Saturday, March 29, 2008


On hearing about the Medellin v. Texas decision in the news this blogger was confused re a number of issues – for example, if Article VI of the constitution says “…and all Treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” how come the Supremes voted in favor of Texas?

Began to check the ‘net to find the answer, with little luck. Most reactions & discussion seemed to fall into four main groups:

1. Good, Medellin is scum for raping and murdering two young girls, he deserves to fry…
2. The U.S. shouldn’t be subject to the jurisdiction of the International Court of Justice (highbrow version); we don’t need to listen to no stinkin’ furriners (lowbrow version),
3. Yay, states’ rights prevail over an over-reaching federal government, and,
4. Finally some smackdown, the Supreme Court puts President Bush in his place and rejects his claim of unlimited executive power.

All possible opinions, but not particularly cogent explanations of the Supremes’ legal reasoning in this case. Next stop: Docket 06-984 Medellin v. Texas at the Supreme Court web site.

The background:

Jose Ernesto Medellin is a Mexican national. In 1993 he, along with other members of a gang, raped and then murdered two girls, fourteen and sixteen, and dumped their bodies. He was arrested within a week, confessed, and subsequently convicted of murder and given the death sentence. When Medellin was arrested the police did not inform him of his right (pursuant to the Vienna Convention) to have the Mexican consulate notified of his arrest. When appealing his conviction and sentence he raised this as an issue, but the trial court rejected this on the basis that a) he had not raised this issue at his trial, and b) he had not shown that this error had a negative effect on his trial. This was then affirmed by the Texas Court of Appeals. Next Medellin filed a petition in Federal District Court, with the same results.

While all this was in progress, the Mexican government sued the U.S. government before the ICJ on behalf of 51 of its nationals, for breach of the Vienna Convention in not notifying each of these defendants of their right to contact the relevant Mexican consulate. The ICJ ruled against the U.S., holding that she had violated the Vienna Convention (article 36(1)(b)), and directed the U.S. to “provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the effected Mexican nationals.” In reaction to the ICJ decision President Bush withdrew the U.S. from the Optional Protocol to the Vienna Convention on Consular Relations. (which had been proposed by the U.S. in 1963 and ratified in 1969). However, he also issued a Memorandum to the Attorney General instructing him to have “… State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.”

Relying on the ICJ decision and the President’s memorandum, Medellin filed a second round of appeals in Texas. The Texas Court of Appeals rejected this on the grounds that neither the ICJ decision nor the President’s memorandum was “binding federal law” that over-ruled Texas state law limiting death penalty appeals. Medellin appealed to the Supreme Court and his case was granted certiorari (i.e. the Supreme Court agreed to hear his case).

Medellin’s position:

Medellin’s lawyer argued that the ICJ’s judgment bound the federal government and states by virtue of the constitution’s supremacy clause, and that since he was named in the case he became a party to the ICJ’s decision. He also argued that the ICJ judgment was binding on state courts by virtue of the President’s memorandum.

The position of the U.S. government:

The government filed an amicus brief in this case. It argued that The President’s constitutional role “uniquely qualifies” him to resolve foreign policy decisions related to compliance with ICJ decisions, and that the President was defending U.S. interests and protecting relations with foreign countries. Also, that relevant treaties give the President the authority to implement the judgment, and that Congress has “acquiesced” in the past.

The Supreme Court ruling:

In a 6-3 ruling the Supremes ruled against Medellin and in favor of the State of Texas - rejecting the arguments marshaled by Medellin, and those of the President.

Some details:

  • The majority agreed that the ICJ judgment/decision re the Vienna Convention creates an international law obligation” on the part of the U.S. However, the question re if this obligation constitutes binding federal law enforceable in U.S. (federal/state) courts, apparently is a separate issue.
  • Although the word “all” in Article 6 would seem fairly clear, it seems (this was certainly unknown to this blogger as a non-lawyer, but probably is known to people that work in this field) that historically there has been a long string of precedents (going back to 1829 & 1833) that distinguish between “self-executing” and “non-self-executing” treaties. The former are those that constitute international law commitments along with automatic binding authority as domestic law, while the latter constitute international law commitments but ONLY have binding authority as domestic law IF the Congress passes enabling legislation.
  • The Supremes held that the ICJ decision/judgment is not binding because the underlying treaties are not “self-executing.”
  • The Supremes argued that by signing the Optional Protocol the U.S. agreed to the ICJ jurisdiction, but did not agree to be bound by the results, since the Optional Protocol only requires that signatories submit to the jurisdiction of the ICJ but says nothing re judgments and/or enforcement mechanisms. The obligation to comply with ICJ judgments comes not from the Optional Protocol or Vienna Convention, but from Article 94(1) of the United Nations Charter that says “… each Member of the U.N. undertakes to comply with the decision of the ICJ in any case to which it is a party.” The majority argued that since the language said “undertakes to comply” (e.g. as opposed to “shall comply”) the charter/treaty constituted a commitment and envisaged that members would take political actions to ensure compliance with ICJ decisions i.e. it is non self-executing. This decision was arrived at by examining the language of the appropriate documents, as well as the historical record (e.g. the Senate record of discussion when ratification took place). The majority also supplied some other reasons to support the non self-executing scenario e.g. none of the other signatories treats ICJ judgments as binding in their domestic courts, a lack of specific language in any of the treaties stating an intent to have judgments have binding effect, etc.
  • Re the President’s memorandum the Supremes agreed that the President’s constitutional role “uniquely qualifies” him to resolve sensitive foreign policy decisions, but that this did not displace “first principles” i.e. that the President’s authority to act “must stem from an act of Congress or from the Constitution.” Given the decision that the underlying treaties are “non self-executing” the President does not have the authority to make them so, that responsibility belongs to the Congress (per the U.S. constitution).
  • Also, there were additional arguments against Presidential authority e.g. the Supremes said that the record did not indicate Congressional acquiescence related to the issue under consideration; that while Congress has authorized the President to represent the U.S. before the U.N. and ICJ, this is in regard to international and not domestic issues, etc.
  • Re the President’s claim that the memorandum is a valid exercise of the President’s foreign affairs authority to resolve claims disputes with foreign nations, as upheld by a series of court cases, the Supremes said that was mostly in reference to civil issues, and does not extend to criminal judgments in state courts.
Medellin v. Texas
Texas Wins Medellin & many otherarticles/discussion on Medellin at Opinio Juris

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