Osminin B.I. Impact of the Decision of the U.S. Supreme Court Medellin v. Texas on the Implementation of International Treaty Obligations of the United States

Abstract: The US Constitution (art. VI) states that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”. Early in the country history, the U.S. Supreme court distinguished between treaties “equivalent to an act of legislature” – and therefore enforceable in the courts – and those “the legislature should execute” – meaning they could not be enforced in the courts until implemented by Congress and the President. The Supreme court addressed the self-execution doctrine at some length in its 2008 decision, Medellin v. Texas. In 2004 the International Court of Justice found that the United States had violated art. 36 of the Vienna convention on consular relations by failing to inform 51 Mexican nationals of their rights to have their consulate notified of the arrest. The Supreme court held that this judgment is not directly enforceable as domestic law. While a treaty may constitute an international commitment it is not binding domestic law, the Court said, unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis. None of the relevant treaties creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted. The opinion of the Supreme court leaves unclear whether a non-self-executing treaty is merely judicially unenforceable, or whether it more broadly lacks the status of domestic law. This could call into question the status of many existing bilateral and multilateral treaties for which there is neither domestic implementing legislation nor a clear record that they are self-executing.

Keywords: