(Via Jacob Katz Cogan at International Law Reporter)

It’s received almost no coverage in the US, but Representative Howard L. Berman (D-California) has presented a bill to complement the International Court of Justice’s decision in Mexico v. United States of America – Case Concerning Avena and Other Mexican Nationals (Avena), and the subsequent decision on interim measures pending the interpretation of Avena, released 16 July this year.

Avena

The Avena decision revolved around several Mexican nationals in prison or awaiting execution in the US. Mexico brought a complaint to the ICJ, alleging that these Mexican nationals had been denied their rights under the Vienna Convention on Consular Relations; namely, that they had not not been given timely access to Mexican consular officials.

On 5 February 2003, the ICJ ordered that several prisoners awaiting execution not be executed until the Court had reached a final decision. On 31 March 2004, the Court rendered its decision, that the US was bound by the Convention to review and reconsider the cases. Of particular concern was the “procedural default rule”, which limited the recourse to federal-level appeal of the criminal cases.

This caused the US to withdraw from the Optional Protocol to the Convention in March 2005, meaning that it can no longer be sued under the Convention without its own permission.

Medellin

Running parallel to this was the case of José Medellin (Medellín v. Texas, 552 U.S. ___ (2008)), a Mexican national sentenced to death in 1997, without benefit of consular assistance. The US Supreme Court decision in this case held that:

• Treaties are not binding on domestic law until implemented as domestic law
• Being a state party to the UN did not require the US to undertake to implement all UN decisions
• …only Security Council decisions
• …and that distinction is meaningless, since the US has veto in the Security Council
• A Memorandum of President G.W. Bush from February 2005 about the review and reconsideration of the Mexican cases was not binding on state courts
• Therefore, Medellin could not appeal in the basis of the breach of his consular access rights.

Avena, Take Two

Following the Medellín v. Texas decision, and the scheduling of Medllin’s execution for August 2008, Mexico re-applied to the ICJ for both provisional measures (that no one be executed until the question was resolved) and an interpretation of the original decision.

The Court decided that:

• Notwithstanding the US withdrawal from the Optional Protocol, it still had jurisdiction in this case given that it was an interpretation of the previous case
• Allowing the execution of any Mexican nationals before the resolution of the dispute would do irreparable harm to Mexico’s right to help that individual, and thus provisional measures were called for
• Although the US federal government had been trying to convince the states holding the individuals to comply with the Avena decision, that effort was not sufficient to discharge the obligation to comply

The key operational paragraph:

The United States of America shall take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the Request for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)

Of course, it remains to be seen what the ICJ will say in the merits, and given the Medllin decision, it seems likely that whatever the outcome, the US will fail to comply. Any federal state has double trouble when it comes to implementation of federal law, when the powers are divided such that the political subdivisions have sole domain over some areas of law, but only the state as a whole can make treaties. This has cropped up in Canada in the context of labour and telecommunications treaties; luckily for us (and arrested foreign nationals) criminal law is federal here.

Avena Case Implementation Act of 2008

Regardless of the eventual outcome, it’s encouraging to see US lawmakers try back-door approached to implementing Avena, such as Rep. Berman’s bill, which would create a civil cause of action for those harmed by the US’s violation of the Convention:

To create a civil action to provide judicial remedies to carry out certain treaty obligations of the United States under the Vienna Convention on Consular Relations and the Optional Protocol to the Vienna Convention on Consular Relations.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Avena Case Implementation Act of 2008’’.

SEC. 2. JUDICIAL REMEDY.

(a) CIVIL ACTION.—Any person whose rights are infringed by a violation by any nonforeign governmental authority of article 36 of the Vienna Convention on Consular Relations may in a civil action obtain appropriate relief.

(b) NATURE OF RELIEF.—Appropriate relief for the purposes of this section means—

(1) any declaratory or equitable relief necessary to secure the rights; and

(2) in any case where the plaintiff is convicted of a criminal offense where the violation occurs during and in relation to the investigation or prosecution of that offense, any relief required to remedy the harm done by the violation, including the vitiation of the conviction or sentence where appropriate.

(c) APPLICATION.—This Act applies with respect to violations occurring before, on, or after the date of the enactment of this Act.