Medellin: three questions: Annual Dinner of the American Society of International Law.

Author:Donovan, Donald Francis
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law
 
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This talk was presented during the Annual Dinner of the Society on Friday, April 11. Mr. Donovan argued Medellin on behalf of the petitioner.

I.

I am firmly in the camp of those who hold that dinner remarks should be, if at all possible, humorous and, in any event, brief. Those objectives pose a difficulty here.

As to humor, nobody has ever accused me of being a funny guy. But even if I were, humor would be a hard approach to take to the weighty constitutional issues implicated by the Medellin decision, especially when they arise in a case involving the death penalty. (1)

As to brevity, I suppose the challenge to make brief remarks about the decision might be viewed as impossible. After all, the case has occasioned an enormous amount of commentary before and after the decision, and many observed that it appeared to raise a whole host of complex constitutional questions. I continue to believe that the fundamental question presented, about the role of treaties in our constitutional design, has a straightforward answer, and nobody will be surprised to hear me say that I believe that the Supreme Court got the answer to that question profoundly wrong. But this is not the occasion for a systematic critique of the decision, and of course I fully appreciate that there will be a range of views on any topic I might touch.

Still, having been asked to address the Medellin decision tonight, I'd like to do so in a manner appropriate to the setting. I would like to try--while acknowledging that I may not be capable of doing so--to take a step back, in order to share some thoughts about what the Court's approach to the question says about this country's current view of international law and, as a consequence, the core mission of this Society. I want to do that by asking three questions. First, why would the Supreme Court assume that when it comes to treaty implementation, the Court is not part of the Government of the United States? Second, why would the Supreme Court decide a question of treaty implementation on the basis of an assumption that the United States would want to breach the treaty? And finally, why are we so afraid of the Supremacy Clause?

II.

I assume I can dispense with a great deal of background. In Avena, in which the United States fully participated, the International Court of Justice (ICJ) decided that the United States had violated its obligations under the Vienna Convention on Consular Relations in the cases of 51 Mexican nationals on death row in various states in the United States, and it held that the United States must therefore provide review and reconsideration of their convictions and sentences in light of the violations. (2) By Article 94(1) of the United Nations Charter, the United States "undert[ook] to comply" with a judgment of the Court in any case to which it was a party. (3) Jose Medellin, one of the Mexican nationals whose rights had been adjudicated in the Avena judgment, sought to enforce his right to review and reconsideration in the Texas courts. The Supreme Court confirmed that there was no dispute that the United States had an obligation under international law to comply with the judgment, but held that that obligation did not yet have the status of domestic law, and that therefore neither the Court nor the President could give it effect.

So, to the first question: Why, in considering the United States' undertaking to comply, would the Court reason as if the judiciary were not part of the United States government?

In considering whether the courts of the United States could give effect to the undisputed obligation on the part of the United States to comply with the Avena judgment, the Court placed great weight on the language of Article 94(1). That provision states that Member States of the United Nations "undertake to comply" with ICJ judgments in cases to which they were party. Specifically, the Court read the word "undertake" to' 'call upon governments to take certain action."

Now, the proposition that some actor in the United States will need to take some action in order for the United States to give effect to an obligation to provide review and reconsideration to the 51 Mexican nationals in a judicial process is not remarkable. But the Court went much further. Adopting an argument made by the United States, the Court held that the undertaking stated in Article 94(1) was "not a directive to domestic courts," but instead meant that there must be some further action by the political branches before the undertaking to comply could be given domestic legal effect.

Let's set aside the question of whether the relevant intent here is the common intent of the States Party to the Charter or the understanding of the President and Senate in ratifying that treaty. Either way, it's hard to see why the statement of an obligation in the treaty itself could be read to preclude action taken by one domestic actor or another to comply with that obligation. International law takes no position on how a state will comply with any given international...

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