Medellín, the Alien Tort Statute, and the Domestic Status of International Law
[David H. Moore is a Professor at J. Reuben Clark Law School, Brigham Young University]
The Supreme Court’s decision in Medellin v. Texas has understandably generated substantial debate on the status of treaties in domestic law. Medellin has significant implications for three other areas of foreign relations law as well: Alien Tort Statute litigation, the domestic legal status of customary international law, and the development of a uniform doctrine governing the domestic status of both treaties and customary international law.
While most ATS claims are grounded in CIL, treaty-based claims are also raised. Treaty-based claims will not succeed, however, unless the treaty is self-executing and the plaintiff has a cause of action. By endorsing a broad notion of non-self-execution and by endorsing the presumption that treaties do not create domestic rights of action even when treaties “directly benefit private persons,” Medellin restricted prospects for treaty-based claims under the ATS. Medellin also undermines the more common CIL-based claims. In Sosa v. Alvarez-Machain, plaintiff Alvarez cited the International Covenant on Civil and Political Rights as evidence that CIL prohibits the type of arbitrary detention he suffered. The Court discounted the evidentiary value of non-self-executing treaties like the ICCPR in identifying actionable norms of CIL, stating that even if Alvarez properly represented the ICCPR’s content, he had mustered “little authority that a rule so broad has the status of a binding customary norm today.” Medellin’s broad view of non-self-execution reduces the evidence available to establish viable CIL-based claims.
The Domestic Status of Customary International Law
Medellin also bears on the more substantial question of CIL’s domestic legal status. That question has split scholars into two primary camps: a modernist camp that perceives CIL as federal common law that the federal judiciary may apply in the absence of positive authorization, and a revisionist camp that maintains that the political branches or Constitution must authorize federal judicial use of CIL as a rule of decision. I have argued, based on Sosa, that the Supreme Court favors the revisionist perspective. Medellin strengthens that argument by displaying the same separation of powers vision evident in Sosa. In that vision, which is consistent with the revisionist view, the political branches take the lead in making domestic law based on international law and in conducting foreign affairs. The vision is evident in the considerations Sosa provided to guide lower courts in identifying actionable norms of CIL in ATS cases—the intent of the political branches, specific definition, wide acceptance, practical considerations, effects on foreign affairs and the political branches’ foreign affairs authority, and alternative means of enforcement. The vision is also evident in the Sosa Court’s comments on the limited role of the judiciary in exercising common law powers and managing foreign relations.
Medellin manifests the same separation of powers vision. In deciding whether the relevant treaty obligations were self-executing, the Court considered the intent of the U.S. treaty makers, the specificity of the treaty obligations, other state parties’ understanding of the treaty obligations, the potential consequences of classifying ICJ judgments as inscrutable federal law, the effects on foreign affairs and political branch authority of eliminating political discretion to reject ICJ judgments and of rendering self-execution a case-by-case judicial question, and the existence in the Security Council of an international alternative to domestic judicial enforcement. These considerations reflect the view that Congress and the executive should have “the primary role in deciding when and how international agreements will be enforced.” In short, the separation of powers vision that undergirds both the revisionist position and Sosa appears in Medellin.
Medellin supports the revisionist position in two other ways as well. The Court’s repeated (and confusing) suggestion that non-self-executing treaties are not domestic law and not merely judicially unenforceable, evidences a view that international law, absent incorporation, generally resides outside domestic law. And Justice Breyer’s divergent conclusions in Sosa and Medellin—favoring a more limited role for CIL than the Sosa majority allowed but a more expansive role for treaties than the Medellin Court permitted—indicates that he, at least, may appreciate the revisionist suggestion that treaties should, absent statute or constitutional amendment to the contrary, have a broader domestic role than CIL.
A Developing Uniformity
Not only do the considerations that Medellin invoked to determine self-execution reveal a separation of powers perspective similar to Sosa’s, those considerations significantly resemble the guidance Sosa provided for the creation of common law causes of action based on CIL. With regard to both treaties and CIL, the intent of the political branches, specificity, mutuality, practical consequences, foreign affairs effects, and alternative means of enforcement (at a minimum) affect the domestic legal import of international law. The Supreme Court’s most significant explanation of self-execution analysis thus supports the notion that a uniform doctrine governing the domestic status of both treaties and CIL is developing.