U.S. Says It Has Withdrawn From World Judicial Body

NY Times ^ | March 10, 2005 | ADAM LIPTAK

[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for 51 Mexicans on death rows in the United States, the State Department said yesterday that the United States had withdrawn from the protocol that gave the tribunal jurisdiction to hear such disputes.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."

[justshutupandtakeit]

The SC's job is to rule upon law and since NO law is created only by domestic forces but draws upon a long tradition of law outside the nation referring to foreign law violates no constitutional standard. Nor is this the first legal opinion which considers law elsewhere it is as old as the republic.

But you can get hysterical if you like.

[mjaneangels@aolcom]

"The SC's job is to rule upon law and since NO law is created only by domestic forces but draws upon a long tradition of law outside the nation referring to foreign law violates no constitutional standard. Nor is this the first legal opinion which considers law elsewhere it is as old as the republic.

But you can get hysterical if you like."

Let me ask again. WHAT LAW DID JUSTICE KENNEDY RULE ON?

[JSteff]

Some liberal professor ramblings from Mr. Spiro in "Disaggregating U.S. Interests in International Law" on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=611101

This essay thus suggests a future in which international law is absorbed into U.S. law not because it is good - although it may well be that, too - but because rational institutional action will pull in that direction. This incorporation will occur in American constitutional law as in other areas, as international law ramifies through judicial and political channels. The essay attempts to marry Constructivist foregrounding of transnational actors with Liberal IR premises of institutional self-interest and domestic power-politics, sketching a new model of international relations under the moniker of liberal transnationalism

[jocon307]

You mean Bush did something where he put the interests of the US above those of Mexico?

That does rate a Hallelujah!

[Don Corleone]

Spiro was awarded an Open Society Institute/Soros Foundation fellowship to study the law of American citizenship in 1997-98...

Hmmmm?

[Unam Sanctam]

Peter J. Spiro, a law professor at the University of Georgia, said the withdrawal was unbecoming.

Governor Romney was accused of sexism when he called a female opponent's language "unbecoming". I'm glad the left has not ruled out the use of this good word permanently.

[zip]

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.

Yep, H. Hongju Koh, Great American patriot. /sarcasm off.
I am getting damned sick and tired of "former .....Clinton"..appointees being quoted to belittle President Bush's administration. Klintoon's appointees were so partisan that reality escaped them. The real tragedy is that DOJ, State, CIA etc are still stacked with klintoon people. Maybe getting rid of left leaning "Appeaser" Powell and replacing him with a real American (Dr Rice) will help straighten out the State Dept. Now if his new AG can whip DOJ into shape, we might overcome the backstabbing leaks from within.

[zip]

Don't SC Justices have to swear to uphold the Constitution of the United States of America?

[mjaneangels@aolcom]

"Don't SC Justices have to swear to uphold the Constitution of the United States of America?"

That is the way I have always understood it.

[zip]

I guess the thing that bothers me the most is that two of the nine Justices have basically stated that som of their rulings were based on "International Law" and world opiniion. As my son once said "I don't understand everything that I know".

[mjaneangels@aolcom]

"I guess the thing that bothers me the most is that two of the nine Justices have basically stated that som of their rulings were based on "International Law" and world opiniion. As my son once said "I don't understand everything that I know".

I was always under the impression that they were supposed to be working for us, US citizens. When were they moved to the UN and does the UN pay them? This is disgusting.