In many respects, it has been a quiet term on the Supreme Court.  However, on March 25, the Supreme Court announced its decision in Medellin v. Texas.  It is a complicated case, but an intriguing one, for lawyers at least, and one with significant ramifications.

The facts of the case concerned whether 51 Mexican nationals arrested, tried and convicted in the were denied their rights because they were not informed of rights under the Vienna Convention.  The Vienna Convention is a treaty to which the United States is a party.  It provides, in essence, that a country that detains a foreign national shall (a) inform the diplomatic representatives of that person’s country that he has been detained, and (b) inform the detainee that he has a right to assistance therefrom.  Those provisions were not followed in this case.

After failing on one habeas corpus petition, , who had been convicted of murder, filed another habeas corpus petition based upon the failure to supply Vienna Convention information.  However, law governing challenges to criminal convictions (“state default rules”) did not permit the filing of such a second habeas petition, and it was dismissed.  

In the meantime, the International Court of Justice (“ICJ”), which sits in in the , ruled that the had violated its obligations under the Vienna Convention on the ground set out above.  It held that the was obligated to review the convictions of the 51 Mexican nationals, including , regardless of state default rules.  Subsequently, the U.S. Supreme Court held that, contrary to the ICJ judgment, the Vienna Convention did not preclude the application of state default rules. Thereupon, President George Bush issued a memorandum stating that the would discharge its obligations under the Vienna Convention by having state courts give effect to the decision of the ICJ.

The issue in the Medellin case thus became whether a state court (in this instance, Texas) must apply the decision of the ICJ as a “binding” interpretation of the Vienna Convention that would displace inconsistent laws of that state, and/or must defer to the President’s memorandum to the same effect.

The Supreme Court held that was not required to do so on either ground.

It may seem odd that a decision of a foreign court (ICJ) was involved at all.  We think of foreign courts as dealing with foreign law.  However, our Constitution says that treaties are also “the supreme law of the land”.  Along with federal laws and the Constitution itself, they displace or “overturn” or pre-empt inconsistent state laws.  Thus, some body must determine the meaning of a treaty that is operative in the   Signers of the treaty (including the ) agreed, in effect, this would be the ICJ.     

So it might seem the result would be straight-forward, i.e., since the ICJ determined the meaning of the Vienna Convention and the agreed that the ICJ was entitled to do so, the should apply the ICJ’s interpretation in the However, that line of reasoning ignores the fact that treaties have what we might call a horizontal dimension and a vertical dimension.  On the horizontal is the relation between sovereign states.  What that means is this: one nation can complain against another, since each is a party; they are bound on the horizontal dimension, i.e., the as a nation state is bound by the ICJ decision.  However, there is a second question: do, and if so how, the terms of the treaty apply within the state itself?  That is the vertical dimension. 

With non-self-executing treaties, the US Congress would have to enact laws “executing” or putting-into-effect the provisions of the treaty.  (If it failed to do so, the might be in breach of obligations under the Vienna Convention, but that would not alter the laws in

However, some treaties are “self-executing,” that is, they immediately become law in all parts of a country which ratifies the treaty; they do not require the government to pass laws implementing them.  The big question in was how to determine whether a treaty was self-executing or not. 

The Supreme Court held that to be self-executing, a treaty must say so clearly.  Since the Vienna Convention did not clearly say it was, it was not.  A demand by the President to the states (including ) that it be treated as if it were was, thus, without effect.

The treaty-making power, under our Constitution, resides with the President and the Senate.  The effect of the decision is to require that matters be clear.  If Congress or the President wants to change the law by ratifying a treaty, they will have to tell the American people they intend to do so.  The people are then on notice.  They can tell their Senate representatives not to ratify such a treaty, or to ratify it. 

Neither the President nor the Congress should be able to change law by stealth, as it were, through the ratification of a treaty, unless they have the courage to convince the American people the law should be changed.  If the Congress or the President thinks we need a treaty on global warming, for example, they should be obligated – in conformity with democratic principles – to let the people know if and how doing so will change US laws.  If the people agree that it is a good idea, they will urge their Senators to ratify the self-executing treaty.  Likewise, if the treaty, Congress and the President have only deferred their obligation.  Congress will have to consider passing laws to implement the treaty.  Once again, they will have to convince the people that doing so is a good idea.

This is all good for democracy.  It ensures the does not enter into international treaty obligations that its citizens do not support.  US citizens, in turn, need to be on their toes.  Since treaties are the supreme law of the land, they should consider carefully which ones the should ratify.  I believe the effect of is that they will be given an opportunity to do just that.