Texas Breaks Own Record: Four IL Violations in One Go

By Tobias Thienel

The State of Texas last night committed between four and six violations of international law in one go. That must be a record even for the Lone( Sta)r State. Here’s hoping that it is, and will remain so for some time.

Texas has, of course, done this by executing José Ernesto Medellín. In doing so, it has violated, most obviously, the ICJ judgment in the Case concerning Avena and Other Mexican Nationals (para. 153(11)) and the ICJ Order instituting provisional measures in Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (para. 80(b)). None of this is even remotely controversial; indeed, the United States repeatedly acknowledged, in the ICJ no less, that Mr. Medellín’s execution, in the circumstances prevailing yesterday, would violate the terms of the ICJ judgment (see pp. 13, 14 and 17 of the transcript of oral argument in the latest ICJ hearing).

But the list goes on…

Beyond that, Texas also violated Article 36(2) of the Vienna Convention on Consular Relations, from which the ICJ has persuasively derived the requirement that anyone whose rights under Article 36(1) had been violated would be entitled to ‘review and reconsideration’ of their cases (see the Avena judgment, at paras. 128 et seq., and LaGrand, paras. 125 et seq.). Article 36(2), of course, provides that the ‘laws and regulations [of the receiving State] must enable full effect to be given to the purposes for which the rights accorded under this article are intended.’

The fourth violation is more even more straightforward. Article 6 of the International Covenant on Civil and Political Rights enshrines the right to life and bans all arbitrary deprivations of life. ‘Arbitrary’, of course, simply means ‘unlawful’ (cf. Martinez v. City of Los Angeles, 141 F.3d 1373, 1384 (9th Cir. 1998)), and the killing of Mr. Medellín was patently unlawful for all the above reasons (see also, for the proposition that a prior violation of the convicted person’s VCCR rights renders any execution arbitrary, the Advisory Opinion of the Inter-American Court of Human Rights in The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, para. 137).

For much the same reasons, the United States, through its organs in the State of Texas, has violated Article 6(2) of the ICCPR, under which ‘sentence of death may be imposed ‘only in accordance with the law [of the State party].’ This, of course, means that ‘the strictest and most rigorous enforcement of judicial guarantees is required’ (the IACtHR Opinion, at para. 136; see also paras. 131-132).

The sixth violation may be less clear-cut. In the Opinion I have just cited, the Inter-American Courthas held also that the VCCR right violated in Mr. Medellín’s case, the right to be informed of the option of consular assistance, formed a part of the right to a fair trial (para. 122). The European Court of Human Rights has further held that it would be a violation of the provision against inhuman and degrading treatment to impose sentence of death following an unfair trial (Öcalan v. Turkey, para. 169). This is readily understandable, given that any unfairness will increase a person’s fear of being executed, and possibly their feeling that this sentence has been wrongly imposed on them. Whether that is so in any one case is, of course, a sensitive question of fact. Not every violation of the right to a fair trial causes any anguish. Whether any might have done in Mr. Medellín’s case I am in no position to say.

So, what now?

For the purposes of domestic law, I fear that this first execution immediately opposed to the Avena judgment may decrease such already slim chances as there are of Congressional action to secure compliance with Avena. If Congress acted now, it would lay itself open to the charge of having done too late what it would then imply would have been necessary even before yesterday. As cruel as this may seem, Congress may think it right to save either everyone or no-one. The first option is now off the table.

In international law, an interesting question arises as to the competence of the ICJ to now speak on what the US has done.

Until now, Mexico has only put in a request to the Court to give an authoritative interpretation of its earlier judgment, under Article 60 of its Statute. The Court has jurisdiction to do this already under its Statute, without any need for any further expression of consent. But under this procedure of interpretation, the Court can only clarify what its earlier judgment has meant to say all along; it therefore cannot rule on whether the US has failed to comply with the judgment in anything it has done. The interpretation procedure is ancillary to the Court’s earlier work; it does not address State responsibility under Article 94(1) of the UN Charter (the duty to comply with the judgment).

Things may be different, in a way, after the Court has ordered its provisional measures in the new Avena case, and after the US has directly violated its obligation to comply with those measures. They are, of course, binding, as the Court has by now repeatedly held (LaGrand, paras. 98 et seq.; Armed Activities on the Territory of the Congo, para. 263). As a consequence of that, the Court now also claims an inherent jurisdiction to rule on whether a party to a case has violated its obligations under provisional measures instituted by the Court. It has already done so in LaGrand, where it found that the US had ‘breached the obligation incumbent upon it under the Order indicating provional measures’ (para. 128(5); see also para. 115 in fine). The LaGrand case, of course, was itself jurisdictionally limited, in that the basis of the Court’s jurisdiction did not allow it to address all and any wrongful acts by either of the parties; it was, on the main part of the case, limited to the VCCR. That did not prevent it from finding the US also in violation of the provisional measures Order, so the competence involved there was of necessity inherent in the Court under the Statute. The Court can protect the integrity of its own procedure by ordering provisional measures, and by ruling on their implementation, whatever the main proceedings may be about. If, therefore, interim measures have been thought necessary in an Article 60 procedure, then the Court’s inherent jurisdiction to follow up on such measures is also present.

This being so, it is now open to Mexico to ask the Court to find that, in executing José Ernesto Medellín, the United States has failed to comply with the Court’s Order instituting provisional measures.

But I suppose we all know how much good that’s going to do…

13 thoughts on “Texas Breaks Own Record: Four IL Violations in One Go

  1. Presumably, if the defendant himself is not capable of recognizing that he has a VCCR claim, then his counsel will. If the counsel fails to raise the claim in a timely manner, it is defaulted.

    I see your point there, but I must say I find it a bit rich for the State to say ‘ah, well, we didn’t tell you of your rights as was our duty, but your counsel should have told you.’ That’s contracting out an obligation, in a way, except the person to whom the obligation is contracted out has not only not consented, but is even put at a disadvantage by this.
    I can generally understand the argument that competent counsel should know and advise his client of any defenses and other arguments, and that failure to raise such points may mean they are procedurally defaulted later. I just fail to see how this can sensibly be applied if the failure of counsel was one that a specific duty to inform on the part of the authorities was to make provision for, even allow for.

    On the US and treaty law, I do have some sympathy for the United States on the grounds that they do seem to get more stick than many others who are plainly worse. That, as you suggest, comes with being the leader of the free world. But it also comes with the fact that the US generally is one of the good guys; Zimbabwe gets nowhere near as much bad publicity (particularly from academics), because, unfortunately, we expect no better from some.

    I agree that some of the American opposition to international (legal) influences smacks of a parochial preference for the domestic arrangements as they stand (often with such question-begging epithets as ‘tried and tested’ or ‘time-honored’ applied to the latter). I find that regrettable in the extreme, but it is a fact of life. Michael J. Glennon has written that Americans wouldn’t dream of having an international court decide on gays in the military (a reference to Smith and Grady v. United Kingdom); that’s clearly correct, and maybe an extreme example at that.

    I also seem to observe in US lawyers (including judges) a more marked tendency for very strict black-letter lawyering than in their European colleagues. I suspect this comes partly from the lack of enthusiasm for international law, but I think the tendency exists also in domestic law. As a European, and one concerned with human rights law at that, I would readily deprecate any such approach. I tend to regard such thinking as uninspired, an unrealistic reading of the object and purpose of the law and occasionally as borderline cruel. I would even, therefore, regard an element of legal/judicial policy in the interpretation of treaties as entirely legitimate.

    [As it happens, I fail to understand how someone from a common law jurisdiction can be honestly opposed to any of this. Judges really do make law there, so how can people like John Bellinger and his employers insist on perfect clarity before they accept treaty law as saying something? I’m thinking here of the rather specious argument that the MCA was needed because Common Art 3 of the Geneva Conventions was so terribly vague. It just isn’t; it’s broad.]

    Cultural differences, all, I suppose…

  2. Tobias-

    I still think you were abundantly clear. I understand fully your statement that the procedural default rule is now what it is unfair, but that it is the underlying trial problem that cannot be corrected because of the procedural default rule that is unfair. What I am trying to explain is that if the ICCPR required all potential unfairness to be resolved at some later date regardless of the rule, then the rule as it relates to any ICCPR claims would be essentially meaningless. But I think at this point we are perhaps just talking past one another on that issue.

    You wrote: “if someone has not been informed of the availability of consular assistance, surely he can’t have known of the failure to inform him, either?”

    Under an adversarial system, a defendant is entitled to competent legal counsel. Presumably, if the defendant himself is not capable of recognizing that he has a VCCR claim, then his counsel will. If the counsel fails to raise the claim in a timely manner, it is defaulted. If you later want to raise the incompetence of your counsel, that may well be grounds for a new trial, or at a lesser standard of proof it could satisfy the “good cause” prong of why the default should be overridden. Again, I appreciate that you do not buy the argument, but I think it would be the position of the United States that the fairness is in allowing a defendant competent counsel to raise claims. You don’t have to agree me, but absent a binding lawful statement to the contrary, I don’t know what to tell you… I am simply not convinced that there is an ICCPR violation here, and believe that any statement to the contrary is pure speculation as to what the ICCPR might require.

    As for the political argument: yes, clearly it is a political argument. But what else is PIL besides politics by other means?

    I think the US has been finding that when we are subjected to international tribunals, more often than not the judges are looking past what might have been the original intention of the treaties and finding an argument – indeed, often a nitpicky one – that fits a particular political agenda. It cannot be contested, for example, that what is driving the Medellin issue is opposition to the death penalty. And for all the high talk that the law is or is not one thing or another, I think we are increasingly finding that international tribunals interpreting treaty law are finding that the law is whatever they want it to be, and they often want it to be something contrary to the US understanding of what we signed up for. Among the countries that endeavor to follow the law, perhaps due to our global hegemony we often find ourselves with a big target on our back. Thus, instead of the international legal system being used to fight truly arbitrary executions and unfair trials, the machinery is turned towards analyzing whether Medellin is entitled to his umpteenth round of review, even when the courts have already determined that he was not prejudiced by his failure to be informed of his notification rights.

    You wrote: “Just because you might not agree with the court or committee is hardly an argument; of course you might, but that concern would really mean you don’t want the law, not that you want to be sure what the law is. ”

    Agreed… we don’t want the law as it is being applied by the dispute resolution mechanisms. We have a disagreement with what the law is and/or should be, and thus are finding that signing things gets us in a lot deeper than we thought. Solution: don’t sign things, or reserve so much that the signing is pointless.

    I think your ICCPR violation arguments are very good examples. I certainly do not believe it was the US’ understanding at signing that they were now required to bypass their procedural default rules. Had they been, they would have made a reservation, or not have signed. If the ICJ actually took up your idea, I assume that we would withdraw from the ICCPR, much like we have done with the VCCR optional protocol.

    I realize, of course, the inherent nationalistic egotism of this argument. There is clearly an undercurrent to this that we simply have a better interpretation of the law, that our system is superior in both fairness and analysis, and that we almost can do no wrong. For that, I apologize…. as a long time committed internationalist it pains me, to some extent, to have to take up this view. But more and more I am understanding the US’ position on why, generally, international law is proving to be useless in actually getting the change that we want in the world, and more often than not is used to impede our own better judgment on how to administer our own affairs as well as the responsibilities inherent in the central role we play in the world, for better or for worse (and I certainly do not begrudge anyone believing it is for worse, though I tend to disagree).

  3. Dave-

    first, a modification of what I am about to say: the next few paragraphs are directed at the situation under the ICCPR. You are about right to say that there is no (internationally lawful) rule of procedural default in VCCR cases. But then, I don’t see the problem: if someone has not been informed of the availability of consular assistance, surely he can’t have known of the failure to inform him, either? He therefore couldn’t have raised the issue at trial, until such point as he has been made aware – by the authorities belatedly complying with their obligation, or by someone standing in for them, as it were – of the legal duty to inform him. Raising the violation of Article 36(1) VCCR in court will therefore – usually – carry its own explanation for why this was not done at any earlier opportunity. The defendant’s ignorance of his rights can hardly be his fault if it’s the duty of the authorities to inform him of his rights. The rationale of procedural default – under which an argument is rendered inadmissible because it could and should have been advanced earlier – does not apply. The argument could not have been made, precisely because it is well-founded.

    But now on to the ICCPR: I don’t think I made ‘abundantly clear’ what you think I did. In fact, I don’t think I even said what you understand me as saying.

    I very largely agree that procedural default is not as such unfair. I think you are right in saying that it is a natural (if not a necessary) part of the adversarial system, and as such it is really ubiquitous, in one form or another. In particular, the rule strikes me as a close relative of the common law’s conception of res judicata (including, in the modern terminology of English law, ‘Henderson v. Henderson abuse of process’). Similar rules are even applied in the civil law tradition.

    I only pointed out that, as a practical matter, procedural default may create problems if there has been some procedural unfairness at an earlier stage of the proceedings. On its own conditions, procedural default may prevent an appeals court from righting the wrong. The earlier unfairness would therefore at the conclusion of all appeals and review procedures, when all stages are looked at in the round under Article 14 ICCPR, engage the responsibility of the United States. This does not mean that the procedural default rule is unfair, nor even that it has been unfairly applied. The unfairness lies at the earlier stage; that, and only that, is where the problem lies. All that procedural default does is to let the earlier unfairness come to the fore and cause a violation of Article 14 ICCPR.

    This does not mean that procedural default must be scrapped. It means that the earlier unfairness should not have occurred. True, if the procedural default rule had not applied, the unfairness could have been corrected, but that only makes procedural default one of the causes of the fact that the wrong has not been put right; other than that, it does not make procedural default part of the wrong itself. You might compare this, if you will, to the local remedies rule: say, if Mexican agents kill a US citizen (as I believe happened in some 1930s arbitration cases), and the Mexican courts fail to award damages as appropriate, would you regard the courts as having committed the unlawful act there? Would you say that any procedural rule that might have prevented them from addressing the violation was itself unlawful? I would not. [Note that the issue is only similar under the right to a fair trial, but not the same: the ‘trial’ in question is only concluded at the conclusion of all appeals etc. There is, therefore, no unfair trial once only the – unfair – trial stage (now in the US sense of the word) is over. The appeals stages therefore would not repair, but actually prevent the wrongful act if they managed to remove or counterbalance the early unfairness. Still, the analogy is close enough, I guess.]

    That’s why I said earlier the procedural default rule is ‘legally inconvenient.’ It is not unlawful, much less is it itself unfair. It may, however, operate to prevent parts of the ‘trial’ (namely the appeals stages) from absolving the US of responsibility for things that have gone wrong earlier. So much the pity for the US, but that is clearly not an attack on the procedural default rules, but only one on the unfair conduct that would have occurred at some stage (coupled, at most, with some adverse comment about the lack of remedial action in the remainder of the trial).

    Try to look at it from the vantage point of what would have to be done to repair the violation, and to prevent its future reoccurrence: the US would have been called upon by the finding of a violation of Article 14 to repair the wrongful aspect of the unfair treatment at some stage of the proceedings, say at trial. Doing so would prevent any further violations along the same lines in the future.
    If procedural default was in itself unfair, it would have to be changed. If it only applies to prevent an appeals court from righting an earlier wrong, however, then it is not a necessary part of the violation (indeed, the appeals court could have failed to right the wrong for a host of other reasons, say if its assessment was mistaken). It does not have to be changed. If it remains as it always was, and the cause of the actual unfairness (at trial) is removed, then the violation will not reoccur.

    Did that clear things up?

    I hope, in particular, to have cleared up the notion that any allegation of unfairness would force the appeals court to do away with procedural default. It would not, but if there really has been some unfairness, then the appeals courts would, in declaring a procedural default, allow a violation of Article 14 to become established, on the grounds only of the earlier conduct. That is hardly desirable, but does not itself meet with legal disapproval.

    Finally, please allow me a few words on your ‘sovereignty’ argument.

    I take it that is a political argument. Legally, of course, the United States is no less sovereign for having treaty obligations, because it has entered into such obligations of its own free – sovereign – will.

    Apart from that, if you want some legal certainty with your treaty law, so as to be free of nit-picking legal argument, why not sign up to dispute settlement mechanisms? Just because you might not agree with the court or committee is hardly an argument; of course you might, but that concern would really mean you don’t want the law, not that you want to be sure what the law is.

  4. Tobias-

    What is the point of having a procedural default rule if you have to go back and reopen the case on an allegation of “unfairness” for the purposes of the ICCPR (and, for that matter, the VCCR)? It doesn’t make any sense that the rule is “normally” fine, but that it is only when it impedes a prior unfairness that it is problematic. If you can actually show the unfairness along with actual prejudice and good cause for not having raised it earlier, you can override the rule, but if it is a matter of reopening the case any time someone alleges potential unfairness, then there is really no rule at all, it’s just empty words.

    And that is where your indictment of the rule is. If you got your way, meaning that a potentially unfair trial needs to be reopened to examine whather there was unfairness upon simple allegation, then there is no procedural default rule as it relates to ICCPR or VCCR notification claims.

    I understand that you believe that that is what the ICCPR requires… you have made that abundantly clear. I, and probably the US judiciary if they were ever called to pass on it, respectfully disagree with your interpretation, believing as Roberts noted in Sanchez-Llamas that the procedural default rule is a fair and necessary aspect of an adversarial legal system, and that as such it is in keeping with the VCCR and the ICCRP.

    And this may be why the US, including moderates like myself, increasingly does not want to “participate in the development of human rights law,” as you put it. For the most part, we take our legal obligations very seriously. But at the same time, we remain a sovereign state, and if we are to be nitpicked into an argument that our procedural default rules may mask a violation of the ICCPR, we stop seeing what the value in these treaties are. Medellin broke our laws. He was been given a fair trial, and multiple rounds of appeals. It is pretty much a given that even if he had gotten his “review and reconsideration,” he would have been executed anyway. At some point, proceedings need to come to an end. You can’t have people continually raising claims.

    But then someone comes up with a theory, saying that it would violate international law to allow the proceedings to end. Like I have said, without an enforcement mechanism that says what the law is, you can make pretty much any argument you want that something is “unfair,” or “arbitrary.”

    And this is why the US doesn’t want to sign any more treaties.

  5. Dave,

    I very largely agree with your ‘reading of the tea leaves,’ if for an additional reason. US courts definitely will not agree with my reading of the ICCPR. I don’t expect any American judge to agree with my interpretation as a matter of legal analysis, bu much less do I expect them to reach the question at all. As you will know, the Senate has declared the ICCPR to be non-self-executing, and the courts have faithfully followed that. That might be argued to open another can of worms (see e.g. http://opiniojuris.org/2008/01/24/self-executing-treaties-the-senate-and-a-bit-of-german-law/ – only my thoughts, but I have found those shared by US professors), but the Supreme Court in Medellín has appeared not to have any problems with a power in the Senate to refuse a treaty self-executing effect. Therefore, the ICCPR is not applicable as domestic law. US judges accordingly behave – and must behave – as if the US were not bound by the ICCPR at all. That’s a pity, in that it prevents US jurisprudence from participating in the development of international human rights law (which, in other areas of IL – think immunities -, US courts aren’t all that eager to do anyway), but that’s how it is.

    Thank you for putting me right on the matter of procedural default and constitutional complaints. I only seemed to remember from argument before the ICJ that such complaints could be taken up at any later stage post-trial, the procedural default doctrine being limited to non-constitutional complaints. That may well have been in argument by Mexico, and may have been wrong in any event.

    I don’t actually think procedural default is inherently unfair (although its application to VCCR complaints violates Article 36(2) VCCR). The absence of information to the defendant complying with Article 36(1) VCCR may, however, have caused unfairness at trial, and if so, procedural default would prevent later courts from righting the wrong. That would not tar the whole doctrine of procedural default with a very broad brush; the doctrine as such would not be unfair, nor otherwise violate the ICCPR. It would only mean that prior (in)action by the trial court or the prosecution would engage the responsibility of the US, which the appeals court could, but for the doctrine, have prevented from happening. This does not make the doctrine unlawful, the cause of the violation being at the earlier stage. The doctrine would only, in this particular situation, be legally inconvenient.

    I don’t see any broad indictment of the US legal system there.

  6. Tobias-

    I think we’ll have to simply disagree on the ICCPR issue. It has been said that civil law lawyers look for principles of law, whereas common law lawyers look for enforceability. It is clear that your argument is plausible. But I have to say that in my ‘reading of the tea leaves’ I cannot believe that a US court would interpret the ICCPR in such a manner, even if they were to take as fact that the execution was “unlawful” because the ICJ had ordered it to not occur. That says nothing, of course, about the ECHR or another international court. But since there is no other controlling authority here, unless the claim is brought before the ICJ I would think it is decidedly “not the law” that the execution was a violation of the ICCPR.

    As far as procedural default, I do not think underlying constitutionality is relevant to reviving a defaulted claim. If I recall correctly, one needs to present a good cause for why the claim was not raised in a timely matter, and then show actual and substantive prejudice to your case.

    I understand, of course, that due to LaGrand and Avena the US is required to override its procedural default rules for the required “review and reconsideration.” But extending their failure to do so into another ICCPR violation is, I think, stretching things a bit. As it was pointed out in LaGrand (US), Sanchez-Llamas and Medellin, procedural default rules are a necessary part of an adversarial system, and it means that sometimes there may be the possibility of underlying unfairness. Again, if that is a violation of the ICCPR, then that is an indictment of a much larger part of the US legal system as a whole, not just this one case.

  7. Dave,

    Thank you again for your comment. If I may, I will address first your arguments about the ‘lawfulness’ of the execution, and then move on to your points re procedural default and fairness.

    I don’t think the proper distinction for purposes of the requirement of lawfulness in international human rights law is that between the rights of the person concerned and any other rules. Öcalan and Medvedyev show that the human rights provisions go further in enforcing compliance with the rule of law. They require that all relevant law be complied with, whether domestic or international, and whether they create individual rights or not. Human rights law therefore demands not only that any domestic rights relevant to an interference with international human rights be respected, but also that the domestic authorities interfere with human rights only insofar as they may lawfully do so under any applicable law. I think that is quite reasonable.

    Of course, you are still right to say that your hypothetical, of an execution at night illegal under some electricity saving legislation (presumably not an electrocution, then…), would not involve a violation of the ICCPR. But I would think that’s because your hypothetical legislation addresses the ‘how’ of the execution, not the ‘if’. It is therefore not relevant to the interference. [You might argue that the legislation does control whether the person is put to death a few hours sooner or later. There are two answers to that: a. It is not a rule against an earlier execution, as the execution might as well have taken place the day before, and b. I doubt that, if the execution would have been lawful very briefly before and after it has actually taken place, the wrong time is not subsumed as relevant into Article 6 ICCPR.]

    As for Article 6(2), I should admit my earlier quote wasn’t quite accurate. The ICCPR does not actually mention domestic law; it simply says ‘law’. It is no more limited than the other requirements of lawfulness, which in my view (as set out above) do make reference to international law as well.

    I do accept, incidentally, that these arguments on the lawfulness of the execution do not necessarily, in ordinary parlance, bear out the strong judgment of ‘arbitrariness’. However, if you look at the interpretation of the word in various bits of international human rights law, you will very often see it explained as requiring State action to be ‘lawful’, and then some. I certainly have never seen it interpreted as establishing any lower standard than that of legality. You might conceivably see this as a term of art that doesn’t owe much to plain English.

    But now on to the fairness issue:

    You will recall that there were, in LaGrand as in Avena, two issues under Article 36 VCCR: in violation of Article 36(1), people had not been informed of the possibility of consular assistance. In violation of Article 36(2), their resulting complaints on appeal had been held to be procedurally defaulted. This meant that ‘full effect’ was not ‘given to the purposes for which the rights accorded under this article are intended’ (Article 36(2) VCCR). [I happen to agree that both violations had indeed been committed.]

    My sixth argument proceeded from only the first violation, without addressing the procedural default issue at all. My point was simply that the lack of information regarding consular assistance was liable to render the trial unfair (and hence, that the imposition of the death penalty following an unfair trial might be ‘inhuman and degrading treatment’). I was not actually talking about the appeals and review stages, which is where the procedural default comes in. The only way the appeals and federal courts come into it at all is in the finding that later proceedings have not removed and repaired the earlier unfairness, but that is clearly not to attribute active fault to the doctrine of procedural default.

    Aside from my original argument, this last point may be the most relevant to an assessment of procedural default under the right to a fair trial (the ICJ has, of course, already provided the analysis under Article 36(2) VCCR): the default rule may not be unfair in itself, but it may prevent the appeals court from correcting aspects of the earlier proceedings that were unfair (unless, I understand, those aspects were also unconstitutional – true?). Before all appeals have been exhausted, the ‘trial’ in the sense of the right to a fair trial is not over, so there cannot yet be a violation of the right (unless the unfairness is such that it cannot be corrected, and even that can only really be stated at the end) (Edwards v. United Kingdom, para. 34; Ekbatani v. Sweden, para. 24; Roberts v. Parole Board [2005] UKHL 45, [2005] 3 WLR 152, para. 19; Attorney General for Gibraltar v. Shimidzu (Berllaque intervening) [2005] UKPC 26, [2005] 1 WLR 3335, para. 9). A court of final appeal that fails to correct earlier unfairness therefore does not fail to remove a prior violation of Article 14 ICCPR, but actually only causes the violation. – All of which, of course, presupposes that there has been some earlier unfairness, and (I think) that it is not a breach of the Constitution as well.

  8. Tobias-

    Thanks for your reply.

    Fair enough on whether the VCCR creates individual rights, and the LaGrand and Avena pronouncements on the same. I was caught in a fit of domestic myopy. However, I still disagree with the proposition that they create a right that requires a state such as the US to override its procedural default rules.

    As for your violations 4 and 5 (the ICCPR violations), I think the key issue is whether the “unlawfulness” of the act of failing to provide Medellin with review and reconsideration is an act that violates Medellin’s rights or an act that violates Mexico’s rights. This is an important distinction. Suppose there was a state ordinance in place prohibiting government agencies from conducting business after dark so as to cut down on energy expenditures. If the state held an executiot at midnight and convicted someone, it certainly would be an “unlawful” execution, in that it violated a law. But is it really an unlawful execution for purposes of the ICCPR? I don’t think so.

    While that’s an extreme case, I think it is illustrative of the situation here. It is the US’ admitted position that executing Medellin violates *Mexico’s* rights, not Medellin’s. That act may be “unlawful”, but is not unlawful as to Medellin, only as to Mexico. I understand, of course, that you see Medellin’s rights as having been violated, but I don’t think that holds up in the US view of things.

    Further, ICCPR article 6(2) requires compliance with the law of the state party, not international law, and you admit yourself that it was in compliance with domestic law. As to whether it was ‘arbitrary’, and your interpretation that arbitrary = unlawful: while that reading may be a good starting point, it is stretching the definition of “arbitrary” to try to include a violation of Mexico’s treaty rights as the “unlawfullness” that might make a execution “arbitrary”. We are not here talking about a hapazard application of the rules, but rather an intense process of many years and involving millions of dollars in defense expenditures. I hardly see this as John Roberts, et. al., “arbitrarily” executing Medellin; rather, the state has been engaged in a hard fought defense of the law, namely the federal procedural default rules, and our sovereign rights vis-a-vis our treaty obligations. This is not about Medellin; it is about the US’ legal relationship to the world.

    Finally, as to the fair trial/procedural issue: under US rules, if you fail to raise a claim at the appropriate time, it is defaulted. This is an important element of an adversarial system, because it prevent defendants from simply stringing out claims and allowing the clock to tick. It is the responsibility of the parties to raise issues, not for the court to ferret them out to make sure that a proceeding is fair, as they might in an inquisitorial system. Of course, there are exceptions to this, such as if new evidence is uncovered, or if inadequacy of counsel can be shown. But in most cases the result is that you might waive or default a claim that did, in fact, make a trial “unfair”. But the fact that you once had an opportunity to raise the claim, despite having failed through design or oversight to raise it, is what makes the underlying trial fair.

    Now, we can argue the merits of such a system, or whether Medellin’s counsel was adequate. But that is not the issue raised. The issue is whether either the VCCR or the Avena judgment requires the US to override its own procedural rules. Again, that is an issue between the US and Mexico, not an issue relating to the fairness of the trial as to Medellin.

    If you accept that the procedural rules are “fair”, than that is the end of the story as far as the ICCPR is concerned. If you think the procedural rules are unfair as far as the ICCPR is concerned, then that is significantly larger indictment of the US criminal justice system than I think you are trying to make. If that is the case, the application of federal procedural default rules violate international law on a daily basis far more than Medellin’s execution did.

  9. Mel and Dave,

    Thank you both for your comments, and my apologies for joining the discussion so late.

    I agree with you both that the violation(s) of IL here are violations by the United States. I would be less inclined to say that Texas hasn’t violated any law. It has, but only in a practical, not in a technical (or: legal) sense.

    If I may elaborate: I seem to recall a fairly prominent American scholar of IL as saying that ‘for the purposes of international law, the State of Texas does not exist.’ Indeed it doesn’t. The one State and subject of international law here is the United States of America; its subdivisions, like the differentiation between its various organs at the federal level (legislative, executive and judicial branch), are matters of domestic law only, which has no power of affecting any legal relations in international law. It follows that it is the United States that is bound by international law, and that it is only the United States that can violate international law. Texas does not exist, and therefore cannot be bound by IL or violate it. However, all organs of the State of Texas are organs of the United States from the point of view of international law (as confirmed in LaGrand and in the ICJ’s Cumaraswamy Opinion). Therefore, if an organ of the State of Texas in fact acts contrary to IL, then such action will engage the responsibility of the United States. Texas is therefore not unbound by IL in the sense that it may disregard it with ‘impunity’, i.e. without international responsibility following as a result. Accordingly, in international law, the State of Texas that it must comply with IL, or have the State as a whole (note: not just the federal level; IL doesn’t know the difference between State and federation, and thus knows no more of the federation than it does of its constituent States) incur State responsibility. There can be no division of competences relating to IL – as a matter of IL – in the sense that only the Feds will ever suffer (what passes for) the wrath of IL.

    What all of this boils down to is this: Texas has not violated IL in executing Medellín, but the United States through the judiciary and executive in Texas has. As a matter of fact, therefore, it was Texas that has violated IL, if only, as it were, on behalf of the US (as a unitary State, which is how IL sees it).

    [Incidentally: because the ‘United States’, in the international sense, is not the federal level, but the State in its entirety including the States, it is not simply the obligation of the United States to (try and) make sure that Texas complies, but to actually comply. The obligations of the institutions at the federal level under the Constitution are another matter.]

    Dave, I must disagree with your point about Article 36 of the VCCR creating individual rights (or rather: not doing so) – although I may not quite grasp what you mean by an ‘authority binding on the US.’ If by that you mean domestic authority, I think you are right, but you are better placed to say that. Sanchez-Llamas v. Oregon has certainly refused to decide the question, and other cases at Circuit level have held that Article 36 did not create individual rights. I believe U.S. v. Jiménez-Nava 40 ILM (2001) 1187 is one; there may be others, and possibly conflicting authority as well. But however that may be, the ICJ has certainly ruled that Article 36 VCCR does create individual rights (LaGrand Judgment, para. 77; Avena Judgment, para. 40). You would be right to say that this holding wasn’t strictly necessary, as Germany and Mexico might as well have brought the case only on the basis of their own rights; nonetheless, both States have chosen to bring the case both on that level and on that of the diplomatic protection of their nationals’ own rights, and the Court has seen fit to accept both pleas. I guess Germany and Mexico wanted an authoritative (Article 94(1) of the Charter) statement of the effect of Article 36 as creating individual rights for the purposes of litigation before US courts. They got just that.

    I further stand by my violations 4 and 5, and 6 with some more caution, as mentioned in the post. I should, however, add a few words by way of explanation.

    As for violations 4 and 5, I would not suggest that the execution was unlawful as a matter of US law. On that, you may well be right to suggest that, because the US is a common law jurisdiction, what the judges say about the law is the law (cf. Kleinwort Benson Ltd. v. Lincoln City Council [1999] 2 AC 349, 358, 377, 394, 398, 410). Fair enough (at least as regards US law; US judges cannot claim similar powers over international law, and sure enough, they don’t). But I don’t actually attack the judges on their reading of the US Constitution, etc. I simply maintain, as you do, that the execution was in violation of international law. That is enough, I think, to support my points based on Article 6(1) and (2) of the ICCPR: where international human rights law demands that some action, like an arrest or an execution, be lawful, it refers to all and any relevant law, including international law. Indeed, it even commands compliance with rules of law that do not create rights of the detainee or convict at all. In so doing, it converts all relevant rules of law into rights of the person concerned. As evidence of that, witness Öcalan v. Turkey and Medvedyev and Others v. France: both were cases of arrests. In the first, the applicant had been arrested by Turkish officers in Kenya. He argued that, and the Court examined whether, Kenya had consented to this exercise of Turkish jurisdiction abroad. Similarly, the applicants in Medvedyev had been arrested by the French Navy on the High Seas, on a ship not flying the French flag; the Court considered under the requirement of legality whether the flag State had given its consent to this exercise of French jurisdiction. Both cases, and both lines of enquiry, concerned possible violations by the arresting State of the exclusive jurisdiction (to enforce) of another State. Any such violation of IL would have rendered the arrests unlawful in the sense of Article 5(1) of the ECHR. Hence my argument under Article 6 of the ICCPR relating to the international illegality of the execution of J.E. Medellín.

    On my (somewhat tentative) sixth violation, I’m not sure I understand your point. There is no suggestion, either by the IACtHR as cited in my post, or by me, that the ‘review and reconsideration’ point has any bearing on the fairness of the prior proceedings. It is suggested, however, that the lack of information about the possibility of consular assistance at trial and before may adversely affect the fairness of the proceedings. It does not matter, in this regard, whether US and Texan law has been complied with; the right to a fair trial demands just that, a fair trial, not a lawful one. The law is immaterial to the exercise under Article 14 of the ICCPR (the right to a fair trial), except in that deviations from it may point to an element of unfairness (if nothing more).

    Finally, as to the last line of my original post, I would not wish to suggest that the US is a scofflaw, a pariah or a bumbling buffoon as regards international law. It is none of those things. Nonetheless, this has not exactly helped Mr. Medellín. Texas went ahead with the execution anyway, in the face of two international orders to the contrary. That’s why I have reservations about the usefulness of another declaration by the ICJ. Indeed, John Bellinger argued in the ICJ that any order from the Court might actually prove unhelpful (because of anti-internationalist sentiment, perhaps?). I have a feeling he may have been right in that, but that is obviously no reason for the Court not to do its job.

    (I don’t think, incidentally, that the Court’s inherent or incidental jurisdiction to declare the existence of any breach of its provisional measures extends to a power to award damages.)

  10. I think you are right, Mel… Texas has not broken any laws here, international or otherwise. The federal government has broken international law by failing to implement its treaty obligations. To date Texas has only followed the law. Could the Governor or another state party have stepped in to avoid the treaty violation by commuting the sentence or issuing a stay? Presumably so, and I happen to believe that they ought to have done so, but not for legal reasons. There was no *legal reason* for Texas to not continue to enforce its rules as it normally does in this case.

    Congress and the President are charged with creating and enforcing treaty obligations; if we are looking to assign blame it was their failure to enact implementing legislation that would keep the states in compliance with the treaties’ requirements. It is certainly not the job of state courts to discern the relevant international legal obligations of the US and seek to enforce them (the plain language of the Supremacy Clause notwithstanding). In the wake of Medellin v. Texas, the courts would have, in fact, been *breaking* the law had they sought to enjoin the execution on the basis of the Avena judgment.

    I think you are right about Bush, too. Had the President really wanted the Avena judgment enforced in our courts, he could have sought legislation from congress. Instead, he chose to use the situation as another assertion of broad executive power, choosing to order Texas under his own powers to implement the judgment. The Supreme Court was correct in rejecting this authority of the President. However, that now means it is up to congress to act if the US wants to abide by its obligations.

  11. Although, why do we not see this as a violation by the US, rather than ‘Texas’? The US is responsible for ensuring any and all of its treaty obligations are complied with, and the federal governmental structure is no excuse for lack of compliance. Texas may argue it is not obligated to follow a ruling of the ICJ, but as part of the United States, it is. Ratifying a treaty does not just mean that a federal government is obligated under that treaty but not any other level of government- think of how many violations of treaties (and rights!) would occur if this were the case.

    Australia also has a federal structure of state and federal governments, and in the past, the federal government has overruled a state government (Tasmania) for discriminatory legislation (criminalising male homosexual conduct), after the Human Rights Committee found it to violate the ICCPR. (See Toonen v Australia, No 488/1992, 31 March 1994.) It was Australia’s responsibility to comply with its obligations under the ICCPR, and even though the legislative area in question (criminal law) was designated as a state legislative power, the federal government made the Tasmanian government change the law.

    The same should have occurred in the Medellin situation. Although perhaps Bush didn’t feel as strongly about the issue as he claimed when voicing his opposition to the execution- call me a cynic, but ordinarily he is pretty quick to get in amendments to laws to get around international legal obligations (Guantanamo trials…).

  12. I fully agree with you that the execution of Medellin was a violation of international law, in that it violated the Avena decision and, accordingly, the VCCR (we could quibble over whether violating the provisional measures is a separate violation or not, but it would just be quibbling). But it is important to remember that the US has violated Mexico’s rights – not Medellin’s – under the VCCR. So, to answer your question “what now?”, surely Mexico can and should seek whatever remedies it can from the US.

    It should be clear that the act of executing Medellin did not violate the international legal rights of Medellin himself. There is no authority binding on the US that has held that the VCCR consular notification provision creates individual rights. Thus, only the act of violating the ICJ judgment violated the US’ treaty obligations.

    Further and in addition, I think it is clear that your violations 4-6 do not exist.

    Four and five do not exist because under US law compliance with the VCCR or the ICJ decision is not necessary for the execution to be legal. It is more than clear from the Medellin v. Texas decision that, as far as US law is concerned, the execution would be (and now is) legal. You are welcome to disagree with the methodology used by the US courts to arrive at the conclusion that it was legal (and there may well be much to disagree with there), but it is indisputable that the law of the US allowed this execution, and that this execution was not contrary to law. While it is a very PIL notion that the law is something other than what the judges say it is, I don’t think it is defensible under the US legal regime (See Marbury).

    The sixth violation is not one because no one has shown that the trial was unfair. The issue here is purely procedural: whether or not Medellin has a right under the VCCR or the Avena decision to have his trial reviewed for potential unfairness due to the VCCR violation. All along the Texas position has been that any potential review was procedurally defaulted by a failure to raise it in a timely manner, and not that a VCCR violation can never lead to an unfair trial. The Texas courts have a right to enforce their own procedural rules, and those rules need to comply with constitutional guarantees for the fairness of trials. No one has alleged that the Texas courts are acting in a capricious or arbitrary manner (as you put it, contrary to law). Rather, they are simply enforcing their own rules, and the rules of the United States.

    Your final comment suggests a belief that Mexico seeking redress from the ICJ would be futile, impliedly because the US is a scofflaw that breaks laws at will without punishment or remorse. I think that is wrongheaded. You note yourself that the US has admitted that executing Medellin would violate Mexico’s treaty rights. How could the US deny that if Mexico sought redress? I don’t think they could. The US has violated its treaty obligation to comply with a validly rendered ICJ decision. Mexico should ask for a finding that the US violated the decision, and seek compensatory damages to be put into a fund to defend it’s nationals. Complying with that decision would probably be something the President actually could enforce if he so chose (absent a negative answer from congress).

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