Impact of the International Court of Justice’s opinion on the US Court Decision

JOSE ERNESTO MEDELLIN, PETITIONER v. DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Medellin was a Mexican national. He was found guilty of murder and gang rape. He confessed his involvement. He was convicted and sentenced. He appealed to State Court and than Federal Court. His appeals were rejected. The sentence was upheld. Medellin therefore applied to the US Supreme Court for review on two questions: (1). Are the courts in US bound by the Avena judgment rendered by the Court of International Justice (2). Should the court give effect to the Avena and La Grand’s judgment in the interest of Judicial comity?

The US Supreme Court granted a certiorari. Meanwhile President Bush promulgated Memorandum one month before Oral argument. Based on the Memorandum and the Avena Judgment Medellin filed a state application for writ of Habeas Corpus just four days before the Oral argument.

The court rejected the petition as being “Improvidently granted” on various issues as following that precluded Medellin:

1. Violation of Federal constitutional right was a non-constitutional lapse, therefore non cognizable in post conviction proceeding;
2. Medellin ought to overcome “differential standard” with regard to the “findings” of the state court to qualify for the habeas relief. The findings of the state court “adjudicated on merits” arguably were – 1. Vienna convention did not result in individually enforceable right; 2. state defaults barrerd Medellin from Consular Access Claim & 3. Medellin failed to show that he was harmed because of lack of notification to the Mexican Consulate.
3. Habeas Corpus cannot be granted on “New Rule” jurisprudence.
4. Medellin required a “certificate of appealability”. This certificate could be granted only on a showing that there was a denial of the constitutional rights.
5. Medellin could opt for federal relief only if he had exhausted all possible state reliefs.

In light of the possibility of the state court granting a review on the Presidential Memorandum stand and the Avenna’s judgment by ICJ, the US Supreme Court declined to “reach and resolve multiple hindrances to dispositive answers”.

Well what does above mean? It only means that Medellin was a Mexican national. He confessed a murder and gang rape. Later he discovered that Avenna’s judgment by International Court of Justice required that international treaty required US to notify the Mexican Consulate which U.S. did not. On this ground and on the ground of Presidential memorandum, Medellin approaches Supreme Court. Certiorari is granted by the court. However, before the court hears the argument, Medellin applies to the State Court. The U.S. Court dismisses the Writ because the State court will take up the review. There were multitude of questions that could lead to negative answers, which the Supreme Court did not want to interfere with. Hence, the writ was rejected in light of the fact that Medellin could possibly be granted review with the Texas Court. The Supreme Court could anyway review the decision of the Texas Court rather than resolving the issues rising at the threshold.

Now let us see, what each of the judge had to state in this case:

1. Justice Ginsburg:

According to Justice Ginsburg:

Ginsburg took a view that the Court must reject the writ as “improvidently granted”. The Supreme Court had two alternatives. First option was to remand the case back to the court of Fifth circuit while putting the proceedings at the Supreme Court in abeyance. This could inspire the court of fifth circuit to conduct proceedings contrary to its own. This put the Supreme Court to caution and adopt the second recourse available. That means, the court could reject the petition and allow the State court to embark on the exercise of understanding the impact of Avena and the Presidential memorandum. The Supreme Court could then start afresh on the matter to decide on the “controlling effect” of the ICJ’s judgment in Avena.

There were certain other odds present like President’s Memorandum in conspicuous conflict with the law of judgments. A principal dissent would instruct the court of appeal to hold up the Avena’s Judgment by ICJ against the domestic court’s own conclusion.

The petitioner has filed petition in the Texas Court of Criminal Appeals for relief that were not previously available i.e. ICJ’s Avena Judgment and the President’s Memorandum. The Texas court had clean ground to adjudge the issues presented to it. In turn the Supreme Court could come into picture, if there be need and review petition to it any later point in time.

2. Justice O’Connor

According to Justice O’Connor:

She dissented. According to her, the questions that Medellin presented were those of national importance and it was not right for the Court to keep the case undecided only on an assumption that Medellin may obtain relief in state court on the ICJ’s Judgment in Avena and President’s Memorandum. Predictions could not be grounds of denying resolution to questions. The issues raised “now” are as important as they “were’ during the admission of the certiorari proceedings.

The important questions were (1). Whether the ICJ’s judgment favored Medellin? (2). Whether Article 36 (1)(b) of the Convention created an individual judicially enforceable right? (3). Whether the ICJ treaty requires the “state procedural rule” to be set aside to give effect to the international treaty.

The Vienna Convention “guaranteed” open channels of communication to foreign national with their consulates in signatory country.

Mexico was in treaty in accordance with Vienna Convention. There were total of 167 countries party to the Vienna Convention. Non-compliance of the treaty by the States was a vexing and worrisome problem particularly in the capital cases. Only 10% of the “prison population” comprised of citizens. About 56000 were held in state prisons and 119 non-citizens from 31 countries were put to death row by the states. The ICJ held that US had breached in its obligation to inform all 51 Mexican nationals of their right to consular notification.

Medellin had informed the Texas Police that he we born in Mexico and was a non-citizen. In spite of this, he was arrested, tried, convicted and sentenced. All without being told that he had a right to consular notification. Medellin therefore wanted “an evidentiary hearing” to determine if he was prejudiced by the violation.

Medellin first filed a writ of habeas corpus with the trial court at Texas. This was rejected as being procedurally barred because he failed to bring out objections during trial and that as an individual he lacked to enforce the Vienna Notification. Therefore Medellin appealed to Court of Criminal Appeal. The Court affirmed.

Medellin next petitioned for Habeas Relief in the United States District Court for Southern district of Texas. Meanwhile ICJ came out with LaGrand’s judgment where the US had failed to inform two German capital defendants about the Consular notification. ICJ’s interpretation in LaGrand of Article 36 & opinion held that the treaty gives rights to individuals and requires the state procedure rule to be set aside in case of foreign nationals raising the Vienna Claim. The District Court denied relief rejecting these arguments.

Medellin now went to the United States Court of Appeals for the Fifth district to obtain a certificate of appealability. This certificate is granted only if (1). Reasonable jurists could debate over if the matter could be decided in some other way & (2). That issues were adequate to encourage proceed further.

Meanwhile Mexico brought out a case against US in the ICJ. ICJ repeated its stand in LaGrand’s case and held that all 51 Mexican nationals were not informed about their right to consular notification. The certificate of appealability was not granted after taking note of the ICJ’s opinion.

According to there were two substantial questions that required answers. First whether the ICJ’s Avena’s case had preclusive effect in the US Courts? Second, if it did not, whether, US courts should give effect to the ICJ’s Judgment for the sake of uniform treaty interpretation and comity? Important questions, according to O’Conner inclines him to vacate denial of COA and remand the case.

The court’s should have evaluated Medellin’s “Vienna Convention Claim” through the framework of Antiterrorism and Effective Death Penalty Act of 1996 which controls the process of the Habeas Relief to the State prisoners.

The government argued that COA could not have been granted unless there was a showing of substantial denial of constitutional rights. Constitutional rights will not include all “federal” claims raised in Habeas Corpus petitions. O’Conner made reference to Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure where hitherto the word “constitution” had been substituted for the word “federal” without according reasons or significance of change. In other words what O’Conner wanted to say is whether the words were interchangeable was subject to argument.

COA objections was raised by Texas for the first time. Normally, “first time” objections could not be raised at this stage. However, this was a non-waivable jurisdictional question according to Texas. O’Conner said it was not a Non-waivable Jurisdictional Question and waiver grounds applicable to the “true jurisdictional arguments” applied to COA Objections.

Second argument that Texas advanced was AEDPA 28 U. S. C. §2254(d), where habeas corpus could not be issued on behalf of a person in state custody in the state court proceeding unless a showing was made regarding unreasonable application of clearly established Federal Law. O’Conner held that Texas Court did not adjudicate the merit of relevant federal question that is whether Article 36 (2) overrides the “State Procedural Default rule”. The Texas Court held that individual could not enforce the State Treaty “Vienna Treaty”. This was contrary to established Supreme Court Opinion and therefore not entitled to deference. O’Conner observed that a treaty between the nations may give rights to the citizen of a country residing in the territory of another country. These partake nature of Municipal law and therefore can be enforced by private individuals.

A catalog of questions those presented were important and needed resolution. It was necessary to decide whether Medellin presented claims worthy to grant him COA. There were three questions left unanswered in deciding whether Medellin merited a COA.

They were:

1. Reed V/s. Farley and Hill V/s. United states were not mentioned by Texas. Medellin had no opportunity to discuss their applicability to his case.
2. Texas did not argue that Medellin had already received “[P]rejudice [A]nalysis”. The ICJ maintained that Medellin was yet to receive “[P]rejudice [A]nalysis” neither Texas argued that Medellin “had” received “Prejudice Analysis” or Vienna Convention was satisfied by “Prejudice Analysis”. It only pointed out that there could not be any “[P]rejudice [A]nalysis” in “[F]uture [P]roceedings”;
3. The Court of appeals did not discuss the “Teague’s” applicability to Medelllin’s case.


O’Conner analyzed why COA denial should be vacated:

1. Vienna Convention had an optional protocol. According to “Optional Protocol” the country will for the purpose of interpretation and applicability of Convention submit to the jurisdiction of the international court of justice. This optional protocol of terminated by U.S. by a letter from the US Secretary to the UN Secretary General. In this background, the question was whether the US courts needed to give effect to the Judgment rendered by ICJ in Avena’s Case? Medellin maintained that they were. If so, than the District court’s stand taken would be contrary and irreconcilable with that of ICJ’s. The ICJ clearly stated that individual’s as opposed to countries also had a right of enforcing the treaty. The “Procedural Default” rules can be bypassed for giving effect to the treaty. According to Medellin the US undertook a “substantive obligation” (by signing to the Vienna Convention) and also submitted to “specified dispute resolution process” (by submitting to the ICJ’s jurisdiction). By doing this, US also became bound by the rules generated by the process. It was as good as being bound by the treaty that was a source of “Substantive Obligation”. Since reasonable jurist could vigorously argue on the ICJ’s decisions’ impact on the US courts, a certificate of Appealability should have been granted.
2. The second alternative questions asked (on which certiorari was granted) was whether and to what extent the domestic courts need to give weight to the Avena (even though not bound by the ICJ’s decision but for the sake of uniform treaty interpretation). The questions were debatable and thus grounds for COA.
3. In Bread’s case, the US Supreme Court maintained that Article 36 arguably gives right of consular assistance following arrest. The United States and Texas argued that Article 36 conferred no such right. O’Conner exclaimed whether that would mean that an individual cannot even complaint to the court during the course of trial, the state’s failure to inform the person of his right under Article 36. (That possibly could not be true).
4. Article 36 was a self-executing treaty. It partook a form of domestic municipal law, equivalent to the act of legislature – treaty became a law of land – sort of an act of the Congress.
5. The treaty clearly directed to “inform the person without delay his rights under the sub-paragraph”. It was this part of the treaty that concerned individuals and that was an obligation expressed in terms of the rights.
6. The US Supreme Court had often enforced the foreigner’s treaty based obligations allowing individuals to assert treaty based claims;
7. The United States acceded that the other sources of the other provisions of the Vienna Convention “which relate to consular privileges and immunities” have been source of judicially enforced rights.
8. The above arguments of Medellin at least warrant him a COA.


For the above reasons, O’Conner opined that the denial of COA should be vacated. Matter remanded. The Court of appeals to hold the case in docket till final disposal by the state court.

4. Justice Souter:

He also dissented. The Certiorari according to his was granted on two questions: (1). Whether the ICJ’s decision that Medellin had a right to claim treaty violation and litigate free from “federal” and “state” “prodedural bars” precluded the domestic courts? (2). Whether Avena and LaGrand should be enforced to atleast ensure comity and uniform treaty interpretation?

Souter cited reasons similar to O’Conner. He opined that proceedings in the Supreme Court should be stayed till the State court does its job. This way the work done by the Supreme Court in its case would not be wiped off. The court would remain in a position to address the Nation’s obligation to international treaties.

He however took a view that the Court of appeals should take no actions until the Texas litigation responded to the President’s memorandum.

5. Justice Beyer:

He also dissented. He felt that the Court must grant a stay, vacate the fifth Circuit’s Judgment and remand the case.

Medellin’s argument that the American Courts were bound to follow the ICJ’s Judgment, according to Beyer were substantial. The President’s Memorandum, self-executing nature of treaty, nation’s signature on the optional protocol, US undertaking to comply with the ICJ’s judgment were substantial to warrant such an action.