Medellin’s Mischief, or Does International Law Stop at the Land’s Edge?

by Chimene Keitner

Hathaway, McElroy, and Solow offer an overview of attempts to enforce treaties directly in U.S. courts, as well as a typology of underappreciated modes of treaty enforcement, which they label indirect, defensive, and interpretive. In so doing, they enable us to better appreciate the ways in which courts engage with treaties, while at the same time reminding us that “the problem of international law enforcement is not simply one for the courts to solve” (106). They are to be commended for a piece that will help make the conversation about treaty enforcement better informed when it looks to the past, and more focused on concrete proposals when it looks to the future.

The article is in part motivated by the authors’ observation that courts have become less receptive to attempts by individuals to enforce treaties through private rights of action in the wake of Medellin (71). Although the authors believe that this reticence is based on a misreading of dicta from the Medellin decision (id.), they do not focus their energy on correcting this misinterpretation. Rather, they suggest possible alternative perspectives through which to view treaty enforcement by U.S. courts, and possible alternative mechanisms to bind the political branches to comply with international legal commitments.

Three observations might illuminate directions for future research. First, it is true that Sosa v. Alvarez-Machain focused on the law of nations prong of the Alien Tort Statute rather than its treaty prong, and so perhaps falls outside the scope of this particular analysis (77). It is also true that debates about the use of foreign and international sources in U.S constitutional interpretation do not involve treaty enforcement per se (90). However, to the extent the authors seek to explore “when international law can be used in U.S. courts and when it cannot” (52), a broader lens might reveal other interesting dynamics at work, such as those examined in David Sloss, Michael Ramsey, and William Dodge’s edited volume on International Law in the U.S. Supreme Court. If by “international law” the authors really do mean just treaties, it would be interesting to know whether this focus simply flows from the subject-matter of Medellin, or whether there is a deeper reason (other than, quite understandably, space constraints) for a focus on treaties to the exclusion of customary international law.

Second, it seems noteworthy that, while treaties are arguably becoming less enforceable by private parties in U.S. courts, the opposite trend seems to be occurring in other countries, as documented in David Sloss’s collection on The Role of Domestic Courts in Treaty Enforcement. It would also be interesting to know whether courts’ indirect, defensive, and interpretive enforcement of international law tends to be rights-enhancing or rights-restricting from the perspective of the individual, and whether any relevant conclusions or comparisons can be drawn from this.

Third, the authors could discuss at greater length how their findings about private rights of action relate to evolving conceptualizations of the role of individuals in the international legal order, and the role of international law as part of the public law regime regulating U.S. government actors. The Seventh Circuit in Jogi was more open to the idea that certain international legal commitments entered into by States ought to be enforceable by individuals (as discussed here) in part because it viewed certain treaty-created rights as “belonging” to individuals rather than to States, a view reflected in Judge Nelson’s dissent from the Ninth Circuit’s decision in Cornejo, but not in the Cornejo majority (as discussed in the headnote at 46 I.L.M. 1158 (2007)). To a certain extent, ontological assumptions seem to drive (or, at least, to correlate with) doctrinal conclusions. Given how deeply immersed the authors have been in courts’ opinions on these questions, I would be very curious to know whether they have formulated broader observations or conclusions about the evolving nature of international law itself, as experienced and constructed by those who engage with international commitments in the context of domestic litigation.

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