Question About Medellin, Breard and the Vienna Convention

[Marty Lederman]

I am confused about one aspect of the Medellin case in which the Court granted cert. yesterday, and was hoping that others could shed some light. I apologize in advance that this might be a bit off-topic for the lists:  If someone is a member of the International Law list, perhaps they could forward it there.  I also apologize if I have overlooked an obvious answer to this question.

As I understand it, there are two "substantive" questions in Medellin concerning the meaning of the Vienna Convention:  Does the Convention create an "individually enforceable right" for a foreign criminal suspect to consult with his or her nation's consular office?  And, if so, does the Convention require a signatory party (such as the U.S.) to waive procedural defaults under domestic law (here, that the issue was not preserved below for purposes of habeas under the AEDPA) for someone raising such a right?  Under governing Fifth Circuit law, the answer to the former question is "no," and under Breard, the answer to the second question is also "no":  the Court held that, in its view, the Convention does not require the U.S. to excuse a failure to abide by a procedural default rule.

My understanding is that the ICJ has recently held to the contrary on both of these questions as a matter of Convention interpretation, and that the questions presented in the pending SCOTUS case are whether the Supreme Court should, or must, defer to the ICJ's interpretation of the treaty.

Here's my question:  Let's say that the Court holds that the ICJ was correct -- or that, in any event, the ICJ's rulings are binding on the U.S. (because the U.S. agreed to be bound by ICJ rulings).  Thus, let's assume arguendo that the Convention does require U.S. (and/or Texas) courts to entertain Medellin's claim that he was denied access to counsel, notwithstanding that he did not raise that claim in a manner that would be timely under the AEDPA.

It follows, of course, that if the U.S. denies Medellin a right to raise that claim, it (the U.S) will be in violation of international law, and subject to international sanctions.  But even if all this is true, will Medellin be entitled to relief under U.S. law?  To be sure, the Vienna Convention is the Supreme law of the Land.  But so is the AEDPA.  And won't the requirements of the Convention be "trumped" by the AEDPA, because the congressional statute is "later-in time," having been enacted many years after Vienna was ratified?  This was the alternative holding in Breard, 523 U.S. at 376.  I don't understand how a ruling for Medellin will affect that holding.  But perhaps I'm missing something obvious.
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