The current debate over enforcing the judgments of the International Criminal Court through federal court litigation is fundamentally confused. The legal issues raised by the Medellin case have little to do with U.S. compliance with its international obligations and everything to do with the law of federal courts. The core question is whether courts in the United States should construct their jurisdiction in light of the normative preferences of the judges or the President, or instead whether they should respect constitutional and statutory allocations of jurisdiction. A critical issue is whether Congress has the primary role in determining the capacities of the federal courts. A deeper problem is the enduring appeal of judicial romanticism, that is the impulse to look to the courts for help and guidance when faced with a challenging political or social problem.
Most countries do not have a systematic method of judicial post-conviction review resembling the habeas corpus system in the United States. Accordingly, in few if any jurisdictions outside the United States countries could a person convicted of a crime, after having exhausted all appeals, go back to court and insist, as a matter of right, on receiving a judicial hearing about any defects in the conviction, much less the assertion that the failure of arresting officers to inform the convict of an entitlement to consular assistance required a new trial. Thus the particular international obligation at stake in Medellin is unique to the United States, because elsewhere the case could not arise.
But post-conviction review in the United States is not only unusual as a matter of comparative law. It also is constrained by a welter of jurisdictional rules. In particular, the power of federal courts to review state convictions and to order state post-conviction hearings is limited by statute. The basic technical question in Medellin thus was one of habeas jurisdiction.
In 1996 Congress amended the statute authorizing this review to make the capacity of a federal court of appeals to hear an appeal of the denial of habeas--that is, a petition to have a state criminal conviction thrown out--depend on the existence of a constitutional claim. (1) Does an assertion of a treaty violation meet this criterion? A secondary question presented by the case was whether a state, by failing to point out to the court of appeals that the court lacked jurisdiction to hear the appeal, could be considered to have waived any objection to the exercise of jurisdiction.
These are, for international lawyers, boring and distracting technical issues. But for American lawyers generally, the law of federal courts is fundamental. The federal courts have only limited jurisdiction, with both the Constitution and federal statutes constraining their powers. Before a federal court can decide any issue, no matter how fraught with international or political significance, it first must determine that it has the authority to decide the case.
From the perspective of specialists in the law of federal courts, the jurisdictional issues in Medellin were not hard. It has been the longstanding approach of the Supreme Court not to treat claims that a state violated a federal law as raising a constitutional issue. (2) The traditional approach in the United States also is to regard issues of federal court subject matter jurisdiction as nonwaivable. (3) The courts and commentators generally believe that limits on federal judicial power are too important to be left to the parties...