A tragi-comedy of errors erodes self-execution of treaties: Medellin v. Texas and beyond.

• Author: Quigley, John
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

The 2008 U.S. Supreme Court decision in Medellin v. Texas has generated concern that the doctrine of self-execution of treaties is being eviscerated. The Court's decision involved misapplication of that doctrine in a case in which self-execution should not have been center stage in the first place. The case should have turned on presidential power, not on self-execution. The Court hinted at a new and stricter standard for finding treaty provisions to be self-executing. The Court purported to be acting consistent with its own precedents on standards for self-execution but analyzed the treaty provision at issue in a manner at odds with precedents, inappropriately concluding that it was not self-executing. In a series of cases arising since Medellin involving treaties as between private parties, the lower federal courts have, appropriately, disregarded the Medellin decision and have continued to apply treaties as required by the Supremacy Clause of the United States Constitution.

Contents I. Context Of The Self-Execution Issue: Consular Access Claims II. The President Seeks Implementation Of Avena A. The Obligation to Review and Reconsider B. President Bush's Mode of Seeking Implementation III. Self-Execution In The Supreme Court's Analysis IV. The Supreme Court's Reading Of Un Charter Article 94 A. Enforcement Mechanism in UN Charter Article 94 B. ICJ Statute Articles 34 (1) and Article 59 V. Conflict With Prior Self-Execution Decisions VI. Meaning Of Medellin For Defensive Invocation Of A Treaty VII. Meaning Of Medellin For Executive Enforcement Of A Treaty VIII. Declaration In A Senate Resolution Of Consent IX. The Supreme Court's Operational Rule X. Treaties In Private Law Cases Post-Medellin XI. Conclusion The unfortunate analysis of treaty self-execution given by the Supreme Court in Medellin v. Texas was the last in a series of missteps in the case. The prior missteps should have kept the case from reaching the Court. The Court itself then produced an opinion out of step with its own case law, without explaining, or perhaps even understanding, the extent to which it was undermining the traditional analysis of self-execution of treaties under the Supremacy Clause of the U.S. Constitution. The Court's errors are sufficiently egregious that it may not be unrealistic to anticipate that in future cases the analysis in Medellin v. Texas may be limited or ignored. This article, after analyzing Medellin v. Texas itself, traces post-Medellin cases in the lower courts.

Medellin v. Texas came out of more than a decade of litigation both in the United States and in international institutions relating to the access of foreign nationals under arrest to consular officials of their home country. The issue before the Court in Medellin v. Texas was the domestic enforceability of an international decision on that subject. This earlier consular access litigation set the stage for Medellin v. Texas, and it is with it that this article begins.

1. Context Of The Self-Execution Issue: Consular Access Claims

   The context for Medellin v. Texas, though not the issues in dispute in the case itself, was consular access for foreign nationals accused of crime in the United States. Access to a consular official is provided for in the Vienna Convention on Consular Relations (VCCR), a multilateral treaty to which most states of the world are party. (1) Authorities arresting a foreign national are required to inform the individual of a right to contact a consular office of the individual's home country. (2) The reason for this procedure is to allow consular officials to provide assistance during the pre-trial phase, the trial phrase if a trial occurs, and beyond. (3)

   The legal issue that led ultimately to Medellin v. Texas was that of the legal consequences of the arresting authority's failure to inform a foreign national about consular access. Beginning in the mid-1990s, lawyers in the United States working through the Texas Resource Center took on the cases of a number of foreign nationals who had been convicted of murder in Texas and sentenced to death, but who had not been informed upon arrest about consular access. These lawyers argued that this failure required a remedy, like other procedural failures in criminal cases. (4)

   Lawyers elsewhere in the United States followed suit. Some sought to suppress a pre-trial statement for failure to inform about consular access, filing a suppression motion pre-trial, or raising the issue on appeal. (5) Others challenged, post-trial, the imposition of capital punishment, on the theory that participation by a consul might have led to more solid evidence in mitigation. (6) The Government of Mexico, which maintains an extensive network of consular offices in the United States, took an active role in supporting legal action on behalf of its nationals in these situations.

   Results were mixed, both in the trial courts, and in courts hearing appeals or habeas corpus petitions of those already convicted. In most instances, the courts denied relief. Some courts denied on the basis that consular access was not a right pertaining to an individual, or at least not a right of constitutional dimension. Other courts denied on the basis that the issue had been procedurally defaulted by not being raised at an earlier stage, or that a consul's participation would not have provided any real assistance. (7)

   In 1998, the Government of Paraguay approached the International Court of Justice (ICJ), seeking to bar Virginia from executing a Paraguayan national, Angel Breard, who faced imminent execution for capital murder. Breard had not been informed about consular access upon arrest. The U.S. Court of Appeals had denied relief on the grounds that Breard did not raise the consular access issue in his initial habeas corpus petition. (8) The ICJ had jurisdiction, Because both Paraguay and the United States were party not only to The VCCR but to an optional protocol that allows states party to the VCCR to sue each other for violation of consular obligations. (9) The ICJ issued an interim (injunctive) order asking the United States to refrain from carrying out the execution. (10) The U.S. Supreme Court detuned to issue a stay of execution, finding that Breard's consular access claim had been procedurally defaulted for not being filed in the time required by the laws of Virginia. (11) After the governor of Virginia denied clemency, the execution was carried out. (12)

   A few months earlier, the government of Mexico had initiated action on the consular access issue at the Inter-American court of Human Rights. Functioning under the Organization of American States (OAS), this Court sits in San Jose, Costa Rica, and has jurisdiction to render advisory opinions on any treaty "concerning the protection of human fights in the American states." (13) The Government of Mexico sought an opinion about legal remedies required for failure to inform a foreign national about consular access in capital gases. In October 1999, the court issued an advisory opinion, saying that the VCCR consular access provision, while creating obligations between states, also gives a fight to the foreign national The Court said that the execution of a foreign national who had not been informed of the fight of consular access would be unlawful as an arbitrary deprivation of life. (14)

   By that date; Germany had filed against the United States in the ICJ, on behalf of a German national who faced imminent execution in Arizona. Like Paraguay, Germany was party to the VCCR and its Optional Protocol As in the Paraguay case, the ICJ issued an interim order against execution while the case was pending. (15) Germany sued in the U.S. Supreme Court, seeking enforcement of the interim order, but the Court found Germany was not in a position to sue. (16) The German national, Walter LaGrand, was executed, but the ICJ case continued, resulting in a 2001 judgment in which the ICJ said that individual rights are at issue in the obligation to inform about consular access and that a remedy is required. In the case of a conviction of a foreign national who was not informed about consular access, the ICJ said the resulting obligation is "to allow the review and reconsideration of the conviction and sentence by taking account of the violation.... " (17)

   Petitions had also been filed in another OAS institution, the Inter-American Commission on Human Rights, on behalf of foreign nationals sentenced to death in the United States but who had not been informed about consular access. The Commission has jurisdiction to hear complaints of rights violations against OAS member states. In two cases of foreign nationals sentenced to death in the United States, these petitions resulted in Commission decisions, one in 2002 and a second in 2003, that the individuals must be afforded a new trial or released from custody. (18) In each case, the United States informed the Commission that it did not intend to comply.

   In 2003 as well, Mexico filed in the ICJ on behalf of fifty Mexican nationals under sentence of death in the United States, the case being styled Arena and Other Mexican Nationals. (19) Like Paraguay and Germany, Mexico was party to the VCCR and its Optional Protocol. In a 2004 judgment, the ICJ repeated the entitlement to a remedy for individuals who were not informed about consular access, and the ICJ specified--something it had not done in the LaGrand case--that the remedy must be by the judicial branch if such is sought. (20)

   In 2006, the issue reached the U.S. Supreme Court again in two cases that the Court combined for argument. In one, a case from Virginia, the foreign national had filed an untimely habeas corpus petition under procedural rules of Virginia. In the other, a case from Oregon, a foreign national sought the suppression of a confession and had raised the matter in a timely manner. The European Union filed an amicus curiae brief seeking compliance with...