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When the International Court of Justice recently ordered the United States to stay temporarily the executions of three Mexican nationals on state death rows, its order was unlike two previous orders against the United States, say international law scholars, and should be difficult for the Bush administration to evade. “The Bush administration is totally caught between its desire to protect Americans abroad and a desire to be seen as tough on crime,” says Michael Scharf of Case Western Reserve University Law School. “I’m not sure how it will play out.” The International Court of Justice (ICJ), or World Court, is the principal judicial organ of the United Nations. On Feb. 5, a unanimous 15-member court, including an American judge, issued what are called provisional measures — similar in effect to an injunction — directing the United States to take “all measures necessary” to ensure that two Mexican nationals on Texas’ death row and one on Oklahoma’s death row are not executed before the ICJ rules in Mexico v. United States of America. Mexico went to the World Court on Jan. 9 seeking the injunction and alleging that the United States had violated Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations with respect to 54 Mexican nationals now sentenced to death in various states. The court’s injunction covers three of the 54 inmates closest to execution. The Vienna Convention, to which the United States is a party, requires local officials to inform an arrested person without delay of his or her right to speak with consular officials from his or her country. The treaty also establishes a right of freedom of communication between consular officials and the accused foreign national. “All of the relevant paragraphs use ‘shall’ language and they don’t say, ‘Wouldn’t it be nice if a signatory did this?’” says Jordan Paust of the University of Houston Law Center. “This language expressly talks about rights. I don’t think the United States generally disagrees with this. As a matter of treaty law and generally within the domestic legal federal process, these treaty obligations are self-executing. Your laws must provide full effect, and if they don’t, you’re in violation of the treaty.” BINDING LANGUAGE The Mexico case is the third time in the last five years that a foreign nation has accused the United States of violating this particular convention. What makes the Mexico case different and more difficult for the United States, say Scharf, Paust and others, is that the World Court, for the first time, has made clear that its order is binding. “The injunction is actually more strongly worded and says the U.S. must take not just all measures at its disposal, but all measures necessary to ensure these people are not executed,” says Steven R. Ratner of the University of Texas School of Law. In issuing the injunction, the World Court rejected U.S. arguments that it would amount to a “sweeping prohibition on capital punishment for Mexican nationals in the United States, regardless of United States law,” which “would drastically interfere with United States sovereign rights and implicate important federalism interests.” The injunction language, says Ratner, responds to prior U.S. claims that the executive branch did all that it could to enforce the court’s prior orders but under the federal system, could not force states to delay an execution. The two prior cases in the World Court involved Paraguay and its national, Angel Breard, and Germany and its national, Walter LaGrand. In both cases, the court issued provisional measures to stay the executions pending judgments, but the men were executed. “When the LaGrand case came up, the secretary of state sent a communication to the Supreme Court at the same time the Justice Department sent a communication to the Supreme Court,” recalls Scharf. “The attorney general said, ‘Look, in the U.S., domestic law takes precedence over international law.’ The secretary of state said, ‘Look, we have treaty obligations and it would be very unwise for us not to defer to the ICJ.’ “What was weird was the Clinton administration couldn’t decide which communication to send, so it just sent both communicants saying opposite things but both were true.” After LaGrand was executed, Germany, unlike Paraguay, did not withdraw its case from the World Court, but pressed for a ruling on whether the United States had violated the Vienna Convention. In June 2001, the court ruled that the U.S. did violate the convention. “In that decision, one of the issues was whether the U.S. had violated international law by flouting its order and executing Walter LaGrand,” says Sandra L. Babcock of Minneapolis, who is representing Mexico with Donald Donovan and other lawyers from New York’s Debevoise & Plimpton. “For the very first time in its history, the ICJ said, ‘Yes, our orders are binding and the U.S. has an obligation to comply.’ The precedent didn’t exist at time the U.S. executed the German and Paraguayan nationals.” TWO-WAY STREET Babcock argues that simply refraining from setting execution dates for the next year costs the U.S. nothing, “whereas the cost of noncompliance at a time when the U.S. needs the support of the international community could be very high.” She and others note that foreign nations look at what the United States has done in deciding whether they will fulfill their treaty obligations. International law is a two-way street, agrees Paust, adding, “We really want the protection for our nationals in foreign countries. The U.S. has been very serious about demanding this right with respect to other countries. “It’s not in our interest to claim the feds can’t order states to comply with treaty law even though the supremacy clause mandates they are bound by treaty law.” Paust, Babcock and other international-law experts believe the United States could go into federal court to enforce the ICJ injunction if Texas and Oklahoma balk. Under Supreme Court precedent, treaties take precedence over state law, they say. “The problem is, the Bush administration does not want to be seen as contrary to the death penalty,” says Scharf. “They also are not that enamored by the World Court. On the other side, this may be the most important of all treaties for the U.S. — our citizens travel abroad more than any other country.” Because of the political ramifications of going to court to enforce the injunction and constitutional issues concerning federalism, the administration is more likely, say litigators and scholars, to exert behind-the-scenes pressure on both states to delay any execution dates. The administration has been in touch already with Oklahoma officials, says Jennifer Miller, assistant attorney general and chief of criminal appeals there. “They wanted some information from us and they’re aware of where we are in the process with [Osvaldo Torres] Aguilera,” she says. Aguilera, she says, may be at least a year away from an execution date. “The provisional order does not impact us at this time,” she says. “If it should in the future, we’ll cross that bridge at that point.” Miller notes that after the Breard and LaGrand executions, the State Department launched an aggressive effort to inform states of the rights of foreign nationals under the Vienna Convention, distributing pamphlets and holding seminars for prosecutors. And that is the irony in the whole international flap, says Paust. “It is so easy to comply with this treaty. I have a police captain in one of my classes and he’s interested in convincing the Houston Police Department to create on the backside of the Miranda card a notice that you have a right if you’re a foreign national to communicate with your consulate.” WHAT REMEDY? The World Court has set an accelerated briefing schedule in the Mexico case, and all briefs will be in to the court by October. “On the merits, the fight will be over whether people whose rights are violated are entitled to judicial review as opposed to clemency review and entitled to a remedy,” says Babcock. The U.S. has argued that the only remedy available for foreign nationals whose consular rights were violated is consideration of those violations during the pardon review and clemency proceedings. Babcock says such a remedy, particularly in Texas, would be meaningless. The treaty itself doesn’t say what the remedy is for violation, notes Scharf. “In LaGrand, it was pretty clear execution was inappropriate, but the ruling suggested there should have been something more, probably retrial, to bring the parties back into the position they would have been in had the treaty been complied with.” The court would be reading a remedy into the treaty if it were to order a retrial, he says, and some might argue such action oversteps the court’s authority. Despite no remedy in the treaty and no enforcement powers by the World Court, foreign nations do expect the court to make a difference, says Ratner. “This is extraordinarily important to Mexico,” he says. “I think some nations hope and expect the ICJ order or judgment will show the United States there is a diplomatic cost to the death penalty, especially when it involves foreign nationals. I think other states are hoping these particular people are not executed and want to make sure the U.S. really does notify every national arrested of their rights under the convention.” The death penalty cases in the World Court present a “classic case” of the shortcomings of a federal system when implementing international obligations, he adds. “When the U.S. signs treaties that the federal government alone can implement, it can be fairly simple even with congressional involvement, but it’s nothing compared to when the U.S. needs cooperation from the states,” says Ratner.

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