Monday, June 23, 2008

Three Narratives of Medellín v. Texas

Much ink has already been spilled about the Medellín v. Texas decision – the subject of my IntLawGrrls guest post – with much more to come. (For a summary of the case and its holding, see my ASIL Insight here.) The first published law review symposium on the case was convened by Professor Valerie Epps for the Suffolk Transnational Law Review and included important contributions from Bill Schabas, Christina Cernas, John Murphy, Jordan Paust, John Cerone and Craig Jackson. I have argued elsewhere that the story of Medellín is one of the Vienna Convention on Consular Relations (VCCR) being exploited as a “norm portal” that has permitted transnational advocacy groups to contest American exceptionalism on the death penalty. Building from that work. my own modest contribution to the Suffolk symposium, Three Narratives of Medellin v. Texas, views the case through a wide lens which sees the Supreme Court decision as part of a broader story of international legal process:

Analysis of Medellín is likely to fall into one of the three narratives to have emerged from the arguments of the parties, the briefs of amici, and outside commentary: (1) Internal/Constitutionalist: Draws on the U.S. Constitution as the final word on applicable law and modes of judicial interpretation in the case; (2) External/Internationalist: Looks to the tenets of public international law to identify first order principles for understanding the case and appropriate judicial outcomes; and (3) Transnational/Intersystemic: Seeks to explain Medellín through the phenomenon of multiple, interactive systems of law through which changes in normative behavior occur. While the first two narratives dominated the parties' submissions to the Court and form the space within which much of the academic debate has taken place, it is the third narrative that provides a more complete story of how a death penalty case in Texas came to be litigated before both the ICJ and the Supreme Court.
Medellín represents an excellent case study for process-oriented theories of how international human rights norms move across national borders and between and among local, national and transnational actors and provides important detail about the domestic and international mechanisms that promote norm integration and, significantly, can serve as barriers to norm integration. That this case is fundamentally a result and reflection of U.S. death penalty exceptionalism is broadly recognized by the foreign states that have challenged the U.S. at the International Court of Justice (ICJ), even though they sought to address the death sentences against their nationals through the seemingly neutral procedural device of consular notification. I don’t mean to suggest that the questions of presidential power, federalism, self-execution of treaties and ICJ enforcement powers at the heart of the case (and the Internal/Constitutional and External/Internationalist narratives) are uninteresting or unimportant. Rather, I am arguing that they are merely one part of the story, representing doctrinal spaces in which the underlying question of American exceptionalism to international human rights regulation is being contested.
To illustrate these disparate processes and actors at work, here are two examples from recent press accounts of the case. The first is a May editorial in the Corpus Christi Caller-Times calling on Texas to do the right thing and grant José Medellín (above left) the additional hearing that the ICJ held was required to remedy the breach of the VCCR notification provisions at the time of Medellín's arrest:

Medellín deserves his justice, but the United States has its obligations, too. The obligation is to honor the treaty it agreed to when it signed the 1963 Vienna Convention. That agreement says that when people are arrested abroad, they have a right to have access to consular officials from their own country.
That right protects Americans, too. And perhaps Americans in particular because thousands of Americans travel abroad on vacations, on family trips and on business. Being arrested and detained by foreign police, being put in a foreign jail, under strange laws can be frightening. Americans under arrest have the right to access American consular officials because of treaty obligations. But if the United States ignores those obligations, so can foreign countries.

[snip]

It’s highly doubtful that holding a hearing on the violations would change the outcome of the prosecution. Medellin’s prosecution seems to have followed every required step that state law requires. But ordering a hearing would satisfy the process of the international treaty and more importantly send the message that the United States takes treaty obligations seriously.
To get a flavor for how the issue plays out with the Corpus Christi readership – including how the question of consular reciprocity gets wrapped up with local prerogatives over the death penalty and perceptions of fairness of foreign criminal justice systems – check out the comments section below the editorial. At a minimum, the expressed "local" interest – in this case a community made up of a large active and retired military population, close to an international border – provides evidence for why we ought to be skeptical of rational choice reciprocity analysis of why states obey international law that takes into account only an aggregated or monolithic "national interest."
The second example is from the ICJ’s press release citing to the Mexican Government’s request of last month for interim measures seeking to compel the U.S. to comply – where the Supreme Court declined to do so – with the Avena decision:

Mexico explains that "while the United States may use ‘means of its own choosing’ under paragraph 153 (9) [of the Court’s Judgment], the obligation to provide review and reconsideration is not contingent on a success of any one means. As a result, the United States cannot rest on a single means chosen; it must provide the requisite review and reconsideration and prevent the execution of any Mexican national named in the Judgment unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation". Mexico further asserts that "requests by the Mexican nationals for the review and reconsideration mandated in their cases by the Avena Judgment have repeatedly been denied". It also states that "on 25 March 2008, the Supreme Court of the United States determined in the case of José Ernesto Medellín Rojas . . . that the Judgment itself did not directly require U.S. courts to provide review and reconsideration under domestic law" and that "while expressly recognizing the United States obligation to comply with the Judgment under international law, [it] further held that the means chosen by the President of the United States to comply were unavailable under the U.S. Constitution and indicated alternate means involving legislation by the U.S. Congress or voluntary compliance by the State of Texas". Mexico adds that "it understands the United States obligation under paragraph 153 (9) to extend to taking the steps set forth by the Supreme Court, including legislative action at the federal or state levels or compliance by state courts or the state legislatures".
In its Request for interpretation, Mexico goes on to explain that, since the decision of the Supreme Court was issued, "Texas . . . has scheduled Mr. Medellín for execution on 5 August 2008". It insists that "the actions of Texas, a political subdivision of the United States, engage the international responsibility of the United States" and that "the United States cannot invoke its municipal law as justification for failure to perform its international legal obligation under the Avena Judgment". It also observes that "at least four more Mexican nationals are also in imminent danger of having execution dates set by the State of Texas"
It is in this push and pull of the local, the national and the international that norms of behavior will emerge. Viewed from this perspective, there is no claimed superiority of the national or the international, the doctrinal or political, but an ongoing process through which shifts in human rights behavior may be achieved.

(Cross-posted at Opinio Juris blog)

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