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World Court: U.S. execution broke global law

The International Court of Justice ruled unanimously on Monday that the U.S. government violated a duty under international law by failing to stop Texas from excuting a Mexican national last summer.  The Court located at The Hague in The Netherlands, however, seemed to absolve the U.S. Supreme Court of any specific violation even though it refused to block that execution

 Even while finding a breach by the U.S. governmen as a whole, the international court did not attach any legal consequences to that, and declined to take any action to keep the U.S. from committing another such violation in the future.  The ICJ (popularly known as the “World Court”) aplit 11-1 in some part of the ruling, but all 12 judges — including the judge from the U.S., Thomas Buergenthal — supported the finding that the U.S. government failed in its duty.

The opinions released Monday can be found, in PDF format, here. A press release on the decision is here.  (Thanks to Howard Bashman of How Appealing blog for the alert to this decision.)

On Aug. 5, the U.S. Supreme Court declined to stop Texas from carrying out the execution of Mexican Jose Ernesto Medellin for a murder in that state, and he died in Texas’s death chamber that night.  Earlier, the Court had ruled that a 2004 World Court ruling that the U.S. had lost in the case of Medellin and 50 other Mexican nationals was not binding on Texas or on the federal government  That 2004 decision required the U.S. to take steps to assure that foreign nationals facing execution had a chance to show that their cases were harmed because they were denied access to a diplomat from their own country.

The World Court had followed that up last July 16 by specifically ordering the U.S. not to allow execution of Medellin and four other Mexican nationals covered by the 2004 decision.  (A post on this blog discussing that order is here.)

Reacting to a renewed complaint by the government of Mexico, the International Court ruled Monday that “the United States did not discharge its obligation under the Court’s Order of 16 July 2008, in the case of Mr. Jose Ernesto Medellin Rojas.”

Although the tribunal said it had no power to reopen its 2004 decision, to resolve what Mexico claimed was a dispute with the U.S. over the scope of the U.S. obligation to comply, it did rule that it had jurisdiction at least to conclude that there had been a U.S. breach of its July decision.  The Court’s competence under its charter, it said, “entails its incidental jurisdiction to make findings about alleged breaches” of the July order not to execute Medellin or four other Mexican nationals.

Without elaboration, the Court turned down, with one dissent, Mexico’s plea for a new order to the U.S. “to provide guarantees of non-repetition” so that no further executions of Mexicans covered by the 2004 judgment would occur, without their having a new review of their cases under the Vienna Convention on Consular Relations.

The Court went on to stress that the U.S. government remains under an obligation to assure Mexican nationals on state death rows in the U.S. that they are entitled to a new review of the denial of their Vienna Convention rights.

The tribunal added: “The Court observes that considerations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation.  A choice of means was allowed to the United States in the implementation of its obligation and, failing success within a reasonable period of time through the means chosen, it must rapidly turn to alternative and effective means of attaining that result.”

The scope of the ruling does not impose any specific new obligation on the U.S. government, or the U.S. Supreme Court, to take action to carry out the World Court’s rulings.  In view of that, and in view of the Supreme Court’s decision that those rulings are not binding absent legislation by Congress, the only probable way for the U.S. to comply would be for Congress to enact pending legislation to carry out the ICJ’s mandates.

Mexico, after winning the 2004 decision on the Vienna Convention rights of its nationals on death rows in the U.S., had returned to the World Court last June to get a new interpretation of that decision.  Mexico contended that the U.S. obligation toward Mexican nationals extended not just to the federal government’s Executive Branch, but to all other parts of the government — including the U.S. Supreme Court — as well as all parts of state governments where the Mexicans were on death row.

Thus, Mexico wanted the ICJ to impose a new obligation on the U.S. and all of its government entities to spare the Mexicans, at least until they had a new review of their cases and some chance to contest their conviction and sentences.

On Monday, however, the World Court concluded that there was really no actual dispute over the meaning of the World Court ruling, so it had no jurisdiction to reopen it.  Along the way, it made comments that appeared to imply, at least, that the U.S. Supreme Court had no specific duty to comply with the ruling.  The 2004 ruling, it said, “nowhere lays down or implies that the courts in the United States are required to give direct effect” to the ruling.  That decision, it added, “leaves it to the United States to choose the means of implementation.”

In Monday’s ruling, only the Mexican member of that tribunal, Judge Bernardo Sepulveda-Amor, dissented from the Court’s failure to impose any further sanctions or obligations on the U.S.  That judge argued that the Court should have made “a determination of the legal conseuqneces which flow from the serious failure by the United States to comply” with its obligations.

The judge from France, Ronny Abraham, dissented from the part of the ruling that said that the U.S. has a continuing obligation to obey the 2004 decision.