The United States has committed itself to many international institutions that make decisions affecting this country's rights and duties under international law. These international decision-making bodies include the International Court of Justice at the Hague, the North American Free Trade Agreement arbitration panels, and the Dispute Settlement Body of the World Trade Organization. The very important question arises of what effect, if any, such bodies' decisions should have in U.S. courts.
In 2004, the "principal judicial organ of the United Nations," (1) the International Court of Justice (ICJ), determined that the United States had failed to comply with the Vienna Convention on Consular Relations' requirement (2) that foreigners arrested in the United States be informed of their right to contact their consulate for assistance. (3) The case, known as Avena, involved fifty-two Mexican nationals tried and convicted of capital crimes in the United States. (4) The ICJ decision held that California, Texas, and seven other states caused the United States to violate the Vienna Convention when they failed to inform fifty-one of these individuals of their right to contact the Mexican consul in conjunction with their arrests. (5) Most importantly, the ICJ ruled that the United States must remedy these violations by providing "review and reconsideration of the convictions and sentences of the Mexican nationals." (6) The ICJ further determined that the general procedural default rules should not apply to such claims. (7)
Soon thereafter, one of the fifty-one individuals, Jose Medellin, argued in the Fifth Circuit that the Avena decision bound courts in the United States. (8) The Fifth Circuit disagreed and followed its own precedent in determining that the Vienna Convention did not create a private cause of action for individuals in U.S. courts and that Medellin's claim was procedurally defaulted. (9)
After losing in the Fifth Circuit, Medellin filed a petition for certiorari, which the Supreme Court granted. (10) More than a month before oral argument, however, President George W. Bush issued a memorandum stating that the United States would "discharge its inter-national obligations under the [Avena judgment], by having State courts give effect to the [ICJ] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision." (11) Based on this memorandum, Medellin filed a successive state habeas petition, and thereafter the Supreme Court dismissed its writ of certiorari as improvidently granted. (12)
Although the Supreme Court never reached the merits of Medellin's claim, the Court recently seized the opportunity to shed light on the proper deference U.S. courts owe ICJ rulings in two consolidated cases, Bustillo v. Johnson and Sanchez-Llamas V. Oregon. (13) Those cases involved Mexican and Honduran nationals who were not among the fifty-one individuals affected by the President's Avena memorandum. …