06 August 2008

Texas Violates International Law

Jose Erneso Medellin was executed in Texas yesterday for murder despite an order from the International Court of Justice (which is charted by the United Nations), that the execution not go forward because he was deprived of a right to diplomatic assistance by Texas, and not given a rehearing on the issue as required by the ICJ.

The U.S. Supreme Court ruled 6-3 that Texas wasn't bound by the order because the applicable treaty wasn't considered self-executing by the Court, and rejected a subsequent stay of execution by 5-4 with Justice Stevens changing his vote. Stevens had urged Texas to do the right thing and obey international law without being compelled to by the federal courts. Stevens apparently didn't understand Texas.

The actions of Texas, combined with the U.S. Supreme Court ruling, effectively nullifies the U.S. treaty in which the U.S. pledges to give foreigners charged with crimes access to diplomatic assistance, destroys the authority of the ICJ in the United States, and further undermines U.S. respect for international law.

Previous rulings of the U.S. Supreme Court have taken a similar approach to other U.S. treaties. For example, the U.S. Supreme Court has previously upheld as lawful the arrest and subsequent conviction of a Mexican national unlawfully (under Mexican law, at least) kidnapped from Mexico by U.S. officials in violation of the process for extradition set out in a treaty between the United States and Mexico.

Foreign law students and professors often wonder why international law is only a small part of the U.S. law school curriculum compared to its role in European and Asian law schools. The answer is simple. In the U.S., the rule is that we usually ignore international law.

1 comment:

Ken said...

Christ on a crutch, Andy! Judges in Colorado are so openly disdainful of our own domestic law that a hidebound pronouncement of the United States Supreme Court is scarcely more than a polite suggestion. Do you honestly expect our judges to respect INTERNATIONAL law?!?

For you to whinge about judges disregarding valid treaties like the International Covenant on Civil and Political Rights (which are the Law of the Land; U.S. Const., art. VI, cl. 2) is a little like Captain Renaud in Casablanca declaring that he was "shocked" to find that there was gambling going on in Rick's Cafe Americain ("Your winnings, sir."). You know that judges only follow precedent when it takes them exactly where they wanted to go in the first place, and you know just how often it happens (a lot). But do you ever complain about it? Of course not! Saying bad things about our homegrown band of Ba'athists in black robes is like making jokes about Saddam in pre-war Iraq.

In Smith v. Bender, No. 07-cv-1924, I asked the Colorado District Court to either declare my rights under the ICCPR or that America was in material breach, under the theory that we as citizens are intended third-party beneficiaries of that treaty (which is an international bill of rights). [The briefs are at http://www.knowyourcourts.com.] And to be blunt, half of our judges have never seen a Commonwealth or EU decision ... and the other half wouldn't know what to do with it if they did.