Medellin v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings

On March 25, 2008, the U.S. Supreme Court decided Medellin v. Texas,[1] a case in which a Mexican national on death row in Texas challenged his conviction on the basis that he was not afforded his right of consular notification under the Vienna Convention on Consular Relations (VCCR). In a 6-3 decision, the Court held that the 2004 decision of the International Court of Justice (ICJ) in Mexico v. United States (Avena), requiring the United States to provide further "review and reconsideration" of the convictions of petitioner Medellin and 51 other Mexican nationals on death row in the U.S., was not binding federal law and was therefore, absent an implementing statute, not enforceable by federal courts against Texas, and thus did not preempt the state procedural bar to Medellin's habeas claim. The Court further held that a 2005 memorandum issued by President Bush, stating his intention to enforce Avena, did not create binding law that could be enforced against Texas.

The decision will effectively end the federal habeas claims of petitioner Jose Ernesto Medellin and the other death row inmates affected by the Avena decision. Mexico may pursue political remedies at the international, federal and state level to address the problem of consular non-notification in death row cases. The Court noted that Congress is free to enact the legislation required to give domestic legal effect to decisions of the ICJ reached under the VCCR Optional Protocol, but there are no current efforts to do so. The decision leaves unresolved whether criminal defendants may bring a direct VCCR non-notification claim in cases where the claim has not been procedurally defaulted, and also leaves open the possibility of civil claims in non-notification cases brought under 42 U.S.C. §1983, which permits remedies for violations of federally protected rights.[2]

Procedural Background

Medellin v. Texas is the latest in a series of litigations in U.S. state and federal courts and at the International Court of Justice (ICJ) arising from claims by foreign nationals that American law enforcement officials failed to inform them of their right to consular notification in violation of Article 36 of the VCCR.[3] In 1969, following the "advice and consent" procedure in the Senate, the United States became a party to the VCCR and that treaty's Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), which requires that settlement of any disputes arising out of the interpretation or application of the VCCR lies within the compulsory jurisdiction of the ICJ.[4] Prior to the case brought by Mexico in 2003, the United States had been subject to provisional measures of the ICJ for failing to provide consular notification in cases brought by Paraguay in 1998,[5] and by Germany in 1999,[6] on behalf of their nationals facing death sentences in the U.S. In each of these cases, the Supreme Court denied federal habeas relief and did not give effect to the ICJ orders.[7] Mexico acceded to the Optional Protocol of the VCCR in 2002, and filed the Avena case at the ICJ in 2003. In 2004, the ICJ issued its final decision in the case, again finding that the U.S. had failed to meet the notification obligations of Article 36, and deciding that the U.S. was to give additional "review and reconsideration" of the cases "by means of its own choosing."[8]

At the time Avena was decided, petitioner Medellin had already filed a series of unsuccessful applications for post-conviction habeas relief in Texas state court, and had filed for a certificate of appealability pending before the U.S. Court of Appeals for the Fifth Circuit following a denial of federal habeas relief at the U.S. District Court. The Fifth Circuit denied Medellin's application shortly after the Avena decision was issued, and in 2005, the Supreme Court granted Medellin's petition for certiorari. Prior to oral argument in that case, President Bush issued a Memorandum to the Attorney General (Presidential Memorandum) in which he stated:

I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its inter-national obligations under the decision of the International Court of Justice in the Case Concerning Avena . . . by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.[9]

Following the issuance of the Memorandum, the United States withdrew from the Optional Protocol. Medellin filed a new habeas petition in Texas state court. The Supreme Court dismissed the case before it on the ground that certiorari had been improvidently granted and that the Texas court might now offer Medellin the relief he sought, effectively barring his federal claim.[10] The Texas Court of Criminal appeals subsequently denied Medellin's application for habeas, and the Supreme Court granted certiorari for the second time in 2007 on two questions:

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 U.S. 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?

Chief Justice Roberts' Opinion

Chief Justice Roberts, joined by justices Alito, Kennedy, Scalia and Thomas, wrote for the majority, holding that "neither Avena nor the President's Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions."[11] He concluded that, while Avena is a binding international obligation of the United States, the question of what legal effect the Court should give the opinion is a question of domestic law. Article VI of the U.S. Constitution, the Supremacy Clause, states that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby. . . ." The Supreme Court has long held that obligations arising under treaties, and legislation passed pursuant to treaties, preempt any state law to the contrary.[12] Whether a particular treaty permits parties automatically to seek judicial remedies for breach of treaty rights - absent implementing legislation - has depended on whether the treaty itself is self-executing (i.e., creates directly enforceable rights that do not require implementing legislation) or non-self-executing (i.e., requires a further legislative act before a court can give it effect).

In concluding that Avena does not preempt state law under the Supremacy Clause, the Court found that the relevant treaties in the case -- the Optional Protocol, the U.N. Charter and the ICJ Statute - are non-self-executing and cannot be given effect as federal law absent implementing legislation.[13] Because Congress has not implemented any of those treaties through federal statute, the Court reasoned, the decision of the ICJ under the Optional Protocol must be examined on its own terms to determine what the intent of the U.S. and other parties to the treaty was on the issue of giving domestic judicial - in contrast with political - effect to those decisions.

The Court read the text of the Optional Protocol as a "bare grant of jurisdiction" that says nothing about how and whether the signatories must comply with an ICJ judgment.[14] The Court found that the obligation to comply with the ICJ decision derives not from the Optional Protocol, but from Article 94 of the UN Charter, which provides that "[e]ach Member State undertakes to comply with the decision of the [ICJ] in any case to which it is a party."[15] The Court agreed with the amicus brief filed by the executive branch in Medellin I, which argued "that the phrase 'undertakes to comply' is not 'an acknowledgment that the ICJ decision will have immediate legal effect in the courts of U.N. members,' but rather 'a commitment on the part of U.N. Members to take future action through their political branches to comply with an ICJ decision.'"[16] The Court noted that when the Senate ratified the U.N. Charter it did not do so intending to "vest ICJ decisions with immediate legal effect in domestic courts." This interpretation is further supported, according to the Court, by Art. 94(2), which provides referral to the Security Council - a political and diplomatic measure - as the sole remedy for noncompliance with an ICJ judgment.[17] To hold that opinions of the ICJ are automatically binding federal law would undermine the very availability of political sanctions that the President and Senate agreed to when they ratified the UN Charter, an outcome the Court found particularly "anomalous in light of the principle that "[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative - the political - Departments." [18]

The Court found that the ICJ Statute provided additional evidence that Avena cannot be directly binding law because only states may be parties before the ICJ and decisions of the ICJ are only binding, as a matter of international law, between states. Also, the Court accorded great weight to the Executive Branch's long held view that the UN Charter, the ICJ Statute and the Optional Protocol do not create domestically enforceable law.[19] The Court found further support for the conclusion that Avena is not itself binding federal law in the post-ratification behavior of the 47 parties to the Optional Protocol and 171 parties to the VCCR, none of which treats ICJ judgments as binding in domestic courts.

The Court further concluded that the President does not have inherent authority to enforce ICJ opinions against U.S. states. The Executive Branch had argued before the Court that while, on its own, the Avena judgment does not require domestic courts to set aside rules of procedural default, "that judgment became the law of the land with precisely that effect pursuant to the President's Memorandum and his power 'to establish binding rules of decisions that preempt contrary state law.'"[20] The Court disagreed, noting that, while the President plays a unique role in resolving foreign policy disputes that might bear on compliance with an ICJ decision, he can only act in accordance with an act of Congress and the Constitution. The Court rejected the Solicitor General's argument that the President derives his authority to create binding rules of decision that preempt contrary state law in this case from two sources: (1) the treaties - in which Congress has acquiesced through Senatorial advice and consent -- give the President the authority to implement Avena, and (2) the President's independent power to resolve international disputes.

The Court applied the tripartite analysis of Justice Jackson's concurrence in Youngstown Sheet and Tube Co. v. Sawyer,[21] (1) "where the President acts pursuant to an express or implied authorization of Congress, his power is at its maximum;" (2) "[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which in which he and Congress may have concurrent authority, or in which its distribution is uncertain."; (3) when "[w]hen the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."[22] Because the Court already concluded that the treaties at issue were non-self-executing, it disagreed that the President was acting with implicit congressional approval under Youngstown category one. The text of the Constitution requires that only Congress, through its power to make necessary law, can convert a non-self-executing treaty into binding domestic law.[23] The Court noted that the failure to ratify the treaties as self-executing, can be read as a implicit prohibition against presidential acts to the contrary, thus falling within Jackson's third category. The fact that Congress had failed to act following the President's resolutions of earlier ICJ controversies such as the Nicaragua and Morocco cases (which did not include any attempts to create binding rules of decision over the states) was not sufficient to support a finding that Congress had "acquiesced" to the Presidential Memorandum in this case.[24]

The Court further rejected the argument that the power to enact law through the Presidential Memorandum was supported by prior cases in which the Court upheld presidential authority to settle foreign claims on behalf of U.S. citizens pursuant to executive agreement.[25] Rather, the Court distinguished those cases as based on particularly longstanding practice pursued with the knowledge of Congress which acquired a presumption of congressional assent.[26]

Finally, because the Court found Avena did not constitute domestic law, it rejected the petitioner's argument (not joined by the Solicitor General) that the Memorandum was a valid exercise of the President's "Take Care" power.

Justice Stevens' Concurrence

Justice Stevens concurred in the judgment of the Court, but issued a brief separate opinion noting that "[t]here is a great deal of wisdom in Justice Breyer's dissent," and endorsing the dissent's view that "the text and history of the Supremacy Clause, as well as this Court's treaty-related cases, do not support a presumption against self-execution [of Avena]."[27] He acknowledged that the VCCR is itself self-executing, but concluded that the source of the obligation to comply with the ICJ opinion in this case is Article 94(1) of the U.N. Charter, under which each member state "undertakes to comply" with ICJ judgments, which Stevens read as a "promise to take additional steps to enforce ICJ judgments,"[28] directed to future action by the political branches. He concluded, however, that, while the President's Memorandum does not constitute binding law on Texas, Texas is still subject to the international law obligations of the United States, and thus it also falls on Texas to "take steps" to comply with Avena: "Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another."[29]

Justice Breyer's Dissent

Justice Breyer, joined by Justices Ginsburg and Souter, dissented on the ground that the Optional Protocol represents a treaty obligation that is self-executing, thus requiring no further legislative action in order for it to create binding federal law that preempts state law. After surveying the early history of the doctrine of self-execution in the U.S., and the myriad approaches to implementation of treaty obligations in foreign states, Breyer concluded that the majority's insistence on the "absence or presence of language in a treaty about a provision's self-execution proves nothing at all," warning that such a requirement may "threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones."[30]

Rather than requiring a clear statement on the issue of non-self-execution, Breyer advocated an approach that would apply a series of questions, all derived from prior Court decisions, to determine self-execution in a particular case. Applying that approach, Breyer concluded that: (1) the language of the relevant treaties supports self-execution in this case; (2) the Optional Protocol applies to a dispute about the meaning of a treaty provision (VCCR Art. 36) that is itself self-executing and judicially enforceable; (3) logic suggests that a ruling about the meaning of treaty text by the dispute settlement body empowered to hear the dispute is to be binding on the parties; (4) the majority's approach presents serious practical impediments to enforcement of U.S. obligations, as Congress is unlikely to give either blanket effect to ICJ judgments in the 70 treaties under which the U.S. has agreed to ICJ adjudication of disputes or engage in the kind of case-by-case enforcement of judgments the majority suggests; (5) the particular judgment at issue here -- a request for "review and reconsideration" -- is the kind of relief courts, rather than the political branches, are particularly well suited to provide; (6) a Court finding of self-execution would not create any conflict with the other branches; and (7) neither the President nor Congress has expressed concern with judicial enforcement of Avena, with the President explicitly favoring enforcement of it.[31] On the question of how to give effect to the Avena decision to provide "review and reconsideration," Breyer would have held the appropriate forum to be the Texas state court, on remand from the Supreme Court.

On the effect of the Presidential Memorandum, Breyer opined that the President's action, seeking as it was to enforce a binding treaty obligation, represented an exercise of the "middle range" (category two) of Youngstown: Congress has neither specifically authorized nor specifically prohibited the action in question. He further concluded that, while it is not necessary to answer the executive authority question in order to reach his determination on self-execution and judicial enforcement, there may be times when the President should be permitted to assert foreign affairs powers within state proceedings. He warned that the majority's opinion may "unnecessarily complicate the President's foreign affairs tasks' and "increase the likelihood of Security Council Avena enforcement proceedings, or worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation's reputation abroad as a result of our failure to follow the 'rule of law' principles that we preach."[32]

Conclusion

As a general matter, the Court agreed with the petitioner that "'an agreement to abide by the result' of an international adjudication can be a treaty like any other, so long as the agreement is consistent with the Constitution."[33] What the contours of these constitutional limits might be remains a live topic in the early commentary on the case.[34] Moreover, the Court underscored that its conclusion that Avena does not automatically create binding domestic law does not render the underlying treaty (i.e., the VCCR and the Optional Protocol) useless because (1) it still creates a binding international obligation subject to political and diplomatic negotiations, and (2) Congress may elect to give effect to the decisions of the ICJ through implementing legislation.[35]

While the decision appears to create a presumption against the automatic enforceability - absent implementing legislation - of ICJ opinions resulting from U.S. agreement to resolve disputes before that court, it is less clear whether the decision creates a presumption in favor of non-self-execution of treaties more generally. Some commentators have noted that the majority opinion may more accurately represent a rebuke of the view that treaties should be presumptively self-executing, rather than a win for a presumption in favor of non-self-execution.[36]

The fate of Medellin lies in the hands of Texas, which is now permitted to set an execution date.[37] The government of Mexico has already protested the decision to the U.S. State Department and has announced its intent to remain actively engaged in the defense of its nationals facing the death penalty in the United States.[38]

The federal circuit courts remain split on the availability of 42 U.S.C. § 1983 as a civil remedy to individuals not afforded the right to consular notification under Art. 36 of the VCCR, with the Ninth Circuit rejecting the availability of 1983 as a cause of action in those cases[39] and the Seventh Circuit affirming it.[40] This issue may yet reach the Supreme Court.

About the Author
Margaret E. McGuinness, an ASIL member, is an Associate Professor of Law at the University of Missouri School of Law and co-editor of the ASIL Insight series. She is a co-founder of and contributor to Opinio Juris, the leading international law blog.

Footnotes