[Opinio Juris has requested David Sloss' permission to post this email he published on a international law list serve and he has kindly obliged]

I finally was able to read the Texas court’s decision in Medellin. It strikes me that the court almost completely ignored the strongest argument in favor of the petitioner. That argument can be summarized as follows.

The United States has an obligation under Article 94 of the U.N. Charter to “comply with the decision of the International Court of Justice” in the Avena case. Under the express terms of the Constitution, Article 94 is the “supreme Law of the Land,” and “judges in every state shall be bound thereby.” Therefore, the Texas Court of Criminal Appeals has a constitutional duty to comply with the ICJ decision in Avena. Note that it is immaterial, for purposes of this argument, whether the Avena judgment is supreme federal law. I would maintain that the Avena judgment is not supreme federal law. Even so, by virtue of Article 94 and the Supremacy Clause, the Texas court still had a constitutional duty to comply with the ICJ decision.

No doubt, some will argue either that Article 94 is “not self-executing,” or that Article 94 does not create “individually enforceable rights,” or both. But that argument merely serves to obfuscate the main issue. The claim that Article 94 is “not self-executing” is utterly meaningless, unless one defines the term. Moreover, whatever it means to say that Article 94 is “not self-executing,” it is beyond dispute that Article 94 is the “supreme Law of the Land,” and that “judges in every state are bound thereby” because the Constitution says so. Of course, this does not mean that Article 94 is judicially enforceable in every case. Rather, Article 94 is judicially enforceable only in those cases where it provides an applicable rule of decision. The number of cases litigated in U.S. courts where Article 94 does provide an applicable rule of decision is very, very small, but it’s not zero. Medellin is one of the few cases where Article 94 does provide an applicable rule of decision. In my view the Texas court’s decision violated both Article 94 and the Supremacy Clause.