Not Suicide.

Self -execution.  I read though the oral arguments of Medellin V. Texas.  The argument is basically whether the treaty is self-executing.  If it is, then no one needs to tell the state court to do anything besides the IJC as they have been given authority by the Senate and President in the Optional Protocol.  The President's subsequent actions were inconsequential.  If it is not self-executing, then Congress (not just George with a memo) would need to pass a law ordering the court to submit to review.

Perhaps it's unconstitutional for the President and Senate to submit to the jurisdiction of an international court to begin with.  On P 56 Justice Scalia tries to explain why self-executing international decisions would be unconstitutional.  The Supreme court doesn't like the idea that the treaty could be self-executing as they think it might infringe on the sovereignty of their court.  I don't think that's true, as the Constitution defines the Supreme Court in Article III, and as stated before, I read the supremacy clause to rank the Constitution over treaties.  The Court's power is safe.

In my opinion, submitting to the Optional Protocol does give the IJC jurisdiction and makes the treaty henceforth self-executing; however doing so may violate the Constitution, and so was not a legal course.  The Senate would have had to "promise" to enact the judgment of the IJC after its verdict, but could not hand the reigns of government over to an international body.  Of course then you have to ask, what is the point of submitting to a final arbiter if, after the judgment is received the losing party can say "nope, I don't accept that decision".  Which we would have to do if a finding was ever passed down that was deemed unconstitutional.

Congress may pass a law to conform to its international obligation, but if that law was struck down as Unconstitutional by the Supreme Court, the United States would have no option but to return to the UN and say "we are in non-compliance and cannot comply with the will of the IJC as we are bound to do.  Please refer us to the UN Security Counsel for appropriate reprimand"  So we are, in actuality, unable to submit to the Optional Protocol, except to say that we will pay some consequence should we lose, but not necessarily the reparation the ICJ deems appropriate.  A prospect that I would find unacceptable as an arbiter.

For me, I then comes down to a question of why we want to submit at all.  Well, we do it because we'd like other people to do it.  No one wants to play with the kid on the playground who keeps making up his own rules when he's losing.  And I don't think we can afford to set the precedent to ignore the ICJ.  At the same time I'm not sure how the Court would side with Medellin or the United States at this point.  So I guess I'm hoping they side with Texas (gasp) and we go take our lashes from the Security Council.  Because:

1. Bush can't make laws by scribbling love notes to Gonzales.
   
2. Congress hasn't passed a law forcing Texas to comply. 
3. The Treaty isn't self-executing because the United States is constitutionally unable to enter into self-executing international arbitration.

An odd thing is that, while I find this case very interesting, I have no qualms as to whether this dude fries.  I'm pretty sure even if he gets a review it'll still come up heads.  So all the discussion they're making that pertains specifically to his case seems distracting to me.  I mean, I understand why they're doing it but I sure wish they'd stay on task in deciding whether or not the US can enter into an arbitration agreement.

Don't worry, this isn't turning into the Bob Loblaw Law Blog, I'll find some wacky shtuff to write about soon.