Cases of the Serbian Loans

Where there is a conflict between international obligations and national law, the international rule prevails. Under UN General Assembly 1949 and Article 13, every state has the duty to carry out its obligations arising from treaties and other sources of international law.

On Vienna Convention on the Law of Treaties, article 27 states that a party may not use the provisions of its national law as excuse for its failure to perform a treaty. Article 46 permits a state to argue that its consent to a treaty was cancel at the time was a violation of internal law. In LaGrand case the International Court of Justice consider the consequences if the US failure to give timely notification to two German nationals of their right of protection under Article 36 of the Vienna Convention. In this case the court held that an apology for any future violation of Article 36 would be enough.

1All national legal systems accept customary international law as a part of National Law. In 1999 the Appeal Court of Scots held that a rule of customary international law is a rule of Scots law. Lord Denning in the case of Trendex Ltd stated that when international law changed the English court has to apply the new rules of international law.

National courts do not only have to decide whether to apply a rule of international law but also to determine the meaning and the effect of the international rule in the domestic law. In R v Jones concerning a preventing crime and although a crime of aggression existed in international law, this crime did not follow that ‘’aggression’’ was an offence in domestic law.

The question, if international law applies directly to national law was clarified by European Court of Justice. In the case of US V Alvarez in 1992, a national of Mexico, was abducted in an operation for which US DEA was responsible. Supreme Court accepted that the abduction violated international law principles.

On 2008 the United States Supreme Court concluded for the case of Medellin v. Texas, the case which is discussed and analyzed below.

2Medellin V Texas facts:

Jose Medellin, a Mexican national, was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that the state had violated his rights under the Vienna Convention, a treaty to which the United States is a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate. After his petition was ultimately dismissed by the Supreme Court, Medellin’s case returned to the Texas Court of Criminal Appeals. Medellin’s argument rested in part on a ruling of the International Court of Justice holding that the U.S. had violated the Vienna Convention rights of 51 Mexican nationals and that their convictions must be reconsidered. Medellin argued that the Vienna Convention granted him an individual right that state courts must respect, a possibility left open by the Supreme Court’s 2006 decision in Sanchez-Llamas v. Oregon. Medellin also cited a memorandum from the President of the United States that instructed state courts to comply with the ICJ’s rulings by rehearing the cases. Medellin argued that the Constitution gives the President broad power to ensure that treaties are enforced, and that this power extends to the treatment of treaties in state court proceedings.

The Texas Court of Criminal Appeals rejected each of Medellin’s arguments and dismissed his petition. The court interpreted Sanchez-Llamas as standing for the principle that rulings of the ICJ are not binding on state courts. The Texas court stood by its position that allowing Medellin to raise the Vienna Convention issue after his trial would violate state procedural rules, and that those rules were not supplanted by the Convention. The President had no authority to order the enforcement in state court of an ICJ ruling, because that would imply a law-making power not allocated to him by the Constitution.

The International Court of Justice, located in the Hague, is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member states. In the Case Concerning Avena and Other Mexican Nationals, that tribunal considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States. This was so regardless of any forfeiture of the right to raise Vienna Convention claims because of a failure to comply with generally applicable state rules governing challenges to criminal convictions.

Petitioner José Ernesto Medelln, who had been convicted and sentenced in Texas state court for murder, is one of the 51 Mexican nationals named in the Avena decision. Relying on the ICJ’s decision and the President’s Memorandum, Medelln filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medelln’s application as an abuse of the writ under state law, given Medelln’s failure to raise his Vienna Convention claim in a timely manner under state law. We granted certiorari to decide two questions. First, is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the United States?

Second, does the President’s Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules?

We conclude that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions.

3Justice Stevens, concurring in the judgment:

There is a great deal of wisdom in Justice Breyer’s dissent. I agree that the text and history of the Supremacy Clause, as well as this Court’s treaty-related cases, do not support a presumption against self-execution. I also endorse the proposition that the Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, “is itself self-executing and judicially enforceable.’’ Moreover, I think this case presents a closer question than the Court’s opinion allows. In the end, however, I am persuaded that the relevant treaties do not authorize this Court to enforce the judgment of the International Court of Justice in Case Concerning Avena and Other Mexican Nationals. The source of the United States’ obligation to comply with judgments of the ICJ is found in Article 94(1) of the United Nations Charter, which was ratified in 1945. Article 94(1) provides that “each Member of the United Nations undertakes to comply with the decision of the ICJ in any case to which it is a party. In my view, the words “undertakes to comply” while not the model of either a self-executing or a non-self-executing commitment are most naturally read as a promise to take additional steps to enforce ICJ judgments.  Unlike the text of some other treaties, the terms of the United Nations Charter do not necessarily incorporate international judgments into domestic law. Moreover, Congress has passed implementing legislation to ensure the enforcement of other international judgments, even when the operative treaty provisions use far more mandatory language than “undertakes to comply.”  On the other hand Article 94(1) does not contain the kind of unambiguous language foreclosing self-execution that is found in other treaties. The obligation to undertake to comply with ICJ decisions is more consistent with self-execution than, for example, an obligation to enact legislation. e.g., International Plant Protection Convention, Art. I(’’The contracting Governments undertake to adopt the legislative, technical and administrative measures specified in this Convention”). Furthermore, whereas the Senate has issued declarations of non-self-execution when ratifying some treaties, it did not do so with respect to the United Nations Charter. In an annex to the United Nations Charter, the Statute of the International Court of Justice states that a decision of the ICJ “has no binding force except between the parties and in respect of that particular case. Under the express terms of the Supremacy Clause, the United States’ obligation to “undertake to comply” with the ICJ’s decision falls on each of the States as well as the Federal Government. One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honour and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that by failing to provide consular notice in accordance with the Vienna Convention ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another. The decision in Avena merely obligates the United States to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the affected Mexican nationals, with a view to ascertaining whether the failure to provide proper notice to consular officials caused actual prejudice to the defendant in the process of administration of criminal justice. The cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced José Ernesto Medellin. It is a cost that the State of Oklahoma unhesitatingly assumed. On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The entire Court and the President agree that breach will jeopardize the United States plainly compelling interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.

4THE VIENNA CONVENTION ON CONSULAR RELATIONS OF 1963

The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent countries. A consul normally operates out of an embassy in another country, and performs two essential functions: (a) protecting in the host country the interests of their countrymen, and (b) furthering the commercial and economic relations between the two countries. While a consul is not a diplomat, they work out of the same premises, and under this treaty they are afforded most of the same privileges, including a variation of diplomatic immunity called consular immunity. The treaty has been ratified by 172 countries.

The most important are:

Article 5. Thirteen functions of a consul are listed, including protecting in the receiving state the interests of the sending state and its nationals, as well as developing the commercial, economic, cultural, and scientific relations between the two countries.

Article 23. The host nation may at any time and for any reason declare a particular member of the consular staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their consular immunity.

Article 31. The host nation may not enter the consular premises, and must protect the premises from intrusion or damage.

Article 35. Freedom of communication between the consul and their home country must be preserved. A consular bag must never be opened. A consular courier must never be detained.

Article 36 is very important, COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE. 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending. State shall have the same freedom with respect to communication with and access to consular officers of the sending State; if 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; consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. 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.

I find the Medellin case extremely complicated. In this case we are dealing with the the U.S’s American interpretation about how their national system interacts with International Law. Coming from a roman law based system, the way the U.S. Supreme Court behaved towards this specific case surprises and at the same time confuses me. The reasons given for the decisions taken sound nothing but weak, sought and premeditated in my ears. I want to believe that this impression is based in lack of knowledge. Thus I am trying to find in depth documentation about this case, although it pretty much seems that it may be as simple as it looks.