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Reflections on Medellin:

I haven't yet had a chance to closely study the Supreme Court's opinion in Medellin v. Texas. But so far I like what I see. The Court correctly held that treaties are not "self-executing" (enforceable in US courts without additional congressional action beyond the ratification of the treaty itself) unless the text of the treaty clearly indicates that. It also correctly rejected the Bush Administration's claim that the President could order the state of Texas to comply with the International Court of Justice's decision that it was required to set aside Medellin's death penalty conviction because it had failed to give him an opportunity to meet with representatives of the Mexican consulate.

The case involved a claim by Medellin (a Mexican national sentenced to death for committing a murder in Texas) that he wasn't informed of his right to notify a representative of his country's consulate under the Vienna Convention. The International Court of Justice ruled that the Texas as in violation of the convention, and the U.S. is required to "comply with the decision of the International Court of Justice in any case to which it is a party" under Article 94(1) of the United Nations Charter. In Medellin, the Supreme Court held that the UN Charter was not a "self-enforcing" treaty and therefore that federal courts couldn't order Texas to obey Article 94 in the absence of congressional legislation requiring such compliance.

I. Limiting the Use of International Law to Override Domestic Law.

As John McGinnis and I explain in this article, most multilateral treaties and other international law materials are produced by highly undemocratic processes in which authoritarian states and unaccountable political elites from democratic states play a dominant role. On average, the legal rules they establish are likely to be inferior to those created by the domestic lawmaking processes of democratic states. Therefore, it is essential that international law not be allowed to override our domestic law unless it has first been "screened" by the same democratic legislative process that the latter goes through. Otherwise, courts will end up enforcing international legal rules that are likely to be systematically inferior to the domestic rules they displace.

The Supreme Court's decision in effect requires that treaties can't be used to override American domestic law unless the treaties have first been clearly endorsed by our domestic democratic processes in a way that evidences an intention to have them be "self-enforcing." Otherwise, courts might end up enforcing treaties that the president and Senate ratified only because they expected them to be unenforceable exercises in public relations - "cheap talk," as political scientists call it. Obviously, "cheap talk" treaties are unlikely to get as much scrutiny from the democratic process as ones that are expected to be enforceable. Moreover, there is no true democratic validation of the treaty at all if courts interpret it to be binding in ways that the legislature and executive didn't expect at the time of ratification. As the Court shows, the Article 94 of the UN Charter was not expected to be self-enforcing by Congress and the president at the time it was ratified; nor is it treated as such by most other nations.

II. Another Defeat for the Bush Administration's Claims of Unlimited Executive Power.

The Court was even more clearly correct in rejecting the Bush Administration's argument that the president could order Texas to comply with the ICJ judgment even if Article 94 isn't self-enforcing. If the treaty isn't self-enforcing and Texas has no legal obligation to comply with it, the Constitution surely doesn't give the president the power to order Texas to comply merely because he thinks that it advances U.S. foreign policy interests. Apparently, all nine justices (including the three liberal dissenters on the self-enforcement issue) rejected the administration's position on this question. Both Bush appointees (Alito and Chief Justice Roberts) rejected the administration's claims even though they were surely chosen by Bush in part because of their presumed sympathy for broad interpretations of executive power.

This part of Medellin represents yet another nail in the coffin of the Bush Administration's claims that the executive has virtually unlimited power over foreign affairs. As I explained in this post, those claims are dubious even in the context of war and emergencies, where the executive's comparative advantages of secrecy and swift decision-making are of greatest importance. They have even less justification on other issues. Ironically, the Bush Administration's sweeping claims have led to a whole series of Supreme Court decisions rebuking the executive for overreaching and constraining its discretion more than it would have been had the administration taken a more moderate position in the first place. In this case, even John Yoo signed a law professors' amicus brief arguing that president's had exceeded his constitutional authority. If John - the developer of some of the Administration's broadest claims of executive power - thinks that the executive has overreached its constitutional authority on a foreign policy issue, that's a pretty good sign that it has.

Finally, for what it's worth, I think as a matter of policy that Texas and other states should indeed allow foreign nationals arrested on criminal charges to notify representatives of their consulate. Doing so promotes fairness to foreign criminal defendants and may make it easier for them to get adequate legal representation. It could be particularly valuable if the foreign nationals in question are unfamiliar with the US legal system, don't speak English, or both. Certainly, most Americans would want to be able to contact the US consulate if arrested while traveling abroad. But not every good policy is or should be imposed by federal law. The right approach here is for the states to reform their own laws. If necessary, foreign nations could pressure Texas to change its practices by denying Texans arrested in their jurisdiction the right to contact American consular representatives.

ReaderY:
Medellin did not say that a treaty could not empower an international tribunal to bind a state judge on a matter of domestic law. It merely said that (a) a treaty that does so has to say so clearly, and (b) this particular treaty did not do so.
3.26.2008 12:40am
bla bla:
Yeah, it makes you wonder what Tim Wu was smoking ...

http://www.slate.com/blogs/blogs/convictions/default.aspx
3.26.2008 12:46am
Bama 1L:
If necessary, foreign nations could pressure Texas to change its practices by denying Texans arrested in their jurisdiction the right to contact American consular representatives.

Unfortunately, my passport does not state that I'm not a Texan.
3.26.2008 12:47am
JorgXMcKie (mail):
What is an American's situation in the bastion of legal justice, Mexico, when arrested? I seem to remember a largish number of cases (at low level crimes) that appear to amount to extortion by local police/court systems over the years.
3.26.2008 12:49am
Mark Robinson (mail):
There really is no reason for Texas or anyone else to do anything at all with this ruling. He nor his attorney made any issue of this at trial and thus Texas was correct not to grant any relief. As for the ICJ, they need to take a chill pill and remember that the domestic law of any country is going to trump their ego.
3.26.2008 1:06am
Chuck C (mail):
Ilya Somin: "If necessary, foreign nations could pressure Texas to change its practices by denying Texans arrested in their jurisdiction the right to contact American consular representatives."

That isn't what Texas did. From the Syllabus: "the United States had violated Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention or Convention) by failing to inform 51 named Mexican nationals, including petitioner Medellín, of their Vienna Convention rights"

The US State Department pamphlet "A Safe Trip Abroad" notes: "If you are detained, remember that under international treaties and customary international law, you have the right to talk to the U.S. consul"

Perhaps petitioner Medellín should have read the equivalent Mexican pamphlet before he and his fellow gang members raped and killed a 14 year old and a 16 year old, with petitioner Medellín "personally responsible for strangling at least one of the girls with her own shoelace"
3.26.2008 1:14am
Ilya Somin:
Medellin did not say that a treaty could not empower an international tribunal to bind a state judge on a matter of domestic law. It merely said that (a) a treaty that does so has to say so clearly, and (b) this particular treaty did not do so.

I agree. Everthing I said in the post is consistent with that.
3.26.2008 1:51am
Ilya Somin:
Unfortunately, my passport does not state that I'm not a Texan.

Most Americans traveling abroad have drivers' licenses or other IDs stating their place of residence.
3.26.2008 1:53am
Benjamin Davis (mail):
I want to draw your attention to David Sloss' comments over at opiniojuris.org.

If the treaty language makes it clear the treaty is self-executing that will be enough under Roberts' analysis to have it have direct effect.

It is not necessary for Congress or the President to do something beyond ratifying the treaty - the analysis is of the text of the treaty. Congress and the President can go beyond that and do something to state the treaty is self-executing but Roberts seems to say that the first thing is the text of the treaty language itself.

That says to me that McGinnis-Somin is not vindicated to the extent Somin's post would suggest.

Sloss sees the problem in a very interesting way in that Roberts does not start from the question of whether treaties are federal law. (Not relevant but having him look at whether CIL is federal law would be nice too.).

I agree with Sloss that this decision is an amendment of the Supremacy Clause.

Of course all this is internal law, the treaty obligation will remain on the United States and we will most likely be in breach. We'll see how that plays out.

Best,
Ben
3.26.2008 1:55am
HankP (mail) (www):
While I'm not a proponent of the unlimited executive, I think it's problematic at best to say that there is no way to enforce the terms of a ratified treaty. I suppose if you're against all treaties as an ideological belief it's effective, but I think this can cause two problems: first, it will make foreign countries far less likely to negotiate treaties with the US (or at least to believe that we're negotiating in good faith), and second it will cause the Senate to take treaty ratification less seriously. I'm not sure that these are effects we want to encourage.
3.26.2008 3:24am
Dave2L (mail) (www):
Therefore, it is essential that international law not be allowed to override our domestic law unless it has first been "screened" by the same democratic legislative process that the latter goes through.

All three of the treaties at issue (the UN Charter, the VCCR, and the Optional Protocol) were ratified by two-thirds of the Senate, as prescribed by the Constitution. What additional democratic legislative processes would you like?

[T]reaties can't be used to override American domestic law unless the treaties have first been clearly endorsed by our domestic democratic processes in a way that evidences an intention to have them be "self-enforcing." .

The opinion does not say that. While a clear intention can be a means of making a treaty self-enforcing, sometimes treaties are self-enforcing because they address themselves to areas where the judiciary is accustomed to enforcement. That was not the case here, where the obligation was to "undertake to comply" with a decision of the ICJ, which was deemed too broad to allow for self-execution.

"[C]heap talk" treaties are unlikely to get as much scrutiny from the democratic process as ones that are expected to be enforceable.

What is a "cheap talk" treaty? Where do you get the idea that Senators are ratifying treaties without believing that they create binding obligations as mandated by the Constitution? If we are electing Senators that indeed take their responsibilities so lightly, then we get what we deserve. All treaties are "enforceable", the question is by whom. Some are not enforceable by the judiciary (and are thus not "self-executing"). There are plenty of legal obligations that the courts will not touch (for example, for justiciability reasons) that are still legally binding obligations.

But further, even if the term were to have any meaning, what is it about the UN Charter that is a "cheap talk" treaty? If any treaty is not "cheap talk", it is certainly the UN Charter.

I agree with the outcome in Medellin (I have further analysis here). But that is the extent of my agreement with Somin, who seems to have taken another opporunity to confuse legal analysis with ideological pablum. The Court in Medellin was clear that Avena created an international legal obligation on the part of the United States (see p. 8 of the slip opinion). The narrow question, then, is who is responsible for establishing our domestic compliance with this obligation. The Court held that neither the judiciary nor the executive, acting alone, can order that compliance domestically (leaving it thus up to Congress or the states). However, the legal obligation still exists, and until we comply with the Avena decision we are violating international law (and not some loosey-goosey customary norm, but undisputed treaty obligations).
3.26.2008 3:31am
CDU (mail) (www):
All three of the treaties at issue (the UN Charter, the VCCR, and the Optional Protocol) were ratified by two-thirds of the Senate, as prescribed by the Constitution. What additional democratic legislative processes would you like?


How about ratification by 2/3 of the Senate of a treaty that clearly says that it's self-executing or ratification by 2/3 of the Senate of any treaty plus a vote of majority of the House and Senate and a presidential signature on legislation giving force to a non-self executing treaty?

What is a "cheap talk" treaty?


Here's the ultimate example of a "cheap talk" treaty.
3.26.2008 4:25am
Oren:
How about ratification by 2/3 of the Senate of a treaty that clearly says that it's self-executing or [another option]
Why not simply start with the presumption that all treaties are binding as-is (no need for the awkward notion of self-execution) and inform Senators to only vote for treaties that they would actually like to see executed.
3.26.2008 4:50am
Alex R:
Here's what I (NAL) don't understand about this: What does it mean for a treaty to fail to be "self-executing"? After all, treaties properly entered into by the president and ratified by the Senate are "the supreme law of the land"... Are there other examples of laws that are not considered to be fully in force after passage? I'm genuinely puzzled about this.
3.26.2008 4:51am
Oren:
While I'm not a proponent of the unlimited executive, I think it's problematic at best to say that there is no way to enforce the terms of a ratified treaty.
I don't see why the executive needs to be involved here at all. The treaty became "supreme law of the land" when signed - no further executive action is needed. The courts can give weight to it as if it were since it is law of the land. Then we can, consistent with the law of the land, sentence this monster to die.
3.26.2008 4:54am
Oren:
Alex, you want to read Foster v. Neilson, the first case to make this rule.
3.26.2008 4:59am
Dave2L (mail) (www):
How about ratification by 2/3 of the Senate of a treaty that clearly says that it's self-executing or ratification by 2/3 of the Senate of any treaty plus a vote of majority of the House and Senate and a presidential signature on legislation giving force to a non-self executing treaty?

Funny... my pocket Constitution doesn't contain that provision. It just says that treaties require ratification by 2/3 of the senate, are the supreme law of the land, and are binding on the judges of all the states. I'll have to write to the editors and make sure they fix that in future editions.

Self-execution (and the lack thereof) does not relate to the validity of the treaty obligations as law. Rather, it is a purely judicial construction of the enforceability of such obligations by the courts absent implementing legislation.

As for Kellogg-Briand: While KB is certainly not self-executing, it is equally certainly still the law, both federal and international. Your own citation points this out. There are plenty of laws and legal obligations that are non-justiciable. Treaty obligations arising from non self-executing treaties are but one category.
3.26.2008 5:01am
Dave2L (mail) (www):
Here's what I don't understand about this: What does it mean for a treaty to fail to be "self-executing"?

Being non self-executing doesn't mean that the treaty is not binding, it just means that the domestic courts lack enforcement powers for some reason or another. For example, a treaty might say "The states party to this treaty will pass laws banning X". This is clearly a non self-executing treaty provision, as the language of the treaty does not contemplate judicial enforcement of a law banning X until such a law has been passed. However, the legal obligation to pass laws banning X still exists. On the other hand, a treaty might say that "All states party will provide X rights to the nationals of all the other states party." So long as X is something that is otherwise typically amenable to judicial enforcement (for example, a clearly definable right), it is likely to be held to be self-executing, which means that judges can enforce the treaty provisions without implementing legislation.

As you might imagine, there is a lot of grey area as to what is self-executing and what is not. In Medellin, one of the issues was whether a provision in the UN Charter requiring states to comply with a valid decision of the ICJ was self-executing or not. All nine justices agreed with the fact that the provision creates a legal obligation on the part of the United States to comply with the judgment. However, six justices opined that given the broadness of the requirement to comply and other issues, this obligation was not self-executing and thus cannot be enforced by the courts, but that rather the political branches must undertake to comply by passing the appropriate legislation. The President attempted to claim that he alone could fulfill our obligation by simply ordering the Texas courts to comply, but the Court also denied the president that power... he has to act in this case in conjunction with Congress.
3.26.2008 5:48am
Dave2L (mail) (www):
Are there other examples of laws that are not considered to be fully in force after passage?

As noted above, the issue isn't whether they are in force, but whether they are judicially enforceable. There are several examples of these. For example, courts won't enforce many laws that implicate "political questions", where the Constitution clearly prescribes a role for the other branches in determining what the law is (for example, while the constitutional law regarding impeachment is clearly "the law", the Court has repeatedly held that it is for the Congress and the President to interpret). Particularly in the international arena, the courts often decline to enforce statutory rights and obligations because they implicate the foreign relations powers of the executive and legislative branches. The issue is similar here, where the court declines to determine what effect is to be given to an ICJ ruling, instead allowing congress and the president to determine that effect.
3.26.2008 6:03am
Oren:
The issue is similar here, where the court declines to determine what effect is to be given to an ICJ ruling, instead allowing congress and the president to determine that effect.
Dave, you almost had me there -- until that last sentence there, at any rate. Very good lawyering too.

Congress does not determine what the 'effect' of the law is, it determines what the law is. It has always been for the courts to decide on the practical effect. If Congress wants a different effect, they should write a different law or ratify a different treaty. The idea the Congress gets two swings at it is silly when you phrase it that way.
3.26.2008 6:25am
Dave2L (mail) (www):
A final complaint about Somin's analysis:

If the treaty isn't self-enforcing and Texas has no legal obligation to comply with it...

As described above, Texas does have a legal obligation to comply with the Avena ruling. As the court unanimously agreed, there is a treaty obligation arising under Art. 94, the VCCR, and Optional Protocol to comply with the judgment. Under Article VI, this obligation is the "supreme law of the land." The court only determined that this legal obligation was not judicially enforceable by domestic courts.
3.26.2008 6:26am
Dave2L (mail) (www):
Oren-

You got me, you sly fox. I made up all that stuff!
3.26.2008 6:34am
Oren:
Now now. . . your post was quite convincing and you've got 6 members of the Supreme Court on your side here. Your failure to convince me (a non-lawyer-type!) is probably in your favor at any rate.

On a serious matter, ubi jus ibi remedium. A legal obligation on the part of Texas without an accompanying judicial remedy is like a grin without a cat. The right and the remedy are not two separate entities that can be separated as you claim.
3.26.2008 6:50am
Oren:
^^ That last sentence proves that I should not attempt complex sentence structure at 5AM (at least not when it's *before* I've gone to bed).
3.26.2008 6:50am
Bruce Hayden (mail) (www):
I think, at least here in the U.S., this distinction between treaty obligations and self-execution is important. Overriding national and state law, esp. in the criminal context, through international treaties, and here courts, seems to go counter to our federalist and democratic approach to government. Indeed, this is a good example of an attempt to override state law through international law, in a situation not likely envisioned by our politicians when we adopted those treaties.

My favorite area here is copyright law. Congress, when it implemented the Berne copyright treaty, specifically stated that the treaty was not self-executing, in order to prevent the creep of moral rights into our copyright system. This way, we could get most of the benefits of the treaty, without giving up all of the benefits of our older copyright laws, and retained for us the ability to set the limits to what is protected by copyright. Without that provision, we likely could not have joined Berne, and gained the benefits we did get.

Getting back to the situation at hand, the citizens of Texas have decided that certain crimes deserve the death penalty. This would have carved out a big exception - non-citizens of the U.S. committing those crimes in Texas not being subject to such. To me, that is somewhat akin to diplomats not being subject to U.S. laws, parking wherever they want, etc., but at a much higher and egregious level. I don't see that sort of overriding of state law in this way being consistent with our federal system. Worse - if the case had gone the other way, illegal aliens would have been in a preferred position compared to legal residents and citizens in this regard.
3.26.2008 9:13am
martinned (mail) (www):
L.S.,

Obviously, coming from a country with a monist system of international law (cf. Breyer's dissent, page 12, where he specifically mentions the Netherlands, although I'm not quite sure he describes our law correctly.) I'm somewhat puzzled by this ruling. It seems to follow a rather unique path somewhere half way between monism and dualism. (Dualism is a system like the UK's, where every ratified treaty still needs a domestic statute to give it effect in the domestic legal order.)

I was also surprised by something else: For a blog full of people who believe in free enterprise, freedom to contract, etc., there is surprisingly little faith here in the ability of the President, with the advice and consent of the Senate, to negotiate Treaties that actually benefit the USA. Why on earth would treaties be "likely to be systematically inferior to the domestic rules they displace"? What does that even mean? Does it mean that treaties sometimes (try to) make the US do something it would not otherwise do? Of course treaties do that, that's the bargain. Give and take. Or are we talking about the structural quality of the rules, in the same sense that one can argue about the relative quality of the Common Law and Civil Law systems? Again, that would make no sense, since most treaties are fairly general and leave ample room for national courts to fill in the details in the mode they are accustomed.
3.26.2008 9:32am
Monkberrymoon (mail):
I don't think Texas is much different from other states with regard to this Vienna Convention stuff. Before Avena, I don't think many police departments in whatever state had a policy about informing consulates about an alien's arrest. (And as Chuck C points out, this isn't even what the treaty requires -- an alien need only be informed of his right to contact the consulate). It's just that Texas got all the press because (1) it tends to implement its death penalty more than other states and (2) a fair number of those death row inmates are foreign nationals.

At any rate, most Texas jurisdictions now do go out of their way to let a consulate know that an alien has been arrested. It's just that they don't care (unless its a death penalty case). I remember one situation where detectives called the Mexican consulate (before interrogation) to let them know that a Mexican had been arrested for murder. of course, no one was there, so they had to leave a message. It took something like a week for the consulate to call back. And their only response was "is it a DP case? No? Well, call us if anything happens."

So, Mexican nationals, good luck gettin' help from that consulate of yours.
3.26.2008 9:59am
Kenvee:
martinned

For a blog full of people who believe in free enterprise, freedom to contract, etc., there is surprisingly little faith here in the ability of the President, with the advice and consent of the Senate, to negotiate Treaties that actually benefit the USA.


Actually, I have absolute faith in the ability of the President to negotiate such a treaty. SCOTUS didn't say he can't. What they said is, we're bound by the wording of the treaty he actually negotiates. If he doesn't negotiate a treaty that's self-executing, for whatever reason, then we have to pass additional laws to execute the purpose of the treaty. It's really not a radical concept; it's used pretty much all over the world.

As Monkberrymoon pointed out, Texas does provide consulate notification now, so I think Ilya's call on Texas to amend its practice is unnecessary. This is about a case that happened more than a decade ago, not current practice. Every Texas jurisdiction I'm aware of is very vigilant about informing foreign nationals of their right to consular assistance and even notifying the consulate themselves. One difficulty that's arisen, of course, is that people lie about being citizens and even what foreign country they're a citizen of. Another SCOTUS Texan, Victor Saldano, has been complaining about not having the Argentinian consulate notified. Of course, he identified himself as a Mexican citizen to the police, who promptly contacted the Mexican consulate...
3.26.2008 10:17am
U.Va. 3L:
Why not simply start with the presumption that all treaties are binding as-is (no need for the awkward notion of self-execution) and inform Senators to only vote for treaties that they would actually like to see executed?

That's my thought as well, and it's one I have yet to see adequately answered.
3.26.2008 10:31am
martinned (mail) (www):
L.S.,

@Kenvee: I wasn't saying SCOTUS evinced such a lack of faith, but rather the Ilya Somin post here. I even quoted an example.

FWIW, in monist jurisdictions, which theoretically the US is supposed to be as well, the key question is "whether the treaty rule in question is, by its nature, capable of creating judiciable rights for individuals". (I'm paraphrasing.) Since that is clearly the case here, the only really interesting question would be whether the ICJ has any power to affect procedural rules such as the principle of procedural default at issue here. That depends on the language of the treaty the ICJ based its argument on, so without having read it, I couldn't comment.
3.26.2008 10:48am
Bob from Ohio (mail):

Another Defeat for the Bush Administration's Claims of Unlimited Executive Power.


Giant strawman alert.

Point to a claim of unlimited power here.

Or anywhere for that matter.

It has to be an official claim, not what some conservative pundit, law professor or blogger said.

Broad does not equal unlimited.
3.26.2008 10:53am
merevaudevillian:
I agree with Bob. Must this otherwise-substantive post be spoiled with a silly hyperbolic (and false) title like "Claims of Unlimited Executive Power"?
3.26.2008 11:05am
Connecticut Lawyer (mail):
Ilya writes that "as a matter of policy that Texas and other states should indeed allow foreign nationals arrested on criminal charges to notify representatives of their consulate." This raises a few questions.

One, did Medellin ever tell the arresting officers he was a foreign national? I would wager not and I would further wager that Mexican illegals in this country never volunteer that information. What happens if the defendant does not so inform the arresting officers? Should they probe the citizenship status of any foreign-appearing arrestee? If they do not, and the defendant fails to mention his foreign citizenship, does the defendant thereby waive the right to contact a consular official before he is interrogated? Suppose the IJC interprets the treaty as requiring arresting officers to inquire into the citizenship status of arrestees and informing foreign nationals of their rights? (Is there anyone on the planet who thinks the IJC would adopt such a rule in any case except a US death penalty case?) I guess under the Supreme Court's decision that would not be binding on any US court, but is there anyone here who thinks that would a good rule to adopt? I note, parenthetically, that the pro-illegal immmigration lobby would have a cow over any such rule, especially if the arresting officers passed on the information to the INS.

I think what makes sense is this: If an arrestee at the time of his arrest informs arresting officers that he is a foreign national and would like to contact his consulate, they ought to let him do so before interrogating him. But I would not throw out an interrogation obtained in violation of this rule so long as the defendant's 5th and 7th Amendment rights were respected, unless the defendant can demonstrate some serious prejudice from the violation. If the arrestee fails to assert his rights, then he's waived them. To those of you who think the Vienna Convention is somehow self-excuting, I would suggest that the very complexity of my proposed rule suggests that it is not, and that carefully thought out implementing legislation (which would prevail over state rules under the Supremacy Clause) would be necessary.
3.26.2008 11:15am
martinned (mail) (www):
L.S.,

@Connecticut Lawyer: [Foreigner alert!] Doesn't the police verify the identity of their prisoner as a matter of course? Wouldn't that involve some form of proof of residence status/citizenship. At least over here (in Europe) if you get arrested, the police would want to see some ID, and any such ID would include your citizenship.
3.26.2008 11:19am
Truth Seeker:
Why on earth would treaties be "likely to be systematically inferior to the domestic rules they displace"?

Because treaties are only passed by the Senate and that is only half the federal government.

We don't want the Senate to have the power to do things that the House did not also agree to.
3.26.2008 11:29am
martinned (mail) (www):
L.S.,

@Truth Seeker: If that's your problem, why not amend the constitution to have both houses vote to ratify. Internationally, that's the ordinary system anyway. (Off the top of my head, the US is the only country I am aware of that has a different system for ratifying treaties than for passing statutes.)
3.26.2008 11:32am
Kenvee:
martinned,

That's assuming you have a driver's license on you, and that it's actually yours. ;) Especially when you're talking about illegal immigrants, people don't always have identification on them. "Verification" of their identity consists of having the prisoner give them all their information, plus taking fingerprints. It might be days after the arrest that you find out your prisoner who claimed to be John Smith is actually James Jones, and even longer to find out that he's really Jose Rodriguez from Mexico City.

When you consider that a lot of these people are, you know, criminals, you have to take fake IDs into account as well.
3.26.2008 11:52am
Leland (mail):
I admit to being a Texan and thus bias, but I don't understand this notion that other countries should feel free to backlash against American citizens and especially Texans for treaty violations. Let's look at this particular case closer, shall we.

Medellin was conducting a gang initiation on US soil. Two girls, not associated with the gang, were in the proverbial wrong place at the wrong time, which happened to be US soil. These teenage girls were kidnapped, sexually assualted, and murdered by Medellin. A few days later, Jose Medellin was arrested, told his rights as a US citizen, and brought to jail where he wrote a written confession to the crime. During his trial and sentencing, he made no objections about not being given additional rights as a non-US citizen. He was convicted and sentenced based on the fact he committed a heinous crime.

Why did Jose Medellin not object? Because no one questioned his citizenship. He also never provided evidence of his Mexican citizenship prior to trial, which would have prompted officials to inform him of his rights to speak to his consolate. When Jose Medellin finally did object, his objection was reviewed by the appellant courts in Texas. His objection was overruled and his request for a new trial denied. The Texas process worked like it would in any other state. His objection didn't merit a change in his conviction and sentence, because the objection had no bearing on the evidence and the finding of fact.

I'm my laymen view, the SCOTUS is simply acknowledging that the state court followed due process with proper judicial review of state and federal laws. The administration is trying to invoke laws of an international treaty that would require a change in federal law.

Perhaps Bama1L and his friends are planning something heinous themselves, but I doubt that's the case. If Bama1L is detained, tried in a Kangaroo Court, and condemned to death, for something like spray painting some cars in Singapore, then I think that would be an international incident, if he was denied an opportunity to talk to his consulate after announcing his citizenship. In the interim, I find it pretty outrageous that people, such as Ilya Somin or Bama1L, to suggest other nations change their habits to punish Texas citizens and pursuade them to change policy. After all, some radical groups already are doing exactly that in order to enact more "peaceful" laws around the world. No need to encourage that activity.
3.26.2008 12:00pm
martinned (mail) (www):
L.S.,

@Kenvee: I am/was aware of most of these problems, which is why I suggested verification more generally. What I had in mind is that I'd expect the police to take a look at the prisoner's drivers licence, finger prints, etc., and then check that against other public records.

(I'm not sure, is there such a thing as a record of residence in the US, i.e. a database of all the residents of the county, with their place of official/habitual residence?)

None of this seems to me particularly problematic from a prisoner's rights point of view.
3.26.2008 12:04pm
Connecticut Lawyer (mail):
martinned,

In the US, there is no such thing as a record of residence or database of all residents, not at the federal level, not at the state level and not at the municipal level. There is no legal requirement to carry any kind of identification papers unless (i) you are entering a public building or traveling on a public airline or (ii) if you are driving, you need to have a drivers' license on you. Thus, it is common for arrested suspects not to have any ID on them. It has also been the practice in most big cities at least for the past 10-20 years not to inquire about citizenship status, on the grounds that to do so would be discriminatory and offensive.

Hope this helps.
3.26.2008 12:39pm
martinned (mail) (www):
L.S.,

@Connecticut Lawyer: It does help, thank you. It does still make me think, though, that one would expect that the police would, as a matter of standard operating procedure, investigate the identity (and with it the citizenship status) of the person they're looking at.

I guess this serves to show that the standard idea that the US is much more conservative than European counties isn't always true. Over here, in NL, despite significant popular displeasure, it is since a few years the law that everyone over 16 always has to carry ID. (NB, this needs to be a passport, an ID card or a drivers license, all three of which include information about citizenship.)
3.26.2008 1:03pm
Litigator-London (mail):
Coming as I do from a jurisdiction where treaties must be ratified if they are to have domestic effect, I did not find Medellin -v- Texas strange reading, but what I did find unusual is that the lawyers at the State Department or the Office of Legal Counsel could have thought that domestic effect could have been given by executive fiat - mind you there has been rather too much of that lately, has there not ?

Texans need not worry - if arrested in the UK - you will have your right to notify the US Consul explained to you as you are booked at the station, you will be informed that you have the right to have a lawyer present, if you are to be questioned - we have a good 24 hour duty lawyer scheme - and your questioning will be tape-recorded and a copy provided to you. Your rights will be determined by reference to contemporary standards of decency and not by reference to the intent of the Framers in 1791 so,in particular you will not be at risk of judicial murder in the UK or in the territory of any other ECHR signatory state.

What is of concern to UK lawyers is extradition to the USA in particular and one suspects the time may be coming where we may have to think again about the terms of the US-UK extradition treaties.
3.26.2008 4:12pm
Litigator-London (mail):
Post script- someone made a scathing reference to the ability of the Mexican consul to be of assistance to one of their nationals. Much the same could be said of the ability of US representatives in foreign parts. Mostly they seem to be the sort of career FSO one often encounters: good (usually Republican) family, poor grades, not quite bright enough to be lawyers or bankers, idling their way up the promotion chain as their elders retire or die. This seems to be party because the top ambassadorial positions are reserved for political appointments so the career diplomacy option is less attractive. There will be exceptions of course, but on the whole US diplomatic representation is pretty unimpressive.
3.26.2008 4:22pm
Monkberrymoon (mail):
The idea (or implication) that career FSO's are likely to be Republicans is absolutely hilarious. Or, for that matter, any US civil servant (but especially State).

However, I do agree that they leave a lot to be desired.
3.26.2008 5:44pm
Oren:
Truth seeker, treaties require 2/3rds of the Senate which, IMO, makes for better law than the usual 60. Getting 67 Senators implies that you have considerable support across ideological lines.

This would have carved out a big exception - non-citizens of the U.S. committing those crimes in Texas not being subject to such
The right here is consular notification. Did I miss something?

Incidentally, the hearing on Medellin (if we accept his right to consular notification) could be done in about 10 minutes - was he deprived of his right? yes. was that deprivation harmless beyond a reasonable doubt? yes. Back to death row.
3.26.2008 6:24pm
Justin (mail):
"The Supreme Court's decision in effect requires that treaties can't be used to override American domestic law unless the treaties have first been clearly endorsed by our domestic democratic processes in a way that evidences an intention to have them be "self-enforcing." Otherwise, courts might end up enforcing treaties that the president and Senate ratified only because they expected them to be unenforceable exercises in public relations - "cheap talk," as political scientists call it. Obviously, "cheap talk" treaties are unlikely to get as much scrutiny from the democratic process as ones that are expected to be enforceable. Moreover, there is no true democratic validation of the treaty at all if courts interpret it to be binding in ways that the legislature and executive didn't expect at the time of ratification. As the Court shows, the Article 94 of the UN Charter was not expected to be self-enforcing by Congress and the president at the time it was ratified; nor is it treated as such by most other nations."

Other than the last sentence of this argument, it seems to me one of the least jurisprudentially conservative arguments I've ever heard.
3.26.2008 7:05pm
Barry P. (mail):
It is interesting that Bush pushed Texas to obey the Vienna Convention. He did not do so when Texas Governor, in the Stanley Faulder case:

http://tinyurl.com/ypb53z

Faulder, a Canadian arrested and convicted of murder, was never notified of his Vienna rights. He claimed shoddy legal representation by a hack public defender, and claimed that had he been able to notify the Canadian embassy, he would have had access to competent counsel that might have been able to argue for life as opposed to execution. I don't think Faulder ever argued innocence. Bush absolutely refused to intercede in the case, despite a pretty clear violation of Vienna. So I'm really surprised to see him come down on the side of a treaty over a Texas court.

BTW, nobody is claiming tht Texas does not have the right to execute Medellin, but that the current conviction be vacated and the case retried with the relevant notification to the Mexian consul made. I think it's clear that Medellin would still be convicted and executed, but Americans overseas could breathe a little bit easier knowing that their country lives up to the promises it made to other countries. Reciprocity, and all that.
3.26.2008 8:29pm
Oren:
BTW, nobody is claiming tht Texas does not have the right to execute Medellin, but that the current conviction be vacated and the case retried with the relevant notification to the Mexian consul made.
Failure to inform of his right to consular consultation was harmless beyond a reasonable doubt. No need for a new trial, kill him now.
3.26.2008 11:49pm
Gildas (mail):
Of course all this is internal law, the treaty obligation will remain on the United States and we will most likely be in breach. We'll see how that plays out.

As I see it there are three outcomes possible:

Congress could pass a law that gives effect to the Avena decision. Yeah, good luck with that.

Texas could pass a law that gives effect to the Avena decision. Yeah, good luck with that.

The US does nothing at all, some folks whine a bit, but other countries recognise that antagonizing the US over the likes of Sr Medellin is not worth the fuss so everyone gets over it. (In due course, assuming the Supreme Court doesn't do something silly in Baze, this matter will become moot).

I know this is all terribly distressing for those who want to hijack international law to create a vast enforceable web of vague rules that can be used to achieve the results they can't get through elections, but that is actually how it is supposed to work.

And speaking more generally about the DP, the Vienna Convention and the ICJ: a few years ago the ICJ went further than it did in Avena and told Virginia it couldn't execute some scumbag because of one of these meritless Vienna Convention violation cases. The Supreme Court told the ICJ to get bent (in a per curiam opinion no less), and Virginia stuck a needle in him. The world did not end and other countries continue to offer US citizens their rights under the convention.
3.27.2008 2:08am
Gildas (mail):
Texans need not worry - if arrested in the UK - you will have your right to notify the US Consul explained to you as you are booked at the station, you will be informed that you have the right to have a lawyer present, if you are to be questioned - we have a good 24 hour duty lawyer scheme - and your questioning will be tape-recorded and a copy provided to you. Your rights will be determined by reference to contemporary standards of decency and not by reference to the intent of the Framers in 1791 so,in particular you will not be at risk of judicial murder in the UK or in the territory of any other ECHR signatory state.

Texans should beware however that because of those 'contemporary standards of decency' that they don't necessarily have the full use of their right to silence anymore, and that that hoary old medieval rule about double jeopardy can be ignored for 'serious cases'. There are also certain situations where that decrepit and troublesome right to a jury trial can be set aside, and where it isn't juries routinely convict by a majority vote.

And they should remember that those 'rights' the ECHR purports to 'grant' can be removed for things as trifling as the 'economic interests of the state'.

That is of course assuming that the (ironic given what this thread is about) legislation that gives effect to the ECHR has not been suspended by a government minister's pen due to an 'emergency' under the provisions of the Civil Contingencies Act (2004).
3.27.2008 2:26am
martinned (mail) (www):
L.S.,

@Gildas:

results they can't get through elections
That's funny, I thought we were talking about treaties democratically ratified by Congress/Parliament.

full use of their right to silence
Pop quiz: Where is the jury allowed to make an inference based on the defendant's choice to invoke his right to silence? UK? France? US?

And don't even get me started on how rights can magically disappear. Being trained in ECHR case law, I've been reading US case law with ever increasing surprise in the last few years. How is it that the government can seemingly shut down a court case at will, by invoking the state secrets doctrine? How is it that the courts will ignore the realities of the extent to which the Federal government has effective control over places like GITMO? Warrantless wiretapping anyone?

Putting human rights guarantees in international treaties, which are then ratified by democratically elected parliaments, is the best way to prevent national governments from ignoring them for short-term convenience. If the UK violated anyone's rights, they'll be able to get what's due to them, if not in UK courts then in Strasbourg. (Or, for a few cases, Luxembourg where the European Court of Justice sits.)
3.27.2008 4:46am
Gildas (mail):
That's funny, I thought we were talking about treaties democratically ratified by Congress/Parliament.

Yes - treaties which establish rules between nations, not enforceable rights. That is why I said 'hijack' in the preceding line.

Pop quiz: Where is the jury allowed to make an inference based on the defendant's choice to invoke his right to silence? UK? France? US?

Ah, yes. I see how what I wrote is unclear. Sorry, it was late. What I meant there was that our hypothetical Texan might (based on what he had been told about the glories of the English legal system) be under the impression that the ancient and robust English right of silence still remained. But because that right was not secured by some old piece of parchment, Parliament was able to curtail it on a whim back in 1994.

Putting human rights guarantees in international treaties, which are then ratified by democratically elected parliaments, is the best way to prevent national governments from ignoring them for short-term convenience.

Simply put: No. I'll put my faith in the US Constitution. Countries cannot (and frankly should not) be compelled to obey treaties except by very blunt instruments. If a problem exists you fix it where the matter is under your control, not by relying on the monstrosity in Strasbourg to ride to your rescue.

This is probably a worldview thing: I left England for many reasons and one of the most wonderful things about living in the US is that I do not wake up daily to news of some new outrage being mandated upon me by unelected elites in Brussels. That is where evergrowing multilateral treaties inexorably lead. You are comfortable with that arrangement and I am not. I suspect though that most Americans would agree with me.
3.27.2008 8:50am
martinned (mail) (www):
L.S.,

@Gildas:

Yes - treaties which establish rules between nations, not enforceable rights. That is why I said 'hijack' in the preceding line.

Maybe your transition from the UK to the US isn't quite complete. Here's what the US constitution has to say about this: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

The law in the US isn't that treaties can't create enforceable rights, but rather that the intent to do so is determinative for deciding which do and which do not. (To paraphrase the Medellin ruling.)

As for the rest of your remarks, yes, Parliament is sovereign, so it can repeal any law passed by a previous Parliament and there is no source of law that is of higher rank than Acts of Queen in Parliament. Then again, looking at the examples I gave in my previous comment, the US constitution doesn't really seem to offer much protection, either.

One's opinion about the EU seems to be an entirely separate matter, although I do recognise the observation that generally US legal scholars are quite sensitive about International Law. Cf. Kagan
3.27.2008 10:12am
Leland (mail):
Litigator-London;

I need not worry about being arrested in England and suffering some injustice like Jose Medellin, because I won't be entering England illegally and hiding my real citizenship.

You see, that's my point. Jose Medellin withheld his citizenship information and then attempted to use his technical mistake in the trial to have his conviction thrown out and force a retrial. The Texas courts found that his objection had no bearing on the outcome of his case. The ICJ disagreed. The SCOTUS concurred with the Texas courts.

In the meantime, all the critics complaining about unlawful Texas courts are ignoring the fact that Texas law enforcement has no problem providing detained non-citizens access to their consolate, whenever those detained provide their actual citizenship.
3.27.2008 5:05pm
Litigator-London (mail):
Gildas: Yes, there have been modifications to criminal and civil procedure in the UK: For example grand juries have long been abolished. Justices commit for trial and the Crown Prosecutor signs and prefers the indictment - a lot of expense spared and no real disadvantage for the defendant. We do have majority verdicts (10-2) and a lot of cracked trials are avoided. Peremptory challenges have gone - so our jury selection process takes minutes rather than days - minor offences can be tried before justices - but their powers of punishment are limited.

I am old enough to remember when we had jury trials for drunk driving. Quite often Defence Counsel could appeal to the Jury - along these lines: "Gentlemen of the Jury - the police allege my client was too drunk to drive because he had consumed 12 pints of Theakston's Old Peculiar in the Goat and Compasses Public House - Gentlemen, ONLY 12 pints - I ask you !" Well done, quite a few acquittals were obtained. Justice ? Nowadays, there is a breath test at roadside later confirmed by a further test of breath, blood or urine and if you are over the limit you are guilty unless you can show something like your drink being spiked without your knowledge. Trial is now before Justices.

No judicial system devised by humans is perfect - by definition in my faith perfection is a prerogative of the Almighty alone.

I do not see that slavish adherence to English procedural protections as they were in 1791 is anything more than Binnie J.'s definition of "originalism" as a "quaint form of ancestor worship".
3.29.2008 4:35am