular rights under the procedural default rule violates the Vienna Convention. In response, the United States withdrew from the protocol that gave the ICJ jurisdiction over these cases, but the president issued a memorandum instructing state courts "to give effect" to the ICJ's decision with respect to pending cases, including Medellin's. In the Medellin case, there were two issues: whether the ICJ's judgment binds U.S. federal courts and whether, if not, the president's attempt to force state courts to give effect to the ICJ's judgment was lawful. The court answered both questions with a "no."
The legal arguments are interesting, but the larger significance of this case concerns the extent to which international law controls the U.S. government. Consider the following implications of the case:
1. The court interpreted the relevant treaties as "non-self-executing" (they do not create judicially enforceable domestic law because Congress has not incorporated them through legislation) rather than "self-executing." The case will likely make courts in the future less likely to interpret treaties as creating domestic law. If a violation occurs, injured parties will be limited to pursuing diplomatic remedies; U.S. courts will be out of the picture.
2. The court deprived the president of a powerful instrument for forcing American state courts to comply with non-self-executing treaties. In a rare burst of internationalism, President Bush tried to compel American states and their courts to live up to American treaty obligations. But it turns out that he doesn't have the power to do this; he will need to persuade Congress to give him the authority, treaty by treaty.
3. The court expresses skepticism about the claim that the judgment of an international court could ever "automatically" bind federal and state courts, finding it hard to believe that Congress would want "politically sensitive judgments" to be enforced by courts rather than addressed by the political branches.
(Expressing a point that will warm the hearts of realists everywhere, the majority opinion pointed out that when the United States government originally agreed that the ICJ would have jurisdiction over disputes between states, it anticipated that the only way that the prevailing state would be able to enforce the judgment would be by petitioning the Security Council — where the United States holds a veto.)
There is an academic theory that holds that the type of litigation (sometimes called "transnational legal process") exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of hindsight, we see that the opposite has been the case. The U.S. government reacted to this litigation by withdrawing from the protocol that gave the ICJ jurisdiction over these cases, and the U.S. Supreme Court has reacted to this litigation by weakening the domestic effect of treaties, expressing discomfort with international adjudication and making clear that the president lacks the power to compel the states to comply with treaties. The United States will violate or withdraw from international law when its national government wants to, and sometimes it will do so even when its national government does not want to.