THE BLOG
01/22/2014 05:32 pm ET Updated Mar 24, 2014

Which to Execute: A Prisoner or a Treaty?

Edgar Tamayo, a Mexican, faces imminent execution in Texas for a murder he committed in Houston. But he has allies of a sort in the Netherlands and Austria. Several years ago, the International Court of Justice (ICJ), which sits in The Hague, directed the United States to take another look at the convictions and death sentences of dozens of foreigners, including Tamayo, in light of American authorities' violation of the Vienna Convention on Consular Relations. The governor of Texas, however, was unimpressed. Not only has Rick Perry ignored the ICJ's order, but he has rebuffed an exhortation from the Secretary of State. As a result, his state is unilaterally putting the nation in default of an obligation under international law. And according to the Supreme Court, because Congress has not "executed" a treaty, Texas may go ahead and execute the prisoner.

Under the Vienna Convention, authorities arresting a foreigner "shall inform" that person of the right to request contact with his or her consulate. Tamayo was not so informed. After his conviction and death sentence, Mexico brought a case to the ICJ claiming that the United States had denied Tamayo and other Mexican citizens (including fourteen other death-row inmates in Texas) their rights under the treaty. The forum was proper because when the United States ratified the treaty, it consented to the jurisdiction of the ICJ to resolve any disputes. Finding the United States in violation of the treaty, the Court ordered it "to provide . . . review and reconsideration of the convictions and sentences."

At first, Governor Perry's predecessor, President George W. Bush -- hardly a cheerleader for international law himself -- had denounced Mexico's suit as an "unacceptable intrusion" into American affairs. But by the time of the judgment, he had come around. Presumably mindful of diplomatic repercussions, he issued a memorandum stating that "the United States will discharge its international obligations under the decision of the International Court of Justice . . . by having State courts give effect to the decision . . . ."

Texas, however, didn't "get" the memo. Its courts had already ruled that whatever right its prisoners might have under the treaty, they had raised it too late for judicial consideration, no matter what the ICJ might think. The entreaty by the state's favorite son in the White House had no effect on the Texas Court of Criminal Appeals: "We hold that the president has exceeded his constitutional authority by intruding into the independent powers of the judiciary."

Was Washington an intruder? Was Mexico? Those questions came to the U.S. Supreme Court in the 2008 case of Medellín v. Texas. The Bush administration supported the prisoners, but the Court, by a 6-3 vote, held that states need not obey the President's memo. Moreover, according to the justices, domestic courts were free to flout the ICJ's ruling. That decision rested on the premise that treaties qualify as binding internal law only if Congress so legislates, unless they are deemed, through a murky analysis of whether their aims are judicial or merely political, to be "self-executing." According to that doctrine, even once a non-self-executing treaty has been duly ratified and, as constitutionally required, approved by two-thirds of the Senate, it operates only in the international arena, without creating law enforceable in state or federal courts.

The Medellín majority acknowledged that the Vienna Convention might be self-executing. Even so, the justices argued, the provision in a separate treaty -- the United Nations Charter -- under which each nation "undertakes to comply" with ICJ decisions is not. In other words, even if the Vienna Convention itself counts as domestic law, that is not true of ICJ applications of the treaty. Absent congressional legislation adopting them, the import of those judgments is only as international law.

"International law," the Supreme Court proclaimed more than 100 years ago, "is part of our law." Despite reaffirming that position earlier this century, the Court did not mention it in Medellín. But the doctrine of non-self-execution, despite its own long history, is hard to square with the Constitution's Supremacy Clause, which gives treaties the same status as federal law: "all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The Framers might have added that if a "thing" notwithstanding is Rick Perry, a treaty stands little chance. In one of his books, Perry ridiculed the Medellín dissenters for having the temerity to imply that "international law should trump the laws of Texas." Apparently, when famously musing that Texas might secede, he chafed at the restraints of not only the United States but also the world community.

In any event, as the law stands, either Congress executes a treaty or Texas executes Tamayo. That is, of course, unless Perry decides to commute the sentence. Based on his comments, it seems more likely that the chief executive of Texas will choose the role of executioner.