Medellin Stands Alone: Common Law Nations Do Not Show a Shared Postratification Understanding of the ICJ

Abstract

The International Court of Justice (ICJ) and the United States Supreme Court have reached a fundamental disagreement without a resolution. Recently, the ICJ has heard a series of cases that relate to the Vienna Convention on Consular Relations (VCCR), and how it is implemented by the United States and specifically by American courts. The Supreme Court, meanwhile, has heard a series of cases that relate both to the issue of American implementation of the VCCR and the authority that ICJ rulings have in American domestic courts. The central issue in this struggle-one that has ignited fierce debate in American legal circles-is not what rights and duties are actually owed under the VCCR, but a broader question of how American courts should respond to the decisions of the ICJ. Are ICJ decisions merely persuasive authority (i.e., equivalent to a law review article that courts should follow if its logic is persuasive, but reject if it is unconvincing) or are they binding on American courts the way the ruling of a higher domestic court would be (i.e., where the ICJ has spoken authoritatively on a specific issue in a specific case, the domestic courts could not consider the logic or persuasiveness of the opinion but merely implement it as faithfully as possible)? This question was recently answered for American purposes in the 2008 Supreme Court case Medellin v. Texas.