Commentary

The World Court has issued a ruling demanding that the United States live up to one of the most important treaties to which it is signatory, the Vienna Convention on Consular Relations. The demand by the World Court is likely to fail because of a bizarrely arrogant stance taken by the state of Texas, but U.S. voters could make sure that the circumstances which led to this case never happen again.

The step taken by the World Court, formally known as the International Court of Justice in the Hague, Netherlands, is a follow up of a 2004 ruling in a suit brought by Mexico against the United States, in which the court declared that death sentences against a number of Mexicans citizens in U.S. Courts were invalid because the accused were not informed of their rights under the Convention, or were denied those rights.

The Vienna Convention, ratified in 1963, requires, among other things, that police in one signatory country who arrest a citizen of another signatory country inform the arrestees of their right to contact and seek help from their own embassy or consulate. That help often involves the facilitation of obtaining high quality legal representation in court, which can make the difference between life and death.

Indeed, many U.S. citizens have got out of bad scrapes in other countries, including Mexico, because of the Vienna Convention.

However, in Texas and other parts of the United States, the same right is not accorded to foreign citizens, especially Mexicans arrested by U.S. police. Police authorities say it is too much trouble to tell non-citizens about their Vienna Convention rights, and in some cases even if the arrestees know about such rights, they are denied them. The general attitude is one of contempt for the treaty. Texas lawmen have been hanging Mexicans for more than a century, and aim to keep doing so.

After the initial World Court ruling in favor of Mexico, the Bush administration eventually came around to trying to pressure Texas to obey the rules. However, Texas went to federal court to argue that the Vienna Convention is only applicable to federal authorities and not to state or local police. In other words, they tried to argue that the Vienna Convention does not apply to Texas.

And they won. In March, the U.S. Supreme Court ruled 5-4 on ideological lines (Roberts, Alito, Scalia, Thomas and Kennedy in the majority; Souter, Ginsburg, Stevens and Breyer dissenting) that the Vienna Convention does not have to be followed by Texas, because the wording of the Congressional measure ratifying the treaty did not specify that state authorities have to obey it. Constitutional scholars were aghast. It is not clear how many other U.S. international agreements could now be said to be invalid in Texas (and potentially other states) for the same reason. The Geneva Conventions? NATO? NAFTA? Better look at the fine print!

So now the World Court has again demanded a review for the five Mexicans currently on death row, but nothing is likely to happen as the World Court has no enforcement mechanisms. The court requires the U.S. to provide a deposition answering its charges by Aug. 29, by which time one of the death row prisoners may already have been executed.

The logical thing for Mexico to do if its citizens are denied review and are executed is to say that the U.S. has unilaterally abrogated the Vienna Convention, and that U.S. citizens arrested in Mexico no longer have rights under its terms. However, this is rather improbable, because it could turn away tourist dollars which Mexico has come to need as a vital source of investment and foreign exchange. So neither the World Court, nor the Mexican government, has any effective leverage in the matter.

The voters of the United States have the power to prevent this absurd, embarrassing and offensive situation from recurring. Who wins in November is critical to who gets appointed to the bench.

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