Tag: international law

Victims Of Indifference

Megan McArdle notes the tragic situation in Zimbabwe and how the preservation of “sovereignty” is getting in the way of actually doing something for the people of Zimbabwe.

The sad reality of the situation is that just about the only way to fix the situation is to put a bullet in Robert Mugabe’s head and start from scratch. Of course, that isn’t going to happen. Zimbabwe, like Burma and other hellholes are allowed to fester because it is in virtually no one’s self interest to do a damn thing to help.

The tragedy in Zimbabwe will continue so long as Mugabe continues to remain in power—and if he dies, his cronies will likely rip the country apart in brutal internecine warfare in the quest to succeed him.

It would be wonderful if there were a global peacekeeping force to deal with situations like this—ostensibly, that’s what the UN is supposed to do, but they are too incompetent and corrupt to be trusted with the job. If you doubt that proposition, visit Srebrenica sometime and see how well the UN had done there.

We like to say that as a world community we stand strongly against genocide. The sad truth is that we just let it happen. All our international law and lofty principles mean nothing if they are never applied.

Medellin, International Law, And The Supreme Court

The SCOTUSblog has some interesting discussion of the recent Medellin v. Texas decision by the Supreme Court. The Bush Administration sought review of a Texas inmate’s death sentence after the Mexican government demanded that the government follow a decision by the International Court of Justice in the Hague.

The popular press is spinning the result as a defeat for the Bush Administration, which may be technically correct, but that misses the point. For one, it’s a defeat for Bush trying to put a stop to an execution in Texas, which seems a little out of character, and secondly the more important legal question has to do with how federal courts should interpret international law.

The International Court of Justice held in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 that the US had violated the Vienna Convention on Consular Relations by not informing 51 Mexican nationals in US jails of their rights under the Vienna Convention. The Court, in another case, found the opposite—that the Convention was not violated and that the states could use their own rules. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The Bush Administration issued an executive order that told the states to uphold the ICJ’s Avena decision.

The Court, quite rightly, rejected this approach. Chief Justice Roberts’ decision makes it quite clear that unless Congress has said otherwise, ICJ cases like Avena do not have the force of federal law. In 1985, the United States exercised its rights under the Optional Protocol to the Vienna Convention and did not consent to the jurisdiction of the International Court of Justice.

This may seem a bit confusing, as individuals can’t opt out of laws in the United States, but these sorts of arrangements are common in international law. States can consent or not to the jurisdiction of the International Court of Justice under the Vienna Convention, or they can also pick and choose what categories of cases it will choose to follow based on different treaties. Originally, the U.S. chose to submit to the ICJ on Vienna Convention claims, but in 2005 the U.S. opted out of those claims.

Chief Justice Roberts gets to the meat of the issue here:

No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

The Court held that this was not such a case, and that unless Congress explicitly says that the Avena decision is also federal law, the Bush Administration can’t force the states to follow it.

What’s interesting about this case is how it’s vastly different from how we think of the Court operating. The “conservative” Justices voted against the Bush Administration, along with Justice Stevens. The “liberal” Justices voted to uphold the Bush Administration’s decision. It just goes to show how the whole “liberal/conservative” makeup of the Court really isn’t that accurate. Justice Scalia, the bête noir of liberal interest groups hammered the Bush Administration over detainee rights in Hamdan. In several criminal law cases, you find Justices Scalia and Ginsberg on the same page agreeing on the limitations on police discretion.

The Court is a lot more complex than people seem to think, and even a truly controversial case like Bush v. Gore is not as straightforward as people think. Cases like Medellin exhibit how our usual preconceptions of the Court don’t always match the reality. For as much as we talk about the politicization of the Supreme Court, the “conservative” Justices are hardly lapdogs for Republican Administrations, and the “liberal” justices are not always attack dogs either. The real question is how the individual Members of the Court interpret the law, and Medellin is a case where a strict construction of precedent goes against the Bush Administration and a “liberal” reading of federal law would support it.