Stabilizing international law through direct incorporation is the only way to make law certain and predictable---the unchecked unilateralism of national law is destabilizing.

Yet refusing to allow direct application of the Convention in U.S. courts would also carry costs. It is consistent with some U.S. traditions to regard international law, even as it applies to individuals, as fully justiciable law, like domestic statutory and case law. In this view, applying the Convention in U.S. cases concerning individuals would be an ordinary exercise of judicial authority. In general, direct application of the Convention in cases involving individuals could have the salutary effect of promoting respect for basic human rights in other countries. There may be other benefits of such application as well. Recognizing the direct applicability of the Convention’s prompt release articles in U.S. court, for example, could defuse conflicts with other states. In addition, the U.S. tradition of promoting international trade and commerce – reflected in the Medellín dissent’s concern that the majority’s decision “threatens to deprive … businesses [and] property owners …. of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide”[103] – suggests an historically strong reason not to read the Medellín Court’s non-self-execution holding too broadly. The concern with safeguarding commercial relationships also counsels against writing the non-self-executing provisions of the Advice and Consent Resolution too broadly, or at least counsels in favor of insuring that U.S. legislation fully implements Convention provisions.

If the Convention were self-executing, U.S. courts might help to build state practice and help to reinforce interpretations of the Convention that favor U.S. positions. It is unlikely that U.S. courts would reach decisions construing the Convention in ways that were antithetical to the views of the U.S. Executive Branch. First, U.S. courts could invoke a variety of other prudential abstention doctrines, such as the political question doctrine, to avoid hearing cases that might adversely affect truly sensitive matters of U.S. foreign policy. Both the majority and dissent in Medellín signaled this concern, noting that U.S. courts should not hear such politically sensitive cases. Second, when U.S. courts do apply treaties directly, the courts often accord great weight to the suggestions of the Executive Branch concerning the interpretation of the treaties.[104]

We would do well to remember the original justifications for including the third-party dispute settlement provisions in the Convention. These justifications – which U.S. officials articulated and supported during UNCLOS III – include promoting certainty, predictability, and stability, with respect to rules that greatly benefit the United States.[105] These dispute settlement provisions can help deter illegal behavior, as well as promote the peaceful settlement of disputes. Domestic enforcement of Convention provisions can also serve this end. At the most fundamental level, the Convention furthers the rule of law in the world – the values of using agreed-upon rules and procedures to resist unilateral assertions of jurisdiction or sovereign control, resolving differences even-handedly according to established rules, and providing stable expectations for international actors. Giving full effect to provisions for third-party dispute settlement at the international and national levels would help further these values.