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Treaties & Conventions 3/31/2008 1:32:53 PM EST Opening Argument - LexisNexis International Law Web Center Blog LexisNexis Legal Editor/Site Coordinator LexisNexis International & Foreign Law Center Welcome to the LexisNexis International Law Web Center, your gateway to the international and foreign law resources of LexisNexis! In preparing the launch of this website, we could not have hoped for a more auspicious time than this, marked by the U.S. Supreme Court’s very recent decision in Medellin v. Texas*, 2008 U.S. LEXIS 2912. It is not every term that the Supremes have an opportunity to consider public international law along with foreign policy-related constitutional law issues on such a far-reaching scale.
In Medellin, the Supreme Court was called upon to consider ordering application by domestic state courts of a judgment of the International Court of Justice that found the United States to be in violation of its obligations under the Vienna Convention on Consular Relations (“VCCR”). The ICJ in the Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), 2004 ICJ LEXIS 11 found the US to be in violation of its treaty obligations due to the failure of various American law enforcement officials to inform some 51 Mexican nationals in various states and at various times of their respective rights under the VCCR to have contact with a Mexican Consular official to assist them in their post-arrest circumstances. All of the Mexican nationals were charged with and subsequently convicted of capital crimes. After the Avena decision, President Bush declared in a Memorandum to the Attorney-General dated February 28, 2005 that the United States would “discharge its international obligations…by having State courts give effect to the decision”. Subsequently, Mr. Medellin, one of the 51 Mexican nationals on whose behalf Mexico brought the Avena case before the ICJ, sought to have the ICJ judgment enforced directly as domestic law in the Texas state courts (and thus implemented despite the barring effect of state default rules).
The Supreme Court in Medellin has affirmed the Texas Court of Criminal Appeals decision, which dismissed Mr. Medellin’s application to have the ICJ decision applied through a writ of habeas corpus to have his conviction substantively reviewed once more. The Supreme Court’s majority opinion goes to great length to distinguish the hard law, direct applicability and self-executing effect that most international law practitioners would attribute to the VCCR (founded as it is on one of the oldest branches of customary public international law). The majority found that this quality was not applicable to that convention on the ground that, in their opinion, Congress would have to enact legislation to that effect and highlighting that the US has withdrawn from compulsory ICJ jurisdiction with regard to the VCCR. They also denied that the President’s Memorandum could have any force or effect, stating that “[t]he President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.” Medellin, 2008 U.S. LEXIS at *61-*62.
As a result of its controversial holdings, the Medellin case promises to be the spawn of many a seminar and law review article, and in this day and age, of legal blogs. We invite our visitors to the Web Center to share with us their opinions about Medellin and Avena. Some critical points demand mention and further reflection:
1. The parallels of Medellin to Miranda v. Arizona, 384 U.S. 436 (1966), should not to be overlooked. The latter gave rise to new law enforcement procedural slang (“Mirandizing”) and, for foreign nationals, implementation of the ICJ decision would entail including, in the reading of a foreign national detainee’s rights upon arrest, that the detainee has the right to have contact with his or her respective consular official (perhaps giving rise to the term “Viennizing”?) Some salient considerations in this debate will include the possibility that some state courts might dismiss these convictions based on this procedural oversight, as was the case with the Miranda ruling. The 51 Mexican nationals in Avena were all charged with very serious crimes, and Mr. Medellin’s actions are fully summarized in the Supreme Court majority’s opinion. As most of these defendants were probably afforded at least public defense, one may consider whether the Medellin majority was concerned not to facilitate the release of so many convicted felons back into society. The Supreme Court had already addressed these parallels to some extent in Sanchez-Llama v. Oregon, 548 U.S. 331 (U.S. 2006). On the other hand, the Miranda decision was immediately received into the American legal system; there was no Congressional or other legislative action taken to implement it, but “everyone” the day before it issued knew what the Fifth Amendment stated and that it was a well-known part of a well-known public document for well over a hundred years. So why did a police officer suddenly the next day have to tell every arrestee about it as the arrest was taking place?
2. The Medellin majority seems to think that the Supreme Court cannot and does not engage in legislative action, and in connection with this case states: “To read a treaty so that it sometimes has the effect of domestic law and sometimes does not is tantamount to vesting with the judiciary the power not only to interpret but also to create the law.”, Medellin, 2008 U.S. LEXIS at *45. This choice statement invites comment from jurists and legal philosophes concerning the on-going debate about the law and legal systems and whether courts only interpret legislation and “law” or if they do indeed legislate by their action. The classic Hart-Dworkin debate comes to mind, as well as the case of Donoghue v. Stevenson [1932] AC 562. That case arose in Scotland as a not very exceptional tort case governed by Scots law, yet it was taken to the House of Lords on appeal, thereby allowing England by mere case law to gain a legal basis for products liability even though Parliament had not enacted any laws to provide for this liability (pace, to my Scots lawyer friends, and especially Prof. Robin Evans-Jones, for oversimplifying what happened in the House of Lords). Has the Supreme Court, in its quest to prevent the release of 51 convicted felons, in effect legislated away the binding effect of the VCCR in the US that everyone else thought it had in its own right and through its observance and its customary international law origin prior to the adoption of the VCCR?
3. The aforementioned strenuous effort to categorize the VCCR as non-self-executing also invites further commentary. Justice Breyer, in his dissent, highlights the importance of the Supremacy Clause as the proper starting point in this analysis of the VCCR’s and the ICJ judgment’s direct applicability and, opines that the majority was looking at the matter from the wrong perspective. Myopia can also be seen in the failure of the Court to consider the background and existing status of the rights involved in this case. There was a good reason the US lost the Avena case in the ICJ. Consular rights and practice, which are of immemorial origin, were enshrined in the VCCR, and the ratification of them in treaty form by Congress merely confirmed the long standing practice by and adherence to these norms by the US. Prior to the adoption of the VCCR and its ratification by the US, there were consuls and honorary consuls from most trading partners and nations with whom the US had diplomatic ties. These consuls were resident around the nation in different states and it was the binding force of customary international law that supported them in their office and in the discharge of their duties throughout this nation. Federal and state authorities all were held to know and understand the consular role and function and the need to cooperate with them in the furtherance of civility, international comity, and correct relations. The VCCR invented nothing new about the consular office or function that Congress had to implement, and the presence of these officials on US soil confirmed that both the customary international law and the later VCCR provisions were in a regular state of fulfillment and self-execution. To require federal legislation on this topic would be redundant, make a farce of time-honored and recognized practice, and call into question whether the comity thus derived should continue to be extended to US consuls and citizens abroad. Indeed, the Supremacy Clause appeared to be at work in support of the customary international law of consular relations, authority, and practice prior to the adoption by the US and ratification by Congress of the VCCR. This was also likely one of the good reasons why the President issued his memorandum concerning implementing the Avena decision. One could argue that the Supreme Court in Medellin, in so disregarding the Supremacy Clause and by refusing to implement the ICJ’s Avena decision, has effectively annulled US ratification of the VCCR. Such a result puts in jeopardy the role and authority of US consuls and nationals around the world, as their host nations could choose to view the Supreme Court decision as a declaration that the US will not honor and enforce its obligations pursuant to both the VCCR and express ICJ judgment thereunder.
This Opening Argument Blog has confined itself to just a few considerations about the majority opinion, but the concurring opinion by Justice Stevens and the dissenting opinion by Justice Breyer (joined by Justices Souter and Ginsburg) are worthy of study in themselves. We invite your thoughts and observations. Please follow the instructions on this page to post your comments.
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