International Obligations and U.S. Law

October 16, 2007
U.S. Department of State's Legal Adviser John B. Bellinger III

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.

Comments

Comments

Eric
|
New Mexico, USA
October 16, 2007

Eric in New Mexico writes:

Mr. Bellinger,

Nice walk through of a "sticky wicket" as it were.

My initial question would be does a nation under these protocols have the responsibility to inform the other nation that it holds one of its citizens on charges, and in doing so, afford counsul access to the accused as well?

How would Interpol, and all the cross networking done between nations in the war on terrorism play into the context of these protocols in terms of detainees accused of terrorist acts?

I can't personally envision a Taleban "consul" meeting with a Gitmo inmate...being they've been rendered a stateless entity, but what happens in say...a quods force member of the Iranian Rev. Guard detained for terrorism in Iraq?

Thanks.

Gary
|
Virginia, USA
October 16, 2007

Gary in Virginia writes:
"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," but the USG will seek to implement that flawed ICJ decision anyway? OK. But can the USG really implement a treaty obligation like that when we have an independant judiciary and a federal system? It can't. This seems like a matter of just going through the motions of treaty obligations in order to satisfy Mexico.

Ralph
|
Greece
October 16, 2007

Ralph in Greece writes:
What alarms me more is that if a Mexican citizen kills an American and then sneaks back across the border, Mexico won't extradite them back very easily. It's happened several times, and Mexican criminals know if they slink back to Mexico, they rarely get prosecuted in the USA. Only after months/years of legal wrangling and promises not to execute will Mexican murders see US.. justice, and in some cases they are just sentenced in Mexico to light sentences for crimes that could earn them long jail terms in the U.S.A.

Zharkov
October 19, 2007

Zharkov writes:

I think the president violated the separation of powers doctrine in demanding a new trial for a convicted murderer merely because of a minor oversight which had been corrected, as the Mexican government is now aware of the case. So the issue is moot, or it should be, if Mr. Bush had simply rejected the request to intervene.

Unless the Mexican government can provide evidence to the White House of how the outcome of the trial would have been different had the Mexicans been notified at the time of arrest, there should be no presidential intervention.

The American consulates in several nations had already made it clear to American citizen arrestees in several cases that they could offer no assistance even after they were notified. There is already no assurance to American travelers that their consulate would try to obtain their release in case of arrest. The treaty provision is next to useless for any practical purpose.

Monique
|
Tennessee, USA
October 20, 2007

Monique in Tennessee writes:

And what about your obligation to uphold the Human Rights Treaty? Did you read my Opinio Juris post from months ago?

Why am I still living under this Human Rights Crime, clearly you are not upgolding the Human Rights Treaty in my case?

Bill
|
Texas, USA
October 20, 2007

Bill in Texas writes:

Americans are beset by lawyers: The slip-and-fall types; The ACLU types; The judicial activist Judge types; The House and Senate political types; And, the God knows whatever else types. Now we are to be fed upon by foreign lawyers, too? I agree with Shakespeare: "...kill all the lawyers."

Roger
October 20, 2007

Roger writes:

How can Peace Corps be in countries like Fiji that have been sanctioned by the US government? No one is allowed to aid except for voting. The agreement is with Fiji, but the government that signed it no longer exists. The military junta in charge has promised elections, but not allowed democratic activities.

Peace Corps has no treaty, no agreement, no obligations and is not allowed in country by US sanctions. There are no exceptions to the sanctions, but Peace Corps still stays. It is illegal and the couuntry Director has not been taken to court to remove Peace Corps from the country. The rumors are that the State Department through the White House spokesman allowed a 2-3 million dollar exception and that is Peace Corps.

Bush just annouced Peace Corps is going to Liberia and there is a new announcement about vaccines for kids that works as well as Peace Corps high risk, USAID type arm, Crisis Corps will have a Master's prgram based on serving overseas. The problem with Liberia is it isn't safe. The Philippines, Thailand, Fji and other coup countries aren't safe. The PCVs are in danger and the Peace Corp is not able to deal with the Safetay and Security issues; OSS wasn't designed to deal with terrorists, insurgents and the employee issues regardinghigher security clearances based on country of service;extending employment based on danger and clearance, and PCVs clearances and danger.

Liberia seems like it's doing well, but what world leader would sign an agreement with Peace Corps after what they have done to Fiji? Is there an agreement that if democracy leaves , the Peace Corps leaves? If there isn't, the leader is just signing away the country when they are most vulnerable. For example, 10 million could be taken out the foreign military budget and transferred to Peace Corps based on the military being in power in country, which may actually be best for the country and the US; the US may fund the military in power through foreign military assistance. Peace Corps, having stayed in countryand kept their jobs and promises of extensions beyond the five year employment opportunity law based on clearances granted when the military junta took power, takes the money that was to go to the military in country and has it transferred to Peace Corps. So, although the coup and the military might be what is good for the country and not unwanted by the US,; the foreign military financing is transfgerred to Peace Corps with littile impact on the finances of the country involved.

NGOs like Mercy Corp traditionally get funded by staying in dangerous countries that Peace Corps isn't allolwed. Peace Corps began partnering with Mercy Corps after Fern Holland's death and ti seems that Peace Corps has decided to take the high risk NGO approach without protecting it's PCVs. In addition to clerances, waivers on intelligence, salary based on danger pay rather than host country national pay, and the same employment law employees have; five years with the option of an extension and pension based on the Director's discretion with the Treasury pension accout, five year law waiver, payments for seperation based on no extension the the five year law and clearances used to extend employment beyond the five year maximum and Hatch Act. PCVs should already have the same rights as employees.

US is not obligated to tell Peace Corps to leave coup countries. Peace Corps is designed to leave, but won't. So, I am a President worrying about a coup and will the Peace Corps leave if I'm thrown out or will they stay and take advantage? International law and US obligations are the same. If Peace Corps won't obey US sanctions, why would they obey UN santcions and why should any country?

Eric
|
New Mexico, USA
October 21, 2007

Eric in New Mexico writes:

@ Roger -- Hey Roger, I'm no expert, but generally humanitarian assistance to the people of a nation is viewed separately from the politics of sanction or coercive diplomacy.

It's why food aid continued to North Korea, earthquake relief was offered to Iran after Bam was destroyed some years ago...just a couple examples for you here.

The Peace Corps has no political agenda, only a humanitarian one...the assesment of risk, being a separate issue is one made on a case by case basis, not one size fits all...in an ideal world there would be proactive host nation protection afforded, but then if that was the case, the host nation would also be active in assisting it's people out of the humanitarian dillema the NGO or PeaceCorps went in to solve.

More often than not, a positive relationship happens..and even the opposition groups recognize the value of aid to the people.

The exceptions to this pose problems and risk to personel, and the choice to give aid despite risk is again done on case by case guidlines, defined by on the ground circumstance.

Tsunami relief given in the middle of a protracted civil war is a case in point.

Hope this helps lend perspective.

Eric
|
New York, USA
November 4, 2007

Eric in New York writes:

I am greatly disturbed the soverignty of the U.S. could even be brokered away by presidential treaty, the supreme court or for that matter, any foreign interest such as the UN.

The U.S. constitution gives powers of treaties to the president however as such he is sworn to uphold the constitution. He can not deny justice though he might pardon a criminal. The burden for the treaty is on the presidents shoulders. I would prefer impeachment should he bargain away the constitutional protections of us citizens.

A. A.
|
Florida, USA
November 9, 2007

Dear Mr. Bellinger:

You report that in consequence of the Texas-ICJ affair the United States has withdrawn from the Optional Protocol to the Vienna Convention.

It would seem that this withdrawal represents a diminution in the protection of United States citizens, and of the ability of State to protect them.

Does this mean that State has determined that it is better to sacrifice the protection of U.S. citizens against capricious foreign laws and police than it is to allow very narrowly-tailored ICJ judicial review, as it were, of an occasional problematic United States court decision?

If this is so, it seems to me that you have at heart more the interests of the government legal bureaucracy than you do the welfare of United States citizens and nationals.

Please tell me that I am wrong, as the factual situation you present in Dipnotes seems to imply (by reciprocal action) that the rights and protections of U.S. citizens will be diminished by removal of ICJ jurisdiction in cases where a US citizen abroad, rather than a Mexican at home, would be afforded ICJ review.

A. Engler Anderson
Miami, Florida

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