Archive for the ‘self-executing’ 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.

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.

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