By: Houston Criminal Attorney John Floyd and Mr. Billy Sinclair


The International Court of Justice recently issued an order staying the execution of five Mexican nationals held on Texas’ death row in response to a petition filed by the Mexican government. The Mexican government is seeking a review of these particular cases to determine whether the State’s denial of the condemned inmates access to the Mexican Consulate after their arrest adversely impacted their defenses.


One of the Mexican nationals is condemned killer Jose Medellin who has an August 5, 2008 scheduled execution date. Gov. Rick Perry immediately issued a statement through a spokesman that the rapist-murderer’s execution would not be halted.

The Houston Chronicle reported that the Mexican government had sought the stays of execution for the Mexican nationals because “the paramount interest in human life is at stake.” The Mexican government reasoned that if the executions are carried out without the denial of access to the Mexican Consulate issue being fully developed, “Mexico would forever be deprived of the opportunity to vindicate its rights and those of the nationals concerned.”


Gov. Perry was not persuaded. Did they think he would be?” The world court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court,” the Governor said through spokesman Robert Black said. “It is easy to get caught up in discussions of international law and justice and treaties. It’s very important to remember that these individuals are on death row for killing our citizens.”

The International Court of Justice is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member nations. The background in the Mexican Consulate dispute arose in 2004 when the ICJ issued a judgment in the Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.) [“Avena”] holding that 51 named Mexican nationals convicted in U.S. state courts were entitled to a review and reconsideration of their convictions and sentences based on violations of the Vienna Convention. The ICJ added that its decision applied regardless of whether these individuals had forfeited their Vienna Convention claims by not raising them in a timely manner as required by state law, which was the central issue in the Medellin case.


The Avena judgment was influenced by a 1969 decision in which the United States, upon the advice and consent of the U.S. Senate, ratified the Vienna Convention and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention. Article 36 of the Convention provides that if an individual detained by a foreign country “so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” of such detention, and “inform the [detained individual] of his righ[t]” to request assistance from the consul of his own state. The Optional Protocol provides any disputes arising from either an interpretation or application of the Vienna Convention shall be resolved by the ICJ.


Jose Medellin was arrested at 4:00 a.m. on June 29, 1993. Sometime between 5:54 and 7:23 a.m. Medellin was given his Miranda warnings. He signed a written waiver and gave law enforcement authorities a detailed confession. Law enforcement authorities did not inform Medellin of his Vienna Convention right to notify the Mexican consulate of his detention. Medellin did not raise this issue prior to trial or on direct appeal.


The Vienna Convention claim was raised by Medellin in his first application for post-conviction relief. The state trial court held that the issue had been procedurally defaulted because Medellin did not raise it prior to trial or on direct appeal. The trial court added that Medellin had failed to “show that any non-notification of the Mexican authorities impacted on the validity of his conviction or punishment.” The Texas Court of Criminal Appeals agreed with that trial court finding.


Attorneys for Medellin sought habeas corpus relief in federal court. The U.S. District Court on June 26, 2003 denied relief, finding that the Vienna Convention claim was procedurally defaulted and that Medellin had failed to demonstrate prejudice flowing from the Vienna Convention violation. The condemned killer filed a request with the Fifth Circuit to appeal the district court’s decision – and while that request was pending, the ICJ handed down its Avena decision. The Fifth Circuit brushed past the Avena decision, saying the Vienna Convention did not conveyed any individual rights that could be enforced on state courts.


Medellin appealed to the U.S. Supreme Court, and while that appeal was pending, President George W. Bush on February 5, 2008 issued an instruction to the Attorney General of the United States that stated:


“I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena] 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.”


The Supreme Court promptly dismissed Medellin’s certiorari application as being “improvidently granted” and sent the case back to the state courts for further proceedings.


Medellin turned a second time to the Texas state courts. These courts were clearly agitated that both the president and the ICJ would assume an unconstitutional position that they could dictate to, and override the independence, of state courts. Both the trial court and the Texas Court of Criminal Appeals rejected Medellin’s second round of post-conviction applications as an “abuse of the writ.” The court of criminal appeals was quite explicit in its finding that neither the Avena decision nor the President’s Memorandum were “binding federal law” that could supersede the state’s limitations on filing successive habeas corpus applications.


The U.S. Supreme Court was asked to resolve the conflict – and it did so this past March by effectively holding that neither the president nor ICJ could impose their authority over the jurisdiction of state courts. While the Supreme Court acknowledged that the Avena decision constituted an “international law obligation” by the United States, the court pointed out that some international law obligations do not “constitute binding federal law enforceable in United States courts.”

The initial question the Court had to confront, therefore, was whether the Avena decision had “automatic domestic legal effect” which, by its own force, applied to state and federal courts.


The Court turned to the long recognized rule that there is a distinction between treaties that automatically effect law and those that do not, standing alone, function as binding federal law. This rule was first defined by Justice Marshal in 1829 when he wrote that a treaty is “equivalent to an act of the legislature” and, therefore, is “self-executing” when it “operates of itself without the aid of any legislative provision.” The Medellin court then defined “self-executing” to as applying to a “treaty [that] has automatic domestic effect as federal law upon ratification.” Conversely, the court said, a “non-self-executing” treaty does not, standing alone, confer domestically enforceable federal law.


The Supreme Court began its analysis with serious reservations about whether the ICJ even had authority to enforce the Avena decision under the Optional Protocol. The Protocol provides only that disputes arising out of the “interpretation or application” of the Vienna Convention “shall” lie within the compulsory jurisdiction of the ICJ. “The Protocol says nothing about the effect of an ICJ decision,” the Supreme Court noted, “and does not itself commit signatories to comply with an ICJ judgment. The Protocol is similarly silent as to any enforcement mechanism.”


The only practical enforcement authority for an ICJ judgment can be found in Article 94 of the United Nations Charter. This article attempts to persuade member nations to “undertake to comply” with ICJ decisions. Briefly stated, there is only a commitment to comply. The Supreme Court noted that this “Article is not a directive to domestic courts. It does not provide that the United States ‘shall’ or ‘must’ comply with an ICJ decision, nor indicate that the Senate that ratified the U.N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, ‘the words of Article 94 call upon governments to take certain action.’ In other words, the U.N. Charter reads like ‘a compact between independent nations’ that ‘depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.’”

ICJ decisions, therefore, must rely upon diplomatic remedies, not judicial remedies, for enforcement in domestic courts. The Supreme Court said “this was the understanding of the Executive Branch when the President agreed to the U.N. Charter and the declaration accepting general compulsory ICJ jurisdiction” in 1945. The court quoted Leo Paslovsky, Special Assistant to the Secretary of State for International Organizations and Security Affairs, who, in 1945, said: “’{W]hen the [ICJ] has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal.’” Id., at 14.


The Supreme Court was compelled to find Medellin’s argument that ICJ decisions are “automatically enforceable as domestic law” to be fatally flawed under the very enforcement structure of Article 94. The court emphasized that accepting Medellin’s argument “would eliminate the option of non-compliance contemplated by Article 94(2), undermining the ability of the political branches to determine whether and how to comply with an ICJ judgment. Those sensitive foreign policy decisions would instead be transferred to state and federal courts charged with applying an ICJ judgment directly as domestic law.”


Medellin’s argument was further undermined by the ICJ statute itself which was adopted by the U.N. Charter. The primary purpose of the ICJ is to “arbitrate particular disputes between national governments” – not individuals. Article 59 of the ICJ statute explicitly provides that a “decision of the [ICJ] has no binding force except between the parties and in respect of that particular case.” Medellin, therefore, as an individual, could not be a ‘party” in the ICJ proceeding that produced the Avena decision.


In a nutshell, the issue resolved in the Medellin case was that international agreements which do not provide implementation procedures for ICJ judgments cannot be enforced in domestic courts, because when “a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking on their own.”


Finally, the Supreme Court pointed out that there are 47 nations who are parties to the Optional Protocol and 171 nations that are parties to the Vienna Convention. Not one of these nations treat ICJ judgments as binding on their domestic courts.

Against this legal backdrop, the latest action by the Mexican government and the ICJ appears to be nothing short of a political attempt to meddle in the affairs state governments. While death penalty opponents welcome any pressure to stop state sanctioned murder, this is not a pure “death penalty” issue. This is a constitutional issue – one that has been definitively decided by the United States Supreme Court. It does not matter what the ICJ or the Mexican government thinks about capital punishment. These cases created a constitutional crisis – and our Supreme Court resolved that crisis adversely to their interests. The constitutional debate is over.


Those who oppose the death penalty, including the writers of this column, do not want to see Jose Medellin executed on August 5th. Those that favor the death penalty can’t wait for it to happen. Whether or not the death penalty in these cases is fair, just, or appropriate is no longer a judicial matter. The death penalty at this time is now purely a legislative matter. The will of the people govern state legislatures. The will of the people in the State of Texas is not inclined toward abolishing the death penalty – not at this point in time, nor probably at any point of time in the near future.


The Mexican government needs to get its own internal affairs in order. More than 5000 people have been slaughtered over the past few years in that nation’s drug wars. Mexican officials have turned to the United States for financial aid in waging its war against violent drug dealers. Our elected officials have agreed to pony up hundreds of millions of dollars in financial assistance for them at a time when our nation faces a severe economic crisis on all fronts.


So the State of Texas, and most American people, apparently is not kindly disposed to Mexican officials talking down to this nation on the issue of the death penalty – especially in the Medellin case. In 1993 Jose Medellin was part of a Houston street gang called the “Black and Whites.” They were convicted of brutally raping, torturing and raping 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena. The crime was so horrific, and the gang members so bold in their boasting about it, that these murders have forever scarred the Houston community.


Medellin’s execution will not remove any of that scar tissue. But his execution is no more unjust than any of the nearly 500 people the State of Texas has put to death since the death penalty was reinstated in this country in 1976. This is a moral and legal debate with which the citizens of this country must continue to struggle.