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Commentary: The Executive Power Question Might Not be the Most Important Aspect of Medellin

[NOTE:  This post adapted from a quick reaction posted over at Opinio Juris — please excuse the more-informal-than-usual, and somewhat contentious, tone.]   My very preliminary reaction, after having read only a bit of the opinion, is that the presidential power question might not be the most important aspect of the decision. That would be, instead, the Court’s interpretation of Article 94 of the U.N. Charter as merely imposing a future obligation on the U.S. federal political branches to do something to comply with its requirement — and not to impose any independent obligation on the United States, including Texas, to actually take steps to comply with an ICJ judgment. This strikes me as an implausible interpretation, and as potentially very troubling for construction of treaty obligations going forward.

The article reads that the U.S. “undertakes to comply with with the decision of the [ICJ] in any case to which it is a party.”

The Court reads this obligation not to actually require the United States and its component parts to actually comply with an ICJ decision. Indeed, it apparently permits Texas (part of the U.S., last time I checked) to intentionally refuse to comply with such a decision.

What will this sort of treaty interpretation portend for, say, article 16 of the CAT, which provides that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment”?” Apparently, that no longer means we are forbidden from intentionally inflicting such treatment on detainees — or so the Court’s reasoning appears to suggest.