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February 26, 2005

Medellin v. Dretke: The Treaty Power and U.S. COurts

The WSJ yesterday had an op-ed on Medellin v. Dretke which Julian Ku comments on (via VC). A Mexican was convicted of murder in Texas. The police, contrary to a treat the US had signed, had not told him he could talk to his consul. The matter was brought to a foreign court, the ICJ, which said that the Mexican and about 40 others had to be retried. The question before the U.S. Supreme Court is whether this order should be carried out.

This is crazy stuff. Here are two reasons not mentioned in the WSJ op-ed. First. the U.S. violates this part of the treaty routinely. There are literally tens of thousands of foreigners in prison who were not informed they could see their consul, ordinarily because they wouldn't do it even if they were informed. Is the proper remedy to go to the expense of retrying them all? -- Only if you are a foreign court that cares more about politics than common sense. Second, this violates separation of powers in a big way. Treaties are ratified only by the Senate, not by the House of Representatives, and state criminal laws are made by state legislatures interpreted by state supreme courts, not the U.S. Supreme Court or some foreign court. If the Senate can ratify a treaty that regulates criminal procedure, then it can bypass getting 50% of the House to vote for the bill. Also, it can bypass the state governments (and federal courts) and give control to a foreign court. In fact, the Senate could arrange for a foreign court to be especially made for the occasion, composed of members of the Senate on holiday in Geneva.

Here's how it could work. 1. The President and Senate make a treaty with Haiti saying that any legal dispute involving corporations partly owned by Haitians will be tried in the new SuperFair Court of Universal Justice in Geneva. 2. A helpful Haitian citizen buys one share of each U.S. corporation. 3. The SCUJ is set up, with membership consisting of the members of the U.S. Senate, ex officio, plus one Haitian judge. Bingo! We've exempted corporations from U.S. law.

Here's some info on Meddelin from a pro-ICJ amicus brief:

The Vienna Convention provides that foreign nationals must be informed of their right to communicate with consular officials when they are arrested or detained in any manner. Vienna Convention, art. 36, para. 1. ...

Significantly, the United States has also signed and ratified the Optional Protocol to the Vienna Convention. By doing so, it recognized that the ICJ’s "interpretation or application of the Convention" is authoritative. Optional Protocol, Preamble; art. I.

Posted by erasmuse at February 26, 2005 11:34 AM

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