Posner on Medellin: Chastening the Transnationalists

by Peter Spiro

Eric Posner has this post up on Medellin on Slate’s new law blog Convictions, which wraps up with the following:

There is an academic theory that holds that the type of litigation (sometimes called “transnational legal process”) exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of hindsight, we see that the opposite has been the case. The U.S. government reacted to this litigation by withdrawing from the protocol that gave the ICJ jurisdiction over these cases, and the U.S. Supreme Court has reacted to this litigation by weakening the domestic effect of treaties, expressing discomfort with international adjudication and making clear that the president lacks the power to compel the states to comply with treaties. The United States will violate or withdraw from international law when its national government wants to, and sometimes it will do so even when its national government does not want to.

But this is at least partly false. The U.S. is in fact clearly in greater compliance with the VCCR today than it was in, say, 1998, when the Supreme Court first addressed the consular notification rights issue in the Breard case. In 1998 there were probably only a handful of local law enforcement officials, even high up the chain, who had even heard of the VCCR. A decade later, it’s only one level below Miranda. Even law enforcement officers in Texas probably try to toe the line, if only because they now understand the kind of headaches that come with noncompliance. It’s an astonishing success story, the entrepreneurial use of the VCCR. It could only have happened against a backdrop in which IL was generally coming to count for more.

No doubt today’s decision is a loss for the transnationalist camp, as was the US withdrawal from the Optional Protocol, and there may have been some overreaching/wishful thinking along the way. But equating Medellin with necessarily diminished US compliance is to take an overly court-centric view of the international legal dynamic. Although it would help to enlist them more fully as enforcement agents, international law does not need the federal courts to achieve meaningful efficacy. Other countries with substantial interests in the VCCR can keep up the heat through other channels, in ways that will work to further improve aggregate U.S. compliance over the long run.


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