02 Mar Medellin: A Response to Comments
I am gratified for some of the comments below to my very long post on Medellin. Please indulge me as I follow up with a further clarification of why I believe the ICJ judgment should not be enforced by the courts.
I agree with Andreas that enforcing the ICJ judgment would not necessarily make the ICJ a higher court. Rather, the analogy would be to that of the U.S. Supreme Court and the highest court of particular state, say New York. The U.S. Supreme Court is bound, in a sense, to follow the interpretations of the highest New York court on questions of New York law. Similarly, if the U.S. Supreme Court was applying French law on a question, it seems reasonable to say that it would have to follow the interpretations of the highest French court.
But what is going on here is a bit different. Under Andreas’ view, the U.S. has delegated the authority to interpret U.S. treaty law (which is the law of the land under Article VI) to an international court. So under Andreas’ view, the ICJ is the final interpreter of a type of law (treaty law) that the U.S. Supreme Court would otherwise have the last word on.
I think such delegations would be constitutionally suspect if made without some limitations, and the better view is to consider such delegations to grant international tribunals the power to intepret the international law consequences only of a treaty. The question of whether or how the U.S. would apply that interpretation as a matter of domestic law should remain a question within the discretion of the political branches (Congress and the President).
The political branches might decide that the treaties should be enforced by the courts absent any constraints or limitations. This remains constitutionally suspect, but much less so if Congress and the President have been forced to state, on the record, that they have granted the international court this authority. Then they are accountable for the international court’s decision, and not the international court itself. Or, as is more commonly the case, the political branches decide to reserve to themselves (usually the President) the question of how or whether to enforce the international court judgment as a matter of domestic law.
This is what the U.S. government has done with WTO and NAFTA decisions and I think this is the best way to understand what the U.S. treatymakers did here with the Vienna Convention and the ICJ Statute as well. Sometimes international lawyers like to suggest that the WTO is all powerful and complied with so we should also comply with other international tribunals, but they should remember that there is a constant give and take within the U.S. system over whether and how to comply. And the one institution that has no say whatsover is the federal courts.
So in that way, the President’s action yesterday conforms to this approach. I think it raises some new problems, e.g. the question of the President’s power over the states, but those problems, while real, are I think far less significant the problem raised by the international court’s power over the domestic U.S. court system.
Comity is everyone’s favorite fallback position. The idea here is that domestic courts should give weight to the international court’s interpretation of the treaty or whatever law. I think this is right, but the whole point of comity is that it is not mandatory on the comity-conferring court. Thus, the U.S. Supreme Court should try, whenever possible, to defer to foreign and international court interpretations. But if there are strong countervailing domestic law obstacles to providing comity, e.g. a federal statute denying jurisdiction, then comity cannot override that domestic law obstacle.
When the Medellin case goes back to Texas court, which I believe will happen, the Texas court will have to figure out what it means to be “required” to give comity to the ICJ decision. Does a federal determination of comity override a mandatory state law policy? I don’t know and this will be the next tricky question facing the lawyers for Medellin, Mexico, and the state of Texas in this case.