Question About Medellin, Breard and the Vienna Convention

[Marty Lederman]

That's extremely helpful -- thanks, Carlos.


----- Original Message ----- 
From: ""Carlos M. Vázquez"" <vazquez at law.georgetown.edu>
To: "Marty Lederman" <marty.lederman at comcast.net>
Cc: <LawCourts-L at usc.edu>; <conlawprof at lists.ucla.edu>
Sent: Sunday, December 12, 2004 8:38 AM
Subject: Re: Question About Medellin, Breard and the Vienna Convention


>I am not as sure as Jonathan Miller that the conflict can be avoided by 
>treating the ICJ judgment as the relevant international obligation.  The 
>judgment interprets the VCCR.  If AEDPA supersedes the VCCR under domestic 
>law, then it seems difficult to argue that a later ICJ judgment 
>interpreting the VCCR should supersede AEDPA.  (AEDPA was not at issue in 
>Torres, which was a proceeding in the state courts.)
>
> I do agree, however, that the Court should interpret AEDPA to avoid a 
> conflict with the VCCR if at all possible.  There is no conflict regarding 
> procedural default,  as AEDPA does not address procedural default. 
> Procedural default is a matter of state law and the judge-made 
> cause-and-prejudice standard, and the VCCR should prevail over both.
> If I recall correctly, the per curiam in Breard found a conflict with 
> AEDPA's provisions limiting the circumstances in which the petitioner 
> could obtain a hearing in which to present new evidence.  Is there a 
> conflict between these provisions and the ICJ's interpretation of AEDPA? 
> The ICJ held that the VCCR required a hearing, rejecting the prisoners' 
> argument that the remedy for a violation of the convention should be 
> automatic reversal.  The ICJ's requirement of a hearing thus favored the 
> state, making it possible for the state to deny relief despite the 
> violation, e.g., if the prisoner could not show prejudice.  But the VCCR 
> would /permit/ an automatic reversal approach.  That's more than the 
> prisoner is entitled to under the VCCR, but if AEDPA makes the more 
> limited relief impossible why shouldn't the result under the Charming 
> Betsy canon be the adoption of an automatic reversal approach?  If that 
> result is unpalatable, another option would be to read into AEDPA an 
> exception for VCCR claims on the theory that Congress did not have VCCR 
> claims in mind when it enacted AEDPA.  Congress clearly would have 
> preferred giving prisoners a hearing to giving them an automatic reversal.
> If a conflict between the VCCR and AEDPA were unavoidable, AEDPA would 
> prevail under the last-in-time rule.  This would mean that federal habeas 
> would be unavailable.  But the VCCR does not require federal habeas.  It 
> would be satisfied with state collateral review.  And the VCCR would trump 
> any state rules concerning procedural default, or other procedural rules 
> limiting the availability of collateral review.  Thus, if federal habeas 
> were available, states would still be required to provide a hearing, and 
> the Supreme Court should reverse them on appeal if they fail to do so. 
> Thus, if the Supreme Court affirms, Medellin should go to the Texas 
> courts.
>
>
> Carlos M. Vázquez
>
> Marty Lederman wrote:
>
>> 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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>
> -- 
> Carlos M. Vázquez
> Professor of Law
> Georgetown University Law Center
> 600 New Jersey Avenue, N.W.
> Washington, D.C. 20001
> (202) 662-9447
> vazquez at law.georgetown.edu
>