World Court seeks to block 5 U.S. executions

By Lyle Denniston
on Jul 16, 2008 at 12:21 pm

Acting on a claim by Mexico’s government that the U.S. government has not done enough to assure the treaty rights of Mexican nationals facing execution for murders in the U.S., the World Court on Wednesday ordered the U.S. — by a 7-5 vote — to stop five imminent executions in Texas.

Leaving it up to the U.S. to choose the way to carry out the order, the international tribunal — formally, the International Court of Justice that sits in The Hague, Netherlands — told the U.S. only to “take all measures necessary to ensure” that Texas does not execute five individuals on its death row.

The World Court issued its order to assure that the Mexicans remain alive until the tribunal can resolve a new dispute over the global obligations of the U.S. government — a dispute that has already led to two decisions by the U.S. Supreme Court. 

 The text of the World Court decision (but not including three dissenting opinions) can be downloaded here.  A press release summarizing the 21-page majority ruling is here.

The U.S. member of the tribunal, Thomas Buergenthal, dissented on all points of Wednesday’s ruling.  On the key issue of the order to delay the Texas executions, Buergenthal was joined by judges from Japan, Slovakia, New Zealand and Russia.

Depending upon how the U.S. government and the state of Texas respond, the case could affect first the execution of Jose Ernesto Medellin Rojas, scheduled for August 5. It also is meant to apply to the executions of Cesar Roberto Fierro Reyna, who may have an execution date set with 30 days’ notice, and of Ruben Ramirez Cardenas, Humberto Leal Garcia and Roberto Moreno Ramos, who may have execution dates set on 90 days’ notice.

Mexico contends that those five were denied their rights under the Vienna Convention to be told, after their arrest and during their prosecution for murders in Texas, that they had a right to consult with a diplomat from their own country.  The U.S. government has admitted that their rights under the treaty were violated, but it has been unable up to now to stop their executions.

On March 25, in the case of one of these five (Medellin v. Texas, 06-984), the Supreme Court ruled by a 6-3 vote that a 2004 ruling by the World Court in favor of 51 Mexican nationals could not be enforced against Texas, either by direct action by President Bush or by the authority of the World Court itself.  That ruling led Mexico, on June 5, to return to the World Court to ask for further legal help to assure the Mexicans their treaty rights. (Mexico’s application to the World Court can be downloaded here.  At the same time, Mexico asked for an interim order to block the five executions; it is here. Those five death row inmates are the only ones who have completed all appeals.)

In the Medellin case, the Supreme Court had said that Congress could make the Vienna Convention binding in the U.S., but had not yet done so. (NOTE: On Monday, the chairman of the House Foreign Affairs  Committee, Democratic Rep. Howard L. Berman of California, introduced a bill [H.R. 6481] that would allow anyone whose Vienna Convention rights had been violated within the U.S. to sue in federal court to enforce those rights, including overturning the conviction or sentence. The bill’s text can be found by entering the bill number at this site.)

.The Supreme Court’s Medellin ruling also said that the President could use “other means,” not specified, to try to get compliance with the World Court’s 2004 ruling.  That decision required the U.S. to take steps to assure that the 51 Mexican nationals involved got a new review of their cases, to test whether the violation of the Vienna Convention rights harmed their cases.  Texas courts have ruled that the Mexican nationals forfeited their treaty rights by not raising the issue as their cases proceeded in state courts.

In returning to the World Court in June, Mexico sought to rely upon a provision in the tribunal’s charter that allows it to give an interpretation of one of its ruling, if any part of the ruling is in dispute.

The U.S., in response, contended that there is no dispute, so the World Court had no authority to give a new interpretation of its decision, and no authority to issue any new orders to the U.S. government.  The U.S. argued that it agreed with Mexico that the U.S. had violated the Mexicans’ treaty rights, and thus the 2004 ruling in not finding a remedy.

Mexico countered that there was a continuing dispute, because not all parts of the U.S. government at all levels — Congress and the states included — had acted to carry out the 2004 ruling.  This showed, Mexico asserted, that the U.S. did not understand the 2004 ruling as demanding results, but only required the U.S. to try some means to enforce the Mexicans’ rights.

In its ruling Wednesday, the World Court agreed with Mexico that there remains a dispute over the scope of the 2004 decision. It did so by relying upon the French version of its charter, rather than the English version. The French version gives the Court the power to issue interpretations where there is a “contestation,” while the English version does so when there is a “dispute.” The French word, the Court concluded, has a broader meaning, and it found that there was a current “contestation.”

The U.S. government, the Court noted, takes the position that its Executive Branch, “the only authority entitled to represent the United States internationally,” understands what the 2004 decision required, but Mexico takes the position that “other federal and state authorities” have not taken steps that they could take to prevent the Mexicans’ execution in Texas until their cases are newly reviewed.

“There appears to be a difference of opinion,” the World Court decided, and that triggered its authority to go ahead with Mexico’s plea to interpret its earlier ruling and, in the meantime, supported its authority to block the executions while that process goes forward.

In its ruling, the Court took four votes: by a 7-5 tally, it rejected the U.S. request to dismiss Mexico’s new case; by the same vote it ordered the U.S. to “take all measures necessary” to stop the five Mexicans’ executions; by a vote of 11-1 (the U.S. judge casting the only dissent), it ordered the U.S. government to inform the Court of the measures it was taking to comply, and by the same 11-1 tally it maintained its jurisdiction over the new case.

President Bush and his Administration previously had taken several steps to try to get Texas to obey the World Court ruling (although, along the way, the President withdrew the U.S. from an international protocol committing it to obey the World Court’s rulings on the Vienna Convention).  The President tried to order Texas to implement the World Court order, but that attempt was first rebuffed by Texas courts and then by the U.S. Supreme Court.  The Administration then joined in supporting Medellin’s second appeal to the Court, seeking to get the World Court ruling enforced in Texas — the effort that failed on March 25.

The World Court Wednesday disclosed in its opinion that, since the Supreme Court’s ruling, U.S. Secretary of State Condoleeza Rice and U.S. Attorney General Michael Mukasey had written a letter to Texas’ governor asking him to work with federal agencies to give the Mexicans a new review of their cases.  Other efforts by the Administration, the Court noted, had led other states with Mexicans on their death rows to newly review their cases.  And the U.S. promised the World Court it would continue to try to get new reviews for others, including Medellin.

Those efforts, it was clear, did not satisfy Mexico. Its new plea to the World Court thus asks the tribunal to declare explicitly that “the United States, including all its component organs at all levels,” is legally bound to take steps to remedy the violation of the Mexicans’ treaty rights.

Mexico argued: “Neither the Texas executive, nor the Texas legislature, nor the federal executive, nor the federal legislature has taken any legal steps at this point that would stop” the imminent executions of Medellin and the four others on Texas’ death row.

The World Court did not indicate when it would decide the new case on the scope of U.S. obligations, but did say that the controversy should be decided “with all possible expedition.”