This morning’s decision in Medellin v. Texas is the culmination of a long line of cases, both at the ICJ and at the Supreme Court, that have attempted to determine the effect that an ICJ ruling has under U.S. domestic law. In the law review comment I am working on, I have approached this problem from the perspective of trying to doctrinally resolve the Medellin line of cases with the Supreme Court’s decision in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985). In Mitsubishi, the Court determined that parties to an international commercial contract that appointed a third-party arbitrator would, absent an entirely egregious result, be bound to the decision of the arbitrator, even if such a decision is not the same result as what would be achieved in the courts. Thus, I wondered why it might not be possible for states to take a similar approach and appoint a third party arbitrator (such as the ICJ) to resolve disputes arising under a treaty (a contract between states).
The Supreme Court in Breard and Sanchez-Llamas seemed to be hostile to the idea of allowing the ICJ such a power. Thus, I anticipated that the decision in Medellin would limit the power of the ICJ to create a binding obligation. My prediction last week was that the Court would determine that while the ICJ had the power under the treaties to decide that the US had breached an obligation to Mexico or to other states and perhaps order damages, it would not allow the ICJ the power to order compliance measures that would have any effect under federal law. While this would be an unsatisfying answer (it is clear to most that the ICJ’s powers are not limited to award of damages), this was in some way reconcilable with Mitsubishi, since international third-party arbitrators are limited to awarding damages (and thus do not have the power to order a party to comply with the contract, only to determine that a breach has occurred.
My prediction, I think, was fairly close. I predicted it would be 5-4, though in fact it was 5-3 with a narrow concurrence by Stevens. The court did find that there is an international obligation, but declined to allow the ICJ to dictate the terms upon which it should be complied with domestically without some further action by the legislature. My initial reaction is that that approach is easily reconcilable with the approach taken in Mitsubishi. The opinion expressly notes that it is undisputed that the ICJ decision is an international legal obligation of the United States (p.8). The subsequent question is that if we accept that the US has this obligation, what needs to be done? Petitioner argued that nothing needs to be done, and that the domestic courts now have the power and obligation to enforce the judgment. The Solicitor General argued that nothing needs to be done until the President says what should be done. The Court rejected both of those approaches, and determined that compliance with our international legal obligation in this case requires some action on the part of the legislature.
Others, I’m sure, will debate the merits of whether the determination that nothing in either the Optional Protocol or Article 94 of the UN Charter creates a self-executing obligation under federal law. I think that there are good arguments to be made on either side of that debate. But the question of whether the judgment is a binding legal obligation is clear. The only question left domestically is: who is responsible for enforcing that obligation? The Court seems to state that it cannot be the judiciary acting alone, nor the executive acting alone. Thus, this problem is put squarely in the legislature’s lap (whether the federal Congress, or the state legislatures). For those concerned with constitutional overstepping of the President and/or the judiciary, this is a superb result. And even for those of us who are committed internationalists and would like to see a greater acceptance of international tribunals, this decision is not problematic. In a sense, it is a reaffirmation of the international obligation we have under the treaties, and merely concerns itself with the internal steps we must take in order to comply.