Medellin v. Texas and Treaties’ End

by Oona Hathaway

As many have noted, the Supreme Court’s decision yesterday in Medellin v. Texas raises serious questions about the binding nature of United States’s treaty commitments. The Court holds as follows: “Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law.” (Slip Op. at 10). In other words, the Optional Protocol to the Vienna Convention on Consular Relations may be binding as a matter of international law, but it is not binding domestic law because it is not self-executing and there is no federal legislation that puts the obligation into effect.

This decision just serves to prove a point that I make in my article, Treaties’ End, which was the subject of a forum on Opinio Juris last week. In the article, I argue that treaties can be more difficult to enforce in U.S. courts than congressional-executive agreements. That is in part because some treaties are not self-executing. (I put to one side, for now, the question of whether the Court was right that the treaty obligations at issue in Medellin are or are not self-executing.) In such cases, two problems can emerge. First, a non-self-executing treaty could impose an international obligation on the United States that would be unenforceable as a matter of domestic law—because the necessary implementing legislation has not been passed—leaving the country in violation of its international obligations. (That is essentially what the Medellin Court decided had happened in that case.) To avoid this problem, the Senate usually postpones its advice and consent to a non self-executing treaty until implementing legislation can be enacted concurrently. Alternatively, it might give its advice and consent to the ratification of a treaty contingent upon the subsequent enactment of implementing legislation. That did not happen here—either because everyone involved assumed the treaty obligations were, in fact, self-executing or because the nature of the treaty obligations were not expected to give rise to individual claims under the treaty that could only be satisfied if there were federal implementing legislation (if the latter were true, that would represent a serious lack of foresight that should have been addressed once the individual claims were in fact filed).

As I argue in my article, congressional-executive agreements make it possible to avoid these dilemmas. Congressional-executive agreements are created by means of legislation passed by both houses of Congress. Unlike non-self-executing treaties, congressional-executive agreements provide one-stop shopping: the same act that provides the authority to accede to the international agreement can also make the necessary statutory changes to implement the obligation incurred. Had the Vienna Convention and Optional Protocol been entered as congressional-executive agreements, it is extremely unlikely that the Court would have held in Medellin that the treaty obligations were unenforceable in U.S. courts as a matter of domestic law.

http://opiniojuris.org/2008/03/26/medellin-v-texas-and-treaties-end/

One Response

  1. Thinking about this overnight and reading the comments of all, I am wondering if the import of this is really worse than I feared and we are facing what might be called a defacto Bricker or a neo-Bricker decision.

    As noted by Oona Hathaway and David Sloss, the status of treaties as binding federal law is fragilized by the decision that seems to give a broad expansive impact for non-self-execution: the non-self-executing treaty is not seen as binding domestic law.

    The text alone or what Congress does determines if the treaty is considered binding domestic law. One can imagine three scenarios with no binding domestic legal effect for a treaty: (1) negotiating treaties to have a likely non-self-execution interpretation by a US court, (2) declaring a treaty as negotiated is non-self-executing, or (3) no Congressional implementing legislative action.

    All three would leave an obligation on the United States without any internal domestic Supremacy Clause effect. But the obligation is on the United States. What do states do then? Texas can see the US obligation and decide for its own reasons to follow the treaty obligation while Oklahoma can decide not to or vice versa. State by state opting into complying with the obligation of the United States would seem the result – almost like the kind of vote by states on treaties the Bricker Amendment was seeking.

    These thoughts make me worry that I am facing a more radical vision here. At least before this, you had the Supremacy Clause idea covering treaties whether self-executing or non-self-executing. Roberts appears to be putting the non-self-executing treaties in a particularly special status of less than binding federal law: words with only an internal effect that is voluntary on states.

    Best,

    Ben

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