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U.S., Mexico Clash Again in Court Over Executions
The International Court began two days of arguments last Thursday
The National Law Journal
June 24, 2008
Jose Medellin is one of 52 Mexican nationals on death row who weren't informed of their right to counsel.
Lawyers for the United States and Mexico are back in the International Court of Justice over Mexico's unusual request for an order to delay the imminent executions of five Mexican nationals on Texas' death row because the United States remains in default of its treaty obligations.
The International Court, commonly known as the ICJ or the World Court, began two days of arguments on Thursday on Mexico's formal request for an "interpretation" of the court's 2004 ruling, called the Avena judgment.
In the meantime, Mexico has asked the court to take "any and all steps necessary" to prevent the execution of its citizens, 50 of whom are on state death rows, and one of whom -- Jose Medellin -- is scheduled for execution in Texas on Aug. 5.
The ICJ ruled in 2004 that the United States had violated the 1963 Vienna Convention on Consular Relations because it had not provided the Mexican inmates with access to their country's consular officials before their trials.
In the Avena judgment, the court directed the United States to review, by a means of its own choosing, the convictions and sentences of those inmates to determine whether they had been prejudiced by the violation.
President Bush agreed to comply with the judgment even though he subsequently withdrew the United States from the convention. He issued a presidential memorandum directing the states to provide court review of the Mexican cases. Oklahoma reportedly is the only state to have complied. Texas refused.
Medellin pressed the issue through Texas and federal courts. His challenge reached the U.S. Supreme Court this term in Medellin v. Texas, No. 06-984. The justices in March held that neither the Avena judgment -- which did create an international law obligation on the part of the United States -- nor the president's memorandum was directly enforceable federal law. To become binding domestic law, the court said, required legislative action by Congress.
"What's appalling about Texas setting [Medellin's] execution date is everyone recognizes the United States has an international obligation to comply with the Avena judgment, even the state of Texas," said Sandra Babcock, director of the Center for International Human Rights at Northwestern University School of Law and counsel to Mexico and Medellin, along with Donald Donovan, partner in New York's Debevoise & Plimpton.
A ONE-DAY REMEDY
The ICJ's remedy -- judicial hearings -- "would probably require one day of court time," she said, something state courts do regularly in habeas cases. This remedy, she said, was "very modest," and when weighed against the consequences of noncompliance -- damage to the United States' reputation and other nations' suspension of the Vienna Convention obligation -- "the benefits far outweigh the damages."
Lawyers for the State Department did not file a written response to Mexico's latest request of the ICJ, said department spokesman Rob McInturff, and were not available for comment.
In its filings with the court, Mexico contends there is a dispute now about what the Avena judgment requires: Is it an "obligation of result" or an "obligation of means," said international law scholar Lori Fisler Damrosch of Columbia Law School.
The United States' position, according to Mexico, is that the Avena judgment requires a means of providing review and reconsideration of the sentences, and the United States provided the means -- the presidential memorandum -- and it didn't work, Damrosch said.
"Mexico wants to say the judgment itself requires a result: review and reconsideration, and it hasn't happened yet," she said.
The Columbia law scholar said she would be "astounded" if the United States did not argue first that the ICJ no longer has jurisdiction because the case ended four years ago and raised objections as well to any measures for delaying executions.
Babcock said she believes "the only way out" of this international legal thicket is for Congress to legislate that federal courts must provide the review mandated by the Avena judgment. She said she is hopeful legislation will be introduced in the next few weeks.
"The idea that the most powerful nation on earth has made a treaty promise with partners that it can't live up to would be sad," she said. "I really hope Congress will step up to the plate."
