ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, June 5, 2008


Icj_2 I'm interrupting my vacation to bring this breaking news.  I have already posted numerous times (e.g., here, here, and here) on the recent U.S. Supreme Court decision in Medellin v. Texas, in which the Court found that the State of Texas does not have to implement the International Court of Justice's Avena decision. 

Now, as reported on Opinio Juris and the International Law Profs Blog, Mexico has upped the ante, bringing a new case before the International Court of Justice (represented metonymically at left) and seeking both provisional measures to prevent the execution of Mexican nationals denied their VCCR rights and an order that the U.S. provide "review and reconsideration" of cases involving such Mexican nationals in accordance with the Avena decision.

I call this sweet for three reasons: first, it allows the ICJ to weigh in on Chief Justice Roberts' view that the sole remedy  for a state's failure to abide by a judgment of the ICJ is a political solution via the U.N. Security Council.  Second, it could even permit the ICJ to suggest what practical steps the United States must take, in light of the Medellin case, in order to comply with its obligations under the VCCR and Avena.  Third -- perhaps the sweetest of all -- the Bush administration basically backed Mexico in the Medellin case, calling upon Texas to provide review and reconsideration in accordance with Avena.  But it did so in a rather diffident manner, through a Presidential memo (what, Dubya couldn't find the form for an executive order?!?) which cited the principle of comity as the basis for its directive to the states to implement the Avena decision.  So what will the administration do now when Mexico is in effect calling its bluff.  Will the Bush administration introduce legislation calling on state courts to provide review and reconsideration of Avena defendants' convictions and sentences which, according to the Roberts Court, would suffice to override state procedural rules barring successive habeas petitions?

[Jeremy Telman]

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