The Supreme Court issued an important opinion today. The case involved a convicted murderer who is a Mexican national. The police failed to notify him of his right to consult with the Mexican consulate, and his lawyer failed to raise the issue at trial. The issue was raised on appeal, and after a convoluted path through state and federal courts, the conviction was upheld.
In the meantime, however, the UN’s International Court of Justice (ICJ) issued a ruling that required the United States:
to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals.
In response, President Bush issued a memorandum ordering the Texas courts to review the case in line with the ICJ’s ruling. The Texas courts declined to do so, and the Supreme Court took up the case.
At issue were two questions: (1) does the ICJ’s decision constitute enforceable domestic law, and (2) does the President have the power to issue orders to state courts in accordance with that decision? The Supreme Court answered no to both.
For anyone concerned about our nation’s sovereignty, this was the preferred decision. (Last October, Ramesh Ponnuru made a strong case for today’s outcome.) However, legally it seems to have been a close call, hinging on whether the precise wording of the ICJ treaty made it “self-executing.” There’s a limit, then, to how much solace we can take from this decision. We need to stay vigilant.
UPDATE: The key bit seems to be on pages 8 and 9 of the decision. There is a distinction dating back to the Marshall court between treaties that are self-executing, and ones that are merely commitments to act:
In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.”
Lawyers probably knew all this already, but it was new to me. (ASIDE: The decision cites The Federalist #33, which is very interesting in light of our government’s consideration of treaties that infringe our individual liberties.)
The decision then goes on to consider whether or not the relevant treaties are self-executing. It begins thus: “The interpretation of a treaty, like the interpretation of a statute, begins with its text.” (I think I’m going to like the Roberts court.) It continues:
The [Optional Protocol to the Vienna Convention] provides: “Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice.” . . . Of course, submitting to jurisdiction and agreeing to be bound are two different things.
They go on to find that the text of the Protocol is more naturally read as “a bare grant of jurisdiction.”