In Medellin Case, U.S. Turned a Cold Shoulder to International Law

On Jan. 19, the International Court of Justice at the Hague, usually referred to as the world court, issued a judgment in Mexico v. United States of America. The case involved Mexico's claim that its nationals arrested in America had been denied rights under the Vienna Convention on Consular Relations, a treaty to which both parties are signatories.

The defendants included Jose Medellin, convicted of rape and murder in Texas.

What makes the opinion of particular interest is that Medellin was executed in Texas last August.

The world court ruled in 2004 that Medellin's execution would violate international law. A provisional ruling on July 16, 2008, affirmed and held that the U.S. should not execute Medellin pending compliance with the 2004 judgment. Texas ignored the ruling, and the execution proceeded, as did the world court case, which ultimately reaffirmed the 2004 ruling.

A court ruling in a case after the defendant has been executed is somewhat eerie. This bizarre conjunction resulted from the complexities of the intersection of international law, the consular treaty, the U.N. Charter, Texas law and issues of presidential power and state-federal relations. To those add the death penalty and the highly controversial exclusionary rule as factors in the case.

As parties to the Vienna Convention, nations, upon the arrest of a citizen of another country, are required to notify the consul of that country. The overriding purpose of each nation's obligation is to prevent foreign nationals, from being disadvantaged by language differences, or otherwise deprived of rights. No such notification was made in Medellin's case, or in the case of many other Mexican nationals currently incarcerated in the U.S., some under death sentences. Hence the suit by Mexico. The world court ruled in 2004 that the U.S.'s failure to notify the consulates violated the treaty.

Texas refused then, and continues to refuse, to recognize the treaty obligations. Its courts invoked a procedural rule to prevent Medellin from asserting rights under the convention in his state court defense and appeals.

When the world court found the treaty had been violated in 2004, and Medellin argued the violation in the Supreme Court, the U.S. government found itself between the world court and Texas. Treaties are, per the Constitution, "the supreme law of the land" and the national government is charged with responsibility for international obligations.

The Bush administration then issued a "President's Memorandum" stating that the United States would "discharge its obligations" under the ruling "by having state courts give effect to the decision."

The world court ruling required the United States to "by means of its own choosing" review and reconsider the convictions and sentences of the Mexican nationals, taking account of the Convention violation. The memorandum was the U.S. choice of means. Texas declined to acknowledge the obligation, and proceeded with its plans to execute Medellin.

Medellin's attempts to set aside the Texas judgment ultimately reached the u.s. Supreme Court, which issued its opinion on March 25, 2008.

The world court's ruling had required the United States to give the Mexican nationals "review and reconsideration of the convictions and sentences" by "means of its own choosing." A hearing would have satisfied the judgment. Texas declined to provide the hearing on the ground that Medellin had already had one habeas corpus hearing, and was not entitled to a second.

Chief Justice John Roberts wrote for a six-justice majority, holding that the Vienna Convention was without domestic effect, and that Texas was free to ignore the international law.

The key issue on the first legal question before the court was whether the consular treaty was "self-executing." A treaty is self-executing if it requires no legislative action to give it domestic effect. After lengthy analysis, Roberts found that the treaty was not self-executing. Since Congress had taken no action to give it effect, it did not bind U.S. courts.

The second issue, one of presidential power and federal-state relations, was the thornier one. The court found that the president was seeking to vindicate "compelling interests" by compliance with the world court decision. But the court said these compelling interests had to yield to "first principles," those limiting presidential power in light of separation of powers doctrine.

In so finding, the court rejected government arguments based on the "take care" clause of the Constitution and on the president's well-established power to resolve international claims and disputes.

The second holding is the more questionable one. Precedent upholds the president's power under executive agreements, even to the extent of denying an American corporation its pending attachment and access to federal courts. The need for the United States to speak with one voice in international matters has been long established. While conceding that the president has varied powers in the international area, the court found that he lacks power to covert a non-self-executing treaty into a self-executing one. That power rests in Congress alone.

After the Supreme Court decision, Mexico returned to the world court in an attempt to enforce its 2004 decision. Texas carried out the execution of Medellin by lethal injection on Aug. 5, despite a provisional order by the world court on July 16 that it not proceed.

Our government ended up effectively rejecting the world court position because our federal system gives the states police powers independent of federal interference, at least as long as the Supreme Court finds them consistent with the Constitution, as it did in Medellin's case. That is the underpinning of the Supreme Court's refusal to intervene in Texas to prevent the execution.

Mexico's 2008 petition was pleaded as a request for "interpretation" of the earlier judgment. The world court in its January 2009 action denied the petition, finding no justiciable disagreement on the terms of its judgment, and finding that the earlier judgment was not sufficiently specific to require action by the United States beyond those taken. The judgment, it said, "leaves it to the United States to choose the means of implementation."

The court did, however, find that in light of Medellin's execution without review and reconsideration as required by the 2004 judgment, the execution was contrary to the July 16 provisional order of the court.

The substantive issues are easily lost in the procedure. What was required of the United States was that a hearing be held to determine whether the failure to notify the consul prejudiced the defendant. In light of Medellin's confession, and the brutal nature of his crime, it is unlikely that the hearing would have brought him any solace.

The importance of the Supreme Court ruling lies in its permission to the states to ignore the wishes of the executive branch in a matter affecting the external relations of the country. Case law strongly supports the position that the president is the sole voice of the country in international matters, subject only to specific powers given to Congress. Medellin's case is a glaring exception to that principle.

Also involved in the complex case are the fates of convicted Mexican nationals presently in American jails, and the procedural rules of both Texas and the world court. One further irony is that the treaty was enacted with strong support from the United States in the 1970s, when Americans abroad were receiving harsh sentences for drug offenses.

Justice John Paul Stevens concurred in the Supreme Court ruling refusing to require Texas to comply with the president's position. He did, however, conclude his opinion with this observation: "The costs of refusing to respect the ICJ's judgment are significant. ... When the honor of the nation is balanced against the modest cost of compliance, Texas would do well to recognize that there is more at stake than whether judgments of the ICJ, and principled admonitions of the President of the United States, trump state procedural rules in the absence of implementing legislation.

The Court's judgment, which I join, does not foreclose appropriate action by the State of Texas."

It cannot be said better.