John B. Bellinger IIIis the Legal Advisor to the Secretary of State.
Last Wednesday, the U.S. Supreme Court heard arguments in a significant case involving U.S. treaty obligations. The Government urged the Court to affirm the President’s authority to order compliance with a ruling of the International Court of Justice (ICJ) in The Hague. The case was argued by the Solicitor General, and the State Department’s Office of the Legal Adviser helped to draft the briefs.
The case before the Supreme Court involved the Vienna Convention on Consular Relations and its Optional Protocol. Under the Vienna Convention, a country that is party to the Convention and that arrests a national of another party must inform the person arrested that he can seek assistance from a consular officer of his country. The Optional Protocol allows states who disagree about what the Vienna Convention requires to take their dispute to the ICJ. And the UN Charter, another treaty binding the United States, obligates its parties to comply with decisions of the ICJ.
In 2004, in a case brought by Mexico against the United States, the ICJ decided that José Medellín, a Mexican national convicted by the Texas courts of two rape-murders, should be afforded a new hearing by judicial authorities to find out whether his trial had been prejudiced by the failure of the Texas police to tell him that he could contact a Mexican consul.
The United States disagreed with the ICJ’s conclusion, because the United States believes that the Vienna Convention does not create a right that a defendant can raise in a criminal proceeding. Lawyers with extensive experience in defending persons accused of serious crimes, including murder, represented Medellín throughout these proceedings, and we believe Medellin got all the benefit of the protections of the U.S. legal system.
However, the obligation to comply with a decision of the ICJ is independent of the government’s views about the soundness of the Court’s decision and the character of the person who benefits from the decision. Accordingly, President Bush determined that we would comply with ICJ determination by having the Texas courts implement the decision. At the same time, to ensure that the United States will not have to wrestle with any future erroneous ICJ decisions, we exercised our right to withdraw from the Optional Protocol, the treaty that gave the ICJ the authority to hear cases of this sort.
In becoming a party to the Vienna Convention, the United States was not of the view that our state and local police were mistreating foreign nationals. The U.S. Constitution provides all persons accused of crimes, foreigners equally with our own citizens, extensive rights from the moment of first contact with the police through arrest and trial to the carrying out of any sentence. What we wanted was protection for U.S. citizens when they find themselves abroad and in trouble with the police. Exactly because not all countries are as protective of the rights of criminal suspects as we are, we wanted a legal basis to ensure that American officials can learn promptly of charges brought against Americans in foreign countries and monitor their treatment.
It is important to emphasize that the likelihood that other countries will comply with this international obligation depends heavily on U.S. performance under the treaty. We agreed in a treaty to abide by the decisions of the ICJ. Were the United States not to comply with the ICJ’s order, other countries could similarly argue that they do not need to respect the interests of our citizens.
When the President made his determination that Texas should provide Medellín with a new hearing to comply with the ICJ’s decision, he was doing what Congress expected him to do, namely exercising his authority under the U.S. Constitution to effect compliance with a U.S. treaty obligation. The Texas courts disagreed, which is why the Supreme Court is hearing the case. We look forward to the Supreme Court’s decision, which should come down some time this winter.