The World Court has apparently viewed its jurisdiction as reaching to criminal matters decided by a sovereign state. For details on how they have "ordered" Texas to review its death penalty cases, see the article.

Anyone think this is a political, rather than legal, move?

Of course the darn thing is political. This is why I was so angry about the recent stay in Oklahoma (as a courtesy, so they said) in response to the World Court. No sovreign state should respond to the orders of this bunch!

After the Atkins ruling that mental retardation bars the death penalty this decision will cause problems. Especially considering the Supreme Court cited other international jurisdictions and polls in reaching the decision in Atkins.

Don't you love it when other countries lecture us about due process?

Mexico moves to nix military death penalty

(Associated Press, May 31, 2004)

Mexico quietly moved to eliminate the death penalty from its military justice codes ahead of an International Court of Justice ruling regarding Mexicans condemned to die in the United States.

It was the latest in a series of gestures as Mexico comes under increasing pressure to clean up its own justice system, even as it challenges the United States at the world court in The Hague, Netherlands in a case that could result in the overturning of dozens of U.S. convictions.

Little-known and not implemented for decades, the existence of the death penalty as a punishment for Mexican military personnel represented a potential embarrassment for Mexico in its legal challenge against the United States.

While President Vicente Fox launched a broad criminal justice reform package Monday with fanfare and news conferences, Tuesday's proposal to substitute the military death penalty with 30- to 60-year prison sentences was not even announced by the president's office, or any other branch of government. The proposal was listed in a one-sentence entry in the "received bills" section of the Mexican Senate's daily gazette.

An unofficial version of the bill sent to The Associated Press by the presidential press office noted the purpose was to eliminate the last vestige of the death penalty in Mexico. The Senate agreed to turn the measure over to its defense committee for study and debate. The death penalty has not been applied in Mexico's army since 1961 and is theoretically reserved for the worst offenses: treason or serious dereliction of duty by military personnel.

The proposal came hours before the world court is expected to announce its ruling on the Mexican complaint.

While that case centers on consular assistance - Mexico wants its citizens' convictions overturned because U.S. police did not notify them of their right to help from the Mexican consulate - it is squarely aimed at the U.S. death penalty. All of the 52 Mexicans cited by Mexico in the case are on death row in U.S. prisons.

Even those who support Mexico's challenge acknowledge that the World Court case increases the pressure on Mexico to clean up its own torture- and corruption-plagued justice system.

"How can President Fox insist on justice for Mexican citizens in U.S. prisons, when he is ignoring a case in Mexico that he could easily fix?" said Laurie Freeman, Mexico representative for the Washington Office on Latin America, a U.S. thinktank.

Freeman was referring to Alfonso Martin del Campo, an Illinois native who holds dual U.S. and Mexican citizenship and who was sentenced in Mexico to fifty years in prison for the murder of his sister and brother-in-law, though no physical evidence was presented against him.

"His case is a textbook example of the flaws in Mexico's justice system," said Freeman. Del Campo said he signed a confession to the murders after being stripped, beaten, and suffocated by police.

Such tales are not uncommon in Mexico, where 646 Americans sit in jail on federal charges. Fox acknowledged Monday that the Mexican system suffers from "profound structural faults," and proposed substituting oral, public trials for written judgments, clearly establishing the presumption of innocence in the constitution, and reorganizing national police forces.

For some Americans who have seen the Mexican justice system at work, it isn't enough.

"The bedrock is so corrupt, that no system will work ... if they continue to accept tortured confessions," said Carol Kiecker, of Bloomington, Minn., whose daughter Cynthia has spent almost a year in a Mexican jail facing homicide charges.

Cynthia Kiecker says she was tortured into confessing to the crimes, and witnesses have testified police tortured them into implicating her.

I was at the Supreme Court during the oral arguments of "Atkins" and was shocked when I heard J. Ginsburg ask the Solicitor General of Virginia what the international community had to say about executing the mentally retarded. I'm sure the founding fathers didn't "check" with the international community when they were drafting the Constitution and could not have cared less what they thought regardless. J. Ginsburg also asked the attorney for reprenting the State what Texas' position was on this issue was. Again I failed to see the relevance in the question. While I was at the Court that day, I got a chance to speak to the attorney who prosecuted Atkins and he informed me that Atkins mental state never came up during the trial and that Atkins never spent one day in Special Ed. nor had any other indications of being retarded. In fact the killing of the Naval Serviceman required quite a bit of planning and execution.

Whenever the Supreme Court screws up, I always remember that at one point in history they said that Dred Scott wasn't fully human. Those hallowed 9 screw up quite a bit.

What exactly could the UN do that would be enforceable?

Fox calls for U.N. action on death row ruling
Associated Press

MEXICO CITY -- Mexican President Vicente Fox said Friday the International Court of Justice and the United Nations will have to take action if Texas and seven other U.S. states don't comply with a ruling to review the cases of 51 Mexicans on death row.

In an interview with the board of directors for the Associated Press Managing Editors, Fox declined to say, however, whether Mexico would take additional measures if the U.S. government does not follow the order.

"We don't have any actions planned because we're expecting (the United States) to comply," he told the APME board of directors, which represents 1,700 newspapers in North America. The board is meeting in Mexico City.

The International Court of Justice ruled Wednesday that the United States violated the rights of Mexican inmates by denying them assistance from their government. That right is guaranteed under the 1963 Vienna Convention.

The court ordered the United States to review the Mexican cases -- including two key cases in Texas -- but the U.S. government has ignored the court's rulings in the past.

Fox declined to say whether Mexico would take the death penalty cases to the U.N. Security Council.

At least one of the Supremes isn't taking this new "internationalism" lying down ...

Scalia condemns recent trends

The cases involving execution of 17 year old defendants (I purposely avoid identifying the defendant as a "juvenile", unlike the media) will provide another forum for this debate. Let's hope they realize it is time to back off this unfortunate basis for authority.

Since the U.S. has always provided a great majority of the troops that work under the UN banner, I guess in response to this world court ruling the UN could ask the US to provide troops to attack itself...makes about as much sense as Libya and Irag chairing the UN Council on Human Rights.

Since the World Court obviously has far reaching jurisdiction, and far too much time on their hands, maybe they could do something about the high gasoline prices?

Or maybe they could order the US into a timeout status...

The Link

The quote:

"Torres' appellate attorney, Mark Henrickson, praised the decision of the Court of Criminal Appeals before Henry announced his decision.

"'Oklahoma stepped up to the recognition that it was bound by the (world court) decision,' Henrickson said. 'That's the effect of it.'"

Coming soon, to a court near you ...

The decision is nothing more than a bow to the death penalty abolitionist movement.

The failure to advise the defendant of his consular rights, if it is to be recognized at all in the context of a criminal case (and I do not think it should be), has nothing to do with the punishment given to the defendant. It relates to the manner in which evidence (his statement) was collected from the defendant.

If the violation of a treaty is to be treated in the same way as violation of, say, Miranda, then why doesn't the Oklahoma Court of Criminal Appeals draw the rational conclusion that the conviction (not the punishment) was illegal because it was based on tainted evidence?

Because this is all about the politics of the death penalty and nothing about clear legal thinking. I hope the Governor of Texas has more backbone.

There are three things concerning this discussion that I feel need to be stated.

First, I must disagree with the implication that the founding fathers were unconcerned with the thoughts and concerns of the international community. Quite the opposite actually: they were a fragile, struggling nation, and were extremely concerned with abiding by international law. See The Federalist Nos. 3, 42, 80, & 82; see also Chisholm v. Georgia, 2 U.S. 419, 474 (1793).

Second, reference to the decisions of other national courts is not a recent trend. In fact, the US Supreme Court has informed its jurisprudence through the contemporary practice of other nations throughout its history. For example, see Standard Oil Co. v. United States, 337 U.S. 293, 312-313, n. 16 (1949) (citing and comparing Australian anti-trust legislation); Quinn v. United States, 349 U.S. 155, 167 (1955) (discussing the laws of Canada and the United Kingdom); Miranda v. Arizona, 384 U.S. 436, 486-490 (1966) (discussing English, Scottish, and Indian practices). There are many, many others. Indeed, Justice Scalia himself has cited the contemporary practice of other countries as persuasive authority in an opinion. See McIntyre v. Ohio Election Commission, 514 U.S. 334, 381 (1995) (dissenting).

Third, in the long run, respecting the International Court of Justice�s opinions is beneficial to the United States. The ICJ�s jurisdiction in this particular instance is part of a multilateral treaty to which we voluntarily consented; thus it is part of the law of the land. See U.S. Constitution, Article VI, clause 2. The fact that its interpretation of the treaty differs from our own on this particular issue is not sufficient reason to turn our backs on the entire system. The international legal system, as ineffective as it may sometimes prove, still helps to protect our national security through the peaceful resolution of international disputes using the rule of law. As prosecutors, we should aspire to this ideal, not act to subvert it.

It seems to me that Ok has surrendered some of its sovereignty to a most uncertain authority (not unlike the USCC's recent recognition in Atkins). It has also established a precedent that is dangerous leverage against the rest of the states seeking to execute sentences against foreigners who willingly submit themselves to the laws of the state by entry and then just as willinglly offend the laws.
Coming from Europe, I found the submission of those countries to the European Court of Human Rights hard to swallow. It strikes me as especially weak for a nation with efficient and compassionate dual legal systems to accomodate a third toothless superlegal system. Like you John B., I hope our governor will tough it out.

And here I thought the United States Supreme Court decided what the law meant. I should think that Justice Marshall is turning over in his grave.

I have no problem with an International Court saying whether they think a nation violated a treaty. But who among us surrendered our sovereign right to decide how that violation should be resolved? We certainly didn't negotiate that solution in the treaty.

I will hazard a guess that not a single negotiator thought the failure to "promptly" advise a defendant of his right to contact a consul would result in the communtation of a punishment from death to life in prison (how in the world does that make any sense?).

The World Court has imposed by fiat an international exclusionary rule in criminal cases. And now we bastardize that decision by sticking on an irrational sentence commutation. Where does the treaty give them the power to do that????????

This problem with governors weak on the state's ultimate criminal sanction is becoming endemic! In days past, didn't Texas have a governor,(?Ferguson?), who created havoc with the state legal system? With the reduction in the membership of the Board of Pardons and Paroles perhaps we could be in danger once again. As a shield to protect society against the virtually unilateral actions of temporary political leaders, perhaps life without parole (alongside the death penalty and instead of regular life) has a place even in Texas.

[This message was edited by John Stride on 05-15-04 at 6:10 a.m. with apologies to anyone offended by my unintentionally ambigious previous post]

[This message was edited by John Stride on 05-15-04 at .]

Perhaps I'm reading the Avena case a bit differently, but it seems to me that the ICJ's decision is actually very limited. It found a technical violation of the treaty then stated that "it is for the United States to find an appropriate remedy..." Their decision merely required the States to allow the defendants to appeal the substantive violations of the treaty within the US legal system, regardless of procedural default. Whether the violations of the treaty require a new trial, or any actual substantive redress at all, is left entirely to the US legal system.

As Mr. Bradley aptly points out, from a strictly legal standpoint, the actual effective interpretation of the treaty within the domestic legal system is for the US Supreme Court to decide. However, as I mentioned earlier, from a prudential standpoint, it makes good sense to respect the global interpretation of the treaty as indicated by the other signatories (represented by the ICJ's decision). In this case, compliance with the ICJ's decision simply means ignoring procedural default and allowing limited appeals restricted solely to the treaty issues, the substantive outcomes of which (new trial, harmless error, etc...) are within the total discretion of the US legal system.

As for Oklahoma, without knowing the facts of that case, it looks to me like they simply cut bait because they were tired of fighting the battle, paying the litigation costs, and suffering from the media exposure. Not the best of reasons to undercut a jury's determination.

It does not appear the stance in Texas will change until Breard and Jimenez-Nava are overruled by the courts which rendered those decisions (rather than the ICJ). See Medellin, No. 03-20687 (5th Cir.), 05-20-04, slip op. at 11-12.Opinion At least that appears to be the position Governor Perry should take.

Seems the US is not the only nation hesitant to accept the authority of the World Court:

December 30, 2004
OP-ED CONTRIBUTOR

All Justice, Too, Is Local
By ERIC A. POSNER


IN its final decision of the year, the International Court of Justice in The Hague decided that it had no jurisdiction to determine whether Serbia and Montenegro had a valid legal claim against NATO countries that participated in the intervention in Kosovo in 1999. While few people outside of Belgrade probably paid much attention, it the decision was symbolically very important: it demonstrated just how incapable the court is of resolving disputes, and what little hope the new International Criminal Court has to do much better.


First, there is no doubt that, in strictly legal terms, NATO's intervention violated international standards. What was unclear was whether the court had jurisdiction to act against it. In this, the court was in an unenviable position: if it had held against the NATO states, they would surely have ignored the judgment. By holding in favor of these states, the court showed its irrelevance.


The decision was a fitting end to a dismal year for the court, which is the United Nations' judicial organ. Earlier this year, Israel rejected an advisory opinion that held that its security wall in the West Bank was illegal. The United States reacted lethargically to its third loss in a row on the question of whether it is in violation of the Vienna Convention on Consular Relations because police often fail to inform foreign citizens they have arrested of their consular rights. Along with the Serbia case, these two decisions were the court's only major actions in 2004.


And the year was not anomalous. Throughout its 60-year history, the court has averaged only a few cases a year, and has rendered a decision in fewer than 100 all told. By contrast, the World Trade Organization's settlement system, in place for less than a decade, has already heard several hundred cases; and the European Court of Justice, which hears disputes between European Union members, has heard thousands of cases in its half-century existence.


Most disturbing for supporters of the court of justice is that it has been doing worse as it has aged. It hears cases at about the same rate today as it did 50 years ago, even though the number of countries in the world has tripled during that time; this means that the annual number of cases per nation has declined by two thirds even as global interaction has soared. Increasingly, major states avoid the court. In the last 30 years, the countries with the ten largest economies have brought only two contentious cases to The Hague.


Many major nations - China, Japan and Russia - have never been a party to an International Court of Justice case. Others, including France, Britain and America, have lost whatever enthusiasm for the court that they once had. In the court's first 20 years, these three states brought more than a dozen cases; in the last 20 years, they have brought only one.


A principal reason for the decline of the court is that many countries have restricted its jurisdiction over them. The main way that the court obtains power is by having states submit to "compulsory jurisdiction" - that is, file declarations in which they consent to be sued by any other state that has filed a similar declaration. The founders of the court of justice hoped that eventually all nations would submit to compulsory jurisdiction.


But since the court's early years, the fraction of the world's nations subject to compulsory jurisdiction has declined from two-thirds to one-third. And many countries that technically remain subject to compulsory jurisdiction have used various tricks to ensure that it can be used against them only in the narrowest circumstances. For example, India excludes matters within its "domestic jurisdiction" and concerning its territorial boundaries. Further, the biggest powers have mostly opted out: at one time all permanent members of the Security Council other than the Soviet Union consented to compulsory jurisdiction, but China, France and the United States withdrew in the 1970's and 1980's, leaving only Great Britain.


The other main avenue for the court of justice to obtain jurisdiction is on a treaty-by-treaty basis. During its first two decades, nearly 200 treaties were forged in which the signers conferred jurisdiction of disputes to the court. Over the last 20 years, only about a dozen new treaties included International Court of Justice oversight.


Why have countries abandoned the court? The most plausible answer is that they do not trust the judges to rule impartially, but expect them to vote the interests of the states of which they are citizens. Statistics bear out this conjecture. When their home countries are parties to litigation, judges vote in favor of them about 90 percent of the time. When their states are not parties, judges tend to vote for states that are more like their home states. Judges from wealthy states tend to vote in favor of wealthy states, and judges from poor states tend to vote in favor of poor states. In addition, judges from democracies appear to favor democracies; judges from authoritarian states appear to favor authoritarian states. This is not to say that the judges pay no attention to the law. But there is no question that politics matter.


History bears out this argument. From the beginning of the cold war, the Soviet Union and its satellites refused to subject themselves to the jurisdiction of a court they felt was dominated by representatives of hostile countries. However, with decolonization, the composition of the International Court of Justice changed, and many more judges came from newly independent states that were unhappy with the Western-dominated international legal system. The watershed moment came when the court found the United States had violated international law by mining Nicaraguan harbors in 1984. America, which had long been the court's champion, rejected the judgment and withdrew from compulsory jurisdiction.


Today, many of those with faith in international adjudication have switched their allegiance from the International Court of Justice and the fledgling International Criminal Court, which was established by treaty in 1998 and has yet to begin operating. But the criminal court has all the defects of its older sibling. Its independent prosecutor and judges have every incentive to take account of the political interests of the states of which they are nationals. With its broad mandate to enforce ambiguous laws in a world that is overflowing with war criminals, the criminal court's prosecutor and judges have enormous discretion to pick defendants for maximum political effect.


The countries with the most to lose from politicized enforcement of international law have refused to submit to the International Criminal Court's jurisdiction, but they still must fear that their citizens, if indicted, will be arrested while traveling. In a sped-up version of the court of justice's history, the United States has already expended considerable diplomatic effort to persuade parties to the criminal court not to hand over any Americans who are indicted. Thus even before it has had its first case, the International Criminal Court is losing its ability to exercise its jurisdiction.


It needn't have been this way. America could have been a supporter of the criminal court, if only the court's founders had agreed to make prosecutions turn on Security Council authorization, which would have given the major powers vetoes over prosecutions. Without such assurances of immunity, America will be reluctant to turn over war criminals to the court because doing so would legitimate an institution that Washington sees as hostile to its interests.


At one time people hoped that the criminal court would render unnecessary the cumbersome, ad hoc war-crimes tribunals like the one that has been trying Slobodan Milosevic. This hope has been shattered. It is hard to imagine a renegotiation of the International Criminal Court's treaty in the near future, but if the body fails to accomplish anything of value over the next several years, perhaps the issue of major power immunity will be revisited. Successful international organizations either adapt to great power politics or they wither on the vine; it is a choice that the supporters of global justice will soon face.



Eric Posner, a law professor at the University of Chicago, is the author of "The Limits of International Law."

I disagree with the naked assertion that the Kosovo air war was a clear violation of international law. That is the obvious conclusion of someone who believes that explicit UNSec authority is the only lawful basis for international use of force--when the UN charter itself provides for alternatives. (I would expect that Eric Posner, as a professor of international law, would recognize that.)

What I do agree with is that the ICJ is irrelevant to the extent that its pronouncements are not binding (and, as they become more political--and less reasoned--only mildly persuasive). While treaties are the law of the land, so are state and federal statutes, including executive orders within their spheres of authority. Courts traditionally refrain from interfering where an executive action knowingly violates a treaty, leaving those sworn to "support and defend the constitution and the laws" to make their own value judgments about what the law is. (Has anyone in politics today ever read Kennedy's Profiles in Courage--a Pulitzer winning book about making the right legal and moral decision without regard to political consequences?)

Therefore, it is perfectly appropriate for Oklahoma's Governor to see a violation of a defendant's consular rights as reversible error. Likewise it would be appropriate for Rick Perry to reach the opposite conclusion. It's up to their constituency to tell them whether or not they made the right decision.