World Court and domestic law
March 15, 2005
In 1969, the United States ratified the Vienna Convention on Consular Rights, which requires that foreign nationals who are arrested have the right to consult with consular officials from their country. Fair enough: Foreigners in the U.S. have that right, and so do Americans abroad.
A protocol to that convention provided a means of enforcement: It allowed the International Court of Justice, also known as the World Court, to hear complaints against countries that did not comply with the convention.
The convention was ratified by 166 countries--but only 30 percent ratified the protocol, and for good reason. Most countries are not willing to let an international court dictate or interfere in their domestic legal affairs. The U.S. was one of the few nations that signed the protocol. It tried to use those rules in 1979 to win the release of the 52 American hostages in Iran.
On March 7, Secretary of State Condoleezza Rice informed the United Nations that the U.S. is withdrawing from the protocol. That was a decision long overdue.
Last year, the World Court ordered the U.S. to review the cases of 51 Mexican nationals on Death Row in six states who allegedly did not get the chance to speak with consular officials at the time of their arrests.
The order for a review does not seek to set those men free but directs the U.S. courts to revisit their cases to determine if the lack of access to consular officials made any material difference in their trials. Because the U.S. was a signatory to the protocol, on Feb. 28 Bush ordered the six states in question to conduct the reviews.
About two weeks later came Rice's announcement of the U.S. withdrawal from the protocol. The World Court decision regarding the Mexican nationals no doubt prompted the U.S. to review the implications of the protocol and what role international courts should have on the domestic judiciary. In effect, the administration has said, we will live by our obligation, but we are no longer comfortable with that obligation.
The U.S. Supreme Court will hear arguments on March 28 in the case of Jose Medellin, one of the 51 Mexicans on Death Row. He is asking the U.S. Supreme Court to enforce the World Court decision concerning his lack of access to consular officials.
Most legal scholars seriously doubt the Supreme Court will subordinate the U.S. legal system to orders of the World Court, particularly now that the protocol has been rescinded.
But since the U.S. is still a party to the Vienna Convention, the principle of consular consultation is likely to be recognized and incorporated into domestic law. Domestic law enforcement officials will have to follow the principle of consular consultation, but disputes will be settled in American courts rather than international courts.
Texas, which holds 15 of the 51 Mexicans on Death Row, has contested the president's right to order states to review these cases and the authority of international tribunals to tell states what to do.
There are some grounds for questioning whether the president overstepped his authority in this case, but not the applicability of the principles of the Vienna Convention. The U.S. Constitution says that the judges in every state are bound by treaties made by the United States.
The Bush administration has made a careful and proper distinction here. It has not voided the Vienna Convention--foreign nationals here and Americans abroad still have the right to see their consuls. It has, though, clarified another important principle: Any violations of the Vienna Convention in the U.S. ought to be settled by American, rather than international, courts.
