An important emerging research issue in the area of treaties is underscored by this recent IL Post from the American Society of International Law. The issue is of equal interest to the practicing bar; an excerpt of the Society's announcement of a new task force on the issue is posted as follows:
"On March 25, 2008, the Supreme Court held in Medellin v. Texas that the International Court of Justice's March 31, 2004, Judgment in the Case Concerning Avena and Other Mexican Nationals, while creating an international legal obligation applicable to the United States, does not create binding federal law enforceable in U.S. courts and that the President does not have the constitutional authority to mandate that a state comply. Medellin appears to merge the question of whether a treaty is enforceable in federal court with the question of whether that treaty is binding federal law, stating that non-self-executing treaties are neither. ...Medellin suggests that if it cannot be clearly determined that Congress understood the treaty in question to be self-executing when providing advice and consent to ratification, the treaty will be considered non-self-executing and will not be treated as U.S. domestic law. This could call into question the status not only of treaties with binding ICJ dispute settlement clauses, but also of many other existing
bilateral and multilateral treaties for which there is neither domestic implementing legislation nor a clear record that they are self-executing."
The post goes on to state that the aim of the Task Force on Treaties in U.S. Law will be to examine existing treaties regarding their status and to consider possible executive or legislative actions that might be advisable to clarify their status and that of future treaties.
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