Monday, April 7, 2008
Having now carefully read the Medellin case, I have two more comments to make that relate to earlier posts on contracting with the U.S. government and the enforceability of international agreements as domestic law. Today, I will take up the first theme. The good news is that both the Medellin majority and the dissent agree that making it easy for third parties to predict when the U.S. will abide by its international obligations is a good thing. The bad news is that they come to different conclusions about how to facilitate U.S. cooperation in treaty regimes.
Justice Roberts, writing for the majority, chateracterizes the dissenting judges' approach to the issue of self-execution of treaties as entailing "an ad hoc judgment of the judiciary," which could result in differing outcomes even if the same international agreement was at issue in successive cases. Slip op. at 19. Justice Roberts rejects this approach:
It is hard to believe that the United States would enter into treaties that are sometimes enforceable and sometimes not. Such a treaty would be the equivalent of writing a blank check to the judiciary. Senators could never be quite sure what the treaties on which they were voting meant. Only a judge could say for sure and only at some future date. This uncertainty could hobble the United States' efforts to negotiate and sign international argreements.
Id. at 19-20 (majority opinion). Justice Breyer, writing in dissent, characterizes the majority as requiring language in a treaty specifying that the treaty is to be self-executing before it can be given direct effect as domestic law. Slip op. at 12 (Breyer, J., dissenting). After pointing out that few multilateral treaties would contain such language, since in some countries (e.g., the Netherlands) treaties concluded by the executive, are always given direct effect, even absent parliamentary approval, Justice Breyer gets a bit colorful:
In a word, for present purposes, the absence of presence of language in a treaty about a provision's self-execution proves nothing at all. At best the Court is hunting the snark. At worst it erects legalistic hurdles that can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.
Id. at 12-13. And there you have it. The Justices want to facilitate U.S. participation in international agreements, but each side is convinced that the other side's approach to the question of self-execution undermines such participation.
Tune in tomorrow for a discussion of why I am less certain than Michael Van Alstine and Antonin Pribetic that the self-executory nature of the CISG is beyond question.