First Reaction on Medellin, Self-Execution, Etc.

by Mark Weisburd

[Mark Weisburd is the Martha M. Brandis Professor of Law at UNC Law School.]

I find it difficult to read Medellin as institutionalizing a presumption against self-execution. If that had been Roberts’s intent, the form of his argument should have been, “We presume non self-execution, is there anything to overcome the presumption?” Instead, he analyzed the text, ratification hearings, and practice of other treaty parties to conclude that Art. 94 was not intended to create obligations for domestic courts. The conclusion seems reasonable to me – 94(2)’s according the Security Council discretion to refuse to enforce an ICJ judgment is hard to reconcile with a domestic judicial duty to enforce those same judgments – but it certainly isn’t reached with the aid of presumption.

David Sloss’s post makes an important point regarding the branch of the federal government with the repsonsibility to execute particular treaties. As he pointed out to me in a colloquy some time ago, whatever the status of some generic ICJ judgment, this particular judgment specifically requires action by American judges and it is impossible to carry out the international obligation admittedly created by the judgment without judicial action. The problem I see is that, if Art. 94 in general does not require domestic judicial implementation, and if the Senate consented to American submission to the ICJ only on the understanding that there was no requirement of domestic judicial enforcement, what happens when a particular ICJ judgment is meaningless without such enforcement? I find the Senate’s understanding crucial. Necessarily, it seems to me, the “treaties” to which the Supremacy Clause refers are those to which the Senate understood itself to be consenting. That is, a treaty for purposes of American judicial treatment imposes only those obligations which the Senate saw the treaty as creating. So – to address David’s argument – if the treaty to which the Senate thought it consented never requires judicial enforcement of ICJ judgments, then that’s the treaty which is the supreme law of the land. It may well be reasonable to argue that, at least on these facts, that not the best reading of Art. 94, but, if I’m right, the only issue is determining the Senate’s understanding of the treaty, not determining whether that understanding necessarily makes sense. Indeed, when the Court holds that the Senate’s understanding of Art. 94 as creating no domestic legal effects disables the president from seeking to implement Avena, it seems to put just that degree of weight on the Senate’s understanding.

Three other quick points. First, I think Ernie Young is exactly right that upholding the effect of Bush’s memo here would have had immense consequences. The administration’s argument was that the president can negate state law in order to carry out international legal obligations not otherwise binding in the US. Given the breadth of at least some readings of customary international law these days, it’s hard to imagine a subject as to which the President could not, effectively, legislate by decree if that argument had prevailed. I would add that the Court’s take on the consequences of the Senate’s understanding would seem to put to rest the controversy during the Reagan administration regarding the President’s authority to “reinterpret” treaties, according them a meaning different from that the Senate thought they had when it consented to ratification. Finally, regarding Paul Stephan’s point about the Court’s examining other states’ readings of Art. 94, I would note that this follows straight from the Vienna Convention on the Law of Treaties. Indeed, one of the reasons the ICJ was wrong in LaGrand and Avena was that it ignored other states’ readings of the Consular Convention.

http://opiniojuris.org/2008/03/26/first-reaction-on-medellin-self-execution-etc/

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