Course Notes – IL: Medellín and Self-Executing Treaties,

Opinio Juris has had a nice discussion this week on the exact subject we discussed yesterday and will continue to discuss next week: the relationship between international law and US law. The symposium is all online:

Opinio Juris/Yale Journal of International Law Symposium: Hathaway, McElroy, and Solow on International at Home

Some highlights:

1. This begins with a discussion by Oona Hathaway, Sabria McElroy, and Sara Solow about their article: “International Law at Home: Enforcing Treaties in U.S. Courts.” Much of that discussion focusses on the Medellín case we read about. Specifically, they aim to understand how that decision impacts the enforcement of international law in U.S. courts and they offer proposals for strengthening enforcement of international law.

2. Sloss argues for a different interpretation of Medellin, and in particular the sentence in the decision that says there is a “background presumption…that [treaties] … do not create private rights or provide a private cause of action in domestic courts.” He summarizes his argument:

“In sum, it appears that very little has changed since Medellín. Before Medellín, US courts vigorously enforced transnational treaty provisions, but they were hesitant to enforce vertical treaty provisions. After Medellín, US courts are arguably more reluctant to enforce vertical treaty provisions, but their enthusiastic enforcement of transnational treaty provisions continues unabated.”

3. John Bellinger, part of the Secretary of State’s Advisory Committee on International Law, makes an interesting comment on how the Medellín decision surprised him:

“..it does not make much sense to me that the President [Bush] would order compliance with an ICJ decision knowing his order would be struck down. His order was decidedly unpopular in Texas and with conservatives, and he received little credit in the international community for his effort to comply with international law. To my knowledge, the President made his decision, based on the recommendation of his Secretary of State, because the U.S. is required under the U.N. Charter to comply with decisions of the ICJ and because demonstrating commitment to the Vienna Convention on Consular Relations (VCCR) would help protect Americans who are arrested in other countries”

4. Finally, and most recently,Vladek blogged on “Self-Execution Beyond Treaties”: Enforcement of both domestic and international obligations is becoming more problematic.

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