Texas law vs. treaty

Late Thursday night the Supreme Court narrowly stopped Texas from executing Canadian Stanley Faulder. The reprieve came only minutes before Faulder was to be killed. It never should have come so close.

Executing Faulder would be a disastrous mistake. Never mind the ethics of capital punishment, which most Western countries condemned long ago. Leave aside the serious procedural flaws in Faulder's prosecution. His execution would have violated international law by breaking a treaty that the United States signed in 1969. For this reason alone, the execution would have had far-ranging, dangerous consequences - not just for Faulder, but also for thousands of Americans imprisoned abroad.

The trouble dates back to 1977. When Texas first arrested Faulder for murdering a rich widow, it failed to tell the Canadian consulate or to explain to Faulder his rights as a foreigner. This violated Article 36 of the Vienna Convention on Consular Relations, an international treaty to which the US is party.

When Canadian officials learned of the case and Faulder's pending execution, they objected. Canada's Foreign Minister, Lloyd Axworthy, contacted US Secretary of State Madeleine Albright and Texas Governor George W. Bush. So did Canada's Ambassador, Raymond Chretien. Ms. Albright called Mr. Bush directly, urging that he grant a 30-day delay to reconsider the matter.

Announcing that Texas believed in "swift and sure punishment," Bush refused. So did the parole board. And so, but for the last-minute Supreme Court intervention, Faulder would have died on Thursday.

Yet by executing Faulder over Albright's objection, Bush would have embarrassed Washington and challenged the whole concept of American federalism. As Bush must know, it's the central government - not the states - that makes treaties with foreign governments, and it's the central government that must enforce them.

Though criminal justice is traditionally a local function, there has to be power in the federal government to remedy treaty violations because international responsibility will be borne by Washington. Washington has to make sure that states live up to their collective obligations. When the states refuse, and thumb their noses at the world, it calls into question the very cohesiveness of the American union and the wisdom of its leaders who allow such chaos.

But these theoretical implications are secondary. Bush could be forgiven for making a play for greater states' rights - although how this makes him look "presidential" is unclear. But what Texas should have recognized is that the execution would have placed other Americans in very real danger. Every time the US breaks a treaty, it shows contempt for international law, and sends a signal to other countries around the world that they might as well do the same. This is the case with the Vienna Convention, which the US flaunts too often. The last case occurred only eight months ago, when Virginia executed Paraguayan Angel Breard - again, without having informed his consulate of his arrest.

These breaches of international law decrease the likelihood that Americans will have their rights respected abroad. In America, where everyone is afforded legal aid and an essentially free trial, the value of consular notification may seem small. This was especially true in Faulder's case, because he never denied his basic guilt. But think for a moment of being thrown into jail in a foreign, developing country, with a crude or corrupt legal system. The value of consular notification, of having your own government in your corner, becomes pretty obvious.

The Supreme Court should be applauded for its decision, handed down on the 50th anniversary of the Universal Declaration of Human Rights. Not just because the Supreme Court strengthened international law. But because, in a very real sense, it entrenched the rights of foreigners here and of Americans around the globe.

* Jonathan D. Tepperman, a Canadian, is an international lawyer and an associate editor at Foreign Affairs magazine.