06 Aug Medellin Executed
The State of Texas carried out its execution of Jose Ernesto Medellin late Tuesday night. It did so following the Supreme Court’s denial of a stay, 5-4. The split is unsurprising, with the majority focused (accurately I suspect) on the fact that a legislative fix was unlikely, and reading DOJ’s silence on the stay request as consistent with a larger pattern of Executive hostility to the ICJ ruling itself. In terms of dissents, Justice Stevens moved from concurring in the original Medellin decision to dissenting on this one, having wanted to require the reluctant Solicitor General’s Office to provide views (the other dissenters echoed the call for paper from the S.G.). Separately, I was disappointed to see the majority did little to qualify the confusion its Medellin decision caused over the domestic legal status of U.S. treaties. The Majority simply noted that the treaty does “not itself have the force and effect of domestic law sufficient to set aside the judgement or ensuing sentence.” That still leaves me wondering whether the court’s denial of domestic law status to non-self executing treaties means that they are not domestic law in any sense or only that they’re not judicially enforceable domestic law.
So, now what? The United States has breached its obligation to comply with the ICJ’s Avena decision (not to mention the more recent provisional measures order). But what exactly will that mean here? Can Mexico now legally engage in reprisals or retorsion against the United States or (to take up Peter Spiro’s idea of targeted retaliation) against Texas specifically? Even if it can, will it do so? To date, Mexico has appeared content to employ the ICJ to amplify its rhetorical opposition to its citizens’ fate. As yet, it’s taken few concrete actions to actually force a change in the U.S. position (i.e., doubling the time it takes US trucks to cross the border; suspending mutual legal assistance or extradition with the United States, etc.).
Moreover, unlike the earlier death penalty cases (e.g., Angel Breard) the Avena decision is not mooted by today’s execution. It covers dozens more Mexicans on death row in the United States. I suspect that means even if Mexico maintains its current rhetorical strategy, the issue is not going away. I wonder though whether each pending execution will generate a new round of maneuvering by all sides, or if, as Julian suggests, Texas will lead the way into finding some compromise to make sure we don’t have to do this 50 more times?
Like many treaties (The Geneva Conventions come to mind) reprisal and retorsion seem like very limited options.
When a treaty codifies a set of behavioral norms that you want (global) society to live by, is getting to break it yourself really much in the way of righting the wrong? It seems counter productive.
On a technical legal level retorsion would always be possible, as retorsion is by definition legal. In practice, Mexico will be unable to engage in retorsion, as it seems that it cannot cut voluntary benefits granted to the US without shooting itself in the foot. The much more interesting question is whether Mexico can suspend its own obligations under the Vienna Convention on Consular Relations. Legally these would be countermeasures. Countermeasures have to be proportional (Art. 51 of the draft articles on state responsibility), so in this case it seems they could only target Texas residents. Countermeasures may only be taken to induce compliance and unlike the previous comment I tend to think they would induce compliance in this case. Countermeasures may not be taken if they affect the protection of fundamental human rights (Art. 50). However, while the ICJ seems to indicate that consular access is, indeed, an individual right (not without some dissent), it seems not to fall in the category invisioned by Art. 50.
In discussing countermeasures it should be borne in mind that Mexico, legally speaking, does not have to focus on the very same obligation that the U.S. has violated (i.e. suspend its own obligations under the Consular Convention). A State does not have to play “tit-for-tat” but may choose a “tit-for-a-different-tat” approach as D’Amato has once called it. The ILC-Commentary on the Draft Articles on State Responsibility says, inter alia, the following with regard to Countermeasures: “This chapter does not draw any distinction between what are sometimes called “reciprocal countermeasures” and other measures. That term refers to countermeasures which involve suspension of performance of obligations towards the responsible State “if such obligations correspond to, or are directly connected with, the obligation breached”. There is no requirement that States taking countermeasures should be limited to suspension of performance of the same or a closely related obligation. A number of considerations support this conclusion. First, for some obligations, for example those concerning the protection of human rights, reciprocal countermeasures are inconceivable. The obligations in question have a nonreciprocal character and are not only due to other States but to the individuals themselves. Secondly, a limitation to reciprocal countermeasures assumes that the injured State… Read more »
Just one quick follow up thought on the matter: The countermeasures addressed in all four posts, including mine, assume an applicability of the general principles for countermeasures. So implicitly, all consider the Consular Convention not to function as a self-contained regime in relation to the violation that has occurred…