By Rogan Nunn '10
News Editor

"You have to think of it as a death penalty case,” began Professor Paul Stephan. “Nowhere in the legal instruments is anything about capital punishment, but it’s not possible to understand everyone’s approach without framing it as a capital case.”

The case to which Stephan was referring was Medellín v. Texas, decided by the Supreme Court in March. The case has been hailed as an important moment in the High Court’s international law jurisprudence, and has sparked heated discussion among experts in the field. Stephan is not only one such expert, but was also directly involved in several stages of the case, putting him in a unique position to comment on it. On November 24, he led a talk, organized by the J.B. Moore Society of International Law, on Medellín and its implications for treaties and domestic law.

In 1993, a gang of men including José Ernesto Medellín, an 18-year-old Mexican national, raped and killed a 14-year-old and a 16-year-old girl in Houston, Texas. Medellín personally strangled one of the girls with her own shoelaces. Five days later he was arrested, and confessed to the crime after having been read his Miranda rights. Texas authorities did not, however, inform him of his rights under the Vienna Convention (ratified by the United States in 1969) to contact and seek assistance from the Mexican consulate. Medellín was convicted and sentenced to death.

In the 1990s, explained Stephan, it was thought that the rights of those arrested could be an alternate ground for challenging capital punishment. When someone is at risk of being put to death, privileges and safeguards that ordinarily appear superfluous, such as the ability to contact one’s consulate, gain special importance and should be taken seriously. According to Stephan, the rationale is that warnings and process that customarily serve to ensure fairness may not be enough for foreigners who do not understand the American system.

In 2003, Medellín filed a petition for habeas corpus, which was denied by a U.S. District Court in Texas. He appealed to the Supreme Court. Stephan, along with other law professors, filed an amicus brief supporting the state of Texas, arguing that enforcement of a treaty is not a constitutional issue, and that consideration of the case was thus foreclosed by habeas jurisdiction. While the court agreed, the decision was a narrow one, and “four justices were willing to overthrow a lot of habeas and federal law to say that treaty claims were habeas claims,” said Stephan.

Meanwhile, Mexico has brought suit against the United States in the International Court of Justice at The Hague. In 2004, the ICJ ruled in Case Concerning Avena and Other Mexican Nationals that the convictions of 51 Mexicans arrested in the United States, including Medellín, were entitled to review on grounds that the nationals had not been notified of their Vienna Convention rights. Medellín raised the Avena ruling on appeal, and Stephan filed another amicus brief, limited to the issue of whether a judgment of the ICJ was independently enforceable as federal law. If so, the decision would supersede state procedural law, under which Medellín was not allowed a “second bite at the apple” since he had not raised the issue at trial.

By the time Medellín’s appeal worked its way back up to the Supreme Court, Stephan was involved as more than just a lowly amicus. “No longer a feckless law professor,” he was working at the State Department, defending President Bush. Before the Court granted cert a second time, the President had issued a memorandum to the Attorney General asserting authority under the Constitution to order states to review the convictions of foreign nationals who had not been advised of their Vienna Convention rights.

It was Stephan’s job to convince the Court that even though the ICJ ruling had no independent authority (decided in an unrelated interim decision), the President’s order did. Medellín should get a hearing not because the ICJ said so, but because President Bush said so. According to Stephan’s position, certain treaties, along with the United Nations Authorization Act, vest in the President the authority to implement ICJ decisions. This, he said, is a reasonable interpretive gloss on a treaty where the U.S. accepts jurisdiction of an international tribunal. It should be up to the President whether or not to enforce that tribunal’s judgments.

Unfortunately for Stephan, all nine members of the Court seemed to disagree with this view. Chief Justice Roberts’s opinion took the position that the issue was entirely one of self-execution. Since the Vienna convention is not self executing, he wrote, there is nothing the President can add; and he has no Article II authority in this area. The Court relied heavily on Youngstown Sheet & Tube Co. v. Sawyer (famous for Justice Jackson’s concurring opinion laying out three levels of legitimacy into which the President’s authority vis-à-vis Congress may fall), stating that while there were clearly compelling interests at stake, “[t]he President’s authority to act, as with the exercise of any governmental power, must stem either from an act of Congress or from the Constitution itself.” According to Stephan, this view completely overlooks the argument that the case is not one about inherent authority, but rather the proper way to interpret the treaty itself.

The Court similarly rejected the argument of Medellín’s attorneys that ICJ opinions have preclusive effect as judgments, not just interpretations of law. Stephan described this strategy as “going long,” and opined that Medellín’s lawyers must have known they had only four votes for such a position. Still, he said, they were working with an uphill fact pattern: “Killing one teenage girl is bad. Killing two is really bad, and having lived in the U.S. all his life removes the sympathy of being an outsider.” His last appeals denied, Medellín was executed by the State of Texas at 9:57 p.m. on August 5 of this year.

So what is there to take away from the case? “It has so many dimensions that pinning down what it actually stands for will be problematic as we go ahead,” Stephan admitted. He suggested that the case outlined the principle that international law obligations can exist and be binding but have no domestic effect. The Court said little about when this will be true, except that it was true this time. According to Stephan, the court further failed to explain what “self-executing” means or how they will determine in the future whether a treaty qualifies as such.

The discussion was followed by a question-and-answer session, during which Stephan made clear his feelings about how the case had been decided. In response to a first-year who prefaced her question with a disclaimer about her lack of international law knowledge, he quipped, “Don’t apologize for being a 1L. The Supreme Court didn’t understand this either.”