Reviewing and Reconsidering Medellin v. Texas in Light of the Obligatory Abstention from Security Council Voting


According to the United States Supreme Court in Medellín v. Texas, decisions of the International Court of Justice (ICJ) have no direct domestic effect in U.S. courts and are confined entirely to the international political arena. The Medellín majority found that compliance with ICJ orders and judgments can only be demonstrated at the international level, and that the United States may demonstrate non-compliance with ICJ decisions by vetoing any Security Council resolution that aims to enforce the ICJ decision. This Note argues that the guiding premise of the majority’s holding–that the United States enjoys an unqualified veto in the Security Council–is incorrect. Rather, the United States must abstain from voting as a party to the dispute when the resolution is an exercise of the Security Council’s peaceful dispute settlement powers. The Security Council voting rule stipulated in Article 27(3) of the U.N. Charter, termed the “obligatory abstention,” mandates that “in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.” One implication of the obligatory abstention is that ICJ decisions are not solely international and political, and that undertaking to comply with ICJ decisions may require domestic judicial enforcement as articulated by the Medellín dissent. Furthermore, a Security Council resolution enforcing the ICJ decision may itself be enforceable in U.S. courts, as the D.C. Circuit suggested in Diggs v. Richardson.