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.

Links:
Great Article by Edward Lazarus

Medellin v. Texas, Opinion

Of Firearms and the "F-bomb"

In Supreme Court news, cases involving guns and Nicole Richie; unfortunately not the same case.

Today, the Court will hear oral argument in District of Columbia v. Heller, case no. 07-290, the Court will look at a Second Amendment challenge to D.C.'s ban on hand guns. The Court has not conclusively interpreted the "right to keep and bear arms" in a long time EVER. Might the Court have the Second Amendment in its sights, or will the Court shoot down the ban? Stay tuned for an update and more bad puns.

I, for one, wish that this case was not going up before the Supreme Court with its current composition. I hope the justices feel safer in D.C. knowing that they will be making it ok to tote around hand guns.
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UPDATE from Scotusblog based on oral argument:

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home

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Yesterday, the Court granted cert in FFC, et al. v. Fox Television Stations, et al., a case involving current FCC policy regarding so-called "fleeting expletives," called the "Bono doctrine" after a 2004 incident in which U2's Bono said on NBC that winning a Golden Globe was "really, really f---ing brilliant." The Bono doctrine, a marked change in FCC policy, makes broadcasters liable even when the offensive words are a complete surprise. This particular challenge involves

two incidents in which celebrities used profanity during the Billboard Music Awards. In 2002, Cher told the audience: "People have been telling me I'm on the way out every year? So f--- 'em." The next year, Nicole Richie said: "Have you ever tried to get cow s--- out of a Prada purse? It's not so f---ing simple." (The Nielsen Co. owns Adweek and Billboard.)

Article from Adweek.

Fox challenged the FCC's decision that they should be held liable. Fuckin' A.

Medellin

Ok, no, I'm not talking about Vincent Chase's movie that bombed at Cannes. He's just a pretty man.

Today the SCOTUS will (or has, damn time difference), hear argument in Medellin v. Texas, a case that deals with the President's power to direct state governments to comply with international treaty law (in this case, a decision by the International Court of Justice["ICJ"]) when it deals with an area of law that is traditionally left to the states (criminal procedure of sorts). More importantly, it will also deal with whether state governments have an obligation to follow the ICJ's decision even in the absence of Presidential action because international law is, by definition, federal law, and thus preeminent under the Supremacy Clause.

I doubt international law is going to stand much of a chance with the current Court even though this would be a good case to enforce the ICJ's decision because there are direct treaty obligations involved. None of that messy customary international law or jug cogens stuff that makes U.S. judges so uncomfortable.

More info than you probably care for available here.

SCOTUS feigns interest, but really can't get mind off of back 9

In a day of unreceptiveness, the Court seemed disinclined to let investors sue companies that were involved in securities fraud if they were not primary violators. I actually found this somewhat hard to believe. Basically there was a scheme that required the participation of a third party (sham transaction). The investors were trying to go after the third party as well as the defendant/company itself. Other than Ginsburg though, it doesn't seem the little guy had much of a chance. If you're really bored interested in a background of the case, take a look here

Elsewhere, the Court also declined to review a case against the C.I.A., that would have reopened the "state secrets" question in El-Masri v. U.S. (06-1613) as well looked into the agency's alleged "extraordinary rendition" program; where the CIA captures individuals and then ships them abroad to be interrogated and tortured so that they do not have to follow U.S. law or procedure. El-Masri alleged that he was kidnapped in Macedonia in 2003 and then taken to Afghanistan where he was held for months and tortured by his captors. El-Masri was released in 2004 after he says U.S. officials realized he was not involved with terrorism. The administration has never acknowledged El-Masri or his claims.

So if you get kidnapped and shipped off to a foreign land, tortured and then let go because it was all a mistake. TOUGH SHIT. As the government would like to keep it a secret that it might be engaged in activity prohibited by both US and international law, there will be no review. Shhhhhh. It's a secret.

This Court is starting to remind me of the Board of Supervisors at a gated retirement community.

Plaintiffs' Bar Receives SetBack in Camel Jockey Case

In early June, a class-action lawsuit was filed in Florida against certain sheiks from the United Arab Emirates, accusing them of kidnapping and enslaving children and forcing them to ride camels (WSJ lawblog article). The case was brought under the Alien Tort Statute ("ATS"), which gives U.S. federal courts jurisdiction to hear cases brought by anyone, including foreign nationals, for injuries “in violation of the law of nations or a treaty of the United States.” For a whole discussion on the ATS, see anything written on the subject by Bill Dodge, or the Opinion Juris Discussion of the ATS and the last big SCOTUS case addressing it. The case brings up a slew of novel and interesting questions for those of us at all interested in international law, including head of state immunity, forum non conveniens, and international comity. This seems to be the plaintiffs' bar's first foray into human rights law, and not everyone was pleased with it. As Bill Dodge was quoted in a New York Time's article:

“It’s a bad thing that the class-action firms are getting into this area,” William Dodge, a law professor at Hastings Law, told the Times. “They don’t know as much about international law, and they don’t pick their battles as carefully. They’re motivated not just by a concern to promote human rights but also by money and a desire to use these kinds of suits to get a settlement.”

The UAE actually set up a whole media-ready website in response, called "dubaicameljockeys.org"

On July 30, 2007, the judge dismissed the case for a lack of personal jurisdiction (both under Florida's and the federal long arm statute) , thus avoiding some of the trickier questions that would have otherwise arisen. Seems the Sheiks did not have many meaningful contacts with the Sunshine state and the Court did not find plaintiffs' allegations that some corporations doing business in Flordia were the alter egos of the Defendants to be very convincing. While a win for the sheiks, this does not foreclose future litigation of this sort.

I think it would have been interesting to see how the court would have handled the accusation that the children were enslaved. The Sosa decision mostly limited the causes of action under the ATS to only those three that were unequivocally intended to be enforced at the time of the ATS's adoption in 1781: violating safe conduct, infringing the rights of ambassadors, and piracy. But the majority opinion did say that it would be willing to apply the statute to other, more modern concepts:

Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.

Surely slavery would fall under this definition, wouldn't it?