Archive for the ‘treaty’ Category

Johanna Kalb on “Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism after Medellín”

November 28, 2011

I have previously posted on the U.S. Supreme Court decision in Medellin v. Texas here.

In a recent article entitled “Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism after Medellín”, Johanna Kalb at the Loyola University New Orleans College of Law, Penn State Law Review, Vol. 115, No. 4, 2011, examines the conditions under which state courts have engaged with the international human rights treaties the United States has signed or ratified, and considers whether and how these treaties will be affected by the Medellín decision. Kolb concludes that because state courts have been more receptive to arguments based on treaties as non-binding persuasive authority, even the broadest reading of the decision will not end this type of human rights advocacy.

A copy of the article is available for download on SSRN here.

Hannah L. Buxbaum, “Conflict of Laws Conventions and Their Reception in National Legal Systems: Report for the United States”

February 3, 2011

Hannah L. Buxbaum (Indiana University School of Law-Bloomington) has published the U.S. national report on “Conflict of Laws Conventions and Their Reception in National Legal Systems: Report for the United States” , THE IMPACT OF UNIFORM LAW ON NATIONAL LAW: LIMITS AND POSSIBILITIES, J. Sanchez Cordero, ed., 2010, prepared for the Intermediate Congress of the International Academy of Comparative Law held in 2008.

The abstract reads in part:

“…The report discusses the various mechanisms for implementation of conflict-of-laws conventions in the United States: through federal legislation, federal rulemaking and state legislation. It reviews the conflict-of-laws conventions to which the United States is party (including in the areas of family law and litigation procedure), as well as recent case-law under those conventions. It also examines relevant aspects of U.S. law on treaties, discussing the issue of self-executing versus non-self executing treaties within the particular context of private law conventions.”

The paper is available for download at SSRN here.

Jordan J. Paust on "Medellin, Avena, the Supremacy of Treaties and Relevant Executive Authority"

November 5, 2009
Jordan J. Paust, (University of Houston Law Center) has posted a new article on SSRN entitled: “Medellin, Avena, the Supremacy of Treaties and Relevant Executive Authority” , Suffolk Transnational Law Review, Vol. 31, p. 301, 2008/ U of Houston Law Center No. 2009-A-25. Here is the abstract:

The article addresses treaty-based obligations of the United States under the United Nations Charter to enforce a binding judgment of the International Court of Justice in Case Concerning Avena (Mexico v. United States) and U.S. Executive execution of the judgment through an executive memorandum – all of which the majority of the Supreme Court disagreed with in Medellin v. Texas (2008). The article also addresses important U.S. Constitutional issues concerning the Article II mandate to the President to faithfully execute the laws, the supremacy of all treaties against the laws of states within the U.S., federal preemption, and state power to comply with decisions of the International Court of Justice. In particular, the article addresses several Supreme Court opinions that were not addressed by the majority in Medellin and which demonstrate that the President has the competence, and responsibility, faithfully to execute treaties despite a statement in the majority opinion to the contrary. The article also documents why the Tenth Amendment is no barrier with respect to the reach of treaty law and documents numerous federal and state court cases on point as well as the many subjects regulated by treaty law that have had primacy over state authority.

When is a Treaty really a Treaty? New Article on Medellin v. Texas

August 16, 2009
When is a Treaty really a Treaty? That is the question posed in the United States Supreme Court decision in Medellin v. Texas on the nature of American sovereignty and its international law commitments. The U.S. Supreme Court held, in part, that “while a treaty may constitute an international commitment, it is not binding domestic law 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.”

There has been a considerable amount of academic commentary on whether the Medellin v. Texas decision has put the status of a number of existing U.S. treaties into question: see, Blawgosphere Covers Medellin v. Texas from Blawg’s Blog by Bill Gratsch .

In his new article, Law(Makers) of the Land: The Doctrine of Treaty Non-Self-Execution (Harvard Law Review, forthcoming), David H. Moore (Brigham Young University Law) takes up the gauntlet in reply to Carlos Manuel Vazquez’s article Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties. Here is the abstract:

This essay responds to Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008). Focusing on the authority of the lawmakers of the land, rather than on treaties’ status as law of the land as Professor Vázquez does, this essay concludes that the Foster brand of nonself-execution (which assumes that a treaty may, in the absence of a clear statament, indicate that the treaty is domestically unenforceable) is supported by the Constitution, consistent with longstanding precedent, a coherent part of the non-self-execution doctrine, and endorsed by the Supreme Court’s decision in Medellín v. Texas, 128 S. Ct. 1346 (2008).

From a Canadian perspective, due to Canada’s consitutional division of powers, there is no self-execution issue. In R. v. Hape, a Canadian Charter or Rights & Freedoms case with an international law element, the majority expressly approved the doctrine of adoption qua reception of customary international law into Canadian domestic law. While the recognition of Canada’s international law commitments is laudable, it is equally confusing; insofar as the majority’s reasons conflate conflict of laws (private international law) with public international law. Clearly, Canada has entered into various multilateral and bilateral conventions or treaties (some of which create reciprocal rights and duties between state-state or investor-state, while others create or promote private rights of action). In any case, all such international instruments are implemented domestically via legislation.

However, customary international law principles, such as universal jurisdiction or jus cogens remain elusive (e.g. Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675, leave to appeal refused, [2005] 1 S.C.R. vi). The line between custom and convention is not easily drawn, as in the case of domestic versus international (or transnational) public policy.

Perhaps the following excerpt offers a glimmer of clarity:

“68 Parliament has clear constitutional authority to pass legislation governing conduct by non-Canadians outside Canada. Its ability to pass extraterritorial legislation is informed by the binding customary principles of territorial sovereign equality and non-intervention, by the comity of nations, and by the limits of international law to the extent that they are not incompatible with domestic law. By virtue of parliamentary sovereignty, it is open to Parliament to enact legislation that is inconsistent with those principles, but in so doing it would violate international law and offend the comity of nations. However, in light of the foregoing discussion of the jurisdictional principles of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and this Court’s jurisprudence, Canadian law can be enforced in another country only with the consent of the host state.”

Readers may also be interested in an article by Armand de Mestral and Evan Fox-Decent entitled “Implementation and Reception: The Congeniality of Canada’s Legal Order to International Law” in THE GLOBALIZED RULE OF LAW: RELATIONSHIPS BETWEEN INTERNATIONAL AND DOMESTIC LAW, Oonagh Fitzgerald, et. al. eds., Irwin Law, 2006.

Antonin I. Pribetic


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