How Texas Undermines American Foreign Policy
The International Court of Justice today called for the United States to stay the executions of five Mexican nationals on death row in Texas until the court issues its final judgment. The Mexican nationals had tried to argue in US court that they were denied their right under the Vienna Convention on Consular Relations to speak to their consulates after being arrested. They were denied the opportunity to make this argument on procedural grounds. At the time, the United States was party to an optional protocol which allowed individuals to file complaints against it in the ICJ, which these individuals then did, and the ICJ ruled in their favor. The governors and district attorneys of the states where these guys were on death row (mainly Texas) ignored the ruling, and then proceeded to ignore President Bush’s order to commute the death sentences. They filed suit in federal court, took their case to the Supreme Court, where they lost in a very important case I wrote about here. The United States by this time had withdrawn from the optional protocol that allowed individuals to file claims against it in the ICJ, seemingly leaving these guys without any more options, but then, not surprisingly, Mexico itself filed a complaint against the US on their behalf. That case is being heard before the ICJ right now, and thus the ICJ’s call today for the US to stay their executions until they make a final judgment.
It’s a fascinating sequence of events if you’re interested in this sort of thing, and it puts the US in a funky position. As a matter of constitutional law, the federal government can’t force Texas to commute their sentences. As a result, the federal government is forced into a position of being in violation of international law. The only reason for that, of course, is that those elected to power in Texas, et al, will be painted as a bunch of soft, leftist one-worlders if they so much as consider doing anything short of giving the middle finger to the ICJ. This is an incredibly unfortunate mindset which will have tragic results for those on death row and will continue to weaken the already battered image of the United States in the world.
One interesting observation about the news today. I first saw this story as reported on MSNBC’s website, the headline of which is “World Court urges U.S. to stay 5 executions.” Aside from the use of the term “World Court,” which I find irritating, that headline is an accurate reflection of events. I then went to BBC’s website and found the story as reported there. The headline of that article is now “Court seeks to stay U.S. executions,” which again is an accurate reflection of events. But when the BBC story first went up, the headline read “Court stays U.S. executions.” No “seeks to,” no “urges to,” nothing to indicate that the ruling would not be enforced (which I imagine it won’t be). That headline was rather misleading given that the ICJ has no enforcement power and thus can’t actually stay these executions; it can merely “order” the US to do so. It’s entirely possible I’m reading too much into this, but I do find it interesting that a British news agency initially reported on the story as though it were obvious that the ICJ’s ruling would have practical effect. The whole “Europe is so much better than America” shtick is an oversimplified cliche, but in the area of respect for international law and in particular international human rights law, it is absolutely correct. That the BBC’s initial headline had to be corrected to underline the ICJ’s impotence over the United States is a sad reflection on the way America has turned its back on its longstanding foreign policy tradition of liberal internationalism.
Comment by Brenda Kay on 16 July 2008 at 12:38 pm:
I don’t think it’s quite fair to say the US’s [probable] ignoring of the ICJ in this case is a reflection of Europe being better than America at “liberal internationalism.” Yes, it is easy enough to find instances of the Bush administration foolishly flouting international conventions and protocol; however, it’s not hard to find European nations doing the same, albeit perhaps on a different scale. Probably every nation that belongs to the European Union is in constant or near-constant disobedience of some treaty or another — France and Germany consistently break monetary policy laws, Bulgaria’s justice system would be a joke if it weren’t so sad, Sweden has been illegally opting out of the Euro for the past decade, etc. And speaking of human rights treaties, how about those UN treaties which dozens of countries sign and then immediately ignore? Talk about impotence. I think this is merely another instance of a sovereign nation preferring not to take its cues from an outside power — for good or bad, this is the general trend the world over, not a specifically American flaw.
As for the ICJ, it already had plenty of legitimacy problems. The way it is built within the structure of the UN is of course confusing and unwieldy, and the way it relates to the Security Council means it doesn’t even enjoy full separation of powers.
I’m a little confused as to why the federal government doesn’t have any recourse here — even if they can’t force Texas to commute the death sentences, can’t they do something?
Comment by Brian on 16 July 2008 at 2:16 pm:
Brenda,
To an extent, I take your point, in the sense that I sort of made it sound like European countries just totally incorporate international law into their legal systems. That’s not the impression I intended to give. What I DO think is true is that if, for example, you look at the constitutions of many European countries, they incorporate international law to a far greater degree than either the American constitution or American policy does. And if you look at the way European countries universally obey rulings of the European Court of Human Rights even when it’s not in their interests to do so, there’s a clear difference between the US and Europe. There are domestic political consequences if a European nation’s government is perceived as flouting international law (and, as I said, in particular human rights law). In the United States, there are often domestic political consequences if a government is seen as FRIENDLY toward international law. In certain ways that is to be expected given Europe’s more intimate experiences with human rights atrocities in the recent past, but it’s still, in my view, regrettable.
In other words, the examples you cited in your comment are good reason to not use language that is quite as sweeping as the language I used in this post. But when you briefly noted that European violations of international law are “perhaps on a different scale,” I think you were understating things more than just a little bit. It’s true that nations the world over violate international law at least sometimes. But it is also true that attitudes toward international law in the United States are at best ambivalent and at worst downright hostile, whereas the same is not true of Europe. There might be dispute as to which is the better attitude, but the existence of a distinction between the two is hard to deny.
On your question at the end about why the federal government can’t do anything, I imagine it’s legally possible that Congress could pass new legislation that would do something about this. But that’s not gonna happen, and practical attempts at getting the states to comply, including President Bush putting pressure on those states and trying to order them to comply, have not been successful and are not legally binding.
Comment by Ryan on 16 July 2008 at 5:10 pm:
They were tried and convicted of heinous crimes - kill them, now.
Comment by Joshua on 16 July 2008 at 5:25 pm:
Why couldn’t an injunction be obtained in federal court, since this is a matter of foreign policy it seems federal courts could have jurisdiction.
Couldn’t Congress also pass a very narrow Schaivo-like law that would at least slow this down.
I think the president can commute sentences of state crimes in addition to federal crimes, not that Dubya would, but do you know whether or not that would be possible?
Comment by Brian on 16 July 2008 at 5:56 pm:
Josh,
Dubya would commute the sentence if he could, he’s already tried to claim that he has inherent executive authority to order Texas to commute the sentence (one of the holdings in Medellin was that he did not have such authority). So, no, he can’t do that.
You’re right that Congress could pass legislation. They just aren’t going to.
I’m not really sure what you mean by having a federal court get jurisdiction because it’s an area of foreign policy. The nationals tried going into federal court on the grounds that either the President’s authority or the ICJ’s ruling was binding on Texas. Both of those are controversial and complicated arguments, and both of them ultimately lost (the ICJ argument lost by 5-4; the executive authority argument lost by 6-3). The executive authority argument raises a federal question under the Constitution; the ICJ argument raises a federal question under the UN Charter; but I don’t really see any other basis for concluding that there is a federal question and thus federal jurisdiction (and one can assume that if there were such a basis, it would have been argued by the lawyers working the case, no?).
I could have worded what I said about the federal government’s power more clearly (this is what I get for writing posts while at work when I’m not supposed to). Basically what I was saying was that while the federal government would LIKE to find a resolution to this issue that leaves the US in compliance with international law (as evidenced by President Bush’s efforts to put pressure on the states); they would have to go to pass federal legislation to do so. The reason federal legislation is not going to happen is a result of what I complain about in the post: it would be political suicide for Congress to pass legislation commuting the death sentences of convicted murderers just because some high-falutin’ international court says we should.
Comment by Brian on 16 July 2008 at 6:05 pm:
Upon re-reading the above comment, it comes of to me as a little smarmy. Know that that is unintentional.
Comment by Joshua on 16 July 2008 at 6:46 pm:
BJP - a dispute between the US and a foreign nation (Mexico) or a state and a foreign government, meets the “federal question” threshold for federal court jurisdiction. Even an injunction pending the resolution of a lengthy federal case would inject helpful delay in the process.
Here’s a creative alternative:
Bush could have these guys declared enemy combatants, pull them out of TX state prison, and detain them indefinitely at Gitmo :p
Comment by Brian on 16 July 2008 at 7:01 pm:
Josh - I think the problem with that is probably that, as far as domestic US courts are concerned, this isn’t a dispute between the US and a foreign nation; it’s between the state of Texas and people convicted of murder. The current dispute before the ICJ is between Mexico and the US, but not the domestic court case.
Comment by John Bambenek on 16 July 2008 at 11:14 pm:
Does the US have a claim in the ICJ against Mexico for sending their felons across the border to kill US citizens ?
Just curious.
Comment by Brian on 17 July 2008 at 9:05 am:
Yes, John, it’s called putting those people on trial for murder. Only thing is, when that happens, they get these pesky things called “rights.” So irritating, I realize, but there they are.