B. Facts of the Case
2 On 29 June 1993, José Ernesto Medellín was arrested by the state of Texas and charged with capital murder (Medellín Case 501). Although Medellín had lived in the US since pre-school, he was a national of Mexico. As a Mexican national, Medellín was entitled under Art 36 Vienna Convention on Consular Relations (1963) (VCCR) to request that the Mexican consulate be notified of his detention. He was further entitled to request legal assistance from his consulate (Consular Functions). Texas authorities failed to inform Medellín of his rights under the VCCR. Not long after his arrest, Medellín signed a waiver of his US constitutional rights and provided a detailed written confession. He was later convicted of capital murder and sentenced to death. Both his conviction and sentence were upheld on direct appeal.
3 In his first application for post-conviction relief, Medellín asserted that the state of Texas had violated his rights under the VCCR. The state trial court held that Medellín’s VCCR claim was procedurally defaulted since he had not previously raised the issue at trial or during his direct appeal, while simultaneously rejecting Medellín’s claim ‘on the merits’ because he had failed to show that the lack of consular notification affected his conviction or sentence. The trial court’s decision was affirmed by the Texas Court of Criminal Appeals in Ex parte José Ernesto Medellín. Medellín’s federal habeas petition asserting his VCCR rights was denied on similar grounds (Medellín Case 502).
4 At the same time that Medellín was pursuing his US domestic appeals, Mexico was seeking redress before the ICJ for 52 of its citizens (Medellín included) who allegedly had been denied their rights under the VCCR by the US. Mexico’s case involved similar issues to those addressed by the ICJ in the LaGrand Case (Germany v United States of America) of 2001 (‘LaGrand Case’). In the Avena and Other Mexican Nationals Case (Mexico v United States of America) (2004) (‘Avena Case’), the ICJ held that the US was obligated to provide to each of the 52 Mexican nationals, ‘by means of its own choosing, review and reconsideration of the convictions and sentences’, notwithstanding the US domestic procedural default rules (Avena Case 72).
5 Despite the Avena Case, the US Fifth Circuit Court of Appeals denied Medellín’s certificate of appealability (Medellín Case 503). The US Supreme Court granted certiorari. Shortly thereafter, US President George W Bush issued a Memorandum for the Attorney General on Compliance with the Decision of the International Court of Justice in Avena (2005) (‘Memorandum’), in which the President ordered the US states to comply with the Avena Case by providing effective review to the cases of the Mexican nationals at issue (Compliance). Relying upon the Memorandum and the Avena Case, Medellín sought relief in the Texas state courts by filing a second state habeas application. The Texas Court of Criminal Appeals dismissed Medellín’s application as an abuse of the writ, holding that neither the Avena Case nor the Memorandum was binding federal law capable of overriding Texas state procedural rules on subsequent habeas applications (ibid. 504). The US Supreme Court, which had previously dismissed its earlier grant of certiorari in order to allow the Texas state court proceedings to play out fully, granted certiorari once more.
C. Decision
6 The US Supreme Court was presented with the question as to whether either the Avena Case or the Memorandum was directly enforceable federal law that entitled Medellín to review and reconsideration of his VCCR claims regardless of the Texas procedural default rules. The Court held that neither the Memorandum nor the Avena Case constituted directly enforceable federal law, and thus affirmed the judgment of the Texas Court of Criminal Appeals.
1. Majority Opinion
7 Since Article 94 UN Charter states that ‘[e]ach Member of the United Nations undertakes to comply’ with ICJ judgments, and the Supremacy Clause of the US Constitution states that ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land’, Medellín asserted that the ICJ’s judgment in the Avena Case created a legally binding obligation on both the state and federal courts (Medellín Case 504; Federal States). The Supreme Court disagreed, with Chief Justice Roberts writing for the majority, citing a long-recognized distinction in US domestic law between those treaties that are self-executing (treaties that have ‘automatic domestic effect as federal law upon ratification’) and those that are non-self-executing (treaties that only ‘give rise to domestically enforceable federal law’ if they are implemented by the US Congress through legislation) (ibid. 504–5). Pursuant to this longstanding doctrine, the Court declared Article 94 UN Charter to be non-self-executing: the phrase ‘undertakes to comply’ only denoted a commitment on the part of the US government to take further actions domestically in order to ensure compliance; it did not clearly provide for domestic enforceability (ibid. 508–9). In the Court’s view, Article 94(2) UN Charter (which sets out the procedures for enforcing an ICJ judgment on a non-compliant state through the UN Security Council; United Nations, Security Council) supported this interpretation, since Article 94(2) envisioned the possibility of non-compliance by a state, and as such, the phrase ‘undertakes to comply’ must allow the US the option of non-compliance, which would not be possible if ICJ judgments were directly enforceable in US domestic courts (ibid. 511). While conceding that the Avena Case constituted a binding international law obligation on the US, the Court concluded that, given the non-self-executing nature of Article 94 UN Charter, the judgment did not have the equivalent effect within domestic US law (ibid. 522–23).
8 Medellín further argued, with the support of the US Executive Branch, that the Avena Case was binding on US courts because of the President’s Memorandum (ibid. 523). Although acknowledging that the President’s interests in enforcing the Avena Case (namely, ‘ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law’) were compelling, the Court held that the President’s Memorandum did not convert the Avena Case into domestically enforceable federal law (ibid. 524). The Court reasoned that since Article 94 UN Charter was non-self-executing, and ‘the responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress’, the President lacked the power to unilaterally convert a non-self-executing treaty into a self-executing one (ibid. 525–26). Implicit in the Court’s reasoning was the assumption that the power to make law rested with the Legislative Branch, not the Executive Branch (ibid. 532). The Court was careful, however, to assert that nothing in its opinion precluded the President from seeking to ensure compliance with non-self-executing treaty obligations by other constitutional means (ibid. 530).
2. Dissenting Opinion
9 Justice Breyer, joined by Justices Souter and Ginsburg, filed a dissenting opinion in which he criticized the majority for focusing too much on the language of the relevant treaty provisions, and not enough on US domestic law (ibid. 541). According to Breyer, the majority’s requirement that the treaty language must provide a clear statement in favour of self-execution was not supported by the Court’s previous case law stretching back over two centuries (ibid. 546–47). Breyer further argued that the sort of ‘clear statement’ required by the Court was unlikely to be found in treaties, due to the variety of legal systems in the international community and the difficulty of negotiating specific language acceptable to all (ibid. 547; Negotiation). Instead of focusing exclusively on the language of the treaties, Breyer suggested a
Applying this approach, Breyer concluded that the Avena Case would constitute binding federal law enforceable in US domestic courts (ibid. 562).
D. Conclusion and Assessment
10 The Medellín Case met with sharp criticism from both US and international legal scholars. In addition to the multitude of US legal issues raised by the opinion (such as the reversal of a longstanding presumption in favour of private causes of action arising even from self-executing treaties (Hathaway, McElroy, and Solow (2012) 70–71)), there are several issues especially pertinent to the international community. The Court’s interpretation of Article 94 UN Charter, for instance, has been singled out for extensive criticism. The majority held that the phrase ‘undertakes to comply’ did ‘not provide that the United States “shall” or “must” comply with an ICJ decision’ but rather allowed the option of domestic non-compliance (Medellín Case 508). Numerous scholars, as well as the dissenting justices (ibid. 553–54), have noted that the Court’s understanding of the term ‘undertakes’ is exactly wrong, and that it is more often seen in the international context as a present obligation in line with the term ‘shall’. Moreover, scholars have also been somewhat perplexed as to why the Court would purposefully interpret an article clearly meant to ensure compliance with ICJ judgments in a manner explicitly intended to undermine such compliance (Donovan (2008) 391).
11 However, it is the Court’s discussion regarding the domestic enforceability of treaties, and the distinction between self-executing and non-self-executing treaties, in particular, that has proven to be especially contentious to international law scholars. Prior to Medellín, the historical rule in US courts had long been that a ‘strong presumption’ in favour of self-execution existed regarding treaties (Restatement (Third) of Foreign Relations Law of the United States (1987) §111 (‘Restatement’); Paust (2003) 75). Indeed, beginning in 1796 with Ware v Hylton), the Supreme Court consistently held a variety of non-implemented treaty provisions to be self-executing with little or no discussion on the matter (see Restatement §111 with accompanying list of cases; see also Medellín Case (Dissenting Opinion of Justice Breyer) 543–45 with the accompanying list of cases in Appendix A). The majority in the Medellin Case, on the other hand, took a decidedly different approach to the issue. Although the majority opinion did not explicitly create a presumption that all US treaties were non-self-executing (a result that would have openly contradicted the nearly two centuries of Supreme Court jurisprudence assuming the opposite), the language of the opinion leaves very little room for alternative conclusions. In holding that Article 94 UN Charter was non-self-executing, the Court opined that for a treaty to be self-executing, it should contain ‘language plainly providing for domestic enforceability’ (Medellín Case 526). If this language is to be taken at face value, then any treaty lacking clear self-execution language must be considered non-self-executing. Whether this test is specifically labelled as a presumption or not, the end effect appears to be the same (Reed and Granoff (2009) 18).
12 The consequences of such a presumption within US law are rather far-reaching. For their part, the US President and Senate have developed a practice of rebutting the Medellín presumption through internal treaty consent procedures. Specifically, during the domestic ratification process, both parties make clear their intent as to the self-executing nature of the treaty through a ‘declaration of self-execution’ (Hathaway, McElroy, and Solow (2012) 98). While this clarifies the situation with respect to new treaties, it does little to address the issue as to historical treaties. The traditional lack of explicit self-execution language in multilateral treaties, combined with the Medellín presumption, consigns many, if not all, multilateral treaties to non-self-executing status and thus to domestic irrelevance. (Vázquez, Treaties as Law of the Land (2008) 608–9). There is some evidence that this has indeed turned out to be the case, as Szewczyk has noted the role of treaties in US law has been ‘gradually eviscerated’ by the presumption of non-self-execution (Szewczyk (2014) 1125). This would appear to be a far cry from the Supremacy Clause’s declaration that ‘all Treaties … shall be the supreme Law of the Land’.
13 The seeming absurdity of this result (as well as the Court’s general reluctance to overturn standing precedent and failure to explicitly do so in the Medellín Case) led numerous scholars to interpret the Medellín Case very narrowly. Ku and McGinnis argued that the Medellín Case needed to be analysed as an international delegation case, since the treaties at issue worked to delegate constitutional judicial powers to an international body (Ku (2008) 615; McGinnis (2009) 1715–16). In their estimation, the Court presumed that such a delegation was not automatically enforceable because it raised constitutional separation of powers concerns. Vázquez argued that the Medellín Case must be understood as a case involving ‘an example of non-self-execution as nonjusticiability’, meaning that the treaty at issue called for an exercise of discretion by the political branches and not the courts (Vázquez, Treaties as Law of the Land (2008) 660). Inherent in each of these interpretations is the assumption that the Medellín Case is somehow rare and special, and its application will be limited to other similar ‘special’ cases. While such an assumption may be intriguing given the far-reaching implications of its language, it is instructive to note that the decision in the Medellín Case itself fails to refer to the issues of non-justiciability or international delegation. In short, the majority opinion does not appear to limit itself to these categories or even acknowledge their existence. The subsequent treatment of the Medellín Case in lower courts also tends to sharply rebut the idea that its application will be limited (Hathaway, McElroy, and Solow (2012) 71).
14 The practical impact of the Medellín Case at the international level continues to be hard to assess. On the one hand, the language of the opinion, when given its full force, substantially complicates the domestic implementation of current US treaty obligations arising from pre-Medellín treaties. This creates more opportunities for Medellín-type situations where the US is legally bound at the international level, but unable to comply at the domestic level due to a lack of implementing legislation. A presumption against self-execution may also hamper the government’s ability to negotiate treaties in the future, as it creates a ‘self-executing’ language requirement that does not align with normal international treaty practice (Levit (2008) 617; Reed and Granoff (2009) 20). On the other hand, the US government has already shown a willingness to adapt its practices (ex. ratification declarations) to take into account the changes wrought by the Medellín Case, thereby potentially limiting its practical impact. Likewise, the recent nature of the decision means its actual influence at the international level is still more speculative than certain, and its precedential value domestically is still subject to change through subsequent interpretation.
15 In the end, the most obvious practical effect of the Medellín Case concerned the petitioner, José Ernesto Medellín, since the Supreme Court’s decision marked the end of his US appellate options. Although Mexico returned to the ICJ seeking a further judgment on the reinterpretation of the Avena Case, and obtained provisional measures ordering the US to ‘take all measures necessary to ensure’ that Medellín was not executed while it considered Mexico’s reinterpretation request (Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v United States) (Order) (2008) 331), the state of Texas proceeded to execute Medellín on 5 August 2008. The execution was roundly condemned by the international community. This condemnation has, as yet, failed to induce the US Congress to pass the implementing legislation necessary to bring the US into compliance with the ICJ’s judgment in the Avena Case.
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