Academic

Medellin: Treaties and Domestic Law

By Calvin Massey

The Supreme Court's decision today in Medellin settles some issues but leaves others in abeyance.   If there was ever much doubt that a non-self-executing treaty is not enforceable as domestic law without legislation to do so, there isn't any doubt now.   Yet, despite the conclusion that the President lacked authority to make the ICJ judgment in Avena binding on the states, one must still wonder whether there are circumstances beyond international claims settlement coupled with diplomatic recognition (Pink  and Belmont) that endow the President with authority to make international obligations binding on the states.   While Chief Justice Roberts notes that is untenable to assert that the President never has unilateral authority under Article II to displace state law pursuant to a ratified treaty, it's pretty clear that the President lacks such authority with respect to a ratified non-self-executing treaty.  That makes a lot ride on whether a treaty is self-executing and that question is largely a matter of the text of the treaty.  Unless a treaty says it is self-executing with respect to a member state's domestic law it isn't self-executing.  True, the majority's analysis isn't quite this simple, but it is a heavily textual approach. 

Questions for the future are legion.  Here's just one: Suppose that Congress enacts legislation that makes the consular access provisions of the Vienna Convention binding on the states, and suppose that in a future ICJ decision that court rules that the remedy for a violation of the consular access provisions by Texas, with respect to a Muslim citizen of a nation that recognizes Sharia in its own courts, is a new trial in Texas under Sharia.  Does Reid v. Covert  operate to bar this remedy because it is a violation of the Establishment Clause, or does Missouri v. Holland control? After all, the specific treaty that Congress acted to enforce in this hypo "does not contravene any prohibitory words . . . in the Constitution." 

......That's Elizabeth Pena, age 16, murdered by Medellin.

Full post as published by The Faculty Lounge on March 25, 2008 (boomark / email).