A first read through the Medellín opinions leads to tentative observations, subject to revision:
• Chief Justice Roberts’ opinion for the Court is modest and fairly careful. He does not articulate a presumption against self-enforcement, or offer a general interpretive template. The analysis of the Optional Protocol and the UN Charter is specific to those two instruments. As my prior briefs and published work indicate, I find this part of the opinion completely persuasive. I take issue with the glib assumption that a commitment to comply with an international tribunal’s decision implies an automatic assignment to the judiciary of the authority to ensure that the commitment is honored.
• Although the opinion is limited in the sense that it does not offer a general rule for inferring self-executing from treaties, its dicta states strong views (it might be too strong to say it disposes of) concerning several controversies that the academic community has taken seriously. (a) The Court understands self-execution to refer to all forms of domestic enforcement, not just to the existence of a private right of action. Its definition of self-execution in footnote 2 may clarify our discussing going forward, even if some may quarrel with the definition used. (b) Reservations, declarations and understandings that limit or foreclose self-execution of a treaty that might otherwise have domestic effect seem acceptable to the Court. The Sosa Court also hinted as much. (c) And the idea of domestic enforcement of the awards of international tribunals does not seem to cause any great concerns, at least in the abstract. This will disappoint some who have suggested that domestication of such awards might present problems under Article III or other constitutional provisions.
• As a teacher of comparative law, I was delighted to see the Court’s reliance of the evidence of other country’s enforcement of ICJ decisions. I missed seeing a discussion of the recent decision of the German Constitutional Court regarding the Vienna Convention, although it may be too recent, too complex, and too tangential to make any of the briefs. The basic point that domestic implementation of international obligations has a comparative component and that an appreciation of foreign practice enriches our understanding of our own.
• As I was serving in the Executive Branch at the time of the drafting of the U.S. amicus brief and the oral argument, I am disappointed by the last part of the Court’s opinion. I would have thought that there was more to the US’s argument that the Optional Protocol, the UN Charter, and 22 U.S.C. § 287 can be read as assigning to the President the discretion to implement ICJ decisions through changes in domestic law. This argument, to be sure, is neither clear nor ineluctable. Still, I came away feeling that the Chief Justice was a bit like the person who, having a hammer, sees everything as a nail. That is to say, the opinion works so hard to clarify and establish what it means to say that a treaty is not self-executing that it rushes past a plausible and even useful refinement, namely that the treaty makers in advance might specify a nonlegislative mechanism for deriving valid domestic law from an otherwise non-self-executing treaty. To accept this argument, one would have to see Dames & Moore , Belmont and Pink not simply as cases recognizing a limited Presidential power that inheres in Article II, but also an expression of the expectations of the legislative branches when authorizing the President to enter into dispute resolution with foreign states. One might still argue that the treaty makers or Congress have to do more than simply sign on to dispute resolution to give the Executive the authority to choose to implement an international award or not. But here the Court’s opinion struck me as less careful or persuasive than what went before.
• If I had had any doubts about the persuasiveness of the majority’s discussion of the non-self-executing issue, Justice Breyer’s dissent would have put them to rest. The Chief Justice was remarkably restrained in his deflection of the dissent’s very problematic claims and proposals.
• This will not end all Vienna Convention litigation. We still have to decide what, if anything, Section 1983 adds: The Circuits are split. So the gift to which Julian refers will keep on giving for at least a little longer.