Amicus Curiae Brief — Medellin v. Texas

~~ Supreme Court, 0-5

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MAR 2° 200’

No. 06-984 |_ OFFICE OF THE CLEHK

IN THE

Supreme Court of the United States

JOSE ERNESTO MEDELLIN,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

to the Court of Criminal Appeals of Texas

BRIEF AMICUS CURIAE OF THE GOVERNMENT OF

THE UNITED MEXICAN STATES IN SUPPORT OF

PETITIONER JOSE ERNESTO MEDELLIN

SANDRA L. BABCOCK

BLUHM LEGAL CLINIC

NORTHWESTERN LAW SCHOOL

357 LE. Chicago Avenue

Chicago, IL 60611

(312) 503-0114

Counsel of Record for

Amicus Curiae

TABLE OF CONTENTS

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Re Ce a crtictesennnrennconisinvsisonicscinniennnneied il

INTEREST OF AMICUS CURIAE.............:.ccscccsssscsscssssoseees l

REASONS FOR GRANTING THE PETITION ............0004 4

I. Mexico and the United States Agreed by Treaty to

II.

Il.

Submit Disputes About the Vienna Convention to the

International Court of Justice for Binding Resolution.

sccocidenlipidiaia alicia eoiah iekceiae kalccaecd es, So ec a ae 4

This Court Should Not Leave Unreviewed a State

Court Decision that Violates the United States’s

eT GENIN: sinsassniccscoccntnceniidisdnaientionnnniniessen 6

A. The United States Must Provide Review and

Reconsideration of Mr. Medellin’s Conviction

and Sentence as Required by Avena. ............. 6

B. Failure to Review This Case Could Have a

Negative Impact on Bilateral Relations

Between the United States and Mexico........ 11

The Court Should Grant Review of This Case Now in

Order to Protect Human Lives and Prevent

Irreparable Damage To U.S.-Mexico Relations....... 14

TABLE OF AUTHORITIES

FEDERAL CASES

La Abra Silver Mining Co. v. United States, 175 U.S. 423

STUTTED ssnsssidesiteihdapashipandactatianinapepenenanantianninicipienmianandioneiinn 10

Hines v. Davidowitz, 312 U.S. 52 (1941) ......ccccccceesteeeeeeeeee 16

STATE CASES

Ex parte Medellin, No. AP-75207, 2006 WL 3302639 (Tex.

ee NII GUIDE” Wid GIT asniaesttinnennnesonssenensecdeniienniiened 4,9

Torres v. State, 2005 OK CR 17, 120 P.3d 1184 (Okla. Crim.

Fy Fae inictaiccssnaienenicsshinitmnaisateninnnnaianiiamenineinnnts 16

INTERNATIONAL CASES

Avena and Other Mexican Nationals (Mex. v. U.S.), 2004

ee OT passim

Metalclad Corp. v. United Mexican States, 1CSID Case No.

ARB(AF)/97/1 (ICSID AF) (Aug. 20, 2000)..............0 14

TREATIES

Air Transport Agreement Between the Government of the

United States of America and the Government of the

United Mexican States, Aug. 15, 1960, U.S.-Mex., 12

SARNIA ROR enon SO oer arora ee 15

Convention for the Arbitration of the Chamizal Case, June

eg Ey cs, Be I, BID cccdtecnctdssccsbuiniscitbinsiieniia 13

Convention for the Avoidance of Double Taxation and the

Prevention of Fiscal Evasion with Respect to Taxes on

il

Income, Sept. 18, 1992, U.S.-Mex., 1992 U.S.T. LEXIS

Sopra asssiatltlaiatebiiticebdeabtiethiaeaiaia ata atistentigatiatidaiaanlienieh datas eghareaaliaaia 15

Convention on the Prohibition of the Development,

Production, Stockpiling and Use of Chemical Weapons

and on their Destruction, opened for signature Jan. 13,

as Se as i strcticsnsntiisincicessnuednsiamnioneemtieannnnnenes 15

International Convention for the Prevention of Pollution of

the Sea by Oil, opened for signature May 12, 1954, 12

a ia a 15

North American Free Trade Agreement, Dec. 17, 1992, U.S.-

Can.-Mex., 32 1.L.M. 289-397, 605-779 ..........:ccccceesseeeeees 14

Optional Protocol Concerning the Compulsory Settlement of

Disputes, opened for signature Apr. 24, 1963, 21 U.S.T.

i ccceninansipniiisidininiepiaianiaemmasessciaaaiapinaaaninianiieaie passim

Statute of the International Court of Justice, opened for

signature June 26, 1945, T.S. No. 993, 59 Stat. 1055........ 7

United Nations Charter, art. 94, opened for signature June

2B, DES, TB. Ne. DOS, FP Beak. UGGS nnccccccvscorcssccoessessooeees 6

United Nations Convention Against Illicit Traffic in Narcotic

Drugs and Psychotropic Substances, opened for signature

Dec. 20, 1988, 1988 U.S.T. LEXIS 194.0... eeeeeeeees 15

Universal Copyright Convention, opened for signature Sept.

i Se AI UL-+ SETPIIED schscrnscicceieicnssisinuinisiionimmssiennsisiviidlinnicioniitiin 15

lil

OTHER AUTHORITIES

A.H. FELLER, THE MEXICAN CLAIMS COMMISSIONS (1935) 13

ALAN C. LAMBORN & STEPHEN P. MUMME, STATECRAFT,

DOMESTIC POLITICS, AND FOREIGN POLICY MAKING: THE EL

CHAMIZAL DISPUTE (1988).........cccccssssosocssecesssseseosesers 13,14

ANTONIO GOMEZ ROBLEDO, MEXICO Y EL ARBITRAJE

a II iciciicrasesiisiacndstibbenesinineraséinnseninentasemneda 14

Application Instituting Proceedings, (Mex. v. U.S.), No. 128

(Avena and Other Mexican Nationals) (1.C.J. Jan. 9, 2003)

Brief Amicus Curiae of the United Mexican States in Support

of José Ernesto Medellin, 2006 WL 3302639 (Tex. Crim.

App. Nov. 15, 2006) (No. AP-75207)........cscceseserseeereeees 4

Counter-Memorial of the United States of America (Mex. v.

U.S.), 2003 I.C.J. Pleadings (Avena and Other Mexican

PE ITN, i, CRUE cneniseusnttnintepentasibenninesennsecenestioe 5,11

Eye on Investors, Mexico Pays U.S. Company, N. Y.

es ls Sis I BO I occccccnerehiorsedemommmenindisipesetantoiins 15

INTERNATIONAL COURT OF JUSTICE, IC} HANDBOOK 75 (Sth

ST TIT ceecinliieiedid ca deieandaltesca denihiccauiaaniiahdiadebaaioeiabenesmbonidabieaniinis 10

Mernorial of Mex’ U.S.), 2003 1.C.J. Pleadings

(Avena and Othe: ..:e%icw. Nationals) (June 20, 2003)...11

Michael Fleishman, Note, Reciprocity Unmasked: The Role

of the Mexican Government in Defense of Its Foreign

Nationals in United States Death Penalty Cases, 20 ARIZ.

Sg © eB Le ) ee 5

iV

Petition for Writ of Certiorari, Medellin v. Texas, __ US.

___ (Jan. 16, 2007) (No. 06-984)... eecessecerserreseserereees 8

President’s Message to the Senate Transmitting the

Convention for the Solution of the Problem of the

Chamizal, 88th Cong. 1-3 (1963)........ccccesseeesseereeerenesees 14

SHELDON B. LISS, A CENTURY OF DISAGREEMENT: THE

CHAREIZAL, DEBPUTE (TDG) .ncccccscssccoccsssccccosesecossesevonssosoooees 13

STATUS OF MULTILATERAL TREATIES DEPOSITED WITH THE

SECRETARY-GENERAL, U.N. TREATY COLLECTION (available

at

http://untreaty.un.org/ENGLISH/bible/englishinternetbible/p

artI/chapterlII/treaty3 1 .asp ) (last visited Mar. 5, 2007)........ 4

Transcript of the President’s News Conference on Foreign

and Domestic Matters, N.Y. TIMES, July 6, 1962, at A8 ...14

INTEREST OF AMICUS CURIAE'

By signing and ratifying the Vienna Convention on

Consular Relations, opened for signature Apr. 24, 1963, 21

U.S.T. 77, the Governments of Mexico and the United States

made commitments to each other, to their other treaty

partners, and to the rule of law. Specifically, the United

States promised that detained Mexican nationals would be

promptly notified of their right to seek consular assistance,

and that Mexico would be permitted to provide consular

protection to those nationals. In turn, Mexico promised to

extend those same rights to the United States and to its

nationals detained in Mexico. And by signing and ratifying

the Optional Protocol to the Vienna Convention, the

Government of Mexico and the Government of the United

States agreed that irreconcilable disputes over the

interpretation and application of the treaty’s provisions

would be resolved by the International Court of Justice

(“ICS”). Optional Protoce! Concerning the Compulsory

Settlement of Disputes, art. 1, opened for signature Apr. 24,

1963, 21 U.S.T. 325.

On March 31, 2004, the ICJ rendered its judgment in

Avena and Other Mexican Nationals. Avena and Other

Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar.

31)(hereinafter “Avena Judgment”]. The ICJ held that the

United States had violated the rights of Mexico and of Mr.

Medellin under Article 36 of the Vienna Convention. As a

remedy for those violations, the IC) held that the United

States must provide Mr. Medellin with meaningful review

No person or entity other than the Government of Mexico made

a monetary contribution to the preparation or submission of this brief.

Petitioner and Respondent have consented to the filing of this amicus.

and reconsideration of his conviction and sentence that gives

full effect to the purposes of Article 36.

On February 28, 2005, President George W. Bush

determined that the United States would discharge its

international legal obligations under the Avena Judgment by

having state courts give effect to the ICJ’s decision. Mexico

welcomed the President’s Determination as a substantial step

toward fulfilling the United States’s obligations to Mexico

and the International Court of Justice. Accordingly, Mexico

filed an amicus brief in the Texas Court of Criminal Appeals

in support of Mr. Medellin’s argument that the President’s

Determination constituted binding federal law. Brief Amicus

Curiae of the United Mexican States in Support of José

Ernesto Medellin, 2006 WL 3302639 (Tex. Crim. App. Nov.

15, 2006) (No. AP-75207).

On November 15, 2006, the Texas Court of Criminal

Appeals held that neither the Avena Judgment nor the

President’s Determination constituted binding federal law,

brushing aside the legal obligation of the United States to

abide by the remedial decree entered against it in an

international adjudicative proceeding that it had agreed by

treaty to accept as binding. Ex parte Medellin, No. AP-

75207, 2006 WL 3302639, at *7, *24 (Tex. Crim. App. Nov.

15, 2006.

Mexico has a direct interest in the United States’s

compliance with the Avena Judgment. The very purpose of

Article 36 of the Vienna Convention is to permit the parties

to that Convention — including Mexico, the United States,

and 169° other countries — to protect the interests of their

> STATUS OF MULTILATERAL TREATIES DEPOSITED WITH THE

SECRETARY-GENERAL, U.N. TREATY COLLECTION (available at

>

citizens when they are arrested or otherwise detained while

living, working, or traveling abroad. Since well before the

trial of Mr. Medellin, Mexico has provided critical resources

to aid in the defense of its nationals facing the death penalty.

See, e.g., Michael Fleishman, Note, Reciprocity Unmasked:

The Role of the Mexican Givernment in Defense of Its

Foreign Nationals in United States Death Penalty Cases, 20

Ariz. J. INT'L & Comp. LAw 359, 366-374 (2003). Consular

officials provide funding for experts and investigators, assist

in gathering documents relevant to the penalty phase defense,

assist in conducting mitigation investigations, act as a liaison

with Spanish-speaking family members, and most

importantly, ensure that Mexican nationals are represented by

competent and experienced defense counsel. Not

surprisingly, the United States government acknowledges

that the consular assistance Mexico provides its nationals in

capital cases is “extraordinary.” 1 Counter-Memorial of the

United States of America (Mex. v. U.S.), 2003 LC.J.

Pleadings (Avena and Other Mexican Nationals) 186 (Nov.

3, 2003).

Mexico respectfully requests that this Court grant

certiorari in order to ensure that the United States fulfills its

international treaty obligations and grants Mr. Medellin the

remedy to which he is entitled.

http.//untreaty un.org/ENGLISH/bible/englishinternetbible/partI/chapter!!

L/treaty31.asp ) (last visited Mar. 5, 2007).

3

REASONS FOR GRANTING THE “ETITION

I. Mexico and the United States Agreed by Treaty to

Submit Disputes About the Vienna Convention to

the International Court of Justice for Binding

Resolution.

When the United States and Mexico ratified the

Vienna Convention on Consular Relations and its Optional

Protocol, they exchanged solemn promises to abide by the

terms of those instruments. Article | of the Optional

Protocol provides:

Disputes arising out of the interpretation or

application of the Convention shall lie within the

compulsory jurisdiction of the International Court of

Justice and may accordingly be brought before the

Court by an application made by any party to the

dispute being a Party to the present Protocol.

Optional Protocol, art. 1.

On January 9, 2003, after determining that the United

States had violated the Vienna Convention in virtually every

case in which a Mexican national was facing the death

penalty, and after unsuccessfully seeking remedies for those

nationals through legal and diplomatic channels, Mexico

invoked the Optional Protocol and brought suit in the

International Court of Justice. See Mexico’s Application

Instituting Proceedings, (Mex. v. U.S.), No. 128 (Avena and

Other Mexican Nationals) (1.C.J. Jan. 9, 2003), available at

http://www. icj-cij.org. The United States fully participated

in those proceedings, at the conclusion of which the ICJ

found that the United States had violated the Article 36 rights

of 51 Mexican nationals, including Mr. Medellin. Avena

Judgment, { 153(4)-(7).

4

The binding character of the commitment the United

States made in the Optional Protocol is reinforced by the

United Nations Charter, also ratified by both the United

States and Mexico. By Article 94(1) of the Charter, the

United States expressly agreed to “comply with the decision

of the International Court of Justice in any case to which it is

a party.” United Nations Charter, art. 94, opened for

signature June 26, 1945, T.S. No. 993, 59 Stat. 1031. By

Article 59 of the Statute of the International Court of Justice,

which forms part of the Charter, the United States expressly

agreed that judgments of the Court have “binding force”

upon it in cases to which it is a party. Statute of the

International Court of Justice, art. 59, opened for signature

June 26, 1945, T.S. No. 993, 59 Stat. 1055.

Since both Mexico and the United States consented to

the ICJ’s jurisdiction and committed to abide by the resulting

judgment, Mexico fully expects the United States to

implement the ICJ decision. Cordial and cooperative

bilateral relations depend strongly upon good faith

compliance by each nation with mutually binding treaty

obligations. Each nation expects, and must be able to rely

upon, its treaty partners to adhere to their obligations.

President George W. Bush recognized this cardinal principle

of foreign affairs when he issued the February 28 Presidential

Determination.

Under both international and United States law, the

Avena Judgment constitutes a binding adjudication of Mr.

Medellin’s mghts that the United States must fully

implement. It has been nearly three years since the ICJ ruled

in Avena, and the U.S. promise to comply with the ICJ

decision remains unfulfilled. Mexico respectfully requests

that this Court reverse the judgment of the Texas court and

remand the case with instructions to provide the remedy

Ss

mandated by the President and International Court of Justice.

Il. This Court Should Not Leave Unreviewed a State

Court Decision that Violates the United States’s

Obligations to Mexico.

A. The United States Must Provide Review and

Reconsideration of Mr. Medellin’s

Conviction and Sentence as Required by

Avena.

In Avena, the International Court of Justice held (by

fourteen votes to one, the majority including Judges from

both the United States and Mexico) that the United States

had violated its obligation under Article 36(1) to inform Mr.

Medellin of his right to consular notification and assistance,

as well as the rights of Mexico to communicate with him,

render consular assistance, and arrange for his legal

representation. Avena Judgment, para. 153(4)-(7). To

remedy these violations, the ICJ held that the United States

had to provide “review and reconsideration” of Mr.

Medellin’s conviction and sentence by fully assessing the

prejudice caused by the Vienna Convention violations. Jd. at

para. 153(9). The ICJ rejected the United States’s argument

that review and reconsideration could be achieved through

the clemency process, holding instead that the review must

occur “within the overall judicial proceedings relating to the

individual defendant concerned.” /d. at 141; see also id. at

140.

The United States agrees that it has an international

legal obligation to comply with the Avena Judgment. See

Petition for Writ of Certiorari at 187a, Medellin v. Texas, _

U.S. __ (Jan. 16, 2007) (No. 06-984). Accordingly, the

President determined that the United States would discharge

6

its obligations under Avena by having state courts give effect

to the decision. /d. The Texas Court of Criminal Appeals,

however, held that neither the Avena Judgment nor the

Presidential Determination were binding upon it.

Specifically, the Texas Court found that the President of the

United States had exceeded his executive authority to ensure

that the nation complied with its obligations under Avena. Ex

parte Medellin, 2006 WL 3302639, at *24.

The absence of an executive agreement between the

United States and Mexico was “central” to the Texas court’s

plurality decision that the President had exceeded his

constitutional powers. Ex parte Medellin, 2006 WL

3302639, at *17. The plurality characterized the Presidential

Determination as a “unilateral act executed in an effort to

achieve a settlement with Mexico,” when no actual

settlement had been reached. /d. at *16. It implied that the

United States and Mexico should “negotiate” the conditions

under which the United States should carry out its obligations

under the Avena Judgment, observing that the negotiation

process “ensures that each sovereignty is represented and

heard.” Jd. “What is ultimately achieved through that

process, which invariably involves compromise, will reflect a

meeting of the minds--a settlement that embodies the terms,

conditions, rights, and obligations agreed to during the

negotiation process.” /d.

The Texas court’s decision reflects its utter failure ts

grasp the nature of the international legal proceedings that

led to this litigation. Both the United States and Mexico had

already agreed in advance to be bound by the Avena

Judgment by acceding to the Optional Protocol, the United

Nations Charter, and the [CJ Statute. See supra at 4-5. The

Avena Judgment represents the “settlement” of Mexico's

dispute with the United States, and it fully addresses the

“rights and obligations” of the United States with respect to

7

the remedy owed to Mr. Medellin. The International Court

of Justice agrees:

[T]he ICJ has always taken the view that it would be

incompatible with the spirit and the letter of the [ICJ]

Statute and with judicial propriety to deliver a

judgment the validity of which would be subject to

the subsequent approval of the parties or which would

have no practical consequences so far as their legal

rights and obligations were concerned. ... Since,

furthermore, a case can only be submitted to the

Court and decided by it if the parties have in one way

or another consented to its jurisdiction over the case

in question, it is rare for a decision not to be

implemented. Generally speaking, those States which

accept the jurisdiction of the Court are ready to

comply with its decisions.

INTERNATIONAL COURT OF JUSTICE, IC) HANDBOOK 75 (5th

ed. 2004) (citations omitted), available at http://www. ic}-

cij.org/icj www/igeneralinformation/ibleubook.pdf (last

visited March 6, 2007). Cf La Abra Silver Mining Co. v.

United States, 175 U.S. 423, 463 (1899) (“an award by a

tribunal acting under the joint authority cf two countries is

conclusive between the governments concerned”’).

Accordingly, there is no need for “negotiation” and

“compromise,” nor are the parties required to reach a

“meeting of the minds” with regard to the Avena Judgment.

Indeed, it was precisely because negotiations had failed to

resolve this dispute that Mexico invoked the Optional

Protocol and initiated proceedings before the ICJ.

Likewise, there is no need for a negotiation process

that will “ensure that each sovereignty is represented and

heard,” for both Mexico and the United States were

8

“represented and heard” before the International Court of

Justice. A 16-lawyer delegation represented the United

States during the one-week hearing in which both nations

presented their arguments. The State Department’s Legal

Adviser, Principal Deputy Legal Adviser, Assistant Legal

Adviser for Consular Affairs and Assistant Legal Adviser for

United Nations Affairs, an Associate Deputy Attorney

General from the Justice Department, and distinguished

professors of international law and comparative criminal

procedure all argued for the United States. See Avena

Judgmext, preface. Mexico, in turn, was represented by

fifteen lawyers, including the legal adviser to the Mexican

Foreign Minister, the Chief of Staff for the Under-Secretary

for Global Affairs and Human Rights, the Head of the

International Litigation Section of the Mexican Foreign

Ministry, the Head of the International Law Section of the

Mexican Foreign Ministry, and other distinguished

professors and advocates. /d.

To support its claims before the ICJ, Mexico

submitted a 177-page Memorial supported by a 1300-page

Annex of documentary evidence and written testimony. In

rebuttal, the United States submitted a 219-page Counter-

Memorial along with a 2500-page Annex of documentary

evidence and written testimony. Both parties’ submissions

exhaustively examined the factual predicates for the

violations in each national’s case, and argued all relevant

points of law. Memorial of Mexico (Mex. v. U.S.), 2003

I.C.J. Pleadings (Avena and Other Mexican Nationals) (June

20, 2003); Counter-Memorial of the United States of

America (Mex. v. U.S.), 2003 1L.C.J. Pleadings (Avena and

Other Mexican Nationals) (Nov. 3, 2003).

The ICJ’s final judgment reflects its careful |

consideration of the arguments raised by both nations.

Although the Cout vindicated Mexico’s claims that the

9

United States had violated its international legal obligations

in the case of Mr. Medellin and 50 other Mexican nationals,

the Court rejected several arguments advanced by Mexico.

In doing so, it took pains to respect ongoing capital

proceedings in the United States. The Court rejected

Mexico’s request for a remedy that would have obligated the

United States to vacate each national’s conviction and

sentence without inquiring whether the Article 36 violation

affected the fairness of the underlying proceedings. Instead,

the Court called upon the United States judiciary to provide a

fair process by which the Vienna Convention violations

could be fully considered and remedied, on a case-by-case

basis.

Finally, although the [CJ took great care to define the

parameters of adequate “review and reconsideration,” the

Court left to the United States the choice of means to

implement the Judgment. Avena Judgment, 4154(9). Thus, it

is for the United States—not Mexico—to decide which

courts are best suited to carry out the process of review and

reconsideration. Mexico’s interest is in ensuring that each

Mexican national subject to the Avena Judgment receives full

and fair review and reconsideration of his conviction and

sentence under the terms set forth in the Avena Judgment.

As a first step toward fulfilling the ICJ’s mandate, Mexico

welcomed the Presdential Determination. Had Mexico

opposed the President’s action, it would not have submitted

an amicus brief to the Texas Court arguing that the court

should abide by the President’s determination.

10

B. Failure to Review This Case Could Have a

Negative Impact on Bilateral Relations

Between the United States and Mexico.

As neighbors and trading partners, the United States

and Mexico have an extraordinarily close relationship.

Inevitably, the two nations have differed on matters ranging

from boundary lines and trade practices to the treatment of

each country’s nationals. When such disagreements have

arisen, Mexico and the United States have attempted to

resolve them amicably, often through arbitration.

Arbitration has staved off armed conflict, resolved boundary

disputes and indemnified private investors as well as

individuals who claimed personal injury or denial of due

process. Both countries have benefited from international

arbitration of their disputes. This may explain why “the

history of the relations between the United States and Mexico

shows a constant endeavor to resort to this means of

settlement.” A.H. FELLER, THE MEXICAN CLAIMS

COMMISSIONS | (1935).

The commitment of both nations to peaceful dispute

resolution through arbitration wavered only once, and the

results were disastrous. In 1910, the United States and

Mexico agreed to arbitration to resolve a long-running border

dispute in El Paso, Texas. Convention for the Arbitration of

the Chamizal Case, June 24, 1910, U.S.-Mex., 36 Stat. 2481.

The Convention established that the decision of the arbitral

commission would be “final and conclusive upon both

Governments, and without appeal.” 36 Stat. 2483.

Nevertheless, when the Commission awarded a large portion

of the disputed tract to Mexico, the United States refused to

comply with the judgment. ALAN C. LAMBORN & STEPHEN P.

MUMME, STATECRAFT, DOMESTIC POLITICS, AND FOREIGN

1]

POLICY MAKING: THE EL CHAMIZAL DISPUTE 54-55 (1988).

The effects of this decision upon bilateral relations were

“significant and lasting,” and the United States’s refusal to

comply became “an integral part of almost every diplomatic

issue arising between the two nations” for the following 52

years. SHELDON B. LISS, A CENTURY OF DISAGREEMENT: THE

CHAMIZAL DISPUTE 30 (1965). In addition to souring

relations between the two countries, see id. at 77, the United

States’s reaction to the judgment led Mexico to reject

arbitration as a method of resolving disagreements with

United States and British oil companies after President

Lazaro Cardenas nationalized the Mexican oil industry in

1938. /d. at 75, 100. Moreover, it led Mexico to temporarily

suspend its compliance with the Pious Fund judgment

entered by the Permanent Court of Arbitration. See

LAMBORN AND MUMME, supra, at 171; ANTONIO GOMEZ

ROBLEDO, MEXICO Y EL ARBITRAJE INTERNACIONAL 101

(1965).

In 1963, the United States finally recognized the

Chamizal arbitral award. See LiSS, supra, at 89. In

announcing the decision to comply with the Commission’s

judgment, President Kennedy acknowledged the United

States had been wrong in rejecting the award. See

President’s Message to the Senate Transmitting the

Convention for the Solution of the Problem of the Chamizal,

88th Cong. 1-3 (1963); Transcript of the President’s News

Conference on Foreign and Domestic Matters, N.Y. TIMES,

July 6, 1962, at A8.

Since then, the United State. and Mexico have

submitted numerous economic disputes to international

tribunals for resolution. And in the early 1990s, both nations

signed and ratified the North American Free Trade

Agreement, which provides unprecedented opportunities for

arbitration of disputes between states and private investor.

12

Dec. 17, 1992, U.S.-Can.-Mex., 32 I.L.M. 289-397, 605-779.

In Metalclad v. Mexico, an arbitral tribunal awarded a United

States-based corporation $16.685 million in damages.

Metalclad Corp. v. United Mexican States, 1\CSID Case No.

ARB(AF)/97/1 (ICSID AF) (Aug. 20, 2000). Although

Mexico had vigorously contested Metalclad’s claims, it

complied with the judgment. Explaining its decision to pay

Metalclad in accordance with the tribunal’s decision, Mexico

reaffirmed its ‘commitment to honor its international

obligations, “even when it does not agree with the findings of

the international tribunal nor with the way the tribunal

works.” Eye on Investors, Mexico Pays U.S. Company, N.

Y. TIMES, Oct. 29, 2001, at A4.

As the examples above make clear, both the United

States and Mexico have long understood that when a dispute

is submitted by mutual consent to an international tribunal

for resolution — as under the Optional Protocol to the Vienna

Convention — the resulting judgment is final and binding.

Mexico and the United States are both party to over 50

instruments that provide international dispute resolution

mechanisms.’ If the Texas court’s decision is allowed to

> The subject matter of these treaties encompasses topics as diverse

as taxation, see Convention for the Avoidance of Double Taxation and

the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept.

18, 1992, U.S.-Mex., art. 26, 1992 U.S.T. LEXIS 193; copyrights, see

Universal Copyright Convention, opened for signature Sept. 6, 1952, ast.

XV, 6 U.S.T. 2731; narcotics, see United Nations Convention Against

INlicu Traffic in Narcotic Drugs and Psychotropic Substances, opened for

signature Dec. 20, 1988, art. 32, 1988 U.S.T. LEXIS 194, *80-81;

pollution, see International Convention for the Prevention of Pollution of

the Sea by Oil, opened for signature May 12, 1954, art. XII], 12 U.S.T.

2989, aviation, see Air Transport Agreement Between the Government of

the United States of America and the Government of the United Mexican

States, Aug. 15, 1960, art. 13, U.S.-Mex., 12 U.S.T. 60; and chemical

weapons, see Convention on the Prohibition of the Development,

Production, Stockpiling and Use of Chemical Weapons and on their

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stand, Mexico and other nations will begin to doubt the

utility of entering into such agreements with the United

States.

Finally, if this Court fails to correct the judgment of

the Texas court, the United States will breach its obligations

to Mexico under the Avena Judgment and bilateral relations

will suffer as a consequence. As this Court has previously

observed,

[o]Jne of the most important and delicate of all

international relationships, recognized immemorially

as 2 responsibility of a government, has to do with the

pi ction of the rights of a country’s own nationals

when those nationals are in another country.

Hines v. Davidowitz, 312 U.S. 52, 64 (1941).

IiI. The Court Should Grant Review of This Case Now

in Order to Protect Human Lives and Prevent

Irreparable Damage To U.S.-Mexico Relations.

Mexico initiated proceedings before the ICJ at a time

when no Mexican national faced imminent execution in order

to ensure that the United States would have ample time to

investigate Mexico’s claims, present its counter-arguments,

and implement any resulting judgment in Mexico’s favor. In

the three years since the Avena Judgment was issued,

however, the United States has failed to provide the remedy

mandated by the ICJ. During this time, Mr. Medellin ard

other Mexican nationals have promptly and diligently

Destruction, opened for signature Jan. 13, 1993, art. XIV, 14 U.N.TS.

45.

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pursued their rights under the Avena Judgment. Yet to date,

only one court has granted judicial review and

reconsideration of a Mexican national’s conviction and

sentence in light of the Avena Judgment. Torres v. State,

2005 OK CR 17, 120 P.3d 1184 (Okla. Crim. App. 2005).

If the Court were to deny the writ of certiorari in this

case, the effects of the Court’s decision would be immediate

and irreversible. Ten Mexican nationals whose cases the ICJ

adjudicated in Avena are on death row in Texas and could

face imminent execution. On March 7, 2007, the Texas

Court of Criminal Appeals denied relief in five of those

cases, citing its earlier decision in Ex parte Medellin.’

Execution of those nationals without providing the remedy

mandated by the ICJ would unquestionably affect bilateral

relations between the United States and Mexico. Granting

review in a later case would not suffice to cure this injury,

since the rights of those Mexican nationals would no longer

be capable of vindication.

* These five cases were resolved jointly in a one-page, unpublished

decision on March 7, 2006. The individual cases decided were: Ex parte

Cesar Roberto Fierro, No. WR-1|7,425-05; Ex parte Ignacio Gomez, No.

WR-52,166-02; Ex parte Humberto Leal Garcia, No. WR-41,743-02, Ex

parte Roberto Moreno Ramos, No. WR-35,938-02; Ex parte Ruben

Ramirez Cardenas, No. WR-48,728-02, Ex parte Felix Rocha Diaz, WR-

$2,515-03.

1S

CONCLUSION

Amicus curiae the Government of Mexico respectfully

urges this Court to grant Mr. Medellin’s petition for

certiorari.

Respectfully submitted,

Sandra .. Babcock

Counsel of Record

Bluhm Legal Clinic

Northwestern Law School

357 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0114

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