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Three narratives of Medellin v. Texas.

I. INTRODUCTION

Every once in a while, a Supreme Court case comes along that holds a mirror up to the changing face of the American polity. Medellin v. Texas (1) (Medellin II) is such a case, reflecting divisive national debates over immigration, the death penalty, victims' rights, the scope of executive power, U.S. adherence to international human rights standards, the salience of international law to national security, and the appropriate role of judicial review of political decisions. Which of those issues stands out among the reflected images depends on who is peering into the mirror.

For international law scholars, the significance of Medellin II lies in its reflection of America's relationship with the world, and in particular America's current ambivalence toward international law and the international regulation of human rights. (2) Medellin II is one in the line of criminal cases in which foreign nationals challenged the failure of law enforcement officials to meet the consular notification requirements of the Vienna Convention on Consular Relations (VCCR), (3) cases that arose because the United States retains the death penalty in the face of international legal abolition. (4) Thus, United States participation in the VCCR-a multinational treaty that codified traditional sovereign prerogatives to protect and provide services to nationals living in foreign states--provided an unexpected portal into the United States courts. This VCCR "norm portal" afforded transnational advocacy networks an opportunity to successfully challenge death penalty practices in the United States

The facts of the case are well-known: (5) a Mexican national, Jose Medellin, was convicted in Texas state court of rape and murder and sentenced to death. Late in Medellin's appeals process, his lawyers learned that he had not been informed of his right to notify the Mexican consulate of his arrest, as required under Article 36 of the VCCR. His lawyers and the Mexican government pursued several avenues to seeking to set aside or have reconsidered his conviction and/or death sentence. Those disparate efforts took the form of a federal habeas corpus challenge, (6) diplomatic and political efforts, (7) requests for an advisory opinion of the Inter-American Court of Human Rights (IACtHR), (8) successful litigation brought by Mexico against the United States at the International Court of Justice (ICJ), (9) and, finally, a suit by the death row inmate against the State of Texas that twice reached the U.S. Supreme Court. (10)

Along the way, the case evolved from a simple criminal appeal of a conviction and sentence handed down in a state viewed as the bulwark of capital punishment in the United States, (11) to a symbol of American exceptionalism to international regulation of the death penalty and resistance to international adjudication. (12) It also became a (presumably welcome) opportunity for the administration of George W. Bush to reassert a robust view of executive power-this time over the states and the courts. Medellin illustrates Alexis de Tocqueville's maxim that all the central political debates in the United States sooner or later resolve themselves as judicial questions. (13)

The ICJ ruled against the United States in Avena, and held that Medellin, along with fifty other Mexican nationals on death row in the United States, was entitled to "review and reconsideration" of his conviction, notwithstanding domestic procedural rules to the contrary. The Supreme Court granted certiorari in Medellin I following the Avena decision. Following President Bush's subsequent determination that the United States would comply with the Avena decision, (14) Medellin I was dismissed on the grounds that certiorari has been improvidently granted. (15) After the Texas Court of Criminal Appeals rejected, on separation of powers and federalism grounds, the President's authority to order a Texas state court to comply with Avena and dismissed Medellin's petition for state habeas relief, the Supreme Court again granted certiorari. (16) The two questions upon which the Court granted review in Medellin II demonstrate how political questions about U.S. participation in the international human rights system came to be judicialized by the combined effect of the ICJ opinion and the President's determination to comply: does the President have constitutional and statutory foreign affairs authority to determine that the states and their courts must give effect to the ICJ's Avena decision; and are the states bound by the Constitution to give effect to the Avena judgment? (17) The case thus raised important questions of executive power, federalism, and the role of Article III courts in enforcing treaty obligations.

The Court answered both questions in the negative, holding that the Avena decision did not create federal law that was enforceable against the states, and that the President exceeded his executive powers in attempting, through the issuance of the presidential memorandum, to enforce the decision against the states. (18)

Yet, Medellin II represents more than the sum of its doctrinal parts. The broad socio-political narrative of Medellin II--how the case evolved from a state criminal proceeding, to part of a regional human rights case, to the subject of an interstate proceedings before the ICJ, to the focus of direct diplomatic negotiations, (19) to a rallying point for anti-death penalty activists around the world, to its most recent, (and potentially final, for Medellin himself) second incarnation as a Supreme Court case--reflects the complexities of an increasingly legalized international system. This legalization has extended--through the expansion of the international human rights system--to increased judicialization of the relationship between individuals and the state. Thus, consular protection and notification, once solely the function of the state to extend and enforce in its relationship to other states, has become subject to international and domestic judicial scrutiny. And the death penalty, once a subject of domestic law, has become regulated at the international level.

As Andrew Guzman has argued, Medellin II is a useful illustration of how and why international law works and important evidence of how "international legal rules affect state behavior." (20) I have described elsewhere the ways in which the political processes in the VCCR death penalty cases interacted with legal processes to bring about the series of ICJ challenges and the challenges to domestic criminal convictions in the United States and how these cases have altered political behavior of the federal and state governments. (21) This essay takes a different turn to explore Medellin II through two dominant legal narratives, which I have labeled Internal/Constitutionalist and External/Internationalist, and an alternative narrative, which I label Transnational/Intersystemic. The two dominant narratives are explored through an examination of the various actors and arguments that appeared in the Supreme Court litigation, either directly or through amici briefs.

In describing the third, alternative narrative, I attempt to demonstrate the importance of Medellin II to our understandings of international human rights norm creation, transmittal and elaboration. In particular, I am interested in understanding the role of courts and adjudication in that process. I also hope to demonstrate that, while the broader litigation story of Medellin II can, as I have argued elsewhere, (22) be viewed as a step toward integration of the international abolitionist norm in the United States, the final Supreme Court decision in Medellin, rejecting as it did the efforts of both the death row petitioner and the executive to enforce Avena, provides important lessons about the limits and pitfalls of constitutional adjudication as a means of human rights norm integration.

Paradoxically then, and regardless of the Supreme Court's decision in the case, Medellin II represents a success for the international human rights movement in its entrepreneurial exploitation of an increasingly legalized system, but also a warning signal for the potential hazards of such legalization to the ultimate goals of human rights protection. Opportunistic litigation that exploits norm portals such as the VCCR may carry unintended costs--often in the form of political resistance to the litigation itself--to the long-term development of the international and domestic institutions that are necessary to effective international human rights enforcement.

II. THE THREE NARRATIVES OF MEDELLIN

The Intern al/Constitutionalist Narrative (23) takes the U.S. Constitution as the final word on applicable law and modes of judicial interpretation in the case. The External/Internationalist Narrative takes the tenets of public international law as providing first order principles for understanding the case and deciding the outcome. These two narratives dominate the arguments of the parties and the amici. (24) The Transnational/Intersystemic Narrative seeks to explain the cases through the phenomenon of multiple, interactive systems of law through which changes in normative behavior occur.

The two dominant narratives-Internal/Constitutional and External/Internationalist-adopt distinct vocabularies and set out boundaries within which the case can be understood. Despite the fact that the case was decided as a matter of domestic constitutional law (and thus within the Internal/Constitutionalist Narrative), each of these narratives is revealed in the arguments the parties made before the court, in the amici briefs filed on behalf of a range of interested parties, and in the expressed attitudes of judges who have been confronted with VCCR claims in U.S. courts. (25) I do not mean to suggest that these narratives are necessarily conflicting, or that each of these narratives was predictive of the outcome of particular claims before the Court. Rather, each narrative provides a framework within which specific legal arguments are advanced and justified. Values compete within each narrative, and a range of outcomes are possible. But the parties, amici, and commentators tend to adopt the vocabulary of one of the threes narratives to bolster their arguments, and in so doing stake a claim about America's relationship to the international community and, in particular, its relationship to international regulation.

A. The Internal/Constitutionalist Narrative

The Internal/Constitutionalist narrative frames the issue of America's interaction with international law from the inside looking out. It adopts a vocabulary reflecting the history, internal structures, and jurisprudential traditions of the Constitution. This narrative is consistent with the doctrine of dualism, which posits that international law is not superior to national law, but rather remains outside and parallel to the Constitution. (28)

The briefs of the central parties-the petitioner, (29) the respondent, (30) and the United States as amicus curiae (31)--reflect this Internal/Constitutionalist narrative. (32) The central arguments on which the petitioner rested his argument for relief were: (1) Avena is binding on the United States and, through the Supremacy Clause, on Texas and its courts; (2) Avena must be given judicial effect through the combined application of the Treaty Clause and the Take Care Clause; (3) the President may exercise his foreign affairs powers to direct states to comply with international obligations undertaken by the federal government; and (4) that the Constitution requires Texas courts to enforce treaties--and thus the Avena decision-as federal law. (33) These arguments were repeated in the briefs of amici supporting the petitioner, the U.S. Solicitor General and the American Bar Association. (34)

In response, the State of Texas argued: (1) the Presidential Memorandum of February 2005, by attempting to create law, impermissibly intruded on congressional power and exceeded constitutional limits on executive power; (2) the Memorandum intruded on the powers of the federal and state judiciaries; (3) the memorandum impermissibly intruded on the structure and functions of the Texas judiciary and violated the anti-commandeering doctrine; (4) Avena is not enforceable by a private party in domestic court. (35) It was joined in these arguments by the amicus curiae Criminal Justice Legal Foundation, a pro-death penalty group that supports victim's rights. (36)

The Internal/Constitutionalist narrative is not one that ineluctably leads to a rejection of giving domestic effect to the Avena opinion. Similarly, as to the federalism question, i.e., whether the President, when acting under his broad foreign affairs powers, is constitutionally authorized to command the states to comply, the Internal/Constitutionalist narrative permits a range of answers, as Justice Breyer's dissent demonstrates. (37) Because it is, by its nature, the narrative frame within which the Court operates, it is also clear that it permits contestation of the role of international law in U.S. constitutional jurisprudence. In Sanchez-Llamas, the majority, concurring, and dissenting opinions each reflected attitudes toward American human rights exceptionalism, ranging from strong exceptionalism, to pragmatic judicial transnational engagement, to strong anti-exceptionalism. (38) Similarly, the majority, concurring, and dissenting opinions in Medellin II reflect a range of views within the Internal/ Constitutional narrative that seek (a) a more explicit congressional involvement in international law making (majority and Justice Stevens's concurrence), (b) more direct compliance with international law by the states (Stevens's concurrence), and (c) broader deference to executive branch views and closer integration of international treaty interpretation practice into U.S. practice (dissent).

Among those actors operating within the Internal/Constitutionalist narrative we thus observe, if not strange bedfellows, at least surprising alignments of interest in the outcome of the case. The most unusual of these is the amicus brief filed by the Bush Administration in favor of the petitioner and against Texas. (39) While Governor of Texas, Bush presided over 152 executions, the most of any U.S. governor in modern history. As President, he argued vigorously for the proposition that the VCCR did not create an individual right to notification, in both federal court and before the ICJ in Avena. (40) Once the political decision had been made to comply-through the Memorandum of February 2005-and to withdraw from any further adjudication of VCCR disputes by the ICJ, (41) Bush effectively converted the question of international law to one of executive prerogative under the Constitution. That the Solicitor General lined up in support of the death row petitioner indicates the importance Bush places on the executive power and federalism issues that were at stake.

Of the amici appearing in support of Medellin, the Solicitor General's brief is most representative of the Internal/Constitutionalist narrative. The Solicitor General, however, parted company with the petitioner on the ability of Article III courts to give direct effect to ICJ opinions. In response to a question at oral argument from Justice Kennedy as to whether the President can displace the Supreme Court's authority to interpret the Avena judgment, Medellin's counsel (42) answered in the negative. (43) Later, in response to a question from Chief Justice Roberts, Medellin's counsel stated, "[t]his Court-to the extent that this is federal law, this Court has the ultimate authority to determine whether or not [Avena] should be complied with." (44) By contrast, in his brief and at oral argument the Solicitor General argued that the President's determination to give effect to Avena was a necessary prerequisite to making Avena binding on Texas state courts. (45)

B. The External/Internationalist Narrative

The External/Internationalist narrative frames the issue of America's interaction with international law from the outside in. It adopts a vocabulary reflecting the history, structure and jurisprudential traditions of public international law. This narrative is consistent with the doctrine of state responsibility, where the question of how nation states give effect to their international legal obligations as a matter of internal law is of little concern to other nation states participating in the international legal order. (46) What matters to the notion of state responsibility is that, where a state fails to meet an international obligation, it bears international legal responsibility that in turn gives rise to remedies. (47)

The Constitutionalist and Internationalist narratives are not inherently contradictory, and under the dualist conception of international law in the United States they can proceed along parallel tracks. (48) But what distinguishes the External/Internationalist from the Internal/Constitutionalist narrative is its grounding in first order principles of international law, the doctrines of pacta sunt servanda and state responsibility. The External/Internationalist narrative provides space for a relatively straight forward application of these principles: (1) treaty obligations are binding on the states party to the treaty; (2) the United States was a party to the VCCR, the VCCR Optional Protocol and the UN Charter; (3) the ICJ, under the terms of the Optional Protocol, decided the Avena case, thus adjudicating claims brought by Mexico on behalf of the petitioner and fifty other Mexican nationals in the United States who had not been informed at the time of their arrests of the right to have their consulates notified; and (4) the United States is obliged, under Article 94 of the UN Charter, to give effect to the ICJ opinion in Avena. In addition, the External/Internationalist narrative permits a broad discussion of the role of the 1999 IACtHR advisory opinion in which it concluded that consular notification under the VCCR had ripened into a human right under international law. (49)

Within the External/Internationalist narrative one can critique the reasoning of the ICJ on the basis of international law principles and contest whether the United States is obligated to give judicial, as opposed to political, effect to Avena. (50) But the validity of Avena, as a matter of international law, was never disputed by Texas or the United States, despite the fact that the United States was on the losing side of the case before the ICJ. And yet, despite the question of the obligation at the international level not being contested, most of the amici in support of the petitioner expressed their arguments firmly within the External/Internationalist frame.

In addition to the government of Mexico, represented by the same attorney who represented the defendant in the first VCCR death penalty case in U.S. courts, (51) the governments of Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Peru, Uruguay, and Venezuela together appeared as amicus curiae in support of the petitioner, (52) as did the European Union, with support from an abolitionist NGO. (53) Many of these amici played an active role in a variety of international cases raising similar issues. (54) These foreign states, NGOs and law professors perhaps saw their submissions to the court as a last opportunity to find a remedy beyond the diplomatic apology and the promise to comply prospectively with Article 36 that had marked the U.S. position prior to Avena. (55) An alternative explanation may be that these amici filed the briefs to make a larger point about American human rights exceptionalism in the area of the death penalty. Indeed, the states, NGOs and individual amici appearing in support of Medellin support abolition of the death penalty. (56)

Other pro-petitioner briefs that hewed to the External/Internationalist Narrative were filed by those seeking to underscore the value of international law to U.S. foreign policy, (57) the importance of compliance with consular protection, (58) and the significance of the case to the "international rule of law." (59) None of these briefs explicitly expressed an anti-death penalty view. They emphasized the value of U.S. interaction with the international community above any internal legal obstacle to compliance. (60)

The External/Internationalist Narrative of the case thus sees the outcome of Medellin II as significant to international law making and enforcement, and to the functioning of international relations. As noted in the brief filed by former U.S. diplomats, this framework is not incompatible with a range of views on the constitutional power at issue in the case, or on the death penalty. (61) It is, however, inconsistent with a view that seeks to wall off the United States and its courts from any interaction with the world. As Justice Breyer notes in his dissent, the decision to deny giving domestic legal effect to Avena, may "unnecessarily complicate the President's foreign affairs tasks" and may "diminish[ ] our Nation's reputation abroad as a result of our failure to follow the 'rule of law' principles that we preach." (62)

C. The Transnational/Intersystemic Narrative

The Transnational/Intersystemic Narrative is neither inward-nor outward-looking. Rather, it observes the case as a set of facts that are subject to multiple, sometimes overlapping, systems of law. As such, it adopts a more universal vocabulary that permits non-doctrinal descriptions and analyses of the case, and takes into account the ways in which the domestic and international systems of law interact with one another. Because it does not attempt to understand the case exclusively within one particular doctrinal frame, the Transnational/Intersystemic narrative is less visible in the arguments of the parties and amici.

The Transnational/Intersystemic narrative takes into account the multiple processes at work at the domestic, regional and international level, creating formal and informal spaces in which human rights are contested and elaborated. The Transnational frame takes a more holistic approach to the legal, social, and political processes out of which the Supreme Court litigation originated and thus offers a clearer understanding of how human rights norms move across borders and between legal systems. It also permits a closer examination of the implications of the VCCR/death penalty litigation for the development and strengthening of the international human rights system.

My point is not that the Internal/Constitutionalist and External/Internationalist narratives are wrong, but rather that they offer only incomplete accounts of the significance of the case to international human rights law. The U.S. Constitution, and its creation of a government that could operate within an international system, provides the institutional, legal, and normative frame through which the fate of Medellin is to be ultimately decided-including whether the Governor of Texas grants clemency or commutation, or whether the U.S. Congress adopts an implementing statute that the Court held would be necessary to give effect to Avena. The outcome of the case will be discussed by legal scholars largely on those terms, which are of course important to constitutional jurisprudence in the United States. But that account fails to consider the significant international dimensions of the case, and the impact of the case on interstate relations and the normative development of human rights. Similarly, the traditional international law formulation of the case as being resolved under the doctrine of state responsibility or treaty enforcement, fails to account for the development of norms outside of the treaty system and outside interstate enforcement of treaties. It also fails to provide an adequate account of non-state actors in this case. Given the multiple systems of law, multiple layers of adjudication, and multiplicity of actors-states, sub-states entities, NGOs, and individuals--operating in the case, a broader narrative frame is quite useful.

The Medellin II case, like many landmark cases before the Court, grew out of social and political conflict: rapidly shifting global attitudes toward abolition of the death penalty that took place in the context of increased legalization of individual rights within regional and international human rights regimes. (63) What distinguishes it from other Supreme Court cases that have become synonymous with either obstacles to the expansion of individual rights (e.g., Plessy v. Ferguson (64)), or with the removal of social barriers (e.g., Brown v. Board of Education (65)), or the emergence of new civil liberties (e.g., Miranda v. Arizona (66)), is that Medellin II represents the contestation of rights in a global, rather than national context. (67) It is thus useful to draw from theories of global norm integration, such as transnational legal process, to understand the case. (68)

I have noted that, in the Medellin line of cases, the VCCR operated as a norm portal, a formal procedural mechanism through which external norms on the death penalty could be imported into the U.S. legal system. This exploitation of the VCCR portal
 enabled a transnational advocacy support network comprised of
 individual advocates, NGOs, international and regional
 organizations, and foreign state governments to support the defense
 of capital defendants and engage in legal and political advocacy at
 the federal, state, and local level. The network was successful in
 winning clemency in one case, additional review in dozens of cases,
 passing two state statutes codifying procedural rights for foreign
 nationals, and setting general conditions through which the U.S.
 complies with its consular notification obligations. Compliance
 with the notification obligation has in turn permitted foreign
 governments to advocate directly on behalf of their nationals and
 therefore avoid death sentences.

 This shift has taken place notwithstanding the persistent objection
 of the U.S. to any international efforts to constrain its use of
 capital punishment, and without any change of official federal
 policy about the death penalty or change in the U.S. position on
 the VCCR. If the purpose of persistent objection to the
 abolitionist position in international human rights regimes was to
 preserve complete sovereign prerogative over the manner and timing
 of expansion of criminal procedural rights in this country, it
 appears to have failed, at least in regard to foreign national
 defendants. And, because the VCCR cases came at a time when the
 death penalty was already under concerted attack by advocates
 within the U.S., the exploitation of the VCCR norm portal has
 contributed to the momentum toward convergence with the
 international abolitionist norm. (69)


Thus, Medellin II illustrates the importance of norm entrepreneurs and transnational advocacy networks to bringing about changes in state practice. But the decision itself, ending as it did any judicially available federal remedies to overturn Medellin's and the fifty other death row defendants' sentences, also illustrates that domestic courts, not the supranational institutions originally mandated with authority to elaborate and enforce human rights norms, can play a crucial role in facilitating or slowing the transmittal of norms across borders.

III. CONCLUSION

Medellin II reveals the strengths and potential hazards of an approach that seeks to promote norm shift through litigation that exploits norm portals. The Intern al/Constitutionalist narrative is important to our understanding how the Constitution gives effect to international law within the United States, and also to political and judicial implementation of human rights in other domestic legal systems. The Supreme Court's decision here is important. Indeed, as other commentators in the Symposium have noted, the rejection of the petitioner's claim may have deleterious effects on enforcement of the VCCR more broadly (though the Court appears to have left open the window for direct enforcement of the VCCR in cases where the claim has not been procedurally defaulted)7[degree] and on other treaties for which the United States has agreed to submit disputes to the ICJ for adjudication. (71) But the U.S. Supreme Court is only one of the spaces within the international system in which the death penalty and VCCR notification rights are contested.

The Transnational/Intersystemic frame permits us to see that, while the VCCR norm portal created space for contestation and transmittal of external norms in an unexpected way, its exploitation also carried with it consequences for the enforcement of human rights in these particular cases. The potential downsides for the international human rights system of this norm portals litigation strategy are apparent: the reaction of the U.S. government to the exploitation of the VCCR norm portal--assertions of executive power, attempts to remove the cases from judicial oversight and, most significantly, withdrawal from the ICJ adjudication over any future disputes arising from the VCCR. These countermoves represented significant push back to the efforts of transnational advocacy networks that sought to strengthen the VCCR as a means to chip at the death penalty and other criminal practices in which the United States is out of step with the rest of the world.

The consular protection function is central to smooth functioning of the international system. Consular protection provides a means of mediating between developed and less developed legal systems-and even between developed systems where, as in the United States, one is marked by systemic failings or biases. Consular protection can mean the difference between fair process, some process, and no process. (72) In places with less developed rule of law traditions, where international human rights regimes have largely failed to make a difference in individual cases, (73) political intervention on behalf of co-nationals can be a more effective means of protecting individual rights. Indeed, this fact is the premise on which the VCCR notification is based. It would appear to be a step backward to forgo the ability of states to bring complaints against one another for breach, in favor of what may be, at best, limited application of the right of an individual to raise the non-notification claim.

The consular notification function thus might be a context where more, not less, multilateral engagement is necessary. Consular protection is so important to the function of states operating within the international system that the issue of an individual right to raise a claim as a defense in court appears ripe for agreement among the states party to the VCCR. Instead, we have an important participant in the international community withdrawing from, rather than supporting, international dispute resolution over those issues. And whether Congress will, in fact, get involved to create a directly enforceable federal right under the VCCR remains an open question.

These potential pitfalls, of course, should not be overstated. The evidence to date suggests that political efforts on their own have been largely unsuccessful and that it has taken the combined efforts of transnational litigation and political pressure to improve the procedural protections of foreign nationals facing the death penalty in the United States. Also, the litigation has itself raised awareness, forcing the U.S. State Department to engage in a concerted effort to bring about compliance across law enforcement agencies, and making state legislatures and governors aware of the significance of consular protection to Americans outside the United States. (74) Between these opportunities and pitfalls, one point is clear: the central institutions of the international human rights system played a very small role in these cases. One might argue that this is a direct result of the United States staying outside the main human rights treaty regimes, and beyond the oversight and dispute resolution mechanisms created by those regimes. (75) Regardless, the institutions created to ensure compliance with the normative regime of international human rights were marginalized.

At the end of the day, litigation through norm portals or other opportunistic exploitation of the courts is alone not enough to change state behavior. Theories of norm integration that look to assimilation or socialization through political actors demonstrate that political buy-in may ultimately be as important--if not more important--than adjudication. (76) Effective efforts at shifting behavior will use all tools available, and individuals seeking to vindicate their rights will find important allies in entrepreneurial advocates. Where the legal system is mature and the political system is transparent, rejection of international human rights institutions is not fatal to the protection of individual rights.

The danger this case represents is that states whose human rights behavior is not good, and whose legal systems are less developed, with little or no tradition of the rule of law, will follow the U.S. example in rejecting participation in supranational human rights institutions. The enduring legacy of Medellin II may thus be the unflattering and unmoving image of American human rights exceptionalism, reflected back at states eager to use U.S. non-compliance with international norms as an example and excuse for rolling back rights protection.

(1.) Medellin v. Texas, 128 S. Ct. 1346 (2008). Because this is the second time Medellin has reached the Supreme Court (see infra note 10, discussing Medellin v. Dretke (Medellin I)), I refer to it as Medellin II.

(2.) See 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, 247-48 (2008).

(3.) Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR].

(4.) See Margaret E. McGuinness, Medellin, Norm Portals and the Horizontal Integration of International Human Rights, 82 NOTRE DAME L. REV 755, 761 (2006) [hereinafter Medellin]. See generally William Schabas, The ICJ Ruling Against the United States: Is it Really About the Death Penalty? 27 YALE J. INT'L L. 445 (2002).

(5.) See Medellin, supra note 4, at 744-80 (providing full discussion of the history of the case); Valerie Epps, The Medellin v. Texas Symposium: A Case Worthy of Comment, 31 SUFFOLK TRANSNAT'L. L. REV. 209, 209-13 (2008).

(6.) Medellin v. Cockrell, No. H-01-4078, slip op. (S.D. Tex. June 25, 2003).

(7.) See Medellin, supra note 4, at 819-20.

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

(9.) Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).

(10.) Medellin v. Dretke, 544 U.S. 660 (2005) (per curium); Medellin v. Texas, No. 06-985 (Tex. Crim. App. 2007).

(11.) See Adam Liptak, At 60% of Total, Texas is Bucking Execution Trend, N.Y. TIMES, Dec. 26, 2007, at A1. Of the forty-two executions in the United States last year, twenty-six were in Texas. Id. The remaining sixteen were spread across nine other states, none of which executed more than three people. Id.

(12.) See Medellin, supra note 4, at 800-30 (discussing the VCCR/death penalty line of cases, beginning with Faulder v. Texas, which involved a Canadian national who challenged a death penalty conviction on the basis of non-notification under Art. 36).

(13.) ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 310 (Arthur Goldhammer trans., Lib. of Am. 2004) (1835); see Margaret E. McGuinness, Sanchez-Llamas, American Human Rights Exceptionalism and the VCCR Norm Portal, 11 LEWIS & CLARK L. REV. 47 (2007) [hereinafter Sanchez-Llamas] (discussing how VCCR line of cases can be seen as reflecting contestations of American Exceptionalism).

(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.html.

(15.) Medellin v. Dretke, 544 U.S. 660 (2005) (per curium).

(16.) Medellin v. Texas, 127 S.Ct. 2129 (2007).

(17.) Petition for Writ of Certiorari, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 119139.

(18.) Medellin v. Texas, 128 S. Ct. 1346, 1346 (2008) (Roberts, C.J.).

(19.) See Medellin, supra note 4, at 819-20 (discussing Mexico's diplomatic efforts in the VCCR/death penalty cases).

(20.) Andrew T. Guzman, How International Law Works 6 (2008).

(21.) See Medellin, supra note 4, at 808-30 (describing the ways in which the efforts of NGOs, states and other actors changed United States consular notification and death penalty practices).

(22.) See Medellin, supra note 4; Sanchez-Llamas, supra note 13, at 47.

(23.) I use the term "Constitutionalist" as descriptive only of arguments grounded in internal or U.S. constitutional law. Some scholars have used the term "Constitutionalist" or "Sovereigntist" to refer to those in the American legal academy who "distinguish between the international and domestic legal systems, [and] emphasize constitutional structure as a limitation on the domestic effect of international law. These individuals generally advocate political branch, rather than judicial control over the domestic implementation of international legal obligations." Curtis A. Bradley, The Federal Judicial Power, 2006 Sup. Ct. Rev. 59 (2006) (italics added).

(24.) The following amicus briefs were filed in support of the respondent: Brief for the Former Senior Officials of the Dept. of Justice as Amici Curiae Supporting Respondent, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2428384 [hereinafter Brief of Former DOJ Officials]; Brief for Washington Legal Found. et al. as Amici Curiae Supporting Respondent, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2428385 [hereinafter Brief of Washington Legal Foundation]; Brief for the Commonwealth of Virginia et al. as Amici Curiae Supporting Texas, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2428386 [hereinafter Brief of Virginia and other States]; Brief for Randy and Sandra Ertman and the Criminal Justice Legal Found. as Amici Curiae Supporting Respondent, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2428388 [hereinafter Brief of Criminal Justice Legal Found.]; Brief for Mountain States Legal Foundation as Amicus Curiae Supporting Respondent, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2414906 [hereinafter Brief of Mountain States Legal Foundation]; Brief for Constitutional and International Law Scholars as Amicus Curiae Supporting Respondent, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 4983975 [hereinafter Brief of Constitutional Law Scholars]. In support of petitioner: Brief for Former United States Diplomats as Amici Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886206 [hereinafter Brief of Former Diplomats]; Brief for Int'l Court of Justice Experts as Amici Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886207 [hereinafter Brief of ICJ Experts]; Brief for Am. Bar Ass'n. as Amicus Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886208 [hereinafter Brief of ABA]; Brief for Foreign Sovereigns as Amici Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886209 [hereinafter Brief of Argentina et al.]; Brief for Ambassador L. Bruce Laingen et al. as Amici Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886210 [hereinafter Brief of Bruce Laingen et al.]; Brief for the United States as Amicus Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1909462 [hereinafter Brief of Solicitor General]; Brief for the Govt. of the United Mexican States as Amicus Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1849797 [hereinafter Brief of Mexico]; Brief for the European Union and Members of the Int'l. Comty. as Amici Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1874804 [hereinafter Brief of EU et al.]. In support of neither: Brief for Earth Rights International as Amicus Curiae Supporting Neither Party, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886211. See infra Table 1.

(25.) See also Sanches-Llamas, supra note 13 at 59 (discussing how the justices' positions in Sanchez-Llamas can be seen to reflect attitudes about American human rights exceptionalism).

(26.) In addition to the Foundation, which is a victim's rights group, Washington Legal Foundation represented the parents of one of the two girls Medellin was convicted of murdering, and the Allied Educational Foundation.

(27.) According to their brief, "MSLF is a non-profit, public interest legal foundation Organized under the laws of the State of Colorado. MSLF is dedicated to bringing before the courts those issues vital to the defense and preservation of private property rights, individual liberties, limited and ethical government, and the free enterprise system. MSLF's members include businesses and individuals who live and work in nearly every State of the Nation, including Texas." Brief of Mountain States Legal Foundation, supra note 24, at 1.

(28.) DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 151 (2d ed. 2006). See generally Murphy, supra note 2.

(29.) Brief for Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886212; Reply Brief for Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2886606.

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

(31.) Brief for the United States as Amicus Curiae Supporting Petitioner, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1909462.

(32.) The Petitioner, however, also draws heavily from the Internationalist Narrative. See infra part 2.

(33.) Brief for the Petitioner, supra note 29, at 19-37.

(34.) Brief for the Solicitor General, supra note 24, at 12-16; Brief for the ABA, supra note 24, at 11-13. See Jordan Paust, Medellin, Avena, the Supremacy of Treaties and Relevant Executive Authority, 31 SUFFOLK TRANSNAT'L. L. REV. 301, 318-24 (2008) (arguing that the President has constitutional authority to execute treaties with or without congressional consent and also that his directive to comply with Avena is binding on the states); see also Brief of ICJ Experts, supra note 24, at 8-10. The ICJ experts brief, which is framed primarily within the External/Internationalist Narrative also includes the Supremacy Clause argument. ICJ Experts Brief, supra note 24, at 810.

(35.) Brief for Respondent, supra note 30, at 39, 48. Respondent additionally argued that Medellin had already received the kind of review by the Texas criminal court contemplated by Avena. Id. at 31; see also Brief of Constitutional Law Scholars, supra note 24.

(36.) See generally Brief of the Criminal Justice Legal Foundation, supra note 24.

(37.) Medellin, 128 S. Ct. at 1381-82 (Breyer, J., dissenting).

(38.) See Sanchez-Llamas, supra note 13, at 59-64.

(39.) See Brief of Solicitor General, supra note 24. This is similar to its alignment in Medellin's appeal before the Texas Court of Criminal Appeals. See Ex Parte Medellin, 223 S.W.3d 315, 323 (2006).

(40.) See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31). The Bush administration continued the arguments advanced by the Clinton administration in both domestic and international litigation throughout the 1990s. See Brief for the United States, United States v. Jimenez Nava, 243 F.3d 192 (5th Cir. 2000) (No. 99-11300); LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (Memorial of the United States filed on June 27).

(41.) Letter from Condoleezza Rice, Sec'y of State, to Kofi Annan, UN Sec'y Gen. (March 7, 2005) (withdrawing from Optional Protocol of VCCR).

(42.) Medellin's counsel, Donald Donovan, also represented Mexico in its case before the ICJ.

(43.) Transcript of Oral Argument at 20-21, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2945736 ("The President would not displace the Court's authority to interpret a judgment, no.").

(44.) Id. at 21.

(45.) Brief of Solicitor General, supra note 24, at 8-9; Transcript of Oral Argument, supra note 43, at 38-39.

(46.) See BEDERMAN, supra note 28, at 80-81, 151.

(47.) See id. at 81-84; Andre Nollkaemper, Internationally Wrongful Acts in Domestic Courts, 101 AM. J. INT'L L. 760, 778-80 (2007).

(48.) See generally Murphy, supra note 2.

(49.) The argument, grounded in the Inter-American Court of Human Rights (IACtHR) 1999 decision, is made in Christina M. Cerna, The Right to Consular Notification as a Human Right, 31 SUFFOLK TRANSNAT'L. L. REV. 419 (2008); Brief of the EU et. al., supra note 24, at 5.

(50.) See Brief of Former Diplomats, supra note 24, at 1-2 (noting that all diplomats do not all agree on soundness of ICJ's reasoning).

(51.) See Amicus Brief of Mexico, supra note 24. Sandra Babcock served as the death penalty appeals lawyer for Stanley Faulder, a Canadian national on Texas death row. See Medellin, supra note 4, at 800-01. She later served as the first director of the Mexican Capital Legal Assistance Program. Id. at 818 n.354.

(52.) See generally Brief of Argentina et. al., supra note 24. Several of these states appeared as amici in the IACtHR case in 1997.

(53.) See Brief of EU et. al., supra note 24, at 1 n.1 (noting the assistance of the International Justice Project). The International Justice Project is an NGO committed to abolition of the death penalty in international law. International Justice Project, Overview, http://www.internationaijusticeproject.org/overview.cfm (last visited Apr. 15, 2008).

(54.) Mexico, of course, espoused Medellin's claim as part of its own efforts to enforce compliance with the U.S. obligations to Mexico under the VCCR. See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31). Argentina and other states filed briefs in support of the Mexican request for advisory opinion. The EU filed amicus briefs in earlier VCCR cases.

(55.) Many of them were also involved in political or diplomatic efforts to overturn sentences of foreign nationals on death row in the United States.

(56.) See, e.g., Brief of Mexico, supra note 24, at 17; Brief of EU et al., supra note 24, at 1; Brief of Argentina, et al., supra note 24, at 3.

(57.) See Brief of Former Diplomats, supra note 24, at 28; Brief of Bruce Laingen et al., supra note 24, at 17.

(58.) See Brief of Argentina et al., supra note 24, at 2; Brief of Bruce Laingen et al., supra note 24, at 9; Brief of EU et al., supra note 24, at 3-5.

(59.) See Brief of ABA, supra note 24, at 16.

(60.) Though to be sure, some of them do make constitutional arguments in support of the petitioner. See, e.g. Brief of ICJ Experts, supra note 24, at 1; Brief of ABA, supra note 24, at 7; Brief of Former Diplomats, supra note 24, at 2.

(61.) See generally Brief of Former Diplomats, supra note 24.

(62.) 128 S. Ct. at 1391 (Breyer, J., dissenting).

(63.) See Medellin, supra note 4, at 834.

(64.) 61. 163 U.S. 537 (1896).

(65.) 62. 347 U.S. 483 (1954).

(66.) 63. 378 U.S. 478 (1964).

(67.) While they began as a means through which to contest U.S. exceptionalism to the death penalty, the VCCR cases in U.S. courts now include dozens of cases that do not involve capital sentences. Sanchez-Llamas, for example, involved two non-capital cases. See Sanchez-Llamas, supra note 13, at 58.

(68.) See Medellin, supra note 4, at 767, 760-61 (discussing Harold Koh's theory of Transnational Legal Process).

(69.) Medellin, supra note 4, at 760-61.

(70.) Medellin, 128 S. Ct. at 1357 n.4.

(71.) See Paust, supra note 34; Murphy, supra note 2.

(72.) See Medellin, supra note 4, at 76; Cerna, supra note 49.

(73.) See Oona Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L. J. 1935, 1939 (2003).

(74.) See Medellin, supra note 4, at 795-96.

(75.) The United States acceded to the ICCPR with reservations, understandings and declarations that essentially required the United States to change no behavior as a result of accession. Further, the United States remains outside the ICESCR, CEDAW, and the Convention on the Rights of the Child. It has never signed Optional Protocol 2 of the ICCPR, banning the death penalty, and it voted against the December 2007 General Assembly resolution on abolition of the death penalty.

(76.) See Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996); Ryan Goodman & Derek Jinks, International Law and State Socilaization: Conceptual, Empirical, and Normative Challenges, 54 DUKE L. J. 983 (2005).

Margaret E. McGuinness *

* Associate Professor, University of Missouri School of Law. Special thanks to Valerie Epps for organizing this important Symposium, Chris Borgen for comments on an earlier draft, and Paul Litton for helpful conversations about the death penalty.
TABLE 1: INTERNAL AND EXTERNAL NARRATIVES
OF THE MEDELLIN AMICI

NARRATIVE PRO-PETITIONER PRO-RESPONDENT ON BEHALF
PERSPECTIVE (MEDELLIN) (TEXAS) OF NEITHER

Internal/ U.S. Virginia, et Earth Rights
Constitutionalist Government al. Washington International
 American Bar Legal
 Assoc. Foundation (26)
 Former DOJ
 Officials
 Criminal
 Justice Legal
 Foundation
 Mountain States
 Legal
 Foundation (27)
 Constitutional
 Law Scholars

External/ EU, Virginia and
Internationalist Mexico, other U.S.
 Argentina, et States
 al. Retired
 Diplomats Amb.
 B. Laingen,
 et al. ABA
 ICJ Experts
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Title Annotation:The Medellin v. Texas Symposium
Author:McGuinness, Margaret E.
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2008
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