Amicus Curiae Brief — Medellin v. Texas

N13’

31 Psp

No. 06-984

IN THE

Supreme Court of the United States

JOSE ERNESTO MEDELLIN,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

On 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 E. Chicago Avenue

Chicago, IL 60611

(312) 503-0114

Counsel of Record for

Amicus Curiae

TABLE OF CONTENTS

DAs Oe A Tee BOI cccescnccccsseccessnessosonssestenccccsosossoses ill

ENicmes st OF AMICUS CURIAL........:.ccscocsosscsssccscosesseesses |

RPIEIUER YOR PIUIIIIN ED eececscceseccssesccnccnevcccesnsccsosesesesses 3

OTT ssiaiesvstaiipicnienneensenesnsennnienanpiassinisinepiiuanemnniain 5

I. Mexico and the United States Agreed by Treaty to

Submit Disputes Regarding the Vienna Convention to

the International Court of Justice for Binding

NTE inacinecniosciinssinciansineisestiiinanmentseniienmneineeienens 5

Il. The United States and Mexico Have Consistently

Recognized That When a Dispute Is Submitted by

Mutual Consent to an International Tribunal, the

Resulting Judgment Is Binding. .............:ccccceesseeeeeeeeees 6

Il]. The Protection of Nationals Abroad Has Long Been a

Priority of Both Mexico and the United States. ........... 13

A. Mexico Has an Active and Longstanding Tradition of

Providing Extensive Consular Services to Its

te hicelbvccsciirissnieiteiicesiensehaniianacniinbiidundiiesibasisddaiianiidashins 14

B. The United States Has Been a Forceful Advocate for

the Consular Rights of American Citizens Detained in

SOI iinsibiiehcnseiitiasnpieaipiiiiadnabiingeinbivnednianbaniaiiiinasionindinian 18

IV. The International Court of Justice Issued a Binding

Judgment that Adjudicated the Rights of Individual

Mexican Nationals..................00 sesencencesonsossensssonssneceses 19

V. The United States Is Obligated to Fully Implement the

SI sesietissininintnendatcsanicisiiistinbivniinsiesamneiie 24

CONCLUSION

ii

TABLE OF AUTHORITIES

Federal Cases

Frelinghuysen v. United States ex rel. Key, 110 U.S. 63

SITITT ceisoceiaseidthonsiessstnctiaindensaesianlasidininainiaenninintétenniesatapeeies 9, 26

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

aE TE ccissepesstaheadiitiasesiantetensaiaennntenltvinnimdintaninainigs 9

Sanchez Llamas v. Oregon, 126 S. Ct. 2669 (2006) ..... 23, 24

State Cases

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

eee 2, 24, 25

Marquez-Burrola v. State, 157 P.3d 749 (Okla. Crim. App.

Torres v. State, , 120 P.3d 1184 (Okla. Crim. App. 2005...15

Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2001)......... 16

International Cases

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

a I: Ei incstitcnitaindasenitaniaieinenencinssitsinnasadaiiiel passim

Francisco Quintanilla (Mexico v. United States), Opinions

Hi

of the Commissioners 136 (1926) ..........cc:ccsceeseesseereereceeeees 7

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

ARB(AF)/97/1 (ICSID AF) (Aug. 30, 2000)............... 7,12

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

STuarE aiFas Ulli cadhciencierecistad recstetacesiidadseadahanateamnneintandinddeaeamnbienbaasiadaneaion 3

Consular Convention Between the United Mexican States

and the United States of America, Aug. 12, 1942, U.S.-

I eeiaemaiiemintasibial 13

Convention Between the United States of America and the

Republic of Mexico for the Adjustment of Claims, July 4,

ee SL. oe TIE, COTT,.._csssectensenenntntonetintinnmnene 8,9

Convention for the Arbitration of the Chamizal Case, June

24, 1910, U.S.-Mex., 36 Stat. 2481 ooo... ee ccesecesesrees 10

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., 1992 U.S.T. LEXIS

Si hisiasinintibdaipsuieiehaianicciaancepiniiaibdannaninintineteimaeiianernbinaniidennneia: 3

Convention on the Prohibition of the Development,

Production, Stockpiling and Use of Chemical Weapons

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

ns, Se AA: AUIS. cectemscnsinninpicenenmsncnciensseinstiiannecumbicenins 3

iV

International Convention for the Prevention of Pollution of

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

LAC alsy STII chsistuiienscineineidsishinnieiaanspneaminnmieammianiahas tie naan 3

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

ee Ee 12

Optional Protocol Concerning the Compulsory Settlement of

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

UI <sisrnntsinssensenistiniienaemnasataimuidinapianmianiiiaiaieadauaiaal passim

Protocol for the Adjustment of Certain Contentions Arising

Under What is Known as the "Pious Fund of the

Californias," May 22, 1902, U.S.-Mex., 9 Bevans 12, 1902

RC as GPEEEE DP secosvvsnnssvstinicicicinestntsinaiisiiutiaadiaaiaamandaiiias 10

Statute of the International Court of Justice, opened for

signature June 26, 1945, T.S. No. 993, 59 Stat. 1055..6, 24

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

26, 1945, T.S. No. 993, FD Stat. LOST .....crccorererccsereeessveeoeee 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... eeeeeeees 3

Universal Copyright Convention, opened for signature Sept.

G, File BE Bs BIS sevnsncinsseninniooniceniitidsiaememmnmmni 3

Other Authorities

A.H. FELLER, THE MEXICAN CLAIMS COMMISSIONS (1935)..7,

8,9

A.M. STUYT, SURVEY OF INTERNATIONAL ARBITRATIONS 653

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

DOMESTIC POLITICS, AND FOREIGN POLICY MAKING: THE

EL CHAMIZAL DISPUTE (1988)............0csccesececesssesececseeerenes 11

ANTONIO GOMEZ ROBLEDO, MEXICO Y EL ARBITRAJE

ccs aerrareremagenannrnenies 12

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 Emesto Medellin, No. AP-75207, 2006 WL

3302639 (Tex. Crim. App. Nov. 15, 2006)..........ccccceseeee 2

Convention With Mexico for Solution of the Problem of the

Chamizal: Hearings Before the Committee on Foreign

Relations, United States Senate, 88" Cong. (1963)......... 1]

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

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

I, OR IIc crsnsnencanieatneninennnessensencseses 17, 20

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

iin crreraetecintennmtonnnsesnnnmmemnnnssees 12

FRANCIS J. WEBER, THE UNITED STATES VERSUS MEXICO:

THE FINAL SETTLEMENT OF THE PIOUS FUND (1969)..10, 11

FREDERICK DUNN, THE DIPLOMATIC PROTECTION OF

AMERICANS IN MEXICO (1933). .........:cccccecceeeeeeeeeeeeeees 7, 8,9

vi

HOWARD N. MEYER, THE WORLD CourT IN ACTION:

JUDGING AMONG THE NATIONS (2002) ........c.ccccececeeeseeeees 10

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

JOHN BASSETT Moore, 4 INTERNATIONAL ARBITRATIONS TO

WHICH THE UNITED STATES HAS BEEN A PARTY (1898) 7, 8

Memorial of Mexico (Mex. v. U.S.), 2003 I.C.J. Pleadings

(Avena and Other Mexican Nationals) (June 20, 2003)...... 20

Petition for Writ of Certiorari, Medellin v. Texas, 127 S. Ct.

ITT TITTITIIT ssclinsnteniaseiieteaenasienteineeeenneuesinliiniatieuidastebedunuantaantinies 24

President’s Message to the Senate Transmitting the

Convention for the Solution of the Problem of the

Sheil, GE Citi, COIN cececcccvnerccercecvntetcccenntnnmnsine 12

Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire,

KO eee 16

REPORT OF JACKSON H. RALSTON, IN THE MATTER OF THE

CASE OF THE PIOUS FUND OF THE CALIFORNIAS (1902)....10

Reports of International Arbitral Awards, v. TX at 5, U.N.

Pe SI eee iarscnsesecnciecsmmnntapienannaieticiainaniets 10

SHELDON B. Liss, A CENTURY OF DISAGREEMENT: THE

CORREALE, TRIPUIGE, CI DIGD ccccccccccesscncesctsncssessescsssesenss 11,12

Transcript of the President's News Conference on Foreign

and Domestic Matters, N.Y. TIMES, July 6, 1962 ............ 12

Vii

Two Mexicans Die in Electric Chair, N.Y. TiMES, Jan. 28,

U.S. Boundary Relations, 3 Whiteman DiGest §30 (1964) ...7

U.S. Citizens Imprisoned in Mexico: Hearings before the

Subcommittee on International, Political and Military

a cecccieesncaitateceaeniitinanai 18, 19

U.S. DEPARTMENT OF STATE, CONSULAR NOTIFICATION AND

ACCESS, FOREIGN EMBASSIES AND CONSULATES IN THE

ERS Ce ee ICR Re Honea ne eer 14

William Aceves, The Vienna Convention on Consular

Relations: A Study of Rights, Wrongs and Remedies, 31

VAND. J. TRANSNAT’L L. 257 (1998) ........:ccccsescceessseeeeeeees 16

vill

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 (“ICJ”).

Optional Protocol 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 1.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

' 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.

remedy for those violations, the ICJ held that the United States

must provide Mr. Medellin with meaningful review 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 confirmation that

the United States would comply with its treaty obligations to

Mexico and Mr. Medellin. Accordingly, Mexico filed an

amicus brief in the Texas Court of Criminal Appeals urging the

court to implement the Avena Judgment and the President’s

Determination. Brief Amicus Curiae of the United Mexican

States in Support of José Ernesto Medellin, No. AP-75207,

2006 WL 3302639 (Tex. Crim. App. Nov. 15, 2006). On

November 15, 2006, the Texas Court of Criminal Appeals held

that neither the Avena Judgment nor the President’s

Determination constituted binding federai 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).

As a party to the Avena proceedings, Mexico has a

direct interest in the implementation of the ICJ’s judgment. It

has been nearly three years since the ICJ ruled in Avena, and the

United States’s promise to comply with the ICJ’s decision

remains unfulfilled. Mexico respectfully requests that this

Court uphold the promises the United States made to Mexico

and the world community by ordering the review and

reconsideration mandated by the International Court of Justice

in Avena.

SUMMARY OF ARGUMENT

When Mexico and the United States agreed to submit to

the jurisdiction of the International Court of Justice, both parties

recognized that they would be bound by the Court’s final

judgment. The two countries are both party to over 50

instruments that provide international dispute resolution

mechanisms.’ Indeed, over the last two centuries, Mexico and

the United States have settled hundreds of disputes in this

manner.’ While the facts of the cases, the composition of the

2 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, art. XV, 6 U.S.T.

2731; narcotics, see United Nations Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances, opened for signature Dec. 20,

i988, 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. XIII, 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 Destruction, opened for signature Jan. 13,

1993, art. XIV, 14 U.N.T.S. 45.

> For « pervial list of arbitrations to which each country has submitted, see

A.M. S®oyvt, SURVEY OF INTERNATIONAL ARBITRATIONS 653, 636-37

(1990,

tribunals, and the rules of procedure have differed, each country

has consistently recognized that when it commits itself to

resolve a dispute by submitting to the jurisdiction of an

international tribunal, it agrees to be bound by the result.

In recent years, Mexico and the United States have

disagreed on the scope of the rights established by Article 36.

After the two nations failed to resolve their differences through

diplomatic channels, Mexico exercised its night to submit the

dispute to the International Court of Justice for binding

resolution. In doing so, Mexico expressly invoked the rights of

its nationals and sought specific remedies. on their behalf in its

exercise of diplomatic protection. The ICJ weighed the

arguments of the parties and the facts of each Mexican

national’s case, and issued a carefully reasoned judgment

adjudicating the rights of Mr. Medellin and 51 other Mexican

nationals, thereby settling the dispute that had, at times, strained

relations between the two nations.

Under both international and United States law, the

Avena judgment constitutes a binding adjudication of Mr.

Medellin’s rights that the United States must fully implement.

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.

ARGUMENT

I, Mexico and the United States Agreed by Treaty to

Submit Disputes Regarding 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 1 of the Optional Protocol provides:

Disputes arising out of the interpretation or application

of the Convention shall lie within the compulsory

jurisd.ction 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).

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.

Without the United States’s express consent, the

International Court of Justice could not have heard the Avena

case or rendered its judgment. Having given its consent, and

having fully participated in the proceedings, the United States

must now abide by the result.

Il. The United States and Mexico Have Consistently

Recognized That When a Dispute Is Submitted by

Mutual Consent to an International Tribunal, the

Resulting Judgment Is Binding.

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).

Conflicts over the treatment of United States citizens in

Mexico were a recurring theme in early diplomatic relations

between the two countries. DUNN, supra, at 1-2. In the mid-

* See, e. g , FREDERICK DUNN, THE DIPLOMATIC PROTECTION OF AMERICANS

IN MEXICO 10-27 (1933).

* See U.S. Boundary Relations, 3 Whiteman DIGEST §30, at 680-84 (1964)

(describing the agreement of the United States to abide by the terms of

arbitral judgment regarding disputed tract of land known as “E] Chamizal” in

E] Paso, Texas).

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

ARB(AF)/97/1 (ICSID AF) (Aug. 30, 2000) [hereinafter Metalclac "}.

” See Francisco Quintanilla (Mexico v. United States), Opinions of the

Commissioners 136 (1926).

® See JOHN BASSETT Moore, 4 INTERNATIONAL ARBITRATIONS TO WHICH

THE UNITED STATES HAS BEEN A PARTY 3251 (1898).

nineteenth century, United States citizens flocked to Mexico in

great numbers. FELLER, supra, at 1. Many complained they

were subjected to unequal treatment, illegally detained,

deprived of due process, or otherwise wronged by Mexican

authorities. See generally MOORE, supra, at 3235-3252. They

sought protection from the United States government, which in

turn pressed their claims upon the Government of Mexico. See,

e.g., DUNN, supra, at 18-19. The frequency with which such

claims were brought by the United States against Mexico led

one commentator to observe that “[t]he subject of the claims of

foreign nationals plays a more important role in the history of

the foreign relations of Mexico than in that of any other

country.” FELLER, supra, at 1.

Diplomacy proved unable to resolve these disputes, and

the unsettled claims of United States citizens in Mexico were

cited as justification for war with Mexico in 1846. See DUNN,

supra, at 45-49. After the war, United States citizens continued

to allege mistreatment by Mexican authorities. This time, the

two nations signed the Claims Convention of 1868, which

established a Commission to hear the claims of both Mexican

and United States citizens for property damage, personal injury,

and wrongful detention.? Convention Between the United

States of America and the Republic of Mexico for the

Adjustment of Claims, July 4, 1868, U.S.-Mex., art. II, 15 Stat.

679, 681. After reviewing more than 2,000 claims, the

% See, eg, MOORE, supra, at 3243-44 (describing the wrongful

imprisonment claim of A.H. Halstead, which resulted in an arbitral judgment

of $1,600.00); id at 3247 (describing the arbitrary detention claim of

William P. Barnes, resulting in arbitral judgment of $5,100.00); id. at 3251

(describing the wrongful detention claim of Augustus Jonan, resulting in

arbitral judgment of $35,000.00 in Mexican gold).

Commission entered judgments against Mexico totaling over

$4,000,000.00, a sum far greater than that assessed against the

United States. FELLER, supra, at 6. Mexico promptly complied

with the Commission’s judgment. See Frelinghuysen v. United

States ex rel. Key, 110 U.S. 63, 67 (1884) (“the government of

Mexico has promptly and in good faith met its annual

payments”); DUNN, supra, at 112.

Mexico never disputed its legal obligation to comply

with the judgments of the 1868 Claims Commission, even in

the face of compelling evidence that some claims were

fraudulent.'® See La Abra Silver Mining Company v. United

States, 175 U.S. 423, 458 (1899); Frelinghuysen, 110 U.S. at 67

(1884). In Frelinghuysen, the Court accepted that the

judgments of arbitral tribunals “are final and conclusive until

set aside by agreement between the two governments.” 110

U.S. at 67. The Court further observed that “Mexico cannot,

under the terms of the treaty, refuse to make the payments at the

times agreed on if required by the United States. This she does

not seek to do.” /d. at 467-68.

Mexico and the United States have also resorted to

international arbitration to resolve economic disputes. In the

case of the Pious Fund of California, the Claims Commission

awarded the Catholic church of California the sum of

'° Article 2 of the Claims Convention provided that “(t]he president of the

United States. . . and the president of the Mexican republic hereby solemnly

and sincerely engage to consider the decision of the commissioners

conjointly, or of the umpire, as the case may be, as absolutely final and

conclusive upon each claim decided upon by them or him respectively, and

to give full effect to such decision without any objection, evasion, or delay

whatsoever.” 15 Stat. 679.

$904,070.79, which Mexico paid in full. REPORT OF JACKSON

H. RALSTON, IN THE MATTER OF THE CASE OF THE PIOUS FUND

OF THE CALIFORNIAS 5 (1902). But the matter did not end there.

The United States contended that Mexico owed additional

interest on the fund,'' and in an attempt to resolve the dispute,

both nations agreed to submit to the jurisdiction of the

Permanent Court of Arbitration at The Hague.’ The Pious

Fund case was the first judgment issued by the newly-

established tribunal. HOWARD N. MEYER, THE WORLD COURT

IN ACTION: JUDGING AMONG THE NATIONS 24 (2002). The

Permanent Court of Arbitration issued a unanimous judgment

against Mexico on October 14, 1902. Mexico was ordered to

pay a lump sum of $1,460,682.67, and to make annual

payments of $43,050.99. RALSTON, supra, at 15-16. Mexico

complied with the judgment, which has now been paid in full.

See FRANCIS J. WEBER, THE UNITED STATES VERSUS MEXICO:

THE FINAL SETTLEMENT OF THE PIOUS FUND 53 (1969).

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

'' Reports of International Arbitral Awards, v. 1X at 5, U.N. Sales No.

59.V.5 (1948).

'? See Protocol for the Adjustment of Certain Contentions Arising Under

What is Known as the "Pious Fund of the Californias," May 22, 1902, U.S.-

Mex., 9 Bevans 12, 1902 U.S.T. LEXIS 50. Article XIV of the Protocol

provided that “the award ultimately given hereunder shall be final and

conclusive as to the matters presented for consideration.”

10

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

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 oi] companies after President Lazaro

Cardenas nationalized the Mexican oil industry in 1938. /d. at

75, 100. In addition, it led Mexico to temporarily suspend its

compliance with the Pious Fund judgment entered by the

Permanent Court of Arbitration.'* See LAMBORN AND MUMME,

> In 1925, the United States rejected Mexico’s suggestion that the dispute

be submitted to the Permanent Court of International Justice (the precursor

to the International Court of Justice) for arbitration. Since the United States

refused to accept the jurisdiction of the international tribunal, the Court had

no power to resolve the dispute. See Convention With Mexico for Solution

of the Problem of the Chamizal: Hearings Before the Committee on Foreign

Relations, United States Senate, 88" Cong. 21 (1963) (statement of

Ambassador Thomas C. Mann) [hereinafter “Chamizal Hearings’ }.

'* See WEBER, supra, at42. Mexico suspended payments on the Pious Fund

in 1915. In 1966, it resumed payments, id at 51, and fully satisfied its

obligations in 1967. /d at 53.

1]

supra, at 171; ANTONIO GOMEZ ROBLEDO, MEXICO \ EL

ARBITRAJE INTERNACIONAL 101 (1965).

In 1963, the United States finally recognized the

Chamizal arbitral award. See Liss, supra, at 89. President

Kennedy acknowledged the United States had been wrong in

rejecting the Commission’s judgment, commenting that “the

charge against us for not having abided by the award is grave.”

See President’s Message to the Senate Transmitting the

Convention for the Solution of the Problem of the Chamizal,

88" 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 States 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 investors. Dec. 17, 1992,

U.S.-Can.-Mex., 32 1.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, supra n. 6.

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.

12

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.

Ill. The Protection of Nationals Abroad Has Long Been

a Priority of Both Mexico and the United States.

Ever since Mexico and the United States established

diplomatic relations, the two countries have been actively

involved in the protection of their nationals within the other’s

territory. In 1942, the two countries signed a bilateral consular

convention that codified the customary rights of consular

officers to assist their nationals. Consular Convention Between

the United Mexican States and the United States of America,

Aug. 12, 1942, U.S.-Mex., art. 6, 57 Stat. 800. Among other

things, the bilateral consular convention grants consular officers

the right to visit detained nationals, to assist them “in

proceedings before or relations with authorities of the State,”

and to “address the authorities, National, State, Provincial or

Municipal, for the purpose of protecting the nationals of the

State by which they were appointed in the enjoyment of rights

accruing by treaty or otherwise.” Jd. The bilateral convention

does not contain any provision for arbitration of disputes;

instead, article 6 provides that grievances may be addressed

through diplomatic channels. /d.

The 1963 Vienna Convention on Consular Relations

reaffirmed the rights set forth in the Bilateral Convention and

elaborated on the types of services consular officers could

provide. Vienna Convention, arts. 5, 36. For example, article

5(i) of the Vienna Convention states that “Consular functions

13

consist in: ... representing or arranging appropriate

representation for nationals of the sending State before the

tribunals and other authorities of the receiving State.” Article

36(1}(c) reinforces this provision, expressly stating that

consular officers may “arrange for [the] legal representation” of

detained nationals. Significantly, the Optional Protocol to the

Vienna Convention gave states parties an additional avenue for

dispute resolution that was unavailable under the bilateral

consular convention.

Within the framework of these two conventions, both

nations have developed comprehensive programs of consular

assistance to their nationals abroad.

A. Mexico Has an Active and Longstanding

Tradition of Providing Extensive Consular

Services to Its Nationals.

Mexican consular officers have provided services to

detained Mexican nationals in the United States for nearly two

hundred years. And as the population of Mexican nationals in

the United States has expanded, Mexico’s consular assistance

program has become increasingly sophisticated. With 47

consulates, Mexico now has the most extensive consular

network of any foreign nation in the United States.'®

'> Japan has the second largest consular network, with 19 consulates. U.S.

DEPARTMENT OF STATE, CONSULAR NOTIFICATION AND ACCESS, FOREIGN

EMBASSIES AND CONSULATES IN THE UNITED STATES (available at

http://www .travel.state.gov/law/consular/consular_745.html) (last visited

May 31, 2007).

14

Mexico’s commitment to the protection of its nationals

stems in part from its conviction, born of experience, that most

Mexican nationals are poorly equipped to navigate the legal!

system of a foreign country. Many Mexican nationals have

little forma! education and are desperately impoverished. They

have trouble grasping abstract legal concepts, and often fail to

understand their rights ~ even after their lawyers have attempted

to explain them. Significant cultural and linguistic barriers

impede their ability to communicate effectively with their

attorneys and to participate fully in their defense. Even

nationals who have resided in the United States for many years

retain a strong connection with Mexican culture, and some

never learn to speak English fluently. Consular assistance can

often help overcome these unique disadvantages.

Cultural misunderstandings and linguistic barriers

pervade many cases involving Mexican nationals, but these

factors take on added significance when the national is facing

capital punishment. Given the gravity of the penalty at stake,

the Government of Mexico has instructed consular officers to

monitor capital cases with particular care. Consular staff

receive specialized training so that they can evaluate the quality

of the legal representation in each case. The archives of the

Foreign Ministry contain files reflecting the involvement of

consular officers in death penalty cases in the United States

dating back to at least 1920.'°

© The Oklahoma Court of Criminal Appeals has found that Mexico provided

“extensive assistance” to capital defendants in 1993, the year Mr. Medellin

was arrested and charged with capital murder. Torres v. State, 120 P.3d

1184, 1188 (Okla. Crim. App. 2005) (describing the quality of Mexico's

consular assistance program in capital cases). See also Marquez-Burrola v.

State, 157 P.3d 749 (Okla. Crim. App. 2007) (describing Mexico’s efforts to

assist trial counsel in the capital murder trial of a Mexican national); Two

15

Consular officers provide crucial services to Mexican

nationals who are facing the death penalty. In accordance with

their training, their principal concern is to ensure the defendant

receives qualified and effective legal counsel. Over time,

Mexico has concluded that the attorneys assigned to represent

Mexican nationals often lack the experience and the resources

necessary to provide a vigorous defense. In addition, most of

the assigned lawyers do not speak Spanish and rarely enjoy

access to Spanish-speaking investigators and experts. Even

when the national speaks English fluently, his family usually

does not. Thus, counsel’s inability to speak Spanish presents a

substantial impediment to obtaining mitigating evidence from

relatives. And invariably, birth records and other critical

documents can only be obtained in Mexico.

Consular officers are therefore instructed to support the

defense by providing funds for investigators and experts; acting

as a “cultural bridge” between the defendant and his lawyer;

Mexicans Die in Electric Chair, N.Y. TIMES, Jan. 28, 1921, at A3

(discussing unsuccessful battle of Mexican consular officers to prevent

executions in New York); William Aceves, The Vienna Convention on

Consular Relations: A Study of Rights, Wrongs and Remedies, 31 VAND. J.

TRANSNAT’L L. 257, 272 n.2 (1998) (citing a 1934 case in which Mexican

consular officials sought access to a national held in a California jail);

Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire, N.Y. TIMES,

Oct. 26, 2000, at A20 (describing consular involvement in a Florida capital

prosecution, and noting Mexico's reported involvement in 261 death penalty

cases since 1994); Valdez v. State, 46 P.3d 703, 710 (Okla. Crim. App.

2001) (concluding that Mexico would have intervened in a 1989 capital

murder prosecution to assist with a Mexican national’s defense and to

provide resources to ensure that the defendant received a fair trial and

sentencing hearing).

16

communicating with the defendant’s family members, friends

and others who may be able to offer assistance or information

vital to the defense; tracking down records and other

documents; and identifying and transporting family members

and other witnesses to the United States. If consular officers

conclude that the defense attorney is not able to provide high

quality representation, they attempt to secure more effective

legal counsel.

Experience has taught the Government of Mexico that

consular intervention is most effective prior to trial. Early

consular intervention often persuades prosecutors to refrain

from seeking the death penalty. Consular officers commonly

search all archives and databases in Mexico to determine

whether a defendant has a criminal record, and provide

documentation of such searches to the prosecution. Consular

officers can also obtain birth, school and medical records that

provide proof of a defendant’s physical or mental condition.

This sort of evidence has influenced the outcome of dozens of

cases. Statistics maintained by the Mexican Foreign Ministry

demonstrate that in at least 142 cases since September 2000

where consular officers were informed of the Mexican

national’s detention prior to trial, prosecutors waived the death

penalty.

In light of the services described above, it is not

surprising that the United States government has acknowledged

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 L.C.J. Pleadings

(Avena and Other Mexican Nationals) 186 (Nov. 3, 2003).

17

B. The United States Has Been a Forceful

Advocate for the Consular Rights of

American Citizens Detained in Mexico.

United States consular officers have been no less

assiduous in seeking to protect the rights of detained United

States nationals in Mexico. As a close neighbor and treaty

partner of the United States, Mexico fully appreciates that the

United States has long been one of the most vigorous advocates

of strict compliance with the Vienna Convention. As described

above, the United States’s inability to resolve complaints by its

nationals in Mexico was one of the factors that led to war in

1846.

In 1975, complaints by United States citizens

incarcerated in Mexico led to congressional hearings. At those

hearings, State Department representatives testified at length

regarding the rights of United States citizens to seek consular

assistance:

All of us regard consular protection as an inherent right

of every citizen. That right is not affected by evidence

or findings of guilt... . Providing consular protection

to American citizens abroad is a basic historic

responsibility of this Department and its consular

officers.

U.S. Citizens Imprisoned in Mexico: Hearings before the

Subcommittee on International, Political and Military Affairs,

Part I, 94” Cong. 16 (1975) (Statement of Leonard F.

Walentynowicz). Mr. Walentynowicz observed that in order to

fully protect the rights of prisoners and prevent abuses,

immediate consular access was critical:

18

A particular issue of prime importance is that of denied

or delayed consular access. We believe that immediate

consular access is the linchpin on which hangs in large

measure the solution to many of our problems. With

early access to each prisoner we are convinced we can

go a long way toward guaranteeing the prisoner against

mistreatment and forced statements at the time of arrest,

along with making available to him information about

responsible lega! counsel and judicial procedures.

Id., Part Il, at 6. Finally, in keeping with the United States’s

long tradition of protecting the rights of its citizens in Mexico,

the State Department emphasized the need to actively intervene

in individual cases to ensure that justice is done:

[W]e are persuaded that to make progress in protecting

the rights of U.S. citizens in Mexico, we must

repeatedly present Mexican authorities with the facts,

demonstrate how they constitute a violation of Mexican

and/or international law and norms, and insist that such

violations be corrected and prevented in the future.

Id. at 63.

IV.

The International Court of Justice Issued a Binding

Judgment that Adjudicated the Rights of Individual

Mexican Nationals.

In reviewing the claims of Mr. Medellin and the other

Mexican nationals, the International! Court of Justice was called

upon to analyze the treaty’s provisions and to apply that

analysis to the underlying facts of each case. Mexico

19

accordingly presented the ICJ with information regarding the

- violation of the Vienna Convention in each case. Mexico

provided, inter alia, copies of state and federal court decisions,

affidavits, and transcripts relating to violations of Article 36

where available. See Memorial of Mexico (Mex. v. U.S.), 2003

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

20, 2003), Annexes 35-65. In the case of Mr. Medellin, Mexico

supplied the International Court of Justice with the Texas trial

court’s findings of fact and conclusions of law from state post-

conviction proceedings,'’ and provided a separate summary of

the Texas court’s reasons for rejecting Mr. Medellin’s Vienna

Convention claim. Memorial of Mexico at A-103, Annex 7,

para. 238. For its part, the United States presented its own

rendition of the facts of each case, made extensive legal

arguments, and submitted over 2,500 pages of diplomatic

correspondence, judicial opinions, law review articles,

affidavits, and transcripts. Regarding Mr. Medellin, the United

States submitted an account of state and federal post-conviction

proceedings, including a description of how each court had

resolved Mr. Medellin’s Vienna Convention claim. Counter-

Memorial at A-223, Annex 2, App. 38, para. 7.

The ICJ’s final judgment reflects its careful

consideration of these materials. The Court analyzed the

procedural posture'® and the facts of each case in determining

whether the United States had violated its obligations under

Article 36. In particular, where the facts were contested, the

'? Memorial of Mexico, Annex 55.

'* See, e.g, Avena Judgment at para. 20 (referring to the different stages of

direct appeal and post-conviction review).

20

Court made detailed findings based on the extensive

documentary evidence submitted by the parties. See, e.g,

Avena Judgment at para. 57 (addressing United States’s claim

that certain Mexican nationals could have dual citizenship); id.

at paras. 66-74 (evaluating United States’s assertions that

certain Mexican nationals had claimed to be U.S. citizens upon

arrest); id. at para. 89 (reviewing facts of one case in response

to United States’s contention that the authorities had complied

with their Article 36 obligations). The Court also distinguished

between those cases in which the United States had violated all

of its obligations under Article 36 — such as the case of Mr.

Medellin — and those in which the United States violated only

some of its provisions.'? This is most apparent in the Court’s

discussion of Article 36(1)(c), which provides that consular

officers may “arrange for [the] legal representation” of their

nationals.

The Court observed that in 16 cases, Mexican consular

officers had learned of their nationals’ detention before trial,

either through notification by United States authorities or by

other means, with sufficient time to arrange for their legal

representation. Avena Judgment, para. 104. In these cases, the

Court concluded that the United States had not violated Article

36(1)(c). It recognized that even though the United States had

failed to comply with its obligations to notify the 16 nationals

of their consular rights “without delay,” consular officers had

'° For example, in the case of Ramiro Hernandez Llanas, the Court

concluded that the United States had violated its obligation to inform the

defendant, without delay, of his consular rights. Avena Judgment, para. 76.

Nevertheless, the Court held that the United States had advised the consular

post of Mr. Hernandez Llanas’ detention without delay, in accordance with

its obligations under Article 36(1)(b). /d. at para. 97.

nonetheless been able to provide some assistance to their

nationals prior to trial. In the remaining 34 cases, however,

including the case of Mr. Medellin, the Court found that the

authorities’ noncompliance with Article 36, coupled with

Mexico’s lack of knowledge of the detentions, had effectively

prevented consular officers from arranging for legal

representation or providing other resources to improve the

quality of the defense. /d. at para. 106(4).

With regard to Mr. Medellin, the International Court of

Justice held that the United States had violated its obligation

under Article 36(1) to inform him 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 at para. 153(4)-

(7). To remedy these violations, the ICJ held that the United

States had to “review and reconsider” Mr. Medellin’s

conviction and sentence by fully assessing the prejudice caused

by the Vienna Convention violations. /d. 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 Avena Court set forth specific requirements for

effective review and reconsideration. First, the Avena Court

held that procedural default doctrines may not be invoked

where it was “the failure of the United States itself to inform”

the national of his Article 36 rights that impeded his ability to

raise the violation at trial. /d. at paras. 112-13. Second, the ICJ

emphasized that review and reconsideration had to be

22

“effective” and “guarantee that the violation and the possible

prejudice caused by that violation . . . be fully examined and

taken into account:””°

[I]n a situation of the violation of rights under Article

36, paragraph 1, of the Vienna Convention, the

defendant raises his claim in this respect not as a case of

“harm to a particular right essential to a fair trial” — a

concept relevant to the enjoyment of due process rights

under the United States Constitution — but as a case

involving the infringement of his rights under Article

36, paragraph 1. The rights guaranteed under the

Vienna Convention are treaty rights which the United

States has undertaken to comply with in relation to the

individual concerned, irrespective of the due process

rights under United States constitutional law. In this

regard, the Court would point out that what is crucial in

the review and reconsideration process is the existence

of a procedure which guarantees that full weight is

given to the violation of the rights set forth in the

Vienna Convention, whatever may be the actual

outcome of such review and reconsideration.

Avena Judgment, para. 139 (emphasis added). Third, the Avena

Court explained that review and reconsideration must be

conducted by a court that is empowered “to examine the facts,

and in particular the prejudice and its causes, taking account of

the violation of the rights set forth in the Convention.” /d. at

para. 122.

Unlike the petitioners in Sanchez Llamas v. Oregon, 126

20 Avena Judgment at para. 138; see also id. at para. 131.

23

S. Ct. 2669 (2006), Mr. Medellin’s rights were directly

adjudicated by the International Court of Justice. There can be

no dispute that the Avena Judgment is binding between Mexico

and the United States as regards Mr. Medellin’s case. See I.C.J.

Statute, Art. 59. This difference is crucial, and as the United

States has recognized, it requires that the state courts set aside

any procedural barriers that would otherwise bar review of Mr.

Medellin’s Vienna Convention claim on the merits.

V. The United States Is Obligated to Fully Implement

the Avena Judgment.

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, 127 S. Ct. 2129

(2007). Accordingly, the President determined that the United

States would discharge 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.

24

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 to

grasp the nature of the international legal proceedings that led

to this litigation. Both the United States and Mexico had

already agreed in advances to be bound by the Avena Judgment

by acceding to the Optional! Protocol, the United Nations

Charter, and the ICJ Statute. See supra at 5-6. The Avena

Judgment represents the “settlement” of Mexico’s dispute with

the United States, and it fully addresses the “nights and

obligations” of the United States with respect to 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

25

be implemented. Generally speaking, those States

which accept the jurisdiction of the Court are ready to

comply with its decisions.

INTERNATIONAL COURT OF JUSTICE, ICJ HANDBOOK 75 (Sth ed.

2004) (citations omitted), available at http://www. icj-

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

March 6, 2007). Cf La Abra Silver Mining, 175 U.S. at 463

(“an award by a tribunal acting under the joint authority of 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 Optianal 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 “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

Associye 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 Judgment, preface. Mexico, in turn, was

represented by fifteen lawyers, including the legal adviser to the

26

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 Internationaf Law Section of the

Mexican Foreign Ministry, and other distinguished professors

and advocates. /d.

Although the IC] 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, §154(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. Mexico welcomed the

Presidential Determination as an indication of the President’s

intent to bring the United States into compliance with the ICJ’s

mandate. Had Mexico opposed the President’s action, it would

not have submitted an amicus brief to the Texas Court of

Criminal Appeals in support of Mr. Medellin’s argument that

the court should abide by the President’s determination.

CONCLUSION

Mexico fully expects that its treaty partners are capable

of carrying out the obligations undertaken by their duly

authorized representatives. In this case, the United States

promised Mexico that it would abide by the final judgment of

the International Court of Justice regarding the treatment of

27

Mexican nationals whose rights were violated under Article 36

of the Vienna Convention on Consular Relations. Amicus

curiae the Government of Mexico respectfully urges this Court

to ensure the United States lives up to that promise by reversing

the decision of the Texas Court of Criminal Appeals.

Respectfully submitted,

Sandra L. Babcock

Counsel of Record

Bluhm Legal Clinic

Northwestern Law School

357 E. Chicago Avenue

Chicago, IL 60611

(312) 503-0114

28