ICJ의 아베나 判決과 부시 대통령의 覺書

Following the ICJ’s ruling in Avena, a number of the named parties renewed their efforts to obtain relief in the United States judicial system. One of them, Joses Ernesto Medelin relied on the ICJ’s Avena decision to file a habeas case in federal court. Though the district and circuit courts denied his claim, the Supreme Court granted a writ of certiorari for Medelin v. Drekte. President Bush responded to the grant of certiorari in three ways: 1) he issued the Avena Order compelling state court compliance with the ICJ’ Avena decision, 2) he withdrew from the Optional Protocol and 3) he asked the Supreme Court to dismiss Madelin. The Avena Order required that if any of the individuals named in the Avena decision petitioned for review in state court, the court must reopen the exhausted appeal to give effect to the right to review and reconsideration as defined in the ICJ’s Avena decision. This article will address some responses of U.S. courts to the President Bush’ Memorandum Order. Though there are some answers, this article will propose that state courts should interpret the treaty of their own and choose to follow the ICJ’s interpretation, not out of deference, but because it correctly reflects the meaning behind the treaty’s provisions. And following the ICJ’s interpretation of the Treaty could have positive long-term consequences for the United States’ interest abroad. Adopting the ICJ’s interpretation and refusing to apply procedural default rules where they prevent a prejudiced litigant from ever asserting an article 36(1) violation would encourage other countries to respect the Article 36(1) rights of U.S. citizens.