Wednesday, May 20, 2009
The Connecticut Journal of International Law has published an article by my co-editor, Professor Cindy Buys, on improving how the United States implements its international obligations. Here's the description from SSRN (from which you can also download the entire article for free):
The United States is a party to hundreds of treaties that create a vast array of international obligations for the country. Many of these treaty obligations require some action by the government to become effective in the U.S. legal system. Domestic implementation of these international obligations has created structural tensions, both between the branches of the federal government and between the states and the federal government. This article uses President Bush's efforts to implement the recent judgment of the International Court of Justice (ICJ) in the Case Concerning Avena and Other Mexican Nationals (Avena) to illustrate some of the problems presented by this issue.
In Avena, the ICJ found that that the United States had breached its obligations under the Vienna Convention on Consular Relations to inform certain Mexican nationals who had been arrested in the United States of their consular notification rights. The ICJ further found that the appropriate reparation would consist of providing, by means of the United States' own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the case. In the domestic implementation stage of that decision, President Bush asserted the power to order state courts to provide review and reconsideration of the Mexican nationals' judgments in state criminal proceedings. The President's claim to such authority is troubling because it appears to violate structural principles of separation of powers and federalism.
The article begins by providing some background regarding the Avena judgment and post-Avena litigation, with a particular focus on Medellin v. Texas. Medellin was one of the Mexican nationals involved in Avena and his case was decided by the U.S. Supreme Court in March 2008. The article analyzes the strengths and weaknesses of arguments that have been made in that case regarding the proper method of implementation of the ICJ judgment by the United States. The article then places that litigation in the larger context of the debate regarding the proper role of each branch of the federal government with respect to the implementation of the United States' international obligations more generally. The article also examines the issue from a federalism perspective and the interplay between the state and federal governments with respect to implementation of the United States' international obligations. Finally, the article provides some suggestions as to how the United States can better handle implementation of these obligations in the future.