37 Yale Journal of International Law 51 (2012) (with Sabria McElroy and Sara Aronchick Solow)
A deep puzzle lies at the heart of international law. It is “law” binding on the United States, and yet it is not always enforceable in the courts. One of the great challenges for scholars, judges, and practitioners alike has been to make some sense of this puzzle - some might call it a paradox - and to figure out when international law can be used in U.S. courts and when it cannot. This article aims to contribute to this conversation by examining the status of treaties in U.S. courts - and how the international legal commitments expressed in our treaties “come home” - in three interlocking steps. First, it seeks to provide an account of the legaland historical context of Medellín v. Texas - examining both the case law that led up to the decision and how the lower courts have since responded. Second, the article aims to place direct enforcement of international law through private rights of action into broader context in a second way - by looking at all the ways in which international law can be enforced in U.S. courts. We argue that the direct enforcement of treaties called into doubt in the wake of Medellín is only a part of the picture. Treaties are enforcedin U.S. courts in several other ways as well - through what we term “indirect enforcement,” “defensive enforcement,” and“interpretive enforcement.” Finally, the article considers steps that can be taken to increase the likelihood that treaties will continue to be enforced, even in a post-Medellin world. To this end, we offer three proposals for how each branch of the federal government can strengthen the enforcement of international law.
Date of Authorship for this Version
Hathaway, Oona A.; McElroy, Sabrina; and Solow, Sara A., "International Law at Home: Enforcing Treaties in U.S. Courts" (2012). Faculty Scholarship Series. Paper 3851.