International Law at Home: Enforcing Treaties in US Courts

While the landmark 2008 Supreme Court decision Medellin v. Texas upended the presumption that treaties creating private rights of action are self-executing, jeopardizing the judiciary's power to enforce several important international treaties, this Article explains why the Medellin decision does not sound the death knell for enforcement of treaties in U.S. courts. The Article begins by providing an account of the broader legal and historical context of Medellin-examining both the case law that led up to the decision and ways in which the lower courts have begun to respond to it. At the start of the twentieth century, the courts applied a strong presumption that treaties could be used by private litigants in court to press their claims. As international treaties-and international human rights treaties in particular-proliferated after World War II, however, the courts largely abandoned this presumption in favor of enforcement. In response to this development, the authors identify and discuss the variety of ways in which international law can be enforced in U.S. courts-through "indirect enforcement,” "defensive enforcement," and "interpretive enforcement"-that are often ignored in the scholarly literature about judicial enforcement of international law. With this broader historical and legal perspective in mind, the Article offers three proposals for addressing the uncertainty created by the Supreme Court: Congress could pass legislation providing for the judicial enforcement of some (or some subset) of Article II treaties; the Administration could adopt a clear statement rule, which the Legal Advisor's Office of the State Department would apply to newly concluded treaties; and the Administration could seek injunctions against state and municipal agencies that risk placing the United States in violation of a treaty obligation.