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Executive, UN's ICJ, and Opponents of Death Penalty All Get Served by SCOTUS
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The Supreme Court shot down three powerful entities in one fell swoop:

President Bush overstepped his authority when he ordered a Texas court to reopen the case of a Mexican on death row for rape and murder [of two girls, aged 14 and 16], the Supreme Court said Tuesday.

In a case that mixes presidential power, international relations and the death penalty, the court sided with Texas and rebuked Bush by a 6-3 vote.

The president was in the unusual position of siding with death row prisoner Jose Ernesto Medellin, a Mexican citizen whom police prevented from consulting with Mexican diplomats, as provided by international treaty.

An international court [the International Court of Justice, or ICJ] ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country’s consular officials. The international Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases.

The President (and the executive branch more broadly), the ICJ (the UN’s judicial body), and those opposed to capital punishment were all rebuked.

The state of Texas has some wiggle room in pulling directly from the Vienna Convention. Article 36, Paragraph 2 reads:

The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

So all parties to the treaty may go about it honoring in their own way, so long as they in effect do everything that the preceding paragraph (which states that consular officials are free to communicate with nationals and viceversa, and that the receiving State should make both aware of that ability to communicate) states they must do. Uh, and Texas has made sure that the US does just that.

That’s pushing it! But the child rapist and murderer confessed to the heinous acts. So talking to Mexican consular officials wouldn’t have changed the outcome of the case. Thus, the effect of how Texas went about offering that communication (it wasn’t offered) to Madellin was ultimately the same as if Texas had gone about it as stipulated explicitly in the Vienna Convention (inform Madellin immediately of his right to communication). Whether or not they had the chance to tell him to blame it all on the gringo is irrelevalent–he’s living on borrowed time in either case.

Further, the convention contains its own state’s rights (actually, ‘nation’s rights’) clause. The first paragraph of Article 55:

Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State. [Aren’t Mexican consulates that encourage Mexicans living in the US to vote for Mexican interests in US elections acting in violation of this?]

Okay, I’m playing the unscrupulous legalist here. It’s pretty clear that if the US acts to honor the treaty in good faith, Madellin’s in good shape. When the ICJ heard the case in ’04, it came to the same conclusion.

In writing for the majority, Chief Justice Roberts doesn’t deny that. Instead, he points out that since the treaty lacks specific self-executing enforcement mechanisms, creating them falls to the Legislative branch of the US:

While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis.

Otherwise, the Executive gains broad domestic legislative powers through treaties made, as the Senate (two-thirds support required) cannot foresee exactly how those treaties will be enforced within the US. Nor should the Senate’s consenting to the treaty be seen as a grant of those powers to the Executive branch.

Roberts gives President Bush a shot for ordering the state of Texas to stop the trial proceedings from going forward:

The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress, no the Executive. … It is a fundamental constitutional principle that “‘[t]he power to make the necessary laws is in Congress; the power to execute in the President.'” … A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President–acting on his own–to achieve precisely the same result.

Both the powers given to the Legislative branch and the Tenth Amendment undercut Bush’s presumption of the power to halt the trial proceedings and stop the state of Texas from putting Madellin down.

From the casual observer’s perspective, it seems sneaky. Yes, the international treaty expresses commitments on the part of the US to open up channels of communication between a detained national and his consulate, “but not all international law obligations automatically constitute binding federal law enforceable in the United States courts.” So Madellin and Mexico are ‘paying the price’ because Congress has ‘dropped the ball’.

Good. Any obstacle binding what takes place domestically in the US to international law is favorable in my view. As the world’s market dominant minority, the US is not going to get sympathy from any UN organ. The ICJ is not inclined towards the interests of the US. There are no multilateral guarantees of reciprocity anyway, so US compliance can be (and often is) taken for granted.

Self-executing clauses within a treaty itself make it much easier for other parties to a treaty to identify one member’s lack of compliance. Thus, they do more to ensure reciprocity. But that’s what makes it much more difficult to get such clauses included in the first place.

Since, practically, the public cannot reasonably hold the executive to account for treaties made in the past when their consequences may not be made manifest until several years down the road (in this case, 45 years later), that’s for the better. The alternative is to allow the legislative decisions to be made via international treaty, with potential disputes being adjudicated in foreign or international courts.

On the international level, I see this decision as a victory for US sovereignty. And on the national level, I see this as a victory for state sovereignty. No, judges from Jordan, Venezuela, Mexico, and Morocco will not determine how the state of Texas runs itself, even if the President wishes it were so.

(Republished from The Audacious Epigone by permission of author or representative)
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  1. Good head's up, I want to do a good news post on this soon myself. Provisionally, it looks like the Bush family did not vet for one-world sentiment with utmost thoroughness.

  2. Thanks. Yes, and that it was Justice Roberts writing the majority's opinion makes it that much more trenchant.

  3. Alan,

    I don't disagree with anything Kilgannon says. He might further note that not only did President Bush "cave", but he did so in spite of the fact that he personally opposed the ICJ ruling.

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