Mendellín v. Dretke and Mendellín v. Texas: International Law Can't Mess with Texas

AuthorStephanie L. Metz
PositionJ.D., Capital University, 2006
Pages1131-1171
MEDELLÍN v. DRETKE
AND
MEDELLÍN v. TEXAS
:
INTERNATIONAL LAW CAN’T MESS WITH TEXAS
STEPHANIE L. METZ*
INTRODUCTION
In Medellín v. Dretke,1 the 2005 case that “launch[ed] a thousand law-
review articles,”2 the United States Supreme Court sidestepped the
question of what effect the decisions of international tribunals will have on
United States law.3 The International Court of Justice (ICJ), in Case
Concerning Avena and Other Mexican Nationals,4 ordered the United
States to ignore its procedural default rules and to “review and
reconsider[]” the convictions and sentences of fifty-one Mexican nationals
on death row in ten American states.5 Mexico claimed that the United
States had repeatedly violated the Vienna Convention on Consular
Relations6 (“Consular Convention”) by failing to notify the Mexican
nationals of their rights under the treaty and by failing to notify the
Mexican consulate of their detention.7 The ICJ determined, by fourteen
votes to one, that the United States had violated individually-enforceable
* J.D., Capital University, 2006. The author wishes to thank Professor Daniel C.
Turack for his helpful comments and to remember the late Professor Max Kravitz as the
inspiration behind this Note.
1 Medellín v. Dretke (Medellín I) 544 U.S. 660 (2005).
2 Transcript of Oral Argument at 27, Medellín I, 544 U.S. 660 (2005) (No. 04-
5928), available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/
04-5928.pdf.
3 See Medellín I, 544 U.S. at 664.
4 Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31),
available at http://www.icj-cij.org/docket/files/128/8188.pdf (last visited Sept. 22, 2008).
5 Id. at 72. At the time Mexico brought suit against the United States on January 9,
2003, fifty-four Mexican nationals awaited execution in Arizona, Arkansas, California,
Florida, Illinois, Nevada, Ohio, Oklahoma, Oregon, and Texas. Pieter H.F. Bekker, World
Court Consular Notification and Death Penalty Challenge Revisited: Mexico v. United
States, ASIL INSIGHTS, Jan. 2003, http://www.asil.org/insigh95.cfm (last visited Sept. 22,
2008).
6 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.
261 [hereinafter Consular Convention].
7 See generally Memorial of Mexico, Avena and Other Mexican Nationals (Mex. v.
U.S.), 2003 I.C.J. Pleadings 70 (June 20, 2003), available at http://www.icj-cij.org/docket/
files/128/8272.pdf (last visited Sept. 22, 2008).
1132 CAPITAL UNIVERSITY LAW REVIEW [36:1131
rights guaranteed by the Consular Convention.8 If the Avena decision had
been binding on the United States, fifty-one Mexican nationals would have
been entitled to an automatic “clean slate” review and reconsideration of
their convictions and sentences, despite prior and repeated review of the
merits of their cases in state and federal courts in accordance with
domestic criminal procedure.
However, in Medellín v. Texas,9 the Supreme Court declined to give
binding effect to the Avena judgment.10 This Note argues that this is the
correct position. The decisions of the ICJ, standing alone, do not create
individually-enforceable rights in United States courts.11 United States
jurisprudence should not yield to a decision of the ICJ when that decision
is contrary to established principles of federal statutory law and
constitutional precedent. Giving the Avena decision binding effect would
have conflicted with the Antiterrorism and Effective Death Penalty Act,12 a
federal statute enacted in 1996, as well as with other established criminal
procedure doctrines.
This Note will examine the historical background of the Consular
Convention and the rights afforded to signatory states. Additionally, it will
provide an in-depth look at the cases in the ICJ that involve alleged
violations of the treaty and the domestic response in the United States to
each. Finally, the Note will consider the effect of the Avena judgment in
Medellín’s cases and the impact of both Medellín cases on domestic law in
the United States.
I. BACKGROUND: THE CONSULAR CONVENTION AND THE ICJ
A. The Consular Convention
The Vienna Convention on Consular Relations, perhaps “the single
most important event in the entire history of the consular institution,”13
8 Avena, 2004 I.C.J. at 71–72.
9 Medellín v. Texas (Medellín II) 128 S. Ct. 1346 (2008).
10 Id. at 1353. Medellín v. Texas was decided on March 25, 2008. Id. at 1346. Having
exhausted all of his appeals, Medellín was executed by the State of Texas on August 5,
2008. James C. McKinley Jr., Texas Executes Mexican Despite Objections From Bush and
International Court, N.Y. TIMES, Aug. 6, 2008, at A19.
11 Statute of the International Court of Justice, art. 59, 59 Stat. 1055, 1062 (1945).
12 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996) (relevant portions codified as amended at 28 U.S.C. § 2254(a), (e)(2)
(2000)).
13 LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991).
2008] MEDELLÍN CASES AND INTERNATIONAL LAW 1133
governs “the establishment of consular relations, [and] defin[es] a
consulate’s functions in a receiving nation.”14 Codification of consular
relations had been on the agenda of the International Law Commission
(ILC) since 1949.15 The ILC began work on the text of an agreement in
1955, completed the first draft in 1960, and submitted it to governments
worldwide for comments.16 Representatives of ninety-two states
considered the final draft at a diplomatic conference in Vienna in 1963.17
The text adopted at the conference became the Consular Convention and
entered into force in 1967 after twenty-two states became signatories.18
14 United States v. Alvarado-Torres, 45 F. Supp. 2d 986, 988 (S.D. Cal. 1999).
15 See Hon. N.H. Bowen, Q.C., M.P., Minister for Foreign Affairs, Second Reading
Speech Before the Australian House of Representatives on the Consular Privileges and
Immunities Bill (1972), available at http://law.ato.gov.au/atolaw/print.htm?DocID=srs/
19720062/00001 (last visited Sept. 22, 2008).
16 Id.
17 Id.
18 Id.

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