Global Policy Forum

US Says It Has Withdrawn From World Judicial Body


By Adam Liptak

New York Times
March 10, 2005

Prompted by an international tribunal's decision last year ordering new hearings for 51 Mexicans on death rows in the United States, the State Department said yesterday that the United States had withdrawn from the protocol that gave the tribunal jurisdiction to hear such disputes.

The withdrawal followed a Feb. 28 memorandum from President Bush to Attorney General Alberto R. Gonzales directing state courts to abide by the decision of the tribunal, the International Court of Justice in The Hague. The decision required American courts to grant "review and reconsideration" to claims that the inmates' cases had been hurt by the failure of local authorities to allow them to contact consular officials. The memorandum, issued in connection with a case the United States Supreme Court is scheduled to hear this month, puzzled state prosecutors, who said it seemed inconsistent with the administration's general hostility to international institutions and its support for the death penalty.

The withdrawal announced yesterday helps explains the administration's position. Darla Jordan, a State Department spokeswoman, said the administration was troubled by foreign interference in the domestic capital justice system but intended to fulfill its obligations under international law. But Ms. Jordan said, "We are protecting against future International Court of Justice judgments that might similarly interfere in ways we did not anticipate when we joined the optional protocol." Peter J. Spiro, a law professor at the University of Georgia, said the withdrawal was unbecoming. "It's a sore-loser kind of move," Professor Spiro said. "If we can't win, we're not going to play."

Ms. Jordan emphasized that the United States was not withdrawing from the Vienna Convention on Consular Relations itself, which gives people arrested abroad the right to contact their home countries' consulates. But the United States is withdrawing, she said, from an optional protocol that gives the International Court of Justice in The Hague, the principal judicial organ of the United Nations, jurisdiction to hear disputes under the convention.

"While roughly 160 countries belong to the consular convention," she said, "less than 30 percent of those countries belong to the optional protocol. By withdrawing from the protocol, the United States has joined the 70 percent of the countries that do not belong. For example, Brazil, Canada, Jordan, Russia and Spain do not belong." Among the countries that have signed the protocol are Australia, Britain, Germany and Japan.

Ms. Jordan said Secretary of State Condoleezza Rice informed Kofi Annan, the secretary general of the United Nations, of the move on Monday. Harold Hongju Koh, the dean of the Yale Law School and a former State Department official in the Clinton administration, said the Bush administration's strategy was counterproductive. "International adjudication is an important tool in a post-cold-war, post-9/11 world," Dean Koh said.

For 40 years, from 1946 to 1986, the United States accepted the general jurisdiction of the International Court of Justice in all kinds of cases against other nations that had also agreed to the court's jurisdiction. After an unfavorable ruling from the court in 1986 over the mining of Nicaragua's harbors, the United States withdrew from the court's general jurisdiction. But it continued to accept its jurisdiction under about 70 specific treaties, including the protocol withdrawn from on Monday, said Lori F. Damrosch, a law professor at Columbia. The other treaties cover subjects like navigation, terrorism, narcotics and copyrights, and they are unaffected.

The United States Supreme Court is scheduled to hear the case of José Ernesto Medellí­n, a Mexican on death row in Texas, on March 28. Mr. Medellí­n asks the court to enforce last year's judgment of the international tribunal. Texas opposes the request. When the federal government filed its supporting brief for Texas in the case at the end of last month, it appended the memorandum from the president to the attorney general.

Before the administration's strategy came into focus, international law professors greeted the memorandum with amazement. "This is a president who has been openly hostile to international law and international institutions knuckling under, and knuckling under where there are significant federalism concerns," Professor Spiro said. As it turned out, Dean Koh said, the government had "an integrated strategy." "Element 1," he continued, "was to take the bat out of the Supreme Court's hand."

Lawyers for Mr. Medellí­n reacted cautiously. In a motion filed in the Supreme Court yesterday, Donald F. Donovan, a lawyer with the New York law firm Debevoise & Plimpton, asked the court to put off hearing argument until Texas state courts could consider Mr. Medellí­n's claim. For their part, Texas prosecutors have not conceded that the president has the power to force courts there to reopen the Medellí­n case.

In a statement, Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas, questioned the president's authority. "The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States," Mr. Strickland said. "We respectfully believe the executive determination exceeds the constitutional bounds for federal authority." Sandra Babcock, a Minnesota lawyer who represents the government of Mexico, said she had no doubt that the president was authorized to instruct state courts to reopen Mr. Medellí­n's case and 50 others. "The law is on our side," Ms. Babcock said. "The president is on our side. I keep having to slap myself."

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