The Texas Court of Criminal Appeals Decides Medellin's Consular Convention Case
As has been noted in previous ASIL Insights, the United States is a party to the Vienna Convention on Consular Relations, a multilateral treaty that requires in Article 36(1)(b) that the competent authorities of each state party inform the consulate of another party if the latter party's national is arrested and requests that the consulate be notified. Article 36(1)(b) further requires the authorities to inform the person arrested of his or her right to communicate with the consulate. Article 36(2) says that the rights in Article 36(1) are to be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso "that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."
The International Court of Justice (ICJ) has considered three cases in which applicant states (Paraguay, Germany and Mexico, respectively) asserted that the United States violated the Convention by failing to inform their nationals of their rights under Article 36(1)(b). In two of those cases (the ones brought by Germany and Mexico, known respectively as the LaGrand and Avena cases), the ICJ rendered a judgment against the United States. These cases addressed the "procedural default" rule applied by many courts in the United States. Under that rule, a failure by a defendant in a criminal case to raise an issue at trial that might aid in the defense may preclude him or her from raising it for the first time on appeal or in collateral review proceedings. In the LaGrand and Avena cases, the ICJ held that when the violation of Article 36(1) prevented Germany and Mexico, respectively, from assisting in their nationals' defense in a timely fashion, the procedural default rule resulted in a violation of Article 36(2) because it prevented full effect from being given to the purposes for which the rights accorded under [Article 36(1)] are intended.
In the case brought by Paraguay, the ICJ got no further than issuing an Order of Provisional Measures (comparable to a preliminary injunction in a U.S. court) to try to halt, pending judgment on the merits, the impending execution of the Paraguayan national who had been convicted of murder in Virginia. He was executed, and the Paraguayan government discontinued the proceedings, before the ICJ could render a final judgment.
In March 2005, the United States notified the ICJ that it was withdrawing from the Convention's optional protocol, which had formed the basis of the U.S. consent to the ICJ's jurisdiction in Consular Convention cases. That did not, however, affect the ICJ's jurisdiction in the three cases it had already considered.
The United States Supreme Court has also considered three cases involving U.S. violations of the Consular Convention. Two of those cases, Breard v. Greene and Medellin v. Dretke, came as a result of two of the ICJ's decisions mentioned above (in the cases involving Paraguay and Mexico, respectively). The third case, Sanchez-Llamas v. Oregon, involved two foreign nationals who had not been involved in any of the ICJ proceedings.
In the Breard case, the Supreme Court held that the Paraguayan national had procedurally defaulted on his assertion that the U.S. violation of the Consular Convention could be raised in federal habeas corpus proceedings, because he had failed to raise the claim in the state court proceedings. As has been noted above, this result did not fly in the face of any ICJ judgment because the ICJ did not reach the merits of Paraguay's claim against the United States and the ICJ had not yet heard the proceedings brought by Germany on behalf of LeGrand and Mexico on behalf of Avena, Medellin and 50 other Mexican nationals.
In the Medellin case, the Supreme Court declined to decide the merits because President Bush had made a determination in a memorandum to the U.S. Attorney General (which was then transmitted to state attorneys general) that the United States would discharge its obligation under the ICJ's Avena decision by having state courts give effect to the decision. Medellin, as one of the 52 Mexican nationals whose rights under the Vienna Convention were before the ICJ in the Avena case, was thus given the opportunity to argue before the Texas Court of Criminal Appeals that the Texas courts should reconsider his Consular Convention argument in light of the Avena decision and the President's determination.
In the Sanchez-Llamas case, the Supreme Court held that a violation of the Consular Convention's notification provisions does not in itself require suppression of a defendant's statements to the police, and that a U.S. state, in post-conviction proceedings, may subject a defendant's Consular Convention claim to the same procedural default rules that apply generally to other federal-law claims. For purposes of the case at hand, the Supreme Court in Sanchez-Llamas assumed, without deciding, that Article 36 of the Consular Convention grants individuals such as Sanchez-Llamas enforceable rights in a court in the United States. The Supreme Court gave "respectful consideration" to the ICJ's interpretation of the Consular Convention in the LaGrand and Avena cases, but declined to follow it.
The Texas decision
On November 15, 2006, the Texas Court of Criminal Appeals decided not to provide Medellin with the review he sought pursuant to the ICJ's Avena decision and President Bush's determination. Eight of the nine judges concluded that Medellin's current application for a writ of habeas corpus should be dismissed because "the ICJ Avena decision and the Presidential memorandum do not constitute binding federal law" that could preempt a Texas statute limiting the availability of habeas corpus relief. They relied in part on the U.S. Supreme Court's determination in the Breard and Sanchez-Llamas cases that the ICJ?' interpretation of the Consular Convention in the LaGrand and Avena cases (to the effect that use of a procedural default rule to preclude review and reconsideration of a final conviction and sentence would violate Article 36(2) of the Convention) was entitled only to "respectful consideration." Thus it would not be binding on the Texas court.
In the Breard case, the ICJ had not actually interpreted or applied Article 36 of the Consular Convention when it issued its order of provisional measures. It had simply tried to stave off Breard's execution until it could hear the merits of the case. As a result, what the Supreme Court said in Breard about "respectful consideration" of an ICJ treaty interpretation was a dictum rather than a holding. When the Supreme Court reiterated it in Sanchez-Llamas, however, it was dealing with an actual interpretation of the Convention by the ICJ on the merits. But the Sanchez-Llamas case differed significantly from Medellin's case.
Unlike the individuals in the Sanchez-Llamas case, Medellin was one of the named individuals in ICJ proceedings (the Avena case) to which the United States was a party. Under Articles 59 and 60 of the ICJ Statute, the ICJ's decisions have binding force as a matter of international law as between the parties to the specific case it has decided, although they have no binding force beyond those parties. Moreover, President Bush, in his determination mentioned above, acknowledged that the United States has 'international obligations under the decision [of the ICJ in Avena].' The Supreme Court has acknowledged that the meaning given to treaties by the departments of government particularly charged with their negotiation and enforcement (presumably from the President on down) is given great weight. The ICJ Statute is a treaty of the United States. Consequently, if the Texas decision stands, it would cause the United States to breach its obligation under the ICJ Statute to comply with ICJ judgments in cases to which the U.S. is a party - not a consequence the Supreme Court faced when it said in Breard and Sanchez-Llamas that ICJ decisions are to be given only "respectful consideration."It is certainly arguable that the consideration to be given to an ICJ decision directly affecting a party (such as Medellin) now before a court in the United States should be more respectful than in a case like Breard or Sanchez-Llamas.
As has been noted above, President Bush determined that the United States would discharge its obligation under the ICJ's Avena decision by having state courts give effect to the decision. The eight judges of the Texas Court of Criminal Appeals who expressed their views in written opinions all agreed that President Bush's determination did not constitute federal law binding on Texas, but they did not agree on the reason why.
Four judges concluded that "the President has exceeded his constitutional authority by intruding into the independent powers of the judiciary." Apparently they were referring to both the federal and the state judiciary, since in the same paragraph they referred to the U.S. Supreme Court's judicial power to say what the law is, and then said that the President thus 'cannot dictate to the judiciary what law to apply or how to interpret applicable law. The only judiciary the President addressed was the state judiciary.
The four judge plurality entered into a lengthy discussion of Supreme Court cases involving executive agreements with foreign countries, in which the Court held that the application of state law in a way that could interfere with those agreements was an impermissible intrusion into the federal foreign affairs power. The four judges said that the absence of an executive agreement between the United States and Mexico was central to their determination that the President had exceeded his inherent foreign affairs power by ordering them to comply with Avena. They did not discuss Articles 59 and 60 of the ICJ Statute, which is an international agreement - in fact, a treaty approved by two-thirds of the Senate - among the United States, Mexico and many other nation-states. Articles 59 and 60 presumably formed the basis for the President's determination that the United States would discharge its international obligations under the Avena decision.
The four-judge plurality discussed only in passing the Supreme Court's decision in Zschernig v. Miller, in which the Court held that an Oregon probate law restricting distribution of decedents' estates to legatees in communist countries, as applied by the Oregon courts, was an improper "intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress." There was no executive agreement or treaty in that case.
It is generally recognized that the President's powers include those appertaining to his role as the chief diplomat representing the United States. He seems to have been acting in that role by trying to smooth out relations with Mexico that had been strained by unredressed breaches of the Consular Convention in cases that led to the convictions and executions of Mexican nationals in the United States. State action that would frustrate that effort could be said to be an intrusion into the field of foreign affairs. On the other hand, it has been argued that foreign relations matters not expressly withheld from the states by Article I, section 10 of the Constitution (such as entering into treaties, alliances or confederations) fall within the concurrent power of the states and federal governments, in the absence of a conflicting federal statute or treaty. Texas in this case could not be said to have violated Article I, section 10, although - as noted above - it could be said to have caused the United States to breach a treaty obligation owed to Mexico.
Three concurring judges took a different route to their conclusion that the President's determination was not controlling. They focused on the fact that the determination took the form of a Presidential memorandum to his Attorney General, rather than a formal proclamation or executive order. They said that a separation of powers analysis was unnecessary, because they 'cannot accept the premise that the President's memo to his Attorney General is federal law that could supercede and obviate a clear and explicit Texas statute' (the statute precluding reconsideration of a case such as this). They did not address the question whether an expressly-stated federal policy, as distinguished from a federal law, on a foreign relations matter could supercede an inconsistent state statute.
Medellin will surely apply for a new U.S. Supreme Court writ of certiorari, seeking reversal of the Texas decision. Whether the writ will be granted remains to be seen. It takes a vote of only four of the nine Justices to grant certiorari.
1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States' treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment'
2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed'
Frederic L. Kirgis, an ASIL member, is Law School Association Alumni Professor Emeritus at the Washington and Lee University School of Law. He has written books and articles on international law, and is an Honorary Editor of the American Journal of International Law. The author is grateful to Melissa Waters for her helpful comments on a draft of this Insight. Any errors or omissions are the author's own.
 Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36(1), 21 U.S. Treaties 77, 596 U.N. Treaty Series 261. See ASIL Insights, International Court of Justice Orders United States to Stay Execution of Paraguayan National in Virginia (Apr. 1998); World Court Rules Against the United States in LaGrand Case Arising from a Violation of the Vienna Convention on Consular Relations (July 2001); Consular Notification and the Death Penalty: The ICJ's Judgment in Avena (Apr. 2004); President Bush's Determination Regarding Mexican Nationals and Consular Convention Rights (Mar. 2005); The Supreme Court Backs Away from a Consular Convention Case (May 31, 2005); The Supreme Court Decides a Consular Convention Case (July 7, 2006).
 Vienna Convention on Consular Relations (Paraguay v. United States), 1998 ICJ Rep. 266, 37 International Legal Materials (ILM) 810 (1998)(Order of Provisional Measures of 9 Apr. 1998); LaGrand Case (Germany v. United States), 2001 ICJ Rep. 104, 40 ILM 1069 (2001); Avena Case (Mexico v. United States, 2004 ICJ Rep. ____, 43 ILM 581 (2004).
 LaGrand Case, para. 91; Avena Case, para. 113.
 See the Addendum to the ASIL Insight on President Bush's Determination, note 1 above.
 Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352 (1998)(the case involving Paraguay); Medellin v. Dretke, 544 U.S. 660, 125 S.Ct. 2088 (2005)(the case involving Mexico).
 Sanchez-Llamas v. Oregon, ___ U.S. ____, 126 S.Ct. 2669 (2006).
 Procedurally, the Supreme Court dismissed the writ of certiorari as improvidently granted, but it did so by means of a per curiam written opinion accompanied by a concurring opinion and three dissenting opinions.
 When this Insight was written, the Texas Court of Criminal Appeals' opinion had not been released for publication and thus was subject to possible revision or withdrawal. If it is revised significantly or withdrawn, an Addendum to this Insight will be posted.
 Ex parte Medellin, ___ S.W.3d ____, 2006 WL 3302639 (Tex. Crim. App. 2006), slip opinions at p. 23. The ninth judge concurred in the result, without joining in any of the other judges' written opinions.
 Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922 (1961), quoted with approval in Sanchez-Llamas v. Oregon, , 126 S.Ct. 2669, 2685 (2006).
 Ex parte Medellin, note 9 above, slip opinions at p. 13.
13 United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758 (1937); United States v. Pink, 315 U.S. 203, 62 S.Ct. 552 (1942); Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972 (1981); American Ins. Ass'n v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374 (2003). Executive agreements are entered into by the Executive Branch either alone or with the concurrence of both Houses of Congress, but are not submitted for the advice and consent of two-thirds of the Senate (as formal treaties are).
 Ex parte Medellin, note 9 above, slip opinions at p. 18.
 Zschernig v. Miller, 389 U.S. 429, 432, 88 S.Ct. 664 (1968). The Supreme Court discussed the Zschernig decision favorably in Garamendi (where the Court said that even under the view of Justice Harlan, who did not go as far as the majority did in Zschernig, "the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law").
 Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1642 (1997).
 Ex parte Medellin, note 9 above, slip opinions at p. 27.