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The Medellin v. Texas Symposium: a case worthy of comment.

This Symposium focuses on the case of Medellin v. Texas. (1) Why have a Symposium focusing on one case? The answer is that the case raises some of the most far reaching issues concerning the relationship of international law to national law, as well as the distribution of powers both among the branches of the federal government and between the federal and state governments, when the federal executive branch seeks to enforce a treaty and the state courts seek to administer the criminal justice system. The case has attracted a huge level of interest from widely different constituencies, running the gamut from states' rights advocates, to supra-internationalists, to death penalty abolitionists. It is, therefore, a case that lends itself to critiques and commentaries that cover a large array of issues and demonstrate a broad range of jurisprudential approaches.

All of the articles in this Symposium were in final draft form when the Supreme Court handed down its opinion in the case. As a result, the authors have undertaken revisions to take account of the decision.

Anyone interested in international law, particularly treaty law, has been well aware of a series of cases in which three different countries, Paraguay, Germany and Mexico, have brought suits against the United States in the International Court of Justice (ICJ). (2) All three States argued that the United States had failed to meet its obligations under the Vienna Convention on Consular Relations (VCCR), (3) as that treaty relates to alien criminal prisoners in the United States. The claim was that the United States had failed to inform the prisoners that they had a right to contact their own consuls and had also failed to inform the foreign consuls that their citizens were being detained. The ICJ issued an interim protection order for Paraguay and ruled in favor of Germany and Mexico on broadly similar grounds.

The cases reverberated throughout the U.S. criminal justice system, in part because all of the cases involved foreigners who had been convicted of capital offenses and sentenced to death. The campaign against the death penalty, which has been carried forward by human rights organizations both in the United States and abroad, focused on the cases as possibly providing another avenue of relief for foreigners being held in U.S. jails for capital offenses. But the cases were viewed as likely to have a much more far reaching effect because the VCCR treaty protections, required by the ICJ rulings, although only specifically applicable to the capital offenders named in the three suits, are potentially applicable to any foreigner detained in any manner, criminally or civilly, in the United States, provided the foreigner comes from a country that is also party to the VCCR. At the present time, one hundred and seventy-one countries are parties to the treaty, out of a United Nations membership of one hundred and ninety-two States. Almost all foreigners in U.S. jails or other forms of detention can, therefore, claim benefits under the treaty.

The cases in the ICJ were primarily treaty violation cases. In some senses, of course, the VCCR and the death penalty are hardly likely bedfellows and the happenstance of these cases occurring in circumstances where the death penalty had been ordered (4) has brought them a type of universal fame that certainly would not have adhered to regular treaty violation cases.

The factual question of whether the United States had violated its obligations under the VCCR was hardly at issue in any of these cases. For the most part, the United States admitted its failures, apologized to the States concerned, and promised to do a better job of complying with the treaty in the future. (5) The major arguments at the international level addressed whether individual prisoners could claim remedies for the treaty violation and, if so, what the scope of the remedy would be. The ICJ ruled in the German LaGrand case that individuals could claim rights under the treaty, (6) and Mexico argued in the Avena case that the remedy should be the partial, or total, nullification of all convictions or sentences where the treaty had been violated. (7) If the ICJ had completely agreed with Mexico, the effect in the United States, and in all the other countries who are party to the VCCR, might have been vast.

The criminal bar in the United States rapidly realized that for their foreign clients they had a new, and possibly winning, argument. Literally hundreds of cases in the United States either raised the treaty defense at trial, on direct appeal, or on collateral review. (8)

The ICJ finally rejected blanket nullification of convictions and determined that the United States must provide "review and reconsideration" of all convictions and sentences of the foreigners represented in the litigation to determine whether the failure to inform the defendants of their treaty rights "caused actual prejudice to the defendant[s]," (9) and whether "in the causal sequence of events" the violations of the VCCR "ultimately led to convictions and severe penalties...."(10) The Court, moreover, indicated that this review and reconsideration must be carried out by the judicial branch of government, not by clemency boards or pardoning commissions. (11)

Almost all of the defendants had been procedurally barred from raising the treaty issue because, being ignorant of their treaty rights, they had failed to raise the issue at the first possible opportunity. The ICJ ruled, however, that courts in the United States could not use the procedural default bar to prevent defendants from raising the treaty issue because it was the United States itself, or the individual states as the agents of the United States, who had the obligation to inform the defendants of their rights. (12)

The stage was thus set for addressing the issue of the extent to which U.S. courts must comply with rulings by an international court, particular when the ruling reaches far into the criminal justice process of U.S. state courts.

Throughout the history of the three cases in the ICJ, the federal government had shown no inclination to comply with the Court's orders, reading the provisional measures and judgments as narrowly as possible, with the result that the prisoners represented in the Paraguayan and the German cases were in fact executed before any further review of the their cases had been undertaken. (13)

The United States has historically been, at best, ambivalent about the binding nature of international law but never before has the federal government been ordered by an international court to enforce a treaty obligation through the mechanism of its state courts, requiring the state courts to disregard some of their criminal procedural rules. It came as a great surprise, therefore, when, after the ICJ's judgment in the Mexican case, President Bush issued a memorandum on February 28, 2005 telling the states that they must comply with the Avena decision. (14) Texas promptly replied that the President had no power to interfere with the running of the state's criminal courts. (15) Texas has also argued that complying with the President's memorandum will usurp the role of the Supreme Court in interpreting treaties, contradict the Senate's understanding of the VCCR, the Optional Protocol to the VCCR and the UN Charter, and intrude on the sovereignty of the states. (16) This ushered in the next phase of the controversy which has raised large Constitutional questions revolving around the allocation of power between various branches of the federal government and between the federal and state governments.

Medellin was the first case to make its way to the Supreme Court raising this vast array of hugely significant issues, which is why the case is the subject of this Symposium. The Supreme Court's decision ultimately refused to enforce the ICJ's Avena decision either as a result of obligations under treaties or in compliance with the President's memorandum. The states remain free to comply with the decision as Justice Stevens's concurring opinion invites them to do so. Although the Court does imply that the Senate has the power to make clear that treaties are self executing and that Congress is free to pass implementing legislation, the impact of this decision on the way that the rest of the world views the United States' compliance with its international obligations is likely to be severe. Our treaty partners need to be aware that the Supremacy Clause of the Constitution does not presumptively make our treaties self-executing, as most commentators throughout our history have assumed, and that without explicit treaty language referring to the enforceability of the treaty as United States law, treaties will remain simply an obligation at the international level which the United States may, or may not, act upon as she sees fit. An added complication is that the states remain free to comply with treaties that require their implementation, again as they see fit.

Below you will find seven articles treating a wide variety of the issues raised by the Medellin case. It is interesting how different the articles are in their approaches and these differences are again testimony to the breadth and the depth of this fascinating case. A brief summary of each article is undertaken here to provide a guide to the reader.

Professor Margaret McGuinness' article sets out to examine three different theoretical approaches that she has observed in Medellin analysis. She first notes that Medellin and similar cases have moved from simple state court criminal cases to an international battle to defeat the death penalty in the United States as well as a high profile argument to integrate international law, including ICJ judgments, into the domestic fabric of law. The President's memorandum to state courts to abide by the Avena decision is seen as catapulting the Medellin case into a contest between executive/federal power to enforce treaties against state power to insist on their own implementation of treaties within the framework of state procedural and substantive criminal law.

The body of McGuinness' article develops what she calls three narratives that seek to explore and elaborate our understanding of Medellin. The first narrative she names the "Internal/Constitutional Narrative." This framework is constructed "from the inside looking out" and adheres to the dualist view that regards international law as outside national law, not superior to it but, at best, parallel with it. The dualists argue either that executive power over foreign affairs, including treaties, results in federal supremacy over the states in this sphere, or they argue that the executive has overstepped its Constitutional power by encroaching on the role of the states in the administration of justice. While the outcome of these approaches are different, they are alike in regarding the internal U.S. Constitutional allocation of powers as determinative, rather than external international court judgments. McGuinness has located the majority, concurring, and dissenting opinions of the Supreme Court in Medellin as within this framework.

The second narrative is named the "External/Internationalist Narrative" which views the issues "from the outside in." It focuses on the State's international obligations and its responsibility for remedying its violations of those obligations regardless of the strictures of its own internal law. Although the External/Internationalist and the Internal/Constitutionalist can run on parallel tracks, the former is grounded in international law principles, such as the obligation to abide by treaties and international court decisions when a state has consented to abide by such decisions.

Most of the arguments supporting Medellin in the Supreme Court were made within the External/Internationalist framework. Some of Medellin's supporters saw the case as an opportunity to strike at American exceptionalism on the imposition of the death penalty but others were more concerned to emphasize the role of international law enforcement within a preferred model of international relations. This view refuses to countenance the operation of U.S. law as free from the constraints of international law.

The third approach is named the "Trans national/Intersystemic Narrative" which views the case by looking at the way in which domestic and international systems interact. It seeks to discuss the case within a legal, social and political process with human rights norms moving "across borders and between legal systems." (17) McGuinness concludes that this last narrative is to be preferred as it provides a more complex picture of the multiple systems of law and the variety of actors in the case.

The article views the Medellin case as transposing "rights" cases, which have long been fought in the domestic arena, into the global theater. In this case, the VCCR was the mechanism for importing a human rights standard into the U.S. legal system. McGuinness describes this mechanism as a norm portal. This particular norm portal has brought a large array of international players into domestic cases who have joined forces with U.S. factions to bring pressure on the issue of the U.S. retention of the death penalty. The United States has not been able to preserve its position of uninfluenced sovereign power to determine its own human rights standards.

The article then tracks the hazards of using a domestic legal framework to advance a human rights agenda by noting a number of actions already taken by the United States to insulate it self from further international oversight. McGuinness notes that the Supreme Court's decision in this case may close a number of previously open avenues. Nonetheless, she recognizes that the litigation has greatly enhanced awareness of, and compliance with, consular rights. The case is also seen as demonstrating how marginalized the international human rights mechanisms are within the United States. The article concludes that this case may demonstrate that political acceptance may ultimately be more important in changing state behavior on human rights norms than adjudication, although adjudication can operate as part of the argument for political acceptance.

McGuinness is ultimately concerned that the Supreme Court's decision may highlight the U.S. determination not be influenced by international institutions or norms and it may be used as an example by states lacking well developed legal systems, or with little respect for individual rights, to insulate themselves from outside scrutiny. The decision is also seen as likely to diminish the U.S. reputation for adherence to the rule of law and have an adverse effect on the enforcement of the VCCR and treaties where the United States has submitted to dispute settlement in the ICJ.

Professor John Murphy's article starts with a brief commentary on the recent Supreme Court decision in Medellin. He concludes that, as he feared, the decision has "highly significant adverse implications for U.S. support of the rule of law in international affairs." (18) He examines the impact of the Supreme Court's failure to enforce Avena at the domestic level and its decision that ICJ judgments are not determinative in U.S. courts. He notes the wide divide on the Court concerning the methodology to be used to determine whether treaties are self-executing or not and he surmises that this uncertainty will "undermine U.S. support for the rule of law in international affairs." (19) He then suggests two possible ways of eliminating this uncertainty. He notes Justice Stevens' call to the states to comply with Avena to prevent further breaches of U.S. treaty obligations. He also regrets that the Court did not look more closely at the methodology of the President's attempt to enforce the ICJ's judgment. Finally, he agrees with Justice Stevens prediction that "the costs of refusing to respect the ICJ's judgment are significant ... and will jeopardize the United States' ... commitment to the role of international law." (20)

In his article, Professor Murphy had acknowledged that, within the United States, "dualism" is still the predominant theoretical approach to understanding the relationship between national and international law, despite much criticism. He, therefore, explores Medellin using the dualist approach which he expected the Supreme Court to employ. He explains dualism as a theory which regards domestic and international law as separate spheres, with international law only applicable in the domestic arena if, and when, the domestic system decides to incorporate it. Murphy carefully recounts the background to, and the decisions in, the three cases brought against the United States by Paraguay, Germany and Mexico, both in U.S. courts and in the ICJ, with special emphasis on the dualist approach. He also finds that the U.S. withdrawal from the Optional Protocol to the VCCR (21) fits this perspective. Recent precedent in the Supreme Court's decision in Sanchez-Llamas v. Oregon (22) makes it clear that the U.S. Supreme Court views itself (not the ICJ) as the final interpreter of federal law, including treaties.

When Murphy examines the oral arguments before the Supreme Court in Medellin, he finds many of the Justices' questions exhibit a pure dualist approach. He then explores a range of possible bases for the Supreme Court's decision in Medellin and he calibrates each possible approach for its effect on the rule of law in the United States as it relates to international affairs. This article was ultimately fearful that a decision based on the views that the current Chief Justice and some other Justices exhibited during the oral argument in Medellin could result in international law being assigned a status in U.S. law even lower than it has traditionally enjoyed. As Professor Murphy's review of the Supreme Court's opinion reveals, his fears were all too prescient.

Professor John Cerone's article sets out to explore the reasons behind President Bush's extraordinary memorandum telling the states to abide by the ICJ's Avena decision. He examines the interests that were served by the assertion of executive power in this case. He describes the current U.S. government's general approach to international courts as "instrumentalist," by which he means "employing international judicial authority when it suits U.S. interests." (23) Although he documents various U.S. interests in enforcing the Avena judgment, particularly reciprocal observance of the treaty by other states on behalf of U.S. citizens abroad, he ultimately finds that this particular interest cannot serve as a full explanation of the executive's approach, in light of its withdrawal from the Optional Protocol to the VCCR.

The President's claim, set out in the U.S. brief to the Supreme Court in Medellin, to be the sole authority with the power to determine whether ICJ judgments will be enforced in the United States is viewed as an example of invoking international law to expand executive authority while simultaneously rejecting any overriding restraints that international law might impose on the United States by indicating that he is only ordering compliance as a matter of "comity." Cerone examines the failures and successes of this approach to international law (advocating its use to expand executive power while rejecting its application when it restrains executive power) in the context of the "War on Terror." He documents the current administration's approach in the cases arising out of the Afghan conflict brought by Guantanamo detainees and notes that the U.S. Supreme Court has, on occasion, disagreed with the administration's arguments on the non-applicability of certain treaties.

The article concludes by urging the Supreme Court to order compliance with Avena, not because that approach happens to endorse executive power, but rather as a matter of enforcing federal treaty law based on the principle of good faith compliance with international obligations, which Cerone regards as fundamental to the whole international system.

In light of the Supreme Court's decision in Medellin, with its rejection of the enforceability of the ICJ's judgment in state courts absent Congressional action, Professor Cerone calls on the President to ask Congress to accord Avena status as federal law, although he is not sanguine about the likelihood of Congress's acquiescence.

Professor Jordan Paust's article starts boldly with two assertions: that ICJ decisions, in cases to which the United States is a party, are binding on the United States as a matter of treaty law, namely, the UN Charter; and that the President has the authority to execute U.S. treaties and to issue executive implementary measures which are binding on the states by virtue of the Supremacy Clause of the U.S. Constitution. He then sets about proving his assertions. First, he briefly describes the holding in Avena. Next, he details the President's memorandum, requiring the state courts to give effect to the ICJ's decision, and determines that the President's memorandum operates as an executive order within the scope of his treaty compliance powers.

Paust argues that under the Constitution, the President has both the right and the duty to faithfully execute the laws, including treaties. In this case, the President chose the means of treaty compliance (the UN Charter obligation to comply with ICJ judgments) by requiring the states to comply with the Avena decision. Constitutionally, all treaties are the Supreme Law of the Land binding the state judiciary and Charter obligations prevail over inconsistent state law, even if the President has issued no memorandum.

The notion, put forward by Texas in its argument before the Supreme Court in Medellin, that the President's memorandum impermissibly encroaches on state judicial power, is roundly rejected. The article maintains that under the Constitution the states retain no power over treaties, as the treaty power is expressly delegated to the federal government and federal law, including treaties, are supreme over state law and state judges. Paust cites numerous cases where treaties have been held to supercede matters that otherwise would have been controlled by the states. He ends this section by quoting from Texas state courts which have specifically recognized the supremacy of treaty law over state law. He therefore concludes that in the Medellin case, the Texas Court of Criminal Appeals' rejection of the President's attempt to tell the Texas courts what law to apply is Constitutionally unsound.

The article also determines that the Antiterrorism and Effective Death Penalty Act (AEDPA) (24) is not directly relevant to the issues in question as there was no clear Congressional intent in the AEDPA to override any relevant treaty. In any event, rights under a treaty, he argues, take primacy over contrary subsequent federal statutes and the AEDPA did not intend to deny habeas corpus claims based on constitutionally based rights or treaty based rights.

Paust concludes that the ICJ's Avena judgment and the President's memorandum requiring state implementation is therefore binding on the United States and the states as a matter of treaty law backed by Constitutional mandate on the scope of the treaty power and Presidential power to implement treaties throughout the United States. He, therefore, decries the Supreme Court's decision for misinterpreting the Supremacy Clause and for using an improper test to determine whether treaties confer individual rights. He cites numerous state and federal decisions to support his view that the U.S. was bound to follow Avena as a matter of federal treaty law and that the President's memorandum fell within his powers. Paust strongly recommends that the Supreme Court revisit all of these issues.

Professor Craig Jackson's article first notes that the Supreme Court's decision in Medellin failed to address federalism issues arising out of the context of the United States' international obligations. He nonetheless sets out to examine the federal/state tensions that lie in the heart of Medellin knowing that the issues are likely to be raised at some point in the future, even if Congress decides to pass legislation implementing various treaty obligations as the Court indicated it has the power to do. He briefly catalogues the history of the case in the United States and the contours of the emerging federalism arguments.

Jackson examines the foreign affairs powers and the preemption doctrine in the context of a series of Supreme Court cases that have held state power unconstitutional where it impedes the federal government's ability to speak with "one voice" in the area of foreign policy. He also looks at the cases that read the treaty making power as giving the federal government broad powers that can either be seen as a limitation on state powers or as springing from a different source of power. Jackson then takes up the thorny issue of other Constitutional limitations on the treaty making power and concludes that this power cannot be read as escaping all other strictures. Nonetheless, he concludes that, provided a treaty is perceived as falling within the foreign affairs powers, the Tenth Amendment does not operate as a limitation.

The article next turns to the federal foreign affairs powers, particularly in relation to the states, and finds that the major constitutional cases oust the states from foreign policy issues, leaving the federal government with autonomy in this area. He concludes that if there is some form of subject matter limitation on the foreign affairs power, the Tenth Amendment will not be the source of such a limitation. He speculates that if the states were permitted to apply their own rules to the implementation of treaties, which in the Medellin case involved criminal procedural default rules, then that would effectively allow the states to dictate foreign policy.

The article then reviews the "anti-commandeering doctrine" in the context of federalism. The cases relying upon the doctrine are viewed as exhibiting limitations on federal power where Congress has intruded upon state autonomy or "commandeered" the state legislative process. Those cases which have arisen in the domestic context are, however, distinguished from those cases where the state is being asked to implement a treaty, as in Medellin, which implicates foreign policy, treaty partner relations, and U.S. standing in the world community.

Jackson then muses on whether borrowing the due process/equal protection sliding scale approach, moving from minimum rationality to strict scrutiny would be useful in deciding when federal law implementation should override areas traditionally governed by the states.

Finally, the article deplores the Supreme Court's approach to the domestic implementation of international obligations in Medellin. Jackson fears that even if Congress passes legislation implementing treaty obligations that requires state action, there is likely to be further litigation with respect to the appropriate division of powers between Congress and the states. He argues that the Tenth Amendment and the "anti-commandeering" doctrine are not suitable for use in the foreign affairs or treaty arenas.

Professor William Schabas' article traces the role of the death penalty in the three ICJ Vienna Convention cases and the Medellin litigation. Though recognizing that the Medellin case does not directly raise the issue of the legality of the death penalty as such, he documents the pervasive role it played in motivating Mexico to file suit in the ICJ on behalf of fifty-four of its nationals, including Medellin.

Schabas explains that the human rights aspects of the VCCR cases have emphasized the link between fair trial issues and the death penalty. A number of international courts and other deliberative organs have linked failure to provide consular assistance rights to death row inmates to the lack of due process rights which, in capital cases, might violate the right not to be deprived of life arbitrarily. (25)

The article traces the history of opposition to the U.S. death penalty both within the United States and internationally. Schabas first examines efforts to protect the right to life, and the breadth of that protection, in the drafting of the Universal Declaration of Human Rights (UDHR), the UN Charter, and the work of the Commission on Human Rights. Next, he turns to the drafting of the International Covenant on Civil and Political Rights (ICCPR), including the U.S. influence, which preserves the right to life in Article 6, treating capital punishment as an exception, with added provisions that limit its imposition. Schabas recounts that, after several decades, the United States did ratify the ICCPR but with a reservation to article 6 maintaining the right to impose capital punishment subject only to U.S. Constitutional limitations.

Although the United States has not submitted to the individual petition mechanism in the Optional Protocol to the ICCPR, Schabas notes that the U.S. death penalty has been raised by persons subject to Canadian jurisdiction bringing complaints about their extradition or deportation to the United States which might result in capital punishment and thus violate the Covenant.

Schabas then traces the abolition trends in the UN including procedural protections for those on death row and the U.S. policy towards the various developments. This is followed by an examination of the trends in the Organization of American States (OAS), focusing again on the U.S. role, particularly in cases brought against the United States in the Inter-American Commission on Human Rights. He analyzes the Commission's comments on the effect of violations of the VCCR in capital cases including specific references to the Medellin case. He also discusses the Advisory Opinion of the Inter-American Court of Human Rights, (26) which has found that failure to provide consular rights to capital criminal defendants violates due process, resulting in the arbitrary deprivation of life.

In the European human rights system, Schabas examines the work of several of the regional organs, including decisions of the European Court of Human Rights, that have raised U.S. death penalty issues. He notes that the European Union has expressed disapproval of the death penalty to the U.S. government and participated in amicus briefs to the U.S. Supreme Court in Atkins v. Virginia (27) and Medellin v. Texas. (28)

Finally, Schabas examines the U.S. role in the establishment of international criminal courts, all of which prohibit the death penalty, noting that in the drafting of the various statutes the U.S. has, in fact, never supported the death penalty and has sometimes openly opposed it.

The article concludes that opponents of the death penalty view the Medellin case as part of the battle in their overall cause and that concerns about international opposition to the death penalty have become inextricably woven into the legal issues facing the U.S. Supreme Court in Medellin. Schabas ultimately expresses a strong sense of regret that the Supreme Court did not see fit to weigh death penalty concerns more heavily in its final decision.

Christina Cerna's article addresses the issue of whether consular access rights under the VCCR are human rights, as well as individual treaty rights as the ICJ has ruled, and what impact this might have in the Medellin case. She notes that the Inter-American Court of Human Rights, in its Advisory Opinion in 1999,29 ruled that VCCR rights were human rights within the panoply of due process rights that individuals enjoy when they are detained by a foreign government but that the ICJ has declined to rule on the issue, despite its being raised by Germany in the LaGrand case and Mexico in the Avena case.

Cerna first describes the chronology of two of the VCCR cases in the ICJ brought against the United States by Paraguay and Germany. She follows this by examining various opinions issued by the judges on the Inter-American Court in the Advisory Opinion of 1999. She catalogues a number of questions raised by the Inter-American Court's opinion and notes that the Court ultimately ruled that the imposition of the death penalty on a person deprived of rights under the VCCR results in the arbitrary deprivation of life, which violates various articles of the ICCPR and of the American Convention on Human Rights.30 Ultimately, she views the opinion as part of the European and Latin American attack on the United States' refusal to abolish the death penalty.

The article recounts the German LaGrand case, first examining the ruling that provisional measures are binding, not simply hortatory. Next, Cerna examines the differences between the U.S. approach to VCCR rights (only States rights are involved in VCCR violations) to the German approach (both State and individual rights are at stake in such violations). Finally, she documents that during oral argument before the ICJ, Germany contended that the individual's rights under the Convention were also human rights. The Court sided with Germany on the issue of individual rights but declined to address whether those rights were also human rights or what the consequences of such a label might entail.

Cerna then tackles the Mexican Avena case starting with its request for provisional measures and its allegations of violations of State and individual rights. She also catalogues a parallel case in the Inter-American Commission that was proceeding with respect to one of the Mexican detainees. In the Avena case, she notes that Mexico, like Germany, argued that consular rights were human rights, part of due process rights and that infringement of such rights should automatically vitiate the whole criminal proceeding. Again, the Court declined to rule on this issue but, in dicta, indicated that it might disagree with such a view. Cerna considers that the Court's refusal to nullify the convictions indicates that the Court, in fact, had determined that consular rights were not human rights. The limited remedy of having the U.S. courts only review and reconsider, rather than nullify, convictions and sentences, confirms that Mexico had lost the battle to have such rights labeled "human rights."

The article next catalogues the effect that both the ICJ judgments and the Inter-American Court's Advisory Opinion has had on VCCR litigation in the United States. Cerna gives details of Torres v. Oklahoma, (31) where the defendant's execution was stayed for reconsideration under the terms of the Avena judgment which had been issued two month's previously. The opinion of the Oklahoma Court of Criminal Appeals remanding Torres for a further evidentiary hearing was clearly influenced by the Avena decision. However, in Sanchez-Llamas v. Oregon, (32) which was decided by the Supreme Court after LaGrand but before Avena, the Supreme Court, held that evidence gained prior to giving consular rights advice should not be suppressed and the majority refused a remedy where the claim had been procedurally defaulted. The dissent found LaGrand and Avena persuasive on a number of issues and thought that suppression might sometimes be warranted.

Cerna finally reviews some differences that have arisen in the federal circuit courts on the issue of whether Article 36 of the VCCR grants individual rights, and whether, if it does, it also confers a private right to damages. She ultimately concludes that the United States has followed a largely unwavering pattern of disregarding obligations imposed by international law. She reviews the Supreme Court's decision in Medellin and, as she suspected, finds it to conform to this pattern.

Concluding Thoughts

Here then are seven very different approaches to the case of Medellin v. Texas. The Symposium authors have developed rich seams of domestic and international jurisprudence exposing the core issues presented by the national and international litigation culminating in the Supreme Court's decision on March 25, 2008. (33) This is surely a case that invites the reader's further consideration especially for its far reaching implications about the role of international law in U.S courts and the distribution of powers both among the federal branches of government in seeking to implement treaties and between the federal and state governments as the keepers of U.S. international obligations.

(1.) Medellin v. Texas, 128 S. Ct. 1346 (2008).

(2.) Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 248, (Interim Protection Order of Apr. 9); LaGrand (F.R.G. v. U.S.) 2001 I.C.J. 466 (Jun. 27); Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31) [hereinafter Avena].

(3.) Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (entered into force Mar. 19, 1967; entered into force for U.S. Dec. 24, 1969) [hereinafter VCCR].

(4.) Of course, the willingness of Paraguay, Germany, and Mexico to expend considerable resources on defending the named prisoners was certainly influenced by the fact that they were charged with capital offenses.

(5.) See, for example, the "United States ... indicated to the Court that it had expressed its regret to Paraguay for the failure to notify Mr. Breard of his right to consular access...." Convention on Consular Relations, 1998 I.C.J. 248, [paragraph] 29; LaGrand, 2001 I.C.J. 466, [paragraph][paragraph] 29, 67, 121 & 125; Avena, 2003 I.C.J. 128, [paragraph][paragraph] 27 & 37.

(6.) LaGrand, 2001 I.C.J. 466, [paragraph] 77.

(7.) Avena, 2003 I.C.J. 128, [paragraph] 123.

(8.) See Valerie Epps, Violations of the Vienna Convention on Consular Relations: Time for Remedies, 11 WILLAMETTE J. OF INT'L L. & DISPUTE RES. 1, 2 n.3 (2004) (citing extensive list of cases). There has even been the intimation that to give a foreigner extra protections beyond those that citizens receive, especially when the foreigner has lived in the United States for many years, treats citizens and foreigners unequally. See Ex Parte Medellin, 233 S.W.3d 315 (Tex. Crim. App. 2006) (Hervey, J., concurring)

(9.) Avena 2003 I.C.J. 128, [paragraph] 121.

(10.) Id. [paragraph] 122.

(11.) Id.

(12). Avena, 2003 I.C.J. 128, [paragraph][paragraph] 113, 114 & 134; LaGrand, 2001 I.C.J. 466, [paragraph] 90.

(13.) See Breard v. Greene, 523 U.S. 371, 378 (1998); F.R.G. v. United States, 526 U.S. 111, 112 (1999) (per curiam).

(14.) Memorandum from George W. Bush, President, United States, to U.S. Att'y Gen. (Feb. 28, 2005), available at http://www.whitehouse.gov/news/releases/2005/02/20050228-18.htm1.

(15.) Brief for Respondent at 36-42, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2428387.

(16.) Id. at 9-42.

(17.) Margaret McGuinness, Three Narratives of Medellin v. Texas, 31 SUFFOLK TRANSNAT'L L. REV. 227, 240 (2008).

(18.) John F. Murphy, Medellin v. Texas: Implications of the Supreme Court's Decision for the United States and the Rule of Law in International Affairs, 31 SUFFOLK TRANSNAT'L L. REV. 247, 247 (2008).

(19.) Id. at 248.

(20.) Id. at 250.

(21.) "On 7 March 2005, the Secretary-General [of the U.N.] received from the Government of the United States of America, a communication notifying its withdrawal from the Optional Protocol." Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 (entered into force Mar. 19, 1967; entered into force for the U.S. Dec. 24, 1969), available at http://untreaty.un.org/ENGLISH/bible/englishinterentbible/partl/ chapterIII/treaty33.asp.

(22.) 126 S. Ct. 2669 (2006).

(23.) John Cerone, Making Sense of the U.S. President's Intervention in Medellin, 31 SUFFOLK TRANSNAT'L L. REV. 279, 284 (2008).

(24.) 28 U.S.C. [sections] 2254(4) (1996).

(25.) See International Covenant on Civil and Political Rights art. 6, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force Mar. 23, 1976; entered into force for U.S. Sept. 8, 1992).

(26.) The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A), No. 68 (Oct. 1, 1999) [hereinafter Advisory Opinion 16].

(27.) 536 U.S. 304 (2002).

(28.) 128 S. Ct. 1346 (2008).

(29.) See Advisory Opinion 16, supra note 26.

(30.) American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force Jul. 18, 1978).

(31.) 120 P.3d 1184 (Okla. Crim. App. Sept. 6, 2005).

(32.) 126 S. Ct. 2669 (2006).

(33.) Medellin v. Texas, 128 S. Ct. 1346 (2008).

Valerie Epps: Editor *

* Professor of Law and Director of the International Law Concentration at Suffolk University Law School. Suffolk Transnational Law Review would like to thank Dean Alfred Aman, who has been unfailingly supportive of this Symposium. The Transnational Law Review is extremely grateful to the seven authors contributing to this Symposium, who have been diligent and timely with all their drafts. I should also like to thank the staff of the Transnational Law Review for their meticulous work on all of the articles. Lastly, I wish to express special thanks to Mishell Fortes for her calm patience in typing and revising all of the texts.
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Author:Epps, Valerie
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Date:Jun 22, 2008
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