Executing Medellín: The International Confrontation of Fair Legal Treatment of Foreign Nationals Abroad

According to Texas authorities, Mexican national José Ernesto Medellín Rojas has exhausted all available legal remedies and will be executed by lethal injection after 6 p.m. on Tuesday, August 5, 2008 for his role in two murders fifteen years ago. His planned execution brazenly defies the July 16, 2008 order by the International Court of Justice requiring that the United States “shall take all measures necessary” to prevent the execution of Mr. Medellín and four other Mexican nationals on death row pending Mexico’s request for interpretation of the Avena Judgment. In Avena, the ICJ concluded that the United States violated its international legal obligations under the Vienna Convention on Consular Relations by failing to inform 51 Mexican nationals, including Mr. Medellín, of their right to consular notification.

Texas officials maintain that Mr. Medellín’s due process rights were not prejudiced by the failure to adhere to the Vienna Convention, that he failed to raise the claim in a timely manner, and that Texas legal and political actors are not bound by the decisions of the International Court of Justice. Subsequently, the U.S. Supreme Court ruled that Texas state courts are not bound by the ICJ judgment because the right to consular notification was not directly enforceable as domestic law and thus requires Congressional legislation for effectuation.

Given that his appeal to the Inter-American Commission on Human Rights has proven to be politically ineffective, his remaining hope is for the U.S. Supreme Court to order a stay of execution to allow time for Congress to adopt a law conferring a justiciable right by individuals to a remedy for the harm done by the treaty violation. His latest petition to the Supreme Court, filed on July 31, 2008, likely will be unsuccessful given the Court’s earlier holding and the speculative nature of future Congressional action.

This latest confrontation of international and domestic frameworks promises to yield legal and political repercussions for the fair treatment of foreign nationals domestically and U.S. nationals abroad.

The Issue

When Texas authorities arrested Mr. Medellín, they failed to inform him of his right to consular notification, thereby violating Article 36 of the Vienna Convention on Consular Relations of 1963, which the United States accepts as legally binding. As a result, Mexico was unaware of his detention, prosecution, and conviction. Mr. Medellín does not challenge the finding of his guilt nor does he claim violations of domestic due process rights guaranteed to him and the other gang members (U.S. citizens) under the Texas Criminal Code or the U.S. Constitution. Rather, he challenges whether he, as a foreign national, was deprived due process of law and fair treatment in U.S. domestic courts based on a treaty violation granting a permissive right by foreign individuals to seek assistance from their governments. Here, Mexico contends that it would have responded and assisted Mr. Medellín, thus possibly altering the outcome of the death penalty sentence.

He and his lawyers are not seeking a presumptive “get of jail” card. The remedy would be a judicial review to determine if the treaty violation prejudiced the outcome of his case and, if so, a reconsideration to reflect a fair remedy for any harm done. The judicial review could hold that no prejudice occurred and thus could uphold the death sentence.

The absence of any review for Mr. Medellín, when there was a due process violation under international law, illustrates a defiance by U.S. political actors to abide by international law and the fair administration of justice through adequate due process safeguards. This failure by the United States to comply with the treaty obligation in domestic practice could have tangible repercussions for U.S. nationals arrested and detained in any of the 171 other countries party to the Vienna Convention on Consular Relations. Generally, a basic and central principle of international treaty law, as detailed in Article 26 of the Vienna Convention on the Law of Treaties, holds that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” If the United States fails to act in good faith, U.S. citizens abroad may find themselves victims of prejudiced justice. Yes, Mr. Medellín should be held accountable for his actions, but the fair and equitable administration of justice requires judicial review pursuant to Avena prior to the potential and irreparable deprivation of his life.

Article 36 of the Vienna Convention on Consular Relations of 1963

Article 36 requires authorities, without delay, to advise any foreign national who is arrested or detained of the right to have consular officials notified. The public policy of the notification requirement is to safeguard the individual’s right to communicate with his or her government, to receive information about the rights of detained nationals, and to seek legal assistance when culture, language, and differing laws may create barriers to adequate representation.

Currently, 171 countries are parties to the Convention and are legally bound by its obligations. Of that, 47 countries, are parties to the Optional Protocol granting the International Court of Justice compulsory jurisdiction over disputes. The United States revoked its acceptance of the Optional Protocol after the Avena Judgment.

Mandatory consular notification, regardless of whether the arrested or detained foreign national requested notification, is required for the following 52 countries and jurisdictions: Antigua and Barbuda, Armenia, Azerbaijan, The Bahamas, Barbados, Belarus, Belize, Brunei, Bulgaria, China, Costa Rica, Cyprus, Czech Republic, Dominica, Fiji, Gambia, Georgia, Ghana, Grenada, Guyana, Hungary, Jamaica, Kazakhstan, Kiribati, Kuwait, Kyrgyzstan, Malaysia, Malta, Mauritius, Moldova, Mongolia, Nigeria, Philippines, Poland, Romania, Russia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Tajikistan, Tonga, Trinidad and Tobago, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uzbekistan, Zambia, and Zimbabwe.

The United States ratified the Convention in 1969 upon advice and consent by the Senate and the U.S. President’s signature.

International Court of Justice and the Avena Judgment

In January 2003, Mexico brought suit against the United States before the ICJ (“World Court”) to challenge violations of the Vienna Convention for 54 Mexican nationals (later reduced to 51) deprived of consular notification by various U.S. authorities and sentenced to death in California, Texas, Illinois, Arizona, Arkansas, Florida, Nevada, Ohio, Oklahoma, and Oregon. Mexico asserted that it was harmed directly by the violations and indirectly through the violations of its citizens. At the time, the United States recognized compulsory jurisdiction of the ICJ on such matters under the Optional Protocol to the Vienna Convention on Consular Relations.

The ICJ ruled that the United States breached its treaty obligations under the Vienna Convention on Consular Relations. As a remedy, the Court held that the United States must provide “by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals.” The Court rejected Mexico’s request for automatic partial or total annulment of the convictions or death sentences.

The United States did not deny that it violated the treaty; rather, it asserted that any remedy under the treaty was limited to the Mexican government and did not extend to individuals. As such, the United States refuted the ICJ’s finding that the treaty created a justiciable individual right. The U.S. argued that the purpose of the treaty was to foster and maintain consular relations among foreign governments and that any remedy arising from noncompliance remained solely justiciable between governments. The United States argued that the political treaty governing foreign relations did not contain enforceable human rights provisions for individuals because those provisions are supplied in human rights treaties. Accordingly, the United States could not foresee an interpretation of the treaty by the ICJ creating such individual due process rights as legally binding on states.

Is the right to consular notification a procedural or substantive right? Does the right to consular notification constitute a human right and, if so, is it a fundamental right? Article 36 creates an individual right to consular notification but does not create a positive legal right to any assistance from one’s government. Once notified of the individual’s arrest or detention, the government or consulate currently does not need to communicate with that national or take any action to benefit or assist that individual. The right then is merely permissive as a request by the individual and imposes no legal duties on the sending state to assist in representation. Human rights advocates assert that this eviscerates the meaning and spirit of the notification requirement. Future cases before the regional human rights courts likely will address whether the sending state is required to provide legal assistance when notified in order to effectuate the human right of consular notification.

Mexico’s Request for Interpretation of the Avena Judgment
With Mr. Medellín scheduled for execution on August 5, 2008 before the required “review and consideration” under Avena, Mexico initiated proceedings to request an interpretation of the Avena Judgment pursuant to Article 98, paragraph 3, of the Rules of Court and Article 60 of the Statute of the Court.

In its request, Mexico asserted that “the United States cannot invoke its municipal law as justification for failure to perform its international legal obligation under the Avena Judgment.” Mexico’s allegation of political concealment by the United States of its true intentions targets the political and legal trustworthiness of the codification of rights and obligations of states with respect to international obligations. The U.S. Executive Branch and the U.S. Supreme Court have relied on the principles of federalism to explain how the United States is in breach of an international agreement but without the means to meet that obligation domestically. Such vigorous defense of domestic structures calls into question whether foreign governments can trust the United States to abide by its international treaty commitments.

The United States maintains before the ICJ that “the United States would be responsible, clearly, under the principle of State responsibility for the internationally wrongful actions of [state] officials.” The responsibility, however, potentially could be after the execution of one or more Mexican nationals on death row.

Mexico also requested enforcement of the Judgment under Article 41: “the Court shall have the power to indicate, if it considers that circumstances so require, any provision or measures which ought to be taken to preserve the respective rights of either Party.” The United States strongly refutes the jurisdiction of the court to enforce the judgment through interference with a country’s internal affairs. The United States contends that the proper authority is the U.N. Security Council.

In his dissenting opinion, Judge Buergenthal asserted that the ICJ lacked jurisdiction and expressed concern about the potential “future misuse for jurisdictional purposes” of Article 60. Judges Owada, Tomka, and Keith issued a separate dissenting opinion asserting that Mexico failed to meet its burden under Article 60 jurisdiction. In a separate dissent, Judge Skotnikov dissented because he found the earlier judgment clear in its holding that the United States must comply with the earlier Avena Judgment: “There is no ambiguity. There is no disagreement. There is nothing for the Court to interpret.”

The ICJ has imposed a deadline of August 29, 2008 for written observations by the United States pursuant to Article 98.

Medellín’s Petition to the Inter-American Commission on Human Rights

On November 21, 2006, Mr. Medellín filed a petition before the Inter-American
Commission on Human Rights for violations of the Vienna Convention on Consular Relations and the American Declaration of 1948, known as the Declaration of the Rights and Duties of Man. The Inter-American Commission reviews cases brought by individuals for human rights violations committed by authorities. The Commission first will urge a state to comply with a suggested remedy for aggrieved victims. If sufficient grounds exist, the Commission may refer the case to the Inter-American Court on Human Rights.

On July 24, 2008, the Commission released its preliminary report concluding that Mr. Medellín was prejudiced by the violation of his rights to consular notification and assistance.

I attended the public hearing at the Organization of American States (OAS/OAE) in Washington, D.C. on Friday, March 7, 2008.

U.S. Government’s Arguments

Andrew Stevenson, U.S. Mission to the OAS (left)
Kevin Baumert, Legal Office, U.S. Department of State (right)
Photo linked from OAS

The U.S. Government was represented by Andrew Stevenson, U.S. Mission to the OAS, and Kevin Baumert, Legal Office, U.S. Department of State. The government argued lack of jurisdiction on two grounds. First, Mr. Medellín had not exhausted domestic remedies because his case was pending before the U.S. Supreme Court. Second, the ICJ already settled the issue. While the U.S. continues to take efforts to implement the ICJ Avena Judgment domestically, the Commission lacks jurisdiction under Article 33 of the Rules.

With respect to the petitioner’s criticism of the lethal injection to be imposed on Mr. Medellín, Mr. Baumert referred to the pending U.S. Supreme Court Case, Baze v. Rees (Kentucky), 553 U.S. ___ (2008) (concluding the method of lethal injection used in 36 states does not violate the 8th Amendment prohibition of cruel and unusual punishment).
Baze was the first time in 100 years that the Supreme Court heard a method of execution case. Mr. Baumert rejected the petitioner’s argument on procedural and substantive grounds that this constitutes an exhaustion of domestic remedies. For example, referring to Hill v. McDonough, 547 U.S. 573 (2006), death row inmates who brought a habeas petition can bring a civil rights claim under Section 1983 of Title 42 of the U.S. Code.

Mr. Stevenson’s remarks were limited to a very brief prepared statement in support of the Commission’s “constructive role in the hemisphere” and the independence of the Commission.

Thus, the government requested that the Commission find the case inadmissible. The government also highlighted that the United States has cooperated fully despite its legal position on the inapplicability of precautionary measures to a non-party to the Declaration of the Rights and Duties of Man (“American Convention”).

Petitioner’s Arguments

Greg Kuykendall, Mexican Capital Legal Assistance Program (left)
Sandra Babcock, Northwestern University, Center for Int’l Human Rights (right)
Photo linked from OAS

Mr. Medellín’s attorney, Sandra L. Babcock, refuted both the duplicity argument with the ICJ and the absence of domestic exhaustion of remedies.

Under the Commission’s prior report in Ramos, Case 12.430, there is no duplication in cases before the ICJ and cases before the Commission because individual petitioners have no standing before the ICJ. Leveraging a technicality technicality, Ms. Babcock argued that the parties before the ICJ are governments, not individuals, and thus Article 33 does not apply.

With respect to exhaustion of remedies, Ms. Babcock made four arguments:

(1) Under the Commission rules, jurisdiction may be found where there is “unwarranted delay” and four years have passed since the ICJ decision;

(2) The U.S. Supreme Court may decide against Mr. Medellín, and execution dates may be sought immediately. If the Commission defers, the petitioner could be dead;

(3) The state of Texas historically has refused to respect precautionary measures; and

(4) The questions before the U.S. Supreme Court and the Commission are distinct. The question before the U.S. Supreme Court is limited to the constitutionality of domestic adherence to the ICJ decision. The Supreme Court does not address facts. The Commission would address the merits of the case.

Also at the petitioner’s table was Greg Kuykendall, Mexican Capital Legal Assistance Program, and Elizabeth Lee, a student at Northwestern University who worked on preparing Medellín’s case before the Commission.

U.S. Federalism, Sovereignty, and Domestic Courts

On February 28, 2005, U.S. President Bush signed a Memorandum on the “Compliance with the Decision of the International Court of Justice in Avena to urge state authorities to comply with the “review and reconsideration” mandate for the 51 Mexican nationals. The Attorney General sent the Memorandum to the various state attorneys general, including Attorney General Abbott of Texas, informing them of the President’s interpretation. The U.S. Supreme Court declared the Memorandum unconstitutional in Medellín v. Texas, 552 U.S. ___ (2008). The Court held that the President had no authority to order enforcement of the ICJ Avena Judgment in state court because such action is a law-making power allocated to the Legislative Branch, not the Executive Branch, by the Constitution. Justices Stephen Breyer, David Souter, and Ruth Bader Ginsburg dissented.

The United States submitted an amicus curiae brief in support of Mr. Medellin on his writ of habeas corpus before the U.S. Supreme Court.

For a full discussion of the constitutional issues, see:

• The Federalist Society Online Debate Series, Medellin v. Texas, Part II: Presidential & Congressional Power, April 1, 2008.
• Margaret E. McGuinness, Medellin v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings, 12 ASIL Insights 6 (Apr. 17, 2008).
• Steve Vladeck, Medellín, Non-Self-Executing Treaties, and the Supremacy Clause, Opinio Juris (Mar. 25, 2008).

The House of Representatives initiated legislation, H.R. 6481, known as the “Avena Case Implementation Act of 2008.”

The Crime

On June 24, 1993, José Ernesto Medellín and five other members of a gang kidnapped, raped, strangled, and kicked to death 16-year-old Elizabeth Pena and 14-year-old Jennifer Ertman during their walk home along the railroad tracks near T.C. Jester Park in Houston. Mr. Medellin led the attack when he grabbed Ms. Pena; she screamed for help. When Ms. Ertman returned to help her friend, she was assaulted by two gang members. The subsequent attack allegedly was part of the gang initiation for the newest member, Raul Villareal, 17 years of age. Mr. Medellín, who is fluent in English, confessed in writing, providing details of how he stomped on the victims to ensure their deaths. He and Derrick O’Brian strangled Ms. Pena using O’Brian’s belt. The authorities found the bodies four days later on June 28, 1993 after a telephone tip from Peter Cantu’s brother. The defendants were arrested the following day on June 29, 2008. All the defendants except Mr. Medellin’s younger brother were tried as adults and convicted of capital murder and sentenced to death.

The gang members at the scene included:

• Peter Cantu (aka the gang ringleader) – age 18 at the time of the crime; still on death row as of August 1, 2008 with no date established for execution because his appeals have not been exhausted.
• Derrick Sean O’Brien – age 18 at the time of the crime; executed June 11, 2006; read his last statement before execution.
• José (“Joe”) Ernesto Medellín – age 18 at the time of the crime; to be executed on August 5, 2008.
• Raul Omar Villareal – age 17 at the time of the crime. He was scheduled for execution on June 24, 2004 to coincide with the 11th anniversary of the crime, but his sentence was commuted to life in prison under Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting the imposition of the death penalty on juveniles under the age of 17 years).
• Efrain Perez – age 17 at the time of the crime; sentence commuted to life in prison under Roper.
• Venancio “Yuni” Medellin, Jr. – age 14 at the time of the crime; younger brother of José Ernesto Medellín; only defendant to be tried as a juvenile; sentenced to 40 years in prison.
• Roman Sandoval – left when the attack began
• Frank Sandoval – Roman’s brother; left when the attack began.

Messrs. Cantu and O’Brian were tried in March 1994. Six months later, Messrs. Medellin, Villareal, and Perez were tried simultaneously in three separate courtrooms.

Reportedly unknown to the court at the time, Mr. Medellín’s trial lawyer was suspended from the practice of law by the Texas Bar Association for ethics violations on an unrelated case during his representation of Mr. Medellín.

United Nations

• United Nations
• United Nations Charter, June 26, 1945, 59 Stat. 1031.

Vienna Convention on Consular Relations

• Vienna Convention on Consular Relations, Apr. 24, 1963, 596 U.N.T.S. 261.
• Optional Protocol concerning the Compulsory Settlement of
  Disputes, Apr. 24, 1963, 596 U.N.T.S. 487.

International Court of Justice

• International Court of Justice
• Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), International Court of Justice (ICJ) (6 May 2008)
• Avena and Other Mexican Nationals (Mexico v. United States of America), International Court of Justice (ICJ) (31 March 2004); cite: Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31)

Inter-American System and Organization of American States

• Charter of the Organization of American States, Apr. 30, 1948, 2 U.S.T. 2394
• Inter-American Court of Human Rights
• Inter-American Commission on Human Rights
• Rules of Procedure of the Inter-American Commission on Human Rights
• Declaration of the Rights and Duties of Man (“American Convention”)

U.S. Resources

• U.S. Constitution
• Medellín v. Texas, 552 U.S. ___ (2008) (finding that the United States is obligated to comply with Avena but asserting that this obligation requires action by Congress to give effect to the non-self-executing treaty)
• Amicus Curiae, U.S. President Bush statement stating the U.S. had a binding obligation to comply with Avena, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928)
• Medellín v. Dretke, 544 U.S. 660 (2005) (per curiam)
• Medellin v. Cockrell, No. H-01-4078 (S.D. Tex. April 17, 2003) (denying certificate of appealability in federal court because there was adequate and independent state procedural grounds used by state courts; there was no remedy, and even if the Vienna Convention on Consular Relations created an individual right, that right was barred by prior a U.S. Supreme Court decision on criminal sentences)
• Ex parte Medellín, 223 S.W.3d 315 (Tex. Crim. App. 2006) (holding that the Avena Judgment and the U.S. President’s recognition of the international obligation did not constitute preemptive federal law)
• Medellin
• Ex parte Medellin, No. 5019-01 (Tex. Crim. App. Oct. 3, 2001)(not designated for publication)
• Medellin v. State, No. AP-71,997 (Tex. Crim. App. Mar. 19, 1997)(not designated for publication)

Legal Professionals with Expertise on Medellín

• Sandra Babcock, Center for International Human Rights, Northwestern University
• Carlos M. Vázquez, Georgetown University Law Center