Published online by Cambridge University Press: 01 March 2009
The US Supreme Court case of José Ernesto Medellín, Petitioner v. Texas, decided on 25 March 2008, has generally been seen as a US refusal to follow unambiguous treaty provisions. There has not been such a strong reaction to US behaviour relative to specific treaty obligations since the 1992 Alvarez-Machain case. The Supreme Court majority (six votes to three) held that ‘neither Avena nor the President's Memorandum constitutes directly enforceable federal law’. The uncomfortable – and to many illogical – conclusion reached by the Court was that even though Avena is an ‘international law obligation on the part of the United States’, it is not binding law within the United States even in the light of an explicit presidential order. While the result may be disappointing, the case should be understood in the context of a legal system that (i) makes treaties part of ‘the supreme Law of the Land’; (ii) has developed a complicated concept of self-executing treaties; and (iii) can be hesitant to direct states (sub-national units) to follow presidential directives even on matters of foreign policy.
1 José Ernesto Medellín, Petitioner v. Texas, 552 US ___ (Sup.Ct. 25 March 2008). The slip opinion includes a syllabus, the Opinion of the Court (majority) delivered by Chief Justice J. G. Roberts, a concurring opinion written by Justice J. P. Stevens, and a dissenting opinion written by Justice S. G. Breyer and joined by Justices R. B. Ginsburg and D. H. Souter. Each part of the slip opinion has its own pagination and is cited separately hereafter. The slip opinion is available at www.supremecourtus.gov/opinions/07pdf/06-984.pdf.
2 See notes 131, 134, 135, 144, 146, and 147 and accompanying text, infra.
3 US Constitution, adopted 17 September 1787.
4 See H. Kelsen, Principles of International Law (1966).
5 See J. H. Jackson, ‘Status of Treaties in Domestic Legal Systems: A Policy Analysis’, (1992) 86 AJIL 310, at 314 and 318. ‘In a dualist state, international treaties are part of a separate legal system from that of domestic law (hence a “dual” system). Therefore, a treaty is not part of the domestic law, at least not directly.’ ‘[C]onstitutions generally are deemed superior to treaties.’
6 ‘Stare decisis states that judicial decisionmaking should adhere to precedent. Precedent provides a source external to the judges’ individual opinions that legitimizes their reasoning, supplying ready evidence that judicial decisions are based on more than individual whim.’ Dunn, P. H., ‘How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis’, (2003) 113 Yale Law Journal 493, at 493CrossRefGoogle Scholar.
7 Murray v. Schooner Charming Betsy, 6 US (2 Cranch) 64 (Sup.Ct. 1804).
13 Foster & Elam v. Neilson, 27 US 253 (Sup.Ct. 1829).
15 United States v. Pink, 315 US 203 (Sup.Ct. 1942).
16 See ‘Exchange of Communications between the President of the United States and the President of the all Union Central Executive Committee’ and ‘Exchange of Communications between the President of the United States and Maxim M. Litvinov People's Commissar for Foreign Affairs of the Union of Soviet Socialist Republics’, (1934) 28 AJIL 1, beginning at 1.
18 US Constitution, Fifth Amendment.
21 Pink was decided five to two. The dissent, written by Chief Justice Stone and joined by Justice Roberts, stated the following: ‘Treaties, to say nothing of executive agreements and assignments which are mere transfers of rights, have hitherto been construed not to override state law or policy unless it is reasonably evident from their language that such was the intention.’ Ibid., at 255.
22 United States v. Alvarez-Machain, 504 US 655 (Sup.Ct. 15 June 1992).
24 The Ker-Frisbie doctrine refers to two cases: Ker v. Illinois, 199 US 436 (Sup.Ct. 1886), and Frisbie v. Collins, 342 US 519 (Sup.Ct. 1952). In Alvarez-Machain (at 661), the Court quoted Ker (at 444): ‘such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court.’
27 J. G. Roberts, CJ, ‘Opinion of the Court’, José Ernesto Medellín, Petitioner v. Texas, 552 US ___ (Sup.Ct. 25 March 2008), 4–5. Medellín had lived in the United States since pre-school and was a member of the Black and Whites gang, the gang responsible for the gang rape and murder of the two Houston teenagers.
31 1963 Vienna Convention on Consular Relations, 596 UNTS 261.
32 See ‘Chapter III: Privileges and Immunities, Diplomatic and Consular Relations, etc.’, number 6, in Status of Multilateral Treaties Deposited with the Secretary-General, available at. The United States ratified the VCCR on 24 November 1969; Mexico ratified it on 16 June 1965.
34 Roberts, supra note 27 at 5; referring to Medellín v. State, Texas Court of Criminal Appeals (16 May 1997). The Texas trial court found the claim procedurally defaulted because it was not raised at trial or on direct review. The court also rejected in on the merits because Medellín failed to prove that his punishment was impacted by not being able to contact the Mexican consulate. In addition, he confessed within three hours, before the authorities could have violated his rights; the phrase ‘without delay’ in Article 36 (1)(b) of the VCCR as defined by the ICJ means within three working days.
37 1963 Optional Protocol Concerning the Compulsory Settlement of Disputes, 596 UNTS 487.
41 M. E. McGuinness, ‘Medellín v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings’, (2008) 12 American Society of International Law Insights, available at www.asil.org/insights080418.cfm, para. 3.
42 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), Judgment of 31 March 2004, ICJ No. 128. There is considerable inconsistency among sources as to the number of individual cases in Avena. Avena originally dealt with 54 individual cases. Mexico made adjustments and only 52 individuals were involved at the time of judgment. The ICJ found that the United States failed to provide consular notification for 51 of the 52 individuals. See ICJ Press Release 2004/16, 31 March 2004, available at www.icj-cij.org/docket/index.php?pr=605&code=mus&p1=3&p2=3&p3=6&case=128&k=18, paras.11 and 14.
44 The US Court of Appeals for the Fifth Circuit has appellate jurisdiction over certain district courts; one is the Southern District Court of Texas. See www.ca5.uscourts.gov/.
45 Roberts, supra note 27, at 6; referring to Medellín v. Dretke, United States Court of Appeals for the Fifth Circuit (2004).
47 US President G. W. Bush, ‘Memorandum of the President’ (28 February 2005), available at www.whitehouse.gov/news/releases/2005/02/20050228–18.html.
48 Letter from Condoleezza Rice, US Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations (7 March 2005), in which the United States gave its notice of withdrawal from the Optional Protocol, available at http://untreaty.un.org/English/CNs/2005/101_200/186E.doc.
49 Roberts, supra note 27, at 7; referring to Ex parte Medellín, Texas Court of Criminal Appeals (2006).
57 1945 Statute of the International Court of Justice, 9 Hudson 510, Art. 34. Art. 34(1) states, ‘Only states may be parties in cases before the Court.’ Hudson refers to M. O. Hudson, International Legislation: A Collection of the Texts of Multipartite International Instruments of General Interest Beginning with the Covenant of the League of Nations, 9 vols. (1931–50).
58 Roberts, supra note 27, at 20. Roberts notes that Medellín was unable to identify ‘a single nation that treats ICJ judgments as binding in domestic courts.’ The best argument made was that ‘local Moroccan courts have referred to ICJ judgments as “dispositive”’.
67 1945 United Nations Charter, 9 Hudson 327, at Ch. XIV Art. 94(1). Art. 94(1) states, ‘Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.’
71 1945 UN Charter, supra note 67, Ch. XIV, Art. 94(2). Art. 94(2) states, ‘If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.’
77 US Constitution, Art. II, Sec. 3, where it states that the president ‘shall take Care that the Laws be faithfully executed’.
82 Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (Sup.Ct. 1952).
96 J. P. Stevens, ‘Concurring in Judgment’, José Ernesto Medellín, Petitioner v. Texas, 552 U.S. ___ (Sup.Ct. 25 March 2008), at 1.
105 S. G. Breyer, J., ‘Dissenting’, José Ernesto Medellín, Petitioner v. Texas, 552 U.S. ___ (Sup. Ct. 25 March 2008), at 2.
106 Ibid., quoting Chief Justice Marshall's majority opinion of Foster v. Neilson, 27 US 253 (1829), at 314.
126 US Constitution, Art. II.
131 An example of a source supporting the decision is an anonymous editorial from the Wall Street Journal. ‘International Law, and Domestic Order’, Wall Street Journal, 26 March 2008.
132 Bradley, C. A., ‘Enforcing the Avena Decision in US Courts’, 30 Harvard Journal of Law & Public Policy 119, at 120–1Google Scholar.
134 F. L. Kirgis, ‘International Law in the American Courts – The United States Supreme Court Declines to Enforce the ICJ's Avena Judgment Relating to a U.S. Obligation under the Convention on Consular Relations’, (2008) 9 German Law Journal 619, at 624–5.
135 Paust, J. J., ‘Medellín, Avena, the Supremacy of Treaties, and Relevant Executive Authority’, (2008) 31 Suffolk Transnational Law Review 299, at 312Google Scholar.
138 ICJ Press Release Summary 2008/3, 16 July 2008, available at www.icj-cij.org/docket/files/139/14647.pdf, at 1.
141 ICJ Press Release of 22 July 2008, No. 2008/21, available at www.icj-cij.org/docket/files/139/14649.pdf.
142 B. Mears, ‘Mexican Executed after Appeal Denied in Texas,’ CNN.com, available at www.cnn.com/2008/CRIME/08/05/scotus.execution/index.html, para. 1.
144 Presidency Declaration on Behalf of the European Union on the Execution of Mr José Medellín in the United States (Texas), Council of the European Union, 11 August 2008, available at www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/cfsp/102231.pdf.
146 L. Reed (current president) and past presidents J. Alvarez, C. N. Brower, J. H. Carter, T. Franck, L. Henkin, A. Rovine, A. Slaughter, P. D. Trooboff, and E. B. Weiss, ‘Letter to Leadership in US Senate and House of Representatives’ (17 July 2008), available at www.asil.org/pdfs/presidentsletter.pdf.
147 Murphy, J. F., ‘Medellín v. Texas: Implications of the Supreme Court's Decision for the United States and the Rule of Law in International Affairs’, (2008) 31 Suffolk Transnational Law Review 247, at 264Google Scholar.
150 US Constitution, Art. VI, Clause 2.
151 Declaration of Independence, para. 1, cited in H. Koh, ‘International Law as Part of Our Law’, (2004) 98 AJIL 43.
152 C. M. Wiltse, ‘Thomas Jefferson and the Law of Nations’, (1935) 29 AJIL 66, at 72–3.
154 For a detailed discussion see Gamble, J., ‘International Law in the Reagan Years: How Much of an Outlier?’, (1990) 23 Akron Law Review 351Google Scholar.
158 W. H. Rehnquist, ‘Constitutional Courts – Comparative Remarks’ (1989), repr. in P. Kirchhof and D. P. Kommers (eds.), Germany and Its Basic Law: Past Present and Future – A German–American Symposium (1993), 411, 412, cited in Koh, supra note 151.
159 S. D. O'Connor, Remarks at the Southern Center for International Studies (28 October 2003), cited in Setear, J., ‘A Forest with No Trees: The Supreme Court and International Law in the 2003 Term’, (2005) 91 Virginia Law Review 579, at 582Google Scholar.
163 R. P. Alford, ‘Misusing International Sources to Interpret the Constitution’, (2004) 98 AJIL 57, at 67.
165 Henkin, L., How Nations Behave: Law and Foreign Policy (1979), 47Google Scholar. Henkin's exact words were ‘It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’ (emphasis in original).