International Week at SCOTUS: Will They Resolve the Self-Executing Treaty Puzzle?

This week, the U.S. Supreme Court will hear two of the most important cases on the status of treaty and international law in the U.S. system in the last fifty years. On Tuesday, Scotus will consider the petition of Hamdan, an alleged Al Qaeda member who is challenging the legality of the system of military commissions under U.S. law and international treaties (for some of my views on the legal issues in the case, see here and here).* On Wednesday, the Court will consider the petition of two foreign nationals seeking the protection of the Vienna Convention on Consular Relations in domestic criminal and habeas proceedings (which I’ve written about here and here). (I’ve fixed the previously bad links).

Obviously, these cases have sorts of policy consequences for the war on terrorism or the domestic system of criminal justice. To me, the cases are also important because they will likely require the Court to flesh out an approach to determining whether and how a treaty will create private rights of actions for individuals in the U.S. system. This area of treaty law is messy for a variety of reasons that I won’t go into here. Suffice to say that there is substantial disagreement in the courts, and even more disagreement in the legal academy, as to how and whether to give a treaty self-executing effect.

What the Supreme Court might (but probably won’t) do is clarify this very murky and fuzzy area of the law. Or, as is more likely, they may confuse matters even further.

*For a defense of Scalia not recusing himself in Hamdan, see here.