International Judicial Decisions, Domestic Courts, and the Foreign Affairs Power

Arthur Mark Weisburd

University of North Carolina (UNC) at Chapel Hill - School of Law


Cato Supreme Court Review, p. 287, 2004-2005
UNC Legal Studies Research Paper

On December 10, 2004, the United States Supreme Court granted certiorari in Medillin v. Dretke. The Court granted certiorari to address two questions: whether American courts were bound by the treaty interpretation in the judgment of the International Court of Justice (ICJ) in the Case Concerning Avena and Other Mexican Nationals (Avena) and, if not, whether American courts in any event should defer to the ICJ's treaty interpretation as a matter of comity and in the interest of uniformity. On February 28, 2005, however, the president issued a surprise memorandum order directing state courts to give effect to the ICJ's Avena judgment. On May 23, 2005, the Court dismissed the Medellin writ of certiorari as improvidently granted, explaining that its action was prompted by certain procedural problems with the case unrelated to treaty interpretation. Subsequently, Jose Emesto Medellin, the petitioner, has pursued a petition for habeas corpus in state court, relying both on the judgment of the ICJ in Avena and on President Bush's February memorandum directing state courts to give effect to Avena.

Medellin therefore has raised, without resolving, a particularly interesting question: whether the president, acting unilaterally pursuant to his foreign affairs power, can order states to alter their judicial procedures. The issue, while avoided by the justices this time, may well return to the Supreme Court, as the losing party at the state level may be unwilling to acquiesce in its loss.

If the Court has to revisit the case, it will face three related issues. The first is whether the ICJ correctly interpreted the Vienna Convention on Consular Relations (Consular Convention), the treaty at issue, in Avena and in the case on which Avena principally relied, the LaGrand Case (LaGrand). The second issue relates to that on which certiorari was granted in Medellin: under relevant treaties, what degree of respect is the Supreme Court obliged to accord to the ICJ decisions in Avena and LaGrand. Finally, and most fundamentally, Medellin's reliance on the president's memorandum in his state court habeas corpus action may give the Court an opportunity to consider whether the president's authority over foreign affairs extends to directing a state to reopen a case in which a final judgment has been rendered when the president believes that such an action would serve American foreign policy interests, even if that action is not clearly required by treaty. This issue is particularly interesting not only because it raises important questions about the president's foreign affairs power and federalism, but because the United States, in its amicus brief in Medellin, rightly took the position that the ICJ misinterpreted the Consular Convention and that American courts had, in any event, no obligation to defer to the ICJ's judgment.

This article will first detail the facts in this matter, and then address each of the three key issues in turn.

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Date posted: March 23, 2013  

Suggested Citation

Weisburd, Mark, International Judicial Decisions, Domestic Courts, and the Foreign Affairs Power (2004). Cato Supreme Court Review, p. 287, 2004-2005; UNC Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=2237684

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Arthur Mark Weisburd (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-8515 (Phone)
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