Archive for
November, 2006

US Government Eats Crow

by Peter Spiro

The Standing Doctrine and Global Warming

by Roger Alford

Foreign Relations in the Massachusetts v. EPA Oral Argument

by Roger Alford

Retailing Kyoto-Style Carbon Offsets

by Janet K Levit

The U.S. Gets Tough With North Korea: Bans Sale of IPODs

by Julian Ku

New Island, New Nation?

by Duncan Hollis

New Legal History Blog

by Peter Spiro

Law Students and Wikipedia

by Roger Alford

Abortion Rights: The Next Front in International Law?

by Peter Spiro

International Law for Sale: The International Chamber of Commerce Approves the UCP 600

by Janet K Levit

Pro Se Use of International Law

by Roger Alford

Problems at the Cambodian Tribunal

by Kevin Jon Heller

French Judge Issues Arrest Warrants Against Rwandan Officials

by Julian Ku

“Fowling” and “Armes” at the First Thanksgiving

by Roger Alford

Vatican May Approve Using Condoms to Fight AIDS

by Kevin Jon Heller

Talking or Taking? The US-Iranian Dispute over Diplomatic Property

by Duncan Hollis

Sloss on Medellin

by David Sloss

[Opinio Juris has requested David Sloss’ permission to post this email he published on a international law list serve and he has kindly obliged]

I finally was able to read the Texas court’s decision in Medellin. It strikes me that the court almost completely ignored the strongest argument in favor of the petitioner. That argument can be summarized as follows.

The United States has an obligation under Article 94 of the U.N. Charter to “comply with the decision of the International Court of Justice” in the Avena case. Under the express terms of the Constitution, Article 94 is the “supreme Law of the Land,” and “judges in every state shall be bound thereby.” Therefore, the Texas Court of Criminal Appeals has a constitutional duty to comply with the ICJ decision in Avena. Note that it is immaterial, for purposes of this argument, whether the Avena judgment is supreme federal law. I would maintain that the Avena judgment is not supreme federal law. Even so, by virtue of Article 94 and the Supremacy Clause, the Texas court still had a constitutional duty to comply with the ICJ decision.

No doubt, some will argue either that Article 94 is “not self-executing,” or that Article 94 does not create “individually enforceable rights,” or both. But that argument merely serves to obfuscate the main issue. The claim that Article 94 is “not self-executing” is utterly meaningless, unless one defines the term. Moreover, whatever it means to say that Article 94 is “not self-executing,” it is beyond dispute that Article 94 is the “supreme Law of the Land,” and that “judges in every state are bound thereby” because the Constitution says so. Of course, this does not mean that Article 94 is judicially enforceable in every case. Rather, Article 94 is judicially enforceable only in those cases where it provides an applicable rule of decision. The number of cases litigated in U.S. courts where Article 94 does provide an applicable rule of decision is very, very small, but it’s not zero. Medellin is one of the few cases where Article 94 does provide an applicable rule of decision. In my view the Texas court’s decision violated both Article 94 and the Supremacy Clause.

Outsourcing Research About Outsourced Authority

by Roger Alford

Reno Strikes Back: Files Amicus Brief against Use of “Enemy Combatant” Designation

by Julian Ku

The U.N.’s Hopeless Human Rights Council

by Julian Ku

Top International Law Journals

by Roger Alford

Where’s the Verdict in Saddam’s Trial?

by Kevin Jon Heller

U.S. Judicial Conference International Judicial Relations Committee Prepares for Semi-Annual Meeting

by Janet K Levit

But the New Zealand Flag Is So Pretty…

by Kevin Jon Heller

The Precautionary Principle and the Need for Diversity

by Roger Alford

Chertoff on International Law

by Roger Alford

McCain Criticizes Bush Administration Regarding Climate Change Report

by Kevin Jon Heller

U.S. Off of the UN’s International Law Commission

by Chris Borgen

Webcast of Bellinger Lecture

by Peter Spiro

U.S. Senate Approves U.S.-India Civil Nuclear Cooperation Deal

by Julian Ku

Medellin v. Dretke: International Law Often Happens Despite Judicial Decision

by Janet K Levit

Milton Friedman R.I.P.

by Roger Alford

Harvard Law Review’s Supreme Court Review

by Roger Alford

2007 Climate Change Performance Index

by Kevin Jon Heller

Posada Carriles Could Walk on February 1

by Kevin Jon Heller

Delegations at Duke

by Duncan Hollis

More on Medellin: Why the President Can’t Win

by Julian Ku

Texas Court of Criminal Appeals Dismisses Medellin’s State Habeas Petition

by Janet K Levit

Medellin is Back: Texas Wins, President Bush and the ICJ Both “Lose”

by Julian Ku

International Law Often Happens Despite National Level Decision-Making (Or Lack Thereof)

by Janet K Levit

Genocide and Battlestar Galactica

by Kevin Jon Heller

MCA Before the D.C. Circuit

by Roger Alford

House Withdraws Vietnam-WTO Bill – Here Come the Protectionists

by Julian Ku

Report from the Clash of Civilizations Commission

by Peter Spiro

Charity Goes International

by Peter Spiro

So You Want To Teach International Law?

by Duncan Hollis

House Rejects Vietnam-WTO Legislation (But It’s Not Over Yet)

by Julian Ku

Climate Change Litigation and Dilemmas of Transnational Regulatory Governance

by Hari Osofsky

The Middle of the Country is In Play: Let’s Play

by Janet K Levit

Welcome Guest Blogger Janet Levit

by Peter Spiro

The Trouble with ICC Arrest Warrants

by Roger Alford

Welcome Protocol V and Let the Bomb “Cleaning” Begin!

by Julian Ku

Flight Patterns

by Roger Alford

Next Up for the WTO (and Congress): Russia

by Julian Ku

Germany Asked to Prosecute Rumsfeld, Gonzales, Yoo (and the whole Bush Administration) (Updated)

by Julian Ku

“Strategic Pause” on FTAs

by Roger Alford

Fugutive Rewards and the FSIA

by Roger Alford

John Bolton — and My Beer

by Kevin Jon Heller

“Bolton is Going Nowhere” – and I Owe Kevin a Beer (Updated)

by Julian Ku

Midterm Elections and Climate Change

by Hari Osofsky

First Test Passed (Probably): Leading House Democrat Calls Vietnam WTO Deal “Uncontroversial”

by Julian Ku

Saddam News

by Kevin Jon Heller

How Not to Motivate a Soccer Team

by Kevin Jon Heller

Rumsfeld Resignation

by Hari Osofsky

Update on the Security Council: Panama Officially In on the 48th Round

by Hari Osofsky

Realistic Expectations Out of the Midterms

by Peter Spiro

One Early Test for the New Congress: Vietnam and the WTO

by Julian Ku

Foreign Policy Implications of Mid-Term Elections

by Roger Alford

Softening US Opposition to the ICC

by Peter Spiro

Election Day Reflections: Nicaragua and the United States

by Hari Osofsky

Saddam’s Appeal Begins

by Kevin Jon Heller

Would Saddam’s Execution Reduce the Insurgency?

by Kevin Jon Heller

Hitchens: “Don’t Hang Saddam”

by Peggy McGuinness

The Hussein Verdict and U.S. Midterm Elections

by Hari Osofsky

Bush in 2000 on the Use of Force

by Peter Spiro

Thoughts on Saddam’s Conviction

by Kevin Jon Heller

Hussein Convicted

by Roger Alford

Richard Perle, Dove?

by Kevin Jon Heller

Panel on the History and Development of Islamic Law at the NY City Bar

by Chris Borgen

Environmental Challenges

by Hari Osofsky

ACLU Takes Immigrant Worker Rights to the Inter-American Commission

by Peter Spiro

Ethiopian Immigrant in US Convicted and Sentenced for Female Genital Mutilation

by Peggy McGuinness

2006 Privacy Rankings

by Kevin Jon Heller

US Soldier Commits Suicide After Objecting to Interrogation Methods

by Kevin Jon Heller

Venezuela-Guatemala Cage Fight for Security Council Seat is Over! Panama Wins!?

by Chris Borgen

The Need for Geography

by Hari Osofsky

Welcome Guest Blogger Hari Osofsky

by Peggy McGuinness

Thanks to Guest Cesare Romano

by Peter Spiro

More José Alvarez on IO Responsibility

by Duncan Hollis