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Published: Fri, 02 Feb 2018

Treaties play a fundamental role in international relations

“The decision in Medellin v. Texas indicates that a State may invoke the provisions of its

internal law as justification for its failure to perform a treaty”, DISCUSS.

In our time as in the past, treaties play a fundamental role in international relations but also the decisions arising from the ruling of International Court of Justice (ICJ) provide an advance in the International Law development. The case of Medellin v. Texas is one included in this branch of cases which played a significant role to the development of International Law and in particular to the relationship between International Treaties and Domestic / National Law.

In the cases of the Serbian loans and the Brazilian loans the International Court of Justice stated that while the main function was to decide for disputes between states on the basis of International Law, it has also to determine the existence of any fact which will constitute a breach of any international obligation under a treaty. This function included questions of municipal law and came out from the French legislation.

Where there is a conflict between international obligations and national law, the international rule is that which always prevails. Under the UN General Assembly 1949 and Article 13 it is provided that every state has the duty to carry out its obligations arising from treaties and from other sources of international law.

Moreover, in Vienna Convention on the Law of Treaties, Article 27 states that a party may not use the provisions of its national law as an excuse for its failure to perform a treaty. Article 46 permits to a state to argue that its consent to a treaty was cancel at the time when there was a violation of internal law.

Another important case in the International law history is the LaGrand case where the International Court of Justice considered the consequences of the US failure to give timely notification to two German nationals of their right of protection under Article 36 of the Vienna Convention. In this case the court held that an apology for any future violation of Article 36 would be enough. [1] 

All national legal systems accept traditional international law as a part of their National Law. In particular, an example in practise of the rule above was happened in 1999 when the Appeal Court of Scots held that a rule of customary international law is a rule of Scots law. Thereon, we are moving on a decision given by one of the most important persons in the history of English law. Lord Denning in the case of Trendex Ltd stated that when international law changed then the English court has to apply the new rules of international law. This statement in my opinion shows the weight and importance that international law has in the national courts and tribunals. National courts do not only have to decide whether to apply a rule of international law but also they have to determine the meaning and the effect of the international rules in the domestic law.

The case of R v Jones concerned a preventing crime and although a crime of aggression existed in international law, this crime did not follow that ‘’aggression’’ was an offence in domestic law.

The question, if international law applies directly to national law was explained by the European Court of Justice (ECJ). Particularly with the case of US V Alvarez in 1992, a national of Mexico, was abducted in an operation for which US DEA was responsible. The Supreme Court then accepted that the abduction violated international law principles. This decision operates as a centrism of the infringement of Mexico national rights.

After a small introduction we are coming back on our case on which important recent comments have been made on it and finally on 2008 the United States Supreme Court concluded and gave its final judgment. The case of Medellin v. Texas is comprehensively discussed and analyzed below beginning with the facts of the case.

Medellin V Texas facts:

Jose Medellin, a Mexican national, has been convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that the state had violated his rights under the Vienna Convention. The United States is a party on this treaty since the beginning and creation of the Vienna Convention [2] . Getting in more details on the Vienna Convention and in particular looking on Article 36 we notice that this article gives any foreign national detained for a crime the right to his consulate. The person acting as a consulate is the official representative through the hearing of the government of one state and in the territory of another, normally he or she is acting to help, support and protect the citizens of the consul’s own country, and to make easy the relationships of trade and friendship between the people of the country to whom he or she is attributed and the country of which he or she is a representative. [3] 

Jose Medellin after his request has been discharged by the Supreme Court and Medellin’s case returned to the Texas Court of Criminal Appeals. Medellin’s argument rested in part on a ruling of the International Court of Justice holding that the United States had violated the Vienna Convention rights of 51 nationals of Mexico and that their convictions must be reconsidered. Moreover Medellin argued that the Vienna Convention granted him an individual right that state courts must respect, a possibility left open by the Supreme Court’s 2006 decision in Sanchez-Llamas v. Oregon. Medellin also referred to a memorandum from the President of the United States that instructed state national courts to comply with the ICJ’s rulings by hearing the cases twice if this is needed. Medellin added that the Constitution gives the President broad power to ensure that the treaties are enforced, and that this power is expanded to the treatment of treaties in state court proceedings. [4] 

However, the despondence of the Court of Criminal Appeals in Texas was that it rejected each of Medellin’s arguments and dismissed his appeal. The court interpreted Sanchez-Llamas as the key point for the principle that the rulings of the International Court of Justice are not binding on the state courts. The Texas court stood by its position that when they would allow Medellin to raise the Vienna Convention issue (under article 36) after his trial this instance would violate state procedural rules and those rules were not replaced by the Convention. The President had no authority to order the enforcement in state court of an ICJ ruling, because that would simply involve a law-making power which is not allocated to him by the Constitution of the United States.

The Judges sitting this case have been extremely careful while examining and ruling the case. Chief Justice Roberts expressed his view on the case and delivered the following opinion, putting his own arguments on the case. The International Court of Justice, which was located in the Hague, is a tribunal established pursuant to the United Nations Charter so to give a ruling disputes between member states. In the case concerning Avena and Other Mexican Nationals, that tribunal considered a maintain brought by Mexico against the United States. The ICJ then, based on violations of the Vienna Convention, held that the 51 nationals of Mexico were entitled to review and amend their state convictions and sentences in the United States. This was so nevertheless of any penalty of the right to raise Vienna Convention claims because of a failure to comply with the general applicable state rules governing challenges to criminal convictions. In fact, Petitioner José Ernesto Medellin, who had been convicted and sentenced in Texas for murder, is one of the 51 Mexican nationals named in the Avena decision. Relying on the ICJ’s decision, Medellin filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medellin’s application as an abuse of the writ under state law, given Medellin’s failure to raise his Vienna Convention claim in a timely manner under state law. We settled certiorari to decide two questions. First, is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the United States? Second, does the President’s Memorandum separately need the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without look upon to state procedural default rules? We conclude that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of consecutive habeas petitions. [5] 

In addition Justice Stevens, concurring in the judgment stating that there is a great deal of understanding in Justice Breyer’s dissent. I agree that the text and history of the Supremacy Clause, as well as this Court’s treaty-related cases, do not support a presumption against self-execution. I also endorse the proposition that the Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, “is itself self-executing and judicially enforceable.’’ Moreover, I think this case presents a closer question than the Court’s opinion allows. In the end, however, I am persuaded that the relevant treaties do not authorize this Court to enforce the judgment of the International Court of Justice in Case Concerning Avena and Other Mexican Nationals.’’ The source of the United States’ duty to comply with judgments of the ICJ is found in Article 94(1) of the United Nations Charter, which was ratified in 1945. Article 94(1) provides that “each Member of the United Nations undertakes to comply with the decision of the ICJ in any case to which it is a party. In my view, the words “undertakes to comply” whereas not the model of either a self-executing or a non-self-executing commitment are most naturally interpret as a guarantee to get further steps to enforce ICJ judgments.  Unlike the text of some other treaties, the terms of the United Nations Charter do not essentially incorporate international judgments into domestic law. Furthermore, Congress has passed implementing legislation to make sure the enforcement of other international judgments, even when the operative treaty provisions use far more obligatory language than “undertakes to comply.”  On the other hand Article 94(1) does not contain the kind of unambiguous language foreclosing self-execution that is found in other treaties. The obligation to undertake to comply with ICJ decisions is more steady with self-execution than, for example, an obligation to ratify legislation. Furthermore, where the Senate has issued declarations of non-self-execution when passing some treaties, it did not do so with respect to the United Nations Charter. In an annex to the United Nations Charter, the Statute of the International Court of Justice states that a decision of the ICJ “has no binding force except between the parties and in respect of that particular case. Under the express terms of the Supremacy Clause, the United States’ obligation to undertake to comply” with the ICJ’s decision falls on each of the States as well as the Federal Government. One effect of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honour 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 intent the United States in the current argument. 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 review and reconsideration of the convictions and sentences of the affected Mexican nationals, with a view to ascertaining whether the failure to provide right notice to consular officials caused actual prejudice to the defendant in the process of administration of criminal justice. The cost to Texas of complying with Avena would be minimal, mainly given the remote likelihood that the violation of the Vienna Convention actually prejudiced José Ernesto Medellin. It is a cost that the State of Oklahoma without a second thought assumed. 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 endanger the United States plainly compelling interests in ensuring the mutual observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. [6] 

Concluding with the opinions, views and statements of the judges mentioned above it is important to state at this point here that all the comments above I consider them to be right and I believe that are giving satisfactory answers to the problems raised in the case of Medellin therefore is why I spent so much length on my essay by mentioned all these judges statements.


The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent countries. A consul normally operates out of an embassy in another country, and performs two essential functions: (a) protecting in the host country the interests of their countrymen, and (b) furthering the commercial and economic relations between the two countries. While a consul is not a diplomat, they work out of the same premises, and under this treaty they are afforded most of the same privileges, including a variation of diplomatic immunity called consular immunity. The treaty has been ratified by 172 countries.

The most important are:

Article 5. Thirteen functions of a consul are listed, including protecting in the receiving state the interests of the sending state and its nationals, as well as developing the commercial, economic, cultural, and scientific relations between the two countries.

Article 23. The host nation may at any time and for any reason declare a particular member of the consular staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their consular immunity.

Article 31. The host nation may not enter the consular premises, and must protect the premises from intrusion or damage.

Article 35. Freedom of communication between the consul and their home country must be preserved. A consular bag must never be opened. A consular courier must never be detained.

Article 36 is very important communication and with nationals of the sending state. 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: consular officers shall be free to communicate with nationals of the sending State and to have access to them. ‘’State must have the same freedom with respect to communication with and right of entry to consular officers of the sending State, if he so requests, the competent authorities of the receiving State shall, without delay, notify the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.’’ The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. [7] 

The constitutional framework in the United States allows the treaties to become part of the domestic / national law without have any change through legislation. The U.S. Constitution provides that when the U.S. is a party to a treaty then this treaty become the law of the land. This provision was intended to guarantee the supremacy of the treaties over the laws of the United States. The current position under U.S. law can be considered also in the context of the doctrine of separation of powers which was declared above where talking for the President’s statement and powers. On the other hand are the parliamentary systems that have the following process. Where the approval of parliament is not required for the executive act of becoming party to a treaty then the US Constitution requires that the ruling body gives its ‘Advice and Consent’ to the President making a treaty. Consequently, a treaty will not become the law of the land without the approval of the ruling body. Therefore, treaties in the US context are often referred to as ‘self-executing’. However, not all treaties will be self-executing but in some circumstances, legislation may be required. [8] 

In conclusion I would like to express that I find the Medellin case extremely complicated and problematical. In this case we are dealing with the United States of American interpretation about how their national system interacts with International Law. Coming from a roman law based system, the way the United States Supreme Court behaved towards this specific case surprises and at the same time confuses me. The grounds which have been given for the decision of Medellin case sounds nothing but weak to me. I want to believe that this impression is based in lack of knowledge. Thus why I hardly tried to find depth documentation about Medellin case and although this case seems that it is fairly simple the truth is that it is not as it looks and that’s why the ICJ took so many years to come to a decision. When ruling cases that have an essential meaning on the International and Domestic law then this is obviously prospective particularly when these cases concerning the relationship and influence of International rules and treaties and domestic law.

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