How Mexico Can Sue Arizona

The Foreign Minister of Mexico, peeved that Arizona voters passed a referendum denying benefits to undocumented aliens, is threatening to sue the U.S. in unspecified international courts. This raises an interesting question: Can Mexico sue the U.S, or Arizona, under international law to stop this law from going into effect? If so, where?

There is no shortage of international law that Mexico might invoke. Off the top of my head, they might invoke the International Covenant on Civil and Political Rights. Or they might make a claim that various provisions of the International Covenant on Economic Cultural and Social Rights has become customary international law. While all of these forms of international law might support a claim, the real obstacle for Secretary Derbez is finding a court with jurisdiction to hear that claim. International law is full of substantive rights without any forum to vindicate them.

What crazy international tribunal would hear Mexico’s claim? The International Court of Justice? The International Criminal Court? Actually, the forum most likely to have jurisdiction is actually the good ol’ Supreme Court of the United States.

As perhaps only federal court junkies may recall, the original jurisdiction of Supreme Court includes actions “in which a State shall be Party”. And as Thomas Lee recently argued in an article in the Columbia Law Review, this provision was intended to permit foreign states to sue the states for treaty violations. Of course, Mexico would have to find a treaty that was self-executing, but that is a question for another day.

Just a little free advice for the government of Mexico from their friends here at Opinio Juris. Any further advice, of course, will require a retainer…

Update: I had to slightly correct my post. The Supreme Court is more likely than any other forum to assert jurisdiction, but I was incorrect in suggesting they were required to.