Medell&amp;#195;&amp;#173;n execution violates ICJ decision in <u>Avena</u> Commentary
Medell&#195;&#173;n execution violates ICJ decision in Avena
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Rick Kirgis [Secretary, American Society of International Law]: "If the state of Texas goes ahead with the planned execution of José Ernesto Medellín without allowing him any judicial reconsideration of his murder conviction and his death sentence (to determine whether he was prejudiced by the Texas authorities' failure to notify him of his right to contact the Mexican consulate after he was arrested), the United States will breach its obligation under the United Nations Charter and the Statute of the International Court of Justice (ICJ) to comply with the decision of the ICJ against the United States in the Avena case. In that case the ICJ held that the failure to provide review and reconsideration for Medellín and similarly-situated Mexican nationals convicted of murder in the United States was a violation of the Vienna Convention on Consular Relations (the Vienna Convention). Under the UN Charter and ICJ Statute, the ICJ decision is final and binding on the United States.

The ICJ in the Avena case said that the availability of a clemency process (in this instance, potentially by the governor of Texas) would not qualify as an appropriate means of undertaking the review and reconsideration. According to the ICJ, a judicial process is required.

It is immaterial for international law purposes that it is the state of Texas, rather than the federal government of the United States, that has failed to provide the required review and reconsideration. The ICJ made that clear in the LaGrand case, which also involved state courts' failure to comply with the Vienna Convention. The International Law Commission's widely-accepted Articles on State Responsibility also make it clear that the conduct of a territorial unit of a federal State is considered an act of the federal State under international law. The fact that President Bush made an effort to get Texas and other states to comply with the ICJ judgment would be no excuse because the United States Supreme Court held not only that the judgment was not directly enforceable in American courts, but also that the President did not have the authority under federal law to determine that state courts must give effect to the judgment.

The ICJ in the Avena case made the point that the U.S. obligation under the Vienna Convention exists irrespective of due process principles under U.S. constitutional law. Consequently, even if the execution of Medellín is permissible under the U.S. Constitution without any further judicial review, there still would be a violation not only of the international law consular-assistance rules in the Vienna Convention, but also of the rules in the UN Charter and ICJ Statute relating to compliance with ICJ judgments.

Subjecting Medellín to the death penalty would not, of itself, be a failure to comply with the Avena decision. The ICJ did not address the international legality of the death penalty, as such, in the United States or elsewhere."

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