29 Mar Medellin: Questions for Students
I plan to discuss Medellin with my students this week, and I’ve written out a long list of questions for them to consider. It occurred to me that some of the readers of this blog might find the questions useful as well. (Eventually some of these questions will find their way into the next edition of the foreign relations law casebook that Jack Goldsmith and I co-author.)
1. What treaties obligate the United States to comply with the judgment in Avena? Is the United States obligated to comply with the judgment even if it believes that the ICJ’s interpretation of the VCCR is erroneous? Even though the U.S. Supreme Court interpreted the VCCR differently in Sanchez-Llamas?
2. What reasons does the Court give for concluding that the ICJ’s judgment in Avena has no legal effect in U.S. courts? Do you agree with the Court that the phrase “undertakes to comply” in Article 94(1) of the UN Charter suggests non-self-execution? Do you agree with the Court that Article 94(2) of the UN Charter contemplates an “option of noncompliance”? Does the fact that only nations may be parties in contentious cases before the ICJ suggest that ICJ decisions are non-self-executing? How relevant is it that other nations apparently do not treat ICJ judgments as binding in their domestic courts?
3. What position does the Court take regarding whether Article 36 of the VCCR is self-executing? What is the position of the dissent on this issue? If Article 36 of the VCCR is self-executing, why shouldn’t the ICJ’s judgment concerning the effect of Article 36 also be self-executing? Do you agree or disagree with the dissent’s argument that the relevant words of Article 36 should be read “as if (between the parties and in respect to the 51 individuals at issue) they contain words that encapsulate the ICJ’s decision”?
4. What does the Court mean by “self-executing”? What does it mean by “non-self-executing”? What test should lower courts now use in determining whether a treaty is self-executing? What evidence is relevant to this inquiry? Under the Court’s analysis, whose intent counts in determining whether a treaty is self-executing – the intent of the parties to the treaty, or the intent of the United States?
5. Does the Court in effect adopt a presumption against self-execution? If not, does it at least reject a presumption in favor of self-execution?
6. Why does the Court reject the multi-factored approach to self-execution suggested by the dissent? Can some of the contextual factors suggested by the dissent still be relevant under the Court’s approach to self-execution?
7. As the dissent notes, even though the United States has withdrawn from the Optional Protocol to the VCCR, it is still a party to approximately 70 treaties that allow the ICJ to exercise jurisdiction over disputes arising under the treaties. Is the dissent correct in asserting that the Court’s decision will render ICJ decisions under all of these treaties non-self-executing in the United States? How often will this come up? Does it make sense to conclude, as suggested by the dissent, that some ICJ decisions are self-executing and some are not?
8. Does a non-self-executing treaty have any domestic legal effect? Is it part of the “supreme Law of the Land” referred to in Article VI of the Constitution? Does the Executive Branch have an obligation to comply with non-self-executing treaties? Do U.S. states have an obligation to comply with them (as Justice Stevens suggests in his concurrence)?
9. Why does the Court decline to give legal effect to President Bush’s memorandum? How is the framework set forth by Justice Jackson in his concurrence in the Youngstown steel seizure case relevant here? Is the Court in Medellin correct in concluding that, when issuing the memorandum, President Bush was operating within the lowest category of the Jackson framework? Or do you agree with the dissent that Bush was operating in the middle category? In issuing his memorandum, was President Bush attempting to make law? Is it true, as the Court seems to suggest, that the President can never make law?
10. What does the Court’s analysis suggest about the proper scope of sole executive agreements? Would it be fair to say that the dicta in Garamendi about how the “foreign policy of the Executive Branch” can preempt state law has now been repudiated? What do you make of footnote 13 of the Court’s opinion in Medellin?
11. Does the Court’s decision place the United States in breach of international law? In light of the Court’s decision, how can the United States comply with the Avena judgment? Do you think that the United States is likely to comply?