REVIEW & OUTLOOK
Rule of (International) Law
Can foreign courts tell American ones how to do their job?
One of the more dangerous fads in Supreme Court jurisprudence of late is something called "international law," in which American laws are measured not just against the Constitution but against the laws of foreign countries. The purpose is to put the U.S. law in what supporters delicately call a "global context." What they really mean is that they can't persuade enough Americans of their views to change U.S. law so they want to persuade judges to do it for them.
Among the most ardent supporters of this view are opponents (here and abroad) of the death penalty, who argue that capital punishment violates international norms. In the juvenile death-penalty case it heard last fall, the Supreme Court took the unusual step of permitting friend-of-the-court briefs from 48 foreign governments and such renowned jurists as Mikhail Gorbachev and the Dalai Lama. (Naturally, they all opposed it.)
Which brings us to Medellin v. Dretke, a death penalty-related case that the Supreme Court will hear next month and which has the potential to catapult the concept of international law to a new level of acceptability in American courts. At issue is whether an order issued by the International Court of Justice at The Hague must be enforced by a court in Texas. That is, the "supreme" court of the United States would reside in the Netherlands, not the District of Columbia.
José Medellin is a Mexican citizen on death row in Texas. He was convicted in state court in 1994 of murdering two teenage girls and sentenced to death. The Texas Court of Criminal Appeals upheld his conviction and sentence in 1997.
A few months later the Mexican consular authorities in the U.S. learned about Medellin's plight for the first time. They eventually took his case to the International Court of Justice, arguing that under the Vienna Convention they should have been notified when Medellin was first arrested. The ICJ ruled in Mexico's favor and ordered U.S. state courts to review the death sentences of Medellin and 50 other Mexican citizens held on death row in this country.
At first blush, the ICJ ruling seems entirely reasonable. The U.S. is a signatory to the Vienna Convention, which everyone agrees serves American interests; if an American citizen is arrested abroad, the U.S. wants to know about it. Nor does the U.S. dispute the facts of the case. It has apologized, promises to do a better job of keeping its treaty commitment, and has launched an education campaign on the Vienna Convention for state law-enforcement authorities.
The danger here lies in the remedy. Letting the ICJ tell Texas how to run its courts would move the U.S. in the direction of the European Union, which has a supernational legal system to which national courts must bow. Not far down the line would be an ICJ ruling declaring the death penalty illegal and ordering Texas to get rid of capital punishment.
The U.S. brief in Medellin is due Monday, and we hear there's a battle royal between the State Department, which doesn't want to upset Europeans who support the ICJ (and hate the death penalty), and the Solicitor General's office, which understands the legal principles at stake. At the ICJ, the Bush Administration argued that Mexico's demand would be an "unwarranted intrusion" on U.S. sovereignty. That's still the correct position.
