The Medellin Decision’s Implications on International Law

For those interested in international and constitutional law, the Supreme Court yesterday handed down an incredibly important decision in the case of Medellin v. Texas. You can read the full decision by Chief Justice Roberts (joined by Justices Kennedy, Scalia, Thomas, and Alito), along with Justice Stevens’ opinion concurring in the judgment and Justice Breyer’s dissenting opinion (joined by Justices Ginsberg and Souter) here (PDF). Opinio Juris (which is just an all around fantastic legal blog) has a whole series of posts discussing the decision and its many implications.

Many news reports of the decision have focused either on its relation to the death penalty or on the Court’s rejection of the President’s claim of broad inherent constitutional power. This is unfortunate because it largely misses the real import of the decision, which relates to (1) when treaties are domestically enforceable in the absence of implementing legislation by Congress, and (2) the circumstances in which decisions by international adjudicative bodies such as the International Court of Justice (ICJ) are binding on domestic courts.

Here’s a brief run-down of what the case is about. The United States is party, along with 170 other nations, to the Vienna Convention on Consular Relations (VCCR), which says in part that any time a foreign national is arrested, that person has a right to consult with consular officials from his or her foreign consulate. The United States had also been a party (until it pulled out in 2005) to the Optional Protocol to the VCCR, which says that the ICJ can exercise jurisdiction in disputes relating to foreign nationals’ access to their consulates. Jose Ernesto Medellin is a Mexican national currently on death row in Texas after being convicted of murder. Medellin was not advised of his rights under the VCCR, and he did not raise objections to this violation until after he had been convicted at trial. The Texas court, as is typical in most US courts, did not allow Medellin to raise this complaint on appeal due to what’s called a “procedural default rule,” in which a claimant is generally considered to have defaulted on (i.e., forfeited) claims that are not raised in a timely manner. Medellin, along with 50 other similarly situated Mexican nationals, filed a complaint in the ICJ, arguing that the Texas court’s application of the procedural default rule in these cases was a violation of the VCCR. The ICJ, in the Case Concerning Avena and Other Mexican Nationals (Avena), agreed with this argument and held that Medellin was entitled to review and reconsideration of his conviction and sentence in Texas courts.

President Bush responded to this decision by walking a fine line. First, he argued that the ICJ’s Avena decision did not bind domestic courts. But at the same time, he issued an official memorandum to the Attorney General saying he would give Avena effect, and he argued that his memorandum was binding on domestic courts as a result of the President’s inherent constitutional power to conduct foreign affairs. Medellin then filed an application for writ of habeas corpus, relying on both the ICJ’s decision and the President’s memorandum. The case made its way up to the Supreme Court, and the Court was then confronted with two questions: (1) Is the ICJ’s Avena decision binding on domestic courts, and (2) Is the President’s memorandum binding on domestic courts?

There’s been plenty of commentary on the second question (which the Court answered, unsurprisingly, “no”), but it’s the first one that is probably of greater importance. The Court held that Article 94 of the UN Charter, which reads that each member party (of which, of course, the US is one) “undertakes to comply with the decision of the [ICJ] in any case to which it is a party,” does not mean that US courts are bound to follow ICJ decisions in cases to which the US is a party. The Chief Justice concedes that this means that the US is in violation of international law, but argues that for an ICJ decision to be binding on US courts, Congress must pass legislation making this as explicit as possible.

My initial reaction to hearing about this decision was fury. I’ve since backed off from that, but it’s still a disappointing decision. The Constitution explicitly makes treaties part of the “supreme law of the land.” It’s true that there has been a long-established distinction between self-executing treaties and non-self-executing treaties (being a non-self-executing treaty basically means that Congress must pass legislation implementing the treaty before it takes full legal effect). But if Article 94 does not impose an obligation on US courts, how exactly is it supposed to be enforced? As Justice Holmes famously declared, an unenforceable law is no law at all. If the Chief Justice first concedes that the US is violating international law, and then concludes that this international law is unenforceable without explicit congressional authorization, he is severely undercutting the credibility of the US’s commitment to respecting international law. If Congress and the President didn’t want to impose a legal obligation to comply with the ICJ, they either wouldn’t have voted to subject themselves to a treaty saying they would undertake to comply with the ICJ, or the Senate would have made its advice and consent contingent on implementing legislation (which it did not do).

One final note: While Justice Stevens’ heart seems to lie with the dissenters, he wrote an opinion concurring in the judgment but which strongly suggested that the Texas attorney general should commute Medellin’s death sentence. This, it appears, is nothing but wishful thinking, as the Texas attorney general announced after the Supreme Court handed down its opinion that he would be continuing to push for Medellin’s execution. Setting aside the implications regarding international law discussed above, it is important to recognize the degree to which the United States’ practice of the death penalty places us outside the norm of international practice, and the regularity with which it causes international tension and conflict.