Listen to the World Court: Texas Should Honor the Nation and its Neighbor

Excerpt from Concurring Opinion of Justice Stevens in the March 25, 2008 ruling of the U.S. Supreme Court in the matter of Medellin v. Texas.

In today’s breaking news, Mexico is renewing appeal to the International Court of Justice (or World Court) to halt the U.S. executions of five Mexican nationals until their cases are reviewed to determine what impact may have resulted from their not having been advised of their rights to assistance from the Mexico consulate offices.

So far, Texas is refusing to acknowledge that a review of the denied rights is appropriate, because procedural rules require issues to be raised earlier. In March, the U.S. Supreme Court ruled that neither the World Court nor the President of the USA can order Texas to adjust its procedures in relation to Mexican nationals on death row.

However, in a concurring opinion, excerpted below (with paragraph breaks added for readability), Justice Stevens argues that Texas still has good reasons to want to do the right thing and reopen the cases to assess the impact that Consular representation may have had.

Even though the [International Court of Justice’s] ICJ’s judgment in Avena is
not “the supreme Law of the Land,” U. S. Const., Art. VI, cl. 2, no one disputes
that it constitutes an international law obligation on the part of the United
States. Ante, at 8. By issuing a memorandum declaring that state courts should
give effect to the judgment in Avena, the President made a commendable attempt
to induce the States to discharge the Nation’s obligation.

I agree with the Texas judges and the majority of this Court that the President’s
memorandum is not binding law. Nonetheless, the fact that the President cannot
legislate unilaterally does not absolve the United States from its promise
to take action necessary to comply with the ICJ’s judgment.

Under the express terms of the Supremacy Clause, the United States’ obligation
to “undertak[e] to comply” with the ICJ’s decision falls on each of the States
as well as the Federal Government. One consequence of our form of government
is that sometimes States must shoulder the primary responsibility for protecting
the honor and integrity of the Nation.

Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention — ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another.

The decision in Avena merely obligates the United States “to provide, by means
of its own choosing, review and reconsideration of the convictions and sentences
of the [affected] Mexican nationals,” 2004 I. C. J., at 72, ¶153(9), “with
a view to ascertaining” whether the failure to provide proper notice to consular
officials “caused actual prejudice to the defendant in the process of administration
of criminal justice,” id., at 60, ¶121.

The cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced José Ernesto Medellín. See ante, at 4–6, and n. 1. It is a cost that the State of Oklahoma unhesitatingly assumed.4

On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The entire Court and the President agree that breach will jeopardize the United States’ “plainly compelling” interests in “ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.” Ante, at 28. When the honor of the Nation is balanced against the modest cost of compliance, Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules in the absence of implementing legislation.

The Court’s judgment, which I join, does not foreclose further appropriate action by the State of Texas.

We agree with Justice Stevens that Texas is behaving badly in its stubborn refusal to give hearing to the rights of Mexican nationals. And as Justice Stevens warned, here we go again. Texas stubbornness is the cause of another appeal to the World Court.

To all this we only have one thing more to say: Texas, of all states in the USA, should assume moral leadership when it comes to respecting the international rights of Mexico and Mexican citizens.–gm