McGuinness: Three Narratives of Medellin v. Texas

Margaret E. McGuinness (Univ. of Missouri - Law) has posted Three Narratives of Medellin v. Texas (Suffolk Transnational Law Review, forthcoming). Here's the abstract:

The Supreme Court held in Medellin v. Texas that an International Court of Justice decision made pursuant to treaty is not binding domestic law, and that it is beyond the scope of the president's foreign affairs powers to convert an ICJ decision into domestic law. This essay, a contribution to a symposium convened to examine the case, argues that analysis of Medellin is likely to fall into one of the three narratives to have emerged from the arguments of the parties, the briefs of amici, and outside commentary: (1) Internal/Constitutionalist: Draws on the U.S. Constitution as the final word on applicable law and modes of judicial interpretation in the case; (2) External/Internationalist: Looks to the tenets of pubic international law to indentify first order principles for understanding the case and appropriate judicial outcomes; and (3) Transnational/Intersystemic: Seeks to explain Medellin through the phenomenon of multiple, interactive systems of law through which changes in normative behavior occur. While the first two narratives dominated the parties' submissions to the Court and form the space within which much of the academic debate has taken place, it is the third narrative that provides a more complete story of how a death penalty case in Texas came to be litigated before both the ICJ and the Supreme Court.

Medellin is thus an excellent case study for process-oriented theories of how international human rights norms move across national borders and between and among local, national and transnational actors and provides important detail about the domestic and international mechanisms that promote norm integration and, significantly, can serve as barriers to norm integration. For human rights activists, Medellin illustrates the complexity of an increasingly legalized international system that permits multiple legal portals - local, national , regional and international - through which to contest individual rights, but one in which politics and the legal constructs of statehood and nationality continue to play a central role.