Let's start with FindLaw.com columnist Edward Lazarus' must-read commentary, "A Recent Supreme Court Decision on the Vienna Convention Reaffirms that Justice Stevens, at Eighty-Eight, Remains A Force to Be Reckoned With."
The issue presented in Medellin was double-barreled. First, given that the U.S. is a signatory to the Vienna Convention and to the United Nations Charter (in which each member agrees to "undertake[] to comply" with ICJ decisions), are U.S. state courts bound to give effect to the ICJ's Avena decision? Second, even if the state courts were not bound directly by Avena, were they bound to comply with Bush's Memorandum specifically directing them to comply with Avena?
Although Medellin was argued without much fanfare, it required the Justices to come to terms with some very tricky and important ideological cross-currents. At the risk of oversimplification, many of the conservative justices are devoted to both states rights and presidential power - but in Medellin, the two concepts were at war with one another. The conservatives thus had to choose between them. The case also pitted the Court's internationalists (such as Justice Stephen Breyer) against those on the Court (such as Justice Antonin Scalia) who largely disdain international law. In some recent death penalty cases, a more internationalist perspective had prevailed. Would it do so again?
The opinion authored by Chief Justice Roberts offered definitive answers. The opinion reasoned that the Vienna Convention provisions requiring consular notification did not have the force of domestic law (which the states would have had to obey under the Constitution's supremacy clause). The Vienna Convention, the majority held, was not a "self-executing" treaty - and, as such, could become binding domestic law only if made so by a further act of Congress. As there had been no such act of Congress, the Convention was not binding domestic law.
In the majority's view, the fact that the U.S. had bound itself to "undertake[] to comply" with ICJ rulings under the United Nations' Charter did not change the equation. According to the majority, this language meant only that signatory nations had agreed to take additional steps to make ICJ decision binding upon themselves - not that they had agreed that such decisions had binding force, in and of themselves, if no other steps were taken.
And:
In a dissent joined by Justices David Souter and Ruth Bader Ginsburg, Justice Breyer opined, equally emphatically, that the ICJ's Avena decision was, indeed, binding domestic law. He added, too, that the Court's contrary conclusion meant that the "Nation may well break its word even though the President seeks to live up to that word and Congress has done nothing to suggest the contrary."
Meanwhile, Justice Stevens found himself perched between the two camps. Although he was obviously drawn to much of Breyer's argument, he ultimately concluded that Congressional action was necessary to make the ICJ decision binding on state courts, and that the president had no unilateral authority to change the fact that such action was necessary.
But what is especially compelling about Stevens' concurrence is not the reasoning he sketches out for reaching this conclusion, but the practical lessons he draws from the case. As he points out, to a substantial degree, the Court's conclusion that the ICJ decision is not binding law on the state courts of Texas should be the beginning, not the end, of the relevant analysis.
And:
The cost to Texas of voluntarily reviewing Medellin's case is, as Stevens noted, negligible. There is no risk that such a review would change anything. What chance is there, after all, that Medellin's lack of consular notice actually prejudiced his case? Basically, none - which is why, in similar circumstances, Oklahoma unhesitatingly met the Nation's treaty obligation.
Stevens' point here is a large one - with implications far beyond this circumstance. It is one thing, Stevens's opinion suggests, to claim sovereign inherent authority to resist the judgment of other bodies, and it is very much another thing to exercise - or decline to exercise - this authority wisely. Here, Texas, for no great reason, has tarnished the honor of this Nation.
Much the same can be said of the Bush Administration's claims to absolute authority in the war on terror. The Administration could have achieved most of its objectives by other means. But it risked constitutional confrontation and even crisis instead, by short-circuiting Congress, often secretly.
As Stevens seems to have grasped perfectly, claims of power and obligations to do what's right are not infrequently at odds.
Today's Dallas Morning News carries the editorial, "Consular law protects Americans too."
Just as foreigners should respect the letter of the law in this country, the United States should abide by its treaty obligations – not just at the federal level, but in state and local jurisdictions as well.
Millions of Americans travel abroad every year. Thousands of them are arrested, often in countries with dubious human rights records. An arrest abroad is among the most frightening experiences any traveler can have.
The 1963 treaty is all that stands in the way of foreign police holding American citizens without ever notifying U.S. consular officials so they can arrange legal assistance or notify family members back home.
Some countries don't provide food for prisoners, and that consular visit is the only way of ensuring that the detainee will even be fed.
By failing to enforce this treaty, America sends a signal to other countries that they don't have to enforce it either. To protect the rights of John Q. Traveler, the tourist who somehow gets arrested in Mexico for tackling the guy who just stole his wallet (and it happens), we also must protect the legal rights of murderers such as Mr. Medellín.
Congress left a huge gap when it ratified the 1963 treaty but failed to enact state-level enforcement legislation. If we want our citizens protected abroad, we have to practice minimal respect for our treaty obligations at home.
The Houston Chronicle editorial is, "Supreme Court ruling in Houston murder case puts at risk Americans' rights abroad."
Even if the Vienna Convention is not binding on the states, states should honor its protections so that those protections will be given to Americans unfortunate enough to be arrested abroad. Justice Stephen Breyer was right in his dissent when he expressed fear that U.S. relations with Mexico and other nations would be damaged, the rights of Americans abroad put at risk and scores of international agreements called into question.
Justice John Paul Stevens probably was closest to being right when, in a separate opinion, he agreed that President Bush could not dictate to Texas courts without action by Congress, but thought Texas should have given Medellin a rehearing anyway. Had that been the case, the word of the United States and the supreme laws of the land would not now be in such doubt.
Yesterday's Wall Street Journal carried the editorial, "International Law, and Order."
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."
Today's National Review Online has a lengthy editorial, "Solid Decision."
In one of the most important international-law decisions in its history, the Supreme Court on Tuesday restored the Constitution’s prudent balance between politics and law in the quintessentially political arena of foreign affairs. Doing so, Chief Justice John Roberts’s majority opinion concurrently provided individual justice for murder victims, vindication for the rights of states to democratic self-determination, and a searing reminder of why presidential elections — which can chart the high Court’s course for a generation — are crucially important.
Earlier coverage, with links to the ruling, is here and here.
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