A Tragi-Comedy of Errors Erodes Self-Execution of Treaties: Medellin V. Texas and Beyond
Quigley, John, Case Western Reserve Journal of International Law
The 2008 U.S. Supreme Court decision in Medellin v. Texas has generated concern that the doctrine of self-execution of treaties is being eviscerated. The Court's decision involved misapplication of that doctrine in a case in which self-execution should not have been center stage in the first place. The case should have turned on presidential power, not on self-execution. The Court hinted at a new and stricter standard for finding treaty provisions to be self-executing. The Court purported to be acting consistent with its own precedents on standards for self-execution but analyzed the treaty provision at issue in a manner at odds with precedents, inappropriately concluding that it was not self-executing. In a series of cases arising since Medellin involving treaties as between private parties, the lower federal courts have, appropriately, disregarded the Medellin decision and have continued to apply treaties as required by the Supremacy Clause of the United States Constitution.
Contents I. Context Of The Self-Execution Issue: Consular Access Claims II. The President Seeks Implementation Of Avena A. The Obligation to Review and Reconsider B. President Bush's Mode of Seeking Implementation III. Self-Execution In The Supreme Court's Analysis IV. The Supreme Court's Reading Of Un Charter Article 94 A. Enforcement Mechanism in UN Charter Article 94 B. ICJ Statute Articles 34 (1) and Article 59 V. Conflict With Prior Self-Execution Decisions VI. Meaning Of Medellin For Defensive Invocation Of A Treaty VII. Meaning Of Medellin For Executive Enforcement Of A Treaty VIII. Declaration In A Senate Resolution Of Consent IX. The Supreme Court's Operational Rule X. Treaties In Private Law Cases Post-Medellin XI. Conclusion
The unfortunate analysis of treaty self-execution given by the Supreme Court in Medellin v. Texas was the last in a series of missteps in the case. The prior missteps should have kept the case from reaching the Court. The Court itself then produced an opinion out of step with its own case law, without explaining, or perhaps even understanding, the extent to which it was undermining the traditional analysis of self-execution of treaties under the Supremacy Clause of the U.S. Constitution. The Court's errors are sufficiently egregious that it may not be unrealistic to anticipate that in future cases the analysis in Medellin v. Texas may be limited or ignored. This article, after analyzing Medellin v. Texas itself, traces post-Medellin cases in the lower courts.
Medellin v. Texas came out of more than a decade of litigation both in the United States and in international institutions relating to the access of foreign nationals under arrest to consular officials of their home country. The issue before the Court in Medellin v. Texas was the domestic enforceability of an international decision on that subject. This earlier consular access litigation set the stage for Medellin v. Texas, and it is with it that this article begins.
I. Context Of The Self-Execution Issue: Consular Access Claims
The context for Medellin v. Texas, though not the issues in dispute in the case itself, was consular access for foreign nationals accused of crime in the United States. Access to a consular official is provided for in the Vienna Convention on Consular Relations (VCCR), a multilateral treaty to which most states of the world are party. (1) Authorities arresting a foreign national are required to inform the individual of a right to contact a consular office of the individual's home country. (2) The reason for this procedure is to allow consular officials to provide assistance during the pre-trial phase, the trial phrase if a trial occurs, and beyond. (3)
The legal issue that led ultimately to Medellin v. Texas was that of the legal consequences of the arresting authority's failure to inform a foreign national about consular access. …