More Medellin Musings

Justice Breyer's dissent in Medellin v. Texas provides textual, historical and practical grounds to reject the majority's presumption that, absent language to the contrary, a treaty should be deemed non-self-executing. As I noted yesterday (here), Breyer's best point is a straightforward reading of the Supremacy Clause, which makes treaties "the supreme Law of the Land." But in addition to the points made by Justice Breyer, another argument has been advanced by critics of the Medellin ruling. Here is what my colleague Lori Damrosch, quoted in USA Today, had to say:
The court admits that the international judgment is binding on the United States in international law, but it does not accept that the courts of Texas are bound to carry it out. ... This perplexing result will make it more difficult for the United States to insist on compliance by other states … under the Vienna Convention and under the provisions of at least 70 other (comparable) treaties.
Why is this a "perplexing result?" As even Justice Breyer's dissent explains, many other countries treat treaties as non-self-executing as well. Quoting Justice Story, Breyer explains that our Supremacy Clause marked a change from British practice. So, while one can agree with Breyer that Medellin wrongly interprets the U.S. law of foreign relations, that shouldn't make the result perplexing to other countries.

Professor Damrosch is probably right that the bottom line in Medellin will make it more difficult to extract reciprocal compliance from other signatories to the Vienna Convention and comparable treaties. But presumably that's because Congress has failed to enact implementing legislation, not because the Court has required it to do so. And that points to the real problem here: The absence of implementing legislation for many treaties that would, under the majority test in Medellin, require implementing legislation, means that the U.S. is probably in breach of its treaty obligations to a much greater extent than its treaty partners. In countries in which it was generally known that treaties required implementing legislation, we can expect a practice of consistently enacting such implementing legislation to have arisen. The U.S., lacking such a practice, is thus now more likely to be in breach.

What can Congress do? Justice Breyer says in his Medellin dissent that it can't simply adopt a rule implementing all ICJ rulings, because some of them will be sufficiently sensitive that they shouldn't be self-executing. Perhaps, but consider as an alternative a rule of treaty construction, to be codified as an amendment to the Dictionary Act (1 U.S.C. sec. 1, et seq), providing as follows: "Treaties shall be presumed to be self-executing, unless the express text or subject matter and context as a whole make them inappropriate for self-execution."

Posted by Mike Dorf