The Austin Chronicle

World Court Ruling Not Enforceable

By Jordan Smith, April 4, 2008, News

State courts are not required to adhere to rulings by the United Nations' International Court of Justice (the so-called world court) in considering criminal appeals – nor are they required to obey a president's admonishment that they heed such rulings where they would usurp state law, the U.S. Supreme Court ruled on March 25.

The ruling came in the case of Texas death row inmate and Mexican national José Medellín, who challenged his conviction on grounds that he had not been informed of his right under the 1963 Vienna Convention on Consular Relations that foreign nationals should be afforded access to home-country authorities when traveling abroad, particularly when faced with arrest on criminal charges. Medellín's was one of 52 cases named in a lawsuit against the U.S. by Mexico, decided in 2004 by the ICJ in the Hague. Mexico argued that the U.S. had violated international treaty by denying the men access to country representatives – important in part because Mexico does not have the death penalty. (Ironically, the provision in question was included in the treaty at the insistence of the U.S., concerned about how its citizens would be treated abroad.) The world court ruled in Mexico's favor, and although President George W. Bush didn't exactly agree with the ICJ ruling – in fact, he withdrew the U.S. from the portion of the treaty that makes ICJ rulings binding – he nonetheless penned a memo in 2005 telling the states to "give effect" to the ruling in considering individual criminal appeals.

In the Tuesday ruling penned by Chief Justice John Roberts, a 6-3 majority of the court agreed that Bush had overstepped his authority and that neither the Bush memo nor the ICJ ruling "constitutes directly enforceable federal law" that pre-empts state rules regarding criminal appeals. Indeed, the majority found that although a treaty may be considered an "international commitment," it is not "binding domestic law" unless Congress gives it that effect through enacting relevant statutes or the treaty is considered "self-executing" and is ratified as such.

The three-justice minority, however, led by Justice Stephen Breyer, is concerned that the Medellín decision would put in jeopardy 70 additional treaties the U.S. has agreed to and from which disputes are to be submitted for consideration by the ICJ. The court sidestepped the Constitution's Supremacy Clause – which says, in part, that all signed treaties "shall be the supreme Law of the Land" – by opining that the Suprem­acy Clause applies in U.S. dealings abroad but not domestically.

Roberts writes that the minority's concern isn't justified. Moreover, the majority opinion does not "call into question the ordinary enforcement of foreign judgements or international arbitral agreements," he wrote. "Indeed, we agree with Medel­lin that, as a general matter, 'an agreement to abide by the result' of an international adjudication ... can be a treaty obligation like any other," he continued, "so long as the agreement is consistent with the Constitution."

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