# Amicus Curiae Brief — Medellin v. Texas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0518%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008
- **Citation:** 552 U.S. 491

## Text

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 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.

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0518%3A22. Public record. Not legal advice.