The Supreme Court handed down a decision today in Medellin v Texas and the headlines are astonishing
USA Today: Court backs Texas in dispute with Bush
International Herald Tribune: High court overrules Bush on death penalty case
BBC: Bush overruled in death row case
Now one would think that even if the International Herald Tribune couldn't get the headline right, that at least the BBC would, because what the headlines should have said was "High Court overrules International Court of Justice on death penalty case".
Because that's what happened. Bush was incidental.
To recap
José Ernesto Medellín, a Mexican national, was convicted and sentenced to death by a Texas court for participating in the gang rape and murder of two girls in 1993. After an unsuccessful appeal to the Texas Court of Criminal Appeals, he filed for a writ of habeas corpus in the state court, claiming for the first time that Texas officials had failed to notify him of his right to communicate with the Mexican consulate after his arrest, as required by the Vienna Convention on Consular Relations (the Consular Convention). The Texas courts rejected his claim. He then filed a federal habeas corpus petition, again raising the Consular Convention claim.
In 2004 the U.S. Supreme Court granted certiorari in his case, to decide (a) whether a federal court is bound by the International Court of Justice’s ruling in the Avena case that courts in the United States must reconsider his claim for relief arising from the U.S. violation of the Consular Convention, or (b) whether a federal court should in any event give effect to the ICJ ruling as a matter of comity and uniform treaty interpretation.
Regarding this n February 28, 2005, President George W. Bush made the following determination
I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), 2004 I.C.J. 128 (Mar. 31), by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.
While at the same time pointing out that
"The president does not agree with the ICJ's interpretation of the Vienna Convention," the administration said in arguments filed with the court. This time, though, the U.S. agreed to abide by the international court's decision because ignoring it would harm American interests abroad, the government said.
Regardless of why Bush felt he had to defend the ICJ even though he disagreed with it, the Court had two things to consider.
a) Did Bush overstep his authority in telling Texas they had to adhere to the International Court of Justice's decision and
b) Does the ICJ ruling have jurisdiction over Texas (or anywhere in the US).
More precisely:
1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States’ treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment?
2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?
The Court, in a 6-3 Majority, decided Yes and No respectively; dealing a glancing blow to Bush but a significant blow to the authority of the ICJ.
Chief Justice John Roberts, writing for the 6-3 majority, ruled that the ICJ finding was not binding because the Vienna Convention is an understanding between governments, a diplomatic compact. It was never intended to automatically create new individual rights enforceable domestically by international bodies. Texas's violation was of diplomatic protocols, and calls for a diplomatic remedy.
Treaty obligations, in other words, do not necessarily take on the force of law domestically. Rather, Congress must enact legislation for whatever provisions -- such as consular notification -- that it wants to make the formal law of the land. This distinction matters because it establishes a fire wall between international and domestic law. It also protects the core American Constitutional principles of federalism and the separation of powers. As Justice Roberts points out, the courts must leave to the political branches "the primary role in deciding when and how international agreements will be enforced."
The Supreme Court has reaffirmed the Supremacy of the US Constitution over "International" Law.
As a result, we all win.
