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Ruth Bader Ginsburg on Foreign Policy
Supreme Court Justice (nominated by Pres. Clinton 1993)
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Citing foreign law ok; we're not bound by it
"I frankly don't understand all the brouhaha from Congress and even from some of my colleagues about referring to foreign law," Justice Ginsburg said. Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent
means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.
She added that the failure to engage foreign decisions had resulted in diminished influence for the US Supreme Court.
Source: Adam Liptak, New York Times, "Ginsburg Shares"
, Apr 11, 2009
Treaty giving individual rights should bind US courts.
Justice Ginsburg joined the dissent on MEDELLIN v. TEXAS on Mar 25, 2008:
After his conviction for murder, Mexican citizen Jose Medellin argued on appeal that police should have complied with the Vienna Convention and asked if he wanted his consulate notified of his arrest. Texas courts held that Medellin should have made this argument before trial. Separately, the UN's International Court of Justice heard a case involving Medellin, brought by Mexico against the US, on failure to comply with the Convention. The ICJ held that Texas courts must provide Medellin with hearings on the issue.
HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas, & Alito
The Vienna Convention was not "self-executing" but required further federal law for it to be binding upon US courts. The ICJ decision, further, was not binding on domestic courts since the country's obligations- was only to defend the case, not abide by an ICJ judgment, and
- under the UN charter was only to "undertake to comply" with ICJ decisions.
Mexico was the party before the ICJ, not Medellin, and he gained no personal rights from the ICJ ruling. Pres. Bush wrote that state courts should give effect to the Convention did not bind those courts, because the Constitution does not grant him this power without Senate consent.CONCURRED: Stevens concurs
The language of the UN Charter about a nation's obligation to heed an ICJ decision is too vague to be binding upon domestic courts.DISSENT: Filed by Breyer; joined by Souter & Ginsburg
Standards for self-execution cannot be made clear in multilateral treaties since each country has its legal traditions for treaties. However, since the Vienna convention concerns an individual right AND the Supremacy Clause subjugates domestic law to treaties AND the ICJ asked Texas courts to hold a hearing on a legal issue AND the President favors this and Congress does not oppose it, the Supreme Court ought to enforce the ICJ decision.
Source: Supreme Court case 08-MEDELL argued on Oct 10, 2007
Page last updated: Mar 07, 2022