NEW VOICES: Former State Department Official Urges President to Implement Ruling of World Court

John Bellinger, who served as legal adviser to the State Department from 2005 to 2009, has called on President Obama to assist in the review of the death penalty cases of foreign nationals who were denied rights under the Vienna Convention on Consular Relations.  The U.S. has ratified the Vienna Convention and the Protocol that provides for resolution of disputes in the International Court of Justice in the Hague (ICJ).  Mexico brought a suit to this court on behalf of its citizens on death row in various states because the U.S. had not provided the defendants with access to their consulates at the time of their arrest.  The ICJ held that the cases of the Mexican nationals should be reviewed before any executions went forward.  President George W. Bush ordered state courts  to review the cases, but this order was ultimately blocked in the U.S. Supreme Court.  Mr. Bellinger said that President Obama could comply with our obligations under the treaty through legislation: "The Obama administration's best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter," he wrote recently in the N.Y. Times.

Texas has already executed Jose Medellin, one of the lead plaintiffs in this international dispute.  The Mexican suit was brought on behalf of 51 death row inmates who had been denied rights such as the ones U.S. citizens would demand if arrested in a foreign country.  The full op-ed may be read below:

Lawlessness North of the Border
By JOHN B. BELLINGER III

Washington

PRESIDENT OBAMA has rightly emphasized America's commitment to
complying with international law. It is surprising, then, that he has so
far taken no steps to comply with decisions of the International Court
of Justice requiring the United States to review the cases of 51
Mexicans convicted of murder in state courts who had been denied access
to Mexican consular officials, in violation of American treaty
obligations.

In contrast to its mishandling of detainees, the Bush administration
worked conscientiously in its second term to comply with these rulings,
even taking the step of ordering the states to revisit the Mexican
cases, a move the Supreme Court invalidated last year. The Obama
administration should support federal legislation that would enable the
president to ensure that the United States lives up to its international
obligations.

The international court's decisions arise from the arrest, conviction
and death sentences of more than 50 Mexicans. As a party to the 1963
Vienna Convention on Consular Relations, the United States is required
to inform foreigners arrested here of their right to have a consular
official from their country notified of their arrest.

Unfortunately, it has proven all but impossible to guarantee that state
law enforcement officials observe this obligation in all cases, and
nearly all of the Mexicans at issue were never told of their Vienna
Convention rights.

In 2003, Mexico filed suit against the United States in The Hague,
demanding that the Mexicans' convictions be reviewed to determine
whether the absence of consular notice had prejudiced the defendants*
ability to hire qualified counsel. The international court sided with
Mexico, ruling that the United States had violated the Vienna
Convention, and ordered us to reconsider all of the convictions and
death sentences.

This decision presented a serious legal and diplomatic challenge for
President George W. Bush early in his second term. But Texas strongly
opposed acquiescing to an international court, especially in the
prominent case of José Medellín, who had been convicted of the rape and
murder of two teenage girls.

Secretary of State Condoleezza Rice argued, however, that the United
States was legally obligated by the United Nations Charter to follow the
international court*s decisions, and she emphasized the importance of
complying to ensure reciprocal Vienna Convention protections for
Americans arrested overseas. (The United States, for example, took Iran
to the international court for violating the Vienna Convention by
denying American hostages consular access during the 1979 embassy
takeover.) President Bush ultimately issued an order in February 2005
directing state courts to follow the international court*s decision.

But Texas challenged the president's order and, in March 2008, the
Supreme Court sided with Texas. Chief Justice John Roberts acknowledged
America's obligation to comply with the international court's
decisions, but held that the president lacked inherent constitutional
authority to supersede state criminal law rules limiting appeals and
that Congress had never enacted legislation authorizing him to do so.

President Bush's advisers concluded that, in an election year,
Congress could not be persuaded to pass legislation extending additional
rights to convicted murderers. So instead Secretary Rice and Attorney
General Michael Mukasey wrote to Gov. Rick Perry of Texas reminding him
of the United States' treaty obligations. Although Governor Perry
agreed to support limited review in certain cases, Texas nevertheless
proceeded with the execution of José Medellín.

In the meantime, after the Medellín decision, Mexico sought a new
ruling from the International Court of Justice that the United States
had misinterpreted the court's earlier judgment. In January--in a
case I argued--the international court concluded that although the
United States clearly accepted its obligation to comply with the
decision, our nation had violated international law by allowing Mr.
Medellín to be executed. The court reaffirmed that the remaining cases
must be reviewed.

President Obama now faces the same challenges as Mr. Bush in 2005: an
international obligation to review the cases of those Mexicans remaining
on death rows across the country; state governments that are politically
unwilling or legally unable to provide this review; and a Congress that
often fails to appreciate that compliance with treaty obligations is in
our national interest, not an infringement of our sovereignty.

The Obama administration's best option would be to seek narrowly
tailored legislation that would authorize the president to order review
of these cases and override, if necessary, any state criminal laws
limiting further appeals, in order to comply with the United Nations
Charter.

From closing Guantánamo to engaging with the International Criminal
Court to seeking Senate approval of the Law of the Sea Convention,
President Obama is confronting the recurring tension between our
international interests and domestic politics. But reviewing the Mexican
cases as the international court demands is not insincere global
theater. On the contrary, complying with the Vienna Convention is
legally required and smart foreign policy. It protects Americans abroad
and confirms this country's commitment to international law.

John B. Bellinger III, a lawyer, was the legal adviser to the State
Department from April 2005 to January 2009. (J. Bellinger, "Lawlessness North of the Border," N.Y. Times, July 18, 2009).  See Foreign Nationals and New Voices.