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President Bush Orders Compliance With World Court Order, Withdraws From Optional Protocol

by Matthew T. Clarke

President Bush has ordered the states to comply with a March 2004 decision of the International Court of Justice, also known as the World Court. In that decision the World Court ruled that fifty-one Mexican national prisoners that are incarcerated on various death rows in the United States who had been denied their consular notification rights under the Vienna Convention on Consular Relations be given a hearing on whether the denial affected their cases. [PLN, Sept. 2004, p. 12]. Bush's administrative decision was announced in a brief filed February 28, 2005, in the United States Supreme Court, in the case of one of the fifty-one Mexican nationals. One week later, Secretary of State Condoleeza Rice announced that the United States was withdrawing from the Optional Protocol to the Vienna Convention, the enforcement mechanism that allows the World Court to rule on alleged violations of the treaty.

The Optional Protocol was proposed by the United States in 1963. It and the rest of the Vienna Convention were ratified by the Congress in 1969, making them binding international treaties. The rest of the Vienna Convention spells out the rights of citizens of a foreign country (including U.S. citizens, when they are abroad) to have their country's consular officials notified and receive help from those officials when they are arrested. The Optional Protocol makes the World Court the final arbiter when foreign nationals claim to have been denied their consular rights under the Vienna Convention.

The United States touted the Optional Protocol as a method of protecting its citizens while they are abroad when it introduced the treaty. The U.S. was the first country to invoke the Optional Protocol before the World Court when it successfully sued Iran for holding 52 American citizens hostage in 1979.

The Supreme Court heard oral arguments in Medellin v. Dretke, Case No. 04-5928, the consular-rights case of one of the Mexican citizens from the World Court case, on March 28, 2005. It dismissed the case on May 23, 2005 holding it had improvidently granted review and that Medellin should first bring his claims in the lower courts. The move by the administration in ordering states to grant the fifty-one World Court plaintiffs a hearing was seen by many as an attempt to moot the Supreme Court case. Apparently it was successful. However, in the 5-4 decision, the Supreme Court reserved the right to reconsider the case after Texas grants the hearing as directed by President Bush. Justice Sandra Day O'Connor filed a dissenting opinion chastising the court for failing to address failing to the issue of compliance with international treaties.

It seems to me unsound to avoid questions of national importance when they are bound to recur," said O'Connor. Noncompliance with our treaty obligations is especially worrisome in capital cases.

It didn't help that Jose Ernesto Medellin's case is particularly gruesome. In June 1993, he was a member of a petty street gang known as the Black and Whites" attending initiation rites near a railroad track in Houston, Texas. Jennifer Lee Ertmann, 14, and Elizabeth Pena, 16, were hurrying home late after attending a party. They took a shortcut along the railroad tracks and ran into the gang. The gang members raped, tortured and murdered the girls. Five of them, including Medellin, were sentenced to death for the crimes.

Nor was Medellin's guilt at issue. He confessed to his participation in the crimes and bragged about them, telling about having to use a shoelace to strangle one girl for lack of a gun and describing how he had to put his foot on her throat because she would not die.

In Texas, Governor Rick Perry and Attorney General Greg Abbott have vowed to fight Bush's order to give Medellin and 16 other Mexican nationals on death row in Texas hearings on violations of their Vienna Convention rights. When asked by Justice Souter whether Texas would honor Bush's administrative determination and grant Medellin a hearing, R. Ted Cruz, the Texas Solicitor General arguing the case for Texas, skirted the issue.
There are significant constitutional problems with a unilateral executive decision displacing state criminal law," said Cruz. Cruz urged the Supreme Court to ignore the questions of international law and decide the case on the issue the lower courts used to refuse Medellin a ruling on the merits. Those courts held that he failed to raise the issue of the Vienna Convention on his appeal and therefore waived it for future litigation.

One problem with that convenient determination is that Medellin claims that he didn't learn of his consular notification rights until four years after he was convicted. That was long after his appeals had run their course. Furthermore, the Vienna Convention also requires that foreign prisoners be notified of their consular rights under the treaty.

Therefore, it could be seen as the fault of the United States (and Texas) that Medellin was ignorant of his rights for so long.

Meanwhile, there is a looming constitutional crisis on whether a federal president has the power to order state courts to hold hearings. Deputy U.S. Solicitor General Michael R. Dreeben urged Texas to give the defendants hearings. Otherwise, the Supreme Court will have to decide the very sensitive and delicate questions" of whether a president can enforce the World Court's judgment as a matter of U.S. foreign policy" and make that decision binding on the states. He also warned of extraordinarily broad and detrimental foreign policy consequences" if the defendants didn't receive the hearings.

Oklahoma Governor Brad Henry has already taken a more enlightened approach. He commuted the death sentence of Osbaldo Torres, an Oklahoma death row prisoner affected by the World Court order, to life soon after the World Court announced its decision. In March, 2005, in response to President Bush's determination, an Oklahoma state district court conducted a hearing on the Vienna Convention rights issue and ruled that Torres should have been informed of his consular rights. It is now up to an Oklahoma state appeals court to uphold the conviction or order a new trial.
Whatever happens regarding the hearings ordered by the World Court, this situation is unlikely to repeat itself. The Bush administration has learned its lesson well: simply refuse to allow international courts to oversee matters of international justice and it won't matter whether you live up to your treaty obligations or not.

Sources: New York Times, Seattle Times, Washington Post, Los Angles Times, Houston Chronicle.

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