Will Texas Stop Medellin’s Execution? Nope.

As Texas stays on track to execute Jose Medellin on August 5, it is worth shifting our attention back to Texas.  I’ve always thought the ideal solution to the ICJ-Vienna Convention conundrum is for each individual state to independently comply with the ICJ’s judgment. Although I think the ICJ’s interpretation of the Vienna Convention is not entirely persuasive, I think that it deserves some respect.  I don’t think it deserves so much respect such that it should alter domestic lawmaking norms, though, which is why I am with Justice Stevens’ concurrence in Medellin: the decision here is left to Texas (or Congress).  And Texas should, out of respect for the ICJ, and even more importantly, out of respect for Mexico, give Medellin the “review and reconsideration” that the ICJ is demanding.

Of course, Texas won’t do so, as its governor has already indicated here and even though some Texas legislators would like Texas to do so. After all, why did Texas bother to litigate the Medellin case if it was going to simply give in anyway. And I do understand why won’t it simply give the “review and reconsideration” hearing that Mexico supposedly wants.  Because Mexico doesn’t really want “review and reconsideration.”  It doesn’t just want a good faith hearing where Medellin gets to try to show how his failure to receive consular notification materially affected the outcome of his trial and sentence.  Mexico wants to stop the execution, and nothing short of that will satisfy it.

So while it is true that Texas is almost certainly will violate (and hence the U.S. will violate) its international legal obligation by executing Medellin, it is worth keeping in mind that Mexico and the ICJ would probably not be satisfied, even if Texas had completely fulfilled U.S. international legal obligations by giving a full review and reconsideration judicial hearing.

So let’s everyone just be honest here. Texas is acting like a jerk by ignoring the ICJ and Mexico.  And it should stop acting like a jerk, and start acting like the cool and good-hearted state that it really is.  But in Texas’ defense, there is nothing, short of not executing Mr. Medellin, that would have prevented it from coming across like a jerk in The Hague and Mexico City.  This is an important case about international law and international courts, but it is also simply a case about a fundamental disagreement over the death penalty. And no one usually walks away happy or satisfied from these kinds of disagreements, even if all the international law niceties are observed.