Article VI of the U.S. Constitution states that "all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land." International customary law is also part of federal law: as the Supreme Court reminded us over 100 years ago, in the Paquete Habana case, "International law is part of our law." And, under the Supremacy Clause of the Constitution, it follows that if the nation is bound to follow international law, that obligation must somehow be communicated to and adhered to by the states.
Slate's Today's Papers feature has a reference to an interesting dance going on now involving an International Court of Justice ruling regarding when foreign citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad:
According to the NYT and WP, the Bush administration has withdrawn from an international agreement that gives the International Court of Justice jurisdiction over allegations that foreign nationals jailed here have been illegally denied access to diplomats from their home countries. The move came only a week after the Bush administration bowed to just such an ICJ decision by ordering new hearings for 51 Mexicans on death row in Texas, California. (According to an LAT story yesterday, it looks like those hearings will probably happen, despite objections from Texas officials.) "It's encouraging that the president wants to comply with the ICJ judgment" in the Mexicans' case, an international law prof told the WP. "But it's discouraging that it's now saying we're taking our marbles and going home."
Links are provided to some articles on the events. The WP article makes this telling point:
The United States initially backed the measure as a means to protect its citizens abroad. It was also the first country to invoke the protocol before the ICJ, also known as the World Court, successfully suing Iran for the taking of 52 U.S. hostages in Tehran in 1979.
But in recent years, other countries, with the support of U.S. opponents of capital punishment, successfully complained before the World Court that their citizens were sentenced to death by U.S. states without receiving access to diplomats from their home countries.
Legal blogs also have discussed the issues. For instance, as noted by LAT:
Paul Clement, acting U.S. solicitor general, said state courts must "review and reconsider the conviction and sentence" of each Mexican to see whether the failure to warn him of his rights "caused actual prejudice to the defense at trial or at sentencing." If so, "a new trial or a new sentencing would be ordered," Clement said.
To their surprise, defense lawyers and international law experts found themselves cheering a move by Bush. The president has been a critic of international courts and a strong supporter of the death penalty.
"This is an amazing concession," said Mike Charlton, a defense lawyer for several Texas inmates. "The president is saying the Texas courts have to reopen and relitigate these cases."
This struck Texas officials -- and some legal experts -- as a striking application of executive power over state courts. Can they order courts to re-open the cases? Is this a step to far?
Likewise, others affected by the treaty protocol now would not be covered because of the withdrawal. Thus, the President's "concession" was not quite as "amazing" as some might think. The legal experts also wonder, however, if the concession has immediate effect. Check out the sites for discussion.
We are allegedly on the side of the angels, but this just shows how the rules really do not apply to us. The sensitive nature of the death penalty only underlines the point. Nonetheless, the nomination of an anti-UN John Bolton to serve as our new ambassador to the ... UN ... makes the action quite timely indeed. So, again, we have to put this in context ... Just look at the latest news respecting authorizations of "ghost detainees" that violate international law. Or, renditions of prisoners to countries known to practice torture without the safeguards present when the practice began in the Clinton years.
The whole thing is a prime example of the way the Bush Administration does business -- crafty, authoritarian, and ultimately putting the interests of justice somewhat lower than their own interests. It is not that past administrations were truly on the side of the angels. To quote Sally Field in Murphy's Romance, this bunch was never anywhere close.