This Note argues that neither the framers of the Optional Protocol (“the Framers”), nor the U.S. Senate that ratified it, intended to delegate to the ICJ the authority to interpret the Vienna Convention as a matter of U.S. law. Part I of this Note describes the role and function of international law in the U.S. domestic legal system. Part I then presents the structure and history of the Permanent Court of International Justice (“PCIJ”) and the ICJ (collectively, “the World Courts”). Part I also describes the history and relevant provisions of the Vienna Convention and the Optional Protocol. Part II introduces the conflict that has arisen between the ICJ and U.S. courts regarding the interpretation of Vienna Convention Article 36. Part II then surveys some statements and decisions of the PCIJ, ICJ, and other courts that bear on the scope of the authority of the World Courts to interpret municipal law. Finally, Part II introduces the self-executing approach. In Part III, this Note argues that the Optional Protocol is ambiguous regarding the authority it confers on the ICJ. Part III then asserts that the prevailing consensus, both in the United States and abroad, held that the ICJ was not authorized to interpret municipal law. The U.S. Supreme Court should resolve the Optional Protocol's ambiguity in accordance with this prevailing consensus and hold that the Optional Protocol does not grant authority to interpret municipal law.
Philip V. Tisne,
The ICJ and Municipal Law: The Precedential Effect of the Avena and Lagrand Decisions in U.S. Courts,
29 Fordham Int'l L.J. 865
Available at: http://ir.lawnet.fordham.edu/ilj/vol29/iss4/11