The Supreme Court has answered that age old question, when is a treaty not a treaty, in its decision in Medellin v. Texas.  While the  lawprofs are in  agreement that it is a sound decision on a technical issue about self-effective treaties, this decision reflects dangerous policy that stands to put Americans abroad at risk.  The facts of the case are set forth here.

The question is when is a treaty a treaty?  The Constitution puts the authority to enter treaties with foreign nations in the hands of the President with the approval of the Senate.  It strikes me that this is a sound approach, but regardless of whether you believe this is an undemocratic process, it’s what the Constitution provides.  America thinks it has a deal.  The foreign nation thinks it has a deal.  Both treat each other, and their citizens, as if it has a deal, assuming that both sides act in good faith.  We hope that they do.

But this decision tells us that our treaties need no longer apply, at least to the states in the execution of their domestic law, unless the treaty is “self-enforcing”.

The Supreme Court’s decision in effect requires that treaties can’t be used to override American domestic law unless the treaties have first been clearly endorsed by our domestic democratic processes in a way that evidences an intention to have them be “self-enforcing.” Otherwise, courts might end up enforcing treaties that the president and Senate ratified only because they expected them to be unenforceable exercises in public relations – “cheap talk,” as political scientists call it. Obviously, “cheap talk” treaties are unlikely to get as much scrutiny from the democratic process as ones that are expected to be enforceable.

We have “cheap talk” treaties?  Why?  What purpose is our government serving by entering into treaties that no one ever intends to live with?

While the democratization of our treaty process is a matter to be taken up internally if it bothers Americans, in the meantime our country has cut deals with other countries.  In this instance, it was a deal to allow foreign nationals the opportunity to contact their country’s representative when they’ve been arrested. 

I want that for Americans abroad too.  I do not want Americans in some third world country held in secret prisons, unable to reach the consulate and obtain assistance, or even let their family know they are alive.  I do not want Americans disappearing in foreign nations, never to be heard from again.  The price of giving Medellin a new trial on a murder charge is hardly worth the lives of Americans in foreign lands suffering an unknown fate because the treaty our country, our President, our Senate, agreed upon is now only good for toilet paper.

While the Constitution proclaims a duly enacted treaty to be the Supreme Law, it does not contain an asterisk to a footnote that includes the proviso, “but only if it is ‘self-enforcing.”  I’ve read a handful of explanations of what this is supposed to mean, and the best understanding comes from SCOTUSBlog :

Perhaps the most striking aspect of today’s Medellin decision was the Court’s professed willingness to defer to Congress when it comes to deciding which decisions of foreign tribunals are binding on U.S. courts. The majority stated that it would have been quite willing to be bound by the International Court of Justice’s determination of U.S. obligations under the Vienna Convention, if Congress had decreed that U.S. courts should be so bound.

In other words, first a treaty is negotiated, approved by the Senate and signed by the President.  They hold a photo-op and everybody smiles.  Then it’s up to Congress, if and when it gets around to it, to decide whether the treaty means anything to the United States.  The Supremes have decided that this one extra step is needed before we are internally bound to live up to our treaties.

From a legalistic standpoint, the Supreme Court’s decision may well be right.  Since I’m hardly a scholar on the subject, I can’t say.  But from a policy perspective, this is just a foolish, counterproductive and potentially dangerous way to conduct international relations. 

If the United States does not intend to adhere to its treaties, then don’t enter them.  If we enter a treaty with a foreign nation, then it ought to mean something.  If a secondary approval procedure, beyond that of the Constitution is necessary to make a treaty effective upon us, then the process should be changed to reflect the reality.

But if we expect foreign nations to live up to their treaty obligations, so should we.  And if we play games like this with our treaties, then we have no reasonable expectation that other countries will honor theirs.  The price of this game is American lives abroad, and it’s too high a price.