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Correcting America’s Continuing Failure to Comply with the A Vena Judgment

  • Steve Charnovitz


Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. “To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war.” 3 Elliot’s Debates 515.

One year ago, the U.S. Supreme Court refused a request by the Obama administration to stay the lethal injection by Texas of a convicted prisoner even though that execution would violate a U.S. treaty obligation. Instead, the Supreme Court deferred to contravening Texas state law and policy that denied the prisoner, Humberto Leal García, a hearing on the merits as to whether the government of Texas’s failure to advise Leal of his right to meet with a consular representative prejudiced his criminal convictions in Texas courts. The State of Texas, which opposed the stay, carried out the execution hours after the Supreme Court stood down.



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1 United States v. Belmont, 301 U.S. 324, 331 (1937). The debates are available at

2 Crook, John R., Contemporary Practice of the United States, 105 AJIL 784 (2011); Leal Garcia v. Texas, 131 S.Ct. 2866(2011).

3 Us Execution of Mexican National Violates International Law—UN Rights Chief, UN News Service, July 8, 2011.

4 Vienna Convention on Consular Relations, Art. 36, Apr. 24, 1963, 21 UST 77.

5 Avena (Mex. v. U.S.), 2004 ICJ Rep. 12, para. 153(9) (Mar. 31).

6 Mexico Condemns Execution of Mr. Humberto Leal Garcia, Statement of the Embassy of Mexico, July 7, 2011.

7 Press Release No. 67/11, Inter-Am. Comm’n on Human Rights, Iachr Condemns Execution of Leal Garcia in the United States (July 8, 2011).

8 Memorandum from President George W. Bush to the Attorney General (Feb. 28, 2005), at, excerpted in Contemporary Practice of the United States, 99 AJIL 489, 489 (2005).

9 Medellin v. Texas, 552 U.S. 491 (2008) [hereinafter Medellin I].

10 Id. at 504.

11 Medellin v. Texas, 554 U.S. 759 (2008) [hereinafter Medellin II].

12 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), 2009 ICJ Rep. 3, para. 54 (Jan. 19).

13 See the quotation from James Madison referred to in the epigraph taken from the Belmont decision.

14 See, e.g., Buys, Cindy Galway, The United States Supreme Court Misses the Mark: Towards Better Implementation of the United States’International Obligations, 24 Conn. J. Int’l L. 39 (2009); Flaherty, Martin S., Surrendering the Rule of Law in Foreign Rektions, 32 Fordham Int’l L.J. 1154 (2009); Townsend, Jesse, Medellin Stands Alone: Common Law Nations Do Not Show a Shared Postratification Understanding of the 1С], 34 Yale J. Int’l L, 463 (2009); Vázquez, Carlos Manuel, Less Than Zero?, 102 AJIL 563 (2008). Alarge literature in support of the Medellin I decision also exists.

15 See, e.g., Cohen, Andrew, Humberto Leal Garcia: The Supreme Court Makes a Bad Situation Worse, Atlantic, July 8, 2011 (“It was one of the most ignoble acts by the Court in recent memory; a reminder, as if we needed one, of the hostility the current majority often expresses toward the workings of the real world.”), available at worse/241605.

16 Brief for the United States as Amicus Curiae in Support of Applications for a Stay at 12, Leal Garcia v. Texas, 131 S.Ct. 2866 (2011) (Nos. 11-5001 & 11-5002), 2011 WL 2630156, at *5, available at

17 Inter-American Commission on Human Rights, Report No. 90/09, para. 132 ( Aug. 7, 2009), at The Supreme Court failed to mention the commission’s report but did mention a 2007 decision by a federal district court in Texas holding that Leal did not suffer any actual prejudice. This district court ruling was vacated on procedural grounds in 2009 by the Fifth Circuit, with the further finding that Leal had no right to a federal hearing on whether there was prejudice. Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009).

18 Ex parte Humberto Leal, 2011 WL 2581917 (Tex. Crim. App. June 27) (Price, J., concurring) (internal footnote omitted).

19 U.S. Const. Art. VI, cl. 2.

20 Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889) (Chinese Exclusion); see also Hyde, Charles Cheney, New Consular Conventions, 15 AJIL 62, 64 (1921) (noting that consular rights in a treaty may abridge the operation of local statutes).

21 For example, the Supreme Court of Massachusetts recently held that if an alien did not receive the notification required by Article 36 of the Vienna Convention, a challenge to the conviction may be made in a motion for a new trial. In so holding, the court “acknowledge [d] and accept[ed] the conclusion of the ICJ regarding the obligation that art. 36 creates when clear violations of its notice protocols have been established, that is, to provide some process by which the soundness of a subsequent conviction can be reviewed in light of the violation.” Commonwealth v. Gautreaux, 458 Mass. 741, 751 (2011).

22 In 2008, after the Medellin I decision, Philip Alston, then the UN Human Rights Council special rapporteur on extraj udicial, summary or arbitrary executions, stated that the “present refusal by Texas to provide review under mines the role of the US in the international system.” His press statement appears as an annex to a UN press release, UN Special Rapporteur Calb on the U.S. to Take Steps to Avoid Unlawful Killings (June 30, 2008), at 8815&LangID=E.

23 Franck, Thomas M., The Future Relationship Between a New Administration and the International Court of Justice, 15 ILSA J. Int’l & Comp. L. 315, 318 (2009).

24 Medellin I, supra note 9, 552 U.S. at 515-16.

25 See Sloss, David L., Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int’l L.J. 136, 140 (2012) (“Whatever else the Supremacy Clause might mean, it must accomplish at least this much: if a treaty imposing non-discretionary duties on the nation did not create domestic legal duties for state officers who have the capacity to promote or hinder treaty performance, the statement that treaties are the ‘supreme Law of the Land’ would be utterly meaningless.”) (footnote omitted).

26 In criticizing the State of Texas, this Comment is not criticizing all Texans. Enlightened opinion in Texas has supported compliance with the Vienna Convention. See, e.g., The World Is Watching: Gov. Perry Should Halt the Medellin Execution, Dallas Morning News, July 29, 2008, at 12A; Keeping Our Word: Scheduled Texas Execution Violates Treaty and Endangers Americans Abroad, Houston Chron., June 22, 2011, at 6.

27 Medellin I, 552 U.S. at 536-37 (Stevens, J., concurring).

28 U.N. Asks Perry to Commute Death Sentence (July 1,2011), at; Stay of Execution for Mexican National Denied by Texas Board, Despite Obama and UN Push for Stay (July 6, 2011), at

29 Leal Execution Puts U.S. at Risk, Editorial, San Antonio Express News, July 7, 2011, at 8B; Estelle Gonzales Walgreen, Execution of Mexican Humberto Leal Highlights Texas as ‘Lone’State & Gov Perry‘s Limitations (July 8, 2011), at; Michael Graczyk, Texas Governor Defends Mexican ‘s Execution, State News Service, July 8, 2011, at; Harnden, Toby, No Mercy as Texas Looks to Presidency, Sunday Telegraph (London), July 10, 2011, News, at 32.

30 See supra note 7 and accompanying text.

31 Recall one classic treatise:

State actions (or inactions) can violate the obligations of the United States under international law, as when they “deny justice” or fail to provide basic protections to aliens. States and state officials may fail to carry out obligations to foreign countries or their citizens, may deny aliens treaty rights or fail to prevent private persons from invading them. And federal remedies—principally through the federal courts—may not be available or effective, or take inordinately long.

Henkin, Louis, Foreign Affairs and the Constitution 247 (1972).

32 Leal Garcia v. Texas, 131 S.Ct. at 2868 (“we will follow the law as written by Congress”).

33 157 Cong. Rec. S4637 (daily ed. July 18, 2011) (statement of Sen. Charles Grassley).

34 Medelltn I 552 U.S. at 523-24.

35 131 S.Ct. at 2868.

36 Charnovitz, Steve, Revitalizing the U.S. Compliance Power, 102 AJIL 551, 552-59 (2008).

37 Medellin I, 552 U.S. at 521.

38 Petition for Writ of Certiorari to the Court of Criminal Appeals in Texas at 14 (June 27, 2001), 2011 WL 2743200, at *12, available at

39 Avena Case Implementation Act of 2008, H.R. 6481, 11 Oth Cong. (2008). The bill gained only three cosponsors.

40 In July 2010, the Senate Appropriations Committee reported an appropriations bill that contained a provision (Title VII, sec. 7082) that would have granted federal court jurisdiction to review petitions alleging a violation of certain consular rights. S. Rep. No. 111-237, at 81 (2010). The provision was buried in the bill, S. 3676, without transparency by the authoring subcommittee (chaired by Senator Leahy). The bill was not finalized by the Senate.

41 Consular Notification Compliance Act of 2011, S. 1194, 112th Cong. (2011).

42 Fulfilling Our Treaty Obligations and Protecting Americans Abroad: Hearing Before the S. Judiciary Comm., 112th Cong., Statement of Bruce C. Swartz, Deputy Assistant Att’y Gen. and Counselor for International Affairs 12 (July 27, 2011), at

43 Duffy, Edward W., The Avena Act: An Option to Induce State Implementation of Consular Notification Rights After Medellin, 98 Geo. L.J. 795, 809-10 (2010). Duffy proposes conditionality on Justice Assistance Grants.

44 Before bills in Congress are brought to a vote, it is easy for opponents to mischaracterize the level of congressional support or opposition. For example, in July 2011, Senator Grassley stretched the truth in contending that there had already been “a considered decision of Congress not to pass that [Leahy] legislation.” Because Senator Leahy’s legislation had been introduced only four days earlier, a “considered decision” seems unlikely. 157 Cong. Rec. S4637 (daily ed. July 18, 2011) (statement of Sen. Charles Grassley).

45 ABA House of Delegates, Res. 108C (2010). This resolution grew out of the recommendations of the Joint Task Force between the American Society of International Law and the Aba. See ABA/ASIL Joint Task Force on Treaties in U.S. Law, Report, at 13-18, Annex BB (Mar. 16, 2009), at

46 Medellín I, 552 U.S. at 520.

47 Ex parte Medellín, 223 S. W.3d 315, 342 (“The President has not entered into any. . . agreement with Mexico relating to the Mexican nationals named in the Avena decision. There has been no settlement.”), 343 (“The President’s ability to negotiate and enter into an executive agreement to settle a dispute with a foreign nation remains. In this case, however, the President failed to avail himself of that mechanism to settle this nation’s dispute with Mexico.”), 344 (“The absence of an executive agreement between the United States and Mexico is central to our determination that the President has exceeded his inherent foreign affairs power by ordering us to comply with Avena.”) (Tex. Crim. App. 2006).

48 Medellín I, 552 U.S. at 530-32; Nelson, Anne E., From Muddled to Medellín: A Legal History of Sole Executive Agreements , 51 Ariz. L. Rev. 1035, 1059-65 (2009). Of course, the Court’s holding occurred in the absence of an actual agreement with Mexico to settle the claims.

49 Fulfilling Our Treaty Obligations and Protecting Americans Abroad: Hearing Before the S. Judiciary Comm., 112th Cong., Statement of John B. Bellinger III, at 5 (July 27, 2011), at

50 Medellín II, supra note 11, at 760.

51 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican National (Mexico v. United States of America), supra note 12, para. 47.

52 Statement of John B. Bellinger III, supra note 49, at 8.

53 See Quigley, John, The United States ‘ Withdrawal from International Court of Justice Jurisdiction in Consular Cases: Reasons and Consequences, 19 Duke J. Comp. & Int’l L. 263 (2009). In private correspondence (on file with author), Quigley argues that retracting the withdrawal would not require an express consent by the U.S. Senate.

54 See Memorandum from the Advisory Committee on Federal Rules of Criminal Procedure to the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States 2-4 [362-64], [455-56] (May 12, 2011), at The new rule was approved by the Judicial Conference in September 2011. The reports of the federal rules committees are available at

55 See, e.g., Shapiro, Ilya, Medellin v. Texas and the Ultimate Law School Exam , Cato Sup. Ct. Rev. 63, 102-03 (2008) (“While elite opinion around the world expressed shock that one renegade political subdivision could thwart the will of both the World Court and the president, here in the United States we take our federalism seriously.”).

56 For example, in a written statement submitted to the Senate Judiciary Committee, Secretary Clinton explained:

This protective system of consular assistance depends on mutual compliance with these obligations by the United States and our treaty partners. If the United States fails to honor our legal obligations toward foreign nationals in our custody, the fabric of this protective system is torn, and ultimately it is Americans who are harmed.

Consular Notification Compliance Act: Hearing on S. 1194 Before the S. Judiciary Comm., 112th Cong, Statement of Hillary Rodham Clinton, Secretary of State, at 12 (July 27, 2011), at (appended to statement of Patrick F. Kennedy).

57 Root, Elihu, The Need of Popular Understanding of International Law, 1 AJIL 1, 2 (1907).

58 Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889).


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