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A Texas-Sized Win for Texas in Medellin:

The Supreme Court handed down its decision in Medellin v. Texas today. Chief Justice Roberts wrote the majority opinion, which held that neither a judgment of the International court of Justice nor the President's executive order directing state courts to follow the ICJ's judgment constituted federal law that pre-empts a state's pre-existing bar on the litigation of subsequent habeas petitions. Justice Stevens concurred in the judgment, while Justice Breyer wrote a dissent on behalf of himself and Justices Souter and Ginsburg.

This appears to be quite a significant win for Texas (and states) that wil lhave significant ramifications for both separation of powers and the application of international law in U.S. courts. While I have yet to read the opinion, I think it is significant that C.J. Roberts wrote an opinion for a unified majority. There's no hair-splitting Kennedy concurrence here, nor is there an opinion from either Justice Thomas or Scalia complaining that the Chief made too many concessions.

Here's an early AP report on the decision. SCOTUSBlog has some instant reactions here and here. Opinio Juris is also hosting an insta-symposium on the decision that should fill up in the next few days. Time permitting, I'll have more once I've digested the case as well.

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Reflections on Medellin:

I haven't yet had a chance to closely study the Supreme Court's opinion in Medellin v. Texas. But so far I like what I see. The Court correctly held that treaties are not "self-executing" (enforceable in US courts without additional congressional action beyond the ratification of the treaty itself) unless the text of the treaty clearly indicates that. It also correctly rejected the Bush Administration's claim that the President could order the state of Texas to comply with the International Court of Justice's decision that it was required to set aside Medellin's death penalty conviction because it had failed to give him an opportunity to meet with representatives of the Mexican consulate.

The case involved a claim by Medellin (a Mexican national sentenced to death for committing a murder in Texas) that he wasn't informed of his right to notify a representative of his country's consulate under the Vienna Convention. The International Court of Justice ruled that the Texas as in violation of the convention, and the U.S. is required to "comply with the decision of the International Court of Justice in any case to which it is a party" under Article 94(1) of the United Nations Charter. In Medellin, the Supreme Court held that the UN Charter was not a "self-enforcing" treaty and therefore that federal courts couldn't order Texas to obey Article 94 in the absence of congressional legislation requiring such compliance.

I. Limiting the Use of International Law to Override Domestic Law.

As John McGinnis and I explain in this article, most multilateral treaties and other international law materials are produced by highly undemocratic processes in which authoritarian states and unaccountable political elites from democratic states play a dominant role. On average, the legal rules they establish are likely to be inferior to those created by the domestic lawmaking processes of democratic states. Therefore, it is essential that international law not be allowed to override our domestic law unless it has first been "screened" by the same democratic legislative process that the latter goes through. Otherwise, courts will end up enforcing international legal rules that are likely to be systematically inferior to the domestic rules they displace.

The Supreme Court's decision in effect requires that treaties can't be used to override American domestic law unless the treaties have first been clearly endorsed by our domestic democratic processes in a way that evidences an intention to have them be "self-enforcing." Otherwise, courts might end up enforcing treaties that the president and Senate ratified only because they expected them to be unenforceable exercises in public relations - "cheap talk," as political scientists call it. Obviously, "cheap talk" treaties are unlikely to get as much scrutiny from the democratic process as ones that are expected to be enforceable. Moreover, there is no true democratic validation of the treaty at all if courts interpret it to be binding in ways that the legislature and executive didn't expect at the time of ratification. As the Court shows, the Article 94 of the UN Charter was not expected to be self-enforcing by Congress and the president at the time it was ratified; nor is it treated as such by most other nations.

II. Another Defeat for the Bush Administration's Claims of Unlimited Executive Power.

The Court was even more clearly correct in rejecting the Bush Administration's argument that the president could order Texas to comply with the ICJ judgment even if Article 94 isn't self-enforcing. If the treaty isn't self-enforcing and Texas has no legal obligation to comply with it, the Constitution surely doesn't give the president the power to order Texas to comply merely because he thinks that it advances U.S. foreign policy interests. Apparently, all nine justices (including the three liberal dissenters on the self-enforcement issue) rejected the administration's position on this question. Both Bush appointees (Alito and Chief Justice Roberts) rejected the administration's claims even though they were surely chosen by Bush in part because of their presumed sympathy for broad interpretations of executive power.

This part of Medellin represents yet another nail in the coffin of the Bush Administration's claims that the executive has virtually unlimited power over foreign affairs. As I explained in this post, those claims are dubious even in the context of war and emergencies, where the executive's comparative advantages of secrecy and swift decision-making are of greatest importance. They have even less justification on other issues. Ironically, the Bush Administration's sweeping claims have led to a whole series of Supreme Court decisions rebuking the executive for overreaching and constraining its discretion more than it would have been had the administration taken a more moderate position in the first place. In this case, even John Yoo signed a law professors' amicus brief arguing that president's had exceeded his constitutional authority. If John - the developer of some of the Administration's broadest claims of executive power - thinks that the executive has overreached its constitutional authority on a foreign policy issue, that's a pretty good sign that it has.

Finally, for what it's worth, I think as a matter of policy that Texas and other states should indeed allow foreign nationals arrested on criminal charges to notify representatives of their consulate. Doing so promotes fairness to foreign criminal defendants and may make it easier for them to get adequate legal representation. It could be particularly valuable if the foreign nationals in question are unfamiliar with the US legal system, don't speak English, or both. Certainly, most Americans would want to be able to contact the US consulate if arrested while traveling abroad. But not every good policy is or should be imposed by federal law. The right approach here is for the states to reform their own laws. If necessary, foreign nations could pressure Texas to change its practices by denying Texans arrested in their jurisdiction the right to contact American consular representatives.

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Should the United States Obey the Decisions of the International Court of Justice?

The Supreme Court's refusal to force Texas to obey the International Court of Justice's decision in Medellin raises the more general issue of whether it is a good idea for the US to obey ICJ rulings that override US domestic law. Academics and others who defend the use of international law to displace domestic law argue that the US should pay greater deference to the ICJ.

In my view, there is little reason to believe that ICJ decisions are likely to establish better legal rules than those produced by our domestic law. As John McGinnis and I discuss in this article, the ICJ and other similar international courts are deeply suspect because most of their judges represent oppressive dictatorships or, at best, unaccountable elites from democratic states. This "democracy deficit" of ICJ rulings greatly reduces the chance that an ICJ decision overriding US law will impose a better rule than the one it displaces.

US law has many flaws, some of which I love to flog here on the VC. However, it is produced by a generally democratic political process that imposes at least modest checks on the power of elites. By contrast, many of the ICJ's judges are representatives of authoritarian or totalitarian governments. Among the court's current 15 menbers are 7 who represent authoritarian or dubiously democratic regimes, including judges from Russia, China, Jordan, Morocco, and Venezuela. In this 2004 paper, Eric Posner and Miguel de Figueiredo provide evidence showing that the ICJ's judges are biased in favor of their home country's interests and those of other states with similar ideologies and ethnic characteristics. Even the judges appointed from democratic states get their positions through highly nontransparent processes that have none of the checks and balances of, for example, the US Supreme Court nomination process. How many US lawyers (to say nothing of ordinary citizens) have even heard of Thomas Buergenthal, the American member of the ICJ?

The fact that the ICJ is composed of representatives of dictatorships and unnaccountable elites doesn't mean that all of its decisions are wrong or that it will never come up with good legal rules. On average, however, the legal rules established by a democratic process are likely to be superior to those promulgated by the minions of repressive regimes and unrepresentative legal elites who dominate the ICJ. In the human rights field in particular, representatives of dictatorships have strong incentives to promote rules that facilitate repression rather than freedom.

Despite the ICJ's institutional flaws, it might still be advantageous for the US to adhere to ICJ rulings in particular instances. For example, commitment to obeying ICJ decisions in a particular sphere might be necessary to obtain valuable concessions from other nations in a treaty negotiation process. However, the US and other democratic states should not obey the ICJ merely because of any independent legitimacy its decisions have or because those decisions supposedly constitute binding international law. Doing so is likely to saddle us with legal rules systematically inferior to the ones the domestic lawmaking system produces.

There is much to decry in contemporary American law. But greater fealty to the ICJ is unlikely to improve it.

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The U.N. "Human Rights Council" Again Urges Speech Suppression:

From a March 20, 2008 resolution:

The Human Rights Council ...

8. Urges States to take actions to prohibit the dissemination, including through political institutions and organizations, of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence;

9. Also urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of any religion, to take all possible measures to promote tolerance and respect for all religions and their value systems and to complement legal systems with intellectual and moral strategies to combat religious hatred and intolerance;

10. Emphasizes that respect of religions and their protection from contempt is an essential element conducive for the exercise by all of the right to freedom of thought, conscience and religion; ...

13. Reaffirms that general comment No. 15 of the Committee on the Elimination of Racial Discrimination, in which the Committee stipulates that the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the freedom of opinion and expression, is equally applicable to the question of incitement to religious hatred; ...

So prohibiting dissemination of ideas based upon religious superiority "is compatible with the freedom of opinion and expression"; I suppose that would include claims that Islam, Christianity, or whatever else is the one true religion that is correct while others are false. And states are supposed to "prohibit the dissemination ... of ... xenophobic ideas and material aimed at any religion or its followers that constitute incitement to racial and religious ... hostility"; I suppose that would include, for instance, condemnation of Scientology as fraud, or of Catholicism as oppressive, or for that matter of all religion as folly. And here I thought that freedom of thought, conscience and religion included the freedom to think and comment about all ideologies, including religious ones.

Here, by the way, was the voting breakdown:

Those in favour [21] included: Azerbaijan, Bangladesh, Cameroon, China, Cuba, Djibouti, Egypt, Indonesia, Jordan, Malaysia, Mali, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa and Sri Lanka. Those against [10] included: Canada, France, Germany, Italy, Netherlands, Romania, Slovenia, Switzerland, Ukraine and United Kingdom. A similar resolution has been passed since 2002. Abstentions (14): Bolivia, Brazil, Gabon, Ghana, Guatemala, India, Japan, Madagascar, Mauritius, Mexico, Peru, Republic of Korea, Uruguay and Zambia.

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The UN Human Rights Council and the Influence of Nondemocratic States on International Law:

Eugene's excellent post on the UN Human Rights Council's egregious resolution seeking to repress freedom of speech provides an example of a problem that John McGinnis and I have sought to highlight in our work on democracy and international law: the extensive influence repressive nondemocratic regimes on international law's contents. If you look at the list of nations supporting the resolution, it turns out that most of them are either outright dictatorships (such as China, Cuba, and Jordan) or authoritarian pseudo-democracies such as Russia. By my count, about 16-18 of the 21 nations voting for the resolution fall into one of these categories. In a vote limited to democratic states, the resolution would have lost overwhelmingly by at least a 2-1 margin (all 10 of the nations voting against it were democratic).

An international law norm supported primarily by dictatorships is not necessarily a bad one. On average, however, such norms are likely to be worse than those generated by the domestic legislative processes of democratic states and therefore should not be allowed to override them without prior ratification by those same democratic processes (as in the treaty ratification process in the United States).

We should be especially wary of nondemocratic states' influence in the field of human rights law, where these regimes have an obvious incentive to promote norms that legitimize their efforts at repressing their political opponents and staying in power. The resolution discussed in Eugene's post is a clear example. Repressive regimes seeking to suppress opposition groups can easily label their speech "racist," "xenophobic" or an incitement to "hatred," to use the terminology of the resolution; they could then argue that repressing such speech is just a case of enforcing international law. Although these regimes would probably engage in repression even without support from international law, obtaining such support gives their policies unwarranted legitimacy, and undermines international efforts to prevent them.

Unfortunately, many scholars and international law advocates argue that international law should be allowed to override the domestic law of democratic states in even absent formal ratification processes. To the extent that this occurs, our domestic law might be displaced by legal norms that serve the interests of brutal despots.

Most experts would concede that UN Human Rights Council Resolutions are not in and of themselves binding international law. However, as McGinnis and I discuss in our article, such resolutions do contribute to the formation of so-called "customary international law." It would be unfortunate if such "law" were allowed to displace domestic law - not because US law is especially good, but because this particular alternative is often far worse.

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Democracy and International Human Rights Law:

My new paper on "Democracy and Human Rights Law," coauthored with Northwestern law professor John McGinnis, is now available on SSRN. The paper - which is currently under submission to law reviews - continues our analysis of the implications of the undemocratic origins of much of modern international law, begun in our Stanford Law Review article last year. The paper is highly relevant to recent debates over the Medellin case, and the United Nations Human Rights Council's efforts to establish an international law norm restricting speech that supposedly "defames" religion. Here are some excerpts from the abstract:

The undemocratic origin of most international human rights law greatly reduces the desirability of allowing it to change the domestic law of democratic states. Most international law is made through highly undemocratic procedures. Thus, on average, the quality of what we call "raw" international law rules that have not been ratified by domestic democratic processes is likely to be lower than that of domestic legal rules established by liberal democracies....

Our article does not rest on theoretical arguments alone. We describe several concrete effects of the nondemocratic generation of international human rights law. For example, we show how the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potentially harmful international law norms in with respect to "hate speech," the "humanitarian" law of war, and comparable worth.

Nevertheless, our conclusions about international human rights law are not wholly negative. Our embrace of democratic processes as an effective generator of human rights . . . leads to a willingness to consider domestic enforcement of international human rights that directly strengthen citizens' control over government policy. We thus seek to reorient international human rights law from generating controversial substantive rights to protecting norms that will facilitate the leverage of citizens in controlling their own governments . . .

As we discuss in the paper, our position differs from the Bush Administration's view that adherence to human rights law (at least in wartime) should be at the virtually complete discretion of the executive. In our view, the executive is bound by domestic human rights restrictions imposed by the Constitution or by Congress and by international law duly ratified through the treaty ratification process in a way that indicates Congress' intent to impose an enforcable legal rule. However, the best way to address executive abuses is through judicial and congressional enforcement of US domestic law, not through imposition of unratified international law norms that are likely to be inferior to the domestic law they displace.

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