Posted on 03/09/2005 8:35:05 PM PST by neverdem
Prompted by an international tribunal's decision last year ordering new hearings for 51 Mexicans on death rows in the United States, the State Department said yesterday that the United States had withdrawn from the protocol that gave the tribunal jurisdiction to hear such disputes.
The withdrawal followed a Feb. 28 memorandum from President Bush to Attorney General Alberto R. Gonzales directing state courts to abide by the decision of the tribunal, the International Court of Justice in The Hague. The decision required American courts to grant "review and reconsideration" to claims that the inmates' cases had been hurt by the failure of local authorities to allow them to contact consular officials.
The memorandum, issued in connection with a case the United States Supreme Court is scheduled to hear this month, puzzled state prosecutors, who said it seemed inconsistent with the administration's general hostility to international institutions and its support for the death penalty.
The withdrawal announced yesterday helps explains the administration's position.
Darla Jordan, a State Department spokeswoman, said the administration was troubled by foreign interference in the domestic capital justice system but intended to fulfill its obligations under international law.
But Ms. Jordan said, "We are protecting against future International Court of Justice judgments that might similarly interfere in ways we did not anticipate when we joined the optional protocol."
Peter J. Spiro, a law professor at the University of Georgia, said the withdrawal was unbecoming.
"It's a sore-loser kind of move," Professor Spiro said. "If we can't win, we're not going to play."
Ms. Jordan emphasized that the United States was not withdrawing from the Vienna Convention on Consular Relations itself, which gives people arrested abroad the right to contact their home countries' consulates. But the United States is withdrawing, she said, from an optional protocol that gives the International Court of Justice in The Hague, the principal judicial organ of the United Nations, jurisdiction to hear disputes under the convention.
"While roughly 160 countries belong to the consular convention," she said, "less than 30 percent of those countries belong to the optional protocol. By withdrawing from the protocol, the United States has joined the 70 percent of the countries that do not belong. For example, Brazil, Canada, Jordan, Russia and Spain do not belong."
Among the countries that have signed the protocol are Australia, Britain, Germany and Japan.
Ms. Jordan said Secretary of State Condoleezza Rice informed Kofi Annan, the secretary general of the United Nations, of the move on Monday.
Harold Hongju Koh, the dean of the Yale Law School and a former State Department official in the Clinton administration, said the Bush administration's strategy was counterproductive.
"International adjudication is an important tool in a post-cold-war, post-9/11 world," Dean Koh said.
For 40 years, from 1946 to 1986, the United States accepted the general jurisdiction of the International Court of Justice in all kinds of cases against other nations that had also agreed to the court's jurisdiction. After an unfavorable ruling from the court in 1986 over the mining of Nicaragua's harbors, the United States withdrew from the court's general jurisdiction.
But it continued to accept its jurisdiction under about 70 specific treaties, including the protocol withdrawn from on Monday, said Lori F. Damrosch, a law professor at Columbia. The other treaties cover subjects like navigation, terrorism, narcotics and copyrights, and they are unaffected.
The United States Supreme Court is scheduled to hear the case of José Ernesto Medellín, a Mexican on death row in Texas, on March 28. Mr. Medellín asks the court to enforce last year's judgment of the international tribunal. Texas opposes the request.
When the federal government filed its supporting brief for Texas in the case at the end of last month, it appended the memorandum from the president to the attorney general.
Before the administration's strategy came into focus, international law professors greeted the memorandum with amazement.
"This is a president who has been openly hostile to international law and international institutions knuckling under, and knuckling under where there are significant federalism concerns," Professor Spiro said.
As it turned out, Dean Koh said, the government had "an integrated strategy."
"Element 1," he continued, "was to take the bat out of the Supreme Court's hand."
Lawyers for Mr. Medellín reacted cautiously. In a motion filed in the Supreme Court yesterday, Donald F. Donovan, a lawyer with the New York law firm Debevoise & Plimpton, asked the court to put off hearing argument until Texas state courts could consider Mr. Medellín's claim.
For their part, Texas prosecutors have not conceded that the president has the power to force courts there to reopen the Medellín case.
In a statement, Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas, questioned the president's authority.
"The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States," Mr. Strickland said. "We respectfully believe the executive determination exceeds the constitutional bounds for federal authority."
Sandra Babcock, a Minnesota lawyer who represents the government of Mexico, said she had no doubt that the president was authorized to instruct state courts to reopen Mr. Medellín's case and 50 others.
"The law is on our side," Ms. Babcock said. "The president is on our side. I keep having to slap myself."
Some good news in the international arena.
There's a Cowboy in the White House (and apparently a Cabayero over at the Justice Department, not mention the Iron Lady at State) Yee Haw!
"It's a sore-loser kind of move," Professor Spiro said. "If we can't win, we're not going to play."
Professor Spiro's premise, of course, is that the United States should be the loser. The same goes for all international institutions. Come to think of it, putting the Professor in an institution might be the ideal solution.
important tool of those who are now OBSESSED with "containing" the USA. Important to the peacenics, important to the French, important to the EU deluders, important to everyone who is obsessed with showing the American Republic as the longest surviving and youngest nation is still somehow a failure.
international adjudication is crucial to the enemies of the USA. It is their ONLY viable weapon.
Hi SmartA! I'm sure he is kept well informed. He indicated way back that the U.N. would not have jurisdiction over private American individuals.
he is a typical law professor. Law professors are almost universally so far left that they make college professors like ward churchil look moderate right leaning.
LMAO!!! The New York Times really hates this!
Methinks this "scholar" needs to study his subject a bit more.
ping!
"It's a sore-loser kind of move," Professor Spiro said. "If we can't win, we're not going to play."
Idiot. What does he think, we signed a blank check?
"If we can't win .. we're not going to play"
EXACTLY!!!
We could really piss them off and make it the League of Civilized Nations.
Ping!
Yippee!
American law applies in the United States.
International law applies elsewhere!
.
He is the type of person who would never survive a physical fight. The mentality that does not comprehend that the only LEGAL recourse at times is physical and the "paper law" is not all.
Law professors like that (like judges) have their entire validation wrapped up into believing that the law is above all. (they make god in their imagage too but that is another story) Above all as long as the outcome is leftward directed.
I like it!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
