Judge Diane Wood speaks on role of international law in U.S. courts Nov. 5

November 6, 2007Duke Law News

November 6, 2007 ― Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit addressed the role of international law in U.S. courts when she spoke at the Law School on Nov. 5, paying particular attention to Medellin v. Texas, currently under consideration by the Supreme Court. The event was sponsored by the Center for International and Comparative Law.

While international law, including that created by treaties and other international agreements, is frequently used in U.S. courts without challenge, other uses are fraught with controversy said Wood, a former professor of international law and dean of the University of Chicago Law School. Much of it has centered on the use of international law in interpreting the Constitution, particularly the Eighth Amendment, she observed. “What does it really mean to say something is ‘cruel and unusual?’ Is there any place in the debate for international opinion and international law?” While some justices think there isn’t, others, like Justice Ginsburg, suggest that while international law is not dispositive, we should have “‘a decent respect for the opinions of humankind,’” she said.

Wood devoted much of her talk to an analysis of the issues at play in Medellin v. Texas, argued in the Supreme Court on Oct. 10, predicting that it will be significant in determining how international law fits into U.S. domestic procedures involving treaty interpretation.

The latest in a line of cases dealing with the Vienna Convention on Consular Relations, Medellin specifically deals with a guarantee in Convention Article 36 that states a foreign national who is arrested must be told by arresting authorities that he has the right to contact his national consulate and can request them to make that consular contact on his behalf.

Petitioned by Mexico on behalf of 51 Mexican nationals arrested in the United States, including Medellin who was convicted of capital murder in Texas, the International Court of Justice (ICJ) ruled that Article 36 confers individual rights on those arrested, and ordered the U.S. to determine a process for reconsidering their claims; the United States, under the “optional protocol” of the Vienna Convention, accepted the jurisdiction of the International Court of Justice (ICJ) to adjudicate Convention disputes.

While President Bush issued a statement indicating that the United States would comply with the ICJ decision, he withdrew the U.S. from the optional protocol going forward, explained Wood.

The Texas Court of Criminal Appeals declined to comply with the president’s order, arguing that the U.S. is not bound by the ICJ decision on the grounds that it is inconsistent with an earlier Supreme Court ruling in Sanchez-Llamas v. Oregon.

Although Medellin raises the question of whether the Supreme Court must yield to the ICJ’s interpretation of Article 36, Wood suggested that it might be more appropriate to think of the case as being about the dispute resolution procedure and the duty to give effect to the ICJ judgment — analogous to arbitration agreements.

“The U.S. is party to countless treaties in which we agree that if a dispute comes up between the U.S. and another party, we’ll arbitrate it,” she explained. “If a court is deciding whether to enforce an arbitration award, you aren’t re-evaluating the underlying merits of the case, but doing something different, [asking], ‘Was there an agreement to arbitrate? Was this within the scope of the agreement? Is there some overriding public policy reason that you should refuse to enforce it?’

“The case itself is a very good illustration of an important question of international law … [and] will tell us a lot about how international dispute resolution is going to plug into U.S. court proceedings in the future,” said Wood. “Justice Breyer pointed out that the U.S. is part of lots of treaties and multilateral conventions in which we promise to participate in dispute resolutions in front of various international bodies. If the Medellin case comes out in a way that suggests we aren’t going to comply unless we feel like it, there’s a cost to such a decision.”

A webcast of Judge Wood’s talk is available at www.law.duke.edu/webcast.
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