O'CONNOR, J., DISSENTING
MEDELLIN V. DRETKE
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 04-5928
JOSE ERNESTO MEDELLIN, PETITIONER
v. DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
on writ of certiorari to the united states court of
appeals for the fifth circuit
[May 23, 2005]
Justice O’Connor, with whom
Justice Stevens, Justice Souter, and Justice Breyer join,
dissenting.
José Ernesto Medellín offered
proof to the Court of Appeals that reasonable jurists would find
debatable or wrong the District Court’s disposition of his claim
that Texas violated his rights under the Vienna Convention on
Consular Relations and that he is thereby entitled to review and
reconsideration of his conviction and sentence. Three specific
issues deserve further consideration: (1) whether the International
Court of Justice’s judgment in Medellín’s favor,
Case
Concerning Avena and Other Mexican Nationals (Mex. v.
U.
S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), is
binding on American courts; (2) whether Article 36(1)(b) of the
Convention creates a judicially enforceable individual right; and
(3) whether Article 36(2) of the Convention sometimes requires
state procedural default rules to be set aside so that the treaty
can be given “full effect.” Accordingly, I would vacate the denial
of a certificate of appealability and remand for resolution of
these issues.
The Court dismisses the writ (and terminates
federal proceedings) on the basis of speculation: Medellín
might obtain relief in new state court proceedings—because
of the President’s recent memorandum about whose constitutionality
the Court remains rightfully agnostic, or he
might be
unable to secure ultimate relief in federal court—because of
questions about whose resolution the Court is likewise, rightfully,
undecided. These tentative predictions are not, in my view, reason
enough to avoid questions that are as compelling now as they were
when we granted a writ of certiorari, and that remain properly
before this Court. It seems to me unsound to avoid questions of
national importance when they are bound to recur. I respectfully
dissent.
I
Article 36 of the Vienna
Convention on Consular Relations guarantees open channels of
communication between detained foreign nationals and their
consulates in signatory countries:
“[I]f he so requests, the competent authorities of
the receiving State shall, without delay, inform 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.” Vienna Convention on Consular Relations, Art.
36(1)(b), Apr. 24, 1963, [1970] 21 U. S. T. 77, 101,
T. I. A. S. No. 6820.
Presently 167 nations are party to the Vienna
Convention, including our immediate neighbors to the north and
south. Multilateral Treaties Deposited with the Secretary-General
United Nations, N. Y., http://untreaty.un.org (all Internet
materials as visited May 19, 2005, and available in Clerk of
Court’s case file).
In this country, the individual States’ (often
confessed) noncompliance with the treaty has been a vexing problem.
See,
e.g.,
United States v
. Emuegbunam,
268 F. 3d 377, 391 (CA6 2001) (discussing cases about Vienna
Convention violations). It has three times been the subject of
proceedings in the International Court of Justice (ICJ). See
Case Concerning Vienna Convention on Consular Relations
(Para. v.
U. S.), 1998 I. C. J. 426 (Order
of Nov. 10);
LaGrand Case (F. R. G. v.
U.
S.), 2001 I. C. J. 466 (Judgment of June 27);
Avena,
supra. The problem may have considerable
ramifications, because foreign nationals are regularly subject to
state criminal justice systems. For example, in 2003, over 56,000
noncitizens were held in state prisons. Noncitizens accounted for
over 10% of the prison populations in California, New York, and
Arizona. U. S. Dept. of Justice, Bureau of Justice Statistics Bull.
p. 5 (rev. July 14, 2004), Prison and Jail Inmates at Midyear
2003, http://www.ojp.usdoj.gov/ bjs/pub/pdf/pjim03.pdf.
Noncompliance with our treaty obligations is
especially worrisome in capital cases. As of February 2005, 119
noncitizens from 31 nations were on state death row. Foreign
Nationals and the Death Penalty in the United States, Reported
Foreign Nationals Under Sentence of Death in the U. S.,
http://www.deathpenaltyinfo.org/ article.php?did=198&scid=31.
In
Avena, the ICJ determined that the United States had
breached its obligation to inform 51 Mexican nationals, all
sentenced to death in this country, of their right to consular
notification. Medellín is just one of them. 2004 I. C. J.
No. 128, ¶106. His case thus presents, and the Court in turn
avoids, questions that will inevitably recur.
José Ernesto Medellín told the officers who
arrested him in Texas that he was born in Laredo, Mexico. App. JA
15. He also told the Harris County Pretrial Services that he is not
an American citizen. App. to Pet. for Cert. 165a. Nonetheless,
Medellín was arrested, detained, tried, convicted, and sentenced to
death without ever being informed that he could contact the Mexican
consul. Mexican consular authorities only became aware of
Medellín’s predicament some six weeks after his conviction was
affirmed, when he wrote them a letter from Texas’ death row. Since
coming into contact with his consul, Medellín has maintained that
Texas authorities violated his rights under the Convention and has
sought (among other relief) an evidentiary hearing to determine
whether he was prejudiced by the violation.
First, Medellín filed a state application for
a writ of habeas corpus. The Texas trial court denied relief,
reasoning in relevant part:
“13.Based on the applicant’s lack
of objection at trial to the alleged failure to inform him of his
rights under the Vienna Convention, the applicant is procedurally
barred from presenting his habeas claim that the alleged violation
of the Vienna Convention violated his constitutional rights.
Hodge v.
State, 631 S. W. 2d 754, 757 (Tex.
Crim. App. 1982);
Williams v.
State, 549
S. W. 2d 183, 187 (Tex. Crim. App. 1977).
.....
“15.In the alternative, the applicant, as a
private individual, lacks standing to enforce the provisions of the
Vienna Convention.
Hinojosa v.
State, No. 72,932
(Tex. Crim. App. Oct. 27, 1999) (holding that treaties operate as
contracts among nations; thus, offended nation, not individual,
must seek redress for violation of sovereign interests).”
Id., at 55a–56a.
The Texas Court of Criminal Appeals affirmed.
Medellín next petitioned for habeas relief in
the United States District Court for the Southern District of
Texas. While that petition was pending, the ICJ announced its
interpretation of Article 36 in a case that Germany had brought
against the United States after Arizona failed to advise two German
capital defendants about consular notification.
LaGrand,
supra. Consistent with Medellín’s own arguments about the
Convention’s meaning, the ICJ decided in
LaGrand that the
treaty confers individual rights and requires that state procedural
default rules sometimes give way when foreign national defendants
raise Vienna Convention claims. See
id., at 490–491,
497–498. Medellín argued to the District Court that the ICJ’s
interpretation of Article 36 was definitive, persuasive, and should
control the resolution of his claim. Rejecting these and other
arguments, the District Court denied relief.
Medellín then sought to obtain a certificate
of appealability (COA) from the United States Court of Appeals for
the Fifth Circuit. See 28 U. S. C. §2253(c). A COA may issue
only if the applicant has demonstrated that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner [in the district
court] or that the issues presented were “ ‘adequate to
deserve encouragement to proceed further.” ’ ”
Slack v.
McDaniel,
529 U. S. 473, 484
(2000) (quoting
Barefoot v.
Estelle,
463 U. S. 880, 893, n. 4
(1983)).
Meanwhile, Mexico had initiated proceedings in
the ICJ against the United States on grounds that 54 Mexican
capital defendants, including Medellín, had been denied their
Vienna Convention rights. See
Avena,
supra. The
ICJ’s decision in
Avena issued while Medellín’s
application for a COA was pending. Repeating the construction it
had given to Article 36 in
LaGrand, the ICJ decided that
Medellín and 50 others were entitled to review and reconsideration
of their convictions and sentences because the United States,
through various individual States, had violated their Vienna
Convention rights.
Avena,
supra, ¶153. The Court
of Appeals noted the ICJ’s pronouncements in
LaGrand and
Avena, and nonetheless concluded that Medellín’s treaty
claim lacked the requisite merit for a COA.
We granted certiorari on two questions. First,
does
Avena have preclusive effect in our courts? Second,
if our courts are not bound to apply
Avena as a rule of
decision, must they give the ICJ’s decision effect for sake of
uniform treaty interpretation or comity? These questions refer to
substantial, debatable issues in Medellín’s Vienna Convention
claim. I would therefore vacate the denial of a COA and remand for
further proceedings.
II
A
At every step, the federal courts
must evaluate Medellín’s Vienna Convention claim through the
framework of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), which controls the process by which a state prisoner
may obtain federal habeas relief. And wherever the Convention,
which has been in continuous force since 1969, conflicts with this
subsequently enacted statute, the statute must govern.
Reid v.
Covert,
354 U. S. 1, 18 (1957)
(plurality opinion); see also
Whitney v.
Robertson,
124 U. S. 190, 194
(1888).
At the outset, Texas and the
United States argue that AEDPA’s §2253(c) precludes ruling for
Medellín no matter how meritorious his Vienna Convention claim may
be. According to §2253(c)(2), a COA may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” Texas maintains that prisoners may only
appeal district courts’ adverse decisions involving constitutional
rights—that Congress did not use the word “constitutional” in the
statute as shorthand for all of the federal claims traditionally
heard in habeas. But see 1 R. Hertz & J. Liebman, Federal
Habeas Corpus Practice and Procedure 448–449 (4th ed. 2001). See
also
Slack,
supra, at 483 (noting Congress’
substitution of “ ‘constitutional’ ” for
“ ‘federal’ ” in the standard for obtaining a certificate
of probable cause—the COA’s predecessor—without saying if the
change is meaningful).
Texas concedes that it raised this objection
for the first time in its merits brief to this Court. Tr. of Oral
Arg. 29. Normally this Court will not decide a question raised at
this stage. See
Taylor v.
Freeland & Kronz,
503 U. S. 638,
645–646 (1992). But Texas contends that this is a nonwaivable
jurisdictional objection. So we must start with the question of
whether it actually is an objection that cannot be waived. It is
true that the COA is jurisdictional in the sense that it is a
“gateway” device.
Miller-El v.
Cockrell,
537 U. S. 322, 337
(2003). By obliging applicants to make a threshold showing before
their cases are aired out on appeal, the COA serves an important
screening function and conserves the resources of appellate courts.
To that end, the existence of a COA is jurisdictional insofar as a
prisoner cannot appeal in habeas without one. See
id., at
335–336. Accordingly, a federal court must verify that that a COA
has issued before hearing the merits of a habeas appeal.
It does not follow, however, that courts must
raise and decide predicate arguments about the validity of a COA
independently, without prompting from the parties, even when
ordinary waiver rules would apply, as they must with true
jurisdictional arguments. If that were so, an appellate court,
presiding over an appeal after the district court had issued a COA,
would always be required to check that a “substantial showing” had
been made and a cognizable right asserted—even in the absence of
controversy between the parties. We have never imposed such a rule,
and it would undermine the efficiency of the COA process. Cf.
Young v.
United States, 124 F. 3d 794, 799
(CA7 1997). Predicate considerations for a COA—whether a
“substantial showing” has been made or a “constitutional right”
asserted—are not the sorts of considerations that remain open for
review throughout the entire case. Compare
Peguero v.
United States,
526 U. S. 23 (1999)
(considering whether a violation of Federal Rule of Criminal
Procedure 32(a)(2) provided a basis for collateral relief), with
Brief for United States in
Peguero v.
United
States, O. T. 1998, No. 97–9217, p. 6, n. 5 (arguing
that §2253(c) deprived the Court of jurisdiction because a
constitutional right was not at stake). Thus, because Texas did not
argue below that a treaty-based claim cannot support an application
for a COA, it cannot raise the argument now.
Texas also adverts to another AEDPA provision,
28 U. S. C. §2254(d), which it says is fatal to Medellín’s
treaty claim. The statute provides that a writ of habeas corpus
shall not issue on behalf of a person in state custody with respect
to any claim “adjudicated on the merits in State court proceedings
unless the adjudication of the claim—(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States.” Whether Medellín’s claim clears these
hurdles is an appropriate consideration for an appellate court
contemplating whether to grant a COA, and for this Court reviewing
the denial of a COA. See
Miller-El, 537 U. S., at 349–350
(Scalia, J., concurring) (“A circuit justice or judge must deny a
COA … if all reasonable jurists would conclude that a substantive
provision of the federal habeas statute bars relief”); see also
id., at 336.
The Texas court’s disposition of Medellín’s
Vienna Convention claim is not entitled to deference under
§2254(d), and thus should not constrain a final decision in federal
court about whether he deserves habeas relief. The Texas court gave
two reasons for dismissing the claim. First, it applied its
procedural default rule to Medellín’s assertion of right under the
Vienna Convention. See
supra, at 4. In so doing, it did
not adjudicate the merits of the relevant federal question—whether,
under Article 36(2), the treaty overrides state procedural default
rules. Second, the Texas court appears to have reasoned that
private individuals (as opposed to offended nations) can never
enforce any treaty in court. See
supra, at 4. This
reasoning is “contrary to” our precedents and, therefore, is not
entitled to deference in subsequent federal proceedings. “A
state-court decision will certainly be contrary to our clearly
established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases.”
Williams v.
Taylor,
529 U. S. 362, 405
(2000); see also
Brown v.
Payton,
ante,
at 7. The Texas court’s blanket rule plainly contradicts our
governing law, for it is axiomatic that, while treaties are
compacts between nations, “a treaty may also contain provisions
which confer certain rights upon the citizens or subjects of one of
the nations residing in the territorial limits of the other, which
partake of the nature of municipal law, and which are capable of
enforcement as between private parties in the courts of the
country.”
Head Money Cases,
112 U. S. 580, 598
(1884). The Texas court neither asked nor answered the right
question: whether an individual can bring a claim under
this particular treaty. Accordingly, any consideration of
Medellín’s Vienna Convention claim for habeas relief in federal
court—including his assertion that
Avena provides a
binding rule of decision—must proceed
de novo. See
Williams,
supra, at 406.
B
The Court catalogs a number of
other, nonjurisdictional questions that, in its view, justify
dismissing the case because they could preclude ultimate habeas
relief for Medellín.
Ante, at 4–5. Apparently the Court
agrees that it would be impossible or imprudent to decide these
questions today. It seems odd to me to leave them undecided and yet
to rely on them as reason to avoid the weighty questions that
are undeniably properly before us. Given the posture of
this case, our modest task is to decide only whether Medellín has
presented claims worthy of a COA, and the majority points to issues
outside the scope of that inquiry. Anyway, it is not our practice
generally, when remanding a case to the lower courts after
resolving discrete questions, to canvass all of the possible
permutations of what could happen before a final resolution. Thus,
while the Court points to questions that are, of course, important,
none ought to detain us here.
First, Texas and the United
States have made no mention of
Reed v.
Farley,
512 U. S. 339
(1994), and
Hill v.
United States,
368 U. S. 424 (1962),
depriving Medellín of an opportunity to discuss their applicability
to his case—a complicated question. Second, while Texas did argue
in its certiorari papers that Medellín had already received a
prejudice analysis in state habeas, see Brief in Opposition 14–16,
it abandoned this argument in its brief on the merits. See
United States v.
International Business Machines
Corp.,
517 U.
S. 843, 855, n. 3 (1996) (the Court does not address
abandoned arguments). Here, Texas argues that Medellín cannot show
prejudice in a
future proceeding, not that he has already
failed to show prejudice or that the state court thought (not
unreasonably) that the Vienna Convention had been satisfied by its
prejudice analysis. See Brief for Respondent 16–17. Moreover,
Medellín has maintained an unfulfilled request for an evidentiary
hearing about prejudice. The ICJ, for its part, appears to believe
that Medellín has yet to receive the prejudice analysis that the
Vienna Convention requires; otherwise, it would not have
ruled—after the state habeas proceedings had concluded—that the
United States must still provide “review and reconsideration” of
his sentence to determine if he suffered “actual prejudice.”
Avena, 2004 I. C. J. No. 128, ¶¶121–122, 153.
Third, the Court is correct to observe that, before obtaining
relief, Medellín would have to contend with
Teague v.
Lane,
489
U. S. 288 (1989). The Court of Appeals never discussed
Teague’s applicability to Medellín’s case. Whether
Teague bars relief for Medellín is itself a highly
debatable question that should be part of a proper COA analysis
upon remand.
III
“While a COA ruling is not the
occasion for a ruling on the merit of petitioner’s claim,”
Miller-El, 537 U. S., at 331, some assessment of
Medellín’s arguments is necessary to explain why the COA’s denial
should be vacated.
A
The Optional Protocol to the
Vienna Convention provides that “[d]isputes arising out of the
interpretation or application of the Convention shall lie within
the compulsory jurisdiction of the International Court of Justice.”
Optional Protocol Concerning the Compulsory Settlement of Disputes,
Apr. 18, 1961, Art. I [1970] 21 U. S. T. 326,
T. I. A. S. No. 6820 (hereinafter Optional
Protocol). The United States was party to the Optional Protocol
until recently. See Letter from Condoleezza Rice, Secretary of
State, to Kofi A. Annan, Secretary-General of the United Nations
(Mar. 7, 2005) (notifying the Secretary-General that the United
States hereby withdraws from the Optional Protocol). And the ICJ
decided
LaGrand and
Avena pursuant to the
Optional Protocol’s grant of authority. The first question on which
we granted certiorari asks whether American courts are now bound to
follow the ICJ’s decision in
Avena when deciding Vienna
Convention claims.[
Footnote
1]
If Medellín is right to say that
they must, then the District Court’s resolution of his Vienna
Convention claim is not merely debatable, but wrong in result and
in reasoning. In terms of result, the ICJ made clear that it would
be improper to dismiss Medellín’s claim, for once the United States
had committed “internationally wrongful acts,” the necessary
“remedy to make good these violations should consist in an
obligation on the United States to permit review and
reconsideration of [the 51 Mexican] nationals’ cases by the United
States courts.”
Avena, 2004 I. C. J. No. 128,
¶121. The ICJ’s reasoning is also irreconcilable with the District
Court’s. The ICJ specified that the Convention confers rights on
individual defendants, and that applying state procedural default
rules to prevent them from vindicating their rights violates the
treaty, for the treaty requires that its purposes be given
“ ‘full effect.’ ”
Id., ¶¶106, 113.
Medellín argues that once the United States
undertakes a substantive obligation (as it did in the Vienna
Convention), and at the same time undertakes to abide by the result
of a specified dispute resolution process (as it did by submitting
to the ICJ’s jurisdiction through the Optional Protocol), it is
bound by the rules generated by that process no less than it is by
the treaty that is the source of the substantive obligation. In
other words, because
Avena was decided on the back of a
self-executing treaty, see
infra, at 15, it must be given
effect in our domestic legal system just as the treaty itself must
be. Medellín asserts, at bottom, that
Avena, like a
treaty, has the status of supreme law of the land.
On the other hand, Texas and the United States
argue that the issue turns in large part on how to interpret
Article 94(1) of the United Nations Charter, which provides that
“[e]ach Member of the United Nations undertakes to comply with the
decision of the International Court of Justice in any case to which
it is a party.” 59 Stat. 1051. They maintain that the charter
imposes an international duty only on our political branches. A
contrary result could deprive the Executive of necessary discretion
in foreign relations, and may improperly displace this Court’s
responsibilities to an international body. For his part, Medellín
says that Article 94(1) cannot answer the question of whether,
under domestic law and the Supremacy Clause, our courts are bound
to comply with the international obligation reflected in
Avena.
The Court of Appeals passed on whether it was
bound by
Avena, and decided that the issue was not worthy
of a COA. In so doing, it noted some conflict between
Avena and our decision in
Breard v.
Greene,
523
U. S. 371, 376 (1998)
(per curiam). How to resolve
that conflict is a difficult question. Reasonable jurists can
vigorously disagree about whether and what legal effect ICJ
decisions have in our domestic courts, and about whether Medellín
can benefit from such effect in this posture. The Court of Appeals
should have granted a COA and given the issue further
consideration.
B
We also granted certiorari on a
second, alternative question that asks whether and what weight
American courts should give to
Avena, perhaps for sake of
uniform treaty interpretation, even if they are not bound to follow
the ICJ’s decision. That question can only be answered by holding
up the
Avena interpretation of the treaty against the
domestic court’s own conclusions, and then deciding how and to what
extent the two should be reconciled. See
Olympic Airways
v.
Husain,
540 U. S. 644, 660–661
(2004) (Scalia, J., dissenting);
Air France v.
Saks,
470
U. S. 392, 404 (1985). Accordingly, the second question
presented encompassed two other issues, both pressed and passed
upon below, that are themselves debatable and thus grounds for a
COA: whether the Vienna Convention creates judicially enforceable
rights and whether it sometimes trumps state procedural default
rules.[
Footnote 2]
This Court has remarked that
Article 36 of the Vienna Convention “arguably confers on an
individual the right to consular assistance following arrest.”
Breard,
supra, at 376. The United States
maintains, on the contrary, that Article 36 does not give foreign
nationals a judicially enforceable right to consular access. On
that theory, a detained foreign national may
never
complain in court—even in the course of a trial or on direct
review—about a state’s failure to “inform the person concerned
without delay of his rights under” Article 36. 21 U. S. T., at
101. The complainant must be the sending state, and any remedy is
political, diplomatic, or between the states in international
law.
When called upon to interpret a treaty in a
given case or controversy, we give considerable weight to the
Executive Branch’s understanding of our treaty obligations. See
Kolovrat v.
Oregon,
366 U. S. 187, 194
(1961);
Charlton v.
Kelly,
229 U. S. 447, 468
(1913). But a treaty’s meaning is not beyond debate once the
Executive has interpreted it. Cf.,
e.g.,
Chan v.
Korean Air Lines, Ltd., 490 U. S. 122, 136
(1989) (Brennan, J., concurring in judgment) (observing that the
Court was rejecting a view of the Warsaw Convention that had
consistently been adopted by the Executive Branch and had been
pressed by the United States in that case);
Perkins v.
Elg,
307 U.
S. 325, 328, 337–342 (1939) (declining to adopt Executive’s
treaty interpretation);
Johnson v.
Browne,
205 U. S. 309,
319–321 (1907) (same);
De Lima v.
Bidwell,
182 U. S. 1, 181,
194–199 (1901) (same).
Article 36 of the Vienna Convention on
Consular Relations is, as the United States recognizes, a
self-executing treaty. Brief for United States as
Amicus
Curiae 26. Chief Justice Marshall explained that a
self-executing treaty is domestic law. It “operates of itself,” as
“a rule for the Court,” “equivalent to an act of the legislature.”
Foster v.
Neilson, 2 Pet. 253, 314 (1829).
Because the Convention is self-executing, then, its guarantees are
susceptible to judicial enforcement just as the provisions of a
statute would be. See
Head Money Cases, 112 U. S., at
598–599 (“A treaty, then, is a law of the land as an act of
Congress is, whenever its provisions prescribe a rule by which the
rights of the private citizen or subject may be determined. And
when such rights are of a nature to be enforced in a court of
justice, that court resorts to the treaty for a rule of decision
for the case before it as it would to a statute”); see generally L.
Henkin, Foreign Affairs and the United States Constitution 206–209
(2d ed. 1996).
To ascertain whether Article 36 confers a
right on individuals, we first look to the treaty’s text as we
would with a statute’s.
United States v.
Alvarez-Machain,
504 U. S. 655, 663
(1992);
Air France v.
Saks, 470 U. S., at 397.
Article 36(1)(b) entails three different obligations for signatory
host countries. Their competent authorities shall (1) inform the
consul of its nationals’ detentions, (2) forward communication from
a detained national to his consulate, and (3) “inform the person
concerned without delay of
his rights under this
sub-paragraph.” 21 U. S. T., at 101 (emphasis added). Of
these, the third exclusively concerns the detained individual, and
it is the only obligation expressed in the language of rights. If
Article 36(1) conferred no rights on the detained individual, its
command to “inform” the detainee of “his rights” might be
meaningless. Other provisions in the treaty appear to refer back to
individual rights. See Art. 36(1)(a),
ibid.; Art. 36(2),
ibid.
To be sure, the questions of whether a treaty
is self-executing and whether it creates private rights and
remedies are analytically distinct. If Article 36(1)(b) imposed
only two obligations on signatory countries—to notify the consul
and forward correspondence—then Medellín could not invoke the
treaty as a source of personal rights by virtue of its
self-executing character. But the treaty goes further—imposing an
obligation to inform the individual of his rights in the treaty.
And if a statute were to provide, for example, that arresting
authorities “shall inform a detained person without delay of his
right to counsel,” I question whether more would be required before
a defendant could invoke that statute to complain in court if he
had not been so informed.
This Court has repeatedly enforced
treaty-based rights of individual foreigners, allowing them to
assert claims arising from various treaties. These treaties, often
regarding reciprocity in commerce and navigation, do not share any
special magic words. Their rights-conferring language is arguably
no clearer than the Vienna Convention’s is, and they do not specify
judicial enforcement. See,
e.g.,
Asakura v.
Seattle,
265 U. S. 332, 340
(1924) (allowing Japanese national to bring a claim under a United
States-Japan treaty requiring that “ ‘citizens or subjects of
each of the [two countries] shall have liberty … to carry on
trade’ ” in the other’s territory, and holding that a local
licensing ordinance for pawnbrokers could not be applied to the
Japanese petitioner without violating the treaty’s guarantee);
Kolovrat, supra, at 192, and n. 6 (sustaining
Yugoslavians’ claim against enforcement of Oregon inheritance law
limiting their right to inherit, when United States-Serbia Treaty
promised that “ ‘[i]n all that concerns the right of
acquiring, possessing or disposing of every kind of property …
citizens of [each country in the other] shall enjoy the rights
which the respective laws grant … in each of these states to the
subjects of the most favored nation’ ”).
Likewise, the United States acknowledges with
approval that other provisions of the Vienna Convention, which
relate to consular privileges and immunities, have been the source
of judicially enforced individual rights. See Brief for United
States as
Amicus Curiae 26, n. 7 (citing
Risk v.
Halvorsen, 936 F. 2d 393, 397 (CA9 1991) (deciding
whether Article 43 of the Vienna Convention defeated jurisdiction
under 28 U. S. C. §1351 over defendant consular officials),
and
Gerritsen v.
de la Madrid Hurtado, 819
F. 2d 1511, 1515–1516 (CA9 1997) (same)). Although Article 43
is phrased in terms of courts’ jurisdiction, its violations could
theoretically also be vindicated exclusively in political and
diplomatic processes, but have not been. See Art. 43(1), 21 U.
S. T., at 104 (“Consular officers and consular employees shall
not be amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in respect of
acts performed in the exercise of consular functions”); see also
Kolovrat,
supra, at 193;
Hauenstein v.
Lynham,
100
U. S. 483, 487 (1880).
There are plausible arguments for the
Government’s construction of Article 36. See generally
Choctaw
Nation v.
United States,
318 U. S. 423, 431–432
(1943) (looking to extrinsic sources for treaty interpretation).
The preamble to the Vienna Convention, for example, states that
“the purpose of such privileges and immunities [contained in the
treaty] is not to benefit individuals but to ensure the efficient
performance of functions by consular posts on behalf of their
respective States.” 21 U. S. T., at 79. Moreover, State
Department and congressional statements contemporaneous with the
treaty’s ratification say or indicate that the Convention would not
require significant departures from existing practice. See
United States v.
Li, 206 F. 3d 56, 64–65
(CA1 2000); but see
id., at 73–75 (Torruella, C. J.,
concurring in part and dissenting in part). The United States
interprets such statements to mean that the political branches did
not contemplate a role for the treaty in ordinary criminal
proceedings. See Brief for United States as
Amicus Curiae
21–22. The Government also asserts that the State Department’s
previous litigation behavior in Article 36 cases is consistent with
the Executive’s treaty interpretation presented here.
Id.,
at 22–23; see also
Li,
supra, at 64. I would
allow fuller consideration of this issue upon the granting of a
COA.
Of course, even if the Convention does confer
individual rights, there remains the question of whether such
rights can be forfeited according to state procedural default
rules. Article 36(2) of the treaty provides: “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.” 21 U. S. T., at
101. Medellín contends that this provision requires that state
procedural default rules sometimes be set aside so that the treaty
can be given “full effect.”
Ibid. In
Breard, in
the course of denying a stay of imminent execution and accompanying
petitions, we concluded that the petitioner had defaulted his
Article 36 claim by failing to raise it in state court prior to
seeking collateral relief in federal court. 523 U. S., at 375–376.
Subsequently in
Avena, as explained above, the
International Court of Justice interpreted Article 36(2)
differently.
Avena, 2004 I. C. J. No. 128,
¶¶112–113. In the past the Court has revisited its interpretation
of a treaty when new international law has come to light. See
United States v.
Percheman, 7 Pet. 51, 89 (1833).
Even if
Avena is not itself a binding rule of decision in
this case, it may at least be occasion to return to the question of
Article 36(2)’s implications for procedural default.
Again, I would not decide that question today.
All that is required of Medellín now is to show that his case is
debatable. He has done at least that much. Because of the COA
posture, we cannot, and I would not, construe Article 36
definitively here. I would conclude only that Medellín’s arguments
about the treaty themselves warrant a COA.
IV
For the reasons explained, I
would vacate the Court of Appeals’ decision to deny Medellín a COA
with which to proceed, and remand for further proceedings. After we
granted certiorari in this case, the President informed his
Attorney General that the United States would discharge its
obligations under the
Avena judgment “by having State
courts give effect to the decision.” George W. Bush, Memorandum for
the Attorney General (Feb. 28, 2005), App. 2 to Brief for United
States as
Amicus Curiae 9a. Medellín has since filed a
successive petition in state court. It is possible that the Texas
court will grant him relief on the basis of the President’s
memorandum. On remand, the Court of Appeals for the Fifth Circuit
may have wished to consider that possibility when scheduling
further federal proceedings, and to hold the case on its docket
until Medellín’s successive petition was resolved in state court.
See
Landis v.
North American Co.,
299 U. S. 248, 254
(1936).
Footnote 1
The Court suggests that Medellín’s reliance
on
Avena may be a distinct claim, and that he may not have
properly exhausted it in state court.
Ante, at 6. But
Medellín has maintained a single claim throughout the state and
federal habeas proceedings—that Texas violated his rights under the
Vienna Convention and that he is entitled to a remedy for that
violation. Pointing to
Avena as a rule of decision for the
adjudication of that claim is akin to pointing to a new decision
from this Court to bolster an existent claim for relief. In neither
case has petitioner made a new claim as opposed to a new argument
supporting his pending claim. Cf.
Yee v.
Escondido,
503 U. S. 519, 534–535
(1992).
Footnote 2
Justice Ginsburg gives an unduly narrow
construction to the second question presented. It asks: “should a
court in the United States give effect to the judgments in
Avena and
LaGrand”? Brief for Petitioner i. This
question cannot be read to ask for “ ‘effect’ ” to be
given in the strict sense of the law of judgments,
ante,
at 4-5 (Ginsburg, J., concurring): Because Medellín was not a
beneficiary of the judgment in
LaGrand Case
(F. R. G. v.
U. S./em>.), 2001
I. C. J. 466 (Judgment of June 27), a case between
Germany and the United States, the judgment in
LaGrand
cannot be enforced as to Medellín. What he asks is that American
courts reach the same interpretation of the Vienna Convention as
did the body charged with adjudicating international disputes
arising out of the Convention—in part for the sake of “uniform
treaty interpretation.” Brief for Petitioner i. This understanding
of the second question takes account, as it should, of the fact
that the correct, independent interpretation of the Vienna
Convention was the central question in the habeas proceedings
below. Moreover, it is consistent with the practical way we decide
what is “fairly included” in a question presented. See this Court’s
Rule 14.1(a);
City of Sherrill v.
Oneida Indian Nation
of N. Y.,
ante, at 13, n. 6;
Ballard v.
Commissioner,
ante, at 4,
n. 2.
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