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Monday, February 21, 2005

Medellin debate

An interesting case that might pertain to how Medellin comes out is Olympic Airways v. Husain, 540 US 644. In this case, Justice Scalia dissented, joined by Justice O'Connor. In dissent he wrote,
"We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently."
"This sudden insularity is striking, since the Court in recent years has canvassed the prevailing law in other nations (at least Western European nations) to determine the meaning of an American Constitution that those nations had no part in framing and that those nations' courts have no role in enforcing. See Atkins v. Virginia, 536 U.S. 304, (whether the Eighth Amendment prohibits execution of the mentally retarded); Lawrence v. Texas, 539 U.S. 558 (whether the Fourteenth Amendment prohibits the criminalization of homosexual conduct). One would have thought that foreign courts' interpretations of a treaty that their governments adopted jointly with ours, and that they have an actual role in applying, would be (to put it mildly) all the more relevant.
The Court's new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today's holding. Because the Court offers no convincing explanation why these cases should not be followed, I respectfully dissent."
I thought I would just throw out this case as we begin to listen to the Medellin debate. One difference in the Medellin case is that the "authoritative" interpretation was made by the ICJ; the ICJ is not really a sister signatory as much as an organ created by the treaty. How much this ultimately matters, I haven't fully thought out. Another difference that has to matter is that the Beard case has already possibly settled the issue here, whether the ICJ must recognize rules of procedural default. That is to say, this is not a question of first impression: the real issue is whether the ICJ ruling can alter a previous Supreme Court ruling. I think that put thus, Scalia's Olympia dissent can be adequately distinguished from the present case.


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