A new filing in the Medellin case
on Mar 11, 2005 at 4:21 pm
The Bush Administration has formally notified the Supreme Court that it considers itself no longer bound to follow any future decision by the World Court seeking to enforce the treaty on foreign nationals’ right, when arrrested by police, to consult a representative of their home country. In a brief letter dated Thursday, Acting Solicitor General Paul D. Clement enclosed Secretary of State Condoleeza Rice’s declaration that the U.S. has withdrawn from the “Optional Protocol to the Vienna Convention on Consular Rights.”
Clement noted that he had discussed the Optional Protocol in the government’s brief filed February 28 in the case of Medellin v. Dretke (04-5928). The Medellin case involves an attempt by a Mexican national to challenge the failure of Texas officials to give him access to a consular officer from his country when he was arrested, tried and conviction of murder. The World Court has ruled that his rights under the Vienna Convention were violated.
By entering the Protocol to the Vienna Convention, the U.S. acknowledged that the World Court would have jurisdiction to decide a case against the U.S. based on a claim of a violation of the Convention. By withdrawing from the Protocol, the U.S. has declared that it will no longer accept that jurisdiction, when a violation is alleged against the U.S.
Although Rice’s declaration of withdrawal was widely seen as a surprise development, it turns out that Clement had hinted at it in his brief in the Medellin case. “Even if a Nation decides to comply with the decision in a particular case, it retains the option of protecting itself from further decisions based on the legal principles of that case by withdrawing from the Optional Protocol,” the brief said. “Giving automatic effect to the reasoning of a [World Court] decision….robs the political branches of the discretion to limit the effect of a decision to those covered by the decision by withdrawing from the Optional Protocol.”
That is what the Administration has now done. It has told the Court that the President is directing state courts in states that hold 51 Mexican nationals in prison to give them a new review of their claims of a violation of the Convention. That directive says that the President has decided to “give effect” to the World Court decision in favor of Medellin and the other 50 Mexicans — but only those 51.
The new Clement letter relating the withdrawal from the Protocol offers no suggestion of what the Court might do with that information in the Medellin case. It is unclear whether the withdrawal adds anything to, or detracts from, Clement’s argument that Jose Medellin should have no private right of his own to enforce the World Court ruling in his favor.
Meanwhile, the Court has not yet formally docketed a motion by Medellin’s lawyers to stay review of his case while they attempt to take advantange in Texas courts of the presidential directive on complying with the World Court.
