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On Feb. 5, the same day that Secretary of State Colin Powell appeared before the United Nations Security Council to demonstrate Iraq’s noncompliance with U.N. resolutions to disarm, the International Court of Justice ordered the United States to stay the executions of three Mexican citizens on death row. The United States needs to comply. The problem is not just that a duly recognized court has issued an appropriate order in a case over which it has jurisdiction, although that is true. Mexico has alleged that the United States repeatedly violated the Vienna Convention on Consular Relations by failing to notify arrested Mexicans of their right to be put in contact with their consulate, and the United States recognizes that Mexico is largely correct. The Vienna Convention expressly establishes World Court jurisdiction over disputes under the treaty. Mexico claims that had its citizens had the assistance of their consulate, they might have avoided the death penalty. And it is hardly unreasonable to block their executions pending final resolution of the international case. The World Court order was unanimous, including the vote of the American judge, Thomas Buergenthal. But the bigger problem is that the stakes are higher now than in the past. While the United States has a track record of failing to respect similar orders, this case means much more to Mexico than the earlier cases meant to other nations. And given the ongoing dissension over Iraq, the United States today sorely needs credibility as a nation that abides by international law and institutions. MEXICAN DISTRESS The U.S.-Mexican relationship is at its lowest point in many years. President George W. Bush once flaunted a special relationship with President Vicente Fox, a socially conservative, pro-business leader like himself. But then Sept. 11 reversed progress on an anxiously awaited immigration agreement. Mexico sees the United States as callous for sitting by while hundreds of Mexicans die annually in illegal desert crossings. The treatment of their fellow citizens up north — including the nearly 5 million illegal aliens who form the backbone of U.S. agriculture and many service industries — is a vital domestic policy issue for Mexico. Mexico’s submission to the World Court listed 54 Mexicans on death row for whom U.S. authorities did not comply with the Vienna Convention. The court’s order addressed just three — two in Texas and one in Oklahoma. The Mexican government turned to the World Court only after years of pressure through other channels failed. Last August, for instance, President Fox canceled a trip to the United States and a meeting with President Bush to protest the execution of a Mexican citizen. If the situation were reversed, the United States would certainly take action. The United States expects Mexico to continue to respect its legal obligations on water rights, agricultural tariffs, extradition and drug trafficking, not to mention the Vienna Convention requirements when U.S. citizens are arrested south of the border. (One would think most Texans would gladly trade a delay in two executions for progress on water rights and extradition.) But a high price may be paid if the United States continues to ignore international law on an issue that Mexico regards as vital. The United States maintains that while it violated the treaty, Mexico’s only remedy is an apology. According to the U.S. government, since the Mexican defendants received due process under U.S. law, contact with consular authorities would not have made any difference. But this ignores what consular authorities can do to counterbalance police pressure for a confession, persuade a confused foreign national to accept a plea bargain, sometimes pay for private counsel, and obtain mitigating material on the accused’s life history before immigrating to the United States. In one recent Texas case, it was the Argentine consular representatives, not the court-appointed defense attorney, who recognized that racist testimony by a prosecution expert offered grounds for an appeal (which ultimately produced an admission of error by the state attorney general). Since the World Court has already held that the right to consular notification is an individual right of the accused, a mere apology will hardly satisfy Mexico. The risks of defying the World Court do not end with our southern neighbor, however. Perhaps the most costly consequence will be the harm to our international reputation. The United States cannot afford to ignore the United Nations’ judicial arm at a time when the Bush administration is condemning Iraq as a dangerous scofflaw. Of course, threats to world peace are different from loss of a criminal defendant’s right, but any nation calling for multilateral action against another for failing to comply with Security Council resolutions had better show respect for the world’s legal institutions. President Bush should issue an executive order staying all the executions that the World Court identified. In doing so, he would run no risk of being labeled soft on crime; the president’s pro-death penalty credentials are unquestionable. However, he does need to demonstrate that the United States abides by international law. With its rejection of virtually every major U.N. initiative, from the Kyoto Accords to the International Criminal Court, the Bush administration has instead given the impression that it lacks a long-term commitment to international law. Some governors and members of Congress will likely complain that an executive order would infringe upon states’ rights. At oral argument at The Hague, the United States indicated that the terms of the order demanded by Mexico would “test the limit of federal authority, if they would not go beyond it.” But the United States has a long history of executive orders that modify litigants’ rights for foreign policy reasons. In the Iranian assets case — Dames & Moore v. Regan(1981) — the U.S. Supreme Court affirmed the authority of President Ronald Reagan to nullify attachments and liens on Iranian assets as part of an agreement to secure the release of our hostages and direct claims against Iran to an international tribunal. Likewise, in United States v. Belmont(1937), the Supreme Court allowed President Franklin Roosevelt to block claims against the Soviet government as part of the agreement leading to diplomatic relations with the Soviet Union. Given the long recognition that the foreign affairs power is a source of federal authority vis-�-vis the states, any federalism objections are primarily political, not legal. President Bush could also distinguish between the two cases in 1998 and 1999, when the United States did not heed similar orders involving Paraguayan and German citizens, and today’s dispute with Mexico. The World Court’s orders were less forceful in the earlier cases. The prior stays were issued with only hours to go before execution, and both orders merely demanded that the U.S. government undertake “all measures at its disposal” to block the execution. By contrast, the Mexican stay flatly requires that the United States take “all measures necessary to ensure” that the executions not take place pending a final judgment in the World Court case. AND THE REAL RISK IS . . . Complying with the World Court’s temporary stay does not mean that all Mexicans on death row in the United States will ultimately receive a retrial. In its final decision in the German case, the World Court held that, while an apology to Germany was insufficient, the United States ordinarily has a choice of means to ensure reconsideration of a conviction and sentence in light of the Vienna Convention violation. When the court finally resolves the Mexican case, it will not likely require more than a hearing in each case to determine the degree to which lack of consular access affected the outcome. The cost of compliance with the World Court order is low; the cost of noncompliance is high. While execution dates have not been set for any of the three inmates (as of this writing), once they are, the Bush administration will need to act quickly to avoid international embarrassment. For now, all that is required is a delay in three executions. What could be further eroded is the good reputation that, along with power, allows the United States to achieve its foreign policy goals. The Bush administration seems to recognize the advantage of acting through the Security Council to deal with one pressing problem. It needs to recognize the value of acting through the World Court to handle another. Jonathan M. Miller, a professor of law, teaches international protection of human rights at Southwestern University School of Law in Los Angeles. He can be reached at [email protected].

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