The Medellin v. Texas Symposium: a case worthy of comment.

• Author: Epps, Valerie

This Symposium focuses on the case of Medellin v. Texas. (1) Why have a Symposium focusing on one case? The answer is that the case raises some of the most far reaching issues concerning the relationship of international law to national law, as well as the distribution of powers both among the branches of the federal government and between the federal and state governments, when the federal executive branch seeks to enforce a treaty and the state courts seek to administer the criminal justice system. The case has attracted a huge level of interest from widely different constituencies, running the gamut from states' rights advocates, to supra-internationalists, to death penalty abolitionists. It is, therefore, a case that lends itself to critiques and commentaries that cover a large array of issues and demonstrate a broad range of jurisprudential approaches.

All of the articles in this Symposium were in final draft form when the Supreme Court handed down its opinion in the case. As a result, the authors have undertaken revisions to take account of the decision.

Anyone interested in international law, particularly treaty law, has been well aware of a series of cases in which three different countries, Paraguay, Germany and Mexico, have brought suits against the United States in the International Court of Justice (ICJ). (2) All three States argued that the United States had failed to meet its obligations under the Vienna Convention on Consular Relations (VCCR), (3) as that treaty relates to alien criminal prisoners in the United States. The claim was that the United States had failed to inform the prisoners that they had a right to contact their own consuls and had also failed to inform the foreign consuls that their citizens were being detained. The ICJ issued an interim protection order for Paraguay and ruled in favor of Germany and Mexico on broadly similar grounds.

The cases reverberated throughout the U.S. criminal justice system, in part because all of the cases involved foreigners who had been convicted of capital offenses and sentenced to death. The campaign against the death penalty, which has been carried forward by human rights organizations both in the United States and abroad, focused on the cases as possibly providing another avenue of relief for foreigners being held in U.S. jails for capital offenses. But the cases were viewed as likely to have a much more far reaching effect because the VCCR treaty protections, required by the ICJ rulings, although only specifically applicable to the capital offenders named in the three suits, are potentially applicable to any foreigner detained in any manner, criminally or civilly, in the United States, provided the foreigner comes from a country that is also party to the VCCR. At the present time, one hundred and seventy-one countries are parties to the treaty, out of a United Nations membership of one hundred and ninety-two States. Almost all foreigners in U.S. jails or other forms of detention can, therefore, claim benefits under the treaty.

The cases in the ICJ were primarily treaty violation cases. In some senses, of course, the VCCR and the death penalty are hardly likely bedfellows and the happenstance of these cases occurring in circumstances where the death penalty had been ordered (4) has brought them a type of universal fame that certainly would not have adhered to regular treaty violation cases.

The factual question of whether the United States had violated its obligations under the VCCR was hardly at issue in any of these cases. For the most part, the United States admitted its failures, apologized to the States concerned, and promised to do a better job of complying with the treaty in the future. (5) The major arguments at the international level addressed whether individual prisoners could claim remedies for the treaty violation and, if so, what the scope of the remedy would be. The ICJ ruled in the German LaGrand case that individuals could claim rights under the treaty, (6) and Mexico argued in the Avena case that the remedy should be the partial, or total, nullification of all convictions or sentences where the treaty had been violated. (7) If the ICJ had completely agreed with Mexico, the effect in the United States, and in all the other countries who are party to the VCCR, might have been vast.

The criminal bar in the United States rapidly realized that for their foreign clients they had a new, and possibly winning, argument. Literally hundreds of cases in the United States either raised the treaty defense at trial, on direct appeal, or on collateral review. (8)

The ICJ finally rejected blanket nullification of convictions and determined that the United States must provide "review and reconsideration" of all convictions and sentences of the foreigners represented in the litigation to determine whether the failure to inform the defendants of their treaty rights "caused actual prejudice to the defendant[s]," (9) and whether "in the causal sequence of events" the violations of the VCCR "ultimately led to convictions and severe penalties...."(10) The Court, moreover, indicated that this review and reconsideration must be carried out by the judicial branch of government, not by clemency boards or pardoning commissions. (11)

Almost all of the defendants had been procedurally barred from raising the treaty issue because, being ignorant of their treaty rights, they had failed to raise the issue at the first possible opportunity. The ICJ ruled, however, that courts in the United States could not use the procedural default bar to prevent defendants from raising the treaty issue because it was the United States itself, or the individual states as the agents of the United States, who had the obligation to inform the defendants of their rights. (12)

The stage was thus set for addressing the issue of the extent to which U.S. courts must comply with rulings by an international court, particular when the ruling reaches far into the criminal justice process of U.S. state courts.

Throughout the history of the three cases in the ICJ, the federal government had shown no inclination to comply with the Court's orders, reading the provisional measures and judgments as narrowly as possible, with the result that the prisoners represented in the Paraguayan and the German cases were in fact executed before any further review of the their cases had been undertaken. (13)

The United States has historically been, at best, ambivalent about the binding nature of international law but never before has the federal government been ordered by an international court to enforce a treaty obligation through the mechanism of its state courts, requiring the state courts to disregard some of their criminal procedural rules. It came as a great surprise, therefore, when, after the ICJ's judgment in the Mexican case, President Bush issued a memorandum on February 28, 2005 telling the states that they must comply with the Avena decision. (14) Texas promptly replied that the President had no power to interfere with the running of the state's criminal courts. (15) Texas has also argued that complying with the President's memorandum will usurp the role of the Supreme Court in interpreting treaties, contradict the Senate's understanding of the VCCR, the Optional Protocol to the VCCR and the UN Charter, and intrude on the sovereignty of the states. (16) This ushered in the next phase of the controversy which has raised large Constitutional questions revolving around the allocation of power between various branches of the federal government and between the federal and state governments.

Medellin was the first case to make its way to the Supreme Court raising this vast array of hugely significant issues, which is why the case is the subject of this Symposium. The Supreme Court's decision ultimately refused to enforce the ICJ's Avena decision either as a result of obligations under treaties or in compliance with the President's memorandum. The states remain free to comply with the decision as Justice Stevens's concurring opinion invites them to do so. Although the Court does imply that the Senate has the power to make clear that treaties are self executing and that Congress is free to pass implementing legislation, the impact of this decision on the way that the rest of the world views the United States' compliance with its international obligations is likely to be severe. Our treaty partners need to be aware that the Supremacy Clause of the Constitution does not presumptively make our treaties self-executing, as most commentators throughout our history have assumed, and that without explicit treaty language referring to the enforceability of the treaty as United States law, treaties will remain simply an obligation at the international level which the United States may, or may...