Wednesday, April 09, 2008

Medellin Part Deux: SCOTUS Shows No Love for ICJ or US Treaty Obligations

On March 25 (hey, some of us have day jobs), the Supreme Court handed down a decision in Medellin v. Texas which, as I predicted, rejected the proposition that either an ICJ decision, or a memo from the President constituted directly enforceable federal law.

Ok, it wasn't really that hard to predict. I guess the silver lining of this Court is that with certain cases, such as those involving international law, or anything against corporations or guns, you pretty much know which way they're going to go as soon as they pick up the case.

The disturbing thing about Medellin (other than the underlying crime, which was a heinous rape and murder), is that it presented a very strong case for the domestic application of international law. It involves 1) a treaty, 2)that was ratified, 3) and an Optional Protocol Consenting to ICJ jurisdiction 4) which was also ratified.

So when the ICJ determined that the US had violated its obligations under the treaty, the ICJ should be binding on us, right?

WRONG! According to this Court, neither the Optional Protocol nor the underlying treaty were "self-executing," and therefore, without a further act from Congress, did not create binding federal law. According to the Court, "submitting to jurisdiction and agreeing to be bound are two different things." Wow. If the US is free to either accept or reject an ICJ decision regardless of whether or not they sign an Optional Protocol consenting to ICJ jurisdiction, then the whole document is pointless, as is Congress ratification of that document.

Granted, there were some serious issues of state rights going on in this case, but consular relations and immigration polices (as well as policing of foreign nationals) have always been at the federal level. It makes little sense that the feds can regulate migratory birds through treaties, but not migratory people, whether or not they are in the criminal justice system. See Missouri v. Holland, 252 U.S. 416 (1920).

Whoa. I just did a legal citation. Time to stop.

Great Article by Edward Lazarus

Medellin v. Texas, Opinion

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