Supreme Court Report

Advice of Consul

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In just his third term heading the U.S. Supreme Court, Chief Justice John G. Roberts Jr. has already put his stamp on international law and the interpretation of treaties.

Perhaps he had no choice. Treaty disputes have been bubbling up. Some have concerned trade pacts: In Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), the court said Mexican trucks may travel freely across the U.S.-Mexico border even if they don’t meet California highway safety and anti-pollution standards. Others have involved labor laws or copyright piracy.

The first major treaty disputes to reach the Roberts court have focused on crime and the death penalty. In both, Roberts spoke for the court to limit the effect of international treaties on local jurisdictions.

Writing for a 6-3 majority two years ago, Roberts said state judges and prosecutors need not throw out confessions because of a possible violation of the notification right under international treaty. Sanchez-Llamas v. Oregon, 548 U.S. 331.

This term, in a far-reaching opinion handed down March 25, the chief justice said the Supreme Court retains the final power to interpret treaties and to decide how they will be enforced within this country. An international court cannot make binding “domestic law” within the United States, he said. Medellin v. Texas, 128 S. Ct. 1346.

Experts in international law have called Medellin a setback for America’s reputation abroad. “The U.S. has been an active user of the international court, and we usually win. This is a blow to our image for upholding the rule of law,” says Lori Fisler Damrosch, a professor of international law at Columbia University.

International law, like law everywhere, often comes down to a simple question: When disputes arise, who decides? The premise is that nations can agree on a set of rules for trade or travel. Once a treaty or trade pact is made, they may agree that an international body—such as the International Court of Justice in The Hague—will resolve those disputes and hand down binding decisions.

A close reader of Article VI of the U.S. Constitution might think international pacts would stand as law everywhere in the U.S. After all, it says: “This Con­stitution, and the laws of the United States … and all treaties made, or which shall be made, … shall be the supreme law of the land, and the judges in every state shall be bound thereby.”

Advocates of international law made just those arguments in Medellin. They said American courts had a duty to enforce treaties that the U.S. government entered into, even if it meant reopening cases of murderers who were sentenced to death.

“It is imperative that the international community understand that when the United States gives its word, the United States will keep its word,” said Donald Francis Donovan, a New York City attorney who argued on Jose Medellin’s behalf.

A native of Mexico, Medellin was convicted of the gang rape and murder of two teenage girls in Houston in 1993 and sentenced to death. He was not, however, told of his right under the 1963 Vienna Convention to contact the Mexican Consulate and seek its assistance.

The Vienna Convention sought to further “friendly relations among nations,” and its provisions were designed to allow consulates to aid their citizens. Article 36 says the authorities in a “receiving state shall, without delay, inform the consular post of the sending state if … a national of that state is arrested or committed to prison or to custody pending trial.” A separate agreement, called an optional protocol, provides for the ICJ as the venue for resolving disputes.


During Medellin’s appeals, the case was pulled onto the world stage. In 2004, Mexico sued the United States in the ICJ on behalf of Medellin and 50 other Mexican nationals incarcerated in state prisons and sentenced to death. Mexico’s lawyers argued the convictions and sentences should be overturned because officials in Texas, California and elsewhere failed to notify them that these people had been arrested and faced murder charges. At a minimum, Mexican officials said, they would have provided extra legal help to these defendants.

The ICJ agreed with Mexico, but its ruling was tentative. It said the U.S. had a duty to “provide, by means of its own choosing, review and reconsideration of the convictions and sentences” of the 51 Mexican nationals. Case Concerning Avena and Other Mexican Nationals, 2004 I.C.J. 12.

After the ruling was handed down in March 2004, the New Orleans-based 5th U.S. Circuit Court of Appeals denied Medellin’s application for a certificate of appealability. The Supreme Court granted cert.

Meanwhile, this hot potato landed in the lap of the Bush administration and incoming Secretary of State Condoleezza Rice. After a rough first term in which President Bush launched the war in Iraq, Rice’s mission was to smooth the ruffled feathers of world diplomats.

In February 2005, one month after Rice took over, Bush issued a presidential memorandum announcing that the U.S. “will discharge its international obligations” under the ICJ ruling “by having state courts give effect” to its ruling on behalf of the 51 Mexicans. With the memorandum in hand, Medellin went back to the Texas state courts, and the Supreme Court, in turn, dismissed the case.

That summer, Bush nominated Roberts to the court, succeeding Chief Justice William H. Rehnquist, who died in early September. A few months later, the court took up the case of Moises Sanchez-Llamas, a Mexican national who was arrested in the shooting of a police officer. He was given Miranda warnings in Spanish and English and made an incriminating statement. His lawyers said the statement and conviction should be overturned because he was not given his Vienna Convention rights to seek the aid of the Mexican Consulate.

Roberts rejected that contention in Sanchez-Llamas. The ICJ’s interpretation of the treaty merits “respectful consideration,” but it is not binding law, the chief justice said. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed in full, and Justice Ruth Bader Ginsburg concurred.


The stage was set then for Medellin. Not only was the treaty or the ICJ’s decision not binding law, Roberts wrote, but Bush could not make it so on his own—a rare rebuff of the president. The Constitution gives the president the power “to execute the laws, not make them,” Roberts wrote. The president, acting alone, cannot enforce an international treaty without the explicit backing of Congress, he said.

Again, Scalia, Kennedy, Thomas and Alito agreed, and this time Justice John Paul Stevens concurred. Texas is not obliged by law to reconsider Medellin’s sentence, Stevens said, but it would be good for the nation and its reputation abroad if it did so.

Anticipating the claim that the Supreme Court was reserving for the United States a special exemption from its treaty obligations, Roberts kicked back. “Neither Medellin nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts,” he wrote.

But the Vienna Convention is an unusual treaty, says Duke University law professor Ernest Young, because its enforcement rests with police and prosecutors.

“If you are talking about compliance with an arms-control treaty, you can point to a few people who are responsible. But this involves millions of foreigners and thousands of arresting officers,” he says.

In addition, the lines between “sending” state and “receiving” state have blurred over the years. Millions of Mexicans and Central American nationals now live in the United States, some legally and some not. Police do not routinely ask arrested people whether they are citizens or not. They do not want to play the role of immigration officer. But by failing to ask this question, they may well violate suspects’ rights under the Vienna Convention.

Northwestern University law professor Sandra Babcock, who represented Medellin, stresses that the Vienna Convention protects Americans abroad. “The United States should comply with the judgment of the ICJ, not only because it’s the right thing to do, but because noncompliance could affect the safety of foreign exchange students, Peace Corps volunteers, American servicemen and all other Americans who rely on the protection of the U.S. Consulate when they travel abroad.”

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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