Medellin, Norm Portals, and the Horizontal Integration of International Human Rights

I recently posted to SSRN my forthcoming article, “Medellin, Norm Portals, and the Horizontal Integration of International Human Rights,” which will be published later this year by the Notre Dame Law Review. As always, I welcome any comments (either on line or via email). Here’s the abstract:

The Medellin v. Dretke line of capital cases challenging U.S. non-compliance with the notification provisions of the Vienna Convention on Consular Relations (VCCR) provides an example of effective transnational horizontal integration of international human rights norms notwithstanding lack of domestic vertical enforcement and persistent government objection to the outside norm. As an international treaty that codifies the right of nation states to mediate between two legal systems on behalf of their nationals detained abroad, the VCCR acts as a “norm portal” – a formal gateway permitting the entry of an international human rights norm into the legal system of a state that has persistently rejected the norm. In the Medellin death penalty cases, a transnational advocacy support network comprised of defense counsel, NGOs, and foreign governments adopted the VCCR as a norm portal through which to mediate between the external abolitionist norm and the U.S. criminal justice system. The result was increased compliance with consular notification and assistance, which in turn has led to a decline in death sentences for foreign nationals and the avoidance of several executions. The VCCR norm portal has thus helped chip away at the application of capital punishment in the United States, notwithstanding consistent official U.S. government objection to importation of the international abolitionist norm and the refusal of the Supreme Court in Sanchez-Llamas to give domestic legal effect to an International Court of Justice decision requiring creation of a judicial remedy for violations of the VCCR notification provisions.

The Medellin cases demonstrate that while transnational vertical processes of norm enforcement play an important role in elaborating rules and framing legal arguments, the ability to engage actors at the local and state level may prove most salient to shifting practices and attitudes toward the international standard. These cases further suggest that formal procedural mechanisms that permit direct norm mediation by transnational advocates have an important role to play in the integration of international human rights norms across borders. Extradition treaties and international refugee law are other examples of norm portals that permit the import and export of international human rights norms across state borders. Because they reflect formal legal obligations adopted through treaty and are subject to political reversal, norm portals may prove more robust and less potentially dilutive of democratic processes than the use of non-binding foreign and international legal authority in judicial opinions. Human rights advocates are therefore likely to continue to seek out and exploit norm portals as a means through which to bring U.S. human rights practice in line with external standards.