… the ICJ has interpreted the Vienna Convention to preclude the application of the procedural default rule to Article 36 claims. The LaGrand Case… and the Case Concerning Avena and other Mexican Nations… were brought to the ICJ by the governments of Germany and Mexico, respectively, on behalf of several of their nationals facing death sentences in the United States. The foreign governments claimed that their nationals had not been informed of their right to consular notification. They further argued that application of the procedural default rule to their nationals’ Vienna Convention claims failed to give “full effect” to the purposes of the Convention, as required by Article 36. The ICJ agreed, explaining that the defendants had procedurally defaulted their claims “because of the failure of the American authorities to comply with their obligation under Article 36.”… Application of the procedural default rule in such circumstances, the ICJ reasoned, “prevented [courts] from attaching any legal significance” to the fact that the violation of Article 36 kept the foreign governments from assisting in their nationals’ defense…
Under our Constitution, “[t]he judicial Power of the United States” is “bested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, Â§ 1. That “judicial Power… extend[s] to… Treaties.” Id Â§2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one supreme Court” established in the Constitution.
It’s not a slam dunk. An even cooler court would have gone farther in showing “leading international law scholars” that their goal of a Progressive Ulema is unachievable. Still, a large majority agreeing that ICJ rulings are not binding is a good thing.
Thank you, Supreme Court.